THIRTEENTH AMENDMENT
THIRTEENTH AMENDMENT, dated as of July 29, 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 International Corp.
(f/k/a 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, the Company intends to consummate the Honduras Acquisition
(as defined below);
WHEREAS, each of the Company and Congar Newco wishes to change the
respective Commitments of the Banks in the manner specified herein;
WHEREAS, each of the Company and Congar Newco has requested that the
Banks amend the Credit Agreement as more fully set forth herein; and
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. Commitments. Effective on the Effective Date (as defined below),
the Commitments of the Banks shall be changed to the respective amounts set
forth on Annex I to this Amendment, and the relevant provisions of the Credit
Agreement shall be deemed to be amended to the extent necessary to reflect such
changes.
3. New Definitions. Section 1.01 of the Credit Agreement is hereby
amended by adding the following definitions in the appropriate alphabetical
order:
"Fabrica" shall mean Fabrica de Tabacos La Xxxx xx Xxxxx, S.A. de
C.V., a Honduras corporation.
"Honduras Acquisition" shall mean the acquisition by the Company of no
less than 50.1% and no more than 75.0% of the equity of Fabrica for a cash
price equal to the product of (x) the aggregate percentage of the equity of
Fabrica to be acquired by the Company, expressed in decimal terms and (y)
$20,000,000.
4. Amendment to Section 9.08--Investments. Section 9.08 of the Credit
Agreement is hereby amended by adding the following new clause (k) to the end
thereof:
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"and (k) the consummation of the Honduras Acquisition"
5. Amendment to Section 9.09--Dividend Payments. Section 9.09 of the
Credit Agreement is hereby amended by adding the following sentences to the end
of paragraph (a) thereof:
"In addition, Fabrica will not declare or make any Honduras Dividend
Payment (as defined below) at any time unless such Honduras Dividend
Payment is made on a pro rata basis (or a basis more favorable to the
Company and its other Subsidiaries) to each holder of capital stock of
Fabrica. For the purposes of the preceding sentence, "Honduras Dividend
Payment" refers, with respect to Fabrica, to payments or other transactions
of the type described in the definition of "Dividend Payment", with each
reference in such definition to the Company being deemed for this purpose
to be replaced by a reference to Fabrica. Each reference to Fabrica in the
preceding two sentences shall be deemed to include a reference to any
non-wholly owned Subsidiary of Fabrica."
6. Amendment to Section 12.06--Assignments. Clause (iii) of Section
12.06(b) of the Credit Agreement is hereby amended by adding the following
words to the end thereof:
"unless otherwise agreed by the Company and the Agent"
7. Conditions to Effectiveness. This Amendment shall become effective
on and as of the date (the "Effective Date") on which all of the following
conditions shall have been satisfied (which date shall, in any event, be no
later than September 30, 1997): (a) the Agent shall have received counterparts
of this Amendment, duly executed by the Company, Congar Newco and each of the
Banks, (b) the Agent shall have received executed Notes reflecting the changed
Commitments as described above, duly executed by the Company or Congar Newco,
as the case may be, (c) the Honduras Acquisition shall have been consummated,
(d) the Agent shall have received a satisfactory acknowledgement and consent
with respect to the matters described in this Amendment from each Credit Party
which shall, among other things, provide that the existing Security Documents
shall continue to apply to the obligations under the Basic Documents as
modified pursuant to this Amendment, (e) the Agent shall have received a
satisfactory supplement to the Security Agreement pursuant to which the capital
stock of Fabrica acquired by the Company in connection with the Honduras
Acquisition (not to exceed 65% of the total outstanding capital stock of
Fabrica) (the "New Pledged Stock") shall be pledged as collateral thereunder,
(f) all actions necessary or advisable under the laws of New York to establish
and perfect the Agent's first priority security interest in the New Pledged
Stock shall have been taken and (g) the Agent shall have received a
satisfactory signed opinion from Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx.
8. 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 Basic 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.
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9. Reference to and Effect on the Basic Documents; Limited Effect. On
and after the Effective Date, 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 Basic 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 Basic
Documents, nor constitute a waiver or amendment of any provisions of any of the
Basic Documents. Except as expressly modified herein, all of the provisions and
covenants of the Credit Agreement and the other Basic 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.
10. 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.
11. 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:
--------------------------------
Name:
Title:
XXXXXX XXXXXXXXXXXXX XXXX. (x/x/x
Xxxxxx Xxxxx Inc.)
By:
--------------------------------
Name:
Title:
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THE CHASE MANHATTAN BANK, as Agent
and as a Bank
By:
--------------------------------
Name:
Title:
BANKBOSTON, N.A.
By:
--------------------------------
Name:
Title:
GIROCREDIT BANK
By:
--------------------------------
Name:
Title:
NATIONSBANK, N.A.
By:
--------------------------------
Name:
Title:
BANCO SANTANDER PUERTO RICO
By:
--------------------------------
Name:
Title:
Annex I
to Thirteenth Amendment
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Bank Cigar WC Cigar XX Xxxxxx XX Xxxxxx RC
Commitment Commitment Commitment Commitment
---------------------------------------------------------------------------------------------
The Chase Manhattan Bank $0 $10,562,153.29 $2,339,385.10 $0
---------------------------------------------------------------------------------------------
BankBoston, N.A. $4,166,666.66 $11,602,367.40 $0 $0
---------------------------------------------------------------------------------------------
Girocredit Bank $4,166,666.67 $3,861,444.97 $0 $0
---------------------------------------------------------------------------------------------
NationsBank, N.A. $4,166,666.67 $3,861,444.97 $0 $0
---------------------------------------------------------------------------------------------
Banco Santander Puerto Rico $0 $0 $5,160,614.90 $0
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