EXECUTION VERSION Credit Agreement (2017 Term Loan) [[3673763]] PITNEY BOWES INC. _____________________________ CREDIT AGREEMENT $200,000,000 Dated as of September 12, 2017 ______________________________ JPMORGAN CHASE BANK, N.A., as Administrative...
EXECUTION VERSION
Credit Agreement (2017 Term Loan)
[[3673763]]
PITNEY XXXXX INC.
_____________________________
CREDIT AGREEMENT
$200,000,000
Dated as of September 12, 2017
______________________________
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
___________________________
JPMORGAN CHASE BANK, N.A., CITIBANK, N.A.,
XXXXXXX XXXXX BANK USA,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
and MIZUHO BANK, LTD.
as Joint Lead Arrangers and Joint Bookrunners
BANK OF AMERICA N.A., CITIBANK, N.A.,
XXXXXXX SACHS BANK USA and MIZUHO BANK, LTD.
as Syndication Agents
[CS&M Ref. No. 6702-157]
[[3673763]]
(iv)
ANNEX 1 Commitments
SCHEDULE 8.04 Existing Liens
SCHEDULE 8.08 Subsidiary Indebtedness
EXHIBIT A - Form of Note
EXHIBIT B - Form of Opinion of Internal Counsel for the Borrowers
EXHIBIT C - Form of Assignment and Assumption
EXHIBIT D - Form of Compliance Certificate
EXHIBIT E-1 - Form of U.S. Tax Certificate for Foreign Banks that
are not Partnerships for U.S. Federal Income Tax Purposes
EXHIBIT E-2 - Form of U.S. Tax Certificate for Foreign Participants that
are not Partnerships for U.S. Federal Income Tax Purposes
EXHIBIT E-3 - Form of U.S. Tax Certificate for Foreign Participants that
are Partnerships for U.S. Federal Income Tax Purposes
EXHIBIT E-4 - Form of U.S. Tax Certificate for Foreign Banks that
are Partnerships for U.S. Federal Income Tax Purposes
Credit Agreement
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CREDIT AGREEMENT dated as of September 12, 2017 among PITNEY
XXXXX INC., a corporation duly organized and validly existing under the laws of the State of
Delaware (the “Borrower”); the BANKS (as hereinafter defined) party hereto; and JPMORGAN
CHASE BANK, N.A., as Administrative Agent (the “Administrative Agent”).
The parties hereto agree as follows:
Section 1. Definitions and Accounting Matters.
1.01. Certain Defined Terms. As used herein, the following terms shall have the
following meanings (all terms defined in this Section 1.01 or in other provisions of this
Agreement in the singular to have the same meanings when used in the plural and vice versa):
“2016 Term Loan Agreement” shall mean the Credit Agreement dated as of
January 5, 2016, as amended from time-to-time, among the Borrower, the lenders party thereto,
and JPMorgan Chase Bank, N.A., as Administrative Agent.
“Additional Costs” shall have the meaning assigned to such term in Section 5.01
hereof.
“Adjusted Consolidated EBITDA” shall mean, for any period, the Consolidated
EBITDA for such period minus the Applicable Finance Interest Expense Amount for such
period.
“Administrative Agent” shall have the meaning assigned to such term in the
preamble to this Agreement.
“Administrative Agent’s Account” shall mean an account designated by the
Administrative Agent in a notice to the Borrower and the Banks.
“Administrative Questionnaire” shall mean an Administrative Questionnaire in
the form supplied by the Administrative Agent.
“Advance Date” shall have the meaning assigned to such term in Section 4.06
hereof.
“Affected Bank” shall have the meaning assigned to such term in Section 5.06
hereof.
“Affiliate” shall mean, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is
under common Control with the Person specified.
“Agent Parties” shall have the meaning assigned such term in Section 11.02(d)
hereof.
“Agreement” shall mean this Credit Agreement, dated as of January 5, 2016, by
and among the Borrower, the Banks and the Administrative Agent, as such agreement may be
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amended, amended and restated, restated, supplemented or otherwise modified from time to
time.
“Anti-Corruption Laws” shall mean all laws, rules, and regulations of any
jurisdiction applicable to the Borrower or its Subsidiaries from time to time concerning or
relating to bribery or corruption.
“Applicable Finance Interest Expense Amount” shall mean, for any period, the
amount of financing interest expense for such period (as shown on the consolidated statement of
income of the Borrower for such period), multiplied by 1.75.
“Applicable Lending Office” shall mean, for each Bank and for each Type of
Loan, the “Lending Office” of such Bank (or of an Affiliate or branch of such Bank) designated
for such Type of Loan in such Bank’s Administrative Questionnaire or such other office of such
Bank (or of an Affiliate or branch of such Bank) as such Bank may from time to time specify to
the Administrative Agent and the Borrower as the office by which its Loans of such Type are to
be made and maintained.
“Applicable Rate” shall mean, for any day, with respect to any Eurocurrency
Loan or any Base Rate Loan, the applicable rate per annum set forth below under the caption
“Eurocurrency Spread” or “Base Rate Spread”, respectively, based upon the applicable Xxxxx’x
Rating and/or Standard & Poor’s Rating, on such date:
Standard & Poor’s/Xxxxx’x
Rating (each a “Category”)
Eurocurrency
Spread
Base Rate
Spread
Category 1
BBB+/Baa1 or above
1.125% 0.125%
Category 2
BBB/Baa2
1.250% 0.250%
Category 3
BBB-/Baa3
1.500% 0.500%
Category 4
BB+/Ba1
1.750% 0.750%
Category 5
lower than BB+/Ba1 or unrated
2.250% 1.250%
For purposes of the foregoing, (i) if either Moody’s or Standard & Poor’s shall not have in effect
a Xxxxx’x Rating or a Standard & Poor’s Rating, as the case may be (other than by reason of the
circumstances referred to in the last sentence of this definition), then the Applicable Rate shall be
based upon the remaining rating, (ii) if the Xxxxx’x Rating and the Standard & Poor’s Rating
shall fall within different Categories, the Applicable Rate shall be based on the higher of the two
ratings unless one of the two ratings is two or more Categories lower than the other, in which
case, the Applicable Rate shall be determined by reference to the Category next below that of the
higher of the two ratings, and (iii) if the Xxxxx’x Rating and the Standard & Poor’s Rating
established or deemed to have been established by Moody’s and Standard & Poor’s, respectively,
shall be changed (other than as a result of a change in the rating system of Moody’s or Standard
& Poor’s), such change shall be effective as of the date on which it is first announced by the
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applicable rating agency. Each change in the Applicable Rate shall apply during the period
commencing on the effective date of such change and ending on the date immediately preceding
the effective date of the next such change. If the rating system of Moody’s or Standard & Poor’s
shall change, or if either such rating agency shall cease to be in the business of providing
corporate debt ratings, the Borrower and the Banks shall negotiate in good faith to amend this
definition to reflect such changed rating system or the unavailability of ratings from such rating
agency and, pending the effectiveness of any such amendment, the Applicable Rate shall be
determined by reference to the rating most recently in effect prior to such change or cessation.
“Approved Fund” shall mean any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar extensions of
credit in the ordinary course of its business and that is administered or managed by (a) a Bank,
(b) an Affiliate of a Bank or (c) an entity or an Affiliate of an entity that administers or manages
a Bank.
“Assignment and Assumption” shall mean an agreement substantially in the form
of Exhibit E hereto or any other form approved by the Administrative Agent.
“Bail-In Action” shall mean, as to any EEA Financial Institution, the exercise of
any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect
of any liability of an EEA Financial Institution.
“Bail-In Legislation” shall mean, with respect to any EEA Member Country
implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council
of the European Union, the implementing law for such EEA Member Country from time to time
which is described in the EU Bail-In Legislation Schedule.
“Bank” shall mean the Persons listed on Annex 1 hereto as having a Commitment
and any other Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Assumption.
“Bankruptcy Code” shall mean the United States Bankruptcy Code of 1978, as
amended from time to time.
“Bankruptcy Laws” shall mean the Bankruptcy Code and any other law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts.
“Base Rate” shall mean, for any day, a rate per annum equal to the highest of
(a) the NYFRB Rate for such day plus 0.50%, (b) the Prime Rate for such day and (c) the
Eurocurrency Rate for the offering of Dollar deposits for a one month Interest Period
commencing on such day plus 1.00%; provided that if such rate shall be less than zero, such rate
shall be deemed to be zero. For purposes of clause (c) of the immediately preceding sentence,
such Eurocurrency Rate shall be determined by the Administrative Agent based upon rates
appearing on the applicable Reuters screen page (currently page LIBOR01) displaying interest
rates for dollar deposits in the London interbank market (or, in the event such rate does not
appear on such page of the Reuters screen, on any successor or substitute page on such screen
that displays such rate, or, if there is no such page, on the appropriate page of such other
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information service that publishes such rate as shall be selected by the Administrative Agent
from time to time in its reasonable discretion) at approximately 11:00 a.m., London time, on
such day for deposits in dollars with a maturity of one month. Any change in the Base Rate due
to a change in the NYFRB Rate, the Prime Rate or such Eurocurrency Rate shall be effective
from and including the effective date of such change in the NYFRB Rate, the Prime Rate or such
Eurocurrency Rate, as the case may be.
“Base Rate Loans” shall mean Loans that bear interest at rates based upon the
Base Rate.
“Borrower” shall have the meaning assigned to such term in the preamble to this
Agreement.
“Borrower Materials” shall have the meaning assigned such term in
Section 11.02(d) hereof.
“Business Day” shall mean any day (a) on which commercial banks are not
authorized or required to close in New York City, and (b) if such day relates to a borrowing of, a
payment or prepayment of principal of or interest on, or a Conversion of or into, or an Interest
Period for, a Eurocurrency Loan or a notice by the Borrower with respect to any such borrowing,
payment, prepayment, Conversion or Interest Period, that is also a day on which dealings in
deposits denominated in Dollars are carried out in the London interbank market.
“Capital Lease Obligations” shall mean, for any Person, all obligations of such
Person to pay rent or other amounts under a lease of (or other agreement conveying the right to
use) Property to the extent such obligations are required to be classified and accounted for as a
capital lease on a balance sheet of such Person under GAAP, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount thereof, determined
in accordance with GAAP.
“Captive Finance Debt” shall mean, as at any date of determination, the average
of the aggregate gross finance receivables of the Borrower and its Subsidiaries as at the end of
the five most recently completed consecutive fiscal quarters ending on or prior to such date, as
shown on the consolidated balance sheets of the Borrower as at the end of such fiscal quarter or
the relevant fiscal year (as applicable), multiplied by a fraction the numerator of which is ten and
the denominator of which is eleven.
“Closing Date” shall mean the date of this Agreement.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to
time.
“Commitment” shall mean, with respect to each Bank, the commitment of such
Bank to make Loans hereunder, expressed as an amount representing the maximum aggregate
amount of the Loans to be made by such Bank hereunder, as such commitment may be reduced
or increased from time to time pursuant to assignments by or to such Bank pursuant to
Section 11.06 hereof. The initial amount of each Bank’s Commitment is set forth on Annex 1
hereto, or in the Assignment and Assumption or other instrument pursuant to which such Bank
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shall have assumed its Commitment, as applicable. As of the Closing Date, the aggregate
amount of the Banks’ Commitments is $200,000,000.
“Compliance Certificate” shall mean a Compliance Certificate substantially in the
form of Exhibit H or any other form approved by the Administrative Agent.
“Consolidated EBITDA” shall mean, for any period, an amount determined for
the Borrower and its Subsidiaries on a consolidated basis equal to Consolidated Net Income for
such period plus (a) without duplication and to the extent deducted in determining Consolidated
Net Income for such period, the sum of (i) interest expense (excluding financing interest
expense), (ii) depreciation expense, (iii) amortization expense, (iv) non-cash stock-option based
and other equity-based compensation expenses, (v) other non-cash extraordinary, unusual or
non-recurring charges, expenses or losses (including, whether or not otherwise includable as a
separate item in the statement of such Consolidated Net Income for such period, losses on sales
of assets outside of the ordinary course of business and non-cash restructuring charges, but
excluding any such non-cash charge to the extent that it represents an accrual or reserve for
potential cash charge in any future period or amortization of a prepaid cash charge that was paid
in a prior period) and (vi) cash restructuring charges (not exceeding $450,000,000 in the
aggregate after December 31, 2014), and minus (b) without duplication and to the extent
included in determining Consolidated Net Income for such period, the sum of (i) interest income
(excluding financing interest income) and (ii) non-cash extraordinary, unusual or non-recurring
income or gains increasing Consolidated Net Income for such period (including, whether or not
otherwise includable as a separate item in the statement of such Consolidated Net Income for
such period, gains on the sales of assets outside of the ordinary course of business, but excluding
any such non-cash gain to the extent it represents the reversal of an accrual or reserve for
potential cash gain in any prior period); provided that, for purposes of calculating Consolidated
EBITDA of the Borrower and its Subsidiaries for any period, (A) the Consolidated EBITDA of
any Person or Properties constituting a division or line of business of any business entity,
division or line of business, in each case, acquired by the Borrower or any of its Subsidiaries
that, together with any other such acquisitions during such period, involves the payment of
consideration by the Borrower and its Subsidiaries in excess of $25,000,000 in the aggregate
during such period shall be included on a pro forma basis for such period (but assuming the
consummation of such acquisition occurred on the first day of such period) and (B) the
Consolidated EBITDA of any Person or Properties constituting a division or line of business of
any business entity, division or line of business, in each case, sold, assigned, transferred or
otherwise disposed of by the Borrower or any of its Subsidiaries that, together with any other
such dispositions during such period, yields gross proceeds to the Borrower and its Subsidiaries
in excess of $25,000,000 in the aggregate during such period shall be excluded for such period
(assuming the consummation of such disposition occurred on the first day of such period).
“Consolidated Net Income” shall mean, for any period, the consolidated income
(or loss) from continuing operations before income taxes of the Borrower and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a
Subsidiary of the Borrower or is merged into or consolidated with the Borrower or any of its
Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary of the Borrower)
in which the Borrower or any of its Subsidiaries has an ownership interest, except to the extent
that any such income is actually received by the Borrower or such Subsidiary in the form of
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dividends or similar distributions and (c) the undistributed earnings of any Subsidiary of the
Borrower to the extent that the declaration or payment of dividends or similar distributions by
such Subsidiary is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Subsidiary.
“Consolidated Net Tangible Assets” shall have the meaning assigned to such term
in Section 8.04 hereof.
“Continuation” and “Continued” shall refer to the continuation pursuant to
Section 2.08 hereof of a Eurocurrency Loan from one Interest Period to the next Interest Period
for such Loan.
“Control” shall mean the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings
correlative thereto.
“Conversion” and “Converted” shall refer to a conversion pursuant to
Section 2.08 hereof of one Type of Loan into another Type of Loan, which may be accompanied
by the transfer by a Bank (at its sole discretion) of a Loan from one Applicable Lending Office to
another.
“Credit Exposure” shall mean, with respect to any Bank at any time, the sum of
the outstanding principal amount of such Bank’s Loans at such time.
“Debtor Relief Laws” means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor
relief laws of the United States or other applicable jurisdictions from time to time in effect.
“Default” shall mean an Event of Default or an event that with notice or lapse of
time or both would become an Event of Default.
“Dollars” and “$” shall mean lawful money of the United States of America.
“Domestic Subsidiary” shall mean any Subsidiary of the Borrower that is
organized under the laws of any State of the United States of America (including the District of
Columbia).
“EEA Financial Institution” shall mean (a) any institution established in any EEA
Member Country that is subject to the supervision of an EEA Resolution Authority, (b) any
entity established in an EEA Member Country that is a parent of an institution described in
clause (a) of this definition, or (c) any institution established in an EEA Member Country that is
a subsidiary of an institution described in clause (a) or (b) of this definition and is subject to
consolidated supervision with its parent.
“EEA Member Country” shall mean any of the member states of the European
Union, Iceland, Liechtenstein and Norway.
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“EEA Resolution Authority” shall mean any public administrative authority or
any Person entrusted with public administrative authority of any EEA Member Country
(including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Environmental Laws” shall mean any and all present and future Federal, state,
local and foreign laws, rules or regulations, and any orders or decrees, in each case as now or
hereafter in effect, relating to the regulation or protection of human health, safety or the
environment or to emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals or toxic or hazardous substances or wastes into the indoor or outdoor
environment, including, without limitation, ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
“ERISA Affiliate” shall mean any corporation or trade or business that is a
member of any group of organizations (i) described in Section 414(b) or (c) of the Code of which
the Borrower is a member and (ii) solely for purposes of potential liability under
Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code and the lien created under
Section 302(f) of ERISA and Section 412(n) of the Code, described in Section 414(m) or (o) of
the Code of which the Borrower is a member.
“EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation
Schedule published by the Loan Market Association (or any successor person), as in effect from
time to time.
“Eurocurrency Loans” shall mean Loans that bear interest at rates based on rates
referred to in the definition of “Eurocurrency Rate” in this Section 1.01.
“Eurocurrency Rate” shall mean, for any Eurocurrency Loan for any Interest
Period, a rate per annum determined by the Administrative Agent to be equal to:
(a) the applicable Screen Rate at approximately 11:00 a.m., London time,
on the Quotation Date prior to the commencement of such Interest Period, for the
offering of deposits denominated in Dollars and for a period comparable to such Interest
Period;
(b) If no Screen Rate shall be available for a particular Interest Period (the
“Impacted Interest Period”) but Screen Rates shall be available for the offering of
deposits for maturities both longer and shorter than such Interest Period, then the
Eurocurrency Rate for such Interest Period shall be the Interpolated Rate; or
(c) if no Screen Rate is available for such Interest Period (or for the
offering of deposits for maturities both longer and shorter than such Interest Period), or if
the Screen Rate, in the reasonable judgment of the Majority Banks, shall cease accurately
to reflect the rates applicable to the offering of deposits denominated in Dollars and for a
period comparable to such Interest Period (as reported by any publicly available source of
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similar market data selected by such Majority Banks that, in the reasonable judgment of
such Majority Banks, accurately reflects such rates), the Eurocurrency Rate shall mean,
with respect to any Eurocurrency Loan for any Interest Period, the arithmetic mean, as
determined by the Administrative Agent, of the rates per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) quoted by the Reference Banks at approximately
11:00 a.m. London time (or as soon thereafter as practicable) two Business Days prior to
the first day of the Interest Period for such Eurocurrency Loan for the offering by such
Reference Banks to leading banks in the London interbank market of deposits in Dollars
for a period comparable to such Interest Period; provided that (i) each Reference Bank
agrees to use its best efforts to furnish timely information to the Administrative Agent for
purposes of determining the Eurocurrency Rate, (ii) if any Reference Bank does not
furnish such timely information for determination of the Eurocurrency Rate, the
Administrative Agent shall determine such interest rate on the basis of timely information
furnished by the remaining Reference Banks and (iii) the Administrative Agent will not
disclose to any party hereto (A) the rates quoted by the individual Reference Banks or (B)
if one or more of the Reference Banks shall not have quoted a rate, the fact that the
Eurocurrency Rate is being determined on the basis of the rates quoted by fewer than all
the Reference Banks.
Notwithstanding the foregoing, if the Eurocurrency Rate, determined as provided above, would
otherwise be less than zero, then the Eurocurrency Rate shall be deemed to be zero for all
purposes.
“Events of Default” shall have the meaning assigned to such term in Section 9
hereof.
“Excluded Taxes” shall mean, with respect to the Administrative Agent, any Bank
or any other recipient of any payment to be made (a) by or on account of any obligation of the
Borrower, income or franchise Taxes imposed on (or measured by) its net income or net profit
(however denominated), branch profits and franchise Taxes, in each case, (i) imposed by the
United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Bank, in which its
applicable lending office is located or (ii) that are Other Connection Taxes; or (b) in the case of a
Bank, (i) any U.S. Federal withholding Tax that is in effect and would apply to amounts payable
with respect to an applicable interest in a Loan or Commitment to such Bank (or SPC of such
Bank) by the Borrower or any Domestic Subsidiary at the time such Bank acquires such interest
in the Loan or Commitment or at the time it designates a new lending office for purposes hereof
or transfers to an SPC pursuant to Section 11.06 hereof (other than pursuant to an assignment
request by the Borrower under Section 5.06 hereof), except to the extent that such Bank, in the
case of a designation of a new lending office (or its assignor, in the case of an assignment, or the
Granting Bank, in the case of a transfer to an SPC, as the case may be) was entitled, immediately
before such designation (or such assignment or such transfer, as the case may be), to receive
additional amounts with respect to such withholding Tax pursuant to Section 5.05 hereof, (ii) any
withholding Tax that is attributable to such Bank’s failure or inability to comply with
Section 5.05(e) hereof or (iii) any U.S. Federal withholding Tax imposed by FATCA.
“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of
this Agreement (or any amended or successor version that is substantively comparable and not
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materially more onerous to comply with), any current or future regulations or official
interpretations thereof, any applicable intergovernmental agreements between a non-U.S.
jurisdiction and the United States with respect thereto, any law, regulations, or other official
guidance enacted in a non-U.S. jurisdiction relating to an intergovernmental agreement related
thereto, and any agreements entered into pursuant to Section 1471(b) of the Code.
“Federal Funds Rate” shall mean, for any day, the rate calculated by the NYFRB
based on such day’s federal funds transactions by depository institutions (as determined in such
manner as the NYFRB shall set forth on its public website from time to time) and published on
the next succeeding Business Day by the NYFRB as the federal funds effective rate; provided
that if such rate shall be less than zero, such rate shall be deemed to be zero for all purposes of
this Agreement.
“Foreign Bank” shall mean any Bank that is organized under the laws of a
jurisdiction other than the United States of America. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute
a single jurisdiction.
“Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic
Subsidiary.
“Funding Date” means the date on which Loans are made pursuant to Section
2.01.
“GAAP” shall mean generally accepted accounting principles applied on a basis
consistent with those that, in accordance with the last sentence of Section 1.03(a) hereof, are to
be used in making the calculations for purposes of determining compliance with this Agreement.
“Governmental Authority” shall mean the government of the United States of
America or any other nation, or any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or other entity (including
any federal or other association of or with which any such nation may be a member or
associated) exercising executive, legislative, judicial, taxing, regulatory or administrative powers
or functions of or pertaining to government.
“Granting Bank” shall have the meaning specified in Section 11.06(b) hereof.
“Guarantee” shall mean a guarantee, an endorsement, a contingent agreement to
purchase or to furnish funds for the payment or maintenance of, or otherwise to be or become
contingently liable under or with respect to, the Indebtedness, other obligations, net worth,
working capital or earnings of any Person, or a guarantee of the payment of dividends or other
distributions upon the stock or equity interests of any Person, or an agreement to purchase, sell or
lease (as lessee or lessor) Property, products, materials, supplies or services primarily for the
purpose of enabling a debtor to make payment of such debtor’s obligations or an agreement to
assure a creditor against loss, and including, without limitation, causing a bank or other financial
institution to issue a letter of credit or other similar instrument for the benefit of another Person,
but excluding endorsements for collection or deposit in the ordinary course of business. The
terms “Guarantee” and “Guaranteed” used as a verb shall have a correlative meaning.
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“Impacted Interest Period” shall have meaning assigned to such term in the
definition of “Eurocurrency Rate”.
“Indebtedness” shall mean, for any Person: (a) obligations created, issued or
incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt
securities or the sale of Property to another Person subject to an understanding or agreement,
contingent or otherwise, to repurchase such Property from such Person); (b) obligations of such
Person to pay the deferred purchase or acquisition price of Property or services, other than trade
accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the
ordinary course of business so long as such trade accounts payable are payable within 90 days of
the date the respective goods are delivered or the respective services are rendered;
(c) Indebtedness of others secured by a Lien on the Property of such Person, whether or not the
respective indebtedness so secured has been assumed by such Person; (d) obligations of such
Person in respect of letters of credit or similar instruments issued or accepted by banks and other
financial institutions for account of such Person; (e) Capital Lease Obligations of such Person;
and (f) Guarantees by such Person of Indebtedness of others.
“Indemnified Taxes” shall mean (a) Taxes, other than Excluded Taxes, imposed
on or with respect to any payment made by or on account of any obligation of the Borrower
under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee” shall have the meaning assigned to such term in Section 11.03
hereof.
“Index Debt” shall mean senior, unsecured, long-term indebtedness for borrowed
money of the Borrower that is not guaranteed by any other Person or subject to any other credit
enhancement.
“Interest Period” shall mean:
(a) with respect to any Eurocurrency Loan, each period commencing on the date
such Eurocurrency Loan is made or Converted from a Loan of another Type or (in the
event of a Continuation) the last day of the next preceding Interest Period for such Loan
and ending on the numerically corresponding day in the first, second, third, sixth or, if
agreed by all of the Banks, twelfth calendar month thereafter, or any other period to
which all of the Banks have consented, as the Borrower may select as provided in
Section 4.05 hereof, provided that each Interest Period that commences on the last
Business Day of a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end on the last
Business Day of the appropriate subsequent calendar month; and
(b) with respect to any Base Rate Loan, the period commencing on the date such
Base Rate Loan is made and ending on the earlier of the first Quarterly Date thereafter or
the Maturity Date.
Notwithstanding the foregoing, (i) if any Interest Period for any Loan would
otherwise end after the Maturity Date, such Interest Period shall not be available hereunder for
such period; (ii) each Interest Period that would otherwise end on a day that is not a Business
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Day shall end on the next succeeding Business Day (or, in the case of an Interest Period for a
Eurocurrency Loan, if such next succeeding Business Day falls in the next succeeding calendar
month, on the next preceding Business Day); and (iii) no Interest Period for any Loan (other than
a Base Rate Loan) shall have a duration of less than one month and, if the Interest Period for any
Eurocurrency Loan would otherwise be a shorter period, such Loan shall not be available
hereunder for such period.
“Interpolated Rate” shall mean, at any time, for any Impacted Interest Period, the
rate per annum (rounded to the same number of decimal places as the Screen Rate) determined
by the Administrative Agent (which determination shall be conclusive and binding absent
manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a)
the Screen Rate for the longest period for which a Screen Rate is available that is shorter than
such Impacted Interest Period and (b) the Screen Rate for the shortest period for which a Screen
Rate is available that is longer than the Impacted Interest Period, in each case at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.
“IRS” shall mean the United States Internal Revenue Service.
“JPMCB” shall mean JPMorgan Chase Bank, N.A., and its successors.
“Leverage Ratio” shall mean, on the last day of any fiscal quarter, the ratio of (a)
Total Adjusted Debt on such day to (b) Adjusted Consolidated EBITDA for the period of four
consecutive fiscal quarters then ended.
“Lien” shall mean, with respect to any Property, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such Property. For purposes of
this Agreement, a Person shall be deemed to own subject to a Lien any Property that it has
acquired or holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement (other than an operating lease) relating
to such Property.
“Loan Documents” shall mean, collectively, this Agreement and the Notes.
“Loans” shall mean the loans made pursuant to Section 2.01.
“Majority Banks” shall mean, at any time, Banks having outstanding Loans and
unused Commitments representing more than 50% of the sum of the aggregate outstanding
Loans and unused Commitments at such time.
“Margin Stock” shall mean “margin stock” within the meaning of Regulations U
and X.
“Material Adverse Effect” shall mean a material adverse effect on (a) the
Property, business, operations, financial condition, liabilities or capitalization of the Borrower
and its Subsidiaries taken as a whole, (b) the ability of the Borrower to perform its obligations
hereunder and under the other Loan Documents, (c) the validity or enforceability of this
Agreement or any of the other Loan Documents, (d) the rights and remedies of the Banks and the
Administrative Agent hereunder and under the other Loan Documents or (e) the timely payment
of the principal of or interest on the Loans or other amounts payable in connection therewith.
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“Maturity Date” shall mean the third anniversary of the Funding Date.
“Moody’s” shall mean Xxxxx’x Investors Service, Inc.
“Xxxxx’x Rating” shall mean, at any time, the then current rating by Moody’s of
the Index Debt.
“Multiemployer Plan” shall mean a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been made by the Borrower or any of its
ERISA Affiliates and that is covered by Title IV of ERISA.
“Neutron” shall mean NGS Holdings, Inc., a Delaware corporation.
“Neutron Acquisition” shall mean the acquisition by the Borrower, directly or
indirectly, pursuant to the terms of the Neutron Acquisition Agreement, of all or substantially all
the equity interests of Neutron for “Merger Consideration” (as defined in the Neutron
Acquisition Agreement) consisting of cash.
“Neutron Acquisition Agreement” shall mean that certain Agreement and Plan of
Merger dated as of September 6, 2017, among the Borrower, Neutron Acquisition Corp., NGS
Holdings, Inc. and Xxxxxxxxxx Fund IV, L.P., together with all schedules, exhibits and disclosure
letters related thereto.
“Neutron Acquisition Closing Date” shall mean the date on which the Neutron
Acquisition is consummated.
“Neutron Acquisition Transactions” shall mean the Neutron Acquisition, together
with the other financing transactions related to the Neutron Acquisition (including the
redemption of the Borrower’s 4.75% Medium Term Notes due 2018 and any redemptions or
repayments by the Borrower of existing Indebtedness of Neutron or any of its subsidiaries made
in connection with the Neutron Acquisition) and the payment of fees and expenses incurred in
connection with the foregoing.
“Notes” shall mean the promissory notes, if any, executed and delivered pursuant
to Section 2.07(b) and all promissory notes delivered in substitution or exchange thereof, in each
case as the same shall be modified and supplemented and in effect from time to time.
“NYFRB” shall mean the Federal Reserve Bank of New York.
“NYFRB Rate” shall mean, for any day, the greater of (a) the Federal Funds Rate
in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any
day that is not a Business Day, for the immediately preceding Business Day); provided that if
none of such rates are published for any day that is a Business Day, the term “NYFRB Rate”
shall mean the rate for a federal funds transaction quoted at 11:00 a.m., New York City time, on
such day received by the Administrative Agent from a Federal funds broker of recognized
standing selected by it; provided, further, that if any of the aforesaid rates shall be less than zero,
such rate shall be deemed to be zero for purposes of this Agreement.
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“Other Connection Taxes” shall mean, with respect to the Administrative Agent,
any Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower, Taxes imposed as a result of a present or former connection between such
recipient and the jurisdiction imposing such Tax (other than connections arising from such
recipient having executed, delivered, become a party to, performed its obligations under,
received payments under, received or perfected a security interest under, engaged in any other
transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any
Loan or Loan Document).
“Other Taxes” shall mean any and all present or future stamp, court or
documentary, intangible, recording, filing or similar Taxes or any other excise or property Taxes,
charges or similar levies arising from any payment made under, from the execution, delivery,
performance, registration or enforcement of, from the receipt or perfection of a security interest
under, or otherwise with respect to, this Agreement or any other Loan Document, except any
such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than
an assignment made pursuant to Section 5.06).
“Overnight Bank Funding Rate” shall mean, for any day, the rate comprised of
both overnight federal funds and overnight Eurodollar borrowings by U.S.-managed banking
offices of depository institutions, as such composite rate shall be determined by the NYFRB as
set forth on its public website from time to time, and published on the next succeeding Business
Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB
shall commence to publish such composite rate).
“Participant” shall have the meaning assigned to such term in Section 11.06(c)
hereof.
“Participant Register” has the meaning set forth in Section 11.06(c) hereof.
“Participating Member State” shall mean any member state of the European
Community that adopts or has adopted the euro as its lawful currency in accordance with the
legislation of the European Union relating to the European Monetary Union.
“Payment Date” shall mean the 15th day (or if such day is not a Business Day, the
next following Business Day) of each March, June, September and December, commencing with
March 15, 2018.
“Payor” shall have the meaning assigned to such term in Section 4.06 hereof.
“PBGC” shall mean the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
“Person” shall mean any individual, corporation, company, voluntary association,
partnership, limited liability company, joint venture, trust, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof).
“Plan” shall mean an employee benefit or other plan established or maintained by
the Borrower or any of its ERISA Affiliates and that is covered by Title IV of ERISA, other than
a Multiemployer Plan.
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“Platform” shall have the meaning assigned such term in Section 11.02(d) hereof.
“Post-Default Rate” shall mean a rate per annum equal to 2% plus the Base Rate
as in effect from time to time; provided that, with respect to principal of a Eurocurrency Loan
that shall become due (whether at stated maturity, by acceleration, by optional or mandatory
prepayment or otherwise) on a day other than the last day of the Interest Period therefor, the
“Post-Default Rate” shall be a rate per annum equal to, for the period from and including such
due date to but excluding the last day of such Interest Period, 2% plus the interest rate for such
Loan as provided in Section 3.02 hereof and, thereafter, the rate provided for above in this
definition.
“Prime Rate” shall mean the rate of interest per annum publicly announced from
time to time by JPMCB as its prime rate in effect at its principal office in New York, New York;
each change in the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.
“Property” shall mean any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
“Proposed Bank” shall have the meaning assigned to such term in Section 5.06
hereof.
“Quarterly Dates” shall mean the last Business Day of March, June, September
and December in each year, the first of which shall be the first such day after the Funding Date.
“Quotation Date” shall mean, for any Interest Period, the date two Business Days
prior to the commencement of such Interest Period, provided that if market practice differs in the
relevant interbank market, the “Quotation Date” shall be determined by the Administrative
Agent in accordance with market practice in the relevant interbank market (and if quotations
would normally be given by leading banks in the relevant interbank market on more than one
date, the “Quotation Date” shall be the last of such days).
“Reference Banks” shall mean JPMCB and any other Bank (if any) selected by
the Borrower for this purpose (with the consent of the Administrative Agent (such consent not to
be unreasonably withheld) and such other Bank) (or their respective Applicable Lending Offices,
as the case may be).
“Register” has the meaning set forth in Section 11.06(b) hereof.
“Regulations D, U and X” shall mean, respectively, Regulations D, U and X of
the Board of Governors of the Federal Reserve System (or any successor), as the same may be
modified and supplemented and in effect from time to time.
“Regulatory Change” shall mean the occurrence, after the date of this Agreement
or (with respect to any Bank) such later date on which such Bank becomes a party to this
Agreement, of: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any
change in any law, rule, regulation or treaty or in the administration, interpretation,
implementation or application thereof by any Governmental Authority or (c) the making or
issuance of any request, rule, guideline, requirement or directive (whether or not having the force
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of law) of any Governmental Authority; provided that, notwithstanding anything herein to the
contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests,
rules, guidelines, requirements or directives thereunder or issued in connection therewith or in
implementation thereof and (ii) all requests, rules, guidelines, requirements or directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Regulatory
Change”, regardless of the date enacted, adopted or issued.
“Related Parties” shall mean, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.
“Relevant Jurisdiction” shall mean, with respect to the Borrower or Subsidiary,
the jurisdiction of its organization.
“Required Payment” shall have the meaning assigned such term in Section 4.06
hereof.
“Revolver” shall mean the Credit Agreement dated as of January 6, 2015, as
amended from time to time, among the Borrower, the subsidiary borrowers party thereto, the
banks party thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent.
“Sanctioned Country” shall mean, at any time, a country, region or territory which
itself is the subject of any Sanctions (which countries, regions and territories are as of the date
hereof Crimea, Cuba, Iran, North Korea, Sudan and Syria).
“Sanctions” shall mean economic or financial sanctions or trade embargoes
imposed, administered or enforced from time to time by (a) the U.S. government, including those
administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or
the U.S. Department of State, or (b) the United Nations Security Council, the European Union or
Her Majesty’s Treasury of the United Kingdom.
“Screen Rate” shall mean, in respect of the Eurocurrency Rate for any Interest
Period, a rate per annum equal to the London interbank offered rate as administered by the ICE
Benchmark Administration (or any other Person that takes over the administration of such rate)
for deposits in Dollars with a term equivalent to such Interest Period as displayed on the Reuters
screen page that displays such rate (currently Reuters Screen Page LIBOR01 or LIBOR02) (or,
in the event such rate does not appear on such page of the Reuters screen, on any successor or
substitute page on such screen that displays such rate, or, in the absence of any such page, on the
appropriate page of such other information service that publishes such rate as shall be selected by
the Administrative Agent from time to time in its reasonable discretion).
“SEC” shall mean the Securities and Exchange Commission or any governmental
authority succeeding to its principal functions.
“Securitization Transaction” shall mean, any sale or sales of any accounts
receivable, general intangibles, chattel paper or other financial assets and related rights and
assets of the Borrower and/or any of its Subsidiaries (including revolving sales of such assets),
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and financing secured by the assets so sold. The “amount” or “principal amount” of any
Securitization Transaction shall be deemed to mean the aggregate amount paid to the Borrower
and its Subsidiaries in respect of such transactions, as the same may be reduced from time to
time by the amount of such payments attributable to sold assets that have been collected or that
have been written off as uncollectible.
“SPC” shall have the meaning specified in Section 11.06(b) hereof.
“Standard & Poor’s” shall mean Standard & Poor’s Ratings Services.
“Standard & Poor’s Rating” shall mean, at any time, the then current rating by
Standard & Poor’s of the Index Debt.
“Subsidiary” shall mean, with respect to any Person, any corporation, partnership
or other entity of which at least a majority of the securities or other ownership interests having
by the terms thereof ordinary voting power to elect a majority of the board of directors or other
persons performing similar functions of such corporation, partnership or other entity (irrespective
of whether or not at the time securities or other ownership interests of any other class or classes
of such corporation, partnership or other entity shall have or might have voting power by reason
of the happening of any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and one or more
Subsidiaries of such Person.
“Syndicated”, when used in reference to any Loan, refers to whether such Loan is
made pursuant to Section 2.01 hereof.
“Taxes” shall mean any and all present or future taxes, levies, imposts, duties,
deductions, withholdings (including backup withholding), assessments, fees or other similar
charges imposed by any Governmental Authority, including any interest, additions to tax or
penalties applicable thereto.
“Total Adjusted Debt” shall mean, at any time, the total Indebtedness of the
Borrower and its Subsidiaries as reflected on the Borrower’s consolidated balance sheet in
accordance with GAAP at such time minus the Captive Finance Debt at such time; provided that
at all times prior to (but not after) the earlier to occur of (i) the Neutron Acquisition Closing Date
and (ii) in the event that the Neutron Acquisition Agreement terminates or expires for any reason
other than the consummation of the Neutron Acquisition, the date that is 45 days after the date of
such termination or expiration, Total Adjusted Debt shall exclude the amount, up to an aggregate
amount of $825,000,000, of any Indebtedness issued or incurred by the Borrower and/or any of
its Subsidiaries to finance the Neutron Acquisition Transactions.
“Transactions” means the execution, delivery and performance by the Borrower
of this Agreement and the borrowing of Loans hereunder.
“Type” shall have the meaning assigned to such term in Section 1.04 hereof.
“U.S. Person” means a “United States person” within the meaning of Section
7701(a)(30) of the Code.
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Agent shall promptly communicate such notice to each Bank. Not later than 1:00 p.m. New
York City time on the date specified for the borrowing of Loans hereunder, each Bank shall
make available the amount of the Loan to be made by it on such date to the Administrative
Agent’s Account, in immediately available funds, for account of the Borrower. The amount so
received by the Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower by depositing the same, in immediately available
funds, in an account of the Borrower designated by it and maintained with JPMCB or otherwise
by remitting the same to any other account of the Borrower in accordance with its instructions.
2.03. Changes of Commitments.
(a) The aggregate amount of the Commitments shall be automatically reduced to
zero on the earlier to occur of (i) disbursement of funds on the Funding Date, or (ii) at 5:00 p.m.,
New York City time, on September 30, 2017.
(b) The Borrower shall have the right at any time or from time to time (i) to
terminate the Commitments and (ii) to reduce the aggregate Commitments; provided that (x) the
Borrower shall give notice of each such termination or reduction as provided in Section 4.05
hereof and (y) each partial reduction shall be in an aggregate amount at least equal to
$15,000,000 (or whole multiples thereof) or the unused amount of the Commitments.
(c) The Commitments once terminated or reduced may not be reinstated.
2.04. Lending Offices. The Loans of each Type made by each Bank shall be
made and maintained at such Bank’s Applicable Lending Office for Loans of such Type.
2.05. Certain Fees. (a) The Borrower agrees to pay to the Administrative Agent,
in US Dollars, for the account of each Bank, a fee (the “Commitment Fee”) in an amount equal
to 0.20% per annum on the daily amount of the Commitment of such Bank then outstanding
(whether or not effective under Section 6.01), accruing from and including the 15th day
following the Closing Date to but excluding the earlier of the Funding Date and the date on
which the Commitments terminate (such earlier date being called the “Commitment Fee Payment
Date”). The Commitment Fees, if any, shall be due and payable on the Commitment Fee
Payment Date, shall be computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last day).
(b) The Borrower agrees to pay to the Administrative Agent, for its own account,
fees payable in the amounts and at the times separately agreed upon between the Borrower and
the Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, in the case of the Commitment
Fees, to the Banks. Fees paid shall not be refundable under any circumstances.
2.06. Several Obligations; Remedies Independent. The failure of any Bank to
make any Loan to be made by it shall not relieve any other Bank of its obligation to make its
Loan, but neither any Bank nor the Administrative Agent shall be responsible for the failure of
any other Bank to make a Loan to be made by such other Bank, and (except as otherwise
provided in Section 4.06 hereof) no Bank shall have any obligation to the Administrative Agent
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Promptly after the determination of any interest rate provided for herein or any change therein,
the Administrative Agent shall give notice thereof to the Banks to which such interest is payable
and to the Borrower.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01. Payments.
(a) Except to the extent otherwise provided herein, all payments of principal,
interest, fees and other amounts to be made by the Borrower under this Agreement and the Notes
shall be made in immediately available funds, without deduction, set-off or counterclaim, to the
Administrative Agent’s Account not later than 1:00 p.m. New York City time on the date on
which such payment shall become due (each such payment made after such time on such due
date to be deemed to have been made on the next succeeding Business Day). All amounts owing
under this Agreement or under any other Loan Document are payable in Dollars.
(b) Any Bank for whose account any such payment is to be made may (but shall
not be obligated to) debit the amount of any such payment that is not made by such time to any
ordinary deposit account of the Borrower with such Bank (with notice to the Borrower and the
Administrative Agent), provided that such Bank’s failure to give such notice shall not affect the
validity thereof.
(c) The Borrower shall, at the time of making each payment under this
Agreement or any Note for account of any Bank, specify to the Administrative Agent (which
shall so notify the intended recipient(s) thereof) the Loans or other amounts payable by the
Borrower hereunder to which such payment is to be applied (and in the event that the Borrower
fails to so specify, or if an Event of Default has occurred and is continuing, the Administrative
Agent may distribute such payment to the Banks, for application in such manner, subject to
Section 4.02 hereof, as it or the Majority Banks may determine to be appropriate).
(d) Each payment received by the Administrative Agent under this Agreement or
any Note for account of any Bank shall be paid by the Administrative Agent promptly to such
Bank, in immediately available funds, for account of such Bank’s Applicable Lending Office for
the Loan or other obligation in respect of which such payment is made.
(e) If the due date of any payment under this Agreement or any Note would
otherwise fall on a day that is not a Business Day, such date shall be extended to the next
succeeding Business Day, and interest shall be payable for any principal so extended for the
period of such extension.
(f) If any Bank shall fail to make any payment required to be made by it pursuant
to Section 4.06 or 10.05, then the Administrative Agent may, in its discretion and
notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received under
this Agreement by the Administrative Agent for the account of such Bank and for the benefit of
the Administrative Agent to satisfy such Bank’s obligations under such Sections until all such
unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account
as cash collateral for, and application to, any future funding obligations of such Bank under such
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Sections; in the case of each of (i) and (ii) above, in any order as determined by the
Administrative Agent in its discretion.
4.02. Pro Rata Treatment. Except to the extent otherwise provided herein,
(a) each borrowing of Loans under Section 2.01 hereof shall be made from the Banks, and each
termination or reduction of the amount of the Commitments under Section 2.03 hereof shall be
applied to the respective Commitments of the Banks, pro rata according to the amounts of their
respective Commitments; (b) except as otherwise provided in Section 5.04 hereof, Eurocurrency
Loans having the same Interest Period shall be allocated pro rata among the Banks according to
the amounts of their respective Commitments (in the case of making Eurocurrency Loans) or
their respective Eurocurrency Loans having such Interest Period (in the case of Conversions and
Continuation of Eurocurrency Loans); (c) each payment or prepayment of principal of Loans
shall be made for account of the Banks pro rata in accordance with the respective unpaid
principal amounts of the Loans held by them; (d) each payment of interest on Loans shall be
made for account of the Banks pro rata in accordance with the amounts of interest on such Loans
then due and payable to the respective Banks; and (e) each payment of fees under Section 2.03
hereof shall be made for account of the Banks entitled thereto pro rata in accordance with the
amounts of such fees then due and payable to the respective Banks.
4.03. Computations. All interest hereunder and fees under Section 2.03 hereof
shall be computed on the basis of a year of 360 days, except that interest computed by reference
to the Base Rate at times when the Base Rate is based on the Prime Rate and interest on all
Loans denominated in Pounds Sterling shall be computed on the basis of a year of 365 days (or
366 days in a leap year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
4.04. Minimum Amounts. Except for prepayments made pursuant to
Section 5.04 hereof, each borrowing, Conversion and partial prepayment of principal of (x) Base
Rate Loans shall be in an aggregate amount at least equal to $1,000,000 or a larger multiple of
$1,000,000 and (y) Eurocurrency Loans shall be in an aggregate amount at least equal to
$15,000,000 or a larger multiple of $1,000,000 (borrowings, Conversions or prepayments of or
into Loans of different Types or, in the case of Eurocurrency Loans, having different Interest
Periods at the same time hereunder to be deemed separate borrowings, Conversions and
prepayments for purposes of the foregoing, one for each Type or Interest Period), provided that
the aggregate principal amount of Eurocurrency Loans having the same Interest Period shall be
in an amount at least equal to $15,000,000 or a larger multiple of $1,000,000 and, if any
Eurocurrency Loans would otherwise be in a lesser principal amount for any period, such Loans
shall be Base Rate Loans during such period.
4.05. Certain Notices. Except as provided in this Section 4.05, notices of
termination or reductions of the Commitments and of borrowings, Conversions, Continuations
and optional prepayments of Loans, of Types of Loans and of the duration of Interest Periods
shall be irrevocable and shall be effective only if received by the Administrative Agent not later
than 11:00 a.m. New York time on the number of Business Days prior to the date of the relevant
termination, reduction, borrowing, Conversion, Continuation or prepayment or the first day of
such Interest Period specified below:
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If any Bank requests compensation from the Borrower under this Section 5.01(a), the Borrower
may, by notice to such Bank (with a copy to the Administrative Agent), suspend the obligation of
such Bank thereafter to make or Continue Eurocurrency Loans, or Convert Base Rate Loans into
Eurocurrency Loans, until the Regulatory Change giving rise to such request ceases to be in
effect (in which case all such Eurocurrency Loans then outstanding to the Borrower shall be
automatically Converted into Base Rate Loans on the last day(s) of the current Interest Period(s)
therefor), provided that such suspension shall not affect the right of such Bank to receive the
compensation so requested.
(b) Without limiting the effect of the foregoing provisions of this Section 5.01
(but without duplication of any other requirement in this Section 5), if any Bank determines that
any Regulatory Change regarding capital or liquidity requirements has or would have the effect
of reducing the rate of return on such Bank’s capital or on the capital of such Bank’s holding
company, if any, as a consequence of this Agreement or the Loans made by such Banks to a level
below that which such Bank or such Bank’s holding company could have achieved but for such
Regulatory Change (taking into consideration such Bank’s policies and the policies of such
Bank’s holding company with respect to capital adequacy and liquidity), then from time to time
the Borrower will pay in Dollars to such Bank such additional amount or amounts as will
compensate such Bank or such Bank’s holding company for any such reduction suffered.
(c) Each Bank shall notify the Borrower of any event occurring after the date
hereof entitling such Bank to compensation under paragraph (a) or (b) of this Section 5.01 as
promptly as practicable, but in any event within 45 days, after such Bank obtains actual
knowledge thereof; provided that (i) if any Bank fails to give such notice within 45 days after it
obtains actual knowledge of such an event, such Bank shall, with respect to compensation
payable pursuant to this Section 5.01 in respect of any costs resulting from such event, only be
entitled to payment under this Section 5.01 for costs incurred from and after the date 45 days
prior to the date that such Bank does give such notice and (ii) each Bank will use its reasonable
efforts to designate a different Applicable Lending Office for the Loans of such Bank affected by
such event if, in the reasonable judgment of such Bank, such designation will avoid the need for,
or reduce the amount of, such compensation in the future and will not, in the sole opinion of such
Bank, be disadvantageous to such Bank, (except that such Bank shall have no obligation to
designate an Applicable Lending Office located in the United States of America). Each Bank
will furnish to the Borrower a certificate setting forth the basis and amount of each request by
such Bank for compensation under paragraph (a) or (b) of this Section 5.01. Determinations and
allocations by any Bank for purposes of this Section 5.01 of the effect of any Regulatory Change
pursuant to paragraph (a) of this Section 5.01, or of the effect of capital or liquidity maintained
pursuant to paragraph (b) of this Section 5.01, on its costs or rate of return of making or
maintaining Loans or its obligation to make Loans, or on amounts receivable by it in respect of
Loans, and of the amounts required to compensate such Bank under this Section 5.01, shall be
conclusive, provided that such determinations and allocations are made on a reasonable basis.
(d) Without limiting the effect of the foregoing, the Borrower shall pay in Dollars
to each Bank on the last day of each Interest Period for each Eurocurrency Loan so long as such
Bank is maintaining reserves against “Eurocurrency liabilities” under Regulation D (or so long
as such Bank is, by reason of any Regulatory Change, maintaining reserves against any other
category of liabilities that includes deposits by reference to which the interest rate on
Eurocurrency Loans is determined as provided in this Agreement or against any category of
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deduction or withholding for any Taxes, except as required by applicable law; provided that if
any withholding agent shall be required by applicable law (as determined in the good faith
discretion of the applicable withholding agent) to deduct or withhold any Taxes from any such
payments, then (i) if such Taxes are Indemnified Taxes, the sum payable by the Borrower shall
be increased as necessary so that after making all required deductions and withholdings
(including deductions and withholdings applicable to additional sums payable under this
Section 5.05) the Administrative Agent or the Bank (as the case may be) receives an amount
equal to the sum it would have received had no such deductions or withholdings been made, (ii)
the applicable withholding agent shall be entitled to make such deductions or withholdings and
(iii) such withholding agent shall timely pay the full amount deducted or withheld to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall timely pay any Other Taxes in respect of the
Borrower to the relevant Governmental Authority in accordance with applicable law, or at the
option of the Administrative Agent timely reimburse it for Other Taxes.
(c) The Borrower shall jointly and severally indemnify the Administrative Agent
and each Bank, within 10 days after written demand to the Borrower therefor, for the full amount
of any Indemnified Taxes in respect of the Borrower (including Indemnified Taxes imposed or
asserted on or attributable to amounts payable under this Section 5.05) payable by, paid by or
required to be withheld or deducted from a payment to the Administrative Agent or such Bank,
as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto (other than penalties and interest resulting from such Person’s gross negligence or
willful misconduct), whether or not such Indemnified Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount (with reasonable
supporting details) of such payment or liability delivered to the Borrower by a Bank (with a copy
to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a
Bank, shall be conclusive absent manifest error.
Each Bank shall severally indemnify the Administrative Agent, within 10 days
after demand therefor, for (i) any Indemnified Taxes attributable to such Bank (or such Bank’s
beneficial owner) (but only to the extent that the Borrower has not already indemnified the
Administrative Agent for such Indemnified Taxes and without limiting the obligation of the
Borrower to do so), (ii) any Taxes attributable to such Bank’s failure to comply with the
provisions of Section 11.06(c) relating to the maintenance of a Participant Register and (iii) any
Excluded Taxes attributable to such Bank (or such Bank’s beneficial owner), in each case, that
are payable or paid by the Administrative Agent in connection with any Loan Document, and
any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to any Bank by the
Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes
the Administrative Agent to set off and apply any and all amounts at any time owing to such
Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank
from any other source against any amount due to the Administrative Agent under this
Section 5.05(c).
(d) As soon as practicable after any payment of Taxes by the Borrower to a
Governmental Authority pursuant to this Section 5.05, the Borrower shall deliver to the
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Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) (i) Any Bank that is entitled to an exemption from or reduction of withholding
Tax with respect to payments made under any Loan Document shall deliver to the Borrower and
the Administrative Agent, at the time or times reasonably requested by the Borrower or the
Administrative Agent, such properly completed and executed documentation reasonably
requested by the Borrower or the Administrative Agent as will permit such payments to be made
without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably
requested by the Borrower or the Administrative Agent, shall deliver such other documentation
prescribed by applicable law or reasonably requested by the Borrower or the Administrative
Agent as will enable the Borrower or the Administrative Agent to determine whether or not such
Bank is subject to backup withholding or information reporting requirements. Notwithstanding
anything to the contrary in the preceding two sentences, the completion, execution and
submission of such documentation (other than such documentation set forth in Section
5.05(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Bank’s reasonable
judgment such completion, execution or submission would subject such Bank to any material
unreimbursed cost or expense or would materially prejudice the legal or commercial position of
such Bank.
(ii) Without limiting the generality of the foregoing, in the event that the
Borrower is a U.S. Person,
(A) any Bank that is a U.S. Person shall deliver to the Borrower and the
Administrative Agent on or prior to the date on which such Bank becomes a Bank under this
Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), executed copies of IRS Form W-9 certifying that such Bank is exempt
from U.S. Federal backup withholding tax;
(B) any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to
the Borrower and the Administrative Agent (in such number of copies as shall be requested by
the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this
Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), whichever of the following is applicable:
(1) in the case of a Foreign Bank claiming the benefits of an income tax
treaty to which the United States is a party (x) with respect to payments of interest
under any Loan Document, executed originals of IRS Form W-8BEN or W-
8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S.
Federal withholding Tax pursuant to the “interest” article of such tax treaty and
(y) with respect to any other applicable payments under any Loan Document, IRS
Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or
reduction of, U.S. Federal withholding Tax pursuant to the “business profits” or
“other income” article of such tax treaty;
(2) executed originals of IRS Form W-8ECI;
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(3) in the case of a Foreign Bank claiming the benefits of the exemption
for portfolio interest under Section 881(c) of the Code, (x) a certificate
substantially in the form of Exhibit I-1 to the effect that such Foreign Bank is not
a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent
shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the
Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of
the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS
Form W-8BEN or W-8BEN-E, as applicable; or
(4) to the extent a Foreign Bank is not the beneficial owner, executed
originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form
W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially
in the form of Exhibit I-2 or Exhibit I-3, IRS Form W-9, and/or other certification
documents from each beneficial owner, as applicable; provided that if the Foreign
Bank is a partnership and one or more direct or indirect partners of such Foreign
Bank are claiming the portfolio interest exemption, such Foreign Bank may
provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-4
on behalf of each such direct and indirect partner;
(C) any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to
the Borrower and the Administrative Agent (in such number of copies as shall be requested by
the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this
Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), executed originals of any other form prescribed by applicable law as a
basis for claiming exemption from or a reduction in U.S. Federal withholding Tax, duly
completed, together with such supplementary documentation as may be prescribed by applicable
law to permit the Borrower or the Administrative Agent to determine the withholding or
deduction required to be made; and
(D) if a payment made to a Bank under any Loan Document would be subject to
U.S. Federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the
applicable reporting requirements of FATCA (including those contained in Section 1471(b) or
1472(b) of the Code, as applicable), such Bank shall deliver to the Borrower and the
Administrative Agent at the time or times prescribed by law and at such time or times reasonably
requested by the Borrower or the Administrative Agent such documentation prescribed by
applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such
additional documentation reasonably requested by the Borrower or the Administrative Agent as
may be necessary for the Borrower and the Administrative Agent to comply with their
obligations under FATCA and to determine that such Bank has complied with such Bank’s
obligations under FATCA or to determine the amount to deduct and withhold from such
payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made
to FATCA after the date of this Agreement.
Each Bank agrees that if any form or certification it previously delivered expires
or becomes obsolete or inaccurate in any respect, it shall update such form or certification or
promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do
so.
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(e) Payment of Fees and Expenses. Evidence that the Borrower shall have paid
(or shall be simultaneously paying) in full all fees required to be paid, and all expenses required
to be paid or reimbursed for which written invoices have been presented to the Borrower, in
connection with this Agreement.
(f) Other Documents. Such other documents as the Administrative Agent or any
Bank or special New York counsel to JPMCB may reasonably request.
(g) No Default. No Default shall have occurred and be continuing.
(h) Representations and Warranties. The representations and warranties made by
the Borrower in Section 7 hereof shall be true and complete on and as of the date of the making
of the Loans, with the same force and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a specific date, as of such
specific date).
(i) Change in Control. During the 25-month period ending on the Funding Date,
there shall not have occurred a change in the composition of a majority of the Board of Directors
of the Borrower from individuals (i) who were members of such Board on the first day of such
period, (ii) whose election or nomination to such Board was approved by individuals referred to
in clause (i) above constituting at the time of such election or nomination at least a majority of
such Board or (iii) whose election or nomination to such Board was approved by individuals
referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at
least a majority of such Board.
Notwithstanding the foregoing, the obligations of the Banks to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived pursuant to
Section 11.04 hereof) on or prior to September 30, 2017 (and, in the event such conditions are
not so satisfied or waived, the Commitments shall terminate at such time).
Section 7. Representations and Warranties. The Borrower represents and
warrants to the Administrative Agent and the Banks that:
7.01. Corporate Existence. The Borrower and each of its Subsidiaries (a) is a
corporation, partnership or other entity duly organized, validly existing and (if such concept is
applicable in the relevant jurisdiction) in good standing under the laws of the jurisdiction of its
organization (except, in the case of any Subsidiary, to the extent the failure to be so could not
(either individually or in the aggregate) reasonably be likely to have a Material Adverse Effect);
(b) has all requisite corporate or other power, and has all material governmental licenses,
authorizations, consents and approvals necessary to own its assets and carry on its business as
now being or as proposed to be conducted (except, in the case of any Subsidiary, to the extent the
failure to have the same could not (either individually or in the aggregate) reasonably be likely to
have a Material Adverse Effect); and (c) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes such qualification
necessary and where failure so to qualify could (either individually or in the aggregate)
reasonably be likely to have a Material Adverse Effect.
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acquired and improvements thereon and (ii) the principal amount of Indebtedness secured by any
such Lien shall at no time exceed 90% of the fair market value (as determined in good faith by a
senior financial officer of the Borrower) of such Property at the time it was acquired (by
purchase, construction or otherwise);
(i) Liens securing Indebtedness of a Wholly-Owned Domestic Subsidiary to the
Borrower or to another Wholly-Owned Subsidiary, and Liens securing Indebtedness of the
Borrower to The Pitney Xxxxx Bank, Inc., a Wholly-Owned Subsidiary, in an aggregate
principal amount not exceeding $15,000,000 at any one time outstanding;
(j) Liens securing non-recourse obligations in connection with leveraged lease or
single-investor lease transactions;
(k) Securitization Transactions in which fair equivalent value is received for
accounts receivable or chattel paper sold thereunder and any Liens deemed to exist in connection
therewith; provided, that the sum, without duplication, of (i) the principal amount of all
Securitization Transactions permitted by this clause (k), (ii) the aggregate principal amount of all
Indebtedness incurred in reliance on the last sentence of this Section 8.04 and (iii) the aggregate
principal amount of all Indebtedness incurred in reliance on the last sentence of Section 8.08,
does not exceed, at the time of and after giving effect to any transfer of accounts receivable or
other assets or rights pursuant to any such Securitization Transaction, 10% of Consolidated Net
Tangible Assets of the Borrower and its Domestic Subsidiaries;
(l) any extension, renewal or replacement (or successive extensions, renewals or
replacements) in whole or in part, of any Liens referred to in the foregoing clauses (a), (g) and
(h); provided that the principal amount of Indebtedness secured thereby and not otherwise
authorized by this Section 8.05 shall not exceed the principal amount of Indebtedness, plus any
premium or fee payable in connection with any such extension, renewal or replacement, so
secured at the time of such extension, renewal or replacement;
(m) Liens securing obligations of the Borrower in respect of any interest rate or
foreign currency protection or hedging arrangement entered into in the ordinary course of
business and for non-speculative purposes; and
(n) Liens securing obligations of the Borrower and its Subsidiaries under the
Revolver and the 2017 Term Loan Agreement; provided, that the obligations of the Borrower
and its Subsidiaries under this Agreement are simultaneously secured on an equal and ratable
basis under documentation approved in writing by the Administrative Agent (such approval not
to be unreasonably withheld, delayed or conditioned).
Notwithstanding the foregoing provisions of this Section, the Borrower and its Domestic
Subsidiaries may create, incur, assume or suffer to exist Liens (in addition to those permitted
under the preceding clauses (a) through (n)) securing Indebtedness in an aggregate principal
amount which, together with the sum, without duplication, of (A) the principal amount of all
Securitization Transactions permitted by clause (k) of the foregoing provisions and (B) the
aggregate principal amount of all Indebtedness incurred in reliance on the last sentence of
Section 8.08, does not exceed, at the time of and after giving effect to any incurrence of such
Liens or Indebtedness or any transfer of accounts receivable or other assets or rights pursuant to
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or extension, except by an amount equal to any premium or other amount paid, and fees and
expenses incurred, in connection therewith;
(b) Indebtedness of any Subsidiary to the Borrower or any other Subsidiary;
(c) Indebtedness of any Person that becomes a Subsidiary of the Borrower (or of
any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary
in a transaction permitted hereunder), or Indebtedness of any Person that is assumed by any
Subsidiary in connection with an acquisition of assets by such Subsidiary, in each case, after the
date hereof; provided that such Indebtedness is in existence at the time such Person becomes a
Subsidiary of the Borrower (or is so merged or consolidated) or such assets are acquired and is
not created in anticipation thereof, and any refinancings, refundings, renewals or extensions
thereof, provided that the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to any premium or other
amount paid, and fees and expenses incurred, in connection therewith;
(d) Indebtedness of any Subsidiary incurred to finance the acquisition,
construction or improvement of any real and/or tangible personal Property acquired, constructed
or improved by such Subsidiary, including Capital Lease Obligations; provided that such
Indebtedness is incurred prior to or within one year after such acquisition or the completion of
such construction or improvement and the principal amount of such Indebtedness does not
exceed the cost of acquiring, constructing or improving such real and/or tangible personal
Property, and any refinancings, refundings, renewals, amendments or extensions thereof,
provided that the amount of such Indebtedness is not increased at the time of such refinancing,
refunding, renewal or extension except by an amount equal to any premium or other amount
paid, and fees and expenses incurred, in connection therewith;
(e) (i) Guarantees by Subsidiaries of obligations of the Borrower and its
Subsidiaries under the Revolver and the 2016 Term Loan Agreement; provided, that the
obligations of the Borrower and its Subsidiaries under this Agreement are simultaneously
guaranteed by such Subsidiaries under documentation approved in writing by the Administrative
Agent and (ii) Guarantees of Indebtedness of any Subsidiary to the extent such Indebtedness is
otherwise permitted under this Agreement;
(f) Indebtedness of any Subsidiary of the Borrower as an account party in respect
of letters of credit backing obligations that do not constitute Indebtedness;
(g) Indebtedness of Subsidiaries deemed to exist in connection with
Securitization Transactions otherwise permitted pursuant to Section 8.04(k); and
(h) Indebtedness arising in connection with customary cash management services
and from the honoring by a bank or financial institution of a check, draft or similar instrument
drawn against insufficient funds, in each case in the ordinary course of business.
Notwithstanding the foregoing provisions of this Section, the Borrower’s Subsidiaries may
create, incur, assume or suffer to exist Indebtedness (in addition to that permitted under the
preceding clauses (a) through (h)) in an aggregate principal amount which, together with the
sum, without duplication, of (i) the principal amount of all Securitization Transactions permitted
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other law relating to bankruptcy, insolvency, reorganization, liquidation, dissolution,
arrangement or winding-up, or composition or readjustment of debts, (v) fail to
controvert in a timely and appropriate manner, or acquiesce in writing to, any petition
filed against it in an involuntary case under any Bankruptcy Laws or (vi) take any
corporate action for the purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the application or consent
of the Borrower or any of its Domestic Subsidiaries, in any court of competent
jurisdiction, seeking (i) its reorganization, liquidation, dissolution, arrangement or
winding-up, or the composition or readjustment of its debts, (ii) the appointment of a
receiver, custodian, trustee, examiner, liquidator or the like of the Borrower or such
Domestic Subsidiary or of all or any substantial part of its Property or (iii) similar relief
in respect of the Borrower or such Domestic Subsidiary under any Bankruptcy Laws, and
such proceeding or case shall continue undismissed, or an order, judgment or decree
approving or ordering any of the foregoing shall be entered and continue unstayed and in
effect, for a period of 60 or more days; or an order for relief against the Borrower or such
Domestic Subsidiary shall be entered in an involuntary case under any Bankruptcy Laws;
or
(h) A final judgment or judgments for the payment of money of $75,000,000 or
more in the aggregate (exclusive of judgment amounts fully covered by insurance where
the insurer has not denied coverage in respect of such judgment) shall be rendered by one
or more courts, administrative tribunals or other bodies having jurisdiction against the
Borrower or any of its Domestic Subsidiaries and the same shall not be discharged (or
provision shall not be made for such discharge), or a stay of execution thereof shall not
be procured, within 30 days from the date of entry thereof and the Borrower or the
relevant Domestic Subsidiary shall not, within said period of 30 days, or such longer
period during which execution of the same shall have been stayed, appeal therefrom and
cause the execution thereof to be stayed during such appeal; or
(i) An event or condition shall occur or exist with respect to any Plan or
Multiemployer Plan and, as a result of such event or condition, together with all other
such then existing events or conditions, the Borrower or any of its ERISA Affiliates shall
incur or, in the reasonable good faith opinion of the Majority Banks, shall be reasonably
likely to incur a liability (excluding PBGC premium payments and plan funding
payments resulting from changes in legal requirements and increases in benefits) to a
Plan, a Multiemployer Plan or PBGC (or any combination of the foregoing) that, in the
determination of the Majority Banks, could (either individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect; or
(j) During any 25-month period ending on or after the date hereof, a majority of
the Board of Directors of the Borrower shall no longer be composed of individuals (i)
who were members of such Board on the first day of such period, (ii) whose election or
nomination to such Board was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority of such Board or
(iii) whose election or nomination to such Board was approved by individuals referred to
in clauses (i) and (ii) above constituting at the time of such election or nomination at least
a majority of such Board; provided that such change in composition shall not constitute
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10.07. Failure to Act. Except for action expressly required of the Administrative
Agent hereunder, the Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall receive further assurances to its satisfaction from the
Banks of their indemnification obligations under Section 10.05 hereof against any and all
liability and expense that may be incurred by it by reason of taking or continuing to take any
such action.
10.08. Resignation or Removal of Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided below, the
Administrative Agent may resign at any time by giving notice thereof to the Banks and the
Borrower. Upon any such resignation or removal, the Majority Banks shall have the right to
appoint a successor Administrative Agent with the approval of the Borrower (such approval not
to be unreasonably withheld or delayed). If no successor Administrative Agent shall have been
so appointed by the Majority Banks and shall have accepted such appointment within 30 days
after the retiring Administrative Agent’s giving of notice of resignation or the Majority Banks’
removal of the retiring Administrative Agent, then the retiring Administrative Agent may, on
behalf of the Banks, in consultation with the Borrower, appoint a successor Administrative
Agent, which shall be a bank that has an office in New York, New York with a combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor Administrative Agent
shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After any retiring Administrative Agent’s resignation
or removal hereunder as Administrative Agent, the provisions of this Section 10 shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by it while it was
acting as the Administrative Agent.
10.09. Other Agents. Anything to the contrary notwithstanding, the Joint Lead
Arrangers and Joint Bookrunners and the Syndication Agents listed on the cover page of this
Agreement shall have no rights and no obligations or responsibilities or liabilities whatsoever
under or in connection with this Agreement, except in their capacity, if any, as Banks.
Section 11. Miscellaneous.
11.01. Waiver. No failure on the part of the Administrative Agent or any Bank to
exercise and no delay in exercising, and no course of dealing with respect to, any right, power or
privilege under this Agreement or any Note or any other Loan Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, power or privilege under this
Agreement or any Note or any other Loan Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
11.02. Notices.
(a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) of this Section), all
notices and other communications provided for herein shall be in writing and shall be delivered
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The Administrative Agent, acting for this purpose as a non-fiduciary agent of the
Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses of the Banks, and the
Commitment of, and principal amount (and stated interest) of the Loans owing to, each Bank
pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall
be conclusive in the absence of manifest error, and the Borrower, the Administrative Agent and
the Banks may treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Bank hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower and any Bank (with
respect to its own interest only), at any reasonable time and from time to time upon reasonable
prior notice.
Upon execution and delivery by the assignor and the assignee to the
Administrative Agent of such Assignment and Assumption and upon the Administrative Agent’s
receipt of the assignee’s completed Administrative Questionnaire (unless the assignee shall
already be a Bank hereunder) and the processing and recordation fee referred to below in this
paragraph, and upon consent thereto by the Borrower and the Administrative Agent to the extent
required above, the Administrative Agent shall accept such Assignment and Assumption and
record the information contained therein in the Register, whereupon the assignee shall have, to
the extent of such assignment (unless otherwise consented to by the Borrower and the
Administrative Agent), the obligations, rights and benefits of a Bank hereunder holding the
Commitment and Credit Exposure (or portions thereof) assigned to it and specified in such
Assignment and Assumption (in addition to the Commitment and Credit Exposure, if any,
theretofore held by such assignee) and the assigning Bank shall, to the extent of such assignment,
be released from the Commitment (or portion thereof) so assigned (and, in the case of an
Assignment and Assumption covering all of the assigning Bank’s rights and obligations under
this Agreement, such Bank shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 5.01 and 5.05 with respect to facts and circumstances occurring prior to the
effective date of such Assignment and Assumption); provided that if either the assigning Bank or
the assignee shall have failed to make any payment required to be made by it pursuant to Section
4.06 or 10.05 hereof, the Administrative Agent shall have no obligation to accept such
Assignment and Assumption and record the information therein in the Register unless and until
such payment shall have been made in full, together with all accrued interest thereon. No
assignment shall be effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph. Upon each such assignment, the assignor or assignee
shall pay the Administrative Agent an assignment fee of $3,500. Any assignment or transfer by
a Bank of rights or obligations under this Agreement that does not comply with this Section
11.06(b) shall be void and any such purported assignment or transfer shall be treated for
purposes of this Agreement as a sale by such Bank of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.
Notwithstanding anything to the contrary contained herein, any Bank (a “Granting
Bank”) may grant to a special purpose funding vehicle (a “SPC”), identified as such in writing
from time to time by the Granting Bank to the Administrative Agent and the Borrower, the
option to provide to the Borrower all or any part of any Loan that such Granting Bank would
otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i)
nothing herein shall constitute a commitment by any SPC to make any Loan, (ii) if an SPC elects
not to exercise such option or otherwise fails to provide all or any part of such Loan, the
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Granting Bank shall be obligated to make such Loan pursuant to the terms hereof, and (iii) the
rights of any such SPC shall be derivative of the rights of the Granting Bank, and such SPC shall
be subject to all of the restrictions upon and requirements imposed upon the Granting Bank
herein contained. Each SPC shall be conclusively presumed to have made arrangements with its
Granting Bank for the exercise of voting and other rights hereunder in a manner which is
acceptable to the SPC, the Administrative Agent, the Banks and the Borrower, and each of the
Administrative Agent, the Banks and the Borrower shall be entitled to rely upon and deal solely
with the Granting Bank with respect to Loans made by or through its SPC. The making of a
Loan by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same
extent, and as if, such Loan were made by such Granting Bank. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any SPC, it will not institute
against, or join any other person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United States or any
State thereof arising out of a claim against such SPC under this Agreement. In addition,
notwithstanding anything to the contrary contained in this Section 11.06(b), any SPC may (i)
with notice to, but without the prior written consent of, the Borrower and the Administrative
Agent and without paying any processing fee therefor, assign all or a portion of its interests in
any Loans to the Granting Bank or to any financial institutions (consented to by the Borrower
and Administrative Agent) providing liquidity and/or credit support to or for the account of such
SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This
paragraph may not be amended without the written consent of any SPC at the time holding Loans
under this Agreement. Each SPC shall be entitled to the benefits of Sections 5.01 and 5.05
(subject to the requirements and limitations therein, including the requirements under Section
5.05(e) (it being understood that the documentation required under Section 5.05(e) shall be
delivered to the Granting Bank)) to the same extent as if it were a Bank and had acquired its
interest by assignment pursuant to the first sentence of this paragraph (b) of this Section 11.06;
provided that such SPC (A) agrees to be subject to the provisions of Section 5.06 as if it were an
assignee under the first sentence of this paragraph (b) of this Section 11.06, and (B) shall not be
entitled to receive any greater payment under Section 5.01 or 5.05 with respect to its interests in
any Loans than its Granting Bank would have been entitled to receive, except to the extent such
entitlement to receive a greater payment results from a Regulatory Change that occurs after the
SPC acquired the applicable interest.
(c) A Bank may sell or agree to sell to one or more other Persons (each a
“Participant”) a participation in all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment and Credit Exposure at the time
owing to it), without notice to or consent of the Borrower, the Administrative Agent or any other
Bank; provided that such Participant shall not have any rights or obligations under this
Agreement or any Note (the Participant’s rights against such Bank in respect of such
participation to be those set forth in the agreements executed by such Bank in favor of the
Participant), except as provided below. All amounts payable by the Borrower to any Bank under
- 57 -
Credit Agreement
[[3673763]]
Section 5 hereof in respect of Credit Exposure held by it, and its Commitment, shall be
determined as if such Bank had not sold or agreed to sell any participations in such Credit
Exposure and Commitment, and as if such Bank were funding each of such Credit Exposure and
Commitment in the same way that it is funding the portion of Credit Exposure and Commitment
in which no participations have been sold. In no event shall a Bank that sells a participation
agree with the Participant to take or refrain from taking any action hereunder except that such
Bank may agree with the Participant that it will not, without the consent of the Participant, agree
to (i) increase or extend the term of such Bank’s Commitment, or extend the time or waive any
requirement for the reduction or termination, of such Bank’s Commitment, (ii) extend the date
fixed for the payment of principal of or interest on the related Loan or Loans or any portion of
any fee hereunder payable to the Participant, (iii) reduce the amount of any such payment of
principal or any interest thereon, (iv) reduce the rate at which interest is payable thereon, or any
fee hereunder payable to the Participant, to a level below the rate at which the Participant is
entitled to receive such interest or fee or (v) consent to any modification, supplement or waiver
hereof to the extent that the same, under Section 11.04 hereof, requires the consent of each Bank.
The Borrower agrees that each Participant shall be entitled to the benefits of Sections 5.01, 5.04
and 5.05 hereof to the same extent as if it were a Bank and had acquired its interest by
assignment pursuant to paragraph (b) of this Section 11.06; provided that a Participant (x) shall
not be entitled to receive any greater payment under Section 5.01 or 5.05 hereof than the
applicable Bank would have been entitled to receive with respect to the participation sold to such
Participant (except to the extent such entitlement to receive a greater payment results from a
Regulatory Change that occurs after the Participant acquired the applicable participation), unless
the sale of the participation to such Participant is made with the Borrower’s prior written consent
and (y) shall not be entitled to the benefits of Section 5.05 hereof unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 5.05(e) hereof as though it were a Bank (it being understood
that the documentation required under Section 5.05(e) shall be delivered to the participating
Bank). If any Bank shall sell participations pursuant to this paragraph, such Bank shall, acting
solely for this purpose as a non-fiduciary agent of the Borrower, maintain at one of its offices a
register for the recordation of the names and addresses of its Participants, and the principal
amounts (and stated interest) and terms of its participations sold hereunder (a “Participant
Register”); provided that no Bank shall have any obligation to disclose all or any portion of its
Participant Register (including the identity of any Participant or any information relating to a
Participant’s interest in any Commitment or Loan or its other obligations under any Loan
Document) to any Person except to the extent that such disclosure is necessary to establish that
such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of
the United States Treasury Regulations. The entries in the Participant Register shall be
conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded
in the Participant Register as the owner of such participation for all purposes of this Agreement
notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative
Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a
Participant Register.
(d) In addition to the assignments and participations permitted under the
foregoing provisions of this Section 11.06, any Bank may (without notice to or consent of the
Borrower, the Administrative Agent or any other Bank and without payment of any fee) (i)
assign and pledge all or any portion of its rights under this Agreement to secure obligations of
- 61 -
Credit Agreement
[[3673763]]
(b) the effects of any Bail-In Action on any such liability, including, if
applicable:
(i) a reduction in full or in part or cancelation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other
instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge
institution that may be issued to it or otherwise conferred on it, and that such shares or
other instruments of ownership will be accepted by it in lieu of any rights with respect to
any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise
of the Write-Down and Conversion Powers of any EEA Resolution Authority.
SIGNATURE PAGE TO PITNEY XXXXX INC.
CREDIT AGREEMENT DATED AS OF SEPTEMBER 12, 2017
Name of Institution: GOLDMAN S S K USA
by
Name: y
Title: uthorized Signatory
For any Bank requiring a second signature block:
by
Name:
Title:
Credit Aereement Signature Page
ff367376311
SIGNATURE PAGE TO PITNEY XXXXX INC.
CREDIT AGREEMENT DATED AS OF SEPTEMBER 12, 2017
Name of Institution: Mizuho Bank, Ltd.
by ~ j1 •,
.O 0—~-•~
Name: Xxxxxxxx Xxxxx
Title: Managing Director
Credit Agreement Signature Pale
f (3 6 73 76 311
ANNEX 1
Commitments
Lender
Commitments
JPMorgan Chase Bank, N.A. $36,000,000.00
Bank of America, N.A. $36,000,000.00
Citibank, N.A. $36,000,000.00
Xxxxxxx Xxxxx Bank USA $36,000,000.00
Mizuho Bank, Ltd. $36,000,000.00
Xxxxxx Xxxxxxx Bank, N.A. $20,000,000.00
Total $200,000,000.00
SCHEDULE 8.04
Existing Liens
None.
SCHEDULE 8.08
Existing Subsidiary Indebtedness
None.
Note
EXHIBIT A
[Form of Note]
PROMISSORY NOTE
$_______________ _____________, 201_
New York, New York
FOR VALUE RECEIVED, Pitney Xxxxx Inc., a Delaware corporation (the
“Borrower”), hereby promises to pay to __________ (the “Bank”), for account of its respective
Applicable Lending Offices provided for by the Credit Agreement referred to below, at the
principal office of JPMorgan Chase Bank, N.A., in New York, New York, the principal sum of
__________ Dollars (or such lesser amount as shall equal the aggregate unpaid principal amount
of the Loans made by the Bank to the Borrower under the Credit Agreement), in immediately
available funds, on the dates and in the principal amounts provided in the Credit Agreement, and
to pay interest on the unpaid principal amount of each such Loan, at such office, in like money
and funds, for the period commencing on the date of such Loan until such Loan shall be paid in
full, at the rates per annum and on the dates provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest Period of each Loan
made by the Bank to the Borrower, and each payment made on account of the principal thereof,
shall be recorded by the Bank on its books and, prior to any transfer of this Note, endorsed by the
Bank on the schedule attached hereto or any continuation thereof, provided that the failure of the
Bank to make any such recordation or endorsement shall not affect the obligations of the
Borrower to make a payment when due of any amount owing under the Credit Agreement or
hereunder in respect of the Loans made by the Bank.
This Note is one of the Notes referred to in the Credit Agreement dated as of
September 12, 2017 (as modified and supplemented and in effect from time to time, the “Credit
Agreement”) among Pitney Xxxxx Inc., the lenders party thereto (including the Bank), and
JPMorgan Chase Bank, N.A., as Administrative Agent, and evidences Loans made by the Bank
thereunder. Terms used but not defined in this Note have the respective meanings assigned to
them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of this Note
upon the occurrence of certain events and for prepayments of Loans upon the terms and
conditions specified therein.
Except as permitted by Sections 5.06 and 11.06 of the Credit Agreement, this
Note may not be assigned by the Bank to any other Person.
- 2 -
Note
This Note shall be governed by, and construed in accordance with, the law of the
State of New York.
Pitney Xxxxx Inc.,
By: _________________________
Title:________________________
- 3 -
Note
SCHEDULE OF LOANS
This Note evidences Loans made, Continued or Converted under the
within-described Credit Agreement to the Borrower, on the dates, in the principal amounts, of
the Types, bearing interest at the rates and having Interest Periods of the durations set forth
below, subject to the payments, Continuations, Conversions and prepayments of principal set
forth below:
Date
of
Loan
Principal
Amount
of
Loan
Type
of
Loan
Interest
Rate
Maturity
of
Loan
Amount
Paid,
Continued,
Converted
or Prepaid
Unpaid
Principal
Amount
Notation
Made by
Opinion of Internal Counsel for the Company
EXHIBIT B
[Form of Opinion of Internal Counsel for the Company]
[__], 2017
To the Banks party to the
Credit Agreement referred to below
and JPMorgan Chase Bank, N.A.,
as Administrative Agent
Ladies and Gentlemen:
I am the Assistant General Counsel of, and have acted as counsel for, Pitney
Xxxxx Inc. (the “Company”) in connection with the Credit Agreement (the “Credit Agreement”)
dated as of September 12, 2017, among the Company, the Banks party thereto (the “Lenders”),
and JPMorgan Chase Bank, N.A., as Administrative Agent (the “Agent”), providing for an
extension of credit to be made by said Banks to the Company. Terms defined in the Credit
Agreement are used herein as defined therein.
In rendering the opinions expressed below, I have examined the following
agreements, instruments and other documents:
(a) the Credit Agreement, including the Exhibits and Schedules thereto;
(b) the Notes (if any), of the Company, each dated the date hereof and
executed and delivered on such date (the “Notes”); and
(c) such records of the Company and such other documents as I have deemed
necessary as a basis for the opinions expressed below.
The Credit Agreement and the Notes are collectively referred to as the “Financing Documents.”
In my examination, I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals and the conformity with authentic
original documents of all documents submitted to me as copies. When relevant facts were not
independently established, I have relied upon statements of governmental officials and upon
representations made in or pursuant to the Financing Documents and certificates of appropriate
representatives of the Company.
In rendering the opinions expressed below, I have assumed, with respect to all of
the documents referred to in this opinion letter, that (except, to the extent set forth in the opinions
expressed below, as to the Company):
(i) such documents have been duly authorized by, have been duly executed
and delivered by, and constitute legal, valid, binding and enforceable
obligations of, all of the parties to such documents;
- 2 -
Opinion of Internal Counsel for the Company
(ii) all signatories to such documents have been duly authorized; and
(iii) all of the parties to such documents are duly organized and validly existing
and have the power and authority (corporate or other) to execute, deliver
and perform such documents.
Based upon and subject to the foregoing and subject also to the comments and
qualifications set forth below, and having considered such questions of law as I have deemed
necessary as a basis for the opinions expressed below, I am of the opinion that:
1. The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
2. The Company has all requisite corporate power to execute and deliver, and to
perform its obligations and to borrow under, the Financing Documents.
3. The execution, delivery and performance by the Company of each Financing
Document, and the borrowings by the Company under the Credit Agreement, have been
duly authorized by all necessary corporate action on the part of the Company.
4. The Company has duly executed and delivered each Financing Document, and
each Financing Document constitutes a legal, valid and binding obligation of the
Company, enforceable against it in accordance with its terms.
5. The execution, delivery and performance by the Company of, and the
consummation by the Company of the transactions contemplated by, the Financing
Documents do not and will not (a) violate any provision of its charter or by-laws, (b)
violate any order, writ, injunction, decree or award of any court or governmental
authority or agency or any arbitral award applicable to the Company or any of its
Domestic Subsidiaries, (c) result in a breach of, constitute a default under, require any
consent under, or result in the acceleration or required prepayment of any indebtedness
pursuant to the terms of, any agreement or instrument to which the Company or any of its
Domestic Subsidiaries is a party or by which any of them is bound or to which any of
them is subject, (d) violate, or require any filing with or approval of any governmental
authority or regulatory body of the State of New York or the United States of America
under, any law, rule or regulation of the State of New York or the United States of
America applicable to the Company that, in my experience, is generally applicable to
transactions in the nature of those contemplated by the Financing Documents or (e)
violate, or require, any filing with or approval of any governmental authority or
regulatory body of the State of Delaware under, the Delaware General Corporation Law.
6. Except as disclosed in the Company’s Annual Report on Form 10-K filed with
the SEC for the Company’s fiscal year ended December 31, 2014, in any subsequent
Quarterly Reports on Form 10-Q filed with the SEC prior to the date hereof, or in any
subsequent Current Report on Form 8-K filed with the SEC prior to the date hereof, I
have no knowledge (after due inquiry) of any legal or arbitral proceedings, or any
proceedings by or before any governmental or regulatory authority or agency, pending or
- 3 -
Opinion of Internal Counsel for the Company
threatened against or affecting the Company or any of its Subsidiaries or any of their
respective Properties that would have a Material Adverse Effect.
7. The Company is not required to register as an “investment company” within
the meaning of the Investment Company Act of 1940, as amended.
8. The execution and delivery by the Company of the Financing Documents, and
the performance of its obligations thereunder, do not result in a breach or violation of
Regulation U or X of the Board of Governors of the Federal Reserve System.
The foregoing opinions are subject to the following additional exceptions,
qualifications, limitations and assumptions:
A. My opinion is limited to matters involving the Federal laws of the United
States, the Delaware General Corporation Law and the law of the State of New York, and I do
not express any opinion as to the laws of any other jurisdiction. I am not admitted to practice in
the State of Delaware; however, I am generally familiar with the Delaware General Corporation
Law as currently in effect and have made such inquiries as I consider necessary to render the
opinions contained in paragraphs 1, 2, 3, 4 and 5(a) above.
B. My opinion is subject to (i) the effect of any bankruptcy, insolvency,
reorganization, moratorium, arrangement or similar laws affecting the rights and remedies of
creditors generally (including, without limitation, the effect of statutory or other laws regarding
fraudulent transfers or preferential transfers or distributions by the corporations to stockholders)
and (ii) general principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailability of specific
performance, injunctive relief or other equitable remedies regardless of whether enforceability is
considered in a proceeding in equity or at law.
C. I express no opinion regarding the effectiveness of (i) any waiver (whether or
not stated as such) under the Financing Documents of, or any consent thereunder relating to,
unknown future rights or the rights of any party thereto existing, or duties owing to it, as a matter
of law; (ii) any waiver (whether or not stated as such) contained in the Financing Documents of
rights of any party, or duties owing to it, that is broadly or vaguely stated or does not describe the
right or duty purportedly waived with reasonable specificity; (iii) provisions relating to
indemnification, exculpation or contribution, to the extent such provisions may be held
unenforceable as contrary to public policy or federal or state securities laws or due to the
negligence or willful misconduct of the indemnified party; (iv) any provision in any Financing
Document waiving the right to object to venue in any court; (v) any agreement to submit to the
jurisdiction of any Federal Court; (vi) any waiver of the right to jury trial; (vii) any provision
purporting to establish evidentiary standards; (viii) any provision to the effect that every right or
remedy is cumulative and may be exercised in addition to any other right or remedy or that the
election of some particular remedy does not preclude recourse to one or more others; or (ix) any
right of setoff to the extent asserted by a participant in the rights of a Lender under the Financing
Documents. In addition, I advise you that some of the provisions of the Financing Documents
may not be enforceable by a Lender acting individually (as opposed to the Lenders acting
through the Agent).
D. I express no opinion with respect to Regulation T of the Board of Governors
of the Federal Reserve System.
- 4 -
Opinion of Internal Counsel for the Company
At the request of my client, this opinion letter is provided to you by me pursuant
to Section 6.01(d) of the Credit Agreement and may not be relied upon by any Person for any
purpose other than in connection with the transactions contemplated by the Credit Agreement
without, in each instance, my prior written consent, except that any Person which becomes a
Lender after the date hereof may rely on this opinion as if it were addressed to them (provided
that such delivery shall not constitute a re-issue or reaffirmation of this opinion as of any date
after the date hereof).
Very truly yours,
Assignment and Assumption
EXHIBIT C
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the “Assignment and Assumption”) is dated as
of the Effective Date set forth below and is entered into by and between [Insert name of
Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms
used but not defined herein shall have the meanings given to them in the Credit Agreement
identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1
attached hereto are hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to
the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor,
subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement,
as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the
Assignor’s rights and obligations in its capacity as a Bank under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Bank) against any Person, whether known or unknown, arising
under or in connection with the Credit Agreement, any other documents or instruments delivered
pursuant thereto or the loan transactions governed thereby or in any way based on or related to
any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity related to the rights and obligations sold and assigned
pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i)
and (ii) above being referred to herein collectively as the “Assigned Interest”). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided in this
Assignment and Assumption, without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________
[and is an Affiliate/Approved Fund of [identify Bank]1]
3. Borrower: Pitney Xxxxx Inc.
4. Administrative Agent: JPMorgan Chase Bank, N.A., as the administrative agent under
the Credit Agreement
5. Credit Agreement: The $200,000,000 Credit Agreement dated as of September 12,
2017 among Pitney Xxxxx Inc., the Banks parties thereto, and
JPMorgan Chase Bank, N.A., as Administrative Agent
1 Select as applicable.
- 3 -
Assignment and Assumption
Consented to and Accepted:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By_________________________________
Title:
[Consented to:]3
PITNEY XXXXX INC.
By________________________________
Title:
By________________________________
Title:
3 To be added only if the consent of the Company is required by the terms of the Credit Agreement.
Compliance Certificate
EXHIBIT D
[Form of Compliance Certificate]
COMPLIANCE CERTIFICATE
This Compliance Certificate (“this Certificate”) is delivered to you pursuant to
Section 8.01(c) of the Credit Agreement dated as of September 12, 2017 (as amended, modified
and supplemented and in effect from time to time, the “Credit Agreement”) among Pitney Xxxxx
Inc. (the “Company”), the banks party thereto and JPMorgan Chase Bank, N.A., as
Administrative Agent. Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES AS FOLLOWS:
1. I am the [Chief Financial Officer/Treasurer] of Pitney Xxxxx Inc. (the
“Company”).
2. I have reviewed the terms of the Credit Agreement and have made, or have
caused to be made under my supervision, a review in reasonable detail of the transactions and
condition of the Company and its Subsidiaries during the accounting period covered by the
Company’s consolidated financial statements delivered concurrently herewith.
3. The examination described in paragraph 2 above did not disclose, and I have
no knowledge of, the existence of any condition or event which constitutes a Default during or at
the end of the accounting period covered by such financial statements or as of the date of this
Certificate, except as set forth in a separate attachment, if any, to this Certificate, describing in
detail, the nature of the condition or event, the period during which it has existed and the action
which the Company has taken, is taking, or proposes to take with respect to each such condition
or event.
The foregoing certifications, together with the computations set forth in the
attached Annex A hereto and the financial statements delivered with this Certificate in support
hereof, are made and delivered [_______], 201[_].
PITNEY XXXXX INC.
By: ______________________________
Name:
Title: [Chief Financial Officer/Treasurer]
EXHIBIT D
U.S Tax Compliance Certificate
ANNEX A
TO COMPLIANCE CERTIFICATE
FOR THE FISCAL [QUARTER] [YEAR] ENDING [_______], 201[_]
(“Relevant Fiscal Period”)
1. Total Adjusted Debt as at end of Relevant Fiscal Period: (I) minus
(II) = $___________
(I) total Indebtedness of Company and its Subsidiaries (as
shown on Company’s consolidated balance sheet): $___________
(II) Captive Finance Debt: product of (X) and (Y) = $___________
(X) average of aggregate gross finance receivables of
Company and its Subsidiaries as at end of five most
recently completed consecutive fiscal quarters ending on or
prior to end of Relevant Fiscal Period (as shown on
Company’s relevant consolidated balance sheets): $___________
(Y) a fraction the numerator of which is ten and the
denominator of which is eleven (i.e., 10/11): 10/11
2. Consolidated EBITDA (for period of four consecutive fiscal quarters
ended at end of Relevant Fiscal Period (“Relevant Measurement Period”):
sum of (I)+(II) minus (III) = $___________
(I) Consolidated Net Income for Relevant Measurement
Period: (a) minus sum of (b) + (c) + (d) = $___________
(a) consolidated income (or loss) from continuing
operations before income taxes of Company and its
Subsidiaries: $___________
(b) income (or deficit) of any Person accrued prior to the
date it becomes a Subsidiary of Company or is merged into
or consolidated with Company or any of its Subsidiaries: $___________
(c) income (or deficit) of any Person (other than a
Subsidiary of Company) in which Company or any of its
Subsidiaries has an ownership interest, except to the extent
that any such income is actually received by Company or
such Subsidiary in the form of dividends or similar
distributions: $___________
(d) undistributed earnings of any Subsidiary of Company to
the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary is not at the time $___________
permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to such
Subsidiary:
(II) Without duplication and to the extent deducted in
determining such Consolidated Net Income, in each case
for Relevant Measurement Period: sum of
(a)+(b)+(c)+(d)+(e)+(f)+(g) = $___________
(a) interest expense (excluding financing interest expense): $___________
(b) depreciation expense: $___________
(c) amortization expense: $___________
(d) non-cash stock-option based and other equity-based
compensation expenses: $___________
(e) other non-cash extraordinary, unusual or non-recurring
charges, expenses or losses (including, whether or not
otherwise includable as a separate item in income
statement, losses on sales of assets outside of the ordinary
course of business and non-cash restructuring charges, but
excluding any such non-cash charge to the extent that it
represents an accrual or reserve for potential cash charge in
any future period or amortization of a prepaid cash charge
that was paid in a prior period): $___________
(f) cash restructuring charges incurred during Relevant
Measurement Period or, if less, the amount of cash
restructuring charges incurred during Relevant
Measurement Period that may be added back pursuant to
the definition of Consolidated EBITDA so long as the
aggregate amount of cash restructuring charges for all
periods ending after December 31, 2014, added back in the
definition of Consolidated EBITDA does not exceed
$450,000,000: $___________
(g) pro forma Consolidated EBITDA of any Person or
Properties constituting a division or line of business of any
business entity, division or line of business, in each case,
acquired by Company or any of its Subsidiaries during
Relevant Measurement Period that, together with any other
such acquisitions during such period, involves the payment
of consideration by Company and its Subsidiaries in excess
of $25,000,000 in the aggregate during such period
(assuming the consummation of such acquisition occurred
on the first day of such period):
$___________
(III) Without duplication and to the extent included in
determining such Consolidated Net Income, in each case
for Relevant Measurement Period: sum of (a)+(b)+(c) = $___________
(a) interest income (excluding financing interest income): $___________
(b) non-cash extraordinary, unusual or non-recurring
income or gains increasing Consolidated Net Income
(including, whether or not otherwise includable as a
separate item in the statement of such Consolidated Net
Income, gains on the sales of assets outside of the ordinary
course of business, but excluding any such non-cash gain to
the extent it represents the reversal of an accrual or reserve
for potential cash gain in any prior period): $___________
(c) pro forma Consolidated EBITDA of any Person or
Properties constituting a division or line of business of any
business entity, division or line of business, in each case,
sold, assigned, transferred or otherwise disposed of by
Company or any of its Subsidiaries during Relevant
Measurement Period that, together with any other such
dispositions during such period, yields gross proceeds to
Company and its Subsidiaries in excess of $25,000,000 in
the aggregate during such period (assuming the
consummation of such disposition occurred on the first day
of such period): $___________
3. Applicable Finance Interest Expense Amount (for Relevant
Measurement Period): product of (I) and (II) = $___________
(I) Amount of financing interest expense (as shown on
Company’s consolidated statement of income): $___________
(II) 1.75 1.75
4. Adjusted Consolidated EBITDA (for Relevant Measurement
Period): line 2 above minus line 3 above = $___________
5. Ratio of Total Adjusted Debt to Adjusted Consolidated EBITDA (as
at end of Relevant Fiscal Period): (I)/(II) = $___________
(I) Total Adjusted Debt as at end of Relevant Fiscal Period
(line 1 above): $___________
(II) Adjusted Consolidated EBITDA for Relevant
Measurement Period (line 4 above): $___________
Actual: _.__:1.00
Maximum
Permitted: 3.50:1.00
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Banks That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of September 12, 2017 (as
amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among Pitney
Xxxxx Inc., a Delaware corporation (the “Borrower”), each bank from time to time party thereto and
JPMorgan Chase Bank, N.A., as administrative agent (the “Administrative Agent”).
Pursuant to the provisions of Section 5.05 of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s)
evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the
meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower
within the meaning of Section 881(c)(3)(B) of the Code and (iv) it is not a controlled foreign corporation
related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with a
certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By
executing this certificate, the undersigned agrees that (1) if the information provided on this certificate
changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2)
the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a
properly completed and currently effective certificate in either the calendar year in which each payment is
to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
[NAME OF BANK]
By:
Name:
Title:
Date: ________ __, 20[ ]
EXHIBIT E-2
U.S Tax Compliance Certificate
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of September 12, 2017 (as
amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among Pitney
Xxxxx Inc., a Delaware corporation (the “Borrower”), each bank from time to time party thereto and
JPMorgan Chase Bank, N.A., as administrative agent (the “Administrative Agent”).
Pursuant to the provisions of Section 5.05 of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it
is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code,
(iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the
Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section
881(c)(3)(C) of the Code.
The undersigned has furnished its participating Bank with a certificate of its non-U.S.
Person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the
undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall
promptly so inform such Bank in writing, and (2) the undersigned shall have at all times furnished such
Bank with a properly completed and currently effective certificate in either the calendar year in which
each payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT]
By:
Name:
Title:
Date: ________ __, 20[ ]
EXHIBIT E-4
U.S Tax Compliance Certificate
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of September 12, 2017 (as
amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among Pitney
Xxxxx Inc., a Delaware corporation (the “Borrower”), each bank from time to time party thereto and
JPMorgan Chase Bank, N.A., as administrative agent (the “Administrative Agent”).
Pursuant to the provisions of Section 5.05 of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing
this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such
participation, (iii) with respect to such participation, neither the undersigned nor any of its direct or
indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the
ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none
of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning
of Section 881(c)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled
foreign corporation related to the applicable as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Bank with IRS Form W-8IMY
accompanied by one of the following forms from each of its partners/members that is claiming the
portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E, as applicable or (ii) an IRS Form
W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such
partner's/member's beneficial owners that is claiming the portfolio interest exemption. By executing this
certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the
undersigned shall promptly so inform such Bank and (2) the undersigned shall have at all times furnished
such Bank with a properly completed and currently effective certificate in either the calendar year in
which each payment is to be made to the undersigned, or in either of the two calendar years preceding
such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT]
By:
Name:
Title:
Date: ________ __, 20[ ]
EXHIBIT E-4
U.S Tax Compliance Certificate
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Banks That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of September 12, 2017 (as
amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among Pitney
Xxxxx Inc., a Delaware corporation (the “Borrower”), each bank from time to time party thereto and
JPMorgan Chase Bank, N.A., as administrative agent (the “Administrative Agent”).
Pursuant to the provisions of Section 5.05 of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such
Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are
the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with
respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither
the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a
loan agreement entered into in the ordinary course of its trade or business within the meaning of Section
881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder
of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (v) none of its direct or
indirect partners/members is a controlled foreign corporation related to the Borrower as described in
Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with IRS
Form W-8IMY accompanied by one of the following forms from each of its partners/members that is
claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E, as applicable or (ii)
an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each
of such partner's/member's beneficial owners that is claiming the portfolio interest exemption. By
executing this certificate, the undersigned agrees that (1) if the information provided on this certificate
changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2)
the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a
properly completed and currently effective certificate in either the calendar year in which each payment is
to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
[NAME OF BANK]
By:
Name:
Title:
Date: ________ __, 20[ ]