Amendment Six To Credit Agreement
THIS AMENDMENT SIX is dated as of May 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, Amendment Four to Credit
Agreement dated as of April 8, 1998, and Amendment Five and Consent and Waiver
to Credit Agreement dated as of March 1, 1999 ("Amendment Five"). The Borrower
has requested that the Lender Parties amend certain provisions in the Credit
Agreement to reflect the accounting treatment of the sale and leaseback
transaction which was consented to by the Lender Parties under Amendment Five,
and the Lender Parties are willing to do so.
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 May 1, 1999, the Credit Agreement is hereby
amended as follows:
2.1 Section 1.01 of the Credit Agreement is amended by adding the
definitions of "Excluded Leaseback Gain", "1999 Sale Leaseback Prepayment" and
"1999 Sale Leaseback Transaction", as follows:
"Excluded Leaseback Gain" means all gain (gross -
before tax) resulting from the 1999 Sale Leaseback Transaction
or any termination of the lease thereunder if (and only if)
such gain is more than $50,000 during any period comprised of
four, full, consecutive quarter-annual fiscal periods taken
together as one accounting period.
"1999 Sale Leaseback Prepayment" means the prepayment
of any Borrowing pursuant to Section 2.06(b)(ii) of the Credit
Agreement by reason of the 1999 Sale Leaseback Transaction.
"1999 Sale Leaseback Transaction" means the 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.
2.2 Section 1.01 of the Credit Agreement is amended by changing the
definitions of "Adjusted EBITDA" and "EBITDA" 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 Second Quarter `97 Charge, less (ii) for
each fiscal quarter through the fiscal quarter ending December
31, 1998, that portion of the Second Quarter `97 Charge
actually paid during such period, less (iii) any gain arising
from a reversal of the Second Quarter `97 Charge, plus (iv) on
the fiscal quarter end date of December 31, 1998, the cash
balance of the Second Quarter `97 Charge which the Borrower
has not yet paid in cash but which the Borrower expects to
incur, (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.
"EBITDA" means , for any period, the sum, determined
on a Consolidated basis, of (a) net income (or net loss), (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, excluding (i) in the case of the Fiscal Quarter in
which the consummation of the Acquisition occurs, any
restructuring charge taken by PSC and its Subsidiaries, in
respect of the Acquisition, and (ii) the Excluded Leaseback
Gain, if any, accruing during such period.
2.3 Subclause (y) of clause (ii) of Subsection (a) of Section 5.04 of
the Credit Agreement, is amended to read in its entirety as follows:
(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)),
3. 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.
4. Execution in Counterparts and Effectiveness. This Amendment Six 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 Six,
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 Six by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment Six. This Amendment Six will become
effective when the Administrative Agent shall have received counterparts of this
Amendment Six which, when taken together, bear the signatures of the Borrower,
PSC, the Administrative Agent and the Required Lenders.
5. 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.
6. 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:
