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EXHIBIT 10.1
FIFTH AMENDMENT TO CREDIT AGREEMENT
This Fifth Amendment to Credit Agreement ("Fifth Amendment"), dated
November 14, 1996, 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 Credit Agreement dated September 23, 1993 ("Credit Agreement") and
certain other loan documents also dated September 23, 1993;
WHEREAS, pursuant to the Credit Agreement, Bank had previously
extending a Line of Credit to Borrower of up to Fifteen Million and 00/100
Dollars ($15,000,000.00);
WHEREAS, on November 10, 1994, Bank and Borrower extended the term of
the Line of Credit in that certain First Amendment to Credit Agreement;
WHEREAS, on November 21, 1995, Bank and Borrower modified and extended
the terms of the Line of Credit in that certain Second Amendment to Credit
Agreement;
WHEREAS, on February 29, 1996, Bank and Borrower further modified and
amended the terms of the Line of Credit in that certain Third Amendment to
Credit Agreement;
WHEREAS, on April 24, 1996, Bank and Borrower further modified and
amended the terms of the Line of Credit in that certain Fourth Amendment to
Credit Agreement and agreed to increase the Line of Credit to Twenty-Five
Million and 00/100 Dollars as evidenced by that certain Master Revolving
Promissory Note dated April 24, 1996 in the original principle amount of
Twenty-Five Million and 00/100 Dollars ($25,000,000) ("Note"); and
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
herein.
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.
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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 First Amendment to Credit Agreement, the Second Agreement to
Credit Agreement, the Third Amendment to the Credit Agreement, the Fourth
Amendment to the Credit Agreement and this Fifth Amendment.
(b) The first portion of the first sentence (up to the
first comma) of Section 2.1(b) of the Credit Agreement is hereby deleted and
replaced with the following: "Prior to August 31, 1998 (as may be extended
pursuant to the terms hereof, the "Termination Date")..."
(c) Section 2.9 is hereby deleted in its entirety and the
following is substitute in its place:
2.9 UNUSED FEE FOR REVOLVING CREDIT. As
consideration for making the Revolving Credit
available, the Borrower shall pay to the Bank an
unused fee from the date hereof through the
Termination Date equal to one-quarter of one
percent (.25%) per annum of the unused portion of
the Committed Amount under the Revolving Credit.
Such fee shall be computed on the basis of the
average daily unused portion of the Committed
Amount and shall be payable quarterly in arrears
beginning on November 10, 1996 and continuing on the
10th day of each of the following months thereafter
during the term of the Revolving Credit: November,
February, May and August.
4. REPRESENTATIONS AND WARRANTIES. To induce Bank to enter into
this Fifth 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 Fifth 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 Fifth 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) Execution by Borrower of a Tax Indemnity Agreement.
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 AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Fifth Amendment as
of the day and year first above written.
Witnesses: BORROWER:
NEWBEVCO, INC.,
a Delaware corporation (SEAL)
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By: \s\ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
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Title: Executive Vice President
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BANK:
XXXXXXX BANK, N.A. SUCCESSOR
BY MERGER TO XXXXXXX BANK
OF BROWARD COUNTY, N.A.
a national banking association
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By: \s\ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Vice President
