Exhibit 10.4
AMENDMENT TO CREDIT AGREEMENT
THIS AMENDMENT TO CREDIT AGREEMENT (this "Amendment
Agreement"), dated as of August 14, 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 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 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 of satisfaction of the conditions set forth in Section 3
hereof (the "Effective Date").
(a) Amendments. The Credit Agreement shall be amended as
follows:
(i) Section 7.02(c) is amended by deleting the word
"and" from the end thereof.
(ii) The existing Section 7.02(d) is redesignated as
Section 7.02(e). The existing Section 7.02(d) is further
amended by changing the reference therein to "subsections
7.02(a) through (c)" to read "subsections 7.02(a) through
(d)".
(iii) A new Section 7.02(d) is inserted to read as
follows:
"(d) dispositions by the Company of common
stock of eFunds Corporation to Company
shareholders, pursuant to an exchange offer
(in which shares of the Company are
exchanged for shares of eFunds Corporation)
and spin-off or in-kind dividend of any
remaining eFund shares, as described
generally in that S-1/A
Registration Statement of eFunds Corporation
filed with the SEC on or about June 23,
2000, and pursuant to an S-4 Registration
Statement of eFunds Corporation to be filed
with the SEC (together, the "Exchange Offer
Transaction"); and".
(iv) Section 7.06(b) is amended by deleting the word
"and" from the end thereof.
(v) The existing Section 7.06(c) is redesignated as
Section 7.06(d).
(vi) A new Section 7.06(c) is inserted to read as
follows:
"(c) make distributions by the Company to
its shareholders of common stock of eFunds
Corporation pursuant to the Exchange Offer
Transaction; 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.
2.
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.
(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.
3.
(g) Complete Agreement; Amendments. This Amendment Agreement,
together with the other Amendment Documents and 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 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
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DELUXE CORPORATION
By:
-------------------------------------
Name:
Title:
THE AGENT
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BANK OF AMERICA, N.A. (formerly
known as Bank of America National Trust
and Savings Association), as Agent
By:
-------------------------------------
Name: Matthew A. Gabel
Title: Vice President
THE BANKS
---------
BANK OF AMERICA, N.A. (formerly
known as Bank of America National Trust
and Savings Association), as a Bank
By:
-------------------------------------
Name: Kenneth J. Beck
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By:
-------------------------------------
Name:
Title:
5.
THE BANK OF NEW YORK
By:
-------------------------------------
Name:
Title:
WELLS FARGO BANK, N.A. (formerly
known as Norwest Bank Minnesota,
National Association)
By:
-------------------------------------
Name:
Title:
WACHOVIA BANK, N.A.
By:
-------------------------------------
Name:
Title:
BANK ONE, N.A.
By:
-------------------------------------
Name:
Title:
6.