SIXTH AMENDMENT TO CREDIT AGREEMENT
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THIS SIXTH AMENDMENT TO CREDIT AGREEMENT (this "Sixth Amendment") is
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entered into by and among PEET'S OPERATING COMPANY, INC. (formerly known as
Peet's Coffee and Tea, Inc.) ("Borrower"), PEET'S TRADEMARK COMPANY, and PEET'S
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COFFEE & TEA, INC. (formerly known as Peet's Companies, Inc.), each a Washington
corporation (each a "Credit Party" and collectively, the "Credit Parties"), and
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GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation ("Lender"), as of
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February 21, 2003, with reference to the following facts:
RECITALS
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A. Pursuant to that certain Credit Agreement dated as of September 1,
2000, as amended by that certain First Amendment to Credit Agreement dated as of
January 19, 2001, that certain Second Amendment to Credit Agreement dated as of
June 29, 2001, that certain Third Amendment to Credit Agreement dated as of
March 1, 2002, that certain Fourth Amendment to Credit Agreement dated as of
April 23, 2002, and that certain Fifth Amendment to Credit Agreement dated as of
December 31, 2002, each by and among Credit Parties and Lender (as the same may
have been further amended, supplemented, or otherwise modified from time to time
prior to the date of this Sixth Amendment, the "Credit Agreement"), Lender
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agreed to provide certain financial accommodations to or for the benefit of
Borrower and the other Credit Parties upon the terms and conditions contained
therein. Unless otherwise defined in this Sixth Amendment, (i) capitalized
terms or matters of construction defined or established in Annex A to the Credit
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Agreement shall be applied as defined or established therein, and (ii)
references to Sections, Schedules, and Annexes shall refer, respectively, to
Sections, Schedules, and Annexes of the Credit Agreement.
B. Credit Parties have requested certain modifications to the Credit
Agreement, and Lender has agreed to such request on the terms and conditions set
forth in this Sixth Amendment.
NOW, THEREFORE, in consideration of Credit Parties' performance of
their promises and obligations hereunder, the continued performance by Credit
Parties of their promises and obligations under the Credit Agreement and the
other Loan Documents, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Credit Parties and Lender
hereby agree as follows:
AGREEMENT
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1. AMENDMENTS. Annex G to the Credit Agreement is hereby amended by
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deleting in its entirety paragraph (b) thereof that sets forth the Minimum Fixed
Charge Ratio and substituting the following in lieu thereof: "[Intentionally
Omitted]"
2. EFFECTIVENESS. This Sixth Amendment shall be effective as of
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December 1, 2002, upon Lender's receipt of an original of this Sixth Amendment
duly executed by the Credit Parties and Lender.
3. REPRESENTATIONS AND WARRANTIES. Each Credit Party hereby represents
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and warrants that (a) as of the date of this Sixth Amendment, it has no
Commercial Tort Claims, (b) at all times from the Closing Date through and until
the date of this Sixth Amendment WBG has remained inactive and (c) the
representations and warranties contained in the Credit Agreement were true and
correct in all material respects when made and, after giving effect to this
Sixth Amendment, shall remain true and correct in all material respects as of
the date hereof and thereof, except to the extent that a particular
representation or warranty by its terms expressly applies only to an earlier
date, or is the subject of an updated disclosure schedule attached hereto. The
Credit Agreement and the other Loan Documents, as modified and amended by this
Sixth Amendment, constitute legal, valid and binding obligations of each Credit
Party that is a party thereto, enforceable against such Credit Party in
accordance with their respective terms.
4. RATIFICATION. Except as specifically modified by this Sixth
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Amendment, the parties acknowledge that the Credit Agreement shall remain
binding upon Credit Parties and Lender and all provisions of the Credit
Agreement shall remain in full force and effect. Credit Parties expressly
ratify and affirm their respective obligations to Lender under the Credit
Agreement and the other Loan Documents.
5. MISCELLANEOUS.
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5.1 Entire Agreement; Amendment. This Sixth Amendment, together
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with the Credit Agreement and the other Loan Documents, is the entire agreement
between the parties hereto with respect to the subject matter hereof. This
Sixth Amendment supersedes all prior and contemporaneous oral and written
agreements and discussions with respect to the subject matter hereof or thereof.
No amendment, modification, or waiver of any of the provisions of this Sixth
Amendment shall be valid or enforceable unless set forth in a writing signed by
Credit Parties and Lender.
5.2 Recitals. The recitals set forth at the beginning of this
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Sixth Amendment are true and correct, and such recitals are incorporated into
and are a part of this Sixth Amendment.
5.3 Headings. Section headings used herein are for convenience of
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reference only, are not part of this Sixth Amendment, and are not to be taken
into consideration in interpreting this Sixth Amendment.
5.4 Counterparts. This Sixth Amendment may be executed in
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identical counterpart copies, each of which shall be an original, but all of
which shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Sixth Amendment by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Sixth Amendment. Any party delivering this Sixth Amendment by facsimile
shall send the original manually executed counterpart of this Sixth Amendment to
the other party promptly after such facsimile transmission.
5.5 GOVERNING LAW. THIS SIXTH AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE AND PERFORMED IN
SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING CONFLICT OF LAWS.
5.6 No Waiver. Except as specifically set forth in this Sixth
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Amendment, the execution, delivery and effectiveness of this Sixth Amendment
shall not (a) limit, impair, constitute a waiver of or otherwise affect any
right, power or remedy by Lender under the Credit Agreement or any other Loan
Document, (b) constitute a waiver of any provision in the Credit Agreement or
any other Loan Document, or (c) alter, modify, amend or in any way affect any of
the terms, conditions, obligations, covenants or agreements contained in the
Credit Agreement or any other Loan Document, all of which are ratified and
affirmed in all respects and shall continue in full force and effect.
5.7 Conflict of Terms. In the event of any inconsistency between
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the provisions of this Sixth Amendment and any provision of the Credit
Agreement, the terms and provisions of this Sixth Amendment shall govern and
control.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, this Sixth Amendment to Credit Agreement has been
duly executed as of the date first written above.
"CREDIT PARTIES"
PEET'S COFFEE & TEA, INC.
By: /s/ Mark N. Rudolph
Name: Mark N. Rudolph
Title: CFO
PEET'S OPERATING COMPANY, INC.
By: /s/ Mark N. Rudolph
Name: Mark N. Rudolph
Title: CFO
PEET'S TRADEMARK COMPANY
By: /s/ Mark N. Rudolph
Name: Mark N. Rudolph
Title: CFO
"LENDER"
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Todd Gronski
Name: Todd Gronski
Duly Authorized Signatory