SIXTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
NEW ENGLAND BUSINESS SERVICE, INC.
SIXTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT dated as of May 26, 2000 (this "Amendment"), by and
among NEW ENGLAND BUSINESS SERVICE, INC. (the "Borrower"), a
Delaware corporation having its principal place of business at
500 Main Street, Groton, Massachusetts 01471, 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 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 and
the Banks amend the Credit Agreement so as to increase the
Total Commitment from $165,000,000 to $200,000,000, to permit
the contemplated tender offer for (through Penguin Sub, Inc.,
a Delaware corporation ("Penguin Sub")), and acquisition (the
"PremiumWear Acquisition") of, one hundred percent (100%) of
the capital stock of PremiumWear, Inc., a Delaware corporation
("PremiumWear") by the Borrower, and to make certain other
revisions;
WHEREAS, subject to the terms and conditions hereof,
certain of the Banks are willing to increase their respective
Commitments so as to allow for such increase in the Total
Commitment;
WHEREAS, subject to the terms and conditions hereof, the
Banks are willing to permit the PremiumWear Acquisition;
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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 Section1.1 of the Credit
Agreement is hereby amended by:
(a) deleting the definition of "Applicable Eurodollar
Rate Margin" in its entirety and substituting in lieu thereof
the following new definition:
Applicable Eurodollar Rate Margin For any fiscal quarter
or portion thereof within any Interest Period with respect to
any Eurodollar Rate Loan, 0.75% per annum; provided, however,
that in the event that the ratio of Consolidated Funded Debt
(calculated as of the last day of such fiscal quarter or
portion thereof) to EBITDA (calculated for the four (4)
consecutive fiscal quarters ending on the last day of such
fiscal quarter or portion thereof) meets the requirements set
forth in the chart below, the Applicable Eurodollar Rate
Margin shall, commencing initially with the date on which the
Borrower delivers to the Banks the financial statements
referred to in section6.4(b) with respect to the fiscal
quarter ended March 25, 2000 and thereafter commencing with
the date on which the Borrower delivers to the Banks the
financial statements referred to in section6.4(a) or, as the
case may be, section6.4(b) and ending on the date of the
next change to be effected pursuant to this paragraph, be the
percentage set forth opposite the applicable ratio of
Consolidated Funded Debt to EBITDA in the table below:
Ratio of Consolidated Funded Applicable Eurodollar
Debt to EBITDA Rate Margin
-------------- -----------
Less than or equal to 1.0:1.0 0.55%
Greater than 1.0:1.0 and less
than or equal to 1.5:1.0 0.60%
Greater than 1.5:1.0 and less
than or equal to 2.0:1.0 0.75%
Greater than 2.0:1.0 0.80%
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If any financial statements referred to above are not
delivered within the time periods specified in section6.4(a)
or, as the case may be, section6.4(b), then, until such
financial statements are delivered, the Applicable Eurodollar
Rate Margin as at the end of the fiscal period that would have
been covered thereby shall, for the purposes of this
definition, be deemed to be 0.80%. In addition, at all times
while a Default or an Event of Default shall have occurred and
be continuing, the Applicable Eurodollar Rate Margin shall,
for the purposes of this definition, be deemed to be 0.80%.
(b) deleting the definition of "Applicable Facility Fee
Percentage" in its entirety and substituting in lieu thereof
the following new definition:
Applicable Facility Fee Percentage For any fiscal quarter or
portion thereof, 0.250% per annum; provided, however, that in
the event that the ratio of Consolidated Funded Debt
(calculated as of the last day of such fiscal quarter or
portion thereof) to EBITDA (calculated for the four
consecutive fiscal quarters existing on the last day of such
fiscal quarter or portion thereof) meets the requirements set
forth in the chart below, the Applicable Facility Fee
Percentage shall, commencing initially with the date on which
the Borrower delivers to the Banks the financial statements
referred to in section6.4(b) with respect to the fiscal
quarter ended March 25, 2000 and thereafter commencing with
the date on which the Borrower delivers to the Banks the
financial statements referred to in section6.4(a) or, as the
case may be, section6.4(b) and ending on the next change to
be effected pursuant to this paragraph, be the percentage set
forth opposite the applicable ratio of Consolidated Funded
Debt to EBITDA set forth in the table below:
Ratio of Consolidated Funded Applicable Facility
Debt to EBITDA Fee Percentage
-------------- --------------
Less than or equal to 1.0:1.0 0.200%
Greater than 1.0:1.0 and less
than or equal to 1.5:1.0 0.250%
Greater than 1.5:1.0 and less
than or equal to 2.0:1.0 0.250%
Greater than 2.0:1.0 0.375%
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If any financial statements referred to above are not
delivered within the time periods specified in section6.4(a)
or, as the case may be, section6.4(b), then, until such
financial statements are delivered, the Applicable Facility
Fee Percentage as at the end of the fiscal period that would
have been covered thereby shall, for the purposes of this
definition, be deemed to be 0.375%. In addition, at all times
while a Default or Event of Default shall have occurred and be
continuing, the Applicable Facility Fee Percentage shall, for
the purposes of this definition, be 0.375%.
(c) deleting the definition of "BKB" in its entirety
and substituting in lieu thereof the following definition:
"BKB. Fleet National Bank, formerly known as BankBoston,
N.A., formerly known as The First National Bank of Boston, a
national banking association, in its individual capacity."
(d) deleting the definition of "EBITDA" in its entirety
and substituting in lieu thereof the following new definition:
"EBITDA. The consolidated earnings (or loss) from the
operations of the Borrower and its Subsidiaries for any
period, after all expenses and other proper charges but before
payment or provision for any income taxes, interest expense,
depreciation or amortization for such period, and excluding
the Restructuring Charge (to the extent taken), in each case
determined in accordance with generally accepted accounting
principles. For purposes hereof, EBITDA shall include, on a
pro forma basis, EBITDA (calculated for any applicable period,
commencing with the four consecutive fiscal quarters of the
Borrower ending in the quarter in which such Permitted
Acquisition is made) of any Subsidiary acquired by means of a
Permitted Acquisition (including historical earnings and cash
flows associated with such Subsidiary and any incurrence or
reduction of Indebtedness associated with such Permitted
Acquisition, but excluding any projected synergies or similar
benefits expected to be realized as a result of such event)."
(e) inserting, in the place required by alphabetical
order, the following new definitions:
"Guarantor. Any Subsidiary of the Borrower which has
guaranteed the Obligations pursuant to and upon the terms and
conditions set forth in a Guaranty."
"Penguin Sub. Penguin Sub, Inc., a Delaware corporation
and wholly-owned Subsidiary of the Borrower."
(f) amending the definition of Permitted Acquisition by:
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(i) deleting the introductory paragraph thereof in its
entirety and substituting in lieu thereof the following new
introductory paragraph:
"Permitted Acquisition. The Rapidforms Acquisition, the
McBee Acquisition, the PremiumWear Acquisition and any other
acquisition of any Person, business, division or specified
group of assets by the Borrower or any of its Subsidiaries,
provided that, with respect to any such other acquisition, (1)
the Agent and the Majority Banks approve, in their sole
discretion, such acquisition in writing in advance or (2) each
of the following conditions is met:".
(ii) deleting subsection(b) thereof in its entirety
and substituting in lieu thereof the following new subsection
(b):
"(b)(i) The aggregate consideration paid or to be paid
by the Borrower or any of its Subsidiaries in connection with
all such acquisitions (including consideration in the form of
cash or the assumption of Indebtedness for borrowed money,
debt or other similar monetary obligations by the Borrower or
any of its Subsidiaries (including any such Indebtedness in
existence prior to the date of any such acquisition which was
not incurred in connection with or in contemplation thereof)
but excluding stock consideration) shall not exceed
$25,000,000, and (ii) the aggregate consideration paid or to
be paid by the Borrower or any of its Subsidiaries in
connection with all such acquisitions, including consideration
of the type described in and included in clause (b)(i) of this
definition and stock consideration (as valued for the purpose
of any such acquisition) shall not exceed $50,000,000;"
(iii) deleting subsection(c) thereof in its
entirety and substituting in lieu thereof the following new
subsection :
"(c) such acquisition shall have been approved by
the board of directors and shareholders, if required, or other
applicable management of such Person;"
(iv) deleting from subsection(d)(ii)(E) thereof the
text "in this clause (D)," and substituting in lieu thereof
the text "in this clause (E),".
(g) inserting, in the places required by alphabetical
order, the following new definitions:
"Permitted Joint Venture. Investment by the Borrower in
any Person, provided that, with respect to any such
Investment, (1) the Agent and the Majority Banks approve, in
their sole discretion, such Investment in writing in advance
or (2) each of the following conditions is met:
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(a) immediately prior to and after, and after giving
effect to, such Investment, no Default or Event of Default
shall then exist;
(b) subject to the limitations set forth in
subsection(d) of this definition, (i) the aggregate
consideration paid or to be paid by the Borrower or any of its
Subsidiaries in connection with all such Investments
(including consideration in the form of cash or the assumption
of Indebtedness for borrowed money, debt or other similar
monetary obligations by the Borrower or any of its
Subsidiaries (including any such Indebtedness in existence
prior to the date of such Investment which was not incurred in
connection with or in contemplation thereof) but excluding
stock consideration) shall not exceed $10,000,000, and (ii)
the aggregate consideration paid or to be paid by the Borrower
or any of its Subsidiaries in connection with all such
Investments, including consideration of the type described in
and included in clause (b)(i) of this definition and stock
consideration (as valued for the purpose of any such
Investment) shall not exceed $20,000,000;
(c) such Investment shall have been approved by the
board of directors and shareholders, if required, or other
applicable management of such Person;
(d) (i) such Person is in substantially the same line
of business as the Borrower or (ii) in a different line of
business from that of the Borrower so long as, and
notwithstanding the limitations set forth in subsection(b)
of this definition, the aggregate consideration paid or to be
paid by the Borrower in connection with any Investments under
this subsection(d)(ii) shall not exceed $1,000,000 for any
single such Investment and $5,000,000 in the aggregate for all
such Investments;
(e) not less than ten (10) Business Days prior to the
making of such Investment, the Borrower shall notify the Banks
thereof; and
(f) the Agent shall have received each of the
following, each in form and substance satisfactory to the
Agent: (i) a compliance certificate evidencing pro forma
compliance with the requirements of section 8 hereof following
the making of any such Investment, (ii) due diligence
summaries evidencing the Borrower's due diligence with respect
to the Person, and (iii) such other information, including
financial statements, as the Agent or the Majority Banks may
request."
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"PremiumWear. PremiumWear, Inc., a Delaware corporation."
"PremiumWear Acquisition. The acquisition by the Borrower of
one hundred percent (100%) of the capital stock of PremiumWear
following the consummation of the PremiumWear Tender Offer and
the PremiumWear Merger, on the terms and conditions set forth
below:
(a) the closing of the PremiumWear Tender Offer shall
occur on or before July 15, 2000, and the completion of the
PremiumWear Merger shall occur on or before October 15, 2000;
(b) immediately prior to and after, and after giving
effect to, the PremiumWear Tender Offer, no Default or Event
of Default shall then exist;
(c) the terms and conditions of the PremiumWear
Acquisition shall be substantially those set forth in the
PremiumWear Merger Agreement. Without limiting the generality
of the foregoing, (i) the total consideration paid to
stockholders for shares of the capital stock of PremiumWear
shall not exceed $40,000,000, (ii) the aggregate consideration
for fees, expenses and all other costs arising from or
associated with the PremiumWear Acquisition shall not exceed
$3,000,000, (iii) neither PremiumWear nor any of its
Subsidiaries shall have, nor shall the Borrower or any of its
Subsidiaries have assumed, any Indebtedness for borrowed
money, debt or other similar monetary obligations, including
guaranties of the obligations of others, except for
Indebtedness permitted by section 7.1, and (iv) upon the
consummation of the PremiumWear Tender Offer, the Borrower
shall have acquired at least a majority of the capital stock
(on a fully diluted basis) of PremiumWear and its
Subsidiaries, and upon the consummation of the PremiumWear
Merger, the Borrower shall have acquired one hundred percent
(100%) of the capital stock of PremiumWear and its
Subsidiaries;
(d) there shall be no material misstatements in or
omissions from the material furnished to the Agent and the
Banks for their review in connection with the PremiumWear
Acquisition;
(e) upon consummation of the PremiumWear Acquisition, the
stock and assets of PremiumWear and its Subsidiaries shall be
free and clear of any and all liens and encumbrances, other
than Permitted Liens; and
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(f) all conditions precedent set forth in the PremiumWear
Merger Agreement shall have been satisfied upon the
consummation of the PremiumWear Tender Offer, and none of such
conditions shall have been amended, supplemented or waived
except with the prior written consent of the Agent.
"PremiumWear Merger. The Merger of Penguin Sub with and into
PremiumWear, with PremiumWear as the surviving corporation,
upon the terms and conditions set forth in the PremiumWear
Merger Agreement."
"PremiumWear Merger Agreement. The Agreement and Plan of
Merger dated as of May 26, 2000 by and among the Borrower, its
wholly-owned Subsidiary Penguin Sub, and PremiumWear, as in
effect on the Sixth Amendment Effective Date."
"PremiumWear Tender Offer. The offer by the Borrower and
Penguin to purchase one hundred percent (100%) of the capital
stock of PremiumWear upon the terms and conditions set forth
in the PremiumWear Merger Agreement."
"Restructuring Charge. The restructuring charge which, if
taken by the Borrower, shall be taken by the Borrower in the
fourth fiscal quarter of its 2000 fiscal year in connection
with certain activities (including integration activities
among the Borrower, McBee and Chiswick) heretofore disclosed
and described to the Agent and the Banks in writing, in an
aggregate amount not to exceed $10,000,000."
"Sixth Amendment Effective Date. The "Effective Date", as
defined in the Sixth Amendment To Amended and Restated
Revolving Credit Agreement dated as of May 26, 2000 among the
Borrower, the Subsidiaries of the Borrower listed on the
signature pages thereto, the Agent, the Documentation Agent
and the Banks."
(h) deleting the definition of "Total Commitment" in its
entirety and substituting in lieu thereof the following text:
"Total Commitment. The sum of the Commitments of the Banks,
as in effect from time to time, which amount shall, as of the
Sixth Amendment Effective Date, be $200,000,000."
2. Amendment of section 2.5.1 of the Credit Agreement.
Section2.5.1 of the Credit Agreement is hereby amended by
deleting the first sentence thereof in its entirety and
substituting in lieu thereof the following sentence:
"2.5.1. Syndicated Notes. The Syndicated Loans shall be
evidenced by separate promissory notes in substantially the
form of Exhibit F-1 attached hereto (each a "Syndicated
Note"), dated as of the Closing Date, the First Amendment
Effective Date or, as the case may be, the Sixth Amendment
Effective Date and completed with appropriate instructions."
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3. Amendment of section 5.19 of the Credit Agreement.
Section5.19 of the Credit Agreement is hereby amended by
deleting the second sentence thereof in its entirety and
substituting in lieu thereof the following sentence:
"Except as set forth on Schedule 5.19 hereto (which
Schedule 5.19 shall be, and shall be deemed to be,
automatically amended to include any Permitted Joint
Ventures), neither the Borrower nor any Subsidiary of the
Borrower is engaged in any joint venture or partnership with
any other person."
4. Amendment of section 5.26 of the Credit Agreement.
Section5.26 of the Credit Agreement is hereby amended by
inserting, immediately following section 5.25 thereof and
immediately before section 6 thereof, the following new
section 5.26:
"5.26. PremiumWear Acquisition. Each of the
representations and warranties made by the Borrower, Penguin
Sub and, to the best of the Borrower's knowledge, PremiumWear
under the PremiumWear Merger Agreement shall have been true
and correct in all material respects when made and shall
continue to be true and correct in all material respects on
the date of the consummation of the PremiumWear Tender Offer,
except to the extent that any of such representations and
warranties relate, by the express terms thereof, solely to a
date falling prior to the date of such closing, and except to
the extent that any of such representations and warranties may
have been affected by the consummation of the transactions
contemplated and permitted or required by the PremiumWear
Merger Agreement."
5. Amendment of section 6.16 of the Credit Agreement.
Section6.16 of the Credit Agreement is hereby deleted, and
the following section section 6.16 and 6.17 are hereby
substituted in lieu thereof:
"6.16. PremiumWear Acquisition. Promptly following
the consummation of the PremiumWear Tender Offer, the Borrower
shall deliver to the Agent (a) a completed and fully executed
certificate of the locations of PremiumWear and its
Subsidiaries, in form and substance satisfactory to the Agent,
together with the results of UCC searches of PremiumWear and
its Subsidiaries indicating no liens other than Permitted
Liens; (b) a compliance certificate evidencing the Borrower's
pro forma compliance with the requirements of section 8 of
this Credit Agreement immediately prior to and following the
consummation of the PremiumWear Acquisition, in the form of
Exhibit G to this Credit Agreement, and duly certified by the
principal financial or accounting officer of the Borrower; and
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(c) to the extent necessary or appropriate to reflect the
PremiumWear Acquisition, revisions to the disclosure schedules
attached to this Credit Agreement and the other Loan
Documents, in each case reflecting solely the materials
disclosed by the PremiumWear Merger Agreement; provided,
however, that the Borrower shall not seek to revise (A)
Schedule 5.18 to the Credit Agreement so as to disclose any
item which might adversely affect the properties, assets,
financial condition or business of the Borrower or its
Subsidiaries or (B) Schedules 7.1, 7.2 or 7.3 to the Credit
Agreement. Promptly following the consummation of the
PremiumWear Merger, the Borrower shall (x) cause PremiumWear
and each of its domestic Subsidiaries to execute and deliver
to the Agent a Guaranty, in the form of Exhibit A hereto, of
the Obligations under this Credit Agreement and the other Loan
Documents, together with such evidence of corporate
authorization, other corporate documentation and legal
opinions (including, where applicable, local counsel opinions
of Minnesota or other local counsel) as the Agent may
reasonably request and (y) deliver to the Agent evidence
satisfactory to the Agent, of the satisfaction and release of
all Indebtedness (other than Indebtedness permitted by section
7.1) of, and all liens and security interests (other than
Permitted Liens) granted by, PremiumWear and its Subsidiaries.
6.17. Further Assurances. The Borrower will, and will
cause each of its Subsidiaries to, cooperate with the Banks
and the Agent and execute such further instruments and
documents as the Banks or the Agent shall reasonably request
to carry out to their satisfaction the transactions
contemplated by this Credit Agreement and the other Loan
Documents."
6. Amendment of section 7.1 of the Credit Agreement.
Section7.1 of the Credit Agreement is hereby amended by:
(a) deleting subsection(i) thereof in its entirety
and substituting in lieu thereof the following text:
"(i) Indebtedness of (i) any and all Guarantors
(other than Russell & Miller, Chiswick Trust and R&M Trust) to
the Borrower or another Guarantor (other than Russell &
Miller, Chiswick Trust and R&M Trust) and (ii) any other
Subsidiary of the Borrower to the Borrower or another
Subsidiary of the Borrower (other than Russell & Miller,
Chiswick Trust and R&M Trust) in an aggregate amount not to
exceed $10,000,000 at any time outstanding;"
(b) deleting subsection(j) thereof in its entirety
and substituting in lieu thereof the following new subsection
(j):
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"(j) Indebtedness of the Borrower to (i) any and
all Guarantors (other than Russell & Miller, Chiswick Trust
and R&M Trust) in an aggregate amount not to exceed
$20,000,000 at any time and (ii) any and all other
Subsidiaries of the Borrower (other than Russell & Miller,
Chiswick Trust and R&M Trust) in an aggregate amount not to
exceed $5,000,000 at any time; provided, however, that any and
all Indebtedness under clause (i) or (ii) of this subsection
(j) shall be subordinated to the Obligations on terms and
conditions satisfactory to the Agent;"
(c) deleting from subsection(m) thereof the text
(i) "(other than the Rapidforms Acquisition or the McBee
Acquisition)" and substituting in lieu thereof the text
"(other than the Rapidforms Acquisition, the McBee Acquisition
and the PremiumWear Acquisition)", and (ii) "(other than the
Rapidforms Acquisition)" and substituting in lieu thereof the
text ("other than the Rapidforms Acquisition and the
PremiumWear Acquisition)";
(d) amending subsection(r) thereof by (i)
inserting, after the text "deferred compensation plan," and
before the text "supplemental executive retirement plan", the
text "post-retirement medical or life insurance benefit
plan"; and (ii) deleting the dollar amount "$7,500,000" and
substituting in lieu thereof the dollar amount "$10,000,000".
(e) deleting from subsection(s) thereof in its
entirety and substituting in lieu thereof the following new
subsection(s):
"(s) Upon the consummation of the PremiumWear Tender
Offer, Indebtedness of PremiumWear (i) to U.S. Bancorp Leasing
and Financial, existing on the Sixth Amendment Effective Date,
in a maximum aggregate amount not to exceed $937,000; and (ii)
for a period of sixty (60) days following the consummation of
the PremiumWear Merger, to U.S. Bank National Association in
an aggregate amount not to exceed $6,000,000; provided,
however, that the Borrower shall use its best efforts during
such sixty (60) day period to cause the prompt repayment and
termination of such Indebtedness to U.S. Bank National
Association;".
(f) deleting the period (".") at the end of subsection
(t) thereof and substituting in lieu thereof the text ";
and";
(g) inserting a new subsection(u) with the following
text:
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"(u) Indebtedness of the Borrower or any of its
Subsidiaries (other than Russell & Miller, Chiswick Trust or
R&M Trust) not expressly permitted under Subsection s (a)-(t)
of this section 7.1, in an aggregate amount not to exceed
$5,000,000 at any time."
7. Amendment of section 7.2 of the Credit Agreement.
Section7.2 of the Credit Agreement is hereby amended by:
(a) deleting the parenthetical "(other than the
Rapidforms Acquisition)" contained in subsection(i) thereof
and substituting in lieu thereof the text "(other than the
Rapidforms Acquisition and the PremiumWear Acquisition)";
(b) deleting the word "and" at the end of subsection
(j) thereof;
(c) deleting the period (".") at the end of
subsection(k) thereof and substituting in lieu thereof the
text "; and"; and
(d) inserting, at the end thereof, the following new
subsection(l):
"(l) in the event that the PremiumWear
Acquisition is consummated in accordance with the terms and
conditions set forth in the definition of PremiumWear
Acquisition and otherwise in this Credit Agreement (i) liens
on equipment located at PremiumWear's Clarksville, Tennessee
facility, securing the Indebtedness permitted by section
7.1(s)(i); and (ii) liens on assets of PremiumWear and its
Subsidiaries securing the Indebtedness permitted by section
7.1(s)(ii) for so long as such Indebtedness is permitted to
exist by the terms of this Credit Agreement."
8. Amendment of section 7.3 of the Credit Agreement.
Section7.3 of the Credit Agreement is hereby amended by:
(a) deleting subsection(j) thereof in its entirety
and substituting in lieu thereof the following new subsection:
"(j) Investments by the Borrower and the
Guarantors in (i) Guarantors (other than R&M Trust and
Chiswick Trust), and (ii) other Subsidiaries of the Borrower
(other than R&M Trust and Chiswick Trust) in an aggregate
amount not to exceed $10,000,000;"
(b)(i) deleting from subsection(k) thereof the text
"(other than the Rapidforms Acquisition or the McBee
Acquisition)" and substituting in lieu thereof the text
"(other than the Rapidforms Acquisition, the McBee Acquisition
or the PremiumWear Acquisition); (ii) deleting the word "and"
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from between subsection s (k)(ii) and (k)(iii); and (iii)
inserting immediately before the semicolon (";") at the end
of subsection(k) thereof, a new subsection(iv) with the
following text: "(iv) the PremiumWear Acquisition to the
extent permitted by the definition thereof and section
7.1(s)";
(c) deleting the word "and" at the end of subsection
(s) thereof;
(d) inserting a new subsection(t), immediately
after subsection(s) thereof and immediately before existing
subsection(t), with the following text:
"(t) Investments by the Borrower in (i)
Webnow.com, Inc. in the aggregate amount of $500,000; and (ii)
Permitted Joint Ventures; provided, however, that except to
the extent actually received by the Borrower in cash by way of
distributions or otherwise, any income generated by such
Investment in Webnow.com, Inc. or any Permitted Joint Ventures
shall not be included in calculations of EBITDA, Consolidated
Net Income or any similar income or earnings based concepts
hereunder; and"
(f) deleting existing (prior to the amendment set
forth in section 8(e) of this Amendment) clause (t) in its
entirety and substituting in lieu the following new subsection
(u):
"(u) Investments not otherwise expressly
permitted under subsections (a) thru (t) of this section 7.3, in
an aggregate amount not to exceed $5,000,000 at any time."
9. Amendment of section 7.5 of the Credit Agreement.
Section7.5 of the Credit Agreement is hereby amended by:
(a) deleting the title thereof and substituting in
lieu thereof the following title: "7.5. Merger, Consolidation
and Disposition of Assets."
(b) deleting from section 7.5.1 the text "agree to or
effect any asset acquisition or stock acquisition" and
substitute in lieu thereof the following text "agree to or
effect any asset acquisition or acquisition of stock or other
equity interests".
(c) deleting the word "or" between the end of clause
(d) and the beginning of clause (e) of section 7.5.1 and
substituting in lieu thereof a comma (",").
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(d) inserting, immediately before the period at the
end of section 7.5.1 thereof, the following text:
"or (f) Permitted Joint Ventures."
(e) inserting at the end thereof after section 7.5.2,
the following new paragraph:
"Notwithstanding the restrictions contained above in
section 7.5.1 and section 7.5.2, the Borrower or any Guarantor
(other than Russell & Miller, R&M Trust and Chiswick Trust)
may transfer assets owned by it to the Borrower or any other
Guarantor (other than Russell & Miller, R&M Trust and Chiswick
Trust)."
10. Amendment of section 8.3 of the Credit Agreement.
Section8.3 of the Credit Agreement is hereby deleted in its
entirety, and the following new section 8.3 is hereby
substituted in lieu thereof:
"8.3. Consolidated Net Worth. The Borrower will not permit
Consolidated Net Worth at any time to be less than the total
of (i) $96,806,500 plus (ii) on a cumulative basis, fifty
percent (50%) of positive Consolidated Net Income for each
fiscal quarter beginning with the fiscal quarter of the
Borrower ended December 25, 1999."
11. Replacement of Schedules 1 and 5.19 to the Credit
Agreement; Interbank Settlements. Schedule 1 and 5.19 to the
Credit Agreement is hereby deleted in its entirety, and
Schedules 1 and 5.19 attached hereto are hereby substituted in
lieu thereof. In connection with the substitution of new
Schedule 1 for the existing Schedule 1 and with the change in
the definition of Total Commitment reflected in section 1(b)
hereof, each of the Banks whose Commitment is being increased
hereby agrees that, on the first Business Day following the
Effective Date (as hereinafter defined) it shall pay to the
Agent, for the account of each of the Banks whose Commitment
is being decreased, such amounts as may be necessary to result
in the outstanding amount of the Loans made by each Bank being
equal to such Bank's Commitment Percentage of the aggregate
amount of Loans outstanding as of the Effective Date, with
interest and commitment fees payable under the Credit
Agreement being calculated (prior to the making of such
payments) based upon the amount of Loans outstanding as of the
Effective Date. Each of the Borrower, the Agent and the Banks
hereby agree that all amounts paid by any Bank in connection
with interbank settlements with respect to Loans outstanding
on the Effective Date shall be deemed to constitute Loans
under the Credit Agreement.
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12. 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 section 13 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
section 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,
-15-
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 and
will be true and correct as of the date of the closing of the
PremiumWear Tender Offer.
(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 section 11.1(e)
of the Credit Agreement, a breach of which shall constitute an
Event of Default.
13. 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 and the Banks:
(a) This Amendment and the fee letter referred to in
section 13(k) hereof shall have been duly executed and
delivered by each of the parties thereto and shall be in full
force and effect;
(b) The Borrower shall have executed and delivered to the
Agent an amended and restated Revolving Credit Note in favor
of each Bank which agrees to increase its Commitment
hereunder, in a principal amount equal to such Bank's
Commitment (as allocated by the Agent hereunder substantially
in the form of Exhibit F-1 to the Credit Agreement (the
"Replacement Notes");
(c) Penguin Sub shall have executed and delivered to the
Agent a Guaranty in the form of Exhibit A to the Credit
Agreement;
(d) The Agent shall have received from the Secretary of
the Borrower and each of the Guarantors (including Penguin
Sub, Inc.) a copy, certified by such Secretary to be true and
complete as of the date hereof, of each of (i) its charter or
other organizational documents as in effect on such date of
certification, (ii) its by-laws as in effect on such date, and
(iii) the resolutions of its Board of Directors or other
-16-
management authorizing, to the extent it is a party thereto,
the execution, delivery and performance of this Amendment, the
Replacement Notes and any other Amendment Documents; provided,
however, that in lieu of providing the items required by
subsection s (i) and (ii) of this subsection(c), such
Secretary may certify, to the extent true and correct, that
charter documents and by-laws previously provided to the Agent
are true and correct as of the date hereof and have not been
amended, rescinded or revoked;
(e) The Agent shall have received from each of the
Borrower and the Guarantors (including Penguin Sub, Inc.) an
incumbency certificate, dated as of the date hereof, signed by
a duly authorized officer of the Borrower or such Guarantor,
as the case may be, and giving the name and bearing a specimen
signature of each individual who shall be authorized to sign,
in the name and on behalf of the Borrower or such Guarantor,
as the case may be, the Amendment Documents;
(f) The Agent shall have received from the Borrower copies
of the most recent audited consolidated financial statements
of PremiumWear, together with a copy of the PremiumWear Merger
Agreement, duly certified by the Secretary of the Borrower as
being true, correct and complete, in full force and effect and
without amendment thereto or modification thereof;
(g) [Intentionally omitted];
(h) The Agent shall have received from the Borrower good
standing certificates for each of the Borrower and the
Guarantors (including Penguin Sub.com), issued by the
Secretary of State of each such entity's jurisdiction of
incorporation or organization;
(i) The Agent shall have received a favorable legal
opinion addressed to the Agent and the Banks, dated as of the
date hereof, in form and substance satisfactory to the Agent,
from Craig Barrows, in-house counsel to the Borrower, with
respect to the Borrower and each Guarantor (including Penguin
Sub with respect to its Guaranty); provided, however, that
such opinion may assume the due incorporation, good standing
and the due authorization, execution and delivery of the
Amendment Documents by Rapidforms and McBee;
(j) The Agent shall have received in cash fees in the
following amounts: (i) for the pro rata account of each Bank
party to this Amendment, an amount equal to .125% of the
Commitment of such Bank which was in effect immediately prior
to the effectiveness of this Amendment; and (ii) for the pro
rata account of each Bank which is increasing its Commitment
pursuant to this Amendment, an amount equal to .25% of the
increase in such Commitments;
-17-
(k) The Agent shall have received, for the account of
FleetBoston Robertson Stephens Securities, Inc., an
arrangement fee in an amount equal to that set forth in the
fee letter dated as of the date hereof between the Agent and
the Borrower;
(l) Such other items, documents, agreements, items or
actions as the Agent may reasonably request in order to
effectuate the transactions contemplated hereby.
14. 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 section 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.
-18-
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:_________/s/ Daniel M. Junius___
Name: Daniel M. Junius
Title: Treasurer
FLEET NATIONAL BANK,
individually, as Agent and as
Documentation Agent
By:_________/s/ Harvey H. Thayer, Jr.
Name: Harvey H. Thayer, Jr.
Title: Managing Director
FIRST UNION NATIONAL BANK,
N.A.,
successor to CoreStates Bank, N.A.
By:_________/s/ Mark B. Felker_____
Name: Mark B. Felker
Title: Senior Vice President
KEY BANK N.A.
By:_________/s/ Noel B. Braydon____
Name: Noel B. Braydon
Title: Senior Vice President
CITIZENS BANK OF MASSACHUSETTS,
as successor to USTrust
By:_________/s/ C. Andrew Piculell
Name: C. Andrew Piculell
Title: Vice President
-19-
SUNTRUST BANK
By:_________/s/ W. David Wisdom____
Name: W. Davis Wisdom
Title: Vice President
THE BANK OF NOVA SCOTIA
By:_____signature illegible_____
Name: illegible
Title: Authorized Signatory
WACHOVIA BANK, N.A.
By:_________/s/ Sharon L. Prince_____
Name: Sharon L. Prince
Title: Vice President
KBC Bank N.V., formerly known as
Kredietbank N.V.
By:_________/s/ Robert Snauffer_____
Name: Robert Snauffer
Title: First Vice President
KBC Bank N.V., formerly known as
Kredietbank N.V.
By:_________/s/ Wei-Chun Wang______
Name: Wei-Chun Wang
Title: Associate
SUMMIT BANK
By:_________/s/ William M. Holland_
Name: William M. Holland
Title: Vice President
-20-
Signature page
to the Sixth Amendment
The undersigned hereby acknowledges the foregoing Sixth 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:_________/s/ Daniel M. Junius___
Name: Daniel M. Junius
Title: Treasurer
MCBEE SYSTEMS, INC.
By:_________/s/ Daniel M. Junius___
Name: Daniel M. Junius
Title: Treasurer
RUSSELL & MILLER, INC.
By:_________/s/ Daniel M. Junius___
Name: Daniel M. Junius
Title: Treasurer
NEBS INTERACTIVE, INC.
By:_________/s/ Daniel M. Junius__
Name: Daniel M. Junius
Title: Treasurer
CHISWICK, INC.
By:_________/s/ Daniel M. Junius___
Name: Daniel M. Junius
Title: Treasurer
-21-
R & M TRUST
By: Daniel M. Junius, 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: _______/s/ Daniel M. Junius___
Daniel M. Junius, as Trustee
Under said Declaration of
Trust and not individually
CHISWICK TRUST
By: Daniel M. Junius, as Trustee
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/ Daniel M. Junius___
Daniel M. Junius, as Trustee
under said Declaration of Trust
and not individually
VERIPACK.com, INC., formerly known as
RAPIDPACK.com, INC.
By: ________/s/ Daniel M. Junius___
Name: Daniel M. Junius
Title: Treasurer
PENGUIN SUB, INC.
By: ________/s/ Daniel M. Junius___
Name: Daniel M. Junius
Title: Treasurer
-22-