Exhibit 10.1
THIRD AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT, dated as of February 8, 2008 (this “
Amendment ”), is by and among ALLIANCE ONE
INTERNATIONAL, INC. , a Virginia corporation (the “
Company ”), INTABEX NETHERLANDS B.V. , a
company formed under the laws of The Netherlands and a Subsidiary
of the Company (the “ Dutch Borrower ”; together
with the Company, collectively the “ Borrowers
,” and individually, a “ Borrower ”), each
of the Domestic Subsidiaries of the Borrower from time to time
party hereto (the “ Domestic Guarantors ”),
ALLIANCE ONE INTERNATIONAL AG , a Swiss corporation (“
Alliance AG ”; together with the Company and the
Domestic Guarantors, collectively the “ Guarantors
” and individually, a “ Guarantor ”), and
WACHOVIA BANK, NATIONAL ASSOCIATION , a national banking
association, as administrative agent for the Lenders (in such
capacity, the “ Administrative Agent ”).
W I T N E S S E T H:
WHEREAS , pursuant to the Amended and
Restated Credit Agreement dated as of March 30, 2007 (as previously
amended or modified and as further amended, restated or otherwise
modified from time to time, the “ Credit Agreement
”; capitalized terms used herein and not otherwise defined
shall have the meanings ascribed thereto in the Credit Agreement)
among the Borrowers, the Guarantors, the lenders and other
financial institutions from time to time party thereto (the “
Lenders ”), and the Administrative Agent, the Lenders
have extended commitments to make certain credit facilities
available to the Borrower;
WHEREAS , the Credit Parties have requested
that the Required Lenders amend certain provisions of the Credit
Agreement; and
WHEREAS , the Required Lenders are willing
to make such amendments to the Credit Agreement subject to the
terms and conditions set forth herein
NOW, THEREFORE, IN CONSIDERATION of the
premises and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
SECTION 1
AMENDMENTS
1.1
Amendment to Section 6.8 .
Section 6.8 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
Section 6.8
Fiscal Year; Changes in Capital Structure
or Organizational Documents; Material Contracts; Changes to
Business of Alliance AG.
Each of the Credit Parties will not, nor will it
permit any Subsidiary to, change its fiscal year. Except as
expressly permitted by this Agreement, each of the Credit Parties
will not, nor will it permit any Subsidiary to, (a) make any
material changes in its equity capital structure (including in the
terms of its outstanding Capital Stock) that would reduce or impair
the consolidated equity capital of the Credit Parties and their
Subsidiaries immediately thereafter; provided that, for so
long as the Administrative Agent maintains its first priority lien
on 100% of the issued and outstanding Capital Stock of the Dutch
Borrower, the Credit Parties may amend or modify the equity capital
structure of the Dutch Borrower by (i) reducing the number of, or
canceling any one or more, existing classes of Capital Stock and/or
(ii) issuing new Capital Stock or one or more new classes of
Capital Stock or (b) materially amend, modify or change its
articles of incorporation or limited liability company operating
agreement, as applicable (or corporate charter or other similar
organizational document) or bylaws (or other similar document)
without the prior written consent of the Required Lenders, which
consent shall not be unreasonably withheld; provided that
the consent of the Required Lenders shall not be required in
connection with any amendment to or modification of the articles of
association of the Dutch Borrower necessary to effect any amendment
or modification described in the proviso in clause (a) above.
Each of the Credit Parties will not, nor will it permit any
Subsidiary to, without the prior written consent of the
Administrative Agent, amend, modify, cancel or terminate or extend
or permit the amendment, modification, cancellation or termination
of any of the Material Contracts, except in the event that such
amendments, modifications, cancellations or terminations could not
reasonably be expected to have a Material Adverse Effect. The
Company will not, nor will it permit Alliance AG to, alter the
business of Alliance AG in a manner such that Alliance AG is no
longer the primary trading entity for the Foreign
Subsidiaries.
1.2
Amendment to Section 6.10 .
Section 6.10 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
Section 6.10
Restricted Payments .
Each of the Credit Parties will not, nor will it
permit any Subsidiary to, directly or indirectly, declare, order,
make or set apart any sum for or pay any Restricted Payment, except
(a) to make dividends payable solely in the same class of Capital
Stock of such Person, (b) to make dividends or other distributions
payable to any Credit Party or any Subsidiary (directly or
indirectly through Subsidiaries), (c) to pay regularly scheduled
interest payments in respect of the Senior Notes and the Senior
Subordinated Notes, (d) to make other Restricted Payments so long
as (i) no Default or Event of Default shall have occurred or be
continuing or would result from any such Restricted Payment, (ii)
at the time of each such Restricted Payment and after giving effect
to each such Restricted Payment on a Pro Forma Basis, the Credit
Parties are in compliance with the financial covenants set forth in
Section 5.9(a)-(c), (iii) the Company shall have been in
compliance, as of the most recent fiscal quarter end for which the
Company has delivered a Compliance Certificate, with the
Consolidated Interest Coverage Ratio, Consolidated Leverage Ratio
and Consolidated Total Senior Debt to Borrowing Base Ratio levels
required by Sections 5.9 for such fiscal quarter end, (iv) such
Restricted Payment is permitted by the terms of the Senior
Indenture, the Senior Subordinated Indenture and any other
agreement or instrument governing or evidencing Indebtedness of the
Credit Parties and their
Subsidiaries and (v) such Restricted
Payments, together with the aggregate amount of all other
Restricted Payments declared or made by the Credit Parties and
their Subsidiaries on or after the Closing Date (excluding
Restricted Payments permitted by subsections (a) and (c) above
and (f) below), do not exceed the sum of (A) 50% of Consolidated
Net Income for the period (taken as one accounting period) from
the beginning of the fiscal quarter commencing after the Closing
Date to the end of the most recent fiscal quarter of the Company
for which the Administrative Agent has received financial
statements pursuant to Section 5.1(a) or (b) (or, if such
Consolidated Net Income for such period is a deficit, less 100%
of such deficit) plus (B) 50% of the aggregate Net Cash
Proceeds received by the Credit Parties and their Subsidiaries
from Equity Issuances after the Closing Date, (e) to make other
Restricted Payments so long as (i) no Default or Event of
Default shall have occurred or be continuing or would result
from any such Restricted Payment, (ii) at the time of each such
Restricted Payment and after giving effect to each such
Restricted Payment on a Pro Forma Basis, the Cred
