SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
NEW ENGLAND BUSINESS SERVICE, INC.
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT dated as of April 26, 2002 (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 purchase of additional shares of the
capital stock of Advantage Payroll Services, Inc. (formerly
known as Advantage Business Services Holdings, Inc.), the
Agent and the Banks amend the Credit Agreement to permit
such purchase 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 deleting the definition of Advantage
in its entirety and substituting in lieu thereof the
following definition:
"Advantage. Advantage Payroll Services, Inc., a
Delaware corporation, formerly known as Advantage Business
Services Holdings, Inc."
2. Amendment to 7.3 of the Credit
Agreement. Section 7.3 of the Credit Agreement is hereby
amended by deleting from subsection (p) thereof the text
"7.5.1(d)" and substituting in lieu thereof the text
"7.5.1(e)".
3. Amendment to 7.5.1 of the Credit
Agreement. Section 7.5.1 of the Credit Agreement is hereby
amended by:
(a) Deleting from subsection (d) thereof the text
"of Advantage after the Closing Date" and substituting in
lieu thereof the text "of Advantage after the Closing Date
but prior to August 10, 2001";
(b) Deleting, from the end thereof the text "or
(e) Permitted Joint Ventures" and substituting in lieu
thereof the following new subsections (e) and (f):
"(e) so long as no Default or Event of Default has
occurred and is continuing or would occur as a result
thereof, the acquisition by the Borrower, upon the exercise
of its rights under the Common Stock Purchase Warrant for
Shares of Advantage Business Services Holdings, Inc. dated
as of August 9, 2001, of (i) (A) up to 320,932 of the shares
of the common stock of Advantage for an exercise price per
share of $12.67 and an aggregate purchase price not to
exceed $4,066,208.44; provided that such shares are
purchased or acquired on or before July 2, 2002; and (B)
consisting of up to 106,977.2 shares of the common stock of
Advantage for an exercise price per share of $12.67 and an
aggregate purchase price not to exceed $1,355,398.59;
provided that such shares are purchased or acquired on or
before March 15, 2003; or (ii) upon and subject to the
occurrence of the consummation of any sale in an
underwritten public offering registered under the Securities
Act of 1933 of Advantage's common stock (the "Advantage
IPO"), up to 1,069,772 shares of the common stock of
Advantage for an exercise price of $12.67 per share and an
aggregate purchase price not to exceed $13,554,011.24;
provided that the consummation of the Advantage IPO shall
occur on or before September 30, 2002; provided further that
the number and exercise price per share described in clauses
(i)(A) and (B) and (ii) above may be adjusted
proportionately to reflect any stock split or stock dividend
by Advantage; or (f) Permitted Joint Ventures."
4. Amendment of Schedule 7.3 to the Credit
Agreement. Schedule 7.3 to the Credit Agreement is hereby
deleted in its entirety, and Schedule 7.3 attached hereto is
hereby substituted in lieu thereof.
5. 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 6 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.
6. Effectiveness. This Amendment shall become
effective as of the date first written above (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:
(a) This Amendment shall have been duly executed
and delivered by each of the Agent, the Majority Banks,
the Borrower and the Guarantors and shall be in full force
and effect;
(b) The Agent shall have received, for the pro
rata account of each Bank which executes and delivers to
the Agent this Amendment on or before April 26, 2002,
an amendment fee equal to .075% of such Bank's Commitment; and
(c) Such other items, documents, agreements, items
or actions as the Agent may reasonably request in order to
effectuate the transactions contemplated hereby.
7. 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:/s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
NATIONAL CITY BANK
By:/s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Assistant Vice
President
THE BANK OF NOVA SCOTIA
By:/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized
Signatory
BANKNORTH, N.A.
By:/s/ Xxx X. Xxxxxxxxx
Name: Xxx X. Xxxxxxxxx
Title: Senior Vice President
XXXXXXX BANK
By:/s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Vice President
Signature page
to the Second Amendment
Each of the undersigned hereby acknowledges the
foregoing Second 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/ 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/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, as Trustee
under said
Declaration of Trust and
not individually
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
NEBS INTERACTIVE, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
