Quarterly Report — Form 10-Q Filing Table of Contents
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Amendment No. 6 to Purchase
and Contribution Agreement
AMENDMENT
AGREEMENT (this “Amendment Agreement”)
dated as of October 3, 2008 between Lexmark International, Inc. (the “Seller”) and Lexmark
Receivables Corporation (the “Purchaser”).
Preliminary
Statements.
(1) The
Seller and Purchaser are parties to a Purchase and Contribution Agreement dated
as of October 22, 2001 (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 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, the Agreement is hereby amended
as follows:
1.1 the
definition of “Alternate Base Rate”
in Section 1.01 is hereby deleted and replaced as follows:
“Alternate Base Rate”
means, on any date, a fluctuating rate of interest per annum equal to the higher
of:
(a) the rate
of interest most recently announced by BTMU in New York, New York as its Prime
Rate; or
(b) the
Federal Funds Rate most recently determined by BTMUNY, plus
1.00%.
The
Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by BTMU or BTMUNY in connection with extensions of
credit.
1.2 the
definition of “Federal
Funds Rate” in Section 1.01 is hereby deleted and replaced as
follows:
“Federal Funds Rate”
means, for any period, a fluctuating interest rate per annum equal (for each day
during such period) to:
(a) the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York; or
(b) if such
rate is not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by BTMUNY from three
federal
funds brokers of recognized standing selected by it.
1.3 the
definition of “Sale
Agreement” in Section 1.01 is hereby deleted and replaced as
follows:
“Sale Agreement” means
that certain Amended and Restated Receivables Purchase Agreement, dated as of
October 8, 2004, among the Purchaser, as seller, CIESCO, LLC and Gotham
Funding Corporation, as investors, Citibank, N.A. and The Bank of
Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as banks, Citicorp North America,
Inc. and The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch as investor
agents, The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch (successor
program agent to Citicorp North America, Inc.), as program agent, and the
Seller, as collection agent and originator, as amended or restated from time to
time.
1.4 the
following definitions are added to Section 1.01 in the appropriate
alphabetical order:
“BTMU” means The Bank
of Tokyo-Mitsubishi UFJ, Ltd.
“BTMUNY” means The
Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch.
1.5 the
definition of “Citibank” in
Section 1.01 is deleted.
1.6 the
address and facsimile and telephone numbers for Purchaser appearing on the
signature page thereto is hereby deleted and replaced with the
following:
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 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 representations and
warranties contained in Section 4.01 of the Agreement (after giving effect
to this Amendment Agreement); provided, that for
purposes of the foregoing, Section 4.01(f) of the Agreement is amended by
replacing the dates “December 31, 2000” in the first through second line
thereof and “September 30, 2005” in the penultimate line thereof, in each case
with the date “December 31, 2007.”
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 or by electronic mail in portable document
format (.pdf) shall be effective as delivery of a manually executed counterpart
of this Amendment Agreement.
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of page intentionally blank]
3
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.
