Exhibit 10.1
Amendment to Receivables Purchase Agreement
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AMENDMENT AGREEMENT (this "Amendment Agreement") dated as of October 17,
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2002 among Lexmark Receivables Corporation (the "Seller"), CIESCO L.P.
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("CIESCO"), Citibank, N.A. ("Citibank"), Citicorp North America, Inc.
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("CNAI"), as Agent, and Lexmark International, Inc. ("Lexmark"), as Collection
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Agent and Originator.
Preliminary Statements. (1) The Seller, CIESCO, Citibank, CNAI and Lexmark
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are parties to a Receivables Purchase Agreement dated as of October 22, 2001
(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. CIESCO may, in its 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,
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the Agreement is hereby amended as follows:
(a) The following new definition is added to Section 1.01 of the Agreement,
in proper alphabetical order:
"Amendment Date" means October 17, 2002.
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(b) The definition of "Applicable Margin" in Section 1.01 of the Agreement
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is amended in its entirety to read as follows:
"Applicable Margin" means, at any time, a rate per annum equal to the
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sum of (x) the "Applicable Margin" as defined in the Credit Facility
plus (y)0.25%.
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(c) The definition of "Consolidated EBITDA" in Section 1.01 of the
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Agreement is amended in its entirety to read as follows:
"Consolidated EBITDA" has the meaning set forth in such definition in
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the Credit Facility as in effect on the Amendment Date and any
additional defined terms used in such definition shall have their
meanings as in effect on the Amendment Date.
(d) The definition of "Consolidated Interest Expense" in Section 1.01 of
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the Agreement is amended in its entirety to read as follows:
"Consolidated Interest Expense" has the meaning set forth in the
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definition of "Consolidated Total Interest Expense" in the Credit
Facility as in effect on the Amendment Date and any additional defined
terms used in such definition shall have their meanings as in effect
on the Amendment Date.
(e) The definition of "Consolidated Total Debt" in Section 1.01 of the
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Agreement is amended in its entirety to read as follows:
"Consolidated Total Debt" has the meaning set forth in the definition
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of "Consolidated Total Funded Debt" in the Credit Facility as in
effect on the Amendment Date and any additional defined terms used in
such definition shall have their meanings as in effect on the
Amendment Date.
(f) The definition of "Credit Facility" in Section 1.01 of the Agreement is
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amended in its entirety to read as follows:
"Credit Facility" means the Multicurrency Revolving Credit Agreement,
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dated as of May 29, 2002, among the Originator, as borrower, the
lenders party thereto, Fleet National Bank, as administrative agent
with Fleet Securities, Inc. having acted as arranger, JPMorgan Chase
Bank and Citicorp USA, Inc. as co-syndication agents and Key Corporate
Capital Inc. and Suntrust Bank as co-documentation agents, 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.
(g) The definition of "Excluded Receivables" in Section 1.01 of the
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Agreement is amended in its entirety to read as follows:
"Excluded Receivables" means the indebtedness of (i) KeyTronicEMS Co.,
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(ii) Compaq Computer Corporation or its successors and assigns, (iii)
any Obligor located outside of the fifty states of the United States
and the District of Columbia, but solely to the extent such
indebtedness arises from goods having a final destination or services
rendered exclusively outside of the fifty states of the United States
and the District of Columbia, and (iv) any Obligor of the managed
print services business of the Originator (formerly known as Lexmark
Solution Services) (but only with respect to such Obligor's
indebtedness to the Lexmark Solution Services business), in each case
resulting from the provision or sale of merchandise, insurance or
services by the Originator under a Contract.
(h) The phrase "or return capital" shall be inserted after the phrase "and
pay cash dividends" in the seventh line of Section 5.01(p) of the Agreement.
(i) Section 7.01(e) of the Agreement is amended as follows:
(i) The amount "$25,000,000" is amended to read "$50,000,000."
(ii) The parenthetical immediately following the above-mentioned
amount is deleted in its entirety.
(j) Schedule II of the Agreement is replaced with Exhibit A attached
hereto.
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.
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). 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
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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 ith 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 RECEIVABLES CORPORATION
By: /s/ Kurt Braun
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Title: Treasurer
CIESCO L.P.
By: Citicorp North America, Inc.,
as Attorney-in-Fact
By: /s/ Richard C. Simons
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Title: Managing Director
Global Securitized Markets
388 Greenwich St. - 19th Fl.
(212) 816-0778
CITICORP NORTH AMERICA, INC.,
as Agent
By: /s/ Richard C. Simons
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Title: Managing Director
Global Securitized Markets
388 Greenwich St. - 19th Fl.
(212) 816-0778
CITIBANK, N.A.
By: /s/ Richard C. Simons
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Title: Managing Director
Global Securitized Markets
388 Greenwich St. - 19th Fl.
(212) 816-0778
LEXMARK INTERNATIONAL, INC.
By: /s/ Kurt Braun
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Title: Treasurer