AMENDMENT NO. 1 Dated as of December 22, 2006 to CREDIT AGREEMENT Dated as of January 20, 2005
Exhibit
10.1
EXECUTION
COPY
AMENDMENT
NO. 1
Dated
as
of December 22, 2006
to
Dated
as
of January 20, 2005
THIS
AMENDMENT NO. 1 (“Amendment”) is made as of December 22, 2006 (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 satisfation of the
conditions precedent set forth in Section 2 below, the Credit Agreement
is hereby amended as follows:
(a) The
definition of Consolidated Interest Expense appearing in Article I of the Credit
Agreement is hereby amended to insert “and without duplication” immediately
after the reference to “with reference to any period” appearing
therein.
(b) The
definition of Interest Period appearing in Article I of the Credit Agreement
is
hereby amended to insert “on the date that is seven days or fourteen days
thereafter or” immediately before the reference to “on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter”.
(c) The
definition of Permitted Receivables Financing appearing in Article I of the
Credit Agreement is hereby amended to delete the reference to “: (a) such
program is
(d) Section
6.02(h) is hereby amended to insert “arise or” immediately before the reference
to “may be deemed to arise” appearing therein.
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/
Xxxx Xxxxxx
Name:
Xxxx Xxxxxx
Title:
VP
& Treasurer
By:
/s/ Xxxxx X.
Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
Assistant Treasurer
JPMORGAN
CHASE BANK,
NATIONAL
ASSOCIATION,
individually
as a Lender and as Administrative Agent
By:
/s/ Xxxxx X.
Xxxxxxxxx
Title:
Vice President
BANK
OF
AMERICA, N.A. (successor by merger to Fleet National Bank),
individually
as a Lender and as Co-Syndication Agent
By:
/s/ Xxxxx X. XxxXxxxxxx
Name:
Xxxxx X. XxxXxxxxxx
Title:
Managing Director
Signature
Page to Amendment No. 1 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/ Xxxxx X.
Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
Managing Director
KEYBANK
NATIONAL ASSOCIATION,
individually
as a Lender and as Co-Documentation Agent
By: /s/
X.X.
Xxxxxx
Name:
X.X. Xxxxxx
Title:
Senior Vice President
SUNTRUST
BANK,
individually
as a Lender and as Co-Documentation Agent
By:
/s/ Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Managing Director
THE
BANK
OF NEW YORK,
individually
as a Lender
By:
/s/ Xxxxxxx X. XxXxxxxxx
Name:
Xxxxxxx X. XxXxxxxxx
Title:
Vice President
Signature
Page to Amendment No. 1 to
Credit
Agreement dated as of January 20, 2005
Lexmark
International, Inc.
THE
BANK
OF NOVA SCOTIA,
individually
as a Lender
By:
/s/ Xxxx Xxxxxxx
Name:
Xxxx Xxxxxxx
Title:
Director
Signature
Page to Amendment No. 1 to
Credit
Agreement dated as of January 20, 2005
Lexmark
International, Inc.
