Exhibit 10.2
Amendment No. 2 to Purchase and Contribution Agreement
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AMENDMENT AGREEMENT (this "Amendment Agreement") dated as of October 20,
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2003 between Lexmark International, Inc. (the "Seller")and Lexmark Receivables
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Corporation (the "Purchaser").
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Preliminary Statements. (1) The Seller and Purchaser are parties to a
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Purchase and Contribution Agreement dated as of October 22, 2001 (as amended,
restated, modified or supplemented from time to time, the "Agreement";
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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 sold and contributed
Receivables from time to time to the Purchaser.
(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. Amendment. Upon the effectiveness of this Amendment Agreement,
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the Agreement is hereby amended as follows:
1.1 Section 9.06 of the Agreement is amended by adding the following new
paragraph thereto:
Notwithstanding any other provision herein, each party hereto (and
each employee, representative or other agent of each party hereto) may
disclose to any and all Persons, without limitation of any kind, the U.S.
tax treatment and U.S. tax structure of the transaction contemplated by
this Agreement and the other Transaction Documents and all materials of any
kind (including opinions or other tax analyses) that are provided to such
party relating to such U.S. tax treatment and U.S. tax structure, other
than any information for which nondisclosure is reasonably necessary in
order to comply with applicable securities laws. The preceding sentence is
intended to cause this Agreement to be treated as not having been offered
under conditions of confidentiality for purposes of Section 1.601l-4(b)(3)
(or any successor provision) of the U.S. Treasury Regulations promulgated
under Section 6011 of the Internal Revenue Code of 1986, as amended, and
shall be construed in a manner consistent with such purpose.
SECTION 2. Effectiveness. This Amendment Agreement shall become effective
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at such time that executed counterparts of this Amendment Agreement have been
delivered by each party hereto to the other party hereto and the Amendment dated
as of the date hereof to the Sale Agreement shall have become effective.
SECTION 3. Representations and Warranties. The Seller makes each of the
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representations and warranties contained in Section 4.01 of the Agreement (after
giving effect to this Amendment Agreement).
SECTION 4. Confirmation of Agreement. Each reference in the Agreement to
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"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,
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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
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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 INTERNATIONAL, INC.
By: /s/Xxxxxxx X. Xxxxxx
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Title: Vice President & Treasurer
LEXMARK RECEIVABLES CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Title: Assistant Treasurer
Pursuant to Section 5.01(m) of the RPA,
the undersigned consents to the foregoing
Amendment No. 2 to Purchase and Contribution
Agreement.
CITICORP NORTH AMERICA, INC.,
as Agent
By: /s/ Xxxxxxx X. Xxxx
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Title: Vice President
