Exhibit 10.6
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eFUNDS CORPORATION
$100,000,000 5.39% Senior Guaranteed Notes due September 30, 2012
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NOTE PURCHASE AGREEMENT
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Dated as of September 30, 2005
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TABLE OF CONTENTS
SECTION HEADING PAGE
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SECTION 1. AUTHORIZATION OF NOTES........................................ 1
SECTION 2. SALE AND PURCHASE OF NOTES.................................... 2
SECTION 3. CLOSING....................................................... 2
SECTION 4. CONDITIONS TO CLOSING......................................... 2
Section 4.1. Representations and Warranties........................ 2
Section 4.2. Performance; No Default............................... 2
Section 4.3. Compliance Certificates............................... 3
Section 4.4. Opinions of Counsel................................... 3
Section 4.5. Purchase Permitted By Applicable Law, Etc............. 3
Section 4.6. Sale of Other Notes................................... 3
Section 4.7. Payment of Special Counsel Fees....................... 3
Section 4.8. Private Placement Number.............................. 4
Section 4.9. Changes in Corporate Structure........................ 4
Section 4.10. Funding Instructions.................................. 4
Section 4.11. Proceedings and Documents............................. 4
Section 4.12. Consent of Administrative Agent under Bank Credit
Agreement.......................................... 4
Section 4.13. Subsidiary Guarantee Agreement........................ 4
Section 4.14. Intercreditor Agreement............................... 4
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE OBLIGORS................ 4
Section 5.1. Organization; Power and Authority..................... 5
Section 5.2. Authorization, Etc.................................... 5
Section 5.3. Disclosure............................................ 5
Section 5.4. Organization and Ownership of Shares of
Subsidiaries; Affiliates.............................. 5
Section 5.5. Financial Statements; Material Liabilities............ 6
Section 5.6. Compliance with Laws, Other Instruments, Etc.......... 6
Section 5.7. Governmental Authorizations, Etc...................... 7
Section 5.8. Litigation; Observance of Agreements, Statutes and
Orders ............................................ 7
Section 5.9. Taxes................................................. 7
Section 5.10. Title to Property; Leases............................. 7
Section 5.11. Licenses, Permits, Etc................................ 8
Section 5.12. Compliance with ERISA................................. 8
Section 5.13. Private Offering by the Obligors...................... 8
Section 5.14. Use of Proceeds; Margin Regulations................... 9
Section 5.15. Existing Indebtedness; Future Lien.................... 9
Section 5.16. Foreign Assets Control Regulations, Etc............... 9
Section 5.17. Status under Certain Statutes......................... 10
Section 5.18. Environmental Matters................................. 10
Section 5.19. Pari Passu Ranking.................................... 11
SECTION 6. REPRESENTATIONS OF THE PURCHASERS............................. 11
Section 6.1. Purchase for Investment............................... 11
Section 6.2. Source of Funds....................................... 11
SECTION 7. INFORMATION AS TO COMPANY..................................... 13
Section 7.1. Financial and Business Information.................... 13
Section 7.2. Officer's Certificate................................. 15
Section 7.3. Visitation............................................ 16
Section 7.4. Limitation on Disclosure Obligation................... 16
SECTION 8. PAYMENT AND PREPAYMENT OF THE NOTES........................... 17
Section 8.1. Maturity.............................................. 17
Section 8.2. Optional Prepayments.................................. 17
Section 8.3. Prepayment of Notes Upon Change in Control............ 18
Section 8.4. Allocation of Partial Prepayments..................... 19
Section 8.5. Maturity; Surrender, Etc.............................. 19
Section 8.6. Purchase of Notes..................................... 19
Section 8.7. Make-Whole Amount..................................... 19
SECTION 9. AFFIRMATIVE COVENANTS......................................... 21
Section 9.1. Compliance with Law................................... 21
Section 9.2. Insurance............................................. 21
Section 9.3. Maintenance of Properties............................. 21
Section 9.4. Payment of Taxes and Claims........................... 21
Section 9.5. Corporate Existence, Etc.............................. 22
Section 9.6. Books and Records..................................... 22
Section 9.7. Subsidiary Guarantors................................. 22
Section 9.8. Pari Passu Ranking.................................... 23
SECTION 10. NEGATIVE COVENANTS........................................... 24
Section 10.1. Transactions with Affiliates.......................... 24
Section 10.2. Merger, Consolidation, Etc............................ 24
Section 10.3. Line of Business...................................... 25
Section 10.4. Terrorism Sanctions Regulations....................... 26
Section 10.5. Liens................................................. 26
Section 10.6. Sale of Assets........................................ 28
Section 10.7. Priority Debt......................................... 29
Section 10.8. Subsidiary Debt Limitation............................ 29
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Section 10.9. Consolidated Total Indebtedness to Consolidated
EBITDA............................................. 30
Section 10.10. Minimum Fixed Charge Coverage......................... 30
Section 10.11. Sale of Accounts...................................... 30
SECTION 11. EVENTS OF DEFAULT............................................ 30
SECTION 12. REMEDIES ON DEFAULT, ETC..................................... 32
Section 12.1. Acceleration.......................................... 32
Section 12.2. Other Remedies........................................ 33
Section 12.3. Rescission............................................ 33
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc..... 34
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES................ 34
Section 13.1. Registration of Notes................................. 34
Section 13.2. Transfer and Exchange of Notes........................ 34
Section 13.3. Replacement of Notes.................................. 35
SECTION 14. PAYMENTS ON NOTES............................................ 35
Section 14.1. Place of Payment...................................... 35
Section 14.2. Home Office Payment................................... 35
SECTION 15. EXPENSES, ETC................................................ 36
Section 15.1. Transaction Expenses.................................. 36
Section 15.2. Survival.............................................. 36
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE
AGREEMENT............................................. 36
SECTION 17. AMENDMENT AND WAIVER......................................... 37
Section 17.1. Requirements.......................................... 37
Section 17.2. Solicitation of Holders of Notes...................... 37
Section 17.3. Binding Effect, etc................................... 37
Section 17.4. Notes Held by Company, etc............................ 38
SECTION 18. NOTICES...................................................... 38
SECTION 19. REPRODUCTION OF DOCUMENTS.................................... 38
SECTION 20. CONFIDENTIAL INFORMATION..................................... 39
SECTION 21. SUBSTITUTION OF PURCHASER.................................... 40
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SECTION 22. GUARANTEE AGREEMENT.......................................... 40
Section 22.1. Guaranteed Obligations................................ 40
Section 22.2. Performance under this Agreement...................... 41
Section 22.3. Waivers............................................... 41
Section 22.4. Certain Waivers of Subrogation, Reimbursement and
Indemnity.......................................... 42
Section 22.5. Releases.............................................. 42
Section 22.6. Marshaling............................................ 43
Section 22.7. Liability............................................. 43
Section 22.8. Character of Obligation............................... 44
Section 22.9. Election to Perform Obligations....................... 45
Section 22.10. No Election........................................... 45
Section 22.11. Severability.......................................... 46
Section 22.12. Other Enforcement Rights.............................. 46
Section 22.13. Delay or Omission; No Waiver.......................... 46
Section 22.14. Restoration of Rights and Remedies.................... 46
Section 22.15. Cumulative Remedies................................... 46
Section 22.16. Survival.............................................. 46
Section 22.17. Miscellaneous......................................... 46
Section 22.18. Limitation............................................ 47
Section 22.19. Written Notice........................................ 47
SECTION 23. MISCELLANEOUS................................................ 47
Section 23.1. Successors and Assigns................................ 47
Section 23.2. Payments Due on Non-Business Days..................... 47
Section 23.3. Accounting Terms...................................... 48
Section 23.4. Severability.......................................... 48
Section 23.5. Construction, etc..................................... 48
Section 23.6. Counterparts.......................................... 48
Section 23.7. Governing Law......................................... 49
Section 23.8. Jurisdiction and Process; Waiver of Jury Trial........ 49
Signature................................................................ 50
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SCHEDULE A -- INFORMATION RELATING TO PURCHASERS
SCHEDULE B -- DEFINED TERMS
SCHEDULE 5.4 -- Subsidiaries of the Company and Ownership of Subsidiary Stock
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.8 -- Litigation
SCHEDULE 5.15 -- Existing Indebtedness
EXHIBIT 1 -- Form of 5.39% Senior Guaranteed Note due September 30, 2012
EXHIBIT 4.4(a) -- Form of Opinion of Special Counsel for the Company
EXHIBIT 4.4(b) -- Form of Opinion of Special Counsel for the Purchasers
EXHIBIT 4.14 -- Form of Intercreditor Agreement
EXHIBIT 9.7. -- Form of Joinder Agreement
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eFUNDS CORPORATION
0000 X. Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
$100,000,000 5.39% Senior Guaranteed Notes due September 30, 2012
As of September 30, 2005
TO EACH OF THE PURCHASERS LISTED IN
SCHEDULE A HERETO:
Ladies and Gentlemen:
eFunds Corporation, a Delaware corporation (the "COMPANY"), and each of the
Guarantors which are party hereto from time to time, jointly and severally,
agree with each of the purchasers whose names appear at the end hereof (each, a
"PURCHASER" and, collectively, the "PURCHASERS") as follows:
SECTION 1. AUTHORIZATION OF NOTES.
The Company will authorize the issue and sale of $100,000,000 aggregate
principal amount of its 5.39% Senior Guaranteed Notes due September 30, 2012
(the "NOTES," such term to include any such notes issued in substitution
therefor pursuant to Section 13). The Notes shall be substantially in the form
set out in Exhibit 1. Certain capitalized and other terms used in this Agreement
are defined in Schedule B; and references to a "Schedule" or an "Exhibit" are,
unless otherwise specified, to a Schedule or an Exhibit attached to this
Agreement.
Payment of the principal of, Make-Whole Amount and interest on the Notes
and the other amounts owing hereunder and under the other Financing Agreements
(a) shall be unconditionally guaranteed, jointly and severally, by the
Guarantors pursuant to the Guarantee Agreement and (b) subject to the terms and
conditions of Sections 9.8 and 10.5(n), may be secured by the Collateral. In
addition, pursuant to the terms of the Intercreditor Agreement, the holders of
the Notes and the Lenders under the Bank Credit Agreement have agreed, among
other things, to share on a pari passu basis, in the manner set forth therein,
the proceeds arising from (i) any Guaranty given by the Company's Subsidiaries
in support of the Company's obligations under the Financing Agreements and the
Bank Credit Agreement (and the other Loan Documents as defined in the Bank
Credit Agreement) and/or (ii) any Collateral.
eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
SECTION 2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the Company will
issue and sell to each Purchaser and each Purchaser will purchase from the
Company, at the Closing provided for in Section 3, Notes in the principal amount
specified opposite such Purchaser's name in Schedule A at the purchase price of
100% of the principal amount thereof. The Purchasers' obligations hereunder are
several and not joint obligations and no Purchaser shall have any liability to
any Person for the performance or non-performance of any obligation by any other
Purchaser hereunder.
SECTION 3. CLOSING.
The sale and purchase of the Notes to be purchased by each Purchaser shall
occur at the offices of Xxxxxxx and Xxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, at 10:00 a.m., Chicago time, at a closing (the "CLOSING") on
September 30, 2005 or on such other Business Day thereafter on or prior to
October 3, 2005 as may be agreed upon by the Company and the Purchasers. At the
Closing, the Company will deliver to each Purchaser the Notes to be purchased by
such Purchaser in the form of a single Note (or such greater number of Notes in
denominations of at least $100,000 as such Purchaser may request) dated the date
of the Closing and registered in such Purchaser's name (or in the name of its
nominee), against delivery by such Purchaser to the Company or its order of
immediately available funds in the amount of the purchase price therefor by wire
transfer of immediately available funds for the account of the Company to
account number 656417870 at JPMorgan Chase Bank, N.A., 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000, ABA Number 000000000. If at the Closing the Company
shall fail to tender such Notes to any Purchaser as provided above in this
Section 3, or any of the conditions specified in Section 4 shall not have been
fulfilled to such Purchaser's satisfaction, such Purchaser shall, at its
election, be relieved of all further obligations under this Agreement, without
thereby waiving any rights such Purchaser may have by reason of such failure or
such nonfulfillment.
SECTION 4. CONDITIONS TO CLOSING.
Each Purchaser's obligation to purchase and pay for the Notes to be sold to
such Purchaser at the Closing is subject to the fulfillment to such Purchaser's
satisfaction, prior to or at the Closing, of the following conditions:
SECTION 4.1. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Obligors in this Agreement and the other Financing Agreements
to which they are a party shall be correct when made and at the time of the
Closing.
SECTION 4.2. PERFORMANCE; NO DEFAULT. The Obligors shall have performed and
complied with all agreements and conditions contained in this Agreement required
to be performed or complied with by each of them prior to or at the Closing and
after giving effect to the issue and sale of the Notes (and the application of
the proceeds thereof as contemplated by Section 5.14) no Default or Event of
Default shall have occurred and be continuing. Neither any Obligor nor any
Subsidiary shall have entered into any transaction since the date of the
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eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
Memorandum that would have been prohibited by Sections 10.1, 10.2 and 10.5
through 10.11, inclusive, had such Sections applied since such date.
SECTION 4.3. COMPLIANCE CERTIFICATES.
(a) Officer's Certificate. Each Obligor shall have delivered to such
Purchaser an Officer's Certificate, dated the date of the Closing, certifying
that the conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b) Secretary's Certificate. Each Obligor shall have delivered to such
Purchaser a certificate of its Secretary or Assistant Secretary, dated the date
of the Closing, certifying as to the resolutions attached thereto and other
corporate proceedings relating to the authorization, execution and delivery of
the Financing Agreements to which it is a party.
SECTION 4.4. OPINIONS OF COUNSEL. Such Purchaser shall have received
opinions in form and substance satisfactory to such Purchaser, dated the date of
the Closing (a) from each of the General Counsel of the Company and Xxxxxx &
Xxxxxxx LLP, special counsel to the Company, covering the matters set forth in
Exhibit 4.4(a) and covering such other matters incident to the transactions
contemplated hereby as such Purchaser or its counsel may reasonably request (and
the Company hereby instructs such counsels to deliver such opinions to the
Purchasers) and (b) from Xxxxxxx and Xxxxxx LLP, the Purchasers' special counsel
in connection with such transactions, substantially in the form set forth in
Exhibit 4.4(b) and covering such other matters incident to such transactions as
such Purchaser may reasonably request.
SECTION 4.5. PURCHASE PERMITTED BY APPLICABLE LAW, ETC. On the date of the
Closing such Purchaser's purchase of Notes shall (a) be permitted by the laws
and regulations of each jurisdiction to which such Purchaser is subject, without
recourse to provisions (such as section 1405(a)(8) of the New York Insurance
Law) permitting limited investments by insurance companies without restriction
as to the character of the particular investment, (b) not violate any applicable
law or regulation (including, without limitation, Regulation T, U or X of the
Board of Governors of the Federal Reserve System) and (c) not subject such
Purchaser to any tax, penalty or liability under or pursuant to any applicable
law or regulation, which law or regulation was not in effect on the date hereof.
If requested by such Purchaser, such Purchaser shall have received an Officer's
Certificate certifying as to such matters of fact as such Purchaser may
reasonably specify to enable such Purchaser to determine whether such purchase
is so permitted.
SECTION 4.6. SALE OF OTHER NOTES. Contemporaneously with the Closing the
Company shall sell to each other Purchaser and each other Purchaser shall
purchase the Notes to be purchased by it at the Closing as specified in Schedule
A.
SECTION 4.7. PAYMENT OF SPECIAL COUNSEL FEES. Without limiting the
provisions of Section 15.1, the Company shall have paid on or before the Closing
the fees, charges and disbursements of the Purchasers' special counsel referred
to in Section 4.4 to the extent reflected in a statement of such counsel
rendered to the Company at least one Business Day prior to the Closing.
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eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
SECTION 4.8. PRIVATE PLACEMENT NUMBER. A Private Placement Number issued by
Standard & Poor's CUSIP Service Bureau (in cooperation with the Securities
Valuation Office of the National Association of Insurance Commissioners) shall
have been obtained for the Notes.
SECTION 4.9. CHANGES IN CORPORATE STRUCTURE. No Obligor shall have changed
its jurisdiction of incorporation or organization, as applicable, or been a
party to any merger or consolidation or succeeded to all or any substantial part
of the liabilities of any other entity, at any time following the date of the
most recent financial statements referred to in Schedule 5.5, other than the
WildCard Acquisition as described in the Memorandum, including Section 1
thereof, and the other acquisitions described in Section 2 of the Memorandum.
SECTION 4.10. FUNDING INSTRUCTIONS. At least three Business Days prior to
the date of the Closing, each Purchaser shall have received written instructions
signed by a Senior Financial Officer on letterhead of the Company confirming the
information specified in Section 3 including (i) the name and address of the
transferee bank, (ii) such transferee bank's ABA number and (iii) the account
name and number into which the purchase price for the Notes is to be deposited.
SECTION 4.11. PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated by the Financing
Agreements and all documents and instruments incident to such transactions shall
be satisfactory to such Purchaser and its special counsel, and such Purchaser
and its special counsel shall have received all such counterpart originals or
certified or other copies of such documents as such Purchaser or such special
counsel may reasonably request.
SECTION 4.12. CONSENT OF ADMINISTRATIVE AGENT UNDER BANK CREDIT AGREEMENT.
The Company shall have obtained and provided a copy thereof to each Purchaser,
the written consent of the administrative agent under the Bank Credit Agreement
with respect to the transactions contemplated by this Agreement.
SECTION 4.13. GUARANTEE AGREEMENT. Each Subsidiary that qualifies as a
Guarantor on the date of Closing pursuant to the terms of Section 9.7 shall have
executed and delivered this Agreement, and this Agreement shall be in full force
and effect with respect to such Guarantors.
SECTION 4.14. INTERCREDITOR AGREEMENT. The Administrative Agent, on behalf
of itself and the Lenders, each of the Purchasers and the Collateral Agent shall
have executed and delivered (and each Obligor as of the date of Closing shall
have executed and delivered a consent and agreement to) the Intercreditor
Agreement substantially in the form of Exhibit 4.14 (as amended, restated,
supplemented or modified from time to time, the "INTERCREDITOR AGREEMENT"), and
the Intercreditor Agreement shall be in full force and effect.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE OBLIGORS.,
The Obligors, jointly and severally, represent and warrant to each
Purchaser that:
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eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
SECTION 5.1. ORGANIZATION; POWER AND AUTHORITY. Each Obligor is a
corporation, limited liability company or partnership, as applicable, duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, organization or formation, as applicable, and is
duly qualified as a foreign corporation, limited liability company or
partnership, as applicable, and is in good standing in each jurisdiction in
which such qualification is required by law, other than those jurisdictions as
to which the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each Obligor has the corporate, limited liability company or
partnership power and authority to own or hold under lease the properties it
purports to own or hold under lease, to transact the business it transacts and
proposes to transact, to execute and deliver the Financing Agreements to which
it is a party, and to perform the provisions thereof.
SECTION 5.2. AUTHORIZATION, ETC. The Financing Agreements have been duly
authorized by all necessary corporate, limited liability company or partnership
action on the part of each Obligor party thereto, and this Agreement and the
Guarantee Agreement constitute, and upon execution and delivery thereof each
Note and other Financing Agreement will constitute, a legal, valid and binding
obligation of each Obligor party hereto and/or thereto, as the case may be,
enforceable against such Obligor in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
SECTION 5.3. DISCLOSURE. The Company, through its agent, X.X. Xxxxxx
Securities Inc., has delivered to each Purchaser a copy of a Private Placement
Memorandum, dated September, 2005 (the "MEMORANDUM"), relating to the
transactions contemplated hereby. This Agreement, the Memorandum and the
financial statements delivered to the Purchasers by or on behalf of the Obligors
in connection with the transactions contemplated hereby and identified in
Schedule 5.5 (this Agreement, the Memorandum and such financial statements
delivered to each Purchaser prior to September 20, 2005 being referred to,
collectively, as the "DISCLOSURE DOCUMENTS") fairly describe, in all material
respects, the general nature of the business and principal properties of the
Company and its Subsidiaries, taken as a whole. The Disclosure Documents, taken
as a whole, do not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not misleading
in light of the circumstances under which they were made. Except as disclosed in
the Disclosure Documents, since December 31, 2004, there has been no change in
the financial condition, operations, business, properties or prospects of any
Obligor or any Subsidiary except changes that individually or in the aggregate
could not reasonably be expected to have a Material Adverse Effect. There is no
fact known to any Obligor that could reasonably be expected to have a Material
Adverse Effect that has not been set forth herein or in the Disclosure
Documents.
SECTION 5.4. ORGANIZATION AND OWNERSHIP OF SHARES OF SUBSIDIARIES;
AFFILIATES. (a) Schedule 5.4 contains (except as noted therein) complete and
correct lists (i) of the Company's Subsidiaries, showing, as to each Subsidiary,
the correct name thereof, the jurisdiction of its organization, and the
percentage of shares of each class of its capital stock or similar equity
interests outstanding owned by the Company and each other Subsidiary and whether
such Subsidiary will on the date of the Closing be a Guarantor and Obligor under
this
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eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
Agreement and (ii) of the Company's directors and senior officers. There are no
Persons that are Affiliates of the Company which are not Subsidiaries.
(b) All of the outstanding shares of capital stock or similar equity
interests of each Subsidiary shown in Schedule 5.4 as being owned by the Company
and its Subsidiaries have been validly issued, are fully paid and nonassessable
and are owned by the Company or another Subsidiary free and clear of any Lien
(except as otherwise disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a corporation or other
legal entity duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization, and is duly qualified as a foreign
corporation or other legal entity and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each such Subsidiary has the corporate or other power and
authority to own or hold under lease the properties it purports to own or hold
under lease and to transact the business it transacts and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject to any legal,
regulatory, contractual or other restriction (other than the Bank Credit
Agreement, the Financing Agreements, the agreements listed on Schedule 5.4 and
limitations imposed by corporate law or similar statutes or by applicable
regulatory or taxing authorities) restricting the ability of such Subsidiary to
pay dividends out of profits or make any other similar distributions of profits
to the Company or any of its Subsidiaries that owns outstanding shares of
capital stock or similar equity interests of such Subsidiary.
SECTION 5.5. FINANCIAL STATEMENTS; MATERIAL LIABILITIES. The Company or
X.X. Xxxxxx Securities Inc., as agent for the Company, has delivered to each
Purchaser copies of the financial statements of the Company and its Subsidiaries
listed on Schedule 5.5. All of said financial statements (including in each case
the related schedules and notes) fairly present in all material respects the
consolidated financial position of the Company and its Subsidiaries as of the
respective dates specified in such Schedule and the consolidated results of
their operations and cash flows for the respective periods so specified and have
been prepared in accordance with GAAP consistently applied throughout the
periods involved except as set forth in the notes thereto (subject, in the case
of any interim financial statements, to normal year-end adjustments and absence
of footnotes). The Company and its Subsidiaries do not have any Material
contingent obligations that are not disclosed on such financial statements or
otherwise disclosed in the Disclosure Documents.
SECTION 5.6. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC. The execution,
delivery and performance by each Obligor of the Financing Agreements to which it
is a party will not (i) contravene, result in any breach of, or constitute a
default under, or (except with respect to any Collateral created pursuant to the
terms of the Financing Agreements) result in the creation of any Lien in respect
of any property of such Obligor or any Subsidiary under, any indenture,
mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate
charter or by-laws, or any other agreement or instrument to which such Obligor
or any Subsidiary is bound or by which such Obligor or any Subsidiary or any of
their respective properties may be bound or
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eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
affected, (ii) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of any court,
arbitrator or Governmental Authority applicable to such Obligor or any
Subsidiary or (iii) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to such Obligor or any
Subsidiary.
SECTION 5.7. GOVERNMENTAL AUTHORIZATIONS, ETC. No consent, approval or
authorization of, or registration, filing or declaration with, any Governmental
Authority is required in connection with the execution, delivery or performance
by any Obligor of the Financing Agreements to which it is a party other than
Form 8-K filings to be filed with the SEC within five Business Days after the
Closing (and the failure to make such filing would not affect the legality,
validity or enforceability of the Financing Agreements against the Obligors).
SECTION 5.8. LITIGATION; OBSERVANCE OF AGREEMENTS, STATUTES AND ORDERS.
Except as set forth in Schedule 5.8:
(a) there are no actions, suits, investigations or proceedings pending or,
to the knowledge of any Obligor, threatened against or affecting such Obligor or
any Subsidiary or any property of such Obligor or any Subsidiary in any court or
before any arbitrator of any kind or before or by any Governmental Authority
that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect; and
(b) neither any Obligor nor any Subsidiary is in default under any term of
any agreement or instrument to which it is a party or by which it is bound, or
any order, judgment, decree or ruling of any court, arbitrator or Governmental
Authority or is in violation of any applicable law, ordinance, rule or
regulation (including without limitation Environmental Laws or the USA Patriot
Act) of any Governmental Authority, which default or violation, individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
SECTION 5.9. TAXES. To the extent a failure to do so could reasonably be
expected to result in a Material Adverse Effect, each Obligor and its
Subsidiaries have filed all tax returns that are required to have been filed in
any jurisdiction, and have paid all taxes shown to be due and payable on such
returns and all other taxes and assessments levied upon them or their
properties, assets, income or franchises, to the extent such taxes and
assessments have become due and payable and before they have become delinquent,
except for any taxes and assessments the amount, applicability or validity of
which is currently being contested in good faith by appropriate proceedings and
with respect to which such Obligor or a Subsidiary, as the case may be, has
established adequate reserves in accordance with GAAP. No Obligor knows of any
basis for any other tax or assessment that could reasonably be expected to have
a Material Adverse Effect. The Federal income tax liabilities of each Obligor
and its Subsidiaries have been finally determined (whether by reason of
completed audits or the statute of limitations having run) for all fiscal years
up to and including the fiscal year ended December 31, 2001.
SECTION 5.10. TITLE TO PROPERTY; LEASES. Each Obligor and its Subsidiaries
have good and sufficient title to their respective properties that individually
or in the aggregate are Material, including all such properties reflected in the
most recent audited balance sheet referred to in Section 5.5 or purported to
have been acquired by any Obligor or any Subsidiary after said date
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eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
(except as sold or otherwise disposed of in the ordinary course of business), in
each case free and clear of Liens prohibited by the Financing Agreements. All
leases that individually or in the aggregate are Material are valid and
subsisting and are in full force and effect in all material respects.
SECTION 5.11. LICENSES, PERMITS, ETC. (a) Each Obligor and its Subsidiaries
own or are licensed to use all patents, copyrights, service marks, trademarks
and trade names, or rights thereto, that individually or in the aggregate are
Material and no Obligor or Subsidiary is infringing upon the intellectual
property rights of any other Person, except for such infringements that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
(b) To the actual knowledge of any Responsible Officer of each Obligor,
there is no Material violation by any Person of any right of such Obligor or any
of its Subsidiaries with respect to any patent, copyright, proprietary software,
service xxxx, trademark, trade name or other right owned or used by such Obligor
or any of its Subsidiaries.
SECTION 5.12. ERISA AND EMPLOYEE BENEFITS. (a) Neither the Company nor any
ERISA Affiliate maintains, contributes to, or is obligated to maintain or
contribute to, or has, at any time within the past six years, maintained,
contributed to or been obligated to maintain or contribute to, any Plan or
Multiemployer Plan.
(b) The expected postretirement benefit obligation (determined as of the
last day of the Company's most recently ended fiscal year in accordance with
Financial Accounting Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated by section 4980B of
the Code) of the Obligors and their Subsidiaries is not Material.
(c) The execution and delivery of this Agreement and the Guarantee
Agreement and the issuance and sale of the Notes hereunder will not involve any
transaction that is subject to the prohibitions of section 406 of ERISA or in
connection with which a tax could be imposed pursuant to section
4975(c)(1)(A)-(D) of the Code. The representation by the Obligors to each
Purchaser in the first sentence of this Section 5.12(e) is made in reliance upon
and subject to the accuracy of such Purchaser's representation in Section 6.2 as
to the sources of the funds used to pay the purchase price of the Notes to be
purchased by such Purchaser.
SECTION 5.13. PRIVATE OFFERING BY THE OBLIGORS. Neither any Obligor nor
anyone acting on its behalf has offered the Notes or the Guarantee Agreement or
any similar securities for sale to, or solicited any offer to buy any of the
same from, or otherwise approached or negotiated in respect thereof with, any
person other than the Purchasers and not more than 30 other Institutional
Investors, each of which has been offered the Notes at a private sale for
investment. Neither any Obligor nor anyone acting on its behalf has taken, or
will take, any action that would subject the issuance or sale of the Notes and
the Guarantee Agreement to the registration requirements of Section 5 of the
Securities Act or to the registration requirements of any securities or blue sky
laws of any applicable jurisdiction.
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eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
SECTION 5.14. USE OF PROCEEDS; MARGIN REGULATIONS. The Company will apply
the proceeds of the sale of the Notes to refinance and permanently retire
outstanding Indebtedness under the Loan Agreement dated as of July 1, 2005
entered into among the Company, the certain lenders party thereto and JPMorgan
Chase Bank, N.A., as administrative agent, and for general corporate purposes.
No part of the proceeds from the sale of the Notes hereunder will be used,
directly or indirectly, for the purpose of buying or carrying any margin stock
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System (12 CFR 221), or for the purpose of buying or carrying or trading
in any securities under such circumstances as to involve the Company in a
violation of Regulation X of said Board (12 CFR 224) or to involve any broker or
dealer in a violation of Regulation T of said Board (12 CFR 220). Margin stock
does not constitute more than 5.0% of the value of the consolidated assets of
any Obligor and its Subsidiaries and no Obligor has any present intention that
margin stock will constitute more than 5.0% of the value of such assets. As used
in this Section, the terms "MARGIN STOCK" and "PURPOSE OF BUYING OR CARRYING"
shall have the meanings assigned to them in said Regulation U.
SECTION 5.15. EXISTING INDEBTEDNESS; FUTURE LIENS. (a) Except as described
therein, Schedule 5.15 sets forth a complete and correct list of all outstanding
Indebtedness of each Obligor and its Subsidiaries as of July 1, 2005 (including
a description of the obligors and obligees, principal amount outstanding and
collateral therefor, if any, and Guaranty thereof, if any), since which date
there has been no Material change in the amounts, interest rates, sinking funds,
installment payments or maturities of the Indebtedness of such Obligor or its
Subsidiaries. Neither any Obligor nor any Subsidiary is in default and no waiver
of default is currently in effect, in the payment of any principal or interest
on any Indebtedness of such Obligor or such Subsidiary and no event or condition
exists with respect to any Indebtedness of any Obligor or any Subsidiary that
would permit (or that with notice or the lapse of time, or both, would permit)
one or more Persons to cause such Indebtedness to become due and payable before
its stated maturity or before its regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15, neither any Obligor nor any
Subsidiary has agreed or consented to cause or permit in the future (upon the
happening of a contingency or otherwise) any of its property, whether now owned
or hereafter acquired, to be subject to a Lien not permitted by Section 10.5.
(c) Neither any Obligor nor any Subsidiary is a party to, or otherwise
subject to any provision contained in, any instrument evidencing Indebtedness of
such Obligor or such Subsidiary, any agreement relating thereto or any other
agreement (including, but not limited to, its charter or other organizational
document) which limits the amount of, or otherwise imposes restrictions on the
incurring of, Indebtedness of such Obligor, other than the Bank Credit Agreement
and the Financing Agreements.
SECTION 5.16. FOREIGN ASSETS CONTROL REGULATIONS, ETC. (a) Neither the sale
of the Notes by the Company hereunder nor the Guaranty by the Guarantors under
the Guarantee Agreement nor their use of the proceeds thereof will violate the
Trading with the Enemy Act, as amended, or any of the foreign assets control
regulations of the United States Treasury
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eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto.
(b) Neither any Obligor nor any Subsidiary (i) is a Person described or
designated in the Specially Designated Nationals and Blocked Persons List of the
Office of Foreign Assets Control or in Section 1 of the Anti-Terrorism Order or
(ii) to the actual knowledge of any Responsible Officer of any Obligor, engages
in any material dealings or transactions with any such Person. Each Obligor and
its Subsidiaries are in compliance, in all material respects, with the USA
Patriot Act.
(c) No part of the proceeds from the sale of the Notes hereunder will be
used, directly or indirectly, for any payments to any governmental official or
employee, political party, official of a political party, candidate for
political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in violation
of the United States Foreign Corrupt Practices Act of 1977, as amended, assuming
in all cases that such Act applies to the Obligors.
SECTION 5.17. STATUS UNDER CERTAIN STATUTES. Neither any Obligor nor any
Subsidiary is subject to regulation under the Investment Company Act of 1940, as
amended, the Public Utility Holding Company Act of 1935, as amended, the ICC
Termination Act of 1995, as amended, or the Federal Power Act, as amended.
SECTION 5.18. ENVIRONMENTAL MATTERS. (a) Neither any Obligor nor any
Subsidiary has knowledge of any claim or has received any notice of any claim,
and no proceeding has been instituted raising any claim against such Obligor or
any of its Subsidiaries or any of their respective real properties now or
formerly owned, or, to the actual knowledge of any Responsible Officer of any
Obligor, leased or operated by any of them or other assets, alleging any damage
to the environment or violation of any Environmental Laws, except, in each case,
such as could not reasonably be expected to result in a Material Adverse Effect.
(b) No Responsible Officer of any Obligor has actual knowledge of any facts
which would give rise to any claim, public or private, of violation of
Environmental Laws or damage to the environment emanating from, occurring on or
in any way related to real properties now or formerly owned, leased or operated
by such Obligor or any Subsidiary or to other assets or their use, except, in
each case, such as could not reasonably be expected to result in a Material
Adverse Effect.
(c) Neither any Obligor nor any Subsidiary has, to the actual knowledge of
any Responsible Officer of any Obligor, stored any Hazardous Materials on real
properties now or formerly owned, leased or operated by any of them and has not
disposed of any Hazardous Materials in a manner contrary to any Environmental
Laws in each case in any manner that could reasonably be expected to result in a
Material Adverse Effect; and
(d) All buildings on all real properties now owned, leased or operated by
each Obligor or any Subsidiary are (to the actual knowledge of any Responsible
Officer of any Obligor with respect to such leased or operated real properties)
in compliance with applicable Environmental
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eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
Laws, except where failure to comply could not reasonably be expected to result
in a Material Adverse Effect.
SECTION 5.19. PARI PASSU RANKING. Except for Indebtedness specifically
identified as such on Schedule 5.15, the Company's obligations under the
Financing Agreements will, upon issuance of the Notes, rank at least pari passu,
without preference or priority, with all of its other outstanding unsubordinated
unsecured Indebtedness (including, without limitation, the Bank Credit Agreement
and the other Loan Documents). Except for Indebtedness specifically identified
as such on Schedule 5.15, each Obligor's (other than the Company) obligations
under the Financing Agreements will, upon issuance thereof, rank at least pari
passu, without preference or priority, with all of such Obligor's other
outstanding unsubordinated unsecured Indebtedness (including, without
limitation, the Bank Credit Agreement and the other Loan Documents). Each Person
which is a borrower, guarantor or other obligor, in each case, under the Bank
Credit Agreement and the other Loan Documents is an Obligor under the Financing
Agreements. No Subsidiary or Affiliate has provided, directly or indirectly, any
security, collateral or other credit enhancement in respect of the Bank Credit
Agreement and the other Loan Documents which has not been provided to the
Purchasers.
SECTION 6. REPRESENTATIONS OF THE PURCHASERS.
SECTION 6.1. PURCHASE FOR INVESTMENT. Each Purchaser severally represents
that it is an "accredited investor" within the meaning of subparagraph (a) of
Rule 501 promulgated pursuant to the Securities Act. Each Purchaser severally
represents that it is purchasing the Notes for its own account or for one or
more separate accounts maintained by such Purchaser or for the account of one or
more pension or trust funds, each of which is also an "accredited investor", and
not with a view to the distribution thereof, provided that the disposition of
such Purchaser's or their property shall at all times be within such Purchaser's
or their control. Each Purchaser understands that the Notes and the Guarantee
Agreement have not been registered under the Securities Act and may be resold
only if registered pursuant to the provisions of the Securities Act or if an
exemption from registration is available, except under circumstances where
neither such registration nor such an exemption is required by law, and that the
Obligors are not required to register the Notes or the Guarantee Agreement.
SECTION 6.2. SOURCE OF FUNDS. Each Purchaser severally represents that at
least one of the following statements is an accurate representation as to each
source of funds (a "SOURCE") to be used by such Purchaser to pay the purchase
price of the Notes to be purchased by such Purchaser hereunder:
(a) the Source is an "insurance company general account" (as the term
is defined in the United States Department of Labor's Prohibited
Transaction Exemption ("PTE") 95-60) in respect of which the reserves and
liabilities (as defined by the annual statement for life insurance
companies approved by the National Association of Insurance Commissioners
(the "NAIC ANNUAL STATEMENT")) for the general account contract(s) held by
or on behalf of any employee benefit plan together with the amount of the
reserves and liabilities for the general account contract(s) held by or on
behalf of any other employee benefit plans maintained by the same employer
(or affiliate thereof as
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eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
defined in PTE 95-60) or by the same employee organization in the general
account do not exceed 10% of the total reserves and liabilities of the
general account (exclusive of separate account liabilities) plus surplus as
set forth in the NAIC Annual Statement filed with such Purchaser's state of
domicile; or
(b) the Source is a separate account that is maintained solely in
connection with such Purchaser's fixed contractual obligations under which
the amounts payable, or credited, to any employee benefit plan (or its
related trust) that has any interest in such separate account (or to any
participant or beneficiary of such plan (including any annuitant)) are not
affected in any manner by the investment performance of the separate
account; or
(c) the Source is either (i) an insurance company pooled separate
account, within the meaning of PTE 90-1 or (ii) a bank collective
investment fund, within the meaning of the PTE 91-38 and, except as
disclosed by such Purchaser to the Company in writing pursuant to this
clause (c), no employee benefit plan or group of plans maintained by the
same employer or employee organization beneficially owns more than 10% of
all assets allocated to such pooled separate account or collective
investment fund; or
(d) the Source constitutes assets of an "investment fund" (within the
meaning of Part V of PTE 84-14 (the "QPAM EXEMPTION")) managed by a
"qualified professional asset manager" or "QPAM" (within the meaning of
Part V of the QPAM Exemption), no employee benefit plan's assets that are
included in such investment fund, when combined with the assets of all
other employee benefit plans established or maintained by the same employer
or by an affiliate (within the meaning of Section V(c)(1) of the QPAM
Exemption) of such employer or by the same employee organization and
managed by such QPAM, exceed 20% of the total client assets managed by such
QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are
satisfied, neither the QPAM nor a person controlling or controlled by the
QPAM (applying the definition of "control" in Section V(e) of the QPAM
Exemption) owns a 5% or more interest in the Company and (i) the identity
of such QPAM and (ii) the names of all employee benefit plans whose assets
are included in such investment fund have been disclosed to the Company in
writing pursuant to this clause (d); or
(e) the Source constitutes assets of a "plan(s)" (within the meaning
of Section IV of PTE 96-23 (the "INHAM EXEMPTION")) managed by an "in-house
asset manager" or "INHAM" (within the meaning of Part IV of the INHAM
exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption
are satisfied, neither the INHAM nor a person controlling or controlled by
the INHAM (applying the definition of "control" in Section IV(d) of the
INHAM Exemption) owns a 5% or more interest in the Company and (i) the
identity of such INHAM and (ii) the name(s) of the employee benefit plan(s)
whose assets constitute the Source have been disclosed to the Company in
writing pursuant to this clause (e); or
(f) the Source is a governmental plan; or
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eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
(g) the Source is one or more employee benefit plans, or a separate
account or trust fund comprised of one or more employee benefit plans, each
of which has been identified to the Company in writing pursuant to this
clause (g); or
(h) the Source does not include assets of any employee benefit plan,
other than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "EMPLOYEE BENEFIT PLAN," "GOVERNMENTAL
PLAN," and "SEPARATE ACCOUNT" shall have the respective meanings assigned to
such terms in section 3 of ERISA.
SECTION 7. INFORMATION AS TO COMPANY.
SECTION 7.1. FINANCIAL AND BUSINESS INFORMATION. The Obligors shall deliver
to each holder of Notes that is an Institutional Investor:
(a) Quarterly Statements -- within 60 days after the end of each
quarterly fiscal period in each fiscal year of the Company, other than the
last quarterly fiscal period of each such fiscal year, copies of,
(i) a consolidated balance sheet of the Company as at the end of
such quarter, and
(ii) consolidated statements of income and cash flows of the
Company, for such quarter and (in the case of the second and third
quarters) for the portion of the fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly financial
statements generally, and certified by a Senior Financial Officer as fairly
presenting, in all material respects, the financial position of the
companies being reported on and their results of operations and cash flows,
subject to changes resulting from year-end adjustments, provided that
delivery within the time period specified above of copies of the Company's
Quarterly Report on Form 10-Q (the "FORM 10-Q") prepared in compliance with
the requirements therefor and filed with the SEC shall be deemed to satisfy
the requirements of this Section 7.1(a), provided, further, that the
Company shall be deemed to have made such delivery of such Form 10-Q if it
shall have timely made such Form 10-Q available (x) on "XXXXX" (or similar
service that the Company has confirmed in writing is accessible by each
holder of Notes) or (y) on its home page on the worldwide web (at the date
of this Agreement located at: http//xxx.xxxxxx.xxx) and shall have given
each Purchaser prior notice (which such notice may be made by electronic
mail or facsimile to a holder of Notes provided such holder has made
available a means for such communication as set forth in its Schedule A) of
such availability on, and instructions for access to, XXXXX, its home page
or any of the similar referenced sources in connection with each delivery
(such availability and notice thereof being referred to as "ELECTRONIC
DELIVERY");
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eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
(b) Annual Statements -- within 90 days after the end of each fiscal
year of the Company, copies of
(i) a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such year, and
(ii) consolidated statements of income, changes in shareholders'
equity and cash flows of the Company and its Subsidiaries for such
year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on by KPMG LLP or other independent public
accountants of recognized national standing (without a "going concern" or
like qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of the Company and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied and the report of such accountants shall further state that their
examination in connection with such financial statements has been made in
accordance with the standards of the Public Company Accounting Oversight
Board (United States), provided that the delivery within the time period
specified above of the Company's Annual Report on Form 10-K (the "FORM 10-
K") for such fiscal year prepared in accordance with the requirements
therefor and filed with the SEC, shall be deemed to satisfy the
requirements of this Section 7.1(b), provided, further, that the Company
shall be deemed to have made such delivery of such Form 10-K if it shall
have timely made Electronic Delivery thereof;
(c) SEC and Other Reports -- promptly upon their becoming available,
one copy of (i) each financial statement, report, notice or proxy statement
sent by any Obligor or any Subsidiary to its principal lending banks as a
whole (excluding information sent to such banks in the ordinary course of
administration of a bank facility, such as information relating to pricing,
borrowing availability and certificates as to covenant compliance) or to
its public securities holders generally, including, without limitation, its
annual report to shareholders, if any, prepared pursuant to Rule 14a-3
under the Exchange Act, and (ii) each regular or periodic report, each
registration statement (without exhibits except as expressly requested by
such holder), and other materials filed by any Obligor or any Subsidiary
with the SEC, provided, that an Obligor shall be deemed to have made
delivery of the documents in this Section 7.1(c) if it shall have timely
made Electronic Delivery thereof;
(d) Notice of Default or Event of Default -- promptly, and in any
event within five Business Days after a Senior Financial Officer of an
Obligor becomes aware of the existence of any Default or Event of Default
or that any Person has given any notice or taken any action with respect to
a claimed default hereunder or that any Person has given any notice or
taken any action with respect to a claimed default of the type referred to
in Section 11(f), a notice specifying the nature and period of existence
thereof (and whether or not the Obligors agree that any claimed default
constitutes a Default or Event of
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eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
Default hereunder) and what action the Obligors are taking or proposes to
take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within five days after
a Senior Financial Officer of an Obligor becoming aware of any of the
following, a notice setting forth the nature thereof and the action, if
any, that such Obligor or an ERISA Affiliate proposes to take with respect
thereto:
(i) with respect to any Plan, any reportable event, as defined in
section 4043(c) of ERISA and the regulations thereunder, for which
notice thereof has not been waived pursuant to such regulations as in
effect on the date hereof; or
(ii) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of, proceedings under
section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by such Obligor or any
ERISA Affiliate of a notice from a Multi-employer Plan that such
action has been taken by the PBGC with respect to such Multiemployer
Plan; or
(iii) any event, transaction or condition that could result in
the incurrence of any liability by such Obligor or any ERISA Affiliate
pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans, or in the
imposition of any Lien on any of the rights, properties or assets of
such Obligor or any ERISA Affiliate pursuant to Title I or IV of ERISA
or such penalty or excise tax provisions, if such liability or Lien,
taken together with any other such liabilities or Liens then existing,
could reasonably be expected to have a Material Adverse Effect;
(f) Notices from Governmental Authority -- promptly, and in any event
within 30 days of receipt thereof, copies of any notice to any Obligor or
any Subsidiary from any Federal or state Governmental Authority relating to
any order, ruling, statute or other law or regulation that could reasonably
be expected to have a Material Adverse Effect; and
(g) Requested Information -- with reasonable promptness, such other
data and information relating to the business, operations, affairs,
financial condition, assets or properties of any Obligor or any of its
Subsidiaries (including, but without limitation, actual copies of the
Company's Form 10-Q and Form 10-K) or relating to the ability of any
Obligor to perform its obligations hereunder and (in the case of the
Company) under the Notes as from time to time may be reasonably requested
by any such holder of Notes.
SECTION 7.2. OFFICER'S CERTIFICATE. Each set of financial statements
delivered to a holder of Notes pursuant to Section 7.1(a) or Section 7.1(b)
shall be accompanied by a certificate of a Senior Financial Officer of the
Company setting forth (which, in the case of Electronic Delivery
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eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
of any such financial statements, shall be by separate concurrent delivery of
such certificate to each holder of Notes):
(a) Covenant Compliance -- the information (including detailed
calculations) required in order to establish whether the Obligors were in
compliance with the requirements of Section 10.2 and Section 10.5 through
Section 10.11, inclusive, during the quarterly or annual period covered by
the statements then being furnished (including with respect to Sections
10.5(o), 10.6, 10.7, 10.8, 10.9, 10.10 and 10.11, the calculations of the
maximum or minimum amount, ratio or percentage, as the case may be,
permissible under the terms of such Sections, and the calculation of the
amount, ratio or percentage then in existence); and
(b) Event of Default -- a statement by such Senior Financial Officer
as to whether a Default or an Event of Default has occurred and, if a
Default or an Event of Default has occurred, specifying the nature and
period of existence thereof and what action the Obligors shall have taken
or proposes to take with respect thereto.
SECTION 7.3. VISITATION. Each Obligor shall permit the representatives of
each holder of Notes that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then exists, at
the expense of such holder and upon reasonable prior notice to the Company,
to visit the principal executive office of such Obligor, to discuss the
affairs, finances and accounts of the Company and its Subsidiaries with
such Obligor's officers, and (with the consent of the Company, which
consent will not be unreasonably withheld) its independent public
accountants, and (with the consent of the Company, which consent will not
be unreasonably withheld) to visit the other offices and properties of such
Obligor and each Subsidiary, all at such reasonable times and as often as
may be reasonably requested in writing; and
(b) Default -- if a Default or Event of Default then exists, at the
expense of the Obligors (which shall not exceed the reasonable expenses
incurred by such holder), upon reasonable prior notice to the Company, to
visit and inspect any of the offices or properties of any Obligor or any
Subsidiary, to examine all their respective books of account, records,
reports and other papers, to make copies and extracts therefrom, and to
discuss their respective affairs, finances and accounts with their
respective officers and independent public accountants (and by this
provision each Obligor authorizes said accountants to discuss the affairs,
finances and accounts of such Obligor and its Subsidiaries), all at such
reasonable times and as often as may be reasonably requested.
SECTION 7.4. LIMITATION ON DISCLOSURE OBLIGATION. No Obligor shall be
required to disclose the following information pursuant to Section 7.1(g) or
7.3:
(a) information that the Company determines after consultation with
counsel qualified to advise on such matters that, notwithstanding the
confidentiality requirements
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eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
of Section 20, such Obligor would be prohibited from disclosing by
applicable privacy laws or regulations; or
(b) information that, notwithstanding the confidentiality requirements
of Section 20, such Obligor is prohibited from disclosing by the terms of
an obligation of confidentiality contained in any agreement with any
non-Affiliate binding upon such Obligor and not entered into in
contemplation of this clause (b), provided that such Obligor shall use
commercially reasonable efforts to obtain consent from the party in whose
favor the obligation of confidentiality was made to permit the disclosure
of the relevant information and provided further that such Obligor has
received a written opinion of counsel confirming that disclosure of such
information without consent from such other contractual party would
constitute a breach of such agreement.
Promptly after a request therefor from any holder of Notes that is an
Institutional Investor, the Company will provide such holder with a written
opinion of counsel (which may be addressed to the Company) relied upon as
to any requested information that any Obligor is prohibited from disclosing
to such holder under circumstances described in this Section 7.4.
SECTION 8. PAYMENT AND PREPAYMENT OF THE NOTES.
SECTION 8.1. MATURITY. As provided therein, the entire unpaid principal
balance of the Notes shall be due and payable on the stated maturity date
thereof.
SECTION 8.2. OPTIONAL PREPAYMENTS. (a) The Company may, at its option, upon
notice as provided below, prepay at any time all, or from time to time any part
of, the Notes, in an amount not less than 10% of the aggregate principal amount
of the Notes then outstanding in the case of a partial prepayment, at 100% of
the principal amount so prepaid, and the Make-Whole Amount determined for the
prepayment date with respect to such principal amount. The Company will give
each holder of Notes notice of each optional prepayment under this Section 8.2
not less than 30 days and not more than 60 days prior to the date fixed for such
prepayment. Each such notice shall specify such date (which shall be a Business
Day), the aggregate principal amount of the Notes to be prepaid on such date,
the principal amount of each Note held by such holder to be prepaid (determined
in accordance with Section 8.4), and the interest to be paid on the prepayment
date with respect to such principal amount being prepaid, and shall be
accompanied by a certificate of a Senior Financial Officer as to the estimated
Make-Whole Amount due in connection with such prepayment (calculated as if the
date of such notice were the date of the prepayment), setting forth the details
of such computation. Two Business Days prior to such prepayment, the Company
shall deliver to each holder of Notes a certificate of a Senior Financial
Officer specifying the calculation of such Make-Whole Amount as of the specified
prepayment date.
(b) In the event of any Debt Prepayment Application pursuant to Section
10.6, the Company shall offer to prepay each outstanding Note in a principal
amount which equals the Ratable Portion for such Note (which offer shall be in
writing and shall offer to make such prepayment on a Business Day which is not
less than 30 and not more than 60 days after the date
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of the notice of offer (the "DISPOSITION PREPAYMENT DATE")), together with
accrued interest thereon to the date of such prepayment. Each holder of a Note
shall notify the Company of such holder's acceptance or rejection of such offer
within 10 Business Days of receipt thereof by giving notice of such acceptance
or rejection to the Company, provided, however, that any holder who fails to so
notify the Company within 10 Business Days of receipt of the notice of offer of
prepayment shall be deemed to have rejected such offer. If any holder rejects or
is deemed to have rejected such offer of prepayment in accordance with the
preceding sentence, then, for the purposes of determining compliance with
Section 10.6(c), the Company nevertheless will be deemed to have made a Debt
Prepayment Application in an amount equal to the Ratable Portion for such Note.
The Company shall prepay on the Disposition Prepayment Date the Ratable Portion
of each Note held by the holders who have accepted such offer in accordance with
this Section 8.2(b), together with accrued interest thereon to the date of such
prepayment. "RATABLE PORTION" for any Note means, with respect to a Debt
Prepayment Application, an amount equal to the product of (x) the Net Sales
Amount being so applied to the payment of Senior Debt multiplied by (y) a
fraction the numerator of which is the outstanding principal amount of such Note
and the denominator of which is the aggregate principal amount of Senior Debt of
the Obligors and their Subsidiaries that is being offered to be paid as part of
such Debt Prepayment Application. The Make-Whole Amount shall not be payable in
connection with any Debt Prepayment Application made with respect to the Notes
from the Net Sale Amount (or portion thereof) arising from Asset Dispositions.
SECTION 8.3. PREPAYMENT OF NOTES UPON CHANGE IN CONTROL.
(a) Notice of Change in Control. Within five Business Days of a Change in
Control, the Company shall have given to each holder of Notes written notice
containing and constituting an offer to prepay Notes as described in
subparagraph (b) of this Section 8.3, accompanied by the certificate described
in subparagraph (e) of this Section 8.3.
(b) Offer to Prepay Notes. The offer to prepay Notes contemplated by
subparagraph (a) of this Section 8.3 shall be an offer to prepay, in accordance
with and subject to this Section 8.3, all, but not less than all, the Notes held
by each holder (in this case only, "HOLDER" in respect of any note registered in
the name of a nominee for a disclosed beneficial owner shall mean such
beneficial owner) on the date specified in such offer (the "PROPOSED PREPAYMENT
DATE") that is not less than 30 days and not more than 60 days after the date of
such offer.
(c) Acceptance; Rejection. A holder of Notes may accept the offer to prepay
made pursuant to this Section 8.3 by causing a notice of such acceptance to be
delivered to the Company at least 10 Business Days prior to the Proposed
Prepayment Date. A failure by a holder of Notes to respond to an offer to prepay
made pursuant to this Section 8.3 shall be deemed to constitute a rejection of
such offer by such holder.
(d) Prepayment. Prepayment of the Notes to be prepaid pursuant to this
Section 8.3 shall be at 100% of the principal amount of such Notes, together
with interest on such Notes accrued to the date of prepayment and without any
Make-Whole Amount. The prepayment shall be made on the Proposed Prepayment Date.
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(e) Officer's Certificate. Each offer to prepay the Notes pursuant to this
Section 8.3 shall be accompanied by a certificate, executed by a Senior
Financial Officer of the Company and dated the date of such offer, specifying:
(i) the Proposed Prepayment Date; (ii) that such offer is made pursuant to this
Section 8.3; (iii) the principal amount of each Note offered to be prepaid; (iv)
the interest that would be due on each Note offered to be prepaid, accrued to
the Proposed Prepayment Date; (v) that the conditions of this Section 8.3 have
been fulfilled; and (vi) in reasonable detail, the nature and date or proposed
date of the Change in Control.
(f) Certain Definitions. "CHANGE IN CONTROL" means (a) the acquisition of
ownership, directly or indirectly, beneficial or of record, by any "person" or
"group" (within the meaning of the Securities Exchange Act of 1934 and the rules
of the SEC thereunder as in effect on the date of Closing), of Equity Interest
representing more than 35% of the aggregate ordinary voting power represented by
the issued and outstanding Equity Interests of the Company; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Company by Persons who were neither (i) nominated by the board of directors of
the Company nor (ii) appointed by directors so nominated; or (c) the acquisition
of direct or indirect Control of the Company by any Person or group.
SECTION 8.4. ALLOCATION OF PARTIAL PREPAYMENTS. In the case of each partial
prepayment of the Notes pursuant to Section 8.2(a), the principal amount of the
Notes to be prepaid shall be allocated among all of the Notes at the time
outstanding in proportion, as nearly as practicable, to the respective unpaid
principal amounts thereof not theretofore called for prepayment.
SECTION 8.5. MATURITY; SURRENDER, ETC. In the case of each prepayment of
Notes pursuant to this Section 8, the principal amount of each Note to be
prepaid shall mature and become due and payable on the date fixed for such
prepayment (which shall be a Business Day), together with interest on such
principal amount accrued to such date and, in the case of prepayments pursuant
to Section 8.2(a), the applicable Make-Whole Amount, if any. From and after such
date, unless the Company shall fail to pay such principal amount when so due and
payable, together with the interest and Make-Whole Amount, if any, as aforesaid,
interest on such principal amount shall cease to accrue. Any Note paid or
prepaid in full shall be surrendered to the Company and cancelled and shall not
be reissued, and no Note shall be issued in lieu of any prepaid principal amount
of any Note.
SECTION 8.6. PURCHASE OF NOTES. The Company will not and will not permit
any Affiliate to purchase, redeem, prepay or otherwise acquire, directly or
indirectly, any of the outstanding Notes except upon the payment or prepayment
of the Notes in accordance with the terms of this Agreement and the Notes. The
Company will promptly cancel all Notes acquired by it or any Affiliate pursuant
to any payment or prepayment of Notes pursuant to any provision of this
Agreement and no Notes may be issued in substitution or exchange for any such
Notes.
SECTION 8.7. MAKE-WHOLE AMOUNT.
"MAKE-WHOLE AMOUNT" means, with respect to any Note, an amount equal to the
excess, if any, of the Discounted Value of the Remaining Scheduled Payments with
respect to the Called Principal of such Note over the amount of such Called
Principal, provided that the
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Make-Whole Amount may in no event be less than zero. For the purposes of
determining the Make-Whole Amount, the following terms have the following
meanings:
"CALLED PRINCIPAL" means, with respect to any Note, the principal of such
Note that is to be prepaid pursuant to Section 8.2(a) or has become or is
declared to be immediately due and payable pursuant to Section 12.1, as the
context requires.
"DISCOUNTED VALUE" means, with respect to the Called Principal of any Note,
the amount obtained by discounting all Remaining Scheduled Payments with respect
to such Called Principal from their respective scheduled due dates to the
Settlement Date with respect to such Called Principal, in accordance with
accepted financial practice and at a discount factor (applied on the same
periodic basis as that on which interest on the Notes is payable) equal to the
Reinvestment Yield with respect to such Called Principal.
"REINVESTMENT YIELD" means, with respect to the Called Principal of any
Note, .50% over the yield to maturity implied by (i) the yields reported as of
10:00 a.m. (New York City time) on the second Business Day preceding the
Settlement Date with respect to such Called Principal, on the display designated
as "Page PX1" (or such other display as may replace Page PX1 on Bloomberg
Financial Markets ("Bloomberg") or, if Page PX1 (or its successor screen on
Bloomberg) is unavailable, the Telerate Access Service screen which corresponds
most closely to Page PX1 for the most recently issued actively traded U.S.
Treasury securities having a maturity equal to the Remaining Average Life of
such Called Principal as of such Settlement Date, or (ii) if such yields are not
reported as of such time or the yields reported as of such time are not
ascertainable (including by way of interpolation), the Treasury Constant
Maturity Series Yields reported, for the latest day for which such yields have
been so reported as of the second Business Day preceding the Settlement Date
with respect to such Called Principal, in Federal Reserve Statistical Release
H.15 (519) (or any comparable successor publication) for actively traded U.S.
Treasury securities having a constant maturity equal to the Remaining Average
Life of such Called Principal as of such Settlement Date. Such implied yield
will be determined, if necessary, by (a) converting U.S. Treasury xxxx
quotations to bond equivalent yields in accordance with accepted financial
practice and (b) interpolating linearly between (1) the actively traded U.S.
Treasury security with the maturity closest to and greater than such Remaining
Average Life and (2) the actively traded U.S. Treasury security with the
maturity closest to and less than such Remaining Average Life. The Reinvestment
Yield shall be rounded to the number of decimal places as appears in the
interest rate of the applicable Note.
"REMAINING AVERAGE LIFE" means, with respect to any Called Principal, the
number of years (calculated to the nearest one-twelfth year) obtained by
dividing (i) such Called Principal into (ii) the sum of the products obtained by
multiplying (a) the principal component of each Remaining Scheduled Payment with
respect to such Called Principal by (b) the number of years (calculated to the
nearest one-twelfth year) that will elapse between the Settlement Date with
respect to such Called Principal and the scheduled due date of such Remaining
Scheduled Payment.
"REMAINING SCHEDULED PAYMENTS" means, with respect to the Called Principal
of any Note, all payments of such Called Principal and interest thereon that
would be due after the
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Settlement Date with respect to such Called Principal if no payment of such
Called Principal were made prior to its scheduled due date, provided that if
such Settlement Date is not a date on which interest payments are due to be made
under the terms of the Notes, then the amount of the next succeeding scheduled
interest payment will be reduced by the amount of interest accrued to such
Settlement Date and required to be paid on such Settlement Date pursuant to
Section 8.2(a) or Section 12.1.
"SETTLEMENT DATE" means, with respect to the Called Principal of any Note,
the date on which such Called Principal is to be prepaid pursuant to Section
8.2(a) or has become or is declared to be immediately due and payable pursuant
to Section 12.1, as the context requires.
SECTION 9. AFFIRMATIVE COVENANTS.
The Obligors, jointly and severally, covenant that so long as any of the
Notes are outstanding:
SECTION 9.1. COMPLIANCE WITH LAW. Without limiting Section 10.4, each
Obligor will, and will cause each of its Subsidiaries to, comply with all laws,
ordinances or governmental rules or regulations to which each of them is
subject, including, without limitation, ERISA, the USA Patriot Act and
Environmental Laws, and will obtain and maintain in effect all licenses,
certificates, permits, franchises and other governmental authorizations
necessary to the ownership of their respective properties or to the conduct of
their respective businesses, in each case to the extent necessary to ensure that
non-compliance with such laws, ordinances or governmental rules or regulations
or failures to obtain or maintain in effect such licenses, certificates,
permits, franchises and other governmental authorizations could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
SECTION 9.2. INSURANCE. Each Obligor will, and will cause each of its
Subsidiaries to, maintain, with financially sound and reputable insurers,
insurance with respect to their respective properties and businesses against
such casualties and contingencies, of such types, on such terms and in such
amounts as is customary in the case of entities engaged in the same or a similar
business and similarly situated.
SECTION 9.3. MAINTENANCE OF PROPERTIES. Each Obligor will, and will cause
each of its Subsidiaries to, maintain and keep, or cause to be maintained and
kept, their respective properties in good repair, working order and condition
(other than ordinary wear and tear), so that the business carried on in
connection therewith may be properly conducted at all times, provided that this
Section shall not prevent any Obligor or any Subsidiary from discontinuing the
operation and the maintenance of any of its properties if such discontinuance is
desirable in the conduct of its business and such Obligor has concluded that
such discontinuance could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
SECTION 9.4. PAYMENT OF TAXES AND CLAIMS. Each Obligor will, and will cause
each of its Subsidiaries to, file all tax returns required to be filed in any
jurisdiction and to pay and discharge all taxes shown to be due and payable on
such returns and all other taxes, assessments, governmental charges, or levies
imposed on them or any of their properties, assets, income or
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franchises, to the extent such taxes and assessments have become due and payable
and before they have become delinquent and all claims for which sums have become
due and payable that have or might become a Lien on properties or assets of such
Obligor or any Subsidiary, provided that neither such Obligor nor any Subsidiary
need pay any such tax or assessment or claims if (i) the amount, applicability
or validity thereof is contested by such Obligor or such Subsidiary on a timely
basis in good faith and in appropriate proceedings, and such Obligor or such
Subsidiary has established adequate reserves therefor in accordance with GAAP on
the books of the Company or such Subsidiary, or (ii) the nonpayment of all such
taxes, assessments and claims in the aggregate could not reasonably be expected
to have a Material Adverse Effect.
SECTION 9.5. CORPORATE EXISTENCE, ETC. Each Obligor will, and will cause
each of its Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its corporate, limited
liability company or partnership existence and the rights, licenses, permits,
privileges and franchises Material to the conduct of its business; provided that
the foregoing shall not prohibit any merger, consolidation, liquidation,
dissolution or sale permitted under Sections 10.2 or 10.6.
SECTION 9.6. BOOKS AND RECORDS. Each Obligor will, and will cause each of
its Subsidiaries to, maintain proper books of record and account in conformity
with GAAP in all material respects.
SECTION 9.7. GUARANTORS. (a) The Company hereby covenants and agrees that,
as promptly as possible but in any event within thirty (30) days (or such later
date as may be agreed upon by the Required Holders) after any Person becomes a
Material Subsidiary or any Subsidiary qualifies independently as, or is
designated by the Company as, a Material Subsidiary pursuant to the definition
of "Material Subsidiary," the Company shall provide the holders with notice
thereof setting forth information in reasonable detail describing the material
assets of such Subsidiary and shall cause each such Subsidiary to enter into a
Joinder Agreement or otherwise deliver another Guarantee Agreement reasonably
acceptable to the Required Holders, in each case, for the benefit of the holders
of the Notes.
In addition to the foregoing and not in limitation thereof, the Company
hereby covenants and agrees that, in any other event where any Subsidiary which
is not then a Guarantor guarantees the Company's obligations under the Bank
Credit Agreement, it will cause such Subsidiary to, concurrently therewith,
enter into a Joinder Agreement or otherwise deliver another Guarantee Agreement
reasonably acceptable to the Required Holders, in each case, for the benefit of
the holders of the Notes. For the avoidance of doubt, it is acknowledged and
agreed that no Subsidiary shall become a borrower or an obligor under the Bank
Credit Agreement, other than by reason of a Guaranty thereof (which Guaranty of
the Bank Credit Agreement shall be subject to the terms of the Intercreditor
Agreement).
Concurrently with the delivery of a Joinder Agreement or another Guarantee
Agreement by a Subsidiary pursuant to the terms of this Section 9.7, the Company
will cause such Subsidiary to deliver appropriate corporate resolutions, other
corporate documentation and legal opinions (such legal opinions to be from staff
or independent counsel, in each case, reasonably
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satisfactory to the Required Holders), all in form and substance reasonably
satisfactory to the Required Holders and their counsel.
(b) Notwithstanding the foregoing, in the event that any Guarantor is no
longer obligated to any Lender pursuant to any Guaranty thereof and (x) no
Default or Event of Default exists or would exist immediately after such
release, and (y) such Guarantor is not a Material Subsidiary (including as a
result of a sale, transfer or other conveyance of such Guarantor permitted by
Section 10.6), the holders of the Notes hereby agree to, and they hereby do,
release such Guarantor from its obligations under the Guarantee Agreement. The
holders of the Notes will evidence such release pursuant to such instruments of
release as may be reasonably requested by the Company. For avoidance of doubt, a
disposition of a Guarantor that is permitted by Section 10.6 shall result in the
release of such Guarantor provided that the terms and conditions of this Section
9.7(b) are then satisfied.
(c) For purposes of this Section 9.7, "MATERIAL SUBSIDIARY" means each
Domestic Subsidiary (i) the EBITDA of which, as of the most recent fiscal
quarter of the Company, for the period of four consecutive fiscal quarters then
ended, for which financial statements have been delivered pursuant to Section
7.1(a) and (b) was greater than five percent (5%) of Consolidated EBITDA for
such period or (ii) the consolidated total assets of which as of the end of such
fiscal quarter were greater than five percent (5%) of Consolidated Total Assets
as of such date; provided that, if at any time the aggregate amount of the
EBITDA or consolidated total assets of all Domestic Subsidiaries that are not
Guarantors exceeds ten percent (10%) of Consolidated EBITDA for any such period
or ten percent (10%) of Consolidated Total Assets as of the end of any such
fiscal quarter, the Company shall promptly (and in any event within 30 days)
designate sufficient Domestic Subsidiaries as "Material Subsidiaries" to
eliminate such excess, and such designated Subsidiaries shall for all purposes
of this Agreement constitute Guarantors.
SECTION 9.8. PARI PASSU RANKING. (a) The Company's obligations under the
Financing Agreements will at all times rank at least pari passu, without
preference or priority, with all of its other outstanding unsubordinated
unsecured Indebtedness (including, without limitation, the Bank Credit Agreement
and the other Loan Documents). Each Obligor's (other than the Company)
obligations under the Financing Agreements will at all times rank at least pari
passu, without preference or priority, with all of such Obligor's other
outstanding unsubordinated unsecured Indebtedness (including, without
limitation, the Bank Credit Agreement and the other Loan Documents).
In addition to the foregoing and not in limitation thereof, if at any time
the Company or any other Obligor is required to grant a security interest in or
pledge any assets pursuant to paragraph (b) of this Section 9.8, then (i) the
Company's obligations under, and any security interest in Collateral granted
under, the Financing Agreements will at all times rank at least pari passu,
without preference or priority, with all of its obligations under the Bank
Credit Agreement and the other Loan Documents secured by the same Collateral and
(ii) each Obligor's (other than the Company) obligations under, and any security
interest in Collateral granted under, the Financing Agreements will at all times
rank at least pari passu, without preference or priority, with all of such
Obligor's obligations under the Bank Credit Agreement and the other Loan
Documents secured by the same Collateral.
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(b) Each Obligor hereby covenants and agrees that, if such Obligor or any
Subsidiary grants a security interest and Lien in any Collateral as security for
the Company's or any Subsidiary's obligations under the Bank Credit Agreement
and the other Loan Documents, it will, and/or will cause such Subsidiary to,
concurrently therewith, (a) grant to the holders of the Notes or a Collateral
Agent, for the ratable benefit of the holders of the Notes and the Lenders, a
security interest in such property pursuant to Collateral Documents acceptable
to the Required Holders, on a pari passu basis with the Lenders and (b) deliver
appropriate corporate resolutions, other corporate documentation and legal
opinions (such legal opinions to be from staff or independent counsel, in each
case, reasonably satisfactory to the Required Holders), all in form and
substance reasonably satisfactory to the Required Holders and their counsel.
Each Obligor further agrees to deliver to the Collateral Agent (with a copy to
each holder of the Notes) or directly to the holders of the Notes, as the case
may be, all such Collateral Documents, together with appropriate corporate
documentation, in each case in form and substance reasonably satisfactory to the
Required Holders and their counsel, and in a manner that the Required Holders
shall be satisfied that the holders have a first priority perfected security
interest and Lien in such property. Each Obligor shall ensure that at the time
that such Obligor or any Subsidiary grants a security interest and Lien in any
Collateral as security for the Company's or any Subsidiary's obligations under
the Bank Credit Agreement and the other Loan Documents, such security interest
and Lien is subject to the Intercreditor Agreement, the Intercreditor Agreement
is in full force and effect and that the Lenders are a party thereto.
SECTION 10. NEGATIVE COVENANTS.
The Obligors, jointly and severally, covenant that so long as any of the
Notes are outstanding:
SECTION 10.1. TRANSACTIONS WITH AFFILIATES. No Obligor will, or will permit
any Subsidiary to, enter into directly or indirectly any transaction or group of
related transactions (including without limitation the purchase, lease, sale or
exchange of properties of any kind or the rendering of any service) with any
Affiliate (other than any Obligor or another Subsidiary), except (a) in the
ordinary course of business and at prices and/or terms and conditions no less
favorable to such Obligor or such Subsidiary than would be obtained on an
arm's-length basis with a Person not an Affiliate, (b) advances to officers,
directors or employees of such Obligor or such Subsidiary in the ordinary course
of business consistent with past practice, (c) employment, indemnification, and
compensation arrangements (including arrangements made with respect to bonuses
and equity-based awards) entered into in the ordinary course of business
consistent with past practice with members of the board of directors, officers
and employees of such Obligor or such Subsidiary and (d) any payment of
dividends, redemptions of stock or other distributions to the shareholders of
such Obligor or such Subsidiary, provided, that in the case of the transactions
in clause (d), no Default or Event of Default exists at the time of, or would
exist after giving effect to, such transactions.
SECTION 10.2. MERGER, CONSOLIDATION, ETC. No Obligor will consolidate with
or merge with any other Person or convey, transfer or lease all or substantially
all of its assets in a single transaction or series of transactions to any
Person (except that any Obligor may merge with or into, or convey, transfer or
lease all or substantially all of its assets to, the Company or another
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Obligor if (1) in any such merger or consolidation involving the Company, the
Company is the survivor and (2) immediately after giving effect to any such
merger, consolidation or conveyance, transfer or lease, no Default or Event of
Default would exist) unless :
(a) the successor formed by such consolidation or the survivor of such
merger or the Person that acquires by conveyance, transfer or lease all or
substantially all of the assets of such Obligor as an entirety, as the case
may be, shall be a solvent corporation, limited liability company, limited
partnership or business trust organized and existing under the laws of the
United States or any State thereof (including the District of Columbia),
and, if such Obligor is not such corporation, limited liability company,
limited partnership or business trust, (i) such corporation, limited
liability company, limited partnership or business trust shall have
executed and delivered to each holder of any Notes its assumption of the
due and punctual performance and observance of each covenant and condition
of the Financing Agreements to which such Obligor is a party, (ii) such
corporation, limited liability company, limited partnership or business
trust shall have caused to be delivered to each holder of any Notes an
opinion of staff or independent counsel, in each case, reasonably
satisfactory to the Required Holders, to the effect that all agreements or
instruments effecting such assumption are enforceable in accordance with
their terms and comply with the terms hereof and (iii) each other Obligor
who was not a party to such consolidation, merger or conveyance, transfer
or lease of assets, shall have executed and delivered an acknowledgement
that the Financing Agreements to which they are a party continue in full
force and effect; and
(b) immediately before and immediately after giving effect to such
transaction, (i) no Default or Event of Default shall have occurred and be
continuing and (ii) such Obligor (or the successor to such Obligor, as the
case may be) could incur at least $1.00 of additional Indebtedness pursuant
to Sections 10.8, 10.9 and 10.10, treating such transaction, for purposes
of determining compliance with Sections 10.8, 10.9 and 10.10, as having
been consummated as of the last day of the immediately preceding fiscal
quarter.
No such conveyance, transfer or lease of substantially all of the assets of an
Obligor shall have the effect of releasing such Obligor or any successor
corporation, limited liability company, limited partnership or business trust
that shall theretofore have become such in the manner prescribed in this Section
10.2 from its liability under the Financing Agreements to which it is a party,
other than the release of a Guarantor pursuant to the terms and conditions of
Section 9.7(b).
This Section 10.2 shall not prohibit a disposition of a Subsidiary or the
assets thereof (including as a result of any merger or consolidation) if such
disposition is pursuant to and in accordance with the provision of Section 10.6
SECTION 10.3. LINE OF BUSINESS. Each Obligor will not and will not permit
any Subsidiary to engage in any business if, as a result, the general nature of
the business in which the Company and its Subsidiaries, taken as a whole, would
then be engaged would be substantially changed
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from the general nature of the business in which the Company and its
Subsidiaries, taken as a whole, are engaged on the date of this Agreement as
described in the Disclosure Documents.
SECTION 10.4. TERRORISM SANCTIONS REGULATIONS. Each Obligor will not and
will not permit any Subsidiary to (a) become a Person described or designated in
the Specially Designated Nationals and Blocked Persons List of the Office of
Foreign Assets Control or in Section 1 of the Anti-Terrorism Order or (b) with
the actual knowledge of any Senior Financial Officer of any Obligor, engage in
any material dealings or transactions with any such Person.
SECTION 10.5. LIENS. No Obligor will, nor will it permit any Subsidiary to,
directly or indirectly create, incur, assume or permit to exist (upon the
happening of a contingency or otherwise) any Lien on or with respect to any
property or asset (including, without limitation, any document or instrument in
respect of goods or accounts receivable) of such Obligor or any such Subsidiary,
whether now owned or held or hereafter acquired, or any income or profits
therefrom or assign or otherwise convey any right to receive income or profits,
except:
(a) Liens for taxes or assessments or other governmental charges or
levies, provided that payment thereof is not required by Section 9.4;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 30 days
or are being contested by such Obligor or such Subsidiary on a timely basis
in good faith and in appropriate proceedings in compliance with Section
9.4;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) Liens created by or resulting from any litigation or legal
proceeding which is currently being contested in good faith by appropriate
proceedings, provided that payment thereof is not required by Section 9.4,
and Liens in respect of judgments that do not constitute an Event of
Default under Section 11(i);
(e) other Liens incidental to the normal conduct of the business of
such Obligor and its Subsidiaries or the ownership of their property,
including, without limitation, deposits and Liens with respect to the
performance of bids, trade contracts, leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature,
in each case which are not securing Indebtedness;
(f) easements, zoning restrictions, rights of way and similar
encumbrances on real property imposed by law as arising in the ordinary
course of business that do not secure any monetary obligation and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Company and its Subsidiaries
taken as a whole;
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(g) any interest or title of a lessor under any operating lease
entered into in the ordinary course of business;
(h) Liens existing on the date of this Agreement and securing the
Indebtedness of such Obligor and its Subsidiaries referred to in Schedule
5.15;
(i) (i) any Lien in property or in rights relating thereto to secure
any rights granted with respect to such property in connection with
the provision of all or a part of the purchase price or cost of the
construction of such property created contemporaneously with, or
within 180 days after, such acquisition or the completion of such
construction, or
(ii) any Lien in property existing in such property at the time
of acquisition thereof (including, without limitation, by acquisition
of Equity Interests of a Person as contemplated in clause (iii) of
this Section 10.5(i)), whether or not the Indebtedness secured thereby
is assumed by such Obligor or such Subsidiary, or
(iii) any Lien existing in the property of a Person at the time
such Person is merged into or consolidated with such Obligor or a
Subsidiary or at the time of a sale, lease or other disposition of the
properties of a Person as an entirety or substantially as an entirety
to such Obligor or a Subsidiary;
provided, however, that with respect to any of the Liens permitted by this
Section 10.5(i), (A) the principal amount of the Indebtedness secured by any
such Liens shall not increase from the Indebtedness secured at the time of such
merger, consolidation or acquisition, (B) any such Lien shall extend solely to
the item or items of such property (or improvement thereon) so acquired or
constructed and (C) with respect to the Liens permitted by clauses (ii) or (iii)
of this Section 10.5(i), no such Lien shall have been created or assumed in
contemplation of such consolidation or merger or such Person's becoming a
Subsidiary or such acquisition of property;
(j) Liens securing the extension, renewal or replacement of any
obligation secured by a Lien permitted by the foregoing paragraphs (h) and
(i) in respect of the same property subject thereto or the extension,
renewal of such replacement Liens (without increase of principal amount of
the Indebtedness secured);
(k) Liens securing obligations of a Subsidiary to an Obligor;
(l) licenses, leases or subleases granted to other Persons in the
ordinary course of business and not interfering in any material respect
with the businesses of such Obligor or such Subsidiary;
(m) customary bankers' Liens and rights of setoff arising by operation
of law and incurred on deposits made in the ordinary course of business;
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(n) Liens on Collateral securing obligations of the Company and its
Subsidiaries under the Financing Agreements and the Bank Credit Agreement
and the other Loan Documents, on a pari passu basis, provided, that the
Intercreditor Agreement is entered into by the holders of the Notes and
each Lender with respect to such Collateral and is in full force and
effect; and
(o) Liens on assets (other than the Collateral) securing Indebtedness
of such Obligor or any Subsidiary in addition to those described in clauses
(a) through (n) above, provided, that no such Liens shall be incurred if at
the time thereof or after giving effect thereto, a Default or Event of
Default exists or would exist hereunder, including, without limitation,
under Section 10.7.
For the purposes of this Section 10.5, all of the Liens of any Person
becoming a Subsidiary after the date of this Agreement shall be deemed to be
outstanding Liens at the time it becomes a Subsidiary, and any Obligor or
Subsidiary extending, renewing or refunding any Indebtedness secured by any Lien
shall be deemed to have incurred such Lien at the time of such extension,
renewal or refunding.
SECTION 10.6. SALE OF ASSETS. Except as permitted under Section 10.2, no
Obligor will, nor will it permit any Subsidiary to, make any Asset Disposition
unless:
(a) in the good faith opinion of such Obligor or Subsidiary making the
Asset Disposition, the Asset Disposition is in exchange for consideration
having a fair market value at least equal to that of the property exchanged
and such Asset Disposition is, in the good faith judgment of the Company,
in the best interest of such Obligor or such Subsidiary;
(b) immediately after giving effect to the Asset Disposition, (i) no
Default or Event of Default would exist and (ii) such Obligor or such
Subsidiary could incur at least $1.00 of additional Indebtedness pursuant
to Sections 10.8, 10.9 and 10.10, assuming such Asset Disposition occurred
as of the last day of the immediately preceding fiscal quarter; and
(c) immediately after giving effect to the Asset Disposition, the sum
of (i) the Disposition Value of the property subject to such Asset
Disposition, plus (ii) the aggregate Disposition Value for all other
property that was the subject of an Asset Disposition during the then
current fiscal year, would not exceed 15% of Consolidated Total Assets
determined as of the end of the most recently ended fiscal year preceding
such Asset Disposition.
To the extent that the Net Sales Amount arising from Asset Dispositions is
applied or offered to be applied to a Debt Prepayment Application or applied to
a Property Reinvestment Application, in each case, within one year after such
Asset Disposition, then such Asset Disposition (or, if less than all such Net
Sales Amount is applied as contemplated hereinabove, the pro rata percentage
thereof which corresponds to the Net Sales Amount so applied (or offered in the
case of a Debt
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Prepayment Application)), only for the purpose of determining compliance with
subsection (c) of this Section 10.6 as of any date, shall be deemed not to be an
Asset Disposition.
The Transfer of a Guarantor that is permitted by this Section 10.6 shall result
in the release of such Guarantor provided that the terms and conditions of
Section 9.7(b) are then satisfied.
SECTION 10.7. PRIORITY DEBT. The Company will not, at any time, permit
Priority Debt to exceed 20% of Consolidated Net Worth. For purposes of this
Section 10.7, Consolidated Net Worth shall be determined as of the end of the
most recently ended fiscal quarter.
SECTION 10.8. SUBSIDIARY DEBT LIMITATION. The Company will not, at any
time, permit any Subsidiary to, directly or indirectly, create, incur, assume,
guarantee, have outstanding, or otherwise become or remain directly or
indirectly liable with respect to, any Indebtedness other than:
(a) Indebtedness of a Guarantor that is subject to the Intercreditor
Agreement;
(b) Indebtedness of a Guarantor that is not subject to the
Intercreditor Agreement in an aggregate amount for such Guarantor not in
excess of $20,000,000, provided that if such Indebtedness is in excess of
$20,000,000, then all Indebtedness of such Guarantor that is not subject to
the Intercreditor Agreement (including all amounts less than $20,000,000)
shall be subject to the provisions of paragraph (f) of this Section 10.8
unless otherwise permitted by another paragraph of this Section 10.8;
(c) in addition to the Indebtedness permitted under paragraphs (a) and
(b), Indebtedness of a Subsidiary outstanding on the date of this Agreement
and described on Schedule 5.15 and any extension or renewal of any such
Indebtedness that does not increase the principal amount then outstanding;
(d) Indebtedness of a Subsidiary owed to the Company or a Wholly-Owned
Subsidiary;
(e) Indebtedness of a Subsidiary outstanding at the time such
Subsidiary becomes a Subsidiary and any extension or renewal of such
Indebtedness that does not increase the principal amount then outstanding,
provided that (i) such Indebtedness shall not have been incurred in
contemplation of such Subsidiary becoming a Subsidiary and (ii) immediately
after such Subsidiary becomes a Subsidiary (and, if applicable, at the time
of any such renewal or extension) no Default or Event of Default shall
exist; and
(f) Indebtedness of a Subsidiary in addition to that otherwise
permitted by paragraphs (a) through (e) of this Section 10.8, provided that
on the date such Subsidiary incurs or otherwise becomes liable with respect
to any such additional Indebtedness and immediately after giving effect
thereto and the concurrent retirement of any other Indebtedness, no Default
or Event of Default exists under Section 10.7 or, assuming the incurrence
of such additional Indebtedness and the concurrent retirement of such other
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Indebtedness as of the last day of the immediately preceding fiscal
quarter, no Default or Event of Default would exist under Sections 10.9 and
10.10.
SECTION 10.9. CONSOLIDATED TOTAL INDEBTEDNESS TO CONSOLIDATED EBITDA. The
Company will not permit, as at the end of each fiscal quarter, the ratio of
Consolidated Total Indebtedness outstanding on such date to Consolidated EBITDA
for the immediately preceding four quarter period ending with the end of such
fiscal quarter, to be greater than 3.00 to 1.00.
Notwithstanding the foregoing, for purposes of determining the ratio of
Consolidated Total Indebtedness to Consolidated EBITDA pursuant to this Section
10.9, any Indebtedness incurred by the Company in order to make settlement
advances to or on behalf of processing customers in the ordinary course of
business consistent with past practice shall not be included in the calculation
of Consolidated Total Indebtedness to the extent that such Indebtedness is
repaid within 5 days after the incurrence thereof.
SECTION 10.10. MINIMUM FIXED CHARGE COVERAGE. The Company will not permit,
as at the end of each fiscal quarter, the ratio of Consolidated EBITDAR to
Consolidated Fixed Charges, in each case for the immediately preceding four
quarter period ending with the end of such fiscal quarter, to be less than 1.50
to 1.00.
SECTION 10.11. SALE OF ACCOUNTS. No Obligor will, nor will it permit any
Subsidiary to, sell or otherwise dispose of any of its notes receivable or
accounts receivable, with or without recourse, except the sale or discount
without recourse of accounts receivable arising in the ordinary course of
business in connection with the compromise or collection thereof.
SECTION 11. EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or Make-Whole
Amount, if any, on any Note when the same becomes due and payable, whether
at maturity or at a date fixed for prepayment or by declaration or
otherwise; or
(b) the Company defaults in the payment of any interest on any Note
for more than five Business Days after the same becomes due and payable; or
(c) (i) any Guarantor defaults in the performance of or compliance
with any term contained in the Guarantee Agreement, or (ii) any Obligor
defaults in the performance of or compliance with any term contained in
Section 7.1(d), Section 10.2 or Sections 10.5 through 10.11, inclusive; or
(d) (i) any Obligor defaults in the performance of or compliance with
any term contained herein (other than those referred to in Sections 11(a),
(b) and (c)) or (ii) any Obligor defaults in the performance of or
compliance with any term contained in the Financing Agreements (other than
this Agreement), and in each case, such default is
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not remedied within 30 days after the earlier of (i) a Senior Financial
Officer obtaining actual knowledge of such default and (ii) any Obligor
receiving notice of such default from any holder of a Note (any such notice
to be identified as a "notice of default" and to refer specifically to this
Section 11(d)); or
(e) any representation or warranty made in writing by or on behalf of
any Obligor or by any officer of any Obligor in any Financing Agreement or
in any writing furnished in connection with the transactions contemplated
hereby proves to have been false or incorrect in any material respect on
the date as of which made; or
(f) (i) any Obligor or any Subsidiary is in default (as principal or
as guarantor or other surety) in the payment of any principal of or premium
or make-whole amount or interest on any Indebtedness that is outstanding in
an aggregate principal amount of at least $25,000,000 beyond any period of
grace provided with respect thereto, or (ii) any Obligor or any Subsidiary
is in default in the performance of or compliance with any term of any
evidence of any Indebtedness in an aggregate outstanding principal amount
of at least $25,000,000 or of any mortgage, indenture or other agreement
relating thereto or any other condition exists, and as a consequence of
such default or condition such Indebtedness has become, or has been
declared (or one or more Persons are entitled to declare such Indebtedness
to be), due and payable before its stated maturity or before its regularly
scheduled dates of payment, or any lender or agent therefor exercises any
remedies in respect of any Collateral or Guaranty relative to the Bank
Credit Agreement, or (iii) as a consequence of the occurrence or
continuation of any event or condition (other than the passage of time or
the right of the holder of Indebtedness to convert such Indebtedness into
equity interests), (x) any Obligor or any Subsidiary has become obligated
to purchase or repay Indebtedness before its regular maturity or before its
regularly scheduled dates of payment in an aggregate outstanding principal
amount of at least $25,000,000, or (y) one or more Persons have the right
to require any Obligor or any Subsidiary so to purchase or repay such
Indebtedness; or
(g) any Obligor or any Subsidiary (i) is generally not paying, or
admits in writing its inability to pay, its debts as they become due, (ii)
files, or consents by answer or otherwise to the filing against it of, a
petition for relief or reorganization or arrangement or any other petition
in bankruptcy, for liquidation or to take advantage of any bankruptcy,
insolvency, reorganization, moratorium or other similar law of any
jurisdiction, (iii) makes an assignment for the benefit of its creditors,
(iv) consents to the appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect to any
substantial part of its property, (v) is adjudicated as insolvent or to be
liquidated, or (vi) takes corporate action for the purpose of any of the
foregoing; or
(h) a court or Governmental Authority of competent jurisdiction enters
an order appointing, without consent by any Obligor or any of its
Subsidiaries, a custodian, receiver, trustee or other officer with similar
powers with respect to it or with respect to any substantial part of its
property, or constituting an order for relief or approving petition for
relief or reorganization or any other petition in bankruptcy or for
liquidation
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or to take advantage of any bankruptcy or insolvency law of any
jurisdiction, or ordering the dissolution, winding-up or liquidation of any
Obligor or any of its Subsidiaries, or any such petition shall be filed
against any Obligor or any of its Subsidiaries and such petition shall not
be dismissed within 60 days; or
(i) a final judgment or judgments for the payment of money aggregating
in excess of $25,000,000 are rendered against one or more of the Obligors
and their Subsidiaries and which judgments are not, within 60 days after
entry thereof, bonded, discharged or stayed pending appeal, or are not
discharged within 60 days after the expiration of such stay; or
(j) if (i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or a
waiver of such standards or extension of any amortization period is sought
or granted under section 412 of the Code, (ii) a notice of intent to
terminate any Plan shall have been or is reasonably expected to be filed
with the PBGC or the PBGC shall have instituted proceedings under ERISA
section 4042 to terminate or appoint a trustee to administer any Plan or
the PBGC shall have notified the Company or any ERISA Affiliate that a Plan
may become a subject of any such proceedings, (iii) the aggregate "amount
of unfunded benefit liabilities" (within the meaning of section 4001(a)(18)
of ERISA) under all Plans, determined in accordance with Title IV of ERISA,
shall exceed $25,000,000, (iv) any Obligor or any ERISA Affiliate shall
have incurred or is reasonably expected to incur any liability pursuant to
Title I or IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans, (v) any Obligor or any ERISA Affiliate
withdraws from any Multiemployer Plan, or (vi) any Obligor or any
Subsidiary establishes or amends any employee welfare benefit plan that
provides post-employment welfare benefits in a manner that would increase
the liability of such Obligor or any Subsidiary thereunder; and any such
event or events described in clauses (i) through (vi) above, either
individually or together with any other such event or events, could
reasonably be expected to have a Material Adverse Effect; or
(k) any Guarantee Agreement or any Collateral Document shall at any
time after its execution and delivery for any reason cease to be in full
force and effect, or shall be declared null and void, or any Obligor shall
take any action for the purpose of terminating, repudiating or rescinding
any Guarantee Agreement or any Collateral Document or any of its
obligations thereunder.
As used in Section 11(j), the terms "EMPLOYEE BENEFIT PLAN" and "EMPLOYEE
WELFARE BENEFIT PLAN" shall have the respective meanings assigned to such terms
in Section 3 of ERISA.
SECTION 12. REMEDIES ON DEFAULT, ETC.
SECTION 12.1. ACCELERATION. (a) If an Event of Default with respect to the
Obligors described in Section 11(g) or (h) (other than an Event of Default
described in clause (i) of Section 11(g) or described in clause (vi) of Section
11(g) by virtue of the fact that such clause
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encompasses clause (i) of Section 11(g)) has occurred, all the Notes then
outstanding shall automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, any
holder or holders of at least 51% in principal amount of the Notes at the time
outstanding may at any time at its or their option, by notice or notices to the
Company, declare all the Notes then outstanding to be immediately due and
payable.
(c) If any Event of Default described in Section 11(a) or (b) has occurred
and is continuing, any holder or holders of Notes at the time outstanding
affected by such Event of Default may at any time, at its or their option, by
notice or notices to the Company, declare all the Notes held by it or them to be
immediately due and payable.
Upon any Notes becoming due and payable under this Section 12.1, whether
automatically or by declaration, such Notes will forthwith mature and the entire
unpaid principal amount of such Notes, plus (x) all accrued and unpaid interest
thereon (including, but not limited to, interest accrued thereon at the Default
Rate) and (y) the Make-Whole Amount determined in respect of such principal
amount (to the full extent permitted by applicable law), shall all be
immediately due and payable, in each and every case without presentment, demand,
protest or further notice, all of which are hereby waived. Each Obligor
acknowledges, and the parties hereto agree, that each holder of a Note has the
right to maintain its investment in the Notes free from repayment by the Company
(except as herein specifically provided for) and that the provision for payment
of a Make-Whole Amount by the Company in the event that the Notes are prepaid or
are accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such circumstances.
SECTION 12.2. OTHER REMEDIES. If any Default or Event of Default has
occurred and is continuing, and irrespective of whether any Notes have become or
have been declared immediately due and payable under Section 12.1, the holder of
any Note at the time outstanding may proceed to protect and enforce the rights
of such holder by an action at law, suit in equity or other appropriate
proceeding, whether for the specific performance of any agreement contained
herein, in any Note or in any other Financing Agreement, or for an injunction
against a violation of any of the terms hereof or thereof, or in aid of the
exercise of any power granted hereby or thereby or by law or otherwise.
SECTION 12.3. RESCISSION. At any time after any Notes have been declared
due and payable pursuant to Section 12.1(b) or (c), the Required Holders, by
notice to the Company, may rescind and annul any such declaration and its
consequences if (a) the Company has paid all overdue interest on the Notes, all
principal of and Make-Whole Amount, if any, on any Notes that are due and
payable and are unpaid other than by reason of such declaration, and all
interest on such overdue principal and Make-Whole Amount, if any, and (to the
extent permitted by applicable law) any overdue interest in respect of the
Notes, at the Default Rate, (b) neither the Company nor any other Person shall
have paid any amounts which have become due solely by reason of such
declaration, (c) all Events of Default and Defaults, other than non-payment of
amounts that have become due solely by reason of such declaration, have been
cured or have been waived pursuant to Section 17, and (d) no judgment or decree
has been entered for the
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eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
payment of any monies due pursuant hereto or to the Notes. No rescission and
annulment under this Section 12.3 will extend to or affect any subsequent Event
of Default or Default or impair any right consequent thereon.
SECTION 12.4. NO WAIVERS OR ELECTION OF REMEDIES, EXPENSES, ETC. No course
of dealing and no delay on the part of any holder of any Note in exercising any
right, power or remedy shall operate as a waiver thereof or otherwise prejudice
such holder's rights, powers or remedies. No right, power or remedy conferred by
this Agreement, any Note or any other Financing Agreement upon any holder
thereof shall be exclusive of any other right, power or remedy referred to
herein or therein or now or hereafter available at law, in equity, by statute or
otherwise. Without limiting the obligations of the Company under Section 15, the
Company will pay to the holder of each Note on demand such further amount as
shall be sufficient to cover all costs and expenses of such holder incurred in
any enforcement or collection under this Section 12, including, without
limitation, reasonable attorneys' fees, expenses and disbursements.
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
SECTION 13.1. REGISTRATION OF NOTES. The Company shall keep at its
principal executive office a register for the registration and registration of
transfers of Notes. The name and address of each holder of one or more Notes,
each transfer thereof and the name and address of each transferee of one or more
Notes shall be registered in such register. Prior to due presentment for
registration of transfer, the Person in whose name any Note shall be registered
shall be deemed and treated as the owner and holder thereof for all purposes
hereof, and the Company shall not be affected by any notice or knowledge to the
contrary. The Company shall give to any holder of a Note that is an
Institutional Investor promptly upon request therefor, a complete and correct
copy of the names and addresses of all registered holders of Notes.
SECTION 13.2. TRANSFER AND EXCHANGE OF NOTES. Upon surrender of any Note to
the Company at the address and to the attention of the designated officer (all
as specified in Section 18(iii)), for registration of transfer or exchange (and
in the case of a surrender for registration of transfer accompanied by a written
instrument of transfer duly executed by the registered holder of such Note or
such holder's attorney duly authorized in writing and accompanied by the
relevant name, address and other information for notices of each transferee of
such Note or part thereof), within ten Business Days thereafter, the Company
shall execute and deliver, at the Company's expense (except as provided below),
one or more new Notes (as requested by the holder thereof) in exchange therefor,
in an aggregate principal amount equal to the unpaid principal amount of the
surrendered Note. Each such new Note shall be payable to such Person as such
holder may request and shall be substantially in the form of Exhibit 1. Each
such new Note shall be dated and bear interest from the date to which interest
shall have been paid on the surrendered Note or dated the date of the
surrendered Note if no interest shall have been paid thereon. The Company may
require payment of a sum sufficient to cover any stamp tax or governmental
charge imposed in respect of any such transfer of Notes. Notes shall not be
transferred in denominations of less than $1,000,000, other than (a) if
necessary to enable the registration of transfer by a holder of its entire
holding of Notes, one Note may be in a denomination of less than $1,000,000, (b)
Notes in denominations of less than $1,000,000 may be transferred from a holder
to one or more of its Affiliates and (c) Notes issued on the date of
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eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
Closing in denominations of less than $1,000,000. Any transferee, by its
acceptance of a Note registered in its name (or the name of its nominee), shall
be deemed to have made the representations set forth in Sections 6.1 and 6.2.
SECTION 13.3. REPLACEMENT OF NOTES. Upon receipt by the Company at the
address and to the attention of the designated officer (all as specified in
Section 18(iii)) of evidence reasonably satisfactory to it of the ownership of
and the loss, theft, destruction or mutilation of any Note (which evidence shall
be, in the case of an Institutional Investor, notice from such Institutional
Investor of such ownership and such loss, theft, destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity reasonably
satisfactory to it (provided that if the holder of such Note is, or is a
nominee for, an original Purchaser or another holder of a Note with a
minimum net worth of at least $50,000,000 or a Qualified Institutional
Buyer, such Person's own unsecured agreement of indemnity shall be deemed
to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation
thereof,
within ten Business Days thereafter, the Company at its own expense shall
execute and deliver, in lieu thereof, a new Note, dated and bearing interest
from the date to which interest shall have been paid on such lost, stolen,
destroyed or mutilated Note or dated the date of such lost, stolen, destroyed or
mutilated Note if no interest shall have been paid thereon.
SECTION 14. PAYMENTS ON NOTES.
SECTION 14.1. PLACE OF PAYMENT. Subject to Section 14.2, payments of
principal, Make- Whole Amount, if any, and interest becoming due and payable on
the Notes shall be made in New York, New York at the principal office of
JPMorgan Chase Bank, N.A. in such jurisdiction. The Company may at any time, by
notice to each holder of a Note, change the place of payment of the Notes so
long as such place of payment shall be either the principal office of the
Company in such jurisdiction or the principal office of a bank or trust company
in such jurisdiction.
SECTION 14.2. HOME OFFICE PAYMENT. So long as any Purchaser or its nominee
shall be the holder of any Note, and notwithstanding anything contained in
Section 14.1 or in such Note to the contrary, the Company will pay all sums
becoming due on such Note for principal, Make- Whole Amount, if any, and
interest by the method and at the address specified for such purpose below such
Purchaser's name in Schedule A, or by such other method or at such other address
as such Purchaser shall have from time to time specified to the Company in
writing for such purpose, without the presentation or surrender of such Note or
the making of any notation thereon, except that upon written request of the
Company made concurrently with or reasonably promptly after payment or
prepayment in full of any Note, such Purchaser shall surrender such Note for
cancellation, reasonably promptly after any such request, to the Company at its
principal executive office or at the place of payment most recently designated
by the Company pursuant to Section 14.1. Prior to any sale or other disposition
of any Note held by a Purchaser or its nominee, such Purchaser will, at its
election, either endorse thereon the amount of principal paid thereon and the
last date to which interest has been paid thereon or surrender such Note to
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the Company in exchange for a new Note or Notes pursuant to Section 13.2. The
Company will afford the benefits of this Section 14.2 to any Institutional
Investor that is the direct or indirect transferee of any Note purchased by a
Purchaser under this Agreement and that has made the same agreement relating to
such Note as the Purchasers have made in this Section 14.2.
SECTION 15. EXPENSES, ETC.
SECTION 15.1. TRANSACTION EXPENSES. Whether or not the transactions
contemplated hereby are consummated, the Company will pay all costs and expenses
(including reasonable attorneys' fees of a special counsel and, if reasonably
required by the Required Holders, local or other counsel) incurred by the
Purchasers and each other holder of a Note in connection with such transactions
and in connection with any amendments, waivers or consents under or in respect
of any Financing Agreement (whether or not such amendment, waiver or consent
becomes effective), including, without limitation: (a) the costs and expenses
incurred in enforcing or defending (or determining whether or how to enforce or
defend) any rights under any Financing Agreement or in responding to any
subpoena or other legal process or informal investigative demand issued in
connection with any Financing Agreements, or by reason of being a holder of any
Note, (b) the costs and expenses, including financial advisors' fees, incurred
in connection with the insolvency or bankruptcy of any Obligor or any Subsidiary
or in connection with any work-out or restructuring of the transactions
contemplated by the Financing Agreements and (c) the costs and expenses incurred
in connection with the initial filing of this Agreement and all related
documents and financial information with the SVO provided, that such costs and
expenses shall not exceed $2,300 for any series of Notes. The Company will pay,
and will save each Purchaser and each other holder of a Note harmless from, all
claims in respect of any fees, costs or expenses, if any, of brokers and finders
(other than those, if any, retained by a Purchaser or other holder in connection
with its purchase of the Notes).
SECTION 15.2. SURVIVAL. The obligations of the Company under this Section
15 will survive the payment or transfer of any Note, the enforcement, amendment
or waiver of any provision of any Financing Agreement, and the termination of
any Financing Agreement.
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein are true and correct as
of the date of this Agreement and shall survive the execution and delivery of
this Agreement, the Notes and the other Financing Agreements, the purchase or
transfer by any Purchaser of any Note or portion thereof or interest therein and
the payment of any Note, and may be relied upon by any subsequent holder of a
Note, regardless of any investigation made at any time by or on behalf of such
Purchaser or any other holder of a Note. All statements contained in any
certificate or other instrument delivered by or on behalf of any Obligor
pursuant to any Financing Agreement shall be true and correct as of the date
made and shall be deemed representations and warranties of such Obligor under
such Financing Agreement. Subject to the preceding sentence, this Agreement, the
Notes and the other Financing Agreements embody the entire agreement and
understanding between each Purchaser and the Obligors and supersede all prior
agreements and understandings relating to the subject matter hereof.
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SECTION 17. AMENDMENT AND WAIVER.
SECTION 17.1. REQUIREMENTS. This Agreement, the Notes and the other
Financing Agreements may be amended, and the observance of any term hereof, of
the Notes or of any other Financing Agreement may be waived (either
retroactively or prospectively), with (and only with) the written consent of the
Obligors and the Required Holders, except that (a) no amendment or waiver of any
of the provisions of Sections 1, 2, 3, 4, 5, 6, 21 or 22 hereof, or any defined
term (as it is used therein), will be effective as to any Purchaser unless
consented to by such Purchaser in writing, and (b) no such amendment or waiver
may, without the written consent of the holder of each Note at the time
outstanding affected thereby, (i) subject to the provisions of Section 12
relating to acceleration or rescission, change the amount or time of any
prepayment or payment of principal of, or reduce the rate or change the time of
payment or method of computation of interest or of the Make-Whole Amount on, the
Notes, (ii) change the percentage of the principal amount of the Notes the
holders of which are required to consent to any such amendment or waiver, or
(iii) amend any of Sections 8, 11(a), 11(b), 12, 17, 20 or 22.
SECTION 17.2. SOLICITATION OF HOLDERS OF NOTES.
(a) Solicitation. The Company will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with reasonably
sufficient information, reasonably far enough in advance of the date a decision
is required, to enable such holder to make an informed and considered decision
with respect to any proposed amendment, waiver or consent in respect of any of
the provisions hereof or of the Notes. The Company will deliver executed or true
and correct copies of each amendment, waiver or consent effected pursuant to the
provisions of this Section 17 to each holder of outstanding Notes promptly
following the date on which it is executed and delivered by, or receives the
consent or approval of, the requisite holders of Notes.
(b) Payment. No Obligor will directly or indirectly pay or cause to be paid
any remuneration, whether by way of supplemental or additional interest, fee or
otherwise, or grant any security or provide other credit support, to any holder
of Notes as consideration for or as an inducement to the entering into by any
holder of Notes of any waiver or amendment of any of the terms and provisions
hereof unless such remuneration is concurrently paid, or security is
concurrently granted or other credit support concurrently provided, on the same
terms, ratably to each holder of Notes then outstanding even if such holder did
not consent to such waiver or amendment.
SECTION 17.3. BINDING EFFECT, ETC. Any amendment or waiver consented to as
provided in this Section 17 applies equally to all holders of Notes and is
binding upon them and upon each future holder of any Note and upon the Obligors
without regard to whether such Note has been marked to indicate such amendment
or waiver. No such amendment or waiver will extend to or affect any obligation,
covenant, agreement, Default or Event of Default not expressly amended or waived
or impair any right consequent thereon. No course of dealing between the
Obligors and the holder of any Note nor any delay in exercising any rights
hereunder or under any Note shall operate as a waiver of any rights of any
holder of such Note. As used herein, the term "this Agreement" and references
thereto shall mean this Agreement as it may from time to time be amended or
supplemented.
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SECTION 17.4. NOTES HELD BY COMPANY, ETC. Solely for the purpose of
determining whether the holders of the requisite percentage of the aggregate
principal amount of Notes then outstanding approved or consented to any
amendment, waiver or consent to be given under this Agreement, the Notes or any
other Financing Agreement, or have directed the taking of any action provided
herein, in the Notes or any other Financing Agreement to be taken upon the
direction of the holders of a specified percentage of the aggregate principal
amount of Notes then outstanding, Notes directly or indirectly owned by the
Company or any of its Affiliates shall be deemed not to be outstanding.
SECTION 18. NOTICES.
All notices and communications provided for hereunder shall be in writing
and sent (a) by electronic e-mail, provided, that, the recipient thereof has
specifically for the purposes of notice under the Financing Agreements made
available a means for such communication, or (b) by telefacsimile if the sender
on the same day sends a confirming copy of such notice by a recognized overnight
delivery service (charges prepaid), or (c) by registered or certified mail with
return receipt requested (postage prepaid), or (d) by a recognized overnight
delivery service (with charges prepaid). Any such notice must be sent:
(i) if to any Purchaser or its nominee, to such Purchaser or nominee
at the address (or telecopy number or e-mail address) specified for such
communications in Schedule A, or at such other address as such Purchaser or
nominee shall have specified to the Company in writing,
(ii) if to any other holder of any Note, to such holder at such
address (or telecopy number or e-mail address) as such other holder shall
have specified to the Company in writing, or
(iii) if to any Obligor, to the Company at its address set forth at
the beginning hereof to the attention of Chief Financial Officer (Telecopy
No. (000) 000-0000; Email address: Xxxxxx_X_Xxxxxxx@xxxxxx.xxx), or at such
other address as the Company shall have specified to the holder of each
Note in writing.
Notices under this Section 18 will be deemed given (i) when actually received if
sent by email communication or telefacsimile, (ii) in four Business Days if sent
by mail, and (iii) in one Business Day if sent by overnight delivery service.
SECTION 19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by any Purchaser at the Closing (except the
Notes themselves), and (c) financial statements, certificates and other
information previously or hereafter furnished to any Purchaser, may be
reproduced by such Purchaser by any photographic, photostatic, electronic,
digital, or other similar process and such Purchaser may destroy any original
document so reproduced. The Obligors agree and stipulate that, to the extent
permitted by applicable law, any such
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reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by such Purchaser in the
regular course of business) and any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence. This
Section 19 shall not prohibit the Obligors or any other holder of Notes from
contesting any such reproduction to the same extent that it could contest the
original, or from introducing evidence to demonstrate the inaccuracy of any such
reproduction.
SECTION 20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information" means
information delivered to any Purchaser by or on behalf of any Obligor or any
Subsidiary in connection with the transactions contemplated by or otherwise
pursuant to this Agreement that is proprietary in nature and that was clearly
marked or labeled or otherwise adequately identified when received by such
Purchaser as being confidential information of such Obligor or such Subsidiary,
provided that such term does not include information that (a) was publicly known
or otherwise known to such Purchaser prior to the time of such disclosure, (b)
subsequently becomes publicly known through no act or omission by such Purchaser
or any person acting on such Purchaser's behalf, (c) otherwise becomes known to
such Purchaser other than through disclosure by such Obligor or such Subsidiary
or (d) constitutes financial statements delivered to such Purchaser under
Section 7.1 that are otherwise publicly available. Each Purchaser will maintain
the confidentiality of such Confidential Information in accordance with
procedures adopted by such Purchaser in good faith to protect confidential
information of third parties delivered to such Purchaser, provided that such
Purchaser may deliver or disclose Confidential Information to (i) its directors,
officers, employees, agents, attorneys and affiliates (to the extent such
disclosure reasonably relates to the administration of the investment
represented by its Notes), (ii) its financial advisors and other professional
advisors who agree to hold confidential the Confidential Information
substantially in accordance with the terms of this Section 20, (iii) any other
holder of any Note, (iv) any Institutional Investor to which it sells or offers
to sell such Note or any part thereof or any participation therein (if such
Person has agreed in writing prior to its receipt of such Confidential
Information to be bound by the provisions of this Section 20), (v) any Person
from which it offers to purchase any security of an Obligor (if such Person has
agreed in writing prior to its receipt of such Confidential Information to be
bound by the provisions of this Section 20), (vi) any federal or state
regulatory authority having jurisdiction over such Purchaser, (vii) the NAIC or
the SVO or, in each case, any similar organization, or any nationally recognized
rating agency that requires access to information about such Purchaser's
investment portfolio, or (viii) any other Person to which such delivery or
disclosure may be necessary or appropriate (w) to effect compliance with any
law, rule, regulation or order applicable to such Purchaser, (x) in response to
any subpoena or other legal process, (y) in connection with any litigation to
which such Purchaser is a party or (z) if an Event of Default has occurred and
is continuing, to the extent such Purchaser may reasonably determine such
delivery and disclosure to be necessary or appropriate in the enforcement or for
the protection of the rights and remedies under such Purchaser's Notes, this
Agreement and the other Financing Agreements, provided that prior to disclosure
under this clause (viii) (other than sub clause (z) thereof), such Purchaser
will endeavor to provide notice to the Company reasonably far enough in advance
to enable the Company to seek protective orders to maintain the confidentiality
of information to be so
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eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
disclosed, provided, however, such Purchaser shall have no liability for its
failure to so notify the Company. Each holder of a Note, by its acceptance of a
Note, will be deemed to have agreed to be bound by and to be entitled to the
benefits of this Section 20 as though it were a party to this Agreement. On
reasonable request by the Company in connection with the delivery to any holder
of a Note of information required to be delivered to such holder under this
Agreement or requested by such holder (other than a holder that is a party to
this Agreement or its nominee), such holder will enter into an agreement with
the Company embodying the provisions of this Section 20. Each Purchaser agrees
that for purposes of the Company's compliance with Regulation FD of the SEC, the
provisions of this Section 20 constitute a confidentiality agreement within the
meaning of Rule 100(b)(2)(ii) of Regulation FD of the SEC.
SECTION 21. SUBSTITUTION OF PURCHASER.
Each Purchaser shall have the right to substitute any one of its Affiliates
as the purchaser of the Notes that it has agreed to purchase hereunder, by
notice to the Company, which notice shall be signed by both such Purchaser and
such Affiliate, shall contain such Affiliate's agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy
with respect to it of the representations set forth in Section 6. Such
substituted Purchaser shall provide to the Company in such notice of such
transfer information reasonably requested by the Company in order to facilitate
delivery of notices to such substituted Purchaser, including wire transfer
information similar to the information provided by other Purchasers in Schedule
A. Upon receipt of such notice, any reference to such Purchaser in this
Agreement (other than in this Section 21), shall be deemed to refer to such
Affiliate in lieu of such original Purchaser. In the event that such Affiliate
is so substituted as a Purchaser hereunder and such Affiliate thereafter
transfers to such original Purchaser all of the Notes then held by such
Affiliate, upon receipt by the Company of notice of such transfer, any reference
to such Affiliate as a "Purchaser" in this Agreement (other than in this Section
21), shall no longer be deemed to refer to such Affiliate, but shall refer to
such original Purchaser, and such original Purchaser shall again have all the
rights of an original holder of the Notes under this Agreement.
SECTION 22. GUARANTEE AGREEMENT.
SECTION 22.1. GUARANTEED OBLIGATIONS. (a) Each Guarantor hereby,
irrevocably, unconditionally, absolutely, jointly and severally with each other
Guarantor, guarantees to each holder of Notes, as and for such Guarantor's own
debt, until final and indefeasible payment has been made the due and punctual
payment by the Company of the principal of, and interest (including default
interest and post-petition interest), and the Make-Whole Amount or any other
premium on, the Notes at any time outstanding and the due and punctual payment
of all other amounts payable, and all other Indebtedness owing, by the Company
to the holders of the Notes under this Agreement, the Notes and the other
Financing Agreements (all such obligations so guaranteed are herein collectively
referred to as the "Guaranteed Obligations"), in each case when and as the same
shall become due and payable, whether at maturity, pursuant to mandatory or
optional prepayment, by acceleration or otherwise, all in accordance with the
terms and provisions hereof and thereof.
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(b) In addition to and without limiting the foregoing, each of the
Guarantors covenants that, so long as any Guaranteed Obligations shall remain
unpaid, it will, and, if necessary, will enable the Company to, fully comply
with those covenants and agreements of the Company and such Guarantor applicable
to such Guarantor set forth in this Agreement and the other Financing
Agreements.
SECTION 22.2. PERFORMANCE UNDER THIS AGREEMENT. In the event that the
Company fails to make, on or before the due date thereof, any payment of the
Guaranteed Obligations, or if any Obligor shall fail to perform, keep, observe,
or fulfill any other obligation referred to in clause (a) or clause (b) of
Section 22.1 in the manner provided in this Agreement, the Notes or the other
Financing Agreements after in each case giving effect to any applicable grace
periods or cure provisions or waivers or amendments, each Guarantor shall cause
forthwith to be paid the moneys, or to be performed, kept, observed, or
fulfilled each of such obligations, in respect of which such failure has
occurred in accordance with the terms and provisions of this Agreement, the
Notes and the other Financing Agreements.
SECTION 22.3. WAIVERS. To the fullest extent permitted by law, each
Guarantor does hereby waive:
(a) notice of acceptance of this Guarantee Agreement;
(b) notice of any purchase of the Notes under this Agreement, or the
creation, existence or acquisition of any of the Guaranteed Obligations,
subject to such Guarantor's right to make inquiry of each holder of Notes
to ascertain the amount of the Guaranteed Obligations at any reasonable
time;
(c) notice of the amount of the Guaranteed Obligations, subject to
such Guarantor's right to make inquiry of each holder of Notes to ascertain
the amount of the Guaranteed Obligations at any reasonable time;
(d) notice of adverse change in the financial condition of the
Company, any other Obligor or any other guarantor or any other fact that
might increase or expand such Guarantor's risk hereunder;
(e) notice of any Default or Event of Default;
(f) all other notices and demands to which such Guarantor might
otherwise be entitled;
(g) the defense of the "single action" rule or any similar right or
protection, and the right by statute or otherwise to require any holder of
Notes to institute suit against the Company, any other Obligor or any other
guarantor or to exhaust its rights and remedies against the Company, any
other Obligor or any other guarantor, such Guarantor being bound to the
payment of each and all Guaranteed Obligations, whether now existing or
hereafter accruing, as fully as if such Guaranteed Obligations were
directly owing to the holders of Notes by such Guarantor;
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(h) any defense of the Company or any other Obligor under the Notes,
this Agreement or any other Financing Agreement other than the full and
timely performance thereof;
(i) any defense relating to the validity or enforceability (or absence
or failure thereof) of any term of the Notes, this Agreement or any other
Financing Agreement;
(j) any defense arising by reason of any disability or other defense
(other than the defense that the Guaranteed Obligations shall have been
fully and finally performed and indefeasibly paid) of the Company or by
reason of the cessation from any cause whatsoever of the liability of the
Company in respect thereof, and any other defense that such Guarantor may
otherwise have against the Company or any holder of Notes;
(k) any stay (except in connection with a pending appeal), valuation,
appraisal redemption or extension law now or at any time hereafter in force
which, but for this waiver, might be applicable to any sale of property of
such Guarantor made under any judgment, order or decree based on this
Agreement, and such Guarantor covenants that it will not at any time insist
upon or plead, or in any manner claim or take the benefit or advantage of
such law;
(l) any defense based on an increase in principal amount of the Notes
or the interest rate thereunder; and
(m) any other defense which such Guarantor may have to the full and
complete performance of its obligations hereunder.
SECTION 22.4. CERTAIN WAIVERS OF SUBROGATION, REIMBURSEMENT AND INDEMNITY.
Until all of the Guaranteed Obligations shall have been fully and finally paid,
each Guarantor shall have no right of subrogation, reimbursement or indemnity
whatsoever and no right of recourse to or with respect to any assets or property
of the Company, any other Obligor or any other guarantor. Without limiting the
foregoing, no Guarantor will in the event of a dissolution of an Obligor: (a)
take steps to recover (whether directly or by set-off, counterclaim or
otherwise) or accept money or other property, or exercise or enforce rights in
respect of, Indebtedness of that Obligor to that Guarantor so long as there is
any Guaranteed Obligations due by that Obligor, nor (b) claim, prove or accept
payment in composition by, or a dissolution of, that Obligor in competition with
any holder of Notes. Nothing shall discharge or satisfy the liability of a
Guarantor hereunder except the full and final performance and indefeasible
payment of the Guaranteed Obligations.
SECTION 22.5. RELEASES. Each Guarantor consents and agrees that, without
notice to or by such Guarantor and without impairing, releasing, abating,
deferring, suspending, reducing, terminating or otherwise affecting the
obligations of such Guarantor hereunder, each holder of Notes, in the manner
provided herein, by action or inaction, may:
(a) compromise or settle, renew or extend the period of duration or
the time for the payment, or discharge the performance of, or may refuse
to, or otherwise not,
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eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
enforce, or may, by action or inaction, release all or any one or more
parties to, any one or more of this Agreement, the Notes or the other
Financing Agreements;
(b) assign, sell or transfer, or otherwise dispose of, any one or more
of the Notes;
(c) grant waivers, extensions, consents and other indulgences to the
Company, any other Obligor or any other guarantor in respect of any one or
more of this Agreement, the Notes or the other Financing Agreements;
(d) amend, modify or supplement in any manner and at any time (or from
time to time) any one or more of this Agreement, the Notes or the other
Financing Agreements or increase the principal amount of the Notes or the
interest rate thereunder;
(e) add, release or substitute any one or more of the endorsers or
guarantors of the Guaranteed Obligations whether parties hereto or not;
(f) sell, exchange, release or surrender any property at any time
pledged or granted as security in respect of the Guaranteed Obligations,
whether so pledged or granted by such Guarantor or another guarantor of any
Company's obligations under this Agreement, the Notes or the other
Financing Agreements;
(g) exchange, enforce, waive, or release, by action or inaction, any
security for the Guaranteed Obligations or any other guarantee of any of
the Notes; and
(h) do any other act or event which could have the effect of releasing
any Guarantor from the full and complete performance of its obligations
hereunder.
SECTION 22.6. MARSHALING. Each Guarantor consents and agrees that:
(a) each holder of Notes shall be under no obligation to marshal any
assets in favor of such Guarantor or against or in payment of any or all of
the Guaranteed Obligations; and
(b) to the extent the Company or another guarantor makes a payment or
payments to any holder of Notes, which payment or payments or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside, or required, for any of the foregoing reasons or
for any other reason, to be repaid or paid over to a custodian, trustee,
receiver, or any other party under any bankruptcy law, common law, or
equitable cause, then to the extent of such payment or repayment, the
obligation or part thereof intended to be satisfied thereby shall be
revived and continued in full force and effect as if said payment or
payments had not been made and such Guarantor shall be primarily liable for
such obligation.
SECTION 22.7. LIABILITY. Each Guarantor agrees that the liability of such
Guarantor in respect of this Section shall be immediate, and shall not be
contingent upon the exercise or
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enforcement by any holder of Notes of whatever remedies such holder may have
against the Company, any other Obligor or any other guarantor or the enforcement
of any Lien or realization upon any security such holder may at any time
possess.
SECTION 22.8. CHARACTER OF OBLIGATION. The Guaranty set forth in this
Section is a primary and original obligation of each Guarantor and is an
absolute, unconditional, continuing and irrevocable guarantee of payment and
performance (and not of collectibility) and shall remain in full force and
effect until the full, final and indefeasible payment of the Guaranteed
Obligations without respect to future changes in conditions.
The obligations of each Guarantor under this Guarantee Agreement and the
rights of the holders of Notes to enforce such obligations by any proceedings,
whether by action at law, suit in equity or otherwise, shall not be subject to
any reduction, limitation, impairment or termination, whether by reason of any
claim of any character whatsoever or otherwise, including, without limitation,
claims of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense, set-off, counterclaim, recoupment or termination
whatsoever, other than the defense that the Guaranteed Obligations have been
fully and finally performed and indefeasibly paid in full in cash.
Without limiting the generality of the foregoing, the obligations of each
Guarantor hereunder shall not be discharged or impaired or otherwise affected
by:
(a) any default, failure or delay, willful or otherwise, in the
performance by the Company of any obligations of any kind or character
whatsoever of the Company;
(b) any creditors' rights, bankruptcy, receivership or other
insolvency proceeding of the Company or any other Person or in respect of
the property of the Company or any other Person or any merger,
consolidation, reorganization, dissolution, liquidation or winding up of
the Company or any other Person;
(c) impossibility or illegality of performance on the part of the
Company of its obligations under the Notes, this Agreement, any other
Financing Agreement or any other instruments or agreements;
(d) the validity or enforceability of the Notes, this Agreement, any
other Financing Agreement or any other instruments or agreements;
(e) in respect of the Company or any other Person, any change of
circumstances, whether or not foreseen or foreseeable, whether or not
imputable to the Company or any other Person, or other impossibility of
performance through fire, explosion, accident, labor disturbance, floods,
droughts, embargoes, wars (whether or not declared), civil commotions, acts
of terrorism, acts of God or the public enemy, delays or failure of
suppliers or carriers, inability to obtain materials, action of any federal
or state regulatory body or agency, change of law or any other causes
affecting performance, or any other force majeure, whether or not beyond
the control of the Company or any other Person and whether or not of the
kind hereinbefore specified;
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(f) any attachment, claim, demand, charge, lien, order, process,
encumbrance or any other happening or event or reason, similar or
dissimilar to the foregoing, or any withholding or diminution at the
source, by reason of any taxes, assessments, expenses, debt, obligations or
liabilities of any charter, foreseen or unforeseen, and whether or not
valid, incurred by or against any Person, or any claims, demands, charges
or Liens of any nature, foreseen or unforeseen, incurred by any Person, or
against any sums payable under this Agreement, the Notes or any other
Financing Agreement, so that such sums would be rendered inadequate or
would be unavailable to make the payments herein provided;
(g) any order, judgment, decree, law, ruling or regulation (whether or
not valid) of any court of any nation or of any political subdivision
thereof or any body, agency, department, official or administrative or
regulatory agency of any thereof or any other action, happening, event or
reason whatsoever which shall delay, interfere with, hinder or prevent, or
in any way adversely affect, the performance by any party of its respective
obligations under any instruments; or
(h) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, any Guarantor in respect of the
obligations of such Guarantor under this Guarantee Agreement, other than
the defense that the Guaranteed Obligations have been fully and finally
performed and indefeasibly paid in full in cash.
SECTION 22.9. ELECTION TO PERFORM OBLIGATIONS. Any election by a Guarantor
to pay or otherwise perform any of the obligations of the Company under this
Agreement, the Notes or any other Financing Agreement, whether pursuant to this
Section or otherwise, shall not release the Company from such obligations
(except to the extent such obligation is indefeasibly performed) or any of such
Person's other obligations under this Agreement, the Notes or any other
Financing Agreement.
SECTION 22.10. NO ELECTION. Each holder of Notes shall have the right to
seek recourse against any Guarantor to the fullest extent provided for in this
Section 22 and elsewhere as provided in this Agreement, the Notes and any other
Financing Agreement, and against the Company, to the full extent provided for in
this Agreement, the Notes and such other Financing Agreements. Each Guarantor
hereby acknowledges that it has other undertakings in this Agreement and running
in favor of each of the holders of Notes that are separate and apart from their
obligations under this Section 22. No election to proceed in one form of action
or proceeding, or against any party, or on any obligation, shall constitute a
waiver of the right of such holder of Notes to proceed in any other form of
action or proceeding or against other parties unless such holder of Notes has
expressly waived such right in writing. Specifically, but without limiting the
generality of the foregoing, no action or proceeding by any holder of Notes
against the Company or any Guarantor under any document or instrument evidencing
obligations of the Company or such Guarantor to such holder of Notes shall serve
to diminish the liability of a Guarantor under this Agreement (including,
without limitation, this Section 22) except to the extent that such holder of
Notes finally and unconditionally shall have realized payment of the Guaranteed
Obligations by such action or proceeding, notwithstanding the effect of any such
action or proceeding upon such Guarantor's right of subrogation against the
Company.
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SECTION 22.11. SEVERABILITY. Each of the rights and remedies granted under
this Section 22 to the holder of Notes in respect of the Notes held by such
holder may be exercised by such holder without notice by such holder to, or the
consent of or any other action by, any other holder of Notes.
SECTION 22.12. OTHER ENFORCEMENT RIGHTS. Each holder of Notes may proceed
to protect and enforce the Guaranty under this Section 22 by suit or suits or
proceedings in equity, at law or in bankruptcy, and whether for the specific
performance of any covenant or agreement contained in this Section 22 or in
execution or aid of any power herein granted or for the recovery of judgment for
or in respect of the Guaranteed Obligations or for the enforcement of any other
proper, legal or equitable remedy available under applicable law.
SECTION 22.13. DELAY OR OMISSION; NO WAIVER. No course of dealing on the
part of any holder of Notes and no delay or failure on the part of such holder
to exercise any right under this Agreement, the Notes or the other Financing
Agreements shall impair such right or operate as a waiver of such right or
otherwise prejudice such holder's rights, powers and remedies hereunder. Every
right and remedy given in or by this Section 22 or by law to any holder of Notes
may be exercised from time to time as often as may be deemed expedient by such
Person.
SECTION 22.14. RESTORATION OF RIGHTS AND REMEDIES. If any holder of Notes
shall have instituted any proceeding to enforce any right or remedy under this
Agreement, under any Note held by such holder or under any other Financing
Agreement and such proceeding shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to such holder, then and in
every such case each such holder, the Company and each Guarantor shall, except
as may be limited or affected by any determination in such proceeding, be
restored severally and respectively to their respective former positions
hereunder and thereunder, and thereafter the rights and remedies of such holder
shall continue as though no such proceeding had been instituted.
SECTION 22.15. CUMULATIVE REMEDIES. No remedy under this Agreement, the
Notes or the other Financing Agreements is intended to be exclusive of any other
remedy, but each and every remedy shall be cumulative and in addition to any and
every other remedy given pursuant to this Agreement, the Notes or the other
Financing Agreements.
SECTION 22.16. SURVIVAL. So long as the Guaranteed Obligations shall not
have been fully and finally performed and indefeasibly paid, the obligations of
each Guarantor under this Section 22 shall survive the transfer and payment of
any Note and the payment in full of all the Notes.
SECTION 22.17. MISCELLANEOUS. So long as the Guaranteed Obligations shall
not have been fully and finally performed and indefeasibly paid, each Guarantor
(to the fullest extent that it may lawfully do so) expressly waives any claim of
any nature arising out of any right of indemnity, contribution, reimbursement or
any similar right in respect of any payment made under this Section 22 or in
connection with this Section 22 or otherwise, or any claim of subrogation
arising with respect to any payment made under this Section 22 or otherwise,
against the Company or the estate of the Company (including Liens on the
property of the Company or
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the estate of the Company), in each case if, and for so long as, the Company is
the subject of any proceeding brought under any bankruptcy, reorganization,
arrangement, insolvency, administration, readjustment of debt, dissolution or
liquidation law of any jurisdiction, whether now or hereafter in effect, and
further agrees that it will not file any claims against the Company or the
estate of the Company in the course of such proceeding in respect of the rights
referred to in this Section 22, and further agrees that each holder of Notes may
specifically enforce the provisions of this Section 22. This clause creates a
promise which is intended to create obligations enforceable at the suit of each
holder of Notes.
If an Event of Default has occurred and is continuing, then the holders of
Notes shall have the right to declare all of the Guaranteed Obligations to be,
and such Guaranteed Obligations shall thereupon become, forthwith due and
payable, without any presentment, demand, protest or other notice of any kind,
all of which have been expressly waived by the Company and each Guarantor, and
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such Guaranteed Obligations from becoming automatically due and
payable) as against the Company. In any such event, the holders of Notes shall
have immediate recourse to each Guarantor to the fullest extent set forth
herein.
SECTION 22.18. LIMITATION. Anything herein, in the Notes or in any other
Financing Agreement to the contrary notwithstanding, the liability of each
Guarantor under this Agreement, the Notes and the other Financing Agreements
shall in no event exceed an amount equal to the maximum amount which can be
guaranteed by such Guarantor under applicable laws relating to the insolvency of
debtors and fraudulent conveyance.
SECTION 22.19. WRITTEN NOTICE. Notwithstanding any other provision of this
Section 22, in the event of any acceleration of the Notes in accordance with the
provisions of Section 12 hereof, any requirement of written notice to, or demand
of, any Guarantor pursuant to this Section 22 shall be deemed automatically
satisfied upon such acceleration without further action on the part of any
holder (notwithstanding any stay, injunction or other prohibition preventing any
notice, demand or acceleration).
SECTION 23. MISCELLANEOUS.
SECTION 23.1. SUCCESSORS AND ASSIGNS. All covenants and other agreements
contained in this Agreement and in the other Financing Agreements by or on
behalf of any of the parties hereto or thereto bind and inure to the benefit of
their respective successors and assigns (including, without limitation, any
subsequent holder of a Note) whether so expressed or not.
SECTION 23.2. PAYMENTS DUE ON NON-BUSINESS DAYS. Anything in this
Agreement, the Notes or in any other Financing Agreement to the contrary
notwithstanding (but without limiting the requirement in Section 8.5 that the
notice of any optional prepayment specify a Business Day as the date fixed for
such prepayment), any payment of principal of or Make-Whole Amount or interest
on any Note that is due on a date other than a Business Day shall be made on the
next succeeding Business Day without including the additional days elapsed in
the computation of the interest payable on such next succeeding Business Day;
provided that if the maturity date of any Note is a date other than a Business
Day, the payment otherwise due on such maturity date shall
-47-
eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
be made on the next succeeding Business Day and shall include the additional
days elapsed in the computation of interest payable on such next succeeding
Business Day.
SECTION 23.3. ACCOUNTING TERMS. All accounting terms used herein or in any
other Financing Agreement which are not expressly defined in this Agreement or
such other Financing Agreement have the meanings respectively given to them in
accordance with GAAP. Except as otherwise specifically provided herein, (i) all
computations made pursuant to this Agreement or in any other Financing Agreement
shall be made in accordance with GAAP, and (ii) all financial statements shall
be prepared in accordance with GAAP.
Notwithstanding the foregoing, if the Company notifies the holders of the
Notes that the Company requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the date hereof in GAAP or in
the application thereof on the operation of such provision (or if any holder of
Notes notifies the Company that the Required Holders 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. In the event of any such notice and request for amendment, the
Obligors and the holders agree to promptly proceed in good faith to the
consummation of an amendment to the Financing Agreements to the end of negating
the effect of any such change in GAAP after the date hereof.
SECTION 23.4. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full extent permitted by law)
not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 23.5. CONSTRUCTION, ETC. Each covenant contained herein shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to action
to be taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person.
For the avoidance of doubt, all Schedules and Exhibits attached to this
Agreement shall be deemed to be a part hereof.
SECTION 23.6. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one instrument. Each counterpart may consist of a number of copies
hereof, each signed by less than all, but together signed by all, of the parties
hereto.
-48-
eFUNDS CORPORATION NOTE PURCHASE AGREEMENT
SECTION 23.7. GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the law
of the State of New York excluding choice-of-law principles of the law of such
State that would permit the application of the laws of a jurisdiction other than
such State.
SECTION 23.8. JURISDICTION AND PROCESS; WAIVER OF JURY TRIAL. (a) Each
Obligor irrevocably submits to the non-exclusive jurisdiction of any New York
State or federal court sitting in the Borough of Manhattan, The City of New
York, over any suit, action or proceeding arising out of or relating to this
Agreement, the Notes or any other Financing Agreement. To the fullest extent
permitted by applicable law, each Obligor irrevocably waives and agrees not to
assert, by way of motion, as a defense or otherwise, any claim that it is not
subject to the jurisdiction of any such court, any objection that it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding
brought in any such court and any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
(b) Each Obligor consents to process being served by or on behalf of any
holder of Notes in any suit, action or proceeding of the nature referred to in
Section 23.8(a) by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, return receipt
requested, to it at its address specified in Section 18 or at such other address
of which such holder shall then have been notified pursuant to said Section.
Each Obligor agrees that such service upon receipt (i) shall be deemed in every
respect effective service of process upon it in any such suit, action or
proceeding and (ii) shall, to the fullest extent permitted by applicable law, be
taken and held to be valid personal service upon and personal delivery to it.
Notices hereunder shall be conclusively presumed received as evidenced by a
delivery receipt furnished by the United States Postal Service or any reputable
commercial delivery service.
(c) Nothing in this Section 23.8 shall affect the right of any holder of a
Note to serve process in any manner permitted by law, or limit any right that
the holders of any of the Notes may have to bring proceedings against an Obligor
in the courts of any appropriate jurisdiction or to enforce in any lawful manner
a judgment obtained in one jurisdiction in any other jurisdiction.
(d) THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN ANY ACTION BROUGHT ON
OR WITH RESPECT TO THIS AGREEMENT, THE NOTES OR ANY OTHER DOCUMENT EXECUTED IN
CONNECTION HEREWITH OR THEREWITH.
* * * * *
-49-
eFunds Corporation Note Purchase Agreement
If you are in agreement with the foregoing, please sign the form of
agreement on a counterpar of this Agreement and return it to the Company,
whereupon this Agreement shall become a binding agreement between you and the
Company.
Very truly yours,
eFUNDS CORPORATION
By /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
CHEX SYSTEMS, INC.
By /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
CLEARCOMMERCE CORPORATION
By /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
DEPOSIT PAYMENT PROTECTION SERVICES,
INC.
By /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
EFUNDS GLOBAL HOLDINGS CORPORATION
By /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
EFUNDS IT SOLUTIONS GROUP, INC.
By /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
eFunds Corporation Note Purchase Agreement
XXXXXX, INC.
By /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
WILDCARD SYSTEMS, INC.
By /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
eFunds Corporation Note Purchase Agreement
This Agreement is hereby
accepted and agreed to as
of the date thereof.
GREAT-WEST LIFE & ANNUITY INSURANCE
COMPANY
By /s/ Xxx Xxxxxxxx
-------------------------------------
Name: Xxx Xxxxxxxx
Ass't. Vice President, Investments
By /s/ X. X. Xxxxxx
-------------------------------------
Name: X. X. Xxxxxx
Ass't. Vice President, Investments
GREAT-WEST LIFE & ANNUITY INSURANCE
COMPANY EMPLOYEES' AND AGENTS' PENSION
BENEFITS PLAN TRUST
BY /s/ Xxx Xxxxxxxx
-------------------------------------
Name: Xxx Xxxxxxxx
Assistant Vice President,
Investments
By /s/ X. X. Xxxxxx
-------------------------------------
Name: X. X. Xxxxxx
Assistant Vice President,
Investments
eFunds Corporation Note Purchase Agreement
This Agreement is hereby
accepted and agreed to as
of the date thereof.
LONDON LIFE REINSURANCE COMPANY
By: Orchard Capital Management, LLC, as
Investment Advisor
By /s/ Xxx Xxxxxxxx
-------------------------------------
Name: Xxx Xxxxxxxx,
Ass't. Vice President, Investments
By /s/ X. X. Xxxxxx
-------------------------------------
Name: X. X. Xxxxxx,
Ass't. Vice President, Investments
LONDON LIFE INTERNATIONAL REINSURANCE
CORPORATION
By: Orchard Capital Management, LLC, as
Investment Advisor
By /s/ Xxx Xxxxxxxx
-------------------------------------
Name: Xxx Xxxxxxxx,
Ass't. Vice President, Investments
By /s/ X. X. Xxxxxx
-------------------------------------
Name: X. X. Xxxxxx,
Ass't. Vice President, Investments
eFunds Corporation Note Purchase Agreement
This Agreement is hereby accepted
and agreed to as
of the date thereof.
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: Babson Capital Management LLC, as
Investment Adviser
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
C.M. LIFE INSURANCE COMPANY
By: Babson Capital Management LLC, as
Investment Sub-Adviser
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
MASSMUTUAL ASIA LIMITED
By: Babson Capital Management LLC, as
Investment Adviser
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
eFunds Corporation Note Purchase Agreement
This Agreement is hereby
accepted and agreed to as
of the date thereof.
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC a
Delaware limited liability company,
its authorized signatory
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------
Name: XXXXX XXXXXXXXXX, Counsel
Its:
-----------------------------------
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: XXXXX X. XXXXXXX, Counsel
Its:
-----------------------------------
eFunds Corporation Note Purchase Agreement
This Agreement is hereby
accepted and agreed to as
of the date thereof.
AMERICAN UNITED LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: V.P. Fixed Income Securities
PIONEER MUTUAL LIFE INSURANCE COMPANY
By: American United Life Insurance
Company, its Agent
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: V.P. Fixed Income Securities
THE STATE LIFE INSURANCE COMPANY
By: American United Life Insurance
Company, its Agent
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: V.P. Fixed Income Securities
LAFAYETTE LIFE INSURANCE COMPANY
By: American United Life Insurance
Company, its Agent
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: V.P. Fixed Income Securities
eFunds Corporation Note Purchase Agreement
This Agreement is hereby
accepted and agreed to as
of the date thereof.
MODERN WOODMEN OF AMERICA
By /s/ Xxxx X. Coin
-------------------------------------
Name: Xxxx X. Coin
Title: Treasurer & Investment Manager
DEFINED TERMS
As used herein, the following terms have the respective meanings set forth
below or set forth in the Section hereof following such term:
"ACQUISITION" means any acquisition (whether by purchase, merger,
consolidation or otherwise) or series of related acquisitions by the Company or
any Subsidiary of all or substantially all of the assets of, or all or a
majority of the Equity Interests in, a Person or division or line of business of
a Person.
"ADMINISTRATIVE AGENT" means JPMorgan Chase Bank, N.A. as administrative
agent under the Bank Credit Agreement and any successor or assign thereof in its
capacity as administrative agent thereunder.
"AFFILIATE" means, at any time, and with respect to any Person, any other
Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person. Unless the context otherwise clearly requires, any reference
to an "Affiliate" is a reference to an Affiliate of the Company.
"ANTI-TERRORISM ORDER" means Executive Order No. 13,224 of September 24,
2001, Blocking Property and Prohibiting Transactions with Persons Who Commit,
Threaten to Commit or Support Terrorism, 66 U.S. Fed. Reg. 49, 079 (2001), as
amended.
"ASSET DISPOSITION" means any Transfer except:
(a) any Transfer from an Obligor or a Subsidiary thereof to another
Obligor so long as immediately before and immediately after the
consummation of any such Transfer and after giving effect thereto, no
Default or Event of Default exists; and
(b) any Transfer made in the ordinary course of business and involving
only property that is either (i) inventory held for sale or lease, (ii)
equipment, fixtures, supplies or materials no longer required in the
operation of the business of an Obligor or any of its Subsidiaries or that
is obsolete, (iii) assets subject to licenses, leases or subleases entered
into in the ordinary course of business and not interfering in any material
respect with the business of any Obligor, (iv) cash equivalent investments
assumed pursuant to Acquisitions and replaced with cash or other
investments, or (v) accounts receivable sold or discounted without recourse
in connection with the compromise or collection thereof.
"BANK CREDIT AGREEMENT" means that certain Credit Agreement dated as of
July 1, 2005 among the Company, the lenders party thereto and the Administrative
Agent, as amended, restated, supplemented, modified, extended, refinanced or
replaced from time to time, as the primary bank credit facility of the Obligors.
"BUSINESS DAY" means (a) for the purposes of Section 8.7 only, any day
other than a Saturday, a Sunday or a day on which commercial banks in New York
City are required or
SCHEDULE B
(to Note Purchase Agreement)
authorized to be closed, and (b) for the purposes of any other provision of this
Agreement, any day other than a Saturday, a Sunday or a day on which commercial
banks in New York, New York or Phoenix, Arizona are required or authorized to be
closed.
"CAPITAL LEASE" means, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as Capital
Leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"CLOSING" is defined in Section 3.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"COLLATERAL" means all or a portion of property of the Company or any
Subsidiary in or upon which a security interest or Lien is from time to time
granted as security for the obligations of the Company and its Subsidiaries
under the Financing Agreements and the Bank Credit Agreement.
"COLLATERAL AGENT" means a collateral agent appointed by the holders
pursuant to the Intercreditor Agreement or another agreement acceptable to the
Required Holders.
"COLLATERAL DOCUMENTS" means all agreements, instruments and documents
executed in connection with this Agreement pursuant to which the holders of the
Notes or the Collateral Agent, for the ratable benefit of the holders of the
Notes and the Lenders is granted a security interest in Collateral, including,
without limitation, any and all security agreements, pledge agreements, loan
agreements, notes, guarantees, subordination agreements, intercreditor
agreements (including without limitation, the Intercreditor Agreement), pledges,
powers of attorney, consents, assignments, contracts, fee letters, notices,
leases, financing statements and all other written matter whether heretofore,
now or hereafter executed by or on behalf of the Company or any of its
Subsidiaries and delivered to the Collateral Agent or any of the holders of
Notes, together with all agreements and documents referred to therein or
contemplated thereby.
"COMPANY" means eFunds Corporation, a Delaware corporation, or any
successor that becomes such in the manner prescribed in Section 10.2.
"CONFIDENTIAL INFORMATION" is defined in Section 20.
-2-
"CONSOLIDATED EBITDA" means, with reference to any period, Consolidated Net
Income for such period plus, to the extent deducted from revenues in determining
Consolidated Net Income, (i) Consolidated Interest Expense, (ii) expense for
income taxes paid or accrued, (iii) depreciation, (iv) amortization, (v)
non-cash charges arising from compensation expense as a result of the adoption
of the revised Statement of Financial Accounting Standards No. 123 (revised
2004), "Share Based Payments" (SFAS No. 123R) (or any similar successor
pronouncement) which would require certain stock based compensation to be
recorded as an expense within the Company's and its Subsidiaries' consolidated
statement of operations and (vi) extraordinary or non-recurring non-cash losses
incurred other than in the ordinary course of business minus, to the extent
included in Consolidated Net Income, extraordinary or non-recurring non-cash
gains realized other than in the ordinary course of business, all calculated for
the Company and its Subsidiaries in accordance with GAAP on a consolidated
basis.
"CONSOLIDATED EBITDAR" means, with reference to any period, Consolidated
EBITDA plus, to the extent deducted from revenues in determining Consolidated
EBITDA, Consolidated Rent Expense, all calculated for the Company and its
Subsidiaries in accordance with GAAP on a consolidated basis.
"CONSOLIDATED FIXED CHARGES" means, with reference to any period and
without duplication, all payments by the Company and its Subsidiaries during
such period in respect of the sum of (i) Consolidated Interest Expense plus (ii)
Consolidated Rent Expense.
"CONSOLIDATED INTEREST EXPENSE" means, with reference to any period, the
interest expense (including without limitation interest expense under Capital
Lease Obligations that is treated as interest in accordance with GAAP) of the
Company and its Subsidiaries calculated on a consolidated basis for such period.
"CONSOLIDATED NET INCOME" means, with reference to any period, the net
income (or loss) of the Company and its Subsidiaries for such period calculated
on a consolidated basis in accordance with GAAP.
"CONSOLIDATED NET WORTH" means, as at any date of determination, the value
of stockholders' equity of the Company and its Subsidiaries as of such date
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED RENT EXPENSE" means, with reference to any period, all
payments under Operating Leases to the extent deducted in computing Consolidated
Net Income, net of any related income from subleases, in each case calculated in
accordance with GAAP for the Company and its Subsidiaries on a consolidated
basis for such period.
"CONSOLIDATED TOTAL ASSETS" means, as at any date of determination, the
total assets of the Company and its Subsidiaries on such date, determined on a
consolidated basis in accordance with GAAP.
-3-
"CONSOLIDATED TOTAL INDEBTEDNESS" means, as at any date of determination
and without duplication, the aggregate Indebtedness of the Company and its
Subsidiaries as of such date calculated on a consolidated basis in accordance
with GAAP.
"CONTINGENT PAYMENTS" means liabilities for the deferred purchase price
associated with Acquisitions (such as hold-backs and earnouts) that are not
evidenced by bonds, debentures, notes or similar instruments.
"CONTROL" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
"DEBT PREPAYMENT APPLICATION" means the application or offer to apply by an
Obligor or any Subsidiary of cash to pay Senior Debt of an Obligor or any
Subsidiary (other than Senior Debt in respect of any revolving credit or similar
credit facility providing an Obligor or any Subsidiary with the right to obtain
loans or other extensions of credit from time to time, except to the extent that
in connection with such payment of Senior Debt the availability of credit under
such credit facility is permanently reduced by an amount not less than the
amount of such proceeds applied to the payment of such Senior Debt).
"DEFAULT" means an event or condition the occurrence or existence of which
would, with the lapse of time or the giving of notice or both, become an Event
of Default.
"DEFAULT RATE" means that rate of interest that is the greater of (i) 2.0%
per annum above the rate of interest stated in clause (a) of the first paragraph
of the Notes or (ii) 2.0% over the rate of interest publicly announced by
JPMorgan Chase Bank, N.A. in New York, New York as its "base" or "prime" rate.
"DISPOSITION VALUE" means, at any time, with respect to any property:
(a) in the case of property that does not constitute stock of a
Subsidiary, the book value thereof, valued at the time of such disposition
in good faith by the applicable Obligor, and
(b) in the case of property that constitutes stock of a Subsidiary, an
amount equal to that percentage of book value of the assets of the
Subsidiary that issued such stock as is equal to the percentage that such
stock represents of all of the outstanding capital stock of such Subsidiary
(assuming, in making such calculations, that all securities convertible
into such capital stock are so converted and giving full effect to all
transactions that would occur or be required in connection with such
conversion) determined at the time of the disposition thereof, in good
faith by the applicable Obligor.
-4-
"DOMESTIC SUBSIDIARY" means a Subsidiary organized under the laws of a
jurisdiction located in the United States of America.
"EBITDA" of any Person means, with reference to any period, such Person's
Net Income for such period plus, to the extent deducted from revenues in
determining Net Income, such Person's (i) Interest Expense, (ii) expense for
taxes accrued, (iii) depreciation, (iv) amortization, (v) non-cash charges
arising from compensation expense as a result of the adoption of the proposed
amendment to Financial Accounting Standards Board Statement 123, "Share Based
Payments," (or any similar successor pronouncement) which would require certain
stock based compensation to be recorded as an expense within the Company's and
its Subsidiaries' consolidated statement of operations and (v) extraordinary or
non-recurring non-cash losses incurred other than in the ordinary course of
business minus, to the extent included in Net Income, extraordinary or
non-recurring non-cash gains realized other than in the ordinary course of
business, all calculated for such Person and its Subsidiaries in accordance with
GAAP on a consolidated basis.
"ELECTRONIC DELIVERY" is defined in Section 7.1(a).
"ENVIRONMENTAL LAWS" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including but not limited to
those related to Hazardous Materials.
"EQUITY INTERESTS" means shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other equity ownership interests in a Person, and any warrants, options
or other rights entitling the holder thereof to purchase or acquire any such
equity interest.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"ERISA AFFILIATE" means any trade or business (whether or not incorporated)
that is treated as a single employer together with any Obligor under section 414
of the Code.
"EVENT OF DEFAULT" is defined in Section 11.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended from
time to time, and the rules and regulations promulgated thereunder from time to
time in effect.
"FINANCING AGREEMENTS" means the Notes, this Agreement, any Guarantee
Agreement and any Collateral Documents.
-5-
"FORM 10-K" is defined in Section 7.1(b).
"FORM 10-Q" is defined in Section 7.1(a).
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"GOVERNMENTAL AUTHORITY" means
(a) the government of
(i) the United States of America or any State or other political
subdivision thereof, or
(ii) any other jurisdiction in which the Company or any
Subsidiary conducts all or any part of its business, or which asserts
jurisdiction over any properties of the Company or any Subsidiary, or
(b) any entity exercising executive, legislative, judicial, regulatory
or administrative functions of, or pertaining to, any such government.
"GUARANTEE AGREEMENT" means the Guaranty of the Guarantors under and
pursuant to Section 22 (and any and all supplements and joinders hereto,
including, without limitation, a Joinder Agreement) and any other guarantee
agreement in form and substance satisfactory to the Required Holders and their
counsel guaranteeing the obligations of the Company hereunder and under the
Notes, in each case as amended, restated, supplemented or otherwise modified
from time to time.
"GUARANTOR" means each Subsidiary of the Company which has executed and
delivered a Guarantee Agreement.
"GUARANTY" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guaranty shall not
-6-
include endorsements for collection or deposit in the ordinary course of
business, assignments of real property leases with recourse to such Person to
the extent such assignments are entered into in the ordinary course of business
consistent with past practice, or any obligation with respect to working capital
reserves established in the ordinary course of business consistent with past
practice and related to settlement advances made to, or on behalf of, processing
customers.
"HAZARDOUS MATERIAL" means any and all pollutants, toxic or hazardous
wastes or other substances that might pose a hazard to health and safety, the
removal of which may be required or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation, transfer,
use, disposal, release, discharge, spillage, seepage or filtration of which is
or shall be restricted, prohibited or penalized by any applicable law including,
but not limited to, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, petroleum, petroleum products, lead based paint, radon gas or similar
restricted, prohibited or penalized substances.
"HOLDER" means, with respect to any Note the Person in whose name such Note
is registered in the register maintained by the Company pursuant to Section
13.1.
"INDEBTEDNESS" with respect to any Person means, at any time, without
duplication,
(a) its liabilities for borrowed money;
(b) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments;
(c) its liabilities for the deferred purchase price of property
acquired by such Person (excluding (i) current accounts payable and other
accrued liabilities incurred in the ordinary course of business or in
connection with Acquisitions and (ii) Contingent Payments to the extent
that such Contingent Payments are not classified as liabilities in
accordance with GAAP, but including all liabilities created or arising
under any conditional sale or other title retention agreement with respect
to any such property if the same are required to be classified as a
liability in accordance with GAAP);
(d) all liabilities appearing on its balance sheet in accordance with
GAAP in respect of Capital Leases;
(e) all liabilities for borrowed money secured by any Lien with
respect to any property owned by such Person (whether or not it has assumed
or otherwise become liable for such liabilities);
(f) all its liabilities in respect of letters of credit or instruments
serving a similar function issued or accepted for its account by banks and
other financial institutions (whether or not representing obligations for
borrowed money);
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(g) all Net Xxxx-to-Market Exposure of such Person; and
(h) any Guaranty of such Person with respect to liabilities of a type
described in any of clauses (a) through (g) hereof.
Indebtedness of any Person shall include all obligations of such Person of the
character described in clauses (a) through (h) to the extent such Person remains
legally liable in respect thereof notwithstanding that any such obligation is
deemed to be extinguished under GAAP. Indebtedness shall not include any
liability arising under or related to any employee, officer or director
compensation plan of such Person, severance or income continuation amounts owing
to former officers, employees or directors or any surety bonds, performance
guarantees, operating leases or outsourcing and maintenance obligations.
"INSTITUTIONAL INVESTOR" means (a) any Purchaser of a Note, (b) any holder
of a Note holding (together with one or more of its affiliates) more than 5% of
the aggregate principal amount of the Notes then outstanding, (c) any bank,
trust company, savings and loan association or other financial institution, any
pension plan, any investment company, any insurance company, any broker or
dealer, or any other similar financial institution or entity, regardless of
legal form, and (d) any Related Fund of any holder of any Note.
"INTERCREDITOR AGREEMENT" is defined in Section 4.14.
"INTEREST EXPENSE" of any Person means, with reference to any period, the
interest expense (including, without limitation, interest expense under Capital
Leases that is treated as interest in accordance with GAAP) of such Person and
its Subsidiaries calculated on a consolidated basis for such period.
"JOINDER AGREEMENT" is defined in Section 9.7.
"LENDERS" means the lenders and the Administrative Agent party to the Bank
Credit Agreement.
"LIEN" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person (including in the case of
stock, stockholder agreements, voting trust agreements and all similar
arrangements). Lien shall be deemed not to include any deposits, escrow accounts
or other amounts intended as assurance for the Company's obligations in respect
of any Contingent Payments provided that such Contingent Payments do not
constitute Indebtedness hereunder.
"LOAN DOCUMENTS" shall have the meaning ascribed to such term in the Bank
Credit Agreement.
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"MAKE-WHOLE AMOUNT" is defined in Section 8.7.
"MATERIAL" means material in relation to the business, operations, affairs,
financial condition, assets or properties of the Company and its Subsidiaries
taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole, or (b) the ability of any Obligor
to perform its obligations under the Financing Agreements to which it is a
party, or (c) the validity or enforceability of any Financing Agreement.
"MATERIAL SUBSIDIARY" is defined in Section 9.7.
"MEMORANDUM" is defined in Section 5.3.
"MULTIEMPLOYER PLAN" means any Plan that is a "multiemployer plan" (as such
term is defined in section 4001(a)(3) of ERISA).
"NAIC" means the National Association of Insurance Commissioners or any
successor thereto.
"NET INCOME" of any Person means, with reference to any period, the net
income (or loss) of such Person and its Subsidiaries for such period calculated
on a consolidated basis in accordance with GAAP.
"NET XXXX-TO-MARKET EXPOSURE" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Swap Agreements. "Unrealized losses" shall
mean the fair market value of the cost to such Person of replacing the
transaction under any Swap Agreement as of the date of determination (assuming
such transaction were to be terminated as of that date), and "unrealized
profits" shall mean the fair market value of the gain to such Person of
replacing such transaction as of the date of determination (assuming such
transaction were to be terminated as of that date).
"NET SALES AMOUNT" means, with respect to any Asset Disposition by an
Obligor or any Subsidiary, an amount equal to the difference of:
(a) the aggregate amount of consideration (valued at the fair market
value thereof by such Obligor or such Subsidiary in good faith) received by
such Obligor or such Subsidiary in respect of such Asset Disposition minus
(b) all ordinary and reasonable out-of-pocket costs and expenses
actually incurred by such Obligor or such Subsidiary in connection with
such Asset Disposition.
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"NOTES" is defined in Section 1.
"OBLIGORS" means the Company and the Guarantors and any other Person that
grants a security interest and Lien in any of its property as security for the
Notes.
"OFFICER'S CERTIFICATE" means a certificate of a Senior Financial Officer
of an Obligor or of any other officer of an Obligor whose responsibilities
extend to the subject matter of such certificate.
"OPERATING LEASE" of a Person means any lease of property (other than a
Capital Lease) by such Person as lessee which has an original term (including
any required renewals and any renewals effective at the option of the lessor) of
one year or more.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"PERSON" means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization, business entity or
Governmental Authority.
"PLAN" means an "employee benefit plan" (as defined in section 3(3) of
ERISA) subject to Title I of ERISA that is or, within the preceding five years,
has been established or maintained, or to which contributions are or, within the
preceding five years, have been made or required to be made, by any Obligor or
any ERISA Affiliate or with respect to which any Obligor or any ERISA Affiliate
may have any liability.
"PRIORITY DEBT" means the sum, without duplication, of (i) Indebtedness of
the Company and any Subsidiary secured by Liens not otherwise permitted by
clauses (a) through (n) of Section 10.5; and (ii) all other Indebtedness of
Subsidiaries not otherwise permitted by clauses (a) through (e) of Section 10.8.
"PROPERTY" or "PROPERTIES" means, unless otherwise specifically limited,
real or personal property of any kind, tangible or intangible, xxxxxx or
inchoate.
"PROPERTY REINVESTMENT APPLICATION" means the application of any Net Sales
Amount (or a portion thereof) to the acquisition by an Obligor or any Subsidiary
thereof of operating assets of such Obligor or such Subsidiary to be used in the
business of such Person or otherwise re-invested in such Person's business
through Acquisitions, purchases of fixed assets or similar fixed investments.
"PTE" means a Prohibited Transaction Exemption issued by the Department of
Labor.
"PURCHASER" is defined in the first paragraph of this Agreement.
-10-
"QUALIFIED INSTITUTIONAL BUYER" means any Person who is a "qualified
institutional buyer" within the meaning of such term as set forth in Rule
144A(a)(1) under the Securities Act.
"RELATED FUND" means, with respect to any holder of any Note, any fund or
entity that (i) invests in Securities or bank loans, and (ii) is advised or
managed by such holder, the same investment advisor as such holder or by an
affiliate of such holder or such investment advisor.
"REQUIRED HOLDERS" means, at any time, the holders of at least 51% in
principal amount of the Notes at the time outstanding (exclusive of Notes then
owned by the Company or any of its Affiliates).
"RESPONSIBLE OFFICER" means any Senior Financial Officer and any other
senior vice president or other executive officer of the Company or another
applicable Obligor, as the context requires, with responsibility for the
administration of the relevant portion of this Agreement.
"SEC" shall mean the Securities and Exchange Commission of the United
States, or any successor thereto.
"SECURITIES" or "SECURITY" shall have the meaning specified in Section 2(1)
of the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time in
effect.
"SENIOR DEBT" means any Indebtedness of the Company or any Subsidiary owing
to any Person which is not the Company, a Subsidiary or an Affiliate and which
is not expressed to be junior or subordinate to any other Indebtedness of the
Company or such Subsidiary.
"SENIOR FINANCIAL OFFICER" means the chief financial officer, principal
accounting officer, treasurer, director of treasury or controller of the Company
or another applicable Obligor, as the context requires.
"SUBSIDIARY" means, as to any Person, any other Person in which such first
Person or one or more of its Subsidiaries or such first Person and one or more
of its Subsidiaries owns sufficient equity or voting interests to enable it or
them (as a group) ordinarily, in the absence of contingencies, to elect a
majority of the directors (or Persons performing similar functions) of such
second Person, and any partnership or joint venture if more than a 50% interest
in the profits or capital thereof is owned by such first Person or one or more
of its Subsidiaries or such first Person and one or more of its Subsidiaries
(unless such partnership can and does ordinarily take major business actions
without the prior approval of such Person or one or more of its Subsidiaries).
Unless the context otherwise clearly requires, any reference to a "Subsidiary"
is a reference to a Subsidiary of the Company or of any Obligor.
-11-
"SVO" means the Securities Valuation Office of the NAIC or any successor to
such Office.
"SWAP AGREEMENT" means any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or similar transaction
or any combination of these transactions; provided that no phantom stock or
similar plan providing for payments only on account of services provided by
current or former directors, officers, employees or consultants of the Company
or the Subsidiaries shall be a Swap Agreement.
"TRANSFER" means with respect to any Person, any transaction in which such
Person sells, conveys, transfers or leases (as lessor) any of its property,
including any disposition of any capital stock of any Subsidiary or the assets
of any Subsidiary, whether by merger, consolidation or otherwise.
"USA PATRIOT ACT" means United States Public Law 107-56, Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended from time to time,
and the rules and regulations promulgated thereunder from time to time in
effect.
"WHOLLY-OWNED SUBSIDIARY" means, at any time, any Subsidiary one hundred
percent of all of the Equity Interests (except directors' qualifying shares) and
voting interests of which are owned by any one or more of the Company or the
Company's other Wholly-Owned Subsidiaries at such time.
"WILDCARD ACQUISITION" means the acquisition by the Company of all issued
and outstanding stock of WildCard Systems, Inc., a Florida corporation.
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The following Schedules and Exhibits have been omitted from this Exhibit:
SCHEDULE A -- INFORMATION RELATING TO PURCHASERS
SCHEDULE 5.4 -- Subsidiaries of the Company and Ownership of Subsidiary Stock
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.8 -- Litigation
SCHEDULE 5.15 -- Existing Indebtedness
EXHIBIT 1 -- Form of 5.39% Senior Guaranteed Note due September 30, 2012
EXHIBIT 4.4(a) -- Form of Opinion of Special Counsel for the Company
EXHIBIT 4.4(b) -- Form of Opinion of Special Counsel for the Purchasers
EXHIBIT 4.14 -- Form of Intercreditor Agreement
EXHIBIT 9.7. -- Form of Joinder Agreement
The registrant will furnish supplementally a copy of any Omitted Schedule or
Exhibit to the Securities and Exchange Commission upon the request of the
Commission.
