EXHIBIT 10.33
FOURTH AMENDMENT AGREEMENT
EXHIBIT 10.33
FOURTH AMENDMENT AGREEMENT
FOURTH AMENDMENT AGREEMENT (this "AGREEMENT") dated as of May 16, 2003
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 and that certain Third Amendment Agreement dated as of
March 5, 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:
[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 parties hereto shall have executed this
Agreement and delivered this Agreement to the Administrative Agent.
(e) Amendment Fee. The Borrower shall have paid to the
Administrative Agent, for the account of the Lenders, an amendment fee
equal to one-tenth of one percent (0.10%) of the sum of the aggregate
Revolving Commitments and the aggregate outstanding principal amounts
of the Term B Facility Loans. Each Lender shall receive the portion of
such amendment fee allocable to such Lender's Revolving Commitment
and/or Term B Facility Loans.
(f) Assignments; Revolving Commitments Reduction. Each of
that certain Master Assignment and Acceptance Agreement dated as of the
date hereof with respect to the Credit Agreement and that certain
Commitment Reduction Letter dated as of the date hereof with respect to
the Credit Agreement shall have been fully executed and delivered, and
all of the conditions precedent set forth therein shall have been
satisfied in full.
[section]5. AMENDMENTS TO THE CREDIT AGREEMENT.
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5.1 AMENDMENTS TO THE TABLE OF CONTENTS. The references
to Schedules 1.01(a), 1.01(b) and 1.01(c) and to Exhibit
C-1 on page v of the Table of Contents of the Credit
Agreement are each hereby amended in their entirety to
read as follows:
SCHEDULE 1.01(a) - Applicable Margin Before Fourth
Amendment Date
SCHEDULE 1.01(b) - Applicable Margin After Fourth
Amendment Date
SCHEDULE 1.01(c) - Intentionally Omitted
EXHIBIT C-1 - Intentionally Omitted
5.2 AMENDMENTS TO SECTION 1.01.
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(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, and (ii) on and after
the Fourth 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.
"Applicable R/C Fee Percentage" shall mean 0.375%
per annum.
(b) The following new definition is hereby added to
Section 1.01 of the Credit Agreement in its proper alphabetical order
to read as follows:
"Fourth Amendment Date" shall mean May [16], 2003.
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(c) The definitions of "Interest Rate Certificate" and
"Trigger Date" are each hereby deleted from Section 1.01 of the Credit
Agreement.
(d) The last sentence of the definition of "Revolving
Commitment" is amended in its entirety to read as follows:
The amount of the Revolving Commitments of all
Lenders as of the Fourth Amendment Date is $95,000,000.
(e) The definition of "Swap Contract" is hereby amended
by deleting "entered into pursuant to Section 9.18" in the last line
thereof.
5.3 AMENDMENT TO SECTION 1.02. Section 1.02 of the
Credit Agreement is hereby amended in its entirety to read as follows:
1.02 Accounting Terms and Determinations. Except
as otherwise provided in this Agreement, all computations
and determinations as to accounting or financial matters
(including Financial Maintenance Covenants and other
financial covenants) shall be made in accordance with
GAAP consistently applied for all applicable periods, and
all accounting or financial terms shall have the meanings
ascribed to such terms by GAAP; provided, however, that,
if Borrower notifies the Lead Arranger and the
Administrative Agent that Borrower wishes to amend any
covenant in Section 9, to eliminate the effect of any
change in GAAP (as to which Borrower shall give notice of
such change to the Lead Arranger and the Lenders within a
reasonable time after such change) on the operation of
such covenant (or if the Lead Arranger and the
Administrative Agent notify Borrower that the Majority
Lenders wish to amend any such covenant for such
purpose), then Borrower's compliance with such covenant
shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to Borrower
and the Majority Lenders. All financial statements to be
delivered pursuant to this Agreement shall be prepared in
accordance with GAAP.
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5.4 AMENDMENT TO SECTION 9.01. Subsection 9.01(e)
of the Credit Agreement is hereby amended in its entirety to read as
follows:
(e) Intentionally Omitted;
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5.5 AMENDMENT TO SECTION 9.18. Subsection 9.18 of the
Credit Agreement is hereby amended in its entirety to read as follows:
9.18. Intentionally Omitted.
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5.6 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), (b) or (c))" from the twelfth line of such Section and
substituting "(or Schedule 1.01(a) or (b))" therefor.
5.7 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.
5.8 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.
5.9 AMENDMENT TO SCHEDULE 1.01(c). Schedule 1.01(c) of
the Credit Agreement is hereby deleted.
5.10 AMENDMENT TO ANNEX A. Annex A of the Credit
Agreement is hereby amended in its entirety as set forth on Schedule 3
attached hereto and made a part hereof.
[section]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/ Xxxxxx X. Xxxxxxxxxx
----------------------------
Its Chief Financial Officer
Agreed to:
FLEET CAPITAL CORPORATION,
as Administrative Agent and as a Lender
By: /s/ Xxxxx Xxxxxxx
--------------------------
Xxxxx Xxxxxxx
Its Senior Vice President
XXXXXXX XXXXX CAPITAL CORPORATION,
as a Lender
By: /s/ Xxxxxxx X'Xxxxx
--------------------
Its Vice President
JPMORGAN CHASE BANK,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
--------------------
Its Vice President
MIZUHO CORPORATE BANK, LTD. (successor in
interest to The Industrial Bank of Japan,
Limited), as a Lender
By: /s/ Xxxxxxx Xxxxxxx
-------------------
Its Senior Vice President
IBM CREDIT CORPORATION,
as a Lender
By: /s/ Xxxxxx Xxxxxxxx
-------------------
Its Manager Global Special Handling
PEOPLE'S BANK,
as a Lender
By: /s/ Xxxxx Xxxxxxxx
-------------------
Its Vice President
BANK LEUMI, USA,
as a Lender
By: /s/ Xxxx Xxxx
-------------
Its Vice President
By: /s/ Xxxxx Xxxxxxxx
------------------
Its Banking Officer
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxx Xxxxxx
-----------------
Its Vice President
CITIZENS BANK OF MASSACHUSETTS,
as a Lender
By: /s/ Xxxxx Xxxx
--------------
Its Vice President
SCHEDULE 1
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Schedule 1.01(a)
LIBOR Loans ABR Loans
----------- ---------
Revolving Loans 2.25% 1.25%
Term B Facility Loans 2.75% 1.75%
SCHEDULE 2
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Schedule 1.01(b)
LIBOR Loans ABR Loans
----------- ---------
Revolving Loans 1.25% 0.25%
Term B Facility Loans 2.25% 1.25%
SCHEDULE 3
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ANNEX A
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COMMITMENTS
ALLOCATION
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INSTITUTION REVOLVING TERM B FACILITY TOTAL
----------- ---------- --------------- -----
COMMITMENTS COMMITMENTS
----------- -----------
---------------------------------------- -------------------- -------------------------- ------------------------------
Xxxxxxx Xxxxx Capital Corporation $17,500,000 $ 0.00 $17,500,000.00
---------------------------------------- -------------------- -------------------------- ------------------------------
Fleet Capital Corporation $25,000,000 $27,396,073.00 $52,396,073.00
---------------------------------------- -------------------- -------------------------- ------------------------------
JPMorgan Chase Bank $15,000,000 $12,073,217.43 $27,073,217.43
---------------------------------------- -------------------- -------------------------- ------------------------------
U.S. Bank National Association $15,000,000 $10,000,000.00 $25,000,000.00
---------------------------------------- -------------------- -------------------------- ------------------------------
People's Bank $ 7,500,000 $ 4,491,439.57 $11,991,439.57
---------------------------------------- -------------------- -------------------------- ------------------------------
Bank Leumi, USA $ 5,000,000 $ 5,000,000.00 $10,000,000.00
---------------------------------------- -------------------- -------------------------- ------------------------------
Citizens Bank of Massachusetts $10,000,000 $15,000,000.00 $25,000,000.00
---------------------------------------- -------------------- -------------------------- ------------------------------
Total $95,000,000 $73,960,730.00 $168,960,730.00
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