EXHIBIT 10.21
AMENDMENT NO. 4 TO AMENDED AND RESTATED CREDIT AGREEMENT
This Amendment No. 4 to the Amended and Restated Credit Agreement (this
"Fourth Amendment"), dated and effective as of April 26, 2002, is by and between
NEWBEVCO, INC., a Delaware corporation ("Borrower"), and Comerica Bank, a
Michigan banking corporation ("Bank").
WITNESSETH
WHEREAS, Bank and Borrower have previously executed and entered into
that certain Amended and Restated Credit Agreement dated as of December 10, 1998
("Credit Agreement") and certain other loan documents;
WHEREAS, pursuant to the Credit Agreement, Bank had previously extended
a Revolving Credit to Borrower of up to Twenty Million and 00/100 Dollars
($20,000,000.00);
WHEREAS, on December 1, 1999, Bank and Borrower modified and extended
the term of the Revolving Credit in that certain Amendment No. 1 to the Credit
Agreement;
WHEREAS, on December 1, 2000, Bank and Borrower modified and extended
the terms of the Revolving Credit in that certain Amendment No. 2 to the Credit
Agreement;
WHEREAS, on December 1, 2001, Bank and Borrower modified and extended
the terms of the Revolving Credit in that certain Amendment No. 3 to the Credit
Agreement;
WHEREAS, Borrower has requested that the Revolving 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.
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.
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(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 Term Note, the Guaranties, the Documentary
Stamp Tax and Intangible Tax Indemnification Agreement,
Amendment No. 1 to the Credit Agreement, Amendment No. 2 to
the Credit Agreement, Amendment No. 3 to the Credit Agreement,
this Fourth Amendment 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 Revolving Credit
Note and 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:
(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.
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(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. 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.
7. 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.
IN WITNESS WHEREOF, the parties have executed this Fourth 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:
COMERICA BANK., a Michigan banking corporation
By:
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Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
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