Exhibit 10.1
Amendment No. 2 to Receivables Purchase Agreement
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AMENDMENT AGREEMENT (this "Amendment Agreement") dated as of October 20,
2003 among Lexmark Receivables Corporation (the "Seller"). CIESCO, LLC (as
successor to CIESCO L.P.) ("CIESCO"), Citibank, N. A. ("Citibank"). Citicorp
North America, Inc. ("CNAI"), as Agent, and Lexmark International, Inc.
("Lexmark"), as Collection 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 (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 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:
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 18,2004".
1.2 The definition of "Purchase Limit" in Section 1.01 of the Agreement is
amended by replacing the amount "$225,000,000" with the amount "$200,000,000".
1.3 Section 10.06 of the Agreement is amended by adding the following new
subsection (c) thereto:
(c) 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 1.6011-4(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.
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 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 RECEIVABLES CORPORATION
By: /s/ Bruce J. Frost
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Title: Assistant Treasurer
CIESCO, LLC
By: Citicorp North America, Inc.,
as Attorney-in-Fact
By: /s/Junette M. Earl
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Title: Vice President
CITICORP NORTH AMERICA, INC.,
as Agent
By: /s/ Junette M. Earl
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Title: Vice President
CITIBANK, N.A.
By: /s/Junette M. Earl
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Title: Vice President
LEXMARK INTERNATIONAL, INC.
By: /s/Richard A. Pelini
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Title: Vice President & Treasurer