THIRD AMENDMENT
Exhibit 10.3
EXECUTION VERSION
THIS THIRD AMENDMENT (this “Agreement”), is made and entered into as of July 17, 2007,
with an effective date set forth in Section 3 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”), COTT (XXXXXX) LIMITED (formerly known as 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 by the First
Amendment, Consent and Joinder Agreement dated as of August 10, 2005, the Second Amendment dated as
of December 11, 2006 and as may be further amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”) by and among the Borrowers, the Revolving
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 by the First
Amendment, Consent and Joinder Agreement dated as of August 10, 2005, the Second Amendment dated as
of December 11, 2006 and as may be further 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 Facility Agent.
The Borrowers have requested that the Lenders agree to amend the Financing Agreements to
adjust the maximum Total Leverage Ratio that is required to be maintained under Section 10.1 of the
Credit Agreement 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 to agree to the amendment 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. Amendment to Section 10.1 of the Credit Agreement. Pursuant to Section 14.2 of
each of the Financing Agreements and effective as of the Effective Date, Section 10.1 of the Credit
Agreement is hereby deleted in its entirety and replaced with the following:
SECTION 10.1 Maximum Total Leverage Ratio. As of any fiscal quarter end, permit the
ratio of (a) Total Funded Indebtedness on such date less an amount, not to exceed
$30,000,000, of cash and Cash Equivalents of the Canadian Borrower and its Restricted Subsidiaries
which is available for immediate application to repay Obligations without any restrictions as of
such date to (b) EBITDA for the period of four (4) consecutive fiscal quarters ending on or
immediately prior to such date (such ratio, the “Total Leverage Ratio”), to exceed the
corresponding ratio set forth below:
| Period | Ratio | |
From and including the Closing Date through and including
June 30, 2006
|
3.25 to 1.00 | |
From July 1, 2006 through and including March 31, 2007
|
3.00 to 1.00 | |
From April 1, 2007 through and including September 30, 2007
|
4.00 to 1.00 | |
From October 1, 2007 through and including the Maturity Date
|
3.00 to 1.00 |
3. Effectiveness. This Agreement shall be deemed effective as of June 29, 2007 (the
“Effective Date”) upon the satisfaction of each of the following conditions:
(a) Executed Documents. A duly executed counterpart of this Agreement from the
Administrative Agent, each of the Credit Parties, the Required Lenders and the Required Mexican
Lenders (as defined in the Mexican Loan Agreement);
(b) Fees and Expenses. Reimbursement for all reasonable out-of-pocket fees and
expenses incurred by the Administrative Agent in connection with the preparation, negotiation and
execution of this Agreement, including, without limitation, reasonable fees, disbursements and
other charges of counsel to the Administrative Agent, in each case, to the extent such fees and
expenses have been invoiced on or prior to July 17, 2007; and
(c) Other Documents. The receipt by the Administrative Agent of any other documents
or instruments reasonably requested by the Administrative Agent in connection with the execution of
this Agreement.
5. Reaffirmation of Security Documents. By its execution hereof, each of the Credit
Parties hereby expressly (a) consents to the amendment set forth in this Agreement, (b) 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 (c) 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.
6. General Provisions.
(a) Representations and Warranties.
(i) By its execution hereof, each Credit Party 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 amendments 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.
(ii) By its execution hereof, each Credit Party 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.
(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. References
in the Mexican Loan Agreement to “this Agreement” (and indirect references such as “hereunder”,
“hereby”, “herein”, and “hereof”) and in any Loan Document to the “Mexican Loan Agreement” shall be
deemed to be references to the Mexican Loan Agreement as modified hereby.
(c) 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.
(d) 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.
(e) 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.
[Signature Pages Follow]
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.
| BORROWERS: COTT CORPORATION, as Canadian Borrower and as Multicurrency Borrower Guarantor |
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| By: | /s/ Xxxxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxxxx Xxxxxxx | |||
| Title: | VP, Treasurer | |||
| COTT BEVERAGES INC., as U.S. Borrower and as Multicurrency Borrower Guarantor |
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| By: | /s/ Xxxxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxxxx Xxxxxxx | |||
| Title: | VP, Treasurer | |||
| COTT BEVERAGES LIMITED, as Original U.K. Borrower and
as Multicurrency Borrower Guarantor |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Director | |||
| COTT EMBOTELLADORES de MEXICO, S.A. de C.V., as
Mexican Borrower and Mexican Borrower Guarantor |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Director | |||
[Signature Pages Continue]
[Third Amendment — Cott Corporation]
| COTT (XXXXXX) LIMITED, as New U.K. Borrower and
Multicurrency Borrower Guarantor |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Director | |||
| SUBSIDIARY GUARANTORS: 804340 ONTARIO LIMITED 2011438 ONTARIO LIMITED 000000 XXXXXX INC. 967979 ONTARIO LIMITED COTT HOLDINGS INC., as Subsidiary Guarantors |
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| By: | /s/ Xxxxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxxxx Xxxxxxx | |||
| Title: | VP, Treasurer | |||
| COTT ATLANTIC COMPANY, as Subsidiary Guarantor |
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| By: | /s/ Xxxxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxxxx Xxxxxxx | |||
| Title: | VP, Treasurer | |||
| COTT INVESTMENT L.L.C. COTT USA CORP. INTERIM BCB, LLC COTT VENDING INC., as Subsidiary Guarantors |
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| By: | /s/ Xxxxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxxxx Xxxxxxx | |||
| Title: | VP, Treasurer | |||
[Signature Pages Continue]
[Third Amendment — Cott Corporation]
| SUBSIDIARY GUARANTORS (cont.): CB NEVADA CAPITAL INC., as Subsidiary Guarantor |
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| By: | /s/ Xxxxx Mavrinic | |||
| Name: | Xxxxx Mavrinic | |||
| Title: | Secretary | |||
| COTT RETAIL BRANDS LIMITED, as Subsidiary Guarantor |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Director | |||
| COTT LIMITED, as Subsidiary Guarantor |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Director | |||
| COTT EUROPE TRADING LIMITED, as Subsidiary Guarantor |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Director | |||
| COTT PRIVATE LABEL LIMITED, as Subsidiary Guarantor |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Director | |||
[Signature Pages Continue]
[Third Amendment — Cott Corporation]
| SUBSIDIARY GUARANTORS (cont.): MEXICO BOTTLING SERVICES, S.A. de C.V. and SERVICIOS GERENCIALES de MéXICO, S.A. de C.V., as Subsidiary Guarantors |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Director | |||
| COTT XXXXXX (HOLDINGS) LIMITED, as Subsidiary Guarantor |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Director | |||
| COTT USA FINANCE LLC, as Subsidiary Guarantor |
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| By: | /s/ Xxxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxx | |||
| Title: | Authorized Representative | |||
[Signature Pages Continue]
[Third Amendment — Cott Corporation]
| AGENTS AND LENDERS: WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent, Security Trustee, Issuing Lender, Swingline Lender and Revolving Lender, on behalf of itself and its Applicable Designees |
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| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
[Signature Pages Continue]
[Third Amendment — Cott Corporation]
| COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
“RABOBANK INTERNATIONAL”, NEW YORK BRANCH, as
Revolving Lender, on behalf of itself and its Applicable Designees |
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| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Executive Director | |||
| By: | /s/ Xxx Xxxxx | |||
| Name: | Xxx Xxxxx | |||
| Title: | Managing Director | |||
[Signature Pages Continue]
[Third Amendment — Cott Corporation]
| JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, as
Revolving Lender, on behalf of itself and its Applicable Designees |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Vice President | |||
[Signature Pages Continue]
[Third Amendment — Cott Corporation]
| HSBC BANK CANADA, as Revolving Lender, on behalf of itself and its Applicable Designees |
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| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Global Relationship Manager | |||
[Signature Pages Continue]
[Third Amendment — Cott Corporation]
| HSBC MEXICO, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE, GRUPO FINANCIERO HSBC, as Mexican Facility Agent, Mexican Issuing Lender, Mexican Swingline Lender and Mexican Lender |
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| By: | /s/ Xxxxx Xxxxx de la Xxxxx | |||
| Name: | Xxxxx Xxxxx de la Torre | |||
| Title: | VP Corporate Banking | |||
[Third Amendment — Cott Corporation]
