Exhibit 4.8
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO 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. (formerly known as Bank of America National
Trust and Savings Association), 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 July 8, 1997 (as amended by that Amendment
to Credit Agreement dated as of August 14, 2000, 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 1 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 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 the Agent, 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 amendment 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 the Agent, 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 the Agent, 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 Banks 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. To induce the Agent and the
Banks to enter into this Amendment Agreement, the Company hereby confirms and
restates, as of the date hereof, 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).
SECTION 5 Miscellaneous.
2.
(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
the 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 Documents. 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/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
THE AGENT
BANK OF AMERICA, N.A. (formerly
known as Bank of America National Trust
and Savings Association), as Agent
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Principal
THE BANKS
BANK OF AMERICA, N.A. (formerly
known as Bank of America National Trust
and Savings Association), as a Bank
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Principal
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Vice President
5.
THE BANK OF NEW YORK
By: /s/ Xxxx-Xxxx Xxxxxxx
Name: XXXX-XXXX XXXXXXX
Title: VICE PRESIDENT
XXXXX FARGO BANK, N.A. (formerly
known as Norwest Bank Minnesota,
National Association)
By: /s/ Xxxxxxxxxxx X. Xxxxx
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President Xxxxx Fargo Bank,
National Association
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Assistant Vice President
BANK ONE, N.A.
(Main Office Chicago)
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Managing Director
6.
OFFICER'S CERTIFICATE
The undersigned, being the Treasurer of Deluxe Corporation, a Minnesota
corporation (the "Corporation"), pursuant to Section 3(b) of the Second
Amendment to Credit Agreement dated as of October 5, 2000 among Bank of America,
N.A. (formerly known as Bank of America National Trust and Savings Association),
as Agent, the Corporation, and the other financial institutions named therein
(the "Amendment") which amends the Amended and Restated Credit Agreement, dated
as of July 8, 1997, by and among the parties thereto (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 as of the Effective Date;
and
(ii) on and as of the Effective Date, after giving effect to the
amendment of 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 this 18th day of December, 2000.
DELUXE CORPORATION
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Treasurer
DELUXE CORPORATION
CERTIFICATE OF SECRETARY
I, Xxxxxxx X. Xxxxxxxx, Secretary of Deluxe Corporation, a Minnesota
corporation (the "Company"), pursuant to Section 3(c) of that Second Amendment
to 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 May 6, 1997, 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
Xxxx X. Xxxxxx Senior Vice President & /s/ Xxxx X. Xxxxxx
Chief Financial Officer
Xxxxx X. Xxxxxxx Treasurer /s/ Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx* Senior Vice President, /s/ Xxxxxxx X. Xxxxxxxx
General Counsel & Secretary
*Appointed to office on 12/1/00.
IN WITNESS WHEREOF, I have signed this Certificate as of the 18th day
of December, 2000.
/s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Secretary
I, Xxxx X. Xxxxxx, Senior Vice President of Deluxe Corporation, do
hereby certify on behalf of the Company that Xxxxxxx X. Xxxxxxxx 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/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
2
Exhibit A
Credit Facility with Bank of America
RESOLVED, that each of the Chief Executive Officer, the Senior Vice
President and Chief Financial Officer, the Vice President and
Treasurer, the Assistant Treasurer and the Senior Vice President and
General Counsel be and hereby is authorized and directed to negotiate,
execute and deliver on behalf and in the name of the Corporation a
revolving credit agreement ("Credit Agreement") with the Bank of
America National Trust and Savings Association ("Bank of America")
acting as administrative agent on behalf of the Bank of America and
other financial institutions to provide a revolving credit facility in
a maximum principal amount of $150,000,000 with a maturity of five
years (the "Facility"); such Facility to provide for adjusted LIBOR,
base, and competitive rate and other loan availability upon the terms
and conditions presented to this meeting, with such changes, additions
or deletions as such officers deem advisable and proper and to
negotiate, execute and deliver on behalf and in the name of the
Corporation such other documentation relating thereto as such officers
determine to be advisable and proper, the execution by each such
officer of 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 each of the Chief Executive Officer, the
Senior Vice President and Chief Financial Officer, the Vice President
and Treasurer, the Assistant Treasurer and the Senior Vice President
and General Counsel of the Corporation be and hereby is authorized and
directed on behalf and in the name of the Corporation to execute and
deliver to the Bank of America and BancAmerica Securities, Inc.
("BASI"), an agreement or agreements which provide arrangement fees for
the Facility to be paid to BASI, for other fees to be paid to the Bank
of America for serving as administrative agent in connection with the
Facility and for additional costs and fees to be paid to either of them
in connection with the negotiation and preparation of the documentation
of the Facility, upon terms and conditions presented to this meeting,
except for such changes, additions or deletions as such officer shall
deem advisable and proper;
FURTHER RESOLVED, that each of the Senior Vice President and Chief
Financial Officer, the Vice President and Treasurer and Assistant
Treasurer be and hereby is authorized on behalf of the Corporation to
borrow from time to time under the Facility, to agree to rates of
interest and other terms of loans under the 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 Facility;
FURTHER RESOLVED, that each of the Chief Executive Officer, the
Senior Vice President and Chief Financial Officer and the Vice
President and Treasurer 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 Senior Vice President and Chief
Financial Officer, the Vice President and Treasurer and the Assistant
Treasurer of the Corporation and the 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
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.
