EXHIBIT 10.19
FOURTH AMENDMENT TO TERM LOAN CREDIT AGREEMENT
This Fourth Amendment to Term Loan Credit Agreement (this "Fourth
Amendment"), dated and effective as of April 26, 2002, is by and between
NEWBEVCO, INC., a Delaware corporation ("Borrower"), and BANK AMERICA, N.A.,
formerly 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);
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, Bank and Borrower modified the terms of the Original Credit
Agreement in that certain Third Amendment to Term Loan Credit Agreement dated
June 7, 1999 (the "Third Amendment");
WHEREAS, Borrower has requested that the Term Loan Credit be further
modified and Bank is willing to do so upon the terms and conditions set forth in
this Fourth Amendment (the Original Credit Agreement as modified by the Letter
Agreement, the First Amendment, the Second Amendment, the Third Amendment and
this Fourth Amendment are collectively referred to as the "Credit Agreement").
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.
3. AMENDMENTS TO CREDIT AGREEMENT.
(a) Section 1.1 of the Credit Agreement is amended to
revise the definition of Current Liabilities to read
as follows:
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"Current Liabilities" means, with respect to any Person, as of
the date of determination thereof, (i) all Indebtedness
payable on demand or maturing within one year of such date of
determination; and (ii) all other Indebtedness of such Person
which would be reflected as current liabilities on a balance
sheet of such Person as at such date of determination in
accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis.
(b) Section 1.1 of the Credit Agreement is amended to
revise the definition of Funded Debt as follows:
"Funded Debt" means, with respect to any Person, all
Indebtedness of such Person, including, without limitation,
current maturities of Funded Debt. For purposes of this
Agreement, Funded Debt shall not include trade payables and
accrued liabilities.
(c) 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 Term Note, the
Guaranties, all Documentary Stamp and Intangible Tax
Indemnification Agreement and similar agreements, all
Reaffirmations of Guaranty of the Guaranties, the Letter
Agreement, the First Amendment to Term Loan Credit Agreement,
the Second Amendment to Term Loan Credit Agreement, the Third
Amendment to Term Loan Credit Agreement and the Fourth
Amendment to Term Loan Credit Agreement and all amendments,
modifications, renewals and replacements of any of the
foregoing.
(d) Section 1.1 of the Credit Agreement is amended to
revise the definition of Permitted Liens as follows:
(i) by deleting "and" from the end of subpart
(h);
(ii) by deleting the period from the end of
subpart (i) and substituting in lieu thereof
"; and"; and
(iii) by adding new subpart (j) as follows:
(j) Liens created in connection with and securing
Indebtedness for Money Borrowed, and any extension,
renewal or replacement of such Liens; provided,
however, no such Lien shall extend to or in any way
encumber any Eligible Receivables or Eligible
Inventory.
(e) Section 3.1 of the Credit Agreement is hereby deleted
in its entirety and amended by substituting in lieu
thereof:
3.1. Security Interest. The Term Note shall be
unsecured.
(f) Section 6.14 of the Credit Agreement is hereby
amended as follows:
(i) by deleting subpart (a) and substituting in
lieu thereof:
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(a) At all times, a ratio of
Consolidated Current Assets to
Consolidated Current Liabilities of
not less than 1.0 to 1.0
(ii) by deleting subpart (c) and substituting in
lieu thereof:
(c) Consolidated Net Worth at each
fiscal quarter end of not less than
$25,000,000.00.
(g) Section 7.5 is hereby deleted in its entirety and
hereby amended by substituting in lieu thereof:
7.5. Reserved
4. REPRESENTATIONS AND WARRANTIES. To induce Bank to enter into
this Fourth 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 Fourth 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 Fourth 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 Fourth 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) a Tax Indemnity Agreement; 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.
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 FOURTH 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 FOURTH AMENDMENT.
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IN WITNESS WHEREOF, the parties have executed this Fourth Amendment as
of the day and year first above written.
Witnesses: BORROWER:
NEWBEVCO, INC., a Delaware corporation (SEAL)
--------------------------
By:
-------------------------- -----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
BANK:
BANK OF AMERICA, N.A., a national banking
association
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By:
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Name: Xxxx XxXxxxx
-------------------------- Title: Vice President
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