FIRST AMENDMENT, dated as of April 27, 1998 (this "First Amendment"),
to the Credit Agreement, dated as of March 2, 1998 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among
CONSOLIDATED CIGAR CORPORATION (the "Company"), the financial institutions from
time to time parties thereto (the "Lenders"), CHASE SECURITIES, INC., as
arranger, THE CHASE MANHATTAN BANK, as administrative agent (in such capacity,
the "Administrative Agent"), NATIONSBANK, N.A., as documentation agent (in such
capacity, the "Documentation Agent"), and CREDIT SUISSE FIRST BOSTON, as
syndication agent (in such capacity, the "Syndication Agent").
W I T N E S S E T H :
WHEREAS, the Company has requested that the Credit Agreement be amended
as more fully set forth herein;
WHEREAS, the Lenders and the Administrative Agent are willing to
consent to such amendment 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, the Lenders and the Administrative
Agent hereby agree as follows:
1. Definitions. Capitalized terms which are used herein shall have the
meanings assigned to them in the Credit Agreement, unless otherwise defined
herein.
2. First Amendment to the Credit Agreement. (a) Subsection 1.1 of the
Credit Agreement is hereby amended by (i) deleting the reference to
"$140,000,000" in the definition of "Aggregate Commitment" and replacing it with
"$190,000,000" and (ii) deleting the reference to "for the fiscal quarter ended
June 30, 1998" in the definitions of "Applicable Margin" and "Commitment Fee
Rate" and replacing it with "for the fiscal year ended December 31, 1998";
(b) Subsection 4.1 of the Credit Agreement is hereby amended by adding
the following clause (b) thereto and relettering subsections 4.1(b), (c) and (d)
as 4.1(c), (d) and (e), respectively:
"On December 31, 1999, the Aggregate Commitment shall be reduced by
$20,000,000 and on December 31, 2000, the Aggregate Commitment shall be
reduced by $30,000,000. Such reductions of the Aggregate Commitment
shall be pro rata among the Lenders and shall permanently reduce the
Aggregate Commitment then in effect."
(c) Subsection 8.6(c) of the Credit Agreement is hereby amended by
deleting it in its entirety and replacing it with the following:
"(c) So long as no Default or Event of Default has occurred and is
continuing at the time such Restricted Payment is made or would result
therefrom, (i) for the
1998 fiscal year of the Company, Restricted Payments in an aggregate
amount not to exceed the sum of (A) the greater of (I) 50% of
Consolidated Net Income for the prior fiscal year (the "NI Amount") and
(II) $10,000,000 plus (B) $5,000,000 ( provided that, to the extent
Restricted Payments actually made in the 1998 fiscal year exceed the
amount permitted by clause (i)(A) above, such excess amount shall be
the "Additional RP Amount"), and (ii) for each fiscal year of the
Company thereafter, Restricted Payments in an aggregate amount not to
exceed the greater of (I) the NI Amount and (II) $10,000,000, provided
that, for the 1999 and each subsequent fiscal year of the Company, to
the extent the NI Amount exceeds $10,000,000 such NI Amount shall be
reduced to $10,000,000 to the extent of the Additional RP Amount (but
only to the extent the Additional RP Amount has not been applied in
prior fiscal years to reduce the NI Amount), and provided, further,
that to the extent that Restricted Payments actually made in the 1998
fiscal year exceed the amount permitted by clause (i)(A) to be made,
such excess shall be made solely for the purpose of enabling Holdings
to repurchase its capital stock."
(d) Schedule 1.1(B) of the Credit Agreement is hereby amended by
deleting it in its entirety and replacing it with Schedule 1.1(B) attached
hereto as Annex A.
3. Fee. The Company agrees to pay to each Lender a fee in an amount
equal to .15% of the amount by which such Lender's Commitment is increased by
this First Amendment.
4. Conditions to Effectiveness. This First Amendment shall become
effective on and as of the date that the Administrative Agent shall have
received counterparts of this First Amendment duly executed by the Company and
the Required Lenders.
5. Representations and Warranties. The Company, as of the date hereof
and after giving effect to the amendments contained herein, hereby confirms,
reaffirms and restates in all material respects the representations and
warranties made by it in Section 5 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 First Amendment.
6. 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 4 of this First 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 First
Amendment, shall not, except as expressly provided herein, operate as a waiver
of any right, power or remedy of any Lender or the Administrative 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. This First Amendment
shall constitute a Credit Document.
7. Counterparts. This First 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.
8. GOVERNING LAW. THIS FIRST 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 First 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:
THE CHASE MANHATTAN BANK, as Administrative
Agent and as a Lender
By:
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Name:
Title:
NATIONSBANK, N.A., as Documentation Agent
and as a Lender
By:
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Name:
Title:
CREDIT SUISSE FIRST BOSTON, as Syndication
Agent and as a Lender
By:
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Name:
Title:
By:
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Name:
Title:
CREDIT LYONNAIS ATLANTA AGENCY
By:
------------------------------------------
Name:
Title:
BANCO POPULAR DE PUERTO RICO
By:
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Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By:
------------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
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Name:
Title:
BANK ONE, KENTUCKY, N.A.
By:
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Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
Title:
NATEXIS BANQUE BFCE
By:
------------------------------------------
Name:
Title:
SUNTRUST BANK, SOUTH FLORIDA, N.A.
By:
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Name:
Title:
ROYAL BANK OF CANADA
By:
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Name:
Title:
ERSTE BANK
By:
------------------------------------------
Name:
Title:
Each of the undersigned hereby consents to
the First Amendment and reaffirms its
Guarantee of all Obligations under the
Credit Documents as revised by the First
Amendment.
CONSOLIDATED CIGAR HOLDINGS INC.
By:
------------------------------------------
Name:
Title:
TRIPLE C MARKETING INC.
By:
------------------------------------------
Name:
Title:
CONGAR INTERNATIONAL CORPORATION
By:
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Name:
Title:
