November 1, 1993
Mr. Thomas W. Freeze
Treasurer
New England Business Service Inc.
500 Main Street
Groton, MA 01471
Dear Tom:
This letter will serve to confirm that The First National Bank of Boston
(the "Bank") holds available for New England Business Service, Inc. a
$10,000,000 unsecured line of credit to extend through October 31, 1994.
All borrowings under this line will be payable on demand. This line shall
be available for general corporate purposes.
As compensation for this line of credit, you agree to pay a fee of 1/4%
per annum (calculated on the basis of a 360-day year) on the full amount of
the facility. This will be payable quarterly in arrears on the last banking
day of each calendar quarter ending in March, June, September and December.
At your option, borrowings will be priced at the rates we quote you as:
our Alternate Base Rate [the higher of the Bank's announced Base Rate
or overnight Federal Funds rate plus rate plus 1/2%], or
our 1, 2, or 3-month reserve-adjusted Eurodollar Rate plus 3/8%,
the Eurodollar Rate being determined by the Bank at 10:00 a.m. Boston time on
the day (which shall be a business day) two business days prior to the date
of the requested borrowing. Requests for borrowings at these pricing options
must be received by 11:00 a.m. Boston time on the date of the requested
borrowing, (in the case of Base Rate Loans) and at least one business day
before the time for determining the relevant rate (in the case of Eurodollar
Rate Loans). Eurodollar Rate Loans may be requested for interest periods of
one, two, or three months; and no loan shall have an interest period that
extends beyond the expiration of this line of credit. All loans will be
made by crediting the proceeds thereof to your demand deposit account
maintained at the Bank.
Each Alternate Base Rate loan made under this line of credit must be in
a minimum amount of $500,000, or any larger amount which is an integral
multiple of $100,000.
All Eurodollar Rates will be adjusted for reserves, if any. Borrowings
under the Eurodollar pricing option must be in minimum increments of
$1,000,000 or greater multiples of $100,000. If any Eurodollar Rate Loans
are paid on a date other than the last day of the applicable interest period
(whether by reason of voluntary prepayment, acceleration or otherwise), you
shall compensate us for any funding losses and other costs (including lost
profits) incurred as a result of such prepayment. Our willingness to offer
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Eurodollar Rates is subject to the availability of funding sources and the
continued legality of our offering such pricing options. You agree to
reimburse us for any increased costs (taxes, regulatory reserves or
assessments, etc.) incurred by us in connection with borrowings at such
pricing options.
We may also quote you "money market" rates (it being understood that we
are under no obligation to do so), establishing the fixed rate of interest
at which we are willing to make money market loans to you in the amount and
for the interest period requested. Money market loans may be requested for
interest periods of up to 60 days. We will require that money market loans
be in minimum increments of $1,000,000 or greater multiples of $100,000. No
voluntary prepayment of money market loans will be permitted.
All borrowings shall be evidenced by, and all principal and interest
shall be payable in accordance with the terms of a promissory note in the
form attached hereto. You authorize us to record each borrowing and the
corresponding information on the schedule forming a part of such promissory
note, and this schedule, together with our corresponding records of debit and
credit, shall constitute the official record of all borrowings under this
facility. You agree that this record shall be prima facie evidence of the
amounts of the borrowings under this facility.
The availability of loans under this facility is subject to our usual
condition that we continue to be satisfied with the affairs of New England
Business Service, Inc. and to any substantive changes in governmental
regulations or monetary policies.
If the foregoing satisfactorily sets forth the terms and conditions of
this line of credit, please execute and return the enclosed copy of this
letter and the attached promissory note. We are pleased to provide this
line and look forward to the ongoing development of our relationship.
Sincerely,
/s/Thomas F. Farley /s/ Chris D. Francis
Thomas F. Farley Chris D. Francis
Vice President Assistant Vice President
Accepted:
New England Business Service, Inc.
By: /s/ Thomas W. Freeze
Title: Treasurer
Date: 11/10/93
NEW ENGLAND BUSINESS SERVICE, INC.
COMMERCIAL PROMISSORY NOTE
$10,000,000 November 1, 1993
Boston, Massachusetts
FOR VALUE RECEIVED, the undersigned (jointly and severally if more than
one) promise(s) to pay to the order of THE FIRST NATIONAL BANK OF BOSTON
(together with any successors or assigns, the "Bank"), a national banking
association with its Head Office at 100 Federal Street, Boston, Massachusetts
02110, the aggregate principal amount of all loans made Bank to the
undersigned pursuant to the letter agreement between the Bank an the
undersigned dated November 1, 1993, as shown in the schedule at hereto (the
"Note Schedule"), together with interest on each loan from date such loan is
made until the maturity thereof at the applicable rate forth in the Note
Schedule. The principal amount of each loan shall be payable on demand or,
if demand is not earlier made, on the last day of the applicable interest
period, if any, indicated in the Note Schedule. Interest on the principal
amount of each loan shall be payable in arrears on the same day as the
principal amount is due, provided that (i) interest on each loan bearing
interest at the Base Rate shall be payable on the last day of each quarter,
beginning on the first of such dates occurring after the date such loan and
when such loan is due, and (ii) if the maturity of any loan is more than
three months from the date of such loan, then interest shall be payable at
intervals of three months and when such loan is due. Loans which are shown
as bearing interest at the Base Rate shall bear interest at a rate per annum
equal to the greater of (i) the rate of interest announced from time to time
by the Bank at its head force as its "Base Rate", and (ii) the rate equal to
the weighted average of the published rates on overnight Federal Funds
transactions with members of the Federal Reserve System plus 1/2%. The
applicable floating rate shall change as and when the Base Rate changes, and
changes in the Base Rate shall take effect on the day announced unless
otherwise specified in the announcement. Interest shall be calculated on the
basis of a 360-day year for the actual number of days elapsed including
holidays and days on which the Bank is not open for the conduct of banking
business.
SECTION 1. PAYMENT TERMS.
1.1 PAYMENTS; PREPAYMENTS. All payments hereunder shall be made
by the undersigned to the Bank in United States currency at the Bank's
address specified above (or at such other address as the bank may specify),
in immediately available funds on or before 2:00 p.m. (Boston, Massachusetts
time) on the due date thereof. Payments received by the Bank prior to the
occurrence of an Event of Default (as defined in Section 2) will be applied
first to fees, expenses and other amounts due hereunder (excluding principal
and interest); second, to accrued interest; and third to outstanding
principal; after the occurrence of an Event of Default, payments will be
applied to the Obligations under this Note as the Bank determines in its sole
discretion. Subject to Section 1.2, the undersigned pay all or a portion of
the amount owed earlier than it is due without premium or other charge.
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1.2 PREPAYMENT CHARGE. If any loan made under this Note bears
interest at a fixed rate and any payment of principal is made for any reason
on any day other than the date scheduled therefor, whether voluntary or as a
result of acceleration or otherwise, the undersigned shall reimburse the Bank
for the loss, if any, including any lost profits, resulting from such
prepayment, as reasonably determined by the Bank. The undersigned shall pay
such loss upon presentation by the Bank of a statement of the amount of such
loss, setting forth the Bank's calculation thereof, which notice and
calculation (including the method of calculation) shall be deemed true and
correct absent manifest error.
1.3 DEFAULT RATE. To the extent permitted by applicable law, upon
and after the occurrence of an Event of Default (whether or not the Bank has
accelerated payment of this Note), interest on principal and overdue interest
shall, at the option of the Bank, be payable on demand at a rate per annum
equal to 2.00% above the greater of the rate of interest otherwise payable
hereunder or the Base Rate.
(check if 1.4 DEPOSIT ACCOUNT. The undersigned shall maintain with
applicable) the Bank a commercial demand deposit account. The
undersigned requests and authorizes the Bank to debit such
account for amounts due hereunder on each date such amounts
become due. The undersigned shall maintain sufficient
collected balances in this account to pay any such amounts
as they become due.
SECTION 2. DEFAULTS AND REMEDIES.
2.1 DEFAULT. The occurrence of any of the following events or
conditions shall constitute an "Event of Default" hereunder:
(a) (i) default in the payment when due of the principal of or
interest on this Note or (ii) any other default in the payment or
performance of this Note or of any other Obligation or (iii)
default in the payment or performance of any obligation of and
Obligor to others for borrowed money or in respect of any extension
of credit or accommodation or under any lease;
(b) failure of any representation or warranty herein or in any
agreement, instrument, document or financial statement delivered to
the Bank in connection herewith to be true and correct in any
material respect;
(c) default or breach of any condition under any mortgage,
security agreement, assignment of lease, or other agreement
securing, constituting or otherwise relating to any collateral for
the Obligations;
(d) failure to furnish the Bank promptly on request with financial
information about, or to permit inspection by the Bank of any
books, records and properties of, any Obligor;
(e) merger, consolidation, sale of all or substantially all of the
assets or change in control of any Obligor; or
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(f) any Obligor generally not paying its debts as they become due;
the death, dissolution, termination of existence or insolvency of
any Obligor; the appointment of a trustee, receiver, custodian,
liquidator or other similar official for such Obligor or any
substantial part of its property or the assignment for the benefit
of creditors by any Obligor; or the commencement of any proceedings
under any bankruptcy or insolvency laws by or against any Obligor.
As used herein, "Obligation" means any obligation hereunder or
otherwise of any Obligor to the Bank or to any of its affiliates, whether
direct or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising; and the "Obligor" means the undersigned, any guarantor
or any other person primarily or secondarily liable hereunder or in respect
hereof, including any person or entity who has pledged or granted to the Bank
a security interest in, or other lien on, property on behalf of the
undersigned as collateral for the Obligations.
2.2 REMEDIES. Upon an Event of Default described in edition 2.1(f)
immediately and automatically, and upon or after the occurrence of any other
Event of Default at the option of the Bank, all Obligations of the undersigned
shall become immediately due and payable without notice or demand, and the
Bank shall then have in any jurisdiction where enforcement hereof is sought,
the rights and remedies of a secured party under the Uniform Commercial Code
of Massachusetts. All rights and remedies of the Bank are cumulative and are
exclusive of any rights or remedies provided by law or in equity or any other
agreement, and may be exercised separately or concurrently.
SECTION 3. MISCELLANEOUS.
3.1 WAIVER; AMENDMENT. No delay or omission on the part of the Bank in
exercising any right hereunder shall operate as a waiver of such right or of
any other right under this Note. No waiver or any right or any amendment
hereto shall be effective unless in writing and signed by the Bank, nor shall
a waiver on one occasion bar or waive the exercise of any such right on any
future occasion. Without limiting the generality of the foregoing, the
acceptance by the Bank of any late payment shall not be deemed to be a waiver
of the Event of Default arising as consequence thereof. Each Obligor waives
presentment, demand, notice, protest, and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement
of this Note or of any collateral for the Obligations, and assents to any
extensions or postponements of the time of payment and to any other
indulgences under this Note or with respect to any such collateral, to any
substitutions, exchanges or releases of any such collateral, and to any
additions or releases of any other parties or persons primarily or
secondarily liable hereunder, that from time to time may be granted by the
Bank in connection herewith.
3.2 TAXES. The undersigned agrees to indemnify the Bank and hold it
harmless from and against any transfer taxes, documentary taxes, assessment or
charges made by any governmental authority by reason of the execution,
delivery, and performance of this Note or any collateral for the Obligations.
3.3 EXPENSES. The undersigned will pay on demand all reasonable
expenses of the Bank in connection with the preparation, administration,
default, collection, waiver or amendment of the Obligations or in connection
with the Bank's exercise, preservation or enforcement of any of its rights,
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remedies or options thereunder, including, without limitation, fees of
outside legal counsel or the allocation costs of in-house legal counsel,
accounting, consulting, brokerage or other similar professional fees or
expenses, and any fees or expenses associated with any travel or other costs
relating to any appraisals or examinations conducted in connection with the
Obligations or any collateral therefor, and the amount of all such expenses
shall, until paid, bear interest at the rate applicable to principal
hereunder (including any default rate) and be an Obligation secured by any
such collateral.
3.4 BANK RECORDS. The entries on the records of the Bank (including
any appearing on the Note) shall be prima facie evidence of the aggregate
principal amount outstanding under this Note and interest accrued thereon.
3.5 INFORMATION. The undersigned shall furnish the Bank from
time to time with such financial statements and other information relating to
any Obligor or any collateral securing this Note as the Bank may require.
All such information shall be true and correct and fairly represent the
financial condition and the operating results of such Obligor as of the date
and for the periods for which the same are furnished. The undersigned shall
permit representatives of the Bank to inspect its properties and its books
and records, and to make copies or abstracts thereof. Each Obligor
authorizes the Bank to release and disclose to its affiliates, agents and
contractors any financial statements and other information relating to said
Obligor provided to or prepared by or for the Bank in connection with any
Obligation. The undersigned will notify the Bank promptly of the existence or
upon the occurrence of any Event of Default or event which, with the giving
of notice or the passage of time or both, would become an Event of Default.
3.6 GOVERNING LAW; CONSENT TO JURISDICTION. This Note is
intended to take effect as a sealed instrument and shall be governed by, and
construed in accordance with, the laws of The Commonwealth of Massachusetts,
without regard to this conflict of law rules. The undersigned agrees that
any suit for the enforcement of this Note may be brought in the courts of such
state or any Federal Court sitting in such state and consents to the
non-exclusive jurisdiction of each such court and to service of process in
any such suit being made upon the undersigned by mail at the address
specified below. The undersigned hereby waives any objection that it may
now or hereafter have to the venue of any such suit or any such court or that
such suite was brought in an inconvenient court.
3.7 SEVERABILITY; AUTHORIZATION TO COMPLETE; PARAGRAPH HEADINGS.
If any provision of this Note shall be invalid, illegal or unenforceable,
such provisions shall be severable from the remainder of this Note and the
validity, legality and enforceability of the remaining provision shall not in
any way be affected or impaired thereby. The Bank is hereby authorized,
without further notice, to fill any blank spaces on this Note and to date
this Note as the date funds are first advanced hereunder. Paragraph headings
are for the convenience of reference only and are not a part of this Note and
shall not affect its interpretation
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3.8 JURY WAIVER. THE BANK (BY ITS ACCEPTANCE OF THIS NOTE) AND
THE UNDERSIGNED AGREE THAT NEITHER OF THEM NOR ANY ASSIGNEE OR SUCCESSOR
SHALL (A) SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY
OTHER ACTION BASED UPON, OR ARISING OUT OF, THIS NOTE, ANY RELATED
INSTRUMENTS, ANY COLLATERAL OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR
AMONG ANY OF THEM, OR (B) SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER
ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THE
PROVISIONS OF THIS PARAGRAPH SHALL BE SUBJECT TO NO EXCEPTIONS. NEITHER THE
BANK NOR THE UNDERSIGNED HAS AGREED WITH OR REPRESENTED TO THE OTHER THAT THE
PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
Address:
New England Business Service, Inc.
500 Main Street By: /s/ Thomas W. Freeze
(Number) (Street) (Type Name) Thomas W. Freeze
Title: Treasurer
Groton, MA 01471
(City, State) (Zip Code)