Amendment No. 1 to Receivables Purchase Agreement
Exhibit
10.1
Amendment
No. 1 to Receivables Purchase Agreement
AMENDMENT
AGREEMENT (this “Amendment
Agreement”)
dated
as of October 7, 2005 among Lexmark Receivables Corporation (the “Seller”),
XXXXXX, LLC (“XXXXXX”),
Gotham Funding Corporation (“Gotham”),
Citibank, N.A. (“Citibank”),
The
Bank of Tokyo - Mitsubishi, Ltd., New York Branch (“BTM”),
Citicorp North America, Inc. (“CNAI”),
as
Program Agent, CNAI and BTM, as Investor Agents, and Lexmark International,
Inc.
(“Lexmark”),
as
Collection Agent and Originator.
Preliminary
Statements.
(1) The
Seller, CIESCO, Gotham, Citibank, BTM, CNAI and Lexmark are parties to an
Amended and Restated Receivables Purchase Agreement dated as of October 8,
2004
(as amended, restated, modified or supplemented from time to time, the
“Agreement”;
capitalized terms not otherwise defined herein shall have the meanings
attributed to them in the Agreement) pursuant to which, and subject to and
upon
the terms and conditions of which, the Seller has acquired, and may continue
to
acquire, Receivables from the Originator, either by purchase or by contribution
to the capital of the Seller, as determined from time to time by the Seller
and
the Originator. The Seller is prepared to sell Receivable Interests in the
Receivables. XXXXXX and Gotham may, in their sole discretion, purchase such
Receivable Interests, and the Banks are prepared to purchase such Receivable
Interests, in each case on the terms set forth therein.
(2) The
parties hereto desire to amend certain provisions of the Agreement as set
forth
herein.
NOW,
THEREFORE, the parties agree as follows:
SECTION
1. Amendments.
Upon
the effectiveness of this Amendment Agreement, the Agreement is hereby amended
as follows:
1.1 The
definition of “Commitment Termination Date” in Section 1.01 of the Agreement is
amended by replacing the date appearing in clause (a) thereof with the date
“October 6, 2006”.
1.2 The
definition of “CP Fixed Period Date” in Section 1.01 of the Agreement is amended
by replacing the word “20th”
appearing in the second line therein with the word “last”.
1.3 The
definition of “Settlement Date” in Section 1.01 of the Agreement is amended by
deleting such definition in its entirety and replacing, in lieu thereof,
the
following:
“'Settlement
Date'
for any
Receivable Interest means the 15th day of each calendar month.”
1.4 Section
2.04(d) of the Agreement is hereby amended by replacing the phrase “fourth
Business day” appearing in clause (i) thereof with the phrase “15th
day”.
1.5 Section
4.01(e) of the Agreement is hereby amended by replacing each occurrence of
the
date “December 31, 2003” appearing in the 7th
and the
12th
lines
therein with the date “September 30, 2005”.
1.6 Section
4.02(e) of the Agreement is hereby amended by replacing each occurrence of
the
date “December 31, 2003” appearing in the 7th
and the
12th
lines
therein with the date “September 30, 2005”.
1.7 Section
6.02(g)(i) of the Agreement is amended by replacing the word “20th” appearing in
the first line therein with the word “15th”.
SECTION
2. Effectiveness.
This
Amendment Agreement shall become effective at such time that executed
counterparts of this Amendment Agreement have been delivered by each party
hereto to the other party hereto.
SECTION
3. Representations
and Warranties.
The
Seller makes each of the representations and warranties contained in Section
4.01 of the Agreement (after giving effect to this Amendment Agreement).
The
Collection Agent makes each of the representations and warranties contained
in
Section 4.02 of the Agreement (after giving effect to this Amendment
Agreement).
SECTION
4. Confirmation
of Agreement.
Each
reference in the Agreement to “this
Agreement” or “the Agreement” shall mean the Agreement as amended by this
Amendment Agreement, and as hereafter amended or restated. Except as herein
expressly amended, the Agreement is ratified and confirmed in all respects
and
shall remain in full force and effect in accordance with its terms.
SECTION
5. GOVERNING
LAW.
THIS AMENDMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH,
THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT
OF LAWS
PRINCIPLES THEREOF).
SECTION
6. Execution
in Counterparts.
This
Amendment Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same agreement. Delivery of an executed counterpart
of a signature page to this Amendment Agreement by facsimile shall be effective
as delivery of a manually executed counterpart of this Amendment
Agreement.
IN
WITNESS WHEREOF, the parties have caused this Amendment Agreement to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
LEXMARK
RECEIVABLES
CORPORATION
By:
/s/
Xxxxx X. Xxxxx
Title:
Assistant
Treasurer
XXXXXX,
LLC
By: Citicorp
North America, Inc.,
as
Attorney-in-Fact
By:
/s/
Xxxxxxx X. Xxxx
Title:
Vice
President
CITICORP
NORTH
AMERICA, INC.,
as
Program Agent and
as an Investor Agent
By:
/s/
Xxxxxxx X. Xxxx
Title:
Vice
President
CITIBANK,
N.A.
By:
/s/
Xxxxxxx X. Xxxx
Title:
Vice
President
THE
BANK OF
TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH,
as
an Investor
Agent
By:
/s/
Xxxxxx Xxxxx
Title:
Vice
President
GOTHAM
FUNDING
CORPORATION
By:
/s/
Xxxxx X. Xxxxxx
Title:
Secretary
LEXMARK
INTERNATIONAL, INC.
By:
/s/
Xxxxxxx X. Xxxxxx
Title:
Vice President
and Treasurer
