Exhibit 10.1
Amendment Five and Consent and Waiver
To
Credit Agreement
THIS AMENDMENT FIVE AND CONSENT AND WAIVER is dated as of March 1, 1999
and is made in respect of the Credit Agreement dated as of July 12, 1996 and as
amended and in effect immediately prior to the date hereof (the "Credit
Agreement") by and among PSC SCANNING, INC., a Delaware corporation formerly
known as SpectraScan, Inc., which is the successor by merger to PSC Acquisition,
Inc., (the "Borrower"), PSC INC. ("PSC"), the financial institutions party to
the Credit Agreement (the "Lender Parties"), FLEET NATIONAL BANK (formerly known
as Fleet Bank) as the "Initial Issuing Bank", and FLEET NATIONAL BANK, as
administrative agent (the "Administrative Agent") under the Credit Agreement.
Statement of the Premises
The Borrower, PSC, the Lender Parties, the Initial Issuing Bank and the
Administrative Agent previously entered into the Credit Agreement, First
Amendment to Credit Agreement dated as of September 27, 1996, Amendment Two and
Waiver to Credit Agreement dated as of July 4, 1997, Amendment Three to Credit
Agreement (With Consent) dated as of August 13, 1997 and Amendment Four to
Credit Agreement dated as of April 8, 1998. The Borrower has requested that the
Lender Parties amend a certain provision in the Credit Agreement and consent to
a certain transaction and waive the application of certain covenants to that
transaction, and the Lender Parties are willing to do so upon certain
conditions.
Statement of Consideration
Accordingly, in consideration of the premises, and under the authority
of Section 5-1103 of the New York General Obligations Law, the parties hereto
agree as follows.
Agreement
1. Defined Terms. The terms "this Agreement", "hereunder" and similar references
in the Credit Agreement shall be deemed to refer to the Credit Agreement as
amended hereby. Capitalized terms used and not otherwise defined herein shall
have the meanings ascribed to such terms in the Credit Agreement.
2. Amendment. Effective as of March 1, 1999, clause (vii) of Subsection (f) of
Section 5.02 of the Credit Agreement is hereby amended by substituting the
amount "$6,500,000" for the amount "$3,000,000" where the latter amount appears
in such clause.
3. Consent and Waiver. The undersigned Lender Parties hereby consent to the
proposed sale and leaseback transaction whereby certain of the facilities of the
Borrower located in Eugene, Oregon shall be sold to Xxxxx Diversified LLC or one
of its affiliates or assigns and leased back to the Borrower on substantially
the terms set forth in the letter dated February 12, 1999 issued by Xxxxx
Diversified LLC to the Borrower (the "Transaction"). The Lender Parties hereby
waive the right to deem the Transaction to be a violation of Section 5.02 of the
Credit Agreement or a Default or Event of Default under the Credit Agreement.
Provided, however, that this consent and waiver is granted on the conditions
subsequent that: (i) at least $5,000,000 of the Net Cash Proceeds from the
Transaction will be applied immediately upon consummation of the Transaction to
the payment of the Facilities as provided in Section 2.06(b)(ii) of the Credit
Agreement; and (ii) the balance of the Net Cash Proceeds shall be used only for
(1) working capital purposes, or (2) in partial payment of the investment by the
Borrower or PSC in the capital stock of Eldat Communication Ltd.
4. Amendment Fees. As a condition precedent to the effectiveness of this
Amendment Five and Consent and Waiver, PSC or the Borrower shall pay to each
Lender Party a fee equal to the product of: a factor of .000625 multiplied by
the sum of (i) the amount (if any) of the Working Capital Commitment of such
Lender Party, (ii) the amount (if any) of the Letter of Credit Commitment of
such Lender Party, plus (iii) the amount (if any) of the outstanding principal
amount of each Term A Note and each Term B Note held by such Lender Party.
5. Effect on the Credit Agreement. Except as specifically amended above, the
Credit Agreement shall remain in full force and effect and is hereby ratified
and confirmed. The Borrower and PSC each acknowledge and agree that the Credit
Agreement (as amended by this Amendment) and each other Loan Document to which
each is a party is in full force and effect, that its Obligations thereunder and
under this Amendment are its legal, valid and binding obligations enforceable
against it in accordance with the terms thereof and hereof, and it has no
defense, whether legal or equitable, setoff or counterclaim to the payment and
performance of such Obligations.
6. Expenses. The Borrower shall pay promptly when billed all reasonable
out-of-pocket expenses of each of the Lender Parties and the Agent (including,
but not limited to, reasonable fees, charges and disbursements of counsel to
each of the Lender Parties and the Agent) incident to the preparation,
negotiation, execution, administration and enforcement of the this Amendment
Five and Consent and Waiver and all documents and transactions required in
connection with this Amendment Five and Consent and Waiver.
7. Execution in Counterparts and Effectiveness. This Amendment Five and Consent
and Waiver may be executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which shall be deemed to be an
original, and all of which taken together shall constitute one and the same
Amendment Five and Consent and Waiver, regardless of whether or not the
execution by all parties shall appear on any single counterpart. Delivery of an
executed counterpart of a signature page to this Amendment Five and Consent and
Waiver by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment Five and Consent and Waiver. This Amendment Five
and Consent and Waiver will become effective (subject to the terms of Sections 3
and 4 above) when the Administrative Agent shall have received counterparts of
this Amendment Five and Consent and Waiver which, when taken together, bear the
signatures of the Borrower, PSC, the Administrative Agent and all of the
Lenders.
8. Applicable Law. Pursuant to Section 5-1401 of the New York General
Obligations Law, the laws of the State of New York shall govern the validity,
construction, enforcement and interpretation of this Amendment Five and Consent
and Waiver in whole without regard to any rules of conflicts-of-laws that would
require the application of the laws of any jurisdiction other than the State of
New York.
9. Headings. The headings of this Amendment Five and Consent and Waiver are for
the purposes of reference only and shall not limit or otherwise affect the
meanings hereof.
IN WITNESS WHEREOF, the parties hereto have caused a counterpart of
this Amendment Five and Consent and Waiver to be executed and delivered by their
respective representatives thereunto duly authorized, as of the date first above
written.
PSC INC. PSC SCANNING, INC.
By: By:
Title: Vice President, Chief Financial Title: Vice President and Chief
Officer & Treasurer Financial Officer
FLEET NATIONAL BANK, as Initial FLEET NATIONAL BANK, as
Issuing Bank Administrative Agent
By: By:
Title: Title:
FLEET NATIONAL BANK FIRST UNION NATIONAL BANK
By: By:
Title: Title:
MANUFACTURERS & TRADERS KEY BANK NATIONAL
TRUST COMPANY ASSOCIATION
By: By:
Title: Title:
THE CHASE MANHATTAN BANK
By:
Title:
