Amendment Seven and Consent and Waiver
To
Credit Agreement
THIS AMENDMENT SEVEN AND CONSENT AND WAIVER is dated as of October 13,
1999 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 the assets of GEO Labs, Inc.
and GAP Technologies, Inc. (collectively, the "GEO/GAP Acquisition") and,
further, that the Lender Parties waive and amend certain covenants in the Credit
Agreement as applied to the GEO/GAP Acquisition and certain elements thereof.
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 October 13, 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 "GEO/GAP Acquisition" and "GEO/GAP Term Sheet" thereto, as
follows:
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"GEO/GAP Acquisition" means the Transaction described in the GEO/GAP
Term Sheet.
"GEO/GAP Term Sheet" means the Term Sheet annexed as Exhibit A hereto.
2.2 Section 1.01 of the Credit Agreement is amended by changing the
definitions of "Capital Expenditures" and "Debt" to read in their entirety as
follows (new, additional language being in bold type):
"Capital Expenditures" means, for any Person for any
period, the sum of all expenditures made, directly or
indirectly, by such Person or any of its Subsidiaries during
such period for equipment, fixed assets, real property or
improvements, or for replacements or substitutions therefor or
additions thereto, that have been or should be, in accordance
with GAAP, reflected as additions to property, plant or
equipment on a Consolidated balance sheet of such Person;
provided however that for the purposes of computing compliance
with Section 5.04(a) of this Agreement, Capital Expenditures
shall not be deemed to include those expenditures which are
funded by Debt and which are made to accomplish the GEO/GAP
Acquisition.
"Debt" of any Person means, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all
Obligations of such Person for the deferred purchase price of
property or services (other than trade payables not overdue by
more than 60 days incurred in the ordinary course of such
Person's business and trade payables that are being contested
in good faith), (c) all Obligations of such Person evidenced
by notes, bonds, debentures or other similar instruments, (d)
all Obligations of such Person created or arising under any
conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession
or sale of such property), (e) all Obligations of such Person
as lessee under Capitalized Leases, (f) all Obligations,
contingent or otherwise, of such Person under acceptance,
letter of credit or similar facilities, (g) all Obligations of
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such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any capital stock of or other
ownership or profit interest in such Person or any other
Person or any warrants, rights or options to acquire such
capital stock, valued, in the case of Redeemable Preferred
Stock, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends, (h)
all Obligations of such Person in respect of Hedge Agreements,
(i) all Debt of others referred to in clauses (a) through (h)
above or clause (j) below guaranteed directly or indirectly in
any manner by such Person, or in effect guaranteed directly or
indirectly by such Person through an agreement (i) to pay or
purchase such Debt or to advance or supply funds for the
payment or purchase of such Debt, (ii) to purchase, sell or
lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to
make payment of such Debt or to assure the holder of such Debt
against loss, (iii) to supply funds to or in any other manner
invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is
received or such services are rendered) or (iv) otherwise to
assure a creditor against loss, and (j) all Debt referred to
in clauses (a) through (i) above of another Person secured by
(or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Debt;
provided however that for the purposes of Section 5.02(b) of
the Agreement, Debt shall not be deemed to include amounts
payable to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ pursuant to and in accordance with
the GEO/GAP Term Sheet.
2.3 Section 5.02(d) of the Credit Agreement is amended by making the
following correction in clause (v) thereof: the reference to "Section 5.01(f)(i)
and (vii)" is changed to "Section 5.02(f)(i) and (vii)".
3. Consent and Waiver. The undersigned Lender Parties hereby consent to the
GEO/GAP Acquisition and waive the right to deem the GEO/GAP Acquisition to be a
violation of Section 5.02(b) of the Credit Agreement or a Default or Event of
Default under the Credit Agreement by reason of the GEO/GAP Acquisition
resulting in noncompliance with such Sections; provided and on the conditions
that: (1) the GEO/GAP Acquisition is made within the terms set forth on the
GEO/GAP Term Sheet, (2) Borrower shall be in compliance with all terms,
conditions and covenants of the Credit Agreement, as amended hereby, immediately
after giving effect to the GEO/GAP Acquisition, and (3) immediately upon the
consummation of the GEO/GAP 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. 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.
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5. 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
Seven and Consent and Waiver and all documents and transactions required in
connection with this Amendment Seven and Consent and Waiver.
6. Execution in Counterparts and Effectiveness. This Amendment Seven 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 Seven 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 Seven and Consent and
Waiver by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment Seven and Consent and Waiver. This Amendment Seven
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 Seven and Consent and Waiver which, when taken together, bear the
signatures of the Borrower, PSC, the Administrative Agent and all of the
Required Lenders.
7. 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 Seven 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.
8. Headings. The headings of this Amendment Seven 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 Seven 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
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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:
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