<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): SEPTEMBER 29, 1998
U.S.A. FLORAL PRODUCTS, INC.
(Exact Name of Registrant as Specified in Charter)
DELAWARE 000-23121 52-2030697
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
1025 THOMAS JEFFERSON STREET, N.W., SUITE 300 EAST, WASHINGTON, D.C. 20007
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (202) 333-0800
<PAGE>
Item 2. Acquisition or Disposition of Assets.
(a) Effective September 30, 1998, pursuant to the Stock and Asset Purchase
Agreement ("Purchase Agreement") by and between DIMON Incorporated
("DIMON") and Florimex Worldwide GmbH ("Florimex Germany"), and U.S.A.
Floral Products, Inc. ("USA Floral"), USA Floral acquired: (i) the
stock of 23 subsidiaries of Florimex Germany; (ii) certain assets and
liabilities of Florimex Germany; and (iii) the stock of Florimex USA,
Inc. ("Florimex USA") and Florimex Canada, Inc. ("Florimex Canada"),
each of which were previously wholly-owned subsidiaries of DIMON.
Florimex Germany, Florimex USA
<PAGE>
and Florimex Canada are collectively referred to as "Florimex."
Florimex is the largest international importer and distributor of
fresh-cut flowers in the world with operations in over 15 countries.
Pursuant to the terms of the Purchase Agreement: (i) USA Floral
acquired from DIMON all of the shares of the issued and outstanding
capital stock of Florimex USA and Florimex Canada; (ii) U.S.A. Floral
Products Germany GmbH & Co. KG, a German limited partnership, acquired
from Florimex Germany all of the shares of the issued and outstanding
capital stock of three German operating subsidiaries of Florimex
Germany; (iii) U.S.A. Floral Products Holding GmbH, the limited
partner of the German limited partnership described above and a wholly
owned subsidiary of USA Floral, acquired from Florimex Germany all of
the shares of the issued and outstanding capital stock of 20 other
subsidiaries directly or indirectly owned, of record and beneficially
by Florimex Germany; and (iv) U.S.A. Floral Products Holding GmbH
acquired from Florimex Germany certain assets and liabilities. In
consideration for the exchange of their shares of issued and
outstanding capital stock and/or assets and liabilities, DIMON and
Florimex Germany received in the aggregate approximately $66.1 million
in cash and USA Floral or its subsidiaries extinguished approximately
$23.6 million of the net debt of the acquired businesses. The
approximately $66.1 million in cash for the acquisitions was obtained
from borrowings under USA Floral's credit facility (the "Credit
Facility") with a syndicate of lenders for whom Bankers Trust Company
is agent.
The total consideration was determined on the basis of arms' length
negotiations between representatives of USA Floral, DIMON and Florimex
Germany.
(b) Not applicable.
<PAGE>
Item 5. Other Events.
Acquisition of Southern Rainbow Corporation
Effective September 29, 1998, USA Floral acquired Southern Rainbow
Corporation ("Southern Rainbow"). Southern Rainbow imports and sells
fresh-cut flowers to customers in the United States and Canada. Southern
Rainbow has offices in Miami, Florida.
Amendment and Restatement of Credit Agreement
Effective October 2, 1998, USA Floral amended and restated its credit
agreement (the "Amended Credit Agreement"), which was originally entered
into on October 16, 1997. Pursuant to the terms of the Amended Credit
Agreement, the amount of the Credit Facility was increased to $200 million,
the sub-limit under the Credit Facility for permitted acquisitions was
increased to up to $180 million, and the sub-limit for working capital
purposes and letters of credit was increased to up to $20 million. In
addition, a revolving loan with a sub-limit of up to $15 million and which
is payable to certain foreign subsidiaries of USA Floral in either Deutsche
Marks or Guilders, as further set forth in the Amended Credit Agreement,
was created as a separate portion of the $200 million Credit Facility.
Finally, a $50 million Deutsche Mark denominated Term Loan was created as
an additional source of borrowings in excess of the $200 million Credit
Facility.
The Amended Credit Agreement is filed as an exhibit to this Current Report
on Form 8-K.
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
(a) Financial Statements of Businesses Acquired. The financial statements
required to be filed for Florimex are not available and will be filed
by amendment to this Form 8-K no later than 60 days from the date this
report is required to be filed.
(b) Pro Forma Financial Information. The required pro forma financial
information will be filed at the time the required financial
statements for Florimex are filed.
(c) Exhibits. The following exhibits are filed as part of this Current
Report on Form 8-K:
Exhibit No.
Description
-------------------------------------------------- -----------
Stock and Asset Purchase Agreement by and between 2.1
DIMON Incorporated and Florimex Worldwide GmbH,
and U.S.A. Floral Products, Inc.
<PAGE>
Credit Agreement among U.S.A. Floral Products, Inc., 4.1
U.S.A. Floral Products Germany GmbH & Co. KG,
Florimex Worldwide B.V., Various Lending
Institutions, Bayerische Hypo-Und Vereinsbank AG, as
Syndication Agent, BankBoston, N.A., as
Documentation Agent, and Bankers Trust Company, as
Arranger and Administrative Agent, dated as of
October 16, 1997 and Amended and Restated as of
October 2, 1998.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
U.S.A. Floral Products, Inc.
Date: October 15, 1998 By: /s/ RAYMOND C. ANDERSON
------------------------------------
Raymond C. Anderson
Chief Financial Officer
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- ------------------------------------------------------
2.1 Stock and Asset Purchase Agreement by and
between DIMON Incorporated and Florimex
Worldwide GmbH, and U.S.A. Floral Products,
Inc. (Schedules and Annexes are omitted and will
be furnished upon request).
4.1 Credit Agreement among U.S.A. Floral Products,
Inc., U.S.A. Floral Products Germany GmbH & Co.
KG, Florimex Worldwide B.V., Various Lending
Institutions, Bayerische Hypo-Und Vereinsbank
AG, as Syndication Agent, BankBoston, N.A., as
Documentation Agent, and Bankers Trust
Company, as Arranger and Administrative Agent,
dated as of October 16, 1997 and Amended and
Restated as of October 2, 1998. (Schedules and
certain Annexes are omitted and will be furnished
upon request).
<PAGE>
EXHIBIT 2.1
STOCK AND ASSET PURCHASE AGREEMENT
between
DIMON Incorporated,
FLORIMEX Worldwide GmbH
and
U.S.A. Floral Products, Inc.
August 12, 1998
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I DEFINITIONS......................................................... 1
-----------
Section 1.01. Definitions............................................... 1
ARTICLE II PURCHASE AND SALE AND CLOSING
-----------------------------
Section 2.01. Purchase and Sale of Stock and Assets..................... 6
Section 2.02. Purchase Price............................................ 6
Section 2.03. Closing................................................... 7
Section 2.04. Sellers' Deliveries at Closing............................ 7
Section 2.05. Buyers' Deliveries at Closing............................. 7
Section 2.06. Mutual Deliveries at Closing.............................. 8
ARTICLE III ADJUSTMENT OF PURCHASE PRICE...................................... 8
-----------------------------
Section 3.01. Delivery of Florimex Financial Statement.................. 8
Section 3.02. Final Florimex Financial Statement and Dispute Resolution. 8
Section 3.03. Final Florimex Financial Statement Resulting From Dispute 9
Resolution.............................................................. 8
Section 3.04. Post Closing Adjustment................................... 8
ARTICLE IV [intentionally omitted]............................................ 9
ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLER............................ 10
---------------------------------------
Section 5.01. Corporate Existence of Sellers............................ 10
Section 5.02. Authorization; Enforceability............................. 10
Section 5.03. No Violation or Conflict by the Sellers................... 10
Section 5.04. Title to Stock............................................ 10
Section 5.05. Organization of Companies................................. 11
Section 5.06. Capitalization of Companies............................... 11
Section 5.07. No Violation or Conflict by Companies..................... 11
Section 5.08. Interim Florimex Financial Statement/No Material Changes.. 11
Section 5.09. Taxes..................................................... 12
Section 5.10. Personal Property......................................... 12
Section 5.11. Real Property............................................. 13
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i
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Section 5.12. Material Contracts........................................ 13
Section 5.13. Insurance................................................. 13
Section 5.14. Intellectual Property..................................... 14
Section 5.15. Employment Relations...................................... 14
Section 5.16. No Litigation............................................. 14
Section 5.17. Books and Records......................................... 15
Section 5.18. No Broker................................................. 15
Section 5.19. Software.................................................. 15
Section 5.20. Environmental Compliance, Cleanup, Permits and Licenses... 16
Section 5.21. Companies in Liquidation.................................. 16
Section 5.22. Assets; Condition......................................... 16
Section 5.23. Employee Matters.......................................... 16
Section 5.24. No Other Representations.................................. 17
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF BUYER............................ 17
---------------------------------------
Section 6.01. Corporate Existence of Buyers............................. 17
Section 6.02. Authorization; Enforceability............................. 17
Section 6.03. No Violation or Conflict.................................. 18
Section 6.04. No Broker................................................. 18
Section 6.05. Purchase for Investment................................... 18
Section 6.06. Investigation by Buyers................................... 18
Section 6.07. No Litigation............................................. 19
Section 6.08. International Operations.................................. 19
Section 6.09. No Other Representations.................................. 19
ARTICLE VII COVENANTS OF SELLERS.............................................. 19
--------------------
Section 7.01. Conduct of Business of the Companies...................... 19
Section 7.02. Compliance with Law....................................... 21
Section 7.03. Regulatory and Other Approvals............................ 21
Section 7.04. Investigation by Buyers................................... 21
Section 7.05. Resignations.............................................. 22
ARTICLE VIII COVENANTS OF BUYERS.............................................. 22
-------------------
Section 8.01. Compliance with Law....................................... 22
Section 8.02. Regulatory and Other Approvals............................ 22
</TABLE>
ii
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<S> <C> <C>
ARTICLE IX OTHER COVENANTS AND AGREEMENTS OF BUYERS AND SELLERS............... 22
----------------------------------------------------
Section 9.01. Release of Guarantees..................................... 22
Section 9.02. Employment Employee Benefit Plan and Other Matters........ 23
Section 9.03. Settlement of Inter-Company Accounts...................... 23
Section 9.04. Fulfillment of Conditions................................. 23
Section 9.05. Profit and Loss Allocation................................ 23
ARTICLE X CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYERS....................... 24
---------------------------------------------
Section 10.01. Performance.............................................. 24
Section 10.02. Proceedings and Examinations............................. 24
Section 10.03. No Actions............................................... 24
Section 10.04. Representations and Warranties........................... 24
Section 10.05. Deliveries............................................... 24
Section 10.06. Regulatory Consents and Approvals........................ 24
Section 10.07. Third Party Consents..................................... 25
Section 10.08. Additional Certificates.................................. 25
ARTICLE XI CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS..................... 25
---------------------------------------------
Section 11.01. Performance.............................................. 25
Section 11.02. Proceedings and Examinations............................. 25
Section 11.03. No Actions............................................... 25
Section 11.04. Representations and Warranties........................... 25
Section 11.05. Deliveries............................................... 26
Section 11.06. Regulatory Consents and Approvals........................ 26
Section 11.07. Third Party Consents..................................... 26
Section 11.08. Other Agreements......................................... 26
Section 11.09. Additional Certificates.................................. 26
ARTICLE XII INDEMNITIES AND ADDITIONAL COVENANTS.............................. 26
------------------------------------
Section 12.01. Sellers' Indemnity....................................... 26
Section 12.02. Buyers' Obligation in Respect of Companies in Liquidation 27
Section 12.03. Indemnity Amounts to be Computed on After-Tax Basis...... 27
ARTICLE XIII MISCELLANEOUS.................................................... 28
-------------
Section 13.01. Governing Law and Jurisdiction........................... 28
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iii
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<S> <C>
Section 13.02. Notices.................................................. 28
Section 13.03. Entire Agreement......................................... 29
Section 13.04. Expenses................................................. 29
Section 13.05. Public Announcements..................................... 29
Section 13.06. Confidentiality.......................................... 29
Section 13.07. Further Assurances; Post-Closing Cooperation............. 30
Section 13.08. Waiver................................................... 30
Section 13.09. Amendment................................................ 31
Section 13.10. No Third Party Beneficiary............................... 31
Section 13.11. No Assignment; Binding Effect............................ 31
Section 13.12. Headings................................................. 31
Section 13.13. Invalid Provisions....................................... 31
Section 13.14. Counterparts............................................. 31
Section 13.15. Waiver of Jury Trial..................................... 31
Section 13.16. Specific Performance..................................... 31
Section 13.17. Termination.............................................. 32
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iv
<PAGE>
LIST OF ANNEXES AND SCHEDULES
-----------------------------
<TABLE>
<S> <C>
ANNEXES
- -------
Annex I : List of USA Floral and its subsidiaries, setting forth the portion
of the Stock of each Company to be purchased by each Buyer and the
respective portion of the Purchase Price to be allocated to that
portion of the Stock.
Annex II : List of Wholly Owned Companies.
Annex III : List of Companies in Liquidation.
Annex IV : List of Non-Wholly Owned Companies, showing ownership percentages held by DIMON or Florimex Germany.
Annex V : List setting forth the portion of the Purchase Price to be issued by the Buyers to each Seller
respectively.
SCHEDULES
- ---------
Schedule 1.01(a) : Adjustments to EBITDA
Schedule 1.01(b) : Expenses, charges or provisions associated with the restructuring of Florimex Germany and the
Companies.
Schedule 2.04(c)(i) : Bill of Sale and Assignment and Assumption Agreement relating to Assets and Liabilities of DIMON.
Schedule 2.04(c)(ii) : Bill of Sale and Assignment and Assumption Agreement relating to Assets and Liabilities of Florimex
Germany.
Schedule 2.06 : Tax Cooperation Agreement
Schedule 5.03 : Exceptions to Sellers' "No Violation or Conflict" - representation.
Schedule 5.06 : Exceptions to Sellers' "Capitalization of Companies" - representation.
Schedule 5.07 : Exceptions to Sellers' "No Violation or Conflict by Companies" - representation.
Schedule 5.08 : Interim Florimex Financial Statement.
</TABLE>
v
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<S> <C>
Schedule 5.09 : Exceptions to Sellers' Taxes representation.
Schedule 5.10 : Exceptions to Sellers' "Personal Property" - representation.
Schedule 5.11 : List of real property, including any Liens in respect thereof,
the Sellers' or Companies' indebtedness secured by a Lien on
real property, and setting forth any pending or threatened
condemnation proceedings which would impair the use of the
buildings, structures or appurtenances situated on the real
property.
Schedule 5.12 : Exceptions to Sellers' "Material Contracts" - representation.
Schedule 5.13 : List of material insurance policies of the Companies.
Schedule 5.14(a) : List of the Material Intellectual Property, including listing of any registrations or filings and
restrictions in ownership, and pending or threatened proceedings, litigation or other adverse
claims in respect of the Material Intellectual Property.
Schedule 5.14(b) : List of material license agreements.
Schedule 5.16 : Exceptions to Sellers' "No Litigation" - representation.
Schedule 5.17 : Exceptions to Sellers' "Books and Records" - representation.
Schedule 5.18 : Exceptions to Sellers' "No Broker" - representation.
Schedule 5.19(a) : The Software.
Schedule 5.19(b) : Exceptions to Sellers' "Year 2000" - representation.
Schedule 5.19(c) : Exceptions to Sellers' "Software Title" - representation.
Schedule 5.20 : Exceptions to "Environmental" - representation.
Schedule 5.23(a) : The Employees.
Schedule 5.23(c) : Exceptions to Sellers "Financial Obligations to Employees" -representation.
Schedule 5.23(d) : The Key Employees.
Schedule 5.23(e) : Exceptions to Sellers' "Financial Obligations to Key Employees" - representation.
</TABLE>
vi
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<TABLE>
<S> <C>
Schedule 6.03 : Exceptions to Buyers' "No Violation or Conflict" - representation.
Schedule 6.04 : Exceptions to Buyers' "No Broker"- representation.
Schedule 6.07 : Exceptions to USA Floral's "No Litigation" - representation.
Schedule 7.01(d) : Budgetary projections as referred to in Section 7.01(d).
Schedule 9.01 : Details of guarantees provided by DIMON and Florimex Germany to Companies.
Schedule 9.02 : Handling of certain employment and Employee Benefit Plan matters.
Schedule 9.03 : Post Closing Settlement of Inter Company Accounts
Schedule 10.04 : Sellers' Closing Certificate.
Schedule 10.07 : Buyers' list of third party consents to be obtained.
Schedule 11.04 : Buyers' Closing Certificate.
Schedule 11.07 : Sellers' list of third party consents to be obtained.
</TABLE>
vii
<PAGE>
STOCK AND ASSET PURCHASE AGREEMENT
THIS STOCK AND ASSET PURCHASE AGREEMENT, dated as of August 12, 1998, is
made and entered into by and between DIMON Incorporated, a corporation organized
under the Laws of Virginia, and Florimex Worldwide GmbH, a company organized
under the Laws of Germany (jointly, the "Sellers"), and U.S.A. Floral Products,
Inc., a corporation organized under the Laws of Delaware, (jointly with its
designated German subsidiary, the "Buyers"). Capitalized terms not otherwise
defined herein shall have the meanings set forth in Article I.
WHEREAS, the Sellers own the Stock and desire to sell the Stock to the
Buyers, and the Buyers desire to purchase the Stock from the Sellers, all upon
the terms and subject to the conditions hereinafter set forth; and
WHEREAS, the Sellers own the Assets and are subject to the Liabilities and
desire to sell the Assets and transfer the Liabilities to the Buyers, and the
Buyers desire to purchase the Assets and assume the Liabilities from the
Sellers, all upon the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
-----------
Section 1.01. Definitions. When used in this Agreement, the following
-----------
terms shall have the meanings indicated below:
"Accountants" means PricewaterhouseCoopers LLP, as the Sellers' independent
-----------
public accountants, or such other firm of independent public accountants
conducting the audit of the Florimex Financial Statement on behalf of the
Sellers in accordance with applicable Laws and GAAP.
"Affiliate" means any Person that directly, or indirectly through one or
---------
more intermediaries, controls or is controlled by or is under common control
with the Person specified. For purposes of this definition, control of a Person
means the power, direct or indirect, to direct or cause the direction of the
management and policies of such Person whether by Contract or otherwise and, in
any event and without limitation of the previous sentence, any Person owning
more than fifty (50%) of the voting securities of a second Person shall be
deemed to control that second Person.
1
<PAGE>
"Agreement" means this Stock and Asset Purchase Agreement, together with
---------
the Annexes and Schedules attached hereto, as the same may be amended from time
to time in accordance with the terms hereof.
"Assets" means all of the assets listed on the schedules attached to
------
Schedules 2.04(c)(i) and (ii) hereto.
- --------------------- ----
"Buyers" means USA Floral and the subsidiaries of USA Floral listed on
------
Annex I to this Agreement, each with respect to the portion of the Stock or
- -------
Assets of the Companies or Company and the portion of the Purchase Price as set
forth on Annex I.
-------
"Closing" means the closing of the transactions contemplated by Article II.
-------
"Closing Date" means September 30, 1998, or such later date as the Parties
------------
may agree in writing.
"Companies" means the Wholly Owned Companies, the Non-Wholly Owned
---------
Companies and the Companies in Liquidation.
"Companies in Liquidation" means the companies listed on Annex III hereto.
------------------------ ---------
"Confidentiality Agreement" means the Confidentiality Agreement dated
-------------------------
October 21, 1997 between the Buyers and the Sellers.
"Contract" means any contract, agreement, lease, evidence of indebtedness,
--------
mortgage, indenture, security agreement or other contract.
"Corporate Documents" mean, with respect to a company organized under the
-------------------
Laws of Germany, the Deed of Incorporation and the Articles of Association
thereof and, with respect to any other entity, such documents as are equivalent
to the Deed of Incorporation and the Articles of Association.
"DIMON" means DIMON Incorporated, a corporation organized under the Laws of
-----
the Commonwealth of Virginia.
"EBITDA" means earnings before interest expense, interest income from
------
third-party financial institutions, taxes based on income, depreciation and
amortization. For purposes of this Agreement: (i) EBITDA shall be computed in
accordance with GAAP applied (to the extent not inconsistent with GAAP) in a
manner consistent with the Interim Florimex Financial Statement; (ii) EBITDA
shall be adjusted to exclude amounts in respect to non-recurring income, but
only in respect of those items of non-recurring income set forth on Schedule
--------
1.01(a), as reflected in the Final Florimex Financial Statement; and (iii)
- -------
EBITDA shall be adjusted to exclude (by adding back) amounts in respect of non-
recurring expense, but only in respect of those items of non-recurring expenses
set forth on Schedule 1.01(a), as reflected in the Final Florimex Financial
----------------
Statement.
2
<PAGE>
"Employee Benefit Plan" means any plan, program, policy or arrangement to,
---------------------
or on behalf of, one, or more than one, current or former employee or director
or any of their dependents.
"Environmental Laws" mean any federal, state, local or other law and any
------------------
regulations promulgated thereunder, relating to the environment.
"Estimated Net Debt" means the Sellers' estimate of the Net Debt as shown
------------------
on the Interim Florimex Financial Statement.
"Estimated Purchase Price" means US$ 90,000,000, minus the Estimated Net
------------------------
Debt as set forth in Sellers' estimate thereof delivered to Buyers as of five
business days prior to Closing, payable at the Closing and pursuant to Section
2.02 hereof, and subject to the Post Closing Adjustment.
"Final Net Debt" means the Net Debt as reflected on the Final Florimex
--------------
Financial Statement, reduced by payments made by the Sellers from the date
hereof to the Closing Date to pay down indebtedness incurred under the loan
agreements listed on Schedule 5.03 in connection with any lenders' refusal to
-------------
consent to the assumption of such loan to the Buyers; provided that any such
reduction shall not exceed the balance disclosed for such indebtedness on the
Final Florimex Financial Statement.
"Final Purchase Price" means the amount equal to six times the amount of
--------------------
EBITDA as determined on the basis of the Final Florimex Financial Statement, up
to a maximum of US$ 90,000,000, minus the Final Net Debt.
"Final Florimex Financial Statement" means the Florimex Financial Statement
----------------------------------
prepared in accordance with Article III hereof and accepted by the Sellers and
the Buyers as the Final Florimex Financial Statement, or, as the case may be, as
revised by the Accountants in accordance with the final and binding opinion of
an office of Deloitte & Touche pursuant to Section 3.02 hereof, and as certified
------------
by the Accountants.
"Florimex Canada" means Florimex Canada Inc., a company organized under the
---------------
Laws of Canada.
"Florimex Financial Statement" means the audited consolidated financial
----------------------------
statements (consisting of a consolidated balance sheet as of June 30, 1998, a
consolidated statement of operations and a consolidated statement of cash flows
for the twelve months ended June 30, 1998, and notes thereto) incorporating
Florimex Germany, Florimex USA and Florimex Canada, prepared in accordance with
Section 3.01.
"Florimex Germany" means Florimex Worldwide GmbH, a company formed under
----------------
the Laws of Germany.
"Florimex USA" means Florimex USA, Inc., a company organized under the Laws
------------
of the Commonwealth of Virginia.
3
<PAGE>
"GAAP" means generally accepted accounting principles in the United States
----
of America consistently applied throughout the specified period, and in the
immediately prior comparable period.
"Governmental or Regulatory Authority" means any court, tribunal,
------------------------------------
arbitrator, authority, agency, commission, official or other instrumentality of
any country, state, province, county, city or other political subdivision.
"Interim Florimex Financial Statement" means the consolidated, unaudited
------------------------------------
interim financial statement (consisting of a consolidated balance sheet as of
June 30, 1998, and a consolidated statement of operations for the twelve months
ended June 30, 1998) incorporating Florimex Germany, Florimex USA and Florimex
Canada delivered to the Buyers pursuant to Section 5.08 hereof.
"Knowledge of the Buyers" means the actual knowledge of any of the
-----------------------
following individuals: Robert J. Poirier and Chris Wilson.
"Knowledge of the Sellers" means the actual knowledge of any of the
------------------------
following individuals: Claude Owen, Ritchie Bond, Dwight Ferguson and Winfried
Falk.
"Law or Laws" means any federal, state, local or other law or governmental
-----------
requirement of any kind, and the rules, regulations and orders promulgated
thereunder.
"Liabilities" mean the liabilities listed on the schedules to Schedules
----------- ---------
2.04(c)(i) and (ii) hereto.
- ---------- ----
"Liens" means any mortgage, deed of trust, pledge, assessment, security
-----
interest, lease, lien, adverse claim, levy, charge or other encumbrance except
(a) Liens shown on the Interim Florimex Financial Statement, (b) minor
imperfections in title, if any, none of which individually or together with
other minor imperfections to title materially impairs the value or use of the
property subject hereto, (c) Liens for current taxes not yet due, and (d) those
Liens that, individually or together, do not have any materially adverse effect
on the Companies."
"Losses" has the meaning ascribed to it in Section 12.01.
------
"Material Companies" mean Florimex Worldwide B.V., Florimex
------------------
Grundstucksverwal-tungsgesellschaft mbH, Kenya Flowers GmbH, Florimex GmbH and
Florimex Nuremberg GmbH.
"Material Contract" means any of the Contracts set forth on Schedule 5.12.
----------------- -------------
"Material Intellectual Property" has the meaning ascribed to it in Section
------------------------------
5.14(a).
"Net Debt" means all interest bearing debt of the Companies or Florimex
--------
Germany, including obligations under capital leases, drawings in accordance with
mortgages and notes payable to banks or financial institutions, less cash and
cash equivalents as computed pursuant to
4
<PAGE>
GAAP, further reduced by balances due to the Companies in connection with the
settlement of inter-company accounts pursuant to Section 9.03 hereof.
"Non-Material Companies" mean all of the Companies other than the Material
----------------------
Companies.
"Non-Wholly Owned Companies" means the companies set forth in Annex IV, the
-------------------------- --------
capital stock of which is held by DIMON or Florimex Germany in the percentages
as indicated in Annex IV and which are not in liquidation.
--------
"Party" means the Sellers or the Buyers.
-----
"Person" means any natural person, partnership, joint venture, corporation,
------
limited liability company, proprietorship, or other business organization, or
trust, unincorporated organization or other entity or Governmental or Regulatory
Authority.
"Personal Property" means each item of personal property of the Companies
-----------------
having a net book value in excess of $50,000, including the material machinery
and equipment in the warehouses and offices used by the Companies including
those reflected in the Florimex Financial Statement and all properties acquired
by the Companies since the date of the Florimex Financial Statement; excluding
property sold or otherwise disposed of in the ordinary course of business.
"Post Closing Adjustment" means an adjustment, up or down, to the Estimated
-----------------------
Purchase Price made after the Closing Date in accordance with Section 3.04
hereof, to reflect any variation in the Final Purchase Price below or above the
Estimated Purchase Price, which adjustment, in the event that the Final Purchase
Price is less than the Estimated Purchase Price, shall consist of a
reimbursement by the Sellers of a portion of the Estimated Purchase Price, equal
to such lesser amount, to the Buyers, or, in the event that the Final Purchase
Price is greater than the Estimated Purchase Price, shall consist of a payment
by the Buyers of an amount equal to such greater amount, to the Sellers.
"Purchase Price" means the Estimated Purchase Price as long as the Final
--------------
Purchase Price has not been established, and the Final Purchase Price once the
Final Purchase Price has been established in accordance with Article III.
"Representatives" has the meaning ascribed to it in Section 7.04.
---------------
"Sellers" mean DIMON and Florimex Germany, each with respect to the Stock
-------
and Assets of the Companies or Company as set forth on Annex II, Annex III and
-------- ---------
Annex IV.
- --------
"Software" means the computer software that was developed by and is
--------
currently owned by the Companies and is material to the business or operation of
the Companies, taken as a whole, together with all know-how and processes used
in connection therewith, as listed on Schedule 5.19(a).
----------------
5
<PAGE>
"Stock" means the shares of the issued and outstanding common equity of the
-----
Companies, directly or indirectly owned, of record and beneficially, by the
Sellers, in the percentages as set forth in Annex II attached hereto.
--------
"USA Floral" means U.S.A. Floral Products, Inc., a corporation organized
----------
under the Laws of Delaware.
"Wholly Owned Companies" means the companies listed on Annex II attached
---------------------- --------
hereto, which are 100% directly or indirectly owned subsidiaries of Sellers and
which are not in liquidation.
"Working Days" mean days between Monday and Friday, inclusive, each ending
------------
at 12:00 midnight prevailing time in Richmond, Virginia, on which banks in the
State of New York are permitted by law to be open for the transaction of
business.
Section 1.02. Certain Words and Phrases. Unless the context of this
-------------------------
Agreement otherwise requires, (a) words of any gender include each other gender;
(b) words, including terms defined in Section 1.01 hereof, using the singular or
plural number also include the plural or singular number, respectively; (c) the
terms "hereof," "herein," "hereby" and derivative or similar words refer to this
Agreement; (d) the terms "Article" or "Section" refer to the specified Article
or Section of this Agreement; and (e) the phrase "ordinary course of business"
refers to the business of the Companies when conducted in the ordinary and usual
manner consistent with the past practices of each respective Company. All
accounting terms used herein and not expressly defined herein shall have the
meanings given to them under GAAP. Any representation or warranty contained
herein as to the enforceability of a Contract or other agreement as to a third
party shall be subject to the effect of any bankruptcy, insolvency,
reorganization, moratorium or other similar law affecting the enforcement of
creditors' rights generally and to general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
ARTICLE II
PURCHASE AND SALE AND CLOSING
-----------------------------
Section 2.01. Purchase and Sale of Stock and Assets.
-------------------------------------
(a) At the Closing, and upon all of the terms and subject to the
fulfillment or waiver by the Party benefiting therefrom of all of the conditions
of this Agreement:
(i) the Sellers shall sell, transfer, assign, convey and deliver
to the Buyers, and the Buyers shall purchase and accept from the Sellers,
all of the right, title and interest of the Sellers in and to the Stock,
free and clear of any and all Liens, each Buyer as to the Stock of the
Company as shown for that Buyer on Annex I, and each Buyer for the amount
-------
of the Purchase Price as set forth in Annex I and paid to each Seller in
-------
the portions as set forth on Annex V;
-------
6
<PAGE>
(ii) The Sellers shall sell, assign, transfer, convey and deliver
to the applicable Buyer as set forth on Annex I, free and clear of any and
-------
all Liens, and the applicable Buyer shall purchase and accept from the
Sellers at the Closing, the Assets and all right, title, interest and
obligation of the Sellers therein; and
(iii) The Sellers shall assign, transfer and deliver to the
applicable Buyer as set forth on Annex I and the applicable Buyer shall
-------
accept and assume from the Sellers at the Closing, the Liabilities.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the transfer of title to the Stock and the Assets and the assumption
of the Liabilities shall become effective only upon receipt by the Sellers of
the Purchase Price.
Section 2.02. Purchase Price. On the Closing, as consideration for the
--------------
Stock and Assets, the Buyers shall pay to the Sellers the Purchase Price as
follows:
The Buyers shall pay the Estimated Purchase Price by wire transfer(s)
of immediately available funds in accordance with instructions to be provided by
the Sellers to the Buyers not less than two Working Days prior to the Closing
Date.
Section 2.03. Closing. The Closing will take place at the offices of
-------
Hunton & Williams, 951 East Byrd Street, Richmond, Virginia 23219 or at such
other places as the Parties mutually agree, at 10:00 A.M. prevailing time in
Richmond, Virginia, on the Closing Date.
Section 2.04. Sellers' Deliveries at Closing'. At the Closing, the
------------------------------
Sellers shall deliver, or cause to be delivered, to the Buyers:
(a) stock certificates, representing the Stock held by DIMON, duly
endorsed for transfer, in a form acceptable to the Parties;
(b) the legal opinion of Sellers' counsel in the form customarily
given in a transaction similar to the one contemplated herein;
(c) validly executed Bill of Sale and Assignment and Assumption
Agreements in the forms of Schedule 2.04(c)(i) and (ii) evidencing transfer of
------------------- ----
the Assets and Liabilities to the applicable Buyer set forth on Annex I;
-------
(d) a validly executed evidence of assignment or termination of the
profit and loss transfer agreements and domination agreements between Florimex
Germany on the one hand and the German Companies on the other hand in accordance
with Section 9.05;
------------
(e) evidence of waiver of certain rights of first refusal held by
minority shareholders of certain Non-Wholly Owned Companies; and
(f) any other documents and certificates to be delivered under Article
X hereof.
7
<PAGE>
Section 2.05. Buyers' Deliveries at Closing'. At the Closing, the Buyers
-----------------------------
shall deliver, or cause to be delivered, to the Sellers:
(a) the Purchase Price by wire transfer as described in Section
2.02(a);
(b) the legal opinion of Buyers' counsel in the form customarily given
in a transaction similar to the one contemplated herein;
(c) any other documents and certificates to be delivered under Article
XI hereof.
Section 2.06. Mutual Deliveries at Closing. At the Closing, the Buyers
----------------------------
and Sellers shall sign, execute and deliver (a) deeds or other appropriate
documents of transfer, validly executed, evidencing the transfer of the Stock to
the Buyers and in a form acceptable to the Parties and (b) the Tax Cooperation
Agreement in form of Schedule 2.06 hereto.
-------------
ARTICLE III
ADJUSTMENT OF PURCHASE PRICE
----------------------------
Section 3.01. Delivery of Florimex Financial Statement. Within sixty (60)
----------------------------------------
days of the Closing Date, Accountants shall, at the expense of the Sellers,
audit and deliver to the Buyer and Buyers' accountants the Florimex Financial
Statement and a schedule thereto illustrating the computation of EBITDA under
the terms of this Agreement (the "EBITDA Schedule"), both of which shall be
prepared in accordance with GAAP and, to the extent not inconsistent with GAAP,
in a manner consistent with the Interim Florimex Financial Statement and in
accordance with the past practices of the Companies as reflected in the
financial statements of the Companies for the immediately preceding comparable
period. At the time of delivery of the Florimex Financial Statement, the
Sellers shall cause to be made available to the Buyers' accountants the
workpapers of the Accountants and shall allow the Buyers reasonable access to
Ritchie Bond in connection with the Buyers' review of the Florimex Financial
Statement. For the purposes of this Agreement, the Florimex Financial Statement
shall not be deemed to have been delivered until such time as the EBITDA
Schedule and the workpapers are delivered in accordance with this Section 3.01.
Section 3.02. Final Florimex Financial Statement and Dispute Resolution.
---------------------------------------------------------
Unless the Buyers object, in writing to the Sellers within twenty (20) working
days after delivery of the Florimex Financial Statement by the Sellers, to the
computation of EBITDA or the determination of the Net Debt as provided in the
Florimex Financial Statement, the Florimex Financial Statement shall constitute
the Final Florimex Financial Statement. The computation of EBITDA and the
determination of Net Debt from the Final Florimex Financial Statement shall
provide the basis for determining the Final Purchase Price. If the Buyers have
any objections to the computation of EBITDA or the determination of Net Debt as
provided in the Florimex Financial Statement, they shall deliver a detailed
statement describing their objections to Accountants and the Sellers within
twenty (20) working days after receiving the Florimex Financial Statement.
8
<PAGE>
The Buyers and the Sellers, after consultation with the Accountants, will use
their reasonable best efforts to resolve any such objections. The Buyers and the
Sellers will select an office of Deloitte & Touche mutually agreeable to the
Parties to review the computation of EBITDA and the determination of Net Debt.
Deloitte & Touche shall review the computation of EBITDA and the determination
of Net Debt for mathematical accuracy and confirm whether such items have been
computed and determined consistent with GAAP and, to the extent not inconsistent
with GAAP, in a manner consistent with the Florimex Financial Statement. The
Accountants shall either confirm such computation and determination or make such
adjustments thereto as are necessary to correct any mathematical errors or
conform such computation and determination to GAAP and, to the extent not
inconsistent with GAAP, to the Florimex Financial Statement. Such confirmation
or adjustment, as the case may be, by Deloitte & Touche and Accountants shall be
completed within thirty (30) days after the an office of Deloitte & Touche is
selected by the Parties and shall be final and binding absent manifest
mathematical error reasonably recognizable by the Parties in respect of the
computation of EBITDA and the determination of Net Debt as provided in the
Florimex Financial Statement.
Section 3.03. Final Florimex Financial Statement Resulting From Dispute
---------------------------------------------------------
Resolution. Accountants will revise EBITDA and Net Debt as provided in the
- ----------
Florimex Financial Statement as appropriate to reflect the resolution of the
Buyers' objection (as agreed by the Buyers, the Sellers and the Accountants or
as determined by such elected office of Deloitte & Touche in accordance with
Section 3.02 above) and deliver the revised Florimex Financial Statement to the
Buyers and the Sellers within ten (10) days after the resolution of such
objections. Such revised Florimex Financial Statement shall be certified by the
Accountants and shall constitute the Final Florimex Financial Statement.
Section 3.04. Post Closing Adjustment. On the basis of EBITDA and Final
-----------------------
Net Debt as provided in the Final Florimex Financial Statement, the Final
Purchase Price shall be computed. In the event such computation shows that the
Final Purchase Price of the Companies is greater or lesser than the Estimated
Purchase Price, a Post Closing Adjustment will be made to the Estimated Purchase
Price. Any payments that are due to the Sellers or the Buyers respectively,
shall be made within ten (10) days from delivery of the Final Florimex Financial
Statement.
ARTICLE IV
[intentionally omitted]
9
<PAGE>
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
----------------------------------------
The Sellers, jointly and severally, hereby represent and warrant to the
Buyers that the following is true and correct at the date hereof, except that
none of the Sections of this Article shall apply to the Companies in
Liquidation, except for Section 5.21:
Section 5.01. Corporate Existence of Sellers. Sellers are companies duly
------------------------------
organized, validly existing and in good standing under the Laws of their
respective jurisdictions and, except where failure to be so qualified would not
have a material adverse effect on the business or operations of the Companies,
taken as a whole, are qualified to do business under the Laws of each
jurisdiction of operation.
Section 5.02. Authorization; Enforceability. The Sellers each have full
-----------------------------
corporate power and authority to enter into this Agreement, to perform their
respective obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery by the Sellers of this Agreement, and the
performance by the Sellers of their respective obligations hereunder, have been
duly and validly authorized by the Boards of Directors or the equivalent thereof
in the relevant jurisdiction or the sole shareholder of the Sellers, no other
corporate action on the part of the Sellers or their respective stockholders
being necessary. This Agreement is, and the other documents and instruments
required hereby will be, when executed and delivered by the parties hereto, the
valid and binding obligations of the Sellers, enforceable against the Sellers in
accordance with their respective terms.
Section 5.03. No Violation or Conflict by the Sellers. The execution,
---------------------------------------
delivery and performance of this Agreement by the Sellers do not and will not
(a) conflict with or result in a violation of the Corporate Documents of the
Sellers; (b) conflict with or violate any Law, judgment, order or decree binding
on the Sellers or any material Contract to which any Seller is a party or by
which it is bound and which relates to the business of the Companies, the breach
of which, individually or in the aggregate with other such breaches, could have
a material adverse effect on any Seller's ability to consummate any of the
transactions contemplated hereby, and (c) except as set forth on Schedule 5.03,
-------------
require the consent or approval of any other Person or give any Person to any
such material Contract any right of termination, cancellation, acceleration or
modification thereunder. Except as set forth on Schedule 5.03, no notice to,
-------------
filing or registration with, or authorization, consent or approval of, any
Governmental or Regulatory Authority is necessary or is required to be made or
obtained by any Seller in connection with the execution and delivery of this
Agreement by the Sellers or the consummation by the Sellers of the transactions
contemplated hereby.
Section 5.04. Title to Stock. The Sellers directly or indirectly own,
--------------
beneficially and of record, the Stock, free and clear of all Liens. Upon
delivery of the Stock to the Buyers at the Closing and upon the Buyers' payment
of the Purchase Price therefor, good and valid title to the Stock, free and
clear of all Liens, will pass to the Buyers.
10
<PAGE>
Section 5.05. Organization of Companies. Each of the Companies (i) is
-------------------------
duly organized, validly existing and in good standing under the Laws of their
respective jurisdictions of organization; (ii) has all requisite power to own
its property and to carry on its business as now being conducted; and (iii) is
permitted or qualified to do business in the jurisdiction in which it operates,
except where failure to be permitted or qualified would not have a material
adverse effect on the business or operations of the Companies, taken as a whole.
Section 5.06. Capitalization of Companies. The Stock has been duly and
---------------------------
validly issued and is fully paid and non-assessable. It constitutes all of the
issued and outstanding capital stock of the Companies, except with respect to
the Non-Wholly Owned Companies. Except as disclosed on Schedule 5.06, there are
-------------
no options, warrants or other rights to subscribe for or purchase any capital
stock of the Companies or securities convertible into or exchangeable for, or
that otherwise confer on the holder any right to acquire, any capital stock of
the Companies, nor are there any Contracts, commitments, agreements,
understandings, obligations, arrangements or restrictions, contingent or
otherwise, to which the Companies are party or by which the Companies are bound
relating to any shares of the capital stock or other equity securities of the
Companies, whether or not outstanding. As of the Closing Date, each preference
or other right to acquire equity of any Company shall have been validly and
irrevocably waived in writing.
Section 5.07. No Violation or Conflict by Companies. The execution,
-------------------------------------
delivery and performance of this Agreement by the Sellers do not and will not
(a) conflict with or result in a violation of the Corporate Documents of any
Company; (b) conflict with or violate any Law, judgment, order or decree binding
on any Company, or any Material Contract to which any Company is a party or by
which it is bound, the breach of which would have a material adverse effect on
the business, financial condition or results of operation of any Company
following the Closing Date or (c) except as set forth in Schedule 5.07, require
-------------
the consent or approval of any other Person or give any other party to any
Material Contract to which any Company is a party any right of termination,
cancellation, acceleration or modification thereunder. Except as set forth in
Schedule 5.07, no notice to, filing or registration with, or authorization,
- -------------
consent or approval of, any Governmental or Regulatory Authority is necessary or
is required to be made or obtained by any Company in connection with the
execution and delivery of this Agreement by the Sellers or the consummation by
the Sellers of the transactions contemplated hereby.
Section 5.08. Interim Florimex Financial Statement/No Material Changes.
--------------------------------------------------------
The Sellers have delivered to the Buyers the consolidated, unaudited interim
financial statement incorporating Florimex Germany, Florimex USA and Florimex
Canada, as a whole, and the related statement of income for the period July 1,
1997 up to and including June 30, 1998, which is attached hereto as Schedule
--------
5.08 (the "Interim Florimex Financial Statement"). The Interim Florimex
- ----
Financial Statement fairly presents, in all material respects, the financial
position and results of operations of Florimex Germany, Florimex USA and
Florimex Canada as of the date thereof and for the period then ended. The
Interim Florimex Financial Statement, has been prepared in accordance with GAAP
(excluding footnote disclosure). To the Knowledge of the Sellers, there has
been no material adverse change in the condition, financial or otherwise, or in
the results of operations, of Florimex Germany, Florimex USA or Florimex Canada
since the
11
<PAGE>
date of the Florimex Financial Statement, whether as a result of any legislative
or regulatory change, revocation of any license or rights to do business, fire,
explosion, accident, casualty, labor trouble, flood, drought, riot, storm,
condemnation or other public force or act of God or otherwise.
Section 5.09. Taxes.
-----
(a) Each Company and, as applicable, a Seller on behalf of a Company,
has filed or caused to be filed, within the times prescribed by law, all
federal, state, local and foreign tax returns and tax reports, which it was
required to have filed prior to the date of this Agreement and the non-filing of
which could reasonably be deemed to be materially adverse to the Companies in
the aggregate.
(b) Each Company and, as applicable, a Seller on behalf of a Company,
has paid, or there is an appropriate accrual in the Interim Florimex Financial
Statement with respect to the Companies in the aggregate for, all income,
profits, sales, real estate and excise taxes (including additions to tax,
penalties and interest) which have become due and payable before the date hereof
under any of its or their tax returns or reports or pursuant to any assessment
with respect thereto.
(c) The amount of the Companies' aggregate liability for unpaid taxes
as of the date hereof and as of the Closing Date does not and will not exceed
the accrual therefor in the Interim Florimex Financial Statement.
(d) Except as set forth on Schedule 5.09 hereto, no taxing authority
-------------
has notified any of the Material Companies of any examination of any return or
is currently examining any tax return of any of the Material Companies, nor are
there any outstanding agreements or waivers extending the statutory period of
limitation applicable to any tax return of any of the Material Companies. To
the Knowledge of the Sellers and except as set forth in Schedule 5.09 hereto, no
-------------
taxing authority is currently examining any tax return of any of the Non-
Material Companies, nor are there any outstanding agreements or waivers
extending the statutory period of limitation applicable to any tax return of any
of the Non-Material Companies.
(e) Except as set forth on Schedule 5.09 hereto, to the Knowledge of
-------------
the Sellers, no such notice or examination by any taxing authority with respect
to any of the Companies is threatened. Except as disclosed on Schedule 5.09 and
-------------
except as provided for in the Interim Florimex Financial Statement, no taxes
with respect to the Material Companies have become due and payable from the
period of July 1, 1998 to the date of this Agreement.
(f) No Company is a "real property holding company" under Section
897(c)(2) of the U.S. Internal Revenue Code of 1986, as amended.
Section 5.10. Personal Property. Except as set forth in Schedule 5.10,
----------------- -------------
each of the Companies has good, valid and marketable title to its Personal
Property. Except as set forth in Schedule 5.10, the Personal Property is not
-------------
subject to any Lien. To the Knowledge of the
12
<PAGE>
Sellers, the Personal Property is in good operating condition and repair,
subject to normal wear and tear, and is suitable for the purposes for which it
is presently used.
Section 5.11. Real Property. Schedule 5.11 constitutes an accurate and
------------- -------------
complete list of all real property owned, in whole or in part, by the Companies
and includes the name of the record title holder thereof and a list of all of
the Sellers' or Companies' indebtedness secured by a Lien on the real property.
Except as set forth in Schedule 5.11, each Company has good and marketable title
-------------
to all the real property specified as owned by it in Schedule 5.11, free and
-------------
clear of any Lien. To the Knowledge of the Sellers, all of the material
buildings, structures and appurtenances situated on the land listed in Schedule
--------
5.11 are in good operating condition, taking into consideration normal wear and
- ----
tear, and in a state of good maintenance and repair, are adequate and suitable
for the purposes for which they are presently being used and, with respect to
each, the respective Company has rights of ingress and egress for operation of
its business in the ordinary course as conducted as of the date hereof. None of
such buildings, structures or appurtenances, nor the operation or maintenance
thereof, which are owned or operated by the Material Companies, and to the
Knowledge of the Sellers, which are owned or operated by the Non-Material
Companies, violates any restrictive covenant or any provision of any federal,
state or local law, ordinance, rule or regulation, or materially encroaches on
any real property owned by others, except such violations or encroachments as do
not individually or in the aggregate have a material adverse effect upon the
Companies' respective business or their use or operation of such properties.
Except as set forth in Schedule 5.11, no condemnation proceeding is pending or,
-------------
to the Knowledge of Sellers, threatened which would preclude or impair the use
of any such real property by the Companies for the purposes for which it is
currently used.
Section 5.12. Material Contracts. Except as set forth in Schedule 5.12,
------------------ -------------
none of the Companies is bound by (a) any material agreement, indenture or other
instrument which contains restrictions with respect to payment of dividends or
any other distribution in respect of capital stock, (b) any loan or advance to
the making of any such loan, in excess of US$ 100,000, (c) any guarantee, other
than in the ordinary course of business, in respect of loans in excess of US$
100,000 of any other legal person other than another Company, (d) any service,
consulting or any other similar type contract requiring payment exceeding US$
100,000 per year, (e) any agreement entered into outside the ordinary course of
business which materially limits the freedom of any of the Companies to engage
in their respective line of business or to compete with any other Person, (f)
any agreement not entered into in the ordinary course of business which requires
payments exceeding US$ 100,000 and has a termination notice period of 90 days or
more or (g) any agreement which requires payments exceeding more than US$
100,000 per year and is expected to have a material adverse impact on the
business or operations of any of the Companies. Each agreement set forth in
Schedule 5.12 is in full force and effect and none of the Companies violated any
- -------------
of the terms or conditions of such agreement in any material respect and, to the
Knowledge of Sellers, all of the covenants that are required to be performed by
any other party thereto as of the date hereof have been performed.
Section 5.13. Insurance. Set forth in Schedule 5.13 hereof is a complete
--------- -------------
list of material insurance policies which the Companies have concluded and
maintained in full force and effect. All premiums on these insurance policies,
which have become due and payable on or
13
<PAGE>
before the date hereof, have been paid or accrued for. No notifications have
been received with regard to the non-renewal of any policy.
Section 5.14. Intellectual Property.
---------------------
(a) Schedule 5.14(a) contains an accurate and complete list of all
----------------
material patents, trade names, trademarks and service marks, that are currently
owned and used by the Companies (collectively, the "Material Intellectual
Property"). Unless otherwise indicated in Schedule 5.14(a), each item
----------------
constituting part of the Material Intellectual Property has been duly registered
with, filed in or issued by, as the case may be, the United States Patent and
Trademark office or such other government agencies, domestic or foreign as set
forth on Schedule 5.14(a). Except as stated in Schedule 5.14(a), there are no
---------------- ----------------
pending (or, to the Knowledge of the Sellers, threatened) proceedings or
litigation or other adverse claims with respect to the Material Intellectual
Property, an adverse result in which would have a material adverse effect on the
business or operations of the Companies, taken as a whole.
(b) Except as disclosed on Schedule 5.19(c), the Companies have been
----------------
granted licenses in respect of all items of intellectual property not owned by
any Company pursuant to the license agreements listed in Schedule 5.14(b)
----------------
hereto, which are valid and enforceable in accordance with the terms and
conditions hereof.
Section 5.15. Employment Relations.
--------------------
(a) Each Company is in compliance in all material respects with all
federal, state or other applicable labor laws, domestic or foreign, and with the
terms and conditions of employment and wages and hours, and has not and is not
engaged in any unlawful labor practice.
(b) No unlawful labor practice complaint against any Company is
pending before the National Labor Relations Board or any corresponding or
similar governmental agency or entity in any foreign jurisdiction.
(c) There is no labor strike or stoppage actually pending or, to the
Knowledge of Sellers, threatened against any Company.
(d) No grievance on the part of any of the Companies' employees that
might have a material adverse effect upon any of the Companies or the conduct of
their respective businesses has been filed, and no arbitration proceeding
arising out of or under any collective bargaining agreement is pending, nor to
the Knowledge of the Sellers has any claim therefor been asserted.
(e) Except for negotiations regarding a proposed collective bargaining
agreement that would be applicable to employees in the Dutch flower business, no
collective bargaining agreement is currently being negotiated by any of the
Companies and none of the Companies has experienced any material strikes during
the last three years. There will not be any material violation of any
employment agreements with employees of the Material
14
<PAGE>
Companies or, to the Knowledge of the Sellers, employees of any Non-Material
Company, as a result of an announcement of the transactions contemplated by this
Agreement.
Section 5.16. No Litigation. Except as set forth on Schedule 5.16 hereto,
------------- -------------
there is no material litigation or governmental investigation pending or, to the
Knowledge of the Sellers, proposed or threatened against any Company. With
respect to each item of litigation set forth on Schedule 5.16, the Companies
-------------
have made adequate provision in the Interim Florimex Financial Statement and
accrued all contingent liabilities therefor in conformance with F.A.S. 5 and
with GAAP generally and the aggregate accruals therefor reflected on Schedule
--------
5.16 are adequate.
- ----
Section 5.17. Books and Records. The books of account and other records
-----------------
of any Company related to the operation of that Company are in all material
respects complete and correct and have been maintained in accordance with good
business practices. To the Knowledge of the Sellers and except as disclosed on
Schedule 5.17, the Material Companies and the Non-Material Companies do not have
- -------------
any of their respective material records, systems, controls, data or information
recorded, stored, maintained or operated by any means (including any electronic,
mechanical or photographic process, whether computerized or not) which is not
under the respective ownership and control of the Material Companies, or except
which may be under the ownership or control of third parties in the ordinary
course of business, the Non-Material Companies.
Section 5.18. No Broker. Except as set forth on Schedule 5.18, neither
--------- -------------
the Sellers nor the Companies, have had any dealings, negotiations or
communications with any broker or other intermediary in connection with the
transactions contemplated by this Agreement, and neither is committed to any
liability for any brokers' or finders' fees or any similar fees in connection
with the transactions contemplated herein.
Section 5.19. Software.
--------
(a) Identification and Performance. The computer software that was
------------------------------
developed by and is currently owned by the Companies and is material to the
business or operation of the Companies, taken as a whole, together with all
know-how and processes used in connection therewith (i) is listed on Schedule
--------
5.19(a) hereto (the "Software"), and (ii) reasonably functions as intended by
- -------
the Sellers. The Sellers are not aware of any material issues with respect to
the two material software programs, which are indicated on Schedule 5.19(b) as
----------------
currently being implemented by the Companies, that would cause such programs to
function, once their implementation is complete, in a manner materially
different from the function currently intended by Sellers.
(b) Except as disclosed in Schedule 5.19(b), Sellers believe that the
----------------
change in the century as of January 1, 2000 will not cause the Software to
function in a manner materially different to its current function.
(c) Title. Except as otherwise expressly disclosed in Schedule
----- --------
5.19(c), all right, title and interest in and to the Software are owned by the
- -------
Companies, free and clear of all Liens, and to the Knowledge of the Sellers, the
Companies' use of the Software and the Third-
15
<PAGE>
Party Software does not infringe on the rights of any third parties, excluding
licenses to customers. Except as disclosed in on Schedule 5.19(c) the
----------------
Companies have proper licenses for softwarethat (i) is not currently owned by
the Companies, (ii) may have been developed by third parties, and (iii) is
currently deemed to be material to the business of the Companies, taken as a
whole, and the Companies are in compliance with all such licenses.
Section 5.20. Environmental Compliance, Cleanup, Permits and Licenses.
-------------------------------------------------------
Except as indicated on Schedule 5.20 hereto, the Companies are in compliance
-------------
with the Environmental Laws with respect to their respective properties,
facilities and businesses except where such noncompliance would not have a
material adverse effect on the business or operations of the Companies, taken as
a whole. To the Knowledge of the Sellers, except as disclosed on Schedule 5.20
-------------
hereto, the Companies have not received any notice of noncompliance with the
Environmental Laws, and have not caused or permitted their businesses or the
real estate owned by them or under their control, on or after the date the
Companies acquired such ownership or control, to be used to generate,
manufacture, refine, transfer, produce or process hazardous substances, or other
toxic substances or solid waste, except in compliance with the Environmental
Laws. To the Knowledge of the Sellers, the Companies have not received notice
that the Companies are potentially responsible for the environmental cleanup of
any site under any applicable Environmental Law or at the request of any private
citizen or business entity, except as disclosed on Schedule 5.20 hereto. With
-------------
respect to items of environmental cleanup identified on Schedule 5.20, the
-------------
Companies' aggregate liability with respect to such items shall not materially
exceed the aggregate estimated cost therefor that is disclosed for such items on
Schedule 5.20.
- -------------
Section 5.21. Companies in Liquidation. To the Knowledge of the Sellers,
------------------------
there is no material claim pending or threatened against the Companies in
Liquidation.
Section 5.22. Assets; Condition. The personal property of Florimex
-----------------
Germany constituting a portion of the Assets are in good and usable condition
taking into account regular maintenance and usual wear and tear and have been
regularly maintained.
Section 5.23. Employee Matters.
----------------
(a) Schedule 5.23(a) contains a list, complete and accurate in all
----------------
material respects, of all non-seasonal and non-temporary employees currently
employed by each Company (the "Employees") as of the date hereof, indicating
name, position, age, seniority and monthly salary.
(b) Other than the Employees, at Closing the Company will not employ
any non-seasonal and non-temporary individuals, with the exception of employees
hired after the date hereof with the Buyers' prior consent.
(c) Except as disclosed on Schedule 5.23(c), the Companies have no
----------------
outstanding financial obligations to any Employees or former non-seasonal or
non-temporary employees for any periods preceding the Closing Date (other than
as accounted for in the Interim Florimex Financial Statement.
16
<PAGE>
(d) Schedule 5.23(d) contains a complete and accurate list of all
----------------
senior management personnel of the Companies ("Key Employees"), indicating in
each case name, remuneration (broken down to base salary and bonus) for the
Companies' fiscal year ended June 30, 1998 and date of the current employment
agreement, if any, for each Key Employee. The basis for calculating the bonus,
if applicable, is indicated with respect to each Key Employee. Concurrently
with the execution of this Agreement, the Sellers will provide to the Buyers, as
part of their due diligence, true, complete and correct copies of all current
employment agreements with the Key Employees.
(e) Except as disclosed on Schedule 5.23(e), the Companies have no
----------------
outstanding financial obligations to any Key Employees or former senior
management (other than as accounted for in the Interim Florimex Financial
Statement and accrued vacation or salary for the current month, should the
Closing Date not occur on the first day of a month) for any periods preceding
the Closing Date (other than accrued vacation or salary for the current month,
should the Closing Date not occur on the first day of a month). All bonus
payments owed to any of the Key Employees for the fiscal year ended June 30,
1998 have been made, and no bonus obligations for any periods preceding July 1,
1998 are outstanding other than as accounted for in the Interim Florimex
Financial Statement.
(f) The Companies have taken certain actions in furtherance of the
restructuring of the workforce of the Companies as outlined in Schedule 1.01(b)
----------------
hereto, which actions have been accounted for in the Interim Florimex Financial
Statement. Prior to Closing, the Companies will not take any further action in
connection with such restructuring of the workforce that is not reflected on the
Interim Florimex Financial Statement or listed on Schedule 1.01(b) without prior
----------------
consent of the Buyers.
Section 5.24. No Other Representations. Notwithstanding anything to the
------------------------
contrary contained in this Agreement, it is the explicit intent of each Party
that the Sellers are making no representation or warranty whatsoever, express or
implied, except those representations and warranties contained in this Article
V.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
The Buyers, jointly and severally, hereby represent and warrant to the
Sellers as follows:
Section 6.01. Corporate Existence of Buyers. The Buyers are corporations
-----------------------------
duly organized, validly existing and in good standing under the Laws of their
respective jurisdictions. To the Knowledge of the Buyers, each of the Buyers
has all requisite power to own its property and to carry on its business as now
being conducted. To the Knowledge of the Buyers, all Buyers are permitted to do
business in the respective jurisdictions in which they operate.
Section 6.02. Authorization; Enforceability. The Buyers have full
-----------------------------
corporate power and authority to enter into this Agreement, to perform their
obligations hereunder and to
17
<PAGE>
consummate the transactions contemplated hereby. The execution and delivery by
the Buyers of this Agreement, and the performance by the Buyers of their
obligations hereunder, have been duly and validly authorized by the Boards of
Directors (or the equivalent thereof in the relevant jurisdictions of the
Buyers), no other action on the part of the Buyers or their respective
stockholders being necessary. This Agreement is, and the other documents and
instruments required hereby will be, when executed and delivered by the parties
hereto, the valid and binding obligations of the Buyers, enforceable against the
Buyers in accordance with their respective terms.
Section 6.03. No Violation or Conflict. The execution, delivery and
------------------------
performance of this Agreement by the Buyers do not and will not (a) conflict
with or result in a violation of the Corporate Documents of any Buyer; (b)
conflict with or violate any Law, judgment, order or decree binding on any Buyer
or any Contract to which any Buyer is a party or by which it is bound, the
breach of which, individually or in the aggregate, could have a material adverse
effect on any Buyer's ability to consummate the transactions contemplated
hereby; and (c) except as set forth on Schedule 6.03, require the consent or
-------------
approval of any other Person or give any Person to any Contract any right of
termination, cancellation, acceleration or modification thereunder. Except as
set forth on Schedule 6.03, no notice to, filing or registration with, or
-------------
authorization, consent or approval of, any Governmental or Regulatory Authority
is necessary or is required to be made or obtained by any Buyer in connection
with the execution and delivery of this Agreement by the Buyers or the
consummation by the Buyers of the transactions contemplated hereby.
Section 6.04. No Broker. Except as set forth on Schedule 6.04, no Buyer
--------- -------------
has had any dealings, negotiations or communications with any broker or other
intermediary in connection with the transactions contemplated by this Agreement
and is not committed to any liability for any brokers' or finders' fees or any
similar fees in connection with the transactions contemplated herein.
Section 6.05. Purchase for Investment. The Buyers acknowledge that the
-----------------------
offer and sale of the Stock contemplated herein have not been, and will not be,
registered under the Securities Act of 1933, as amended, or under any state
securities laws. Each Buyer represents that it is purchasing the Stock for
investment and not with a view to the distribution thereof, except in accordance
with applicable securities laws.
Section 6.06. Investigation by Buyers. Each Buyer has conducted its own
-----------------------
independent review and analysis of the businesses, assets, condition, operations
and prospects of the Companies and acknowledges that it has been provided
reasonably sufficient information in respect of the properties, premises and
records of the Companies for this purpose and has been afforded a reasonable
opportunity, satisfactory in light of the Parties' intentions with respect to
the timing of the signing of this Agreement and the Closing, to discuss the
foregoing with the management of Sellers and the Companies. In entering into
this Agreement, each Buyer has relied solely upon its own investigation and
analysis and the representations and warranties contained herein, and each
Buyer:
18
<PAGE>
(a) has conducted, with the aid of counsel, an independent analysis of
all legal effect and consequence of this Agreement and the consummation of
transactions contemplated herein under the Laws, including but not limited to
with respect to all matters of corporate, securities, tax, intellectual
property, employment, employee benefit and labor law;
(b) except as otherwise set forth in this Agreement, acknowledges that
none of the Sellers, any Company, or any of their respective directors,
officers, employees, Affiliates, agents or representatives makes any
representation or warranty, either express or implied, as to the accuracy of
completeness of any of the information provided or made available to any Buyer
or its agents or representatives prior to the execution of this Agreement; and
(c) understands that the Stock has not been, and will not be,
registered under the Securities Act of 1933, as amended; and
(d) agrees, to the fullest extent permitted by law, that none of the
Sellers, any Company, or any of their respective directors, officers, employees,
Affiliates, agents or representatives shall have any liability or responsibility
whatsoever to any Buyer on any basis (including, without limitation, in contract
or tort, under federal or state securities laws or otherwise) based upon any
information provided or made available, or statements made, to the Buyers prior
to the execution of this Agreement, except that the foregoing limitations shall
not apply (i) to the extent the Sellers make the specific representations and
warranties set forth in this Agreement, but always subject to the limitations
and restrictions contained in this Agreement or (ii) in the event of fraud.
Section 6.07. No Litigation. Except as set forth on Schedule 6.07 hereto,
------------- -------------
there is no material litigation or governmental investigation pending or
proposed or threatened against USA Floral.
Section 6.08. International Operations. While subsidiaries of the Buyers
------------------------
sell products to customers outside North America (including an immaterial amount
of sales to customers in Europe), neither the Buyers nor their subsidiaries
currently maintain any office or installation in Europe.
Section 6.09. No Other Representations.
------------------------
Notwithstanding anything to the contrary contained in this Agreement,
it is the explicit intent of each Party that the Buyers are making no
representation or warranty whatsoever, express or implied, except those
representations and warranties contained in this Article VI.
19
<PAGE>
ARTICLE VII
COVENANTS OF SELLERS
--------------------
The Sellers, jointly and severally, covenant and agree with the Buyers
that, at all times from and after the date hereof until the Closing Date, the
Sellers will comply, and, to the extent applicable, will cause each Company to
comply, with the following covenants and provisions, except to the extent the
Buyers may otherwise consent in writing and excluding the Companies in
Liquidation.
Section 7.01. Conduct of Business of the Companies. Except as otherwise
------------------------------------
expressly provided in this Agreement, during the period from the date of this
Agreement until the Closing Date, the Sellers will cause the Companies to
conduct their respective operations according to their ordinary course of
business and consistent with past practice. Without limiting the generality of
the foregoing, and except as otherwise expressly provided in this Agreement,
prior to the Closing Date, the Sellers will not allow any Company to:
(a) amend its Corporate Documents in any material respect;
(b) authorize for issuance or issue, sell or deliver (whether through
the issuance or granting of options, warrants, commitments, subscriptions,
rights to purchase or otherwise) any stock of any class or any other securities;
(c) split, combine or reclassify any shares of its capital stock,
declare, set aside or pay any dividend or other distribution (whether in cash,
stock or property or any combination thereof) in respect of its capital stock,
or redeem or otherwise acquire any of its securities;
(d) other than in the ordinary course of business, (i) incur or assume
any material long-term debt not currently outstanding, (ii) assume, guarantee,
endorse or otherwise become liable or responsible for the obligations of any
Person, other than another Company, (iii) make any material loans, advances or
capital contributions to, or investments in, any other Person, (iv) enter into
any material contract or agreement other than in connection with the
transactions contemplated by this Agreement or (v) authorize any capital
expenditures other than capital expenditures up to 100% of aggregate budgetary
projections as set forth in Schedule 7.01(d);
----------------
(e) adopt or amend (except as may be required by Laws or as provided
in Schedule 9.02 of this Agreement) any material bonus, profit sharing,
-------------
compensation, severance, termination, stock option, stock appreciation right,
restricted stock, pension, retirement, deferred compensation, employment,
severance or other material employee benefit agreements, trusts, plans, funds or
other material arrangements for the benefit or welfare of any present or former
director, officer or employee or the dependent or beneficiary of any present or
former director, officer or employee, or (except for normal increases in the
ordinary course of business that are consistent with past practices and that, in
the aggregate, do not result in a material increase in
20
<PAGE>
benefits or compensation expense to any Company) increase in any material
respects the compensation or fringe benefits of any director, officer or
employee or pay any benefit not required by any existing plan and arrangement
(including, without limitation, the granting of stock options, stock
appreciation rights, shares of restricted stock or performance units) or enter
into any contract, agreement, commitment or arrangement to do any of the
foregoing, except that the Companies may (i) enter into any agreement with
Winfried Falk or Dwight Ferguson or (ii) amend any current agreements with
Winfried Falk or Dwight Ferguson, if the Buyers have consented hereto;
(f) acquire, sell, lease, pledge, hypothecate, encumber, mortgage or
dispose of any material assets;
(g) pay fees incurred by the Sellers to Hunton & Williams in
connection with the transaction contemplated by this Agreement, or pay,
discharge or satisfy any material claims, liabilities or obligations (absolute,
accrued or unasserted, contingent or otherwise), other than the payment,
discharge or satisfaction of liabilities reflected or reserved against in the
Interim Florimex Financial Statement, or incurred in the ordinary course of
business; or
(h) cancel any material insurance policies set forth on Schedule 5.13;
-------------
(i) materially and adversely amend any of the agreements as listed on
Schedule 5.12, involving an amount in excess of US$ 100,000 per year, without
- -------------
prior notification thereof to the Buyers.
(j) agree in writing or otherwise to take any of the foregoing
actions.
Section 7.02. Compliance with Law. The Sellers shall cause each Company
-------------------
to comply in all material respects with all applicable Laws.
Section 7.03. Regulatory and Other Approvals. The Sellers will (a) use
------------------------------
reasonable best efforts and proceed diligently and in good faith as promptly as
practicable to obtain all consents, approvals or actions of, to make all filings
with and to give all notices to Governmental or Regulatory Authorities or any
other Person required of the Sellers, or any Company to consummate the
transactions contemplated hereby, including without limitation those described
in Schedule 5.03, (b) provide such other information and communications to such
-------------
Governmental or Regulatory Authorities or other Persons as such Governmental or
Regulatory Authorities or other Persons may reasonably request and (c) use
reasonable best efforts to cooperate with the Buyers in obtaining all consents,
approvals or actions of, making all filings with and giving all notices to
Governmental or Regulatory Authorities or other Persons required of Buyers to
consummate the transactions contemplated hereby. The Sellers will provide
prompt notification to the Buyers when any such consent, approval, action,
filing or notice referred to in clause (a) above is obtained, taken, made or
given, or when notice or indication of any delay or denial is first obtained, as
applicable, and will advise Buyers of any communications (and, unless precluded
by Law, provide copies of any such communications that are in writing) with any
Governmental or Regulatory Authority or other Person regarding any of the
transactions contemplated by this Agreement.
21
<PAGE>
Section 7.04. Investigation by Buyers. The Sellers will (a) provide each
-----------------------
Buyer, its officers, employees, counsel, accountants, financial advisors,
consultants and other representatives (together, "Representatives") with
reasonable access, upon not less than 24 hours' prior notice and during normal
business hours, to all officers, employees, agents and accountants of the
Companies, and their respective assets, properties, books and records as Buyers
or any such Representative may reasonably request, but only to the extent that
such access does not unreasonably interfere with the business and operations of
the Companies, and (b) furnish each Buyer and such other Persons with all such
information and data concerning the business and operations of the Companies, as
such Buyer reasonably may request in connection with such investigation, but
only to the extent that furnishing any such information or data would not
violate any Law, order, Contract or license applicable to any Company, or by
which any Company's respective assets and properties is bound.
Section 7.05. Resignations. The Sellers shall cause any of Claude Owen,
------------
Ritchie Bond or any other person who is not an employee of a Company and is
serving as the representative of DIMON on the board of directors of each Company
to execute resignation letters dated as of the Closing Date and such directors
shall be relieved by the Sellers and the Companies of all liabilities and
indemnified by the Sellers and the Companies for any claims arising out of or
resulting from their service as directors.
ARTICLE VIII
COVENANTS OF BUYERS
-------------------
The Buyers, jointly and severally, covenant and agree with Sellers that, at
all times from and after the date hereof until the Closing Date, the Buyers will
comply with all covenants and provisions of this Article VIII applicable to the
Buyers, except to the extent the Sellers may otherwise consent in writing.
Section 8.01. Compliance with Law. The Buyers shall comply in all
-------------------
material respects with all applicable Laws.
Section 8.02. Regulatory and Other Approvals. The Buyers will (a) use
------------------------------
reasonable best efforts and proceed diligently and in good faith as promptly as
practicable to obtain all consents, approvals or actions of, to make all filings
with and to give all notices to Governmental or Regulatory Authorities or any
other Person required of the Buyers to consummate the transactions contemplated
hereby, including without limitation those described in Schedule 6.03, (b)
-------------
provide such other information and communications to such Governmental or
Regulatory Authorities or other Persons as such Governmental or Regulatory
Authorities or other Persons may reasonably request and (c) use reasonable best
efforts to cooperate with Sellers in obtaining all consents, approvals or
actions of, making all filings with and giving all notices to Governmental or
Regulatory Authorities or other Persons required of Sellers to consummate the
transactions contemplated hereby. The Buyers will provide prompt notification
to Sellers when any such consent, approval, action, filing or notice referred to
in clause (a) above is obtained, taken, made or given, or when notice or
indication of any delay or denial is first obtained, as
22
<PAGE>
applicable, and will advise Sellers of any communications (and, unless precluded
by Law, provide copies of any such communications that are in writing) with any
Governmental or Regulatory Authority or other Person regarding any of the
transactions contemplated by this Agreement.
ARTICLE IX
OTHER COVENANTS AND AGREEMENTS OF BUYERS AND SELLERS
----------------------------------------------------
Section 9.01. Release of Guarantees. Each Buyer acknowledges that DIMON
---------------------
and Florimex Germany have provided guarantees with respect to certain
indebtedness of the Companies, the details of which are described on Schedule
--------
9.01 attached hereto. Prior to or at the Closing, such guarantees shall be
- ----
terminated and released. Each Buyer shall take all commercially reasonable
actions to assist DIMON and Florimex Germany in obtaining the release of such
guarantees, including but not limited to substituting the guarantees of the
Buyers for those guarantees of DIMON or Florimex Germany that are listed on
Schedule 9.01 in the respective amounts of such guarantees not to exceed those
- -------------
indicated on Schedule 9.01. Each Buyer shall indemnify and hold DIMON and
-------------
Florimex Germany harmless against any payment that DIMON or Florimex Germany is
required to make from and after the Closing in respect of such guarantees in the
respective amounts of such guarantees not to exceed those indicated on such
Schedule 9.01.
- -------------
Section 9.02. Employment, Employee Benefit Plan and Other Matters.
---------------------------------------------------
Sellers and Buyers acknowledge that certain employees of the Companies receive
benefits under Employee Benefit Plans of DIMON as disclosed on Schedule 9.02
-------------
hereto. The Sellers and Buyers will agree as to the terms and timing of the
transfer to the Buyers of the obligation to provide such benefits. Concurrently
with the execution of this Agreement, the Sellers will provide to the Buyers
true, complete and correct copies of all Employee Benefit Plans of DIMON under
which benefits are provided to the individuals identified on Schedule 9.02. The
-------------
Parties acknowledge that the relocation of Dwight Ferguson to Washington, D.C.,
including the reimbursement of his expenses, will be arranged by DIMON in
accordance with DIMON's existing relocation policy.
Section 9.03. Settlement of Inter-Company Accounts. Other than as set
------------------------------------
forth on Schedule 9.03, which shall be updated as of the Closing Date (provided
-------------
that no such post-execution update shall reflect any material adverse effect
upon the financial position of the Companies taken as a whole), all of the
inter-company accounts between DIMON, on the one hand, and Florimex Germany or
any of the Companies, on the other hand, will be finally settled and
extinguished on or before the Closing Date, which settlement shall not have had
a material adverse effect upon the financial position of the Companies taken as
a whole. The items listed on Schedule 9.03 shall be settled after the Closing
-------------
in a manner consistent with past practices of DIMON, Florimex Germany and the
Companies, provided that the Buyers shall not be required to make any such post-
closing settlement of the inter-company accounts to the extent that such
settlement could reasonably be expected to have a material adverse effect on the
financial position of the Companies taken as a whole.
23
<PAGE>
Section 9.04. Fulfillment of Conditions. The Sellers and the Buyers shall
-------------------------
use their reasonable best efforts and proceed diligently and in good faith,
prior to the Closing Date, (i) to satisfy each condition to the obligations of
the Sellers or Buyers, as the case may be, contained in this Agreement, and (ii)
to effect the transfer of the Stock as contemplated in this Agreement, and will
not take or fail to take any action that would reasonably be expected to result
in the nonfulfillment of such condition prior to the Closing Date.
Section 9.05. Profit and Loss Allocation. The Sellers and the Buyers
--------------------------
agree that the profit and loss of Florimex Germany and its subsidiaries that are
participants in the Organschaft and taxes with respect thereto for the fiscal
year ended June 30, 1998, and for the interim period from July 1, 1998 until and
including the Closing Date shall be allocated to and shall inure to the benefit
of the Sellers, and that the profit and loss of Florimex Germany and its
subsidiaries that are participants in the Organschaft and taxes with respect
thereto after the Closing Date shall be allocated to and inure to the benefit of
the Buyers. The Sellers covenant and agree that, at or before Closing, they
will, in a manner reasonably acceptable to Buyers, assign or terminate all
existing profit and loss transfer agreements and/or domination agreements and
all agreements of like import, with respect to Florimex Germany and its
subsidiaries that are participants in the Organschaft so as to effectuate the
purpose and intent of the immediately preceding sentence, and shall cooperate
with the Buyers to execute all such documents and do all such other acts and
things as may be reasonably necessary in order to give effect to this Section
9.05.
ARTICLE X
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYERS
---------------------------------------------
Each and every obligation of the Buyers to be performed on the Closing Date
shall be subject to the satisfaction before or at the Closing of the express
conditions precedent set forth below (unless expressly waived in writing by the
Buyers at any time at or before the Closing), and the Sellers shall use
reasonable best efforts to cause each of such conditions to be satisfied.
Section 10.01. Performance. The Sellers shall have performed and complied
-----------
in all material respects with all of their covenants and agreements under this
Agreement that are to be performed or complied with by it before or on the
Closing Date, and the Buyers shall have received at the Closing a certificate,
dated the Closing Date, signed by the Sellers, to such effect.
Section 10.02. Proceedings and Examinations. All proceedings, corporate
----------------------------
or other, to be taken by the Sellers in connection with the transactions
contemplated by this Agreement, and all documents incident thereto, shall be
reasonably satisfactory in form and substance to the Buyers, and the Sellers
shall have made available to the Buyers for examination the originals or true
and correct copies of all documents that the Buyers may reasonably request in
connection with the transactions contemplated by this Agreement.
Section 10.03. No Actions. There shall not be in effect any Law, and no
----------
investigation, suit, action or other proceeding shall be threatened or pending
before any court or governmental
24
<PAGE>
agency that seeks restraint, prohibition, damages or other relief in connection
with this Agreement or the consummation of the transactions contemplated hereby.
Section 10.04. Representations and Warranties. The representations and
------------------------------
warranties made by the Sellers in this Agreement shall be true and correct in
all material respects at the Closing Date with the same force and effect as
though such representations and warranties had been made on the Closing Date,
and the Buyers shall have received at the Closing a certificate in the form
attached hereto as Schedule 10.04, dated the Closing Date, signed by the
--------------
Sellers, to such effect.
Section 10.05. Deliveries. The Sellers shall have delivered to the Buyers
----------
the items referred to in Section 2.04, executed and in proper form.
Section 10.06. Regulatory Consents and Approvals. All consents, approvals
---------------------------------
and actions of, filings with and notices to any Governmental or Regulatory
Authority necessary to permit the parties hereto to perform their obligations
under this Agreement and to consummate the transactions contemplated hereby
shall have been duly obtained, made or given and shall be in full force and
effect, and all terminations or expirations of waiting periods imposed by any
Governmental or Regulatory Authority necessary for the consummation of the
transactions contemplated by this Agreement shall have occurred.
Section 10.07. Third Party Consents. The consents (or in lieu thereof
--------------------
waivers) listed in Schedule 10.07 hereto shall have been obtained and shall be
--------------
in full force and effect.
Section 10.08. Additional Certificates. Buyers shall have received such
-----------------------
other certificates of officers of the Sellers and the Companies as it may
reasonably request.
ARTICLE XI
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS
----------------------------------------------
Each and every obligation of the Sellers to be performed on the Closing
Date shall be subject to the satisfaction before or at the Closing of the
express conditions precedent set forth below (unless expressly waived in writing
by the Sellers at any time at or before the Closing), and the Buyers shall use
reasonable best efforts to cause each of such conditions to be satisfied.
Section 11.01. Performance. The Buyers shall have performed and complied
-----------
in all material respects with all of its covenants and agreements under this
Agreement that are to be performed or complied with by it before or on the
Closing Date, and the Sellers shall have received at the Closing a certificate,
dated the Closing Date, signed by the Buyers, to such effect.
Section 11.02. Proceedings and Examinations. All proceedings, corporate
----------------------------
or other, to be taken by the Buyers in connection with the transactions
contemplated by this Agreement, and all documents incident thereto, shall be
reasonably satisfactory in form and substance to the Sellers, and the Buyers
shall have made available to the Sellers for examination the originals or
25
<PAGE>
true and correct copies of all documents that the Sellers may reasonably request
in connection with the transactions contemplated by this Agreement.
Section 11.03. No Actions. There shall not be in effect any Law, and no
----------
investigation, suit, action or other proceeding shall be threatened or pending
before any court or governmental agency that seeks restraint, prohibition,
damages or other relief in connection with this Agreement or the consummation of
the transactions contemplated hereby.
Section 11.04. Representations and Warranties. The representations and
------------------------------
warranties made by the Buyers in this Agreement shall be true and correct in all
material respects at the Closing Date with the same force and effect as though
such representations and warranties had been made on the Closing Date (except to
the extent that such representations and warranties expressly speak as of a
different date), and the Sellers shall have received at the Closing a
certificate in the form attached hereto as Schedule 11.04, dated the Closing
--------------
Date, signed by the Buyers, to such effect.
Section 11.05. Deliveries. The Buyers shall have delivered to the Sellers
----------
the items referred to in Section 2.05, executed and in proper form.
Section 11.06. Regulatory Consents and Approvals. All consent, approvals
---------------------------------
and actions of, filings with and notices to any Governmental or Regulatory
Authority necessary to permit the parties hereto to perform their obligations
under this Agreement and to consummate the transactions contemplated hereby
shall have been duly obtained, made or given and shall be in full force and
effect, and all terminations or expirations of waiting periods imposed by any
Governmental or Regulatory Authority necessary for the consummation of the
transactions contemplated by this Agreement shall have occurred.
Section 11.07. Third Party Consents. The consents (or in lieu thereof
--------------------
waivers) listed in Schedule 11.07 hereto shall have been obtained and shall be
--------------
in full force and effect.
Section 11.08. Other Agreements. The transaction contemplated by Section
----------------
9.01 shall have been completed to the reasonable satisfaction of Sellers.
Section 11.09. Additional Certificates. Sellers shall have received such
-----------------------
other certificates of officers of the Buyers as it may reasonably request.
ARTICLE XII
INDEMNITIES AND ADDITIONAL COVENANTS
------------------------------------
Section 12.01. Sellers' Indemnity'.
------------------
(a) Generally. The Sellers, jointly and severally, hereby agree to
---------
indemnify and hold each of the Buyers harmless from and against, and agree to
defend promptly the Buyers from and to reimburse the Buyers for, any and all
losses, damages, costs, expenses, liabilities,
26
<PAGE>
obligations and claims of any kind, including, without limitation, reasonable
attorneys' fees and other legal costs and expenses (hereinafter referred to
collectively as "Losses"), that the Buyers may at any time suffer or incur, or
become subject to, as a result of or in connection with: (i) any breach or
inaccuracy of any of the representations and warranties made by the Sellers, in
or pursuant to this Agreement; (ii) any liability for additional taxes
(including penalties and interest, if any, with respect thereto) assessed as a
result of any examination disclosed on Schedule 5.09 in response to the
representations and warranties in Section 5.09; (iii) any liability resulting
from the litigation disclosed on Schedule 5.16 in excess of the aggregate of
-------------
the amounts disclosed on Schedule 5.16 in response to the representation and
-------------
warranties in Section 5.16; (iv) any liability resulting from the
environmental matters disclosed on Schedule 5.20 in excess of the aggregate
-------------
of the amounts disclosed in Schedule 5.20; and (v) any failure by the Sellers to
-------------
perform any of their covenants, agreements, obligations or undertakings set
forth in this Agreement or in any document or instrument delivered pursuant
hereto; provided, however, the Buyers shall have the right to indemnification
-------- -------
under Section 12.01(a) only if such right is asserted (whether or not such
Losses have actually been incurred) on or before the date one year after the
Closing Date, except that (x) the representations and warranties set forth in
Sections 5.04, 5.05, 5.06 and 5.09 and the indemnification in clause (i) above
with respect thereto shall continue to be in full force and effect for a period
equal to the applicable statutory time limits under the applicable Laws and (y)
the representations and warranties set forth in Section 5.20 and the
indemnification in clause (i) above with respect thereto shall continue to be in
full force and effect for a period equal to three years from the Closing Date.
(b) Limitations. None of the Sellers shall be required to indemnify
-----------
the Buyers under Section 12.01(a) unless and until the amount of all Losses for
which indemnification is sought with respect thereto exceeds US$ 1,000,000, at
which point the Sellers will be required to indemnify the Buyers for all such
Losses in excess of US$ 1,000,000; provided however that the limitation
contained in this sentence shall not apply with respect to (i) any breach of the
representations and warranties set forth in Sections 5.04, 5.05 or 5.06; (ii)
any tax liability resulting from a breach of the representation and warranty in
Section 5.09(b) in excess of the aggregate of the amounts accrued for tax
liabilities on the Final Florimex Financial Statement, (iii) any liability
resulting from a breach of the representation and warranty in Section 5.16 with
respect to the litigation disclosed on Schedule 5.16 in excess of the aggregate
-------------
amounts disclosed for such litigation on Schedule 5.16; (iii) any liability
-------------
resulting from a breach of the representation and warranty in Section 5.20 with
respect to the environmental matters disclosed on Schedule 5.20 in excess of the
-------------
aggregate amounts disclosed for such matters on Schedule 5.20. The maximum
-------------
amount of Losses for which the Sellers shall, jointly and severally, be liable
shall be an amount equal to seventy-five percent (75%) of the sum of the Final
Purchase Price and the Final Net Debt.
(c) Procedures. In the event that the Buyers have a claim that is
----------
covered by the indemnity provisions of Section 12.01(a), notice shall be
promptly given by the Buyers to the Sellers. Provided that the Sellers admit in
writing to the Buyers that such claim is covered by the indemnity provisions of
Section 12.01(a), the Sellers shall have the right to contest and defend by all
appropriate legal proceedings relating to such claim and to control all
settlements (unless the Buyers agree to assume the cost of settlement and to
forgo such indemnity) and to select lead
27
<PAGE>
counsel to defend any and all such claims at the sole cost and expense of the
Sellers; provided, however, that the Sellers may not effect any settlement
-------- -------
that could result in any cost, expense, liability or harm to the business or
reputation of the Buyers unless the Buyers consent in writing to such settlement
and the Sellers agree to indemnify the Buyers therefor. The Buyers may select
counsel to participate in any defense at its own cost and expense. In connection
with any such claim, action or proceeding, the parties shall cooperate with each
other and provide each other with access to relevant books and records in their
possession.
Section 12.02. Buyers' Obligation in Respect of Companies in Liquidation.
---------------------------------------------------------
After the Closing Date, the Buyers shall proceed diligently and complete as soon
as possible the liquidation of the Companies in Liquidation.
Section 12.03. Indemnity Amounts to be Computed on After-Tax Basis. The
---------------------------------------------------
amount of any indemnification payable under any of the provisions of this
Article XII shall be (i) net of any income tax benefit realized or the then-
present value (based on a discount rate of 5%) of any such income tax benefit to
be realized by any indemnified party (or, where any Buyer is an indemnified
party, any of the Companies) by reason of the facts and circumstances giving
rise to the indemnification, and (ii) increased by the amount of any income tax
required to be paid by the indemnified party on the accrual or receipt of the
indemnification payment (including any amount payable pursuant to this clause
(ii)). For purposes of the preceding sentence, the amount of any state,
provincial, or local income tax benefit or cost shall take into account any
federal or national income tax effect of such benefit or cost.
ARTICLE XIII
MISCELLANEOUS
-------------
Section 13.01. Governing Law and Jurisdiction. This Agreement and any
------------------------------
agreement resulting herefrom shall be construed and interpreted according to the
laws of the Commonwealth of Virginia without regard to the conflicts of law
rules thereof. Each party to this Agreement: (a) agrees that any legal action
or proceeding under this Agreement shall be brought in the courts of the
Commonwealth of Virginia or in the United States District Court sitting in
Richmond, Virginia; (b) irrevocably submits to the jurisdiction of such courts;
(c) agrees not to assert any claim or defense that it is not personally subject
to the jurisdiction of such courts, that any such forum is not convenient or the
venue thereof is improper, or that this Agreement or the subject matter hereof
may not be enforced in such courts; and (d) agrees to accept service of process
on it by certified or registered mail or by any other method authorized by law.
Section 13.02. Notices. All communications, notices and disclosures
-------
required or permitted by this Agreement shall be in writing and shall be deemed
to have been given when delivered personally or by messenger or by overnight
delivery service, or when mailed by registered or certified mail, postage
prepaid, return receipt requested, or when received via telecopy, telex or other
electronic transmission, in all cases addressed to the Person for whom it
28
<PAGE>
is intended at his address set forth below or to such other address as a party
shall have designated by fifteen (15) days notice in writing to the other party
in the manner provided by this Section:
If to Sellers: DIMON Incorporated
512 Bridge Street
Danville, Virginia 24543 0681
Facsimile No.: 804/791-0377
Attention: Mr. Claude B. Owen, Jr.
With a copy to: Hunton & Williams
951 East Byrd Street
Richmond, Virginia 23219-4074
Facsimile No.: 804/788-8218
Attention: Thurston R. Moore, Esquire
If to Buyers: U.S.A. Floral Products Inc.
1025 Thomas Jefferson Street, N.W.
Suite 300 East
Washington, DC 20036
Facsimile: 202/333-0803
Attention: Robert J. Poirier
With a copy to: Morgan, Lewis & Bockius LLP
One Oxford Centre
Thirty-Second Floor
Pittsburgh, PA 15219
Facsimile: 412/560-3399
Attention: David A. Gerson, Esquire
Section 13.03. Entire Agreement. This Agreement supersedes all prior
----------------
discussions and agreements between the parties with respect to the subject
matter hereof and contains the sole and entire agreement between the parties
hereto with respect to the subject matter hereof; provided, however, that
nothing herein shall affect (i) the validity of the Confidentiality Agreement
and (ii) any other written agreements or understandings entered into by the
parties or their Affiliates contemporaneously with the execution and delivery of
this Agreement, all of which shall remain in full force and effect.
Section 13.04. Expenses. Except as otherwise expressly provided in this
--------
Agreement, whether or not the transactions contemplated hereby are consummated,
each party will pay its own costs and expenses incurred in connection with the
negotiation, execution and closing of this Agreement and the transactions
contemplated hereby (except that DIMON shall be responsible for the costs and
expenses of Florimex Germany incurred in connection with the transactions
contemplated by this Agreement).
29
<PAGE>
Section 13.05. Public Announcements. At all times at or before the
--------------------
Closing, neither party to this Agreement will issue or make any reports,
statements or releases to the public or generally to the employees, customers,
suppliers or other Persons with respect to this Agreement or the transactions
contemplated hereby, except to the extent necessary to comply, or on the advice
of counsel, desirable to avoid the appearance of noncompliance with, all legal
and other formalities necessary to effect the transactions contemplated by this
Agreement, without the consent of the other Party, which consent shall not be
unreasonably withheld. Each Party will also obtain each other Party's prior
approval of any press release to be issued immediately following the Closing
announcing the consummation of the transactions contemplated by this Agreement.
If either Party is unable to obtain the approval of its public report, statement
or release from the other Party and such report, statement or release is, upon
the advice of legal counsel to such Party, required by Law in order to discharge
such Party's legal or contractual disclosure obligations, then such Party may
make or issue the required report, statement or release and promptly furnish the
other Party with a copy thereof.
Section 13.06. Confidentiality. Each party hereto will hold, and will use
---------------
all commercially reasonable efforts to cause its Affiliates, and their
respective Representatives, to hold, in strict confidence from any Person (other
than any such Affiliate or Representative), all documents and information
concerning the other Party or any of its Affiliates furnished to it by the other
Party or such other Party's Representatives in connection with this Agreement or
the transactions contemplated hereby in accordance with the terms of the
Confidentiality Agreement.
Section 13.07. Further Assurances; Post-Closing Cooperation.
--------------------------------------------
(a) Subject to the terms and conditions of this Agreement, after the
Closing, each of the Parties hereto shall, at such Party's own expense, execute
and deliver such other documents and instruments, provide such materials and
information and take such other actions as may reasonably be necessary, proper
or advisable, to the extent permitted by Law, to fulfill its obligations under
this Agreement.
(b) Following the Closing, each Party will, at such Party's own
expense, afford every other Party, its counsel and its accountants, during
normal business hours, reasonable access to the books, records and other data
relating to the business or condition of the Companies in its possession with
respect to periods prior to the Closing and the right to make copies and
extracts therefrom, to the extent that such access may be reasonably required by
the requesting party in connection with (i) the preparation of tax returns, (ii)
the determination or enforcement of rights and obligations under this Agreement,
(iii) compliance with the requirements of any Governmental or Regulatory
Authority, (iv) the determination or enforcement of the rights and obligations
of any indemnified party hereunder or (v) in connection with any actual or
threatened action or proceeding. Further, each Party agrees for a period
extending six (6) years after the Closing Date not to destroy or otherwise
dispose of any such books, records and other data unless such Party shall first
offer in writing to surrender such books, records and other data to the other
Party and such other Party shall not agree in writing to take possession thereof
during the ten (10) day period after such offer is made.
30
<PAGE>
(c) If, in order properly to prepare its tax returns, other documents
or reports required to be filed with Governmental or Regulatory Authorities or
its financial statements or to fulfill its obligations hereunder, it is
necessary that a Party be furnished with additional information, documents or
records relating to the business or condition of the Companies not referred to
in paragraph (b) above, and such information, documents or records are in the
possession or control of the other Party, such other Party agrees to use all
commercially reasonable efforts to furnish or make available such information,
documents or records (or copies thereof) at the recipient's request, cost and
expense. Any information obtained by any party in accordance with this
paragraph shall be held confidential by such party in accordance with Section
13.06.
Section 13.08. Waiver. Any term or condition of this Agreement may be
------
waived at any time by the party that is entitled to the benefit thereof, but no
waiver shall be effective unless set forth in a written instrument duly executed
by or on behalf of the party waiving such term or condition. No waiver by any
party of any term or condition of this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion. All remedies, either under
this Agreement or by Law or otherwise afforded, will be cumulative and not
alternative.
Section 13.09. Amendment. This Agreement may be amended, supplemented or
---------
modified only by a written instrument duly executed by or on behalf of each
party hereto.
Section 13.10. No Third Party Beneficiary. The terms and provisions of
--------------------------
this Agreement are intended solely for the benefit of each party hereto and
their respective successors or permitted assigns, and it is not the intention of
the parties to confer third-party beneficiary rights upon any other Person. No
third party is entitled to rely on any of the representations, warranties or
agreements contained in this Agreement. None of the Sellers or the Buyers shall
have any liability to any third party because of any such reliance.
Section 13.11. No Assignment; Binding Effect. Neither this Agreement nor
-----------------------------
any right, interest or obligation hereunder may be assigned by any Party hereto
without the prior written consent of each other Party hereto and any attempt to
do so will be void, except for assignments and transfers by operation of Law.
Subject to the preceding sentence, this Agreement is binding upon, inures to the
benefit of and is enforceable by the parties hereto and their respective
successors and assigns.
Section 13.12. Headings. The headings used in this Agreement have been
--------
inserted for convenience of reference only and do not define or limit the
provisions hereof.
Section 13.13. Invalid Provisions. If any provision of this Agreement is
------------------
held to be illegal, invalid or unenforceable under any present or future Law,
and if the rights or obligations of any party hereto under this Agreement will
not be materially and adversely affected thereby, (a) such provision will be
fully severable, (b) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
(c) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom and (d) in
31
<PAGE>
lieu of such illegal, invalid or unenforceable provision, there will be added
automatically as a part of this Agreement a legal, valid and enforceable
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible.
Section 13.14. Counterparts. This Agreement may be executed in any number
------------
of counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
Section 13.15. Waiver of Jury Trial. Each party hereto irrevocably waives
--------------------
all right to trial by jury in any action, proceeding or counterclaim (whether
based upon any contract, tort or otherwise) arising out of or relating to this
agreement, the transactions contemplated hereby or in the negotiation,
administration, performance or enforcement thereof.
Section 13.16. Specific Performance. The parties hereto agree that
--------------------
irreparable damage would occur in the event any of the provisions of this
Agreement were not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or equity for the breach of any
representation, warranty or covenant contained herein.
Section 13.17. Termination. Time is of essence of this Agreement. This
-----------
Agreement may be terminated and the transactions contemplated hereby may be
abandoned as follows: (a) at any time prior to the Closing Date by mutual
written agreement of Sellers and Buyers; or (b) by Buyers at any time prior to
the Closing Date within 20 business days following Buyers' becoming aware of any
uncured material breach of Articles VII or IX hereof or on the Closing Date if
any of the conditions set forth in Article X of this Agreement shall not have
been fulfilled by the Closing Date; or (c) by Sellers at any time prior to the
Closing Date within 20 business days following the Sellers' becoming aware of
any uncured material breach of Articles VIII or IX hereof or on the Closing Date
if any of the conditions set forth in Article XI of this Agreement shall not
have been fulfilled by the Closing Date; or (d) by Sellers on or after the
Closing Date, if by that date, despite substantial adherence to the terms of
this Agreement by Buyers, all conditions to Closing provided herein other than
the third-party consents listed on Schedules 10.07 and 11.07 hereto, have not
--------------- -----
been obtained; or (e) by Sellers or Buyers on or after December 31, 1998 if
Closing has not occurred on or before December 31, 1998.
32
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Stock Purchase Agreement
to be duly executed and delivered by the duly authorized officer of each party
hereto as of the date first above written.
U.S.A. FLORAL PRODUCTS, INC.
By: /s/ ROBERT J. POIRIER
---------------------------------------
Name: Robert J. Poirier
---------------------------------
Title: Chairman, President and
Chief Executive Officer
---------------------------------
DIMON INCORPORATED
By: /s/ CLAUDE B. OWEN
---------------------------------------
Name: Claude B. Owen Jr.
---------------------------------
Title: Chairman and Chief Executive Officer
-------------------------------------
FLORIMEX WORLDWIDE GMBH
By: /s/ CLAUDE B. OWEN
---------------------------------------
Name: Claude B. Owen Jr.
---------------------------------
Title: Director and Chief Executive
---------------------------------
33
<PAGE>
EXHIBIT 4.1
- --------------------------------------------------------------------------------
CREDIT AGREEMENT
among
U.S.A. FLORAL PRODUCTS, INC.,
U.S.A. FLORAL PRODUCTS GERMANY GMBH & CO. KG,
FLORIMEX WORLDWIDE B.V.,
VARIOUS LENDING INSTITUTIONS,
BAYERISCHE HYPO-UND VEREINSBANK AG,
as
SYNDICATION AGENT,
BANKBOSTON, N.A.,
as
DOCUMENTATION AGENT,
and
BANKERS TRUST COMPANY,
as ARRANGER and ADMINISTRATIVE AGENT
________________________________
Dated as of October 16, 1997
and
Amended and Restated as of October 2, 1998
________________________________
- -------------------------------------------------------------------------------
<PAGE>
[TABLE OF CONTENTS]
-------------------
Page
----
SECTION 1. Amount and Terms of Credit....................................... 1
1.01 Commitments...................................................... 1
1.02 Minimum Borrowing Amounts, etc................................... 4
1.03 Notice of Borrowing.............................................. 4
1.04 Disbursement of Funds............................................ 5
1.05 Notes............................................................ 6
1.06 Conversions...................................................... 8
1.07 Pro Rata Borrowings.............................................. 8
1.08 Interest......................................................... 9
1.09 Interest Periods................................................. 10
1.10 Increased Costs, Illegality, etc................................. 11
1.11 Compensation..................................................... 14
1.12 Change of Lending Office......................................... 14
1.13 Replacement of Banks............................................. 15
SECTION 2. Letters of Credit............................................... 16
2.01 Letters of Credit................................................ 16
2.02 Letter of Credit Requests; Notices of Issuance................... 17
2.03 Agreement to Repay Letter of Credit Drawings..................... 17
2.04 Letter of Credit Participations.................................. 18
2.05 Increased Costs.................................................. 21
SECTION 3. Fees; Commitments............................................... 21
3.01 Fees............................................................. 21
3.02 Voluntary Reduction of Commitments............................... 23
3.03 Mandatory Adjustments of Commitments, etc........................ 23
SECTION 4. Payments........................................................ 24
4.01 Voluntary Prepayments............................................ 24
4.02 Mandatory Prepayments............................................ 25
4.03 Method and Place of Payment...................................... 29
4.04 Net Payments..................................................... 30
(i)
<PAGE>
Page
SECTION 5. Conditions Precedent............................................. 32
5.01 Execution of Agreement........................................... 32
5.02 Notes............................................................ 32
5.03 No Default; Representations and Warranties....................... 32
5.04 Officer's Certificate............................................ 32
5.05 Opinion of Counsel............................................... 32
5.06 Corporate Proceedings............................................ 33
5.07 Consummation of the Transaction.................................. 33
5.08 Adverse Change, etc.............................................. 34
5.09 Litigation....................................................... 34
5.10 Guaranties....................................................... 34
5.11 US Pledge Agreement.............................................. 35
5.12 US Security Agreement............................................ 35
5.13 Financial Statements; Pro Forma Balance Sheet; Projections....... 36
5.14 Solvency Certificate; Insurance Certificates..................... 36
5.15 Payment of Fees, etc............................................. 36
5.16 Florimex Commercial Paper Program................................ 36
5.17 Notice of Borrowing; Letter of Credit Request.................... 37
SECTION 6. Representations, Warranties and Agreements...................... 37
6.01 Status........................................................... 37
6.02 Power and Authority.............................................. 37
6.03 No Violation..................................................... 38
6.04 Litigation....................................................... 38
6.05 Use of Proceeds; Margin Regulations.............................. 38
6.06 Approvals........................................................ 39
6.07 Investment Company Act........................................... 39
6.08 Public Utility Holding Company Act............................... 39
6.09 True and Complete Disclosure..................................... 39
6.10 Financial Condition; Financial Statements........................ 40
6.11 Security Interests............................................... 41
6.12 Tax Returns and Payments......................................... 41
6.13 Compliance with Certain Employee Benefit Laws.................... 42
6.14 Ownership; Subsidiaries.......................................... 43
6.15 Intellectual Property............................................ 43
6.16 Compliance with Statutes, etc.................................... 43
6.17 Environmental Matters............................................ 43
6.18 Real Properties.................................................. 44
6.19 Labor Relations.................................................. 44
6.20 Indebtedness..................................................... 45
6.21 Other Documents.................................................. 45
6.22 Year 2000........................................................ 45
(ii)
<PAGE>
Page
SECTION 7. Affirmative Covenants........................................... 45
7.01 Information Covenants............................................ 45
7.02 Books, Records and Inspections................................... 48
7.03 Maintenance of Property; Insurance............................... 48
7.04 Payment of Taxes................................................. 49
7.05 Corporate Franchises............................................. 49
7.06 Compliance with Statutes, etc.................................... 49
7.07 Good Repair...................................................... 49
7.08 Compliance with Environmental Laws............................... 50
7.09 ERISA............................................................ 50
7.10 End of Fiscal Years; Fiscal Quarters............................. 51
7.11 Additional Security; Further Assurances.......................... 52
7.12 Foreign Subsidiaries Security.................................... 56
7.13 Year 2000........................................................ 57
7.14 Certain German Mergers........................................... 57
SECTION 8. Negative Covenants.............................................. 57
8.01 Changes in Business.............................................. 57
8.02 Consolidation, Merger, Sale or Purchase of Assets, etc........... 58
8.03 Liens............................................................ 60
8.04 Indebtedness..................................................... 62
8.05 Capital Expenditures............................................. 63
8.06 Advances, Investments and Loans.................................. 64
8.07 Dividends, etc................................................... 66
8.08 Transactions with Affiliates..................................... 66
8.09 Leverage Ratio................................................... 67
8.10 Consolidated Interest Coverage Ratio............................. 67
8.11 Limitation on Modifications of Certificate of Incorporation,
By-Laws; etc..................................................... 67
8.12 Limitation on the Creation of Subsidiaries....................... 68
SECTION 9. Events of Default............................................... 69
9.01 Payments......................................................... 69
9.02 Representations, etc............................................. 69
9.03 Covenants........................................................ 69
9.04 Default Under Other Agreements................................... 69
9.05 Bankruptcy, etc.................................................. 69
9.06 ERISA............................................................ 70
9.07 Security Documents............................................... 70
9.08 Guaranties....................................................... 71
9.09 Judgments........................................................ 71
9.10 Change of Control................................................ 71
9.11 Florimex Worldwide Commercial Paper Program...................... 71
(iii)
<PAGE>
Page
SECTION 10. Definitions.................................................... 71
SECTION 11. The Administrative Agent....................................... 103
11.01 Appointment..................................................... 103
11.02 Delegation of Duties............................................ 103
11.03 Exculpatory Provisions.......................................... 103
11.04 Reliance by Administrative Agent................................ 104
11.05 Notice of Default............................................... 104
11.06 Non-Reliance on Administrative Agent and Other Banks............ 105
11.07 Indemnification................................................. 105
11.08 Administrative Agent in its Individual Capacity................. 106
11.09 Holders......................................................... 106
11.10 Resignation of the Administrative Agent; Successor
Administrative Agent............................................ 106
11.11 The Syndication Agent and the Documentation Agent.............. 106
SECTION 12. Miscellaneous................................................. 107
12.01 Payment of Expenses, etc........................................ 107
ANNEX I List of Banks
ANNEX II Bank Addresses
ANNEX III Subsidiaries
ANNEX IV Real Property
ANNEX V Existing Debt
ANNEX VI Permitted Liens
ANNEX VII Existing Investments
ANNEX VIII Indebtedness to be Refinanced
ANNEX IX Acquisition
EXHIBIT A-1 Notice of Borrowing
EXHIBIT A-2 Letter of Credit Request
EXHIBIT B-1 DM Term Note
EXHIBIT B-2 Dollar Revolving Note
EXHIBIT B-3 DM Revolving Note
EXHIBIT B-4 NLG Revolving Note
EXHIBIT B-5 Swingline Note
EXHIBIT C Section 4.04(b)(ii) Certificate
EXHIBIT D Opinion of Morgan Lewis & Bockius,
counsel to the Credit Parties
EXHIBIT E Officers' Certificate
EXHIBIT F-1 US Subsidiary Guaranty
EXHIBIT F-2 Foreign Guaranty
EXHIBIT G US Pledge Agreement
(iv)
<PAGE>
EXHIBIT H US Security Agreement
EXHIBIT I Solvency Certificate
EXHIBIT J Assignment and Assumption Agreement
(v)
<PAGE>
CREDIT AGREEMENT, dated as of October 16, 1997 and amended and
restated as of October 2, 1998, 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 from
time to time party hereto (each a "Bank" and, collectively, the "Banks"),
BAYERISCHE HYPO-UND 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 (in such capacity, the "Administrative Agent"). Unless
otherwise defined herein, all capitalized terms used herein and defined in
Section 10 are used herein as so defined.
W I T N E S S E T H :
--------------------
WHEREAS, the US Borrower, the Existing Banks and the Administrative
Agent are party to a Credit Agreement, dated as of October 16, 1997 (as the same
has been amended, modified or supplemented to, but not including, the
Restatement Effective Date, the "Existing Credit Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the Existing
Credit Agreement in its entirety as herein provided;
NOW, THEREFORE, the parties hereto agree that the Existing Credit
Agreement shall be and hereby is amended and restated in its entirety as
follows:
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
--------------------------
1.01 Commitments. (A) Subject to and upon the terms and conditions
-----------
herein set forth, each Bank with a DM Term Loan Commitment severally agrees to
make, on the Restatement Effective Date, a term loan or term loans (each a "DM
Term Loan" and, collectively, the "DM Term Loans") to the German Borrower, which
DM Term Loans (i) shall, except as otherwise expressly provided herein, be made
and maintained in Deutsche Marks, (ii) shall be made by each such Bank in that
initial aggregate principal amount as is equal to the DM Term Loan Commitment of
such Bank on the Restatement Effective Date (before giving effect to the
termination thereof on such date pursuant to Section 3.03(b)) and (iii) shall,
at the option of the German Borrower, be incurred and/or maintained as one or
more Borrowings of DM Term Loans. Once repaid, DM Term Loans incurred hereunder
may not be reborrowed.
(B) (a) Subject to and upon the terms and conditions herein set
forth, each Bank with a Dollar Revolving Loan Commitment severally agrees (I) to
convert, on the Restatement Effective Date, Existing Dollar Revolving Loans made
by such Bank to the US Borrower
<PAGE>
pursuant to the Existing Credit Agreement and outstanding on the Restatement
Effective Date into a Borrowing of Dollar Revolving Loans hereunder to the US
Borrower (such Existing Dollar Revolving Loans as so converted, together with
all revolving loans made pursuant to following clause (II), the "Dollar
Revolving Loans" and each, a "Dollar Revolving Loan") and (II) at any time and
from time to time on and after the Restatement Effective Date and prior to the
Revolving Loan Maturity Date, to make one or more additional Dollar Revolving
Loans to the US Borrower, all of which Dollar Revolving Loans made pursuant to
preceding clauses (I) and (II) (i) shall be incurred and maintained in Dollars,
(ii) shall, at the option of the US Borrower, be incurred and maintained as
and/or converted into Base Rate Loans or Eurodollar Loans, provided, that all
Dollar Revolving Loans made as part of the same Borrowing shall, unless
otherwise specifically provided herein, consist of Dollar Revolving Loans of the
same Type, (iii) may be repaid and reborrowed in accordance with the provisions
hereof, (iv) shall not exceed for any such Bank at any time outstanding that
aggregate principal amount which, when combined with such Bank's DRL Percentage
of (x) all Swingline Loans (exclusive of Swingline Loans which are repaid with
the proceeds of, and simultaneously with the incurrence of, such Dollar
Revolving Loans) then outstanding and (y) the US Letter of Credit Outstandings
(exclusive of Unpaid Drawings relating to US Letters of Credit which are repaid
with the proceeds of, and simultaneously with the incurrence of, such Dollar
Revolving Loans) at such time, equals the Dollar Revolving Loan Commitment of
such Bank at such time, and (v) shall not exceed for all such Banks at any time
outstanding that aggregate principal amount which, when combined with the sum of
(x) all Swingline Loans (exclusive of Swingline Loans which are repaid with the
proceeds of, and simultaneously with the incurrence of, such Dollar Revolving
Loans) then outstanding, (y) the US Letter of Credit Outstandings (exclusive of
the Unpaid Drawings relating to US Letters of Credit which are repaid with the
proceeds of, and simultaneously with the incurrence of, such Dollar Revolving
Loans) at such time and (z) the aggregate principal amount of all Foreign
Subsidiary Third Party Borrowings (for this purpose, using the Dollar Equivalent
of Foreign Subsidiary Third Party Borrowings incurred in a currency other than
Dollars) then outstanding, equals the Total Dollar Revolving Loan Commitment at
such time.
(b) Dollar Revolving Loans may not be incurred as Acquisition Loans
if after giving effect thereto the aggregate outstanding principal amount of
Acquisition Loans would exceed the Acquisition Sub-Limit then in effect. Except
to the extent made pursuant to a Mandatory Borrowing, Dollar Revolving Loans may
not be incurred as Working Capital Loans if after giving effect thereto the
aggregate outstanding principal amount of Working Capital Loans would exceed the
Working Capital Sub-Limit then in effect.
(C) Subject to and upon the terms and conditions herein set forth,
each Bank with a Foreign Revolving Loan Commitment severally agrees, at any time
and from time to time on and after the Restatement Effective Date and prior to
the Revolving Loan Maturity Date, to make a revolving loan or revolving loans to
one or more of the Foreign Borrowers (on a several basis) (each a "Foreign
Revolving Loan" and, collectively, the "Foreign Revolving Loans"), which Foreign
Revolving Loans (i) shall, in the case of Foreign Revolving Loans made to the
German Borrower, (A) be made and maintained in Deutsche Marks except as
otherwise expressly provided herein (each a "DM Revolving Loan" and,
collectively, the "DM Revolving Loans") and (B) be incurred and maintained as
one or more Borrowings of DM Revolving Loans,
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(ii) shall, in the case of Foreign Revolving Loans made to the Dutch Borrower,
(A) be made and maintained in Dutch Guilders except as otherwise expressly
provided herein (each a "NLG Revolving Loan" and, collectively, the "NLG
Revolving Loans") and (B) be incurred and maintained as one or more Borrowings
of NLG Revolving Loans, (iii) may be repaid and reborrowed in accordance with
the provisions hereof, and (iv) shall not exceed for any such Bank at the time
of the making of any such Foreign Revolving Loans, and after giving effect
thereto, that aggregate principal amount (for this purpose, using the Dollar
Equivalent of each outstanding DM Revolving Loan and/or NLG Revolving Loan of
such Bank) which, when combined with such Bank's FRL Percentage of the Foreign
Letter of Credit Outstandings (exclusive of Unpaid Drawings relating to Foreign
Letters of Credit which are repaid with the proceeds of, and simultaneously with
incurrence of, such Foreign Revolving Loans), equals the Foreign Revolving Loan
Commitment of such Bank at such time.
(D) (a) Subject to and upon the terms and conditions herein set
forth, BTCo in its individual capacity agrees to make, at any time and from time
to time on and after the Restatement Effective Date and prior to the Swingline
Expiry Date, a revolving loan or revolving loans to the US Borrower (each a
"Swingline Loan" and, collectively, the "Swingline Loans"), which Swingline
Loans:
(i) shall be made and maintained in Dollars;
(ii) shall be made and maintained as Base Rate Loans;
(iii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iv) shall not exceed in aggregate principal amount at any time
outstanding, when combined with the sum of (x) the aggregate principal
amount of all Dollar Revolving Loans (exclusive of Dollar Revolving Loans
which are repaid with the proceeds of, and simultaneously with the
incurrence of, such Swingline Loans) then outstanding, (y) the US Letter of
Credit Outstandings (exclusive of Unpaid Drawings relating to US Letters of
Credit which are repaid with the proceeds of, and simultaneously with the
incurrence of, such Swingline Loans) at such time and (z) the aggregate
principal amount of all Foreign Subsidiary Third Party Borrowings (for this
purpose, using the Dollar Equivalent of Foreign Subsidiary Third Party
Borrowings incurred in a currency other than Dollars) then outstanding, an
amount equal to the Total Dollar Revolving Loan Commitment then in effect;
and
(v) shall not exceed in aggregate principal amount at any time
outstanding the Maximum Swingline Amount.
(b) BTCo shall not be obligated to make any Swingline Loans at a time
when a Bank Default exists unless BTCo has entered into arrangements
satisfactory to it and the US Borrower to eliminate BTCo's risk with respect to
any Defaulting Bank's or Banks' participation in such Swingline Loans, including
by cash collateralizing each such Defaulting Bank's DRL Percentage of the
outstanding Swingline Loans. BTCo will not make a Swingline Loan after it has
received written notice from any Borrower or the Required Banks stating that a
Default or an
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<PAGE>
Event of Default exists until such time as BTCo shall have received a written
notice of (i) rescission of such notice from the party or parties originally
delivering the same or (ii) a waiver of such Default or Event of Default from
the Required Banks.
(c) On any Business Day, BTCo may, in its sole discretion, give
notice to the DRL Banks that its outstanding Swingline Loans shall be funded
with a Borrowing of Dollar Revolving Loans (provided that each such notice shall
be deemed to have been automatically given upon the occurrence of a Default or
an Event of Default under Section 9.05), in which case a Borrowing of Dollar
Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory
Borrowing") shall be made on the immediately succeeding Business Day by all DRL
Banks pro rata based on each DRL Bank's DRL Percentage, and the proceeds thereof
--- ----
shall be applied directly to repay BTCo for such outstanding Swingline Loans.
Each DRL Bank hereby irrevocably agrees to make Dollar Revolving Loans upon one
Business Day's notice pursuant to each Mandatory Borrowing in the amount and in
the manner specified in the preceding sentence and on the date specified in
writing by BTCo notwithstanding (i) that the amount of the Mandatory Borrowing
may not comply with the Minimum Borrowing Amount otherwise required hereunder,
(ii) whether any conditions specified in Section 5 are then satisfied, (iii)
whether a Default or an Event of Default has occurred and is continuing, (iv)
the date of such Mandatory Borrowing and (v) any reduction in the Total Dollar
Revolving Loan Commitment after any such Swingline Loans were made. In the
event that any Mandatory Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code in respect of the US
Borrower), each DRL Bank (other than BTCo) hereby agrees that it shall forthwith
purchase from BTCo (without recourse or warranty) such assignment of the
outstanding Swingline Loans as shall be necessary to cause the DRL Banks to
share in such Swingline Loans ratably based upon their respective DRL
Percentages, provided that all interest payable on the Swingline Loans shall be
for the account of BTCo until the date the respective assignment is purchased
and, to the extent attributable to the purchased assignment, shall be payable to
the DRL Bank purchasing same from and after such date of purchase.
1.02 Minimum Borrowing Amounts, etc. The aggregate principal amount
-------------------------------
of each Borrowing under a Facility (other than a Mandatory Borrowing) shall not
be less than the Minimum Borrowing Amount applicable thereto. More than one
Borrowing may be incurred on any day; provided, that at no time shall there be
outstanding more than twenty Borrowings of Euro Rate Loans.
1.03 Notice of Borrowing. (a) Whenever a Borrower desires to incur
-------------------
Loans (excluding Swingline Loans and Dollar Revolving Loans incurred pursuant to
a Mandatory Borrowing), such Borrower shall give the Administrative Agent at the
Notice Office, (x) prior to 12:00 Noon (New York time), at least three Business
Days' prior written notice (or telephonic notice promptly confirmed in writing)
of each Borrowing of Eurodollar Loans, (y) prior to 11:00 A.M. (New York time),
at least one Business Day's prior written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing of Base Rate Loans, and (z) prior to
10:00 A.M. (London, England time), at least three Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) of each Borrowing of
DM Loans and NLG Revolving
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Loans. Each such notice (each, a "Notice of Borrowing") shall, except as
provided in Section 1.10(b), be irrevocable, and, in the case of each written
notice and each written confirmation of telephonic notice, shall be in the form
of Exhibit A-1, appropriately completed to specify: (i) the name of the
Borrower; (ii) whether the Loans being incurred pursuant to such Borrowing shall
constitute DM Term Loans, Dollar Revolving Loans, DM Revolving Loans or NLG
Revolving Loans; (iii) the aggregate principal amount of the Loans to be made
pursuant to such Borrowing; (iv) the date of such Borrowing (which shall be a
Business Day); (v) in the case of Dollar Revolving Loans, whether the respective
Borrowing shall consist of Base Rate Loans or, to the extent permitted
hereunder, Eurodollar Loans; (vi) in the case of Euro Rate Loans, the Interest
Period to be initially applicable thereto; and (vii) in the case of Dollar
Revolving Loans, the respective portions of such Borrowing to constitute
Acquisition Loans and Working Capital Loans.
(b) (i) Whenever the US Borrower desires to incur Swingline Loans,
the US Borrower shall give BTCo no later than 12:00 Noon (New York time) on the
day such Swingline Loan is to be made, written notice (or telephonic notice
promptly confirmed in writing) of such Swingline Loan. Each such notice shall
be irrevocable and shall specify in each case (x) the date of such incurrence
(which shall be a Business Day) and (y) the aggregate principal amount of the
Swingline Loan requested to be made.
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(D)(c), with the US Borrower irrevocably agreeing, by its incurrence
of any Swingline Loan, to the making of Mandatory Borrowings as set forth in
such Section.
(c) The Administrative Agent shall promptly give each Bank that is
required to make the Loans specified in the respective Notice of Borrowing
written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing of DM Term Loans, Dollar Revolving Loans, DM Revolving Loans
and NLG Revolving Loans, as the case may be, of such Bank's proportionate share
thereof, and of the other matters covered by the respective Notice of Borrowing.
(d) Without in any way limiting the obligation of the respective
Borrower to confirm in writing any telephonic notice permitted to be given
hereunder, the Administrative Agent or BTCo (in the case of a Borrowing of
Swingline Loans), as the case may be, may prior to receipt of written
confirmation act without liability upon the basis of such telephonic notice,
believed by the Administrative Agent or BTCo in good faith to be from an
Authorized Officer of the respective Borrower. In each such case, each Borrower
agrees that the Administrative Agent's or BTCo's record of the terms of such
telephonic notice shall constitute presumptive evidence of the facts so
recorded.
1.04 Disbursement of Funds. (a) No later than 1:00 P.M. (New York
---------------------
time or, in the case of DM Loans and NLG Revolving Loans, no later than 3:00
P.M. London, England time) on the date specified in each Notice of Borrowing (or
(x) in the case of Swingline Loans, no later than 2:00 P.M. (New York time) on
the date specified in the notice delivered pursuant to Section 1.03(b)(i) or (y)
in the case of Mandatory Borrowings, no later than 12:00 Noon (New
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York time) on the date specified in Section 1.01(D)(c)), each Bank that is
required to make the Loans specified in the respective Notice of Borrowing will
make available its pro rata share of each Borrowing requested to be made on such
--- ----
date (or in the case of Swingline Loans, BTCo shall make available the full
amount thereof) in the manner provided below. All amounts shall be made
available to the Administrative Agent in the relevant Applicable Currency and in
immediately available funds at the appropriate Payment Office and, except for
Dollar Revolving Loans made pursuant to a Mandatory Borrowing, the
Administrative Agent promptly will make available to the respective Borrower by
depositing to its account at the appropriate Payment Office the aggregate of the
amounts so made available in the type of funds received. Unless the
Administrative Agent shall have been notified by any Bank prior to the date of
Borrowing that such Bank does not intend to make available to the Administrative
Agent its portion of the Borrowing or Borrowings to be made on such date, the
Administrative Agent may assume that such Bank has made such amount available to
the Administrative Agent on such date of Borrowing, and the Administrative
Agent, in reliance upon such assumption, may (in its sole discretion and without
any obligation to do so) make available to the respective Borrower a
corresponding amount. If such corresponding amount is not in fact made available
to the Administrative Agent by such Bank and the Administrative Agent has made
available same to the respective Borrower, the Administrative Agent shall be
entitled to recover such corresponding amount from such Bank. If such Bank does
not pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent shall promptly notify the respective
Borrower, and such Borrower shall immediately pay such corresponding amount to
the Administrative Agent. The Administrative Agent shall also be entitled to
recover from such Bank or such Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to such Borrower to the
date such corresponding amount is recovered by the Administrative Agent, at a
rate per annum equal to (x) if paid by such Bank, the overnight Federal Funds
Effective Rate or (y) if paid by such Borrower, the then applicable rate of
interest, calculated in accordance with Section 1.08, for the respective
Borrowing.
(b) Nothing herein shall be deemed to relieve any Bank from its
obligation to fulfill its commitments hereunder or to prejudice any rights which
the respective Borrower may have against any Bank as a result of any default by
such Bank hereunder.
1.05 Notes. (a) Each Borrower's obligation to pay the principal of,
-----
and interest on, all the Loans made to it by each Bank shall be evidenced by the
Register maintained by the Administrative Agent pursuant to Section 12.17 and,
if requested by such Bank, also be evidenced (i) if DM Term Loans, by a
promissory note substantially in the form of Exhibit B-1 with blanks
appropriately completed in conformity herewith (each a "DM Term Note" and,
collectively, the "DM Term Notes"), (ii) if Dollar Revolving Loans, by a
promissory note substantially in the form of Exhibit B-2 with blanks
appropriately completed in conformity herewith (each a "Dollar Revolving Note"
and, collectively, the "Dollar Revolving Notes"), (iii) if DM Revolving Loans,
by a promissory note substantially in the form of Exhibit B-3 with blanks
appropriately completed in conformity herewith (each a "DM Revolving Note" and,
collectively, the "DM Revolving Notes"), (iv) if NLG Revolving Loans, by a
promissory note substantially in the form of Exhibit B-4 with blanks
appropriately completed in conformity
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<PAGE>
herewith (each a "NLG Revolving Note" and, collectively, the "NLG Revolving
Notes"), and (v) if Swingline Loans, by a promissory note substantially in the
form of Exhibit B-5 with blanks appropriately completed in conformity herewith
(the "Swingline Note").
(b) The DM Term Note issued to each Bank with a DM Term Loan
Commitment or with outstanding DM Term Loans shall (i) be executed by the German
Borrower, (ii) be payable to such Bank or its registered assigns and be dated
the Restatement Effective Date (or, if issued thereafter, be dated the date of
issuance thereof), (iii) be in a stated principal amount equal to the DM Term
Loans made by such Bank on the Restatement Effective Date (or, in the case of a
new DM Term Note issued pursuant to Section 1.13 or 12.04, the DM Term Loans
evidenced thereby at the time of such issuance) and be payable in Deutsche Marks
in the outstanding principal amount of DM Term Loans evidenced thereby, (iv)
mature on the DM Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the DM Term Loans evidenced
thereby, (vi) be subject to voluntary prepayment as provided in Section 4.01,
and mandatory repayment as provided in Section 4.02, and (vii) be entitled to
the benefits of this Agreement and certain of the other Credit Documents.
(c) The Dollar Revolving Note issued to each Bank with a Dollar
Revolving Loan Commitment or with outstanding Dollar Revolving Loans shall (i)
be executed by the US Borrower, (ii) be payable to such Bank or its registered
assigns and be dated the Restatement Effective Date (or, if issued thereafter,
be dated the date of issuance thereof), (iii) be in a stated principal amount
equal to the Dollar Revolving Loan Commitment of such Bank (or, if issued after
the termination thereof, be in a stated principal amount equal to the
outstanding Dollar Revolving Loans of such Bank at such time) and be payable in
Dollars in the outstanding principal amount of the Dollar Revolving Loans
evidenced thereby, (iv) mature on the Revolving Loan Maturity Date, (v) bear
interest as provided in the appropriate clause of Section 1.08 in respect of the
Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby,
(vi) be subject to voluntary prepayment as provided in Section 4.01, and
mandatory repayment as provided in Section 4.02, and (vii) be entitled to the
benefits of this Agreement and certain of the other Credit Documents.
(d) The DM Revolving Note issued to each Bank with a Foreign
Revolving Loan Commitment or with outstanding DM Revolving Loans shall (i) be
executed by the German Borrower, (ii) be payable to such Bank or its registered
assigns and be dated the Restatement Effective Date (or, if issued thereafter,
be dated the date of issuance thereof), (iii) be payable in Deutsche Marks in
the outstanding principal amount of the DM Revolving Loans evidenced thereby,
(iv) mature on the Revolving Loan Maturity Date, (v) bear interest as provided
in the appropriate clause of Section 1.08 in respect of the DM Revolving Loans
evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01, and mandatory repayment as provided in Section 4.02, and (vii) be
entitled to the benefits of this Agreement and certain of the other Credit
Documents.
(e) The NLG Revolving Note issued to each Bank with a Foreign
Revolving Loan Commitment or with outstanding NLG Revolving Loans shall (i) be
executed by the Dutch Borrower, (ii) be payable to such Bank or its registered
assigns and be dated the Restatement
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<PAGE>
Effective Date (or, if issued thereafter, be dated the date of issuance
thereof), (iii) be payable in Dutch Guilders in the outstanding principal amount
of the NLG Revolving Loans evidenced thereby, (iv) mature on the Revolving Loan
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the NLG Revolving Loans evidenced thereby, (vi) be
subject to voluntary prepayment as provided in Section 4.01, and mandatory
repayment as provided in Section 4.02, and (vii) be entitled to the benefits of
this Agreement and certain of the other Credit Documents.
(f) The Swingline Note issued to BTCo shall (i) be executed by the US
Borrower, (ii) be payable to BTCo or its registered assigns and be dated the
Restatement Effective Date, (iii) be in a stated principal amount equal to the
Maximum Swingline Amount and be payable in Dollars in the outstanding principal
amount of the Swingline Loans evidenced thereby, (iv) mature on the Swingline
Expiry Date, (v) bear interest as provided in Section 1.08 in respect of the
Base Rate Loans evidenced thereby, (vi) be subject to voluntary prepayment as
provided in Section 4.01, and mandatory repayment as provided in Section 4.02,
and (vii) be entitled to the benefits of this Agreement and certain of the other
Credit Documents.
(g) Each Bank will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
shall not affect the respective Borrower's obligations in respect of such Loans.
1.06 Conversions. The US Borrower shall have the option to convert
-----------
on any Business Day all or a portion at least equal to the applicable Minimum
Borrowing Amount of the outstanding principal amount of Dollar Revolving Loans
of one Type into a Borrowing of the other Type of Dollar Revolving Loans,
provided that (i) no partial conversion of a Borrowing of Eurodollar Loans shall
reduce the outstanding principal amount of the Eurodollar Loans made pursuant to
such Borrowing to less than the Minimum Borrowing Amount applicable thereto,
(ii) unless the Required Banks otherwise agree, Base Rate Loans may only be
converted into Eurodollar Loans if no Default under Section 9.01 or Event of
Default is in existence on the date of the conversion and (iii) Borrowings of
Eurodollar Loans resulting from this Section 1.06 shall be limited in number as
provided in Section 1.02. Each such conversion shall be effected by the US
Borrower by giving the Administrative Agent at the Notice Office, prior to 12:00
Noon (New York time), at least three Business Days' (or one Business Day's in
the case of a conversion into Base Rate Loans) prior written notice (or
telephonic notice promptly confirmed in writing) (each a "Notice of Conversion")
specifying the Dollar Revolving Loans to be so converted, the Type of Dollar
Revolving Loans to be converted into and, if to be converted into a Borrowing of
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Bank prompt notice of any such proposed
conversion affecting any of such Bank's Dollar Revolving Loans. No Swingline
Loans, DM Loans or NLG Revolving Loans may be converted pursuant to this Section
1.06.
1.07 Pro Rata Borrowings. All Borrowings of DM Term Loans, Dollar
-------------------
Revolving Loans and Foreign Revolving Loans under this Agreement shall be made
by the
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Banks pro rata on the basis of their DM Term Loan Commitments, Dollar
--- ----
Revolving Loan Commitments or Foreign Revolving Loan Commitments, as the case
may be. It is understood that no Bank shall be responsible for any default by
any other Bank of its obligation to make Loans hereunder and that each Bank
shall be obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Bank to fulfill its commitments
hereunder.
1.08 Interest. (a) The unpaid principal amount of each Base Rate
--------
Loan shall bear interest from the date of the Borrowing thereof until the
conversion or maturity (whether by acceleration or otherwise) of such Base Rate
Loan, at a rate per annum which shall at all times be the Applicable Base Rate
Margin plus the Base Rate, each as in effect from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall bear
interest from the date of the Borrowing thereof until the conversion or maturity
(whether by acceleration or otherwise) of such Eurodollar Loan at a rate per
annum which shall, at all times during each Interest Period applicable thereto,
be the Applicable Euro Rate Margin plus the relevant Eurodollar Rate for such
Interest Period.
(c) The unpaid principal amount of each DM Loan shall bear interest
from the date of the Borrowing thereof until the maturity (whether by
acceleration or otherwise) of such DM Loan at a rate per annum which shall, at
all times during each Interest Period applicable thereto, be equal to the
Applicable Euro Rate Margin plus the relevant DM Euro Rate for such Interest
Period.
(d) The unpaid principal amount of each NLG Revolving Loan shall bear
interest from the date of the Borrowing thereof until maturity (whether by
acceleration or otherwise) of such NLG Revolving Loan at a rate per annum which
shall, at all times during each Interest Period applicable thereto, be equal to
the Applicable Euro Rate Margin plus the relevant NLG Euro Rate for such
Interest Period.
(e) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and any other overdue amount payable hereunder
shall bear interest at a rate per annum equal to the Base Rate in effect from
time to time plus the sum of (i) 2% and (ii) the Applicable Base Rate Margin,
provided that overdue principal in respect of Euro Rate Loans shall bear
interest from the date the same becomes due (whether by acceleration or
otherwise) until (x) in the case of Eurodollar Loans, the end of the Interest
Period applicable to such Eurodollar Loan or (y) in the case of DM Loans and NLG
Revolving Loans, until paid in full, in each case at a rate per annum equal to
2% in excess of the rate of interest applicable to such Euro Rate Loans.
(f) Interest shall accrue from and including the date of any
Borrowing of any Loan to but excluding the date of any repayment thereof and
shall be payable (i) in respect of each Base Rate Loan, quarterly in arrears on
the last Business Day of each March, June, September and December, (ii) in
respect of each Euro Rate Loan, on the last day of each Interest Period
applicable thereto and, in the case of an Interest Period of six months, on the
date occurring three months after the first day of such Interest Period and
(iii) in respect of each Loan,
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<PAGE>
on any prepayment or conversion (on the amount prepaid or converted), at
maturity (whether by acceleration or otherwise) and, after such maturity, on
demand.
(g) All computations of interest hereunder shall be made in
accordance with Section 12.07(c).
(h) The Administrative Agent, upon determining the interest rate for
any Borrowing of Euro Rate Loans for any Interest Period, shall promptly notify
the respective Borrower and the Banks thereof.
1.09 Interest Periods. At the time the respective Borrower gives a
----------------
Notice of Borrowing or Notice of Conversion in respect of the making of, or
conversion into, a Borrowing of Euro Rate Loans (in the case of the initial
Interest Period applicable thereto) or prior to (x) 12:00 Noon (New York time)
on the third Business Day prior to the expiration of an Interest Period
applicable to a Borrowing of Eurodollar Loans or (y) 10:00 A.M. (London, England
time) on the third Business Day prior to the expiration of an Interest Period
applicable to a Borrowing of DM Loans or NLG Revolving Loans, such Borrower
shall have the right to elect, by giving the Administrative Agent written notice
(or telephonic notice promptly confirmed in writing), the Interest Period
applicable to such Borrowing, which Interest Period shall, at the option of such
Borrower, be a one, two, three or six month period. Notwithstanding anything to
the contrary contained above:
(i) all Euro Rate Loans comprising a Borrowing shall have the same
Interest Period;
(ii) the initial Interest Period for any Borrowing of Euro Rate Loans
shall commence on the date of such Borrowing (including, in the case of
Dollar Revolving Loans, the date of any conversion from a Borrowing of Base
Rate Loans) and each Interest Period occurring thereafter in respect of
such Borrowing shall commence on the day on which the next preceding
Interest Period expires;
(iii) if any Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day of
such calendar month;
(iv) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided, that if any Interest Period would
otherwise expire on a day which is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(v) no Interest Period may be elected with respect to a Borrowing of
(x) DM Term Loans that would extend beyond the DM Term Loan Maturity Date
and (y) Dollar Revolving Loans, DM Revolving Loans or NLG Revolving Loans
that would extend beyond the Revolving Loan Maturity Date;
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<PAGE>
(vi) no Interest Period with respect to any Borrowing of DM Term
Loans may be elected that would extend beyond any date upon which a
Scheduled Repayment is required to be made pursuant to Section 4.02(b) if,
after giving effect to the election of such Interest Period, the aggregate
principal amount of DM Term Loans with Interest Periods ending after such
date would exceed the aggregate principal amount of DM Term Loans permitted
to be outstanding after such Scheduled Repayment;
(vii) unless the Required Banks otherwise agree, no Interest Period
for any Borrowing of Dollar Revolving Loans may be elected at any time when
a Default under Section 9.01 or any Event of Default is then in existence,
it being understood that any then outstanding Dollar Revolving Loans
maintained as Eurodollar Loans shall be automatically converted into Base
Rate Loans at the end of the current Interest Period relating to such
Dollar Revolving Loans; and
(viii) unless the Required Banks otherwise agree, no Interest Period
in excess of one month may be elected for any Borrowing of DM Loans or NLG
Revolving Loans at any time when a Default under Section 9.01 or any Event
of Default is then in existence.
Prior to the termination of any Interest Period applicable to any DM Loans or
NLG Revolving Loans, the respective Foreign Borrower may, at its option,
designate that the respective Borrowing subject thereto be split into more than
one Borrowing (for purposes of electing multiple Interest Periods to be
subsequently applicable thereto), so long as each such Borrowing resulting from
the action taken pursuant to this sentence meets the Minimum Borrowing Amount
for such DM Loans or NLG Revolving Loans, as the case may be. If upon the
expiration of any Interest Period, the respective Borrower has failed to, or in
the case of Dollar Revolving Loans is not permitted to, elect a new Interest
Period to be applicable to the respective Borrowing of Euro Rate Loans as
provided above, the respective Borrower shall be deemed to have elected (x) if
Eurodollar Loans, to convert such Borrowing into a Borrowing of Base Rate Loans
and (y) if DM Term Loans, DM Revolving Loans or NLG Revolving Loans, to select a
one-month Interest Period for such DM Term Loans, DM Revolving Loans or NLG
Revolving Loans, as the case may be, in each case effective as of the expiration
date of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that (x) in
---------------------------------
the case of clause (i) below, the Administrative Agent or (y) in the case of
clauses (ii) and (iii) below, any Bank, shall have determined (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto):
(i) on any date for determining the respective Euro Rate for any
Interest Period, that, by reason of any changes arising after the date of
this Agreement affecting the applicable interbank Eurodollar market,
adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of the respective
Euro Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Euro Rate Loans (other than any increased cost or reduction in the
amount received or receivable resulting from
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the imposition of or a change in the rate of income taxes or similar
charges) because of (x) any change since the date of this Agreement in any
applicable law, governmental rule, regulation, guideline, order or request
(whether or not having the force of law), or in the interpretation or
administration thereof and including the introduction of any new law or
governmental rule, regulation, guideline, order or request (such as, for
example, but not limited to, a change in official reserve requirements,
but, in all events, excluding reserves covered by Section 1.10(d) in
respect of DM Loans or NLG Revolving Loans or required under Regulation D
to the extent included in the computation of the Eurodollar Rate) and/or
(y) other circumstances affecting the applicable interbank market; or
(iii) at any time since the date of this Agreement, that the making
or continuance of any Euro Rate Loan has become unlawful by compliance by
such Bank in good faith with any law, governmental rule, regulation,
guideline or order (or would conflict with any such governmental rule,
regulation, guideline or order not having the force of law but with which
such Bank customarily complies even though the failure to comply therewith
would not be unlawful), or has become impracticable as a result of a
contingency occurring after the date of this Agreement which materially and
adversely affects the applicable interbank market;
then, and in any such event, the Administrative Agent (in the case of clause (i)
above) or such Bank shall give notice (by telephone confirmed in writing) to the
respective Borrower and (except in the case of clause (i)) to the Administrative
Agent of such determination (which notice the Administrative Agent shall
promptly transmit to each of the other Banks). Thereafter (x) in the case of
clause (i) above, (A) in the event that any Eurodollar Loans are so affected,
Eurodollar Loans shall no longer be available until such time as the
Administrative Agent notifies the US Borrower and the Banks that the
circumstances giving rise to such notice by the Administrative Agent no longer
exist, and any Notice of Borrowing or Notice of Conversion given by the US
Borrower with respect to Eurodollar Loans which have not yet been incurred
(including by way of conversion) shall be deemed rescinded by the US Borrower,
(B) in the event that any DM Loans are so affected, the DM Euro Rate shall be
determined on the basis provided in the proviso contained in the first sentence
of the definition of DM Euro Rate and (C) in the event that any NLG Revolving
Loans are so effected, the NLG Euro Rate shall be determined on the basis
provided for in the proviso contained in the first sentence of the definition of
NLG Euro Rate, (y) in the case of clause (ii) above, the respective Borrower
agrees to pay to such Bank, upon written demand therefor (accompanied by the
written notice referred to below), such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as such Bank in its sole discretion shall determine) as shall be required to
compensate such Bank for such increased costs or reductions in amounts received
or receivable hereunder (a written notice as to the additional amounts owed to
such Bank, showing the itemized basis for the calculation thereof, submitted to
the respective Borrower by such Bank shall, absent manifest error, be final and
conclusive and binding upon all parties hereto), and (z) in the case of clause
(iii) above, the respective Borrower shall take one of the actions specified in
Section 1.10(b) as promptly as possible and, in any event, within the time
period required by law.
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<PAGE>
(b) At any time that any Euro Rate Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower
may (and in the case of a Euro Rate Loan affected pursuant to Section
1.10(a)(iii) the respective Borrower shall) either (i) if the affected Euro Rate
Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving
the Administrative Agent telephonic notice (confirmed promptly in writing)
thereof on the same date that the respective Borrower was notified by a Bank
pursuant to Section 1.10(a)(ii) or (iii)), or (ii) if the affected Euro Rate
Loan is then outstanding, upon at least three Business Days' notice to the
Administrative Agent, (A) in the case of a Eurodollar Loan, request the affected
Bank to convert such Eurodollar Loan into a Base Rate Loan and (B) in the case
of any DM Loan or NLG Revolving Loan, repay such DM Loan or NLG Revolving Loan,
as the case may be, in full, provided that, (i) if the circumstances described
in Section 1.10(a)(iii) apply to any DM Loan or NLG Revolving Loan, the
respective Foreign Borrower may, in lieu of taking the actions described above,
maintain such DM Loan or NLG Revolving Loan, as the case may be, outstanding, in
which case the relevant Euro Rate shall be determined on the basis provided in
the proviso contained in the first sentence of the definition of the relevant
Euro Rate, unless the maintenance of such DM Loans or NLG Revolving Loans, as
the case may be, outstanding on such basis would not stop the conditions
described in Section 1.10(a)(iii) from existing (in which case the actions
described above, without giving effect to this proviso, shall be required to be
taken) and (ii) if more than one Bank is affected at any time, then all affected
Banks must be treated the same pursuant to this Section 1.10(b). Each Bank,
upon determining in good faith that any additional amounts will be payable
pursuant to this Section 1.10(b), will give prompt written notice thereof to the
respective Borrower, which notice shall set forth the itemized basis of the
calculation of such additional amounts, although the failure to give any such
notice shall not release or diminish the respective Borrower's obligations to
pay additional amounts pursuant to this Section 1.10(b) upon the subsequent
receipt of such notice.
(c) If any Bank shall have determined that after the date hereof, the
adoption or effectiveness of any applicable law, rule or regulation regarding
capital adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by such Bank with any request or directive regarding capital adequacy (whether
or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Bank's capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Bank could have achieved
but for such adoption, effectiveness, change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy), then from
time to time, upon written demand by such Bank (with a copy to the
Administrative Agent), the respective Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such reduction.
Each Bank, upon determining in good faith that any additional amounts will be
payable pursuant to this Section 1.10(c), will give prompt written notice
thereof to the respective Borrower, which notice shall set forth the itemized
basis of the calculation of such additional amounts, although the failure to
give any such notice shall not release or diminish the respective Borrower's
obligations to pay additional amounts pursuant to this Section 1.10(c) upon the
subsequent receipt of such notice.
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<PAGE>
(d) In the event that any Bank shall in good faith determine (which
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto) at any time that such Bank is required to maintain
reserves (including, without limitation, any marginal, emergency, supplemental,
special or other reserves required by applicable law) which have been
established by any Federal, state, local or foreign court or governmental
agency, authority, instrumentality or regulatory body with jurisdiction over
such Bank (including any branch, Affiliate or funding office thereof) in respect
of any DM Loans or NLG Revolving Loans or any category of liabilities which
includes deposits by reference to which the interest rate on any DM Loan or NLG
Revolving Loan is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to non-
United States residents, then, unless such reserves are included in the
calculation of the interest rate applicable to such DM Loan or NLG Revolving
Loan, as the case may be, or in Section 1.10(a)(ii), such Bank shall promptly
notify the respective Foreign Borrower in writing specifying the additional
amounts required to indemnify such Bank against the cost of maintaining such
reserves (such written notice to provide in reasonable detail a computation of
such additional amounts) and such Borrower shall pay to such Bank such specified
amounts as additional interest at the time that such Borrower is otherwise
required to pay interest in respect of such DM Loan or NLG Revolving Loan, as
the case may be, or, if later, on written demand therefor by such Bank.
1.11 Compensation. The respective Borrower agrees to compensate each
------------
Bank, upon its written request (which request shall set forth the itemized basis
for requesting such compensation), for all reasonable losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds
required by such Bank to fund its Euro Rate Loans but excluding loss of
anticipated profit with respect to any such Euro Rate Loans) which such Bank may
sustain: (i) if for any reason (other than a default by such Bank or the
Administrative Agent) a Borrowing of Euro Rate Loans does not occur on a date
specified therefor in a Notice of Borrowing or Notice of Conversion (whether or
not withdrawn by the respective Borrower or deemed withdrawn pursuant to Section
1.10(a) or (b)); (ii) if any repayment or conversion of any Euro Rate Loans
occurs on a date which is not the last day of an Interest Period applicable
thereto; (iii) if any prepayment of any Euro Rate Loans is not made on any date
specified in a notice of prepayment given by the respective Borrower; or (iv) as
a consequence of (x) any other default by the respective Borrower to repay its
Euro Rate Loans when required by the terms of this Agreement or (y) an election
made pursuant to Section 1.10(b).
1.12 Change of Lending Office. Each Bank agrees that, upon the
------------------------
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), 1.10(c), 2.05 or 4.04 with respect to such Bank, it will, if requested by
the respective Borrower, use reasonable efforts (subject to overall policy
considerations of such Bank) to designate another lending office for any Loans
or Letters of Credit affected by such event; provided, that such designation is
made on such terms that, in the sole judgment of such Bank, such Bank and its
lending office suffer no economic, legal or regulatory disadvantage, with the
object of avoiding the consequences of the event giving rise to the operation of
any such Section. Nothing in this Section 1.12 shall affect or postpone any of
the obligations of any Borrower or the right of any Bank provided in Section
1.10, 2.05 or 4.04.
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<PAGE>
1.13 Replacement of Banks. (a) (i) If any Bank becomes a Defaulting
--------------------
Bank or otherwise defaults in its obligations to make Loans or fund Unpaid
Drawings, (ii) if any Bank refuses to consent to certain proposed changes,
waivers, discharges or terminations with respect to this Agreement which have
been approved by the Required Banks as provided in Section 12.12(b) or (iii)
upon the occurrence of any event giving rise to the operation of Section
1.10(a)(ii) or (iii), Section 1.10(c), Section 2.05 or Section 4.04 with respect
to any Bank which results in such Bank charging to any Borrower increased costs
in excess of those being generally charged by the other Banks, the Borrowers
shall have the right, in accordance with the requirements of Section 12.04(b),
if no Event of Default will exist after giving effect to such replacement, to
replace such Bank (the "Replaced Bank") with an Eligible Transferee or
Transferees, none of which shall constitute a Defaulting Bank at the time of
such replacement (collectively, the "Replacement Bank"), and each of whom shall
be reasonably acceptable to the Administrative Agent and the Letter of Credit
Issuer, provided that (i) at the time of any replacement pursuant to this
Section 1.13, the Replacement Bank shall enter into one or more Assignment and
Assumption Agreements pursuant to Section 12.04(b) (and with the assignment fee
payable pursuant to said Section 12.04(b) to be paid by the Replacement Bank)
pursuant to which the Replacement Bank shall acquire all of the Commitments and
outstanding Loans of, and in each case participations in Swingline Loans and
Letters of Credit by, the Replaced Bank and, in connection therewith, shall pay
(x) to the Replaced Bank in respect thereof an amount equal to the sum of (A) an
amount in the appropriate Applicable Currency equal to the principal of, and all
accrued interest on, all outstanding Loans of the Replaced Bank, (B) an amount
in the appropriate Applicable Currency equal to all Unpaid Drawings that have
been funded by (and not reimbursed to) such Replaced Bank, together with all
then unpaid interest with respect thereto at such time and (C) an amount equal
to all accrued, but theretofore unpaid, Fees owing to the Replaced Bank pursuant
to Section 3.01, (y) to the Letter of Credit Issuer an amount in the appropriate
Applicable Currency equal to such Replaced Bank's DRL Percentage or FRL
Percentage, as the case may be, of any Unpaid Drawing (which at such time
remains an Unpaid Drawing) to the extent such amount was not theretofore funded
by such Replaced Bank and (z) to BTCo an amount equal to such Replaced Bank's
DRL Percentage of any Mandatory Borrowing to the extent such amount was not
theretofore funded by such Replaced Bank and (ii) all obligations of the
Borrowers owing to the Replaced Bank (other than those specifically described in
clause (i) above in respect of which the assignment purchase price has been, or
is concurrently being, paid) shall be paid in full to such Replaced Bank
concurrently with such replacement.
(b) Upon the execution of the respective Assignment and Assumption
Agreements, the payment of amounts referred to in clauses (i) and (ii) of
Section 1.13(a) and, if so requested by the Replacement Bank, delivery to the
Replacement Bank of the appropriate Note or Notes executed by the respective
Borrower, the Replacement Bank shall become a Bank hereunder and the Replaced
Bank shall cease to constitute a Bank hereunder, except with respect to
indemnification provisions applicable to the Replaced Bank under this Agreement
(including, without limitation, Sections 1.10, 1.11, 2.05, 4.04, 12.01 and
12.06), which shall survive as to such Replaced Bank.
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SECTION 2. Letters of Credit.
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2.01 Letters of Credit. (a) Subject to and upon the terms and
-----------------
conditions herein set forth, the US Borrower and each Foreign Borrower may
request the Letter of Credit Issuer at any time and from time to time on or
after the Restatement Effective Date and prior to the 30th day prior to the
Revolving Loan Maturity Date to issue, for the account of the US Borrower (in
the case of requests made by it) or for the several account of the respective
Foreign Borrower (in the case of requests made by such Foreign Borrower) and in
support of (x) trade obligations and other obligations of the respective Account
Party or any of its Subsidiaries incurred in the ordinary course of business and
(y) such other obligations of the respective Account Party or any of its
Subsidiaries to any other Person that are reasonably acceptable to the
Administrative Agent and the Letter of Credit Issuer, and subject to and upon
the terms and conditions herein set forth, the Letter of Credit Issuer agrees to
issue from time to time, irrevocable letters of credit in such form as may be
approved by the Letter of Credit Issuer and the Administrative Agent (each such
letter of credit, a "Letter of Credit" and, collectively, the "Letters of
Credit"). The term Letter of Credit shall include each Existing Letter of
Credit, and each Existing Letter of Credit shall, for all purposes of this
Agreement, be deemed to be a US Letter of Credit issued on the Restatement
Effective Date.
(b) Notwithstanding the foregoing, (i) no US Letter of Credit shall
be issued the Stated Amount of which, when added to the US Letter of Credit
Outstandings at such time, would exceed either (x) $10,000,000 or (y) when added
to the sum of (I) the aggregate principal amount of all Dollar Revolving Loans
and Swingline Loans then outstanding and (II) the aggregate principal amount of
all Foreign Subsidiary Third Party Borrowings (for this purpose, using the
Dollar Equivalent of Foreign Subsidiary Third Party Borrowings incurred in a
currency other than Dollars) then outstanding, the Total Dollar Revolving Loan
Commitment at such time, (ii) no Foreign Letter of Credit shall be issued the
Stated Amount of which, when added to the Foreign Letter of Credit Outstandings
at such time, would exceed either (x) $6,000,000 or (y) when added to Dollar
Equivalent of the aggregate principal amount of all Foreign Revolving Loans then
outstanding, the Total Foreign Revolving Loan Commitment at such time, (iii)
each standby Letter of Credit shall have an expiry date occurring not later than
the earlier of (x) one year after such standby Letter of Credit's date of
issuance, provided that any standby Letter of Credit may be automatically
extendible for periods of up to one year so long as such standby Letter of
Credit provides that the Letter of Credit Issuer retains an option, satisfactory
to the Letter of Credit Issuer, to terminate such standby Letter of Credit
within a specified period of time prior to each scheduled extension date and (y)
the fifth Business Day prior to the Revolving Loan Maturity Date, (iv) each
trade Letter of Credit shall have an expiry date occurring not later than the
earlier of (x) 180 days after such trade Letter of Credit's date of issuance and
(y) the 30th Business Day prior to the Revolving Loan Maturity Date, (v) each US
Letter of Credit shall be denominated in Dollars and issued on a sight basis,
provided, however, US Letters of Credit with an aggregate Stated Amount of up to
- -------- -------
$8,000,000 may be issued and outstanding at any time in Deutsche Marks and/or
Dutch Guilders, (vi) each Foreign Letter of Credit shall be denominated in an
Alternate Currency and issued on a sight basis, and (vii) the Letter of Credit
Issuer will not be required to issue any Letter of Credit after it has received
written notice from any Borrower or the Required Banks stating that a Default or
an Event of Default exists until
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such time as the Letter of Credit Issuer shall have received a written notice of
(x) rescission of such notice from the party or parties originally delivering
same or (y) a waiver of such Default or Event of Default by the Required Banks.
(c) Notwithstanding the foregoing, in the event a Bank Default
exists, the Letter of Credit Issuer shall not be required to issue any Letter of
Credit unless the Letter of Credit Issuer has entered into arrangements
satisfactory to it and the respective Borrower to eliminate the Letter of Credit
Issuer's risk with respect to the participation in Letters of Credit of any
Defaulting Bank or Banks, including by cash collateralizing any such Defaulting
Bank's or Banks' DRL Percentage of the US Letter of Credit Outstandings or FRL
Percentage of the Foreign Letter of Credit Outstandings, as the case may be.
2.02 Letter of Credit Requests; Notices of Issuance. (a) Whenever
----------------------------------------------
an Account Party desires that a Letter of Credit be issued for its account, such
Account Party shall give the Administrative Agent and the Letter of Credit
Issuer written notice thereof prior to (x) 12:00 Noon (New York time) in the
case of US Letters of Credit and (y) prior to 10:00 A.M. (London, England time)
in the case of Foreign Letters of Credit, in either case, at least five Business
Days (or such shorter period as may be acceptable to the Letter of Credit
Issuer) prior to the proposed date of issuance (which shall be a Business Day),
which written notice shall be in the form of Exhibit A-2 appropriately completed
(each a "Letter of Credit Request"). Each Letter of Credit Request shall
include any other documents as the Letter of Credit Issuer customarily requires
in connection therewith.
(b) The Letter of Credit Issuer shall, promptly upon its issuance of
(x) a standby Letter of Credit, give the Administrative Agent, each DRL Bank or
each FRL Bank, as appropriate, and the respective Account Party written notice
thereof, accompanied by a copy to the Administrative Agent of the Letter of
Credit or Letters of Credit issued by the Letter of Credit Issuer.
2.03 Agreement to Repay Letter of Credit Drawings. (a) (i) The US
--------------------------------------------
Borrower hereby agrees to reimburse the Letter of Credit Issuer, by making
payment in Dollars (or, in the case of payments or disbursements made by the
Letter of Credit Issuer in an Alternate Currency, the Dollar Equivalent thereof)
to the Administrative Agent, in immediately available funds at the appropriate
Payment Office, for any payment or disbursement made by the Letter of Credit
Issuer under any US Letter of Credit, and (ii) the respective Foreign Borrower
hereby agrees to reimburse the Letter of Credit Issuer, by making payment in the
relevant Alternate Currency to the Administrative Agent, in immediately
available funds at the appropriate Payment Office, for any payment or
disbursement made by the Letter of Credit Issuer under any Foreign Letter of
Credit (each such amount (or the Dollar Equivalent thereof, as the case may be),
so paid or disbursed until reimbursed, an "Unpaid Drawing"), in each case
promptly upon but no later than two Business Days after the Letter of Credit
Issuer notifies the respective Account Party that such payment or disbursement
has occurred (provided that no such notice shall be required to be given if a
Default or an Event of Default under Section 9.05 shall have occurred and be
continuing, in which case the Unpaid Drawing shall be due and payable
immediately without presentment, demand, protest or notice of any kind (all of
which are hereby waived by the
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respective Account Party)), in each case with interest on the amount so paid or
disbursed by the Letter of Credit Issuer, to the extent not reimbursed prior to
1:00 P.M. (New York time (or, in the case of Foreign Letters of Credit, London,
England time)) on the date of such payment or disbursement, from and including
the date paid or disbursed to but not including the date the Letter of Credit
Issuer is reimbursed therefor at a rate per annum which shall be the Applicable
Base Rate Margin plus the Base Rate as in effect from time to time (plus an
additional 2% per annum on and after the third Business Day after the date of
such notice of such payment or disbursement or following the occurrence of a
Default or an Event of Default under Section 9.05), such interest also to be
payable on demand.
(b) The respective Account Party's obligation under this Section 2.03
to reimburse the Letter of Credit Issuer with respect to Unpaid Drawings
(including, in each case, interest thereon) shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which such Account Party or any of its Subsidiaries may have
or have had against the Letter of Credit Issuer, the Administrative Agent or any
Bank, including, without limitation, any defense based upon the failure of any
drawing under a Letter of Credit to conform to the terms of the Letter of Credit
or any non-application or misapplication by the beneficiary of the proceeds of
such drawing, provided that no Account Party shall be obligated to reimburse the
--------
Letter of Credit Issuer for any wrongful payment made by the Letter of Credit
Issuer under a Letter of Credit issued for the account of such Account Party as
a result of acts or omissions constituting willful misconduct or gross
negligence on the part of the Letter of Credit Issuer.
2.04 Letter of Credit Participations. (a) (i) Immediately upon the
-------------------------------
issuance by the Letter of Credit Issuer of any US Letter of Credit, the Letter
of Credit Issuer shall be deemed to have sold and transferred to each DRL Bank,
and each such DRL Bank (each such DRL Bank, in its capacity under this Section
2.04, a "DRL Participant") shall be deemed irrevocably and unconditionally to
have purchased and received from the Letter of Credit Issuer, without recourse
or warranty, an undivided interest and participation, to the extent of such DRL
Bank's DRL Percentage, in such US Letter of Credit, each substitute letter of
credit, each drawing made thereunder and the obligations of the US Borrower
under this Agreement with respect thereto (although US Letter of Credit Fees
shall be payable directly to the Administrative Agent for the account of the DRL
Banks as provided in Section 3.01(b) and the DRL Participants shall have no
right to receive any portion of any US Facing Fees) and any security therefor or
guaranty pertaining thereto. Upon any change in the Dollar Revolving Loan
Commitments or DRL Percentages of the DRL Banks pursuant to Sections 1.13 and/or
12.04(b), it is hereby agreed that, with respect to all outstanding US Letters
of Credit and Unpaid Drawings relating thereto, there shall be an automatic
adjustment to the participations pursuant to this Section 2.04 to reflect the
new DRL Percentages of the assigning and assignee Bank.
(ii) Immediately upon the issuance by the Letter of Credit Issuer of
any Foreign Letter of Credit, the Letter of Credit Issuer shall be deemed to
have sold and transferred to each FRL Bank, and each such FRL Bank (each such
FRL Bank, in its capacity under this Section 2.04, a "FRL Participant", and,
together with the DRL Participants, collectively, the "Participants" and each a
"Participant") shall be deemed irrevocably and unconditionally to have
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purchased and received from the Letter of Credit Issuer, without recourse or
warranty, an undivided interest and participation, to the extent of such FRL
Bank's FRL Percentage, in such Foreign Letter of Credit, each substitute letter
of credit, each drawing made thereunder and the obligations of the respective
Foreign Borrower under this Agreement with respect thereto (although Foreign
Letter of Credit Fees shall be payable directly to the Administrative Agent for
the account of the FRL Banks as provided in Section 3.01(b) and the FRL
Participants shall have no right to receive any portion of any Foreign Facing
Fees) and any security therefor or guaranty pertaining thereto. Upon any change
in the Foreign Revolving Loan Commitments or FRL Percentages of the FRL Banks
pursuant to Sections 1.13 and/or 12.04(b), it is hereby agreed that, with
respect to all outstanding Foreign Letters of Credit and Unpaid Drawings
relating thereto, there shall be an automatic adjustment to the participations
pursuant to this Section 2.04 to reflect the new FRL Percentages of the
assigning and assignee Bank.
(b) In determining whether to pay under any Letter of Credit, the
Letter of Credit Issuer shall not have any obligation relative to the
Participants other than to determine that any documents required to be delivered
under such Letter of Credit have been delivered and that they appear to
substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by the Letter of Credit Issuer
under or in connection with any Letter of Credit, if taken or omitted in the
absence of gross negligence or willful misconduct, shall not create for the
Letter of Credit Issuer any resulting liability.
(c) In the event that the Letter of Credit Issuer makes any payment
under any US Letter of Credit and the US Borrower shall not have reimbursed such
amount in full to the Letter of Credit Issuer pursuant to Section 2.03(a), the
Letter of Credit Issuer shall promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify each DRL Participant of such failure,
and each DRL Participant shall promptly and unconditionally pay in Dollars (or,
in the case of any unreimbursed payments made in an Alternate Currency, the
Dollar Equivalent of such unreimbursed payments) to the Administrative Agent for
the account of the Letter of Credit Issuer, the amount of such DRL Participant's
DRL Percentage of such payment and in same day funds, provided that no DRL
Participant shall be obligated to pay to the Administrative Agent its DRL
Percentage of such unreimbursed amount for any wrongful payment made by the
Letter of Credit Issuer under a US Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of the
Letter of Credit Issuer. In the event that the Letter of Credit Issuer makes
any payment under any Foreign Letter of Credit and the respective Foreign
Borrower shall not have reimbursed such amount in full to the Letter of Credit
Issuer pursuant to Section 2.03(a), the Letter of Credit Issuer shall promptly
notify the Administrative Agent, and the Administrative Agent shall promptly
notify each FRL Participant of such failure, and each FRL Participant shall
promptly and unconditionally pay in the relevant Alternate Currency to the
Administrative Agent for the account of the Letter of Credit Issuer, the amount
of such FRL Participant's FRL Percentage of such payment and in same day funds,
provided that no FRL Participant shall be obligated to pay to the Administrative
Agent its FRL Percentage of such unreimbursed amount for any wrongful payment
made by the Letter of Credit Issuer under a Foreign Letter of Credit as a result
of acts or omissions constituting willful misconduct or gross negligence on the
part of the Letter of Credit Issuer. If the Administrative Agent so notifies
any Participant required to fund a payment under a Letter of Credit prior to
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11:00 A.M. (New York time (or, in the case of any Foreign Letter of Credit,
London, England time)) on any Business Day, such Participant shall make
available to the Administrative Agent for the account of the Letter of Credit
Issuer (i) in the case of a US Letter of Credit, the amount of such
Participant's DRL Percentage of such payment in Dollars (or, in the case of any
unreimbursed payments made in an Alternate Currency, the Dollar Equivalent
thereof) on such Business Day in same day funds or (ii) in the case of a Foreign
Letter of Credit, the amount of such Participant's FRL Percentage of such
payment in the relevant Alternate Currency on such Business Day in same day
funds. If and to the extent such Participant shall not have so made its DRL
Percentage or FRL Percentage, as the case may be, of the amount of such payment
available to the Administrative Agent for the account of the Letter of Credit
Issuer, such Participant agrees to pay to the Administrative Agent for the
account of the Letter of Credit Issuer, forthwith on demand such amount,
together with interest thereon, for each day from such date until the date such
amount is paid to the Administrative Agent for the account of the Letter of
Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any
Participant to make available to the Administrative Agent for the account of the
Letter of Credit Issuer its applicable Percentage of any payment under any
Letter of Credit shall not relieve any other Participant of its obligation
hereunder to make available to the Administrative Agent for the account of the
Letter of Credit Issuer its applicable Percentage of any payment under any
Letter of Credit on the date required, as specified above, but no Participant
shall be responsible for the failure of any other Participant to make available
to the Administrative Agent for the account of the Letter of Credit Issuer such
other Participant's applicable Percentage of any such payment.
(d) Whenever the Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of the Letter of Credit Issuer any payments from the applicable
Participants pursuant to clause (c) above, the Letter of Credit Issuer shall pay
to the Administrative Agent and the Administrative Agent shall promptly pay to
each such Participant which has paid its applicable Percentage thereof, in the
Applicable Currency (or, in the case of any payment in respect of a US Letter of
Credit received in an Alternate Currency, of the Dollar Equivalent thereof) and
in same day funds, an amount equal to such Participant's applicable Percentage
of the principal amount thereof and interest thereon accruing after the actual
funding of the respective participations.
(e) The obligations of the Participants to make payments to the
Administrative Agent for the account of the Letter of Credit Issuer with respect
to Letters of Credit shall be irrevocable and not subject to counterclaim, set-
off or other defense or any other qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right
which any Account Party or any of its Subsidiaries may have at any time
against a beneficiary named in a Letter of Credit, any transferee of any
Letter of Credit, any Bank, or other Person,
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<PAGE>
whether in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions (including
any underlying transaction between any Account Party or any of its
Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.05 Increased Costs. If after the date hereof, the adoption or
---------------
effectiveness of any applicable law, rule or regulation, or any change therein,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Letter of Credit
Issuer or any Participant with any request or directive (whether or not having
the force of law) by any such authority, central bank or comparable agency shall
either (i) impose, modify or make applicable any reserve, deposit, capital
adequacy or similar requirement against Letters of Credit issued by the Letter
of Credit Issuer or such Participant's participation therein, or (ii) impose on
the Letter of Credit Issuer or any Participant any other conditions affecting
this Agreement, any Letter of Credit or such Participant's participation
therein; and the result of any of the foregoing is to increase the cost to the
Letter of Credit Issuer or such Participant of issuing, maintaining or
participating in any Letter of Credit, or to reduce the amount of any sum
received or receivable by the Letter of Credit Issuer or such Participant
hereunder or reduce the rate of return on its capital with respect to Letters of
Credit, then, upon written demand to the respective Account Party by the Letter
of Credit Issuer or such Participant (a copy of which demand shall be sent by
the Letter of Credit Issuer or such Participant to the Administrative Agent),
such Account Party shall pay to the Letter of Credit Issuer or such Participant
such additional amount or amounts as will compensate the Letter of Credit Issuer
or such Participant for such increased cost or reduction. A certificate
submitted to such Account Party by the Letter of Credit Issuer or such
Participant, as the case may be (a copy of which certificate shall be sent by
the Letter of Credit Issuer or such Participant to the Administrative Agent),
setting forth the basis for the determination of such additional amount or
amounts necessary to compensate the Letter of Credit Issuer or such Participant
as aforesaid shall be final and conclusive and binding on such Account Party
absent manifest error, although the failure to deliver any such certificate
shall not release or diminish such Account Party's obligations to pay additional
amounts pursuant to this Section 2.05 upon subsequent receipt of such
certificate.
SECTION 3. Fees; Commitments.
-----------------
3.01 Fees. (a) The US Borrower agrees to pay in Dollars to the
----
Administrative Agent for distribution to each Non-Defaulting DRL Bank a
commitment fee (the "DRL Commitment Fee") for the period from the Restatement
Effective Date to but not including the
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<PAGE>
date the Total Dollar Revolving Loan Commitment has been terminated, computed
for each day at a rate per annum equal to the Applicable Commitment Fee
Percentage multiplied by the Unutilized Dollar Revolving Loan Commitment of such
Bank on such day. Accrued DRL Commitment Fees shall be due and payable quarterly
in arrears on the last Business Day of each March, June, September and December
and the date upon which the Total Dollar Revolving Loan Commitment is
terminated.
(b) The Foreign Borrowers jointly and severally agree to pay in
Dollars to the Administrative Agent for distribution to each Non-Defaulting FRL
Bank a commitment fee (the "FRL Commitment Fee") for the period from the
Restatement Effective Date to but not including the date the Total Foreign
Revolving Loan Commitment has been terminated, computed for each day at a rate
per annum equal to the Applicable Commitment Fee Percentage multiplied by the
Unutilized Foreign Revolving Loan Commitment of such Bank on such day. Accrued
FRL Commitment Fees shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December and the date upon which
the Total Foreign Revolving Loan Commitment is terminated.
(c) The US Borrower shall pay in Dollars to the Administrative Agent
for the account of the DRL Banks pro rata on the basis of their DRL Percentages,
--- ----
a fee in respect of each US Letter of Credit (the "US Letter of Credit Fee")
computed for each day at a rate per annum equal to the Applicable Euro Rate
Margin for such day multiplied by the then Stated Amount of such Letter of
Credit. Accrued US Letter of Credit Fees shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December of
each year and on the first day on or after the termination of the Total Dollar
Revolving Loan Commitment upon which no US Letters of Credit remain outstanding.
(d) The US Borrower shall pay in Dollars to the Letter of Credit
Issuer a fee in respect of each US Letter of Credit (the "US Facing Fee")
computed for each day at a rate per annum of 1/4 of 1% on the then Stated Amount
of such US Letter of Credit. Accrued US Facing Fees shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December of each year and on the first day on or after the termination of the
Total Dollar Revolving Loan Commitment upon which no US Letters of Credit remain
outstanding.
(e) The respective Foreign Borrower shall pay in the relevant
Alternate Currency to the Administrative Agent for the account of the FRL Banks
pro rata on the basis of their FRL Percentages, a fee in respect of each Foreign
- --- ----
Letter of Credit issued for the account of such Foreign Borrower (the "Foreign
Letter of Credit Fee") computed for each day at a rate per annum equal to the
Applicable Euro Rate Margin for such day multiplied by the then Stated Amount of
such Foreign Letter of Credit. Accrued Foreign Letter of Credit Fees shall be
due and payable quarterly in arrears on the last Business Day of each March,
June, September and December of each year and on the first day on or after the
termination of the Total Foreign Revolving Loan Commitment upon which no Foreign
Letters of Credit remain outstanding.
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<PAGE>
(f) The respective Foreign Borrower shall pay in the relevant
Alternate Currency to the Letter of Credit Issuer a fee in respect of each
Foreign Letter of Credit issued for the account of such Foreign Borrower (the
"Foreign Facing Fee") computed for each day at a rate per annum of 1/4 of 1% on
the then Stated Amount of such Foreign Letter of Credit. Accrued Foreign Facing
Fees shall be due and payable quarterly in arrears on the last Business Day of
each March, June, September and December of each year and on the first day on or
after the termination of the Total Foreign Revolving Loan Commitment upon which
no Foreign Letters of Credit remain outstanding.
(g) The respective Borrower hereby agrees to pay directly to the
Letter of Credit Issuer upon each issuance of, payment under, and/or amendment
of, a Letter of Credit issued by it such amount as shall at the time of such
issuance, payment or amendment be the administrative charge which the Letter of
Credit Issuer is customarily charging for issuances of, payments under or
amendments of comparable letters of credit issued by it.
(h) The Borrowers shall pay to the Administrative Agent, for its own
account, such fees as have been agreed to in writing by the Borrowers and the
Administrative Agent and such other fees and expenses as may be agreed to from
time to time by the Borrowers and the Administrative Agent, when and as due.
(i) All computations of Fees shall be made in accordance with Section
12.07(c).
3.02 Voluntary Reduction of Commitments. (a) Upon at least three
----------------------------------
Business Days' prior written notice (or telephonic notice promptly confirmed in
writing) to the Administrative Agent at the Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Banks), (I) the US
Borrower shall have the right, without premium or penalty, to terminate or
partially reduce the Unutilized Total Dollar Revolving Loan Commitment, which
notice shall specify the portion of the specified reduction which shall apply to
the Unutilized Acquisition Sub-Limit and the Unutilized Working Capital Sub-
Limit, respectively, and (II) the Foreign Borrowers shall have the right,
without premium or penalty, to terminate or partially reduce to Unutilized Total
Foreign Revolving Loan Commitment; provided that (A)(x) in the case of
terminations or partial reductions pursuant to clause (I) above, such
termination or partial reduction shall apply to proportionately and permanently
reduce the Dollar Revolving Loan Commitment of each of the DRL Banks and (y) in
the case of terminations or partial reductions pursuant to clause (II) above,
such termination or partial reduction shall apply to proportionately and
permanently reduce the Unutilized Foreign Revolving Loan Commitment of each of
the FRL Banks and (B) any partial reduction pursuant to this Section 3.02 shall
be in the amount of at least $1,000,000 or any integral of $500,000 in excess
thereof.
3.03 Mandatory Adjustments of Commitments, etc. (a) The Total
------------------------------------------
Commitment (and the DM Term Loan Commitment, the Dollar Revolving Loan
Commitment and the Foreign Revolving Loan Commitment of each Bank) shall
terminate on the Commitment Expiration Date unless the Restatement Effective
Date has occurred on or before such date. Notwithstanding anything to the
contrary contained above or in Section 12.10, if the Restatement Effective Date
does not occur on or prior to the Commitment Expiration Date, then it shall not
thereafter occur
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<PAGE>
(unless the Required Banks agree in writing to an extension of such date), and
this Agreement shall cease to be of any force or effect and the Existing Credit
Agreement shall continue to be effective, as the same may have been, or may
thereafter be, amended, modified or supplemented from time to time.
(b) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total DM Term Loan Commitment (and the DM Term Loan
Commitment of each Bank) shall terminate in its entirety on the Restatement
Effective Date (after giving effect to the incurrence of the DM Term Loans on
such date).
(c) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, (i) the Total Dollar Revolving Loan Commitment (and the
Dollar Revolving Loan Commitment of each DRL Bank) and (ii) the Total Foreign
Revolving Loan Commitment (and the Foreign Revolving Loan Commitment of each FRL
Bank) shall terminate on the earlier of (i) the date on which a Change of
Control occurs and (ii) the Revolving Loan Maturity Date.
(d) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Dollar Revolving Loan Commitment shall be
permanently reduced at the times, and in the amounts, required by Section
4.02(B)(a). Each reduction of the Total Dollar Revolving Loan Commitment
pursuant to this Section 3.03(d) shall apply to proportionally and permanently
reduce the Dollar Revolving Loan Commitment of each DRL Bank.
(e) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Foreign Revolving Loan Commitment shall be
permanently reduced at the times, and in the amounts, required by Section
4.02(B)(a). Each reduction of the Total Foreign Revolving Loan Commitment
pursuant to this Section 3.03(e) shall apply to proportionally and permanently
reduce the Foreign Revolving Loan Commitment of each FRL Bank.
SECTION 4. Payments.
--------
4.01 Voluntary Prepayments. Each Borrower shall have the right to
---------------------
prepay the Loans made to it, in whole or in part, without premium or penalty
except as otherwise provided in this Agreement, from time to time on the
following terms and conditions:
(i) such Borrower shall give the Administrative Agent at the Notice
Office written notice (or telephonic notice promptly confirmed in writing)
of its intent to prepay the Loans, whether such Loans are DM Term Loans,
Dollar Revolving Loans, DM Revolving Loans, NLG Revolving Loans or
Swingline Loans, the amount of such prepayment and (in the case of Euro
Rate Loans) the specific Borrowing(s) pursuant to which made, which notice
shall be given by such Borrower prior to 12:00 Noon (New York time, or in
the case of DM Loans or NLG Revolving Loans, London, England time) at least
three Business Days prior to the date of such prepayment (or, in the case
of Base Rate Loans, on the same day), and which notice shall, except in the
case of Swingline Loans, promptly be transmitted by the Administrative
Agent to each of the Banks;
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<PAGE>
(ii) (x) each partial prepayment of outstanding DM Term Loans, Dollar
Revolving Loans, DM Revolving Loans and NLG Revolving Loans shall be in an
aggregate principal amount of at least $500,000 (or (A) the Deutsche Mark
Equivalent thereof in the case of DM Loans or (B) the Dutch Guilder
Equivalent thereof in the case of NLG Revolving Loans), provided that no
partial prepayment of Euro Rate Loans made pursuant to a Borrowing shall
reduce the aggregate principal amount of the Euro Rate Loans outstanding
pursuant to such Borrowing to an amount less than the Minimum Borrowing
Amount applicable thereto and (y) each partial prepayment of outstanding
Swingline Loans shall be in an aggregate principal amount of at least
$100,000;
(iii) each prepayment in respect of any Loans made pursuant to a
Borrowing shall be applied pro rata among such Loans;
--- ----
(iv) each voluntary prepayment of DM Term Loans shall be applied to
reduce the then remaining Scheduled Repayments on a pro rata basis (based
--- ----
on the then remaining unpaid principal amounts of such Scheduled Repayments
after giving effect to all prior reductions thereto); and
(v) with respect to each prepayment in respect of any Dollar
Revolving Loans made pursuant to this Section 4.01, such prepayment shall,
unless otherwise directed by the US Borrower at the time of prepayment,
first be deemed to be applied to any outstanding Working Capital Loans and
then to any outstanding Acquisition Loans.
4.02 Mandatory Prepayments.
---------------------
(A) Requirements:
------------
(a) (i) If on any date the sum of (w) the aggregate outstanding
principal amount of Dollar Revolving Loans (after giving effect to all other
repayments thereof on such date) plus (x) the aggregate outstanding principal
amount of all Swingline Loans (after giving effect to all other repayments
thereof on such date) plus (y) the US Letter of Credit Outstandings on such date
plus (z) the aggregate outstanding principal amount of all Foreign Subsidiary
Third Party Borrowings (or the Dollar Equivalent thereof in the case of Foreign
Subsidiary Third Party Borrowings incurred in a currency other than Dollars)
exceeds the Total Dollar Revolving Commitment as then in effect, the US Borrower
shall repay on such date the aggregate principal amount of Swingline Loans and,
after all Swingline Loans have been repaid in full or if no Swingline Loans are
outstanding, Dollar Revolving Loans in an amount equal to such excess. If,
after giving effect to the prepayment of all outstanding Swingline Loans and
Dollar Revolving Loans, the sum of (x) the US Letter of Credit Outstandings plus
(y) the aggregate outstanding principal amount of all Foreign Subsidiary Third
Party Borrowings (or the Dollar Equivalent thereof in the case of Foreign
Subsidiary Third Party Borrowings incurred in a currency other than Dollars)
exceeds the Total Dollar Revolving Commitment then in effect, the US Borrower
agrees to pay to the Administrative Agent on such date an amount in cash and/or
Cash Equivalents equal to such excess and the Administrative Agent shall hold
such payment as security for the obligations of the US Borrower hereunder
pursuant to a cash collateral agreement to be entered into in form and substance
satisfactory to the Administrative Agent (which shall
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<PAGE>
permit certain investments in Cash Equivalents satisfactory to the
Administrative Agent until the proceeds are applied to the secured obligations).
All repayments of Dollar Revolving Loans pursuant to this Section 4.02(A)(a)(i)
shall be applied to Acquisition Loans and Working Capital Loans in proportion to
their respective outstanding amounts.
(ii) If on any date the sum of (x) the aggregate outstanding principal
amount of Foreign Revolving Loans (after giving effect to all other repayments
thereof on such date) and (y) the Foreign Letter of Credit Outstandings on such
date exceeds the Total Foreign Revolving Loan Commitment as then in effect, the
Foreign Borrowers jointly and severally shall repay no later than the next
following Business Day the principal amount of DM Revolving Loans and/or NLG
Revolving Loans in an amount equal to such excess. If, after giving effect to
the prepayment of all outstanding Foreign Revolving Loans, the aggregate amount
of Foreign Letter of Credit Outstandings exceeds the Total Foreign Revolving
Commitment then in effect, the Foreign Borrowers jointly and severally agree to
pay to the Administrative Agent on such date an amount in cash, Cash Equivalents
and/or Foreign Cash Equivalents equal to such excess and the Administrative
Agent shall hold such payment as security for the obligations of the Foreign
Borrowers hereunder pursuant to a cash collateral agreement to be entered into
in form and substance satisfactory to the Administrative Agent (which shall
permit certain investments in Cash Equivalents and Foreign Cash Equivalents
satisfactory to the Administrative Agent until the proceeds are applied to the
secured obligations).
(iii) If, after giving effect to any repayment then being made
pursuant to Section 4.02(A)(a)(i), on any date the aggregate principal amount of
Working Capital Loans exceeds the Working Capital Sub-Limit then in effect, the
US Borrower shall repay on such date the principal of Working Capital Loans in
an aggregate amount equal to such excess.
(iv) If, after giving effect to any repayment then being made pursuant
to Section 4.02(A)(a)(i), on any date the aggregate principal amount of
Acquisition Loans exceeds the Acquisition Sub-Limit then in effect, the US
Borrower shall repay on such date the principal of Acquisition Loans in an
aggregate amount equal to such excess.
(b) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
German Borrower shall be required to repay that principal amount of DM Term
Loans, to the extent then outstanding, as is set forth opposite such date (each
such repayment, as the same may be reduced as provided in Sections 4.01 and
4.02(B), a "Scheduled Repayment"):
<TABLE>
<CAPTION>
Date Amount
- ---- ------
<S> <C>
December 31, 2000 DM4,187,500
March 31, 2001 DM4,187,500
June 30, 2001 DM4,187,500
September 30, 2001 DM4,187,500
December 31, 2001 DM8,375,000
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Date Amount
- ---- ------
<S> <C>
March 31, 2002 DM8,375,000
June 30, 2002 DM8,375,000
September 30, 2002 DM8,375,000
December 31, 2002 DM8,375,000
March 31, 2003 DM8,375,000
June 30, 2003 DM8,375,000
DM Term Loan Maturity Date DM8,375,000
</TABLE>
(c) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on the Business Day following each
date of receipt by the US Borrower and/or any of its Subsidiaries of Cash
Proceeds from any Asset Sale, an amount equal to 100% of the Net Cash Proceeds
from such Asset Sale shall be applied as a mandatory repayment of principal of
outstanding DM Term Loans and/or as a mandatory reduction to the Total Dollar
Revolving Loan Commitment and the Total Foreign Revolving Loan Commitment
pursuant to Section 4.02(B)(a), provided that such Net Cash Proceeds shall not
be required to be so applied on such date to the extent the US Borrower elects,
as hereinafter provided, to cause such Net Cash Proceeds to be reinvested in
Reinvestment Assets (such election, together with any election made pursuant to
Section 4.02(A)(d), a "Reinvestment Election"). The US Borrower may exercise
its Reinvestment Election with respect to an Asset Sale if (x) no Default or
Event of Default then exists and (y) the US Borrower delivers a Reinvestment
Notice to the Administrative Agent on the Business Day following the date of the
consummation of the respective Asset Sale, with such Reinvestment Election being
effective with respect to the Net Cash Proceeds from such Asset Sale in an
amount equal to the Anticipated Reinvestment Amount specified in such
Reinvestment Notice.
(d) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on the Business Day following each
date of receipt by the US Borrower and/or any of its Subsidiaries of Cash
Proceeds from any Recovery Event, an amount equal to 100% of the Net Insurance
Proceeds from such Recovery Event shall be applied as a mandatory repayment of
principal of outstanding DM Term Loans and/or as a mandatory reduction to the
Total Dollar Revolving Loan Commitment and the Total Foreign Revolving Loan
Commitment pursuant to Section 4.02(B)(a), provided that such Net Insurance
Proceeds shall not be required to be so applied on such date to the extent the
US Borrower elects, as hereinafter provided, to cause such Net Insurance
Proceeds to be reinvested in Reinvestment Assets. The US Borrower may exercise
its Reinvestment Election with respect to a Recovery Event if (x) no Default or
Event of Default then exists and (y) the US Borrower delivers a Reinvestment
Notice to the Administrative Agent on the Business Day following the date of the
US Borrower's or such Subsidiary's receipt of the proceeds from the respective
Recovery Event, with such Reinvestment Election being effective with respect to
the Net Insurance Proceeds from such Recovery Event in an amount equal to the
Anticipated Reinvestment Amount specified in such Reinvestment Notice.
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<PAGE>
(e) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, DM Term Loans shall be required to be
repaid, and/or the Total Dollar Revolving Loan Commitment and the Total Foreign
Revolving Loan Commitment shall be required to be permanently reduced, pursuant
to Section 4.02(B)(a), on the Reinvestment Reduction Date with respect to a
Reinvestment Election, in an amount equal to the Reinvestment Reduction Amount,
if any, with respect to such Reinvestment Election.
(f) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date of the receipt by the US
Borrower and/or any of its Subsidiaries of cash proceeds from the incurrence of
Indebtedness for borrowed money by the US Borrower and/or any of its
Subsidiaries (other than Indebtedness permitted by Section 8.04 as in effect on
the Restatement Effective Date), an amount equal to 100% of the cash proceeds
from such incurrence of such Indebtedness (net of underwriting discounts and
commissions, brokerage fees, legal costs and other reasonable costs associated
therewith) shall be applied as a mandatory repayment of principal of outstanding
DM Term Loans and/or as a mandatory reduction to the Total Dollar Revolving Loan
Commitment and the Total Foreign Revolving Loan Commitment pursuant to Section
4.02(B)(a).
(g) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each Excess Cash Payment Date, an
amount equal to 75% of the Excess Cash Flow of the US Borrower for the relevant
Excess Cash Payment Period shall be applied as a mandatory repayment of
principal of outstanding DM Term Loans and/or as a mandatory reduction to the
Total Dollar Revolving Loan Commitment and the Total Foreign Revolving Loan
Commitment pursuant to Section 4.02(B)(a); provided, however, that no such
-------- -------
repayment and/or commitment reduction shall be required pursuant to this
Section 4.02(A)(g) on any Excess Cash Payment Date if the Leverage Ratio of the
US Borrower as of the last day of such Excess Cash Payment Period is 4.25:1.00
or less and no Default or Event of Default exists at the time that such payment
or commitment reduction is otherwise required pursuant to this Section
4.02(A)(g); and provided further, that this Section 4.02(A)(g) shall cease to be
----------------
of any force or effect in the event that, after the Restatement Effective Date
and prior to March 31, 1999, the US Borrower consummates an offering of its
equity or equity-linked securities generating gross cash proceeds of at least
$50,000,000 (the "Securities").
(h) All outstanding Swingline Loans shall be repaid in full on the
Swingline Expiry Date.
(i) All outstanding Dollar Revolving Loans, DM Revolving Loans and NLG
Revolving Loans shall be repaid in full on the Revolving Loan Maturity Date.
(j) All outstanding DM Term Loans shall be repaid in full on the DM
Term Loan Maturity Date.
(k) All outstanding Loans shall be repaid in full on the date on which
a Change of Control occurs.
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<PAGE>
(B) Application:
-----------
(a) All amounts required to be applied pursuant to Sections
4.02(A)(c), 4.02(A)(d), 4.02(A)(e), 4.02(A)(f) and 4.02(A)(g) in accordance with
this Section 4.02(B)(a) shall be applied (i) first, as a mandatory repayment of
principal of outstanding DM Term Loans and (ii) second, to the extent in excess
thereof, as a mandatory reduction to the Total Dollar Revolving Loan Commitment
and the Total Foreign Revolving Loan Commitment on a pro rata basis (based on
--- ----
the then existing amounts of the Total Dollar Loan Commitment and the Total
Foreign Revolving Loan Commitment). Each mandatory repayment of DM Term Loans
required to be made pursuant to this Section 4.02(B)(a) shall be applied to
reduce the then remaining Scheduled Repayments on a pro rata basis (based on the
--- ----
then remaining unpaid principal amounts of such Scheduled Repayments after
giving effect to all prior reductions thereto).
(b) With respect to each prepayment of Loans required by this Section
4.02, the respective Borrower may designate the Types of Loans of the respective
Facility which are to be repaid, and in the case of Euro Rate Loans, the
specific Borrowing(s) pursuant to which such Loans were made, provided that (i)
--------
repayments of Eurodollar Loans pursuant to this Section 4.02 may only be made on
the last day of an Interest Period applicable thereto unless all Eurodollar
Loans with Interest Periods ending on such date of required repayment and all
Base Rate Loans have been paid in full, (ii) if any repayment of Euro Rate Loans
made pursuant to a single Borrowing shall reduce the outstanding Euro Rate Loans
made pursuant to such Borrowing to an amount less than the respective Minimum
Borrowing Amount applicable thereto, such Borrowing (x) in the case of Dollar
Revolving Loans, shall be converted at the end of the then current Interest
Period into a Borrowing of Base Rate Loans and (y) in the case of DM Loans or
NLG Revolving Loans, shall be repaid in full at the end of the then current
Interest Period (with the amount of any such repayment of DM Term Loans to be
applied pro rata to reduce the then remaining Scheduled Repayments based upon
--- ----
the then remaining amount of each Scheduled Repayment after giving effect to all
prior reductions thereto) and (iii) each prepayment of any Loans made pursuant
to a Borrowing shall be applied pro rata among such Loans. In the absence of a
--- ----
designation by the respective Borrower as described in the preceding sentence,
the Administrative Agent shall, subject to the above, make such designation in
its sole discretion with a view, but no obligation, to minimize breakage costs
owing under Section 1.11.
4.03 Method and Place of Payment. Except as otherwise specifically
---------------------------
provided herein, all payments under this Agreement or under any Note shall be
made to the Administrative Agent for the ratable account of the Banks entitled
thereto, not later than 1:00 P.M. (local time in the city of the appropriate
Payment Office) on the date when due and shall be made in (x) Dollars (or the
Dollar Equivalent in the case of Unpaid Drawings relating to a US Letter of
Credit issued in an Alternate Currency) in immediately available funds at the
appropriate Payment Office in respect of any obligation of the Borrowers under
this Agreement except as otherwise provided in the immediately following clauses
(y) and (z), (y) Deutsche Marks in immediately available funds at the
appropriate Payment Office, if such payment is made in respect of (i) principal
of or interest on DM Loans, (ii) Foreign Letters of Credit to the extent same
are denominated in Deutsche Marks, or (iii) any increased costs, indemnities or
other amounts owing with respect to
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DM Loans (or DM Term Loan Commitments or Foreign Revolving Loan Commitments) or
Foreign Letters of Credit, in the case of this clause (iii) to the extent the
respective Bank which is charging same denominates the amounts owing in Deutsche
Marks and (z) Dutch Guilders in immediately available funds at the appropriate
Payment Office, if such payment is made in respect of (i) principal of or
interest on NLG Revolving Loans, (ii) Foreign Letters of Credit to the extent
same are denominated in Dutch Guilders, or (iii) any increased costs,
indemnities or other amounts owing with respect to NLG Revolving Loans (or
Foreign Revolving Loan Commitments) or Foreign Letters of Credit, in the case of
this clause (iii) to the extent the respective Bank which is charging same
denominates the amounts owing in Dutch Guilders; it being understood that
written, telex or facsimile transmission notice by the respective Borrower to
the Administrative Agent to make a payment from the funds in the respective
Borrower's account at the respective Payment Office shall constitute the making
of such payment to the extent of such funds held in such account. Any payments
under this Agreement which are made later than 1:00 P.M. (local time in the city
of the appropriate Payment Office) on any Business Day shall be deemed to have
been made on the next succeeding Business Day. Whenever any payment to be made
hereunder shall be stated to be due on a day which is not a Business Day, the
due date thereof shall be extended to the next succeeding Business Day and, with
respect to payments of principal, interest shall be payable during such
extension at the applicable rate in effect immediately prior to such extension.
4.04 Net Payments. (a) All payments made by any Borrower hereunder
------------
or under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 4.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future taxes,
levies, imposts, duties, fees, assessments or other charges of whatever nature
now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments (but
excluding, except as provided in the second succeeding sentence, any tax imposed
on or measured by the net income or net profits of a Bank pursuant to the laws
of the jurisdiction in which it is organized or the jurisdiction in which the
principal office or applicable lending office of such Bank is located or any
subdivision thereof or therein) and all interest, penalties or similar
liabilities with respect to such non-excluded taxes, levies, imposts, duties,
fees, assessments or other charges (all such non-excluded taxes, levies,
imposts, duties, fees, assessments or other charges being referred to
collectively as "Taxes"). If any Taxes are so levied or imposed, the respective
Borrower agrees to pay the full amount of such Taxes, and such additional
amounts as may be necessary so that every payment of all amounts due under this
Agreement or under any Note, after withholding or deduction for or on account of
any Taxes, will not be less than the amount provided for herein or in such Note.
If any amounts are payable in respect of Taxes pursuant to the preceding
sentence, the respective Borrower agrees to reimburse each Bank, upon the
written request of such Bank, for taxes imposed on or measured by the net income
or net profits of such Bank pursuant to the laws of the jurisdiction in which
such Bank is organized or in which the principal office or applicable lending
office of such Bank is located or under the laws of any political subdivision or
taxing authority of any such jurisdiction in which such Bank is organized or in
which the principal office or applicable lending office of such Bank is located
and for any withholding of taxes as such Bank shall determine are payable by, or
withheld from, such Bank, in each case in respect of such amounts so paid to or
on behalf of such Bank pursuant to the preceding sentence
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<PAGE>
and in respect of any amounts paid to or on behalf of such Bank pursuant to this
sentence. The respective Borrower will furnish to the Administrative Agent
within 30 days after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by such
Borrower. Each Borrower agrees to indemnify and hold harmless each Bank, and
reimburse such Bank upon its written request, for the amount of any Taxes so
levied or imposed and paid by such Bank.
(b) Each Bank that has a Dollar Revolving Loan Commitment or
outstanding Dollar Revolving Loans and that is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) for United States
federal income tax purposes agrees to deliver to the US Borrower and the
Administrative Agent on or prior to the Restatement Effective Date, or in the
case of any such Bank that is an assignee or transferee of an interest under
this Agreement pursuant to Section 12.04 (unless the respective Bank was already
a Bank hereunder immediately prior to such assignment or transfer), on the date
of such assignment or transfer to such Bank, (i) two accurate and complete
original signed copies of Internal Revenue Service Form 4224 or 1001 (or
successor forms) certifying to such Bank's entitlement as of such date to a
complete exemption from United States withholding tax with respect to payments
to be made under this Agreement and under any Note, or (ii) if the Bank is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver
either Internal Revenue Service Form 1001 or 4224 (or successor forms) pursuant
to clause (i) above, (x) a certificate substantially in the form of Exhibit C
(any such certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate
and complete original signed copies of Internal Revenue Service Form W-8 (or
successor form) certifying to such Bank's entitlement as of such date to a
complete exemption from United States withholding tax with respect to payments
of interest to be made under this Agreement and under any Note. In addition,
each such Bank agrees that from time to time after the Restatement Effective
Date, when a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, it will deliver to
the US Borrower and the Administrative Agent two new accurate and complete
original signed copies of Internal Revenue Service Form 4224 or 1001 (or
successor forms), or Form W-8 (or successor forms) and a Section 4.04(b)(ii)
Certificate, as the case may be, and such other forms as may be required in
order to confirm or establish the entitlement of such Bank to a continued
exemption from or reduction in United States withholding tax with respect to
payments under this Agreement and any Note, or it shall immediately notify the
US Borrower and the Administrative Agent of its inability to deliver any such
Form or Certificate in which case such Bank shall not be required to deliver any
such Form or Certificate pursuant to this Section 4.04(b). Notwithstanding
anything to the contrary contained in Section 4.04(a), but subject to Section
12.04(b) and the immediately succeeding sentence, (x) the US Borrower shall be
entitled, to the extent it is required to do so by law, to deduct or withhold
income or similar taxes imposed by the United
States (or any political
subdivision or taxing authority thereof or therein) from interest, Fees or other
amounts payable hereunder for the account of any such Bank which is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) for
United States federal income tax purposes to the extent that such Bank has not
provided to the US Borrower United States Internal Revenue Service Forms that
establish a complete exemption from such deduction or withholding and (y) the US
Borrower shall not be obligated pursuant to Section 4.04(a) hereof to gross-up
payments to be made to any such Bank in respect of income or similar taxes
imposed by the United
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<PAGE>
States if (I) such Bank is not a United States person (defined as provided
above) and has not provided to the US Borrower the Internal Revenue Service
Forms provided for in the foregoing provisions of this Section 4.04(b) or (II)
in the case of a payment, other than interest, to a Bank described in clause
(ii) above, to the extent that such Forms do not establish a complete exemption
from withholding of such taxes. Notwithstanding anything to the contrary
contained in the preceding sentence or elsewhere in this Section 4.04 and except
as set forth in Section 12.04(b), the US Borrower agrees to pay any additional
amounts and to indemnify each Bank in the manner set forth in Section 4.04(a)
(without regard to the identity of the jurisdiction requiring the deduction or
withholding) in respect of any Taxes deducted or withheld by it as described in
the immediately preceding sentence as a result of any changes that are effective
after the Restatement Effective Date in any applicable law, treaty, governmental
rule, regulation, guideline or order, or in the interpretation thereof, relating
to the deducting or withholding of such Taxes.
SECTION 5. Conditions Precedent. The occurrence of the Restatement
--------------------
Effective Date and the obligation of each Bank to make each Loan and the
obligation of the Letter of Credit Issuer to issue each Letter of Credit
hereunder on and after the Restatement Effective Date are subject, at the time
of such Credit Event (except as otherwise hereinafter indicated), to the
satisfaction of the following conditions:
5.01 Execution of Agreement. On or prior to the Restatement
----------------------
Effective Date, this Agreement shall have been executed and delivered in
accordance with Section 12.10.
5.02 Notes. On the Restatement Effective Date, there shall have been
-----
delivered to the Administrative Agent for the account of each Bank that has
requested same the appropriate Note or Notes, as the case may be, executed by
the appropriate Borrower, in each case in the amount, maturity and as otherwise
provided herein.
5.03 No Default; Representations and Warranties. At the time of each
------------------------------------------
Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein and in the other Credit Documents in effect at such time shall
be true and correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such
Credit Event, unless stated to relate to a specific earlier date, in which case
such representations and warranties shall be true and correct in all material
respects as of such earlier date.
5.04 Officer's Certificate. On the Restatement Effective Date, the
---------------------
Administrative Agent shall have received a certificate dated such date signed by
the chairman, the president, any vice-president or the chief financial officer
of the US Borrower stating that all of the applicable conditions set forth in
Sections 5.03, 5.07 and 5.08 have been satisfied as of such date.
5.05 Opinion of Counsel. On the Restatement Effective Date, the
------------------
Administrative Agent shall have received from (i) Morgan Lewis & Bockius LLP,
counsel to the Credit Parties, an opinion or opinions addressed to the
Administrative Agent and each of the Banks and dated the Restatement Effective
Date, which opinion or opinions shall cover the matters contained in Exhibit D
and such other matters incident to the transactions contemplated herein as the
Administrative Agent may reasonably request and (ii) such local or foreign
counsel to the Credit
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<PAGE>
Parties, an opinion or opinions addressed to the Administrative Agent and each
of the Banks and dated the Restatement Effective Date, which opinion or opinions
shall cover such matters incident to the transactions contemplated herein as the
Administrative Agent may reasonably request.
5.06 Corporate Proceedings. (a) On the Restatement Effective Date,
---------------------
the Administrative Agent shall have received from each Credit Party a
certificate, dated the Restatement Effective Date, signed by the chairman, a
vice chairman, the president or any vice-president of such Credit Party, and
attested to by the secretary or any assistant secretary of such Credit Party, in
the form of Exhibit E with appropriate insertions, together with copies of the
Certificate of Incorporation and By-Laws, or other organizational documents, of
such Credit Party, the resolutions of such Credit Party and each of the other
documents referred to in such certificate and all of the foregoing (including
each such Certificate of Incorporation, By-Laws, resolutions and other
documents) shall be reasonably satisfactory to the Administrative Agent.
(b) On the Restatement Effective Date, all corporate, partnership,
limited liability company and legal proceedings and all instruments and
agreements in connection with the transactions contemplated by this Agreement
and the other Documents shall be reasonably satisfactory in form and substance
to the Administrative Agent, and the Administrative Agent shall have received
all information and copies of all certificates, documents and papers, including
good standing certificates and any other records of corporate proceedings and
governmental approvals, if any, which the Administrative Agent reasonably may
have requested in connection therewith, such documents and papers, where
appropriate, to be certified by proper corporate or governmental authorities.
5.07 Consummation of the Transaction. (a) On the Restatement
-------------------------------
Effective Date, the Acquisition shall have been consummated in accordance with
the Acquisition Documents and all applicable laws, and each of the material
conditions precedent to the consummation of the Acquisition shall have been
satisfied, and not waived except with the consent of the Administrative Agent
and the Required Banks, to the satisfaction of the Administrative Agent and the
Required Banks.
(b) On the Restatement Effective Date, (x) the total commitments in
respect of the Indebtedness to be Refinanced shall have been terminated, all
loans with respect thereto shall have been repaid in full (together with
interest thereon), all letters of credit issued thereunder shall have been
terminated and all other amounts (including premiums) owing with respect thereto
shall have been repaid in full and all documents in respect of the Indebtedness
to be Refinanced and all guarantees with respect thereto shall have been
terminated (except as to indemnification provisions, which may survive to the
extent provided therein) and be of no further force and effect and (y) the
creditors in respect of the Indebtedness to be Refinanced shall have terminated
and released all security interests in and Liens on the capital stock and other
assets acquired pursuant to the Acquisition, or release arrangements
satisfactory to the Administrative Agent with respect thereto shall have been
made.
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(c) On or prior to the Restatement Effective Date, there shall have
been delivered to the Administrative Agent and the Banks true and correct copies
of all Acquisition Documents and all of the terms and conditions of such
Acquisition Documents shall be in the form previously delivered to the
Administrative Agent.
(d) On the Restatement Effective Date, the Administrative Agent shall
have received evidence, in form, scope and substance reasonably satisfactory to
it, that the matters set forth in this Section 5.07 have been satisfied as of
such date.
5.08 Adverse Change, etc. (a) On the Restatement Effective Date,
--------------------
nothing shall have occurred (and neither the Required Banks nor the
Administrative Agent shall have become aware of any facts or conditions not
previously known) which the Required Banks or the Administrative Agent shall
determine (i) has had, or is reasonably likely to have, a material adverse
effect on the rights or remedies of the Banks or the Administrative Agent under
the Credit Documents or on the ability of any Credit Party to perform its
obligations under the Credit Documents or (ii) has had, or could reasonably be
expected to have, a Material Adverse Effect.
(b) On or prior to the Restatement Effective Date, all necessary
governmental (domestic and foreign) and third party approvals and/or consents in
connection with the Transaction and the other transactions contemplated by the
Documents and otherwise referred to herein or therein shall have been obtained
and remain in effect, and all applicable waiting periods with respect thereto
shall have expired without any action being taken by any competent authority
which restrains, prevents or imposes materially adverse conditions upon, the
consummation of the Transaction or the other transactions contemplated by the
Documents or otherwise referred to herein or therein. Additionally, there shall
not exist any judgment, order, injunction or other restraint issued or filed or
a hearing seeking injunctive relief or other restraint pending or notified
prohibiting or imposing materially adverse conditions upon the Transaction or
the other transactions contemplated by the Documents.
5.09 Litigation. On the Restatement Effective Date, there shall be
----------
no actions, suits or proceedings pending or threatened (a) with respect to the
Transaction, this Agreement or any other Document or (b) which the
Administrative Agent or the Required Banks shall determine has, or could
reasonably be expected to have, (i) a Material Adverse Effect or (ii) a material
adverse effect on the rights or remedies of the Banks or the Administrative
Agent under the Credit Documents or on the ability of any Credit Party to
perform its obligations under the Credit Documents.
5.10 Guaranties. (a) On the Restatement Effective Date, each US
----------
Subsidiary Guarantor shall have duly authorized, executed and delivered an
amended and restated Guaranty in the form of Exhibit F-1 (as modified, amended
or supplemented from time to time in accordance with the terms hereof and
thereof, the "US Subsidiary Guaranty") guaranteeing all of the obligations of
the US Borrower as more fully provided therein, and the US Subsidiary Guaranty
shall be in full force and effect.
(b) On the Restatement Effective Date, each US Credit Party, each
German Credit Party and each Dutch Credit Party shall have duly authorized,
executed and delivered a
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<PAGE>
Guaranty in the form of Exhibit F-2 (as amended, modified or supplemented from
time to time in accordance with the terms hereof and thereof, the "Foreign
Guaranty"), guaranteeing all of the obligations of the Foreign Borrowers as more
fully provided therein, and the Foreign Guaranty shall be in full force and
effect.
5.11 US Pledge Agreement. On the Restatement Effective Date, each US
-------------------
Credit Party shall have duly authorized, executed and delivered an amended and
restated Pledge Agreement in the form of Exhibit G, with such changes thereto,
or additional pledge agreements (or amendments thereto) entered into in
connection therewith, as foreign counsel to the Administrative Agent may suggest
in connection with the Pledged Securities issued by any Foreign Subsidiary (such
amended and restated Pledge Agreement, together with such additional pledge
agreements, as further modified, amended or supplemented from time to time in
accordance with the terms thereof and hereof, collectively, the "US Pledge
Agreement") and shall have delivered to the Collateral Agent, as pledgee
thereunder, all of the Pledged Securities referred to therein, endorsed in blank
or accompanied by executed and undated stock powers, and the US Pledge Agreement
shall be in full force and effect.
5.12 US Security Agreement. On the Restatement Effective Date, each
---------------------
US Credit Party shall have duly authorized, executed and delivered an amended
and restated Security Agreement in the form of Exhibit H (as further modified,
supplemented or amended from time to time in accordance with the terms thereof
and hereof, the "US Security Agreement") covering all of each such US Credit
Party's present and future US Security Agreement Collateral, in each case
together with:
(i) proper Financing Statements (Form UCC-1 or the equivalent) fully
executed for filing under the UCC or other appropriate filing offices of
each jurisdiction as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect the security interests purported to
be created by the US Security Agreement;
(ii) to the extent received by the US Borrower, certified copies of
Requests for Information or Copies (Form UCC-11), or equivalent reports,
listing all effective financing statements that name the US Borrower or any
Domestic Subsidiary as debtor and that are filed in the jurisdictions
referred to in clause (i) above, together with copies of such other
financing statements that name the US Borrower or any Domestic Subsidiary
as debtor (none of which shall cover the Collateral except to the extent
evidencing Permitted Liens or in respect of which the Collateral Agent
shall have received termination statements (Form UCC-3) or such other
termination statements as shall be required by local law fully executed for
filing);
(iii) evidence of the completion of all other recordings and filings
of, or with respect to, the US Security Agreement as may be necessary or,
in the reasonable opinion of the Collateral Agent, desirable to perfect the
security interests intended to be created by the US Security Agreement; and
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<PAGE>
(iv) evidence that all other actions necessary or, in the reasonable
opinion of the Collateral Agent, desirable to perfect and protect the
security interests purported to be created by the US Security Agreement
have been taken;
and the US Security Agreement shall be in full force and effect.
5.13 Financial Statements; Pro Forma Balance Sheet; Projections. On
----------------------------------------------------------
or prior to the Restatement Effective Date, the Administrative Agent shall have
received true and correct copies of the historical financial statements, the pro
---
forma financial statements and the projections referred to in Sections 6.09,
- -----
6.10(b) and 6.10(c), which historical financial statements, pro forma balance
--- -----
sheet and projections shall be in form and substance reasonably satisfactory to
the Administrative Agent and the Required Banks.
5.14 Solvency Certificate; Insurance Certificates. On the Restatement
--------------------------------------------
Effective Date, the US Borrower shall have delivered to the Administrative
Agent:
(i) a solvency certificate from the chief financial officer of the US
Borrower in the form of Exhibit I; and
(ii) certificates of insurance complying with the requirements of
Section 7.03 for the business and properties of the US Borrower and its
Subsidiaries, and naming the Collateral Agent as an additional insured and
as loss payee, and stating that such insurance shall not be canceled
without at least 30 days prior written notice by the respective insurer to
the Collateral Agent (or such shorter period of time as a particular
insurance company generally provides).
5.15 Payment of Fees, etc. (a) On the Restatement Effective Date,
---------------------
all interest and Fees accrued (and not theretofore paid) under the Existing
Credit Agreement shall be paid in full, and all other costs, fees and expenses
owing to any of the Existing Banks or the Administrative Agent under the
Existing Credit Agreement (including pursuant to Section 1.11 thereof) shall be
paid (whether or not such amounts are otherwise required to be paid at such time
pursuant to the Existing Credit Agreement). Furthermore, on the Restatement
Effective Date, all costs, fees and expenses, and all other compensation
contemplated by this Agreement, in each case due to the Administrative Agent or
the Banks (including, without limitation, legal fees and expenses) shall have
been paid to the extent due.
(b) On the Restatement Effective Date, all Interest Periods with
respect to any outstanding Existing Revolving Loans shall have expired in
accordance with the terms thereof or shall have been terminated by the US
Borrower.
5.16 Florimex Commercial Paper Program. On the Restatement Effective
---------------------------------
Date, the US Borrower shall have paid, or shall have caused the German Borrower
and the Dutch Borrower to pay, in cash into an escrow account in respect of the
Florimex Commercial Paper Program all amounts necessary to repay in full all
outstanding amounts under the Florimex Commercial Paper Program by December 15,
1998.
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5.17 Notice of Borrowing; Letter of Credit Request. The
---------------------------------------------
Administrative Agent shall have received a Notice of Borrowing satisfying the
requirements of Section 1.03(a) with respect to each incurrence of DM Term
Loans, Dollar Revolving Loans, DM Revolving Loans or NLG Revolving Loans, as the
case may be. BTCo shall have received the notice satisfying the requirements of
Section 1.03(b)(i) with respect to each incurrence of Swingline Loans. The
Administrative Agent and the Letter of Credit Issuer shall have received a
Letter of Credit Request satisfying the requirements of Section 2.02 with
respect to each issuance of a Letter of Credit.
The occurrence of the Restatement Effective Date and the acceptance of
the benefits of each Credit Event shall constitute a representation and warranty
by the respective Borrower to the Administrative Agent and each of the Banks
that all of the applicable conditions specified above exist as of the date of
such Credit Event. All of the certificates, legal opinions and other documents
and papers referred to in Section 5, unless otherwise specified, shall be
delivered to the Administrative Agent at the Notice Office for the account of
each of the Banks and, except for the Notes, in sufficient counterparts for each
of the Banks and shall be reasonably satisfactory in form and substance to the
Administrative Agent.
SECTION 6. Representations, Warranties and Agreements. In order to
------------------------------------------
induce the Banks to enter into this Agreement and to make the Loans and issue
and/or participate in the Letters of Credit provided for herein, each Borrower
makes the following representations, warranties and agreements as to itself and
as to each of its Subsidiaries (to the extent provided herein) with the Banks,
in each case after giving effect to the Restatement Effective Date and all of
which shall survive the execution and delivery of this Agreement, the making of
the Loans and the issuance of the Letters of Credit.
6.01 Status. Each of the Credit Parties (i) is a duly organized and
------
validly existing corporation, partnership or limited liability company, as the
case may be, and is in good standing, in each case under the laws of the
jurisdiction of its organization, and has the corporate, partnership or limited
liability company power and authority, as the case may be, to own its property
and assets and to transact the business in which it is engaged and presently
proposes to engage and (ii) is duly qualified and is authorized to do business
and is in good standing in all jurisdictions where it is required to be so
qualified and where the failure to be so qualified would have a Material Adverse
Effect.
6.02 Power and Authority. Each Credit Party has the corporate,
-------------------
partnership or limited liability company power and authority, as the case may
be, to execute, deliver and carry out the terms and provisions of each of the
Documents to which it is a party and has taken all necessary corporate,
partnership or limited liability company action, as the case may be, to
authorize the execution, delivery and performance of each of the Documents to
which it is a party. Each Credit Party has duly executed and delivered each
Document to which it is a party and each such Document constitutes the legal,
valid and binding obligation of such Credit Party enforceable in accordance with
its terms, except to the extent that the enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
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<PAGE>
generally affecting creditors' rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law).
6.03 No Violation. Neither the execution, delivery or performance by
------------
any Credit Party of the Documents to which it is a party nor compliance by them
with the terms and provisions thereof, nor the consummation of the transactions
contemplated therein, (i) will contravene any applicable provision of any law,
statute, rule or regulation, or any order, writ, injunction or decree of any
court or governmental instrumentality, (ii) will conflict or be inconsistent
with or result in any breach of, any of the terms, covenants, conditions or
provisions of, or constitute a default under, or (other than pursuant to the
Security Documents) result in the creation or imposition of (or the obligation
to create or impose) any Lien upon any of the property or assets of such Credit
Party pursuant to the terms of any material indenture, mortgage, deed of trust,
agreement or other instrument to which such Credit Party is a party or by which
it or any of its property or assets are bound or to which it may be subject or
(iii) will violate any provision of the Certificate of Incorporation or By-Laws
(or other organizational document), as the case may be, of such Credit Party.
6.04 Litigation. There are no actions, suits or proceedings pending
----------
or threatened, with respect to the US Borrower or any of its Subsidiaries, (i)
that have, or that are reasonably likely to have, a Material Adverse Effect or
(ii) that have, or that are reasonably likely to have, a material adverse effect
on the rights or remedies of the Banks or on the ability of any Credit Party to
perform its obligations to the Banks under the Credit Documents.
6.05 Use of Proceeds; Margin Regulations. (a) The proceeds of all
------------------------------------
DM Term Loans shall be utilized on the Restatement Effective Date (i) to
finance, in part, the Acquisition (it being understood and agreed that no part
of the DM Term Loans may be used to finance the acquisition of the Dutch Credit
Parties or any direct or indirect parent company of the Dutch Credit Parties)
and the Refinancing and (ii) to pay certain fees and expenses relating to the
Transaction.
(b) The proceeds of all Working Capital Loans and Swingline Loans
shall be utilized for the general corporate and working capital purposes of the
US Borrower and its Subsidiaries (it being understood and agreed that such
purposes shall include the repayment of working capital indebtedness of entities
that become Subsidiaries of the US Borrower that is outstanding at the time of
the acquisition thereof pursuant to a Permitted Acquisition).
(c) The proceeds of all Acquisition Loans shall be utilized to make
Permitted Acquisitions; provided that up to, but no more than, $50,000,000 of
--------
Acquisition Loans may be utilized on the Restatement Effective Date (i) to
finance, in part, the Acquisition and the Refinancing and (ii) to pay certain
fees and expenses relating to the Transaction.
(d) The proceeds of all DM Revolving Loans shall be used for the
general corporate and working capital purposes of the German Borrower and its
Subsidiaries.
(e) The proceeds of all NLG Revolving Loans shall be used for the
general corporate and working capital purposes of the Dutch Borrower and its
Subsidiaries.
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<PAGE>
(f) No part of any Credit Event (or the proceeds thereof) will be
used to purchase or carry any Margin Stock or to extend credit for the purpose
of purchasing or carrying any Margin Stock. Neither the making of any Loan
hereunder, nor the use of the proceeds thereof, nor the occurrence of any other
Credit Event, will violate or be inconsistent with the provisions of Regulation
T, U or X of the Board of Governors of the Federal Reserve System.
(g) On the Restatement Effective Date, (i) $137,063,819.96 in
principal amount of Acquisition Loans are outstanding and (ii) $2,936,180.04 in
principal amount of Working Capital Loans are outstanding.
6.06 Approvals. Except as have been obtained or made and which
---------
remain in full force and effect, no order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any foreign or domestic governmental or public body or authority,
or any subdivision thereof or any other Person, is required to authorize or is
required in connection with (i) the execution, delivery and performance of any
Document and the consummation of the transactions contemplated therein or (ii)
the legality, validity, binding effect or enforceability of any Document.
6.07 Investment Company Act. Neither the US Borrower nor any of its
----------------------
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
6.08 Public Utility Holding Company Act. Neither the US Borrower nor
----------------------------------
any of its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
6.09 True and Complete Disclosure. All factual information (taken as
----------------------------
a whole) heretofore or contemporaneously furnished by or on behalf of any Credit
Party in writing to the Administrative Agent or any Bank (including, without
limitation, all information contained in the Documents) for purposes of or in
connection with this Agreement or any transaction contemplated herein (including
the Transaction) is, and all other such factual information (taken as a whole)
hereafter furnished by or on behalf of any such Persons in writing to the
Administrative Agent or any Bank will be, true and accurate in all material
respects on the date as of which such information is dated or certified and not
incomplete by omitting to state any material fact necessary to make such
information (taken as a whole) not misleading at such time in light of the
circumstances under which such information was provided. The projections
(including those delivered to the Administrative Agent on September 10, 1998)
and pro forma financial information contained in such materials are based on
--- -----
good faith estimates and assumptions believed by the US Borrower to be
reasonable at the time made, it being recognized by the Banks that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
from the projected results. There is no fact known to the US Borrower or any of
its Subsidiaries which would have a Material Adverse Effect, which has not been
disclosed herein or in such other
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documents, certificates and statements furnished to the Administrative Agent for
use in connection with the transactions contemplated hereby.
6.10 Financial Condition; Financial Statements. (a) On and as of
-----------------------------------------
the Restatement Effective Date, on a pro forma basis after giving effect to the
--- -----
execution, delivery and performance of this Agreement and the other Documents
and the consummation of the transactions contemplated herein and therein and to
all Indebtedness incurred, and to be incurred, and Liens created, and to be
created, by each Credit Party in connection therewith, and with respect to each
Borrower on a stand-alone basis and the US Borrower and its Subsidiaries taken
as a whole (x) the sum of their assets, at a fair valuation, will exceed their
debts, (y) they have not incurred nor intend to, nor believe that they will,
incur debts beyond their ability to pay such debts as such debts mature and (z)
they will have sufficient capital with which to conduct their business. For
purposes of this Section 6.10, "debt" means any liability on a claim, and
"claim" means (i) right to payment whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured; or (ii) right to
an equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
(b) The consolidated balance sheets of the US Borrower and its
Subsidiaries as at December 31, 1997 and June 30, 1998, as the case may be, and
the related consolidated statements of shareholders' equity, operations and cash
flows of the US Borrower and its Subsidiaries for the fiscal year and six-month
period ended on such date, as the case may be, which, in the case of such
financial statements for the fiscal year ended December 31, 1997, have been
examined by Pricewaterhouse Coopers LLP, and the pro forma (after giving effect
--- -----
to the Transaction and the other transactions contemplated hereby) consolidated
balance sheet of the US Borrower and its Subsidiaries as at June 30, 1998 and
the related consolidated statements of shareholders' equity, operations and cash
flows for the six-month period ended June 30, 1998, copies of which have
heretofore been furnished to each Bank, present fairly the financial position of
the US Borrower and its Subsidiaries at the dates of said statements and the
results for the periods covered thereby (or, in the case of the pro forma
--- -----
financial statements, present a good faith estimate of the consolidated pro
---
forma financial condition and results of the US Borrower and its Subsidiaries at
- -----
the date thereof and/or for the period covered thereby). All such financial
statements (other than the aforesaid pro forma financial statements) have been
--- -----
prepared in accordance with GAAP consistently applied except to the extent
provided in the notes to said financial statements.
(c) The consolidated, unaudited interim financial statements
incorporating Florimex Worldwide, Florimex USA and Florimex Canada, as a whole,
and the related statement of income for the period from July 1, 1997 to and
including June 30, 1998, copies of which have heretofore been furnished to each
Bank, present fairly the consolidated financial position of such Persons and
their Subsidiaries at the date of said statements and the results for the period
covered thereby. All such financial statements have been prepared in accordance
with GAAP, consistently applied except for the absence of footnotes.
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<PAGE>
(d) After giving effect to the Transaction (and assuming that same
occurred prior to December 31, 1997), nothing has occurred since December 31,
1997 that has had or could reasonably be expected to have a Material Adverse
Effect.
(e) Except as fully reflected in the financial statements described
in Sections 6.10(b) and (c) or in the footnotes thereto and the Indebtedness
incurred under this Agreement, there were as of the Restatement Effective Date
(and after giving effect to any Loans made on such date), no material Contingent
Obligation, contingent liability or liability for taxes or any long-term lease
or unusual forward or long-term commitment, including interest rate or currency
swap or exchange transactions, with respect to the US Borrower or any of its
Subsidiaries which either individually or in the aggregate would be material to
any Borrower on a stand-alone basis or to the US Borrower and its Subsidiaries
taken as a whole, except as incurred in the ordinary course of business
consistent with past practices subsequent to June 30, 1998.
6.11 Security Interests. On and after the Restatement Effective
------------------
Date, each of the Security Documents creates, as security for the obligations
purported to be secured thereby, a valid and enforceable perfected security
interest in and Lien on all of the Collateral subject thereto, superior to and
prior to the rights of all third Persons and subject to no other Liens (except
that the Security Agreement Collateral may be subject to the security interests
evidenced by Permitted Liens relating thereto and each Mortgaged Property may be
subject to the Permitted Encumbrances relating thereto), in favor of the
Collateral Agent (or such other trustee as may be required and desired under
local law), and the Collateral Agent, for the benefit of the Secured Creditors,
has a fully perfected lien on, and security interest in, all such Collateral.
No filings or recordings (other than such filings or recordings as are necessary
in connection with Pledged Securities issued by any Foreign Subsidiary, which
the US Borrower will, or will cause its Subsidiaries to, make when and as
required pursuant to this Agreement and the other Credit Documents) are required
in order to perfect (or maintain the perfection or priority of) the security
interests created under any Pledge Agreement.
6.12 Tax Returns and Payments. Each of the US Borrower and each of
------------------------
its Subsidiaries has filed all United States federal and state income tax
returns and all other material tax returns, domestic and foreign, required to be
filed by it (giving effect to any filing extension obtained in connection
therewith) and has paid all material taxes and assessments payable by it which
have become due, except for those contested in good faith and adequately
disclosed and fully provided for on the financial statements of the US Borrower
and its Subsidiaries in accordance with GAAP. The US Borrower and each of its
Subsidiaries have at all times paid, or have provided adequate reserves (in the
good faith judgment of the management of the US Borrower) for the payment of,
all United States federal, state and foreign income taxes applicable for all
prior fiscal years and for the current fiscal year to date. There is no
material action, suit, proceeding, investigation, audit or claim now pending or,
to the knowledge of any Borrower, threatened by any authority regarding any
taxes relating to the US Borrower or any of its Subsidiaries. As of the
Restatement Effective Date, neither the US Borrower nor any of its Subsidiaries
has entered into an agreement or waiver or been requested to enter into an
agreement or waiver extending any statute of limitations relating to the payment
or collection of taxes of the US Borrower or any of its Subsidiaries, or is
aware of any circumstances that would
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<PAGE>
cause the taxable years or other taxable periods of the US Borrower or any of
its Subsidiaries not to be subject to the normally applicable statute of
limitations. Neither the US Borrower nor any of its Subsidiaries will incur any
Taxes in connection with the Transaction, except such Taxes as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
6.13 Compliance with Certain Employee Benefit Laws. (a) Except as
---------------------------------------------
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect: each Plan (and each related trust, insurance contract
or fund) is in compliance with its terms and with all applicable laws,
including, without limitation, ERISA and the Code; each Plan (and each related
trust, if any) which is intended to be qualified under Section 401(a) of the
Code has received a determination letter from the Internal Revenue Service to
the effect that it meets the requirements of Sections 401(a) and 501(a) of the
Code; no Reportable Event has occurred; no Plan which is a multiemployer plan
(as defined in Section 4001(a)(3) of ERISA) is insolvent or in reorganization;
no Plan has an Unfunded Current Liability; no Plan which is subject to Section
412 of the Code or Section 302 of ERISA has an accumulated funding deficiency,
within the meaning of such sections of the Code or ERISA, or has applied for or
received a waiver of an accumulated funding deficiency or an extension of any
amortization period, within the meaning of Section 412 of the Code or Section
303 or 304 of ERISA; all contributions required to be made with respect to a
Plan have been timely made; neither the US Borrower nor any Subsidiary of the US
Borrower nor any ERISA Affiliate has incurred any liability (including any
indirect, contingent or secondary liability) to or on account of a Plan pursuant
to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212
of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or expects to incur any
liability under any of the foregoing sections with respect to any Plan; no
condition exists which presents a risk to the US Borrower or any Subsidiary of
the US Borrower or any ERISA Affiliate of incurring a liability to or on account
of a Plan pursuant to the foregoing provisions of ERISA and the Code; no
proceedings have been instituted to terminate or appoint a trustee to administer
any Plan which is subject to Title IV of ERISA; no action, suit, proceeding,
hearing, audit or investigation with respect to the administration, operation or
the investment of assets of any Plan (other than routine claims for benefits) is
pending, expected or threatened; using actuarial assumptions and computation
methods consistent with Part 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of the US Borrower and its Subsidiaries and its ERISA Affiliates to
all Plans which are multiemployer plans (as defined in Section 4001(a)(3) of
ERISA) in the event of a complete withdrawal therefrom, as of the close of the
most recent fiscal year of each such Plan ended prior to the date of the most
recent Credit Event, could not result in any liability against the US Borrower
or any of its Subsidiaries; each group health plan (as defined in Section 607(1)
of ERISA or Section 4980B(g)(2) of the Code) which covers or has covered
employees or former employees of the US Borrower, any Subsidiary of the US
Borrower or any ERISA Affiliate has at all times been operated in compliance
with the provisions of Part 6 of subtitle B of Title I of ERISA and Section
4980B of the Code; no lien imposed under the Code or ERISA on the assets of the
US Borrower or any Subsidiary of the US Borrower or any ERISA Affiliate exists
or is likely to arise on account of any Plan; and the US Borrower and its
Subsidiaries do not maintain or contribute to any employee welfare benefit plan
(as defined in Section 3(1) of ERISA) which provides benefits to retired
employees or other former employees (other than as required by
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<PAGE>
Section 601 of ERISA) or any employee pension benefit plan (as defined in
Section 3(2) of ERISA) the obligations with respect to which could result in a
Material Adverse Effect.
(b) Each Foreign Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities, except in
each case where the failure to so maintain any such Foreign Pension Plan is not
reasonably likely to have a Material Adverse Effect. Neither the US Borrower nor
any of its Subsidiaries has incurred any material obligation in connection with
the termination of or withdrawal from any Foreign Pension Plan. The present
value of the accrued benefit liabilities (whether or not vested) under each
Foreign Pension Plan, determined as of the end of the US Borrower's most
recently ended fiscal year on the basis of actuarial assumptions, each of which
is reasonable, did not exceed the current value of the assets of such Foreign
Pension Plan allocable to such benefit liabilities to an extent which is
reasonably likely to have a Material Adverse Effect.
6.14 Ownership; Subsidiaries. On the Restatement Effective Date, the
-----------------------
corporations, partnerships and limited liability companies listed on Annex III
are all of the Subsidiaries of the US Borrower. Annex III correctly sets forth,
as of the Restatement Effective Date, the percentage ownership (direct and
indirect) of the US Borrower in each class of capital stock or other equity
interests of each of its Subsidiaries and also identifies the direct owner
thereof.
6.15 Intellectual Property. Each of the US Borrower and each of its
---------------------
Subsidiaries owns or holds a valid license to use all the patents, trademarks,
permits, service marks, trade names, technology, know-how, copyrights, licenses,
franchises and formulas, or rights with respect to the foregoing, that are used
in the operation of the business of the US Borrower and each of its Subsidiaries
as presently conducted and as proposed to be conducted and are material to such
business.
6.16 Compliance with Statutes, etc. The US Borrower and each of its
------------------------------
Subsidiaries are in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property (including applicable statutes, regulations, orders and
restrictions relating to environmental standards and controls), except such
noncompliances as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
6.17 Environmental Matters. (a) The US Borrower and each of its
---------------------
Subsidiaries have complied with all applicable Environmental Laws and the
requirements of any permits issued under such Environmental Laws. There are no
pending or, to the best knowledge of any Borrower, past or threatened
Environmental Claims against the US Borrower or any of its Subsidiaries or any
Real Property at any time owned, leased or operated by the US Borrower or any of
its Subsidiaries. There are no facts, circumstances, conditions or occurrences
concerning the business or operations of the US Borrower or any of its
Subsidiaries or any Real Property at any time owned, leased or operated by the
US Borrower or any of its Subsidiaries or, to the best
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<PAGE>
knowledge of any Borrower, any property adjoining or in the vicinity of any such
Real Property that could reasonably be expected (i) to form the basis of an
Environmental Claim against the US Borrower or any of its Subsidiaries or any
currently owned, leased or operated Real Property of the US Borrower or any of
its Subsidiaries or (ii) to cause any such currently owned, leased or operated
Real Property to be subject to any material restrictions on the ownership,
occupancy, use or transferability of such Real Property by the US Borrower or
any of its Subsidiaries under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported to or from, any Real Property at any time
owned, leased or operated by the US Borrower or any of its Subsidiaries where
such generation, use, treatment or storage has violated or could reasonably be
expected to violate any Environmental Law. Hazardous Materials have not at any
time been Released on or from any Real Property at any time owned, leased or
operated by the US Borrower or any of its Subsidiaries. There are not now any
underground storage tanks located on any Real Property owned, leased or operated
by the US Borrower or any of its Subsidiaries.
(c) Notwithstanding anything to the contrary in this Section 6.17,
the representations made in this Section 6.17 shall only be untrue if the
aggregate effect of all failures, noncompliances, Environmental Claims,
Hazardous Materials, Releases and presence of underground storage tanks, in each
case of the types described above, could reasonably be expected to have a
Material Adverse Effect.
6.18 Real Properties. All Real Property owned or leased by the US
---------------
Borrower or any of its Subsidiaries as of the Restatement Effective Date, and
the nature of the interest therein, is correctly set forth in Annex IV. The US
Borrower and each of its Subsidiaries have good and marketable title to, or a
validly subsisting leasehold interest in, all material properties owned or
leased by them, including all Real Property reflected in Annex IV and in the
financial statements referred to in Sections 6.10(b) and (c), free and clear of
all Liens, other than Permitted Liens.
6.19 Labor Relations. Neither the US Borrower nor any of its
---------------
Subsidiaries is engaged in any unfair labor practice that could reasonably be
expected to have a Material Adverse Effect. There is (i) no unfair labor
practice complaint pending against the US Borrower or any of its Subsidiaries
or, to the best knowledge of any Borrower, threatened against any of them,
before the National Labor Relations Board, and no grievance or arbitration
proceeding arising out of or under any collective bargaining agreement is so
pending against the US Borrower or any of its Subsidiaries or, to the best
knowledge of any Borrower, threatened against any of them, (ii) no strike, labor
dispute, slowdown or stoppage pending against the US Borrower or any of its
Subsidiaries or, to the best knowledge of any Borrower, threatened against the
US Borrower or any of its Subsidiaries, (iii) to the best knowledge of each
Borrower, no union representation question existing with respect to the
employees of the US Borrower or any of its Subsidiaries and, to the best
knowledge of the US Borrower, no union organizing activities are taking place,
and (iv) no payments are due and no circumstances exist which might make any
payment due by the US Borrower or any of its Subsidiaries under the provisions
of any law, statute, rule or regulation (relating to the US Borrower's or any of
its Subsidiaries' labor
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<PAGE>
practices) or any order, writ, injunction or decree (relating to the US
Borrower's or any of its Subsidiaries' labor practices) of any court or
governmental instrumentality, except (with respect to any matter specified in
clause (i), (ii), (iii) or (iv) above, either individually or in the aggregate)
such as could not reasonably be expected to have a Material Adverse Effect.
6.20 Indebtedness. Annex V sets forth a true and complete list of
------------
all Indebtedness of the US Borrower and its Subsidiaries as of the Restatement
Effective Date and which is to remain outstanding after giving effect to the
Transaction (excluding the Loans and Letters of Credit, the "Existing Debt"), in
each case showing the aggregate principal amount thereof and the name of the
respective borrower and any other entity which directly or indirectly guaranteed
such debt.
6.21 Other Documents. All representations and warranties set forth
---------------
in the Acquisition Documents were true and correct in all material respects on
the date on which such representations and warranties were made (or deemed made)
and shall be true and correct in all material respects on and as of the
Restatement Effective Date as if such representations and warranties were made
on and as of such date.
6.22 Year 2000. All Information Systems and Equipment are either
---------
Year 2000 Compliant, or the US Borrower will use commercially reasonable efforts
to reprogram or remedy, or complete any other corrective action (including any
internal testing) with respect to, such Information Systems and Equipment by
September 30, 1999 to make same Year 2000 Compliant, except where the failure to
do so could not reasonably be expected to have a Material Adverse Effect.
Further, to the extent that such reprogramming/remediation and testing action is
required, the cost thereof, as well as the cost of the reasonably foreseeable
consequences of failure to become Year 2000 Compliant, to the US Borrower and
its Subsidiaries (including, without limitation, reprogramming errors and the
failure of other systems or equipment) will not result in a Default, an Event of
Default or a Material Adverse Effect.
SECTION 7. Affirmative Covenants. Each Borrower hereby covenants and
---------------------
agrees that as of the Restatement Effective Date and, thereafter for so long as
this Agreement is in effect and until the Total Commitment has terminated, no
Letters of Credit or Notes are outstanding and the Loans and Unpaid Drawings (in
each case together with interest therein), Fees and all other Obligations
incurred hereunder, are paid in full:
7.01 Information Covenants. The respective Borrower or Borrowers
---------------------
will furnish to each Bank:
(a) Annual Financial Statements. Within 90 days after the close of
---------------------------
each fiscal year of the US Borrower, the consolidated balance sheet of the
US Borrower and its Subsidiaries as at the end of such fiscal year and the
related consolidated statements of operations and stockholders' equity and
of cash flows for such fiscal year and setting forth comparative figures
for the preceding fiscal year and comparable budgeted figures for such
fiscal year and certified by the chief financial officer or other
Authorized Officer of the US Borrower that such statements fairly present
the financial condition of the US Borrower and its Subsidiaries, as of the
dates indicated and the results of their operations
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<PAGE>
and changes in their cash flows for the periods indicated and examined by
independent certified public accountants of recognized national standing as
shall be acceptable to the Administrative Agent, whose opinion shall not be
qualified as to the scope of audit or as to the status of the US Borrower
and its Subsidiaries as a going concern, together with a certificate of
such accounting firm stating that in the course of its regular audit of the
business of the US Borrower and its Subsidiaries, which audit was conducted
in accordance with GAAP, no Default or Event of Default which has occurred
and is continuing has come to their attention or, if such a Default or
Event of Default has come to their attention a statement as to the nature
thereof (it being understood that delivery of the US Borrower's annual
report, as filed with the SEC on Form 10-K, shall be adequate to comply
with the requirements of this Section 7.01(a)).
(b) Quarterly Financial Statements. Within 45 days after the close
------------------------------
of each of the first three quarterly accounting periods in each fiscal year
of the US Borrower, the consolidated balance sheet of the US Borrower and
its Subsidiaries as at the end of such quarterly accounting period and the
related consolidated statements of operations and stockholders' equity and
of cash flows for such quarterly accounting period, and for the elapsed
portion of the fiscal year ended with the last day of such quarterly
accounting period, all of which shall be in reasonable detail and certified
by the chief financial officer or other Authorized Officer of the US
Borrower that they fairly present the financial condition of the US
Borrower and its Subsidiaries as of the dates indicated and the results of
their operations and changes in their cash flows for the periods indicated,
subject to normal year-end audit adjustments (it being understood that
delivery of the US Borrower's quarterly financial statements, as filed with
the SEC on Form 10-Q, shall be adequate to comply with the requirements of
this Section 7.01(b)).
(c) Budgets, etc. Not more than 60 days after the commencement of
-------------
each fiscal year of the US Borrower, budgets of the US Borrower and its
Subsidiaries in form reasonably satisfactory to the Administrative Agent
(including, in any event, budgeted statements of income and sources and
uses of cash and balance sheets) for (x) such fiscal year prepared in
detail and (y) each of the five years immediately following such fiscal
year prepared in summary form, in each case as customarily prepared by
management for its internal use setting forth, with appropriate discussion,
the principal assumptions upon which such budgets are based. Together with
each delivery of financial statements pursuant to Sections 7.01(a) and (b),
a comparison of the current year to date financial results (other than in
respect of the balance sheets included therein) against the budgets
required to be submitted pursuant to clause (x) of this Section 7.01(c)
shall be presented.
(d) Officer's Certificates. At the time of the delivery of the
----------------------
financial statements provided for in Sections 7.01(a) and (b), a
certificate of the chief financial officer, controller or chief accounting
officer of the US Borrower to the effect that no Default or Event of
Default exists or, if any Default or Event of Default does exist,
specifying the nature and extent thereof, which certificate shall set forth
(x) the calculations (in reasonable detail) required to establish whether
the US Borrower and its Subsidiaries were in compliance with the provisions
of Sections 8.05, 8.09 and 8.10, as at the end of such
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<PAGE>
fiscal quarter or year, as the case may be, (y) the Leverage Ratio of the
US Borrower (with detailed computation thereof) as at the end of such
fiscal quarter or year, as the case may be, and (z) to the extent delivered
with the financial statements pursuant to Section 7.01(a), the amount of,
and the calculations (in reasonable detail) to establish the amount of, the
Excess Cash Flow of the US Borrower for the relevant Excess Cash Payment
Period (although the computation required by this clause (z) shall not be
required to be delivered to the extent that the Securities have been issued
before March 31, 1999).
(e) Notice of Default or Litigation. Promptly, and in any event
-------------------------------
within five Business Days, after any officer of any Borrower or any of its
Subsidiaries obtains knowledge thereof, notice of (x) the occurrence of any
event which constitutes a Default or an Event of Default, which notice
shall specify the nature thereof, the period of existence thereof and what
action the US Borrower, the German Borrower and/or the Dutch Borrower
proposes to take with respect thereto and (y) the commencement of, or
threat of, or any significant development in, any litigation or
governmental proceeding pending against the US Borrower or any of its
Subsidiaries which is reasonably likely to have a Material Adverse Effect.
(f) Auditors' Reports. Promptly upon receipt thereof, a copy of each
-----------------
report or "management letter" submitted to the US Borrower or any of its
Subsidiaries by its independent accountants in connection with any annual,
interim or special audit made by them of the books of the US Borrower or
any of its Subsidiaries.
(g) Environmental Matters. Promptly after obtaining knowledge of any
---------------------
of the following, written notice of:
(i) any pending or threatened Environmental Claim against the US
Borrower or any of its Subsidiaries or any Real Property owned,
operated or leased by the US Borrower or any of its Subsidiaries
which, if successful, would be reasonably likely to have a Material
Adverse Effect;
(ii) any condition or occurrence that (x) results in material
noncompliance by the US Borrower or any of its Subsidiaries with any
applicable Environmental Law, or (y) could reasonably be anticipated
to form the basis of a material Environmental Claim against the US
Borrower or any of its Subsidiaries or any Real Property owned,
operated or leased by the US Borrower or any of its Subsidiaries with
respect to, in the case of both clauses (x) and (y) above, (A) any
Mortgaged Property or (B) to the extent such noncompliance or
Environmental Claim is material to the US Borrower or to any other
Credit Party, any other Real Property;
(iii) any condition or occurrence on any Real Property owned,
operated or leased by the US Borrower or any of its Subsidiaries that
could reasonably be anticipated to cause such Real Property to be
subject to any restrictions on the ownership, occupancy, use or
transferability by the US Borrower or its Subsidiary, as the case may
be, of its interest in such Real Property under any
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<PAGE>
Environmental Law in the event such restrictions apply with respect to
a Mortgaged Property or, to the extent such restrictions are material
to the US Borrower or any other Credit Party, with respect to any
other Real Property; and
(iv) the taking of any material removal or remedial action in
response to the actual or alleged presence of any Hazardous Material
on any Real Property owned, operated or leased by the US Borrower or
any of its Subsidiaries.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial action
and the US Borrower's or its respective Subsidiary's response thereto. In
addition, the US Borrower and its Subsidiaries agree to provide the Banks
with copies of all material communications with any government or
governmental agency relating to Environmental Laws, all material
communications with any person relating to Environmental Claims, and such
detailed reports of any Environmental Claim as may reasonably be requested
by the Administrative Agent or the Required Banks.
(h) Permitted Acquisition Reports. Within 90 days after the date of
-----------------------------
the consummation of a Permitted Acquisition in which the Acquired Business
had annual revenues of $15,000,000 or more for the most recently ended
fiscal year of such Acquired Business, an audit of such Acquired Business
prepared by the US Borrower's independent certified public accountants.
(i) Other Information. Promptly upon transmission thereof, copies of
-----------------
any filings and registrations with, and reports to, the SEC by the US
Borrower or any of its Subsidiaries and copies of all financial statements,
proxy statements, notices and reports as the US Borrower or any of its
Subsidiaries shall send to the holders of their publicly held capital stock
(in each case to the extent not theretofore delivered to the Banks pursuant
to this Agreement) and, with reasonable promptness, such other information
or documents (financial or otherwise) as the Administrative Agent on its
own behalf or on behalf of any Bank may reasonably request from time to
time.
7.02 Books, Records and Inspections. Each Borrower will, and will
------------------------------
cause each of its Subsidiaries to, permit, upon notice to the chief financial
officer or other Authorized Officer of such Borrower, officers and designated
representatives of the Administrative Agent or the Required Banks to visit and
inspect any of the properties or assets of such Borrower and any of its
Subsidiaries in whomsoever's possession, and to examine the books of account of
such Borrower and any of its Subsidiaries and discuss the affairs, finances and
accounts of such Borrower and of any of its Subsidiaries with, and be advised as
to the same by, their officers and independent accountants, all at such
reasonable times and intervals and to such reasonable extent as the
Administrative Agent or the Required Banks may desire.
7.03 Maintenance of Property; Insurance. (a) Each Borrower will,
----------------------------------
and will cause each of its Subsidiaries to, at all times maintain in full force
and effect insurance with reputable and solvent insurers in such amounts,
covering such risks and liabilities and with such deductibles or self-insured
retentions as are in accordance with normal industry practice. The US
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<PAGE>
Borrower will furnish on the Restatement Effective Date and annually thereafter
with the financial statements delivered pursuant to Section 7.01(a) to the
Administrative Agent a summary of the insurance carried in respect of the US
Borrower and its Subsidiaries and the assets of the US Borrower and its
Subsidiaries together with certificates of insurance and other evidence of such
insurance, if any, naming the Collateral Agent as an additional insured (in the
case of liability policies) and/or loss payee (in the case of casualty
policies), to the extent of its interests therein.
(b) If the US Borrower or any of its Subsidiaries shall fail to
maintain all insurance in accordance with this Section 7.03, or if the US
Borrower or any of its Subsidiaries shall fail to so endorse and deposit all
policies or certificates with respect thereto, the Administrative Agent and/or
the Collateral Agent shall have the right (but shall be under no obligation) to
procure such insurance and the US Borrower agrees to reimburse the
Administrative Agent or the Collateral Agent as the case may be, for all costs
and expenses of procuring such insurance.
7.04 Payment of Taxes. Each Borrower will pay and discharge, and
----------------
will cause each of its Subsidiaries to pay and discharge, all taxes, assessments
and governmental charges or levies imposed upon it or upon its income or
profits, or upon any properties belonging to it, prior to the date on which
material penalties attach thereto, and all lawful claims for sums that have
become due and payable which, if unpaid, might become a Lien not otherwise
permitted under Section 8.03(a) or charge upon any properties of any Borrower or
any of its Subsidiaries, provided that in any event no Borrower nor any of its
Subsidiaries shall be required to pay any such tax, assessment, charge, levy or
claim which is being contested in good faith and by proper proceedings if it has
maintained adequate reserves with respect thereto in accordance with GAAP.
7.05 Corporate Franchises. Each Borrower will do, and will cause
--------------------
each of its Subsidiaries to do, or cause to be done, all things necessary to
preserve and keep in full force and effect its existence and its rights,
franchises and authority to do business to the extent material to any Credit
Party or to the US Borrower and the other Credit Parties taken as a whole,
provided that any transaction permitted by Section 8.02 will not constitute a
- --------
breach of this Section 7.05.
7.06 Compliance with Statutes, etc. Each Borrower will, and will
------------------------------
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property other than those the non-compliance
with which could not have a Material Adverse Effect or a material adverse effect
on the ability of the Credit Parties, in the aggregate, to perform their
obligations under the Credit Documents.
7.07 Good Repair. Each Borrower will, and will cause each of its
-----------
Subsidiaries to, ensure that its material properties and equipment used or
useful in its business are kept in good repair, working order and condition,
normal wear and tear excepted, and, subject to Section 8.05, that from time to
time there are made in such properties and equipment all needful and proper
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<PAGE>
repairs, renewals, replacements, extensions, additions, betterments and
improvements thereto, to the extent and in the manner useful or customary for
companies in similar businesses.
7.08 Compliance with Environmental Laws. (a) Except where the
----------------------------------
failure to do so could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect, each Borrower: (i) will comply,
and will cause each of its Subsidiaries to comply, with all Environmental Laws
applicable to the operation of their business and the ownership or use of any
Real Property; (ii) will pay, and will cause each of its Subsidiaries to pay,
all costs and expenses incurred in such compliance; (iii) will keep or cause to
be kept all Real Properties owned, operated or leased by such Borrower or any of
its Subsidiaries free and clear of any material Liens imposed pursuant to such
Environmental Laws; and (iv) will not generate, use, treat, store, release or
dispose of, or permit the generation, use, treatment, storage, release or
disposal of, Hazardous Materials on any Real Property, or transport or permit
the transportation of Hazardous Materials to or from any such Real Property
except in compliance with applicable law. If any Borrower or any of its
Subsidiaries, or any tenant or occupant of any Real Property, causes or permits
any intentional or unintentional act or omission resulting in the material
presence or release of any Hazardous Material (except in compliance with
applicable Environmental Laws), such Borrower agrees to undertake, and/or to
cause any of its Subsidiaries, tenants or occupants to undertake, at their sole
expense, any clean up, removal, remedial or other action required pursuant to
Environmental Laws to remove and clean up any Hazardous Materials from any Real
Property, except where the failure to do so could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, and
provided that in any event no Borrower nor any of its Subsidiaries shall be
required to comply with any such order or directive which is being contested in
good faith and by proper proceedings so long as it has maintained adequate
reserves with respect to such compliance to the extent required in accordance
with GAAP.
(b) At the written request of the Administrative Agent, at any time
when any Borrower is required to give the Administrative Agent notice under
Section 7.01(g) of any event specified in Section 7.01(g), the US Borrower will
provide, at the US Borrower's sole cost and expense, an environmental site
assessment report concerning any Real Property the subject of such notice,
prepared by an environmental consulting firm reasonably satisfactory to the
Administrative Agent, indicating the presence or absence of Hazardous Materials
and the potential cost of any removal or remedial action in connection with any
Hazardous Materials on such Real Property. If the US Borrower fails to provide
the same 90 days after such request was made, the Administrative Agent may order
the same, and the US Borrower shall grant and hereby grants to the
Administrative Agent and its agents access to such Real Property and
specifically grants the Administrative Agent an irrevocable non-exclusive
license, subject to the rights of tenants, to undertake such an assessment, all
at the US Borrower's expense.
7.09 ERISA. As soon as possible and, in any event, within 10 days
-----
after the US Borrower, any Subsidiary of the US Borrower or any ERISA Affiliate
knows or has reason to know of the occurrence of any of the following events,
the US Borrower will deliver to each of the Banks a certificate of the chief
financial officer or other Authorized Officer of the US Borrower setting forth
the full details as to such occurrence and the action, if any, that the US
Borrower, such Subsidiary or such ERISA Affiliate is required or proposes to
take, together with any notices required or proposed to be given to or filed
with or by the US Bor-
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<PAGE>
rower, the Subsidiary, the ERISA Affiliate, the PBGC, a Plan participant or the
Plan administrator with respect thereto: that a Reportable Event has occurred
(except to the extent that the US Borrower has previously delivered to the Banks
a certificate and notices (if any) concerning such event pursuant to the next
clause hereof); that a contributing sponsor (as defined in Section 4001(a)(13)
of ERISA) of a Plan subject to Title IV of ERISA is subject to the advance
reporting requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
.64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected
to occur with respect to such Plan within the following 30 days; that an
accumulated funding deficiency, within the meaning of Section 412 of the Code or
Section 302 of ERISA, has been incurred or an application may be or has been
made for a waiver or modification of the minimum funding standard (including any
required installment payments) or an extension of any amortization period under
Section 412 of the Code or Section 303 or 304 of ERISA with respect to a Plan;
that any contribution required to be made with respect to a Plan or Foreign
Pension Plan has not been timely made; that a Plan has been or may be
terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA; that a Plan has an Unfunded Current Liability; that proceedings may be or
have been instituted to terminate or appoint a trustee to administer a Plan
which is subject to Title IV of ERISA; that a proceeding has been instituted
pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan;
that the US Borrower, any Subsidiary of the US Borrower or any ERISA Affiliate
will or may incur any material liability (including any indirect, contingent or
secondary liability) to or on account of the termination of or withdrawal from a
Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with
respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or
Section 409, 502(i) or 502(l) of ERISA or with respect to a group health plan
(as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under
Section 4980B of the Code; or that the US Borrower or any Subsidiary of the US
Borrower may incur any material liability pursuant to any employee welfare
benefit plan (as defined in Section 3(1) of ERISA) that provides benefits to
retired employees or other former employees (other than as required by Section
601 of ERISA) or any Plan or any Foreign Pension Plan. At the request of any
Bank, the US Borrower will deliver to such Bank (i) a complete copy of the
annual report (on Internal Revenue Service Form 5500-series) of each Plan
(including, to the extent required, the related financial and actuarial
statements and opinions and other supporting statements, certifications,
schedules and information) required to be filed with the Internal Revenue
Service. In addition to any certificates or notices delivered to the Banks
pursuant to the first sentence hereof, copies of any records, documents or other
information required to be furnished to the PBGC, and any material notices
received by the US Borrower, any Subsidiary of the US Borrower or any ERISA
Affiliate with respect to any Plan or Foreign Pension Plan shall be delivered to
the Banks no later than 10 days after the date such records, documents and/or
information has been furnished to the PBGC or such notice has been received by
the US Borrower, the Subsidiary or the ERISA Affiliate, as applicable.
7.10 End of Fiscal Years; Fiscal Quarters. The US Borrower will, for
------------------------------------
financial reporting purposes, cause (i) each of its, and each of its
Subsidiaries', fiscal years to end on December 31 of each year and (ii) each of
its, and each of its Subsidiaries', fiscal quarters to end
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<PAGE>
on March 31, June 30, September 31, and December 31 of each year, provided,
--------
however, that certain of the Persons acquired pursuant to the Acquisition may
- -------
have a fiscal year which ends on June 30.
7.11 Additional Security; Further Assurances. (a) Within 90 days
---------------------------------------
following the Restatement Effective Date, each German Credit Party shall have
duly authorized, executed and delivered a Pledge Agreement in form and substance
reasonably satisfactory to the Administrative Agent (as modified, amended or
supplemented from time to time in accordance with the terms thereof and hereof,
the "German Pledge Agreement") and shall have taken all actions required thereby
to perfect the security interests created thereunder.
(b) Within 90 days following the Restatement Effective Date, each
German Credit Party shall have duly authorized, executed and delivered a
Security Agreement in form and substance reasonably satisfactory to the
Administrative Agent (as modified, amended or supplemented from time to time in
accordance with the terms thereof and hereof, the "German Security Agreement"),
together with:
(i) evidence of the completion of all recordings and filings of,
or with respect to, the German Security Agreement as may be necessary or,
in the reasonable opinion of the Collateral Agent, desirable to perfect the
security interests intended to be created by the German Security Agreement;
and
(ii) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect and
protect the security interests purported to be created by the German
Security Agreement have been taken.
(c) Within 90 days following the Restatement Effective Date, each
Dutch Credit Party shall have duly authorized, executed and delivered a Pledge
Agreement in form and substance reasonably satisfactory to the Administrative
Agent (as modified, amended or supplemented from time to time in accordance with
the terms thereof and hereof, the "Dutch Pledge Agreement") and shall have taken
all actions required thereby to perfect the security interests created
thereunder.
(d) Within 90 days following the Restatement Effective Date, each
Dutch Credit Party shall have duly authorized, executed and delivered a Security
Agreement in form and substance reasonably satisfactory to the Administrative
Agent (as modified, amended or supplemented from time to time in accordance with
the terms thereof and hereof, the "Dutch Security Agreement"), together with:
(i) evidence of the completion of all recordings and filings of, or
with respect to, the Dutch Security Agreement as may be necessary or, in
the reasonable opinion of the Collateral Agent, desirable to perfect the
security interest intended to be created by the Dutch Security Agreement;
and
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<PAGE>
(ii) evidence that all other actions necessary or, in the reasonable
opinion of the Collateral Agent, desirable to perfect and protect the
security interest purported to be created by the Dutch Security Agreement
have been taken.
(e) Within 90 days following the Restatement Effective Date, the
Collateral Agent shall have received with respect to the Existing US Mortgaged
Properties, fully executed counterparts of amendments (the "Mortgage
Amendments"), in form and substance reasonably satisfactory to the Collateral
Agent, to each of the Existing US Mortgages, together with evidence that
counterparts of each of the Mortgage Amendments have been delivered to the title
company insuring the Lien on the Existing US Mortgages for recording in all
places to the extent necessary or in the reasonable opinion of the Collateral
Agent, desirable, to effectively maintain a valid and enforceable first priority
mortgage lien on the Existing US Mortgaged Properties in favor of the Collateral
Agent (or such other trustee as may be required or desired under local law) for
the benefit of the Secured Creditors, and, to the extent requested by the
Collateral Agent, the Collateral Agent shall have received either endorsements
to the existing Mortgage Policies or new Mortgage Policies, in either case
assuring the Collateral Agent that each Existing US Mortgage is a valid and
enforceable first priority mortgage lien on the respective Existing US Mortgaged
Properties, free and clear of all defects and encumbrances except Permitted
Encumbrances related thereto.
(f) Within 90 days following the Restatement Effective Date, the
Collateral Agent shall have received with respect to the New US Mortgaged
Properties:
(i) fully executed counterparts of mortgages, deeds of trust or deeds
to secure debt, in each case in form and substance reasonably satisfactory
to the Administrative Agent (the "New US Mortgages"), which New US
Mortgages shall cover such of the Material Real Property owned or leased by
the US Credit Parties (after giving effect to the occurrence of the
Restatement Effective Date) as shall be designated on Annex IV (the "New US
Mortgaged Properties"), together with evidence that counterparts of the New
US Mortgages have been delivered to the title insurance company insuring
the Lien of the New US Mortgages for recording in all places to the extent
necessary or, in the reasonable opinion of the Collateral Agent, desirable,
to effectively create a valid and enforceable first priority mortgage lien
on each New US Mortgaged Property in favor of the Collateral Agent (or such
other trustee as may be required or desirable under local law) for the
benefit of the Secured Creditors;
(ii) a mortgagee policy (or a binding commitment with respect
thereto) on each such New US Mortgaged Property (the "New US Mortgage
Policies") issued by a title insurer reasonably satisfactory to the
Administrative Agent in amounts reasonably satisfactory to the
Administrative Agent assuring the Collateral Agent that the New US
Mortgages on such New US Mortgaged Properties are valid and enforceable
first priority mortgage liens on the respective New US Mortgaged
Properties, free and clear of all defects and encumbrances except Permitted
Encumbrances related thereto and such New Mortgage Policies shall otherwise
be in form and substance reasonably satisfactory to the Administrative
Agent, and shall include, as appropriate, an endorsement for future
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<PAGE>
advances under this Agreement and the Notes, shall not include an exception
for mechanics' liens, shall provide for affirmative insurance and such
reinsurance as the Administrative Agent may reasonably request and shall
provide for any other matter that the Administrative Agent may reasonably
request;
(iii) to the extent available, a recent survey, in form and
substance reasonably satisfactory to the Administrative Agent, of each such
New US Mortgaged Property, certified by a licensed professional surveyor
reasonably satisfactory to the Administrative Agent; and
(iv) one or more opinions of counsel reasonably satisfactory to the
Administrative Agent, addressed to the Administrative Agent, the Collateral
Agent and each of the Banks, from such counsel reasonably satisfactory to
the Administrative Agent as the Administrative Agent may reasonably
request, which opinions shall cover certain of the matters (but not title
or lien priority) relating to the security interests granted pursuant to
the US Security Documents and such other matters incident to the
transactions contemplated herein as the Administrative Agent may reasonably
request.
(g) Within 90 days after the Restatement Effective Date, the
Collateral Agent shall have received one or more additional US Pledge Agreements
with respect to the capital stock of any Dutch Credit Party or German Credit
Party owned by a US Credit Party, together with evidence that all other actions
required thereunder have been taken to perfect the security interests created in
the applicable Pledged Securities.
(h) At the time any US Credit Party shall acquire after the Original
Effective Date an ownership interest in any Material Real Property (or at the
time of the acquisition or creation, after the Original Effective Date, of any
US Subsidiary Guarantor having an ownership interest in any Material Real
Property), the US Borrower shall give prompt notice thereof to the
Administrative Agent and the Banks. Upon the reasonable request of the
Administrative Agent or the Required Banks, the US Borrower shall, or shall
cause such US Subsidiary Guarantor to, execute a mortgage, deed to secure debt
or similar document with respect to such Material Real Property (all such
mortgages, deeds and similar documents, "Additional US Mortgages") reasonably
satisfactory in form and substance to the Administrative Agent and such
Additional US Mortgages shall constitute valid and enforceable perfected
mortgages superior to and prior to the rights of all third Persons and subject
to no other Liens except for Permitted Liens. The Additional US Mortgages or
instruments related thereto shall be duly recorded or filed in such manner and
in such places as are required by law to establish, perfect, preserve and
protect the Liens in favor of the Collateral Agent required to be granted
pursuant to the Additional US Mortgages and all taxes, fees and other charges
payable in connection therewith shall be paid in full.
(i) Within 90 days after the Restatement Effective Date, each of the
US Borrower's Foreign Subsidiaries (other than the German Credit Parties and the
Dutch Credit Parties party to the Foreign Guaranty on the Restatement Effective
Date) shall have duly authorized, executed and delivered a counterpart of the
Foreign Guaranty (or a guaranty in
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<PAGE>
substantially the form of the Foreign Guaranty guaranteeing the obligations of
the Foreign Borrowers hereunder). Notwithstanding anything to the contrary
contained in this Section 7.11(i), no Foreign Subsidiary shall be required to
execute a counterpart of the Foreign Guaranty (or such other Guaranty) to the
extent that same would be contrary to, or inconsistent with local practice
under, any law applicable to such Foreign Subsidiary, in each case as such
determination is reasonably agreed to by the Administrative Agent.
(j) The US Borrower will cause each of its Foreign Subsidiaries to
grant to the Collateral Agent such security interests and mortgages in such
assets and properties of the US Borrower's Foreign Subsidiaries as are not
covered by the original Foreign Security Documents, and as may be reasonably
requested from time to time by the Administrative Agent or the Required Banks
(collectively, the "Additional Foreign Security Documents"). All such security
interests and mortgages shall be granted pursuant to documentation reasonably
satisfactory in form and substance to the Administrative Agent and shall
constitute valid and enforceable perfected security interests and mortgages
superior to and prior to the rights of all third Persons and subject to no other
Liens except for Permitted Liens related thereto. The Additional Foreign
Security Documents or instruments related thereto shall have been duly recorded
or filed in such manner and in such places as are required by law to establish,
perfect, preserve and protect the Liens in favor of the Collateral Agent
required to be granted pursuant to the Additional Foreign Security Documents and
all taxes, fees and other charges payable in connection therewith shall have
been paid in full. Notwithstanding anything to the contrary contained in this
Section 7.11(j), no Foreign Subsidiary shall be required to (x) grant a mortgage
on any Real Property unless such Real Property constitutes a Material Real
Property and (y) grant a security interest in any of its assets or properties to
the extent that same would be contrary to, or inconsistent with local practice
under, any law applicable to such Foreign Subsidiary, in each case as such
determination is reasonably agreed to by the Administrative Agent.
(k) Each Borrower will, and will cause each other Credit Party to, at
the expense of such Borrower, make, execute, endorse, acknowledge, file and/or
deliver to the Collateral Agent from time to time such vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates, real property surveys, reports
and other assurances or instruments and take such further steps relating to the
collateral covered by any of the Security Documents as the Collateral Agent may
reasonably require. Furthermore, each Borrower shall cause to be delivered to
the Collateral Agent such opinions of counsel, real estate appraisals satisfying
the requirements of applicable law, mortgage policies, title insurance and other
related documents as may be reasonably requested by the Collateral Agent to
assure itself that this Section 7.11 has been complied with.
(l) To the extent not delivered by the US Borrower to the
Administrative Agent pursuant to Section 5.07(b) on the Restatement Effective
Date, within 30 days following the Restatement Effective Date, the US Borrower
shall have delivered to the Administrative Agent such additional releases of
security interests (including, without limitation, Form UCC-3 termination
statements) in, and Liens (other than such Liens permitted under Section 8.03)
on, the assets owned by the US Borrower and its Subsidiaries as the
Administrative Agent may reasonably request, which releases shall be in form and
substance reasonably satisfactory to the
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<PAGE>
Administrative Agent and shall evidence the Refinancing that occurred on the
Restatement Effective Date.
(m) To the extent not delivered by the US Borrower to the
Administrative Agent on the Restatement Effective Date pursuant to Section
5.12(ii), within 30 days following the Restatement Effective Date, the US
Borrower shall have delivered to the Administrative Agent certified copies of
Requests for Information or Copies (Form UCC-11), or equivalent reports listing
all effective financing statements that name the US Borrower or any Domestic
Subsidiary as debtor and that are filed in the jurisdictions referred to in
Section 5.12(ii), together with copies of such other financing statements that
name the US Borrower or any Domestic Subsidiary as debtor, none of which shall
cover any of the Collateral except to the extent evidencing Permitted Liens,
provided, to the extent that any such financing statements evidence Liens not
permitted under Section 8.03, the US Borrower will, and will cause each of its
Subsidiaries to, promptly terminate any such financing statements and the
underlying Liens or security interests related thereto.
(n) Each Borrower agrees that each action required above by Sections
7.11(h), (j) and (k) shall be completed as soon as possible, but in no event
later than 90 days after such action is requested to be taken by the
Administrative Agent or the Required Banks.
7.12 Foreign Subsidiaries Security. If following a change in the
-----------------------------
relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for the
US Borrower reasonably acceptable to the Administrative Agent does not within 30
days after a request from the Administrative Agent or the Required Banks deliver
evidence, in form and substance mutually satisfactory to the Administrative
Agent and the US Borrower, with respect to any Foreign Subsidiary which has not
already had all of its stock pledged pursuant to the US Pledge Agreement that
(i) a pledge of 66-2/3% or more of the total combined voting power of all
classes of capital stock of such Foreign Subsidiary entitled to vote, (ii) the
entering into by such Foreign Subsidiary of a security agreement in
substantially the form of the US Security Agreement securing the obligations of
the US Borrower or of such Foreign Subsidiary under the US Subsidiary Guaranty
and (iii) the entering into by such Foreign Subsidiary of a guaranty in
substantially the form of the US Subsidiary Guaranty guaranteeing the
obligations of the US Borrower, in any such case could reasonably be expected to
cause (I) the undistributed earnings of such Foreign Subsidiary as determined
for United States federal income tax purposes to be treated as a deemed dividend
to such Foreign Subsidiary's United States parent for United States federal
income tax purposes which would not be substantially offset by a foreign tax
credit or other similar benefit of such United States parent or (II) other
material adverse United States federal income tax consequences to the Credit
Parties, then in the case of a failure to deliver the evidence described in
clause (i) above, that portion of such Foreign Subsidiary's outstanding capital
stock so issued by such Foreign Subsidiary not theretofore pledged pursuant to
the US Pledge Agreement shall be pledged to the Collateral Agent for the benefit
of the Secured Creditors pursuant to the US Pledge Agreement (or another pledge
agreement in substantially similar form, if needed), and in the case of a
failure to deliver the evidence described in clause (ii) above, such Foreign
Subsidiary shall execute and deliver the US Security Agreement (or another
security agreement
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<PAGE>
in substantially similar form, if needed) and the US Pledge Agreement (or
another pledge agreement in substantially similar form, if needed), granting the
Collateral Agent for the benefit of the Secured Creditors a security interest in
all of such Foreign Subsidiary's assets and securing the Obligations of the US
Borrower under the Credit Documents and under any Interest Rate Protection
Agreement or Other Hedging Agreement and, in the event the US Subsidiary
Guaranty shall have been executed by such Foreign Subsidiary, the obligations of
such Foreign Subsidiary thereunder, and in the case of a failure to deliver the
evidence described in clause (iii) above, such Foreign Subsidiary shall execute
and deliver the US Subsidiary Guaranty (or another guaranty in substantially
similar form, if needed), guaranteeing the Obligations of the US Borrower under
the Credit Documents and under any Interest Rate Protection Agreement or Other
Hedging Agreement, in each case to the extent that the entering into the
respective security documents or guaranty is permitted by the laws of the
respective foreign jurisdiction and with all documents delivered pursuant to
this Section 7.12 to be in form and substance reasonably satisfactory to the
Administrative Agent.
7.13 Year 2000. Each Borrower will use commercially reasonable
---------
efforts to ensure that its, and each of its Subsidiaries', Information Systems
and Equipment are at all times after September 30, 1999 Year 2000 Compliant,
except insofar as the failure to do so will not result in a Material Adverse
Effect, and, at any time after September 30, 1999, shall notify the
Administrative Agent and each Bank promptly upon detecting any failure of the
Information Systems and Equipment to be Year 2000 Compliant, except to the
extent any such failure could not reasonably be expected to have a Material
Adverse Effect. In addition, each Borrower shall provide the Administrative
Agent and each Bank with such information about its year 2000 computer readiness
(including, without limitation, information as to contingency plans, budgets and
testing results) as the Administrative Agent or such Bank shall reasonably
request, it being understood and agreed that unless a Default or an Event of
Default then exists, such requests may not be made more than once every three
months.
7.14 Certain German Mergers. On or prior to March 31, 1999, the
----------------------
German Borrower shall have caused each of its direct and indirect German
Subsidiaries acquired pursuant to the Acquisition to be merged with and into the
German Borrower, with the German Borrower being the survivor of each such
merger.
SECTION 8. Negative Covenants. Each Borrower hereby covenants and
------------------
agrees that as of the Restatement Effective Date, and thereafter for so long as
this Agreement is in effect and until the Total Commitment has terminated, no
Letters of Credit or Notes are outstanding and the Loans and Unpaid Drawings (in
each case together with interest thereon), Fees and all other Obligations
incurred hereunder, are paid in full:
8.01 Changes in Business. The US Borrower will not permit at any
-------------------
time the business activities conducted by the US Borrower and its Subsidiaries
(other than immaterial activities) to include activities other than those
currently conducted on the Restatement Effective Date and any additional
businesses relating to the provision of products and services (including
delivery and transport services) for florists and activities incidental to the
foregoing.
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8.02 Consolidation, Merger, Sale or Purchase of Assets, etc. The US
-------------------------------------------------------
Borrower will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of (or agree to do
any of the foregoing at any future time) all or any part of its property or
assets (other than inventory, obsolete or worn-out equipment or excess
equipment, in each case in the ordinary course of business), or enter into any
partnerships, joint ventures or sale-leaseback transactions, or purchase or
otherwise acquire (in one or a series of related transactions) any part of the
property or assets (other than purchases or other acquisitions of inventory,
materials and equipment in the ordinary course of business) of any Person,
except that the following shall be permitted:
(a) Consolidated Capital Expenditures by the US Borrower and its
Subsidiaries to the extent not in violation of Section 8.05, and the US
Borrower and its Subsidiaries may enter into operating leases as lessee
with respect to real or personal property in the ordinary course of
business and otherwise in compliance with this Agreement;
(b)(i) the US Credit Parties (other than Specified Subsidiaries) may
transfer assets among themselves and (ii) the Non-US Credit Parties (other
than Specified Subsidiaries) may transfer assets among themselves and to
the US Credit Parties, provided that (x) the German Credit Parties may not
--------
transfer more than $500,000 of assets in the aggregate in any fiscal year
to Non-US Credit Parties other than another German Credit Party and/or the
Dutch Credit Parties and (y) the Dutch Credit Parties may not transfer more
than $500,000 of assets in the aggregate in any fiscal year to Non-US
Credit Parties other than another Dutch Credit Party and/or the German
Credit Parties but only to the extent (in the case of preceding clauses (x)
and (y)) that such German Credit Parties and/or Dutch Credit Parties
receiving such assets have executed the German Security Agreement or the
Dutch Security Agreement, as the case may be;
(c) the advances, investments and loans permitted pursuant to Section
8.06;
(d) the US Borrower and its Subsidiaries may sell or discount, in
each case without recourse, accounts receivables arising in the ordinary
course of business, but only in connection with the compromise or
collection thereof;
(e) the US Borrower and its Subsidiaries may sell or otherwise
dispose of assets for cash, provided that the aggregate net cash proceeds
from all such sales pursuant to this clause (e) shall not exceed $7,500,000
in any fiscal year of the US Borrower;
(f) the US Borrower and the US Subsidiary Guarantors may acquire
assets or the capital stock of any Person, including by merger of the
Acquired Business with a US Subsidiary Guarantor so long as the survivor of
such merger is, or becomes at such time, a US Subsidiary Guarantor (any
such acquisition, a "Permitted Acquisition" and the date of consummation of
any such Permitted Acquisition, an "Acquisition Date"), provided that (i)
the sum of the aggregate cash and Cash Equivalents plus the aggregate
market value of all other consideration paid by the US Borrower and its
Subsidiaries (including any Indebtedness assumed by the US Borrower or any
Subsidiary of the US Borrower
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<PAGE>
and any stock issued by the US Borrower) in connection with any Acquired
Business acquired in such Permitted Acquisition shall not exceed
$25,000,000 (or, in the case where the total consideration exceeds
$25,000,000, at least 90% of the total consideration (including any
Indebtedness assumed by the US Borrower and/or any Subsidiary of the US
Borrower) paid for an Acquired Business consists of non-redeemable common
stock of the US Borrower, provided that in no event shall the total
consideration paid by the US Borrower or any Subsidiary of the US Borrower
in connection with any such Permitted Acquisition exceed $250,000,000);
(ii) at least one-third of the sum of the aggregate cash and Cash
Equivalents plus the aggregate market value of all other consideration paid
in respect of all Permitted Acquisitions consummated during any six month
period shall have been paid in the form of non-redeemable common stock of
the US Borrower; (iii) no Default or Event of Default exists at the time of
such acquisition or will exist as a result thereof; (iv) all of the
representations and warranties set forth in this Agreement are true and
correct in all material respects, both before and after giving effect to
any such Permitted Acquisition, (v) in respect of each Permitted
Acquisition (or of all Permitted Acquisitions closing on the same date),
the US Borrower shall have delivered to the Administrative Agent an
officer's certificate executed by an Authorized Officer of the US Borrower
demonstrating (in reasonable detail) that (A) the Acquired Business the
subject of such Permitted Acquisition (or Permitted Acquisitions), when
combined with all other Acquired Businesses the subject of Permitted
Acquisitions consummated during the six month period ending on the
respective Acquisition Date, would have been in compliance with Sections
8.09 and 8.10 as applicable to such Acquired Businesses on a combined
basis, in each case, for the Test Period of the US Borrower then most
recently ended and (B) on a pro forma basis determined as if such Permitted
--- -----
Acquisition (or Permitted Acquisitions) had been consummated on the first
day of the last Test Period of the US Borrower then ended, the US Borrower
would have been in compliance with Sections 8.09 and 8.10 for such Test
Period; (vi) Pricewaterhouse Coopers LLP or such other independent
certified public accountants of recognized national standing reasonably
acceptable to the Administrative Agent shall have prepared an unaudited
report of such Acquired Business (with such report to be in form and detail
as is reasonably acceptable to the Administrative Agent), (vii) each such
Acquired Business shall be in a line of business permitted under Section
8.01, and (viii) each such Acquired Business shall be located in the United
States or an Approved Country, provided that in no event shall the total
--------
consideration paid in respect of all Permitted Acquisitions of Acquired
Businesses located in Approved Countries exceed $10,000,000 in the
aggregate;
(g) the Credit Parties may acquire assets of or the capital stock of
or other ownership interest in any Person engaged in a line of business
permitted under Section 8.01 so long as the aggregate cash and Cash
Equivalents plus the aggregate market value of all other consideration paid
in connection with all such acquisitions consummated after the Restatement
Effective Date shall not exceed $1,000,000;
(h)(x) any Domestic Subsidiary (other than a Specified Subsidiary) of
the US Borrower may be merged with or into, or be dissolved or liquidated
into, the US Borrower or any US Subsidiary Guarantor (other than a
Specified Subsidiary), provided
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<PAGE>
that (i) in the case of any such merger, dissolution or liquidation
involving the US Borrower, the resulting entity must be the US Borrower
and, in all other cases, the resulting entity must be a US Subsidiary
Guarantor, and (ii) a Specified Subsidiary may be merged with or into, or
be dissolved or liquidated into, a US Subsidiary Guarantor so long as the
Indebtedness (if any) of, and/or Liens (if any) on the property of, such
Specified Subsidiary would be permitted to be incurred by such US
Subsidiary Guarantor under the provisions hereof at the time of such
merger, dissolution or consolidation, and (y) any Foreign Subsidiary (other
than a Specified Subsidiary) may be merged with or into, or be dissolved or
liquidated into, either Foreign Borrower or any other Non-US Credit Party,
provided that (i) with respect to any such merger, dissolution or
consolidation involving a Foreign Borrower, such Foreign Borrower must be
the resulting entity, (ii) with respect to any such merger, dissolution or
consolidation involving a German Credit Party or a Dutch Credit Party, such
German Credit Party or Dutch Credit Party must be the surviving entity, and
in all other cases, the Non-US Credit Party must be the resulting entity,
and (iii) if any stock of any Foreign Subsidiary involved in such merger,
dissolution or liquidation was pledged under the US Pledge Agreement prior
to such merger, dissolution or consolidation, at least 65% of each class of
capital stock of the surviving Foreign Subsidiary shall be pledged under
the US Pledge Agreement; and
(i) the Acquisition shall be permitted.
To the extent the Required Banks waive the provisions of this Section 8.02 with
respect to the sale of any Collateral, or any Collateral is sold as permitted by
this Section 8.02 (and such Collateral is released (or permitted to be released)
from the Liens created by the respective Security Document), such Collateral in
each case shall be sold free and clear of the Liens created by the Security
Documents and the Administrative Agent shall take such actions (including,
without limitation, directing the Collateral Agent to take such actions) as the
Administrative Agent deems appropriate, or as the US Borrower may reasonably
request, in connection therewith.
8.03 Liens. The US Borrower will not, and will not permit any of its
-----
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible) of the US Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable or notes) or assign any right
to receive income, except:
(a) Liens for taxes not yet due or Liens for taxes being contested in
good faith and by appropriate proceedings for which adequate reserves have
been established in accordance with GAAP;
(b) Liens in respect of property or assets of the US Borrower and its
Subsidiaries imposed by law which were incurred in the ordinary course of
business and which have not arisen to secure Indebtedness for borrowed
money, such as carriers', warehousemen's
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<PAGE>
and mechanics' Liens, statutory landlord's Liens, and other similar Liens
arising in the ordinary course of business, and which either (x) do not in
the aggregate materially detract from the value of such property or assets
or materially impair the use thereof in the operation of the business of
the US Borrower or any of its Subsidiaries or (y) are being contested in
good faith by appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or asset subject to such
Lien;
(c) Liens created by or pursuant to this Agreement and the Security
Documents;
(d) Liens in existence on the Restatement Effective Date, and which
are to continue in effect after the Restatement Effective Date which are
listed, and the property subject thereto described, in Annex VI, without
giving effect to any extensions or renewals thereof ("Permitted Liens");
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 9.09;
(f) Liens incurred or deposits made (x) in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security obligations, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business (exclusive of
obligations in respect of the payment for borrowed money) and (y) to secure
the performance of leases of Real Property to the extent incurred or made
in the ordinary course of business consistent with past practices;
(g) licenses, leases or subleases granted to third Persons not
interfering in any material respect with the business of the US Borrower or
any of its Subsidiaries;
(h) Liens arising from precautionary UCC financing statements
regarding operating leases permitted by this Agreement;
(i) Liens created pursuant to Capital Leases permitted pursuant to
Section 8.04(b);
(j) Liens arising pursuant to purchase money mortgages or security
interests securing Indebtedness representing the purchase price (or
financing of the purchase price within 90 days after the respective
purchase) of assets acquired after the Restatement Effective Date, provided
--------
that (i) any such Liens attach only to the assets so purchased, (ii) the
Indebtedness secured by any such Lien does not exceed 100%, nor is less
than 80%, of the lesser of the fair market value or the purchase price of
the property being purchased at the time of the incurrence of such
Indebtedness, and (iii) the Indebtedness secured thereby is permitted to be
incurred pursuant to Section 8.04(b);
(k) Liens existing with respect to specific assets at the time
acquired pursuant to a Permitted Acquisition in compliance with Section
8.02(f) (and not to all such assets
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<PAGE>
generally), provided that (x) any such Liens, and the Indebtedness secured
thereby, were not created at the time of or in contemplation of the
acquisition of such assets by the US Borrower or its Subsidiaries, (y) the
Indebtedness secured by any such Lien does not exceed 100% of the fair
market value of the asset to which such Lien relates, determined at the
time of the acquisition of such asset, and (z) the Indebtedness secured
thereby is permitted by Section 8.04(e);
(l) Permitted Encumbrances; and
(m) Liens arising in the ordinary course of business in favor of
customs and revenue authorities which secure payment of customs duties in
connection with the importation of goods.
8.04 Indebtedness. The US Borrower will not, and will not permit any
------------
of its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(b) Capitalized Lease Obligations and Indebtedness incurred pursuant
to purchase money Liens permitted by Section 8.03(j), provided, that the
sum of all such Capitalized Lease Obligations outstanding at any time plus
the aggregate principal amount of all such purchase money Indebtedness
outstanding at such time shall not exceed $10,000,000;
(c) Existing Debt listed on Annex V, but only to the respective date,
if any, set forth on such Annex V with respect to any particular issue of
Existing Debt, without giving effect to any subsequent extension, renewal
or refinancing thereof;
(d) Indebtedness between and among the Credit Parties (other than
Specified Subsidiaries) to the extent permitted by Section 8.06(i);
(e) Indebtedness of a Person outstanding at the time it is first
acquired by the US Borrower or any of its Subsidiaries in a Permitted
Acquisition pursuant to Section 8.02(f), provided that (i) any such
Indebtedness was not created at the time of or in contemplation of such
acquisition and (ii) the aggregate principal amount of all Indebtedness
permitted pursuant to this clause (e) shall not exceed $7,500,000 at any
time outstanding;
(f) Indebtedness of (x) the German Borrower to the US Borrower
pursuant to Section 8.06(j), (y) the German Borrower and/or the Dutch
Borrower to the US Borrower pursuant to Section 8.06(l) and (z) Holdings
GmbH to the US Borrower pursuant to Section 8.06(k);
(g) Indebtedness of any Foreign Subsidiary of the US Borrower under
(A) lines of credit extended by local banks operating in the same
jurisdiction as such Foreign Subsidiary, the proceeds of which Indebtedness
are used for overdraft protection required in connection with such Foreign
Subsidiary's ordinary course operations and (B) the
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<PAGE>
ABN Revolver and the Rabobank Revolver, provided that (i) all such lines of
credit, the ABN Revolver and the Rabobank Revolver shall be unsecured,
provided that the Rabobank Revolver may be secured by the accounts
receivable of the Dutch Borrower on the terms set forth on the Restatement
Effective Date, (ii) the aggregate principal amount of all Indebtedness
incurred pursuant to sub-clause (A) above, together with the aggregate
principal amount of any Existing Debt that has been, or may be, incurred
under such lines of credit, shall not exceed $5,000,000 at any time
outstanding, and (iii) the aggregate principal amount of all Indebtedness
incurred pursuant to sub-clause (B) above (whether constituting Existing
Debt or thereafter incurred) shall not exceed $11,000,000 at any time
outstanding (all Indebtedness referred to in this clause (g) is
collectively referred to as the "Foreign Subsidiary Third Party
Borrowings");
(h) Indebtedness under Interest Rate Protection Agreements and Other
Hedging Agreements entered into by the US Borrower or any of its
Subsidiaries in the ordinary course of business and consistent with past
practices and providing protection against fluctuations in interest rates,
currency values or commodity prices, as the case may be, in connection with
the US Borrower's or any of its Subsidiaries' operations so long as
management of the US Borrower or such Subsidiary, as the case may be, has
determined that the entering into of any such Interest Rate Protection
Agreements or Other Hedging Agreements are bona fide hedging activities and
are not speculative in nature; and
(i) unsecured Indebtedness of the US Borrower and its Subsidiaries
not otherwise permitted by the foregoing clauses (a) through (h), provided
that the aggregate principal amount of all Indebtedness incurred pursuant
to this clause (i) shall not exceed $5,000,000 at any time outstanding.
8.05 Capital Expenditures. (a) The US Borrower will not, and will
--------------------
not permit any of its Subsidiaries to, make Consolidated Capital Expenditures,
provided that the US Borrower and its Subsidiaries may make Consolidated Capital
Expenditures so long as the aggregate amount of Consolidated Capital
Expenditures made during (x) the period (taken as one accounting period)
commencing on the Restatement Effective Date and ending on December 31, 1998
does not exceed $4,000,000 and (y) each fiscal year (taken as one accounting
period) thereafter commencing with the fiscal year ending December 31, 1999,
does not exceed the Capital Expenditure Amount for such fiscal year.
(b) In addition to the foregoing, to the extent that the amount of
Consolidated Capital Expenditures made by the US Borrower and its Subsidiaries
during any period set forth in clause (a) of this Section 8.05 is less than the
maximum amount permitted to be made for such period pursuant to such clause (a)
(without taking into account any increase in the amount permitted during such
period as a result of this clause (b)), the lesser of (x) such unused amount and
(y) $1,500,000 may be carried forward to the immediately succeeding fiscal year
and utilized to make Consolidated Capital Expenditures in excess of the amount
permitted above in such following fiscal year.
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<PAGE>
(c) In addition to the foregoing, during the period beginning on the
Original Effective Date and ending on December 31, 2001, the US Borrower and its
Subsidiaries may make up to $5,000,000 of Consolidated Capital Expenditures for
integrated order entry, distribution and inventory control systems.
(d) In addition to the foregoing, the Credit Parties may make
Consolidated Capital Expenditures to the extent that same constitute a Permitted
Acquisition or an acquisition pursuant to Section 8.02(g).
(e) In addition to the foregoing, the US Borrower and its Subsidiaries
may make Consolidated Capital Expenditures with the Net Cash Proceeds of Asset
Sales to the extent such proceeds are not required to be applied to repay
outstanding DM Term Loans pursuant to Section 4.02(A)(c) or reduce the Total
Dollar Revolving Loan Commitment and the Total Foreign Revolving Loan Commitment
pursuant to Sections 3.03(d) and 3.03(e), as the case may be.
(f) In addition to the foregoing, the US Borrower and its Subsidiaries
may make Consolidated Capital Expenditures with the Net Insurance Proceeds
received by the US Borrower or any of its Subsidiaries from any Recovery Event
so long as such Consolidated Capital Expenditures are to replace or restore any
properties or assets in respect of which such proceeds were paid within one year
following the date of the receipt of such proceeds to the extent such Net
Insurance Proceeds are not required to be applied to repay outstanding DM Term
Loans pursuant to Section 4.02(d) or reduce the Total Dollar Revolving Loan
Commitment and the Total Foreign Revolving Loan Commitment pursuant to Sections
3.03(d) and 3.03(e), as the case may be.
8.06 Advances, Investments and Loans. The US Borrower will not, and
-------------------------------
will not permit any of its Subsidiaries to, lend money or credit or make
advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any Person, except:
(a) the US Borrower and its Subsidiaries may invest in cash and Cash
Equivalents and Foreign Subsidiaries also may invest in Foreign Cash
Equivalents;
(b) the US Borrower and its Subsidiaries may acquire and hold
receivables owing to it, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade
terms of the US Borrower or such Subsidiary, as the case may be;
(c) the US Borrower and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers and customers and in settlement
of delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(d) transactions permitted by Sections 8.02(b), 8.04(d) and/or
8.04(f) shall be permitted;
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<PAGE>
(e) advances, loans and investments in existence on the Restatement
Effective Date and listed on Annex VII shall be permitted, without giving
effect to any additions thereto or replacements thereof;
(f) deposits made in the ordinary course of business consistent with
past practices to secure the performance of leases shall be permitted;
(g) loans and advances to employees for moving and travel expenses
and other similar expenses, in each case incurred in the ordinary course of
business, in an aggregate outstanding principal amount not to exceed
$250,000 at any time, shall be permitted;
(h) Permitted Acquisitions and acquisitions otherwise allowed
pursuant to Section 8.02(g) shall be permitted;
(i) (x) the US Credit Parties may make loans, advances and capital
contributions between and among themselves, (y) the Non-US Credit Parties
may make loans and advances between and among themselves and (z) the Credit
Parties may make loans and advances between and among themselves, provided
that the aggregate amount of all such loans and advances made under this
clause (z) by (A) the US Credit Parties to the Non-US Credit Parties and
outstanding at any time shall not exceed $1,500,000 and (B) the Non-US
Credit Parties to the US Credit Parties and outstanding at any time shall
not exceed $5,000,000 (in each case determined without regard to any write-
downs or write-offs thereof);
(j) the US Borrower may make a loan and/or capital contribution to
the German Borrower on the Restatement Effective Date in an aggregate
principal amount not to exceed $28,000,000 to enable the German Borrower to
acquire certain German Subsidiaries of Florimex Worldwide in connection
with the Acquisition;
(k) the US Borrower may make a loan and/or capital contribution to
Holdings GmbH on the Restatement Effective Date in an aggregate principal
amount not to exceed $15,500,000 to enable Holdings GmbH to acquire certain
Foreign Subsidiaries of Florimex Worldwide in connection with the
Acquisition;
(l) the US Borrower and the US Subsidiary Guarantors may make loans
and/or capital contributions to the German Borrower and/or the Dutch
Borrower from time to time to enable the respective Foreign Borrower to
repay outstanding DM Loans or NLG Revolving Loans, as the case may be,
provided that such Foreign Borrowers promptly use the proceeds of all such
loans and/or capital contributions for such purpose;
(m) the US Borrower and its Subsidiaries may enter into Interest Rate
Protection Agreements and Other Hedging Agreements to the extent permitted
by Section 8.04(h);
(n) the Acquisition shall be permitted; and
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<PAGE>
(o) investments not otherwise permitted by the foregoing clauses (a)
through (n), inclusive, provided that the aggregate amount of all
investments made pursuant to this clause (o) shall not exceed $5,000,000 at
any time (determined without regard to any write-downs or write-offs
thereof).
8.07 Dividends, etc. (a) The US Borrower will not, and will not
---------------
permit any of its Subsidiaries to, declare or pay any dividends (other than
dividends payable solely in common stock of the US Borrower or any such
Subsidiary, as the case may be) or return any capital to, its stockholders or
other equity holders or authorize or make any other distribution, payment or
delivery of property or cash to its stockholders or other equity holders as
such, or redeem, retire, purchase or otherwise acquire, directly or indirectly,
for a consideration, any shares of any class of its capital stock or other
equity interests (other than the issuance of common stock of the US Borrower
upon conversion of any convertible preferred stock that may be issued by the US
Borrower), now or hereafter outstanding (or any warrants for or options or stock
appreciation rights in respect of any of such shares), or set aside any funds
for any of the foregoing purposes, and the US Borrower will not permit any of
its Subsidiaries to purchase or otherwise acquire for consideration any shares
of any class of the capital stock or other equity interests of the US Borrower
or any other Subsidiary, as the case may be, now or hereafter outstanding (or
any options or warrants or stock appreciation rights issued by such Person with
respect to its capital stock or other equity interests) (all of the foregoing
"Dividends"), except that: (x) any Subsidiary of the US Borrower may pay
Dividends to the US Borrower or any other Subsidiary of the US Borrower and (y)
repurchases may be made by the US Borrower of its capital stock and/or options
or warrants to purchase its capital stock from employees, management or
directors of the US Borrower and its Subsidiaries so long as (i) no Default
under Section 9.01 or Event of Default exists at the time of such purchase or
would result therefrom and (ii) the aggregate amount paid by the US Borrower in
connection with all such repurchases does not exceed $100,000 in any fiscal year
of the US Borrower.
(b) The US Borrower will not, and will not permit any of its
Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or
restriction which prohibits or otherwise restricts (A) the ability of any such
Subsidiary to (a) pay dividends or make other distributions or pay any
Indebtedness owed to the US Borrower or any other Credit Party, (b) make loans
or advances to the US Borrower or any other Credit Party, (c) transfer any of
its properties or assets to the US Borrower or any other Credit Party, or (B)
the ability of the US Borrower or any other Credit Party, to create, incur,
assume or suffer to exist any Lien upon its property or assets to secure the
Obligations, other than prohibitions or restrictions existing under or by reason
of: (i) this Agreement and the other Credit Documents; (ii) applicable law;
(iii) customary non-assignment provisions entered into in the ordinary course of
business and consistent with past practices; and (iv) Liens permitted under
Sections 8.03(i), (j) and (k), and any documents or instruments governing the
terms of any Indebtedness or other obligations secured by any such Liens,
provided that such prohibitions or restrictions apply only to the assets subject
to such Liens.
8.08 Transactions with Affiliates. The US Borrower will not, and
----------------------------
will not permit any of its Subsidiaries to, enter into any transaction or series
of transactions with any Affiliate of
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<PAGE>
the US Borrower or any such Subsidiary other than in the ordinary course of
business and on terms and conditions substantially as favorable to the US
Borrower or such Subsidiary as would be obtainable by the US Borrower or such
Subsidiary at the time in a comparable arm's-length transaction with a Person
other than an Affiliate, provided that (i) Dividends may be paid to the extent
permitted by Section 8.07 and (ii) transactions between or among the US Borrower
and its Subsidiaries pursuant to (and in accordance with the terms of) Sections
8.02, 8.04 and 8.06 shall be permitted.
8.09 Leverage Ratio. (a) Prior to the issuance of the Securities,
--------------
the US Borrower will not permit the Leverage Ratio of the US Borrower at any
time during a period set forth below to be greater than the ratio set forth
opposite such period below:
<TABLE>
<CAPTION>
Period Ratio
- ------ -----
<S> <C>
Restatement Effective Date to and including
September 30, 1999 4.75:1.00
October 1, 1999 to and including
September 30, 2000 4.25:1.00
October 1, 2000 to and including 4.00:1.00
September 30, 2001
October 1, 2001 and thereafter 3.75:1.00
</TABLE>
(b) On or after the issuance of the Securities, the US Borrower will
not permit the Leverage Ratio of the US Borrower at any time during a period set
forth below to be greater than the ratio set forth opposite such period below:
<TABLE>
<CAPTION>
Period Ratio
- ------ -----
<S> <C>
Restatement Effective Date to and including
September 30, 1999 4.75:1.00
October 1, 1999 to and including September 4.50:1.00
30, 2000
October 1, 2000 and thereafter 4.00:1.00
</TABLE>
8.10 Consolidated Interest Coverage Ratio. The US Borrower will not
------------------------------------
permit the Consolidated Interest Coverage Ratio of the US Borrower for any Test
Period ending on the last day of a fiscal quarter of the US Borrower to be less
than 2.00:1.00.
8.11 Limitation on Modifications of Certificate of Incorporation, By-
---------------------------------------------------------------
Laws; etc. The US Borrower will not, and will not permit any of its
- ----------
Subsidiaries to:
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<PAGE>
(i) amend, modify or change in any manner adverse to the interests of
the Banks, the Certificate of Incorporation (including, without limitation,
by the filing of any certificate of designation) or By-Laws (or equivalent
organizational documents) of the US Borrower or any of its Subsidiaries, as
the case may be, or any other agreement entered into by the US Borrower or
any of its Subsidiaries with respect to its capital stock or other equity
interests, or enter into any new agreement (to the extent adverse to the
interests of the Banks) with respect to the capital stock or other equity
interests of the US Borrower or any of its Subsidiaries; or
(ii) issue any class of capital stock or other equity interests other
than (x) issuances of non-redeemable common stock or other non-redeemable
common equity interests and (y) issuances by the US Borrower of preferred
stock provided that any such preferred stock does not contain any
provisions adverse to the interests of the Banks.
8.12 Limitation on the Creation of Subsidiaries. Notwithstanding
------------------------------------------
anything to the contrary contained in this Agreement, the US Borrower will not,
and will not permit any of its Subsidiaries to, establish, create or acquire any
Subsidiary; provided that Wholly-Owned Subsidiaries may be established, created
or acquired in connection with a Permitted Acquisition pursuant to Section
8.02(f) or an acquisition pursuant to Section 8.02(g) so long as (i) in the case
of a Wholly-Owned Subsidiary created in order to effect a Permitted Acquisition
pursuant to Section 8.02(f) or an acquisition pursuant to Section 8.02(g), such
Subsidiary has no assets except those contributed substantially
contemporaneously with such Permitted Acquisition or such other acquisition,
(ii) the capital stock of each such new Subsidiary is promptly pledged pursuant
to, and to the extent required by, the US Pledge Agreement or other relevant
documentation and the certificates representing such stock, together with stock
powers duly executed in blank, are delivered to the Collateral Agent, (iii) such
new Subsidiary, to the extent that it is a Domestic Subsidiary and, to the
extent required by Section 7.12, in the case of a Foreign Subsidiary, promptly
executes a counterpart of the US Subsidiary Guaranty, the Foreign Guaranty, the
US Pledge Agreement and the US Security Agreement, in each case on the same
basis (and to the same extent) as such Subsidiary would have executed such
Credit Documents if it were a Credit Party on the Restatement Effective Date,
provided that in the case where a Domestic Subsidiary is acquired pursuant to a
- --------
Permitted Acquisition in which the aggregate consideration paid therefor is less
than $10,000,000, such new Domestic Subsidiary shall execute a counterpart of
such Credit Documents within 45 days after the consummation of such Permitted
Acquisition, (iv) such new Subsidiary, to the extent that it is a Foreign
Subsidiary, promptly executes a counterpart of the Foreign Guaranty, in each
case on the same basis (and to the same extent) as such Foreign Subsidiary would
have executed such Foreign Guaranty if it were a Credit Party on the Restatement
Effective Date (except to the extent that the entering into of such Foreign
Guaranty by such Foreign Subsidiary would be contrary to, or inconsistent with
local practice under, any law applicable to such Foreign Subsidiary, in each
such case as such determination is reasonably agreed to by the Administrative
Agent), and (v) to the extent requested by the Administrative Agent or the
Required Banks, any such new Domestic Subsidiary (and Foreign Subsidiary to the
extent required by Section 7.11(j) or 7.12) takes all actions required pursuant
to Section 7.11(j) or 7.12, as the case may be.
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<PAGE>
SECTION 9. Events of Default. Upon the occurrence of any of the
-----------------
following specified events (each an "Event of Default"):
9.01 Payments. Any Borrower shall (i) default in the payment when
--------
due of any principal of the Loans or (ii) default, and such default shall
continue for three or more days, in the payment when due of any Unpaid Drawing,
any interest on the Loans or any Fees or any other amounts owing hereunder or
under any other Credit Document; or
9.02 Representations, etc. Any representation, warranty or statement
---------------------
made or deemed made by any Credit Party herein or in any other Credit Document
or in any statement or certificate delivered pursuant hereto or thereto shall
prove to be untrue in any material respect on the date as of which made or
deemed made; or
9.03 Covenants. Any Credit Party shall (a) default in the due
---------
performance or observance by it of any term, covenant or agreement contained in
Section 7.11 or 8, or (b) default in the due performance or observance by it of
any term, covenant or agreement (other than those referred to in Section 9.01,
9.02 or clause (a) of this Section 9.03) contained in this Agreement and such
default shall continue unremedied for a period of at least 30 days after notice
to the defaulting party by the Administrative Agent or the Required Banks; or
9.04 Default Under Other Agreements. (a) The US Borrower or any of
------------------------------
its Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness was
created or (ii) default in the observance or performance of any agreement or
condition relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause, any such
Indebtedness to become due prior to its stated maturity; or (b) any Indebtedness
(other than the Obligations) of the US Borrower or any of its Subsidiaries shall
be declared to be due and payable, or shall be required to be prepaid other than
by a regularly scheduled required prepayment or as a mandatory prepayment
(unless such required prepayment or mandatory prepayment results from a default
thereunder or an event of the type that constitutes an Event of Default), prior
to the stated maturity thereof, provided that it shall not constitute an Event
of Default pursuant to clause (a) or (b) of this Section 9.04 unless the
principal amount of all such Indebtedness referred to in clauses (a) and (b)
above exceeds $3,000,000 at any one time; or
9.05 Bankruptcy, etc. The US Borrower or any of its Subsidiaries
----------------
shall commence a voluntary case concerning itself under Title 11 of the United
States Code entitled "Bankruptcy," as now or hereafter in effect, or any
successor thereto (the "Bankruptcy Code"); or an involuntary case is commenced
against the US Borrower or any of its Subsidiaries and the petition is not
controverted within 10 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the property of
the US Borrower or any of its Subsidiaries; or commences any other proceeding
under any reorganization, arrangement, adjustment of debt,
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<PAGE>
relief of debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the US Borrower or
any of its Subsidiaries; or there is commenced against the US Borrower or any of
its Subsidiaries any such proceeding which remains undismissed for a period of
60 days; or the US Borrower or any of its Subsidiaries is adjudicated insolvent
or bankrupt; or an order for relief or other order approving any such case or
proceeding is entered; or the US Borrower or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or the US
Borrower or any of its Subsidiaries makes a general assignment for the benefit
of creditors; or any corporate action is taken by the US Borrower or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or
9.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
-----
standard required for any plan year or part thereof under Section 412 of the
Code or Section 302 of ERISA or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following 30 days, any Plan which is
subject to Title IV of ERISA shall have had or is likely to have a trustee
appointed to administer such Plan, any Plan which is subject to Title IV of
ERISA is, shall have been or is likely to be terminated or to be the subject of
termination proceedings under ERISA, any Plan shall have an Unfunded Current
Liability, a contribution required to be made with respect to a Plan or a
Foreign Pension Plan has not been timely made, the US Borrower or any Subsidiary
of the US Borrower or any ERISA Affiliate has incurred or is likely to incur any
liability to or on account of a Plan under Section 409, 502(i), 502(l), 515,
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971
or 4975 of the Code or on account of a group health plan (as defined in Section
607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the
Code, or the US Borrower or any Subsidiary of the US Borrower has incurred or is
likely to incur liabilities pursuant to one or more employee welfare benefit
plans (as defined in Section 3(1) of ERISA) that provide benefits to retired
employees or other former employees (other than as required by Section 601 of
ERISA) or Plans or Foreign Pension Plans; (b) there shall result from any such
event or events the imposition of a lien, the granting of a security interest,
or a liability or a material risk of incurring a liability; and (c) such lien,
security interest or liability, individually and/or in the aggregate, in the
opinion of the Required Banks, has had, or could reasonably be expected to have,
a Material Adverse Effect; or
9.07 Security Documents. (a) Except in each case to the extent
------------------
resulting from the negligent or willful failure of the Collateral Agent to
retain possession of the applicable Pledged Securities pledged under the
respective Pledge Agreement, any Security Document shall cease to be, in any
material respect, in full force and effect, or shall cease, in any material
respect, to give the Collateral Agent the Liens, rights, powers and privileges
purported to be created thereby in favor of the Collateral Agent (or such other
trustee as may be required and desired under local law), or (b) any Credit Party
shall default in the due performance or
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<PAGE>
observance of any material term, covenant or agreement on its part to be
performed or observed pursuant to any such Security Document; or
9.08 Guaranties. Any Guaranty or any material provision thereof
----------
shall cease to be in full force and effect, or any Guarantor or any Person
acting by or on behalf of such Guarantor shall deny or disaffirm such
Guarantor's obligations under the relevant Guaranty; or
9.09 Judgments. One or more judgments or decrees shall be entered
---------
against the US Borrower or any of its Subsidiaries involving a liability (to the
extent not paid or covered by insurance) in excess of $1,000,000 for all such
judgments and decrees and all such judgments or decrees shall not have been
vacated, paid, discharged or stayed or bonded pending appeal within 60 days from
the entry thereof; or
9.10 Change of Control. A Change of Control shall occur; or
-----------------
9.11 Florimex Worldwide Commercial Paper Program. The Florimex
-------------------------------------------
Worldwide Commercial Paper Program shall not have been terminated and all
outstanding amounts thereunder shall not have been repaid in full by December
15, 1998;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Banks, by written notice to the Borrowers, take any or
all of the following actions, without prejudice to the rights of the
Administrative Agent or any Bank, to enforce its claims against any Credit
Party, except as otherwise specifically provided for in this Agreement
(provided, that if an Event of Default specified in Section 9.05 shall occur
with respect to any Borrower, the result which would occur upon the giving of
written notice by the Administrative Agent as specified in clauses (i) and (ii)
below shall occur automatically without the giving of any such notice): (i)
declare the Total Commitment terminated, whereupon the Commitments of each Bank
shall forthwith terminate immediately and any accrued Commitment Fees shall
forthwith become due and payable without any other notice of any kind; (ii)
declare the principal of and any accrued interest in respect of all Loans and
all other Obligations owing hereunder (including Unpaid Drawings) to be,
whereupon the same shall become, forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
each Borrower; (iii) enforce, as Collateral Agent (or direct the Collateral
Agent to enforce), any or all of the Liens and security interests created
pursuant to the Security Documents; (iv) terminate any Letter of Credit which
may be terminated in accordance with its terms; and (v) direct the each Borrower
to pay (and each Borrower hereby agrees upon receipt of such notice, or upon the
occurrence of any Event of Default specified in Section 9.05 with respect to
such Borrower, to pay) to the Collateral Agent at the appropriate Payment Office
such additional amounts of cash, to be held as security for such Borrower's
reimbursement obligations in respect of Letters of Credit issued for its account
and then outstanding, equal to the aggregate Stated Amount of all such Letters
of Credit then outstanding.
SECTION 10. Definitions. As used herein, the following terms shall
-----------
have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
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<PAGE>
"ABN Revolver" shall mean that certain existing revolving credit
facility provided by ABN Amro Bank N.V. to the Dutch Borrower for its working
capital and general corporate purposes.
"Account Party" shall mean (x) in the case of each US Letter of
Credit, the US Borrower, and (y) in the case of each Foreign Letter of Credit,
the respective Foreign Borrower as account party with respect to such Foreign
Letter of Credit.
"Acquired Business" shall mean each individual set of assets and/or
Person acquired pursuant to a Permitted Acquisition.
"Acquisition" shall mean the acquisition (i) by the US Borrower of
those Subsidiaries of DIMON Incorporated identified on Annex IX as being
intended to be acquired by the US Borrower, (ii) by the German Borrower of those
Subsidiaries of Florimex Germany identified on Annex IX as being intended to be
acquired by the German Borrower, (iii) by Holdings GmbH of those Subsidiaries of
Florimex Worldwide identified on Annex IX as being intended to be acquired by
Holdings GmbH and (iv) by Holdings GmbH of those assets of Florimex Worldwide
referred to as "Assets" in the Acquisition Agreement.
"Acquisition Agreement" shall mean the Stock and Asset Purchase
Agreement, dated August 12, 1998, among DIMON Incorporated, Florimex WorldWide
and the US Borrower.
"Acquisition Date" shall have the meaning provided in Section 8.02(f).
"Acquisition Documents" shall mean the Acquisition Agreement and all
other agreements and documents relating to the Acquisition.
"Acquisition Loan" shall mean any Dollar Revolving Loan incurred by
the US Borrower to finance a Permitted Acquisition or the Acquisition.
"Acquisition Sub-Limit" shall mean, at any time, (x) $180,000,000 less
(y)(i) except as otherwise provided in clause (ii) below, 97% of the aggregate
reductions to the Total Dollar Revolving Loan Commitment theretofore effected or
(ii) with respect to reductions effected pursuant to Section 3.02, such other
amount as may be specified by the US Borrower pursuant to such Section.
"Additional Foreign Security Documents" shall have the meaning
provided in Section 7.11(j).
"Additional US Mortgages" shall have the meaning provided in Section
7.11(h).
"Adjusted Consolidated Net Income" shall mean, for any period with
respect to any Person, Consolidated Net Income of such Person for such period
plus, without duplication, the sum of the amount of all net non-cash charges
(including, without limitation, depreciation, amortization, deferred tax expense
and non-cash interest expense) and net non-cash losses which
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<PAGE>
were included in arriving at such Consolidated Net Income for such period, less
the amount of all net non-cash gains (exclusive of items reflected in Adjusted
Consolidated Working Capital of such Person) which were included in arriving at
such Consolidated Net Income for such period.
"Adjusted Consolidated Working Capital" shall mean, at any time with
respect to any Person, Consolidated Current Assets of such Person (but excluding
therefrom all cash, Cash Equivalents and Foreign Cash Equivalents) less
Consolidated Current Liabilities of such Person at such time.
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 11.10.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to control a corporation if
such Person possesses, directly or indirectly, the power (i) to vote 10% or more
of the securities having ordinary voting power for the election of directors of
such corporation or (ii) to direct or cause the direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement" shall mean this Credit Agreement, as the same may be from
time to time modified, amended and/or supplemented.
"Alternate Currency" shall mean each of Deutsche Marks and Dutch
Guilders.
"Anticipated Reinvestment Amount" shall mean, with respect to any
Reinvestment Election, the amount specified in the Reinvestment Notice delivered
by the US Borrower in connection therewith as (x) the amount of the Net Cash
Proceeds from the related Asset Sale that the US Borrower and/or its
Subsidiaries intend to use to purchase, construct or otherwise acquire
Reinvestment Assets or (y) the amount of the Net Insurance Proceeds from the
related Recovery Event that the US Borrower and/or its Subsidiaries intend to
use to purchase or construct Reinvestment Assets in respect of the asset subject
to such Recovery Event.
"Applicable Base Rate Margin" shall mean the margin determined in
accordance with the below schedule based on the Leverage Ratio of the US
Borrower for the Test Period then last ended and as determined from the most
recent financial statements of the US Borrower (and related compliance
certificate) timely delivered to the Banks pursuant to Section 7.01(a) or (b),
as the case may be, provided that (x) so long as any Default or Event of
Default then exists, the Applicable Base Rate Margin shall be equal to the
highest percentage set forth in the table below and (y) to the extent that, on
the date of the consummation by the US Borrower or any of its Subsidiaries of
any Permitted Acquisition, the Leverage Ratio of the US Borrower is increased
(after giving effect to such Permitted Acquisition) and such increase would
result in a higher Applicable Base Rate Margin in accordance with the below
schedule, such increase in the Applicable Base Rate Margin shall take effect
from such date until the next date upon which the financial statements referred
to above are required to be delivered to the Banks:
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<PAGE>
<TABLE>
<CAPTION>
Applicable
Leverage Ratio Base Rate Margin
-------------- ----------------
<S> <C>
Greater than or equal to 4.00:1.00 1.250%
Less than 4.00:1.00 but greater
than or equal to 3.50:1.00 1.000%
Less than 3.50:1.00 but greater
than or equal to 3.00:1.00 .625%
Less than 3.00:1.00 but greater
than or equal to 2.50:1.00 .375%
Less than 2.50:1.00 .250%
</TABLE>
; provided further, that, notwithstanding the foregoing, (i) for the period
----------------
from the Restatement Effective Date through (but not including) the date of
delivery of the financial statements (and related compliance certificate)
pursuant to Section 7.01(b) in respect of the US Borrower's fiscal quarter
ending on September 30, 1998, the Applicable Base Rate Margin shall be 1.000%
(as such percentage may be increased as a result of clause (x) or (y) of the
preceding proviso) and (ii) for the period from the Restatement Effective Date
through (but not including) the date of delivery of the financial statements
(and related compliance certificate) pursuant to Section 7.01(b) in respect of
the US Borrower's fiscal quarter ending on March 31, 1999, the Applicable Base
Rate Margin shall not be less than 1.000% (and, to the extent that the Borrowers
would otherwise be entitled to an Applicable Base Rate Margin of less than
1.000% by operation of the foregoing provisions of this definition, such
Applicable Base Rate Margin shall instead be 1.000%).
"Applicable Commitment Fee Percentage" shall mean the percentage
determined in accordance with the below schedule based on the Leverage Ratio of
the US Borrower for the Test Period then last ended and as determined from the
most recent financial statements of the US Borrower (and related compliance
certificate) timely delivered to the Banks pursuant to Section 7.01(a) or (b),
as the case may be, provided that (x) so long as any Default or Event of
Default then exists, the Applicable Commitment Fee Percentage shall be equal to
the highest percentage set forth in the table below and (y) to the extent that,
on the date of the consummation by the US Borrower or any of its Subsidiaries of
any Permitted Acquisition, the Leverage Ratio of the US Borrower is increased
(after giving effect to such Permitted Acquisition) and such increase would
result in a higher Applicable Commitment Fee Percentage in accordance with the
below schedule, such increase in the Applicable Commitment Fee Percentage shall
take effect from such date until the next date upon which the financial
statements referred to above are required to be delivered to the Banks:
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<PAGE>
<TABLE>
<CAPTION>
Applicable
Leverage Ratio Commitment Fee Percentage
-------------- -------------------------
<S> <C>
Greater than or equal to .500%
4.00:1.00
Less than 4.00:1.00 but greater
than or equal to 3.50:1.00 .475%
Less than 3.50:1.00 but greater
than or equal to 3.00:1.00 .375%
Less than 3.00:1.00 but greater
than or equal to 2.50:1.00 .300%
Less than 2.50:1 .250%
</TABLE>
; provided further, that, notwithstanding the foregoing, (i) for the period from
----------------
the Restatement Effective Date through (but not including) the date of delivery
of the financial statements pursuant to Section 7.01(b) in respect of the US
Borrower's fiscal quarter ending on September 30, 1998, the Applicable
Commitment Fee Percentage shall be .475% (as such percentage may be increased as
a result of clause (x) or (y) of the preceding proviso) and (ii) for the period
from the Restatement Effective Date through (but not including) the date of
delivery of the financial statements (and related compliance certificate)
pursuant to Section 7.01(b) in respect of the US Borrower's fiscal quarter
ending on March 31, 1999, the Applicable Commitment Fee Percentage shall not be
less than .475% (and, to the extent that the Borrowers would otherwise be
entitled to an Applicable Commitment Fee Percentage of less than .475% by
operation of the foregoing provisions of this definition, such Applicable
Commitment Fee Percentage shall instead be .475%).
"Applicable Currency" shall mean Dollars, Deutsche Marks or Dutch
Guilders, as the case may be.
"Applicable Euro Rate Margin" shall mean the margin determined in
accordance with the below schedule based on the Leverage Ratio of the US
Borrower for the Test Period then last ended and as determined from the most
recent financial statements of the US Borrower (and related compliance
certificate) timely delivered to the Banks pursuant to Section 7.01(a) or (b),
as the case may be, provided that (x) so long as any Default or Event of Default
then exists, the Applicable Euro Rate Margin shall be equal to the highest
percentage set forth in the table below and (y) to the extent that, on the date
of the consummation by the US Borrower or any of its Subsidiaries of any
Permitted Acquisition, the Leverage Ratio of the US Borrower is increased (after
giving effect to such Permitted Acquisition) and such increase would result in a
higher Applicable Euro Rate Margin in accordance with the below schedule, such
increase in the Applicable Euro Rate Margin shall take effect from such date
until the next date upon which the financial statements referred to above are
required to be delivered to the Banks:
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<PAGE>
<TABLE>
<CAPTION>
Applicable
Eurodollar
Leverage Ratio Rate Margin
-------------- -----------
<S> <C>
Greater than or equal to 4.00:1.00 2.500%
Less than 4.00:1.00 but greater
than or equal to 3.50:1.00 2.250%
Less than 3.50:1.00 but greater
than or equal to 3.00:1.00 1.875%
Less than 3.00:1.00 but greater
than or equal to 2.50:1.00 1.625%
Less than 2.50:1.00 1.375%
</TABLE>
; provided further, that, notwithstanding the foregoing, (i) for the period from
----------------
the Restatement Effective Date through (but not including) the date of delivery
of the financial statements (and related compliance certificate) pursuant to
Section 7.01(b) in respect of the US Borrower's fiscal quarter ending on
September 30, 1998, the Applicable Euro Rate Margin shall be 2.250% (as such
percentage may be increased as a result of clause (x) or (y) of the preceding
proviso) and (ii) for the period from the Restatement Effective Date through
(but not including) the date of delivery of the financial statements (and
related compliance certificate) pursuant to Section 7.01(b) in respect of the US
Borrower's fiscal quarter ending on March 31, 1999, the Applicable Euro Rate
Margin shall not be less than 2.250% (and, to the extent that the Borrowers
would otherwise be entitled to an Applicable Euro Rate Margin of less than
2.250% by operation of the foregoing provisions of this definition, such
Applicable Euro Rate Margin shall instead be 2.250%).
"Approved Country" shall mean and include Canada, Mexico, Columbia,
Costa Rica, Ecuador, Germany, The Netherlands, Denmark, Switzerland, Italy,
Sweden, Austria, France, the United Kingdom, Belgium, Ireland and Spain.
"Asset Sale" shall mean the sale, transfer or other disposition (or
series of related sales, transfers or dispositions) by the US Borrower or any
Subsidiary of the US Borrower after the Restatement Effective Date to any Person
other than the US Borrower or any Subsidiary of the US Borrower of any asset of
the US Borrower or such Subsidiary (other than sales, transfers or other
dispositions (x) in the ordinary course of business of inventory and/or obsolete
or excess equipment or (y) the proceeds of which do not exceed $750,000 in any
fiscal year).
"Assignment and Assumption Agreement" shall have the meaning provided
in Section 12.04(b).
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<PAGE>
"Authorized Officer" shall mean (x) in the case of the US Borrower,
the Chairman, the Controller or the Chief Financial Officer of the US Borrower
and (y) in the case of either Foreign Borrower, the Chief Financial Officer of
such Foreign Borrower or of the US Borrower.
"Bank" shall have the meaning provided in the first paragraph of this
Agreement.
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any incurrence of Loans or
to fund its portion of any unreimbursed payment under Section 2.04(c) or (ii) a
Bank having notified the Administrative Agent and/or the US Borrower that it
does not intend to comply with the obligations under Section 1.01 or under
Section 2.04(c), in the case of either (i) or (ii) as a result of the
appointment of a receiver or conservator with respect to such Bank at the
direction or request of any regulatory agency or authority.
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
"Base Rate" shall mean, at any time, the higher of (x) the rate which
is 1/2 of 1% in excess of the Federal Funds Effective Rate and (y) the Prime
Lending Rate.
"Base Rate Loan" shall mean each Dollar Loan bearing interest at the
rates provided in Section 1.08(a).
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrowing" shall mean and include (i) the incurrence of Swingline
Loans by the US Borrower from BTCo on a certain date, (ii) the incurrence of DM
Term Loans by the German Borrower from all of the DM Term Banks on a pro rata
--------
basis on a given date having the same Interest Period, (iii) the incurrence of
one Type of Dollar Revolving Loan by the US Borrower from all of the DRL Banks
on a pro rata basis on a certain date (or resulting from conversions on a given
--- ----
date), having in the case of Eurodollar Loans the same Interest Period, (iv) the
incurrence of DM Revolving Loans by the German Borrower from all the FRL Banks
on a pro rata basis on a given date having the same Interest Period, and (v) the
--- ----
incurrence of NLG Revolving Loans by the Dutch Borrower from all of the FRL
Banks on a pro rata basis on a given date having the same Interest Period;
--- ----
provided, that Base Rate Loans incurred pursuant to Section 1.10(b) shall be
considered part of any related Borrowing of Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company and any successor corporation
thereto by merger, consolidation or otherwise.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii), (iii) or (iv) below, any day excluding Saturday, Sunday and any
day which shall be in the City of New York a legal holiday or a day on which
banking institutions are authorized by law or other governmental actions to
close, (ii) except as provided in clause (iii) below, with respect to all
notices and determinations in connection with, and payments of principal and
interest on,
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<PAGE>
Euro Rate Loans, any day which is a Business Day described in clause (i) and
which is also a day for trading by and between banks in the applicable interbank
Eurodollar market and, with respect to any notices or determinations in respect
of Euros, any day which is customarily a "Business Day" for such notices or
determinations, (iii) with respect to all notices and determinations in
connection with, and payments of principal and interest on, DM Loans, any day
which is a Business Day described in clauses (i) and (ii) above and which shall
not be a legal holiday or a day on which banking institutions are authorized or
required by law or other government action to close in London, England or
Frankfurt, Germany and (iv) with respect to all notices and determinations in
connection with, and payments of principal and interest on, NLG Revolving Loans,
any day which is a Business Day described in clauses (i) and (ii) above and
which shall not be a legal holiday or a day on which banking institutions are
authorized or required by law or other government action to close in London,
England or The Netherlands.
"Capex Adjustment Factor" shall mean, for any period listed in Section
8.05(a)(y), a fraction (x) the numerator of which is equal to the Consolidated
EBITDA of the US Borrower (calculated without regard to the Consolidated EBITDA
of any Acquired Business for any period prior to the acquisition thereof by the
US Borrower or a US Subsidiary Guarantor pursuant to a Permitted Acquisition)
for the twelve month period last ended (or for the purposes of a calculation
under the proviso contained in the definition of Capital Expenditure Amount, the
Consolidated EBITDA of the Acquired Business or Businesses acquired in such
Significant Permitted Acquisition for the 12-month period last ended) and (y)
the denominator of which is equal to the Reference EBITDA Amount.
"Capital Expenditure Amount" shall mean, for any period listed in
Section 8.05(a)(y), the product of (x) $2,250,000 multiplied by (y) the Capex
Adjustment Factor for such period, provided that the Capital Expenditure Amount
for any such period shall be increased on each date during such period on which
a Significant Permitted Acquisition is consummated by an amount equal to the
product of (x) $2,250,000 multiplied by (y) the Capex Adjustment Factor with
respect to the Acquired Business or Businesses the subject of such Significant
Permitted Acquisition.
"Capital Lease," as applied to any Person, shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Capitalized Lease Obligations" shall mean all obligations under
Capital Leases of the US Borrower or any of its Subsidiaries in each case taken
at the amount thereof accounted for as liabilities in accordance with GAAP.
"Cash Equivalents" shall mean (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided, that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than six months from the date of acquisition, (ii) U.S. dollar denominated time
deposits, certificates of deposit and bankers acceptances of (x) any Bank or (y)
any bank whose short-term commercial paper rating from Standard & Poor's Ratings
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Service ("S&P") is at least A-1 or the equivalent thereof or from Moody's
Investors Service, Inc. ("Moody's") is at least P-1 or the equivalent thereof
(any such bank or Bank, an "Approved Bank"), in each case with maturities of not
more than six months from the date of acquisition, (iii) commercial paper issued
by any Approved Bank or by the parent company of any Approved Bank and
commercial paper issued by, or guaranteed by, any industrial or financial
company with a short-term commercial paper rating of at least A-1 or the
equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody's,
or guaranteed by any industrial company with a long term unsecured debt rating
of at least A or A2, or the equivalent of each thereof, from S&P or Moody's, as
the case may be, and in each case maturing within six months after the date of
acquisition, (iv) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or any
public instrumentality thereof maturing within six months from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either S&P or Moody's, and (v) investments in
money market funds substantially all the assets of which are comprised of
securities of the types described in clauses (i) through (iv) above.
"Cash Proceeds" shall mean, (i) with respect to any Asset Sale, the
aggregate cash payments (including any cash as and when received by way of
deferred payment pursuant to a note receivable issued in connection with such
Asset Sale) received by the US Borrower and/or any Subsidiary of the US Borrower
from such Asset Sale and (ii) with respect to any Recovery Event, the aggregate
cash payments received by the US Borrower and/or any Subsidiary of the US
Borrower from such Recovery Event
"Change of Control" shall mean (a) any "person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than one
or more Permitted Holders, (i) is or shall become the "beneficial owner" (as
defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or
indirectly, of 20% or more on a fully diluted basis of the voting and economic
interests of the US Borrower or (ii) shall have obtained the power (whether or
not exercised) to elect a majority of the US Borrower's directors or (b) the
Board of Directors of the US Borrower shall cease to consist of a majority of
Continuing Directors.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the date of this
Agreement and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" shall mean all of the Collateral as defined in, and/or
all the properties subject to the lien created under, each of the Security
Documents.
"Collateral Agent" shall mean the Administrative Agent acting as
collateral agent for the Secured Creditors.
"Commitment" shall mean, with respect to each Bank, such Bank's DM
Term Loan Commitment, Dollar Revolving Loan Commitment and Foreign Revolving
Loan Commitment.
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"Commitment Expiration Date" shall mean October 31, 1998.
"Commitment Fee" shall mean the DRL Commitment Fee and the FRL
Commitment Fee.
"Consolidated Capital Expenditures" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash or accrued as liabilities
and including in all events all amounts expended or capitalized under Capital
Leases but excluding any amount representing capitalized interest) by the US
Borrower and its Subsidiaries during that period that, in conformity with GAAP,
are or are required to be included in the property, plant or equipment reflected
in the consolidated balance sheet of the US Borrower and its Subsidiaries,
provided that Consolidated Capital Expenditures shall in any event include the
purchase price paid in connection with the acquisition of any Person (including
through the purchase of all of the capital stock or other ownership interests of
such Person or through merger or consolidation) to the extent allocable to
property, plant and equipment.
"Consolidated Current Assets" shall mean, at any time with respect to
any Person, the consolidated current assets of such Person and its Subsidiaries
at such time.
"Consolidated Current Liabilities" shall mean, at any time with
respect to any Person, the consolidated current liabilities of such Person and
its Subsidiaries at such time, but excluding the current portion of any
Indebtedness under this Agreement and the current portion of any other long-term
Indebtedness which would otherwise be included therein.
"Consolidated EBIT" shall mean, for any period with respect to any
Person, Consolidated Net Income of such Person for such period, before (i)
Consolidated Interest Expense of such Person for such period and (ii) provision
for taxes of such Person for such period and without giving effect to (x) any
extraordinary gains or extraordinary losses or gains from sales of assets (other
than sales of inventory in the ordinary course of business) for such period and
(y) to the extent incurred on or prior to March 31, 1999, any non-recurring non-
cash losses or expenses for such period.
"Consolidated EBITDA" shall mean, for any period with respect to any
Person, Consolidated EBIT of such Person for such period, adjusted by adding
thereto the amount of all depreciation expense and amortization expense deducted
in determining such Consolidated EBIT, provided that there shall be included in
determining Consolidated EBITDA of the US Borrower and its Subsidiaries for any
period, the Consolidated EBITDA for each Acquired Business acquired by the US
Borrower or any Subsidiary of the US Borrower during such period for the portion
of such period prior to such acquisition but excluding, in a manner and to the
extent satisfactory to the Administrative Agent, (i) any non-recurring charges
(as determined pursuant to GAAP) incurred in connection with the Transaction and
the Original Transaction otherwise included in the computation of Consolidated
EBITDA and (ii) from the computation of Consolidated EBITDA of such Acquired
Business, any non-recurring charges (as determined pursuant to GAAP) otherwise
included in such computation. In determining the Consolidated EBITDA of any
Acquired Business for the period prior to the acquisition thereof by the US
Borrower or any Subsidiary thereof, there shall be added back to such
Consolidated EBITDA for
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such period the amount by which any management fees, product costs, handling
costs, salary expense, lease expense or any fringe benefit expense paid to the
shareholder or shareholders of such Acquired Business or any Affiliate thereof
exceeded an amount that would customarily be paid in an arm's-length transaction
under then current market conditions for similarly situated businesses, with
such amounts to be documented in a manner satisfactory to the Administrative
Agent. In addition, in determining (x) the Leverage Ratio of the US Borrower and
(y) the Capex Adjustment Factor of the US Borrower, in each case on or prior to
September 30, 1999, Consolidated EBITDA of the US Borrower for its fiscal
quarter ending (I) December 31, 1997 shall be $9,667,000, (II) March 31, 1998
shall be $19,899,000, (III) June 30, 1998 shall be $14,930,000, and (IV)
September 30, 1998 shall be $4,113,000 (with such amounts representing the pro
---
forma Consolidated EBITDA of the US Borrower as if the Transaction had occurred
- -----
on January 1, 1997).
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio of Consolidated EBITDA to Consolidated Interest Expense for such period.
"Consolidated Interest Expense" shall mean, for any period with
respect to any Person, the total interest expense (including that attributable
to Capital Leases in accordance with GAAP) of such Person determined on a
consolidated basis with respect to all outstanding Indebtedness of such Person,
including, without limitation, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing, but excluding, however, amortization of deferred financing costs to
the extent included in total interest expense, provided that there shall be
included in determining Consolidated Interest Expense of the US Borrower and its
Subsidiaries for any period, (x) the Consolidated Interest Expense for each
Acquired Business acquired by the US Borrower or any Subsidiary of the US
Borrower during such period for the portion of such period prior to such
acquisition and (y) the additional interest that would have been paid on all
Indebtedness incurred by the US Borrower and its Subsidiaries to finance each
Permitted Acquisition effected during such period if, in each such case, such
Indebtedness had been incurred on the first day of such period, as reasonably
determined by the US Borrower in a manner satisfactory to the Administrative
Agent.
"Consolidated Net Income" shall mean, for any period with respect to
any Person, the net income (or loss), after provision for taxes, of such Person
on a consolidated basis for such period taken as a single accounting period.
"Contingent Obligations" shall mean as to any Person any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(a) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (b) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
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such primary obligation or (d) otherwise to assure or hold harmless the owner of
such primary obligation against loss in respect thereof; provided, however, that
the term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Continuing Bank" shall mean each Existing Bank with a Commitment
under this Agreement.
"Continuing Directors" shall mean the directors of the US Borrower on
the Restatement Effective Date and each other director thereof if such
director's nomination for the election to the Board of Directors of the US
Borrower is recommended by a majority of the Continuing Directors (which for
this purpose shall include Persons theretofore elected as directors as
contemplated by this definition).
"Credit Documents" shall mean this Agreement, the Notes, each Guaranty
and each Security Document.
"Credit Event" shall mean (i) the occurrence of the Restatement
Effective Date and (ii) the making of a Loan or the issuance of a Letter of
Credit.
"Credit Party" shall mean each US Credit Party and each Non-US Credit
Party.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
"Deutsche Mark Equivalent" of an amount denominated in a currency
other than Deutsche Marks (the "Other Applicable Currency") shall mean, at any
time for the determination thereof, the amount of Deutsche Marks which could be
purchased with the amount of such Other Applicable Currency involved in such
computation at the spot rate of exchange therefor as quoted by the
Administrative Agent as of 11:00 A.M. (London, England time) on the date two
Business Days prior to the date of any determination thereof for purchase on
such date.
"Deutsche Marks" and "DM" shall mean freely and transferable lawful
money of the Federal Republic of Germany.
"Dividends" shall have the meaning provided in Section 8.07.
"DM Euro Rate" shall mean, in respect of DM Loans for an Interest
Period, the rate per annum determined by the Administrative Agent at
approximately 11:00 A.M. (London,
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England time) on the date which is two Business Days prior to the beginning of
the relevant Interest Period (as specified in the applicable Notice of Borrowing
or notice delivered pursuant to Section 1.09) by reference to the "British
Bankers' Association Interest Settlement Rates" for deposits in Deutsche Marks
(as set forth by any service selected by the Administrative Agent which has been
nominated by the British Bankers' Association as an authorized information
vendor for the purpose of displaying such rates) for a period equal to such
Interest Period (rounded upward to the nearest whole multiple of 1/16th of 1%);
provided that, to the extent that an interest rate is not ascertainable pursuant
- --------
to the foregoing provisions of this definition, the "DM Euro Rate" shall be the
interest rate per annum determined by the Administrative Agent to be the rate
(rounded upward to the nearest whole multiple of 1/16th of 1% per annum, if such
average is not such a multiple) per annum at which deposits in Deutsche Marks
are offered for such relevant Interest Period to major banks in the London
interbank market in London, England by BTCo at approximately 11:00 A.M. (London,
England time) on the date which is two Business Days prior to the beginning of
such Interest Period. Notwithstanding anything to the contrary contained above,
in the event the Administrative Agent has made any determination pursuant to
Section 1.10(a)(i) in respect of DM Loans, or in the circumstances described in
clause (i) to the proviso to Section 1.10(b) in respect to DM Loans, the DM Euro
Rate determined pursuant to this definition shall instead be the rate determined
by BTCo as the all-in cost of funds for BTCo to fund a DM Loan with maturities
comparable to the Interest Period applicable thereto.
"DM Loans" shall mean and include each DM Term Loan and each DM
Revolving Loan.
"DM Revolving Loans" shall have the meaning provided in Section
1.01(C).
"DM Revolving Note" shall have the meaning provided in Section
1.05(a).
"DM Term Banks" shall mean each Bank with a DM Term Loan Commitment or
outstanding DM Term Loans.
"DM Term Loan" shall have the meaning provided in Section 1.01(A)
"DM Term Loan Commitment" shall mean, at any time and with respect to
each Bank, the amount set forth opposite each Bank's name in Annex I directly
under the column entitled "DM Term Loan Commitment," as same may be terminated
pursuant to Section 3.03 or 9.
"DM Term Loan Facility" shall mean the Facility evidenced by the Total
DM Term Loan Commitment.
"DM Term Loan Maturity Date" shall mean October 2, 2003.
"DM Term Note" shall have the meaning provided in Section 1.05(a).
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"Documentation Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Documents" shall mean the Acquisition Documents, the Credit
Documents and the Refinancing Documents.
"Dollar Equivalent" of an amount denominated in a currency other than
Dollars (the "Other Currency") shall mean, at any time for the determination
thereof, the amount of Dollars which could be purchased with the amount of Other
Currency involved in such computation at the spot exchange rate therefor as
quoted by the Administrative Agent as of 11:00 A.M. (New York time) on the date
two Business Days prior to the date of any determination thereof for purchase on
such date.
"Dollar Loans" shall mean each Dollar Revolving Loan and each
Swingline Loan.
"Dollar Revolving Loan Commitment" shall mean, with respect to each
Bank, the amount set forth opposite such Bank's name in Annex I directly below
the column entitled "Dollar Revolving Loan Commitment," as the same may be
reduced or terminated from time to time pursuant to Sections 3.02, 3.03 and/or 9
or (y) adjusted from time to time as a result of assignments to or from such
Bank pursuant to Section 12.04.
"Dollar Revolving Loan Facility" shall mean the Facility evidenced by
the Total Dollar Revolving Loan Commitment.
"Dollar Revolving Loans" shall have the meaning provided in Section
1.01(B).
"Dollar Revolving Note" shall have the meaning provided in Section
1.05(a).
"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States.
"Domestic Subsidiary" shall mean each Subsidiary of the US Borrower
which is not a Foreign Subsidiary.
"DRL Bank" shall mean each Bank with a Dollar Revolving Loan
Commitment or with outstanding Dollar Revolving Loans.
"DRL Commitment Fee" shall have the meaning provided in Section
3.01(a).
"DRL Participant" shall have the meaning provided in Section
2.04(a)(i).
"DRL Percentage" shall mean, at any time for each DRL Bank, the
percentage obtained by dividing such DRL Bank's Dollar Revolving Loan Commitment
at such time by the Total Dollar Revolving Loan Commitment at such time (or if
the Total Dollar Revolving Loan Commitment has terminated, the percentage
obtained by dividing such DRL Bank's Dollar Revolving Loans outstanding at such
time by the aggregate outstanding principal amount of Dollar Revolving Loans of
all DRL Banks at such time).
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"Dutch Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Dutch Credit Party" shall mean the Dutch Borrower and each other Non-
US Credit Party organized under the laws of The Netherlands.
"Dutch Guilder Equivalent" of an amount denominated in a currency
other than Dutch Guilders (the "Other Applicable Currency") shall mean, at any
time for the determination thereof, the amount of Dutch Guilders which could be
purchased with the amount of such Other Applicable Currency involved in such
computation at the spot rate of exchange therefor as quoted by the
Administrative Agent as of 11:00 A.M. (London, England time) on the date two
Business Days prior to the date of any determination thereof for purchase on
such date.
"Dutch Guilders" and "NLG" shall mean freely and transferable lawful
money of The Netherlands.
"Dutch Pledge Agreement" shall have the meaning provided in Section
7.11(c).
"Dutch Security Agreement" shall have the meaning provided in Section
7.11(d).
"Eligible Transferee" shall mean and include a commercial bank,
financial institution, any fund that invests in loans or any other "accredited
investor" (as defined in SEC Regulation D).
"EMU Legislation" shall mean the legislative measures of the European
Council for the introduction of, changeover to or operation of, a single or
unified European currency.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of non-compliance or violation, investigations or proceedings relating
in any way to any Environmental Law (hereafter "Claims") or any permit issued
under any such law, including, without limitation, (a) any and all Claims by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.
"Environmental Law" shall mean any federal, state, foreign or local
statute, law, rule, regulation, ordinance, code, policy or rule of common law
now or hereafter in effect and in each case as amended, and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to the environment, health, safety
or Hazardous Materials, including, without limitation, CERCLA; RCRA; the Federal
Water Pollution Control Act, as amended, 33 U.S.C. (S) 1251 et seq.; the Toxic
-- ----
Substances Control Act, 15 U.S.C. (S) 7401 et seq.; the Clean Air Act, 42 U.S.C.
-- ----
(S) 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. (S) 3808 et seq.; the
-- ---- -- ----
Oil Pollution Act of 1990, 33 U.S.C. (S) 2701 et seq.; and any applicable state
-- ----
and local or foreign counterparts or equivalents.
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<PAGE>
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at
the date of this Agreement and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with the US Borrower or a Subsidiary of the US Borrower
would be deemed to be a "single employer" (i) within the meaning of Section
414(b), (c), (m) or (o) of the Code or (ii) as a result of the US Borrower or a
Subsidiary of the US Borrower being or having been a general partner of such
person.
"Euro" shall mean the single currency of participating member states
of the European Union.
"Euro Rate" shall mean and include each of the Eurodollar Rate, the DM
Euro Rate and the NLG Euro Rate.
"Euro Rate Loan" shall mean each Eurodollar Loan, each DM Term Loan,
each DM Revolving Loan and each NLG Revolving Loan.
"Eurodollar Loans" shall mean each Dollar Revolving Loan bearing
interest at the rates provided in Section 1.08(b).
"Eurodollar Rate" shall mean with respect to each Interest Period for
a Eurodollar Loan, (i) the arithmetic average (rounded to the nearest 1/100 of
1%) of the offered quotations to first-class banks in the interbank Eurodollar
market by the Administrative Agent for U.S. dollar deposits of amounts in same
day funds comparable to the outstanding principal amount of the Eurodollar Loan
of the Administrative Agent for which an interest rate is then being determined
with maturities comparable to the Interest Period to be applicable to such
Eurodollar Loan, determined as of 10:00 A.M. (New York time) on the date which
is two Business Days prior to the commencement of such Interest Period divided
(and rounded upward to the next whole multiple of 1/16 of 1%) by (ii) a
percentage equal to 100% minus the then stated maximum rate of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable to any member bank of the
Federal Reserve System in respect of Eurocurrency liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section 9.
"Excess Cash Flow" shall mean, for any period with respect to any
Person, the remainder of (a) the sum of (I) Adjusted Consolidated Net Income of
such Person for such period and (II) the decrease, if any, in Adjusted
Consolidated Working Capital of such Person from the first day to the last day
of such period, minus (b) the sum of (i) the amount of all Consolidated Capital
Expenditures made by such Person and its Subsidiaries during such period (other
than Consolidated Capital Expenditures to the extent financed with equity
proceeds, Asset Sale
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proceeds, insurance proceeds or Indebtedness), (ii) the aggregate amount of
permanent principal payments of Indebtedness for borrowed money of such Person
and its Subsidiaries during such period (other than (A) repayments to the extent
financed with equity proceeds, Asset Sale proceeds, insurance proceeds or
Indebtedness and (B) in the case of the US Borrower and its Subsidiaries,
repayments of Loans, provided that repayments of Loans shall be deducted in
--------
determining Excess Cash Flow of the US Borrower if such repayments were (x)
required as a result of a Scheduled Repayment under Section 4.02(A)(b) or (y)
made as a voluntary prepayment with internally generated funds (but in the case
of a voluntary prepayment of Dollar Revolving Loans, Swingline Loans, DM
Revolving Loans or NLG Revolving Loans, only to the extent accompanied by a
voluntary reduction to the Total Dollar Revolving Loan Commitment or the Total
Foreign Revolving Loan Commitment, as the case may be)) and (iii) the increase,
if any, in Adjusted Consolidated Working Capital of such Person from the first
day to the last day of such period.
"Excess Cash Payment Date" shall mean the date occurring 90 days after
the last day of each fiscal year of the US Borrower (commencing with the 90th
day after the US Borrower's fiscal year ending on December 31, 1999).
"Excess Cash Payment Period" shall mean, with respect to the repayment
required on each Excess Cash Payment Date, the immediately preceding fiscal year
of the US Borrower.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Existing Bank" shall mean each Person which was a Bank under, and as
defined in, the Existing Credit Agreement.
"Existing Credit Agreement" shall have the meaning provided in the
recitals to this Agreement.
"Existing Debt" shall have the meaning provided in Section 6.20.
"Existing Dollar Revolving Loans" shall mean the "Revolving Loans"
under, and as defined in, the Existing Credit Agreement.
"Existing Letter of Credit" shall mean each letter of credit that was
issued under the Existing Credit Agreement and which remains outstanding on the
Restatement Effective Date.
"Existing US Mortgaged Properties" shall mean all Real Property of the
US Credit Parties designated as such in Annex IV.
"Existing US Mortgages" shall mean all Mortgages granted by the US
Credit Parties pursuant to the Existing Credit Agreement and which have not been
released by the lenders thereunder prior to the Restatement Effective Date.
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"Facility" shall mean any of the credit facilities established under
this Agreement, i.e., the DM Term Loan Facility, the Dollar Revolving Loan
----
Facility or the Foreign Revolving Loan Facility.
"Facing Fee" shall mean each of the US Facing Fees and the Foreign
Facing Fees.
"Federal Funds Effective Rate" shall mean for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal Funds transactions with members of the
Federal Reserve System arranged by Federal Funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three Federal
Funds brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to in,
Section 3.01.
"Florimex Canada" shall mean Florimex Canada Inc., a Canadian
corporation.
"Florimex USA" shall mean Florimex USA, Inc., a Virginia corporation.
"Florimex Worldwide" shall mean Florimex WorldWide GmbH, a German
corporation.
"Florimex Worldwide Commercial Paper Program" shall mean,
collectively, Florimex Worldwide's and Florimex Worldwide B.V.'s existing
commercial paper program.
"Foreign Borrower" shall mean and include each of the German Borrower
and the Dutch Borrower.
"Foreign Cash Equivalents" shall mean certificates of deposit or
bankers acceptances of any bank organized under the laws of any Approved Country
whose short-term commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from Moody's is at least P-1 or the equivalent thereof, in
each case with maturities of not more than six months from the date of
acquisition.
"Foreign Facing Fees" shall have the meaning provided in Section
3.01(f).
"Foreign Guaranty" shall have the meaning provided in Section
5.10(b).
"Foreign Letter of Credit" shall mean each Letter of Credit issued for
the account of a Foreign Borrower pursuant to Section 2.01.
"Foreign Letter of Credit Fees" shall have the meaning provided in
Section 3.01(e).
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"Foreign Letter of Credit Outstandings" shall mean, at any time, the
sum of, without duplication, (i) the aggregate Stated Amount of all outstanding
Foreign Letters of Credit and (ii) the aggregate amount of all Unpaid Drawings
in respect of all Foreign Letters of Credit.
"Foreign Pension Plan" shall mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by the US Borrower or any one or
more of its Subsidiaries primarily for the benefit of employees of the US
Borrower or such Subsidiaries residing outside the United States of America,
which plan, fund or other similar program provides, or results in, retirement
income, a deferral of income in contemplation of retirement or payments to be
made upon termination of employment, and which plan is not subject to ERISA or
the Code.
"Foreign Revolving Loan" shall have the meaning provided in Section
1.01(C).
"Foreign Revolving Loan Commitment" shall mean, with respect to any
Bank, the amount set forth opposite such Bank's name in Annex I directly below
the column entitled "Foreign Revolving Loan Commitment" as the same may be
reduced or terminated from time to time pursuant to Sections 3.02, 3.03 and/or 9
or (y) adjusted from time to time as a result of assignments to or from such
Bank pursuant to Section 12.04.
"Foreign Revolving Loan Facility" shall mean the Facility evidenced by
the Total Foreign Revolving Loan Commitment.
"Foreign Security Documents" shall mean the German Pledge Agreement,
the German Security Agreement, the Dutch Pledge Agreement, the Dutch Security
Agreement and, to the extent delivered pursuant to Section 7.11(j), each
Additional Foreign Security Document.
"Foreign Subsidiary" shall mean each Subsidiary of the US Borrower
that is incorporated under the laws of any jurisdiction other than the United
States of America, any State thereof or any territory thereof.
"Foreign Subsidiary Third Party Borrowings" shall have the meaning
provided in Section 8.04(g).
"FRL Bank" shall mean each Bank with a Foreign Revolving Loan
Commitment or with outstanding Foreign Revolving Loans.
"FRL Commitment Fee" shall have the meaning provided in Section
3.01(b).
"FRL Participant" shall have the meaning provided in Section
2.04(a)(ii).
"FRL Percentage" shall mean, at any time for each FRL Bank, the
percentage obtained by dividing such FRL Bank's Foreign Revolving Loan
Commitment at such time by the Total Foreign Revolving Loan Commitment at such
time (or, if the Total Foreign Revolving Loan Commitment has terminated, the
percentage obtained by dividing such FRL Bank's
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Foreign Revolving Loans outstanding at such time by the aggregate outstanding
principal amount of Foreign Revolving Loans of all FRL Banks at such time).
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time; it being understood and
agreed that determinations in accordance with GAAP for purposes of Section 8,
including defined terms as used therein, and determinations of the Applicable
Base Rate Margin, the Applicable Euro Rate Margin and the Applicable Commitment
Fee Percentage, are subject (to the extent provided therein) to Sections
12.07(a) and (b).
"German Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"German Credit Party" shall mean the German Borrower and each other
Non-US Credit Party organized under the laws of the Federal Republic of Germany.
"German Pledge Agreement" shall have the meaning provided in Section
7.11(a).
"German Security Agreement" shall have the meaning provided in Section
7.11(b).
"Guarantor" shall mean and include each US Subsidiary Guarantor and
each other Credit Party in its capacity as a guarantor under the Foreign
Guaranty.
"Guaranty" shall mean and include the US Subsidiary Guaranty and the
Foreign Guaranty.
"Hazardous Materials" shall mean (a) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; and (b) any chemicals, materials or substances defined as or included
in the definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "restricted hazardous materials," "extremely hazardous wastes,"
"restrictive hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants" or "pollutants," or words of similar meaning and regulatory
effect under any applicable Environmental Law.
"Holdings GmbH" shall mean U.S.A. Floral Products Holdings GmbH, I.G.,
a German corporation.
"Indebtedness" of any Person shall mean, without duplication, (i) all
indebtedness of such Person for borrowed money, (ii) the deferred purchase price
of assets or services payable to the sellers thereof or any of such seller's
assignees which in accordance with GAAP would be shown on the liability side of
the balance sheet of such Person, (iii) the face amount of all letters of credit
issued and outstanding for the account of such Person and, without duplication,
all drafts drawn thereunder, (iv) all Indebtedness of a second Person secured by
any Lien on any property owned by such first Person, whether or not such
Indebtedness has been assumed
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(provided that if such Indebtedness has not been assumed, such amount shall be
equal to the fair market value of the property subject to such Lien), (v) all
Capitalized Lease Obligations of such Person, (vi) all obligations of such
Person to pay a specified purchase price for goods or services whether or not
delivered or accepted, i.e., take-or-pay and similar obligations, (vii) all net
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obligations of such Person under Interest Rate Protection Agreements and Other
Hedging Agreement but not under hedging activities entered into in the normal
course of business and constituting bona fide operational hedging arrangements
and (viii) all Contingent Obligations of such Person, provided, that
Indebtedness shall not include trade payables and accrued expenses, in each case
arising in the ordinary course of business.
"Indebtedness to be Refinanced" shall mean all Indebtedness set forth
on Annex VIII.
"Information Systems and Equipment" shall mean all computer hardware,
firmware and software, as well as other information processing systems, or any
equipment containing embedded microchips, whether directly owned, licensed,
leased, operated or otherwise controlled by the US Borrower or any of its
Subsidiaries, and which, in whole or in part, are used, operated, relied upon,
or integral to, the US Borrower's or any of its Subsidiaries' conduct of their
business.
"Interest Period," with respect to any Euro Rate Loan, shall mean the
interest period applicable thereto, as determined pursuant to Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate hedging agreement or other similar agreement or arrangement.
"Judgment Currency" shall have the meaning provided in Section
12.18(a).
"Judgment Currency Conversion Date" shall have the meaning provided in
Section 12.18(a).
"Leasehold" of any Person shall mean all of the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fees" shall mean US Letter of Credit Fees and
Foreign Letter of Credit Fees.
"Letter of Credit Issuer" shall mean (x) in the case of US Letters of
Credit, Bankers Trust Company, New York and (y) in the case of Foreign Letters
of Credit, Bankers Trust Company, London.
"Letter of Credit Request" shall have the meaning provided in Section
2.02(a).
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"Leverage Ratio" shall mean, as at any date with respect to any
Person, the ratio of Total Indebtedness at such date to Consolidated EBITDA for
the Test Period then last ended (including on such date), in each case of such
Person.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or any similar
recording or notice statute, and any lease having substantially the same effect
as the foregoing).
"Loans" shall mean DM Term Loans, Dollar Revolving Loans, DM Revolving
Loans, NLG Revolving Loans and Swingline Loans.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(D)(c).
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean a material adverse effect on the
business, assets, properties, operations, condition (financial or otherwise),
liabilities or prospects of the US Borrower and its Subsidiaries taken as a
whole and, to the extent that any representation or warranty in this Agreement
is made or deemed made on the Restatement Effective Date with respect to such
Persons and assets, of the Persons and assets acquired pursuant to the
Acquisition taken as a whole.
"Material Real Property" shall mean any owned Real Property having a
fair market value of $500,000 or more.
"Maximum Swingline Amount" shall mean $5,000,000.
"Minimum Borrowing Amount" shall mean (i) for DM Term Loans, the
Deutsche Mark Equivalent of $5,000,000, (ii) for Dollar Revolving Loans that are
maintained as Base Rate Loans, $1,000,000, (iii) for Dollar Revolving Loans that
are maintained as Eurodollar Loans, $2,500,000, (iv) for DM Revolving Loans, the
Deutsche Mark Equivalent of $1,000,000, (v) for NLG Revolving Loans, the Dutch
Guilder Equivalent of $1,000,000 and (vi) for Swingline Loans, $250,000.
"Mortgage" shall mean each mortgage, deed to secure debt or deed of
trust pursuant to which any Credit Party shall have granted to the Collateral
Agent a mortgage lien on any parcel of Real Property owned or leased by such
Credit Party.
"Mortgage Amendments" shall have the meaning provided in Section
7.11(e).
"Mortgage Policies" shall mean a title insurance policy (or a binding
commitment with respect thereto).
"Net Cash Proceeds" shall mean, with respect to any Asset Sale, the
Cash Proceeds resulting therefrom net of expenses of sale (including payment of
principal, premium
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and interest of other Indebtedness secured by the assets the subject of such
Asset Sale and required to be, and which is, repaid under the terms thereof as a
result of such Asset Sale), and incremental taxes paid or payable as a result
thereof.
"Net Insurance Proceeds" shall mean, with respect to any Recovery
Event, the cash proceeds (net of reasonable costs and taxes incurred in
connection with such Recovery Event) received by the US Borrower or any of its
Subsidiaries in connection with the respective Recovery Event.
"New Bank" shall mean each of the Persons listed on Annex I which is
not a Continuing Bank.
"New US Mortgage Policies" shall have the meaning provided in Section
7.11(f)(ii).
"New US Mortgaged Properties" shall have the meaning provided in
Section 7.11(f)(i).
"New US Mortgages" shall have the meaning provided in Section
7.11(f)(i).
"NLG Euro Rate" shall mean, in respect of NLG Revolving Loans for an
Interest Period, the rate per annum determined by the Administrative Agent at
approximately 11:00 A.M. (London, England time) on the date which is two
Business Days prior to the beginning of the relevant Interest Period (as
specified in the applicable Notice of Borrowing or notice delivered pursuant to
Section 1.09) by reference to the "British Bankers' Association Interest
Settlement Rates" for deposits in Dutch Guilders (as set forth by any service
selected by the Administrative Agent which has been nominated by the British
Bankers' Association as an authorized information vendor for the purpose of
displaying such rates) for a period equal to such Interest Period (rounded
upward to the nearest whole multiple of 1/16th of 1%); provided that, to the
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extent that an interest rate is not ascertainable pursuant to the foregoing
provisions of this definition, the "NLG Euro Rate" shall be the interest rate
per annum determined by the Administrative Agent to be the rate (rounded upward
to the nearest whole multiple of 1/16th of 1% per annum, if such average is not
such a multiple) per annum at which deposits in Dutch Guilders are offered for
such relevant Interest Period to major banks in the London interbank market in
London, England by BTCo at approximately 11:00 A.M. (London, England time) on
the date which is two Business Days prior to the beginning of such Interest
Period. Notwithstanding anything to the contrary contained above, in the event
the Administrative Agent has made any determination pursuant to Section
1.10(a)(i) in respect of NLG Revolving Loans, or in the circumstances described
in clause (i) to the proviso to Section 1.10(b) in respect to NLG Revolving
Loans, the NLG Euro Rate determined pursuant to this definition shall instead be
the rate determined by BTCo as the all-in cost of funds for BTCo to fund a NLG
Revolving Loan with maturities comparable to the Interest Period applicable
thereto.
"NLG Revolving Loans" shall have the meaning provided in Section
1.01(C).
"NLG Revolving Notes" shall have the meaning provided in Section
1.05(a).
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"Non-Defaulting Bank" shall mean each Bank other than a Defaulting
Bank.
"Non-US Credit Party" shall mean each Foreign Subsidiary of the US
Borrower that has executed any Credit Document.
"Note" shall mean each DM Note, Dollar Revolving Note, DM Revolving
Note, NLG Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section 1.03.
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Administrative Agent
located at 130 Liberty Street, Commercial Loan Division, 14th Floor, New York,
New York 10006, Attention: Aileen Mosier, provided that in the case of DM Term
Loans and NLG Revolving Loans, the "Notice Office" shall mean the office
specified above, with a copy of the respective notice to be delivered at the
same time as otherwise required pursuant to the terms of this Agreement to the
office of the Administrative Agent located at Bankers Trust Company, London, c/o
BT Services Ireland Limited, Abbey Court, Irish Life Center, Lower Abbey Street,
Dublin 1, Ireland, attention: Liz Keegan, or, in each case, such other office
as the Administrative Agent may designate to the Borrowers and the Banks from
time to time.
"Obligation Currency" shall have the meaning provided in Section
12.18(a).
"Obligations" shall mean all amounts, direct or indirect, contingent
or absolute, of every type or description, and at any time existing, owing to
the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer or
any Bank pursuant to the terms of this Agreement or any other Credit Document.
"Original Effective Date" shall mean the "Effective Date" under, and
as defined in, the Existing Credit Agreement.
"Original Transaction" shall mean the "Transaction" under, and as
defined in, the Existing Credit Agreement.
"Other Hedging Agreement" shall mean any foreign exchange contracts,
currency swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuation in currency values.
"Participant" shall have the meaning provided in Section 2.04(a)(ii).
"Payment Office" shall mean (i) in respect of Dollar Loans, US Letters
of Credit, DRL Commitment Fees, US Letter of Credit Fees and US Facing Fees and,
except as provided in clauses (ii) and (iii) below, all other amounts owing
under this Agreement and the other Credit Documents, the office of the
Administrative Agent located at 130 Liberty Street, New York, New York, ABA
Number: 021001033, Account Name: Commercial Loan Division, Account Number: 99-
401-268, Reference: U.S.A. Floral Products, (ii) in respect of (x) DM Loans and
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FRL Commitment Fees and (y) in each case to the extent denominated in Deutsche
Marks, Foreign Letters of Credit, FRL Commitment Fees, Foreign Letter of Credit
Fees and Foreign Facing Fees, the office of the Administrative Agent located at
Bankers Trust Company, London, through Bankers Trust Company, Frankfurt,
Germany, Account Number: 700053293, Reference: USA Floral/U.S.A. Floral
Products Germany Gmbh & Co. KG, Attention: Loans Agency, or (iii) in the case of
(x) NLG Revolving Loans and (y) in each case to the extent denominated in Dutch
Guilders, Foreign Letters of Credit, Foreign Letter of Credit Fees and Foreign
Facing Fees, the office of the Administrative Agent located at Bankers Trust
Company, London, through Rabobank Nederland, Utrecht, Account Number:
390852910A00NLG, Reference: USA Floral/Florimex Worldwide B.V. or, in each
case, such other office as the Administrative Agent may designate to the
Borrowers and the Banks from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Percentage" shall mean the DRL Percentage or the FRL Percentage, as
the case may be.
"Permitted Acquisition" shall have the meaning provided in Section
8.02(f).
"Permitted Encumbrance" shall mean, with respect to any Real Property
subject to a Mortgage, such exceptions to title as are set forth in the Mortgage
Policy delivered with respect thereto, all of which exceptions must be
acceptable, on the date of delivery of such Mortgage Policy, to the
Administrative Agent.
"Permitted Holders" shall mean the current Chairman of the US
Borrower, Johnathan Ledecky or a group led by any of the foregoing Persons.
"Permitted Liens" shall have the meaning provided in Section 8.03(d).
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section 3(2) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the US Borrower or a Subsidiary of the US Borrower
or an ERISA Affiliate, and each such plan for the five year period immediately
following the latest date on which the US Borrower, or a Subsidiary of the US
Borrower or an ERISA Affiliate maintained, contributed to or had an obligation
to contribute to such plan.
"Pledge Agreement" shall mean and include each of the US Pledge
Agreement, the German Pledge Agreement and the Dutch Pledge Agreement.
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"Pledged Securities" shall mean all the Pledged Securities as defined
in, or all capital stock or other equity interests in which a security interest
has been granted pursuant to, the relevant Pledge Agreement.
"Prime Lending Rate" shall mean the rate which BTCo announces from
time to time as its prime lending rate, the Prime Lending Rate to change when
and as such prime lending rate changes. The Prime Lending Rate is a reference
rate and does not necessarily represent the lowest or best rate actually charged
to any customer. BTCo may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate.
"Rabobank Revolver" shall mean that certain existing revolving credit
facility provided by Cooperative Rabobank Rijnsburg to the Dutch Borrower for
its working capital and general corporate purposes.
"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" shall mean the receipt by the US Borrower or any of
its Subsidiaries of any cash insurance proceeds or condemnation awards payable
(i) by reason of theft, loss, physical destruction, damage, taking or any other
similar event with respect to any property or assets of the US Borrower or any
of its Subsidiaries and (ii) under any policy of insurance required to be
maintained under Section 7.03.
"Reference EBITDA Amount" shall mean $10,000,000.
"Refinancing" shall mean the refinancing and repayment in full of all
amounts under, and the termination in full of all commitments and letters of
credit in respect of, the Indebtedness to be Refinanced.
"Refinancing Documents" shall mean all documents and agreements
entered into in connection with the Refinancing.
"Register" shall have the meaning provided in Section 12.17.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing margin requirements.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
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"Reinvestment Assets" shall mean (i) in the case of any Asset Sale,
any assets to be employed in, and/or the capital stock of any Person engaged in,
the business of the US Borrower and its Subsidiaries and (ii) in the case of any
Recovery Event, any assets purchased or constructed in replacement of, or
substitution for, the assets subject to such Recovery Event.
"Reinvestment Election" shall have the meaning provided in Section
4.02(A)(c).
"Reinvestment Notice" shall mean a written notice signed by an
Authorized Officer of the US Borrower stating that the US Borrower, in good
faith, intends and expects to use all or a specified portion of (i) the Net Cash
Proceeds of an Asset Sale to purchase, construct or otherwise acquire
Reinvestment Assets or (ii) the Net Insurance Proceeds of a Recovery Event to
purchase or construct Reinvestment Assets, which Reinvestment Notice also shall
set forth (in each case) in reasonable detail the approximate amount of the
transaction costs and incremental taxes incurred or payable in connection with
any such Asset Sale or Recovery Event.
"Reinvestment Reduction Amount" shall mean, with respect to any
Reinvestment Election, the amount, if any, on the Reinvestment Reduction Date
relating thereto by which (a) the Anticipated Reinvestment Amount in respect of
such Reinvestment Election exceeds (b) the aggregate amount thereof expended by
the US Borrower and its Subsidiaries to acquire or construct Reinvestment
Assets.
"Reinvestment Reduction Date" shall mean, with respect to any
Reinvestment Election, the earliest of (i) the date, if any, upon which a
Default or an Event of Default shall have occurred, (ii) the date occurring one
year after the making of such Reinvestment Election and (iii) the date on which
the US Borrower shall have determined not to, or shall have otherwise ceased to,
proceed with the purchase, construction or other acquisition of Reinvestment
Assets with the related Anticipated Reinvestment Amount.
"Release" shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing or migration into the environment.
"Replaced Bank" shall have the meaning provided in Section 1.13.
"Replacement Bank" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
.22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
"Required Banks" shall mean Non-Defaulting Banks the sum of whose
outstanding DM Term Loans, Dollar Revolving Loan Commitments (or, if after the
Total Dollar Revolving Loan Commitment has been terminated, outstanding Dollar
Revolving Loans and DRL Percentages of outstanding Swingline Loans and US Letter
of Credit Outstandings) and Foreign Revolving Loan Commitments (or, if after the
Total Foreign Revolving Loan Commitment has been terminated, outstanding Foreign
Revolving Loans and FRL Percentages
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of Foreign Letters of Credit Outstandings) constitute 50.1% or more of the sum
of (i) the total outstanding DM Term Loans of Non-Defaulting Banks, (ii) the
Total Dollar Revolving Loan Commitment less the Dollar Revolving Loan
Commitments of all Defaulting Banks (or, after the Total Dollar Revolving Loan
Commitment has been terminated, the sum of outstanding Dollar Revolving Loans of
Non-Defaulting Banks and the aggregate DRL Percentages of all Non-Defaulting
Banks of the total outstanding Swingline Loans and the US Letter of Credit
Outstandings) and (iii) the Total Foreign Revolving Loan Commitment less the
Foreign Revolving Loan Commitments of all Defaulting Banks (or, after the Total
Foreign Revolving Loan Commitment has been terminated, the sum outstanding
Foreign Revolving Loans of Non-Defaulting Banks and the aggregate FRL
Percentages of all Non-Defaulting Banks of the Foreign Letter of Credit
Outstandings). For purposes of determining Required Banks, all outstanding Loans
and Commitments, as the case may be, that are denominated in Dollars will be
calculated in Dollars and all Loans and Commitments, as the case may be,
denominated in Deutsche Marks or Dutch Guilders will be calculated according to
the Dollar Equivalent thereof.
"Restatement Effective Date" shall have the meaning provided in
Section 12.10.
"Revolving Loan Maturity Date" shall mean October 2, 2003.
"Scheduled Repayment" shall have the meaning provided in Section
4.02(A)(b).
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b)(ii).
"Secured Creditors" shall mean the "Creditors" or "Secured Creditors"
as defined in the respective Security Documents.
"Securities" shall have the meaning provided in Section 4.02(A)(g).
"Security Agreement Collateral" shall mean all Collateral under the US
Security Agreement, the German Security Agreement and the Dutch Security
Agreement.
"Security Documents" shall mean and include each US Security Document,
each Foreign Security Document and each security document delivered pursuant to
Section 7.12.
"Significant Permitted Acquisition" shall mean any Permitted
Acquisition or group of Permitted Acquisitions that are consummated on the same
Acquisition Date in which the Acquired Business or Businesses being acquired
have Consolidated EBITDA for the Test Period of the US Borrower then most
recently ended equal to or greater than $1,500,000.
"Specified Subsidiaries" shall mean each Subsidiary of the US Borrower
acquired after the Restatement Effective Date as permitted pursuant to this
Agreement, which, at the time of the acquisition thereof, was the obligor with
respect to Indebtedness and/or the property of
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which was subject to Liens securing Indebtedness, in each case, incurred other
than pursuant to this Agreement and the other Credit Documents and that will
remain outstanding after giving effect to such acquisition.
"Stated Amount" of each Letter of Credit shall mean the maximum amount
available to be drawn thereunder (regardless of whether any conditions for
drawing could then be met), provided the "Stated Amount" of each Letter of
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Credit denominated in an Alternate Currency shall be (except to the extent that
calculations are expressly required to be made hereunder in such Alternate
Currency), on any date of calculation, the Dollar Equivalent of a maximum amount
available to be drawn in such Alternate Currency thereunder (determined without
regard to whether any conditions to drawing could then be met).
"Sub-Limit" shall mean and include each of the Acquisition Sub-Limit
and the Working Capital Sub-Limit.
"Subsidiary" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time.
"Supermajority Banks" shall mean those Non-Defaulting Banks which
would constitute the Required Banks under, and as defined in, this Agreement if
(x) all outstanding Obligations under the Dollar Revolving Loan Facility were
repaid in full and the Total Dollar Revolving Loan Commitment with respect
thereto was terminated, (y) all outstanding Obligations under the Foreign
Revolving Loan Facility were repaid in full and the Total Foreign Revolving Loan
Commitment with respect thereto was terminated and (z) the percentage "50.1%"
contained therein were changed to "66-2/3%."
"Swingline Expiry Date" shall mean the date which is five Business
Days prior to the Revolving Loan Maturity Date.
"Swingline Loan" shall have the meaning provided in Section 1.01(D).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Syndication Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Taxes" shall have the meaning provided in Section 4.04.
"Test Period" shall mean, with respect to any Person, (i) for any
determination of the Consolidated Interest Coverage Ratio of the US Borrower
made on or prior to September 30,
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1999, the period from October 1, 1998 through and including the last day of the
US Borrower's most recently ended fiscal quarter (in each case taken as one
accounting period and assuming that the Transaction had occurred on October 1,
1998) and (ii) for any period thereafter and for any determination of the
Leverage Ratio of the US Borrower, a period of four consecutive fiscal quarters
of such Person ended on the last day of the then most recently ended fiscal
quarter of such Person.
"Total Commitment" shall mean the sum of the Commitments of each of
the Banks.
"Total DM Term Loan Commitment" shall mean, at any time, the sum of
the DM Term Loan Commitments of each of the DM Term Banks.
"Total Dollar Revolving Loan Commitment" shall mean, at any time, the
sum of the Dollar Revolving Loan Commitments of each of the DRL Banks.
"Total Foreign Revolving Loan Commitment" shall mean, at any time, the
sum of the Foreign Revolving Loan Commitments of each of the FRL Banks.
"Total Indebtedness" shall mean, at any time with respect to any
Person, all (i) indebtedness of such Person for borrowed money at such time,
(ii) all Indebtedness of the type described in clauses (iii) and (v) of the
definition of Indebtedness at such time and (iii) all Contingent Obligations in
respect of Indebtedness of the type described in preceding clauses (i) and (ii)
at such time, in each case determined on a consolidated basis; it being
understood and agreed, to the extent, but only to the extent, that any
Indebtedness incurred pursuant to any drawings under any lines of credit of the
type described in clause (A) of Section 8.04(g) are supported by letters of
credit, the lesser of the Indebtedness incurred pursuant to such lines of
credit and the stated amount of such letters of credit shall be excluded from
any determination of Total Indebtedness for the purposes of (x) calculations of
the Applicable Base Rate Margin, the Applicable Commitment Fee Percentage and
the Applicable Euro Rate Margin and (y) compliance with Section 8.09.
"Transaction" shall mean and include (i) the Acquisition, (ii) the
Refinancing and (iii) the occurrence of the Restatement Effective Date.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, i.e., a Base Rate Loan, a Eurodollar Loan ,
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a DM Loan or a NLG Revolving Loan.
"UCC" shall mean the Uniform Commercial Code as in effect in the State
of New York.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits under
the Plan as of the close of its most recent plan year, determined in accordance
with actuarial assumptions at such time
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consistent with Statement of Financial Accounting Standards No. 87, exceeds the
market value of the assets allocable thereto.
"Unpaid Drawing" shall have the meaning provided in Section 2.03(a).
"Unutilized Acquisition Sub-Limit" shall mean, at any time, (i) the
Acquisition Sub-Limit at such time less (ii) the sum of the aggregate
outstanding principal amount of all Acquisition Loans at such time.
"Unutilized Dollar Revolving Loan Commitment" shall mean for each DRL
Bank at any time, (i) the Dollar Revolving Loan Commitment of such DRL Bank at
such time less (ii) the sum of the aggregate principal amount of all Dollar
Revolving Loans made by such DRL Bank and outstanding at such time plus an
amount equal to such DRL Bank's DRL Percentage of the US Letter of Credit
Outstandings at such time.
"Unutilized Foreign Revolving Loan Commitment" shall mean for each FRL
Bank at any time, (i) the Foreign Revolving Loan Commitment of such FRL Bank at
such time less (ii) the sum of the aggregate principal amount of all Foreign
Revolving Loans made by such FRL Bank and outstanding at such time plus an
amount equal to such FRL Bank's FRL Percentage of the Foreign Letter of Credit
Outstandings at such time..
"Unutilized Total Dollar Revolving Loan Commitment" shall mean, at any
time, (i) the Total Dollar Revolving Loan Commitment at such time less (ii) the
sum of the aggregate outstanding principal amount of all Dollar Revolving Loans
and Swingline Loans at such time plus the US Letter of Credit Outstandings at
such time.
"Unutilized Total Foreign Revolving Loan Commitment" shall mean, at
any time, (i) the Total Foreign Revolving Loan Commitment at such time less (ii)
the sum of the aggregate outstanding principal amount of all Foreign Revolving
Loans at such time plus the Foreign Letter of Credit Outstandings at such time..
"Unutilized Working Capital Sub-Limit" shall mean, at any time, (i)
the Working Capital Sub-Limit at such time less (ii) the sum of the aggregate
principal amount of all Working Capital Loans at such time.
"US Borrower" shall have the meaning provided in the first paragraph
in this Agreement.
"US Credit Party" shall mean the US Borrower and each Domestic
Subsidiary of the US Borrower.
"US Facing Fees" shall have the meaning provided in Section 3.01(d).
"US Letter of Credit" shall mean each Letter of Credit issued for the
account of the US Borrower pursuant to Section 2.01.
"US Letter of Credit Fees" shall have the meaning provided in Section
3.01(c).
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"US Letter of Credit Outstandings" shall mean, at any time, the sum
of, without duplication, (i) the aggregate Stated Amount of all outstanding US
Letters of Credit and (ii) the aggregate amount of all Unpaid Drawings in
respect of all US Letters of Credit.
"US Mortgage" shall mean and include each Existing US Mortgage, as
amended pursuant to the respective Mortgage Amendment, each New US Mortgage and,
after the execution and delivery thereof, each Additional US Mortgage, in each
case as same may be amended, modified or supplemented from time to time.
"US Pledge Agreement" shall have the meaning provided in Section 5.11.
"US Security Agreement" shall have the meaning provided in Section
5.12.
"US Security Agreement Collateral" shall mean all "Collateral" as
defined in the US Security Agreement.
"US Security Documents" shall mean and include the US Security
Agreement, the US Mortgages and the US Pledge Agreement.
"US Subsidiary Guarantor" shall mean, at any time, each Domestic
Subsidiary of the US Borrower, and, to the extent required by Section 7.12, each
Foreign Subsidiary of the US Borrower, in each case which executes and delivers
a counterpart of the US Subsidiary Guaranty.
"US Subsidiary Guaranty" shall have the meaning provided in Section
5.10(a).
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than directors qualifying shares)
is at the time owned by such Person and/or one or more Wholly-Owned Subsidiaries
of such Person and (ii) any partnership, association, joint venture or other
entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such
Person has a 100% equity interest at such time.
"Working Capital Loan" shall mean each Dollar Revolving Loan incurred
by the US Borrower hereunder which does not constitute an Acquisition Loan.
"Working Capital Sub-Limit" shall mean, at any time, (x) $20,000,000
less (y)(i) except as otherwise provided in clause (ii) below, 3% of the
aggregate reduction to the Total Dollar Revolving Loan Commitment theretofore
effected or (ii) with respect to reductions effected pursuant to Section 3.02,
such other amount as may be specified by the US Borrower pursuant to such
Section, it being understood and agreed that in no event may the US Borrower
elect a reduction of the Working Capital Sub-Limit pursuant to Section 3.02 to
an amount less than $7,500,000.
"Written" or "in writing" shall mean any form of written communication
or a communication by means of telex, facsimile device, telegraph or cable.
"Year 2000 Compliant" shall mean that all Information Systems and
Equipment accurately process date data (including, but not limited to,
calculating, comparing and
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sequencing), before, during and after the year 2000, as well as same and multi-
century dates, or between the years 1999 and 2000, taking into account all leap
years, including the fact that the year 2000 is a leap year, and further, that
when used in combination with, or interfacing with, other Information Systems
and Equipment, provided such other Information Systems and Equipment are Year
2000 Compliant, (i) shall accurately accept, release and exchange date data,
(ii) shall in all material respects continue to function in the same manner as
it performs today and (iii) shall not otherwise impair the accuracy or
functionality of Information Systems and Equipment.
SECTION 11. The Administrative Agent.
------------------------
11.01 Appointment. Each Bank hereby irrevocably designates and
-----------
appoints BTCo as Administrative Agent of such Bank (such term to include for
purposes of this Section 11, BTCo acting as Collateral Agent) to act as
specified herein and in the other Credit Documents, and each such Bank hereby
irrevocably authorizes BTCo as the Administrative Agent to take such action on
its behalf under the provisions of this Agreement and the other Credit Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental thereto.
The Administrative Agent agrees to act as such upon the express conditions
contained in this Section 11. Notwithstanding any provision to the contrary
elsewhere in this Agreement or in any other Credit Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein or in the other Credit Documents, or any fiduciary relationship
with any Bank, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Administrative Agent. The provisions of this Section 11 are solely
for the benefit of the Administrative Agent and the Banks, and neither the US
Borrower nor any of its Subsidiaries shall have any rights as a third party
beneficiary of any of the provisions hereof. In performing its functions and
duties under this Agreement, the Administrative Agent shall act solely as agent
of the Banks and the Administrative Agent does not assume and shall not be
deemed to have assumed any obligation or relationship of agency or trust with or
for the US Borrower or any of its Subsidiaries.
11.02 Delegation of Duties. The Administrative Agent may execute any
--------------------
of its duties under this Agreement or any other Credit Document by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care except to the extent
otherwise required by Section 11.03.
11.03 Exculpatory Provisions. Neither the Administrative Agent nor
----------------------
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or the
other Credit Documents (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Banks for
any recitals, statements, representations or warranties made by the US Borrower,
any of its Subsidiaries or
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any of their respective officers contained in this Agreement or the other Credit
Documents or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Credit Document or for any failure
of the US Borrower or any of its Subsidiaries or any of their respective
officers to perform its obligations hereunder or thereunder. The Administrative
Agent shall not be under any obligation to any Bank to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or the other Credit Documents, or to inspect the
properties, books or records of the US Borrower or any of its Subsidiaries. The
Administrative Agent shall not be responsible to any Bank for the effectiveness,
genuineness, validity, enforceability, collectability or sufficiency of this
Agreement or any other Credit Document or for any representations, warranties,
recitals or statements made herein or therein or made in any written or oral
statement or in any financial or other statements, instruments, reports,
certificates or any other documents in connection herewith or therewith
furnished or made by the Administrative Agent to the Banks or by or on behalf of
the US Borrower or any of its Subsidiaries to the Administrative Agent or any
Bank or be required to ascertain or inquire as to the performance or observance
of any of the terms, conditions, provisions, covenants or agreements contained
herein or therein or as to the use of the proceeds of the Loans or of the
existence or possible existence of any Default or Event of Default.
11.04 Reliance by Administrative Agent. The Administrative Agent
--------------------------------
shall be entitled to rely, and shall be fully protected in relying, upon any
note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, facsimile, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
US Borrower or any of its Subsidiaries), independent accountants and other
experts selected by the Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement
or any other Credit Document unless it shall first receive such advice or
concurrence of the Required Banks as it deems appropriate or it shall first be
indemnified to its satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement and the other
Credit Documents in accordance with a request of the Required Banks, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Banks.
11.05 Notice of Default. The Administrative Agent shall not be
-----------------
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has actually received notice
from a Bank or a Borrower referring to this Agreement, describing such Default
or Event of Default and stating that such notice is a "notice of default." In
the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give prompt notice thereof to the Banks. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Banks;
provided, that, unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but shall not be obligated to)
take such action, or
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refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Banks.
11.06 Non-Reliance on Administrative Agent and Other Banks. Each
----------------------------------------------------
Bank expressly acknowledges that neither the Administrative Agent nor any of its
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act by
the Administrative Agent hereinafter taken, including any review of the affairs
of the US Borrower or any of its Subsidiaries, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Bank. Each Bank
represents to the Administrative Agent that it has, independently and without
reliance upon the Administrative Agent or any other Bank, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, assets, operations, property, financial
and other condition, prospects and creditworthiness of the US Borrower and its
Subsidiaries and made its own decision to make its Loans hereunder and enter
into this Agreement. Each Bank also represents that it will, independently and
without reliance upon the Administrative Agent or any other Bank, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement, and to make such investigation as it
deems necessary to inform itself as to the business, assets, operations,
property, financial and other condition, prospects and creditworthiness of the
US Borrower and its Subsidiaries. The Administrative Agent shall not have any
duty or responsibility to provide any Bank with any credit or other information
concerning the business, operations, assets, property, financial and other
condition, prospects or creditworthiness of the US Borrower or any of its
Subsidiaries which may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
11.07 Indemnification. The Banks agree to indemnify the
---------------
Administrative Agent in its capacity as such ratably according to their
respective "percentages" as used in determining the Required Banks at such time,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, reasonable expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Obligations) be imposed on,
incurred by or asserted against the Administrative Agent in its capacity as such
in any way relating to or arising out of this Agreement or any other Credit
Document, or any documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted to be taken by
the Administrative Agent under or in connection with any of the foregoing, but
only to the extent that any of the foregoing is not paid by the US Borrower or
any of its Subsidiaries; provided, that no Bank shall be liable to the
Administrative Agent for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from the gross negligence or willful
misconduct of the Administrative Agent. To the extent any Bank would be
required to indemnify the Administrative Agent pursuant to the immediately
preceding sentence but for the fact that it is a Defaulting Bank, such
Defaulting Bank shall not be entitled to receive any portion of any payment or
other distribution hereunder until each other Bank shall have been reimbursed
for the excess, if any, of the aggregate amount paid by such Bank under this
Section 11.07 over the aggregate amount such Bank would have been obligated
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to pay had such first Bank not been a Defaulting Bank. If any indemnity
furnished to the Administrative Agent for any purpose shall, in the opinion of
the Administrative Agent be insufficient or become impaired, the Administrative
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished. The
agreements in this Section 11.07 shall survive the payment of all Obligations.
11.08 Administrative Agent in its Individual Capacity. The
-----------------------------------------------
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the US Borrower and its
Subsidiaries and Affiliates as though the Administrative Agent were not the
Administrative Agent hereunder. With respect to the Loans made by it and all
Obligations owing to it, the Administrative Agent shall have the same rights and
powers under this Agreement as any Bank and may exercise the same as though it
were not the Administrative Agent and the terms "Bank" and "Banks" shall include
the Administrative Agent in its individual capacity.
11.09 Holders. The Administrative Agent may deem and treat the payee
-------
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person or entity who, at the time of making such
request or giving such authority or consent, is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee, assignee or
indorsee, as the case may be, of such Note or of any Note or Notes issued in
exchange therefor.
11.10 Resignation of the Administrative Agent; Successor
--------------------------------------------------
Administrative Agent. The Administrative Agent may resign as the Administrative
- --------------------
Agent upon 20 days' notice to the Banks. Upon the resignation of the
Administrative Agent, the Required Banks shall appoint from among the Banks a
successor Administrative Agent which is a bank or a trust company for the Banks
subject to prior approval by the US Borrower (such approval not to be
unreasonably withheld or delayed), whereupon such successor agent shall succeed
to the rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall include such successor agent effective upon its
appointment, and the resigning Administrative Agent's rights, powers and duties
as the Administrative Agent shall be terminated, without any other or further
act or deed on the part of such former Administrative Agent or any of the
parties to this Agreement. After the resignation of the Administrative Agent
hereunder, the provisions of this Section 11 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement.
11.11 The Syndication Agent and the Documentation Agent.
-------------------------------------------------
Notwithstanding anything else to the contrary contained in this Agreement or in
any other Credit Document, neither Bayerische Hypo-und Vereinsbank, in its
capacity as Syndication Agent nor BankBoston, N.A., in its capacity as
Documentation Agent, shall have any rights, duties or responsibilities under
this Agreement or under any other Credit Document, or any fiduciary relationship
with any Borrower or any other Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Credit Document or
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otherwise exist against either the Syndication Agent or the Documentation Agent,
in such capacity.
SECTION 12. Miscellaneous.
-------------
12.01 Payment of Expenses, etc. The Borrowers jointly and severally
-------------------------
agree to: (i) whether or not the transactions herein contemplated are
consummated, pay all reasonable out-of-pocket costs and expenses of the
Administrative Agent (including, without limitation, the reasonable fees and
disbursements of White & Case LLP and of the Administrative Agent's local and
foreign counsel) in connection with the negotiation, preparation, execution and
delivery of the Credit Documents and the documents and instruments referred to
therein and any amendment, waiver or consent relating thereto and in connection
with the Administrative Agent's syndication efforts with respect to this
Agreement; (ii) pay all reasonable out-of-pocket costs and expenses of the
Administrative Agent and each of the Banks in connection with the enforcement of
the Credit Documents and the documents and instruments referred to therein and,
after an Event of Default shall have occurred and be continuing, the protection
of the rights of the Administrative Agent and each of the Banks thereunder
(including, without limitation, the reasonable fees and disbursements of counsel
(including in-house counsel) for the Administrative Agent and for each of the
Banks); (iii) pay and hold each of the Banks harmless from and against any and
all present and future stamp and other similar taxes with respect to the
foregoing matters and save each of the Banks harmless from and against any and
all liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to such Bank) to pay such taxes; and (iv)
indemnify the Administrative Agent, the Collateral Agent and each Bank, its
officers, directors, employees, representatives and agents (each an
"Indemnitee") from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses incurred by any of them as a result of,
or arising out of, or in any way related to, or by reason of (a) any
investigation, litigation or other proceeding (whether or not the Administrative
Agent, the Collateral Agent or any Bank is a party thereto) related to the
entering into and/or performance of this Agreement or any other Credit Document
or the use of the proceeds of any Loans hereunder or the consummation of any
other transactions contemplated in any Credit Document, or (b) the actual or
alleged presence of Hazardous Materials in the air, surface water or groundwater
or on the surface or subsurface of any Real Property owned, leased or at any
time operated by the US Borrower or any of its Subsidiaries, the release,
generation, storage, transportation, handling or disposal of Hazardous Materials
at any location, whether or not owned or operated by the US Borrower or any of
its Subsidiaries, the non-compliance of any Real Property with foreign, federal,
state and local laws, regulations, ordinances or Environmental Laws (including
applicable permits thereunder) applicable to any Real Property, or any
Environmental Claim relating to the US Borrower or any of its Subsidiaries or
any Real Property owned, leased or at any time operated by the US Borrower or
any of its Subsidiaries, including, in each case, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding (but excluding any such
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified or of any other Indemnitee who is such Person or an affiliate of
such Person). To the extent that the undertaking to indemnify, pay or hold
harmless any Person set forth in the preceding sentence may be unenforceable
because it is violative of
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any law or public policy, the US Borrower shall make the maximum contribution to
the payment and satisfaction of each of the indemnified liabilities which is
permissible under applicable law.
12.02 Right of Setoff. In addition to any rights now or hereafter
---------------
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event of
Default, each Bank is hereby authorized at any time or from time to time,
without presentment, demand, protest or other notice of any kind to any Borrower
or any of its Subsidiaries or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and apply any and all deposits
(general or special) and any other Indebtedness at any time held or owing by
such Bank (including, without limitation, by branches and agencies of such Bank
wherever located) to or for the credit or the account of any Credit Party
against and on account of the Obligations and liabilities of any Credit Party to
such Bank under this Agreement or under any of the other Credit Documents,
including, without limitation, all interests in Obligations of any Credit Party
purchased by such Bank pursuant to Section 12.06(b), and all other claims of any
nature or description arising out of or connected with this Agreement or any
other Credit Document, irrespective of whether or not such Bank shall have made
any demand hereunder and although said Obligations, liabilities or claims, or
any of them, shall be contingent or unmatured. Notwithstanding anything to the
contrary contained in this Section 12.02, no Bank shall exercise any such right
of set-off without the prior consent of the Administrative Agent or the Required
Banks so long as the Obligations shall be secured by any Real Property located
in the State of California, it being understood and agreed, however, that this
sentence is for the sole benefit of the Banks and may be amended, modified or
waived in any respect by the Required Banks without the requirement of prior
notice to or consent by any Credit Party and does not constitute a waiver of any
rights against any Credit Party or against any Collateral.
12.03 Notices. Except as otherwise expressly provided herein, all
-------
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopy or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to any Credit Party,
at the address specified opposite its signature below or in the other relevant
Credit Documents, as the case may be; if to any Bank, at its address specified
for such Bank on Annex II; or, at such other address as shall be designated by
any party hereto in a written notice to the other parties hereto. All such
notices and communications shall be mailed, telegraphed, telexed, telecopied or
cabled or sent by overnight courier, and shall be effective when received.
12.04 Benefit of Agreement. (a) This Agreement shall be binding
--------------------
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided, that no Credit Party may assign or
transfer any of its rights or obligations hereunder without the prior written
consent of the Banks and, provided further, that, although any Bank may
transfer, assign or grant participations in its rights hereunder, such Bank
shall remain a "Bank" for all purposes hereunder and the transferee, assignee or
participant, as the case may be, shall not constitute a "Bank" hereunder and,
provided further, that no Bank shall transfer or grant any participation under
which the participant shall have rights to approve any amendment to or waiver of
this Agreement or any other Credit Document except to the extent
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such amendment or waiver would (i) extend the final scheduled maturity of any
Loan or Letter of Credit (unless such Letter of Credit is not extended beyond
the Revolving Loan Maturity Date) in which such participant is participating, or
reduce the rate or extend the time of payment of interest or Fees (except in
connection with a waiver of applicability of any post-default increase in
interest rates) or reduce the principal amount thereof (it being understood that
any amendment or modification to the financial definitions in this Agreement or
to Section 12.07(a) shall not constitute a reduction in the rate of interest or
Fees for the purposes of this clause (i)), or increase the amount of the
participant's participation over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default or of a mandatory
reduction in any Commitment shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan shall be permitted
without the consent of any participant if such participant's participation is
not increased as a result thereof), (ii) consent to the assignment or transfer
by the any Borrower of any of its rights and obligations under this Agreement to
the extent relating to such participation or (iii) release all or substantially
all of the Collateral under all of the Security Documents (except as expressly
provided in the Credit Documents). In the case of any such participation, the
participant shall not have any rights under this Agreement or any of the other
Credit Documents (the participant's rights against such Bank in respect of such
participation to be those set forth in the agreement executed by such Bank in
favor of the participant relating thereto) and all amounts payable by the
Borrowers hereunder shall be determined as if such Bank had not sold such
participation.
(b) Notwithstanding the foregoing, any Bank may (x) assign all or a
portion of its Commitments (and related outstanding Obligations hereunder) to
any Affiliate of such Bank or to one or more Banks or (y) assign all, or if less
than all, a portion equal to at least $5,000,000 in the aggregate for the
assigning Bank, of its Commitments (and the related outstanding Obligations
hereunder) to one or more Eligible Transferees, provided that (i) at such time
Annex I shall be deemed modified to reflect the Commitments (and the related
outstanding Obligations hereunder) of such new Bank and of the existing Banks,
(ii) upon surrender of the old Notes, new Notes will be issued, at the
Borrowers' expense, to such new Bank and to the assigning Bank upon the request
of such new Bank and such new Notes to be in conformity with the requirements of
Section 1.05 to the extent needed to reflect the revised Commitments (and the
related outstanding Obligations hereunder), (iii) the consent of the US Borrower
(so long as no Default or Event of Default then exists) and the Administrative
Agent shall be required in connection with any such assignment pursuant to
clause (y) above (each of which consents shall not be unreasonably withheld or
delayed), (iv) the Administrative Agent shall receive at the time of each such
assignment, from the assigning or assignee Bank, the payment of a non-refundable
assignment fee of $3,500 and (v) no assignment shall be effective until recorded
by the Administrative Agent on the Register pursuant to Section 12.17. If any
Bank so sells or assigns all or a part of its rights hereunder or under the
Notes, any reference in this Agreement or the Notes to such assigning Bank shall
thereafter refer to such Bank and to the respective assignee to the extent of
their respective interests and the respective assignee shall have, to the extent
of such assignment (unless otherwise provided therein), the same rights and
benefits as it would if it were such assigning Bank. Each assignment pursuant
to this Section 12.04(b) shall be effected by the assigning Bank and the
assignee Bank executing an Assignment and Assumption Agreement substantially in
the form of Exhibit J, appropriately completed (each, an "Assignment and
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Assumption Agreement"). To the extent of any assignment pursuant to this
Section 12.04(b), the assigning Bank shall be relieved of its obligations
hereunder with respect to its assigned Commitment. At the time of each
assignment pursuant to this Section 12.04(b) to a Person which is not already a
Bank hereunder and which is not a United States person (as such term is defined
in Section 7701(a)(30) of the Code) for United States federal income tax
purposes, the respective assignee Bank shall provide to the US Borrower and the
Administrative Agent the appropriate Internal Revenue Service Forms (and, if
applicable a Section 4.04(b)(ii) Certificate) described in Section 4.04(b).
(c) Nothing in this Agreement shall prevent or prohibit any Bank from
pledging its Loans and Notes hereunder to a Federal Reserve Bank in support of
borrowings made by such Bank from such Federal Reserve Bank.
12.05 No Waiver; Remedies Cumulative. No failure or delay on the
------------------------------
part of the Administrative Agent or any Bank in exercising any right, power or
privilege hereunder or under any other Credit Document and no course of dealing
between any Credit Party and the Administrative Agent or any Bank shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder or under any other Credit Document preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder. The rights and remedies herein expressly
provided are cumulative and not exclusive of any rights or remedies which the
Administrative Agent or any Bank would otherwise have. No notice to or demand
on any Credit Party in any case shall entitle any Credit Party to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Administrative Agent or the Banks to any other or
further action in any circumstances without notice or demand.
12.06 Payments Pro Rata. (a) The Administrative Agent agrees that
-----------------
promptly after its receipt of each payment from or on behalf of any Credit Party
in respect of any Obligations of such Credit Party, it shall, except as
otherwise provided in this Agreement, distribute such payment to the Banks
(other than any Bank that has consented in writing to waive its pro rata share
--- ----
of such payment) pro rata based upon their respective shares, if any, of the
--- ----
Obligations with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings or Fees, of a sum which with respect to the
related sum or sums received by other Banks is in a greater proportion than the
total of such Obligation then owed and due to such Bank bears to the total of
such Obligation then owed and due to all of the Banks immediately prior to such
receipt, then such Bank receiving such excess payment shall purchase for cash
without recourse or warranty from the other Banks an interest in the Obligations
of the respective Credit Party to such Banks in such amount as shall result in a
proportional participation by all of the Banks in such amount; provided, that if
all or any portion
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<PAGE>
of such excess amount is thereafter recovered from such Bank, such purchase
shall be rescinded and the purchase price restored to the extent of such
recovery, but without interest.
12.07 Calculations; Computations. (a) The financial statements to
--------------------------
be furnished to the Banks pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the US Borrower to the Banks); provided, that except as otherwise
specifically provided herein, all computations determining compliance with
Section 8, including definitions used therein, and all computations used in
determining the Applicable Base Margin, the Applicable Euro Rate Margin and the
Applicable Commitment Fee Percentage, shall utilize accounting principles and
policies in effect at the time of the preparation of, and in conformity with
those used to prepare, the year end financial statements of the US Borrower
referred to in Section 6.10(b).
(b) Notwithstanding anything to the contrary contained in clause (a)
of this Section 12.07, for purposes of determining compliance with any tests set
forth in Section 5, 7 and/or 8 (excluding Sections 8.09 and 8.10), any amounts
so incurred or expended (to the extent incurred or expended in a currency other
than Dollars) shall be converted into Dollars on the basis of the Dollar
Equivalent of such amounts as in effect on the date of such incurrence or
expenditure under any provision of any such Section that has an aggregate Dollar
limitation provided for therein (and to the extent the respective incurrence
test regulates the aggregate amount outstanding at any time as expressed in
terms of Dollars, all outstanding amounts originally incurred or spent in
currencies other than Dollars shall be converted into Dollars on the basis of
the Dollar Equivalent of such amounts as in effect on the date any new
incurrence or expenditures made under any provision of any such Section that
regulates the Dollar amount outstanding at any time).
(c) All computations of interest on Base Rate Loans and Fees (other
than Letter of Credit Fees and Facing Fees) hereunder shall be made on the basis
of the actual number of days elapsed over a year of 365/366 days, and all
computations of interest on Euro Rate Loans, Letter of Credit Fees and Facing
Fees shall be made on the basis of actual number of days elapsed over a year of
360 days.
(d) For purposes of this Agreement, the Dollar Equivalent of (i) each
Foreign Revolving Loan, each Foreign Letter of Credit and each US Letter of
Credit denominated in an Alternate Currency, as the case may be, shall be
calculated on the date when (A) such Foreign Revolving Loan is made or repaid,
or (B) such Letter of Credit is issued or any disbursements thereunder
reimbursed (calculated using the spot selling rate quoted by the Administrative
Agent's foreign exchange traders on such date), and (ii) all outstanding Foreign
Revolving Loans, all issued Foreign Letters of Credit and all issued US Letters
of Credit denominated in an Alternate Currency also shall be calculated (A) on
the second Business Day of each month (calculated, in the case of such issued
Letters of Credit only, using the spot selling rate quoted in the Wall Street
Journal on the first business day of such month) and (B) at such other times as
designated by the Administrative Agent. Such Dollar Equivalent shall remain in
effect until the same is recalculated by the Administrative Agent as provided
above and notice of such
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<PAGE>
recalculation is received by the Foreign Borrowers, it being understood that
until such notice is received, the Dollar Equivalent shall be that Dollar
Equivalent as last reported to the Foreign Borrowers by the Administrative
Agent. The Administrative Agent shall promptly notify the Foreign Borrowers and
the Banks of each such determination of the Dollar Equivalent.
12.08 Governing Law; Submission to Jurisdiction; Venue. (a) This
------------------------------------------------
Agreement and the other Credit Documents and the rights and obligations of the
parties hereunder and thereunder shall be construed in accordance with and be
governed by the law of the State of New York (except to the extent otherwise
provided therein). Any legal action or proceeding with respect to this
Agreement or any other Credit Document may be brought in the courts of the State
of New York or of the United States for the Southern District of New York, and,
by execution and delivery of this Agreement, each Borrower hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Each Borrower
hereby further irrevocably waives any claim that any such courts lack personal
jurisdiction over it, and agrees not to plead or claim, in any legal action
proceeding with respect to this Agreement or any other Credit Documents brought
in any of the aforementioned courts, that such courts lack personal jurisdiction
over it. Each Borrower irrevocably consents to the service of process out of
any of the aforementioned courts in any such action or proceeding by the mailing
of copies thereof by registered or certified mail, postage prepaid, to such
Borrower, at its address for notices pursuant to Section 12.03, such service to
become effective 30 days after such mailing. Each Borrower hereby irrevocably
waives any objection to such service of process and further irrevocably waives
and agrees not to plead or claim in any action or proceeding commenced hereunder
or under any other Credit Document that service of process was in any way
invalid or ineffective. Nothing herein shall affect the right of the
Administrative Agent, any Bank or the holder of any Note to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise
proceed against any Borrower in any other jurisdiction.
(b) Each Borrower hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
12.09 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts executed by all the parties hereto shall be lodged with the US
Borrower and the Administrative Agent.
12.10 Effectiveness. This Agreement shall become effective on the
-------------
date (the "Restatement Effective Date") on which (i) each Borrower, the
Administrative Agent, each Existing Bank and each New Bank shall have signed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered the same to the Administrative Agent at the
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<PAGE>
Notice Office or, in the case of the Banks, shall have given to the
Administrative Agent telephonic (confirmed in writing), written or telex notice
(actually received) at such office that the same has been signed and mailed to
it and (ii) the conditions set forth in Section 5 are met to the satisfaction of
the Administrative Agent and the Required Banks. Unless the Administrative Agent
has received actual notice from any Bank that the conditions contained in
Section 5 have not been met to its satisfaction, upon the satisfaction of the
condition described in clause (i) of the immediately preceding sentence and upon
the Administrative Agent's good faith determination that the conditions
described in clause (ii) of the immediately preceding sentence have been met,
then the Restatement Effective Date shall have been deemed to have occurred,
regardless of any subsequent determination that one or more of the conditions
thereto had not been met. The Administrative Agent will give each Borrower and
each Bank prompt written notice of the occurrence of the Restatement Effective
Date.
12.11 Headings Descriptive. The headings of the several sections and
--------------------
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
12.12 Amendment or Waiver. (a) Neither this Agreement nor any other
-------------------
Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the Required Banks and each Borrower; provided, that no
--------
such change, waiver, discharge or termination shall, without the consent of each
Bank (other than a Defaulting Bank) (with Obligations being directly affected in
the case of following clause (i)), (i) extend the final scheduled maturity of
any Loan or any Note or extend the stated expiration date of any Letter of
Credit beyond the Revolving Loan Maturity Date (it being understood that any
waiver of any prepayment of the Loans shall not constitute any such extension),
or reduce the rate or extend the time of payment of interest thereon (other than
as a result of waiving the applicability of any post-default increase in
interest rates) or Fees, or reduce the principal amount thereof (it being
understood that any amendment or modification to the financial definitions in
this Agreement or to Section 12.07(a) shall not constitute a reduction in the
rate of interest or Fees for the purposes of this clause (i)), (ii) release all
or substantially all of the Collateral (except as expressly provided in the
Credit Documents), or release any Guarantor from its obligations thereunder
(except as expressly provided in the Credit Documents), (iii) amend, modify or
waive any provision of this Section 12.12 (except for technical amendments with
respect to additional extensions of credit pursuant to this Agreement which
afford the protections to such additional extensions of credit of the type
provided to the DM Term Loans, the Dollar Revolving Loan Commitments and the
Foreign Revolving Loan Commitments on the Restatement Effective Date), (iv)
reduce the percentage specified in the definition of Required Banks (it being
understood that, with the consent of the Required Banks, additional extensions
of credit pursuant to this Agreement may be included in the determination of the
Required Banks on substantially the same basis as the extensions of DM Term
Loans, Dollar Revolving Loan Commitments and Foreign Revolving Loan Commitments
are included on the Restatement Effective Date) or (v) consent to the assignment
or transfer by any Borrower of any of its rights and obligations under this
Agreement or any other Credit Document except in accordance with the terms
hereof or thereof; provided further, that no such change, waiver, discharge or
termination shall (1) increase the Commitments of any Bank over the amount
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<PAGE>
thereof then in effect without the consent of such Bank (it being understood
that waivers or modifications of conditions precedent, covenants, Defaults or
Events of Default or of a mandatory reduction in the Total Commitment shall not
constitute an increase of the Commitment of any Bank, and that an increase in
the available portion of any Commitment of any Bank shall not constitute an
increase in the Commitments of such Bank), (2) without the consent of the Letter
of Credit Issuer, amend, modify or waive any provision of Section 2 or alter its
rights or obligations with respect to Letters of Credit, (3) without the consent
of BTCo, amend or modify the obligation of BTCo to make Swingline Loans, the
terms of any such Swingline Loans or the obligations of the DRL Banks to fund
Mandatory Borrowings, (4) without the consent of the Administrative Agent,
amend, modify or waive any provision of Section 11 as same applies to the
Administrative Agent or any other provision as same relates to the rights or
obligations of the Administrative Agent, (5) without the consent of the
Collateral Agent, amend, modify or waive any provision relating to the rights or
obligations of the Collateral Agent, or (6) without the consent of the
Supermajority Banks, reduce the amount of, or extend the date of, any Scheduled
Repayment or amend the definition of Supermajority Banks (it being understood
that, with the consent of the Required Banks, additional extensions of credit
pursuant to this Agreement may be included in the determination of the
Supermajority Banks on substantially the same basis as the extensions of DM Term
Loans are included on the Restatement Effective Date). Notwithstanding anything
to the contrary contained in this Agreement, at the written request of the US
Borrower and with the prior written consent of the Required Banks, Holdings GmbH
may be added as an additional "borrower" under the Total Foreign Revolving Loan
Commitment and technical amendments may be made to this Agreement and the other
Credit Documents to reflect Holdings GmbH as an additional "borrower."
(b) If, in connection with any proposed change, waiver, discharge or
termination with respect to any of the provisions of this Agreement as
contemplated by clauses (i) through (v), inclusive, of the first proviso to
Section 12.12(a), the consent of the Required Banks is obtained but the consent
of one or more of such other Banks whose consent is required is not obtained,
then the Borrowers shall have the right, to replace each such non-consenting
Bank or Banks (so long as all non-consenting Banks are so replaced) with one or
more Replacement Banks pursuant to Section 1.13 so long as at the time of such
replacement, each such Replacement Bank consents to the proposed change,
waiver, discharge or termination, provided that the Borrowers shall not have the
right to replace a Bank solely as a result of the exercise of such Bank's rights
(and the withholding of any required consent by such Bank) pursuant to the
second proviso to Section 12.12(a).
12.13 Survival. All indemnities set forth herein including, without
--------
limitation, in Section 1.10, 1.11, 2.05, 4.04, 11.07 or 12.01, shall survive the
execution and delivery of this Agreement and the making and repayment of the
Loans.
12.14 Domicile of Loans. Each Bank may transfer and carry its Loans
-----------------
at, to or for the account of any branch office, subsidiary or affiliate of such
Bank, provided that the Borrowers shall not be responsible for costs arising
under Section 1.10, 2.05 or 4.04 resulting from any such transfer (other than a
transfer pursuant to Section 1.12) to the extent such costs would not otherwise
be applicable to such Bank in the absence of such transfer.
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<PAGE>
12.15 Confidentiality. Each of the Banks agrees that it will use its
---------------
best efforts not to disclose without the prior consent of the US Borrower (other
than to its employees, auditors, counsel or other professional advisors, to
affiliates or to another Bank if the Bank or such Bank's holding or parent
company in its sole discretion determines that any such party should have access
to such information) any information with respect to the US Borrower or any of
its Subsidiaries which is furnished pursuant to this Agreement and which is
designated by the US Borrower to the Banks in writing as confidential provided
that any Bank may disclose any such information (a) as has become generally
available to the public, (b) as may be required or appropriate in any report,
statement or testimony submitted to any municipal, state or Federal regulatory
body having or claiming to have jurisdiction over such Bank or to the Federal
Reserve Board or the Federal Deposit Insurance Corporation or similar
organizations (whether in the United States or elsewhere) or their successors,
(c) as may be required or appropriate in response to any summons or subpoena or
in connection with any litigation, (d) in order to comply with any law, order,
regulation or ruling applicable to such Bank, and (e) to any prospective
transferee in connection with any contemplated transfer of any of the Notes or
any interest therein by such Bank provided that such prospective transferee
agrees to be bound by the provisions of this Section 12.15. No Bank shall be
obligated or required to return any materials furnished by the US Borrower or
any Subsidiary. The US Borrower hereby agrees that the failure of a Bank to
comply with the provisions of this Section 12.15 shall not relieve the US
Borrower of any of its obligations to such Bank under this Agreement and the
other Credit Documents.
12.16 Waiver of Jury Trial. Each of the parties to this Agreement
--------------------
hereby irrevocably waives all right to a trial by jury in any action, proceeding
or counterclaim arising out of or relating to this Agreement, the other Credit
Documents or the transactions contemplated hereby or thereby.
12.17 Register. The Borrowers hereby designate the Administrative
--------
Agent to serve as the Borrowers' agent, solely for purposes of this Section
12.17, to maintain a register (the "Register") on which it will record the
Commitments from time to time of each of the Banks, the Loans made by each of
the Banks and each repayment in respect of the principal amount of the Loans of
each Bank. Failure to make any such recordation, or any error in such
recordation, shall not affect the Borrowers' obligations in respect of such
Loans. With respect to any Bank, the transfer of the Commitments of such Bank
and the rights to the principal of, and interest on, any Loan made pursuant to
such Commitments shall not be effective until such transfer is recorded on the
Register maintained by the Administrative Agent with respect to ownership of
such Commitments and Loans and prior to such recordation all amounts owing to
the transferor with respect to such Commitments and Loans shall remain owing to
the transferor. The registration of assignment or transfer of all or part of
any Commitments and Loans shall be recorded by the Administrative Agent on the
Register only upon the acceptance by the Administrative Agent of a properly
executed and delivered Assignment and Assumption Agreement pursuant to Section
12.04(b). Coincident with the delivery of such an Assignment and Assumption
Agreement to the Administrative Agent for acceptance and registration of
assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor
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<PAGE>
Bank shall surrender the Note evidencing such Loan, and thereupon one or more
new Notes in the same aggregate principal amount shall be issued to the
assigning or transferor Bank and/or the new Bank. The Borrowers jointly and
severally agree to indemnify the Administrative Agent from and against any and
all losses, claims, damages and liabilities of whatsoever nature which may be
imposed on, asserted against or incurred by the Administrative Agent in
performing its duties under this Section 12.17.
12.18 Judgment Currency . (a) The Credit Parties' obligations
-----------------
hereunder and under the other Credit Documents to make payments in the
respective Applicable Currency (the "Obligation Currency") shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation Currency,
except to the extent that such tender or recovery results in the effective
receipt by the Administrative Agent, the Collateral Agent or the respective Bank
of the full amount of the Obligation Currency expressed to be payable to the
Administrative Agent, the Collateral Agent or such Bank under this Agreement or
the other Credit Documents. If for the purpose of obtaining or enforcing
judgment against any Credit Party in any court or in any jurisdiction, it
becomes necessary to convert into or from any currency other than the Obligation
Currency (such other currency being hereinafter referred to as the "Judgment
Currency") an amount due in the Obligation Currency, the conversion shall be
made, at the Deutsche Mark Equivalent or the Dollar Equivalent thereof, as the
case may be, and, in the case of other currencies, the rate of exchange (as
quoted by the Administrative Agent or if the Administrative Agent does not quote
a rate of exchange on such currency, by a known dealer in such currency
designated by the Administrative Agent) determined, in each case, as of the day
immediately preceding the day on which the judgment is given (such day being
hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between
the Judgment Currency Conversion Date and the date of actual payment of the
amount due, the Borrowers covenant and agree to pay, or cause to be paid, such
additional amounts, if any (but in any event not a lesser amount) as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate or exchange prevailing on the Judgment Currency Conversion
Date.
(c) For purposes of determining the Deutsche Mark Equivalent or the
Dollar Equivalent or any other rate of exchange for this Section, such amounts
shall include any premium and costs payable in connection with the purchase of
the Obligation Currency.
12.19 Euro. If while at any time any Loan denominated in an
----
Alternate Currency (an "Alternate Currency Loan") is outstanding, the relevant
Alternate Currency is fully replaced as the lawful currency of the country that
issued such Alternate Currency (the "Issuing Country") by the Euro so that all
payments are to be made in the Issuing Country in Euros and not in the Alternate
Currency previously the lawful currency of such Issuing Country, then such
Alternate Currency Loan shall be automatically converted into a Loan denominated
in Euros in a principal amount equal to the amount of Euros into which the
principal amount of such Alternate Currency Loan would be converted pursuant to
the EMU Legislation (and thereafter no further
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<PAGE>
Loans will be available in such Alternate Currency and all such further Loans
will be made in the Euro), with the basis of accrual of interest, notice
requirements and payment offices with respect to such converted Loans to be that
consistent with the conventions and practices in the London interbank market for
Euro denominated loans.
12.20 Power of Attorney. Each of the Administrative Agent and the
-----------------
Collateral Agent is hereby authorized by, and on behalf of, each Bank to enter
into any Security Document required to be executed and delivered pursuant to
this Agreement or the other Credit Documents in order to secure the obligations
of the Borrowers and Guarantors hereunder and thereunder. Each of the
Administrative Agent and the Collateral Agent shall be entitled to all
declarations, and may appoint any attorney-in-fact to act on its behalf, as it
considers necessary or useful in connection with the aforementioned matters.
The Administrative Agent and the Collateral Agent shall further be entitled to
rescind, amend and/or execute new and different version of afore/mentioned
documents. Each Bank hereby grants to each of the Administrative Agent and the
Collateral Agent an irrevocable power-of-attorney, in such Bank's name, to take
the actions contemplated above in this Section 12.20
* * *
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<PAGE>
WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
Address: U.S.A. FLORAL PRODUCTS, INC.
1025 Thomas Jefferson Street, N.W.
Suite 300 East
Washington, DC 20007 By /s/ RAYMOND C. ANDERSON
Attention: President ------------------------------------
Telephone No. (202) 333-0800 Title: Chief Financial Officer
Fax No.: (202) 333-0803
U.S.A. FLORAL PRODUCTS GERMANY GMBH
& CO. KG
By /s/ WINFRIED FALK
-------------------------------------
Title: Authorized Signatory
FLORIMEX WORLDWIDE B.V.
By /s/ WINFRIED FALK
-------------------------------------
Title: Authorized Signatory
BANKERS TRUST COMPANY,
Individually and as Arranger and
Administrative Agent
By /s/ DAVID J. BELL
-------------------------------------
Title: Vice President
BAYERISCHE HYPO-UND VEREINSBANK AG,
Individually and as Syndication Agent
By /s/ ERICH EBNER VON ESCHENBACH
-------------------------------------
Title: Vice President
<PAGE>
BANKBOSTON, N.A.,
Individually and as Documentation Agent
By /s/ PAMELA A. KUONG
---------------------------------------
Title: Vice President
LASALLE NATIONAL BANK
By /s/ BERNARDO LACAYO
---------------------------------------
Title: Commercial Loan Officer
FLEET BANK, N.A.
By /s/ THOMAS J. LEVY
---------------------------------------
Title: Vice President
NATIONAL BANK OF CANADA
By /s/ RICHARD P. BROWN
---------------------------------------
Title: Vice President
<PAGE>
ANNEX I
-------
LIST OF BANKS
-------------
<TABLE>
<CAPTION>
DM Term Dollar Revolving Foreign Revolving
Bank Loan Commitment Loan Commitment Loan Commitment
---- --------------------------- --------------------------- --------------------------
<S> <C> <C> <C>
Bankers Trust DM46,062,500 $ 72,800,000 $15,000,000
Company
Bayerische DM37,687,500 $ 12,200,000 $ 0
Hypo-und
Vereinsbank AG
BankBoston, N.A. DM0 $ 35,000,000 $ 0
LaSalle National DM0 $ 25,000,000 $ 0
Bank
Fleet Bank, N.A. DM0 $ 25,000,000 $ 0
National Bank of DM0 $ 15,000,000 $ 0
Canada
------------ ------------ -----------
Total: DM83,750,000 $185,000,000 $15,000,000
============ ============ ===========
</TABLE>
<PAGE>
ANNEX II
--------
BANK ADDRESSES
--------------
<TABLE>
<CAPTION>
Bank Address
- ---- -------
<S> <C>
Bankers Trust Company 130 Liberty Street
New York, NY 10006
Attn: David Bell
Tel: (212) 250-9048
Fax: (212) 250-7218
Bayerische Hypo-und Vereinsbank AG 150 East 42nd Street
New York, NY 10017-4679
Attn: Erich Ebner von Eschenbach
Tel: (212) 672-5778
Fax: (212) 672-5516
BankBoston, N.A. 100 Federal Street
Boston, MA 02110
Attn: Pamela A. Kuong
Tel: (617) 434-5781
Fax: (617) 434-5827
LaSalle National Bank 135 South LaSalle Street
Chicago, IL 60603
Attn: Bernado Lacayo
Tel: (312) 904-2786
Fax: (312) 904-6225
Fleet Bank, N.A. 1185 Avenue of the Americas
New York, NY 10036
Attn: Tom Levy
Tel: (212) 819-5751
Fax: (212) 819-4120
National Bank of Canada 401 E. Pratt Street
Suite 631
Baltimore, MD 21202
Attn: Richard P. Brown
Tel: (410) 727-4314
Fax: (410) 837-6359
</TABLE>
