SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT, WAIVER AND CONSENT
Exhibit 10.7
SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT,
WAIVER AND CONSENT
WAIVER AND CONSENT
THIS SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT, WAIVER AND CONSENT (“Amendment”) dated
as of the 30th day of December, 2009, is entered into by and among Primo Water
Corporation, a Delaware corporation (“Primo”); Primo To Go, LLC, a North Carolina limited
liability company (“Primo To Go”); Primo Products, LLC, a North Carolina limited liability
company (“Products”); and Primo Direct, LLC, a North Carolina limited liability company
(“Direct”, and together with Primo, Primo to Go and Products, the “Borrowers”), and Wachovia
Bank, National Association, a national banking association (together with its successors and
assigns, the “Bank”).
STATEMENT OF PURPOSE
WHEREAS, the Borrowers and the Bank have entered into that certain Loan and Security
Agreement dated as of June 23, 2005, as amended by that certain First Amendment to Loan and
Security Agreement dated as of April 26, 2006, by that certain Second Amendment to Loan and
Security Agreement dated as of April 30, 2007, by that certain Third Amendment to Loan and
Security Agreement dated as of June 24, 2008, by that certain Fourth Amendment to Loan and
Security Agreement dated as of January 7, 2009, and by that certain Fifth Amendment to Loan and
Security Agreement dated as of December 30, 2009 (as so amended, the “Loan Agreement”)
pursuant to which the Bank has extended certain credit facilities to the Borrowers. Capitalized
terms used in this Amendment which are not otherwise defined herein have the respective meanings
attributed to such terms in the Loan Agreement;
WHEREAS, Primo To Go is a wholly-owned subsidiary of Primo;
WHEREAS, Primo desires to convert Primo To Go from a North Carolina limited liability
company into a North Carolina corporation, which conversion may include changing the name of
Primo To Go (the “Conversion”);
WHEREAS, following the Conversion, Primo desires to distribute all of the shares of the
common stock of Primo To Go, par value $0.0001 per share (the “PTG Common Stock”) to the
stockholders of Primo in a pro rata distribution transaction, in accordance with Primo’s Fourth
Amended and Restated Certificate of Incorporation (as amended, the “Certificate of
Incorporation”), qualifying under Section 355 of the Internal Revenue Code of 1986, as amended
(the “Spin-off”);
WHEREAS, in order to consummate the Conversion and the Spin-off, the Borrowers must obtain
(i) the release of Primo To Go from its obligations as a “Borrower” and “Subsidiary” under the
Loan Agreement (the “PTG Release”), (ii) the release of the Bank’s security interest in the
capital stock and equity interests of Primo To Go pledged as collateral by Primo pursuant to the
Loan Agreement (the “Collateral Release”), and (iii) the wavier of certain Defaults and Events
of Default under the Loan and Security Agreement that would otherwise occur upon the
effectiveness of the Conversion and the Spin-off.
WHEREAS, the Borrowers have requested that the Bank (i) consent to and permit the
Conversion; (ii) consent to and permit the Spin-off; (iii) consent to and permit the PTG
Release; (iv) consent to and permit the Collateral Release; (v) waive any Defaults or Events of
Default arising from the Conversion and Spin-off; and (iv) amend the Loan Agreement to effect
the PTG Release and the Collateral Release and in certain other respects as set forth herein;
and
WHEREAS, the Bank, on the terms and conditions stated below, is willing to grant the
request of the Borrowers, and the Borrowers and the Bank have agreed to modify the Loan
Agreement as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the parties hereto, the parties hereby agree as follows:
Section 1. Limited Waivers and Consents.
(a) Subject to the terms and conditions of this Amendment, including, without limitation, the
satisfaction of the conditions precedent set forth in Section 3 hereof, the Bank hereby
consents to the Conversion, the Spin-off, the PTG Release and the Collateral Release and all
actions and transactions necessary to and in furtherance of the foregoing.
(b) Subject to the terms and conditions of this Amendment, including, without limitation, the
satisfaction of the conditions precedent set forth in Section 3 hereof, the Bank hereby
waives any Defaults or Events of Default that would otherwise occur under Sections 5.7, 5.12, 6.3,
6.12 and 6.13 of the Loan Agreement as a result of the consummation of the Conversion, Spin-off,
PTG Release and Collateral Release.
Section 2. Amendments to Loan Agreement. Subject to the terms and conditions of this
Amendment, including, without limitation, the satisfaction of the conditions precedent set forth in
Section 3 hereof:
(a) The Bank hereby agrees that, as of the Effective Date (as defined below), Primo To Go
shall no longer be a “Borrower” or a “Subsidiary” under the Loan Agreement, and all rights and
obligations of Primo To Go under the Loan Agreement will be terminated as of the Effective Date;
(b) The Bank hereby agrees that, as of the Effective Date, all liens, security interests and
other encumbrances in or on the capital stock and equity interests of Primo To Go created pursuant
to the security interest granted to the Bank by Primo under the Loan Agreement shall terminate
automatically and without further action, and within a reasonable time after the Effective Date,
the Bank will file Uniform Commercial Code amendments terminating the Bank’s financing statements
covering such capital stock and equity interests of Primo To Go; and
(c) The Loan Agreement is amended as of the Effective Date as follows:
(i) The definition of “Borrower” in Section 1.1 of the Loan Agreement is hereby
amended and restated to read as follows:
“Borrower” means Primo, Primo Products, LLC and Primo Direct, LLC, and
any Subsidiary who hereafter executes and delivers to Bank a Joinder Agreement,
collectively.
(ii) The definition of “Primo To Go” in Section 1.1 of the Loan Agreement is
hereby deleted in its entirety.
(iii) Any reference or information pertaining to Primo To Go set forth on any
exhibit or schedule to the Loan Agreement is hereby deleted in its entirety.
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Section 3. Conditions of Effectiveness. This Amendment shall become effective
when, and only when:
(a) Effective Date. The Conversion and the Spin-off occur (the “Effective Date”),
provided that the Conversion and Spin-off occur no later than December 31, 2009.
(b) Fifth Amendment Effective. The Fifth Amendment to the Loan Agreement dated as
of December ___, 2009 shall have been executed by the Borrowers and the Bank and shall have
become effective in accordance with its terms.
(c) Executed Amendment. The Bank shall have received, in form and substance
satisfactory to the Bank, counterparts of this Amendment executed by the Borrowers and the Bank;
(d) Fees and Expenses. The Borrowers shall have paid all heretofore unreimbursed
fees and out-of-pocket charges and other expenses of the Bank incurred in connection with this
Amendment and the administration of the Loan Documents, including reasonable fees and
out-of-pocket charges of the Bank’s attorneys; and
(e) Other Documents. The receipt by the Bank of any other documents or instruments
reasonably requested by the Bank in connection with the execution of this Amendment.
Section 4. Representations and Warranties. Each of the Borrowers represents and
warrants that (a) the Borrowers and their Subsidiaries are not, and after giving effect to the
transactions contemplated by this Amendment will not be, in violation of any of the covenants
contained in the Loan Agreement and the other Loan Documents, (b) since September 30, 2009,
there has been (and prior to the Effective Date there will be) no transfer of assets from any of
the other Borrowers to Primo To Go outside of the ordinary course of business, except for such
assets as were reflected on the financial statements and used in the operations of Primo To Go
as of Septemeber 30, 2009, and (c) after giving effect to the transactions contemplated by this
Amendment, no Default or Event of Default will have occurred and be continuing, except as waived
hereby. Each of the Borrowers further represents and warrants that it has satisfied each of the
closing conditions set forth in Section 3 of this Amendment.
Section 5. Reference to and Effect on the Loan Documents.
(a) Upon the date hereof, each reference in the Loan Agreement to “this Agreement”,
“hereunder”, “hereof” or words of like import referring to the Loan Agreement, and each
reference in the other Loan Documents to “the Loan Agreement”, “thereunder”, “thereof” or words
of like import referring to the Loan Agreement, shall mean and be a reference to the Loan
Agreement as amended hereby.
(b) Except as specifically amended above, or previously amended, the Loan Agreement and all
other Loan Documents, are and shall continue to be in full force and effect and are hereby in
all respects ratified and confirmed. The Borrowers and the Bank agree that this Amendment shall
not be construed as an agreement to extinguish the Borrowers’ obligations under the Loan
Agreement and shall not constitute a novation as to the obligations of the Borrowers under the
Loan Agreement, except with respect to Primo To Go as expressly provided herein.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of the Bank
under any of the Loan Documents, nor constitute a waiver of any provision of any of the
Loan Documents.
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Section 6. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed to be an original and all of which taken together
shall constitute but one and the same agreement.
Section 7. Facsimile Transmission. A facsimile, telecopy or other reproduction of
this Amendment may be executed by one or more parties hereto, and an executed copy of this
Amendment 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 Amendment as well as any facsimile, telecopy or other reproduction hereof.
Section 8. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT REFERENCE TO THE
CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
Section 9. Entire Agreement. This Amendment is the entire agreement, and
supersedes any prior agreements and contemporaneous oral agreements, of the parties concerning
its subject matter.
Section 10. Successors and Assigns. This Amendment shall be binding on and inure
to the benefit of the parties and their heirs, beneficiaries, successors and assigns.
Section 11. Further Assurances. The parties hereto shall execute and deliver such
additional documents and take such additional action as may be necessary or desirable to
effectuate the provisions and purposes of this Amendment.
[Signature pages to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed under seal by
their duly authorized officers, all as of the day and year first written above.
| BORROWERS: | ||||
|
PRIMO WATER CORPORATION |
||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | CFO | |||
| PRIMO TO GO, LLC |
||||
| By: Primo Water Corporation, its Manager | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | President | |||
| PRIMO PRODUCTS, LLC | ||||
| By: Primo Water Corporation, its Manager | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | President | |||
| PRIMO DIRECT, LLC |
||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Manager | |||
[Signature Page – Sixth Amendment, Waiver and Consent to Loan and Security Agreement]
| BANK: WACHOVIA BANK, NATIONAL ASSOCIATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President | |||
[Signature Page – Sixth Amendment, Waiver and Consent to Loan and Security Agreement]
