Exhibit 10.1
FIRST AMENDMENT
FIRST AMENDMENT, dated as of March 20, 2000 (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 GROUP, INC., a Delaware corporation (the "Parent"),
------
LEXMARK INTERNATIONAL, INC., a Delaware corporation (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"), MORGAN 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:
-------------------
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 Parent and the Borrower have 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. Terms defined and used in this Amendment shall
have the meanings given to them in this Amendment.
2. Amendment to Section 1.01. Section 1.01 of the Credit
----------------------------
Agreement is hereby amended by deleting the definition of "Cash Equivalents"
contained therein and substituting in lieu thereof the following new definition:
"'Cash Equivalents' means:
----------------
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof), in each case maturing within one
year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, a credit rating of at least A-2 from S&P or P-2 from
Moody's;
<PAGE>
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within one year from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $250,000,000;
(d) fully collateralized repurchase agreements with a term of
not more than one year for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above;
(e) tax-exempt securities that are obligations of a State or
municipality of the United States of America or of the District of
Columbia (maturing within one year of the date of acquisition thereof)
with a minimum long-term debt rating of A by S&P or A-2 by Moody's, or
a short-term rating no lower than SP-1 or A-1 by S&P or MIG 1, VMIG 1
or P-1 by Moody's;
(f) money market investment funds which invest primarily in
the types of securities described in clauses (a) through (e) above and
consistent with past practices;
(g) in the case of investments by any Foreign Subsidiary,
obligations of a credit quality and maturity comparable to that of the
items referred to in clauses (a) through (f) above that are available
in local markets;
(h) Dollar-denominated debt instruments (other than those
described in any other clause of this definition) of an obligor
organized under the laws of a State of the United States of America or
of the District of Columbia with a remaining term to maturity of not
more than one year with a long term debt rating of at least BBB by S&P
and Baa2 by Moody's; and
(i) auction rate securities with a remarketing period not
exceeding 49 days and with a rating no lower than A by S&P and A2 by
Moody's."
3. Amendment to Section 6.05. Section 6.05 of the
-------------------------
Credit Agreement is hereby amended by deleting such section in its entirety and
substituting in lieu thereof the following new section 6.05:
"SECTION 6.05 Fundamental Changes. The Parent will
--------------------
not, and will not permit any Subsidiary to, merge into or consolidate
with any other Person, or permit any other Person to merge into or
consolidate with it, or sell, transfer, lease or otherwise dispose of
(in one transaction or in a series of transactions) all or
substantially all of its assets (determined on a consolidated basis
with respect to the Parent and its Subsidiaries taken as a whole), or
liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred
and be continuing (a) any Person may merge into the Parent in a
<PAGE>
transaction in which the Parent is the surviving corporation and, if
such Person is the Borrower, the Parent assumes the obligations of the
Borrower hereunder and under the other Loan Documents pursuant to a
written instrument in form and substance satisfactory to the
Administrative Agent, (b) any Person (other than the Parent or the
Borrower) may merge into any Subsidiary in a transaction in which the
surviving entity is a Subsidiary, (c) any Subsidiary may sell,
transfer, lease or otherwise dispose of its assets to the Borrower or
to another Subsidiary, (d) any Subsidiary (other than the Borrower) may
liquidate or dissolve if the Borrower determines in good faith that
such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders and (e)
the Parent may merge into the Borrower in a transaction in which the
Borrower is the surviving corporation; provided that any such merger
involving a Person that is not a wholly owned Subsidiary immediately
prior to such merger shall not be permitted unless also permitted by
Section 6.06; and provided, further, that a Subsidiary Guarantor shall
not be permitted to merge into, or sell, transfer, lease or otherwise
dispose of all or substantially all of its assets to, another
Subsidiary which is not at the time of such merger or disposition a
Subsidiary Guarantor and which, in the case of a merger, will be the
surviving entity of such merger unless concurrently with the
consummation of such merger or disposition such surviving or receiving
Subsidiary shall execute an assumption agreement with respect to the
Subsidiary Guarantee and furnish a legal opinion with respect thereto
comparable, to the extent applicable, to the legal opinions delivered
in respect of the Subsidiary Guarantees on the Effective Date."
4. Amendment to Section 6.06. Section 6.06 of the
-------------------------
Credit Agreement is hereby amended by (i) deleting the word "and" at the end of
paragraph (d) thereof, (ii) deleting the period at the end of paragraph (e) and
substituting in lieu thereof the following: "; and" and (iii) adding thereto the
following new paragraph (f):
"(f) Guarantees by the Borrower or any of its Subsidiaries of
obligations not constituting Indebtedness of any other Subsidiary;
provided, that the aggregate principal amount (or if any of such
obligations do not have a stated principal amount, the reasonable
estimated value of the liability thereunder) of all such Guarantees
provided for in this Section 6.06(f) shall not exceed at any one time
outstanding 25% of Consolidated EBITDA for the most recently concluded
period of four full fiscal quarters of the Borrower."
5. 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 Parent, 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.
<PAGE>
6. Representations and Warranties. Each of the Parent and 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 in all material respects 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.
7. Payment of Expenses. The Parent and the Borrower jointly
-------------------
and severally agree 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.
8. Reference to and Effect on the Credit Agreement; Limited
----------------------------------------------------------
Effect. On and after the date hereof and the satisfaction of the conditions
------
contained in paragraph 5 of 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.
9. 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.
10. 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.
<PAGE>
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 GROUP, INC.
By: /s/ Gary E. Morin
-----------------------------
Name: Gary E. Morin
Title: Executive Vice
President and Chief
Financial Officer
LEXMARK INTERNATIONAL, INC.
By: /s/ Gary E. Morin
-----------------------------
Name: Gary E. Morin
Title: Executive Vice
President and Chief
Financial Officer
THE CHASE MANHATTAN BANK, as
Administrative Agent and as
a Lender
By: /s/ Edmond DeForest
-----------------------------
Name: Edmond DeForest
Title: Vice President
<PAGE>
BANK OF AMERICA, N.A.
By: /s/ Kevin M. McMahon
-----------------------------
Name: Kevin M. McMahon
Title: Managing Director
THE BANK OF NEW YORK
By: /s/ Thomas G. McCrohan
-----------------------------
Name: Thomas G. McCrohan
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ John Hopmans
-----------------------------
Name: John Hopmans
Title: Managing Director
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ Friedrich N. Wilms
-----------------------------
Name: Friedrich N. Wilms
Title: Vice President and
Global Relationship
Manager
BANK ONE, INDIANA N.A.
By: /s/ Randall K. Stephens
-----------------------------
Name: Randall K. Stephens
Title: Managing Director
<PAGE>
BANQUE NATIONALE DE PARIS
By: /s/ Arnaud Collin du Bocage
-----------------------------
Name: Arnaud Collin du Bocage
Title: Executive Vice
President and
General Manager
BARCLAYS BANK PLC
By: /s/ John Giannone
-----------------------------
Name: John Giannone
Title: Director
DEUTSCHE BANK AG, NEW YORK BRANCH
AND CAYMAN ISLAND BRANCH
By: /s/ Karen L. Sill
-----------------------------
Name: Karen L. Sill
Title: Vice President
By: /s/ Sheryl Paynter
------------------------------
Name: Sheryl Paynter
Title: Assistant Vice
President
FLEET NATIONAL BANK
By: /s/ Daniel G. Head, Jr.
-----------------------------
Name: Daniel G. Head, Jr.
Title: SVP
KEYBANK NATIONAL ASSOCIATION
By: /s/ Brendan A. Lawler
-----------------------------
Name: Brendan A. Lawler
Title: Vice President
<PAGE>
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Dennis Wilczek
-----------------------------
Name: Dennis Wilczek
Title: Associate
PNC BANK, N.A.
By: /s/ Ralph M. Bowman
-----------------------------
Name: Ralph M. Bowman
Title: Vice President
WESTPAC BANKING CORP.
By: /s/ Tony Smith
-----------------------------
Name: Tony Smith
Title: Vice President
