SUPPLEMENTAL INDENTURE
EXHIBIT 4.4
THIS SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of November 13, 2009 is made by and among Cott Beverages Inc., a Georgia corporation (the “Company”), the guarantors signatory hereto (the “Guarantors”) and HSBC Bank USA, National Association (the “Trustee”), as Trustee.
RECITALS:
WHEREAS, the Company, the Guarantors and the Trustee are parties to an Indenture dated as of December 21, 2001, as amended or supplemented from time to time (the “Indenture”).
WHEREAS, pursuant to the Indenture, the Company issued and the Trustee authenticated and delivered an aggregate principal amount of $275,000,000 of the Company’s 8.0% Senior Subordinated Notes due 2011 (the “Notes”), of which $248,265,000 is currently outstanding.
WHEREAS, Section 9.2 of the Indenture provides, among other things, that with the consent of the holders (the “Holders”) of at least a majority in principal amount of the Notes then outstanding (the “Requisite Consents”), the Company, the Guarantors and the Trustee may amend the Indenture or the Notes, subject to certain exceptions specified in Section 9.2 of the Indenture, including the requirement that Holders of at least 75% of the outstanding principal amount of the Notes then outstanding consent to the elimination of certain covenants (the “Additional Consents”).
WHEREAS, on October 29, 2009, the Company distributed an Offer to Purchase and Consent Solicitation Statement (as amended, modified, or supplemented, the “Offer to Purchase”) to each Holder.
WHEREAS, the Company has obtained the Requisite Consents and the Additional Consents to amend the Indenture as set forth in the Offer to Purchase (the “Amendments”).
WHEREAS, this Supplemental Indenture has been duly authorized by all necessary corporate action on the part of the Company.
WHEREAS, the Company has delivered, or caused to be delivered, to the Trustee an Officer’s Certificate and an Opinion of Counsel meeting the requirements of Sections 13.4 and 13.5 of the Indenture.
NOW THEREFORE, each party agrees for the benefit of the other parties and for the equal and ratable benefit of all Holders, as follows:
AGREEMENT:
Section 1. Definitions. Capitalized terms used in this Supplemental Indenture and not otherwise defined herein have the meanings given to them in the Indenture. Sections 1.1 and 1.2 of the Indenture are hereby amended to delete in their entirety all terms and their respective definitions for which all references are eliminated in the Indenture as a result of the amendments set forth in Section 2.1 below.
Section 2. Amendments.
2.1 Amendment of Certain Sections of the Indenture. The Indenture is hereby amended by deleting the following sections of the Indenture and all references thereto in the Indenture in their entirety:
(a) Section 3.9 Offer to Purchase by Application of Excess Proceeds.
(b) Section 4.5. Taxes.
(c) Section 4.6 Stay, Extension and Usury Laws.
(d) Section 4.7. Restricted Payments.
(e) Section 4.8. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.
(f) Section 4.9. Incurrence of Indebtedness and Issuance of Preferred Stock.
(g) Section 4.10. Asset Sales.
(h) Section 4.11. Transactions with Affiliates.
(i) Section 4.12. Liens.
(j) Section 4.13. Business Activities.
(k) Section 4.14. Corporate Existence.
(l) Section 4.15. Offer to Repurchase Upon Change of Control Triggering Event.
(m) Section 4.16 No Senior Subordinated Debt.
(n) Secton 4.17. Additional Subsidiary Guarantees.
(o) Section 4.18. Payments for Consent.
(p) Section 4.19. Sale and Leaseback Transactions.
(q) clause (iv) of Section 5.01. Merger, Consolidation or Sale or Lease of Assets.
(r) Section 6.1 (f), and (g). Certain Events of Default.
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Section 3. Miscellaneous.
3.1 Effect of Supplemental Indenture. Upon the execution and delivery of this Supplemental Indenture by the Company, the Guarantors and the Trustee, the Indenture shall be supplemented in accordance herewith, and this Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder holding Notes that have been heretofore or hereafter authenticated and delivered under the Indenture shall be bound thereby; provided, however, that Sections 1 and 2.1 hereof shall not become operative unless and until the date (the “Operative Date”) set forth in a notice from the Company to the Trustee, stating that all the Notes that were validly tendered and not withdrawn at or prior to the Early Participation Payment Deadline (as defined in the Offer to Purchase) were purchased on the Early Settlement Date (as defined in the Offer to Purchase). In connection with the execution and delivery of the Supplemental Indenture, the Company shall provide notice to the Holders pursuant to Section 9.2 of the Indenture.
3.2 Indenture Remains in Full Force and Effect. Except as supplemented hereby, all provisions of the Indenture shall remain in full force and effect.
3.3 Indenture and Supplemental Indenture Construed Together. This Supplemental Indenture is an indenture supplemental to and in implementation of the Indenture, and the Indenture and this Supplemental Indenture shall henceforth be read and construed together.
3.4 Confirmation and Preservation of the Indenture. The Indenture as supplemented by this Supplemental Indenture is in all respects confirmed and preserved.
3.5 Conflict with Trust Indenture Act. If any provision of this Supplemental Indenture limits, qualifies, or conflicts with any provision of the Trust Indenture Act of 1939, as amended (the “Act”), that is required under such Act to be part of and govern any provision of this Supplemental Indenture, the provision of such Act shall control. If any provision of this Supplemental Indenture modifies or excludes any provision of the Act that may be so modified or excluded, the provisions of the Act shall be deemed to apply to the Indenture as so modified or to be excluded by this Supplemental Indenture, as the case may be.
3.6 Trustee Not Responsible for Recitals. The recitals contained herein shall be taken as the statements of the Company and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation as to the validity or adequacy of this Supplemental Indenture.
3.7 Certain Duties and Responsibilities of the Trustee. In entering into this Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee, whether or not elsewhere herein so provided, including specifically the Trustee’s rights to indemnification contained in Section 7.7 of the Indenture.
3.8 Separability Clause. In case any provision of this Supplemental Indenture shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
3.9 Effect of Headings. The Section and Subsection headings herein are for convenience only and shall not affect the construction hereof.
3.10 Benefits of Supplemental Indenture. Nothing in this Supplemental Indenture, the Indenture, or the Notes, express or implied, shall give to any Person, other than the parties hereto and thereto and their successors hereunder and thereunder, and the Holders, any benefit of any legal or equitable right, remedy, or claim under the Indenture, this Supplemental Indenture, or the Notes.
3.11 Successors and Assigns. All covenants and agreements in this Supplemental Indenture by the Company shall bind its successors and permitted assigns, whether so expressed or not.
3.12 Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
3.13 Counterparts. This Supplemental Indenture may be executed in counterparts (including by means of facsimile signature pages), each of which shall be an original, but all such counterparts shall together constitute one and the same instrument.
[Remainder of Page Blank — Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date and the year first written above.
| COTT CORPORATION | ||
| By | /s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx Title: Chief Financial Officer | ||
| COTT BEVERAGES INC. | ||
| By | /s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx Title: Chief Financial Officer | ||
| COTT HOLDINGS INC. | ||
| By | /s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx Title: Chief Financial Officer | ||
| COTT USA CORP. | ||
| By | /s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx Title: Chief Financial Officer | ||
| COTT VENDING INC. | ||
| By | /s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx Title: Chief Financial Officer | ||
| INTERIM BCB, LLC | ||
| By | /s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx Title: Chief Financial Officer | ||
| CB NEVADA CAPITAL INC. | ||
| By | /s/ Xxxxxx Xxxxxxxx | |
| Name: Xxxxxx Xxxxxxxx Title: President | ||
| COTT USA FINANCE LLC | ||
| By | /s/ Xxxxxx Xxxxxxxx | |
| Name: Xxxxxx Xxxxxxxx Title: Director Manager | ||
| COTT BEVERAGES LIMITED | ||
| By | /s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx Title: Director | ||
| COTT RETAIL BRANDS LIMITED | ||
| By | /s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx Title: Director | ||
| COTT LIMITED | ||
| By | /s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx Title: Director | ||
| COTT EUROPE TRADING LIMITED | ||
| By | /s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx Title: Director | ||
| COTT PRIVATE LABEL LIMITED | ||
| By | /s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx Title: Director | ||
| COTT XXXXXX (HOLDINGS) LIMITED | ||
| By | /s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx Title: Director | ||
| COTT (XXXXXX) LIMITED | ||
| By | /s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx Title: Director | ||
| 2011438 ONTARIO LIMITED | ||
| By | /s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx Title: Chief Financial Officer | ||
| 804340 ONTARIO LIMITED | ||
| By | /s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx Title: Chief Financial Officer | ||
| 967979 ONTARIO LIMITED | ||
| By | /s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx Title: Chief Financial Officer | ||
| 000000 XXXXXX INC. | ||
| By | /s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx Title: Chief Financial Officer | ||
| HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee | ||
| By | /s/ Herawattee Alli | |
| Name: Herawattee Alli Title: Vice President | ||
