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EXHIBIT 10.16
FIRST AMENDMENT TO TERM LOAN CREDIT AGREEMENT
This First Amendment to Term Loan Credit Agreement ("Amendment"), dated
February 18, 1997, is by and between NEWBEVCO, INC., a Delaware corporation
("Borrower"), and XXXXXXX BANK, N.A. successor by merger to XXXXXXX BANK OF
BROWARD COUNTY, N.A., a national banking association ("Bank").
WITNESETH
WHEREAS, Bank and Borrower have previously executed and entered into that
certain Term Loan Credit Agreement dated February 29, 1996 ("Original Credit
Agreement") and certain other loan documents in connection therewith including
that term note also dated February 29, 1996 in the original principal amount of
$16,600,000.00;
WHEREAS, pursuant to the Original Credit Agreement, Bank had previously extended
a term loan to Borrower of Sixteen Million Six Hundred Thousand and 00/100
Dollars ($16,600,000.00) ("Term Loan");
WHEREAS, on April 24, 1996, Bank and Borrower modified the terms of the Original
Credit Agreement in that letter agreement ("Letter Agreement");
WHEREAS, Borrower has requested that the Term Loan be further modified and Bank
is willing to do so upon the terms and conditions set forth in this Agreement
(the Original Credit Agreement as modified by the Letter Agreement and this
Amendment are collectively referred to as the "Credit Agreement"); and
WHEREAS, in connection with this modification, Borrower has executed a new Term
Note dated of even date herewith in the original principal amount of Sixteen
Million Six Hundred Thousand and 00/100 Dollars ($16,600,000.00) ("Note").
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 meanings ascribed to them in the Credit Agreement.
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, the Reaffirmations of Guaranty of the Guaranties, the
Letter Agreement and this Amendment.
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(b) Section 2.1 (a) is hereby deleted and the following is substituted in
its place: Prior to November 1, 1998 (the "Termination Date"), subject to the
terms and conditions of this Agreement and so long as there exists no Event of
Default or circumstance which with the giving of notice or passage of time would
become an Event of Default, the Bank shall upon the request of the Borrower make
advances under the Term Loan, in accordance with the provisions hereof.
Notwithstanding anything contained herein, no advance under the Term Loan shall
be made which, when aggregated with all other advances under the Term Loan, the
amounts of any letters of credit issued and outstanding pursuant to the
Revolving Credit and any principal amounts outstanding under the Revolving
Credit (which amounts shall include all unreimbursed amounts paid by the Bank
and amounts of drafts accepted by the Bank under letters of credit), would
exceed the sum of (i) eighty-five percent (85%) of Eligible Receivables plus
(ii) seventy-five percent (75%) of Eligible Inventory ("Inventory Calculation")
(collectively "Borrowing Base"). Further, notwithstanding anything to the
contrary contained herein, the total amount of advances under the Term Loan and
the Revolving Credit which are based on the Inventory Calculation shall not
exceed $15,000,000.00
(c) Section 2.4 is hereby deleted and the following is substituted in its
place:
Note. The Term Loan shall be evidenced by a promissory note of the Borrower,
payable to order of the Bank in substantially the form of Exhibit "A" hereto, in
an aggregate principal amount equivalent to $16,600,000.00, and dated the date
of this Amendment (as may be amended, renewed, increased, restated, replaced or
otherwise modified from time to time, the "Term Note").
(d) 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, based on a five year
amortization schedule, in the amount of $830,000.00 on February 1, 1998 and
continuing quarterly thereafter until the Termination Date. Interest shall be
payable monthly in arrears beginning on February 1, 1997, and continuing on the
like day of each month thereafter, as long as any principal amount remains
outstanding under the Term Loan. On the Termination Date the outstanding balance
of the Term Note plus any and all accrued and unpaid interest shall be due and
payable.
4. Representations and Warranties. To induce Bank to enter into this 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 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 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.
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6. Required Documents. On or prior to the date of the execution of this
Amendment, Bank shall have received from Borrower the following:
(a) Reaffirmations of Continuing and Unconditional Guaranties by each
Restricted Subsidiary ("Reaffirmations"); and
(b) Evidence satisfactory to Bank that the Term Note incorporating the
modifications described herein has been executed out of the State of Florida, or
evidence that all documentary stamps required to be paid in connection with its
execution in the State of Florida have been paid.
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.
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 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 AMENDMENT.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the day and
year first above written:
Witnesses: BORROWER:
NEWBEVCO, INC.,
a Delaware corporation (SEAL)
------------------------------ By:
-----------------------------
------------------------------ Name:
---------------------------
Title:
---------------------------
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BANK:
XXXXXXX BANK, N.A. SUCCESSOR BY
MERGER TO XXXXXXX BANK OF
BROWARD COUNTY., N.A., a national
banking association
---------------------------
By:
--------------------------------
--------------------------- Name:
--------------------------
Title:
--------------------------
STATE OF _________________________)
: ss.
COUNTY OF _________________________)
The foregoing instrument was acknowledged before me this _____ of
____________________, 1997 by___________________________________________of
NewBevco, Inc., a Delaware corporation, on behalf of the corporation. He is
personally known to me or has produced _____________________________ as
identification.
---------------------------------
Notary Public
Name of Notary Printed:
---------------------------------
(NOTARY SEAL)
My commission expires:
My commission number is:
STATE OF _________________________)
: ss.
COUNTY OF _________________________)
The foregoing instrument was acknowledged before me this _____ day of
______________________, 1997 by ________________________________ of Xxxxxxx
Bank, N.A., a national banking association, on behalf of the association. He is
personally known to me or has produced _________________________________ as
identification.
---------------------------------
Notary Public
Name of Notary Printed:
---------------------------------
(NOTARY SEAL)
My commission expires:
My commission number is:
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