EXHIBIT 10.28
SECOND AMENDMENT AGREEMENT
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SECOND AMENDMENT AGREEMENT (this "AGREEMENT") dated as of July 19, 2002
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 (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:
[section] 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.
[section] 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.
[section] 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.
[section] 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 Majority Lenders and each of the
Term B Facility Lenders shall have executed and delivered this Agreement.
[section] 5. AMENDMENTS TO THE CREDIT AGREEMENT.
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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) $58,000,000, plus (b) the amount of net cash proceeds
actually received by the Borrower from the issuance and/or resale by the
Borrower 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 SCHEDULE 1.01(a)
Schedule 1.01(a) of the Credit Agreement is hereby amended
in its entirety as set forth on Schedule 1 attached hereto and made a part
hereof.
5.3 AMENDMENT TO SCHEDULE 1.01(b)
Schedule 1.01(b) of the Credit Agreement is hereby amended
in its entirety as set forth on Schedule 2 attached hereto and made a part
hereof.
5.4 AMENDMENT TO SECTION 2.09
Section 2.09 of the Credit Agreement is hereby amended by
replacing, in the second line of such section, the number, "4.09" with the
number, "2.09".
[section] 6. MISCELLANEOUS PROVISIONS.
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(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, the
Notes and the other Credit Documents, as applicable, 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/ Joseph D. Skrzypczak
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Joseph D. Skrzypczak
Its Chief Financial Officer
Fleet Capital Corporation,
as a Lender
By: /s/ Edgar Ezerins
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Name: Edgar Ezerinx
Title: SVP
Merrill Lynch Capital Corporation
as a Lender
By: /s/ Michael E. O'Brien
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Name: Michael E. O'Brien
Title: Vice President
Natexis Banque Populaires
as a Lender
By: /s/ Frank H. Madden, Jr.
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Name: Frank H. Madden, Jr.
Title: Vice President &
Group Manager
The Chase Manhattan Bank
as a Lender
By: /s/ Valerie Schanzer
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Name: Valerie Schanzer
Title: Vice President
People's Bank
as a Lender
By: /s/ David K. Sherrill
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Name: David K. Sherrill
Title: Vice President
Bank Leumi USA
as a Lender
By: /s/ Paul Tine Glenn Kreutzer
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Name: Paul Tine Glen Kreutzer
Title: Vice President Banking Officer
General Electric Capital Corporation
as a Lender
By: /s/ Rosalia Agresti
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Name: Rosalia Agresti
Title: Senior Risk Manager
Citizens Bank of Massachusetts
as a Lender
By: /s/ Daniel G. Eastman
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Name: Daniel G. Eastman
Title: Senior Vice President
Toronto Dominion (New York), Inc.,
as a Lender
By: /s/ Stacey Malek
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Name: Stacey Malek
Title: Vice President
SCHEDULE 1
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Schedule 1.01(a)
LIBOR Loans ABR Loans
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Revolving Loans 2.75% 1.75%
Term B Facility Loans 2.75% 1.75%
SCHEDULE 2
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Schedule 1.01(b)
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REVOLVING LOANS
- ------- ----------------------------------- ------------------------------------------------------
TIER TOTAL LEVERAGE LIBOR MARGIN ABR MARGIN
RATIO
- ------- ----------------------------------- ---------------------------- -------------------------
I [greater than]1.25:1.0 3.00% 2.00%
- ------- ----------------------------------- ---------------------------- -------------------------
II [equal to or less than]1.25:1.0 but 2.75% 1.75%
[greater than]1.00:1.0
- ------- ----------------------------------- ---------------------------- -------------------------
III [equal to or less than]1.00:1.0 but 2.50% 1.50%
[greater than]0.75:1.0
- ------- ----------------------------------- ---------------------------- -------------------------
IV [equal to or less than]0.75:1.0 2.25% 1.25%
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
TERM B FACILITY LOANS
- ------------------------------------------- ------------------------------------------------------
TIER TOTAL LEVERAGE LIBOR MARGIN ABR MARGIN
RATIO
- ------- ----------------------------------- ---------------------------- -------------------------
I [greater than]1.25:1.0 3.75% 2.75%
- ------- ----------------------------------- ---------------------------- -------------------------
II [equal to or less than]1.25:1.0 2.75% 1.75%
- --------------------------------------------------------------------------------------------------