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CONSENT, ASSUMPTION AND AMENDMENT AGREEMENT
This Consent, Assumption and Amendment Agreement (this
"Agreement") is made as of the 6th day of June, 2000, by and among
NORTHSTAR COMPUTER FORMS, INC., a Minnesota corporation ("Northstar"),
ENNIS BUSINESS FORMS, INC., a Texas corporation ("Ennis") and U.S. BANK
NATIONAL ASSOCIATION, a national banking association, formerly known as
First Bank National Association (the "Lender").
RECITALS
A. At the request of Northstar, the Brooklyn Park Economic
Development Authority, a Minnesota political subdivision (the "Issuer")
issued its Variable Rate Demand Industrial Development Revenue Bonds
(Northstar Computer Forms, Inc. Project), Series 1994, in the aggregate
principal amount of $2,945,000 (the "Bonds") pursuant to an Indenture of
Trust dated as of August 1, 1994, by and between the Issuer and First Trust
National Association, as trustee (the "Trustee") for the purchasers of the
Bonds.
B. Northstar and the Issuer executed a Loan Agreement dated as
of August 1, 1994 (the "Loan Agreement"), under which the Issuer loaned the
proceeds of the Bonds to Northstar to finance the construction of an
approximately 94,000 square foot manufacturing facility and related
improvements and equipment on certain land located in Hennepin County,
Minnesota (collectively, the "Project").
C. Under the Loan Agreement, Northstar agreed to make loan
payments sufficient to pay all principal of, premium, if any, and interest
on the Bonds. To secure repayment of the Bonds, the Lender issued its
irrevocable direct pay letter of credit to the Trustee for Northstar's
account in the amount of $2,993,411 (as amended and extended from time to
time, the "Letter of Credit").
D. As a condition to issuance of the Letter of Credit,
Northstar and the Lender entered into, among others, the following
agreements, each dated as of August 1, 1994, unless otherwise noted, as
amended to date: (i) a Letter of Credit and Reimbursement Agreement (the
"Reimbursement Agreement"); (ii) a Combination Mortgage, Assignment of
Leases and Rents, Security Agreement and Fixture Financing Statement (the
"Mortgage"); and (iii) a Pledge and Security Agreement (the "Pledge and
Security Agreement") (the Reimbursement Agreement, the Mortgage and the
Pledge Agreement and all related documents in favor of the Lender are
herein collectively called the "Lender Loan Documents").
E. Northstar, Ennis and Polaris Acquisition Corp., which is a
wholly-owned subsidiary of Ennis ("Polaris"), have entered into an
Agreement and Plan of Merger dated as of February 21, 2000, as amended by
Amendment No. 1 to Agreement and Plan of Merger dated as of May 9, 2000
(collectively, the "Merger Agreement"), pursuant to which Polaris will
merge with and into Northstar, with Northstar as the surviving corporation,
and Northstar, as the surviving corporation, will remain a wholly-owned
subsidiary of Ennis (the "Merger").
F. Pursuant to the terms of the Reimbursement Agreement,
Northstar is prohibited from merging into or with any other entity without
the prior written consent of the Lender.
G. Northstar and Ennis have requested that the Lender (i)
consent to the Merger, (ii) permit Ennis to assume Northstar's obligations
under the Lender Loan Documents, thereby becoming jointly and severally
liable with Northstar with respect to such obligations under the Lender
Loan Documents; and (iii) extend the expiration date of the Letter of
Credit and amend certain of the covenants in the Reimbursement Agreement so
that such covenants are consistent with covenants contained in other
financing arrangements of Ennis.
H. The Lender is willing to grant the requests of Northstar and
Ennis subject to the terms and conditions set forth in this Agreement.
ACCORDINGLY, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined in this Agreement,
capitalized terms used in this Agreement shall have meanings given to those
terms in the Reimbursement Agreement.
2. Lender's Consent to the Merger. The Lender hereby consents
to the Merger.
3. Assumption of Obligations under the Lender Loan Documents by
Ennis. Ennis hereby fully and irrevocably assumes and promises to pay and
perform all of the covenants, conditions, debts, obligations, liabilities
and duties of Northstar under the Lender Loan Documents (collectively, the
"Obligations"). Ennis and Northstar acknowledge and agree that Ennis and
Northstar are jointly and severally liable for the payment and performance
of all of the Obligations.
4. Waiver of Accommodation Party Defenses by Ennis with respect
to the Obligations. The Obligations assumed by Ennis under this Agreement
shall not be affected or impaired in any way by any of the following acts
or things (which the Lender is hereby expressly authorized to do, omit or
suffer from time to time without notice to or consent of anyone): (i) any
acceptance of collateral security, guarantors, accommodation parties or
sureties for any or all of the Obligations; (ii) any extensions or renewal
of any of the Obligations (whether or not for longer than the original
period) or any modification of the interest rate, maturity or other terms
of any of the Obligations; (iii) any waiver or indulgence granted to
Northstar, and any delay or lack of diligence in the enforcement of any of
the Obligations; (iv) any full or partial release of, compromise or
settlement with, or agreement not to sue, Northstar or any other guarantor
or other person liable on any of the Obligations; (v) any release,
surrender, cancellation or other discharge of any of the Obligations or the
acceptance of any instrument in renewal or substitution for any instrument
evidencing any of the Obligations; (vi) any failure to obtain collateral
security (including rights of setoff) for any of the Obligations, or to see
to the proper or sufficient creation and perfection thereof, or to
establish the priority thereof, or to preserve, protect, insure, care for,
exercise or enforce any collateral security for any of the Obligations;
(vii) any modification, alteration, substitution, exchange, surrender,
cancellation, termination, release or other change, impairment, limitation,
loss or discharge of any collateral security for any of the Obligations;
(viii) any assignment, sale, pledge or other transfer of any of the
Obligations; or (ix) any manner, order or method of application of any
payments or credits on any of the Obligations. Ennis hereby waives any and
all defenses and discharges available to a surety, guarantor, or
accommodation co-obligor, dependent on its character as such.
5. Waiver of Northstar's Defenses by Ennis. Ennis hereby
waives any and all defenses, claims, setoffs and discharges of Northstar,
or any other obligor, pertaining to the Obligations, except the defense of
discharge by payment in full. Without limiting the generality of the
foregoing, Ennis will not assert against the Lender any defense of waiver,
release, discharge in bankruptcy, statute of limitations, res judicata,
statute of frauds, anti-deficiency statute, fraud, ultra vires acts, usury,
illegality or unenforceability which may be available to Northstar in
respect of the Obligations, or any setoff available against the Lender to
Northstar, whether or not on account of a related transaction. The
liability of Ennis with respect to the Obligations shall not be affected or
impaired by any voluntary or involuntary liquidation, dissolution, sale or
other disposition of all or substantially all the assets, marshaling of
assets and liabilities, receivership, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement, composition or
readjustment of, or other similar event or proceeding affecting, Northstar
or any of Northstar's assets. Ennis will not assert against the Lender any
claim, defense or setoff available to Ennis against Northstar. Ennis also
hereby waives: (i) presentment, demand for payment, notice of dishonor or
nonpayment, and protest of the Obligations; (ii) notice of the acceptance
hereof by the Lender and of the creation and existence of the Obligations;
and (iii) notice of any amendment to or modification of any of the terms
and provisions of the Obligations or the Lender Loan Documents or any other
agreement evidencing or securing any of the Obligations. The Lender shall
not be required to first resort for payment of the Obligations to Northstar
or any other persons or corporations, their properties or estates, or to
any collateral, property, liens or other rights or remedies whatsoever.
6. Amendments to Reimbursement Agreement.
(a) Extension of Expiration Date of the Letter of Credit. Ennis
and Northstar confirm that they have requested that the Lender extend
the Expiration Date of the Letter of Credit to August 1, 2004. The
Lender has agreed to extend the Expiration Date by issuance of an
amendment to the Letter of Credit in the customary form used by the
Lender for such purpose. Each reference in the Lender Loan Documents
to the "Letter of Credit" shall be deemed a reference to the Letter of
Credit as so extended.
(b) Inclusion of Ennis as a Party to the Reimbursement
Agreement. The Reimbursement Agreement is hereby amended to the
extent necessary to reflect the addition of Ennis as a co-obligor with
Northstar, thereby making Ennis and Northstar jointly and severally
liable for all of the obligations under the Reimbursement Agreement.
To that end, all references in the Reimbursement Agreement to the
"Borrower" or terms of similar import shall be deemed to refer to
Northstar and Ennis collectively.
(c) Amendment to Definitions. Section 1 of the Reimbursement
Agreement is hereby amended by deleting the existing definition of
"Revolving Credit Agreement" and by substituting therefor the
following new definition of "Credit Agreement":
"`Credit Agreement' means the Credit Agreement dated as of
June 6, 2000, among Ennis Business Forms, Inc., as Borrower, Bank
One, Texas, N.A., as Administrative Agent, U.S. Bank National
Association, as Syndications Agent and Certain Financial
Institutions, as Lenders, and Banc One Capital Markets, Inc., as
Lead Arranger and Sole Book Runner, as the same may be amended,
supplemented or restated from time to time."
(d) Replacement of Affirmative and Negative Covenants in the
Reimbursement Agreement. Existing Sections 5.1 through 5.15 and
Sections 6.1 through 6.12 of the Reimbursement Agreement are hereby
replaced by the covenants contained in Article VI of the Credit
Agreement. All such covenants contained in Article VI of the Credit
Agreement and all defined terms used in Article VI of the Credit
Agreement are hereby incorporated by reference into the Reimbursement
Agreement with the same force and effect as if such covenants and
defined terms were fully set forth in the Reimbursement Agreement;
provided, however, any reference in such incorporated covenants to the
"Agent", the "Lenders" and/or the "Required Lenders" shall be deemed
to refer to the Lender under the Reimbursement Agreement. In the
event that the covenants in Article VI of the Credit Agreement are
from time to time supplemented or amended, all such supplements and
amendments to such covenants in the Credit Agreement shall be deemed
to be automatically and simultaneously made to such covenants as
incorporated by reference into the Reimbursement Agreement, without
the need for any separate supplement or amendment to the Reimbursement
Agreement. In the event that the credit facilities evidenced by the
Credit Agreement shall cease to exist for any reason whatsoever,
whether through prepayment, refinancing, expiration, termination or
otherwise, all covenants incorporated by reference from Article VI of
the Credit Agreement into the Reimbursement Agreement shall remain in
full force and effect under the Reimbursement Agreement in the form
such covenants existed immediately before the credit facilities under
the Credit Agreement ceased to exist, unless and until such covenants
are expressly amended or terminated with respect to the Reimbursement
Agreement pursuant to a written agreement between the Borrower and the
Lender.
(e) Amendment to Section 8.1 of the Reimbursement Agreement.
Section 8.1 of the Reimbursement Agreement is hereby amended by
amending Section 8.1.9 of the Reimbursement Agreement to read as
follows and by adding the following new Section 8.1.10:
"8.1.9 A default or event of default, however defined,
shall have occurred and be continuing under or with respect to
any other documents, instruments or agreements creating,
evidencing or securing any other obligations of the Borrower to
Lender whether presently existing or hereafter incurred.
8.1.10 A Default (as defined in the Credit Agreement) shall
exist under the Credit Agreement, or the credit facilities
evidenced by the Credit Agreement shall cease to exist for any
reason whatsoever, whether through prepayment, refinancing,
expiration, termination or otherwise."
7. Conditions Precedent to the Effectiveness of this Agreement.
This Agreement, and the consent to the Merger set forth in paragraph 2 of
this Agreement, shall not be or become effective unless and until the
Lender shall have received each of the following items in form and
substance acceptable to the Lender:
(a) Copies of the articles or certificates of incorporation of
Northstar and Ennis, together with all amendments, and certificates of
good standing, each certified by the appropriate governmental officer
in its jurisdiction of incorporation.
(b) Copies, certified by the Secretary or Assistant Secretary of
Northstar and Ennis, of their by-laws and of their board of directors'
resolutions authorizing the Merger, the execution and delivery of the
Credit Agreement and related documents and the execution and delivery
of this Agreement.
(c) Copies of the articles of merger with respect to the Merger
which have been filed in the appropriate governmental office in each
jurisdiction where such articles of merger must be filed to effectuate
the Merger, certified by the appropriate governmental officers of such
jurisdictions.
(d) An incumbency certificate, executed by the Secretary or
Assistant Secretary of Northstar and Ennis, which shall identify by
name and title, and bear the signatures of, the officers of Northstar
and Ennis which are authorized to sign the Credit Agreement and
related documents and this Agreement.
(e) Evidence satisfactory to the Lender that the Credit
Agreement and all related documents have been executed and delivered
by the parties thereto and that the lenders under the Credit Agreement
have made the initial advance thereunder to Ennis.
(f) An opinion of counsel to Northstar and Ennis relating to the
authorization, execution, delivery and binding effect of this
Agreement, in favor of the Lender, in form and content acceptable to
the Lender.
8. Representations and Warranties of Northstar and Ennis.
Northstar and Ennis hereby represent and warrant to the Lender as follows:
(a) Each of Northstar and Ennis has all requisite corporate
power and authority to execute this Agreement and to perform all of
its obligations hereunder, and this Agreement has been duly executed
and delivered by Northstar and Ennis and constitutes the legal, valid
and binding obligation of Northstar and Ennis, enforceable in
accordance with its terms.
(b) The execution, delivery and performance by each of Northstar
and Ennis of this Agreement have been duly authorized by all necessary
corporate action and do not (i) require any authorization, consent or
approval by any governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, (ii) violate any
provision of any law, rule or regulation or of any order, writ,
injunction or decree presently in effect, having applicability to
Northstar or Ennis, or the articles of incorporation or by-laws of
Northstar or Ennis, or (iii) result in a breach of or constitute a
default under any indenture or loan or credit agreement or any other
agreement, lease or instrument to which Northstar or Ennis is a party
or by which it or its properties may be bound or affected.
9. No Waiver of Events of Default. The execution of this
Agreement and acceptance of any documents related hereto shall not be
deemed to be a waiver of any Default or Event of Default under the
Reimbursement Agreement, whether or not known to the Lender and whether or
not existing on the date of this Agreement.
10. Costs and Expenses. Without limiting in any way the
obligations of Northstar and Ennis under Section 11.1 of the Reimbursement
Agreement, Northstar and Ennis hereby jointly and severally agree to pay or
reimburse the Lender on demand of the Lender for all costs and expenses
incurred by the Lender, including, without limitation, all reasonable fees
and disbursements of legal counsel, in connection with the preparation,
negotiation, execution and delivery of this Agreement and the review,
execution and delivery of the Credit Agreement and related documents.
11. Lender Loan Documents Remain in Full Force and Effect.
Northstar and Ennis hereby acknowledge and agree that, except as expressly
amended by this Amendment, all terms and conditions of the Lender Loan
Documents remain in full force and effect.
12. Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which counterparts, taken
together, shall constitute but one and the same instrument.
13. Governing Law. This Agreement shall be governed by,
interpreted and construed in accordance with, the laws of the State of
Minnesota.
14. Headings. Paragraph headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered the date and year first above
written.
NORTHSTAR COMPUTER FORMS, INC.
By /s/Kenneth E. Overstreet
--------------------------------
Its President
--------------------------
ENNIS BUSINESS FORMS, INC.
By /s/Keith S. Walters
--------------------------------
Its Chairman
---------------------------
U.S. BANK NATIONAL ASSOCIATION
By /s/Michael J. Reymann
--------------------------------
Its Vice President
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M1:623580.04
