Amendment No. 3 to Credit Agreement, dated as of July 31, 2020, among Xerox Corporation, Xerox Holdings Corporation, certain Lenders signatory thereto, and Citibank, N.A., as administrative agent
AMENDMENT NO. 3
AMENDMENT NO. 3 TO CREDIT AGREEMENT, dated as of July 31, 2020 (this Amendment), is entered into by and among XEROX CORPORATION, a New York corporation (the Company), XEROX HOLDINGS CORPORATION, a New York corporation (Holdings), CITIBANK, N.A. as administrative agent on behalf of the lenders party to the Credit Agreement (as defined below) (in such capacity, the Agent) and the Required Lenders party hereto.
The Company, the Agent and certain lenders entered into that certain Amended and Restated Credit Agreement, dated as of August 9, 2017, as amended by Amendment No. 1 thereto dated as of February 15, 2018 and Amendment No. 2 thereto dated as of July 31, 2019 (as so amended, the Credit Agreement and as further amended pursuant to this Amendment, the Amended Credit Agreement; capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement);
The Company has requested to amend the Credit Agreement as set forth herein to make certain changes to the financial covenants contained therein.
The Company, the Agent and the Required Lenders party hereto have agreed to further amend the Credit Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto hereby agree as follows:
SECTION 1. Amendments to Credit Agreement. The Credit Agreement is, subject to the satisfaction (or waiver by the Agent) of the conditions precedent set forth in Section 3, hereby amended as follows:
(a) Section 1.01 is amended by adding the following new definitions thereto in proper alphabetical order:
Amendment No. 3 Effective Date means July 31, 2020.
Covenant Modification Period means the period beginning on the Amendment No. 3 Effective Date and ending on the earlier of, and inclusive of, (x) December 31, 2021 and (y) the date on which the Company delivers a Covenant Reversion Notice.
Covenant Reversion Notice means a written notice delivered by the Company to the Agent electing to end the Covenant Modification Period.
Net Debt for Borrowed Money means, as of any date, Debt for Borrowed Money minus the lesser of (x) Unrestricted Cash as of such date and (y) $1,750,000,000.
Unrestricted Cash means, as of any date, the aggregate amount of unrestricted cash and cash equivalents owned by the Company or any Subsidiary of the Company as of such date and not subject to any Lien in favor of any creditor of the Company or any Subsidiary of the Company.
(b) Section 5.03(a) is amended in full to read as follows:
(a) Leverage Ratio. (i) With respect to each Fiscal Quarter ending during the Covenant Modification Period, maintain a ratio of Net Debt for Borrowed Money as of the end of such Fiscal Quarter to Consolidated EBITDA for the period of four Fiscal Quarters then ended of not greater than 4.25:1 and (ii) with respect to each other Fiscal Quarter, maintain a ratio of Debt for Borrowed Money as of the end of such Fiscal Quarter to Consolidated EBITDA for the period of four Fiscal Quarters then ended of not greater than 4.25:1.
(c) A new Section 5.03(c) shall be inserted as follows:
(c) Minimum Unrestricted Cash. During the Covenant Modification Period, at all times, maintain Unrestricted Cash in an amount not less than $1,000,000,000.
SECTION 2. Reference to and Effect on the Credit Agreement.
(a) On and after the Amendment Effective Date, 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 by this Amendment.
(b) The Credit Agreement, as specifically amended by this Amendment is, and shall continue to be, in full force and effect, and is hereby in all respects ratified and confirmed.
(c) Except as expressly provided herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Agent under the Credit Agreement, nor shall it constitute a waiver of any provision of the Credit Agreement other than as expressly permitted herein.
(d) The parties hereto acknowledge and agree that the amendment of the Credit Agreement pursuant to this Amendment shall not constitute a novation of the Credit Agreement as in effect prior to the Amendment Effective Date.
(e) Each of the Company and Holdings hereby (i) reaffirms its obligations under the Amended Credit Agreement and each Note to which it is a party, in each case as modified by this Amendment, and (ii) acknowledges and agrees that the guarantee of Holdings contained in the Amended Credit Agreement is, and shall remain, in full force and effect in respect of the obligations of the Company and each other Borrower under the Amended Credit Agreement.
SECTION 3. Conditions of Effectiveness for Amendment. This Amendment shall become effective as of the date (the Amendment Effective Date) on which the following conditions shall have been satisfied (or waived by the Agent):
(a) On the Amendment Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Amendment Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 of the Credit Agreement, as amended hereby, are correct on and as of the Amendment Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(b) The Agent shall have received counterparts to this Amendment duly executed by Holdings, the Borrower and the Required Lenders.
SECTION 5. Representations and Warranties. Each of Holdings and the Company hereby represents and warrants to the Agent that:
(a) The execution, delivery and performance by Holdings and the Company of this Amendment are within its corporate or similar powers, have been duly authorized by all necessary corporate or similar action; and
(b) this Amendment has been duly executed and delivered by it and this Amendment and the Credit Agreement, as amended hereby, constitute the legal, valid and binding obligation of such Person, enforceable against it in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and 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.
SECTION 6. Costs and Expenses. The Company agrees that all documented reasonable out-of-pocket expenses incurred by the Agent in connection with the preparation, execution, delivery and administration, modification and amendment of this Amendment and the other instruments and documents to be delivered hereunder shall be paid in accordance with Section 9.04 of the Credit Agreement.
SECTION 7. Execution in Counterparts; Electronic Execution. This Amendment may be executed in one or more counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page of (x) this Amendment and/or (y) any document, approval, consent, information, notice, certificate, request, statement disclosure or authorization related to this Amendment and/or the transactions contemplated hereby (each an Ancillary Document) that is an Electronic Signature (as defined below) transmitted by telecopy, e-mailed .pdf or any other electronic means that reproduces an image of an actual executed signature page shall be effective as delivery of a manually executed counterpart of this Amendment or such Ancillary Document, as applicable. The words execution, signed, signature, delivery, and words of like import in or relating to this Amendment and/or any Ancillary Document shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by telecopy, emailed pdf, or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system as the case may be. For purposes of this Section, Electronic Signature means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record.
SECTION 8. Governing Law and Waiver of Right of Trial by Jury. This Amendment is subject to the provisions of Sections 9.10, 9.13 and 9.20 of the Credit Agreement relating to governing law, waiver of right to submission to jurisdiction, venue and waiver of trial by jury, the provisions which are by this reference incorporated herein in full.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 3 to Credit Agreement to be executed by their respective authorized officers as of the date first above written.
|Title:||Vice President and Treasurer|
|XEROX HOLDINGS CORPORATION,|
|Title:||Vice President and Treasurer|
|CITIBANK, N.A., as a Lender|
|Name:||Michael V. Moore|
|Title:||Vice President & Director|
|BANK OF AMERICA, N.A., as a Lender|
|BANK OF NEW YORK MELLON, as a Lender|
|Name:||Diane L. Demmler|
|The Bank of Nova Scotia, as a Lender|
|BNP PARIBAS, as a Lender|
|Name:||Michael A. Kowalczuk|
|CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender|
JPMORGAN CHASE BANK, N.A., as a
|Mizuho Bank, Ltd., as a Lender|
|MUFG Bank, Ltd. as a Lender|
|PNC Bank, National Association, as a Lender|
|Title:||SVP & Managing Director|
|Truist Bank, as a Lender|
|Name:||Matthew J. Davis|
|Title:||Senior Vice President|
|U.S. BANK NATIONAL ASSOCIATION, as a Lender|
|Name:||Richard J Ameny, Jr.|
Wells Fargo Bank, National Association, as a
|Name:||Karen H. McClain|