EXHIBIT 10
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement, effective as of September 28,
2001 (this "Amendment"), is by and among National Wine & Spirits, Inc., an
Indiana corporation (the "Company), the Guarantors set forth on the signature
pages hereof, (the "Guarantors"), the Banks set forth on the signature pages
hereof (collectively, the "Banks" and individually, a "Bank") and Bank One,
Michigan, a Michigan banking corporation as Agent (in such capacity, the
"Agent") for the Lenders.
RECITALS
WHEREAS, the Company, the Guarantors, the Banks and the Agent are parties
to a Credit Agreement dated as of January 25, 1999 (the "Credit Agreement"); and
WHEREAS, the Company has requested the Banks to amend the Credit Agreement
to permit the purchase by it of a part of its Senior Unsecured Debt and the
Banks are willing to do so upon the following terms and conditions.
ARTICLE 1. AMENDMENTS TO CREDIT AGREEMENT
The Credit Agreement hereby is amended as follows:
1. Section 5.2(k) is amended by changing the period at the end thereof to a
semi-colon and adding the following phrase: "and (viii) Investments consisting
of purchases of Senior Unsecured Debt permitted under Section 5.2(o)".
2. Section 5.2(o) is amended in its entirety to read as follows:
(o) Payments and Modification of Senior Unsecured Debt. Make any optional
payment, prepayment or any optional or mandatory redemption of, or
purchase, any Senior Unsecured Debt, nor amend or modify, or consent or
agree to any amendment or modification, which would shorten any maturity or
increase the amount of any payment of principal or increase the rate (or
require earlier payment) of interest on any such Senior Unsecured Debt, nor
enter into any agreement or arrangement providing for the defeasance of any
Senior Unsecured Debt; provided, that the Company may (A) make redemptions
of Senior Unsecured Debt that are permitted or required by the terms of the
indenture governing the Senior Unsecured Debt from the cash proceeds of a
sale of common stock of the Company and (B) purchase, in one or more
transactions occurring prior to March 31, 2002, up to $25,000,000 in
aggregate principal amount of Senior Unsecured Debt at par or less than
par, if (i) immediately before and after such purchase or redemption, no
Default or Event of Default shall exist or shall have occurred and be
continuing, (ii) except as may be set forth in any periodic report filed by
the Company with the Securities and Exchange Commission, the
representations and warranties contained in Article 4 shall be true and
correct on and as of the date thereof (both before and after such purchase
or redemption is consummated) as if made on the date such purchase or
redemption is consummated, and (iii) the Company shall have provided to the
Agent before such purchase or redemption pro forma financial statements
reflecting the occurrence of such purchase or redemption demonstrating
compliance with the covenants contained in this Agreement, certified by a
duly authorized officer of the Company.
ARTICLE 2. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective upon its execution by all parties
hereto and delivery of such executed Amendment to the Agent.
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ARTICLE 3. REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Amendment, the Borrower
represents and warrants that:
3.1 The execution, delivery and performance by the Borrower of this
Amendment are within its corporate powers, have been duly authorized by all
necessary corporate action and are not in contravention of any law, rule or
regulation, or any judgment, decree, writ, injunction, order or award of any
arbitrator, court or governmental authority, or of the terms of the Borrower's
charter or by-laws, or of any contract or undertaking to which the Borrower is a
party or by which the Borrower or its property is or may be bound or affected.
3.2 This Amendment is a legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms.
3.3 No consent, approval or authorization of or declaration, registration
or filing with any governmental authority or any nongovernmental person or
entity, including without limitation any creditor or stockholder of the
Borrower, is required on the part of the Borrower in connection with the
execution, delivery and performance of this Amendment or the transactions
contemplated hereby or as a condition to the legality, validity or
enforceability of this Amendment.
3.4 After giving effect to the amendment contained in Article 1 of this
Amendment, the representations and warranties contained in the Credit Agreement
are true in all material respects on and as of the date hereof with the same
force and effect as if made on and as of the date hereof.
ARTICLE 4. MISCELLANEOUS
4.1 If the Borrower shall fail to perform or observe any term, covenant or
agreement in this Amendment, or any representation or warranty made by the
Borrower in this Amendment shall prove to have been incorrect in any material
respect when made, such occurrence shall be deemed to constitute an Event of
Default.
4.2 All references to the Credit Agreement in any Note or any other
document, instrument or certificate referred to in the Credit Agreement or
delivered in connection with or pursuant thereto hereafter shall be deemed
references to the Credit Agreement, as amended hereby.
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4.3 Capitalized terms used but not defined herein shall have the respective
meanings ascribed thereto in the Credit Agreement.
4.4 This Amendment shall be governed by and construed in accordance with
the laws of the State of Michigan.
4.5 The Borrower agrees to pay the reasonable fees and expenses of
Xxxxxxxxx Xxxxxx PLLC, counsel for the Agent, in connection with the negotiation
and preparation of this Amendment and the documents referred to herein and the
consummation of the transactions contemplated hereby, and in connection with
advising the Agent as to its rights and responsibilities with respect thereto.
4.6 This Amendment may be executed by telefacsimile signature upon any
number of counterparts with the same effect as if the signatures thereto were
upon the same instrument.
4.7 Except as expressly modified by this Amendment, the terms and
provisions of the Credit Agreement are ratified and confirmed and shall continue
in full force and effect.
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WITNESS THE DUE EXECUTION HEREOF effective as of the date and year first
above stated.
NATIONAL WINE & SPIRITS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Print Name: Xxxxxxx X. Xxxxxx
Its: Treasurer
NWS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
Its: Assistant Secretary
NWS-ILLINOIS, LLC
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
Its: Assistant Secretary
NATIONAL WINE & SPIRITS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
Its: Assistant Secretary
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NWS MICHIGAN, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
Its: Assistant Secretary
THE BANKS:
BANK ONE, MICHIGAN, f/k/a/ NBD Bank,
Individually as a Bank and as Agent
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------------
Print Name: Xxxx X. Xxxxxxxx
Its: Senior Vice President
GMAC COMMERCIAL CREDIT CORP.
By: ------------------------------------------------
Print Name: ----------------------------------------
Its: -----------------------------------------------
LASALLE BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
Its: First Vice President
NATIONAL CITY BANK OF INDIANA
By: ------------------------------------------------
Print Name: ----------------------------------------
Its: -----------------------------------------------
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