Quarterly Report — Form 10-Q Filing Table of Contents
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AMENDMENT
AGREEMENT (this “Amendment”) dated as
of October 3, 2008 among Lexmark Receivables Corporation (the “Seller”), Gotham
Funding Corporation (“Gotham”), The Bank of
Tokyo-Mitsubishi UFJ, Ltd., New York Branch (“BTM”) (formerly known
as The Bank of Tokyo-Mitsubishi Ltd., New York Branch), as Program Agent, an
Investor Agent and a Bank, and Lexmark International, Inc. (“Lexmark”), as
Collection Agent and Originator.
Preliminary
Statements.
(1) The
Seller and the Originator are parties to that certain Purchase and Contribution
Agreement dated as of October 22, 2001, as amended, 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.
(2) The
Seller, CIESCO, LLC, Gotham, Citibank, N.A., BTM, Citicorp North America, Inc.
and Lexmark entered into 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 sold and may in the future
sell Receivable Interests to the Investors and/or the Banks thereunder prior to
the occurrence of the Facility Termination Date or the Commitment Termination
Date, as applicable.
(3) As of the
date hereof, but prior to the execution and effectiveness hereof, pursuant to
that certain Resignation and Appointment Agreement, dated as of the date hereof
(the “Resignation
Agreement”), Citicorp North America, Inc. resigned as the
“Program Agent” under the Agreement and Citicorp North America, Inc. and BTM,
each in their capacities as Investor Agents, appointed BTM as the successor
“Program Agent”.
(4) By
operation of the terms and provisions of the Agreement, as of the date hereof,
(i) the Facility Termination Date has occurred under the Agreement with
respect to CIESCO, LLC (in its capacity as an Investor) and the Commitment
Termination Date has occurred under the Agreement with respect to Citibank, N.A.
(in its capacity as a Bank), (ii) CIESCO, LLC ceased to be an Investor and
ceased to be a party under the Agreement and each of the other Transaction
Documents, (iii) Citibank, N.A. ceased to be a Bank and a Related Bank and
ceased to be a party under the Agreement and each of the other Transaction
Documents, (iv) Citicorp North America, Inc. ceased to be an Investor Agent
and ceased to be a party under the Agreement and each of the other Transaction
Documents, and (v) the Group relating to CIESCO, LLC ceased to be a “Group”
under the Agreement and each of the other Transaction Documents (except that, as
contemplated by the Agreement, the provisions of Sections 6.07, 10.01 and
11.04 of the Agreement remain in effect for the benefit of CIESCO, LLC,
Citibank, N.A., and Citicorp North America, Inc.)
(5) Each of
Gotham and BTM desire that the Facility Termination Date under the
Agreement with respect to Gotham (in its capacity as an Investor), and the
Commitment Termination Date under the Agreement with respect to BTM (in its
capacity as a Bank), each be extended until October 2, 2009.
(6) 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 to
Definitions. Upon
the effectiveness of this Amendment, Section 1.01 of the Agreement is
hereby amended as follows:
1.1 The
definition of “Alternate Base Rate” 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 The Bank of Tokyo-Mitsubishi UFJ, Ltd. in
New York, New York as its Prime Rate; or
(b) the
Federal Funds Rate most recently determined by BTM, plus
1.00%.
The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by The Bank of Tokyo-Mitsubishi UFJ, Ltd. or BTM in
connection with extensions of credit.
1.2 The
definition of “Applicable Margin” is amended by deleting the reference to
“1.00%” in clause (2) thereof and inserting in lieu thereof
“1.50%.”
1.3 The
definition of “Asset Purchase Agreement” is amended by deleting the words
“Citibank and” in each of clauses (a) and (b) thereof.
1.4 Clause (iii) of
the definition of “Assignee Rate” is amended by deleting the phrase “CIESCO and
Gotham” and replacing it with the phrase “the Investor in its
Group.”
1.5 The
definition of “Assignment and Acceptance” is amended by (i) adding the
designation “(i)” after the word “means” in the first line thereof and
(ii) adding the following phrase at the end thereof: “or
(ii) a Group Assignment.”
1.6 The
definition of “Bank Commitment” is amended by (i) deleting the text of
clause (a) thereof and inserting in lieu thereof “[Intentionally Omitted]”
and (ii) deleting the phrase “Citibank or” in the parenthetical in clause
(c) thereof.
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1.7 The
definition of “Banks” is amended by deleting the name “Citibank”
therein.
1.8 The
definition of “Commitment Termination Date” is amended by replacing the date
appearing in clause (a) thereof with the date “October 2,2009.”
1.9 The
definition of “Eurodollar Rate” is amended by deleting the words “principal
office of Citibank” and inserting in lieu thereof the words “principal office of
The Bank of Tokyo-Mitsubishi UFJ, Ltd.”
1.10 The
definition of “Facility Termination Date” is amended by replacing the date in
clause (a) thereof with the date “October 2, 2009.”
1.11 The
definition of “Federal Funds Rate” is 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 BTM from three federal
funds brokers of recognized
standing selected by it.
1.12 The first
sentence of the definition of “Investor Purchase Limit” is deleted and replaced
as follows:
“Investor Purchase
Limit” means (a) with respect to the Group which contains Gotham and
its Related Banks, $100,000,000, as such amount may be reduced or increased
pursuant to any Group Assignment
entered into by such Group and (b) with respect to any Additional Group,
the amount set forth in the Group Assignment pursuant to which such Group became
party to this Agreement, as such amount may
be reduced or increased pursuant to any further Group Assignment entered into by
such Group.
1.13 Clause (a) of
the definition of “Investor Rate” is deleted and replaced as
follows:
(a)
with
respect to any Investor other than Gotham, the rate set forth in the related
Group Assignment as such Investor’s “Investor Rate”;
3
1.14 The
definition of “Percentage” is amended by deleting the text of clause
(a) thereof and inserting in lieu thereof “[Intentionally
Omitted]”.
1.15 The
definition of “Purchase Limit” is amended by deleting the reference to
“$200,000,000” and inserting in lieu thereof “$100,000,000”.
1.16 The
definitions of “Eligible Assignee,”“Excluded Receivables,”“Group,”“Investor,”“Investor Agent,”“Investor Agent’s Account” and “Related Bank” in
Section 1.01 are each deleted and replaced by the respective definitions
set forth below in the appropriate alphabetical order:
“Eligible Assignee”
means, with respect to any Group, (i) the Investor Agent for such Group or
any of its Affiliates, (ii) any Person managed by such Investor Agent or
any of its Affiliates or (iii) any financial or other institution
acceptable to such Investor Agent.
“Excluded Receivables”
means the indebtedness of (i) KeyTronicEMS Co., (ii) 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, (iii) 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) and (iv) any Obligor of the managed
print services business of the Originator in connection with Lexmark Financial
Services, LLC (but only with respect to such Obligor’s indebtedness to the
Originator in connection with the managed print services business), in each case
resulting from the provision or sale of merchandise, insurance or services by
the Originator under a Contract.
“Group” means
(a) with respect to Gotham, its Investor Agent, its Related Banks and
Gotham, and (b) with respect to each other Investor, its Investor Agent,
its Related Banks and such Investor.
“Investor” means
Gotham or an Eligible Investor that shall become a party to this Agreement
pursuant to Section 11.03 and all other owners by assignment or otherwise
of a Receivable Interest originally purchased by Gotham or such Eligible
Investor and, to the extent of the undivided interests so purchased, shall
include any participants.
“Investor Agent” means
(a) with respect to Gotham and its Related Banks, BTM or any successor
investor agent designated by such parties, and (b) with respect to any
other Investor and its Related Banks, the Investor Agent named in the related
Group Assignment or any successor investor agent designated by such
parties.
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“Investor Agent’s
Account” means (a) with respect to Gotham and its Related Banks, the
special account (account number 310035147) of their Investor Agent maintained at
the office of BTM at 1251 Avenue of the Americas, New York, New York, or such
other account as such Investor Agent shall designate in writing to the Seller,
the Collection Agent and the Program Agent, and (b) with respect to any
other Investor and its Related Banks, the special account of their Investor
Agent maintained at the office of their Investor Agent identified in the related
Group Assignment, or such other account as such Investor Agent shall designate
in writing to the Seller, the Collection Agent and the Program
Agent.
“Related Bank” means
(a) with respect to Gotham, BTM, each Bank which has entered into an
Assignment and Acceptance with BTM, and each assignee (directly or indirectly)
of any such Bank, which assignee has entered into an Assignment and Acceptance,
and (b) with respect to each other Investor, each Eligible Related Bank
identified in the Group Assignment pursuant to which such Investor became a
party to this Agreement, each Bank which has entered into an Assignment and
Acceptance with each such Eligible Related Bank, and each assignee (directly or
indirectly) of any such Bank, which assignee has entered into an Assignment and
Acceptance.
1.17 The
following definitions are added to Section 1.01 in the appropriate
alphabetical order:
“Additional Group”
means each Eligible Investor, its Eligible Related Banks and its Investor Agent
that becomes a party to this Agreement by entering into a Group
Assignment.
“Eligible Investor”
means a receivables investment company which (i) in the ordinary course of
its business issues commercial paper or other securities to fund its acquisition
and maintenance of receivables, (ii) has a short-term debt rating of at
least A1 from S&P and P1 from Moody’s, (iii) has an office in the
United States and (iv) is approved by the Seller, such approval not to be
unreasonably withheld or delayed.
“Eligible Related
Bank” means a commercial bank which (i) has combined capital and
surplus of at least $250,000,000, (ii) has an office in the United States
and (iii) is approved by the Seller, such approval not to be unreasonably
withheld or delayed.
“Group Assignment”
means an assignment and acceptance agreement entered into by an Investor, its
Related Banks, its Investor Agent, an Eligible Investor, its Eligible Related
Banks, its Investor Agent and the Program Agent, pursuant to which such Eligible
Investor, Eligible Related Banks and Investor Agent may become parties to this
Agreement, in form and substance satisfactory to the parties thereto and the
Seller.
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SECTION
2. Other
Amendments. In
addition to the amendments set forth in Section 1 hereof, upon the
effectiveness of this Amendment, the Agreement is hereby amended as
follows:
2.1 The
reference to “the Program Agent” in clause (2) of the preliminary
statements of the Agreement is deleted and replaced with a reference to
“CNAI”.
2.2 Section 2.01(a)
of the Agreement is amended by (i) replacing the phrase “each of CIESCO and
Gotham” in the second line thereof with the phrase “each Investor” and
(ii) replacing the phrase “CIESCO or Gotham” in the third line thereof with
“such Investor”.
2.3 Section 2.02(d)
of the Agreement is amended by replacing the phrase “neither CIESCO nor Gotham”
in the first line thereof with the phrase “no Investor”.
2.4 Section 2.07
of the Agreement is amended by replacing the name “CIESCO” in the last line
thereof with the phrase “an Investor”.
2.5 Section 2.08(a)
of the Agreement is amended by deleting the name “CNAI,” in the first
line thereof.
2.6 Section 8.03
of the Agreement is deleted and replaced as follows:
SECTION 8.03. BTM and
Affiliates. BTM and any of its Affiliates may generally engage
in any kind of business with the Seller, the Collection Agent or any Obligor,
any of their respective Affiliates and any
Person who may do business with or own securities of the Seller, the Collection
Agent or any Obligor or any of their respective Affiliates, all as if BTM were
not the Program Agent and without any duty to
account therefor to the Investor Agents, the Investors or the
Banks.
2.7 The
following new subsection (e) is inserted at the end of
Section 11.03:
(e) An Investor, each of its Related Banks and the
Investor Agent for such Group may concurrently assign all or a portion of their
respective rights and obligations hereunder (including such Investor’s
Investor Purchase
Limit, each such Related Bank’s Bank Commitment and any Receivable Interest
owned by them) to an Eligible Investor, one or more Eligible Related Banks and
their designated Investor
Agent,
respectively, thereby adding an Additional Group to this Agreement; provided, however,
that:
(i)
the
parties to each such assignment shall execute and deliver to the Program Agent,
for its acceptance and recording in the Register, a Group Assignment, together
with a processing and recordation
fee of
$2,500;
6
(ii) the
amount of the Investor Purchase Limit being assigned pursuant to each such
assignment, which shall be equal to the aggregate Bank Commitments being
assigned
pursuant to such Group
Assignment, shall in no event be less than 20% of the Purchase Limit;
and
(iii) the
purchase price for such assignment shall be equal to the Capital of the portion
of the Receivable Interests assigned plus accrued and unpaid Yield and Fees
thereon and shall be paid in immediately available funds on the effective date
specified in such Group Assignment to the Investor Agent for the assignor
Investor and its Related Banks.
Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in such Group Assignment, (x) the Eligible Investor, Eligible
Related Banks and Investor Agent named therein shall be parties to this
Agreement and, to the extent that rights and obligations hereunder have been
assigned to them pursuant to such Group Assignment, have the rights and
obligations of an Investor, a Bank or an Investor Agent hereunder, as
applicable, and (y) the assignor Investor, Related Banks and Investor Agent
shall, to the extent that rights and obligations hereunder have been assigned by
them pursuant to such Group Assignment, relinquish such rights and be released
from such obligations under this Agreement (and, in the case of a Group
Assignment covering all or the remaining portion of the rights and obligations
of the members of a Group under this Agreement, such members of the assigning
Group shall cease to be parties hereto).
2.8 Section 11.04(c)
of the Agreement is deleted and replaced as follows:
(c) The Seller
also shall pay on demand all other costs, expenses and taxes (excluding the cost
of auditing an Investor’s books by certified public accountants, the cost of
rating an Investor’s commercial
paper by independent financial rating agencies and income taxes) incurred by an
Investor or any partner or stockholder of an Investor (“Other Costs”),
including the taxes (excluding income taxes) resulting from
an Investor’s operations, and the reasonable fees and out-of-pocket expenses of
counsel for any director, officer or member of an Investor with respect to
advising as to rights and remedies under this Agreement,
the enforcement of this Agreement or advising as to matters relating to an
Investor’s operations; provided that the
Seller and any other Persons who from time to time sell receivables or interests
therein to an
Investor (“Other
Sellers”) each shall be liable for such Other Costs ratably in accordance
with the usage under their respective facilities; and provided further that if such
Other Costs are attributable to the Seller
and not attributable to any Other Seller, the Seller shall be solely liable for
such Other Costs.
2.9
Each of
the references to “Percentage Interest” set forth on the signature pages of the
Agreement is amended by (i) with respect to the Percentage Interest for
Citibank, N.A.,
7
reducing
the Percentage Interest to 0% and (ii) with respect to the Percentage
Interest for The Bank of Tokyo-Mitsubishi UFJ, Ltd., increasing the Percentage
Interest to 100%.
SECTION
3. Effectiveness. This
Amendment shall become effective at such time that (i) executed
counterparts of this Amendment have been delivered by each party hereto to each
other party hereto, (ii) the Program Agent shall have received duly
executed copies of an amendment to the Originator Purchase Agreement in form and
substance satisfactory to the Program Agent and dated as of the date hereof,
(iii) the Program Agent shall have received duly executed copies of an
amendment to the Fee Agreement in form and substance satisfactory to the Program
Agent and dated as of the date hereof (the “Fee Agreement
Amendment”), (iv) the Program Agent shall have received
payment of the Upfront Fee (as defined in the Fee Agreement Amendment), and
(v) the Resignation Agreement shall have become effective.
SECTION
4. 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);
provided, that
for purposes of the foregoing, Section 4.01(e) of the Agreement is amended
by replacing the dates “December 31, 2003” in the second line thereof and
“September 30, 2005” in the seventh line and the penultimate line thereof, in
each case with the date “December 31, 2007.” The Collection Agent
makes each of the representations and warranties contained in Section 4.02
of the Agreement (after giving effect to this Amendment); provided, that for
purposes of the foregoing, Section 4.02(e) of the Agreement is amended
by replacing the dates “December 31, 2003” in the second line thereof
and “September 30, 2005” in the seventh line and the penultimate line thereof,
in each case with the date “December 31, 2007.”
SECTION
5. Confirmation of
Agreement. Each
reference in the Agreement to “this Agreement” or “the Agreement” shall mean the
Agreement as amended by this Amendment, 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
6. GOVERNING
LAW. THIS
AMENDMENT 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
7. Execution in
Counterparts. This
Amendment 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 by facsimile or by electronic
mail in portable document format (.pdf) shall be effective as
delivery of a manually executed counterpart of this Amendment.
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IN
WITNESS WHEREOF, the parties have caused this Amendment 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
Title:
Assistant Treasurer
THE BANK
OF TOKYO-MITSUBISHI UFJ, LTD.,
NEW YORK
BRANCH,
as
Program Agent
By: /s/ Aditya
Reddy
Title:
Aditya Reddy
VP
and Manager
THE BANK
OF TOKYO-MITSUBISHI UFJ, LTD.,
NEW YORK
BRANCH
as an
Investor Agent and a Bank
By: /s/ Kenneth
Egusa
Title:
Kenneth K. Egusa
Authorized
Signatory
GOTHAM
FUNDING CORPORATION
By: /s/ Louise E.
Colby
Title:
Louise E. Colby
Vice
President
LEXMARK
INTERNATIONAL, INC.
By: /s/ Richard A.
Pelini
Title: VP
& Treasurer
Dates Referenced Herein and Documents Incorporated by Reference
