AMENDMENT NO. 2 Dated as of May 23, 2007 to CREDIT AGREEMENT Dated as of January 20, 2005
Exhibit
10.1
EXECUTION
COPY
AMENDMENT
NO. 2
Dated
as
of May 23, 2007
to
Dated
as
of January 20, 2005
THIS
AMENDMENT NO. 2 (“Amendment”)
is
made as of May 23, 2007 (the “Effective
Date”)
by and
among Lexmark International, Inc., a Delaware corporation (the “Borrower”),
the
financial institutions listed on the signature pages hereof and JPMorgan Chase
Bank, National Association, as Administrative Agent (the “Administrative
Agent”),
under
that certain Credit Agreement dated as of January 20, 2005 by and among the
Borrower, the Lenders and the Administrative Agent (as amended, supplemented
or
otherwise modified from time to time, the “Credit
Agreement”).
Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings given to them in the Credit Agreement.
WHEREAS,
the Borrower has requested that certain modifications be made to the Credit
Agreement;
WHEREAS,
the Borrower, the Lenders party hereto and the Administrative Agent have agreed
to amend the Credit Agreement on the terms and conditions set forth
herein;
NOW,
THEREFORE, in consideration of the premises set forth above, the terms and
conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Borrower, the
Lenders party hereto and the Administrative Agent hereby agree to the following
amendments to the Credit Agreement.
1. Amendments
to Credit Agreement.
Effective as of the Effective Date but subject to the satisfaction of the
conditions precedent set forth in Section
2
below,
the Credit Agreement is hereby amended as follows:
(a) Section
6.01(d)
of the
Credit Agreement is hereby amended and restated in its entirety as
follows:
(d)
Guarantees by the Borrower of Indebtedness or other obligations of any
Subsidiary and by any Subsidiary of Indebtedness or other obligations of the
Borrower or any other Subsidiary;
(b) Section
6.04(a)
of the
Credit Agreement is hereby amended and restated in its entirety as
follows:
(a)
Permitted Acquisitions and Guarantees permitted under Section 6.01
and
2. Conditions
of Effectiveness.
The
effectiveness of this Amendment is subject to the conditions precedent that
the
Administrative Agent shall have received counterparts of this Amendment duly
executed by the Borrower, the Required Lenders and the Administrative
Agent.
3. Representations
and Warranties of the Borrower.
The
Borrower hereby represents and warrants as follows:
(a) This
Amendment and the Credit Agreement as amended hereby constitute legal, valid
and
binding obligations of the Borrower and are enforceable against the Borrower
in
accordance with their terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally
and subject to general principles of equity, regardless of whether considered
in
a proceeding in equity or at law.
(b) As
of the
date hereof and giving effect to the terms of this Amendment, (i) no Default
shall have occurred and be continuing and (ii) the representations and
warranties of the Borrower set forth in the Credit Agreement, as amended hereby,
are true and correct as of the date hereof (other than the representations
and
warranties contained in Sections 3.04(b), 3.06(a) and those that expressly
relate to an earlier specified date).
4. Reference
to and Effect on the Credit Agreement.
(a) Upon
the
effectiveness hereof, each reference to the Credit Agreement in the Credit
Agreement or any other Loan Document shall mean and be a reference to the Credit
Agreement as amended hereby.
(b) Except
as
specifically amended above, the Credit Agreement and all other documents,
instruments and agreements executed and/or delivered in connection therewith
shall remain in full force and effect and are hereby ratified and
confirmed.
(c) The
execution, delivery and effectiveness of this Amendment shall not operate as
a
waiver of any right, power or remedy of the Administrative Agent or the Lenders,
nor constitute a waiver of any provision of the Credit Agreement or any other
documents, instruments and agreements executed and/or delivered in connection
therewith.
5. Governing
Law.
This
Amendment shall be construed in accordance with and governed by the law of
the
State of New York.
6. Headings.
Section
headings in this Amendment are included herein for convenience of reference
only
and shall not constitute a part of this Amendment for any other
purpose.
2
7. Counterparts.
This
Amendment may be executed by one or more of the parties hereto on any number
of
separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
[Signature
Pages Follow]
3
IN
WITNESS WHEREOF, this Amendment has been duly executed as of the day and year
first above written.
LEXMARK
INTERNATIONAL, INC.,
as
the
Borrower
By: /s/
▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇▇
Title: VP
&
Treasurer
By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇
▇.
▇▇▇▇▇
Title: Assistant
Treasurer
JPMORGAN
CHASE BANK,
NATIONAL
ASSOCIATION,
individually
as a Lender and as Administrative Agent
By: /s/
▇▇▇▇ ▇. Story
Name: ▇▇▇▇
▇.
Story
Title: Associate
BANK
OF
AMERICA, N.A. (successor by merger to Fleet National Bank),
individually
as a Lender and as Co-Syndication Agent
By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇
Title: Managing
Director
Signature
Page to Amendment No. 2 to
Credit
Agreement dated as of January 20, 2005
Lexmark
International, Inc.
CITIBANK,
N.A.,
individually
as a Lender and as Co-Syndication Agent
By: /s/
▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇
Title: Director
KEYBANK
NATIONAL ASSOCIATION,
individually
as a Lender and as Co-Documentation Agent
By: /s/
▇▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇
▇. ▇'▇▇▇▇▇
Title: Vice
President
SUNTRUST
BANK,
individually
as a Lender and as Co-Documentation Agent
By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇
▇.
▇▇▇▇
Title: Managing
Director
THE
BANK
OF NEW YORK.,
individually
as a Lender
By: /s/
▇.
▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇.
▇▇▇▇▇
Title: Managing
Director
BANK
OF
NOVA SCOTIA,
individually
as a Lender
By: /s/
▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇▇▇
Title: Director
Signature
Page to Amendment No. 2 to
Credit
Agreement dated as of January 20, 2005
Lexmark
International, Inc.