Exhibit 4.01(h)
WAIVER
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WAIVER (this "Waiver"), dated as of December 23, 1999, among U.S.A.
FLORAL PRODUCTS, INC., a Delaware corporation (the "US Borrower"), U.S.A.
FLORAL PRODUCTS GERMANY GMBH & CO. KG, a partnership organized under the laws of
the Federal Republic of Germany (the "German Borrower"), FLORIMEX WORLDWIDE
B.V., a company organized under the laws of the Netherlands (the "Dutch
Borrower" and, together with the German Borrower and the US Borrower, the
"Borrowers", and each a "Borrower"), the lenders party to the Credit Agreement
referred to below (the "Banks"), 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 (the "Administrative
Agent"). Unless otherwise defined herein, all capitalized terms used herein and
defined in the Credit Agreement are used herein as so defined.
WITNESSETH:
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WHEREAS, the Borrowers, the Banks, the Syndication Agent, the
Documentation Agent and the Administrative Agent are parties to a Credit
Agreement, dated as of October 16, 1997 and amended and restated as of October
2, 1998 (as further amended, modified or supplemented to, but not including, the
date hereof, the "Credit Agreement"); and
WHEREAS, subject to the terms and conditions of this Waiver, the
parties hereto agree as follows;
NOW, THEREFORE, it is agreed:
1. The Banks hereby waive any Default or Event of Default which may
have arisen or may arise solely as a result of the Borrowers failing to comply
with any of Sections 7.11(c), (d), (g), (i) or 8.09 of the Credit Agreement
during the period from October 1, 1999 through March 31, 2000, provided, however
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(i) that the Borrowers shall be required to be in such compliance with each such
Section referred to above on and after April 1, 2000 and (ii) if the Borrowers
have not complied with the aforementioned requirements by April 1, 2000, an
Event of Default under the Credit Agreement shall be deemed to have occurred on
such date.
2. Notwithstanding anything to the contrary contained in the Credit
Agreement or in paragraph numbered 2 of that certain Waiver, dated as of
November 9, 1999, among the Borrowers, the Banks, the Syndication Agent, the
Documentation Agent and the Administration Agent, until such time as the
Required Banks otherwise agree in writing, prior to January 15, 2000 the US
Borrower shall not be permitted to incur and have outstanding Dollar Revolving
Loans or Swingline Loans, or issue any US Letters of Credit on or after the date
hereof in an aggregate amount in excess of $164,000,000 (the sum of the
principal amount and/or Stated Amount of such Dollar Revolving Loans, Swingline
Loans and US Letters of Credit is hereinafter referred to as "Dollar
Outstandings"). From and after January 15, 2000, the US Borrower shall not be
permitted to incur and have outstanding Dollar Outstandings in an aggregate
amount in excess of $164,000,000 unless the US Borrower has theretofore
delivered to the Administrative Agent a written report from Xxxxxxxx & Xxxxx
demonstrating to the Administrative Agent's
satisfaction that the US Borrower requires additional liquidity in a minimum
amount acceptable to the Administrative Agent, in which case the US Borrower
shall be permitted to have Dollar Outstandings in an aggregate amount up to, but
(until such time as the Required Banks otherwise agree in writing) no more than,
$174,000,000.
3. This Waiver shall become effective on the date (the "Waiver
Effective Date") when the Borrowers and the Required Banks shall have signed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered (including by way of facsimile transmission) the same to the
Administrative Agent at the Notice Office.
4. In order to induce the Banks to enter into this Waiver, each
Borrower hereby represents and warrants that (i) the representations, warranties
and agreements contained in Section 6 of the Credit Agreement are true and
correct in all material respects on and as of the Waiver Effective Date, after
giving effect to this Waiver, and (ii) there exists no Default or Event of
Default on the Waiver Effective Date, after giving effect to this Waiver.
5. This Waiver is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
6. This Waiver may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the US Borrower and the Administrative Agent.
7. THIS WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
8. From and after the Waiver Effective Date, all references in the
Credit Agreement and in the other Credit Documents to the Credit Agreement shall
be deemed to be references to the Credit Agreement as modified hereby.
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Waiver as of the date first above written.
U.S.A. FLORAL PRODUCTS, INC.
By /s/ Xxxxxx X. Xxxxxxx
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Title:
U.S.A FLORAL PRODUCTS GERMANY GMBH
& CO. KG
By /s/ Xxxxxx X. Xxxxxxx
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Title:
FLORIMEX WORLDWIDE B. V.
By /s/ Xxxxxx X. Xxxxxxx
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Title:
BANKERS TRUST COMPANY,
Individually and as Arranger and
Administrative Agent
By
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Title: Director
BAYERISCHE HYPO-UND VEREINSBANK AG,
Individually and as Syndication Agent
By Xxxxx Xxxxx X. Xxxxxxxxxx
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Title: Xxxxx Xxxxx X. Xxxxxxxxxx
Managing Director
By Xxxxxx Xxxxx
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Title: Xxxxxx Xxxxx
Director
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BANKBOSTON, N.A., Individually and as
Documentation Agent
By /s/ Xxxxxx X. Xxxxx
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Title: Vice President
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NATIONAL BANK OF CANADA
By /s/
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Title: VP/MANAGER
By /s/
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Title: VP
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FLEET BANK, N.A.
By /s/ Xxxxxx X. Xxxx
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Title: Vice President
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XXXXX XXXX XX XXXXXXXXXX, N.A.
By /s/ J. Xxxxxxx Xxxxxx
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Title: J. Xxxxxxx Xxxxxx
Vice President
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XXXXXXX BANK
By /s/ Xxxxxx Jungnickl
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Title: Xxxxxx Jungnickl
Vice President
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