Amendment Eight and Consent and Waiver
To
Credit Agreement
This Amendment Eight and Consent and Waiver (this "Amendment") is dated
as of January 19, 2000 and is made in respect of the Credit Agreement dated as
of July 12, 1996 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 have previously entered into the Credit Agreement and
various amendments thereto from time to time. The Borrower has requested that
the Lender Parties consent to the acquisition of Percon Incorporated by way of
merger (the "Percon Acquisition") and, further, that the Lender Parties waive
certain covenants in the Credit Agreement as applied to the Percon Acquisition,
increase and extend the credit facilities thereunder, and amend certain other
covenants in the Credit Agreement to reflect the current circumstances of the
Borrower. In addition, First Union National Bank desires to be terminated as a
Lender Party, and the Borrower desires, and the other Lenders agree, to add
Citizens Bank of Massachusetts and HSBC Bank USA as Lender Parties.
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 January 19, 2000, the Credit Agreement is hereby
amended as follows:
2.1 All references to "Term A" in the Credit Agreement as in effect
prior to this Amendment are hereby changed to read "Term Loan" and all
references to "Term B" in the Credit Agreement as in effect prior to this
Amendment, together with all corresponding references to defined terms
containing references to "Term B", are hereby deleted and of no effect.
2.2 All references to "Borrowing Base" in the Credit Agreement as in
effect prior to this Amendment, together with all corresponding references to
defined terms containing references to "Borrowing Base", are hereby deleted and
of no effect.
2.3 Section 1.01 of the Credit Agreement is amended by adding the
definitions of "Co-Book Managers", "Date of Determination", "Percon
Acquisition", "Percon Agreement" and "Percon Charge" thereto, as follows:
"Co-Book Managers" means Fleet National Bank and The Chase Manhattan
Bank.
"Date of Determination" means each fiscal quarter end date as of which
a calculation is made to determine the financial condition of the Borrower
and its Subsidiaries in respect of compliance with any requirement
hereunder.
"Percon Acquisition" means the transaction described in the Percon
Agreement.
"Percon Agreement" means the Agreement and Plan of Merger (and the
Schedules thereto) by and among PSC, West Acquisition Corp. and Percon
Incorporated dated as of November 9, 1999.
"Percon Charge" means the charge to earnings taken by the Borrower in
its first fiscal quarter in 2000 as a result of the Percon Acquisition.
2.4 Section 1.01 of the Credit Agreement is amended by changing the
definitions of "Adjusted EBITDA", "Adjusted Total Debt Ratio", "Applicable
Margin", "Commitment Fee Percentage", "Consolidated", "Pro Forma EBITDA",
"Termination Date", "Total Debt Ratio", and "Working Capital Termination Date"
to read in their entirety, as follows:
"Adjusted EBITDA" means, for any period, the sum, determined
on a Consolidated basis, of (a) net income (or net loss) plus: (i) the
Percon Charge (which is taken only in the first fiscal quarter in
2000), less (ii) for each fiscal quarter that portion of the Percon
Charge actually paid during such period, less (iii) any gain arising
from a reversal of the Percon Charge, (b) interest expense, (c) income
tax expense, (d) depreciation expense and (e) amortization expense in
each case of PSC and its Subsidiaries, determined in accordance with
GAAP for such period, less, however, the Excluded Leaseback Gain, if
any, accruing during such period.
"Adjusted Total Debt Ratio" means, on any Date of
Determination, the ratio of the aggregate amount of Debt of PSC and its
Subsidiaries on the last day of the most recently completed fiscal
quarter of PSC to Consolidated Adjusted EBITDA for the most recently
completed four fiscal quarters of PSC; provided, however, that (i) if
such four fiscal quarter period includes any or all of the fiscal
quarters ending on or about December 31, 1998, March 31, 1999, June 30,
1999, September 30, 1999 and December 31, 1999, Consolidated Adjusted
EBITDA shall be calculated by using the Pro Forma EBITDA for each such
fiscal quarter in such four fiscal quarter period, and (ii) for
purposes solely of calculating the aggregate amount of Debt
outstanding, the Working Capital Advances shall be deemed to be
outstanding in an aggregate principal amount equal to the average
principal amount outstanding on the last two fiscal quarter end dates,
including the Date of Determination.
"Applicable Margin" means at any time and from time to time
(a) prior to April 15, 2000, 0.250% per year for Prime Rate Advances
and 1.750% per year for Eurodollar Rate Advances, and (b) from and
after April 15, 2000, a percentage per year determined by reference to
the Total Debt Ratio as set forth below:
Term Loan Facility Term Loan Facility and Working
and Working Capital Facility Eurodollar Rate
Total Debt Ratio Capital Facility Advances
Prime Rate Advances
Level I:
--------
a ratio greater than 3.0:1 0.500% 2.000%
Level II:
---------
a ratio of 3.0:1 or less but at
least 2.5:1 0.250% 1.750%
Level III:
---------
a ratio of less than 2.5:1 but at
least 2.0:1 0.000% 1.500%
Level IV:
--------
a ratio of less than 2.0:1 but at 0.000% 1.250%
least 1.5:1
Level V:
a ratio of less than 1.5:1 0.000% 1.000%
The Applicable Margin for each Prime Rate Advance shall be
determined by reference to the ratio in effect from time to time and
the Applicable Margin for each Eurodollar Rate Advance shall be
determined by reference to the ratio in effect on the first day of each
Interest Period for such Advance; provided, however, that (A) no change
in the Applicable Margin shall be effective until three Business Days
after the date on which the Administrative Agent receives financial
statements pursuant to Section 5.03(c) or (d) and a certificate of the
chief financial officer of PSC demonstrating such ratio and (B) if PSC
has not submitted to the Administrative Agent the information described
in clause (A) of this proviso as and when required under Section
5.03(c) or (d), as the case may be, the Applicable Margin shall be at
Level I for so long as such information has not been received by the
Administrative Agent.
"Commitment Fee Percentage" means at any time and from time to
time (a) prior to April 15, 2000, .375% per year and (b) from and after
April 15, 2000, a percentage per year determined by reference to the
Total Debt Ratio as set forth below:
Total Debt Ratio Commitment Fee Percentage
Level I:
a ratio of greater than 3.0:1 .500%
Level II:
a ratio of 3.0:1 or less but at least
2.5:1 .375%
Level III:
a ratio of less than 2.5:1 but at
least 2.0:1 .375%
Level IV:
a ratio of less than 2.0:1 but at
least 1.5:1 .300%
Level V:
a ratio of less than 1.5:1 .250%
; provided, however, that (A) no change in the Commitment Fee
Percentage shall be effective until three Business Days after the date
on which the Administrative Agent receives financial statements
pursuant to Section 5.03(c) or (d) and a certificate of the chief
financial officer of PSC demonstrating such ratio and (B) if PSC has
not submitted to the Administrative Agent the information described in
clause (A) of this proviso as and when required under Section 5.03(c)
or (d), as the case may be, the Commitment Fee Percentage shall be at
Level I for so long as such information has not been received by the
Administrative Agent.
"Consolidated" means, when used in conjunction with any
defined term or any accounting term, such defined term or accounting
term as applied to Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP.
"Pro Forma EBITDA" means for each fiscal quarter ending on or
about December 31, 1998, March 31, 1999, June 30, 1999, September 30,
1999 and December 31, 1999 the amount listed on Schedule III for such
fiscal quarter.
"Termination Date" means the earlier of January 18, 2006 and
the date of termination in whole of the Term Loan Commitments, the
Letter of Credit Commitments and the Working Capital Commitments
pursuant to Section 2.05 or 6.01.
"Total Debt Ratio" means, on any Date of Determination, the
ratio of the aggregate amount of Debt of PSC and its Subsidiaries on
the last day of the most recently completed fiscal quarter of PSC to
Consolidated EBITDA for the most recently completed four fiscal
quarters of PSC; provided, however, that (i) if such four fiscal
quarter period includes any or all of the fiscal quarters ending on or
about December 31, 1998, March 31, 1999, June 30, 1999, September 30,
1999 and December 31, 1999, Consolidated EBITDA shall be calculated by
using the Pro Forma EBITDA for each such fiscal quarter in such four
fiscal quarter period, and (ii) for purposes solely of calculating the
aggregate amount of Debt outstanding, the Working Capital Advances
shall be deemed to be outstanding in an aggregate principal amount
equal to the average principal amount outstanding on the last two
fiscal quarter end dates, including the Date of Determination.
"Working Capital Termination Date" means January 18, 2005.
2.5 Subsection (a) of Section 2.01 is hereby amended to read in
its entirety as follows:
(a) The Term Loan Advances. Each Term Loan Lender severally
agrees, on the terms and conditions hereinafter set forth, to make a
single advance (a "Term Loan Advance") to the Borrower on any Business
Day during the period from the date hereof until January 28, 2000 in an
amount not to exceed such Lender's Term Loan Commitment at such time.
The Term Loan Borrowing shall consist of Term Loan Advances made
simultaneously by the Term Loan Lenders ratably according to their Term
Loan Commitments. The proceeds of amounts borrowed under this Section
2.01 (a) shall be used to repay all Term Facilities existing under this
Credit Agreement prior to Amendment Eight to the Credit Agreement and
to fund the Percon Acquisition. Amounts borrowed under this Section
2.01(a) and repaid or prepaid may not be reborrowed.
2.6 Subsection (a) of Section 2.04 is hereby amended to read in
its entirety as follows:
(a) Term Loan Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Term Loan Lenders
the aggregate outstanding principal amount of the Term Loan Advances on
the following dates in the amounts indicated (which amounts shall be
reduced as a result of the application of prepayments in accordance
with the order of priority set forth in Section 2.06):
Date Amount
March 31, 2000 $2,500,000
June 30, 2000 $2,500,000
September 30, 2000 $2,500,000
December 31, 2000 $2,500,000
March 31, 2001 $3,750,000
June 30, 2001 $3,750,000
September 30, 2001 $3,750,000
December 31, 2001 $3,750,000
March 31, 2002 $4,000,000
June 30, 2002 $4,000,000
September 30, 2002 $4,000,000
December 31, 2002 $4,000,000
March 31, 2003 $3,000,000
June 30, 2003 $3,000,000
September 30, 2003 $3,000,000
December 31, 2003 $3,000,000
March 31, 2004 $2,750,000
June 30, 2004 $2,750,000
September 30, 2004 $2,750,000
December 31, 2004 $2,750,000
March 31, 2005 $2,750,000
June 30, 2005 $2,750,000
September 30, 2005 $2,750,000
January 18, 2006 $2,750,000
provided, however, that the final principal installment shall be repaid
on the Termination Date and in any event shall be in an amount equal to
the aggregate principal amount of the Term Loan Advances outstanding on
such date.
2.7 Subsection (a) of Section 2.06 of the Credit Agreement is amended
by adding the following words at the end of clause (y) therein, as follows:
unless Borrower shall give the Administrative Agent advance notice of
at least three (3) Business Days of such prepayment and shall pay on
the date of such prepayment the amount requested by each Lender Party
for compensation of loss, cost or expense pursuant to Subsection (e) of
Section 2.10 hereof.
2.8 Subsection (a) of Section 2.09 of the Credit Agreement is
amended by changing the first sentence therein to read as follows:
The Borrower may on any Business Day, upon notice given to the
Administrative Agent not later than 11:00 A.M. (Rochester, New York
time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.07 and 2.10,
convert all or any portion of the Advances of one Type comprising the
same Borrowing into Advances of the other Type; provided, however, that
no Conversion of Eurodollar Rate Advances into Prime Rate Advances
shall be any day other than the last day of an Interest Period for such
Eurodollar Rate Advances unless Borrower shall give the Administrative
Agent advance notice of at three (3) Business Days of such Conversion
(which notice shall be irrevocable) and shall pay on the date of such
Conversion the amount requested by each Lender Party for compensation
of loss, cost or expense pursuant to Subsection (e) of Section 2.10
hereof, any Conversion of Prime Rate Advances into Eurodollar Rate
Advances shall be in an amount not less than the minimum amount
specified in Section 2.02(c), no Conversion of any Advances shall
result in more separate Borrowings than permitted under Section 2.02(c)
and each Conversion of Advances comprising part of the same Borrowing
under any Facility shall be made ratably among the Appropriate Lenders
in accordance with their Commitments under such Facility.
2.9 Section 2.10 of the Credit Agreement is amended by adding
Subsection (e) thereto, as follows:
(e) The Borrower shall pay to the Administrative Agent for the
account of each Lender Party, upon the request of such Lender Party
through the Administrative Agent, such amount or amounts as shall be
sufficient (in the reasonable opinion of such Lender Party) to
compensate it for any loss, cost or expense which such Lender Party
determines is attributable to (i) any payment of a Eurodollar Rate
Advance or conversion of a Eurodollar Rate Advance to a Prime Rate
Advance made on a date other than the last day of the corresponding
Interest Period for such Eurodollar Rate Advance (whether by reason of
acceleration, mandatory conversion or otherwise), (ii) any failure by
the Borrower to borrow a Eurodollar Rate Advance on the date specified
by Borrower's written notice, or (iii) any failure by the Borrower to
pay a Eurodollar Rate Advance on the date for payment specified in the
Borrower's written notice. Without limiting the foregoing, such
compensation shall include an amount equal to the excess, if any, of
(i) the amount of interest which otherwise would have accrued on the
principal amount so paid for the period from and including the date of
such payment to but excluding the last day of the Interest Period for
such Eurodollar Rate Advance at the applicable rate of interest for
such Eurodollar Rate Advance provided for herein over (ii) the amount
of interest (as reasonably determined by each Lender Party) such Lender
Party would have bid in the London interbank market for United States
Dollar deposits for amounts comparable to such principal amount and
maturities comparable to such period. A determination of any Lender
Party as to the amounts payable pursuant to this Subsection (e) of
Section 2.10 shall be conclusive absent manifest error.
2.10 Subsection (a) of Section 5.02 of the Credit Agreement is amended
by replacing the period at the end of clause (vii) thereof with "; and" and
adding Clause (viii) thereto as follows:
(viii) Liens assumed in the Percon Acquisition
securing Debt not exceeding an aggregate principal amount of
$200,000.
2.11 Subsection (c) of Section 5.02 is amended by substituting the
amount of $5,000,000 for the amount of $3,000,000 where the latter amount
appears in such Subsection.
2.12 Subsection (f) of Section 5.02 of the Credit Agreement is amended
by inserting the following clause (vii) after clause (vi) therein and by
changing the enumeration of the existing clause (vii) of Section 5.02 to (viii):
(vii) the Percon Acquisition; and
2.13 Subsection (g) of Section 5.02 of the Credit Agreement is amended
to by substituting the amount of $12,000,000 for the amount of $3,000,000 where
the latter amount appears in clause (iii) of such Subsection.
2.14 Subsection (q) of Section 5.02 of the Credit Agreement is
amended to read in its entirety, as follows:
(q) Capital Expenditures. Make, or permit any of its
Subsidiaries to make, any Capital Expenditures that would cause the
aggregate of all such Capital Expenditures made by PSC, the Borrower
and its Subsidiaries to exceed $15,000,000 annually.
2.15 Subsection (a) of Section 5.04 of the Credit Agreement is
amended to read in its entirety, as follows:
(a) Fixed Charge Coverage Ratio. Maintain at the end of each
fiscal quarter of PSC a ratio of (i) Consolidated Adjusted EBITDA for
the most recently completed four fiscal quarters of PSC, less Capital
Expenditures made during such period, less the aggregate amount of
federal, state, local and foreign taxes paid by PSC and its
Subsidiaries during such period to the (ii) sum of (w) cash interest
payable by PSC and its Subsidiaries on all Debt during such period plus
(x) cash rentals payable under Capitalized Leases during such period
plus (y) principal amounts of all Funded Debt payable, in each case, by
PSC and its Subsidiaries during such period, excluding the 1999 Sale
Leaseback Prepayment and excluding all payments or prepayments of any
Borrowing with the Stock Sale Proceeds other than (and not excluding)
payments scheduled to be due and payable during such period, if any
(without the application of Section 2.06(b)(ii)), plus (z) the
aggregate purchase price paid by PSC and its Subsidiaries during such
period to purchase capital stock of PSC as permitted by Section
5.02(g), of not less than 1.25 to 1.00; provided, however that if such
four fiscal quarter period includes any or all of the fiscal quarters
ending on or about December 31, 1998, March 31, 1999, June 30, 1999,
September 30, 1999 and December 31, 1999, Consolidated Adjusted EBITDA
shall be calculated by using the Pro Forma EBITDA for each such fiscal
quarter in such four fiscal quarter period.
2.16 Subsection (b) of Section 5.04 of the Credit Agreement is
amended to read in its entirety, as follows:
(b) Adjusted Total Debt Ratio. Maintain at the end of each
fiscal quarter of PSC an Adjusted Total Debt Ratio for such date of
not more than 3.25 to 1.00.
2.17 Subsection (c) of Section 5.04 of the Credit Agreement is
amended to read in its entirety, as follows:
(c) Senior Debt to Adjusted EBITDA Ratio. Maintain at the end
of each fiscal quarter of PSC a ratio of Senior Debt of PSC and its
Subsidiaries outstanding on the Date of Determination to Consolidated
Adjusted EBITDA for the most recently completed four fiscal quarters of
PSC of not more than the ratio set forth below for such period;
provided, however, that (i) if such four fiscal quarter period includes
any or all of the fiscal quarters ending on or about December 31, 1998,
March 31, 1999, June 30, 1999, September 30, 1999 and December 31,
1999, Consolidated Adjusted EBITDA shall be calculated by using the Pro
Forma EBITDA for each such fiscal quarter in such four fiscal quarter
period, and (ii) for the purposes solely of calculating the aggregate
principal amount of Senior Debt outstanding, the Working Capital
Advances shall be deemed to be outstanding in an aggregate principal
amount equal to the average principal amount outstanding on the last
two fiscal quarter end dates, including the Date of Determination:
Four Fiscal Quarters Ending Ratio
3/31/00 2.25 to 1.00
6/30/00 2.25 to 1.00
9/30/00 and thereafter 2.00 to 1.00
2.18 Subsection (d) of Section 5.04 of the Credit Agreement is
amended to read in its entirety, as follows:
(d) Interest Coverage Ratio. Maintain as of the end of each
fiscal quarter of PSC a ratio of (i) Consolidated Adjusted EBITDA for
the most recently completed four fiscal quarters of PSC to (ii)
Interest Expense of PSC and its Subsidiaries for such period of not
less than 3.50 to 1.00; provided, however that if such four fiscal
quarter period includes any or all of the fiscal quarters ending on or
about December 31, 1998, March 31, 1999, June 30, 1999, September 30,
1999 and December 31, 1999, Consolidated Adjusted EBITDA shall be
calculated by using the Pro Forma EBITDA for each such fiscal quarter
in such four fiscal quarter period.
2.19 Subsection (e) of Section 5.04 of the Credit Agreement is
amended to read in its entirety, as follows:
(e) Net Worth. Maintain at all times an excess of Consolidated
total assets over Consolidated total liabilities, in each case, of the
Borrower and its Subsidiaries of not less than the sum of: (A)
$50,000,000, plus (B) 75% of Consolidated net income for each fiscal
quarter of PSC and its Subsidiaries, on a cumulative basis, with no
deduction for losses of any quarter, for the period after December 31,
1999 to and including each quarter end date.
2.20 Exhibit X-0, Xxxxxxxx 0, Xxxxxxxx XXX to the Credit Agreement
shall be in the forms of Exhibit X-0, Xxxxxxxx 0, Xxxxxxxx III annexed hereto.
2.21 Schedule 3.01(g), Schedule 4.01(b), Schedule 4.01(hh), Schedule
4.01(ii) and Schedule 4.01(jj) to the Credit Agreement are amended and restated
as set forth in Schedule 3.01(g), Schedule 4.01(b), Schedule 4.01(hh), Schedule
4.01(ii) and Schedule 4.01(jj) annexed hereto, and Borrower hereby warrants that
as so amended and restated such Schedules are complete, true and correct on the
date of this Amendment.
2.22 Citizens Bank of Massachusetts and HSBC Bank USA are hereby added
as "Lenders" to the Credit Agreement and First Union National Bank is hereby
terminated as a "Lender" under the Credit Agreement.
3. Consent and Waiver. The undersigned Lender Parties hereby consent to the
Percon Acquisition and waive the right to deem the Percon Acquisition to be a
violation of Sections 5.02(a) or 5.02(f) of the Credit Agreement or a Default or
Event of Default under the Credit Agreement by reason of the Percon Acquisition
resulting in noncompliance with such Sections; provided and on the conditions
that: (1) the Percon Acquisition is made within the terms set forth in the
Percon Agreement and no material change shall have been made to the Percon
Agreement, (2) any subsidiary formed in connection with the Percon Acquisition
shall, simultaneously with the consummation of the Percon Acquisition become a
Subsidiary Guarantor and an additional grantor pursuant to the terms of the
Security Agreement and Intellectual Property Security Agreement, (3) the
ownership interests of such Subsidiary Guarantor in all foreign subsidiaries of
Percon Incorporated shall be pledged to the Administrative Agent under the
Security Agreement, (4) Borrower shall be in compliance with all terms,
conditions and covenants of the Credit Agreement, as amended hereby, immediately
after giving effect to the Percon Acquisition, and (5) immediately upon the
consummation of the Percon Acquisition, the chief financial officer of the
Borrower shall deliver to the Administrative Agent a certificate stating that
the Borrower has complied with and remains in compliance with each of these
conditions.
4. Conditions Precedent to Effectiveness. This Amendment shall not become
effective unless and until:: (a) the holders of the Subordinated Debt shall have
consented to the Percon Acquisition and this Amendment; (b) the Borrowers shall
have furnished to the Administrative Agent all such confirmations, supporting
documents and opinions of counsel as the Administrative Agent may specify, (c)
the Borrower shall have paid to the Agent for the account of each of the Lender
Parties, pro-rata according to the amount of the Commitment of each Lender
Party, a fee equal to the sum of (i) one-eighth of one percent of the amount of
that portion of the Commitment previously outstanding which remains outstanding
and (ii) two-eighths of one percent of the amount of that portion of the
Commitment which was not previously outstanding; and (d) First Union National
Bank shall have received in immediately available funds payment in full of all
of Obligations owed to it by the Loan Parties under the Credit Agreement.
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 and
all documents and transactions required in connection with this Amendment.
7. Execution in Counterparts and Effectiveness. This Amendment 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, 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 by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment. This Amendment will become effective (subject to
the terms of Sections 3 and 4 above) when the Administrative Agent shall have
received counterparts of this Amendment 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 in whole.
9. Headings. The headings of this Amendment 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 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
Officer & Treasurer
Fleet National Bank, As Initial Fleet National Bank, As
Issuing Bank Administrative Agent
By: By:
Title: Title:
Fleet National Bank The Chase Manhattan Bank
By: By:
Title: Title:
Manufacturers & Traders Key Bank National
Trust Company Association
By: By:
Title: Title:
Citizens Bank of Massachusetts HSBC Bank USA
By: By:
Title: Title:
First Union National Bank executes this Amendment below for the sole purpose of
effecting its termination as a Lender Party under the Credit Agreement.
First Union National Bank
By:
Title:
Form Of Term Promissory Note
$____________ Dated: __________, ____
FOR VALUE RECEIVED, the undersigned, PSC Scanning, Inc., a Delaware
corporation, (the "Borrower"), HEREBY PROMISES TO PAY to the order of
________________________ (the "Lender") for the account of its Applicable
Lending Office (as defined in the Credit Agreement referred to below) the
principal amount of the Term Advance (as defined below) owing to the Lender by
the Borrower pursuant to the Credit Agreement, dated as of July 12, 1996 (as
amended, supplemented or otherwise modified, the "Credit Agreement"; terms
defined therein being used herein as therein defined) among the Borrower, the
Lender and certain other lender parties thereto, Fleet National Bank (formerly
known as Fleet Bank), as Initial Issuing Bank, and Fleet National Bank, as
Administrative Agent for the Lender and such other lender parties, on the dates
and in the amounts specified in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount of
the Term Advance from the date of such Term Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Fleet National Bank, as Administrative Agent, at Xxx Xxxx
Xxxxxx, Xxxxxxxxx, X.X., 00000, Account No. 0000000, in same day funds. The Term
Advance owing to the Lender by the Borrower and the maturity thereof, and all
payments made on account of principal thereof, shall be recorded by the Lender
and, prior to any transfer hereof, endorsed on the grid attached hereto, which
is part of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, (i) provides for the making of a single term advance (the "Term
Advance") by the Lender to the Borrower in an amount not to exceed the U.S.
dollar amount first above mentioned, the indebtedness of the Borrower resulting
from such Term Advance to be evidenced by this Promissory Note, and (ii)
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
The obligations of the Borrower under this Promissory Note, and the obligations
of the other Loan Parties under the Loan Documents, are secured by the
Collateral as provided in the Loan Documents.
This Promissory Note shall be governed by and construed in accordance
with the laws of the State of New York.
PSC Scanning, Inc.
By
Name:
Title:
Term Advances And Payments Of Principal
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Amount of
Amount of Principal Paid Unpaid Principal Notation
Date Term Advance or Prepaid Balance Made by
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SCHEDULE I
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Working Capital Domestic Eurodollar
Name of Initial Lender Term Commitment Commitment Lending Office Lending
------------------------------ -------------- ---------------- ------------------------------- ==============================
Fleet National Bank 13,200,000 8,800,000 Xxx Xxxx Xxxxxx Xxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
------------------------------ -------------- ---------------- ------------------------------- ==============================
Manufacturers & Traders Trust 13,200,000 8,800,000 000 Xxxx Xxxxxx, 0xx Xxxxx 000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
------------------------------ -------------- ---------------- ------------------------------- ==============================
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Citizens Bank of Massachusetts 10,200,000 6,800,000 000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
------------------------------ -------------- ---------------- ------------------------------- ==============================
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Key Bank National Association 15,000,000 10,000,000 1200 Bausch & Lomb Place 0000 Xxxxxx & Xxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
------------------------------ -------------- ---------------- ------------------------------- ==============================
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HSBC Bank 10,200,000 6,800,000 Xxx XXXX Xxxxxx Xxx XXXX Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
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The Chase Manhattan Bank 13,200,000 8,800,000 Xxx Xxxxx Xxxxxx, X-0 Xxx Xxxxx Xxxxxx, X-0
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
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Schedule III
ProForma EBITDA
PSC Inc./Percon, Inc. Consolidated
(000's)
Q4 1998 Q1 1999 Q2 1999 Q3 1999 Q4 1999
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Net Income/(Loss) ....... 3,815 2,704 4,245 4,754 *
Interest Expense ........ 2,180 2,101 1,878 1,770 *
Income Tax Expense ...... 1,993 1,499 2,742 2,554 *
Depreciation Expense .... 1,791 1,719 1,731 1,877 *
Amortization Expense .... 1,996 1,887 1,858 1,868 *
------- ----- ------- -------
EBITDA .................. 11,775 9,910 12,454 12,823 *
*The amounts for Q4 1999 shall be the combined amounts for the Borrower and its
Subsidiaries and Percon Incorporated and its Subsidiaries as though such
corporations were consolidated.
