CRESTVIEW DS MERGER SUB II, INC. (to be merged with and into DS WATERS OF AMERICA, INC.) as Issuer and the Guarantors party hereto from time to time 10.000% Second-Priority Senior Secured Notes due 2021 INDENTURE Dated as of August 30, 2013 and...Supplemental Indenture • April 1st, 2014 • DS Services of America, Inc. • New York
INDENTURE, dated as of August 30, 2013, among CRESTVIEW DS MERGER SUB II, INC., a Delaware corporation (“MergerSub”), DS WATERS ENTERPRISES, INC., a Delaware corporation (together with its successors and assigns, “Holdings”), the Subsidiary Guarantors party hereto from time to time (as defined below) and WILMINGTON TRUST, NATIONAL ASSOCIATION, as trustee (the “Trustee”) and as collateral agent (the “Collateral Agent”).
FIRST LIEN CREDIT AGREEMENT Dated as of August 30, 2013 among DS WATERS ENTERPRISES, INC., as Holdings, CRESTVIEW DS MERGER SUB II, INC. (to be merged on the Closing Date with and into DS WATERS OF AMERICA, INC.), as Borrower, THE LENDERS PARTY...Credit Agreement • April 1st, 2014 • DS Services of America, Inc. • New York
WHEREAS, (i) Crestview DSW Investors, L.P., a Delaware limited partnership (“Parent”) and Crestview DSW Merger Sub, Inc., a Delaware corporation and a direct wholly owned subsidiary of Parent (“Merger Sub”), have entered into that certain Agreement and Plan of Merger by and among Parent, Merger Sub, DSW Group, Inc., a Delaware corporation (“Target”), and DSW Group Holdings, LLC, a Delaware limited liability company and the parent of the Target (the “Seller”), dated as of July 23, 2013 (as amended or supplemented through the date hereof, the “Merger Agreement”), pursuant to which Merger Sub will merge (the “Merger”) with and into Target, with Target surviving and Holdings as a direct wholly owned subsidiary of Target and (ii) Merger Sub 2, a direct, wholly owned subsidiary of Merger Sub, will enter into a merger agreement with DS Waters of America, Inc., a Delaware corporation, and the direct, wholly owned subsidiary of Holdings (the “Company”), pursuant to which Merger Sub 2 will merge
SUBSIDIARY GUARANTEE AGREEMENT (FIRST LIEN) dated and effective as of August 30, 2013, among The Subsidiaries of CRESTVIEW DS MERGER SUB II, INC. (to be merged on the Closing Date with and into DS WATERS OF AMERICA, INC.) Named Herein and BARCLAYS...Subsidiary Guarantee Agreement • April 1st, 2014 • DS Services of America, Inc. • New York
This SUBSIDIARY GUARANTEE AGREEMENT (FIRST LIEN), dated as of August 30, 2013 (as amended, restated, supplemented or otherwise modified from time to time, this “Guaranty”), by and among each Subsidiary listed on the signature page hereof and each other Subsidiary that becomes a party hereto after the date hereof (each a “Subsidiary Guarantor” and collectively the “Subsidiary Guarantors”) and BARCLAYS BANK PLC, as collateral agent (in such capacity, together with any successor thereto, the “Collateral Agent”) for the Secured Parties.
COLLATERAL AGREEMENT (FIRST LIEN) dated and effective as of August 30, 2013, among Crestview DS Merger Sub II, Inc. (to be merged on the Closing Date with and into DS WATERS OF AMERICA, INC.), EACH SUBSIDIARY OF DS WATERS OF AMERICA, INC. IDENTIFIED...Collateral Agreement • May 23rd, 2014 • DS Services of America, Inc. • Bottled & canned soft drinks & carbonated waters • New York
This COLLATERAL AGREEMENT (FIRST LIEN) dated and effective as of August 30, 2013 (as amended, renewed, extended, restated, supplemented or otherwise modified from time to time, this “Agreement”) is among Crestview DS Merger Sub II, Inc., a Delaware corporation (to be merged on the Closing Date with and into DS WATERS OF AMERICA, INC., a Delaware corporation (the “Borrower”)), each subsidiary of the Borrower listed on Schedule I hereto and each such subsidiary that becomes a party hereto after the date hereof (each, a “Subsidiary Party”) and BARCLAYS BANK PLC (“Barclays”), as Collateral Agent for the benefit of the Secured Parties. Capitalized terms used but not defined in this preamble or the recitals have the meanings assigned to such terms in Section 1.02.
LIMITED LIABILITY COMPANY AGREEMENT OF CRYSTAL SPRINGS OF ALABAMA HOLDINGS, LLCLimited Liability Company Agreement • April 1st, 2014 • DS Services of America, Inc. • Delaware
THIS LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”) of Crystal Springs of Alabama Holdings, LLC (the “Company”) dated as of this 27th day of October, 2006, is made by DS Waters of America, Inc., as the sole member of the Company (the “Member”).
ASSET-BASED REVOLVING CREDIT AGREEMENT Dated as of August 30, 2013, Among DS WATERS ENTERPRISES, INC., as Holdings, CRESTVIEW DS MERGER SUB II, INC. (to be merged on the Closing Date with and into DS WATERS OF AMERICA, INC.), as Borrower, THE LENDERS...Asset-Based Revolving Credit Agreement • April 1st, 2014 • DS Services of America, Inc. • New York
WHEREAS, (i) Crestview DSW Investors, L.P., a Delaware limited partnership (“Parent”) and Crestview DSW Merger Sub, Inc., a Delaware corporation and a direct wholly owned subsidiary of Parent (“Merger Sub”), have entered into that certain Agreement and Plan of Merger by and among Parent, Merger Sub, DSW Group, Inc., a Delaware corporation (“Target”), and DSW Group Holdings, LLC, a Delaware limited liability company and the parent of the Target (the “Seller”), dated as of July 23, 2013 (as amended or supplemented through the date hereof, the “Merger Agreement”), pursuant to which Merger Sub will merge (the “Merger”) with and into Target, with Target surviving and Holdings as a direct wholly owned subsidiary of Target and (ii) Merger Sub 2, a direct, wholly owned subsidiary of Merger Sub, will enter into a merger agreement with DS Waters of America, Inc., a Delaware corporation, and the direct, wholly owned subsidiary of Holdings (the “Company”), pursuant to which Merger Sub 2 will merge
EMPLOYMENT AGREEMENTEmployment Agreement • April 1st, 2014 • DS Services of America, Inc.
EMPLOYMENT AGREEMENT (this “Agreement”) dated as of February 15, 2013, between D.S. Waters of America, Inc., a Delaware corporation (the “Company”), and Thomas J. Harrington (the “Executive”).
FIRST LIEN/SECOND LIEN INTERCREDITOR AGREEMENT dated as of August 30, 2013 among BARCLAYS BANK PLC, as Credit Agreement Agent and First-Priority Collateral Agent, Wilmington Trust, National Association, as Notes Collateral Agent and Second-Priority...Joinder Agreement • April 1st, 2014 • DS Services of America, Inc. • New York
FIRST LIEN/SECOND LIEN INTERCREDITOR AGREEMENT dated as of August 30, 2013, among BARCLAYS BANK PLC (“Barclays”), as Credit Agreement Agent and First-Priority Collateral Agent, Wilmington Trust, National Association, as Notes Collateral Agent and Second-Priority Collateral Agent, Crestview DS Merger Sub II, Inc., a Delaware corporation (to be merged on the Closing Date with and into DS WATERS OF AMERICA, INC., a Delaware corporation (the “Company”)), DS WATERS ENTERPRISES, INC., a Delaware corporation (“Holdings”), and each Subsidiary of the Company listed on Schedule I hereto.
COLLATERAL AGREEMENT (SECOND LIEN) dated and effective as of August 30, 2013, among CRESTVIEW DS MERGER SUB II, INC. (to be merged on the Issue Date with and into DS WATERS OF AMERICA, INC.), EACH SUBSIDIARY OF DS WATERS OF AMERICA, INC. IDENTIFIED...Collateral Agreement • May 23rd, 2014 • DS Services of America, Inc. • Bottled & canned soft drinks & carbonated waters • New York
This COLLATERAL AGREEMENT (SECOND LIEN) dated and effective as of August 30, 2013 (as amended, renewed, extended, restated, supplemented or otherwise modified from time to time, this “Agreement”) is among Crestview DS Merger Sub II, Inc., a Delaware corporation (to be merged on the Issue Date with and into DS WATERS OF AMERICA, INC., a Delaware corporation (the “Issuer”)), each subsidiary of the Issuer listed on Schedule I hereto and each such subsidiary that becomes a party hereto after the date hereof (each, a “Subsidiary Guarantor”) and Wilmington Trust, National Association, as Collateral Agent for the benefit of the Second-Priority Secured Parties. Capitalized terms used but not defined in this preamble or the recitals have the meanings assigned to such terms in Section 1.02.
SUPPLEMENTAL INDENTURESupplemental Indenture • April 1st, 2014 • DS Services of America, Inc. • New York
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of August 30, 2013, among DS WATERS OF AMERICA, INC., a Delaware corporation (“DS Waters of America”), DS WATERS ENTERPRISES, INC., a Delaware corporation (“Holdings”), CRYSTAL SPRINGS OF ALABAMA HOLDINGS, LLC, a Delaware corporation (“Crystal Springs”), POLYCYCLE SOLUTIONS, LLC, a Delaware corporation (“PolyCycle,” and, together with Holdings and Crystal Springs, the “Guarantors”) and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, as trustee under the indenture referred to below (the “Trustee”).
HOLDINGS GUARANTEE AND PLEDGE AGREEMENT (ABL) dated and effective as of August 30, 2013, between DS WATERS ENTERPRISES, INC., as Holdings and BMO HARRIS BANK N.A., as Collateral AgentHoldings Guarantee and Pledge Agreement • April 1st, 2014 • DS Services of America, Inc. • New York
This HOLDINGS GUARANTEE AND PLEDGE AGREEMENT (ABL), dated and effective as of August 30, 2013 (as amended, renewed, extended, restated, supplemented or otherwise modified from time to time, this “Agreement”), is between DS WATERS ENTERPRISES, INC., a Delaware corporation (“Holdings”), and BMO HARRIS BANK N.A. (“BMO”), as Collateral Agent for the benefit of the Secured Parties. Capitalized terms used but not defined in this preamble or the recitals have the meanings assigned to such terms in Section 1.02.
DS WATERS OF AMERICA, INC. Atlanta, GA 30328DS Services of America, Inc. • April 1st, 2014 • Delaware
This letter (this “Monitoring Agreement”) serves to confirm certain fees and expenses payable by DS Waters of America, Inc., a Delaware corporation (the “Company”), to Crestview Advisors, L.L.C., a Delaware limited liability company (the “Manager”). Certain capitalized terms used herein are defined in Section 23 below.
ABL INTERCREDITOR AGREEMENT dated as of August 30, 2013 among BMO HARRIS BANK N.A., as ABL Facility Agent, BARCLAYS BANK PLC, as First Lien/Second Lien Intercreditor Agent, WILMINGTON TRUST, NATIONAL ASSOCIATION, as Notes Agent, DS WATERS ENTERPRISES,...Joinder Agreement • April 1st, 2014 • DS Services of America, Inc. • New York
ABL INTERCREDITOR AGREEMENT (this “Agreement”) dated as of August 30, 2013, among BMO HARRIS BANK N.A., as collateral agent for the ABL Facility Secured Parties referred to herein (together with its successors and co-agents in substantially the same capacity as may from time to time be appointed, the “ABL Facility Agent”), BARCLAYS BANK PLC, as First Priority Collateral Agent and as First Lien/Second Lien Intercreditor Agent (each as defined below), WILMINGTON TRUST, NATIONAL ASSOCIATION, as Notes Agent (as defined below), DS WATERS ENTERPRISES, INC. (“Holdings”), CRESTVIEW DS MERGER SUB II, INC. (to be merged on the Closing Date with and into DS WATERS OF AMERICA, INC., a Delaware corporation (the “Company”)), the subsidiaries of the Company named herein and each Other First-Priority Representative and Other Second-Priority Representative from time to time party hereto.
RETIREMENT AND RELEASE AGREEMENTRetirement and Release Agreement • April 1st, 2014 • DS Services of America, Inc. • New York
THIS RETIREMENT AND RELEASE AGREEMENT, dated as of February 5, 2013 (this “Agreement”), is entered into by and between K. Dillon Schickli (“Executive”) and DS Waters of America, Inc. (the “Company”).
STOCKHOLDERS AGREEMENT by and among DSW GROUP, INC. and THE STOCKHOLDERS NAMED HEREIN Dated: August 30, 2013Stockholders Agreement • May 23rd, 2014 • DS Services of America, Inc. • Bottled & canned soft drinks & carbonated waters • Delaware
STOCKHOLDERS AGREEMENT, dated as of August 30, 2013 (this “Agreement”), by and among DSW Group, Inc., a Delaware corporation (the “Company”), Crestview DSW Investors, L.P., a Delaware limited partnership (“Crestview”), CS NPS, L.P., a Delaware limited partnership (the “Co-Investor”), the other Stockholders set forth on the signature pages hereto and any other Person joined hereto from time to time as a Stockholder in accordance with the terms hereof. Capitalized terms used herein shall have the respective meanings set forth in Article I.
REGISTRATION RIGHTS AGREEMENT Dated August 30, 2013 among DS WATERS OF AMERICA, INC. DS WATERS ENTERPRISES, INC. THE GUARANTORS NAMED HEREIN and CREDIT SUISSE SECURITIES (USA) LLC BARCLAYS CAPITAL INC. JEFFERIES LLC BMO CAPITAL MARKETS CORP.Registration Rights Agreement • April 1st, 2014 • DS Services of America, Inc. • New York
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of August 30, 2013 (the “Agreement”), among DS Waters of America, Inc., a Delaware corporation (the “Company” or the “Note Issuer”), DS Waters Enterprises, Inc., a Delaware corporation (“Holdings”), and the guarantors as set forth on Annex I hereto (the “Subsidiary Guarantors” and together with Holdings, the “Guarantors,” and the Guarantors together with the Company, the “Issuers”) and Credit Suisse Securities (USA) LLC, Barclays Capital Inc. and Jefferies LLC, acting as representatives (in such capacity, the “Representatives”) of the several purchasers (the “Initial Purchasers”) named in Schedule A to that Purchase Agreement, dated as of August 14, 2013 (the “Purchase Agreement”), by and among the Issuers and the Representatives, acting as representatives of the several Initial Purchasers.
April 1, 2013Agreement and Release • April 1st, 2014 • DS Services of America, Inc.
Reference is made to the severance letter between you and DS Waters of America, Inc. (“DS Waters”) dated December 14, 2005 (the “Prior Severance Letter”). This letter confirms the agreement of DS Waters to pay you a one-time severance payment and a retention bonus upon the following terms and conditions:
April 1, 2013DS Services of America, Inc. • May 23rd, 2014 • Bottled & canned soft drinks & carbonated waters
Reference is made to the severance letter between you and DS Waters of America, Inc. (“DS Waters”) dated December 14, 2005 (the “Prior Severance Letter”). This letter confirms the agreement of DS Waters to pay you a one-time severance payment and a retention bonus upon the following terms and conditions:
AGREEMENT AND PLAN OF MERGER dated as of July 23, 2013 among CRESTVIEW DSW INVESTORS, L.P., CRESTVIEW DSW MERGER SUB, INC., DSW GROUP, INC. and DSW GROUP HOLDINGS, LLCEscrow Agreement • April 1st, 2014 • DS Services of America, Inc. • Delaware
This AGREEMENT AND PLAN OF MERGER, dated as of July 23, 2013 (this “Agreement”), is entered into by and among Crestview DSW Investors, L.P., a Delaware limited partnership (“Parent”), Crestview DSW Merger Sub, Inc., a Delaware corporation (“Merger Sub”), DSW Group, Inc., a Delaware corporation (the “Company”), and DSW Group Holdings, LLC, a Delaware limited liability company (“Seller”). Parent, Merger Sub, the Company and Seller are each sometimes referred to herein as a “Party” and, collectively, as the “Parties.” Capitalized terms which are used but not otherwise defined herein are defined in Sections 1.1 and 1.2.
HOLDINGS PLEDGE AGREEMENT (SECOND LIEN) dated and effective as of August 30, 2013, between DS WATERS ENTERPRISES, INC., as Holdings and WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral AgentHoldings Pledge Agreement • April 1st, 2014 • DS Services of America, Inc. • New York
This HOLDINGS PLEDGE AGREEMENT (SECOND LIEN), dated and effective as of August 30, 2013 (as amended, renewed, extended, restated, supplemented or otherwise modified from time to time, this “Agreement”), is between DS WATERS ENTERPRISES, INC., a Delaware corporation (“Holdings”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent for the benefit of the Second-Priority Secured Parties. Capitalized terms used but not defined in this preamble or the recitals have the meanings assigned to such terms in Section 1.02.
HOLDINGS GUARANTEE AND PLEDGE AGREEMENT (FIRST LIEN) dated and effective as of August 30, 2013, between DS WATERS ENTERPRISES, INC., as Holdings and BARCLAYS BANK PLC, as Collateral AgentHoldings Guarantee and Pledge Agreement • April 1st, 2014 • DS Services of America, Inc. • New York
This HOLDINGS GUARANTEE AND PLEDGE AGREEMENT (FIRST LIEN), dated and effective as of August 30, 2013 (as amended, renewed, extended, restated, supplemented or otherwise modified from time to time, this “Agreement”), is between DS WATERS ENTERPRISES, INC., a Delaware corporation (“Holdings”), and BARCLAYS BANK PLC (“Barclays”), as Collateral Agent for the benefit of the Secured Parties. Capitalized terms used but not defined in this preamble or the recitals have the meanings assigned to such terms in Section 1.02.
