FIRST INCREMENTAL ASSUMPTION AGREEMENT
Exhibit 10.3
EXECUTION COPY
FIRST INCREMENTAL ASSUMPTION AGREEMENT, dated as of November 1, 2023 (this “Agreement”), by and among DXC Technology Company, a Nevada corporation (the “Company”), and the incremental lenders party hereto (in such capacity, collectively, the “Incremental Lenders” and each, individually, an “Incremental Lender”) and consented to by the Swing Line Banks party hereto and consented to and accepted by Citibank, N.A., as administrative agent (the “Agent”) for the Lenders party to the Credit Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Company, each lender from time to time party thereto (the “Lenders”) and the Agent are parties to that certain Revolving Credit Agreement dated as of November 1, 2021 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Credit Agreement”) (capitalized terms not otherwise defined in this Agreement have the same meanings assigned thereto in the Credit Agreement); and
WHEREAS, the Company has, by notice to the Agent delivered pursuant to Section 2.20 of the Credit Agreement, requested incremental commitments (the “Incremental Commitments”) in an aggregate principal amount of $230,000,000.
WHEREAS, on September 18, 2023, the Company has, by notice to the Agent delivered pursuant to Section 2.16 of the Credit Agreement, requested that the latest Commitment Termination Date be extended for a period of one year, expiring November 1, 2028 (such extension, the “Extension”).
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of all of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1.Incremental Lenders and the Incremental Commitments. Pursuant to Section 2.20 of the Credit Agreement and subject to the satisfaction or waiver of the conditions to effectiveness of this Agreement set forth in Section 4 of this Agreement:
(a)Each Incremental Lender severally agrees to provide Incremental Commitments in the principal amount for such Incremental Lender set forth on Schedule A hereto. The aggregate principal amount of the Incremental Commitments being provided by all of the Incremental Lenders pursuant to this Agreement is $230,000,000.
(b)The Incremental Commitments set forth on Schedule A hereto shall have terms identical to the terms of the Revolving Commitments outstanding under the Credit Agreement on the Effective Date (as defined below) that have a Commitment Termination Date of November 1, 2028 (including, without limitation, with respect to the maturity date, pricing, mandatory prepayments and voluntary prepayments) and shall otherwise be subject to the provisions of the Credit Agreement and the other Loan Documents. On and after the Effective Date, each reference to (x) a “Revolving Commitment” or “Revolving Commitments” or (y) a “Revolving Advance” or “Revolving Advances” in the Credit Agreement or herein shall be deemed to include the Incremental Commitments and any Incremental Advances made in respect of the Incremental Commitments established pursuant to this Agreement and all other related terms will have correlative meanings.
(c)For the avoidance of doubt, each Incremental Lender hereby notifies the Company and the Agent of its willingness to accept the Company’s request for the Extension such that the Commitment Termination Date with respect to its Incremental Commitment shall be November 1, 2028.
(d)Each of the parties hereto hereby agrees that the Agent may take any and all action as may be reasonably necessary, including the effecting of notional assignments between the
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Incremental Lenders and the other Revolving Lenders of outstanding Revolving Advances to ensure that, after giving effect to this Agreement, all Incremental Advances, when originally made, are included in each Borrowing of outstanding Advances under the Revolving Facility on a pro rata basis.
SECTION 2.Amendment to the Credit Agreement.
(a)From and after the Effective Date, Schedule I to the Credit Agreement is hereby replaced in its entirety with Schedule I hereto.
SECTION 3.Representations and Warranties. By its execution of this Agreement, the Company hereby represents and warrants to the Incremental Lenders that:
(a)the representations and warranties set forth in Article 4 of the Credit Agreement are correct in all material respects (except those representations and warranties qualified by materiality, which shall be true and correct) on and as of the Effective Date, as though made on and as of such date, except to the extent that any such representation or warranty expressly relates only to an earlier date, in which case it was correct in all material respects (except those representations and warranties qualified by materiality, which shall be true and correct) as of such earlier date; and
(b)on and as of the Effective Date, no Event of Default or Potential Event of Default shall have occurred and be continuing or would result from the effectiveness of the Incremental Commitments.
SECTION 4.Conditions of Effectiveness of the Incremental Commitments. This Agreement shall become effective on the date (the “Effective Date”) when (unless otherwise agreed among the Incremental Lenders and the Company, and consented to by the Agent (such consent not to be unreasonably withheld or delayed)) the Agent shall have received:
(a)an executed counterpart of this Agreement from the Company, the Agent, each Swing Line Bank and each Incremental Lender;
(b)copies of the resolutions of the Board of Directors of the Company, approving this Agreement, certified as of the Effective Date by the Secretary or an Assistant Secretary of the Company;
(c)a favorable opinion of Xxxxx Xxxxx, Senior Vice President, Deputy General Counsel and Board Secretary of the Company, dated as of the Effective Date;
(d)a certificate of an authorized officer of the Company, dated the Effective Date, stating that the representations and warranties of the Company contained in Section 3 of this Agreement are correct;
(e)a notice from the Company requesting the Incremental Commitments and satisfying the requirements set forth in Section 2.20(a) of the Credit Agreement; and
(f)upon the request of any Incremental Lender, in the case of any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230, a duly executed and completed certification regarding beneficial ownership as required by 31 C.F.R. § 1010.230 in relation to such Borrower.
SECTION 5.Acknowledgment of Incremental Lenders. Each of the Incremental Lenders (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Agreement and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be a Lender under Section 9.07(b)(iii), (v) and (vi) of the Credit Agreement (subject to such consents, if any, as may be required under Section 9.07(b)(iii) of the Credit Agreement), (iii) from and after the Effective
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Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of its Incremental Commitments, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by its Incremental Commitments and either it, or the Person exercising discretion in making its decision to provide its Incremental Commitments, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received, or has been accorded the opportunity to receive, copies of the most recent financial statements delivered pursuant to Section 5.01(b) thereof and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Agreement and to provide its Incremental Commitments and (vi) it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and to provide its Incremental Commitments; and (b) agrees that (i) it will, independently and without reliance on the Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
SECTION 6.Reference to and Effect on the Credit Agreement and the other Loan Documents.
(a)On and after the Effective Date, each reference in the Credit Agreement to (i) “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Credit Agreement, and each reference in any other Loan Document to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended by this Agreement and (ii) each Incremental Lender (x) shall become a “Lender” for all purposes of the Credit Agreement and the other Loan Documents and (y) shall have a “Revolving Commitment” under the Credit Agreement.
(b)The Credit Agreement and each of the other Loan Documents, as specifically amended by this Agreement, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.
(c)The execution, delivery and effectiveness of this Agreement 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 provision of the Credit Agreement.
(d)On and after the Effective Date, this Agreement is subject to the provisions of Section 9.01 of the Credit Agreement and constitutes a Loan Document.
SECTION 7.Costs and Expenses. The Company agrees to pay promptly on demand all reasonable costs and out-of-pocket expenses of the Agent (in its capacity as such) in connection with the preparation, execution, delivery and administration, modification and amendment of this Agreement (including, without limitation, the reasonable fees and out-of-pocket expenses of a single counsel for the Agent with respect thereto and with respect to advising the Agent as to its rights and responsibilities hereunder) in accordance with the terms of Section 9.04 of the Credit Agreement.
SECTION 8.Execution in Counterparts. This Agreement may be executed in any number of 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 but one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by email or other electronic transmission of a duly executed counterpart copy hereof will be as effective as delivery of an original executed counterpart of this Agreement. The words “execution,” “signed,” “signature,” and words of like import in this Agreement shall be deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National
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Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 9.Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
SECTION 10.Headings. Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Agreement as of the date first written above.
DXC TECHNOLOGY COMPANY, as the Company | |||||
| By: | /s/ Ceyhun Cetin | ||||
| Name: Ceyhun Cetin | |||||
| Title: Vice President and Treasurer | |||||
Canadian Imperial Bank of Commerce, New York Branch, as an Incremental Lender | |||||
| By: | /s/ Xxxxx Xxxxx de Mange | ||||
| Name: Xxxxx Xxxxx de Mange | |||||
Title: Executive Director and Authorized Signatory | |||||
[Signature Page to DXC Sixth Incremental Assumption Agreement]
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HSBC BANK USA, N.A., as an Incremental Lender | |||||
| By: | /s/ Xxxx Xxxxx | ||||
| Name: Xxxx Xxxxx | |||||
| Title: Senior Vice President #23204 | |||||
[Signature Page to DXC Sixth Incremental Assumption Agreement]
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ICICI Bank Limited, New York Branch, as an Incremental Lender | |||||
| By: | /s/ Xxxxxx Xxxxx | ||||
| Name: Xxxxxx Xxxxx | |||||
| Title: Team Lead, Corporate Banking | |||||
[Signature Page to DXC Sixth Incremental Assumption Agreement]
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Consented to and accepted by:
CITIBANK, N.A., as Agent and a Swing Line Bank | |||||
| By: | /s/ Xxxxx Xxxxx | ||||
| Name: Xxxxx Xxxxx | |||||
| Title: Vice President | |||||
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Consented to by:
BANK OF AMERICA, N.A., as a Swing Line Bank | |||||
| By: | /s/ Xxxx Xxxxx | ||||
| Name: Xxxx Xxxxx | |||||
| Title: Director | |||||
JPMORGAN CHASE BANK, N.A., as a Swing Line Bank | ||||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||||
| Name: Xxxx X. Xxxxxx | ||||||||
Title: Vice President | ||||||||
MIZUHO BANK, LTD., as a Swing Line Bank | ||||||||
| By: | /s/ Xxxxx Xxxx | |||||||
| Name: Xxxxx Xxxx | ||||||||
| Title: Executive Director | ||||||||
MUFG BANK, LTD., as a Swing Line Bank | ||||||||
| By: | /s/ Xxxxxxx Xxx | |||||||
| Name: Xxxxxxx Xxx | ||||||||
| Title: Director | ||||||||
[Signature Page to DXC Sixth Incremental Assumption Agreement]
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[Signature Page to DXC Sixth Incremental Assumption Agreement]
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SCHEDULE A
INCREMENTAL COMMITMENTS
| Name of Incremental Lender | Incremental Commitments | ||||
| Canadian Imperial Bank of Commerce, New York Branch | US$110,000,000 | ||||
| HSBC Bank USA, N.A. | US$60,000,000 | ||||
| ICICI Bank Limited, New York Branch | US$60,000,000 | ||||
| Total | US$230,000,000 | ||||
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Schedule I
LENDERS’ COMMITMENTS
| Lender | Revolving Commitment | Swing Line Commitment | |||||||||
| 1 | Citibank, N.A. | US$238,000,000 | US$50,000,000 | ||||||||
| 2 | Bank of America, N.A. | US$238,000,000 | US$50,000,000 | ||||||||
| 3 | JPMorgan Chase Bank, N.A. | US$238,000,000 | US$50,000,000 | ||||||||
| 4 | Mizuho Bank, Ltd. | US$238,000,000 | US$50,000,000 | ||||||||
| 5 | MUFG Bank, Ltd. | US$238,000,000 | US$50,000,000 | ||||||||
| 6 | Lloyds Bank Corporate Markets plc | US$160,000,000 | N/A | ||||||||
| 7 | National Westminster Bank plc | US$160,000,000 | N/A | ||||||||
| 8 | PNC Bank, National Association | US$160,000,000 | N/A | ||||||||
| 9 | Sumitomo Mitsui Banking Corporation1 | US$160,000,000 | N/A | ||||||||
| 10 | TD Bank, N.A. | US$160,000,000 | N/A | ||||||||
| 11 | The Bank of Nova Scotia | US$160,000,000 | N/A | ||||||||
| 12 | BNP Paribas | US$110,000,000 | N/A | ||||||||
| 13 | Commerzbank AG, New York Branch | US$110,000,000 | N/A | ||||||||
| 14 | Credit Agricole Corporate and Investment Bank | US$110,000,000 | N/A | ||||||||
| 15 | Danske Bank A/S | US$110,000,000 | N/A | ||||||||
| 16 | Xxxxx Fargo Bank, National Association2 | US$110,000,000 | N/A | ||||||||
| 00 | XXX Xxxx X.X., Xxxxxx Branch | US$60,000,000 | N/A | ||||||||
| 18 | KBC Bank NV, New York Branch | US$60,000,000 | N/A | ||||||||
| 19 | Raiffeisen Bank International AG | US$60,000,000 | N/A | ||||||||
| 20 | Standard Chartered Bank | US$60,000,000 | N/A | ||||||||
1 Commitment Termination Date is November 1, 2026.
2 Commitment Termination Date is November 1, 2027.
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| 21 | U.S. Bank National Association | US$60,000,000 | N/A | ||||||||
| 22 | Canadian Imperial Bank of Commerce, New York Branch | US$110,000,000 | N/A | ||||||||
| 23 | HSBC Bank USA, N.A. | US$60,000,000 | N/A | ||||||||
| 24 | ICICI Bank Limited, New York Branch | US$60,000,000 | N/A | ||||||||
| Total Commitments: | US$3,230,000,000.00 | US$250,000,000.00 | |||||||||
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