Exhibit 4.10
AMENDMENT NO. 1
to
CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO
CREDIT AGREEMENT (the “Amendment”) is made as of July 20, 2005 (the “Effective Date”), by and among DELUXE
CORPORATION (the “Borrower”), the Lenders (as defined below) listed on the signature pages hereof and JPMORGAN CHASE
BANK, N.A. (successor by merger with Bank One, NA), in its capacity as administrative agent (the “Administrative
Agent”), and as an LC Issuer under that certain 5-Year Revolving Credit Agreement dated as of July 22, 2004 by and among the
Borrower, the financial institutions from time to time party thereto (the “Lenders”), CREDIT SUISSE FIRST BOSTON, as
Syndication Agent, THE BANK OF NEW YORK, THE BANK OF TOKYO MITSUBISHI, LTD., AND WACHOVIA BANK, NATIONAL ASSOCIATION, as
Documentation Agents, and the Administrative Agent (as amended, restated, supplemented or otherwise modified as of the date
hereof, the “Credit Agreement”). Defined terms used herein and not otherwise defined herein shall have the meaning given
to them in the Credit Agreement.
WITNESSETH
WHEREAS, the Borrower, the
Lenders and the Administrative Agent are parties to the Credit Agreement; and
WHEREAS, the Borrower has
requested that the Lenders and the Administrative Agent amend the Credit Agreement on the terms and conditions set forth herein;
WHEREAS, the Borrower, the
Administrative Agent and the Lenders have agreed to amend the Credit Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in
consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto have agreed to the following
amendments to the Credit Agreement:
| 1. |
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Amendments to the Credit
Agreement. Effective as of the Effective Date and subject to the satisfaction of the conditions precedent set
forth in Section 2 below, the Credit Agreement is hereby amended as follows: |
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1.1. |
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The Credit Agreement is hereby amended to delete each reference
contained therein to the words “Bank One” and to substitute therefor: “JPMorgan”. |
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1.2. |
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The following definitions now appearing in Section 1.1 of
the Credit Agreement are deleted in their entirety: |
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(a) |
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Applicable Utilization Fee Rate |
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(d) |
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Combined Utilized Amount |
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(e) |
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Existing Credit Agreements |
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(f) |
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Existing 5-Year Credit Agreement |
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1.3. |
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The following definitions are added to Section 1.1 of
the Credit Agreement in the appropriate alphabetical order: |
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(a) |
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“Applicable Utilization Margin” means, at any time,
the percentage rate per annum at which utilization margins (as provided in Section 2.12) are accruing on the Aggregate
Outstanding Credit Exposure at such time as set forth in the Pricing Grid on Annex I. |
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(b) |
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“JPMorgan” means JPMorgan Chase Bank, N.A., a
national banking association, in its individual capacity, and its successors. |
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(c) |
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“2005 5-Year Credit Agreement” means that certain
Amended and Restated 5-Year Revolving Credit Agreement, dated as of July 20, 2005, by and among the Company, the lenders
party thereto and JPMorgan Chase Bank, N.A., as administrative agent, as amended, supplemented or otherwise modified.
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1.4. |
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The definition of “Loan Documents” now appearing
in Section 1.1 of the Credit Agreement is hereby amended to delete therefrom the words, “the Guaranty,”.
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1.5. |
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The definition of “Material Adverse Effect” now
appearing in Section 1.1 of the Credit Agreement is hereby amended to delete therefrom the words, “the
Guaranty,”. |
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1.6. |
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The definition of “Material Subsidiary” now
appearing in Section 1.1 of the Credit Agreement is hereby amended to delete therefrom the words, “(a) NEBS,
and (b)". |
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1.7. |
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Section 1.03(a) of the Credit Agreement is hereby amended
and restated in its entirety as follows: |
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(a) Unless
the context otherwise clearly requires, all accounting terms not expressly defined herein shall be construed, and all financial
computations required under this Agreement shall be made, in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Agent that the Company requests an amendment to any provision hereof to eliminate the effect
of
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any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the
Agent notifies the Company that the Majority Banks request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance herewith.
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1.8. |
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Section 2.01 of the Credit Agreement is hereby amended by
deleting therefrom the words, “or extended under Section 2.09". |
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1.9. |
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Section 2.05 of the Credit Agreement is hereby amended to
delete therefrom the words “combined Commitments” and to substitute therefor: “aggregate
Commitments”. |
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1.10. |
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The first sentence of Section 2.07(b) of the Credit
Agreement is hereby and restated in its entirety as follows: |
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At
any time prior to the Revolving Termination Date the Company may, on the terms set forth below, request that the Commitments
hereunder be increased by an aggregate amount up to $25,000,000; provided, however, that (i) an increase in the Commitments
hereunder may only be made at a time when no Default or Unmatured Default shall have occurred and be continuing and (ii) in
no event shall the aggregate Commitments hereunder exceed $250,000,000 in the aggregate.
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1.11. |
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The third sentence of Section 2.07(b) of the Credit
Agreement is hereby amended to insert the phrase “, the LC Issuers” immediately after the word
“Agent” and before the words “and each Bank” contained therein. |
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1.12. |
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Section 2.12(b) of the Credit Agreement is hereby amended
and restated in its entirety as follows: |
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Utilization
Margin. For each day from and after the date hereof to but not including the Revolving Termination Date on
which the Aggregate Outstanding Credit Exposure exceeds fifty percent (50%) of the aggregate Commitments (or if all of the
Commitments shall have been terminated, the aggregate Commitments in effect immediately prior to such termination), the interest
rate otherwise applicable to the Loans and the LC Fee, respectively, shall be increased at a rate per annum equal to the
Applicable Utilization Margin in effect from time to time. Such Applicable Utilization Margin shall (i) be computed on a quarterly
basis in arrears on the last Business Day of each calendar quarter, (ii) accrue for all such days from the Closing Date to the
date on which this Agreement is terminated and all of the Obligations hereunder have been paid in full, and (iii) be payable in
arrears on the last Business Day of each such quarter commencing on the last Business Day of the fiscal quarter following the
Closing Date through the date on
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which this Agreement is terminated and all of the Obligations
hereunder have been paid in full, with the final payment, if applicable, to be made on the date on which this Agreement is
terminated and all of the Obligations hereunder have been paid in full.
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1.13. |
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Section 2.13(c) of the Credit Agreement is hereby amended
to delete the second sentence thereof in its entirety and to substitute therefor: |
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Any change in
the interest rate payable on the Offshore Rate Committed Loans (including, without limitation, the Applicable Utilization Margin)
or in the Facility Fees payable under Section 2.12 resulting from a change in the Company’s senior unsecured long-term
debt ratings shall become effective and shall apply to any such Loans then outstanding or to such fees as of the opening of
business on the day on which such change in the Company’s debt ratings becomes effective.
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1.14. |
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The last sentence of Section 2.17(a) of the Credit
Agreement is hereby amended and restated in its entirety as follows: |
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No Facility
LC shall have an expiry date later than the earlier of (x) (other than as described in the proviso below) the fifth Business Day
prior to the Revolving Termination Date and (y) one year after its issuance; provided however that on or before the 10th
Business Day prior to the Revolving Termination Date, the Company shall deposit into the Facility LC Collateral Account cash
collateral for the account of the applicable LC Issuer in an amount equal to 105% of the aggregate outstanding LC Obligations in
respect of the Facility LCs issued by such LC Issuer with an expiry date on or after the fifth Business Day prior the Revolving
Termination Date.
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1.15. |
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Section 2.17(k) is hereby amended to delete the last
sentence thereof in its entirety and to substitute therefor |
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Nothing in
this Section 2.17(k) shall either obligate the Company, or the Agent to require the Company, to deposit any funds in the
Facility LC Collateral Account or limit the right of the Agent to release any funds held in the Facility LC Collateral
Account in each case other than as required by Sections 2.17(a) or 8.02.
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1.16. |
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Section 3.04(d) of the Credit Agreement is hereby
amended to delete the words “Sections 2.08 or 2.09" therefrom and to substitute therefor the words,
“Section 2.08". |
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1.17. |
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Section 5.01(b) of the Credit Agreement is hereby amended
to delete therefrom the words “and each Guarantor”. |
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1.18. |
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Section 5.01(c) of the Credit Agreement is hereby amended and
restated in its entirety as follows: |
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(c) is
duly qualified as a foreign corporation and is licensed and in good standing under the laws of each jurisdiction except where the
failure to so qualify or to be so licensed or in good standing (i) would not preclude it from enforcing its rights with
respect to any of its assets or expose it to any liability and (ii) could not reasonably be expected to have a Material
Adverse Effect; and
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1.19. |
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Section 6.01(a) of the Credit Agreement is hereby amended
to delete the last sentence thereof in its entirety and to substitute therefor the following: |
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Such opinion
shall not include any “going concern” or like qualification or exception, or any qualification or limitation because of
a restricted or limited examination by the Independent Auditor of any material portion of the Company’s or any
Subsidiary’s records; and
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1.20. |
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Section 6.13 of the Credit Agreement is hereby deleted in
its entirety. |
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1.21. |
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Section 7.01(b) of the Credit Agreement is hereby amended
to delete therefrom the words “Existing Credit Agreements” and to substitute therefor the words “2005
5-Year Credit Agreement”. |
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1.22. |
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Section 7.03 (b) and (c) of the Credit Agreement are
hereby amended and restated in their entirety as follows: |
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(b) any
Subsidiary may merge with the Company, provided that the Company shall be the continuing or surviving corporation, or with any one
or more Subsidiaries, provided that if any transaction shall be between a Subsidiary and a Wholly-Owned Subsidiary, the
Wholly-Owned Subsidiary shall be the continuing or surviving corporation; and
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(c) the
Company or any Subsidiary may convey, transfer, lease or otherwise dispose of all or substantially all of its assets (upon
voluntary liquidation or otherwise), to the Company or one or more Wholly-Owned Subsidiaries, as the case may be.
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1.23. |
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Section 8.01(c) of the Credit Agreement is hereby amended
to delete therefrom the occurrence of the number “6.13,”. |
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1.24. |
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Section 8.01(e) of the Credit Agreement is hereby amended
to delete therefrom the words “Existing Credit Agreements” and to substitute therefor the words “2005
5-Year Credit Agreement”. |
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1.25. |
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Section 8.01(e) of the Credit Agreement is hereby further
amended to amend and restate the proviso contained therein in its entirety as follows: |
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“provided,
that, with respect to any such breach occurring as a result of a change of control under any agreement or instrument
evidencing such Indebtedness of a Subsidiary of more than $100,000,000 upon the acquisition of such Subsidiary, such breach shall
cause an Event of Default hereunder only if
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such breach has not been cured or waived (or the Indebtedness
related thereto prepaid in full and the related agreements and instruments shall be terminated) within three Business Days after
the occurrence thereof; or (ii) if there shall occur any other default or event of default, however denominated, under any
cross default provision under any agreement or instrument relating to any such Indebtedness of more than $100,000,000"
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1.26. |
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Section 8.01(l) of the Credit Agreement is hereby deleted
in its entirety. |
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1.27. |
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Sections 10.01 (b) and (c) of the Credit Agreement
are hereby amended and restated in their entirety as follows: |
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(b) postpone
or delay any date fixed by this Agreement or any other Loan Document for any payment of principal, interest (including, without
limitation, the Applicable Utilization Margin), Facility Fees, Reimbursement Obligations, LC Fees or other material amounts due to
the Banks (or any of them) or the LC Issuers (or any of them) hereunder or under any other Loan Document;
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(c) reduce
the principal of, or the rate of interest (including, without limitation, the Applicable Utilization Margin) specified herein on
any Loan, Reimbursement Obligations or (subject to clause (ii) below) any Facility Fees, LC Fees or other amounts payable
hereunder or under any other Loan Document;
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1.28. |
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Section 10.01 is hereby further amended to (1) add the
word “or” at the end of clause (d) thereof, (2) delete the word “or” from the end of
clause (e) thereof, (3) delete clause (f) thereof in its entirety, (4) replace the second
occurrence of “(ii)” in the proviso thereof with “(iii)” and (5) replace the
occurrence of “(iii)” in the proviso thereof with “(iv)". |
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1.29. |
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Section 10.05 of the Credit Agreement is hereby amended to
replace the word “Borrower” contained therein with the word “Company”. |
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1.30. |
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The first parenthetical in Section 10.08(a) of the Credit
Agreement is hereby amended and restated in its entirety as follows: |
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(provided that
(i) no written consent of the Company or the Agent shall be required in connection with any assignment and delegation by a
Bank to an Eligible Assignee that is an Affiliate of such Bank, and (ii) the written consent of the LC Issuers shall be
required for each assignment and delegation)
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1.31. |
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Annex I (Pricing Grid) attached to the Credit
Agreement is hereby amended to replace each occurrence of the words “Applicable Utilization Fee Rate” contained
therein with “Applicable Utilization Margin”. |
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1.32. |
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The Schedules to the Credit Agreement are hereby amended to add
“Schedule 5.15” entitled “Copyrights, Patents, Trademarks and Licenses” with the word “None”
appearing as the only text of such schedule. |
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1.33. |
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Exhibit A to the Credit Agreement is hereby amended by
deleting Schedule 1 attached thereto in its entirety and substituting therefor the Schedule 1 attached to
this Amendment. |
| 2. |
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Conditions of Effectiveness. The
effectiveness of this Amendment is subject to the conditions precedent that the Administrative Agent shall have received:
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(a) |
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duly executed copies of this Amendment from the Borrower and each
of the Lenders; and |
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(b) |
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such other documents, instruments and agreements as the
Administrative Agent shall reasonably request. |
| 3. |
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Representations and Warranties and Reaffirmations of the
Borrower. |
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3.1. |
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The Borrower hereby represents and warrants that (i) this
Amendment and the Credit Agreement as previously executed and as modified hereby constitute legal, valid and binding obligations
of the Borrower and are enforceable against the Borrower in accordance with their terms, and (ii) no Default or Event of Default
has occurred and is continuing. |
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3.2. |
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Upon the effectiveness of this Amendment and after giving effect
hereto, the Borrower hereby reaffirms all covenants, representations and warranties, in all material respects, made by it in the
Credit Agreement as modified hereby, and agrees that all such covenants, representations and warranties shall be deemed to have
been remade as of the Effective Date, except that any such covenant, representation, or warranty that was made as of a specific
date shall be considered reaffirmed only as of such date. |
| 4. |
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Reference to the Effect on the Credit Agreement.
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4.1. |
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Upon the effectiveness of this Amendment, on and after the date
hereof, each reference in the Credit Agreement (including any reference therein to “this Agreement,”
“hereunder,” “hereof,” “herein” or words of like import referring thereto) or in any other Loan
Document shall mean and be a reference to the Credit Agreement as modified hereby. |
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4.2. |
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Except as specifically modified above, the Credit Agreement and
all other documents, instruments and agreements executed and/or delivered in connection therewith, shall remain in full force and
effect, and are hereby ratified and confirmed. |
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4.3. |
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The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of the Administrative Agent or the Lenders, nor constitute a waiver of any
provision of the Credit Agreement or any other documents, instruments and agreements executed and/or delivered in connection
therewith. |
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| 5. |
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GOVERNING LAW. THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK; PROVIDED THAT THE ADMINISTRATIVE AGENT, THE
LENDERS AND THE LC ISSUERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW. |
| 6. |
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Headings. Section headings in this
Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other
purpose. |
| 7. |
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Counterparts. This Amendment may be
executed by one or more of the parties to this Amendment on any number of separate counterparts and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. |
| 8. |
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Release of NEBS. Concurrently with the
effectiveness of this Amendment, (i) the guarantees granted by NEBS (including the Guaranty dated as of July 22, 2004,
made by NEBS in favor of the Administrative Agent) pursuant to the Loan Documents (for purposes of this Section 8,
Loan Documents shall have the meaning given thereto in the Credit Agreement as in effect on July 22, 2004 and in that
certain 364-Day Revolving Credit Agreement dated as of July 22, 2004, among the Borrower, the financial institutions party
thereto as “Banks” and JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA), as administrative agent, and
without giving effect to any subsequent amendments or other modifications thereof) shall be deemed to have been automatically
released and terminated, all without any further action being required to effectuate the foregoing, and (ii) the Loan
Documents executed by NEBS shall terminate with respect to NEBS, all without any further action being required to effectuate the
foregoing. The Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its sole discretion, to take
any action it determines required in order to effectuate the foregoing. |
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, this
Amendment has been duly executed as of the day and year first above written.
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DELUXE CORPORATION |
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By: |
/s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
Title: Vice President and Treasurer |
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SIGNATURE PAGE TO AMENDMENT NO. 1
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JPMORGAN CHASE BANK, N.A. (successor by
merger with Bank One, NA),
individually, as Agent and as an LC Issuer |
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By: |
/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice-President |
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SIGNATURE PAGE TO AMENDMENT NO. 1
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CREDIT SUISSE FIRST BOSTON, ACTING
THROUGH ITS CAYMAN ISLANDS BRANCH,
individually and as Syndication Agent |
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By: |
/s/ Xxxx X’Xxxx
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Name: Xxxx X’Xxxx
Title: Director |
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By: |
/s/ Xxxxxxxxx Xxxxxxx
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Name: Xxxxxxxxx Xxxxxxx
Title: Associate |
SIGNATURE PAGE TO AMENDMENT NO. 1
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THE BANK OF NEW YORK,
individually and as a Co-Documentation Agent |
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By: |
/s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President |
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SIGNATURE PAGE TO AMENDMENT NO. 1
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THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH, individually and as
a Co-Documentation Agent |
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By: |
/s/ Tsuguyuki Umene
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Name: Tsuguyuki Umene
Title: Deputy General Manager |
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SIGNATURE PAGE TO AMENDMENT NO. 1
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WACHOVIA BANK, NATIONAL ASSOCIATION,
individually and as a Co-Documentation Agent |
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By: |
/s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President |
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SIGNATURE PAGE TO AMENDMENT NO. 1
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THE NORTHERN TRUST COMPANY |
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By: |
/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President |
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SIGNATURE PAGE TO AMENDMENT NO. 1
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NATIONAL CITY BANK |
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By: |
/s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
Title: Senior Vice President |
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SIGNATURE PAGE TO AMENDMENT NO. 1
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XXXXX FARGO BANK, NATIONAL ASSOCIATION |
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By: |
/s/ Xxxxxxx XxXxx
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Name: Xxxxxxx XxXxx
Title: Vice President |
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By: |
/s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Vice President |
SIGNATURE PAGE TO AMENDMENT XX. 0
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XXX XXXXXXX |
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By: |
/s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Managing Director |
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By: |
/s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Vice President |
SIGNATURE PAGE TO AMENDMENT NO. 1
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FIFTH THIRD BANK |
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By: |
/s/ Xxx-Xxxx Xxxxx
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Name: Xxx-Xxxx Xxxxx
Title: AVP |
SIGNATURE PAGE TO AMENDMENT NO. 1
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U.S. BANK NATIONAL ASSOCIATION |
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By: |
/s/ Xxxxxxxxxxx X. Xxxx
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Name: Xxxxxxxxxxx X. Xxxx
Title: Vice President |
SIGNATURE PAGE TO AMENDMENT NO. 1
SCHEDULE 1
to the Compliance Certificate
Dated _______________ / For the fiscal quarter ended ___________.
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Actual
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Required/Permitted
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| I. Section 7.10 – Interest Coverage |
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| (a) EBIT |
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| (i) consolidated net income | | |
| ___________ |
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| (ii) interest expense | | |
| +__________ |
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| (iii) taxes | | |
| +__________ |
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| (iv) extraordinary losses | | |
| +__________ |
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| (v) extraordinary gains | | |
| -__________ |
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| (vi) Earnings Before Interest and Taxes | | |
| =__________ |
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| (b) Interest Expense | | |
| ___________ |
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(c) Ratio of (a)(vi) Earnings Before Interest and Taxes
to (b) Interest Expense under Section 7.10 | | |
| _____ to 1.00 |
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Not less than 3.00 to 1.00
(measured as of the last day
of any fiscal quarter) | | |
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| II. Section 7.11 – Subsidiary Indebtedness |
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Aggregate Indebtedness of Company’s
consolidated Subsidiaries |
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___________ |
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Not greater than $50,000,000
(measured as of the last day
of any fiscal quarter) |
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