Exhibit 10.3
THIRD AMENDMENT
THIRD AMENDMENT, dated as of October 15, 2001 (this
"Amendment"), to the Credit Agreement, dated as of January 27, 1998 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among LEXMARK INTERNATIONAL, INC., a Delaware corporation (as successor by
merger with Lexmark International Group, Inc., the "Borrower"), the several
banks and other financial institutions from time to time parties thereto (the
"Lenders"), FLEET NATIONAL BANK, as documentation agent for the Lenders (in such
capacity, the "Documentation Agent"), XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as syndication agent for the Lenders (in such capacity, the "Syndication
Agent"), and THE CHASE MANHATTAN BANK, as administrative agent for the Lenders
(in such capacity, the "Administrative Agent").
W I T N E S S E T H:
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WHEREAS, pursuant to the Credit Agreement, the Lenders have
agreed to make certain loans and other extensions of credit to the Borrower; and
WHEREAS, the Borrower has requested, and, upon this Amendment
becoming effective, the Lenders have agreed, that certain provisions of the
Credit Agreement be amended in the manner provided for in this Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Terms defined in the Credit Agreement and
used herein shall, unless otherwise indicated,have the meanings given to them in
the Credit Agreement.
2. Amendment to Section 1.01. Section 1.01 of the Credit
Agreement is hereby amended by deleting the definition of "Permitted Receivables
Financing" contained therein and substituting in lieu thereof the following new
definition:
"`Permitted Receivables Financing' means any
customary program for financing based solely on the security interests
of accounts receivable (and the proceeds thereof and related
agreements and security customary for accounts receivable financings)
of the Parent and/or its Subsidiaries and which involves the transfer
without recourse (other than customary limited recourse) of such
accounts receivable to a Permitted Receivables Vehicle and transfers
of interests in such accounts receivable to the parties providing such
financing, so long as (a) such program is intended by the parties
thereto to be treated (whether or not such treatment is ultimately
disallowed) as an "off balance sheet" transaction, (b) the aggregate
outstanding amount of accounts receivable transferred by the Parent
and its Subsidiaries (other than a Permitted Receivables Vehicle) to
all Permitted Receivables Vehicles pursuant to all such programs
shall not exceed $550,000,000 as reported as at the end of each
calendar month and (c) all cash advances to Permitted Receivables
Vehicles pursuant to all such programs from the parties providing such
financing shall not exceed $250,000,000 at any one time."
3. Amendment to Section 6.09. Section 6.09 of the Credit
Agreement is hereby amended by (a) deleting the word "and" in the twenty-seventh
line and substituting in lieu thereof a comma and (b) adding at the end thereof
and immediately prior to the period the following: "and (ix) the foregoing shall
not apply to any prohibitions, restrictions and conditions contained in the
documentation governing a Permitted Receivables Financing."
4. Conditions to Effectiveness. The amendments provided for
herein shall become effective upon the receipt by the Administrative Agent of
counterparts of this Amendment duly executed and delivered by the Borrower and
the Required Lenders. The execution and delivery of this Amendment by any Lender
shall be binding upon each of its successors and assigns (including assignees of
its Commitments and Loans in whole or in part prior to effectiveness hereof) and
binding in respect of all of its Commitments and Loans, including any acquired
subsequent to its execution and delivery hereof and prior to the effectiveness
hereof.
5. Representations and Warranties. The Borrower, as of the
date hereof and after giving effect to the amendments contained herein, hereby
confirms, reaffirms and restates that each of the representations and warranties
made by it in or pursuant to Article III of the Credit Agreement is true and
correct on and as of the date hereof as if made on and as of the date hereof,
except to the extent any such representation and warranty specifically relates
to an earlier date, in which case such representation and warranty shall have
been true and correct as of such earlier date; provided, that each reference to
the Credit Agreement therein shall be deemed to be a reference to the Credit
Agreement after giving effect to this Amendment.
6. Payment of Expenses. The Borrower agrees to pay or
reimburse the Administrative Agent for all of its out-of-pocket costs and
expenses incurred in connection with the Amendment, any other documents prepared
in connection herewith and the transactions contemplated hereby, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
7. Reference to and Effect on the Credit Agreement; Limited
Effect. On and after the date hereof and the satisfaction of the conditions
contained in this Amendment, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
Credit Agreement shall mean and be a reference to the Credit Agreement as
amended hereby. The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender under the Credit Agreement, nor constitute
a waiver of any provisions of the Credit Agreement. Except as expressly amended
herein, all of the provisions and covenants of the Credit Agreement are and
shall continue to remain in full force and effect in accordance with the terms
thereof and are hereby in all respects ratified and confirmed.
8. Counterparts. This Amendment may be executed by one or more
of the parties hereto in any number of separate counterparts (which may include
counterparts delivered by facsimile transmission) and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. Any
executed counterpart delivered by facsimile transmission shall be effective as
for all purposes hereof.
9. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
LEXMARK INTERNATIONAL, INC.
By: /s/Xxxx Xxxxx
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Title: Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By: /s/Xxxx Xxxxxx
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Title: Vice President
BANK OF AMERICA, N.A.
By: /s/Xxxxx X. XxXxxxx
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Title: Managing Director
THE BANK OF NEW YORK
By: /s/Xxxxxxxx X.X. Xxxxxxx
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Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:
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Name:
Title:
BANK ONE, INDIANA N.A.
By:
-------------------------------
Name:
Title:
BARCLAYS BANK, PLC
By: /s/Xxxx Xxxxxxxx
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Title: Director
CITIBANK
By: /s/Xxxxxx X. Van
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Title: Managing Director
DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By: /s/Xxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President
By: /s/Xxxxxxx X. XxXxxxx
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Title: Director
FLEET NATIONAL BANK
By: /s/Xxxxxx X. Head, Jr.
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Title: Director
KEY BANK NATIONAL ASSOCIATION
By: /s/Xxxx Xxxxxxxxxx
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Title: Vice President
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By: /s/Xxxx Xxxxxx
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Title: Vice President
PNC BANK, N.A.
By:
-----------------------------
Name:
Title:
SUNTRUST BANK
By: /s/Xxxxx Xxxxxx
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Title: Director
WESTPAC BANKING CORPORATION
By: /s/Xxxxxxx Xxxxxxxx
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Title: Assistant Vice
President
