Exhibit 10.36
SIXTH AMENDMENT AGREEMENT
SIXTH AMENDMENT AGREEMENT (this "Agreement") dated as of June 1, 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, that certain Fourth Amendment Agreement dated as of May 16, 2003
and that certain Fifth Amendment Agreement dated as of May 7, 2004 (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, the Term B Facility Lenders 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 Amendment to the Table of Contents. The reference to Schedule
1.01(c) of the Table of Contents of the Credit Agreement is hereby
amended in its entirety to read as follows:
SCHEDULE 1.01(c) - Applicable Margin After Sixth Amendment
Date
5.2 Amendments to Section 1.01.
(a) The following definitions appearing in Section 1.01 of the
Credit Agreement are hereby amended in their entirety to read as follows:
"Applicable Margin" shall be, for any Type and Class of
Loan, (i) prior to the Fourth Amendment Date, the percentage
per annum set forth on Schedule 1.01(a) for such Type and
Class of Loan, (ii) on and after the Fourth Amendment Date and
prior to the Sixth Amendment Date, the Applicable Margin shall
be the percentage per annum set forth on Schedule 1.01(b) for
such Type and Class of Loan, and (iii) on and after the Sixth
Amendment Date, the Applicable Margin shall be the percentage
per annum set forth on Schedule 1.01(c) for such Type and
Class of Loan.
"Documentation Agent" shall mean JPMorgan Chase Bank, in
its capacity as documentation agent, together with its
successors in such capacity.
(b) The definition of "Eligible Inventory" is hereby amended by
amending and restating clause (c) thereof in its entirety to read as
follows:
(c) it is located on real property leased by one of the
Obligors or in a contract warehouse where the fair market
value (or book value, if greater) of all Inventory located at
such leased property or warehouse, as the case may be (x)
exceeds $5,000,000, or (y) when aggregated with the fair
market value (or book value, if greater) of all Inventory
located at all other such locations which are not subject to
Landlord Consents, exceeds $15,000,000, unless, in either case
(i) Borrower has elected to establish a Reserve equal to three
months' rent in respect of Inventory located at such location
or (ii) it is subject to a Landlord Consent executed by the
lessor, warehouseman or other third party, as the case may be,
and unless it is segregated or otherwise separately
identifiable from goods of others, if any, stored on the
premises.
(c) The following new definition is hereby added to Section 1.01 of
the Credit Agreement in its proper alphabetical order to read as follows:
"Sixth Amendment Date" shall mean June 1, 2004.
5.3 Amendment to Section 12.04(i)(a). Section 12.04(i)(a) of the
Credit Agreement is hereby amended by deleting "(or Schedule 1.01(a) or
(b))" from the twelfth line of such Section and substituting "(or Schedule
1.01(a), (b) or (c))" therefore.
5.4 New Schedule 1.01(c). The Credit Agreement is hereby amended by
adding a new Schedule 1.01(c) as set forth on Schedule 1 attached hereto
and made a part hereof.
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.
[Remainder of page intentionally blank; Signature Pages follow]
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/ Timothy E. Coyne
----------------------------
Timothy E. Coyne
Its: Chief Financial Officer
FLEET CAPITAL CORPORATION,
as Administrative Agent and as a Lender
By: /s/ Edgar Ezerins
--------------------------
Edgar Ezerins
Its: Senior Vice President
MERRILL LYNCH CAPITAL CORPORATION,
as a Lender
By:
----------------------------
Its:
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/ Glenn Kreutzer
----------------------------
Glenn Kreutzer
Its: Banking Officer
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
----------------------
Cindy Chen
Its: Vice President
SCHEDULE 1
Schedule 1.01(c)
LIBOR Loans ABR Loans
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Revolving Loans 1.25% 0.25%
Term B Facility Loans 1.25% 0.25%