ELEVENTH AMENDMENT
ELEVENTH AMENDMENT, dated as of February 3, 1997 (this "Amendment"),
to the Credit Agreement, dated as of February 23, 1993 (as amended from time to
time prior to the date hereof, the "Credit Agreement"), among Consolidated
Cigar Corporation (individually and as successor by merger to Consolidated
Cigar Acquisition Corporation, the "Company"), Congar Newco Inc. ("Congar
Newco"), the financial institutions from time to time parties thereto (the
"Banks") and The Chase Manhattan Bank, as agent (in such capacity, the
"Agent").
W I T N E S S E T H :
WHEREAS, each of the Company and Congar Newco is a party to the Credit
Agreement;
WHEREAS, each of the Company and Congar Newco has requested that the
Banks amend the Credit Agreement as more fully set forth herein;
WHEREAS, the Banks and the Agent are willing to consent to such
amendments only upon the terms, and subject to the conditions, set forth
herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Company, Congar Newco, the Banks and the Agent
hereby agree as follows:
1. Definitions. All terms defined in the Credit Agreement shall have
such defined meanings when used herein unless otherwise defined herein.
2. Amendment to Section 1.01--Definition of Applicable Margin. The
definition of "Applicable Margin" set forth in Section 1.01 of the Credit
Agreement is hereby amended and restated in its entirety as follows:
"Applicable Margin" shall mean: (a) with respect to Base Rate Loans,
0%; (b) with respect to Eurodollar Loans, 1.00%; and (c) with respect to
936 Rate Loans, 1.00%; provided that the Applicable Margin for each Type of
Loans, for any period from and including the Quarterly Date occurring on or
immediately following the date on which the Company shall have delivered a
certificate of the Company signed on its behalf by a Senior Financial
Officer to the Agent demonstrating in reasonable detail (based upon
financial statements for the fiscal period of the Company most recently
ended that have been delivered to the Banks pursuant to Section 9.01(a) or
(b) hereof) that the Consolidated Debt to Cash Flow Ratio, as of the last
day of such fiscal period, is within one of the ranges set forth below to
but excluding the next succeeding Quarterly Date, shall equal the
percentage set forth below for Loans of such Type:
2
Consolidated
Debt to Cash Base Rate Eurodollar 936 Rate
Flow Ratio Loans Loans Loans
----------- --------- ---------- --------
Greater than 1.75% 2.75% 2.75%
4.00 to 1
Less than or equal to 1.50% 2.50% 2.50%
4.00 to 1 but
greater than
3.25 to 1
Less than or equal to 1.00% 2.00% 2.00%
3.25 to 1 but
greater than
2.50 to 1
Less than or equal to .50% 1.50% 1.50%
2.50 to 1 but
greater than
2.00 to 1
Less than or equal 0% 1.00% 1.00%
to 2.00 to 1
provided further that (i) during any period when an Event of Default shall
have occurred and be continuing, the Consolidated Debt to Cash Flow Ratio
for the purposes of this definition shall be deemed to be greater than 4.00
to 1, (ii) in calculating the Consolidated Debt to Cash Flow Ratio for the
purposes of this definition, Consolidated Cash Flow shall be calculated
without reference to clause (c) in the definition of "Consolidated Cash
Flow" in this Section 1.01 and (iii) no change in the Applicable Margin in
effect on January 29, 1997 shall be effected pursuant to this definition
until financial statements for the fiscal year of the Company ending
December 31, 1996 shall have been delivered pursuant to Section 9.01(a)
hereof.
3. Amendment to Section 1.01--Definition of Commitment Fee Rate.
Section 1.01 of the Credit Agreement is hereby amended by adding the following
definition in the appropriate alphabetical order:
"Commitment Fee Rate" shall mean 0.25% per annum; provided that the
Commitment Fee Rate, for any period from and including the Quarterly Date
occurring on or immediately following the date on which the Company shall
have delivered a certificate of the Company signed on its behalf by a
Senior Financial Officer to the Agent demonstrating in reasonable detail
(based upon financial statements for the fiscal period of the Company most
recently ended that have been delivered to the Banks pursuant to Section
9.01(a) or (b) hereof) that the Consolidated Debt to Cash Flow Ratio, as of
the last day of such fiscal period, is within one of the
3
ranges set forth below to but excluding the next succeeding Quarterly Date,
shall equal the percentage per annum set forth below:
Consolidated Commitment
Debt to Cash Fee
Flow Ratio Rate
------------ ----------
Greater than 0.500%
2.50 to 1
Less than or equal to 0.375%
2.50 to 1 but
greater than
2.00 to 1
Less than or equal 0.250%
to 2.00 to 1
provided further that (i) during any period when an Event of Default shall
have occurred and be continuing, the Consolidated Debt to Cash Flow Ratio
for the purposes of this definition shall be deemed to be greater than 2.50
to 1, (ii) in calculating the Consolidated Debt to Cash Flow Ratio for the
purposes of this definition, Consolidated Cash Flow shall be calculated
without reference to clause (c) in the definition of "Consolidated Cash
Flow" in this Section 1.01 and (iii) no change in the commitment fee in
effect on January 29,1997 shall be effected pursuant to this definition
until financial statements for the fiscal year of the Company ending
December 31, 1996 shall have been delivered pursuant to Section 9.01(a)
hereof.
4. Amendment to Section 2.04--Scheduled RC Commitment Reductions. The
text of each of paragraph (b) and paragraph (d) of Section 2.04 of the Credit
Agreement is hereby deleted and, in each case, replaced with the reference
"[INTENTIONALLY OMITTED]". In addition, the definition of "Non-Scheduled RC
Reduction" is hereby deleted from Section 1.01 of the Credit Agreement.
5. Amendment to Section 2.05--Commitment Fees. Section 2.05 of the
Credit Agreement is hereby amended by replacing each reference to the
percentage "1/2 of 1%" contained therein with a reference to the term "the
Commitment Fee Rate".
6. Amendment to Section 2.10--Excess Cash Flow. The text of paragraph
(d) of Section 2.10 of the Credit Agreement is hereby deleted and replaced with
the reference "[INTENTIONALLY OMITTED]". In addition, the definition of "Excess
Cash Flow" is hereby deleted from Section 1.01 of the Credit Agreement.
7. Amendment to Section 9.09--Purchase of Subordinated Notes. Section
9.09 of the Credit Agreement is hereby amended by adding a new clause (vii) at
the end of paragraph (d) thereof which shall read in its entirety as follows:
4
"(vii) the Company may, so long as no Default shall have occurred and
be continuing or would result therefrom, purchase or redeem the
Subordinated Notes and pay premiums in connection therewith, provided that
not more than $25,000,000 in aggregate principal amount of the Subordinated
Notes may be so purchased or optionally redeemed during the term of this
Agreement."
8. Amendment to Section 9.11--Capital Expenditures. Section 9.11 of
the Credit Agreement is hereby amended by changing each reference to the amount
"$5,100,000" contained therein to the amount "$5,500,000".
9. RC Commitments. The parties hereto hereby agree that, on the date
hereof, the aggregate amount of the RC Commitments is equal to $14,887,410.
10. Conditions to Effectiveness. This Amendment shall become effective
on and as of the date that the Agent shall have received counterparts of this
Amendment, duly executed by the Company, Congar Newco and each Bank.
11. Representations and Warranties. Each of the Company and Congar
Newco, as of the date hereof and after giving effect to the amendments
contained herein, hereby confirms, reaffirms and restates the representations
and warranties made by it in Section 8 of the Credit Agreement and otherwise in
the Credit Documents to which it is a party; provided that each reference to
the Credit Agreement therein shall be deemed to be a reference to the Credit
Agreement after giving effect to this Amendment.
12. Reference to and Effect on the Credit Documents; Limited Effect.
On and after the date hereof and the satisfaction of the conditions contained
in Section 10 of this Amendment, each reference in the Credit Agreement to
"this Agreement", "hereunder", "hereof" or words of like import referring to
the Credit Agreement, and each reference in the other Credit Documents to "the
Credit Agreement", "thereunder", "thereof" or words of like import referring to
the Credit Agreement, shall mean and be a reference to the Credit Agreement as
modified hereby. The execution, delivery and effectiveness of this Amendment,
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Bank or the Agent under any of the Credit
Documents, nor constitute a waiver or amendment of any provisions of any of the
Credit Documents. Except as expressly modified herein, all of the provisions
and covenants of the Credit Agreement and the other Credit Documents are and
shall continue to remain in full force and effect in accordance with the terms
thereof and are hereby in all respects ratified and confirmed.
13. Counterparts. This Amendment may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
5
14. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
CONSOLIDATED CIGAR CORPORATION
By: /s/ Xxxx X. Xxxxx
---------------------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice-President, Chief Financial
Officer, Secretary & Treasurer
CONGAR NEWCO INC.
By: /s/ Xxxx X. Xxxxx
---------------------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice-President, Finance
Treasurer & Finance
THE CHASE MANHATTAN BANK, as Agent
and as a Bank
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice-President
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxxxxx X Xxxxxxx
---------------------------------------------
Name: Xxxxxx X Xxxxxxx
Title: Vice-President
GIROCREDIT BANK
By: /s/ Xxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxxx
Title: Vice-President
6
NATIONSBANK, N.A.
By: /s/ Xxxx Callicolt
---------------------------------------------
Name: Xxxx Callicolt
Title: Vice-President
BANCO SANTANDER PUERTO RICO
By: /s/ Xxxxxx Xxxx
---------------------------------------------
Name: Xxxxxx Xxxx
Title: Senior Vice-President
