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EXHIBIT 10.42
FOURTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
This fourth amendment to amended and restated credit agreement
("Amendment"), dated as of August 10, 2000, is made and entered into by and
between REDHOOK ALE BREWERY, INCORPORATED, a Washington corporation
("Borrower"), and U.S. BANK NATIONAL ASSOCIATION, a national banking
association, successor by merger to U. S. Bank of Washington, National
Association ("U.S. Bank"). Words and phrases with initial capital letters have
the meanings given to them in Article I of this Amendment.
R E C I T A L S :
A. On or about June 5, 1995, U.S. Bank and Borrower entered into
that certain amended and restated credit agreement (together with all
amendments, supplements, exhibits, and modifications thereto, the "Credit
Agreement"), whereby U.S. Bank agreed to make loans and advances of credit to
Borrower on the terms and conditions set forth therein.
B. Borrower and U.S. Bank have entered into three amendments to
the Credit Agreement, dated as of July 25, 1996, September 15, 1997, and
February 22, 1999, respectively, whereby U.S. Bank extended the Commitment
Period of the Revolving Loan.
C. Borrower and U.S. Bank have agreed to extend the Commitment
Period to July 1, 2002. The purpose of this Amendment is to set forth the terms
and conditions of U.S. Bank's and Borrower's agreements.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions set forth herein, the parties agree as follows:
ARTICLE I. DEFINITIONS AND AMENDMENT
1.1 Defined Terms. As used in this Amendment, words and phrases
with initial capital letters shall have the meanings given to them in the Credit
Agreement, except as otherwise defined herein, or as the context otherwise
requires.
1.2 Modified and Additional Defined Terms. Section 1.1 of the
Credit Agreement is modified to amend in their entirety (if presently defined in
Section 1.1 of the Credit Agreement) or add (if not presently defined in Section
1.1 of the Credit Agreement) the following defined terms:
"Fourth Amendment" means that certain fourth amendment to amended
and restated credit agreement, dated as of August 10, 2000, by and between
Borrower and U.S. Bank, and includes all amendments, supplements, exhibits, and
modifications to the Fourth Amendment.
1.3 Incorporation of Recitals and Exhibits. The foregoing
recitals are incorporated into this Amendment by reference. All references to
"Exhibits" contained herein
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are references to exhibits attached to this Amendment, the terms and conditions
of which are made a part of this Amendment for all purposes.
1.4 Amendment. The Credit Agreement and the other Loan Documents
are hereby amended as set forth herein. Except as specifically provided herein,
all of the terms and conditions of the Credit Agreement and each of the other
Loan Documents and all amendments thereto shall remain in full force and effect
throughout the terms of the Loans and any extensions or renewals thereof.
ARTICLE II. REVOLVING LOAN AND ACQUISITION LOANS
2.1 Revolving Loan. Article II of the Credit Agreement is hereby
amended in its entirety to read as follows:
ARTICLE II. REVOLVING LOAN
2.1 Revolving Loan Commitment. Subject to and upon the terms and
conditions set forth herein and in reliance upon the representations,
warranties, and covenants of Borrower contained herein or made pursuant
hereto, U.S. Bank will advance funds to Borrower from time to time
during the period ending on July 1, 2002 ("Commitment Period"), in an
aggregate amount not exceeding at any one time $10,000,000, less the
aggregate amount of all Acquisition Loans then outstanding ("Revolving
Loan"). Borrower may borrow, repay without penalty or premium (except as
provided in Section 4.12 hereof), and reborrow hereunder, either the
full amount of the Revolving Loan or any lesser sum.
2.2 Use of Proceeds. The proceeds of the Revolving Loan shall be
used by Borrower for general corporate purposes, including financing of
Capital Expenditures in accordance with the terms of this Agreement;
provided that, and subject to the other limitations set forth in
Articles VII and VIII of this Agreement, usage of the Revolving Loan for
an acquisition of all or substantially all of the assets of a brewery or
an investment in the capital stock of a brewery is limited to
$10,000,000 per occurrence and $10,000,000 in the aggregate, without
U.S. Bank's prior written consent. Notwithstanding anything to the
contrary in this Section 2.2, Borrower shall not use any proceeds of the
Revolving Loan to repay any Acquisition Loan.
2.3 Renewal Revolving Note. Concurrently with the execution of
this Amendment, Borrowing shall execute and deliver to U.S. Bank a
renewal promissory note in the form attached hereto as Exhibit A
("Renewal Revolving Note"). The Renewal Revolving Note shall be made in
substitution for, but not in payment of the renewal revolving note dated
as of February 22 1999, which shall be marked "renewed" and retained by
U.S. Bank until the Revolving Loan has been paid in full and U.S. Bank's
commitment to make advances under the Revolving Loan has terminated.
Upon execution of this Amendment, the Renewal Revolving Note shall be a
"Revolving Note" for all purposes of the Credit Agreement and the other
Loan Documents.
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2.4 Revolving Loan Interest Rates. Subject to Section 4.9 herein,
Borrower shall pay interest on the principal amount outstanding under
the Revolving Loan from time to time at a per annum rate of interest
equal to the applicable Prime Borrowing Rate for any Prime Rate
Borrowing, and at the applicable LIBOR Borrowing Rate for any LIBOR Rate
Borrowing, pursuant to the other terms and conditions hereof and subject
to adjustment as set forth in Section 4.1 of this Agreement.
2.5 Repayment of Revolving Loan.
(a) Until the Revolving Loan shall have been paid in full,
Borrower shall pay in arrears to U.S. Bank an amount equal to all
accrued interest on the Revolving Loan on the first day of the first
month following the initial advance under the Revolving Loan and on the
same day of each month thereafter.
(b) Borrower shall repay each advance that is in an amount of
$100,000 or more within 120 days of its disbursement ("Borrowing
Period"). Within the Borrowing Period, Borrower may repay any advance
that was made in an amount of $100,000 or more by converting it to an
Acquisition Loan as provided in Section 2.7 of this Agreement. Borrower
shall pay U.S. Bank all outstanding principal, accrued interest, and
other charges with respect to the Revolving Loan on July 1, 2002.
2.6 Revolving Loan Fee. On July 1, 2001, Borrower shall pay U.S.
Bank a nonrefundable fee of $25,000 for this Revolving Loan amendment.
2.7 Acquisition Loans. Subject to and upon the terms and
conditions set forth herein, and in reliance by U.S. Bank upon the
representations, warranties, and covenants of Borrower contained herein
or made pursuant hereto, Borrower may elect to convert any advance under
the Revolving Loan to a term loan ("Acquisition Loan"), by giving U.S.
Bank at least ten Business Days' written notice prior to the expiration
of the Borrowing Period ("Conversion Notice"). The Conversion Notice
shall state (a) the date and amount of the advance that Borrower has
elected to convert to an Acquisition Loan; (b) the effective date of the
conversion to an Acquisition Loan (which must be no later than the
expiration of the Borrowing Period), and (c) an Amortization Term of up
to 120 months for the requested Acquisition Loan. Borrower may elect to
convert advances under the Revolving Loan to Acquisition Loans only so
long as no Default or Event of Default exists and in amounts of not less
than $100,000.
2.8 Acquisition Notes. Each Acquisition Loan shall be evidenced
by a promissory note substantially in the form attached to the Third
Amendment as Exhibit B ("Acquisition Note"). Each Acquisition Note shall
state the principal amount of the Acquisition Loan evidenced by the
Acquisition Note, shall be dated as of the effective date of the
Acquisition Loan, and shall provide for the Acquisition Note's maturity
on the date five years after the date of the first required principal
and interest payment.
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2.9 Acquisition Loan Interest Rates. Subject to Section 4.9
herein, Borrower shall pay interest from the date of the Acquisition
Note on the principal amount thereof remaining unpaid from time to time
at a per annum rate of interest equal to the applicable Prime Borrowing
Rate for any Prime Rate Borrowing, and at the applicable LIBOR Borrowing
Rate for any LIBOR Rate Borrowing, pursuant to the other terms and
conditions hereof and subject to adjustment as set forth in Section 4.1
of this Agreement.
2.10 Repayment of Acquisition Loans.
(a) With respect to each Acquisition Loan, commencing on the
first day of the first month following the date of the Acquisition Note
evidencing such Loan, and continuing on the first day of each month
thereafter, Borrower shall pay U.S. Bank all accrued interest on the
principal balance of the Acquisition Loan.
(b) With respect to each Acquisition Loan, in addition to the
interest payments required in Section 2.10(a), Borrower shall make
monthly payments of principal to U.S. Bank in 60 equal, consecutive
installments of principal sufficient to repay the initial principal
balance of such Acquisition Loan over the amortization period, not to
exceed 120 months, that Borrower selected for the Acquisition Loan in
its Conversion Notice ("Amortization Term"). Borrower's monthly
principal payments with respect to each Acquisition Loan shall commence
on the first day of the first month following the date of the
Acquisition Note evidencing such Loan, and shall continue on the first
day of each month thereafter.
(c) Borrower shall pay U.S. Bank all outstanding principal,
accrued interest, and other charges with respect to an Acquisition Loan
on the date five years after the date of the first required principal
and interest payment with respect to such Loan, whether or not and
regardless of when made. Borrower understands and agrees that a
substantial portion of the principal balance will be outstanding and
unpaid on the maturity date of any Acquisition Loan for which Borrower
has selected an Amortization Term of more than 60 months.
2.11 Acquisition Loan Fee. Concurrently with Borrower's delivery
of any Conversion Notice to U.S. Bank, Borrower shall pay a
nonrefundable fee for the requested Acquisition Loan equal to 0.25
percent of the requested Acquisition Loan's principal balance.
ARTICLE III. CONDITIONS PRECEDENT
U.S. Bank shall have no obligation to modify the terms of the
Loans as provided in this Amendment unless the following conditions have been
fulfilled to the satisfaction of U.S. Bank:
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(a) U.S. Bank shall have received this Amendment and the Renewal
Revolving Note, duly executed and delivered by Borrower.
(b) All corporate proceedings of Borrower and its Subsidiaries
shall be satisfactory in form and substance to U.S. Bank, and U.S. Bank
shall have received all information and copies of all documents,
including records of all corporate proceedings, that U.S. Bank has
requested in connection therewith, such documents where appropriate to
be certified by proper corporate authorities or Governmental Bodies.
(c) There shall not then exist any Default or Event of Default
hereunder as of the date hereof.
(d) All representations and warranties of Borrower contained
herein or made in writing in connection herewith shall be true and
correct as of the date hereof.
ARTICLE IV. GENERAL PROVISIONS
4.1 Representations and Warranties. Borrower hereby represents
and warrants to U.S. Bank that, to the best knowledge and belief of Borrower, as
of the date of this Amendment, there exists no Default or Event of Default. All
representations and warranties of Borrower contained in the Credit Agreement and
the other Loan Documents, or otherwise made in writing in connection therewith,
are true and correct as of the date of this Amendment. Borrower acknowledges and
agrees that all of Borrower's Indebtedness to U.S. Bank is payable without
offset, defense, or counterclaim.
4.2 Guaranties. The parties hereby acknowledge and agree that all
guaranties now existing or hereafter obtained by U.S. Bank shall remain in full
force and effect, are valid and enforceable in accordance with their terms, and
are not subject to offset, defense, or counterclaim.
4.3 Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall constitute an original agreement, but all of
which together shall constitute one and the same agreement.
4.4 STATUTORY NOTICE. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN
MONEY, EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT
ENFORCEABLE UNDER WASHINGTON LAW.
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IN WITNESS WHEREOF, U.S. Bank and Borrower have caused this
Amendment to be duly executed by their respective duly authorized officers or
agents as of the date first above written.
REDHOOK ALE BREWERY, INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxxx
Xxxxx Xxxxxxxxx,
Executive Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Vice President
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By execution of this Amendment, the undersigned Guarantor
approves of the changes to the Credit Agreement set forth herein, agrees to be
bound by Section 4.2 herein, reaffirms its Guaranty, and acknowledges and agrees
that its obligations under its Guaranty are not subject to any defense, offset,
or counterclaim.
REDHOOK OF NEW HAMPSHIRE, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
Xxxxx Xxxxxxxxx,
Executive Vice President
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EXHIBIT A
to Fourth Amendment to Amended and Restated Credit Agreement
RENEWAL REVOLVING NOTE
$10,000,000 August 10, 2000
For value received, the undersigned, REDHOOK ALE BREWERY,
INCORPORATED, a Washington corporation ("Borrower"), promises to pay to the
order of U.S. BANK NATIONAL ASSOCIATION, successor by merger to U. S. Bank of
Washington, National Association ("U.S. Bank"), at its principal place of
business, at Xxxx Xxxxxx Xxx 0000, Xxxxxxxx, Xxxxxx 00000-0000, or such other
place or places as the holder hereof may designate in writing, the principal sum
of Ten Million Dollars ($10,000,000) or so much thereof as advanced by U.S. Bank
in lawful immediately available money of the United States of America, in
accordance with the terms and conditions of that certain amended and restated
credit agreement dated as of June 5, 1995, by and between Borrower and U.S. Bank
(together with all supplements, exhibits, modifications, and amendments thereto,
including the fourth amendment to amended and restated credit agreement ("Fourth
Amendment") of even date herewith, the "Credit Agreement"). Borrower also
promises to pay interest on the unpaid principal balance hereof, commencing as
of the date hereof, in like money in accordance with the terms and conditions
and at the rate or rates provided for in the Credit Agreement. All principal,
interest, and other charges are due and payable in full on July 1, 2002.
Borrower and all endorsers, sureties, and guarantors hereof
jointly and severally waive presentment for payment, demand, notice of
nonpayment, notice of protest, and protest of this Note, and all other notices
in connection with the delivery, acceptance, performance, default, dishonor, or
enforcement of the payment of this Note except such notices as are specifically
required by this Note or by the Credit Agreement, and they agree that the
liability of each of them shall be unconditional without regard to the liability
of any other party and shall not be in any manner affected by any indulgence,
extension of time, renewal, waiver, or modification granted or consented to by
U.S. Bank. Borrower and all endorsers, sureties, and guarantors hereof (1)
consent to any and all extensions of time, renewals, waivers, or modifications
that may be granted by U.S. Bank with respect to the payment or other provisions
of this Note and the Credit Agreement; (2) consent to the release of any
property now or hereafter securing this Note with or without substitution; and
(3) agree that additional makers, endorsers, guarantors, or sureties may become
parties hereto without notice to them and without affecting their liability
hereunder.
This Note is made in substitution for, but not in payment of,
that certain renewal revolving note dated as of February 22, 1999, is the
Renewal Revolving Note referred to in the Fourth Amendment, and is a "Revolving
Note" for purposes of the Credit Agreement and as such is entitled to all of the
benefits and obligations specified in the Credit Agreement, including but not
limited to any Collateral and any conditions to making advances hereunder. This
Note is secured by the lien of the Deed of Trust encumbering real and personal
property in King County, Washington, dated August 9, 1993, and recorded with the
Division of Records and Elections of King County, Washington, on August 10,
1993, under recording No. 9308101757, to which
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reference is hereby made for a description of the nature and extent of the
security provided thereby and the rights and limitations of rights of U.S. Bank
and of Borrower in respect of such security. Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is made to the
Credit Agreement for provisions for the repayment of this Note and the
acceleration of the maturity hereof.
REDHOOK ALE BREWERY, INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxxx
Xxxxx Xxxxxxxxx, Executive Vice President
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EXHIBIT B
to Fourth Amendment to Amended and Restated Credit Agreement
ACQUISITION NOTE
$_________________ _______________, _____
For value received, the undersigned, REDHOOK ALE BREWERY,
INCORPORATED, a Washington corporation ("Borrower"), promises to pay to the
order of U.S. BANK NATIONAL ASSOCIATION ("U.S. Bank"), at Xxxx Xxxxxx Xxx 0000,
Xxxxxxxx, Xxxxxx 00000-0000, or such other place or places as the holder hereof
may designate in writing, the principal sum of _______________ Dollars
($___________) in lawful immediately available money of the United States of
America, in accordance with the terms and conditions of that certain amended and
restated credit agreement dated as of June 5, 1995, by and between Borrower and
U.S. Bank (together with all supplements, exhibits, modifications, and
amendments thereto, including the third amendment to amended and restated credit
agreement ("Fourth Amendment"), dated as of August __, 2000, the "Credit
Agreement"). Borrower also promises to pay interest on the unpaid principal
balance hereof, commencing as of the date hereof, in like money in accordance
with the terms and conditions and at the rate or rates provided for in the Third
Amendment and the Credit Agreement. All principal, interest, and other charges
are due and payable in full on _____________, ____.
Borrower and all endorsers, sureties, and guarantors hereof
jointly and severally waive presentment for payment, demand, notice of
nonpayment, notice of protest, and protest of this Note, and all other notices
in connection with the delivery, acceptance, performance, default, dishonor, or
enforcement of the payment of this Note except such notices as are specifically
required by this Note or by the Credit Agreement, and they agree that the
liability of each of them shall be unconditional without regard to the liability
of any other party and shall not be in any manner affected by any indulgence,
extension of time, renewal, waiver, or modification granted or consented to by
U.S. Bank. Borrower and all endorsers, sureties, and guarantors hereof (1)
consent to any and all extensions of time, renewals, waivers, or modifications
that may be granted by U.S. Bank with respect to the payment or other provisions
of this Note and the Credit Agreement; (2) consent to the release of any
property now or hereafter securing this Note with or without substitution; and
(3) agree that additional makers, endorsers, guarantors, or sureties may become
parties hereto without notice to them and without affecting their liability
hereunder.
This Note is one of the Acquisition Notes referred to in the
Credit Agreement, is a "Note" for all purposes of the Credit Agreement and as
such is entitled to all of the benefits and obligations specified in the Credit
Agreement, including but not limited to any Collateral and any conditions to
making advances hereunder. This Note is secured by the lien of the Deed of Trust
encumbering real and personal property in King County, Washington, dated August
9, 1993, and recorded with the Division of Records and Elections of King County,
Washington, on August 10, 1993, under recording No. 9308101757, to which
reference is hereby made for a description of the nature and extent of the
security provided thereby and the rights and limitations of rights of U.S. Bank
and of Borrower in respect of such security. Terms defined in the Credit
Agreement
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are used herein with the same meanings. Reference is made to the Credit
Agreement for provisions for the repayment of this Note and the acceleration of
the maturity hereof.
REDHOOK ALE BREWERY, INCORPORATED
By:
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