AMENDMENT NO. 1 TO THE 364- DAY CREDIT AGREEMENT
Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 1 TO THE
364- DAY CREDIT AGREEMENT
This AMENDMENT NO. 1 TO THE 364- DAY CREDIT AGREEMENT, dated as of April 23, 2020, is entered into by and among XXXXXXX XXXXX & XXXXXX, INC., a Connecticut corporation (the “Borrower”), the Lenders (as such term is defined below) executing this Amendment on the signature pages hereto (the “Executing Lenders”) and Citibank, N.A., as agent (the “Agent”) for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the banks, financial institutions and other institutional lenders parties to the Credit Agreement referred to below (collectively, the “Lenders”) and the Agent have entered into a 364-Day Credit Agreement dated as of September 11, 2019 (such Credit Agreement, as so amended, the “Credit Agreement”). Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement.
(2) The Borrower and the Required Lenders have agreed to further amend the Credit Agreement as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. The Credit Agreement is, effective as of the date hereof and subject to the satisfaction of the conditions precedent set forth in Section 2, hereby amended as follows:
(a) The second sentence of the definition of “EBITDA” in Section 1.01 is amended by deleting the word “and” immediately preceding “(3)” and replacing it with “,” and inserting the following language immediately prior the period in such sentence:
“and (4) in calculating EBITDA for any period that includes one or more Adjustment Periods, EBITDA shall be increased by an amount equal to the Applicable Adjustment Addbacks for any such Adjustment Periods”
(c) Section 1.01 is further amended by adding the following definitions in the appropriate alphabetical order:
“Adjustment Period” means each fiscal quarter of the Company from and including the second fiscal quarter of fiscal year 2020 through and including the second fiscal quarter of fiscal year 2021.
“Applicable Adjustment Addbacks” means the following: (i) restructuring charges, (ii) charges for facility closures, (iii) acquisition and integration charges related to mergers and acquisitions, including those associated with the Consolidated Aerospace Manufacturing, LLC transaction, (iv) charges associated with the Company’s voluntary retirement program, (v) charges associated with the Company’s supplemental unemployment plan, (vi) charges associated with the Company’s security business transformation and (vii) charges associated with the Company’s margin resiliency program; provided that the sum of the Applicable Adjustment Addbacks for any Adjustment Periods will not exceed $500,000,000 in the aggregate.
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(d) Section 5.01(f) is amended in full to read as follows:
Interest Coverage Ratio. The Company shall maintain, for each period of four consecutive fiscal quarters of the Company an Interest Coverage Ratio of not less than 3.50 to 1.00, provided that the Company shall only be required to maintain an Interest Coverage Ratio of not less than 2.50 to 1.00 from the Company’s second fiscal quarter of fiscal year 2020 through the end of the Company’s fiscal year 2021.
SECTION 2. Conditions of Effectiveness. This Amendment shall become effective as of the date hereof, as of which the Administrative Agent shall confirm to the Company that it has received the following in form and substance satisfactory to the Administrative Agent:
(a) Executed Counterparts. Counterparts of this Amendment executed by the Company and the Lenders party to the Credit Agreement constituting the Required Lenders;
(b) Amendment Fee. Payment by the Company to each of the Executing Lenders a one-time amendment fee in an amount equal to five (5) basis points of each such Executing Lender’s Commitment; and
(c) Fees and Expenses. Payment by the Company in full of the costs, expenses, and fees as set forth in Section 8.04(a) of the Credit Agreement.
SECTION 3. Representations and Warranties The Company represents and warrants to the Lenders and the Administrative Agent, as to itself and each of its Subsidiaries, that (a) the representations and warranties set forth in Article IV of the Credit Agreement and in each of the other Loan Documents that have been entered into by the Company or any of the Designated Borrowers are true and correct in all material respects on the date hereof as if made on and as of the date hereof (or, if any such representation or warranty is expressly stated to have been made as of a specific date, such representation and warranty shall be true and correct in all material respects as of such specific date) and as if each reference in said Article IV to “this Agreement” included reference to this Amendment and (b) no Default or Event of Default has occurred and is continuing.
SECTION 4. Reference to and Effect on the Loan Documents. (a) On and after the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof’ or words of like import referring to the Credit Agreement, and each reference in the Notes and each of the other Loan Documents 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 Amendment.
(b) The Credit Agreement, the Notes and each of the other Loan Documents, as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.
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(c) 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 or the Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
(d) This Amendment constitutes a Loan Document.
SECTION 5. Costs and Expenses The Borrower agrees to pay on demand all costs and expenses of the Agent in connection with the preparation, execution, delivery, administration, modification and amendment of this Amendment and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel for the Agent) in accordance with the terms of Section 8.04 of the Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment 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 Amendment by telecopier or other electronic communication shall be effective as delivery of a manually executed counterpart of this Amendment. The words “execution,” “signed,” “signature” and words of like import in this Amendment shall be deemed to include electronic signatures or the keeping of records in electronic form, 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 in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided, further, that, without limiting the foregoing, upon the request of any party hereto, any electronic signature shall be promptly followed by such manually executed counterpart.
SECTION 7. Applicable Law, Jury Waiver and Jurisdiction. The provisions set forth in Sections 8.11 (Governing Law; Waiver of Jury Trial) and 8.13 (Submission to Jurisdiction; Etc.) of the Credit Agreement shall apply to this Amendment and are hereby incorporated by reference, mutatis mutandis, with the same force and effect as if fully set forth in this Amendment (and as if each reference to “this Agreement” were a reference to this Amendment).
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EXECUTION COPY
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
| XXXXXXX XXXXX & XXXXXX, INC. | ||
| By: | /s/ Xxxxxx X. Xxxxxxxxxxx | |
| Name: | Xxxxxx X. Xxxxxxxxxxx | |
| Title: | Vice President, Treasury | |
| CITIBANK, N.A., | ||
| as Administrative Agent and as Lender | ||
| By: | /s/ Xxxxxxx Xxx | |
| Name: | Xxxxxxx Xxx | |
| Title: | Vice President | |
| BANK OF AMERICA, N.A | ||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxxx | |
| Title: | Director | |
| JPMORGAN CHASE BANK, N.A | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Executive Director | |
| XXXXX FARGO BANK, NATIONAL ASSOCIATION | ||
| By: | /s/ Xxx Xxxxx | |
| Name: | Xxx Xxxxx | |
| Title: | Managing Director | |
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| BARCLAYS BANK PLC | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | Director | |
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: | Xxxxxxx Xxxxxx | |
| Title: | Authorized Signatory | |
| By: | /s/ Xxxxx Xxxx | |
| Name: | Xxxxx Xxxx | |
| Title: | Authorized Signatory | |
| DEUTSCHE BANK AG NEW YORK BRANCH | ||
| By: | /s/ Xxxx X. Xxx | |
| Name: | Xxxx X. Xxx | |
| Title: | Director | |
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | Director | |
| XXXXXXX SACHS BANK USA | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Authorized Signatory | |
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| XXXXXX XXXXXXX BANK, N.A. | ||
| By: | /s/ Xxxx Xxxxx | |
| Name: | Xxxx Xxxxx | |
| Title: | Authorized Signatory | |
| MUFG BANK, LTD. | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Authorized Signatory | |
| ROYAL BANK OF CANADA | ||
| By: | /s/ Xxxxxxxx Xxxxxx | |
| Name: | Xxxxxxxx Xxxxxx | |
| Title: | Authorized Signatory | |
| BNP PARIBAS | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Managing Director | |
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | |
| Title: | Director | |
| HSBC BANK USA, NATIONAL ASSOCIATION | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: | Xxxxx X. Xxxxxxxx | |
| Title: | Senior Vice President | |
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| SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) | ||
| By: | /s/ Xxxxxx Xxxx | |
| Name: | Xxxxxx Xxxx | |
| Title: | Authorised Signatory | |
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Authorised Signatory | |
| THE BANK OF NEW YORK MELLON | ||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx, Xx. | |
| Name: | Xxxxxx X. Xxxxxxxxxx, Xx. | |
| Title: | Vice President | |
| U.S. BANK NATIONAL ASSOCIATION | ||
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxx X. Xxxxxx | |
| Title: | Vice President | |
| BANK OF CHINA, NEW YORK BRANCH | ||
| By: | /s/ Xxxxxxx Xxxx | |
| Name: | Xxxxxxx Xxxx | |
| Title: | Executive Vice President | |
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| COMMERZBANK AG, NEW YORK BRANCH | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: | Xxxxxx Xxxxxx | |
| Title: | Director | |
| By: | /s/ Caio Kac | |
| Name: | Caio Kac | |
| Title: | Director | |
| ING BANK N.V., DUBLIN BRANCH | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Director | |
| By: | /s/ Xxxxxx Xxxxxxxx | |
| Name: | Xxxxxx Xxxxxxxx | |
| Title: | Director | |
| TRUIST BANK, successor by merger to SUNTRUST BANK | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | |
| Title: | Senior Vice President | |
| THE BANK OF NOVA SCOTIA | ||
| By: | /s/ Xxxxx XxXxxxxx | |
| Name: | Xxxxx XxXxxxxx | |
| Title: | Director | |
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