FIRST AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
NEW ENGLAND BUSINESS SERVICE, INC.
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT dated as of October 24, 2001 (this "Amendment"), by and
among NEW ENGLAND BUSINESS SERVICE, INC. (the "Borrower"), a Delaware
corporation having its principal place of business at 000 Xxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, and the Subsidiaries of the Borrower listed on the
signature pages hereto (the "Guarantors"), FLEET NATIONAL BANK, formerly known
as BankBoston, N.A., a national banking association ("Fleet"), and the other
lending institutions listed on Schedule 1 to the Credit Agreement referred to
below (together with Fleet, the "Banks"), FLEET NATIONAL BANK, formerly known
as BankBoston, N.A., as agent for itself and such other lending institutions
(the "Agent"), and CITIZENS BANK OF MASSACHUSETTS, as syndication agent.
WHEREAS, the Borrower, the Banks and the Agent are parties to a Second
Amended and Restated Revolving Credit Agreement dated as of July 13, 2001 (as
amended and in effect from time to time, the "Credit Agreement," capitalized
terms defined therein having the same meanings herein as therein), pursuant to
which the Banks have extended credit to the Borrower on the terms and subject
to the conditions set forth therein;
WHEREAS, the Borrower has requested that, in connection with the
Borrower's issuance of up to $50,000,000 of its unsecured, pari passu notes
(collectively, the "Notes"), the Agent and the Banks amend the Credit
Agreement to permit the issuance and existence of the Notes and to make
certain other revisions as set forth in detail below;
WHEREAS, subject to the terms and conditions set forth herein, the
Borrower, the Banks, and the Agent have agreed to amend the Credit Agreement
as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree to amend the Credit Agreement
as follows:
1. Amendment to 1.1 of the Credit Agreement. Section 1.1 of the Credit
Agreement is hereby amended by inserting, before the period (".") at the end
of the definition of Consolidated Total Interest Expense, the following text:
", but excluding up to $2,200,000 of (i) fees paid to any Bank in
connection with this Credit Agreement or the Indebtedness permitted
by 7.1(r)(ii) and (ii) fees paid to any purchasers of the
Indebtedness permitted by 7.1(r)(i) in connection with such
Indebtedness, in each case to the extent accrued or amortized
during such period."
2. Amendment of 6.16 of the Credit Agreement. Section 6.16 of the
Credit Agreement is hereby amended by:
(a) deleting subsection (a) thereof in its entirety, and inserting
in lieu thereof the text:
"(a) Intentionally omitted."
(b) deleting subsection (b) thereof in its entirety, and inserting
in lieu thereof the text:
"(b) Intentionally omitted."
3. Amendment of 7.1 of the Credit Agreement. Section 7.1 of the Credit
Agreement is hereby amended by:
(a) amending 7.1(r)(ii) thereof by inserting, immediately before the
text "unsecured Indebtedness", the text "until such time as any
Indebtedness by 7.1(r)(i) shall have been incurred,";
(b) inserting, in subsection (r), immediately after the text "shall
not at any time exceed $250,000,000 and the terms of any
Indebtedness permitted pursuant to this 7.1(r) shall include
such terms and conditions as the Agent may require" the text ",
with the Agent being satisfied with the form and substance of
the documentation evidencing such Indebtedness and hereby being
authorized to enter in to such intercreditor or other agreements
with the holders of any Indebtedness permitted by this subsection
(r) as the Agent shall deem necessary or appropriate";
(c) deleting the text "and" at the end of subsection (r);
(d) deleting subsection (t) thereof in its entirety and inserting
in lieu thereof the following text:
"(t) Indebtedness consisting of the guaranty by any Subsidiary
of the Borrower of any Indebtedness permitted by
7.1(r)(i); and
(u) Indebtedness of the Borrower or any of its Subsidiaries
(other than Xxxxxxx & Xxxxxx, Chiswick Trust or R&M Trust)
not expressly permitted under subsections (a) - (t) of
this 7.1, in an aggregate amount not to exceed $5,000,000
at any time;
provided, however, that any other provision of this 7.1
notwithstanding, until such time as UCC financing statement
1736869, filed with the New Jersey Secretary of State's office,
has been terminated, none of the Borrower or any of its
Subsidiaries shall incur or permit to exist any Indebtedness to
PNC, N.A., successor to
Midlantic National Bank."
4. Amendment of 7.3 of the Credit Agreement. Section 7.3 of the Credit
Agreement is hereby amended by:
(a) deleting the text of subsection (f) in its entirety, and inserting
in lieu thereof the following text:
"Investments consisting of (i) the Guaranty and (ii) any guaranty
from any Subsidiary or Subsidiaries of the Borrower guarantying
Indebtedness permitted by 7.1(r)(i) or, until such time as any
Indebtedness permitted by 7.1(r)(i) shall have been incurred,
7.1(r)(ii).";
(b) deleting from subsection (r) the text "(i) the Borrower or any
Guarantor and (ii) other Subsidiaries that are not Guarantors in
an aggregate amount not to exceed $15,000,000." and inserting in
lieu thereof the text "the Borrower or any Guarantor.";
(c) deleting subsection (s) thereof in its entirety and inserting in
lieu thereof the text:
"(s) (i) Investments described in Schedule 7.3 hereto and
existing as of June 30, 2001 by a Subsidiary that is not a
Guarantor in other Subsidiaries that are not Guarantors and
(ii) Investments by a Subsidiary that is not a Guarantor in
other Subsidiaries that are not Guarantors made after
June 30, 2001 in an aggregate amount not to exceed
$15,000,000; and"; and
(d) inserting, in the order required by alphabetical order, the
following new subsection (t):
"(t) Investments not otherwise expressly permitted under
subsections (a) - (s) of this 7.3, in an aggregate amount not
to exceed $5,000,000 at any one time."
5. Amendment of 7.10 of the Credit Agreement. Section 7.10 of the
Credit Agreement is hereby amended by deleting the period (".") at the end
thereof and inserting in lieu thereof the text ", other than the documents
evidencing any Indebtedness permitted by 7.1(r)."
6. Amendment of 7.14 of the Credit Agreement. Section 7.14 of the
Credit Agreement is hereby deleted in its entirety, and the following new
7.14 is hereby inserted in lieu thereof:
"7.14. Subordinated or Pari Passu Indebtedness. The Borrower
will not, and will not permit any of its Subsidiaries to,
(a) amend, supplement or otherwise modify the terms of (i) any
subordinated Indebtedness permitted by 7.1(r)(i) (other than any
extension of the date of payment therefor or any reductions in the
rate at which interest or other fees are payable to the holders
thereof in connection therewith) or (ii) any pari passu
Indebtedness permitted by 7.1(r) in any manner which could
reasonably be expected to result in the occurrence of a Default or
an Event of Default; provided, however, that the Borrower will not,
and will not permit any of its Subsidiaries to, enter into any such
amendments, supplements or modifications described in this
subsection (a) without providing to the Agent and the Banks copies
thereof within five (5) days following the effectiveness thereof; or
(b) prepay, redeem or repurchase any of the subordinated or pari
passu Indebtedness permitted by 7.1(r)(i); provided, however, that
the Borrower may prepay, redeem or repurchase any pari passu
Indebtedness permitted by 7.1(r)(i) so long as (x) no Default or
Event of Default has occurred and is continuing or would occur as
a result thereof, and (y) immediately after each such prepayment,
redemption or repurchase of pari passu Indebtedness permitted by
7.1(r)(i), (i) the aggregate amount of the Banks' Unfunded
Commitments (after giving effect to all Syndicated Loans and
Competitive Bid Loans requested) shall equal or exceed
$10,000,000; and (ii) Consolidated Funded Debt, as of the date
of such prepayment, redemption or repurchase (and after giving
effect thereto), shall not exceed (A)(1) EBITDA for the four fiscal
quarters of the Borrower ending at the end of the fiscal quarter
of the Borrower ending immediately prior to such prepayment,
redemption or repurchase multiplied by (2) 2.5 minus (B) $10,000,000."
7. Amendment of Schedules 7.2 and 7.3 to the Credit Agreement. The
Credit Agreement is hereby amended by inserting, at the end of Schedules 7.2
and 7.3, respectively, the text of Schedules 7.2(a) and 7.3(a), attached
hereto.
8. Representations and Warranties. Each of the Borrower and the
Guarantors hereby represents and warrants to the Agent and the Banks as of
the date hereof, and as of any date on which the conditions set forth in 9
below are met, as follows:
(a) The execution and delivery by each of the Borrower and the
Guarantors of this Amendment and all other instruments and agreements required
to be executed and delivered by the Borrower or any of the Guarantors in
connection with the transactions contemplated hereby or referred to herein
(collectively, the "Amendment Documents"), and the performance by each of the
Borrower and the Guarantors of any of their obligations and agreements under
the Amendment Documents and the Credit Agreement and the other Loan Documents,
as amended hereby, are within the corporate or other authority of each of the
Borrower and the Guarantors, have been authorized by all necessary corporate
proceedings on behalf of each of the Borrower and the Guarantors, and do not
and will not contravene any provision of law or the Borrower's charter or any
of the Guarantors' charters, other incorporation or organizational papers,
by-laws or any stock provision or any amendment thereof or of any indenture,
agreement, instrument or undertaking binding upon the Borrower or any of the
Guarantors.
(b) Each of the Amendment Documents and the Credit Agreement and other
Loan Documents, as amended hereby, to which the Borrower or any of the
Guarantors is a party constitute legal, valid and binding obligations of
such Person, enforceable in accordance with their terms, except as limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting generally the enforcement of creditors' rights.
(c) No approval or consent of, or filing with, any governmental agency
or authority is required to make valid and legally binding the execution,
delivery or performance by the Borrower or any of the Guarantors of the
Amendment Documents or the Credit Agreement or other Loan Documents, as
amended hereby, or the consummation by the Borrower or any of the Guarantors
of the transactions among the parties contemplated hereby and thereby or
referred to herein.
(d) The representations and warranties contained in 5 of the Credit
Agreement and in the other Loan Documents were true and correct at and as
of the date made. Except to the extent of changes resulting from
transactions contemplated or permitted by the Credit Agreement and the
other Loan Documents, changes occurring in the ordinary course of business
(which changes, either singly or in the aggregate, have not been materially
adverse) and to the extent that such representations and warranties
relate expressly to an earlier date and after giving effect to the
provisions hereof, such representations and warranties, after giving effect
to this Amendment, also are correct at and as of the date hereof.
(e) Each of the Borrower and the Guarantors has performed and complied
in all material respects with all terms and conditions herein required to be
performed or complied with by it prior to or at the time hereof, and as of
the date hereof, after giving effect to the provisions of this Amendment and
the other Amendment Documents, there exists no Event of Default or Default.
(f) Each of the Borrower and the Guarantors acknowledges and agrees
that the representations and warranties contained in this Amendment shall
constitute representations and warranties referred to in 11.1(e) of the
Credit Agreement, a breach of which shall constitute an Event of Default.
9. Effectiveness. This Amendment shall become effective as of the date
first written above (the "Effective Date") or, in the case of 1, 2, 5 and 7
above, as of the Closing Date, upon the satisfaction of each of the following
conditions, in each case in a manner satisfactory in form and substance to the
Agent and the Banks:
(a) This Amendment shall have been duly executed and delivered by each of
the parties thereto and shall be in full force and effect; and
(b) Such other items, documents, agreements, items or actions as the
Agent may reasonably request in order to effectuate the transactions
contemplated hereby.
10. Miscellaneous Provisions.
(a) Each of the Borrower and the Guarantors hereby ratifies and confirms
all of its Obligations to the Agent and the Banks under the Credit Agreement,
as amended hereby, and the other Loan Documents, including, without limitation,
the Loans, and each of the Borrower and the Guarantors hereby affirms its
absolute and unconditional promise to pay to the Banks and the Agent the Loans,
reimbursement obligations and all other amounts due or to become due and
payable to the Banks and the Agent under the Credit Agreement and the other
Loan Documents, as amended hereby. Except as expressly amended hereby, each
of the Credit Agreement and the other Loan Documents shall continue in full
force and effect. This Amendment and the Credit Agreement shall hereafter be
read and construed together as a single document, and all references in the
Credit Agreement, any other Loan Document or any agreement or instrument
related to the Credit Agreement shall hereafter refer to the Credit Agreement
as amended by this Amendment.
(b) Without limiting the expense reimbursement requirements set forth
in 14 of the Credit Agreement, the Borrower agrees to pay on demand all costs
and expenses, including reasonable attorneys' fees, of the Agent incurred in
connection with this Amendment.
(c) THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS (WITHOUT REFERENCE TO CONFLICT OF LAWS) AND
SHALL TAKE EFFECT AS A SEALED INSTRUMENT IN ACCORDANCE WITH
SUCH LAWS.
(d) This Amendment may be executed in any number of counterparts, and
all such counterparts shall together constitute but one instrument. In
making proof of this Amendment 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.
IN WITNESS WHEREOF, the undersigned have duly executed this
Amendment as a sealed instrument as of the date first set forth above.
BORROWER:
NEW ENGLAND BUSINESS
SERVICE, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President, CFO
and Treasurer
BANKS:
FLEET NATIONAL BANK formerly known
as BankBoston, N.A.,
individually and as Agent
By: /s/ Xxxxx Xxxxxxxx Xxxxxxxxxxx
Name: Xxxxx Xxxxxxxx Xxxxxxxxxxx
Title: Vice President
KEY BANK N.A.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Vice President
CITIZENS BANK OF
MASSACHUSETTS,
as successor to USTrust
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Vice President
SUNTRUST BANK
By:
Name: Xxxxx Xxxxxxxx
Title:
THE BANK OF NOVA SCOTIA
By: /s/ X. X. Xxxxxxx
Name: X.X. Xxxxxxx
Title: Authorized Signatory
NATIONAL CITY BANK
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Assistant Vice President
XXXXXXX BANK
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Signature page
to the First Amendment
Each of the undersigned hereby acknowledges the foregoing First
Amendment as of the Effective Date and agrees that its obligations under
the Guaranty will extend to the Credit Agreement, as so amended, and the
other Loan Documents.
XXXXX SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
CHISWICK, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
PREMIUMWEAR, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
RAPIDFORMS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
XXXXXXX & XXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
R&M TRUST
Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx and
Xxxxx Xxxxxxx, as Trustees under
Declaration of Trust of R&M Trust dated
July 20, 1998 and filed with the
Secretary of the Commonwealth of
Massachusetts on July 27, 1998, and not
individually
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, as Trustee under
said Declaration of Trust and not
individually
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, as Trustee under
said Declaration of Trust and not
individually
By: /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, as Trustee under said
Declaration of Trust and not
individually
CHISWICK TRUST
Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx and
Xxxxx Xxxxxxx, as Trustees under
Declaration of Trust of Chiswick Trust
dated September 15, 1999 and filed with
the Secretary of the Commonwealth of
Massachusetts on September 17, 1999,
and not individually
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, as Trustee under
said Declaration of Trust and not
individually
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, as Trustee under
said Declaration of Trust and not
individually
By: /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, as Trustee under said
Declaration of Trust and not
individually
XXXXXXXX.XXX, INC., formerly
known as XXXXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
PWI HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
