FOURTH AMENDMENT TO TERM LOAN CREDIT AGREEMENT

EX-10.19 3 g77361exv10w19.txt FOURTH AMENDMENT TO TERM LOAN CREDIT AGREEMENT 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 Barnett 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: 1 "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: 2 (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. 3 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: George R. Bracken Title: Vice President and Treasurer BANK: BANK OF AMERICA, N.A., a national banking association - -------------------------- By: ----------------------------------------- Name: Sean McLaren - -------------------------- Title: Vice President 4