Exhibit 10.a
FIRST AMENDMENT
TO
SECOND AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
This FIRST AMENDMENT TO SECOND
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, dated as of
September 1, 2004 (this “ First Amendment
”) among CROWN CORK & SEAL RECEIVABLES (DE) CORPORATION,
a Delaware corporation (the “ Seller ”),
CROWN CORK & SEAL USA, INC., a Delaware corporation formerly
known as Crown Cork & Seal Company (USA), Inc. (“
Crown USA ”), the banks and other financial
institutions listed on the signature pages hereof as the Initial
Purchasers (the “ Purchasers ”) and
CITIBANK, N.A., a national banking association, as administrative
agent (the “ Agent ”) for the Purchasers
and the other Owners.
PRELIMINARY STATEMENTS:
(1) The Seller, Crown USA, the
Purchasers and the Agent have entered into the Second Amended and
Restated Receivables Purchase Agreement dated as of December 5,
2003 (the “ Receivables Purchase Agreement
”). Capitalized terms defined in the Receivables Purchase
Agreement and not otherwise defined in this First Amendment are
used in this First Amendment as defined in the Receivables Purchase
Agreement.
(2) The Seller and Crown USA have
requested the Purchasers and the Agent to agree to amend the
Receivables Purchase Agreement to reflect that the Parent and
certain subsidiaries have entered into a new Credit Agreement,
dated as of the date hereof (as further described in the amended
definition of “Existing Credit Facilities” in
Section 1(c) below, the “ Credit Agreement
”), and as a consequence the Parent Undertaking Parties, the
Seller, Crown USA and the Originators have entered into a Second
Amended and Restated Intercreditor Agreement, dated as of the date
hereof. The Seller, Crown USA, the Required Purchasers and the
Agent have agreed to so amend the Receivables Purchase
Agreement.
NOW, THEREFORE, in consideration of
the premises, the parties hereto agree as follows:
SECTION 1. Amendments to
Receivables Purchase Agreement . Effective as of the First
Amendment Effective Date (as defined in Section 3 below),
the Receivables Purchase Agreement is hereby amended as
follows:
(a) by amending the definition of
“ Change of Control ” in Section 1.01 thereof by
replacing the existing definition with the following:
“ ‘Change of
Control ’ means (a) the acquisition of ownership,
directly or indirectly (including, without limitation, through the
issuance, sale or exchange of Equity Interests, a merger or
consolidation or otherwise), beneficially or of record, by any
Person or group (within the meaning of the Securities Exchange Act
of 1934, as amended, and the rules of the Securities and Exchange
Commission thereunder as in effect on the First Amendment Effective
Date) of
Equity Interests representing more
than 35% of the aggregate ordinary voting power represented by the
issued and outstanding Equity Interests of the Parent, (b)
occupation of a majority of the seats (other than vacant seats) on
the board of directors of the Parent by Persons who were neither
(i) nominated by the board of directors of the Parent nor (ii)
appointed by directors so nominated, (c) the Parent shall cease to
own, directly or indirectly, beneficially or of record 100% of the
Equity Interests (other than directors’ qualifying shares) in
the other Parent Undertaking Parties, Crown (USA) or any other
Originator unless, in the case of such other Originator, such
Originator is, upon at least five Business Days’ prior
written notice to the Agent, sold by the Parent and thereupon
ceases to be an Originator hereunder without causing an Event of
Termination or a Potential Event of Termination to occur (other
than a Change of Control which would arise solely under this
clause (c) as a result of the sale of such Originator), or
(d) the occurrence of a “Change in Control” as defined
under the Existing Credit Facilities as in effect on the First
Amendment Effective Date.”
(b) by amending the definition of
“ Commitment Termination Date ” in Section 1.01
thereof by replacing the existing definition with the
following:
“‘ Commitment
Termination Date ’ means the earliest of (i) the
third anniversary of the Effective Date, (ii) fifteen (15) days
prior to the “Revolving Credit Maturity Date” under
(and as defined in) the Existing Credit Facilities, or any
extension, refinancing or replacement thereof consummated on terms
and conditions reasonably satisfactory to the Agent, (iii)
September 15, 2006 if, by such date, the 7% Senior Notes due
December 2006 of Crown Cork & Seal Finance plc are not repaid
or refinanced in full in a manner permitted by the Existing Credit
Facilities or any extension, refinancing or replacement thereof
consummated on terms and conditions reasonably satisfactory to the
Agent, and (iv) the date of termination in whole of the aggregate
Commitments pursuant to Section 2.03 or 7.01
.”
(c) by amending the definition of
“ Existing Credit Facilities ” in Section 1.01
thereof by replacing the existing definition with the
following:
“ ‘Existing Credit
Facilities’ means the facilities made available under
(i) the Credit Agreement dated as of September 1, 2004 among Crown
Americas, Inc. (f/k/a Crown Cork & Seal Americas, Inc.), Crown
European Holdings S.A., the Parent and each other Parent
Undertaking Party, certain other subsidiaries of the Parent party
thereto, Citicorp North America, Inc., as administrative agent,
Citibank International plc, as U.K. administrative agent and the
banks and other financial institutions from time to time party
thereto and (ii) any “Joinder Agreement” (as defined in
the Credit Agreement referred to in clause (i) above) which
becomes effective after the First Amendment Effective
Date.”
2
(d) by adding the following
definition of “ First Amendment Effective Date ”
to Section 1.01 in proper alphabetical order:
“ ‘First Amendment
Effective Date’ means the “First Amendment
Effective Date” as defined in the First Amendment to Second
Amended and Restated Receivables Purchase Agreement, dated as of
September 1, 2004, among the Seller, Crown (USA), the Required
Purchasers and the Agent.
(e) by amending the definition of
“ Intercreditor Agreement ” in Section 1.01
thereof by replacing the existing definition with the
following:
“ ‘Intercreditor
Agreement’ means, collectively, (i) the Second
Amended and Restated Intercreditor Agreement, dated as of September
1, 2004, in substantially the form of Exhibit K hereto,
among the Agent, the Parent Undertaking Parties, the Seller, each
US Originator and Citicorp North America, Inc., as administrative
and U.S. collateral agent under the Existing Credit Facilities, and
(ii) and any other intercreditor agreement (or supplement to the
intercreditor agreement referred to in clause (i) above)
requested by the Agent with respect to the Canadian Originator
and/or the UK Originators, in each case as the same may from time
to time be amended, supplemented or otherwise modified in
accordance with the terms thereof and the second proviso to
the first sentence of Section 11.01.”
(f) by amending Section 2.07(d)
thereof by deleting the reference to “(the Existing Credit
Facilities as in effect on the date hereof)” therein and
substituting “(the Existing Credit Facilities as in effect on
the First Amendment Effective Date)” in lieu
thereof.
(g) by amending Section 3.02(c)
thereof by inserting a reference to “the First Lien Notes
Indenture,” immediately following the first reference to
“the Existing Credit Facilities,” therein.
(h) by amending Section 11.02(b)
thereof by deleting the reference therein to “
hein.nugent@citigroup.com ” and substituting “
hien.nugent@citigroup.com ” in lieu
thereof.
(i) by amending Exhibit I thereto by
replacing the existing copy of the Second Amended and Restated
Parent Undertaking Agreement with a copy of
