Exhibit 4.9
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment Agreement"), dated as of October 5, 2000, is made among DELUXE
CORPORATION, a Minnesota corporation (the "Company"), the financial institutions
listed on the signature pages hereof under the heading "THE BANKS" (each a
"Bank" and, collectively, the "Banks"), and BANK OF AMERICA, N.A., as
administrative agent for itself and the Banks (in such capacity, the "Agent").
The Company, the Banks and the Agent are parties to an Amended and
Restated Credit Agreement dated as of August 14, 2000 (as in effect as of the
date of this Amendment Agreement, the "Credit Agreement"). The Company has
requested that the Banks agree to certain amendments of the Credit Agreement,
and the Banks are willing to agree to such request, subject to the terms and
conditions of this Amendment Agreement.
Accordingly, the parties hereto agree as follows:
SECTION I Definitions: Interpretation.
(a) Terms Defined in Credit Agreement. All capitalized terms used in
this Amendment Agreement (including in the Recitals hereof) and not otherwise
defined herein shall have the meanings assigned to them in the Credit Agreement.
(b) Interpretation. The rules of interpretation set forth in Section
1.02 of the Credit Agreement shall be applicable to this Amendment Agreement and
are incorporated herein by this reference.
SECTION 2 Amendments to the Credit Agreement. The Credit Agreement
shall be amended as set forth in this Section 2, effective as of the date shown
first above (the "Effective Date"), subject to the satisfaction of the
conditions set forth in Section 3 hereof.
(a) Amendments. The Credit Agreement shall be amended as follows:
(i) Section 7.02(d) is amended to read as follows:
"(d) dispositions permitted under Section 7.06(c);
and"
(ii) Section 7.06(c) is amended to read as follows:
"(c) as to the Company, declare and make dividend
payments and other distributions to shareholders of
the Company of common Stock of eFunds Corporation and
of cash to the extent in lieu of fractional shares
thereof, pursuant to a tax-free distribution; and"
(b) References Within Credit Agreement. Each reference in the Credit
Agreement to "this Agreement" and the words "hereof," "herein, hereunder," or
words of like
import, shall mean and be a reference to the Credit Agreement as amended by this
Amendment Agreement.
SECTION 3 Conditions of Effectiveness. The effectiveness of this
Amendment Agreement shall be subject to the satisfaction of each of the
following conditions precedent:
(a) Executed Amendment Agreement. The Agent shall have received an
executed counterpart of this Amendment Agreement from each of the Company and
the Majority Banks.
(b) Additional Closing Documents and Actions. The Agent shall have
received, in form and substance satisfactory to it, a certificate of a
Responsible Officer of the Company dated the Effective Date, stating that (A)
the representations and warranties contained in Section 4 hereof are true and
correct on and as of the Effective Date, and (B) on and as of the Effective
Date, after giving effect to the amendments of the Credit Agreement contemplated
hereby, no Default or Event of Default shall have occurred and be continuing.
(c) Corporate Authority. The Agent shall have received, in form and
substance satisfactory to it, evidence of the authority of each officer of the
Company executing and delivering this Amendment Agreement.
(d) Additional Documents. The Agent shall have received, in form and
substance satisfactory to it, such additional approvals, documents and other
information as the Agent or any Bank (through the Agent) may reasonably request.
For purposes of determining compliance with the foregoing conditions specified
in this Section 3, each of the Banks that has executed this Amendment Agreement
shall be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter either sent by the Agent to such Bank for
consent, approval, acceptance or satisfaction, or required hereunder to be
consented to or approved by or acceptable or satisfactory to, such Bank.
SECTION 4 Representations and Warranties of the Company. To induce the
Agent and the Banks to enter into this Amendment Agreement, the Company hereby
confirms and restates, as of the Effective Date, the representations and
warranties made by it in Article V of the Credit Agreement. For the purposes of
this Section 4, (i) each reference in Article V of the Credit Agreement to "this
Agreement," and the words "hereof," "herein," "hereunder," or words of like
import in such Section, shall mean and be a reference to the Credit Agreement as
amended by this Amendment Agreement, and each reference in such Section to "the
Loan Documents" shall mean and be a reference to the Loan Documents as amended
hereby, (ii) the representation and warranty set forth in section 5.11 of the
Credit Agreement shall be deemed instead to refer to the last day of the most
recent fiscal quarter and fiscal year for which financial statements have then
been delivered, and (iii) any representations and warranties which relate solely
to an earlier date shall not be deemed confirmed and restated as of the date
hereof (provided that such representations and warranties shall be true, correct
and complete as of such earlier date).
2.
SECTION 5 Miscellaneous.
(a) Notice. The Agent shall notify the Company and the Banks of the
occurrence of the Effective Date, and thereafter distribute to the Company and
Banks copies of all documents delivered under Section 3.
(b) Credit Agreement Otherwise Not Affected. Except as expressly
amended and restated pursuant hereto, the Credit Agreement shall remain
unchanged and in full force and effect and is hereby ratified and confirmed in
all respects. The Banks' and the Agent's execution and delivery of, or
acceptance of, this Amendment Agreement and any other documents and instruments
in connection herewith shall not be deemed to create a course of dealing or
otherwise create any express or implied duty by any of them to provide any other
or further amendments, consents or waivers in the future.
(c) No Reliance By Company. The Company hereby acknowledges and
confirms to the Agent and the Banks that the Company is executing this Amendment
Agreement on the basis of its own investigation and for its own reasons without
reliance upon any agreement, representation, understanding or communication by
or on behalf of any other Person.
(d) Costs and Expenses. The Company agrees to pay to the Agent on
demand the reasonable out-of-pocket costs and expenses of the Agent, and the
reasonable fees and disbursements of counsel to the Agent, in connection with
the negotiation, preparation, execution and delivery of this Amendment Agreement
and any other documents to be delivered in connection herewith.
(e) Binding Effect. This Amendment Agreement shall be binding upon,
inure to the benefit of and be enforceable by the Company, the Agent and each
Bank and their respective successors and assigns.
(f) Governing Law. THIS AMENDMENT AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(g) Complete Agreement: Amendments. This Amendment Agreement, together
with the other Loan Documents, contains the entire and exclusive agreement of
the parties hereto and thereto with reference to the matters discussed herein
and therein. This Amendment Agreement supersedes all prior commitments, drafts,
communications, discussion and understandings, oral or written, with respect
thereto. This Amendment Agreement may not be modified, amended or otherwise
altered except in accordance with the terms of Section 10.01 of the Credit
Agreement.
(h) Severability. Whenever possible, each provision of this Amendment
Agreement shall be interpreted in such manner as to be effective and valid under
all applicable laws and regulations. If, however, any provision of this
Amendment Agreement shall be prohibited by or invalid under any such law or
regulation in any jurisdiction, it shall, as to such jurisdiction, be deemed
modified to conform to the minimum requirements of such law or regulation, or,
if for any reason it is not deemed so modified, it shall be ineffective and
invalid only to the extent of such prohibition or invalidity without affecting
the remaining provisions of
3.
this Amendment Agreement, or the validity or effectiveness of such provision in
any other jurisdiction.
(i) Counterparts. This Amendment Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute but one and the same agreement.
(j) Interpretation. This Amendment Agreement is the result of
negotiations among, and has been reviewed by, counsel to the Agent, the Company
and the other parties hereto and are the product of all parties hereto.
Accordingly, this Amendment Agreement shall not be construed against any of the
Banks or the Agent merely because of the Agent's or any Bank's involvement in
the preparation thereof.
(k) Loan Document. This Amendment Agreement shall constitute a Loan
Document.
[SIGNATURE PAGES FOLLOW.]
4.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment Agreement, as of the date first above written.
THE COMPANY
DELUXE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
THE AGENT
BANK OF AMERICA, N.A., as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Principal
THE BANKS
BANK OF AMERICA, N.A., as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Principal
THE BANKS
BANK OF AMERICA, N.A., as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Principal
ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Group Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
5.
BANCA DI ROMA - CHICAGO
BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
By: Enrico Verdoscia
Name: Enrico Verdoscia
Title: Sr. Vice Pres. & Branch Mgr.
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
BANK ONE, N.A.
(Main Office Chicago)
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
FIRSTAR BANK, NATIONAL
ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
6.
LLOYDS TSB BANK plc
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Director
R156
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director, Financial Institutions, USA
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THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Second Vice President
SUNTRUST BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
UMB BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
7.
WACHOVIA BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
▇▇▇▇▇ FARGO BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, ▇▇▇▇▇ Fargo Bank, National Association
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
8.
OFFICER'S CERTIFICATE
The undersigned, being the Treasurer of Deluxe Corporation, a Minnesota
corporation (the "Corporation"), pursuant to Section 3(b) of the Amendment to
Amended and Restated Credit Agreement dated as of October 5, 2000 among Bank of
America, N.A., as Agent, the Corporation, and the other financial institutions
named therein (the "Amendment") which amends the Amended and Restated Credit
Agreement, dated as of August 14, 2000, by and among the parties hereto (the
"Credit Agreement"), does hereby certify in the name and on behalf of the
Corporation that:
(i) the representations and warranties contained in Section 4 of
the Amendment are true and correct on and as of the Effective
Date; and
(ii) on and as of the Effective Date, after giving effect to the
amendment to the Credit Agreement contemplated by the
Amendment, no Default or Event of Default exists.
The capitalized terms used in this Certificate unless otherwise defined herein
shall have the meanings attributable to them in the Amendment.
IN WITNESS WHEREOF, I have executed this Certificate on behalf of the
Corporation (and not personally) this 18th day of December, 2000.
DELUXE CORPORATION
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Treasurer
DELUXE CORPORATION
CERTIFICATE OF SECRETARY
I, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Secretary of Deluxe Corporation, a Minnesota
corporation (the "Company"), pursuant to Section 3(c) of that Amendment to
Amended and Restated Credit Agreement dated as of October 5, 2000 (the
"Agreement") entered into by and among the Company, Bank of America, N.A., as
administrative agent for itself and the Lenders (the "Administrative Agent"),
and the several financial institutions from time to time party thereto
(collectively, the "Lenders"), do hereby certify on behalf of the Company as
follows, as of the date hereof (terms used herein and not otherwise defined
herein are used as defined in the Agreement):
1. Attached hereto as Exhibit A is a true, correct and complete copy of
the resolutions duly adopted by the Board of Directors of the Company (a) at a
meeting of the Board of Directors duly called and held on August 3-4, 2000, at
which meeting a quorum was present and acting throughout and the requisite
number of such directors voted in favor of said resolutions, or, (b) by
unanimous written consent of all members of the Board of Directors of the
Company. Such resolutions have not in any way been rescinded, amended, modified
or revoked and are now in full force and effect on the date hereof;
2. No resolution of dissolution has been approved or adopted by the
shareholders or directors of the Company, nor has any meeting been called for
such purpose, nor has any court or other Governmental Authority entered an order
of dissolution, nor, to the best of our knowledge, has any certificate of
dissolution been entered or proceeding commenced for such purpose; and
3. The following persons have been since October 5, 2000 (except as
otherwise noted) and are now duly elected and qualified officers of the Company,
and on the date hereof do hold the office as set forth opposite his/her name
below; the signatures appearing opposite their respective names are the true and
authentic signatures of such officers, and each of such officers is duly
authorized to execute and deliver to the Administrative Agent and the Lenders
the Agreement and other such documents as may be required on behalf of the
Company:
Name Office Signature
▇▇▇▇ ▇. ▇▇▇▇▇▇ Senior Vice President & /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Treasurer /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇* Senior Vice President, /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
General Counsel & Secretary
*Appointed to office on 12/1/00.
IN WITNESS WHEREOF, I have signed this Certificate as of the l8th day of
December, 2000.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Secretary
I, ▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President of Deluxe Corporation, do
hereby certify on behalf of the Company that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ is on the date
hereof and has been at all times since December 1, 2000, the duly elected or
appointed, qualified and acting Secretary of the Company, and the signature set
forth above is the genuine signature of said officer.
IN WITNESS WHEREOF, I have executed this Certificate as of the 18th day
of December, 2000.
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Exhibit A
Credit Facility with Bank of America
WHEREAS, the Corporation entered a Credit Agreement, dated as of August
30, 1999 (together with all related schedules, exhibits and other documents
referenced therein, the "Credit Agreement") with Bank of America, N.A.
(including any predecessors and successors, "Bank of America") acting as
administrative agent, and the financial institutions named therein (the
"Financial Institutions") which provided a 364-day revolving credit facility in
the maximum principal amount of $500,000,000, all as set forth in the Credit
Agreement;
WHEREAS, at the Corporation's request, the maximum principal amount of
the said credit facility was reduced to $300,000,000 (the credit facility having
the reduced maximum principal amount, the "Credit Facility");
WHEREAS, the Credit Facility expires on August 28, 2000 as provided in
the Credit Agreement;
WHEREAS, in accordance with the Credit Agreement, the Corporation has
requested, and Bank of America, as administrative agent, and the Financial
Institutions have agreed, to extend the Credit Facility for an additional 364
day period.
NOW, THEREFORE, BE IT RESOLVED, that each of the Chief
Executive Officer, Vice Chairman, Chief Financial Officer, Treasurer
and Senior Vice President and General Counsel of the Corporation be,
and hereby is, authorized and directed to negotiate, execute and
deliver on behalf and in the name of the Corporation an amendment and
restatement of the Credit Agreement (any agreement containing the terms
and conditions of such amendment and restatement, the "Agreement") with
Bank of America acting as administrative agent and the Financial
Institutions for an additional 364 day period following its expiration
on August 28, 2000 on the terms and conditions contained in the Credit
Agreement and the Agreement described at the meeting, with such
amendments, changes, additions or deletions thereto as such officers,
or any of them, deem advisable and proper, the execution by each such
officer of the Agreement and any amendment or supplement to the Credit
Agreement and other documentation relating thereto to be conclusive
evidence that such officer deems all of the terms and provisions
thereof to be advisable and proper;
FURTHER RESOLVED, that the actions of the officers of the
Corporation in connection with the execution and delivery to Bank of
America and Banc of America Securities LLC ("BAS") of any agreement or
agreements providing for (a) the payment of administrative,
arrangement, up-front, structuring, syndicating and other fees in
connection with the Credit Facility to Bank of America and BAS and of
any other additional charge, cost and fee in connection with the
Agreement, any amendment or supplement to the Credit Agreement and any
other related document or agreement (including, without limitation, the
negotiation and preparation of the documentation relating thereto); and
(b) for indemnification of
Bank of America, BAS and other persons and entities, which shall
conclusively be deemed to include, without limitation, the terms and
conditions contained in two letters dated June 16, 1999 executed by the
Corporation and Bank of America and BAS, be, and hereby are authorized,
ratified and approved and the said officers, be, and each of them
hereby is authorized, to negotiate, execute and deliver any further
agreement or amendment or supplement to any of the foregoing, in
connection with the Agreement and any amendment or supplement to the
Credit Agreement as they, or any of them, determine to be necessary or
appropriate;
FURTHER RESOLVED, that each of the Chief Financial Officer and
Treasurer be, and hereby is, authorized on behalf of the Corporation to
borrow from time to time under the Credit Facility as extended, to
agree to rates of interest and other terms of loans under the Credit
Facility, to repay all amounts so borrowed, to issue instructions in
connection with the foregoing and to execute in the name of the
Corporation, and deliver written confirmations of any such instructions
and to do and perform all acts which may be necessary or desirable in
connection with borrowing from time to time and otherwise performing
the Corporation's obligations under the Credit Facility;
FURTHER RESOLVED, that each of the Chief Executive Officer,
Vice Chairman, Chief Financial Officer and Treasurer be, and hereby is,
authorized on behalf of the Corporation to designate and authorize
other officers and employees of the Corporation to perform any and all
of the functions specified in the preceding resolution;
FURTHER RESOLVED, that each of the Chief Financial Officer and
Treasurer and officers and employees designated and authorized to from
time to time to act on behalf of the Corporation in accordance with the
preceding resolution be, and hereby is, authorized to take such action
from time to time on behalf of the Corporation as he or she may deem
advisable and proper in order to carry out and perform the obligations
of this Corporation with respect to the Credit Facility; and
FURTHER RESOLVED, that all authority conferred by these
resolutions shall be deemed retroactive and any and all acts authorized
hereunder performed prior to the adoption of this resolution are hereby
ratified, affirmed, adopted and approved.