First Amendment to Seventh Amended and Restated Credit Agreement among Lancer Entities and Banks
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This amendment, dated June 30, 2001, modifies the existing credit agreement between Lancer Partnership, Ltd., Lancer de Mexico, S.A. de C.V., related guarantors, and a group of banks led by The Frost National Bank. The amendment extends loan maturity dates, adjusts repayment schedules, and revises certain financial covenants, including interest coverage and debt ratios. It also updates limits on capital expenditures. The agreement ensures continued access to credit for the Lancer entities under revised terms and conditions, with all parties agreeing to the changes outlined in this document.
EX-10.42 3 a2074845zex-10_42.txt EXHIBIT 10.42 EXHIBIT 10.42 FIRST AMENDMENT TO SEVENTH AMENDMENT AND RESTATED CREDIT AGREEMENT THIS FIRST AMENDMENT TO SEVENTH AMENDMENT AND RESTATED CREDIT AGREEMENT (this "AMENDMENT") is made and entered into as of the 30th day of June, 2001, among LANCER PARTNERSHIP, LTD., a Texas limited partnership ("OPERATING SUBSIDIARY"), and LANCER DE MEXICO, S.A. DE C.V., formerly known as NUEVA DISTRIBUIDORA LANCERMEX, S.A. de C.V., a SOCIEDAD ANONIMA DE CAPITAL VARIABLE organized under the laws of the United Mexican States ("MEXICO SUBSIDIARY") (Operating Subsidiary and Mexico Subsidiary are hereinafter referred to individually as a "BORROWER" and collectively as "BORROWERS"); LANCER CORPORATION, a Texas corporation ("PARENT COMPANY"); LANCER CAPITAL CORPORATION, a Delaware corporation ("LANCER CAPITAL") and LANCER INTERNATIONAL SALES, INC., a Texas corporation, ("LANCER INTERNATIONAL") SERVICIOS LANCERMEX, S.A. DE C.V, a SOCIEDAD ANONIMA DE CAPITAL VARIABLE organized under the laws of the United Mexican States ("SERVICIOS LANCERMEX"), INDUSTRIAS LANCERMEX, S.A. DE C.V., a SOCIEDAD ANONIMA DE CAPITAL VARIABLE organized under the laws of the United Mexican States ("INDUSTRIAS LANCERMEX") (Lancer Capital, Lancer International, Servicios Lancermex, Industrias Lancermex and Operating Subsidiary, individually, a "GUARANTOR" and collectively, the "GUARANTORS"); and THE FROST NATIONAL BANK ("FROST"), a national banking association, individually and as agent for the Banks, HARRIS TRUST AND SAVINGS BANK, an Illinois banking corporation ("HARRIS"), individually, and WHITNEY NATIONAL BANK, a national banking association ("WHITNEY"), individually (individually, a "BANK" and collectively, the "BANKS"). RECITALS A. Borrowers, Parent Company, Guarantors and Banks entered into that certain Seventh Amendment and Restated Credit Agreement dated effective June 30, 2000 (as amended, modified, restated and supplemented from time to time, the "CREDIT AGREEMENT"). B. Borrower has requested that the Banks renew and extend the Loans and Commitments and to modify certain of the covenants contained in the Credit Agreement. C. The Banks are willing to agree to such requested change on the terms and conditions set forth in this Amendment. AGREEMENTS In consideration of the foregoing premises, the mutual agreements contained herein and other good and valuable consideration and reasonably equivalent value, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. DEFINITIONS. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the respective meanings set forth in the Credit Agreement. 2. The reference to July 15, 2002 in the last paragraph of Section 2.7 is hereby changed to July 15, 2003. 3. SECTIONS 2.9(a) AND (b) of the Credit Agreement are each hereby amended in their entirety to read as follows: (a) On each Quarterly Date commencing September 30, 2000 and continuing consecutively until the payment of the Term A Loans in full, there shall be due and payable by Operating Subsidiary a principal installment in respect of outstanding Term A Loans in an aggregate principal amount of (i) $275,000 on each Quarterly Date from September 30, 2000 through July 15, 2003, inclusive; PROVIDED, HOWEVER, the aggregate unpaid principal balance of the Term A Loans, together with accrued, unpaid interest thereon shall (unless the maturity thereof is sooner accelerated or otherwise becomes due and payable in accordance with the terms hereof or any other Loan Document) be due and payable in full by Operating Subsidiary on July 15, 2003. (b) On each Quarterly Date commencing September 30, 2000 and continuing consecutively until the payment of the Term B Loans in full, there shall be due and payable by Mexico Subsidiary a principal installment in respect of outstanding Term B Loans in an aggregate principal amount of $75,000; PROVIDED, HOWEVER, the aggregate unpaid principal balance of the Term B Loans, together with accrued, unpaid interest thereon shall (unless the maturity thereof is sooner accelerated or otherwise becomes due and payable in accordance with the terms hereof or any other Loan Document) be due and payable in full by Mexico Subsidiary on July 15, 2003. 4. SECTION 6.1(b) of the Credit Agreement is hereby amended in its entirety to read as follows: (b) the ratio of: (i) EBIT of the Companies determined on a consolidated basis, to (ii) the interest expense (the actual accrued interest for debt payments, but not including t00he present value of interest rate swaps) of the Companies determined on a consolidated basis, (as of the end of each Fiscal Quarter and for the number of quarters shown below next to the ending date of each of the Fiscal Quarters listed below), to be less than set out below opposite the period in which such Fiscal Quarter ends; provided, however, for each Fiscal Quarter in which an Acquisition is consummated, and each Fiscal Quarter ending prior thereto, the financial information necessary to determine the foregoing ratio shall be adjusted to reflect, on a pro forma basis, such Acquisition as if it had occurred as of the beginning of the first of such Fiscal Quarters included in the relevant four-quarter measurement period,
5. SECTION 6.1(g) of the Credit Agreement is hereby amended in its entirety to read as follows: (g) the ratio of (i) Total Funded Debt as of the end of any Fiscal Quarter to (ii) Consolidated EBITDA for the four-quarter period ending as of the end of such Fiscal Quarter, to be more than set out below opposite the period in which such Fiscal Quarter ends; provided, however, (1) for each Fiscal Quarter in which an Acquisition is consummated, and each Fiscal Quarter ending prior thereto, the financial information necessary to determine Consolidated EBITDA shall be adjusted to reflect, on a pro forma basis, such Acquisition as if it had occurred as of the beginning of the first of such Fiscal Quarters included in the relevant four-quarter measurement period:
6. SECTION 6.1(h) of the Credit Agreement is hereby amended in its entirety to read as follows: (h) the capital expenditures of the Companies determined on a consolidated basis to exceed the amount set out below opposite the applicable period; provided that there shall be excluded from the calculation of such capital expenditures (i) any capital expenditure of any Company to the extent that such Company is reimbursed for such capital expenditure by The Coca-Cola Company and (ii) up to $500,000 in Capital Lease Obligations of the Companies determined on a consolidated basis for any Fiscal Year:
7. SECTION 6.1(i) of the Credit Agreement is hereby amended in its entirety to read as follows: (i) the ratio of (i) Cost of Goods Sold for the four-quarter period ending as of the end of each Fiscal Quarter to (ii) Total Inventory as of the end of any Fiscal Quarter, to be less than for the four-quarter period ending as of the end of such Fiscal Quarter set out below opposite the period in which such Fiscal Quarter ends:
8. The Credit Agreement is hereby amended to add the following as SECTION 6.1(j): (j) the ratio of the sum of (a) consolidated EBITDA, less (b) capital expenditures, plus (c) capital expenditures reimbursable by the Coca-Cola Company, plus (d) debt or capital leases incurred in connection with the capital asset acquisition, less (e) gain or loss on the sale of capital assets, plus (f) cash proceeds from the sale of assets to (ii) the sum of (a) contractually due principal and interest, plus (b) non-contractual debt retirement (excluding payments on the Revolving Loans), plus (c) capital lease payments, all calculated on a consolidated basis for the four quarter period ending as of the last day of each Fiscal Quarter to be less than:
9. The Credit Agreement is hereby amended to add the following as subsection (viii) to Section 10.6 immediately before the phrase "PROVIDED, FURTHER, THAT,: (viii) modify the financial covenant set forth in Section 6.1(j). 10. Annex A of the Credit Agreement is hereby deleted in its entirety and replaced with Annex A attached hereto and incorporated herein. 11. Exhibit M -- Compliance Certificate is hereby amended to incorporate the changes shown above to subsections 6.1 (b), (g), (h), (i) and (j) of the Credit Agreement. 12. By execution hereof, Parent Company also reaffirms and renews that certain Stock Pledge Agreement executed by Parent Company dated as of June 30, 2000. 13. In order to induce the Agent and the Banks to enter into this Amendment, each Borrower hereby represents and warrants to the Agent and the Banks that, as of the date of this Amendment, (a) the representations and warranties set forth in the Credit Agreement and each other Loan Document are true and correct as if made on and as of the date hereof (other than those representations and warranties expressly limited by their terms to a specific date), (b) no Default or Event of Default has occurred and is continuing, except as already acknowledged in writing by Banks, and (c) no event has occurred since the date of the most recent financial statements delivered pursuant to Section 5.1 of the Credit Agreement that has caused a Material Adverse Effect, except as acknowledged in writing by Banks. 14. Each Borrower hereby acknowledges and agrees that, to the best of their knowledge and belief, no facts events status or conditions presently exist which, either now or with the passage of time or the giving of notice or both, presently constitute or will constitute a basis for any claim or cause of action against any of the Banks, or any defense to the payment of any of the indebtedness evidenced or to be evidenced by any of the Loan Documents. 15. In the event that any one or more of the provisions contained in this Amendment shall be determined invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision or provisions in every other respect and the remaining provisions of this Amendment shall not be impaired in any way. 16. When required or implied by the context used, defined terms used herein shall include the plural as well as the singular, and vice versa. 17. This Amendment shall be governed by and construed in accordance with the internal laws of the State of Texas and applicable federal laws of the United States of America. This Amendment has been entered into in Bexar County, Texas and shall be performable for all purposes in Bexar County, Texas. The courts within the State of Texas shall have jurisdiction over any and all disputes arising under or pertaining to this Amendment; and any such dispute shall be heard in the county or judicial district of the principal place of business of The Frost National Bank. 18. This Amendment shall be binding upon and inure to the benefit of all parties hereto and their respective successors and assigns; provided, however, that neither of the Borrowers nor any of their respective successors or assigns may, without the prior written consent of all of the Banks, assign any rights, powers, duties or obligations hereunder. 19. This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument. 20. This Amendment constitutes a Loan Document. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized signatories as of the day and year first above written. OPERATING SUBSIDIARY: LANCER PARTNERSHIP, LTD. limited partnership By: Lancer Capital Corporation, a Delaware corporation, general partner By: /s/ SCOTT ADAMS ---------------- Name: Scott Adams ---------------------------- Title: Treasurer ---------------------------- MEXICO SUBSIDIARY: LANCER DE MEXICO, S.A. DE C.V., a SOCIEDAD ANONIMA DE CAPITAL VARIABLE organized under the laws of the United Mexican States By: /s/ SCOTT ADAMS ---------------------- Name: Scott Adams -------------------------------- Title: Secretario -------------------------------- PARENT COMPANY: LANCER CORPORATION, a Texas corporation By: /s/ SCOTT ADAMS ---------------------- Name: Scott Adams -------------------------------- Title: Treasurer -------------------------------- GUARANTORS: SERVICIOS LANCERMEX, S.A. DE C.V., a SOCIEDAD ANONIMA DE CAPITAL VARIABLE organized under the laws of the United Mexican States,solely as guarantor of the indebtedness of Lancer de Mexico, S.A. de C.V. By: /s/ SCOTT ADAMS ---------------------- Name: Scott Adams -------------------------------- Title: Secretario -------------------------------- INDUSTRIAS LANCERMEX, S.A. DE C.V., a SOCIEDAD ANONIMA DE CAPITAL VARIABLE organized under the laws of the United Mexican States,solely as guarantor of the indebtedness of Lancer de Mexico, S.A. de C.V. By: /s/ SCOTT ADAMS ---------------------- Name: Scott Adams -------------------------------- Title: Secretario -------------------------------- LANCER INTERNATIONAL SALES, INC., a Texas corporation By: /s/ SCOTT ADAMS ---------------------- Name: Scott Adams -------------------------------- Title: Treasurer -------------------------------- AGENT/BANKS: THE FROST NATIONAL BANK, a national banking association, Individually and as the Agent By: /s/ KELLY WEAVER ----------------------------------- Name: Kelly Weaver ---------------------------------- Title: Vice President --------------------------------- WHITNEY NATIONAL BANK, a national banking association By: /s/ ROBERT L. BROWNING ------------------------------------ Name: Robert L. Browning ---------------------------------- Title: Senior Vice President --------------------------------- HARRIS TRUST AND SAVINGS BANK, an Illinois banking corporation By: /s/ PAUL RUBRICH ----------------------------------- Name: Paul Rubrich ---------------------------------- Title: Vice President --------------------------------- ANNEX A THE FROST NATIONAL BANK, a national banking association 1. Domestic Lending Office: The Frost National Bank 100 West Houston Street San Antonio, Texas 78205 2. LIBOR Lending Office: The Frost National Bank 100 West Houston Street San Antonio, Texas 78205
8. Information for Notices: The Frost National Bank 100 West Houston Street San Antonio, Texas 78205 Attention: Beth Weakley Phone: (210) 220-5393 Fax: (210) 220-4626 Annex A-1 WHITNEY NATIONAL BANK, a national banking association 1. Domestic Lending Office: Whitney National Bank 228 St. Charles Avenue New Orleans, Louisiana 70130 2. LIBOR Lending Office: Whitney National Bank 228 St. Charles Avenue New Orleans, Louisiana 70130
8. Information for Notices: Whitney National Bank 228 St. Charles Avenue New Orleans, Louisiana 70130 Attention: Robert L. Browning, Senior Vice President Phone: (504) 586-7163 Fax: (504) 552-4622 Annex A-2 HARRIS TRUST AND SAVINGS BANK, an Illinois banking corporation 1. Domestic Lending Office: Harris Trust and Savings Bank 111 West Monroe Street 5 East Chicago, Illinois 60603 2. LIBOR Lending Office: Harris Trust and Savings Bank 111 West Monroe Street 5 East Chicago, Illinois 60603
8. Information for Notices: Harris Trust and Savings Bank 111 West Monroe Street 5 East Chicago, Illinois 60603 Attention: Tim Broccolo Phone: (312) 461-2752 Fax: (312) 765-8382 Annex A-3 Address for Operating Subsidiary: Lancer Partnership, Ltd. 6655 Lancer Boulevard San Antonio, Texas 78219 Attention: Chief Financial Officer Phone: (210) 310-7000 Fax: (210) 310-7091 Address for Mexico Subsidiary: Lancer de Mexico, S.A. de C.V. c/o Lancer Corporation 6655 Lancer Boulevard San Antonio, Texas 78219 Attention: Chief Financial Officer Phone: (210) 310-7000 Fax: (210) 310-7091 Address for Parent Company: Lancer Corporation 6655 Lancer Boulevard San Antonio, Texas 78219 Attention: Chief Financial Officer Phone: (210) 310-7000 Fax: (210) 310-7091 Address for Lancer Capital, Lancer International, Servicios Lancermex, Industrias Lancermex 6655 Lancer Boulevard San Antonio, Texas 78219 Attention: Chief Financial Officer Phone: (210) 310-7000 Fax: (210) 310-7091
