THIRD AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
NEW ENGLAND BUSINESS SERVICE, INC.
THIRD AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
dated as of March 24, 1999 (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"), BANKBOSTON, N.A., a national
banking association ("BKB"), and the other lending institutions listed
on Schedule 1 to the Credit Agreement referred to below (together with
BKB, the "Banks"), BANKBOSTON, N.A., as agent for itself and such other
lending institutions (the "Agent"), and FLEET NATIONAL BANK, as
documentation agent for itself and such other lending institutions (the
"Documentation Agent").
WHEREAS, the Borrower, the Banks, the Agent and the Documentation
Agent are parties to an Amended and Restated Revolving Credit Agreement
dated as of December 18, 1997 (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 the Agent, the
Documentation Agent and the Majority Banks amend the Credit Agreement
in certain respects;
WHEREAS, subject to the terms and conditions set forth herein, the
Majority Banks, the Agent and the Documentation Agent are willing 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 agree to amend the Credit
Agreement as follows:
1. Amendments to 7.1 of the Credit Agreement. Section 7.1 of the
Credit Agreement is hereby amended by:
(a) deleting subsection (i) thereof in its entirety
and substituting in lieu thereof the following new subsection (i) with
the following text:
"(i) Indebtedness of any and all Subsidiaries of the Borrower
(other than Xxxxxxx & Xxxxxx and R&M Trust) to the Borrower or another
Subsidiary of the Borrower (i) existing on the Closing Date, and (ii)
arising after the Closing Date in an aggregate amount not to exceed
$7,500,000 at any one time;".
(b) deleting the word "and" at the end of subsection (q).
(c) inserting, immediately after subsection (q) and
immediately before existing subsection (r), the following new
subsection (r) with the following text:
"(r) Indebtedness owed by the Borrower or any of its
Subsidiaries (other than Xxxxxxx & Xxxxxx and R&M Trust)
to any of their respective officers, directors or employees in
connection with any deferred compensation plan, supplemental executive
retirement plan or post-retirement medical benefit plan in an aggregate
amount not to exceed $7,500,000; and".
(d) deleting existing subsection (r) in its entirety and substituting
in lieu thereof the following new subsection (s):
"(s) Indebtedness of the Borrower or any of its Subsidiaries
(other than Xxxxxxx & Xxxxxx and R&M Trust) not expressly permitted
under subsections (a) through (r) of this 7.1 in an aggregate amount
not to exceed $5,000,000 at any time."
2. Representations and Warranties. The Borrower and
each of 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 3 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, bylaws 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 and the other Amendment
Documents, 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.
3. Effectiveness. This Amendment shall become effective as of
December 27, 1998 (the "Effective 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.
4. 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 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.
[Signature Pages Follow]
Signature Page to the Third Amendment
IN WITNESS WHEREOF, intending to be legally bound, each of the
undersigned has caused this Amendment to be executed on its behalf by
its officer thereunto duly authorized, as of the date first above
written.
New England Business Service, Inc.
By: Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
BANKBOSTON, N.A.,
individually and as Agent
By: Xxxxxx X. Xxxxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Managing Director
FLEET NATIONAL BANK, individually and as
Documentation Agent
By: T.H. Xxxxxxx
-----------------------------
Name: T.H. Xxxxxxx
Title: VP
FIRST UNION NATIONAL BANK, N.A.,
successor to CoreStates Bank, N.A.
By: Xxxxx X. Jauglid
-----------------------------
Name: Xxxxx X. Jauglid
Title: Vice President
Signature Page to the Third Amendment
KEY BANK N.A.
By: Xxxx X. Xxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
Title: VP
USTRUST
By: Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title:VP
SUNTRUST BANK, ATLANTA
By: W. Xxxxx Xxxxxx
-----------------------------
Name: W. Xxxxx Xxxxxx
Title: Vice President
SUNTRUST BANK, ATLANTA
By: Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA
By: X. X. Xxxxxxx
-----------------------------
Name: X. X. Xxxxxxx
Title: Authorized Signatory
Signature Page to the Third Amendment
WACHOVIA BANK, N.A.
By: Xxxxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
KBC Bank N.V., formerly known as
Kredietbank N.V.
By: Xxxxxx Xxxxxxxx Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx Xxxxxx Xxxxx
Title: First Vice President Deputy General Manager
SUMMIT BANK
By: Xxxx X. Xxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Director
Signature page to the Third Amendment
The undersigned hereby acknowledges the foregoing Third 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.
RAPIDFORMS, INC.
By: Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
XXXXX SYSTEMS, INC.
By: Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
XXXXXXX & XXXXXX, INC.
By: Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
NEBS INTERACTIVE, INC.
By: Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
NEWSHIRE FORMS, INC.
By: Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Signature page to the Third Amendment
R & M TRUST
By: Xxxxxx X. Xxxxxx, as Trustee 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: Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx, as Trustee under
said Declaration of Trust and not
individually
