EXHIBIT 10.11
Amendment to Amended and
Restated Receivables Purchase Agreement
EXECUTION COPY
AMENDMENT
TO
AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT dated as of November 30, 1998 (the "Amendment")
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to the Amended and Restated Receivables Purchase Agreement, dated as of March
31, 1998 (the "Agreement") among LEXMARK INTERNATIONAL, INC., as servicer (the
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"Servicer"), LEXMARK RECEIVABLES CORPORATION, as seller (the "Seller"), DELAWARE
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FUNDING CORPORATION, as buyer (the "Buyer") and XXXXXX GUARANTY TRUST COMPANY OF
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NEW YORK, as administrative agent (the "Administrative Agent"), is by and among
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the parties listed above. Capitalized terms used herein and not otherwise
defined shall have the meanings assigned to such terms in the Agreement.
RECITALS
WHEREAS, the Administrative Agent, the Servicer, the Seller
and the Buyer wish to amend the Agreement in certain respects as provided below,
and the APA Purchasers are willing to consent to such amendments upon the terms
provided for herein;
WHEREAS, pursuant to Section 9.06 of the Agreement, the
Administrative Agent, the Servicer, the Seller and the Buyer may, from time to
time, enter into agreements amending, modifying or supplementing the Agreement;
NOW THEREFORE, in consideration of the premises and the
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Amendments to Section 1.01 of the Agreement.
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Section 1.01 of the Agreement is hereby amended by deleting the definitions of
"Concentration Factor," "Dilution Ratio," "Expiration Date" and "Maximum Net
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Investment" in their entirety and replacing them, respectively, with the
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following:
"Concentration Factor" shall mean (i) for any Group A Obligor
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and its Subsidiaries, 10% of an amount equal to the Outstanding Balances of all
Eligible Receivables, (ii) for any Group B Obligor and its Subsidiaries, 3.75%
of an amount equal to the Outstanding Balances of all Eligible Receivables,
(iii) for any Group C Obligor and its Subsidiaries, 2.75% of an amount equal to
the Outstanding Balances of all Eligible Receivables, (iv) for any Group D
Obligor and its Subsidiaries, 2.5% of an amount equal to the Outstanding
Balances of all Eligible Receivables and (v) for any Obligor and its
Subsidiaries and Affiliates listed on Exhibit F hereto of an amount equal to the
Outstanding Balances of all Eligible Receivables; provided, however, that if
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Compaq Computer Corporation ceases to be a Special Obligor as provided on
Exhibit F hereto, then the Concentration Factors specified in (ii) and (iii)
above shall be 5.0% and 3.33%, respectively.
"Dilution Ratio" shall mean, for any month, the ratio
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(expressed as a percentage) of (i) the aggregate Dilution Factors of all
Receivables arising during such calendar month to (ii) the aggregate amount
invoiced with respect to all Receivables arising as of the last day of the third
month preceding such month.
"Expiration Date" shall mean the earliest of (i) November 29,
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1999 as such date may be extended in the sole discretion of the Buyer pursuant
to the terms hereof, (ii) the date of termination of the commitment of the
Program LOC Bank under the Program Letter of Credit Reimbursement Agreement,
(iii) the date of termination of the commitment of the APA Lending Banks under
the APA Credit Agreement, (iv) the date of termination of the commitment of any
APA Purchaser under the Asset Purchase Agreement (unless other APA Purchaser(s)
or a replacement APA Purchaser accepts such terminating APA Purchaser's
commitment or unless the Maximum Purchase Commitment and the Net Investment (if
necessary) are reduced in an amount equal to the terminated commitment), and (v)
the day on which the Buyer delivers a Notice of Termination pursuant to Section
7.02 hereof or a Termination Event described in Section 7.01(j) hereof occurs.
"Maximum Net Investment" shall mean $125,000,000, unless
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otherwise increased with the consent of the Buyer or reduced as provided for in
Section 2.11(a) hereof; provided, however, that at all times on and after the
Expiration Date, the "Maximum Net Investment" shall mean the Net Investment.
SECTION 2. Amendments to Section 7.01(g) of the Agreement.
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Section 7.01(g) of the Agreement is hereby deleted in its entirety and replaced
with the following representation:
(g) the Default Ratio, computed for the immediately preceding
month, shall exceed 6.0%; or the average of the Default Ratios for each of the
three immediately preceding months, shall exceed 5.0%; or the Charge-Off Ratio,
computed for the immediately preceding month, shall exceed 1.5%; or the average
of the Charge-Off Ratios, computed for each of the three immediately preceding
months, shall exceed 0.67%; or the Dilution Ratio, computed for the immediately
preceding month, shall exceed 20.0%; or the average of the Dilution Ratios,
computed for each of the three immediately preceding months shall exceed 15.0%;
or the Delinquency Ratio, computed for the immediately preceding month, shall
exceed 7.5%; or the average of the Delinquency Ratios, computed for each of the
three immediately preceding months shall exceed 5.0%; or
SECTION 3. Amendments to Section 5.03 of the Agreement.
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Section 5.03 of the Agreement is hereby amended by adding the following
additional covenant:
(k) Year 2000 Compliance. The Servicer has initiated a review
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and assessment of its internal computer applications in the
United States which are necessary for the origination,
collection, management or servicing of the Receivables (the
"Receivables System") in connection with making a
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determination about whether the Receivables System will be
able to perform properly date-sensitive functions for dates
before and after January 1, 2000 (that is, be "Year 2000
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Compliant"). The Servicer is taking action to ensure that the
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Receivables Systems will be Year 2000 Compliant.
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SECTION 4. Amendments to Section 6.01 of the Agreement.
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6.01 of the Agreement is hereby amended by adding the following:
(v) Year 2000 Covenant. The Servicer shall take all necessary
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and reasonable actions to ensure that the Receivable System is
Year 2000 Compliant. On or before March 31, 1999, the Servicer
will promptly notify the Administrative Agent in the event
that the Servicer discovers any internal computer application
of the Servicer and its consolidated U.S. Subsidiaries that is
necessary for the origination, collection, management or
servicing of the Receivables will not be Year 2000 Compliant
on or before December 31, 1999. The Servicer will deliver
simultaneously with any quarterly or annual financial
statement or reports to be delivered under this Agreement, a
letter signed by an appropriate officer, to the effect that to
such officer's knowledge, after due inquiry, no material
events have occurred or problems exist with respect to the
Receivables System which would prevent or delay the Servicer's
plan to become Year 2000 Compliant or if any such material
events have occurred or problems exist.
SECTION 5. Amendment to Exhibit F of the Agreement. In
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connection with the amendments provided for by this Amendment, the attached List
of Special Obligors set forth on Exhibit F hereto shall supersede the Exhibit F
that is part of the Agreement, and from and after the date of this Amendment all
references to such Exhibit F shall refer to the Exhibit F attached to this
Amendment.
SECTION 6. Agreement in Full Force and Effect as Amended.
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Except as specifically amended or waived hereby, all of the terms and conditions
of the Agreement shall remain in full force and effect. All references to the
Agreement in any other document or instrument shall be deemed to mean such
Agreement as amended by this Amendment. This Amendment shall not constitute a
novation of the Agreement, but shall constitute an amendment thereof. The
parties hereto agree to be bound by the terms and obligations of the Agreement,
as amended by this Amendment, as though the terms and obligations of the
Agreement were set forth herein.
SECTION 7. Effectiveness. The amendments provided for by this
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Amendment shall become effective as of the date hereof, upon receipt by the
Administrative Agent of (i) counterparts of this Amendment, duly executed by
each of the parties hereto, (ii) an officer's certificate for each of the Seller
and the Servicer dated the date hereof in form and substance satisfactory to the
Administrative Agent, (iii) an opinion of counsel to the Seller and Servicer in
form and substance satisfactory to the Administrative Agent and (iv)
confirmation from S&P and Xxxxx'x that such Amendment would not result in a
downgrade of the rating of the Commercial Paper.
SECTION 8. Counterparts. This Amendment may be executed in any
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number of counterparts and by separate parties hereto on separate counterparts,
each of which when executed shall be deemed an original, but all such
counterparts taken together shall constitute one and the same instrument.
SECTION 9. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY
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LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to the Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
DELAWARE FUNDING CORPORATION
By: Xxxxxx Guaranty Trust Company of New
York, as attorney-in-fact for
Delaware Funding Corporation
By: /s/ Xxxxxx X. Xxxxx
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Authorized Signatory
Vice President
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Title:
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Administrative Agent
By: /s/ Xxxxxx X. Xxxxx
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Authorized Signatory
Vice President
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Title:
LEXMARK RECEIVABLES CORPORATION
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: President
LEXMARK INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice President and
Chief Financial Officer
EXHIBIT F
to
Amended and Restated
Receivables Purchase Agreement
List of Special Obligors
Obligor Concentration Factor
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All Government Obligors, in 3%
the aggregate
Compaq Computer Corporation1 6.25%
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1 If its unsecured short-term debt rating either (i) ceases to be rated "A-2" by
S&P or "P-2" by Xxxxx'x or (ii) is withdrawn by S&P or Xxxxx'x, Compaq Computer
Corporation shall no longer be a Special Obligor for purposes of this Agreement.
