Lexmark International Inc., Form 10Q, 2Q 2007 Exhibit 10.1


    Exhibit
      10.1

     

    EXECUTION
      COPY

     

    AMENDMENT
      NO. 2

     

    Dated
      as
      of May 23, 2007

     

    to

     

    CREDIT
      AGREEMENT

     

    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/
      Rick Pelini    

    Name: Rick
      Pelini

    Title: VP
&
      Treasurer

    


    


    By: /s/
      Bruce J. Frost   

    Name: Bruce
      J.
      Frost

    Title: Assistant
      Treasurer

    


    


    JPMORGAN
      CHASE BANK,

    NATIONAL
      ASSOCIATION,

    individually
      as a Lender and as Administrative Agent

    


    


    By: /s/
      Sean M. Story   

    Name: Sean
      M.
      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/
      Debra E. DelVecchio  

    Name: Debra
      E.
      DelVecchio

    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/
      Brian Reed    

    Name: Brian
      Reed

    Title: Director

     

     

    KEYBANK
      NATIONAL ASSOCIATION,

    individually
      as a Lender and as Co-Documentation Agent

    


    


    By: /s/
      Jennifer A. O'Brien  

    Name: Jennifer
      A. O'Brien

    Title: Vice
      President

    


    


    SUNTRUST
      BANK,

    individually
      as a Lender and as Co-Documentation Agent

    


    


    By: /s/
      Susan M. Hall   

    Name: Susan
      M.
      Hall

    Title: Managing
      Director

    


    


    THE
      BANK
      OF NEW YORK.,

    individually
      as a Lender

    


    


    By: /s/
      R.
      R. Reedy   

    Name: Ronald
      R.
      Reedy

    Title: Managing
      Director

    


    


    BANK
      OF
      NOVA SCOTIA,

    individually
      as a Lender

    


    


    By: /s/
      Mark Sparrow   

    Name: Mark
      Sparrow

    Title: Director

     

     

    
      
        Signature
          Page to Amendment No. 2 to

        Credit
          Agreement dated as of January 20, 2005

        Lexmark
          International, Inc.