LEXMARK INTERNATIONAL, INC. as Issuer and THE BANK OF NEW YORK TRUST COMPANY, N.A. as Trustee SECOND SUPPLEMENTAL INDENTURE Dated as of March 26, 2007 to Indenture Dated as of May 11, 1998 as amended by the First Supplemental Indenture Dated as of...
Exhibit
4.1
LEXMARK
INTERNATIONAL, INC.
as
Issuer
and
THE
BANK OF NEW YORK TRUST COMPANY, N.A.
as
Trustee
SECOND
SUPPLEMENTAL INDENTURE
Dated
as
of March 26, 2007
to
Indenture
Dated
as
of May 11, 1998
as
amended by the First Supplemental Indenture
Dated
as
of June 22, 2000
$150,000,000
6
¾%
Senior Notes due 2008
SECOND
SUPPLEMENTAL INDENTURE dated as
of March 26, 2007, by and between LEXMARK INTERNATIONAL, INC., a Delaware
corporation (the "Issuer") and THE BANK OF NEW YORK TRUST COMPANY, N.A., a
national banking association, as Trustee (the "Trustee").
WHEREAS,
the Issuer and Guarantor have
heretofore executed and delivered to the Trustee an Indenture dated as of May
11, 1998 (the "Indenture"), providing for the issuance of $150,000,000 aggregate
principal amount of 6 ¾% Senior Notes due 2008 (the "Notes");
WHEREAS,
the Issuer and Guarantor have
heretofore executed and delivered to the Trustee a First Supplemental Indenture
dated as of June 22, 2000;
WHEREAS,
the Issuer desires by this
Second Supplemental Indenture pursuant to and as contemplated by Section 901
clause (7) (incorrectly marked as clause (5) in the Indenture due to
typographical error) of the Indenture to make a change to the Indenture that
does not materially and adversely affect the interests of the
Holders;
WHEREAS,
the Issuer desires to amend
the Indenture to (i) allow for any Permitted Receivables Financing to include
the transfer of accounts receivable by the Issuer without any requirement that
such program be intended by the parties thereto to be treated as an “off balance
sheet” transaction and (ii) clarify the aggregate outstanding amount allowed for
any Permitted Receivables Financing under the Indenture;
WHEREAS,
the amendments contemplated
herein do not materially and adversely affect the interests of the Holders
and
therefore do not require the consent of any Holders;
WHEREAS,
the execution and delivery of
this Second Supplemental Indenture has been authorized by resolution of the
Board of Directors of the Issuer; and
WHEREAS,
all conditions and
requirements necessary to make this Second Supplemental Indenture a valid,
binding legal instrument enforceable in accordance with its terms have been
performed and fulfilled by the parties hereto and the execution and delivery
thereof have been in all respects duly authorized by the parties
hereto.
NOW,
THEREFORE, in consideration of the
above premises, each party agrees, for the benefit of the other and for the
equal and ratable benefit of the holders of the Notes, as follows:
ARTICLE
I
AMENDMENTS
Section
1.01 Amendment to
Definition of “Permitted Receivables Financing.” The definition of
“Permitted Receivables Financing” included in Section 101 of the Indenture is
hereby amended in whole to read as follows:
“Permitted
Receivables Financing” means any program for the transfer without recourse
(other than customary limited recourse) by the Issuer or any of its Subsidiaries
to any buyer, purchaser or lender of interests in accounts receivable, so
long as the aggregate outstanding amount of receivables transferred by the
Issuer and its Subsidiaries and for which cash advances shall have been
made pursuant to such program (i.e. the aggregate amount advanced under
such program without regard to any excess collateralization requirements
of such program) shall not exceed $500,000,000 at any one time.
Section
1.02 Amendment to
Limitation on Liens. Clause (xi) of Section 1008(a) of the Indenture
is hereby amended in whole to read as follows:
(xi) any
Lien that may, or may be
deemed to, arise from a Permitted Receivables Financing;
ARTICLE
II
MISCELLANEOUS
PROVISIONS
Section
2.01
Defined
Terms. For all purposes of this Second Supplemental
Indenture, except as otherwise defined or unless the
context otherwise requires, terms used in capitalized
form in this Second Supplemental Indenture and defined in the Indenture or
the
First Supplemental Indenture have the meanings specified in the Indenture or
the
First Supplemental Indenture, respectively.
Section
2.02 Indenture.
Except as amended hereby, the Indenture, the First Supplemental Indenture and
the Notes are in all respects ratified and confirmed and all the terms shall
remain in full force and effect.
Section
2.03 Governing
Law. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section
2.04 Successors.
All agreements of the Issuer in this Second Supplemental Indenture and the
Notes
shall bind its successors. All agreements of the Trustee in this Second
Supplemental Indenture shall bind its successors.
Section
2.05 Duplicate
Originals. All parties may sign any number of copies of this Second
Supplemental Indenture. Each signed copy shall be an original, but all of them
together shall represent the same agreement.
Section
2.06 Severability.
In case any one or more of the provisions in this Second Supplemental Indenture
or in the Notes shall be held invalid, illegal or unenforceable, in any respect
for any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions shall not in any way
be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the fullest extent permitted by law.
Section
2.07 Trustee
Disclaimer. The Trustee accepts the amendment of the Indenture effected by
this Second Supplemental Indenture and agrees to execute the trust created
by
the Indenture as hereby amended, but on the terms and conditions set forth
in
the Indenture and the First Supplemental Indenture, including the terms and
provisions defining and limiting the liabilities and responsibilities of the
Trustee, which terms and provisions shall in like manner define and limit its
liabilities and responsibilities in the performance of the trust created by
the
Indenture and First Supplemental Indenture as hereby amended, and without
limiting the generality of the foregoing, the Trustee shall not be responsible
in any manner whatsoever for or with respect to any of the recitals or
statements contained herein, all of which recitals or statements are made solely
by the Issuer, or for or with respect to (i) the validity or sufficiency of
this
Second Supplemental Indenture or any of the terms or provisions hereof, (ii)
the
proper authorization hereof by the Issuer by corporate action or otherwise,
(iii) the due execution hereof by the Issuer or (iv) the consequences (direct
or
indirect and whether deliberate or inadvertent) of any amendment herein provided
for, and the Trustee makes no representation with respect to any such
matters.
Section
2.08
Effectiveness. This Second Supplemental Indenture shall become effective
March 26, 2007, 12:01 a.m. Eastern Time, conditioned only upon its execution,
the prior receipt by the Trustee of an Officer's Certificate from the Issuer,
and an opinion of counsel to the Issuer, each of which shall be dated no earlier
than the date hereof.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto
have caused this Second Supplemental Indenture to be duly executed as of the
day
and year first written above.
LEXMARK
INTERNATIONAL,
INC.,
as
Issuer
By:
/s/
Xxxxxxx X.
Xxxxxx
Vice
President and Treasurer
THE
BANK OF NEW YORK
TRUST
COMPANY, N.A.
as
Trustee
/s/ X.
Xxxxxx
By:
X.
Xxxxxx
Title:
Vice
President
