SECOND AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
NEW ENGLAND BUSINESS SERVICE, INC.
SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT dated as of January 8, 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 wishes to enter into certain corporate
restructuring transactions pursuant to which (a) XxXxx Systems, Inc.,
a Colorado corporation ("XxXxx"), will become a wholly owned
Subsidiary of Rapidforms, Inc., a New Jersey corporation
("Rapidforms"), and (b) Xxxxxxx & Xxxxxx, Inc., a Delaware corporation
("Xxxxxxx & Xxxxxx") will become a wholly-owned subsidiary of XxXxx
(the transactions described in clauses (a) and (b) are hereinafter
together referred to as the "Restructuring Transactions");
WHEREAS, the Borrower, Rapidforms and XxXxx wish to contribute
certain of their intellectual property rights to Xxxxxxx & Xxxxxx;
WHEREAS, each of the Borrower, Rapidforms and XxXxx will in turn
license such intellectual property rights from Xxxxxxx & Xxxxxx;
WHEREAS, Xxxxxxx & Xxxxxx will contribute, on an ongoing basis,
all royalty payments received by it under the License Agreement to R&M
Trust, a voluntary association with transferable shares organized
under and by virtue of the laws of the Commonwealth of Massachusetts
(commonly referred to as a Massachusetts business trust) ("R&M
Trust");
WHEREAS, R&M Trust intends to loan substantially all of its cash
assets to the Borrower, which loans shall be evidenced by an Unsecured
Subordinated Promissory Note dated as of October 8, 1998;
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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 and the Banks
amend the Credit Agreement so as to permit, to the extent required,
the Restructuring Transactions and the other transactions described in
the foregoing recitals;
WHEREAS, subject to the terms and conditions set forth herein,
the Borrower, the Banks, the Agent and the Documentation 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 agree to amend the Credit
Agreement as follows:
1. Amendments to Definitions. Section 1.1 of the Credit
Agreement is hereby amended by:
(a) adding the following new definitions to section 1.1
of the Credit Agreement in the proper alphabetical order:
"Intercompany Subordination Agreement. The Intercompany
Subordination Agreement dated as of October 8, 1998 among the Agent,
the Borrower and R&M Trust."
"R&M Contribution Agreement. The agreement pursuant to which
each of Rapidforms, XxXxx and Xxxxxxx & Xxxxxx will contribute cash
generated from its respective operations to R&M Trust (including, in
the case of Xxxxxxx & Xxxxxx, royalty payments made to it under any of
the Trademark License Agreements), in form and substance (including
any modifications thereof) satisfactory to the Agent."
"R&M Trust. R&M Trust, a voluntary association with transferable
shares organized under and by virtue of the laws of the Commonwealth
of Massachusetts (commonly referred to as a Massachusetts business
trust)."
"Restructuring Transactions. The contribution by the Borrower to
Rapidforms of one hundred percent (100%) of the issued and outstanding
capital stock of XxXxx; and the contribution by Rapidforms to XxXxx of
one hundred percent (100%) of the issued and outstanding capital stock
of Xxxxxxx & Xxxxxx."
"Xxxxxxx & Xxxxxx. Xxxxxxx & Xxxxxx, Inc., a Delaware
corporation."
"Trademark Assets. The trademark related intellectual property
rights and related intangible assets to be contributed by the
Borrowers, Rapidforms or XxXxx to Xxxxxxx & Xxxxxx pursuant to, and as
described in, the Trademark Contribution Agreement."
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"Trademark Contribution Agreement. The Agreement pursuant to
which each of the Borrower, Rapidforms and XxXxx will contribute the
Trademark Assets to Xxxxxxx & Xxxxxx, in form and substance (including
any modifications thereto) satisfactory to the Agent."
"Trademark License Agreements. The separate agreements pursuant
to which each of the Borrower or one or more of its Subsidiaries will
license from Xxxxxxx & Xxxxxx (i) all United States and foreign
trademarks, service marks, common law marks, trade names and trade
dress owned by Xxxxxxx & Xxxxxx, and (ii) all United States and
foreign trademarks, service marks, common law marks, trade names and
trade dress licensed by Xxxxxxx & Xxxxxx that Xxxxxxx & Xxxxxx is
legally and/or contractually able to sublicense to the Borrower and
its Subsidiaries, in form and substance (including any modifications
thereto) satisfactory to the Agent."
"Unsecured Subordinated Promissory Note. The promissory note
evidencing the Indebtedness permitted by section 7.1(p), in form and
substance (including any modifications thereof) satisfactory to the
Agent."
(b) deleting the definition of "Consolidated Funded Debt" in
its entirety and replacing it with the following new definition:
"Consolidated Funded Debt. At any time of determination, the
sum of (i) the amount of the Loans outstanding (after giving account
to any amounts requested) plus accrued but unpaid interest thereon;
plus (ii) the outstanding amount of any other Indebtedness for
borrowed money (other than intercompany Indebtedness owed by the
Borrower and its Subsidiaries to each other and permitted by the terms
hereof), in respect of Capitalized Leases or which is otherwise
subject to the payment of interest plus accrued but unpaid interest on
such Indebtedness, including expenses consisting of interest in
respect of Capitalized Leases and including commitment fee, agency
fee, facility fee, balance deficiency fee and similar fee expenses in
connection with the borrowing of money."
(c) amending the definition of "Loan Documents" by inserting
the text "the Intercompany Subordination Agreement and any other
subordination arrangements entered into pursuant to section 7.1(j) or
(p)" immediately after the text "the Fee Letters" and immediately
before the text "any Guaranty".
2. Amendment of section 5.1.1 of the Credit Agreement.
Section 5.1.1 of the Credit Agreement is hereby deleted in its
entirety, and the following new section 5.1.1 is hereby substituted in
lieu thereof:
"5.1.1. Organization; Good Standing. Each of the Borrower
and its Subsidiaries (i) is a corporation or, in the case of R&M
Trust, a Massachusetts business trust, duly organized, validly
existing and, except in the case of R&M Trust (with respect to which
no such concept is applicable), in good standing under the laws of its
jurisdiction of organization, (ii) has all requisite power to own its
property and conduct its business as now conducted and as presently
contemplated and (iii) is in good standing
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as a foreign corporation or other entity and is duly authorized to do
business in each jurisdiction where such qualification is necessary
except where a failure to be so qualified would not have a materially
adverse effect on the business, assets or financial condition of the
Borrower or such Subsidiary."
3. Amendment of section 5.1.2 of the Credit Agreement.
Section 5.1.2 of the Credit Agreement is hereby amended by:
(a) deleting clause (i) thereof in its entirety and
substituting in lieu thereof the following text: "(i) are within the
corporate or other authority of such Person,";
(b) inserting in clause (ii) thereof the text "or other"
immediately after the word "corporate" and immediately before the text
"proceedings"; and
(c) inserting in clause (iv) thereof the text "or other
organizational documents thereof, immediately after the text
"corporate charter or bylaws" and immediately before the text "of, or
any agreement".
4. Amendment of section 6.6 of the Credit Agreement. Section
6.6 of the Credit Agreement is hereby amended by:
(a) deleting the title thereof in its entirety and
substituting in lieu thereof the title "Corporate or Other Existence;
Maintenance of Properties."; and
(b) inserting in the first sentence thereof, immediately
after the text "and those of its Subsidiaries" and immediately before
the text "and will not, and will not cause or permit", the text "(and,
in the case of R&M Trust, its existence, rights and franchises as a
Massachusetts business trust)".
5. Amendment of section 6.14 of the Credit Agreement and
Addition of new section 6.15 to the Credit Agreement. Section 6.14 of
the Credit Agreement is hereby deleted in its entirety, and the
following new section section 6.14 and 6.15 are hereby substituted in
lieu thereof:
"6.14. Certain Intercompany Payments. The Borrower will,
and will, as applicable, cause each of Xxxxxxx & Xxxxxx and R&M Trust
to, (a) promptly upon Xxxxxxx & Xxxxxx'x receipt thereof, cause all
royalty payments received by Xxxxxxx & Xxxxxx pursuant to any of the
Trademark License Agreements (net of reasonable expenses incurred by
Xxxxxxx & Xxxxxx in connection with the maintenance, protection and
enforcement of its related trademark intellectual property rights and
the performance of its obligations under the Trademark License
Agreements) to be paid to R&M Trust as capital contributions, and (b)
promptly upon R&M Trust's receipt thereof, cause R&M Trust to lend to
the Borrower pursuant to the Unsecured Subordinated Promissory Note
all amounts (net of reasonable, ordinary course operating expenses)
received by it pursuant to clause (a) of this section 6.14 or
otherwise.
6.15. Further Assurances. The Borrower will, and will
cause each of its Subsidiaries to, cooperate with the Banks and the
Agent and execute such further
