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EXHIBIT (b)(5)
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FIRST AMENDMENT TO AMENDED AND RESTATED GUARANTY
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND FIRST AMENDMENT TO AMENDED AND RESTATED GUARANTY, dated as of the 21st day
of December, 1995 (the "Amendment"), is among Xx Xxxxxx Bottling Company of
Texas, a Texas corporation (the "Borrower"), Xx Xxxxxx Bottling Holdings, Inc.,
a Delaware corporation (the "Guarantor"), Texas Commerce Bank National
Association, a national banking association ("TCB") and each other lender
listed on the signature pages hereof (each individually, including, without
limitation, TCB, a "Lender" and collectively, the "Lenders") and Texas Commerce
Bank National Association as agent for the Lenders (in its capacity as agent,
the "Agent").
WITNESSETH
WHEREAS, on February 18, 1993, the Borrower, TCB as the Agent
and the Lenders entered into an Amended and Restated Credit Agreement (as
amended by that certain First Amendment to Amended and Restated Credit
Agreement dated as of July 29, 1994 and that certain Second Amendment to
Amended and Restated Credit Agreement dated as of July 14, 1995, the "Credit
Agreement") pursuant to which the Borrower, the Agent and the Lenders amended
and restated (i) a Credit Agreement dated as of October 28, 1988 (as amended,
the "1988 Credit Agreement") among the Borrower, TCB as agent and the other
lenders signatory thereto and (ii) a Credit Agreement dated as of January 18,
1989 (as amended, the "1989 Credit Agreement") among the Borrower, TCB as agent
and the other lenders signatory thereto;
WHEREAS, pursuant to the Credit Agreement, the Lenders have
made available to the Borrower loans pursuant to an advance term loan facility
of up to $100,000,000 and letters of credit and a revolving credit facility of
up to $25,000,000;
WHEREAS, the outstanding principal balance of the term loan
facility of the credit agreement as of the date hereof is $54,218,840.65;
WHEREAS, the Guarantor has entered into a Stock Purchase
Agreement (the "Stock Purchase Agreement") by and among the Guarantor, Xxx X.
Xxxxxx, DLJ Securities, DLJ Capital Corporation and Xxxxxxx 0. Xxxx pursuant to
which, among other things, the Guarantor will purchase from DLJ Securities
3,666,666 shares (the "Shares") of Class A Common Stock, $.01 par value per
share (the "Acquisition");
WHEREAS, the Borrower has requested the Lenders to increase
(i) the term loan facility under the Credit Agreement to $65,000,000, the
proceeds of which increase will be used by the Guarantor, following a dividend
of said proceeds to the Guarantor by the Borrower, to purchase a portion of the
Shares, and (ii) the letters of credit and revolving credit facility under the
Credit Agreement to $35,000,000 and the Lenders are willing, subject to the
terms and conditions of this Amendment, to make such extensions of credit
available to the Borrower, and in connection therewith, the Borrower, the Agent
and the Lenders have agreed, upon the terms and conditions specified herein, to
amend the Credit Agreement to permit the foregoing;
WHEREAS, the Guarantor (i) is the owner of all of the issued
and outstanding shares of common stock of the Borrower, (ii) has, in connection
with the execution and delivery of the 1988 Credit Agreement and the 1989
Credit Agreement, executed and delivered in favor of the Agent for the benefit
of the Lenders a Guaranty dated as of October 28, 1988 (as amended, the
"Previous Guaranty"), (iii) has, in connection with the execution and delivery
of the Credit Agreement executed and delivered in favor of the Agent for the
benefit of the Lenders an Amended and Restated Guaranty, dated as of February
18, 1993 (as amended to date, the "Guaranty") amending and restating the
Previous Guaranty and (iv) expects to derive substantial benefits from the
execution and delivery of this Amendment;
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NOW, THEREFORE, for and in consideration of the premises and
the mutual covenants herein set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Borrower, the Guarantor, the Agent and the Lenders hereby agree as follows:
1. All capitalized terms which are defined in the Credit
Agreement and not otherwise defined herein shall have the same meaning herein
as in the Credit Agreement.
2. All references to Section and Subsection numbers in
this Amendment respecting the Credit Agreement shall be references to the
corresponding Section or Subsection of the Credit Agreement and all references
to Section and Subsection numbers in this Amendment respecting the Guaranty
shall be references to the corresponding Section or Subsection of the Guaranty;
3. On and after the date hereof, each reference in the
Credit Agreement to "this Agreement," "hereunder," "herein," or words of like
import shall mean and be a reference to the Credit Agreement, as amended hereby
and each reference in the Guaranty to "this Agreement," "hereunder," "herein,"
or words of like import shall mean and be a reference to the Guaranty, as
amended hereby.
4. This Amendment, when properly executed and delivered
by the Agent and each of the Lenders signatory hereto, shall constitute the
consent and approval of the Agent and each such Lender to the performance by
the Guarantor of its obligations under the Stock Purchase Agreement and the
effectuation of the Acquisition.
5. Section 7 of the Guaranty is hereby amended in its
entirety to read as follows:
"SECTION 7. Subrogation. Notwithstanding anything to the
contrary in this Guaranty, the Guarantor hereby agrees that,
until the payment and satisfaction in full of all Obligations
and the expiration and termination of all the Commitments of
the Lenders under the Credit Agreement, it shall not exercise
any right or remedy arising by reason of its performance
under this Guaranty, whether by subrogation, reimbursement,
contribution, exoneration, indemnification or otherwise,
against the Borrower or against any collateral security or
guarantee or right of offset held by the Borrower for payment
of the Obligations. If any amount shall be paid by or on
behalf of the Borrower to the Guarantor on account of any of
the foregoing rights, such amount shall be held by the
Guarantor in trust, segregated from other funds of the
Guarantor, and shall, forthwith upon receipt by the
Guarantor, be turned over to the Agent in the exact form
received by the Guarantor (duly endorsed by the Guarantor to
the Agent, if required) to be applied against the
Obligations, whether matured or unmatured, in such order as
the Agent may determine."
6. Section 10(f) of the Guaranty is hereby amended by
inserting after the words "Holdings Preferred Stock," and prior to the
semi-colon following such words, the following: "and redeem, purchase or
otherwise acquire any shares of the capital stock of the Guarantor."
7. Schedule 1.01 of the Credit Agreement is hereby
replaced by the Schedule 1.01 attached hereto.
8. Exhibit B and Exhibit C to the Credit Agreement are
hereby replaced by Exhibit B and Exhibit C attached hereto.
9. Section 1.01 of the Credit Agreement is hereby
amended by adding the following definitions:
a. "Stock Purchase Agreement" means the Stock
Purchase Agreement dated as of November 28, 1995 by and among
Holdings, Xxx X. Xxxxxx, DLJ Securities, and DLJ Capital
Corporation and Xxxxxxx X. Xxxx.
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b. "Stock Purchase Dividend" means the
Borrower's dividend to Holdings to enable Holdings to satisfy
its obligations under the Stock Purchase Agreement.
10. The definition of "Facility A Commitment" set forth
in Section 1.01 of the Credit Agreement is hereby amended by deleting the
reference to $100,000,000" contained therein and inserting "$65,000,000" in
place thereof.
11. The definition of "Facility B Commitment" set forth
in Section 1.01 of the Credit Agreement is hereby amended by deleting the
reference to "$25,000,000" contained therein and inserting "$35.000,000" in
place thereof.
12. Section 2.01 of the Credit Agreement is hereby
amended in its entirety to read as follows:
"Section 2.01. The Facility A Advances. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to
make additional Facility A Advances to the Borrower on
December __, 1995 for the purposes set forth in Section 7.12
hereof, such that the aggregate amount of Facility A Advances
shall equal (but shall not exceed) such Lender's Facility A
Commitment. Amounts borrowed hereunder and repaid or prepaid
may not be reborrowed. The principal amount outstanding on
the Facility A Advances shall be due and payable in
accordance with Section 2.06 hereof."
13. The second sentence of Section 2.06(a) of the Credit
Agreement is hereby amended by (i) deleting the words "such date" appearing
immediately prior to the parenthetical phrase "(if any)" in such sentence and
inserting in lieu thereof the following: "December ___, 1995 (after giving
effect to the additional Facility A Advances contemplated by Section 2.01)";
and (ii) deleting the year "1994" from such sentence and inserting "1996" in
lieu thereof.
14. Section 2.06(b) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(b) The quarterly principal payments on the Facility A
Advances shall be computed for each quarter during each year
set forth below, by multiplying the Annual Amortization
Amount set forth opposite such year by (A) 15% for the
quarterly installment due on the fifteenth day of April, (B)
30% for the quarterly installment due on the last day of
June, (C) 30% for the quarterly installment due on the last
day of September or (D) 25% for the quarterly installment due
on the last day of December, as the case may be; provided,
that, notwithstanding the foregoing, the quarterly
installment due on April 15, 1999 shall be $1,500,000 and the
aggregate outstanding principal balance of the Facility A
Advances shall be due and payable in full, together with all
accrued and unpaid interest thereon, on June 30, 1999.
Year Annual Amortization Amount
---- --------------------------
1996 $17,000,000
1997 $18,000,000
1998 $10,000,000
1999 $20,000,000
15. The first sentence of Section 7.12 of the Credit
Agreement is hereby amended in its entirety to read as follows:
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"Section 7.12. The proceeds of the Facility A Advances will
be used by the Borrower to make the Stock Purchase Dividend,
and the proceeds of the Facility B Advances will be used by
the Borrower from time to time to make additional dividends
to Holdings in an amount not to exceed the accumulated amount
of Restricted Payments (as defined in the Borrower Indenture)
that may be made at such time under the Borrower Indenture,
for acquisitions allowed under subsections 9.03(f) and (g),
for the purpose of purchasing and holding Borrower Senior
Notes in an aggregate original principal amount not to exceed
$30,000.000 (provided that the Borrower shall have purchased
each such Borrower Senior Note at a purchase price not
greater than 105% of the original principal amount of such
Borrower Senior Note) and for working capital purposes."
16. To the extent Subsection 9.11(c) of the Credit
Agreement could be construed to prohibit the purchase by the Borrower of
Borrower Senior Notes as contemplated by this Amendment, said Subsection
9.11(c) is hereby waived for the limited purpose of permitting the purchase of
the Borrower Senior Notes in an aggregate principal amount not to exceed
$30,000,000, and for no other purpose.
17. The introductory paragraph of Section 7.21 of the
Credit Agreement is hereby amended in its entirety to read as follows:
"Section 7.21. Solvency. Upon giving effect to the execution
of the Loan Documents by the Borrower, the consummation of
the transactions contemplated hereby and by the Stock
Purchase Agreement, and the completion of the Stock Purchase
Dividend, the following are true and correct:"
18. Section 9.04(a) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(a) the Borrower may make the Stock Purchase Dividend and
may pay such further dividends from time to time in an amount
not to exceed the accumulated amount of Restricted Payments
(as defined in the Borrower Indenture) that may be made at
such time under the Borrower Indenture;"
19. By its execution and delivery hereof, the Borrower
represents and warrants the following:
a. As of the date hereof and after giving
effect to the amendments contemplated herein, (i) the
representations and warranties contained in Article VII of
the Credit Agreement, as amended by this Amendment, and the
Loan Documents to which the Borrower is a party, are true and
correct on and as of the date hereof as though made by the
Borrower on and as of such date (except to the extent that
such representations and warranties relate to an earlier
date) and the Borrower hereby agrees to be bound by such
representations and warranties (provided, however, that no
representation or warranty is made with respect to the affect
of the transfers contemplated by the Stock Purchase Agreement
upon the franchise agreements of the Borrower) and (ii) no
event has occurred and is continuing which constitutes a
Default or an Event of Default; and
b. The execution and delivery of this Amendment
shall in no way release, diminish, impair, reduce or
otherwise adversely affect the obligations of the Borrower
under the Credit Agreement, as amended by this Amendment, and
under the Notes, as each may be further amended or otherwise
modified from time to time and under the other Loan Documents
to which the Borrower is a party, as each may be further
amended or otherwise modified from time to time. The Borrower
acknowledges and confirms that the indebtedness secured by
the Loan Documents includes, in addition to the indebtedness
therein described, the obligations of the Borrower under the
Credit Agreement, as amended by this Amendment, and the
Notes, as each may be further amended or otherwise modified
from time to time.
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20. By its execution and delivery hereof, the Guarantor
represents and warrants the following:
a. As of the date hereof and after giving
effect to the amendments contemplated herein, (i) the
representations and warranties contained in Section 8 of the
Guaranty, as amended by this Amendment, and the Loan
Documents to which the Guarantor is a party, are true and
correct on and as of the date hereof as though made by the
Guarantor on and as of such date (except to the extent that
such representations and warranties relate to an earlier
date) and the Guarantor hereby agrees to be bound by such
representations and warranties and (ii) no event has occurred
and is continuing which constitutes a Default or an Event of
Default; and
b. The execution and delivery of this Amendment
shall in no way release, diminish, impair, reduce or
otherwise adversely affect the obligations of the Guarantor
under the Guaranty, as amended by this Amendment, and under
the other Loan Documents to which the Guarantor is a party,
as each may be further amended or otherwise modified from
time to time.
21. This Amendment shall become effective, and each
Lender's obligation to make any Advance hereunder shall arise, when and only
when the following conditions are fully satisfied (in the Agent's sole
discretion):
a. The Agent shall have received, appropriately
dated and in form and substance reasonably satisfactory to
the Agent (together with original counterparts or copies, as
the case may be, for each Lender), the following:
(1) This Amendment duly executed by the
Borrower, the Guarantor, the Agent and the Lenders;
(2) For the account of each Lender, a
new Facility A Note (the "New Facility A Note"),
each duly executed by the Borrower and payable to
the order of such Lender in the amount of such
Lender's Facility A Commitment;
(3) For the account of each Lender, a
new Facility B Note (the "New Facility B Note"),
each duly executed by the Borrower and payable to
the order of such Lender in the amount of such
Lender's Facility B Commitment;
(4) A certificate of the secretary or an
assistant secretary of the Borrower certifying (A)
that the by-laws and articles of incorporation of
the Borrower delivered to the Agent in connection
with the execution and delivery of the Credit
Agreement on February 18, 1993 are still in effect
on the date of such certification and have not been
amended or modified and no action to amend or modify
said by-laws or articles of incorporation has been
taken by the Board of Directors of the Borrower and
(B) the resolutions of the Board of Directors of the
Borrower approving and authorizing the execution,
delivery and performance by the Borrower of this
Amendment, the New Facility A Notes, the New
Facility B Notes and all other documents, notices
and certificates contemplated hereunder;
(5) A certificate of the secretary or an
assistant secretary of the Guarantor certifying (A)
that the by-laws and articles of incorporation of
the Guarantor delivered to the Agent in connection
with the execution and delivery of the Credit
Agreement on February 18, 1993 are still in effect
on the date of such certification and have not been
amended or modified and no action to amend or modify
said by-laws or articles of incorporation has been
taken by the Board of Directors of the Guarantor,
and (B) the resolutions of the Board of Directors of
the Guarantor approving and authorizing the
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execution, delivery and performance by the Guarantor
of this Amendment and all other documents, notices
and certificates contemplated hereunder;
(6) Certificates of appropriate
officials as to the existence and good standing of
each of the Borrower and the Guarantor in their
respective jurisdictions of incorporation and any
and all jurisdictions where the Property owned or
the business transacted by each of them makes such
qualification necessary;
(7) A certificate of a senior officer of
the Borrower certifying as to the matters set forth
in Section 7.21 of the Credit Agreement, as amended
hereby;
(8) An opinion of Weil, Gotshal &
Xxxxxx, counsel for the Borrower and the Guarantor,
in form and substance reasonably satisfactory to the
Lenders;
(9) Copies of all documents (which shall
be in form and substance satisfactory to the
Lenders) received or delivered by the Borrower or
the Guarantor in connection with the purchase and
sale of the Guarantor's common stock contemplated by
the Stock Purchase Agreement, including, without
limitation, the Stock Purchase Agreement, certified
by the secretary or an assistant secretary of the
Borrower, (A) as being true and correct copies of
such documents as of the date hereof, (B) as having
been duly authorized by the Board of Directors of
the Borrower or the Guarantor, as the case may be,
and (C) as having been duly executed and delivered
or filed by Borrower or The Guarantor, as the case
may be;
(10) A certificate of a senior officer of
the Guarantor certifying that all conditions
precedent to the effectuation of Stock Purchase
Agreement have been satisfied without any material
modification or waiver, that all transactions under
the Stock Purchase Agreement have been consummated;
b. The Agent shall have received Uniform
Commercial Code filings searches in the names (including
trade names) of each of the Guarantor and the Borrower from
all the jurisdictions in which the Guarantor and the
Borrower, respectively, maintains an office or has equipment
or inventory, showing no financing statements of record
except for those permitted under subsection (f) of the
definition of "Permitted Liens" and those set forth on
Schedule 9.02(d);
c. The Borrower shall have made payment of all
fees and expenses of or incurred by the Agent and its counsel
to and including the date hereof, to the extent billed as of
the date hereof, in connection with the negotiation and
closing of the transactions contemplated herein; and
d. The Borrower shall have taken such actions,
and the Agent shall have received such other documents as the
Agent may reasonably request.
22. Each of the Credit Agreement and the Guaranty, as
amended by this Amendment, is hereby ratified and confirmed and all of the
rights and powers created thereby or thereunder shall be and remain in full
force and effect.
23. The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of the
Lenders under the Credit Agreement or the Guaranty, each as amended by this
Amendment, or under the Notes, the New Facility A Notes, the New Facility B
Notes and the other Loan Documents to which the Borrower or the Guarantor is a
party, as each may be amended or modified from time to time, nor constitute a
waiver of any other provision of the Credit Agreement or the Guaranty, each as
amended by this Amendment, or the Notes, the New Facility A Notes, the New
Facility B Notes and the other
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Loan Documents to which the Borrower or the Guarantor is a party, as each may
be amended or modified from time to time.
24. The Borrower agrees to do, execute, acknowledge and
deliver all and every such further acts and instruments as the Agent may
request for the better assuring and confirming unto the Agent all and singular
the rights granted or intended to be granted hereby or hereunder.
25. Pursuant to Section 11.04 of the Credit Agreement,
the Borrower agrees to pay on demand all costs and expenses of the Agent in
connection with the preparation, reproduction, execution and delivery of this
Amendment and the other instruments and documents to be delivered hereunder
(including, without limitation, the reasonable fees and out-of-pocket expenses
of counsel for the Agent with respect thereto and with respect to advising the
Agent as to its rights and responsibilities under the Credit Agreement as
hereby amended). In addition, the Borrower shall pay any and all stamp and
other taxes and fees payable or determined to be payable in connection with the
execution and delivery, filing or recording of this Amendment and the other
instruments and documents to be delivered hereunder, and agrees to save the
Agent harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes or fees.
26. Prior to, and as a condition precedent of, the
effective date of this Amendment, the Borrower agrees to pay to the Agent, for
and on behalf of the Lenders, in immediately available funds, an amendment fee
of $52,000 (the "Amendment Fee"). Promptly upon the receipt of the Amendment
Fee, the Agent shall pay to each Lender its pro rata share of the Amendment
Fee, calculated by multiplying the Amendment Fee by the Lender's Pro Rata
Percentage (after giving effect to this Amendment).
27. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND SHALL BE BINDING UPON THE
BORROWER, THE GUARANTOR, THE AGENT AND THE LENDERS AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS.
28. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which taken together shall constitute but one and the same instrument.
29. THIS WRITTEN AMENDMENT, THE NOTES, THE NEW FACILITY A
NOTES, THE NEW FACILITY B NOTES, THE GUARANTY, THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
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IN WITNESS WHEREOF, the parties hereto, by their officers
thereunto duly authorized, have executed this Amendment as of the day and year
first above written.
BORROWER:
XX XXXXXX BOTTLING COMPANY OF TEXAS
By: /s/ Xxx X. Xxxxxx
--------------------------------------------
Name: Xxx X. Xxxxxx
------------------------------------------
Title: Chairman of the Board/President
-----------------------------------------
GUARANTOR:
XX XXXXXX BOTTLING HOLDINGS, INC.
By: /s/ Xxx X. Xxxxxx
--------------------------------------------
Name: Xxx X. Xxxxxx
------------------------------------------
Title: Chairman of the Board/President
-----------------------------------------
AGENT:
TEXAS COMMERCE BANK NATIONAL ASSOCIATION, AGENT
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
------------------------------------------
Title: Vice President
-----------------------------------------
LENDERS:
TEXAS COMMERCE BANK NATIONAL ASSOCIATION, for
its own account
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
------------------------------------------
Title: Vice President
-----------------------------------------
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ XXXXXXXXX XXXXXX
--------------------------------------------
Name: Xxxxxxxxx Xxxxxx
------------------------------------------
Title: Senior Vice President
-----------------------------------------
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: /s/ XXXXXXXXX XXXXXX
--------------------------------------------
Name: Xxxxxxxxx Xxxxxx
------------------------------------------
Title: Authorized Signature
-----------------------------------------
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THE FIRST NATIONAL BANK OF BOSTON
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
------------------------------------------
Title: Vice President
-----------------------------------------
FIRST INTERSTATE BANK OF TEXAS, NATIONAL
ASSOCIATION
By: /s/ XXXXX X. XXXXXXX
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------------
Title: Vice President
-----------------------------------------
CIBC, INC.
By: /s/ XXX XXXXXXXXXX
--------------------------------------------
Name: Xxx Xxxxxxxxxx
------------------------------------------
Title: Director
-----------------------------------------
BANQUE PARIBAS, HOUSTON AGENCY
By: /s/ XXXXX XXXXXXX
--------------------------------------------
Name: Xxxxx Xxxxxxx
------------------------------------------
Title: Vice President
-----------------------------------------
By: /s/ XXXXXX XXXXXXX
--------------------------------------------
Name: Xxxxxx Xxxxxxx
------------------------------------------
Title: Assistant Vice President
-----------------------------------------
XXXXXX TRUST AND SAVINGS BANK
By: /s/ R. MICHAEL NEWTEN
--------------------------------------------
Name: R. Michael Newten
------------------------------------------
Title: Vice President
-----------------------------------------
NATIONSBANK, N.A.
By: /s/ XXXXXX X. X'XXXXX
--------------------------------------------
Name: Xxxxxx X. X'Xxxxx
------------------------------------------
Title: Senior Vice President
-----------------------------------------
