Exhibit 10.52
SEVENTH AMENDMENT AGREEMENT
SEVENTH AMENDMENT AGREEMENT (this "Agreement") dated as of June 3, 2005 by
and among (1) Imagistics International Inc. (the "Borrower"), (2) Bank of
America, N.A. (as successor to Fleet Capital Corporation) (together with its
successors and assigns, "Bank of America"), and the other financial institutions
party to the Credit Agreement (as defined below) as lenders (collectively, the
"Lenders" and individually, a "Lender") and (3) Bank of America, 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, that certain Fifth Amendment Agreement dated as of May
7, 2004 and that certain Sixth Amendment Agreement dated as of June 1, 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 provisions of the Credit Agreement on the terms and conditions set forth
herein; and
WHEREAS, the parties hereto have agreed to so amend such terms and
provisions of the Credit Agreement on the terms and conditions set forth herein.
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 Amendment to Section 1.01. 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) $168,000,000, 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.
5.2 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
$100,000,000; and
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5.3 Amendments to Section 9.08.
(a) Section 9.08 of the Credit Agreement is hereby amended by
deleting the references to "$5,000,000" in each of clauses (g), (h) and
(j) and inserting "$15,000,000" in lieu thereof.
(b) Section 9.08(f) of the Credit Agreement is hereby amended in its
entirety to read as follows:
(f) Indebtedness and Contingent Obligations of the Companies
incurred (i) in connection with the financing or refinancing of the
acquisition after the Effective Date of any Property or any
improvement thereon by any Company or (ii) under any Capital Lease,
provided that the aggregate amount of (x) all such Indebtedness and
Contingent Obligations described in clauses (i) and (ii) above, plus
(y) all Indebtedness and Contingent Obligations permitted by Section
9.08(g) which are secured by Liens permitted pursuant to Section
9.07(c)(A) (or, with respect to any extensions, renewals or
replacements thereof, pursuant to Section 9.07(j)) at any time
outstanding shall not exceed $15,000,000 in the aggregate for the
Companies, collectively;
5.4 Amendment to Section 9.10. Subsection 9.10(c)(i) of the Credit
Agreement is hereby amended in its entirety to read as follows:
(i) repurchases of Equity Interests of Borrower in an amount
not to exceed Permitted Repurchase Amounts in the aggregate after
the Effective Date; provided, however, that after giving effect to
any such repurchase, Borrower shall thereupon have the ability to
borrow not less than $20,000,000 in the form of a Revolving Loan
pursuant to this Agreement;
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]
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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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its Chief Financial Officer
BANK OF AMERICA, N.A.,
as Administrative Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Director
JPMORGAN CHASE BANK,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice President
PEOPLE'S BANK,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: Vice President
BANK LEUMI, USA,
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Its: First VP
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Its: Vice President
U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By:____________________________
Its:
CITIZENS BANK OF MASSACHUSETTS,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇
Its: Vice President