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:
"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.
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:
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
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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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