AMENDED AND RESTATED
CASH MANAGEMENT AGREEMENT
This Amended and Restated Cash Management Agreement (this
"Agreement") is made and entered into as of June 16, 1997 by and among BT Office
Products International, Inc., a Delaware corporation ("BTOPI"), acting for
itself and each of its wholly-owned subsidiaries incorporated and doing business
in the United States (collectively, the "BTOPI Group"), Sengewald USA, Inc., a
Maryland corporation ("Sengewald"), and KNP BT USA Holdings, Inc., a Delaware
corporation ("Holdings").
W I T N E S S E T H:
WHEREAS, the BTOPI Group, Sengewald, KNP BT Antilliana N.V., a
Netherlands Antilles corporation ("Antilliana"), and KNP BT Finance (USA), Inc.,
a Delaware corporation ("KNP BT Finance"), are parties to the Cash Management
Agreement dated June 24, 1996, as modified by the Termination Agreement dated as
of April 27, 1997 terminating Astro-Valcour, Inc. and each of its wholly-owned
subsidiaries from such agreement (as so modified, the "Existing Agreement"); and
WHEREAS, pursuant to the Existing Agreement, the BTOPI Group,
Sengewald and Antilliana have been investing cash in their bank accounts with
KNP BT Finance and KNP BT Finance has been covering any overdrafts in their bank
accounts up to specified limits; and
WHEREAS, in connection with the anticipated dissolution of KNP
BT Finance and cessation of treasury operations of Antilliana, KNP BT Finance
and Antilliana wish to terminate their obligations under the Existing Agreement
and the BTOPI Group, Sengewald and Holdings wish to institute a new cash
management program under which cash will be invested with BTOPI and BTOPI will
cover overdrafts up to specified limits.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. This Agreement shall be effective from and after the date
hereof and the Existing Agreement is hereby terminated and of no further force
or effect. Each of the BTOPI Group and Sengewald acknowledges that any and all
amounts owing to it under the Existing Agreement have been paid in full. By
executing the Acknowledgement on the signature page hereto, each of KNP BT
Finance and Antilliana also acknowledges that the Existing Agreement is hereby
terminated and that any and all amounts owing to it under the Existing Agreement
have been paid in full.
2. Each of the parties to this Agreement shall establish an
account or accounts (each, a "Designated Account") at First National Bank of
Maryland or such other bank in the United States as all of the parties shall
agree (the "Sweep Bank"). Each party shall give the Sweep Bank instructions
that, for value at the close of each business day, any net positive balance in
the Designated Accounts of any of the parties other than BTOPI shall be
transferred to the Designated Account of BTOPI at the Sweep Bank and any net
overdraft in the Designated Accounts of any of the parties other than BTOPI
shall be covered by a transfer from the Designated Account of BTOPI to the
Designated Account of the party with the overdraft up to limits to be arranged
separately.
3. Any transfer to BTOPI shall constitute a loan from the
transferring party to BTOPI, and any transfer from BTOPI to another party shall
constitute a loan from BTOPI to that party.
4. On any positive balance transferred by another party to it,
BTOPI shall pay interest at the LIBO Rate (as hereinafter defined) minus .625%.
On any overdraft covered by a transfer of funds from BTOPI, the party receiving
the transfer shall pay interest to BTOPI at the LIBO Rate plus .625%. For
purposes of this Agreement, the term "LIBO Rate" shall mean, with respect to any
transfer of funds constituting a loan hereunder with a one (1) month interest
period, an interest rate per annum (rounded upwards, if necessary, to the next
1/100 of 1%) equal to the rate set by the Sweep Bank as the LIBO Rate as of
11:00 a.m. (local time at the principal office of the Sweep Bank) on the date of
such loan for deposits in Dollars and for a maturity comparable to such interest
period.
5. Interest due to or from BTOPI shall be accumulated for the
period through the end of each month or to the termination date of this
Agreement, as the case may be, and shall be paid for value not later than the
third day thereafter that banks are open for business at the location of the
Sweep Bank.
6. Not later than the day prior to the date when an interest
payment is due, BTOPI shall provide the party to receive or make such payment
with an accounting of interest earned and interest charged for the period to be
covered by such payment.
7. This Agreement shall terminate as to any party upon the
first to occur of the following:
(1) the expiration of thirty days following written notice by
such party (the "terminating party") to each other party to
this Agreement terminating this Agreement as to such
terminating party;
(2) any payment of interest due from such party pursuant
hereto shall not be made when and as due and in accordance
with the terms of this Agreement and such failure shall
continue for 14 days;
(3) (A) such party shall fail to pay, in accordance with its
terms and when due and payable, any of the principal of or
interest on any of its indebtedness (other than amounts due
hereunder) or (B) the maturity of any such indebtedness shall,
in whole or in part, have been accelerated, or any such
indebtedness shall, in whole or in part, have been required to
be prepaid prior to the stated maturity thereof, in accordance
with the provisions governing such indebtedness, and in the
case of each of (A) and (B) such event shall not be cured
within 14 days;
(4) (A) such party shall commence any case, proceeding or
action (x) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or
seeking to adjudicate it bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with
respect to it or its debts, or (y) seeking appointment of a
receiver, trustee, custodian, conservator or other similar
official for it or for all or any substantial part of its
assets, or such party shall make a general assignment for the
benefit of its creditors; or (B) there shall be commenced
against such party any case, proceeding or action of a nature
referred to in clause (A) above which (x) results in the entry
of an order for relief or any such adjudication or appointment
or (y) remains undismissed, undischarged or unbonded for a
period of 30 days; or (C) there shall be commenced against
such party any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its
assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 30 days from the entry
thereof; or (D) such party shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (A), (B)
or (C) above; or (E) such party shall generally not, or shall
be unable to, or shall admit in writing its inability to, pay
its debts as they become due;
(5) the guaranty of a person guaranteeing the obligations of
such party hereunder shall cease, for any reason, to be in
full force and effect;
(6) N.V. Koninklijke KNP BT shall at any time, directly or
indirectly, fail to own, beneficially, more than 50% of the
issued and outstanding share capital of BTOPI, in which case
this Agreement shall terminate as to all parties;
(7) as to Sengewald or Holdings, N.V. Koninklijke KNP BT shall
at any time, directly or indirectly, fail to own,
beneficially, more than 50% of the issued and outstanding
share capital of Sengewald or Holdings, as the case may be; or
(8) the mutual written consent of the parties hereto.
8. By executing a copy of this Agreement as guarantor in the
space provided below, N.V. Koninklijke KNP BT hereby unconditionally guarantees
the obligations hereunder of Sengewald and Holdings.
9. Except as otherwise expressly provided, all notices,
communications and materials to be given or delivered pursuant to this Agreement
shall be given or delivered in writing (which shall include telecopy
transmissions) at the respective addresses and telecopier numbers and to the
attention of the individuals or departments listed on Exhibit A to this
Agreement or at such other address or telecopier or telephone number or to the
attention of such other individual or department as the party to which such
information pertains may hereafter specify. Notices, communications and
materials shall be deemed given or delivered when delivered or received at the
appropriate address or telecopy number to the attention of the appropriate
individual or department.
10. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto were upon the same instrument.
11. This Agreement embodies the entire agreement between the
parties hereto relating to the subject matter hereof and supersedes all prior
agreements, representations and understandings, if any, relating to the subject
matter hereof.
12. This Agreement shall governed by and construed in
accordance with the laws of the State of Delaware, USA, without giving effect to
any doctrine of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
BT OFFICE PRODUCTS INTERNATIONAL, INC.
By:/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President of Finance and Chief Financial Officer
SENGEWALD USA, INC.
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
Title: President
KNP BT USA HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
(AS TO SECTION 1 OF THIS AGREEMENT)
ACKNOWLEDGED AND AGREED TO:
KNP BT FINANCE (USA), INC.
By: /s/ Andre X.X. Xxxxxxxxx
--------------------------------------
Name: Andre X.X. Xxxxxxxxx
Title: President
KNP BT ANTILLIANA N.V.
By: /s/ Andre X.X. Xxxxxxxxx
--------------------------------------
Name: Andre X.X. Xxxxxxxxx
Title: Managing Director
Guarantees of the Obligations Hereunder of:
Sengewald and Holdings:
N.V. KONINKLIJKE KNP BT
By: /s/ F.J. de Wit
--------------------------------------
Name: F.J. de Wit
Title: Chairman
By: /s/ R.W.J.M Bonnier
--------------------------------------
Name: R.W.J.M Bonnier
Title: Board Member
EXHIBIT A
BT Office Products Sengewald USA, Inc.
International, Inc. c/o N.V. Koninklijke KNP BT
0000 Xxxx Xxxx Xxxx Xxxx, Xxxxx 000 Museumplein 9
Buffalo Grove, Illinois 60089 1071 DJ Amsterdam
Attn: Chief Financial Officer X.X. Xxx 00000
Telecopier #: + 000-000-0000 The Netherlands
Attn: Director of Fiscal Affairs
Telecopier #: x000 00 00 000 0000
KNP BT USA Holdings, Inc.
c/o N.V. Koninklijke KNP BT
Xxxxxxxxxxx 0
0000 XX Xxxxxxxxx
X.X. Xxx 00000
Xxx Xxxxxxxxxxx
Attn: Director of Fiscal Affairs
Telecopier #: x000 00 00 000 0000
N.V. Koninklijke KNP BT
Xxxxxxxxxxx 0
0000 XX Xxxxxxxxx
X.X. Xxx 00000
Xxx Xxxxxxxxxxx
Attn: Director of Fiscal Affairs
Telecopier #: x000 00 00 000 0000
