EXHIBIT 10.1
FIRST AMENDMENT, CONSENT AND JOINDER AGREEMENT
THIS FIRST AMENDMENT, CONSENT AND JOINDER AGREEMENT (this "Agreement"), is
made and entered into the 10th day of August, 2005, with an effective date set
forth in Section 8 hereof, by and among COTT CORPORATION, a corporation
organized under the laws of Canada (the "Canadian Borrower"), COTT BEVERAGES
INC., a corporation organized under the laws of Georgia (the "U.S. Borrower"),
COTT BEVERAGES LIMITED, a corporation incorporated under the laws of England and
Wales (the "Original U.K. Borrower"), MACAW (SOFT DRINKS) LIMITED, a corporation
incorporated under the laws of England and Wales (the "New U.K. Borrower" and,
together with the Canadian Borrower, the U.S. Borrower and the Original U.K.
Borrower, the "Multicurrency Borrowers" and each a "Multicurrency Borrower"),
and COTT EMBOTELLADORES de MEXICO, S.A. de C.V., a company organized under the
laws of Mexico (the "Mexican Borrower" and, together with the Multicurrency
Borrowers, the "Borrowers" and each a "Borrower"), certain Subsidiaries of the
Canadian Borrower party hereto (the "Guarantors"), the Lenders party to the
Financing Agreements referred to below, as Lenders, and WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association, as Administrative Agent and
Security Trustee for the Lenders (the "Administrative Agent").
Statement of Purpose
The Revolving Lenders agreed to extend certain credit facilities to the
Multicurrency Borrowers pursuant to the Credit Agreement dated as of March 31,
2005 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement") by and among the Borrowers, the Lenders and the
Administrative Agent.
The Mexican Facility Lenders agreed to extend certain credit facilities to
the Mexican Borrower pursuant to the Mexican Loan Agreement dated as of March
31, 2005 (as amended, restated, supplemented or otherwise modified from time to
time, the "Mexican Loan Agreement" and, together with the Credit Agreement, the
"Financing Agreements") by and among the Mexican Borrower, the Canadian
Borrower, the Mexican Facility Lenders party thereto, the Administrative Agent,
and HSBC Mexico, S.A., Institucion de Banca Multiple, Grupo Financiero HSBC, as
Mexican Agent.
The Borrowers have requested that the Lenders consent to the following:
(a) the acquisition of Macaw (Holdings) Limited, a corporation incorporated
under the laws of England and Wales ("Macaw Holdings"), and its Subsidiaries,
including, without limitation, the New U.K. Borrower, by the Original U.K.
Borrower through the acquisition of all of the equity interests in Macaw
Holdings for a purchase price not to exceed $165,000,000 in the aggregate (the
"Macaw Acquisition"); and
(b) the joinder of the New U.K. Borrower as an additional U.K. Borrower
(and thus as a Multicurrency Borrower and a Borrower) under the Credit Agreement
(the "New U.K. Borrower Joinder").
In connection with the Macaw Acquisition and the New U.K. Borrower Joinder
and pursuant to Section 2.9 of the Credit Agreement, the Borrowers have
requested that certain of the Revolving Lenders, including each New Lender (as
defined below) (each, an "Increase Lender"), agree to an increase in the
Revolving Commitment in an aggregate amount equal to $125,000,000 (the
"Revolving Commitment Increase" and, together with the Macaw Acquisition, the
New U.K. Borrower Joinder and the payment of all fees and expenses in connection
therewith, the "Transactions").
The Borrowers also desire to amend or modify certain provisions of the
Financing Agreements in certain respects on the terms and conditions set forth
below.
Subject to and in accordance with the terms and conditions set forth
herein, the Lenders party hereto are willing (a) to consent to the Transactions
and (b) to agree to the amendments described in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Capitalized Terms. All capitalized undefined terms used in this
Agreement (including, without limitation, in the Statement of Purpose hereto)
shall have the meanings assigned thereto in the Credit Agreement.
2. Consents.
(a) Macaw Acquisition.
(i) Pursuant to Section 14.2 of each of the Financing Agreements and
effective as of the Effective Date (as defined below), the Lenders consent
to the Macaw Acquisition.
(ii) Notwithstanding the terms of the Financing Agreements, the
Administrative Agent, the Lenders and the Borrowers agree that,
notwithstanding the $100,000,000 basket for cash consideration set forth in
clause (g)(i) of the definition of "Permitted Acquisition" in the Credit
Agreement, the Macaw Acquisition shall be a "Permitted Acquisition" and
accordingly shall be deemed to be permitted by Section 11.3 of the Credit
Agreement; provided that the consideration to be paid in connection with
the Macaw Acquisition shall not be deemed to be utilization of the
$150,000,000 basket set forth in clause (g)(ii) of the definition of
"Permitted Acquisition" in the Credit Agreement.
(b) New U.K. Borrower Joinder. Pursuant to Section 14.2 of the Credit
Agreement and effective as of the Effective Date (as defined below), the Lenders
consent to the New U.K. Borrower Joinder. In connection with the New U.K.
Borrower Joinder, the Revolving Lenders and the Borrowers agree that the New
U.K. Borrower may request Revolving Extensions of Credit and the Revolving
Lenders will make such Revolving Extensions of Credit to the New U.K. Borrower
in the same Permitted Currencies and upon the same terms and conditions as the
Revolving Lenders make such Revolving Extensions of Credit to the Original U.K.
Borrower.
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(c) Revolving Commitment Increase. Pursuant to Section 14.2 of the Credit
Agreement and effective as of the Effective Date (as defined below), the Lenders
(including each Increase Lender) hereby consent to the Revolving Commitment
Increase in an aggregate principal amount equal to $125,000,000 notwithstanding
the requirement of Section 2.9(c) of the Credit Agreement that each increase in
the Revolving Commitment be in whole multiples of $20,000,000 in excess of
$20,000,000. After giving effect to the Revolving Commitment Increase, the
resulting Revolving Commitment as of the Effective Date (as defined below) shall
be $220,000,000. Additionally, after giving effect to the Revolving Commitment
Increase and the amendments set forth in Section 3 below, the Canadian Borrower,
on behalf of itself and the other Multicurrency Borrowers, shall have the right
to request additional increases to the Revolving Commitment pursuant to Section
2.9 of the Credit Agreement in an aggregate principal amount not to exceed
$125,000,000.
3. Amendments to Credit Agreement. The Credit Agreement is hereby modified
as follows:
(a) Amendment to Existing Definitions. The definitions of the following
defined terms, which are set forth in Section 1.1 of the Credit Agreement, are
hereby amended in their entirety as follows:
"Maximum Facility Amount" shall equal $350,000,000.
"Revolving Commitment" means the aggregate amount of the Revolving
Lenders' Commitments under this Agreement, as such amount may be increased,
reduced or otherwise modified at any time or from time to time pursuant to
the terms hereof. On the First Amendment Effective Date, the Revolving
Commitment shall be Two Hundred Twenty Million Dollars ($220,000,000).
"U.K. Borrower" means, based on the context in which such term is
used, (A) the Original U.K. Borrower and the New U.K. Borrower, (B) the
Original U.K. Borrower or the New U.K. Borrower or (C) the Original U.K.
Borrower or the New U.K. Borrower (as applicable).
(b) Amendment to Add New Definitions. Section 1.1 of the Credit Agreement
is hereby amended by inserting the following new definitions in appropriate
alphabetical order:
"First Amendment Effective Date" means the effective date of the First
Amendment, Consent and Joinder Agreement to Credit Agreement dated as of
August 10, 2005 by and among the Credit Parties, the Lenders party thereto
and the Administrative Agent.
"New U.K. Borrower" means Macaw (Soft Drinks) Limited, a corporation
incorporated under the laws of England and Wales.
"Original U.K. Borrower" means Cott Beverages Limited, a corporation
incorporated under the laws of England and Wales.
4. Acknowledgments Regarding Revolving Commitment.
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(a) (i) It is agreed and acknowledged that (A) immediately prior to
the effectiveness of this Agreement that the Revolving Commitment was equal
to $95,000,000 and (B) upon the effectiveness of this Agreement, the
Revolving Commitment shall equal $220,000,000.
(ii) It is agreed and acknowledged that the Canadian Swingline
Commitment, the U.S. Swingline Commitment, the U.K. Swingline Commitment,
the L/C Commitment and the Mexican Facility Commitment shall remain
unchanged.
(b) The Borrowers and the Revolving Lenders hereby agree and acknowledge
that the Administrative Agent shall make any adjustments to the Register as are
necessary to reflect (i) the Revolving Commitment of all of the Revolving
Lenders and (ii) the Commitment of each Revolving Lender (in each case after
giving effect to the Revolving Commitment Increase).
(c) The Administrative Agent, the Revolving Lenders and the Borrowers
hereby agree and acknowledge that upon the Effective Date:
(i) each outstanding Revolving Loan under the Credit Agreement shall
be repaid in full and all accrued but unpaid interest due on each such
Revolving Loan shall be paid in full (including, without limitation, all
principal and interest owed to each Revolving Lender under the Credit
Agreement);
(ii) all accrued but unpaid fees and other amounts required to be paid
by the Borrowers under the Credit Agreement shall be paid in full
(including, without limitation, all fees and other amounts owed to each
Revolving Lender under the Credit Agreement); and
(iii) each Revolving Loan requested by the Borrowers to be made on or
after the Effective Date under the Credit Agreement (including, without
limitation, any Revolving Loans funded by the Revolving Lenders on the
Effective Date in order to repay the Revolving Lenders as provided in
subsections (c)(i) and (c)(ii) above) shall be allocated among each
Revolving Lender under the Credit Agreement according to the Revolving
Commitment Percentage of each such Revolving Lender under the Credit
Agreement as set forth in the Register (as updated in accordance with
subsection (b) above) and each such Revolving Loan under the Credit
Agreement shall be made in accordance with the terms and provisions of the
Credit Agreement.
5. Joinder Agreement.
(a) Designation of Macaw Holdings and the New U.K. Borrower as Restricted
Subsidiaries. Pursuant to Section 9.11 of the Credit Agreement, the Canadian
Borrower hereby designates each of Macaw Holdings and the New U.K. Borrower as a
Restricted Subsidiary. Each of Macaw Holdings and the New U.K. Borrower hereby
agrees that it is a Restricted Subsidiary under the Credit Agreement as if it
were a Restricted Subsidiary on the Closing Date, and that it shall comply with
and be subject to and have the benefit of, and hereby assumes and agrees to be
bound by, all of the terms, conditions, covenants, agreements and obligations
applicable to the Restricted Subsidiaries set forth in the Credit Agreement and
other Loan Documents. Macaw Holdings and the New U.K. Borrower hereby agree that
each reference to a
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"Restricted Subsidiary" or the "Restricted Subsidiaries" in the Credit Agreement
and other Loan Documents shall include Macaw Holdings and the New U.K. Borrower.
(b) Credit Agreement and Guaranty Agreement Supplements.
(i) Joinder of the New U.K. Borrower as Multicurrency Borrower and to
the Multicurrency Borrower Guaranty Agreement.
(A) The New U.K. Borrower hereby agrees that (1) it is a U.K.
Borrower under the Credit Agreement as if it were a U.K. Borrower on the
Closing Date, (2) it is a Multicurrency Borrower under the Credit Agreement
as if it were a Multicurrency Borrower on the Closing Date and (3) it is a
Borrower under the Credit Agreement as if it were a Borrower on the Closing
Date, and, unless otherwise specifically provided therein, the New U.K.
Borrower shall comply with and be subject to and have the benefit of, and
hereby assumes and agrees to be bound by, all of the terms, conditions,
covenants, agreements and obligations applicable to U.K. Borrowers,
Multicurrency Borrowers and Borrowers set forth in the Credit Agreement and
the other Loan Documents. The New U.K. Borrower hereby agrees that, unless
otherwise provided in the Credit Agreement, each reference to a "U.K.
Borrower," a "Multicurrency Borrower," a "Borrower", the "Multicurrency
Borrowers," or the "Borrowers" in the Credit Agreement and the other Loan
Documents shall include the New U.K. Borrower, and each reference to the
"Credit Agreement" or this "Agreement" as used in the Credit Agreement and
each reference to the "Credit Agreement" as used in the other Loan
Documents shall mean the Credit Agreement as modified hereby.
(B) The New U.K. Borrower hereby agrees that it is a
Multicurrency Borrower Guarantor under the Multicurrency Borrower Guaranty
Agreement as if a signatory thereto on the Closing Date, and the New U.K.
Borrower shall comply with and be subject to and have the benefit of, and
hereby assumes and agrees to be bound by, all of the terms, conditions,
covenants, agreements and obligations set forth therein. The New U.K.
Borrower hereby agrees that, unless otherwise provided in the Credit
Agreement, the Multicurrency Borrower Guaranty Agreement or the other Loan
Documents, each reference to a "Multicurrency Borrower Guarantor," a
"Guarantor," the "Multicurrency Borrower Guarantors" or the "Guarantors" in
the Credit Agreement, the Multicurrency Borrower Guaranty Agreement and the
other Loan Documents shall include the New U.K. Borrower, and each
reference to the "Multicurrency Borrower Guaranty Agreement" or this
"Guaranty" as used in the Multicurrency Borrower Guaranty Agreement and
each reference to "Multicurrency Borrower Guaranty Agreement" as used in
the other Loan Documents shall mean the Multicurrency Borrower Guaranty
Agreement as modified hereby.
(C) The New U.K. Borrower acknowledges that it has received a
copy of the Credit Agreement and the Multicurrency Borrower Guaranty
Agreement and that it has read and understands the terms thereof.
(ii) Joinder of Macaw Holdings as a Subsidiary Guarantor.
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(A) Pursuant to Section 9.11 of the Credit Agreement, Macaw
Holdings hereby agrees that it is a Subsidiary Guarantor under the Master
Subsidiary Guaranty Agreement as if a signatory thereto on the Closing
Date, and Macaw Holdings shall comply with and be subject to and have the
benefit of, and hereby assumes and agrees to be bound by, all of the terms,
conditions, covenants, agreements and obligations set forth therein. Macaw
Holdings hereby agrees that each reference to a "Subsidiary Guarantor," a
"Guarantor," the "Subsidiary Guarantors" or the "Guarantors" in the Credit
Agreement, the Master Subsidiary Guaranty Agreement and the other Loan
Documents shall include Macaw Holdings, and each reference to the "Master
Subsidiary Guaranty Agreement" or this "Guaranty" as used in the Master
Subsidiary Guaranty Agreement and each reference to the "Master Subsidiary
Guaranty Agreement" as used in the other Loan Documents shall mean the
Master Subsidiary Guaranty Agreement as modified hereby.
(B) Macaw Holdings acknowledges that it has received a copy of
the Credit Agreement and the Master Subsidiary Guaranty Agreement and that
it has read and understands the terms thereof.
6. New Lender Accession Agreement.
[Intentionally Omitted]
7. Updated Schedules to the Credit Agreement. Attached hereto as Annex A
are updated Schedules 7.1(a) and 7.1(b) to the Credit Agreement setting forth
all information required to be provided therein (which information shall be
provided as of the Effective Date).
8. Effectiveness. This Agreement shall become effective on the date that
the Administrative Agent shall have received each of the following (the
"Effective Date"):
(a) Executed Documents.
(i) a duly executed counterpart of this Agreement from the
Administrative Agent, each of the Credit Parties (including Macaw Holdings
and the New U.K. Borrower), the U.K. Swingline Lender, each of the Increase
Lenders, the Required Lenders and the Required Mexican Lenders (as defined
in the Mexican Loan Agreement);
(ii) to the extent requested by any New Lender, a Revolving Note,
substantially in the form of Exhibit A attached hereto, executed by the
Multicurrency Borrowers which shall evidence such New Lender's Revolving
Loans; and
(iii) replacement Notes, substantially in the form of Exhibits A-1 and
A-2 attached hereto, shall be issued to each Revolving Lender and/or
Swingline Lender who heretofore received a Note or Notes under the Credit
Agreement, in each case in exchange for the Note or Notes previously
received by such Revolving Lender or Swingline Lender.
(b) Foreign Security Documents.
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(i) a duly executed counterpart of each Foreign Security Document, in
form and substance satisfactory to the Administrative Agent, pledging one
hundred percent of the Capital Stock and the assets of the New U.K.
Borrower and Macaw Holdings and each notice to be served in the form set
out in, and in connection with, such Foreign Security Documents;
(ii) original share certificates or other certificates evidencing the
Capital Stock pledged pursuant to the Foreign Security Documents, together
with an undated share transfer form for each such certificate duly executed
in blank by the registered owner thereof;
(iii) each original promissory note pledged pursuant to the Foreign
Security Documents, together with any necessary endorsements thereto;
(iv) favorable results of (A) a search (including a search as to liens
and winding up petitions) of the Companies House and (B) a Companies Court
Search (or the equivalent under Applicable Law as in effect in any state or
foreign jurisdiction in which any of its assets are located) in each case
in form and substance reasonably satisfactory thereto with respect to each
of Macaw Holdings and the New U.K. Borrower and any predecessor entities;
(v) fully executed deeds of release, forms 403, payoff/comfort letters
under any leases and other filings and recordations that are necessary to
terminate any effective financing statements or fixture filings disclosed
in such searches (other than any such financing statement or fixture
filings in respect of Permitted Liens);
(vi) (A) an original letter addressed to the Administrative Agent, in
form and substance reasonably satisfactory to the Administrative Agent,
from the insurance broker that will be arranging the issuance of property
and liability insurance coverage for Macaw Holdings and the New U.K.
Borrower and their assets (which insurance coverage will be effective
contemporaneously with the closing of the Macaw Acquisition), which letter
shall confirm, among other things: (1) the terms and conditions of such
insurance coverage, including the coverage limits and the major exclusions
from coverage; (2) the adequacy and effectiveness of such insurance
coverage; and (3) the interest of the Administrative Agent (as loss payee
and co-insured) with respect to such insurance coverage or (B) such other
documentation, in form and substance reasonably satisfactory to the
Administrative Agent, evidencing each of the foregoing items (1), (2) and
(3) of clause (A) of this Section 8(b)(vi); and
(vii) any other documents, notations, recordings or instruments
reasonably requested by the Administrative Agent in connection with the
pledge of Collateral pursuant to the Foreign Security Documents applicable
to Macaw Holdings and the New U.K. Borrower.
(c) Officer's Compliance Certificate. An Officer's Compliance Certificate
dated as of the date hereof certifying that no Default or Event of Default has
occurred and is continuing (as of the date of the Macaw Acquisition and after
giving effect thereto and any Extensions of
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Credit made or to be made in connection with the Macaw Acquisition) and
attaching such financial information as is necessary to demonstrate that the
Canadian Borrower and its Subsidiaries are in pro forma compliance (as of the
date of the Macaw Acquisition and after giving effect thereto and any Extensions
of Credit made or to be made in connection with the Macaw Acquisition) with each
of the covenants contained in the Credit Agreement.
(d) Financial Projections. Financial projections with respect to the
Canadian Borrower and its Subsidiaries (including, without limitation, Macaw
Holdings and the New U.K. Borrower), in form reasonably satisfactory to the
Administrative Agent, of balance sheets, income statements and cash flow
statements for the five-year period following the Macaw Acquisition.
(e) Macaw Acquisition. Executed copies of the share purchase agreement
(including all exhibits and schedules thereto) along with evidence of approval
of the Macaw Acquisition by Macaw Holdings' board of directors. In addition, the
Administrative Agent shall have completed, to its satisfaction, all legal due
diligence with respect to the Macaw Acquisition, in scope and determination
satisfactory to the Administrative Agent in its reasonable discretion.
(f) Opinions of Counsel. Favorable opinions, each in form and substance
satisfactory to the Administrative Agent, for each of the Borrowers and such
other Credit Parties as may be mutually agreed upon by the Canadian Borrower and
the Administrative Agent, of:
(i) New York counsel to the Credit Parties regarding enforceability of
this Agreement and such other matters as the Administrative Agent may
reasonably request;
(ii) United States counsel to the Credit Parties organized under the
laws of the United States (or any state thereof) regarding the due
authorization, execution and delivery of this Agreement, the transactions
contemplated hereby and such other matters as the Administrative Agent may
reasonably request;
(iii) Canadian counsel to the Credit Parties organized under the laws
of the Canada (or any province thereof) regarding the due authorization,
execution and delivery of this Agreement, the transactions contemplated
hereby and such other matters as the Administrative Agent may reasonably
request;
(iv) Mexican counsel to the Credit Parties organized under the laws of
Mexico (or any political subdivision thereof) regarding the due
authorization, execution and delivery of this Agreement, the transactions
contemplated hereby and such other matters as the Administrative Agent may
reasonably request;
(v) United Kingdom counsel to the Credit Parties incorporated under
the laws of the United Kingdom (or any political subdivision thereof)
regarding the due authorization, execution and delivery of this Agreement,
the Foreign Security Documents referred to in subsection (b) of this
Section, the transactions contemplated hereby and such other matters as the
Administrative Agent may reasonably request; and
(vi) United Kingdom counsel to the Administrative Agent regarding the
enforceability of the Foreign Security Documents referred to in subsection
(b) of this
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Section, the transactions contemplated hereby and such other matters as the
Administrative Agent may reasonably request.
(g) Certificates of a Responsible Officer of each Credit Party.
(i) Macaw Holdings and the New U.K. Borrower. A certificate executed
by a Responsible Officer of each of Macaw Holdings and the New U.K.
Borrower, as applicable, on behalf of each of such entities, dated as of
the Effective Date, certifying as to the incumbency and genuineness of the
signature of each officer executing Revolving Loan Documents to which Macaw
Holdings or the New U.K. Borrower, as applicable, is a party and certifying
that attached thereto is a true, correct and complete copy of:
(A) the articles of incorporation (or equivalent
documentation) of Macaw Holdings or the New U.K. Borrower, as
applicable, and all amendments thereto (or amended and restated
articles), certified as of a recent date as true and correct by a
Responsible Officer of Macaw Holdings or the New U.K. Borrower, as
applicable;
(B) the bylaws (or equivalent documentation) of Macaw
Holdings or the New U.K. Borrower, as applicable, as in effect on the
date hereof; and
(C) resolutions duly adopted by the board of directors (or
equivalent governing body) of Macaw Holdings or the New U.K. Borrower,
as applicable, authorizing the transactions contemplated hereunder and
the execution, delivery and performance of this Agreement and the
other Loan Documents to which Macaw Holdings or the New U.K. Borrower,
as applicable, is a party.
(ii) Existing Credit Parties. A certificate executed by a Responsible
Officer of each Credit Party (other than Macaw Holdings and the U.K.
Borrower) on behalf of such Credit Party dated as of the Effective Date:
(A) certifying as to the incumbency and genuineness of the
signature of each officer of such Credit Party executing the Loan
Documents to which it is a party (or containing a representation that
each authorized signatory provided in the certificate of secretary
which was delivered to the Administrative Agent in connection with the
Financing Agreements remains unchanged as of the Effective Date);
(B) certifying that the articles of incorporation (or equivalent
documentation) of such Credit Party and all amendments thereto and the
bylaws (or equivalent documentation) of such Credit Party and all
amendments thereto which were delivered to the Administrative Agent in
connection with the Financing Agreements have not been repealed,
revoked, rescinded or further amended in any respect and that each
remains in full force and effect as of the Effective Date; and
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(C) certifying that attached thereto is a true and complete copy
of resolutions duly adopted by the board of directors (or equivalent
governing body) of such Credit Party authorizing the transactions
contemplated by this Agreement.
(h) Notice of Borrowing. Completed Notices of Borrowing executed by the
Canadian Borrower, on behalf of the Original U.K. Borrower and the New U.K.
Borrower, in each case in accordance with Section 2.3(a) of the Credit Agreement
with respect to any Revolving Loans to be made on the Effective Date.
(i) Corporate and Third Party Approvals. All material corporate and third
party consents and approvals necessary in connection with the Transactions and
the other Loan Documents and all applicable waiting periods shall have expired
without any action being taken by any Person that could reasonably be expected
to restrain, prevent or impose any material adverse conditions on any of the
parties hereto or such other transactions or that could seek or threaten any of
the foregoing, and no law or regulation shall be applicable which in the
reasonable judgment of the Administrative Agent could reasonably be expected to
have such effect.
(j) Repayments. The repayment in cash of all amounts required to be repaid
pursuant to Section 4(c) of this Agreement.
(k) Fees and Expenses. Reimbursement for all reasonable out-of-pocket fees
and expenses incurred by the Administrative Agent in connection with this
Agreement, including, without limitation, the fees and expenses referred to in
Section 10(c) of this Agreement, the Credit Agreement and the transactions
contemplated hereby.
(l) Other Documents or Instruments. Any other documents or instruments
reasonably requested by the Administrative Agent in connection with the
execution of this Agreement.
9. Reaffirmation of Security Documents.
(a) By its execution hereof, each of the Credit Parties hereby expressly
(i) consents to the modifications and amendments set forth in this Agreement,
(ii) reaffirms all of its respective covenants, representations, warranties and
other obligations set forth in the applicable Guaranty Agreement, the Collateral
Agreement, the Foreign Security Documents and the other Loan Documents to which
it is a party and (iii) acknowledges, represents and agrees that its respective
covenants, representations, warranties and other obligations set forth in the
applicable Guaranty Agreement, the Collateral Agreement, the Foreign Security
Documents and the other Loan Documents to which it is a party remain in full
force and effect.
(b) By its execution hereof, each of the Credit Parties hereby confirms
that each of the Security Documents to which it is a party shall continue to be
in full force and effect and is hereby ratified and reaffirmed in all respects
as if fully restated as of the date hereof by this Agreement. In furtherance of
the reaffirmations set forth in this Section 9, each of the Credit Parties
hereby grants and assigns a security interest in all Collateral identified in
any Security
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Document to which it is a party as collateral security for the Obligations and
the Guaranteed Obligations (as defined in the applicable Guaranty Agreement).
10. General Provisions.
(a) Representations and Warranties.
(i) By its execution hereof, each Credit Party (including, without
limitation, Macaw Holdings and the New U.K. Borrower) hereby certifies that
(A) each of the representations and warranties set forth in the Credit
Agreement and the other Loan Documents (after giving effect to this
Agreement and the transactions contemplated hereby) is true and correct in
all material respects as of the date hereof as if fully set forth herein,
except for any representation and warranty made as of an earlier date,
which representation and warranty shall remain true and correct as of such
earlier date, (provided that any representation and warranty that is
qualified by materiality or reference to Material Adverse Effect shall be
true and correct in all respects) and (B) no Default or Event of Default
has occurred and is continuing as of the date hereof or would result after
giving effect to the transactions contemplated hereunder.
(ii) By its execution hereof, each Credit Party (including, without
limitation, Macaw Holdings and the New U.K. Borrower) hereby represents and
warrants that it has the right, power and authority and has taken all
necessary corporate and company action to authorize the execution, delivery
and performance of this Agreement and each other document executed in
connection herewith to which it is a party in accordance with their
respective terms.
(iii) By its execution hereof, each Credit Party (including, without
limitation, Macaw Holdings and the New U.K. Borrower) hereby represents and
warrants that this Agreement and each other document executed in connection
herewith has been duly executed and delivered by its duly authorized
officers, and each such document constitutes the legal, valid and binding
obligation of such Credit Party, enforceable in accordance with its terms
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar state or federal debtor relief laws
from time to time in effect which affect the enforcement of creditors'
rights in general and the availability of equitable remedies.
(iv) The Borrowers hereby represent and warrant that as of the date
hereof (A) there are no claims or offsets against or defenses or
counterclaims to the obligations of any of the Borrowers under the Credit
Agreement or any other Loan Document and (B) the transactions contemplated
and effectuated hereby are each in compliance with Applicable Law.
(v) The Borrowers hereby confirm that, after giving effect to the
Revolving Commitment Increase, the Secured Obligations under the Credit
Agreement and the other Loan Documents are permitted by the Existing
Subordinated Indebtedness (including the Existing Subordinated Note
Indenture and any other agreement executed in connection therewith).
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(b) Limited Effect. Except as expressly provided herein, the Credit
Agreement and each other Loan Document shall continue to be, and shall remain,
in full force and effect. This Agreement shall not be deemed (i) to be a waiver
of, or consent to, or a modification or amendment of, any other term or
condition of the Credit Agreement or any other Loan Document or (ii) to
prejudice any right or rights which the Administrative Agent or any Lender may
now have or may have in the future under or in connection with the Credit
Agreement or the other Loan Documents or any of the instruments or agreements
referred to therein, as the same may be amended or modified from time to time.
References in the Credit Agreement to "this Agreement" (and indirect references
such as "hereunder", "hereby", "herein", and "hereof") and in any Loan Document
to the "Credit Agreement" shall be deemed to be references to the Credit
Agreement as modified hereby.
(c) Fees and Expenses.
(i) The Borrowers hereby agree to pay or reimburse the Administrative
Agent for all of its reasonable out-of-pocket fees and expenses incurred in
connection with the preparation, negotiation and execution of this
Agreement including, without limitation, the reasonable fees, disbursements
and other charges of counsel to the Administrative Agent.
(ii) The Borrowers hereby agree to pay or reimburse the Administrative
Agent, for the account of the Administrative Agent, the Lenders and their
Affiliates, all fees required to be paid pursuant to the fee letter
agreement dated July 7, 2005 executed by the Borrowers and the
Administrative Agent and/or certain of its Affiliates.
(d) Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and shall be binding
upon all parties, their successors and assigns, and all of which taken together
shall constitute one and the same agreement.
(e) Governing Law. This Agreement, unless otherwise expressly set forth
herein, shall be governed by, and construed in accordance with, the law of the
State of New York, including Section 5-1401 and Section 5-1402 of the General
Obligation Law of the State of New York, without reference to any other
conflicts of law principles thereof.
(f) Electronic Transmission. A facsimile, telecopy or other reproduction of
this Agreement may be executed by one or more parties hereto, and an executed
copy of this Agreement may be delivered by one or more parties hereto by
facsimile or similar instantaneous electronic transmission device pursuant to
which the signature of or on behalf of such party can be seen, and such
execution and delivery shall be considered valid, binding and effective for all
purposes. At the request of any party hereto, all parties hereto agree to
execute an original of this Agreement as well as any facsimile, telecopy or
other reproduction hereof.
11. Condition Subsequent. Prior to August 31, 2005, as such date may be
extended by the Administrative Agent in its sole discretion, the Canadian
Borrower agrees that it shall provide to the Administrative Agent (a) a copy of
each of the insurance policies with
12
respect to property and liability insurance coverage for Macaw Holdings and the
New U.K. Borrower and their respective assets and (b) a copy of each endorsement
to such insurance policies identifying the Administrative Agent as loss payee
and/or co-insured with respect to such insurance coverage, in each case in form
and substance reasonably satisfactory to the Administrative Agent.
[Signature Pages Follow]
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their duly authorized officers, all as of the day and
year first written above.
EXISTING BORROWERS:
COTT CORPORATION, as Canadian Borrower
and as Multicurrency Borrower Guarantor
By: /s/ Mark Halperin
-----------------------------------
Name: Mark Halperin
Title: Senior Vice President and
Secretary
COTT BEVERAGES INC., as U.S. Borrower
and as Multicurrency Borrower Guarantor
By: /s/ Mark Halperin
-----------------------------------
Name: Mark Halperin
Title: Senior Vice President and
Secretary
COTT BEVERAGES LIMITED, as Original
U.K. Borrower and as Multicurrency
Borrower Guarantor
By: /s/ Nicholas Whitley
-----------------------------------
Name: Nicholas Whitley
Title: Director
COTT EMBOTELLADORES DE MEXICO, S.A. DE
C.V., as Mexican Borrower and Mexican
Borrower Guarantor
By: /s/ Mark Halperin
-----------------------------------
Name: Mark Halperin
Title: Attorney-in-Fact
[Signature Pages Continue]
[First Amendment- Cott Corporation]
NEW U.K. BORROWER AND MULTICURRENCY
BORROWER GUARANTOR:
MACAW (SOFT DRINKS) LIMITED, as New
U.K. Borrower and Multicurrency
Borrower Guarantor
By: /s/ Andrew Murfin
-----------------------------------
Name: Andrew Murfin
Title: Director
[Signature Pages Continue]
[First Amendment- Cott Corporation]
EXISTING SUBSIDIARY GUARANTORS:
804340 ONTARIO LIMITED
2011438 ONTARIO LIMITED
156775 CANADA INC.
967979 ONTARIO LIMITED
COTT REVELSTOKE LTD.
COTT HOLDINGS INC.,
as Subsidiary Guarantors
By: /s/ Mark Halperin
-----------------------------------
Name: Mark Halperin
Title: Senior Vice President and
Secretary
COTT ATLANTIC COMPANY, as Subsidiary
Guarantor
By: /s/ Mark Halperin
-----------------------------------
Name: Mark Halperin
Title: Senior Vice President and
Secretary
[Signature Pages Continue]
[First Amendment- Cott Corporation]
EXISTING SUBSIDIARY GUARANTORS (CONT.):
COTT INVESTMENT L.L.C.
COTT USA CORP.
INTERIM BCB, LLC
COTT BEVERAGES WYOMISSING INC.
COTT VENDING INC.,
as Subsidiary Guarantors
By: /s/ Mark Halperin
-----------------------------------
Name: Mark Halperin
Title: Senior Vice President and
Secretary
CB NEVADA CAPITAL INC., as Subsidiary
Guarantor
By: /s/ Mark Benadiba
-----------------------------------
Name: Mark Benadiba
Title: President
COTT RETAIL BRANDS LIMITED, as
Subsidiary Guarantor
By: /s/ Nicholas Whitley
-----------------------------------
Name: Nicholas Whitley
Title: Director
COTT LIMITED, as Subsidiary Guarantor
By: /s/ Nicholas Whitley
-----------------------------------
Name: Nicholas Whitley
Title: Director
[Signature Pages Continue]
[First Amendment- Cott Corporation]
EXISTING SUBSIDIARY GUARANTORS (CONT.):
COTT EUROPE TRADING LIMITED,
as Subsidiary Guarantor
By: /s/ Nicholas Whitley
-----------------------------------
Name: Nicholas Whitley
Title: Director
COTT PRIVATE LABEL LIMITED, as
Subsidiary Guarantor
By: /s/ Nicholas Whitley
-----------------------------------
Name: Nicholas Whitley
Title: Director
MEXICO BOTTLING SERVICES, S.A. DE C.V.
AND SERVICIOS GERENCIALES DE MEXICO,
S.A. DE C.V., as Subsidiary Guarantors
By: /s/ Mark Halperin
-----------------------------------
Name: Mark Halperin
Title: Attorney-in-Fact
[Signature Pages Continue]
[First Amendment- Cott Corporation]
NEW SUBSIDIARY GUARANTOR:
MACAW (HOLDINGS) LIMITED, as Macaw
Holdings and Subsidiary Guarantor
By: /s/ Andrew Murfin
-----------------------------------
Name: Andrew Murfin
Title: Director
[Signature Pages Continue]
[First Amendment- Cott Corporation]
AGENTS AND LENDERS:
WACHOVIA BANK, NATIONAL ASSOCIATION, as
Administrative Agent, Security Trustee,
U.S. Swingline Lender, Issuing Lender
and Revolving Lender
By: /s/ Jorge A. Gonzales
-----------------------------------
Name: Jorge A. Gonzales
Title: Managing Director
APPLICABLE DESIGNEES:
FOR EXTENSIONS OF CREDIT TO THE
CANADIAN BORROWER
CONGRESS FINANCIAL CORPORATION (CANADA)
By: /s/ Enza Agosta
-----------------------------------
Name: Enza Agosta
Title: Vice President
FOR EXTENSIONS OF CREDIT TO THE U.K.
BORROWER
WACHOVIA BANK, NATIONAL ASSOCIATION,
LONDON BRANCH
By: /s/ Jorge A. Gonzales
-----------------------------------
Name: Jorge A. Gonzales
Title: Managing Director
[First Amendment- Cott Corporation]
BANK OF MONTREAL, as Revolving Lender
By: /s/ Sean P. Gallaway
-----------------------------------
Name: Sean P. Gallaway
Title: Vice President
APPLICABLE DESIGNEES:
FOR EXTENSIONS OF CREDIT TO THE U.S.
BORROWER
BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ Bruce A. Pietka
-----------------------------------
Name: Bruce A. Pietka
Title: Vice President
FOR EXTENSIONS OF CREDIT TO THE U.K.
BORROWER
BANK OF MONTREAL, LONDON BRANCH
By: /s/ Anthony Ebdon
-----------------------------------
Name: Anthony Ebdon
Title: Director
[First Amendment- Cott Corporation]
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK INTERNATIONAL", NEW YORK
BRANCH, as Revolving Lender
By: /s/ Rebecca O. Morrow
-----------------------------------
Name: Rebecca O. Morrow
Title: Executive Director
By: /s/ Michelle S. Ruocco
-----------------------------------
Name: Michelle S. Ruocco
Title: Vice President
APPLICABLE DESIGNEES:
FOR EXTENSIONS OF CREDIT TO THE
CANADIAN BORROWER
RABOBANK NEDERLAND, CANADIAN BRANCH
By: /s/ Govert Verstralen
-----------------------------------
Name: Govert Verstralen
Title: General Manager, Principal
Officer
By: /s/ David L. Streeter
-----------------------------------
Name: David L. Streeter
Title: Executive Director
FOR EXTENSIONS OF CREDIT TO THE U.K.
BORROWER
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., (RABOBANK
INTERNATIONAL, LONDON BRANCH)
By: /s/ A. Viney
-----------------------------------
Name: A. Viney
Title: Relationship Manager
By: /s/ B. Davies
-----------------------------------
Name: B. Davies
Title:
----------------------------
[First Amendment- Cott Corporation]
JPMORGAN CHASE BANK, N.A., TORONTO
BRANCH, as Revolving Lender
By: /s/ Jeffrey Coleman
-----------------------------------
Name: Jeffrey Coleman
Title: Vice President
APPLICABLE DESIGNEES:
FOR EXTENSIONS OF CREDIT TO THE U.S.
BORROWER
JPMORGAN CHASE BANK, N.A.
By: /s/ Jeffrey Coleman
-----------------------------------
Name: Jeffrey Coleman
Title: Vice President
FOR EXTENSIONS OF CREDIT TO THE U.K.
BORROWER
JPMORGAN CHASE BANK, N.A., LONDON
BRANCH
By: /s/ Jeffrey Coleman
-----------------------------------
Name: Jeffrey Coleman
Title: Vice President
[First Amendment- Cott Corporation]
HSBC BANK CANADA, as Revolving Lender
By: /s/ Jody Sanderson
-----------------------------------
Name: Jody Sanderson
Title: Global Relationship Manager,
Director
APPLICABLE DESIGNEES:
FOR EXTENSIONS OF CREDIT TO THE U.S.
BORROWER
HSBC BANK USA, NATIONAL ASSOCIATION
By: /s/ Johan Sorensson
-----------------------------------
Name: Johan Sorensson
Title: Senior Vice President
FOR EXTENSIONS OF CREDIT TO THE U.K.
BORROWER
HSBC BANK PLC, as an Applicable
Designee and U.K. Swingline Lender
By: /s/ James Steele
-----------------------------------
Name: James Steele
Title: Associate
[First Amendment- Cott Corporation]
HSBC MEXICO, S.A., INSTITUCION DE BANCA
MULTIPLE, GRUPO FINANCIERO HSBC, as
Mexican Agent and Mexican Lender
By: /s/ Jorge Casas de la Torre
-----------------------------------
Name: Jorge Casa de la Torre
Title: Chief Operating Officer,
Corporate and Institutional
Banking
[First Amendment- Cott Corporation]