EXHIBIT 10.20
TENTH AMENDMENT TO CREDIT AGREEMENT
This Tenth Amendment to Credit Agreement (this "Tenth Amendment"),
dated and effective as of April 26, 2002, is by and between NEWBEVCO, INC., a
Delaware corporation ("Borrower"), and BANK OF AMERICA, N.A. formerly
NationsBank, N.A., successor by merger to Xxxxxxx Bank, N.A. ("Bank").
WITNESSETH
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 including that certain revolving credit note also
dated September 23, 1993 in the original principal amount of $15,000,000.00;
WHEREAS, pursuant to the Credit Agreement, Bank had previously extended
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 to Twenty-Five Million and 00/100
Dollars as evidenced by that certain Master Revolving Promissory Note dated
April 24, 1996 in original principal amount of Twenty-Five Million and 00/100
Dollars ($25,000,000.00) (the "Note");
WHEREAS, on November 14, 1996, Bank and Borrower further modified and
amended the terms of the Line of Credit in that certain Fifth Amendment to
Credit Agreement;
WHEREAS, on February 18, 1998, Bank and Borrower further modified and
amended the terms of the Line of Credit in that certain Sixth Amendment to
Credit Agreement;
WHEREAS, on December 10, 1998, Bank and Borrower further modified and
amended the terms of the Line of Credit in that certain Seventh Amendment to
Credit Agreement;
WHEREAS, on January 31, 2000, Bank and Borrower further modified and
amended the terms of the Line of Credit in that certain Eighth Amendment to
Credit Agreement;
WHEREAS, on March 14, 2001, Bank and Borrower further modified and
amended the terms of the Line of Credit in that certain Ninth Amendment to
Credit Agreement; 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.
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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:
"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 Revolving
Credit Note, the Guaranties, all Documentary Stamp and
Intangible Tax Indemnification Agreement and similar
agreements, all Reaffirmations of Guaranty of the Guaranties,
the First Amendment to Credit Agreement, the Second Amendment
to Credit Agreement, the Third Amendment to Credit Agreement,
the Fourth Amendment to Credit Agreement, the Fifth Amended to
Credit Agreement, the Sixth Amendment to Credit Agreement, the
Seventh Amendment to Credit Agreement, the Eight Amendment to
Credit Agreement, the Ninth Amendment to Credit Agreement and
the Tenth Amendment to 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);
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(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) 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, 2003 (as may be
extended pursuant to the terms hereof, the
"Termination Date")..."
(f) 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 Revolving Credit Note
shall be unsecured.
(g) Section 6.14 of the Credit Agreement is hereby
amended as follows:
(i) by deleting subpart (a) and substituting in
lieu thereof:
(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.
(h) 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 Tenth 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 Tenth 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 Tenth 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 Tenth 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 as
may be requested 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 TENTH 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 TENTH AMENDMENT.
IN WITNESS WHEREOF, the parties have executed this Tenth Amendment as
of the day and year first above written.
BORROWER:
NEWBEVCO, INC., a Delaware corporation
(SEAL)
By:
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
BANK:
BANK OF AMERICA, N.A., a national banking
association
By:
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Name: Xxxx XxXxxxx
Title: Vice President
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