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Exhibit 10.44

 

EXECUTION VERSION

 

THIS FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT (this “Amendment”), is made and entered into as of March 7, 2016, by and among PRIMO WATER CORPORATION, a Delaware corporation (“Parent”), PRIMO PRODUCTS, LLC, a North Carolina limited liability company (“Products”), PRIMO DIRECT, LLC, a North Carolina limited liability company (“Direct”), PRIMO REFILL, LLC, a North Carolina limited liability company (“Refill”), PRIMO ICE, LLC, a North Carolina limited liability company (“ICE”), PRIMO REFILL CANADA CORPORATION, a British Columbia, Canada corporation (“Primo Canada”; together with Parent, Products, Direct, Refill and ICE, each a “Company” and collectively, the “Companies”), THE PRUDENTIAL INSURANCE COMPANY OF AMERICA (“Prudential”) and PICA HARTFORD LIFE INSURANCE COMFORT TRUST (“PICA” and collectively with Prudential and their successors and assigns, the “Holders”).

W I T N E S S E T H:

WHEREAS, the Companies and the Holders are parties to that certain Note Purchase Agreement, dated as of June 20, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the “Note Agreement”; capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Note Agreement), pursuant to which the Holders have purchased Notes from the Companies;

WHEREAS, the Companies have requested that the Holders amend certain provisions of the Note Agreement and, subject to the terms and conditions hereof, the Holders are willing to do so;

 

NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt of all of which are acknowledged, each Company and the Holders agree as follows:

 

 

(a)       any shares of the equity interests of any Company or any of their Subsidiaries (other than dividends or distributions payable in its equity interests permitted hereunder) or apply any of its funds, property or assets to the purchase, redemption or other retirement of any such equity interests; except, that, (i) in lieu of making tax payments directly, the Companies and their Subsidiaries may make dividends and distributions to Parent from time to time for the sole purpose of allowing Parent to, and Parent shall promptly upon receipt thereof use the proceeds thereof solely to, pay federal and state income taxes and franchise taxes solely arising out of the consolidated operations of Parent and its Subsidiaries, after taking into account all available credits and deductions; (ii) the Companies and their Subsidiaries may make dividends and distributions to any Company from time to time in respect of any equity interests owned by any Company; (iii) Parent may purchase and redeem its equity interests for the sole purpose of providing proceeds to Equity Interest Option Holders in order to permit such Equity Interest Option Holders to pay federal, state and provincial income taxes solely arising out of and relating to options and warrants owned by such Equity Interest Option Holders; provided, that, the aggregate amount of purchases and redemptions under this clause (iii) shall not exceed $3,000,000 during any fiscal year; and (iv) Parent may purchase or redeem its equity interests pursuant to a stock buyback program approved by its board of directors' provided that (A) the aggregate consideration for such purchases and redemptions in any fiscal year does not exceed (1) $7,500,000 in fiscal year 2016 and (2) $10,000,000 in any fiscal year thereafter, (B) both before and after giving pro forma effect thereto, no Default or Event of Default shall have occurred and be continuing or result therefrom, (C) after giving pro forma effect thereto, the Stock Repurchase Fixed Charge Coverage Ratio would not be less than 1.15 to 1.00 and (D) each Holder shall have received from Parent, not less than five (5) Business Days prior to such purchase or redemption, a certificate executed by a Senior Financial Officer certifying compliance with the financial covenants set forth in Section 10.6 and the Stock Repurchase Fixed Charge Coverage Ratio, together with calculations in reasonable detail of such compliance; and

 

“Consolidated Stock Repurchase Fixed Charges” means, for Parent and its Subsidiaries on a consolidated basis for any period, the sum (without duplication) of (i) Consolidated Interest Expense paid in cash for such period, (ii) Capital Expenditures made during such period, excluding Capital Expenditures financed with Indebtedness or equity, (iii) income and franchise taxes paid in cash for such period and (iv) scheduled principal payments made on Indebtedness during such period, excluding scheduled principal payments financed.

“Stock Repurchase Fixed Charge Coverage Ratio” means, as of any date, the ratio of (i) (A) Consolidated EBITDA less (B) the aggregate amount of dividends, redemptions, purchases and distributions made in cash pursuant to Section 10.9(a), to (ii) Consolidated Stock Repurchase Fixed Charges, in each case measured for the four fiscal quarter period most recently ended for which financial statements have been delivered and giving pro forma effect to any dividends, redemptions, purchases and distributions being made under Section 10.9(a)(iv) in connection with the measurement of this ratio.

 

 

 

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IN WITNESS WHEREOF, this Amendment has been duly executed as of the date first written above.

 

 

[Signature Page to First Amendment to Note Agreement]

 

 

 

[Signature Page to First Amendment to Note Agreement]

 

 

[Signature Page to First Amendment to Note Agreement]

 

 

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