Cott Corporation



 





Exhibit 10.4




AMENDMENT NO. 2 TO RECEIVABLES PURCHASE AGREEMENT




     This AMENDMENT NO. 2 TO RECEIVABLES PURCHASE AGREEMENT (this “Amendment”) is entered
into as of July 17, 2007 by and among the parties named on the signature pages hereto.



PRELIMINARY STATEMENTS




          Reference is hereby made to the Receivables Purchase Agreement dated as of April 1, 2005 (as
amended, supplemented or otherwise modified prior to the date hereof, the “RPA”) among Cott
USA Receivables Corporation, as seller (the “Seller”), Cott Beverages Inc., as servicer
(the “Servicer”), Park Avenue Receivables Company, LLC, the financial institutions from
time to time party thereto (together with Park Avenue Receivables Company, LLC, the
“Purchasers”) and JPMorgan Chase Bank, N.A., as agent (the “Agent”) for the
Purchasers.




          The Seller has requested that the Purchasers and the Agent amend the RPA as more specifically
described below on the terms and conditions set forth below.




          Subject to and in accordance with the terms and conditions set forth herein, the Purchasers
and the Agent are willing to agree to amend the RPA described in this Amendment.




          NOW, THEREFORE, in consideration of the premises set forth above, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:




          SECTION 1. Capitalized Terms. All capitalized terms used but not otherwise
defined in this Amendment shall have the meanings assigned to such terms in the RPA.




          SECTION 2. Amendment to RPA. Effective as of the “Effective Date” (defined
below), Section 3.A. of Schedule C to the RPA is hereby amended and restated in its entirety as
follows:





     A. Maximum Total Leverage Ratio. As of any fiscal quarter end, 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 Cott Corporation and its Restricted
Subsidiaries which is available for immediate application to repay the obligations
outstanding under the Credit Agreement 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 April 1, 2005
through and including June 30, 2006

	 	3.25 to 1.00






 









 






	 	 	 
	Period	 	Ratio
	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 Facility Termination Date

	 	3.00 to 1.00






          SECTION 3. Conditions Precedent. This Amendment shall become effective (the
“Effective Date”) as of the date first above written upon the Agent’s receipt of
counterparts of this Amendment duly executed by each party hereto.




          SECTION 4. Covenants, Representations and Warranties.




          4.1 Upon the effectiveness of this Amendment, each of Seller and the Servicer hereby reaffirms
all covenants, representations and warranties made by it under the Transaction Documents to which
it is a party and agrees that all such covenants, representations and warranties shall be deemed to
have been re-made as of the effective date of this Amendment.




          4.2 Each of the parties hereto acknowledges and agrees that this Amendment constitutes a
“Transaction Document” under the RPA.




          SECTION 5. Reference to and Effect on the RPA.




          5.1 Upon the effectiveness of this Amendment, each reference in any RPA to “this Agreement,”
“hereunder,” “hereof,” “herein,” “hereby” or words of like import shall mean and be a reference to
the RPA as modified hereby, and each reference to the RPA in any other document, instrument or
agreement executed and/or delivered in connection with the RPA shall mean and be a reference to the
RPA as modified hereby.




          5.2 Except as specifically modified hereby, the RPA, each other Transaction Document and all
instruments and agreements executed and/or delivered in connection therewith shall remain in full
force and effect and are hereby ratified and confirmed.




          5.3 The execution, delivery and effectiveness of this Amendment shall not operate as a waiver
of any right, power or remedy under the RPA or any of the other Transaction Documents, nor
constitute a waiver of any provision contained therein, except as specifically set forth herein.




          SECTION 6. Reaffirmation of Performance Undertaking. Without in any way
establishing a course of dealing, Cott Corporation hereby reaffirms all of its obligations under
the Performance Undertaking and acknowledges and agrees that, after giving effect to this
Amendment, the Performance Undertaking remains in full force and effect and is hereby ratified and
confirmed.




          SECTION 7. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.




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          SECTION 8. 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 instrument.




          SECTION 9. Headings. Section headings in this Amendment are included herein
for convenience or reference only and shall not constitute a part of this Amendment for any other
purpose.




          SECTION 10. Fees and Expenses. The Seller hereby agrees to pay or reimburse
the Agent for all of its reasonable out-of-pocket fees and expenses incurred in connection with the
preparation, negotiation and execution of this Amendment including, without limitation, the
reasonable fees, disbursements and other charges of counsel to the Agent.




* * * * *




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          IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers thereto duly authorized as of the date first written above.



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N. A., as Agent and as a
Financial Institution

 	 
	 	By:  	/s/ Ronald J. Atkins
 	 
	 	 	Name:  	Ronald J. Atkins 	 
	 	 	Title:  	Executive Director 	 



	 	 	 	 	 
	 	PARK AVENUE RECEIVABLES COMPANY, LLC

 	 
	 	By:  	JPMorgan Chase Bank, N. A., its attorney-in-fact
 	 
	 	 	 	 
	  	By:  	/s/ Ronald J. Atkins
 	 
	 	 	Name:  	Ronald J. Atkins 	 
	 	 	Title:  	Executive Director 	 
	 



Signature Page to Amendment No. 2 to Receivables Purchase Agreement




 









 





	 	 	 	 	 
	 	COTT USA RECEIVABLES CORPORATION,

as Seller

 	 
	 	By:  	/s/ Catherine Brennan
 	 
	 	 	Name:  	Catherine Brennan 	 
	 	 	Title:  	VP, Treasurer 	 
	 
	 	COTT BEVERAGES INC., as Servicer

 	 
	 	By:  	/s/ Catherine Brennan
 	 
	 	 	Name:  	Catherine Brennan 	 
	 	 	Title:  	VP, Treasurer 	 
	 
	 	COTT CORPORATION

 	 
	 	By:  	/s/ Catherine Brennan
 	 
	 	 	Name:  	Catherine Brennan 	 
	 	 	Title:  	VP, Treasurer 	 
	 



Signature Page to Amendment No. 2 to Receivables Purchase Agreement