EXHIBIT 10.35
FIFTH AMENDMENT AGREEMENT
FIFTH AMENDMENT AGREEMENT (this "Agreement") dated as of May 7, 2004 by
and among (1) Imagistics International Inc. (the "Borrower"), (2) Fleet Capital
Corporation ("Fleet"), and the other financial institutions party to the Credit
Agreement (as defined below) as lenders (collectively, the "Lenders" and
individually, a "Lender") and (3) Fleet, as administrative agent (the
"Administrative Agent") for the Lenders with respect to a certain Credit
Agreement dated as of November 9, 2001 by and among the Borrower, the Lenders
and the Administrative Agent, as amended by that certain First Amendment
Agreement dated as of March 19, 2002, that certain Second Amendment Agreement
dated as of July 19, 2002, that certain Third Amendment Agreement dated as of
March 5, 2003 and that certain Fourth Amendment Agreement dated as of May 16,
2003 (as amended, the "Credit Agreement").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders amend certain terms
and conditions of the Credit Agreement on the terms and conditions set forth
herein; and
WHEREAS, the parties hereto have agreed to amend certain provisions of the
Credit Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ss.1. Definitions. Capitalized terms used herein without definition that
are defined in the Credit Agreement (after giving effect to the amendments
thereof set forth herein) shall have the same meanings herein as therein.
ss.2. Ratification of Existing Agreements. All of the Borrower's
obligations and liabilities to the Creditors as evidenced by or otherwise
arising under the Credit Agreement, the Notes and the other Credit Documents,
are, by the Borrower's execution of this Agreement, ratified and confirmed in
all respects. In addition, by the Borrower's execution of this Agreement, the
Borrower represents and warrants that it does not have any counterclaim, right
of set-off or defense of any kind with respect to such obligations and
liabilities.
ss.3. Representations and Warranties. The Borrower hereby represents and
warrants to the Creditors that all of the representations and warranties made by
the Borrower in the Credit Agreement, the Notes and the other Credit Documents
are true in all material respects on the date hereof as if made on and as of the
date hereof, except to the extent that such representations and warranties
relate expressly to an earlier date.
ss.4. Conditions Precedent. The effectiveness of the amendments
contemplated hereby shall be subject to the satisfaction on or before the date
hereof of each of the following conditions precedent:
(a) Representations and Warranties. All of the representations and
warranties made by the Borrower herein, whether directly or incorporated
by reference, shall be true and correct on the date hereof except as
provided in ss.3 hereof.
(b) Performance; No Event of Default. The Borrower shall have
performed and complied in all respects with all terms and conditions
herein required to be performed or complied with by it prior to or at the
time hereof, and there shall exist no Default or Event of Default.
(c) Corporate Action. All requisite corporate action necessary for
the valid execution, delivery and performance by the Borrower of this
Agreement and all other instruments and documents delivered by the
Borrower in connection therewith shall have been duly and effectively
taken.
(d) Delivery. The Borrower and the Majority Lenders shall have
executed this Agreement and delivered this Agreement to the Administrative
Agent.
ss.5. Amendments to the Credit Agreement.
5.1 Amendments to Definitions in Section 1.01.
(a) The definition of "Permitted Repurchase Amount" appearing in
Section 1.01 of the Credit Agreement is hereby amended in its entirety to
read as follows:
"Permitted Repurchase Amount" shall mean an amount equal to
the sum of (a) $108,000,000, plus (b) the amount of net cash
proceeds actually received by the Borrower from the issuance and/or
resale by the Borrower of up to 1,000,000 shares of its common stock
Equity Interests to its employees pursuant to the Borrower's
employee stock purchase plan.
(b) The definition of "BPC" appearing in Section 1.01 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"BPC" shall mean a retail or other business product center
owned or controlled by any Obligor or any Subsidiary of any Obligor,
but only for so long as the components that would constitute the BPC
Borrowing Base of such retail or business product center are not
included in the Enterprise Resource Planning System of Borrower
described to the Lenders before the Effective Date.
5.2 Amendments to Section 1.01.
(a) The following new definitions are hereby added to Section 1.01
of the Credit Agreement in their proper alphabetical order to read as
follows:
"Borrowing Base Audit Condition" shall mean, as of any date of
determination, that (i) the Borrower has the ability to borrow not
less than $50,000,000 on such date in the form of Revolving Loans
pursuant to this Agreement and (ii) the Fixed Charge Ratio is not
less than 2.0 to 1.0 as of the then most recently ended fiscal
quarter of the Borrower.
"Consolidated Total Debt Service" shall mean with respect to
the Borrower and its Subsidiaries and for any period, the sum,
without duplication, of (i) Consolidated Total Interest Expense for
such period plus (ii) any and all
scheduled repayments of principal during such period in respect of
Indebtedness that becomes due and payable or that are to become due
and payable during such period pursuant to any agreement or
instrument to which the Borrower or any of its Subsidiaries is a
party relating to (a) the borrowing of money or the obtaining of
credit, including the issuance of notes or bonds, (b) the deferred
purchase price of assets (other than trade payables incurred in the
ordinary course of business), (iii) any synthetic leases or any
Capital Leases, (iv) any reimbursement obligations in respect of
letters of credit or bankers acceptances due and payable during such
period, and (v) Indebtedness of the type referred to above of
another Person guaranteed by the Borrower or any of its
Subsidiaries, but excluding, in each case, any such obligations due
or owing from the Borrower or any Subsidiary to the Borrower or any
Wholly Owned Subsidiary. Demand obligations shall be deemed to be
due and payable during any fiscal period during which such
obligations are outstanding.
"Consolidated Total Interest Expense" shall mean, for any
period, the aggregate amount of interest required to be paid or
accrued by the Borrower and its Subsidiaries during such period on
all Indebtedness of the Borrower and its Subsidiaries outstanding
during all or any part of such period, whether such interest was or
is required to be reflected as an item of expense or capitalized,
including payments consisting of interest in respect of any Capital
Lease or any synthetic lease, and including commitment fees, agency
fees, facility fees, balance deficiency fees and similar fees or
expenses in connection with the borrowing of money, but excluding
the reclassification of accumulated other comprehensive loss into
interest expense in connection with the disposition of interest rate
swap agreements during the fiscal quarter ending September 30, 2003
in an amount not to exceed $2,800,000.
"Fixed Charge Ratio" shall mean, as of the end of any fiscal
quarter of the Borrower, the ratio of (i) the result of (a)
Consolidated EBITDA for the period of four consecutive fiscal
quarters ending on such date, minus (b) Capital Expenditures made by
the Borrower and its Subsidiaries during such period, minus (c)
income tax expense of the Borrower and its Subsidiaries for such
period, to (ii) Consolidated Total Debt Service for such period.
5.3 Amendment to Section 9.01. Subsection 9.01(i) of the Credit
Agreement is hereby amended in its entirety to read as follows:
(i) Borrowing Base Audits. (1) At any one time at the
discretion of the Administrative Agent and (2) at any time at the
request of Administrative Agent if an Event of Default has occurred
and is continuing, a report, the scope and cost of which shall be
reasonably acceptable to the Lenders and Borrower (the reasonable
cost and expense of which shall be for the sole account of
Borrower), of an independent collateral auditor (which may be, or be
affiliated with, one of the Lenders) with respect to the Accounts,
Inventory and Rental Assets included in the Borrowing Base as at the
end of a monthly accounting period; provided, that if the Borrowing
Base Audit Condition is not satisfied at any time, then at all times
thereafter, even if the Borrowing Base Audit Condition
is thereafter satisfied, the Borrower must provide a report during
each 12 month period after the date that the report under clause (1)
is delivered to the Administrative Agent, each of which reports must
be provided at such time as may be requested by the Administrative
Agent (or, if not sooner requested, in any event prior to the last
day of each such 12 month period ending after the first date on
which the Borrowing Base Audit Condition was not satisfied);
5.4 Amendment to Section 9.06. Subsection 9.06(h)(viii) of the
Credit Agreement is hereby amended in its entirety to read as follows:
(viii) the Acquisition Consideration for such Acquisition
(other than any Acquisition Consideration consisting of Equity
Interests (other than Disqualified Equity Interests) or proceeds
from the issuance by Borrower of its Equity Interests (other than
Disqualified Equity Interests)) (collectively, the "Equity
Acquisition Consideration"), together with the aggregate amount of
the Acquisition Consideration (other than Equity Acquisition
Consideration) for all Acquisitions effected pursuant to this
Section 9.06(h) since the Effective Date, shall not exceed
$60,000,000; and
ss.6. Miscellaneous Provisions.
(a) Except as otherwise expressly provided by this Agreement,
all of the respective terms, conditions and provisions of the Credit
Agreement, the Notes and the other Credit Documents shall remain the same.
The Credit Agreement, the Notes and the other Credit Documents, each as
amended hereby, shall continue in full force and effect, and that this
Agreement and the Credit Agreement shall be read and construed as one
instrument.
(b) This Agreement is intended to take effect under, and shall
be construed according to and governed by, the laws of the State of New
York.
(c) This Agreement may be executed in any number of
counterparts, but all such counterparts shall together constitute but one
instrument. In making proof of this Agreement it shall not be necessary to
produce or account for more than one counterpart signed by each party
hereto by and against which enforcement hereof is sought. A facsimile of
an executed counterpart shall have the same effect as the original
executed counterpart.
IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement
to be executed in its name and behalf by its duly authorized officer as of the
date first written above.
IMAGISTICS INTERNATIONAL INC.
By: /s/ Joseph D. Skrzypczak
--------------------
Joseph D. Skrzypczak
Its Chief Financial Officer
FLEET CAPITAL CORPORATION,
as Administrative Agent and as a Lender
By: /s/ Edgar Ezerins
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Edgar Ezerins
Its Senior Vice President
MERRILL LYNCH CAPITAL CORPORATION,
as a Lender
By: /s/ Lawrence Temlock
----------------
Lawrence Temlock
Its: Vice President
JPMORGAN CHASE BANK,
as a Lender
By: /s/ Valerie Schanzer
----------------
Valerie Schanzer
Its: Vice President
PEOPLE'S BANK,
as a Lender
By: /s/ David K. Sherrill
-----------------
David K. Sherrill
Its: Vice President
BANK LEUMI, USA,
as a Lender
By: /s/ Paul Tine
---------
Paul Tine
Its: Vice President
By: /s/ Phyllis Rosenfeld
-----------------
Phyllis Rosenfeld
Its: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Joseph P. Howard
----------------
Joseph P. Howard
Its: Vice President
CITIZENS BANK OF MASSACHUSETTS,
as a Lender
By: /s/ Cindy Chen
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Cindy Chen
Its: Vice President