Exhibit 10.39
AMENDMENT
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AMENDMENT (the "Amendment"), dated as of February 1, 1998,
among NORTH ATLANTIC TRADING COMPANY, INC. (the "Borrower"), the institutions
party to the Credit Agreement referred to below (the "Lenders") and NATIONAL
WESTMINSTER BANK PLC, as Administrative Agent"). All capitalized terms used
herein and not otherwise defined shall have the respective meanings provided
such terms in the Credit Agreement.
W I T N E S S E T H :
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WHEREAS, the Borrower, the Lenders and the Administrative
Agent are parties to a Credit Agreement dated as of June 25, 1997 (as currently
in effect, the "Credit Agreement");
WHEREAS, the parties hereto wish to amend the Credit Agreement
as herein provided;
NOW, THEREFORE, it is agreed:
1. Section 4.02(A)(1) of the Credit Agreement is amended by
(I) inserting immediately prior to the reference to "80%" therein the phrase "an
amount equal to (x)" and (II) inserting immediately after the reference to
"December 31, 1997)" therein the phrase "less the aggregate principal amount of
Term Loans voluntarily prepaid during such fiscal year to Section 4.01".
2. Section 7.01(b) of the Credit Agreement is amended by
inserting after the reference to "45 days" therein the phrase "(or 90 days in
the case of the fourth quarter of a fiscal year)".
3. The definition of Consolidated Net Income in Section 10 of
the Credit Agreement is amended by inserting after the reference to "LIFO
reserves" therein the phrase ", defined benefit pension plans, post-retirement
benefit plans under FAS 106 and stock option plans under either APB 25 or SFAS
123".
4. The definition of Excess Cash Flow in Section 10 of the
Credit Agreement is amended by deleting the reference to "or prepayments" in
clause (ii)(z) of such definition.
5. In order to induce the Lenders to enter into this
Amendment, the Borrower (x) represents and warrants that no Default or Event of
Default exists on the Amendment Date referred to below after giving effect to
this Amendment, and (y) makes each of the representations, warranties and
agreements contained in the Credit Agreement on the Amendment Date after giving
effect to this Amendment (it being understood that any representation or
warranty which by its terms is made as of a specified date shall be required to
be true and correct in all material respects as of such date).
6. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
7. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Borrower and the Administrative Agent.
8. This Amendment and the rights and obligations of the
parties hereunder shall be construed in accordance with and governed by the law
of the State of New York.
9. This Amendment shall become effective on the date (the
"Amendment Date") on which each of the Borrower and the Required Lenders shall
have signed a copy hereof (whether the same or different copies) and shall have
delivered (including by way of telecopier) the same to the Administrative Agent
at its Notice Office.
10. At all times on and after the Amendment Date, all
references in the Credit Agreement and each of the Credit Documents to the
Credit Agreement shall be deemed to be references to such Credit Agreement after
giving effect to this Amendment.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
NORTH ATLANTIC TRADING COMPANY, INC.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Executive Vice President &
Chief Financial Officer
NATIONAL WESTMINSTER BANK PLC,
Individually and as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
BANK ONE KENTUCKY, NA
By: /s/ X.X. Xxxxxxx
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Name: X.X. Xxxxxxx
Title: Senior Vice President
XXXXXXX XXXXX CREDIT PARTNERS, L.P.
By: /s/ Xxxxxxx X. XxXxxxxxxx
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Name: Xxxxxxx X. XxXxxxxxxx
Title: Authorized Signatory
XXXXXX COMMERCIAL PAPER INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
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HARCH CAPITAL MANAGEMENT
By:
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Name:
Title:
INDOSUEZ CAPITAL FUNDING II, LTD.
By INDOSUEZ CAPITAL, as Portfolio Advisor
By: /s/ Xxxxxxxxx Xxxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxxx
Title: Vice President
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisers (Bermuda), Ltd.,
as General Partner
By: /s/ Xxxx X. Gold
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Name: Xxxx X. Gold
Title: Managing Director
By: TCW Investment Management Company,
as Investment Advisor
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
CRESCENT/MACH I PARTNERS, L.P.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
PAMCO CAYMAN LTD.
By Protective Asset Management Company
as Collateral Manager
By: /s/ Xxxxx Xxxxxxx, CFA, CPA
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Name: Xxxxx Xxxxxxx, CFA, CPA
Title: President
Protective Asset Management Company
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COMMERCIAL LOAN FUNDING TRUST I
By: Xxxxxx Commercial Paper Inc., not in
its individual capacity but soley as
Administrative Agent
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
SANWA BUSINESS CREDIT CORP.
By: /s/ Xxxxx X. Skavia
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Name: Xxxxx X. Skavia
Title: Vice President
TEXAS COMMERCE BANK/ALLIANCE
CAPITAL MANAGEMENT
By:
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Name:
Title:
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