1
EXHIBIT 10.20
THIRD AMENDMENT TO TERM LOAN CREDIT AGREEMENT
This Third Amendment to Term Loan Credit Agreement (this "Third
Amendment"), dated June 7, 1999, is by and between NEWBEVCO, INC., a Delaware
corporation ("Borrower"), and NATIONSBANK, N.A., successor by merger to XXXXXXX
BANK, N.A., a national banking association ("Bank").
WITNESSETH
WHEREAS, Bank and Borrower have previously executed and entered into that
certain Term Loan Credit Agreement dated February 29, 1996 (the "Original Credit
Agreement") and certain other loan documents including that certain term note
also dated February 29, 1996 in the original principal amount of $16,600,000.00
(the "Original Note");
WHEREAS, pursuant to the Credit Agreement, Bank had previously extended a
term loan to Borrower of up to Sixteen Million Six Hundred Thousand and 00/100
Dollars ($16,600,000.00);
WHEREAS, on April 24, 1996, Bank and Borrower modified the terms of the
Original Credit Agreement in a letter agreement (the "Letter Agreement");
WHEREAS, Bank and Borrower modified the terms of the Original Credit
Agreement in that certain First Amendment to Term Loan Credit Agreement dated
February 18, 1997 (the "First Amendment");
WHEREAS, Bank and Borrower modified the terms of the Original Credit
Agreement in that certain Second Amendment to Term Loan Credit Agreement dated
February 18, 1998 (the "Second Amendment");
WHEREAS, in connection with the First Amendment Borrower executed a Term
Note dated February 18, 1997 in the original principal amount of Sixteen Million
Six Hundred Thousand and No/100 Dollars ($16,600,000.00) (the "Note") replacing
the Original Note;
WHEREAS, Borrower has requested that the Line of Credit be further modified
and Bank is willing to do so upon the terms and conditions set forth in this
Amendment (the Original Credit Agreement as modified by the Letter Agreement,
the First Amendment, the Second Amendment and this Amendment are collectively
referred to as the "Credit Agreement") and a First Amendment to Term Note dated
of even date herewith between Bank and Borrower (the "First Note Amendment");
NOW, THEREFORE, in consideration of the mutual covenants, the parties
agree, for good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, as follows:
1. INCORPORATION AND RECITALS. The above recitals are true and correct
and are incorporated herein by reference as though set forth in full.
2. DEFINITIONS. All capitalized terms used herein shall, except as
modified herein, have the meanings ascribed to them in the Credit
Agreement.
2
3. AMENDMENTS TO CREDIT AGREEMENT.
(a) Section 1.1 of the Credit Agreement is amended to revise the
definition of Loan Documents to read as follows: "Loan Documents"
mean the Credit Agreement, the Note, the Guaranties, the
Documentary Stamp and Intangible Tax Indemnification Agreement,
all Term Loan Reaffirmations of Guaranty of the Guaranties, the
Letter Agreement, the First Amendment to Credit Agreement, the
Second Amendment to Credit Agreement and, the Third Amendment to
Credit Agreement.
(b) The first portion of the first sentence (up to the first comma)
of Section 2.1(a) of the Credit Agreement is hereby deleted and
replaced with the following: "Prior to November 1, 2002 (the
"Termination Date")..."
(c) The first sentence of Section 2.6(a) is hereby deleted and the
following is substituted in its place:
Principal under the Term Loan shall be due and payable in two
annual payments of $8,300,000 payable on November 1, 2001 and the
Termination Date.
4. REPRESENTATIONS AND WARRANTIES. To induce Bank to enter into this
Third Amendment and to perform the transactions described herein,
Borrower hereby makes the representations and warranties to Bank
contained in the Credit Agreement on and as of the date of this Third
Amendment.
5. RELIANCE UPON, SURVIVAL OF AND MATERIALLY OF REPRESENTATIONS AND
WARRANTIES, AGREEMENTS, AND COVENANTS. All representations and
warranties, agreements, and covenants made by Borrower herein are
material and shall be deemed to have been relied upon by Bank,
notwithstanding any investigation heretofore or hereafter made by
Bank, shall survive the execution and delivery of this Third
Amendment, and shall continue in full force and effect so long as any
indebtedness subject to the Credit Agreement is owed to Bank. All
statements contained in a certificate or other writing delivered to
Bank at any time by or on behalf of Borrower pursuant hereto shall
constitute representations and warranties by Borrower hereunder.
6. REQUIRED DOCUMENTS. On or prior to the date of the execution of this
Third Amendment, Bank shall have received from Borrower the following:
(a) reaffirmations of Continuing and Unconditional Guaranties or
Continuing and Unconditional Guaranties by each Restricted
Subsidiary ("Reaffirmations");
(b) the First Note Amendment; and
(c) such documents reflecting corporate authorization and other
matters as required by Bank.
7. INCORPORATION BY REFERENCE. Except as modified herein, the terms and
conditions of the Credit Agreement are hereby incorporated by
reference and remain in full force and effect, enforceable in
accordance with the terms hereof.
3
8. WAIVER OF JURY TRIAL. BORROWER AND BANK HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THIS THIRD AMENDMENT
AND IN CONJUNCTION THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER
PARTY HERETO, THIS PROVISION IS A MATERIAL INDUCEMENT FOR BANK
ENTERING INTO THIS THIRD AMENDMENT.
IN WITNESS WHEREOF, the parties have executed this Third Amendment as of
the day and year first above written.
Witnesses: BORROWER:
NEWBEVCO, INC., a Delaware corporation
(SEAL)
________________________
By: \s\ Xxxxxx X.Xxxxxxx
---------------------------------
________________________ Name: Xxxxxx X. Xxxxxxx
--------------------------
Title: Vice President
--------------------------
BANK:
NATIONSBANK, NA, a national banking
association
________________________
By: \s\Xxxx XxXxxxx
---------------------------------
Name: Xxxx XxXxxxx
--------------------------
________________________ Title: Vice President
--------------------------
