EXHIBIT 4.4
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated
as of July 22, 1994 (this "Amendment"), by and among NATIONAL COMPUTER SYSTEMS,
INC., a Minnesota corporation (the "Company"), the BANKS signatories hereto
(each a "Bank" and, collectively, the "Banks") and FIRST BANK NATIONAL
ASSOCIATION, a national banking association, as administrative agent for the
Banks (in such capacity, the "Agent").
WITNESSETH:
WHEREAS, the Company, the Banks and the Agent entered into an Amended
and Restated Credit Agreement dated as of July 31, 1991, as amended by a First
Amendment to Amended and Restated Credit Agreement dated as of January 25, 1994
(as so amended, the "Credit Agreement"); and
WHEREAS, the Company and the Banks desire to amend the Credit
Agreement in certain respects.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged by the parties hereto, it is agreed as follows:
1. Defined Terms. All terms capitalized and used in this Amendment
without being defined shall have the meanings set forth in the Credit Agreement,
as amended hereby.
2. Restatement of Original Aggregate Commitment Amount. At the
Company's request, the Banks hereby agree that the full original Aggregate
Commitment Amount of $40,000,000 shall be reinstated as of the effective date
hereof, with each Bank assuming its original Pro Rata Share of such Aggregate
Commitment Amount. The reinstatement set forth above is limited to the express
terms thereof, and nothing herein shall be deemed a consent by the Banks to any
subsequent reinstatement of any portion of the Aggregate Commitment Amount
following a reduction thereof pursuant to Section 2.3 of the Credit Agreement,
or any right on the part of the Company to have any such portion of the
Aggregate Commitment Amount so reinstated.
3. Conditions to Effectiveness of This Amendment. This Amendment shall
become effective when the Agent shall have received this Amendment, duly
executed and delivered by the Company and the Banks, and the following
conditions are satisfied:
(a) the following documents each in form and substance satisfactory to
the Agent and its counsel, shall have been delivered to the Agent:
(i) copies of the resolutions of the Board of Directors of
the Company authorizing the execution, delivery and performance of
this Amendment and any other instrument or document hereunder and the
other matters contemplated hereby, certified by the Secretary or an
Assistant Secretary of the Company;
(ii) copies of certificates signed by the Secretary or an
Assistant Secretary of the Company as to the incumbency and specimen
signature of each Person authorized to execute and delivered this
Amendment and any other instrument or agreement hereunder;
(iii) copies of certificates of the Secretary, an Assistant
Secretary or authorized representative of the Company certifying that
there have been no changes to the Articles of Incorporation or bylaws
of the Company since the date of the most recent certified copy
thereof delivered to the Agent; and
(iv)such other documents, instruments, opinions and approvals
as the Banks may reasonably request.
(b) The Company agrees to pay the reasonable fees and expenses,
including reasonable attorneys' fees, incurred by the Agent in connection with
this Amendment.
4. Affirmations. The parties hereto acknowledge and confirm that, the
Credit Agreement as hereby amended remains in full force and effect in
accordance with its terms, and (ii) the Company acknowledges and confirms that
it will continue to comply with the covenants set out in the Credit Agreement,
as amended hereby, and that its representations and warranties set out in the
Credit Agreement, as amended hereby, are true and correct as of the date of this
Amendment, except to the extent that such representations and warranties relate
to an earlier date, in which case they were true and correct as of such earlier
date.
5. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be original; but such counterparts shall
together constitute but one and the same instrument, with the same effect as if
the signatures hereto were on the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by the respective officers thereunto duly authorized as of the date
first above written.
NATIONAL COMPUTER SYSTEMS, INC.
By: /s/ Charles W. Oswald
Name: Charles W. Oswald
Its: Chairman, President and Chief
Executive Officer
By: /s/ J.W. Fenton, Jr.
Name: J.W. Fenton, Jr.
Its: Secretary-Treasurer
FIRST BANK NATIONAL ASSOCIATION,
in its individual capacity and as Agent
By: /s/ Joel C. Kozlak
Its: Vice President
NORWEST BANK MINNESOTA
NATIONAL ASSOCIATION
By: /s/ Mary D. Falck
Its: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Armund J. Schoen, Jr.
Its: Vice President
ASSIGNMENT AGREEMENT
This Agreement (the "Agreement") is entered into as of the 1st
day of June, 1995 by and among First Bank National Association, a national
banking association ("First"), Norwest Bank Minnesota, National Association, a
national banking association ("Norwest"), The First National Bank of Chicago, a
national banking association ("First Chicago"), and National Computer Systems,
Inc., a Minnesota corporation ("NCS").
The parties have entered into an Amended and Restated Credit
Agreement dated as of July 31, 1991, as amended by amendments dated January 25,
1994 and July 22, 1994, setting forth the terms on which the Banks, as defined
therein, have extended a $40,000,000 line of credit to NCS (together with all
amendments, modifications and restatements thereof, the "Credit Agreement").
The parties have agreed that First shall resign its capacity
as Agent under the Credit Agreement and that Norwest shall be appointed as Agent
under the Credit Agreement.
In connection with the transfer of the agency under the Credit
Agreement, First shall assign $4,000,000 of its $16,000,000 commitment under the
Credit Agreement to Norwest.
ACCORDINGLY, in consideration of the mutual covenants
contained in the Credit Agreement and herein, the parties hereby agree as
follows:
1. Definitions. Unless otherwise defined herein, terms used
herein have the meanings provided in the Credit Agreement. In addition, the
following term has the meaning set forth below:
"Adjustment Date" means June 1, 1995.
2. Agency. Pursuant to Section 8.7 of the Credit Agreement,
First hereby resigns its capacity as Agent under the Credit Agreement, and
First, Norwest and First Chicago hereby appoint Norwest as the successor Agent
thereunder. The Company hereby consents to the appointment of Norwest as Agent
under the Credit Agreement, and Norwest hereby accepts such appointment. Each
reference in the Credit Agreement to the "Agent" shall hereafter be deemed to be
a reference to Norwest acting in its capacity as Agent thereunder.
Notwithstanding any provision of the Credit Agreement or the Notes, all payments
under the Credit Agreement and the notes from and after the date hereof shall be
made to Norwest at its main office in Minneapolis, Minnesota, or at such other
place as the Agent may from time to time direct.
3. Assignment of Loan.
(a) First hereby assigns to Norwest, and Norwest hereby
purchases from First, one quarter (25%) of First's interests as a Bank
under the Credit Agreement, including $4,000,000 of First's Commitment
Amount and one-quarter (25%) of the outstanding Loans owing to First.
(b) First represents and warrants to Norwest that the
aggregate principal amount of the outstanding Loans owing to First on
the Adjustment Date is $1,640,000. Except as set forth in the preceding
sentence, the assignment effected hereby is made without representation
or warranty.
(c) From and after the Adjustment Date:
(i) Norwest's Commitment Amount shall be $16,000,000, and
Norwest shall be deemed to have assumed First's
Commitment to the extent of the increase in its
Commitment Amount in accordance herewith;
(ii) First Commitment Amount shall be $12,000,000, and
First shall be relieved of all of its obligations
under the Credit Agreement to the extent of the
reduction in its Commitment Amount in accordance
herewith;
(iii) Norwest's Pro Rata Share shall be 40%, and First's
Pro Rata Share shall be 30%.
(d) As of the Adjustment Date, after giving effect to the
assignment effected hereby, the principal amount of Loans owing to
Norwest shall be $1,640,000, and the principal amount of Loans owing to
First shall be $1,230,000.
(e) On or before the Adjustment Date, the Borrower shall issue
and deliver to the Agent its promissory notes in the forms of Exhibits
A and B to this Agreement (the "Replacement Notes"). The Agent shall
deliver the Replacement Notes to the applicable Banks promptly upon
receipt by the Agent.
(f) On the Adjustment Date, Norwest shall wire-transfer
$410,000 to First in full payment for the interest in the Loans and the
Credit Agreement assigned by First hereunder. Such payment shall be
directed as follows:
First Bank National Association
ABA Routing No. 09100022
for credit to:
Commercial Loan Service Center
Account No. 30000472160600
Reference: National Computer Systems, Inc.
(g) Each of the parties hereto hereby consents to the
assignment described in this section 3.
4. Miscellaneous. NCS and First shall execute and deliver such
further documents and do such further acts and things as Norwest may reasonably
request in order to effect the purpose of this Agreement. This Agreement may be
executed in any number of counterparts by the parties hereto, each of which
counterparts shall be deemed to be an original and all of which shall together
constitute one and the same agreement. This Agreement shall be governed by the
internal law of the State of Minnesota.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the Adjustment Date set forth above.
FIRST BANK NATIONAL NORWEST BANK MINNESOTA,
ASSOCIATION, as a Bank as the NATIONAL ASSOCIATION, as a
resigning Agent Bank and as the successor Agent
By /s/ Joel C. Kozlak By /s/ Mary D. Falck
Its Vice President Its Vice President
THE FIRST NATIONAL BANK OF NATIONAL COMPUTER SYSTEMS, INC.
CHICAGO
By /s/ Amy L. Golz By /s/ Russell A. Gullotti
Its Assistant Vice President Its Chairman and CEO
By /s/ J.W. Fenton, Jr.
Its Secretary-Treasurer
EXHIBIT A
NOTE
$12,000,000 June 1, 1995
For Value Received, National Computer Systems, Inc. (the "Company")
hereby promises to pay to the order of First Bank National Association (the
"Bank") the principal amount of each Loan made by the Bank to the Company under
the Credit Agreement (as defined below) in accordance with the provisions of
Section 2 of the Credit Agreement; provided that on or before the Termination
Date (as defined in the Credit Agreement), the Company shall pay in full the
unpaid principal amount of all Loans made by the Bank to the Company under the
Credit Agreement.
The Company also promises to pay interest on the unpaid principal
amount hereof from the date hereof until paid at the rates and at the times
determined in accordance with the provisions of the Amended and Restated Credit
Agreement (together with all amendments, modifications and restatements thereof,
the "Credit Agreement") dates as of July 31, 1991, among the Company, the banks
which are from time to time parties thereto, and Norwest Bank Minnesota,
National Association, as agent for such banks (in such capacity, the "Agent")
and as the successor to First Bank National Association in its capacity as agent
thereunder.
Both the principal hereof and the interest hereon are payable in lawful
money of the United States of America at the main office of Norwest Bank
Minnesota, National Association in Minneapolis, Minnesota, or at such other
place as the Agent may from time to time designate, in Immediately Available
Funds.
The Company waives presentment, demand, protest and notice of any kind.
No failure to exercise, and no delay in exercising, any rights hereunder on the
part of the holder hereof shall operate as a waiver of such rights.
In the event an action is commenced to enforce payment of this Note,
the Company shall pay all costs of collection and enforcement of this Note,
including, without limitation, reasonable attorneys' fees.
This Note is one of the "Notes" referred to in, and is entitled to the
benefits of, the Credit Agreement, which, among other things, contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and for prepayment, from time to time, of amounts outstanding
under this Note upon certain stated terms and conditions.
This Note is issued in partial substitution for, but not in payment of,
the Company's Note, dated November 12, 1991, payable to the order of the Bank in
the face principal amount of $16,000,000.
Unless otherwise defined herein, capitalized terms used herein are used
with the defined meanings given in the credit Agreement. This Note shall be
governed by and construed in accordance with the internal laws of the State of
Minnesota, with respect to principles of conflict of laws.
NATIONAL COMPUTER SYSTEMS, INC.
By
Its
By
Its
EXHIBIT B
NOTE
$16,000,000 June 1, 1995
For Value Received, National Computer Systems, Inc. (the "Company")
hereby promises to pay to the order of Norwest Bank Minnesota National
Association (the "Bank") the principal amount of each Loan made by the Bank to
the Company under the Credit Agreement (as defined below) in accordance with the
provisions of Section 2 of the Credit Agreement; provided that on or before the
Termination Date (as defined in the Credit Agreement), the Company shall pay in
full the unpaid principal amount of all Loans made by the Bank to the Company
under the Credit Agreement.
The Company also promises to pay interest on the unpaid principal
amount hereof from the date hereof until paid at the rates and at the times
determined in accordance with the provisions of the Amended and Restated Credit
Agreement (together with all amendments, modifications and restatements thereof,
the "Credit Agreement") dates as of July 31, 1991, among the Company, the banks
which are from time to time parties thereto, and Norwest Bank Minnesota,
National Association, as agent for such banks (in such capacity, the "Agent")
and as the successor to First Bank National Association in its capacity as agent
thereunder.
Both the principal hereof and the interest hereon are payable in lawful
money of the United States of America at the main office of Norwest Bank
Minnesota, National Association in Minneapolis, Minnesota, or at such other
place as the Agent may from time to time designate, in Immediately Available
Funds.
The Company waives presentment, demand, protest and notice of any kind.
No failure to exercise, and no delay in exercising, any rights hereunder on the
part of the holder hereof shall operate as a waiver of such rights.
In the event an action is commenced to enforce payment of this Note,
the Company shall pay all costs of collection and enforcement of this Note,
including, without limitation, reasonable attorneys' fees.
This Note is one of the "Notes" referred to in, and is entitled to the
benefits of, the Credit Agreement, which, among other things, contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and for prepayment, from time to time, of amounts outstanding
under this Note upon certain stated terms and conditions.
This Note is issued (i) in partial substitution for, but not in payment
of, the Company's Note, dated November 12, 1991, payable to the order of the
Bank in the face principal amount of $12,000,000, and (ii) in partial
substitution for, but not in payment of, the Company's Note, dated November 12,
1991, payable to the order of First Bank National Association in the face
principal amount of $16,000,000.
Unless otherwise defined herein, capitalized terms used herein are used
with the defined meanings given in the credit Agreement. This Note shall be
governed by and construed in accordance with the internal laws of the State of
Minnesota, with respect to principles of conflict of laws.
NATIONAL COMPUTER SYSTEMS, INC.
By
Its
By
Its
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, DATED
AS OF JULY 24, 1995 (this "Amendment"), by and among NATIONAL COMPUTER SYSTEMS,
INC., a Minnesota corporation (the "Company"), the BANKS signatories hereto
(each a "Bank" and collectively the "Banks") and NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, a national banking association, as administrative agent
for the Banks (in such capacity, the "Agent").
WITNESSETH:
WHEREAS, the Company, the Banks and the Agent are parties to an
Amended and Restated Credit Agreement dated as of July 31, 1991, as amended by a
First Amendment to Amended and Restated Credit Agreement dated as of January 25,
1994 and a Second Amendment to Amended and Restated Credit Agreement dated as of
July 22, 1994 (as so amended, the "Credit Agreement"); and
WHEREAS, the Company and the Banks desire to amend the Credit
Agreement in certain respects.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged by the parties hereto, it is agreed as follows:
1. Defined Terms. All terms capitalized and used in this Amendment
without being defined shall have the meaning set forth in the Credit Agreement,
as amended hereby.
2. Amendments to Credit Agreement. The Credit Agreement is hereby
amended as follows:
(a) The definition of "LIBO Rate" in Section 1.2 is deleted in its
entirety and the following definition is substituted in its place:
"LIBO Rate" shall mean the rate per annum determined by the
Agent, on the basis of the Reuters Screen LIBO page, to be the rate at
which U.S. Dollar deposits in immediately available funds are offered
to the Agent as of 11:00 a.m. (London time) two Eurodollar Business
Days prior to the beginning of the proposed Interest Period for funds
to be made available on the first day of such Interest Period in an
amount approximately equal to the amount of the LIBOR Loan to be made
by the Agent (in its individual capacity) and maturing at the end of
such Interest Period."
(b) The definition of "Termination Date" in Section 1.2 is amended by
changing the date set forth therein from "August 1, 1996" to "August 1, 1998".
(c) Section 2.2(a) is amended by deleting clause (ii) thereof and
substituting in its place the following new clause:
"(ii) the aggregate principal amount of the Loans to be made on such
date, which shall be in the minimum amount of (A) $100,000 or an
integral multiple of $100,000 in the case of Reference Loans, and (B)
$500,000 or an integral multiple of $100,000 in excess of $500,000 in
the case of CD Loans and LIBOR Loans."
(d) Section 2.7 is amended by deleting the second and third sentences
thereof and substituting in their place the following two new sentences:
"Interest on the Reference Loans shall be payable monthly, in arrears,
on the first Business Day of the month following the month such
interest has accrued and on the Termination Date. Interest on the Fixed
Rate Loans shall be payable in arrears on the last day of the
applicable Interest Period or such other date as such Loans are paid in
full; provided, however, that accrued interest on CD Loans or Libor
Loans with an Interest Period exceeding approximately 30 days or one
month, respectively, shall also be payable during such Interest Period
on the first Business Day of the month following the month such
interest has accrued."
(e) Section 2.8 is amended by deleting clause (iv) thereof and
substituting in its place the following new clause:
"(iv) no Reference Loan, Federal Funds Loan or CD Loan may be converted
into a LIBOR Loan, no Reference Loan, Federal Funds Loan or LIBOR Loan
may be converted into a CD Loan and no LIBOR Loan or CD Loan may be
refunded if a Default or Event of Default has occurred and is
continuing on the proposed date of conversion or refunding."
(f) The following new Section 5.13 is added at the end of Section 5:
"5.13. Sales and Transfers of Assets. The Company
shall promptly notify the Agent of any proposed sale or transfer of
assets of the Company or any Subsidiary if such assets shall have an
aggregate book value or fair market value in excess of $15,000,000, or
are proposed to be sold or transferred for a purchase price in excess
of $15,000,000, whether in a single transaction or a series of
transactions. Before such proposed sale or transfer is completed, the
Company shall provide to the Agent such reasonably detailed information
which shows, to the best of its knowledge, that such transaction or
transactions, when completed, will not cause a Default or an Event of
Default and shall provide the Agent with any additional information
reasonably requested by the Agent or the Banks."
3. Conditions to Effectiveness of This Amendment. This Amendment shall
become effective when the Agent shall have received this Amendment, duly
executed and delivered by the Company and the Banks, and the following
conditions are satisfied:
(a) The following documents, each in form and substance satisfactory
to the Agent and its counsel, shall have been delivered to the Agent:
(i) copies of the resolutions of the Board of Directors of the
Company authorizing the execution, delivery and performance of this
Amendment and any other instrument or document hereunder and the other
matters contemplated hereby, certified by the Secretary or an Assistant
Secretary of the Company;
(ii) copies of the certificates signed by the Secretary
or an Assistant Secretary of the Company as to the incumbency and
specimen signature of each Person authorized to execute and deliver
this Amendment and any other instrument or agreement hereunder;
(iii) copies of certificates of the Secretary, an Assistant
Secretary or authorized representative of the Company certifying that
there have been no changes to the Articles of Incorporation or bylaws
of the Company since the date of the most recent certified copy thereof
delivered to the Agent or the predecessor Agent; and
(iv) such other documents, instruments, opinions and approvals
as the Banks may reasonably request.
(b) The Company shall have paid the reasonable fees and expenses,
including reasonable attorneys' fees, incurred by the Agent in connection with
this Amendment.
4. Affirmations. The parties hereto acknowledge and confirm that the
Credit Agreement as hereby amended remains in full force and effect in
accordance with its terms, and the Company acknowledges and confirms that it
will continue to comply with the covenants set out in the Credit Agreement, as
amended hereby, and that its representations and warranties set out in the
Credit Agreement, as amended hereby, are true and correct as of the date of this
Amendment, except to the extent that such representations and warranties relate
to an earlier date, in which case they were true and correct as of such earlier
date.
5. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument, with the same effect as if
the signatures hereto were on the same instrument.
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[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by the respective officers thereunto duly authorized as
of the date first above written.
NATIONAL COMPUTER SYSTEMS, INC.
By: /s/ Russell A. Gullotti
Its: Chairman, President and Chief Exec.
Officer
By: /s/ J.W. Fenton, Jr.
Its: Secretary - Treasurer
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
in its individual capacity and as Agent
By: /s/ Mary D. Falck
Its: Vice President
FIRST BANK NATIONAL ASSOCIATION
By: /s/ Joel C. Kozlak
Its: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Amy L. Golz
Its: Assistant Vice President