EXHIBIT 99.2
2005A AMENDMENT TO LOAN AGREEMENT
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This is a 2005A Amendment to the Loan Agreement (as defined below)
(this "Amendment" or this "Agreement") dated as of January 19, 2005, by and
among (i) XX XXXXXX XXXXX BANK, N.A. ("Xxxxxx") (the successor to Bank One, NA),
a national banking association with an office and place of business in
Louisville, Kentucky, as agent bank on behalf of the Banks defined herein ("the
Agent Bank") (Xxxxxx may also be referred to as a "Bank"); (ii) Xxxxxx and
LaSalle Bank, National Association ("LaSalle" each a "Bank" and collectively,
the "Banks"); (iii) NORTH ATLANTIC TRADING COMPANY, INC., a Delaware corporation
with its principal office and place of business and registered office in New
York, New York (the "Borrower"); (iv) the SUBSIDIARIES identified on Schedule
1.2 hereto (each a "Subsidiary" and collectively, the "Subsidiaries"); and (v)
NORTH ATLANTIC HOLDING COMPANY, INC., a Delaware corporation with its principal
office and place of business and registered office in New York, New York, and
the 100% owner of the Borrower ("Holdco").
RECITALS:
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A. The Borrower, Holdco and the Subsidiaries have entered into a
certain Amended and Restated Loan Agreement with the Agent Bank and the Banks,
dated as of February 17, 2004, as amended to the date hereof (the "Loan
Agreement").
B. The Borrower, Holdco and the Subsidiaries wish to enter into this
Amendment for the purposes of amending certain sections of the Loan Agreement.
The Agent Bank and the Banks are agreeable to such amendments, upon the terms
and conditions set forth herein.
NOW THEREFORE, the Borrower, Holdco, the Subsidiaries, the Agent Bank
and LaSalle agree as follows:
1. AMENDMENTS TO LOAN AGREEMENT.
A. Section 1.75 of the Loan Agreement is hereby deleted in its
entirety and replaced with the following:
"Management Group" means Xxxxxx X. Xxxxx, Xx. and any other member of
the senior management of the Borrower.
B. Section 1.95 of the Loan Agreement is hereby deleted in its
entirety and replaced with the following:
"1.95 "Revolving Credit Facility" means the revolving line of credit
established by the Banks in favor of the Borrower in a principal
amount equal to the following amounts during the following periods:
(a) from Closing Date until January 18, 2005, Fifty Million Dollars
($50,000,000); and (b) from January 19, 2005, until Revolving Loan
Commitment Termination Date, Thirty Five Million Dollars
($35,000,000), pursuant to which the Borrower may obtain Revolving
Credit Loans from the Banks and/or Letters of Credit from the Agent
Bank during the term of the Revolving Credit Facility upon the terms
and conditions set forth in this Loan Agreement. The Revolving Credit
Facility includes as a sublimit the Letter of Credit Subfacility. All
references to the "aggregate principal balance of the Revolving Credit
Loans outstanding" or similar phrases in this Loan Agreement or in the
Revolving Credit Notes shall mean, as of the date of determination
thereof, the sum of (i) the entire aggregate outstanding principal
balance of all Revolving Credit Loans made by the Banks pursuant to
this Loan Agreement and (ii) the then existing Letter of Credit
Usage."
C. The second sentence of Section 2.1A of the Loan Agreement is
hereby deleted in its entirety and replaced with the following:
"The amount of each Bank's Revolving Loan Commitment is set forth
opposite its name on Schedule 2.1 annexed to this Loan Agreement and
the aggregate amount of the Revolving Loan Commitments is Fifty
Million Dollars ($50,000,000) from the Closing Date until January 18,
2005, and Thirty Five Million Dollars ($35,000,000) from January 19,
2005, until the Revolving Loan Commitment Termination Date."
D. Section 7.13 of the Loan Agreement is hereby deleted in its
entirety and replaced with the following:
"7.13 Principal Management. Xxxxxx X. Xxxxx, Xx. shall remain active
in the day-to-day operation and management of the Borrower and the
Subsidiaries in his current position with the Borrower or such other
position with responsibilities similar to those currently associated
with his current position".
E. Section 15 Notices is hereby amended by deleting all references to
Xxxxx X. Xxxxxxx in the information relating to the addresses of the Borrower
and the Subsidiaries and replacing such references with Xxxxxx X. Xxxxx, Xx.
F. Schedule 2.1 of the Loan Agreement is hereby deleted in its
entirety and replaced with the Schedule 2.1 attached to this Amendment.
2. Ratification. Except as specifically amended by the provisions
hereinabove, the Loan Agreement remain in full force and effect. The Borrower,
Holdco and each Subsidiary hereby reaffirms and ratifies all of its respective
obligations under the Loan Agreement, as amended and modified hereby, the
Guaranty and the Loan Documents.
3. CONDITIONS PRECEDENT. The Agent Bank's obligations under this
Agreement are expressly conditioned upon, and subject to the following:
A. the execution and delivery by the Borrower, Holdco and each
Subsidiary of this Agreement;
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B. the representations and warranties of the Borrower, Holdco and
each Subsidiary shall be true and accurate in all respects; and
C. the reimbursement of the Agent Bank for its reasonable and
necessary out-of-pocket fees and expenses in connection with the documentation
of this 2005A Amendment.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. To induce the Agent
Bank and LaSalle to enter into this Agreement, the Borrower, Holdco and each
Subsidiary represents and warrants to Agent Bank as follows:
A. The Borrower, Holdco and each Subsidiary has full power,
authority, and capacity to enter into this Agreement, and this Agreement
constitutes the legal, valid and binding obligations of the Borrower, Holdco and
each Subsidiary, enforceable against it in accordance with its terms.
B. Upon execution and delivery of this Agreement and after giving
effect thereto, no Event of Default under any of the Loan Documents and any
other documents, certificates or instruments under the Loan Agreement or any
other of the Loan Documents shall exist which continues unwaived by the Agent
Bank, and no event which with the passage of time, the giving of notice or both
would constitute an Event of Default, exists as of the date hereof.
C. The person executing this Agreement on behalf of the Borrower,
Holdco and each Subsidiary is duly authorized to do so.
D. The representations and warranties made by the Borrower, Holdco
and each Subsidiary in any of the Loan Documents are hereby true and correct in
all material respects as of the date hereof.
E. There are no pending or, to the knowledge of the Borrower
threatened, any action, suit, proceeding or arbitration or, to the knowledge of
the Borrower, any governmental investigation pending or threatened, against or
affecting the Borrower or the Subsidiaries or any property of the Borrower or
the Subsidiaries seeking damages in excess of $1,000,000 in the aggregate, which
has not been disclosed by the Borrower pursuant to Section 6.9 of the Loan
Agreement or which prior to (a) the making of the last preceding Revolving
Credit Loan or (b) the issuing of the most recent Letter of Credit or the most
recent extension of the stated maturity date of any Letter of Credit, prior to
the execution of this Agreement, if determined adversely, would have a Material
Adverse Effect. Further, there has occurred no development not so disclosed in
any such action, suit, proceeding, governmental investigation or arbitration so
disclosed, which, in either event, in the opinion of the Borrower, could
reasonably be expected to have a Material Adverse Effect on the financial
condition of the Borrower and the Subsidiaries on a consolidated basis. No
injunction or other restraining order has been issued and no hearing to cause an
injunction or other restraining order to be issued is pending or noticed with
respect to any action, suit or proceeding seeking to enjoin or otherwise prevent
the consummation of this Agreement or the continuation of making Revolving
Credit Loans or the issuing or extension of the respective stated expiration
dates of the Letters of Credit under the Loan Agreement.
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5. MISCELLANEOUS.
A. To the extent that assignment is permitted under this Agreement,
the provisions of this Agreement shall bind and benefit the Borrower, Holdco and
each Subsidiary and the Agent Bank and LaSalle and their respective, successors
and assigns, including each subsequent holder, if any, of the Revolving Credit
Note.
B. This Agreement, the other Loan Documents and the related writings
and the respective rights and obligations of the parties hereto shall be
construed in accordance with and governed by the laws of the State of New York.
C. Neither the Borrower, Holdco nor any Subsidiary may assign their
rights under this Agreement to any other party. This Agreement may be modified
only in writing executed by the Agent Bank, LaSalle and the Borrower, Holdco and
each Subsidiary.
D. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability or any one or more of
the other provisions hereof. The Borrower, Holdco, each Subsidiary, LaSalle and
the Agent Bank agree that this Agreement shall be so interpreted as to give
effect and validity to all the provisions hereof to the fullest extent permitted
by law.
E. The Borrower, Holdco and each Subsidiary shall sign such financing
statements or other documents or instruments as the Agent Bank may reasonably
request from time to time to more fully create, perfect, continue, maintain or
terminate the rights and security interests intended to be granted or created
pursuant to this Agreement or the other Loan Documents.
F. The headings used in this Agreement are included for ease of
reference only and shall not be considered in the interpretation or construction
of this Agreement.
G. This Agreement may be signed by each party upon a separate copy,
and in such case one counterpart of this Agreement shall consist of enough of
such copies to reflect the signature of each party. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
and it shall not be necessary in making proof of this Agreement or the terms
thereof to produce or account for more than one of such counterparts.
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IN WITNESS WHEREOF, the Agent Bank, each Bank, the Borrower, Holdco
and each Subsidiary has caused this Loan Agreement to be duly executed as of the
day and year first above written.
XX XXXXXX XXXXX BANK, N.A.
as Agent Bank
(the "Agent Bank")
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, Senior Vice President
XX XXXXXX CHASE BANK, N.A. as a Bank (a "Bank")
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, Senior Vice President
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LASALLE BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, Senior Vice President
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NORTH ATLANTIC TRADING COMPANY, INC.,
as the Borrower
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Xxxxxx X. Xxxxx, Xx., Chief Executive Officer
NATIONAL TOBACCO COMPANY, L.P., as a Subsidiary
By NATIONAL TOBACCO FINANCE
CORPORATION as its general partner
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Xxxxxx X. Xxxxx, Xx., Chief Executive Officer
NORTH ATLANTIC OPERATING COMPANY, INC.
as a Subsidiary
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Xxxxxx X. Xxxxx, Xx., Chief Executive Officer
NATIONAL TOBACCO FINANCE CORPORATION
as a Subsidiary
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Xxxxxx X. Xxxxx, Xx., Chief Executive Officer
NORTH ATLANTIC HOLDING COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Xxxxxx X. Xxxxx, Xx., Chief Executive Officer
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XXXXXX, INC.
as a Subsidiary
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Xxxxxx X. Xxxxx, Xx., Chief Executive Officer
RBJ SALES, INC.
as a Subsidiary
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Xxxxxx X. Xxxxx, Xx., Chief Executive Officer
XXXX XXXXXX & SONS, INC.
as a Subsidiary
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Xxxxxx X. Xxxxx, Xx., Chief Executive Officer
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