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
1
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
2
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 su
