Lexmark International, Inc., 3Q 2006 Form 10-Q, Exhibit 10.1


    

      Exhibit
        10.1

      


      


      Amendment
        No. 2 to Receivables Purchase Agreement

      


      AMENDMENT
        AGREEMENT (this “Amendment
        Agreement”)
        dated
        as of October 6, 2006 among Lexmark Receivables Corporation (the
“Seller”),
        CIESCO, LLC (“CIESCO”),
        Gotham Funding Corporation (“Gotham”),
        Citibank, N.A. (“Citibank”),
        The
        Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch (“BTM”)
        (formerly known as The Bank of Tokyo-Mitsubishi Ltd., New York Branch), Citicorp
        North America, Inc. (“CNAI”),
        as
        Program Agent, CNAI and BTM, as Investor Agents, and Lexmark International,
        Inc.
        (“Lexmark”),
        as
        Collection Agent and Originator.

      


      Preliminary
        Statements.
        (1) The Seller, CIESCO, Gotham, Citibank, BTM, CNAI and Lexmark are parties
        to 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 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 has sold, and may continue to sell, Receivable
        Interests in the Receivables. CIESCO and Gotham may, in their sole discretion,
        purchase such Receivable Interests, and the Banks are prepared to purchase
        such
        Receivable Interests, in each case on the terms set forth in the
        Agreement.

      


      (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, the Agreement is hereby amended
        as follows:

      


      1.1  The
        definition of “Applicable Margin” in Section 1.01 of the Agreement is
        restated in its entirety to read as follows: “Applicable
        Margin”
means,
        at any time, a rate per annum equal to the sum of (x) the rate appearing
        under the caption “Eurocurrency Spread” for the then applicable Index Debt
        Rating in the definition of “Applicable Rate” in the Credit Facility
plus
        (y) 0.25%.

      


      1.2  The
        definition of “BTM” in Section 1.01 of the Agreement is restated in its
        entirety to read as follows: “BTM”
means
        The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, a Japanese banking
        corporation acting through its New York Branch.

      


      



      
        
          
            


          

          
          

        

        
          
          

          
            

          

        

        
          
          

          
          

        

      

      1.3  
        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 5, 2007”.

      


      1.4  The
        definitions of “Consolidated EBITDA” and “Consolidated Interest Expense” in
        Section 1.01 of the Agreement are each amended by replacing each occurrence
        therein of the phrase “the date hereof” with the phrase “the Second RPA
        Amendment Effective Date”.

      


      1.5  The
        definition of “Consolidated Leverage Ratio” in Section 1.01 of the
        Agreement is amended by deleting the term “Consolidated Total Debt” therein and
        replacing it with the term “Consolidated Total Indebtedness”.

      


      1.6  The
        definition of “Consolidated Total Debt” in Section 1.01 of the Agreement is
        deleted in its entirety.

      


      1.7  The
        definition of “Credit Facility” in Section 1.01 of the Agreement is
        restated in its entirety to read as follows: “Credit
        Facility”
means
        the Credit Agreement dated as of January 20, 2005 among the Originator as
        borrower, the lenders party thereto, JPMorgan Chase Bank, N.A., as
        Administrative Agent, Fleet National Bank and Citibank, N.A. as Co-Syndication
        Agents, KeyBank National Association and Suntrust Bank as Co-Documentation
        Agents and J.P. Morgan Securities Inc., as Sole Bookrunner and Sole Lead
        Arranger, 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. 

      


      1.8  For
        the
        avoidance of doubt, the parties hereto acknowledge that the reference to
        “insurance” in clause (iii) of the definition of “Related Security” in
        Section 1.01 is intended to include (without limitation) the Insurance
        Agreement with respect to any Receivable that is an Insured
        Receivable.

      


      1.9  The
        following new definitions are added to Section 1.01 of the Agreement in
        proper alphabetical order:

      


      “Consolidated
        Total Indebtedness”
has
        the
        meaning set forth in such definition in the Credit Facility as in effect
        on the
        Second RPA Amendment Effective Date and any additional defined terms used
        in
        such definition shall have their meanings as in effect on the Second RPA
        Amendment Effective Date.

      


      “Insurance
        Agreement”
means
        a
        credit insurance policy naming the Seller as the insured that insures payment
        of
        Receivables (within certain credit limits) due from certain specified
        Obligors.

      


      “Insurance
        Provider”
means,
        with respect to an Insurance Agreement, the insurance company providing
        insurance thereunder.


      “Insured
        Obligor”
means
        each Obligor whose Receivables are insured pursuant to an Insurance
        Agreement.

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      “Insured
        Receivable”
means
        a
        Receivable due from an Insured Obligor. 

      


      “Insured
        Receivable Default”
means,
        with respect to an Insured Receivable, an event (such as non-payment of such
        Receivable or bankruptcy of the Obligor thereon) which entitles the Seller
        to
        submit a claim for loss under the Insurance Agreement.

      


      “Second
        RPA Amendment Effective Date”
means
        October 6, 2006.

      


      1.10  Section 5.01(d)
        is amended to add the following proviso at the end thereof: “; provided,
        however,
        that
        following the occurrence of an Insured Receivable Default, the Seller may
        assign
        the applicable Insured Receivables to the applicable Insurance Provider pursuant
        to and in accordance with the terms of the applicable Insurance Agreement;
        provided further
        that
        (i) the Seller shall instruct the Insurance Provider to pay any amounts
        payable under the Insurance Agreement with respect to the Insured Receivables
        to
        a Lock-Box Account, (ii) the Seller or Collection Agent shall notify the
        Program Agent of any such assignment and the amount expected to be paid by
        the
        Insurance Provider in connection therewith, (iii) upon any such permitted
        assignment of Insured Receivables pursuant to the foregoing proviso, the
        security interest of the Program Agent therein shall be automatically released
        and (iv) the Seller shall instruct the Insurance Provider that following
        payment by the Insurance Provider to the Seller with respect to any Insured
        Receivables the Insurance Provider shall direct the applicable Insured Obligor
        to pay the amounts due on such Insured Receivables directly to the Insurance
        Provider.”

      


      1.11  A
        new
        Section 5.01(v) is added at the end of Section 5.01 reading as
        follows:

      


      (v)
        Insurance
        Agreement.
        All
        premiums for any Insurance Agreement will be paid by the Seller and will
        be paid
        from the Seller’s own funds.

      


      1.12  Section 6.02(a)
        is amended by adding the following sentence at the end thereof: “The Collection
        Agent shall also take such actions and provide such notices as are required
        pursuant to any Insurance Agreement in order to obtain payment thereunder
        with
        respect to any Insured Receivables as to which an Insured Receivable Default
        has
        occurred.”

      


      1.13  Section 7.01(e)
        of the Agreement is amended by replacing the amount “$50,000,000" appearing in
        the third line thereof with the amount “$100,000,000" and deleting the
        parenthetical appearing in the third to fifth lines thereof.

      


      1.14  Section 7.01(m)
        of the Agreement is amended by deleting the ratio “3.5:1.00” in the first line
        thereof and replacing with the following ratio “3.0:1.0.”

       

      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 each other party hereto.

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      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). 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 “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 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           

      Title:
        Assistant Treasurer

      
 

      CIESCO,
        LLC

      


      By:  Citicorp
        North America, Inc.,

      as
        Attorney-in-Fact

      


                                      

       

                                      By:
        /s/
        Junette M. Earl        

      Title:
        Vice President

      
 

      CITICORP
        NORTH AMERICA, INC.,

      as
        Program Agent and as an Investor Agent

      


      


      By:  
        /s/
        Junette M. Earl        

      Title:
        Vice President

      


      


       

      CITIBANK,
        N.A.

      


      


      By:
        /s/
        Junette M. Earl        

      Title:
        Vice President


      


       

      THE
        BANK
        OF TOKYO-MITSUBISHI UFJ, LTD.,

      NEW
        YORK
        BRANCH,

      as
        a
        Bank

       

       

      By:  
        /s/ Cosmas Bonaparte          

      Title:
        Cosmas Bonaparte 

      Authorized
        Signatory

       


      
        
          
            


          

          
          

        

        
          
          

          
            

          

        

        
          
          

          
          

        

      



      THE
        BANK
        OF TOKYO-MITSUBISHI UFJ, LTD., 

      NEW
        YORK
        BRANCH,

      as
        an
        Investor Agent

      


      


      By:  
        /s/
        Aditya Reddy        

      Title:
        Aditya Reddy

      VP

       

       

      GOTHAM
        FUNDING CORPORATION

      


      


      By:
        /s/
        R.
        Douglas Donaldson     

      Title:
        Treasurer

       

      


      


      LEXMARK
        INTERNATIONAL, INC.

      


      


      By:
        /s/
        Richard A. Pelini        

      Title:
        VP
& Treasurer