EXHIBIT 10.16
CREDIT AGREEMENT
BY AND BETWEEN
eFUNDS CORPORATION
AND
DELUXE CORPORATION
DATED AS OF APRIL __, 2000
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TABLE OF CONTENTS
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS 1
Section 1.1 Defined Terms 1
Section 1.2 Accounting Terms and Calculations 8
Section 1.3 Other Definitional Terms, Terms of Construction 8
ARTICLE II. TERMS OF LENDING 8
Section 2.1 The Revolving Commitment 8
Section 2.2 Procedure for Advances and Continuations 9
Section 2.3 The Note 9
Section 2.4 Interest Rates, Interest Payments and Default Interest 9
Section 2.5 Repayment and Prepayment 10
Section 2.6 Optional Reduction of Commitment Amount or
Termination of Commitment 10
Section 2.7 Computation 10
Section 2.8 Reimbursement of Lender 10
ARTICLE III CONDITIONS PRECEDENT 11
Section 3.1 Conditions of Initial Advance 11
Section 3.2 Conditions Precedent to all Advances 12
ARTICLE IV REPRESENTATIONS AND WARRANTIES 12
Section 4.1 Organization, Standing, Etc. 12
Section 4.2 Litigation 13
Section 4.3 Taxes 13
Section 4.4 Subsidiaries 13
Section 4.5 ERISA Compliance 13
Section 4.6 Use of Proceeds, Margin Regulations 14
Section 4.7 Title to Properties 14
Section 4.8 Financial Condition 14
Section 4.9 Copyrights, Patents, Trademarks and Licenses, Etc. 14
Section 4.10 Insurance 15
ARTICLE V AFFIRMATIVE COVENANTS 15
Section 5.1 Financial Statements and Reports 15
Section 5.2 Corporate Existence 15
Section 5.3 Insurance 16
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Section 5.4 Payment of Taxes and Claims. 16
Section 5.5 Inspection 16
Section 5.6 Maintenance of Properties 16
Section 5.7 Books and Records 16
Section 5.8 Compliance 16
Section 5.9 Notice of Litigation 16
Section 5.10 Compliance with ERISA 16
Section 5.11 Use of Proceeds 17
ARTICLE VI NEGATIVE COVENANTS 17
Section 6.1 Merger or Consolidation 17
Section 6.2 Sale of Assets 18
Section 6.3 Restricted Payments 18
Section 6.4 ERISA 18
Section 6.5 Investments 18
Section 6.6 Indebtedness 19
Section 6.7 Liens 20
Section 6.8 Contingent Obligations 20
Section 6.9 Interest Coverage 21
Section 6.10 Leverage 21
Section 6.11 Additional Restrictions on Indebtedness 21
ARTICLE VII EVENTS OF DEFAULT AND REMEDIES 21
Section 7.1 Events of Default 21
Section 7.2 Remedies 23
Section 7.3 Offset 24
ARTICLE VIII
MISCELLANEOUS 24
Section 8.1 Modifications 24
Section 8.2 Costs and Expenses 24
Section 8.3 Waivers, Etc. 24
Section 8.4 Notices 24
Section 8.5 Successors and Assigns; Disposition of Loans 25
Section 8.6 Governing Law and Construction 25
Section 8.7 Consent to Jurisdiction 25
Section 8.8 Waiver of Jury Trial 25
Section 8.9 Captions 25
iii
Section 8.10 Entire Agreement 26
Section 8.11 Counterparts 26
iv
List of Exhibits and Schedules:
------------------------------
Exhibit A - Revolving Note
Schedule 4.4 - Subsidiaries
Schedule 4.5 - ERISA
Schedule 4.9 - Copyrights, Patents, Trademarks and Licenses, Etc.
Schedule 6.7 - Existing Liens
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of April ___, 2000 ("Agreement"), is by and
between eFunds Corporation, a corporation organized under the laws of the State
of Delaware (the "Borrower"), and Deluxe Corporation, a corporation organized
under the laws of the Delaware (the "Lender").
ARTICLE I.
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DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Defined Terms . As used in this Agreement the following terms
shall have the following respective meanings:
"Acquisition": Any transaction or series of related transactions for
the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets of a Person, or of any material
part of the business and operations or division of a Person, (b) the
acquisition of in excess of 50% of the capital stock, partnership interests
or equity of any Person, or otherwise causing any Person to become a
Subsidiary, or (c) a merger or consolidation or any other combination with
another Person (other than a Person that is a Subsidiary) provided that the
Borrower or a Subsidiary is the surviving entity.
"Advance": As defined in Section 2.1.
"Agent": The "Agent" under the Deluxe Credit Agreement.
"Applicable Margin": With respect to each Advance, the amount set
forth opposite the indicated Level Status below the heading "Applicable
Margin" based on the credit rating of the Lender. The Applicable Margin
shall automatically change in respect of all Advances then outstanding or
as to which a request for borrowing has been delivered to the Lender by the
Borrower as of the date of any public announcement by S&P or Moody's
resulting in a change in the credit rating of the Lender.
Level Status Applicable Margin
------------ -----------------
Level I .25%
Level II .275%
Level III .37%
Level IV .5%
Level V .625%
Level VI .85%
Level VII 1.3%
"Level I Status" exists at any date if, at such date, Lender's senior
unsecured long-term debt ratings are rated either A+ or higher (or the
equivalent) as publicly announced by S&P or A1 or higher (or the
equivalent) as publicly announced by Moody's.
"Level II Status" exists at any date if, at such date (i) Lender's
senior unsecured long-term debt ratings are rated either A or higher (or
the equivalent) as publicly announced by S&P or A2 or higher (or the
equivalent) as publicly announced by Moody's and (ii) Level I Status does
not exist.
"Level III Status" exists at any date if, at such date (i) Lender's
senior unsecured long-term date ratings are rated either A- or higher (or
the equivalent) as publicly announced by S&P or A3 or higher (or the
equivalent) as publicly announced by Moody's and (ii) Level I Status and
Level II Status do not exist.
"Level IV Status" exists at any date if, at such date (i) Lender's
senior unsecured long-term date ratings are rated either BBB+ or higher (or
the equivalent) as publicly announced by S&P or Baa1 or higher (or the
equivalent) as publicly announced by Moody's and (ii) Level I Status, Level
II Status and Level III Status do not exist.
"Level V Status" exists at any date if, at such date (i) Lender's
senior unsecured long-term date ratings are rated either BBB or higher (or
the equivalent) as publicly announced by S&P or Baa2 or higher (or the
equivalent) as publicly announced by Moody's and (ii) Level I Status, Level
II Status, Level Status III and Level IV Status do not exist.
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"Level VI Status" exists at any date if, at such date (i) Lender's
senior unsecured long-term date ratings are rated either BBB- or higher (or
the equivalent) as publicly announced by S&P or Baa3 or higher (or the
equivalent) as publicly announced by Moody's and (ii) Level I Status, Level
II Status, Level III Status, Level IV Status and Level V Status do not
exist.
"Level VII Status" exists at any date if, at such date (i) Lender's
senior unsecured long-term date ratings are rated lower than BBB- (or the
equivalent) as publicly announced by S&P or lower than Baa3 (or the
equivalent) as publicly announced by Moody's or (ii) the Lender's senior
unsecured long-term debt is unrated by both S&P and Moody's.
"Base Rate": The "Prime Rate" as published in The Wall Street Journal
(currently defined as the base rate on corporate loans posted by at least
75% of the nation's 30 largest banks, but however the same may be from time
to time defined).
"Business Day": Any day other than a Saturday, Sunday or day on which
commercial banks in New York City or San Francisco are authorized or
required by law to close and, if the applicable Business Day relates to the
making or continuation of an Advance, means such a day on which dealings
are carried on in the applicable offshore dollar interbank.
"Closing Date": The date on which all conditions precedent set forth
in Section May 20, 2000 are satisfied, or waived by the Lender.
"Code": The Internal Revenue Code of 1986, and regulations promulgated
thereunder.
"Commitment": The obligation of the Lender to make Advances to the
Borrower in an aggregate principal amount outstanding at any time not to
exceed the Commitment Amount upon the terms and subject to the conditions
and limitations of this Agreement.
"Commitment Amount": As defined in Section 2.1.
"Contingent Obligation": As applied to any Person, any material direct
or indirect liability of that Person with respect to any Indebtedness,
lease, dividend, Surety Instrument or other obligation (the "primary
obligations") of another Person
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(the "primary obligor"), including any obligation of that Person, whether
or not contingent, (a) to purchase, repurchase or otherwise acquire such
primary obligations or any property constituting direct or indirect
security therefor, or (b) to advance or provide funds (i) for the payment
or discharge of any such primary obligation, or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain
the net worth or solvency or any balance sheet item, level of income or
financial condition of the primary obligor, or (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of
any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation, or (d) otherwise to assure or hold
harmless the holder of any such primary obligation against loss in respect
thereof, in each case (a), (b), (c) or (d), including arrangements wherein
the rights and remedies of the holder of the primary obligation are limited
to repossession or sale of certain property of such Person. The amount of
any Contingent Obligation shall be deemed equal to the lesser of (x) the
stated or determinable amount of the primary obligation in respect of which
such Contingent Obligation is made or, if not stated or if indeterminable,
the maximum reasonably anticipated liability in respect thereof, or (y) any
limitation of such Contingent Obligation contained in the instrument or
agreement creating such Contingent Obligation.
"Continuation Date": Any date on which an Interest Period ends with
respect to an Advance and a new Interest Period is established for such
Advance.
"Default": Any event which, with the giving of notice (whether such
notice is required under Section 7.1, or under some other provision of this
Agreement, or otherwise) or lapse of time, or both, would constitute an
Event of Default.
"Deluxe Credit Agreement": That certain Credit Agreement dated as of
August 30, 1999 among Deluxe Corporation, the several financial
institutions party thereto from time to time and Bank of America, N.A., as
administrative agent, as the same may be amended from time to time.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended, and regulations promulgated thereunder.
"Event of Default": Any event described in Section 7.1.
"Funded Debt": As of the date of any determination all outstanding
Indebtedness of the Borrower and its consolidated Subsidiaries which
matures
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more than one (1) year after the incurrence thereof or is extendable,
renewable or refundable, at the option of the obligor, to a date more than
one (1) year after the incurrence thereof.
"GAAP": Generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment
of the accounting profession, which are applicable to the circumstances as
of any date of determination.
"Indebtedness": Without duplication, (a) all indebtedness for borrowed
money; (b) all obligations issued, undertaken or assumed as the deferred
purchase price of property or services (other than trade payables entered
into in the ordinary course of business on ordinary terms); (c) all
non-contingent reimbursement or payment obligations with respect to Surety
Instruments; (d) all obligations evidenced by notes, bonds, debentures or
similar instruments, including obligations so evidenced incurred in
connection with the acquisition of property, assets or businesses; (e) all
recourse indebtedness created or arising under any conditional sale or
other title retention agreement, or incurred as financing, in either case
with respect to property acquired by the Person; and (f) all obligations
with respect to capital leases; provided, however, that the term
"Indebtedness" shall not include non-recourse obligations or indebtedness
of any kind, and provided further, however, that the term "Indebtedness"
shall not include any such obligations or indebtedness owing by the
Borrower or any Subsidiary to the Borrower or any Subsidiary.
"Interest Period": The period commencing on the Business Day an
Advance is disbursed, or on the Continuation Date of such Advance, and
ending on the date one, two or three months thereafter, as selected by the
Borrower in a written request for Advance or Continuation thereof, as the
case may be;
provided that:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, that Interest Period shall be extended to the
following Business Day unless the result of such extension would be to
carry such
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Interest Period into another calendar month, in which event such
Interest Period shall end on the preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period; and
(iii) no Interest Period for Advances shall extend beyond the
Maturity Date.
"LIBO Rate": For any Interest Period selected by the Borrower,
(i) the rate of interest per annum determined by the Lender to be
the rate of interest on Dow Xxxxx Page 3750 (as defined below) for
U.S. dollar deposits in the approximate amount of each Advance being
requested to be made or continued by Borrower, and having a maturity
comparable to the applicable Interest Period two Business Days prior
to the commencement of such Interest Period, subject to clause (ii)
below; or
(ii) if for any reason the rate is not available as provided in
the preceding clause (i) of this definition, the "LIBO Rate" instead
means the rate of interest per annum determined by the Lender based on
any other commercially reasonable basis two Business Days prior to the
commencement of such Interest Period, including, without limitation,
by reference to any other rate quoting service selected by the Lender
in its sole discretion. As used in this definition, "Dow Xxxxx Page
3750 means the display designated as "3750" on the Dow Xxxxx Market
Service (also known as the Telerate Service) or any replacement page
thereof or successor thereto.
"Lien": With respect to any Person, any security interest, mortgage,
deed of trust, pledge, hypothecation, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of any
kind or nature whatsoever in respect of any property (including those
created by, arising under or evidenced by any conditional sale or other
title retention agreement, the interest of a lessor under a capital lease,
any financing lease having substantially the same economic effect as any of
the foregoing, or the filing of any financing statement signed by and
naming the owner of the asset to which such lien relates as debtor, under
the
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Uniform Commercial Code or any comparable law), but not including the
interest of a lessor under an operating lease.
"Loan Documents": This Agreement and the Note and any and all other
agreements, instruments and documents heretofore, herewith or hereafter
executed and delivered by the Borrower or any other Person pursuant to, or
in connection with this Agreement, including, without limitation, any
subordination agreements, reimbursement agreements, assignments of rents
and leases, powers of attorney, consents, assignments, contracts, notices,
financing statements, certificates of title and any and all other writings
pursuant to or in aid of any of the foregoing.
"Margin Stock": As the term "margin stock" is defined in Regulation T,
U or X of the Board of Governors of the Federal Reserve System.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the financial condition of the Borrower and
its Subsidiaries taken as a whole; or (b) a material adverse effect upon
the legality, validity, binding effect or enforceability against the
Borrower of this Agreement or the Note.
"Maturity Date": The earlier of (a) December 31, 2000 or (b) the date
upon which consummation of the Split-Off occurs.
"Moody's": Xxxxx'x Investors Service, a division of Dun & Bradstreet
Corporation.
"Multiemployer Plan": A "multiemployer plan", within the meaning of
Section 4001(a)(3) of ERISA, to which the Company or any Subsidiary makes,
is making, or is obligated to make contributions or, during the preceding
three calendar years, has made, or been obligated to make, contributions.
"Note": As defined in Section 2.3.
"Pension Plan": A pension plan (as defined in Section 3(2) of ERISA)
that is a defined benefit plan subject to Title IV of ERISA which the
Borrower or any Subsidiary sponsors, maintains, or to which it makes, is
making, or is obligated to make contributions.
"Permitted Liens": As defined in Section 6.7.
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"Person": Any natural person, corporation, partnership, limited
partnership, joint venture, firm, association, trust, unincorporated
organization, government or governmental agency or political subdivision or
any other entity, whether acting in an individual, fiduciary or other
capacity.
"Plan": An employee benefit plan (as defined in Section 3(3) of ERISA)
which the Borrower or any Subsidiary sponsors or maintains or to which the
Borrower or any Subsidiary makes, is making, or is obligated to make
contributions and includes any Pension Plan, but excluding any such plan
that is sponsored by the Lender.
"Responsible Officer": Any of the following officers of the Borrower:
the chief executive officer, the chief operating officer, the president,
the chief financial officer, the treasurer, the assistant treasurer, or any
other officer of the Borrower having similar authority and responsibility
to any of the foregoing.
"S&P": Standard & Poor's Ratings Services, a division of XxXxxx-Xxxx
Companies, Inc.
"Split-Off": The sale to the public as part of an initial public
offering of less than 20% of the stock of Borrower and the subsequent
exchange of shares of the Borrower for shares of the Lender.
"Subsidiary": Any corporation or other entity of which securities or
other ownership interests having ordinary voting power for the election of
a majority of the board of directors or other Persons performing similar
functions are owned by the Borrower either directly or through one or more
Subsidiaries.
"Surety Interest": All letters of credit (including standby and
commercial), banker's acceptances, bank guaranties, shipside bonds, surety
bonds and similar instruments.
"Total Capitalization": As of any date of determination, the sum of
(i) Funded Debt, and (ii) the sum of the amounts set forth on the
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as shareholders' equity as determined in accordance with GAAP.
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Section 1.2 Accounting Terms and Calculations . Except as may be expressly
provided to the contrary herein, all accounting terms used herein shall be
interpreted and all accounting determinations hereunder shall be made in
accordance with GAAP.
Section 1.3 Other Definitional Terms, Terms of Construction . The words
"hereof," "herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. References to Sections, Exhibits, Schedules and the
like references are to Sections, Exhibits, Schedules and the like of this
Agreement unless otherwise expressly provided. The words "include," "includes"
and "including" shall be deemed to be followed by the phrase "without
limitation." Unless the context in which used herein otherwise clearly requires,
"or" has the inclusive meaning represented by the phrase "and/or."
ARTICLE II.
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TERMS OF LENDING
Section 2.1 The Revolving Commitment . On the terms and subject to the
conditions hereof, the Lender agrees to make advances (each an "Advance") to the
Borrower on a revolving basis at any time and from time to time from the Closing
Date to, but not including, the "Maturity Date", during which period the
Borrower may borrow, repay and reborrow in accordance with the provisions
hereof, provided, that the unpaid principal amount of outstanding Advances shall
not at any time exceed $75,000,000 (the "Commitment Amount").
Section 2.2 Procedure for Advances and Continuations.
(a) Any request by the Borrower for an Advance shall be in writing or
by telephone and must be given so as to be received by the Lender not later
than 9:00 a.m. (local time of the Lender) five Business Days prior to the
requested Advance date. Each request for an Advance shall be irrevocable
and shall be deemed a representation by the Borrower that on the requested
Advance date and after giving effect to such Advance the applicable
conditions specified in Article III have been and will continue to be
satisfied. Each request for an Advance shall specify (i) the requested
Advance date (which must be a Business Day), (ii) the amount of such
Advance, which shall be in a minimum amount of $5,000,000, and (iii) the
duration of the Interest Period applicable to such Advance. Subject to
satisfaction of the applicable conditions specified in Article III, the
Lender will make the Advance available to the Borrower by causing
immediately available funds in the amount of the requested Advance to be
deposited in the Borrower's
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general operating account not later than 12:00 noon (local time of the
Lender) on the requested Advance date.
(b) Unless the Borrower pays an Advance in full, not later than 12:00
noon (local time of the Lender) four Business Days prior to the end of the
Interest Period applicable to such Advance, the Borrower shall deliver a
written notice to the Lender specifying the duration of the Interest Period
applicable to the continued Advance, and, if any portion of the Advance is
to be paid, the amount of the continued Advance.
Section 2.3 The Note . The Advances shall be evidenced by a single
promissory note of the Borrower (the "Note"), substantially in the form of
Exhibit A hereto, in the amount of the Commitment Amount originally in effect.
The Lender shall enter in its ledgers and records the amount of each Advance
made and the payments made thereon, and the Lender is authorized by the Borrower
to enter on a schedule attached to the Note a record of such Advances and
payments, provided, however that the failure by the Lender to make any such
entry shall not limit or otherwise affect the obligations of the Borrower
hereunder and on the Note. Each entry recording an Advance shall be prima facia
evidence that the Advance has been made and as to the amount and terms thereof.
Section 2.4 Interest Rates, Interest Payments and Default Interest .
Interest shall accrue and be payable on the unpaid balance of the Note at a
floating rate per annum equal to the sum of the LIBO Rate plus the Applicable
Margin. Interest shall be paid in arrears at the end of each Interest Period,
but in no event no less frequently than the end of each calendar quarter and
upon final payment of the Note. Upon the occurrence and during the continuance
of any Event of Default, the unpaid principal balance of the Note shall bear
interest at the Base Rate plus the Applicable Margin plus two percent. Unless as
otherwise provided in the preceding sentence, all Advances shall bear per annum
interest based on the LIBO Rate as provided in this Agreement, unless the Lender
is unable to borrow funds under the Deluxe Credit Agreement at a per annum
interest rate based on the LIBO Rate, in which event all Advances made to the
Borrower after the Lender provides notice to the Borrower of such event shall
bear interest at the Base Rate plus the Applicable Margin.
Section 2.5 Repayment and Prepayment . Principal of the Note shall be
payable in full on the Maturity Date. The Borrower may prepay the Note, in whole
or in part, at any time, subject to reimbursement by the Borrower of the Lender
for any direct loss or expense incurred by the Lender as a result of any payment
of an Advance made on a day that is not the last day of the relevant Interest
Period for such Advance. Any such
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prepayment must be accompanied by accrued and unpaid interest on the amount
prepaid. Each partial prepayment shall be in a minimum amount of $5,000,000 or,
if less, the remaining outstanding balance of principal plus accrued interest
and other amounts payable upon prepayment as herein provided. Amounts prepaid
under this Section may be reborrowed upon the terms and subject to the
conditions and limitations of this Agreement.
Section 2.6 Optional Reduction of Commitment Amount or Termination of
Commitment . The Borrower may, at any time, upon not less than 3 Business Days
prior written notice to the Lender, reduce the Commitment Amount, with any such
reduction in a minimum amount of $5,000,000 . Upon any reduction in the
Commitment Amount pursuant to this Section, the Borrower shall pay to the Lender
the amount, if any, by which the aggregate unpaid principal amount of the Note
exceeds the Commitment Amount as so reduced, plus all interest and other amounts
payable upon prepayment as provided in Section 2.5. Amounts so paid cannot be
reborrowed. The Borrower may, at any time, upon not less than 3 Business Days
prior written notice to the Lender, terminate the Commitment in its entirety.
Upon termination of the Commitment pursuant to this Section, the Borrower shall
pay to the Lender all unpaid obligations of the Borrower to the Lender
hereunder.
Section 2.7 Computation . Interest on the Note shall be computed on the
basis of actual days elapsed and a year of 360 days, except interest based on
the Base Rate shall be computed on the basis of a year of 365 days.
Section 2.8 Reimbursement of Lender . To the extent that the Lender is
obligated to pay or reimburse any of the lenders under the Deluxe Credit
Agreement pursuant to any of the provisions of Sections 3.03 or 3.06 of the
Deluxe Credit Agreement on account of loans made to the Lender or commitments
extended to the Lender, the Borrower shall reimburse the Lender for the
Borrower's allocable share of any such payments on account of Advances made to
the Borrower or on account of the Commitment. The Borrower shall reimburse the
Lender for all funding losses pursuant to Section 3.04 of the Deluxe Credit
Agreement that the Lender is required to pay as a result of actions or inactions
of the Borrower.
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ARTICLE III
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CONDITIONS PRECEDENT
Section 3.1 Conditions of Initial Advance . The obligation of the Lender to
make the initial Advance hereunder shall be subject to the prior or simultaneous
fulfillment of each of the following conditions:
3.1(a) Documents. The Lender shall have received the following:
(i) The Note executed by a duly authorized officer of the
Borrower and dated the Closing Date.
(ii) A certificate in form acceptable to the Lender indicating to
the satisfaction of the Lender that the execution, delivery and
performance of this Agreement and the Note have been duly authorized
by all necessary corporate action, and containing an incumbency
certificate showing the names and offices, and bearing the signatures
of, the Persons authorized to execute this Agreement and the Note,
certified as of the Closing Date by the Secretary or an Assistant
Secretary of the Borrower.
(iii) A copy of the Articles of Incorporation of the Borrower
with all amendments thereto, certified by the appropriate governmental
official of the jurisdiction of its incorporation as of a date
satisfactory to the Lender.
(iv) A certificate of good standing for the Borrower in the
jurisdiction of its incorporation, certified by the appropriate
governmental officials as of a date satisfactory to the Lender.
(v) A copy of the bylaws of the Borrower, certified as of a date
satisfactory to the Lender by the Secretary or an Assistant Secretary
of such Borrower.
(vi) A certificate dated the Closing Date (or as of any later
date specified by the Lender) of the chief executive officer or chief
financial officer of the Borrower certifying (A) as to the matters set
forth in Sections 3.2 (a) and 3.2 (b) below.
3.1(b) Other Matters. All organizational and legal proceedings
relating to the Borrower and all instruments and agreements in connection
with the
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transactions contemplated by this Agreement shall be satisfactory in scope,
form and substance to the Lender and its counsel, and the Lender shall have
received all information and copies of all documents, including records of
corporate proceedings, which it may reasonably have requested in connection
therewith, such documents where appropriate to be certified by proper
Borrower or governmental authorities.
3.1(c) Fees and Expenses. The Lender shall have received all fees and
other amounts due and payable by the Borrower or the Lender on or prior to
the Closing Date.
3.2 Conditions Precedent to all Advances . The Lender shall not have any
obligation to make any Advance (including Advances after the initial Advance)
hereunder unless the following conditions have been satisfied as of the date of
the requested Advance:
3.2(a) Representations and Warranties. The representations and
warranties contained in Article IV shall be true and correct on and as of
the Closing Date and on the date of each Advance, with the same force and
effect as if made on such date.
3.2(b) No Default . No Default or Event of Default shall have occurred
and be continuing on the Closing Date and on the date of each Advance will
exist after giving effect to the Advances made on such date.
ARTICLE IV
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REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender:
Section 4.1 Organization, Standing, Etc. The Borrower is a corporation duly
organized and validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has all requisite power and authority to
carry on its business as now conducted, to enter into this Agreement and to
issue the Note and to perform its obligations hereunder and thereunder. Each
Subsidiary of the Borrower is a corporation duly organized and validly existing
and in good standing under the laws of the jurisdiction of its incorporation and
has all requisite power and authority to carry on its business as now conducted.
This Agreement and the Note have been duly authorized by all necessary corporate
action and when executed and delivered will be the legal and
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binding obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability. The execution and delivery of this Agreement and the Note will
not violate the Borrower's Certificate of Incorporation or any law applicable to
the Borrower. No governmental consent or exemption is required in connection
with the Borrower's execution and delivery of this Agreement and the Note.
Section 4.2 Litigation . There are no actions, suits or proceedings pending
or, to the knowledge of the Borrower, threatened against or affecting the
Borrower or any Subsidiary which, if determined adversely to the Borrower or any
Subsidiary, would have a Material Adverse Effect. Neither the Borrower nor any
Subsidiary is in violation of any law or regulation (including environmental
laws and regulations and laws relating to employee benefit plans) where such
violation could reasonably be expected to impose a material liability on the
Borrower or such Subsidiary.
Section 4.3 Taxes . On and after May , 2000, the Borrower and its
Subsidiaries are in compliance with all obligations imposed on them under the
Tax Sharing Agreement entered into by the Borrower and the Lender dated May ,
2000 ("Tax Sharing Agreement").
Section 4.4 Subsidiaries . The Borrower has no Subsidiaries other than the
Subsidiaries listed on Schedule 4.4 hereto.
Section 4.5 ERISA Compliance . Except as specifically disclosed in Schedule
4.5:
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law
except where non-compliance would not reasonably be expected to result in a
Material Adverse Effect. The Borrower and each Subsidiary has made all
required contributions to any Plan.
(b) Neither the Borrower nor any Subsidiary sponsors or contributes to
any Pension Plan, including any Multiemployer Plan.
(c) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any governmental
authority,
14
with respect to any Plan which has resulted or would reasonably be expected
to result in a Material Adverse Effect. There has been no prohibited
transaction or violation of the fiduciary responsibility rules with respect
to any Plan which has resulted or would reasonably be expected to result in
a Material Adverse Effect.
Section 4.6 Use of Proceeds, Margin Regulations . The proceeds of the Loans
are to be used solely for the general corporate purposes of the Borrower
consistent with the provisions of this Agreement. Neither the Borrower nor any
Subsidiary is generally engaged in the business of purchasing or selling Margin
Stock or extending credit for the purpose of purchasing or carrying Margin
Stock.
Section 4.7 Title to Properties . The Borrower and each Subsidiary have
good record and marketable title in fee simple to, or to the Borrower's
knowledge, valid leasehold interests in, all real property necessary for the
ordinary conduct of businesses, except for such defects in title as would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect. As of the Closing Date, the properties of the Borrower and its
Subsidiaries are subject to no Liens, except for Permitted Liens.
Section 4.8 Financial Condition . There has been no material adverse change
in the business or financial condition of Borrower since its financial
statements dated as of March 31, 2000.
Section 4.9 Copyrights, Patents, Trademarks and Licenses, Etc. Except as
disclosed in Schedule 4.9, the Borrower or one of its Subsidiaries owns or is
licensed or otherwise has the right to use all of the patents, trademarks,
service marks, trade names, copyrights, contractual franchises, authorizations
and other rights that are reasonably necessary for the operation of its
businesses, without conflict with the rights of any other Person except where
the failure to own, be licensed to or otherwise have the right to use the same
would not have a Material Adverse Effect. Except as disclosed in Schedule 4.9,
to the best knowledge of the Borrower, no material slogan or other advertising
device, product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by the Borrower or any Subsidiary
infringes upon any rights held by any other Person where any such infringement
would reasonably be expected to have a Material Adverse Effect. Except as
specifically disclosed in Schedule 4.9, no claim or litigation regarding any of
the foregoing is pending or to the knowledge of the Borrower threatened, which
would reasonably be expected to have a Material Adverse Effect.
15
Section 4.10 Insurance . To the extent that insurance is not provided under
insurance policies maintained by the Lender insuring the properties of Borrower
and its subsidiaries, the properties of the Borrower and its Subsidiaries are
insured with financially sound and reputable insurance or reinsurance companies,
in such amounts, with such deductibles and covering such risks as are believed
by the Borrower to be adequate in the exercise of its reasonable business
judgment.
ARTICLE V
---------
AFFIRMATIVE COVENANTS
Until the Maturity Date and the Note and all of the Borrower's other
obligations to the Lender under this Agreement shall have been paid in full,
unless the Lender shall otherwise consent in writing:
Section 5.1 Financial Statements and Reports . The Borrower will furnish to
the Lender:
5.1(a) As soon as available and in any event within 30 days after the
end of each month, unaudited consolidated financial statements for the
Borrower and its consolidated Subsidiaries for such month and for the
period from the beginning of such fiscal year to the end of such month,
substantially similar to the Borrower's annual audited statements, together
with a certificate of a Responsible Officer of the Borrower certifying that
no Default or Event of Default has occurred and is continuing (except as
described therein).
5.1(b) Immediately upon any Responsible Officer of the Borrower
becoming aware of any Default or Event of Default, a notice describing the
nature thereof and what action the Borrower proposes to take with respect
thereto.
5.1(c) Promptly, copies of all financial statements and reports that
the Borrower sends to its shareholders, and copies of all financial
statements and regular, periodical or special reports (including Forms 10K,
10Q and 8K) that the Borrower may make to, or file with, the SEC.
5.1(d) From time to time, such other information regarding the
business, operations and financial condition of the Borrower and its
Subsidiaries as the Lender may reasonably request.
16
Section 5.2 Corporate Existence . The Borrower shall, and shall cause each
Subsidiary to, maintain its corporate existence in good standing under the laws
of its jurisdiction of organization and its qualification to transact business
in each jurisdiction where failure so to qualify would permanently preclude the
Borrower or any Subsidiary from enforcing its rights with respect to any
material asset or would expose the Borrower or any Subsidiary to any material
liability, provided that nothing herein shall be construed to prevent any
transaction described in Section 6.1.
Section 5.3 Insurance . To the extent that insurance is not provided under
insurance policies maintained by the Lender insuring the properties of Borrower
and its subsidiaries,the Borrower shall, and shall cause each Subsidiary to,
maintain with financially sound and reputable insurance companies such insurance
as may be required by law and such other insurance in such amounts and against
such hazards as is customary in the case of reputable corporations engaged in
the same or similar business and similarly situated.
Section 5.4 Payment of Taxes and Claims. The Borrower shall, and shall
cause each Subsidiary to, comply with Borrower's covenants and obligations under
the Tax Sharing Agreement.
Section 5.5 Inspection . The Borrower shall permit any Person designated by
the Lender to visit and inspect any of the properties, books and financial
records of the Borrower, to examine and to make copies of the books of accounts
and other financial records of the Borrower, and to discuss the affairs,
finances and accounts of the Borrower with its partners at such reasonable times
and intervals as the Lender may designate.
Section 5.6 Maintenance of Properties . The Borrower shall, and shall cause
each Subsidiary to, maintain its properties in good condition, repair and
working order, and supplied with all necessary equipment, and make all necessary
repairs, renewals, replacements, betterments and improvements thereto, all as
may be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times.
Section 5.7 Books and Records . The Borrower will keep adequate and proper
records and books of account in which full and correct entries will be made of
its dealings, business and affairs.
17
Section 5.8 Compliance . The Borrower shall, and shall cause each
Subsidiary to, comply in all material respects with all laws, rules and
regulations to which it may be subject.
Section 5.9 Notice of Litigation . The Borrower will give prompt written
notice to the Lender of the commencement of any action, suit or proceeding
affecting the Borrower or any Subsidiary wherein the claim or relief exceeds or
would reasonably be expected to exceed $100,000 or in which injunctive,
declaratory or similar relief is sought that would have reasonably be expected
to have a Material Adverse Effect.
Section 5.10 Compliance with ERISA . The Borrower shall, and shall cause
each Subsidiary to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law except where non-compliance would not reasonably be expected to result
in a Material Adverse Effect; and (b) make all required contributions to any
Plan except where failure to make any contribution would not reasonably be
expected to result in a Material Adverse Effect.
Section 5.11 Use of Proceeds . The Borrower shall use the proceeds of the
Advances for general corporate purposes not in contravention of any requirement
of law or any provision of this Agreement.
ARTICLE VI
----------
NEGATIVE COVENANTS
Until the Maturity Date and the Note and all of the Borrower's other
obligations to the Lender under this Agreement shall have been paid in full,
and, in the case of Section 6.11, so long as the Borrower is a "Material
Subsidiary" (as such term is defined in the Deluxe Credit Agreement)
(irrespective of termination of the Commitment and payment in full of all
obligations hereunder) unless the Lender shall otherwise consent in writing:
Section 6.1 Merger or Consolidation . The Borrower shall not, and shall not
suffer or permit any Subsidiary to, merge, consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except:
(a) any Person may merge with the Borrower or any wholly-owned
Subsidiary, provided that, in the case of Borrower, the Borrower shall be
the
18
continuing or surviving corporation, and in the case of such Subsidiary,
such Subsidiary or Person remains or become a wholly-owned Subsidiary of
Borrower immediately following the merger;
(b) any Subsidiary may merge with the Borrower, provided that the
Borrower shall be the continuing or surviving corporation, or with any one
or more Subsidiaries, provided that if any transaction shall be between a
Subsidiary and a wholly-owned Subsidiary, the wholly-owned Subsidiary shall
be the continuing or surviving corporation; and
(c) the Borrower or any Subsidiary may convey, transfer, lease or
otherwise dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise), to the Borrower or another wholly-owned
Subsidiary, as the case may be.
Section 6.2 Sale of Assets . Except as permitted by Section 6.1(c), the
Borrower shall not, and shall not suffer or permit any Subsidiary to, sell,
transfer, lease or otherwise convey all or any substantial part of its assets.
Section 6.3 Restricted Payments . The Borrower shall not, and shall not
suffer or permit any Subsidiary (other than a wholly-owned Subsidiary) to,
declare or make any dividend payment or other distribution of assets,
properties, cash, rights, obligations or securities on account of any shares of
any class of its capital stock, or purchase, redeem or otherwise acquire for
value any shares of its capital stock or any warrants, rights or options to
acquire such shares, now or hereafter outstanding; except that the Borrower or
any non-wholly-owned Subsidiary may:
(a) declare and make dividend payments or other distributions payable
solely in its common stock;
(b) purchase, redeem or otherwise acquire shares of its common stock
or warrants or options to acquire any such shares with the proceeds
received from the substantially concurrent issue of new shares of its
common stock; and
(c) declare or pay cash dividends to its stockholders and purchase,
redeem or otherwise acquire shares of its capital stock or warrants, rights
or options to acquire any such shares for cash provided that, before and
immediately after giving effect to such proposed action, no Default or
Event of Default exists or would exist.
19
Section 6.4 ERISA . The Borrower shall not, and shall not suffer or permit
any Subsidiary to: (a) engage in a prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan which has resulted or
would reasonably be expected to result in a Material Adverse Effect; or (b)
adopt, sponsor, contribute to or otherwise incur any obligation with respect to
any Pension Plan, including any Multiemployer Plan (unless Borrower has obtained
the prior written consent of the Lender).
Section 6.5 Investments . The Borrower shall not, and shall not suffer or
permit any Subsidiary to, make any loans, advances or extensions of credit to
any other Person (except for trade and customer accounts receivable for
inventory sold or services rendered in the ordinary course of business and
payable in accordance with customary trade terms) or purchase or acquire any
stock or other debt or equity securities of or any interest in any other Person
or any integral part of any business or the assets comprising such business or
part thereof, except for:
6.5(a) Investments in readily marketable direct obligations issued or
unconditionally guaranteed by the United States government or any agency
thereof and supported by the full faith and credit of the United States.
6.5(b) Certificates of deposit or bankers' acceptances issued by any
commercial bank organized under the laws of the United States or any State
thereof which has (i) combined capital and surplus of at least
$100,000,000, and (ii) a credit rating with respect to its unsecured
indebtedness from a nationally recognized rating service that is
satisfactory to the Lender.
6.5(c) Commercial paper given the highest rating by a nationally
recognized rating service.
6.5(d) Repurchase agreements relating to securities of the kind
described in subsection (a) of this Section.
6.5(e) Other readily marketable investments in debt securities which
are reasonably acceptable to the Lender.
6.5(f) Travel advances to officers and employees in the ordinary
course of business.
20
6.5(g) Acquisitions or investments in Subsidiaries to effectuate
Acquisitions
6.5(h) Investments in minority ownership interests in other Persons
that are strategic to the business of Borrower or its Subsidiaries and
which taken together with all other similar investments of Borrower and its
Subsidiaries would not reasonably be expected to have a Material Adverse
Effect.
6.5(i) Loans, advances and extensions of credit that are already
committed by the Borrower or any of its Subsidiaries as of the date of this
Agreement.
Any investments under clauses (a), (b), (c) or (d) above must mature within one
year of the acquisition thereof by the Borrower or any Subsidiary.
Section 6.6 Indebtedness . The Borrower shall not, and shall not suffer or
permit any Subsidiary to, borrow any money or issue any bonds, debentures or
other debt securities or otherwise become obligated on any interest-bearing
indebtedness except:
6.6(a) The Advances under this Agreement.
6.6(b) Indebtedness by way of purchase money mortgage, conditional
sale or other title retention agreement, capital lease or other deferred
payment contract in connection with the acquisition of equipment not to
exceed $25,000,000 in aggregate outstanding at any time.
Section 6.7 Liens . The Borrower shall not, and shall not suffer or permit
any Subsidiary to, create, incur, assume or suffer to exist any Lien, or enter
into any arrangement for the acquisition of any property through conditional
sale, lease-purchase or other title retention agreements except the following
Liens ("Permitted Liens"):
6.7(a) Liens granted to the Lender or any affiliate of the Lender.
6.7(b) Liens existing on the date of this Agreement.
6.7(c) Deposits or pledges to secure payment of workers' compensation,
unemployment insurance, old age pensions or other social security
obligations arising in the ordinary course of business of the Borrower or
any Subsidiary.
21
6.7(d) Liens for taxes, fees, assessments and governmental charges not
delinquent.
6.7(e) Liens of carriers, warehousemen, mechanics and materialmen, and
other like Liens arising in the ordinary course of business, for sums not
due.
6.7(f) Liens incurred or deposits or pledges made or given in
connection with, or to secure payment of, indemnity, performance or other
similar bonds.
6.7(g) Encumbrances in the nature of zoning restrictions, easements
and rights or restrictions of record on the use of real property and
landlord's Liens under leases on the premises rented, which do not
materially detract from the value of such property or impair the use
thereof in the business of the Borrower or any Subsidiary.
6.7(h) Liens securing the indebtedness permitted pursuant to Section
6.6(b); provided that such Liens are limited to the equipment acquired and
do not secure indebtedness other than that permitted under Section 6.6(b)
or the purchase price of such property.
Section 6.8 Contingent Obligations . Except for obligations incurred prior
to the date of this Agreement and for guarantees and similar obligations given
by the Borrower for any of its wholly owned Subsidiaries, the Borrower shall
not, and shall not suffer or permit any Subsidiary to, guarantee or otherwise
become liable on the indebtedness of any other Person where the aggregate total
liability would reasonably be expected to exceed $25,000,000.
Section 6.9 Interest Coverage . The Borrower shall not permit as of the
last day of any fiscal quarter (commencing with the period ending June 30,
2000), on a consolidated basis, the ratio of (i) Earnings Before Interest and
Taxes to (ii) Interest Expense, to be less than 2.5 to 1.0. For purposes of this
section, "Earnings Before Interest and Taxes" means as at the end of any fiscal
quarter of the Borrower for the period of four consecutive fiscal quarters ended
as at such date, the sum of (a) the consolidated net income (or net loss) of the
Borrower and its Subsidiaries for such period as determined in accordance with
GAAP, plus (b) all amounts treated as interest expense for such period to the
extent included in the determination of such consolidated net income (or loss);
plus (c) all taxes accrued for such period on or measured by income to the
extent included in the determination of such consolidated net income (or loss);
provided, however, that consolidated net income (or loss) shall be computed for
the purposes of this definition
22
without giving effect to extraordinary losses or extraordinary gains for such
period; and "Interest Expense" means as at the end of any fiscal quarter of the
Borrower for the period of four consecutive fiscal quarters ended as at such
date, all amounts treated as interest expense for such period to the extent
included in the determination of the Borrower's consolidated net income (or net
loss) for such period as determined in accordance with GAAP.
Section 6.10 Leverage . The Borrower shall not permit as of the last day of
any fiscal quarter (commencing with the period ending June 30, 2000), on a
consolidated basis, the ratio of (i) Funded Debt to (ii) Total Capitalization,
to be greater than 0.60 to 1.0.
Section 6.11 Additional Restrictions on Indebtedness . The Borrower shall
not, and shall not permit any Subsidiary to, incur or suffer to exist any
Indebtedness unless prior notice of the same has been given to the Lender and
such Indebtedness has been approved by the majority of all members of the board
of directors of the Borrower.
ARTICLE VII
-----------
EVENTS OF DEFAULT AND REMEDIES
Section 7.1 Events of Default . The occurrence of any one or more of the
following events shall constitute an Event of Default:
7.1(a) The Borrower shall fail to make when due, whether by
acceleration or otherwise, any payment of principal of or interest on the
Note or any other obligations of the Borrower to the Lender pursuant to
this Agreement and such failure shall continue more than two Business Days
after the payment due date.
7.1(b) Any representation or warranty made by or on behalf of the
Borrower in this Agreement or by or on behalf of the Borrower in any
certificate, statement, report or document herewith or hereafter furnished
to the Lender pursuant to this Agreement shall prove to have been false or
misleading in any material respect on the date as of which the facts set
forth are stated or certified.
7.1(c) The Borrower shall fail to comply with Sections 5.2 or 5.11 or
any Section of Article VI.
23
7.1(d) The Borrower shall fail to comply with Section 5.3 and such
failure shall continue uncured for three days after notice from Seller or
such time when Borrower otherwise became aware of such failure, whichever
is earlier.
7.1(e) The Borrower shall fail to comply with any other agreement,
covenant, condition, provision or term contained in this Agreement (other
than those hereinabove set forth in this Section 7.1) and such failure to
comply shall continue for 30 calendar days after whichever of the following
dates is the earliest: (i) the date the Borrower gives notice of such
failure to the Lender, (ii) the date the Borrower should have given notice
of such failure to the Lender pursuant to Section 5.1(b), or (iii) the date
the Lender gives notice of such failure to the Borrower.
7.1(f) The Borrower or any Subsidiary shall become insolvent or shall
generally not pay its debts as they mature or shall apply for, shall
consent to, or shall acquiesce in the appointment of a custodian, trustee
or receiver of the Borrower or any Subsidiary or for a substantial part of
the property thereof or, in the absence of such application, consent or
acquiescence, a custodian, trustee or receiver shall be appointed for the
Borrower or any Subsidiary or for a substantial part of the property
thereof and shall not be discharged within 45 days, or the Borrower or any
Subsidiary shall make an assignment for the benefit of creditors.
7.1(g) Any bankruptcy, reorganization, debt arrangement or other
proceedings under any bankruptcy or insolvency law shall be instituted by
or against the Borrower or any Subsidiary and, if instituted against the
Borrower or any Subsidiary, shall have been consented to or acquiesced in
by the Borrower or any Subsidiary or shall remain undismissed for 60 days,
or an order for relief shall have been entered against the Borrower or any
Subsidiary.
7.1(h) Any dissolution or liquidation proceeding shall be instituted
by or against the Borrower or any Subsidiary and, if instituted against the
Borrower or any Subsidiary, shall be consented to or acquiesced in by the
Borrower or any Subsidiary or shall remain for 45 days undismissed.
7.1(i) A judgment or judgments for the payment of money in excess of
the sum of $25,000,000 in the aggregate shall be rendered against the
Borrower or any Subsidiary and either (i) the judgment creditor executes on
such judgment or (ii) such judgment remains unpaid or undischarged for more
than 60 days from the
24
date of entry thereof or such longer period during which execution of such
judgment shall be stayed during an appeal from such judgment.
7.1(j) The maturity of any material Indebtedness of the Borrower
(other than Indebtedness under this Agreement) or any Subsidiary shall be
accelerated, or the Borrower or any Subsidiary shall fail to pay any such
material indebtedness when due (after the lapse of any applicable grace
period) or any event shall occur or condition shall exist and shall
continue for more than the period of grace, if any, applicable thereto and
shall have the effect of causing, or permitting the holder of any such
indebtedness to cause, such material indebtedness to become due prior to
its stated maturity or to realize upon any collateral given as security
therefor. For purposes of this Section, Indebtedness of the Borrower or of
any Subsidiary shall be deemed "material" if it exceeds $25,000,000 as to
any item of indebtedness or in the aggregate for all items of indebtedness
with respect to which any of the events described in this Section has
occurred.
7.1(k) Any execution or attachment shall be issued whereby any
substantial part of the property of the Borrower or any Subsidiary shall be
taken or attempted to be taken and the same shall not have been vacated or
stayed within 30 days after the issuance thereof.
7.1(l) Any default shall occur under any other Loan Document.
Section 7.2 Remedies . If (a) any Event of Default described in Sections
7.1(f), (g) or (h) shall occur with respect to the Borrower or any Subsidiary,
the Commitment shall automatically terminate and the Note and all other
obligations of the Borrower to the Lender under this Agreement shall
automatically become immediately due and payable, or (b) any other Event of
Default shall occur and be continuing, then the Lender may (i) declare the
Commitment terminated, whereupon the Commitment shall terminate, and (ii)
declare the Note and all other obligations of the Borrower to the Lender under
this Agreement to be forthwith due and payable, whereupon the same shall
immediately become due and payable, in each case without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived,
anything in this Agreement or in the Note to the contrary notwithstanding. Upon
the occurrence of any of the events described in clauses (a) or (b) of the
preceding sentence the Lender may exercise all rights and remedies under this
Agreement, the Note and any related agreements and under any applicable law.
Upon any acceleration in payment of any Advance, the Borrower shall reimburse
the Lender for any direct loss or expenses incurred by the Lender as a result of
25
payment of an Advance made on a day that is not the last day of the relevant
Interest Period.
Section 7.3 Offset . In addition to the remedies set forth in Section 7.2,
upon the occurrence of any Event of Default and thereafter while the same be
continuing, the Borrower hereby irrevocably authorizes the Lender to set off all
sums owing by the Borrower to the Lender against all deposits and credits of the
Borrower with, and any and all claims of the Borrower against, the Lender.
ARTICLE VIII
------------
MISCELLANEOUS
Section 8.1 Modifications . Notwithstanding any provisions to the contrary
herein, any term of this Agreement may be amended with the written consent of
the Borrower; provided that no amendment, modification or waiver of any
provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Lender, and then such amendment, modifications, waiver or
consent shall be effective only in the specific instance and for the purpose for
which given.
Section 8.2 Costs and Expenses . Whether or not the transactions
contemplated hereby are consummated, the Borrower agrees to reimburse the Lender
upon demand for all reasonable out-of-pocket expenses paid or incurred by the
Lender (including filing and recording costs and fees and expenses of counsel to
the Lender) in connection with the collection and enforcement of this Agreement
and the Note. The obligations of the Borrower under this Section shall survive
any termination of this Agreement.
Section 8.3 Waivers, Etc. No failure on the part of the Lender or the
holder of the Note to exercise and no delay in exercising any power or right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any power or right preclude any other or further exercise thereof or
the exercise of any other power or right. The rights and remedies of the Lender
hereunder are cumulative and not exclusive of any right or remedy the Lender
otherwise has.
Section 8.4 Notices . Except when telephonic notice is expressly authorized
by this Agreement, any notice or other communication to any party in connection
with this Agreement shall be in writing and shall be sent by manual delivery,
telegram, telex, facsimile transmission, overnight courier or United States mail
(postage prepaid) addressed to such party at the address specified on the
signature page hereof, or at such
26
other address as such party shall have specified to the other party hereto in
writing. All periods of notice shall be measured from the date of delivery
thereof if manually delivered, from the date of sending thereof if sent by
telegram, telex or facsimile transmission, from the first Business Day after the
date of sending if sent by overnight courier, or from four days after the date
of mailing if mailed; provided, however, that any notice to the Lender under
Article II hereof shall be deemed to have been given only when received by the
Lender.
Section 8.5 Successors and Assigns; Disposition of Loans . This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Borrower may not assign its
rights or delegate its obligations hereunder without the prior written consent
of the Lender. The Lender may at any time sell, assign, transfer, grant
participations in, or otherwise dispose of any portion of the Commitment and/or
Advances to banks or other financial institutions. The Lender may disclose any
information regarding the Borrower in the Lender's possession to any prospective
buyer or participant.
Section 8.6 Governing Law and Construction . THE VALIDITY, CONSTRUCTION AND
ENFORCEABILITY OF THIS AGREEMENT AND THE NOTE SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES
THEREOF.
Section 8.7 Consent to Jurisdiction . AT THE OPTION OF THE LENDER, THIS
AGREEMENT AND THE NOTE MAY BE ENFORCED IN ANY FEDERAL OR MINNESOTA STATE COURT
SITTING IN HENNEPIN OR XXXXXX COUNTY, MINNESOTA; AND THE BORROWER CONSENTS TO
THE JURISDICTION AND VENUE OF SUCH COURT, CONSENTS TO BE SUED BY THE LENDER IN
SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUM IS NOT CONVENIENT.
IN THE EVENT THE BORROWER COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE
UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE
RELATIONSHIP CREATED BY THIS AGREEMENT, THE LENDER AT ITS OPTION SHALL BE
ENTITLED TO HAVE THE CASE TRANSFERRED TO THE JURISDICTION AND VENUE
ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE
LAW, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE.
27
Section 8.8 Waiver of Jury Trial . EACH OF THE BORROWER AND THE LENDER
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTE AND ANY OTHER LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 8.9 Captions . The captions or headings herein and any table of
contents hereto are for convenience only and in no way define, limit or describe
the scope or intent of any provision of this Agreement.
Section 8.10 Entire Agreement . This Agreement and the other Loan Documents
embody the entire agreement and understanding between the Borrower and the
Lender with respect to the subject matter hereof and thereof. This Agreement
supersedes all prior agreements and understandings relating to the subject
matter hereof.
Section 8.11 Counterparts . This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and either of the parties hereto may execute this Agreement by
signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
eFUNDS CORPORATION
By
Print Name
Title
Borrower's Address:
DELUXE CORPORATION
By
-------------------------------------
Print Name
-----------------------------
Title
----------------------------------
Lender's Address:
28
EXHIBIT A TO
CREDIT AGREEMENT
REVOLVING NOTE
$_________ April __, 2000
FOR VALUE RECEIVED, ___________________, a ________________ _________
organized under the laws of the State of ________, hereby promises to pay to the
order of ______________ (the "Lender") at its main office in _________,
________, in lawful money of the United States of America in immediately
available funds on the Maturity Date (as such term and each other capitalized
term used herein are defined in the Credit Agreement hereinafter referred to)
the principal amount of _____________________________________DOLLARS AND NO
CENTS ($____________) or, if less, the aggregate unpaid principal amount of all
Advances made by the Lender under the Credit Agreement, and to pay interest
(computed on the basis of actual days elapsed and a year of 360 days, in the
case of interest based on the LIBO Rate, and 365 days, in the case of interest
based on the Base Rate) in like funds on the unpaid principal amount hereof from
time to time outstanding at the rates and times set forth in the Credit
Agreement.
This note is the Note referred to in the Credit Agreement dated
concurrently herewith (as the same may be hereafter from time to time amended,
restated or modified, the "Credit Agreement") between the undersigned and the
Lender. This note is secured, it is subject to certain permissive and mandatory
prepayments and its maturity is subject to acceleration, in each case upon the
terms provided in said Credit Agreement.
In the event of default hereunder, the undersigned agrees to pay all costs
and expenses of collection, including reasonable attorneys' fees. The
undersigned waives demand, presentment, notice of nonpayment, protest, notice of
protest and notice of dishonor.
THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS NOTE SHALL BE
GOVERNED BY THE INTERNAL LAWS OF MINNESOTA WITHOUT GIVING EFFECT TO THE CONFLICT
OF LAWS PRINCIPLES THEREOF.
________________________________________
29
By
-------------------------------------
Title
----------------------------------
2
SCHEDULE 4.4 TO
CREDIT AGREEMENT
SUBSIDIARIES
3
SCHEDULE 4.5 TO
CREDIT AGREEMENT
ERISA
4
SCHEDULE 4.9 TO
CREDIT AGREEMENT
COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC.
5
SCHEDULE 6.7 TO
CREDIT AGREEMENT
EXISTING LIENS
None
