Amendment No. 2 to Receivables Purchase Agreement
Exhibit
10.1
Amendment
No. 2 to Receivables Purchase Agreement
AMENDMENT
AGREEMENT (this “Amendment
Agreement”)
dated
as of October 6, 2006 among Lexmark Receivables Corporation (the
“Seller”),
XXXXXX, LLC (“XXXXXX”),
Gotham Funding Corporation (“Gotham”),
Citibank, N.A. (“Citibank”),
The
Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch (“BTM”)
(formerly known as The Bank of Tokyo-Mitsubishi Ltd., New York Branch), 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 has sold, and may continue 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 in the
Agreement.
(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 “Applicable Margin” in Section 1.01 of the Agreement is
restated in its entirety to read as follows: “Applicable
Margin”
means,
at any time, a rate per annum equal to the sum of (x) the rate appearing
under the caption “Eurocurrency Spread” for the then applicable Index Debt
Rating in the definition of “Applicable Rate” in the Credit Facility
plus
(y) 0.25%.
1.2 The
definition of “BTM” in Section 1.01 of the Agreement is restated in its
entirety to read as follows: “BTM”
means
The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, a Japanese banking
corporation acting through its New York Branch.
1.3
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 5, 2007”.
1.4 The
definitions of “Consolidated EBITDA” and “Consolidated Interest Expense” in
Section 1.01 of the Agreement are each amended by replacing each occurrence
therein of the phrase “the date hereof” with the phrase “the Second RPA
Amendment Effective Date”.
1.5 The
definition of “Consolidated Leverage Ratio” in Section 1.01 of the
Agreement is amended by deleting the term “Consolidated Total Debt” therein and
replacing it with the term “Consolidated Total Indebtedness”.
1.6 The
definition of “Consolidated Total Debt” in Section 1.01 of the Agreement is
deleted in its entirety.
1.7 The
definition of “Credit Facility” in Section 1.01 of the Agreement is
restated in its entirety to read as follows: “Credit
Facility”
means
the Credit Agreement dated as of January 20, 2005 among the Originator as
borrower, the lenders party thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent, Fleet National Bank and Citibank, N.A. as Co-Syndication
Agents, KeyBank National Association and Suntrust Bank as Co-Documentation
Agents and X.X. Xxxxxx Securities Inc., as Sole Bookrunner and Sole Lead
Arranger, as amended, restated, modified or supplemented from time to time,
and
all agreements, documents and instruments executed in connection therewith
together with any replacement facility or refinancing thereof entered into
by
the Originator.
1.8 For
the
avoidance of doubt, the parties hereto acknowledge that the reference to
“insurance” in clause (iii) of the definition of “Related Security” in
Section 1.01 is intended to include (without limitation) the Insurance
Agreement with respect to any Receivable that is an Insured
Receivable.
1.9 The
following new definitions are added to Section 1.01 of the Agreement in
proper alphabetical order:
“Consolidated
Total Indebtedness”
has
the
meaning set forth in such definition in the Credit Facility as in effect
on the
Second RPA Amendment Effective Date and any additional defined terms used
in
such definition shall have their meanings as in effect on the Second RPA
Amendment Effective Date.
“Insurance
Agreement”
means
a
credit insurance policy naming the Seller as the insured that insures payment
of
Receivables (within certain credit limits) due from certain specified
Obligors.
“Insurance
Provider”
means,
with respect to an Insurance Agreement, the insurance company providing
insurance thereunder.
“Insured
Obligor”
means
each Obligor whose Receivables are insured pursuant to an Insurance
Agreement.
“Insured
Receivable”
means
a
Receivable due from an Insured Obligor.
“Insured
Receivable Default”
means,
with respect to an Insured Receivable, an event (such as non-payment of such
Receivable or bankruptcy of the Obligor thereon) which entitles the Seller
to
submit a claim for loss under the Insurance Agreement.
“Second
RPA Amendment Effective Date”
means
October 6, 2006.
1.10 Section 5.01(d)
is amended to add the following proviso at the end thereof: “; provided,
however,
that
following the occurrence of an Insured Receivable Default, the Seller may
assign
the applicable Insured Receivables to the applicable Insurance Provider pursuant
to and in accordance with the terms of the applicable Insurance Agreement;
provided further
that
(i) the Seller shall instruct the Insurance Provider to pay any amounts
payable under the Insurance Agreement with respect to the Insured Receivables
to
a Lock-Box Account, (ii) the Seller or Collection Agent shall notify the
Program Agent of any such assignment and the amount expected to be paid by
the
Insurance Provider in connection therewith, (iii) upon any such permitted
assignment of Insured Receivables pursuant to the foregoing proviso, the
security interest of the Program Agent therein shall be automatically released
and (iv) the Seller shall instruct the Insurance Provider that following
payment by the Insurance Provider to the Seller with respect to any Insured
Receivables the Insurance Provider shall direct the applicable Insured Obligor
to pay the amounts due on such Insured Receivables directly to the Insurance
Provider.”
1.11 A
new
Section 5.01(v) is added at the end of Section 5.01 reading as
follows:
(v)
Insurance
Agreement.
All
premiums for any Insurance Agreement will be paid by the Seller and will
be paid
from the Seller’s own funds.
1.12 Section 6.02(a)
is amended by adding the following sentence at the end thereof: “The Collection
Agent shall also take such actions and provide such notices as are required
pursuant to any Insurance Agreement in order to obtain payment thereunder
with
respect to any Insured Receivables as to which an Insured Receivable Default
has
occurred.”
1.13 Section 7.01(e)
of the Agreement is amended by replacing the amount “$50,000,000" appearing in
the third line thereof with the amount “$100,000,000" and deleting the
parenthetical appearing in the third to fifth lines thereof.
1.14 Section 7.01(m)
of the Agreement is amended by deleting the ratio “3.5:1.00” in the first line
thereof and replacing with the following ratio “3.0:1.0.”
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 each 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 UFJ, LTD.,
NEW
YORK
BRANCH,
as
a
Bank
By:
/s/ Xxxxxx Xxxxxxxxx
Title:
Xxxxxx Xxxxxxxxx
Authorized
Signatory
THE
BANK
OF TOKYO-MITSUBISHI UFJ, LTD.,
NEW
YORK
BRANCH,
as
an
Investor Agent
By:
/s/
Xxxxxx Xxxxx
Title:
Xxxxxx Xxxxx
VP
GOTHAM
FUNDING CORPORATION
By:
/s/
R.
Xxxxxxx Xxxxxxxxx
Title:
Treasurer
LEXMARK
INTERNATIONAL, INC.
By:
/s/
Xxxxxxx X. Xxxxxx
Title:
VP
& Treasurer
