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Exhibit 4.5
PAYING AGENT AGREEMENT
THIS PAYING AGENT AGREEMENT (the “Agreement”) is made as of the [ } day of 2006 between Wells Fargo Bank, National Association, a national banking association maintaining its principal corporate trust office at Sixth Street & Marquette Ave; N9303-120, Minneapolis, MN 55479 (the “Paying Agent”), and Winmark Corporation, a Minnesota corporation maintaining its principal place of business at 4200 Dahlberg Drive, Suite 100, Minneapolis, Minnesota 55422-4837 (the “Issuer”).
WHEREAS, the Issuer has authorized and proposes to issue up to $$50 million aggregate principal amount of its Unsecured Subordinated Renewable Notes (the “Notes”) pursuant to an Indenture dated as of , 2006 (the “Indenture”), between the Issuer and Wells Fargo Bank, National Association, as trustee (the “Trustee”);
WHEREAS, the Issuer desires to appoint the Paying Agent as paying agent with respect to the Notes; and
WHEREAS, the Paying Agent agrees to act as such paying agent in accordance with, and subject to the terms and provisions of, this Agreement, the Indenture, the Notes and the Prospectus dated [ ], as it may be supplemented from time to time (as so supplemented, the “Prospectus”);
NOW, THEREFORE, in consideration of the mutual promises hereinafter contained, the Paying Agent and the Issuer hereby covenant and agree as follows:
ARTICLE I
APPOINTMENT
Section 1.1.
The Issuer hereby appoints the Paying
Agent as its paying agent with respect to the Notes to perform the duties
hereinafter set forth.
Section 1.2.
The Paying Agent hereby accepts such
appointment in accordance with, and subject to, the terms and provisions of
this Agreement, and subject to the terms and provisions of the Indenture, the
Notes and the Prospectus as such terms and provisions relate to the Paying
Agent, and agrees to perform the duties hereinafter set forth and set
forth in the Indenture, the Notes and the Prospectus. The Issuer shall be
entitled to receive interest or earnings on or with respect to any amounts held
or deposited with the Paying Agent overnight or over a holiday or weekend, in
which event the Paying Agent shall remit to the Issuer any interest or earnings
accrued or earned pursuant to the Issuer’s direction to invest such
amounts. Any interest or earnings on or with respect to any amount held by or
deposited with the Paying Agent hereunder shall be remitted to the Issuer in
accordance with the Issuer’s written instructions. The Paying Agent shall
be under no duty or obligation to collateralize or pledge any security
therefore, or to segregate such amounts except as required by law.
ARTICLE II
DEPOSIT OF FUNDS
Section 2.1.
On the business day immediately prior
to each interest or principal payment date described in Article III, the
Issuer shall deposit, or cause to be deposited, with the Paying Agent
immediately available funds in an amount equal to the aggregate amount to be paid
by the Paying Agent on such payment date. In the event the amount deposited
with respect to a payment date is less than the sum of the aggregate amounts
specified in statements furnished to
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the Paying Agent pursuant to this Article with respect to such payment date, the Paying Agent shall immediately notify the Issuer, and shall effect no payments with respect to such payment date until such discrepancy has been resolved. Until paid as hereinafter provided, the Paying Agent shall hold such amounts in trust for the benefit of the holders of the Notes, and the Issuer shall deposit with the Paying Agent such additional funds as may be required to pay additional interest to such holders in the event that their interest or principal payments are so delayed as required under the Indenture. The Paying Agent shall not pay any interest or earnings on or with respect to amounts held or deposited hereunder to the Issuer, except as otherwise provided in Section 1.2 hereof.
ARTICLE III
PAYMENTS
Section 3.1.
Not later than five business days prior
to any date on which interest or principal on the Notes is due and payable, the
Issuer shall furnish, or cause to be furnished, to the Paying Agent a file
containing information necessary for the Paying Agent to effect such interest
or principal payments (each, a “Payment File”). Payment Files shall
include amounts payable (net of any tax withholding amounts), and complete bank
account information for each individual payment, and be delivered to the Paying
Agent by the Issuer, or agent thereof, in an electronic format satisfactory to
the Paying Agent.
Section 3.2.
The Paying Agent shall effect payment of
interest on the Notes as such becomes due and payable on the respective
interest payment dates. Except as otherwise required pursuant to the terms of
the Notes, the Indenture or the Prospectus, such payment shall be accomplished
by the Paying Agent electronically transferring such amounts to an account specified
by the registered owner of the Note on the record date in a designation in
form and substance satisfactory to the Paying Agent (such designation to
be received by the Paying Agent from the Issuer or its agent no later than the
record date).
Section 3.3.
The Paying Agent shall, at the
direction of the Issuer or its agent, effect payment in full of principal on
the Notes as of the respective maturity dates, unless the term of the related
Note is renewed or such Note becomes due and payable on an earlier date by
acceleration, redemption, repurchase or otherwise pursuant to the terms of the
Note, the Indenture or the Prospectus. If the Notes are issued as definitive,
certificated securities pursuant to the Indenture, then the Paying Agent shall
effect payment of the principal of the Notes upon the presentation and
surrender of the Notes at the principal corporate trust office of the Paying
Agent (a) at maturity, (b) upon redemption or repurchase of the Notes
or (c) as otherwise provided by the Notes, the Indenture or the
Prospectus. If the Notes are issued in book-entry form pursuant to the
Indenture, then the Paying Agent shall effect payment of the principal of each
Note upon a direction, instruction or confirmation from the Issuer or registrar
as the Issuer’s agent that the book-entry account evidencing such Note is
being terminated and cancelled as paid in full (a) at maturity,
(b) upon redemption or repurchase of the Notes or (c) as otherwise
provided by the Notes, the Indenture or the Prospectus.
Section 3.4.
Notwithstanding any provision elsewhere
contained herein, payments by the Paying Agent shall be made only out of
amounts deposited with the Paying Agent by or on behalf of the Issuer with
respect to such payment.
Section 3.5.
The Paying Agent will not charge, impose,
collect or receive, from the holder or owner of any Note, any fee or
consideration for any services performed in connection with any payment of
principal or interest to such holder or owner, and any charge for postage, for
wiring payment, or otherwise, shall be charged to and collected only from the
Issuer.
ARTICLE IV
ADDITIONAL DUTIES OF PAYING AGENT
Section 4.1.
The Paying Agent shall: (i) keep
and maintain such records in such form and manner consistent
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with persons providing similar paying agent services;
and (ii) perform such related duties as may be necessary for the
Paying Agent to perform. Such records shall upon prior written request be
available for inspection by authorized officers, employees, and agents of the
Issuer during the normal business hours of the Paying Agent. Upon the
termination of this Agreement, and at the request and expense of the Issuer,
the Paying Agent shall deliver to the Issuer copies of such records reflecting
all transactions as of such date, in the form and manner kept by the
Paying Agent.
Section 4.2.
The Paying Agent shall, at the direction
of the Issuer or its agent, file such federal and state tax returns concerning
payments hereunder as shall be required of it by applicable law, but shall not
be responsible for the collection or withholding of taxes due on such payments
except, and only to the extent, required of it as Paying Agent by applicable
law or under the Notes, the Indenture or the Prospectus. The Issuer shall
provide, or cause to be provided, to the Paying Agent, information necessary or
required by the Paying Agent to complete any applicable federal or state
returns on behalf of the Issuer, including, but not limited to, certified tax
identification numbers for each reportable payee.
Section 4.3.
The Paying Agent shall have no duties or
responsibilities whatsoever except such duties and responsibilities as are
specifically set forth in this Agreement, the Notes, the Indenture or the
Prospectus, and no covenant or obligation shall be implied in this Agreement,
against the Paying Agent. Without limiting the generality of the foregoing, the
Paying Agent shall not be an office or agency of the Issuer where Notes
may be presented for re-registration or transfer, nor act as registrar or
transfer agent with respect to, or maintain record lists of holders of Notes.
