FIRST AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
February 28, 2000, amends and supplements that certain Amended and Restated
Credit Agreement dated as of April 30, 1999 (the "Credit Agreement"), among
BANDO XXXXXXXXXX SMALL BUSINESS LENDING CORPORATION, a Wisconsin corporation
(the "Company"), the financial institutions from time to time party thereto
(individually a "Lender" and collectively the "Lenders"), and FIRSTAR BANK,
NATIONAL ASSOCIATION (formerly known as Firstar Bank Milwaukee, N.A.), as agent
for the Lenders (in such capacity, the "Agent").
RECITAL
The Company, the Lenders and the Agent desire to amend the Credit Agreement
as provided below.
AGREEMENTS
In consideration of the promises and agreements set forth in the Credit
Agreement, as amended hereby, the Lenders, the Agent and the Company agree as
follows:
1. Definitions and References. Capitalized terms not otherwise defined
herein have the meanings assigned to them in the Credit Agreement. All
references to the Credit Agreement contained in the Loan Documents shall, upon
fulfillment of the conditions set forth in section 3 below, mean the Credit
Agreement as amended by this First Amendment.
2. Amendments to Credit Agreement. The Credit Agreement is amended as
follows:
(a) The following definitions are added to section 1 to appear in the
appropriate alphabetical sequence:
"Certificate Trustee" means Firstar Bank, National Association, in
its capacity as trustee under the Indenture, and any successor trustee
under the Indenture.
"Indenture" means that certain Trust Indenture dated as of March 1,
2000 between the Company and the Certificate Trustee, as the same may be
amended, modified, supplemented or restated from time to time.
"Transferred Loan Value" means, with respect to any Transferred
Loan, (a) prior to any draw under the Letter of Credit by the Certificate
Trustee for the purpose of redeeming the Certificates of Participation
issued with respect to such Transferred Loan as a result of a default
thereunder, the lesser of (i) the outstanding principal balance of such
Transferred Loan and (ii) an amount equal to 64% of the fair market value
of the real property and equipment securing such Transferred Loan as
determined by an MAI appraiser acceptable to the Agent in a written
appraisal which satisfies all regulatory requirements applicable to the
Lenders, and (b) upon any drawing under the Letter of Credit by the
Certificate Trustee for the purpose of redeeming the Certificates of
Participation issued with respect to such Transferred Loan as a result of a
default thereunder, the lesser of (i) the outstanding principal balance of
such Transferred Loan and (ii) an amount equal to 50% of the fair market
value of the real property and equipment securing such Transferred Loan as
determined by an MAI appraiser acceptable to the Agent in a written
appraisal which satisfies all regulatory requirements applicable to the
Lenders; provided, however, that in each circumstance in which such fair
market value exceeds $1,000,000, such appraisal shall be reviewed by the
Agent and if the Agent, in its reasonable judgment, determines that the
value of such real property and equipment is less than the amount shown in
the applicable appraisal, then the value for purposes of subsections
(a)(ii) or (b)(ii) hereof, as the case may be, shall be such lesser amount
determined by the Agent; provided, further, that in the case of a
Transferred Loan that is reacquired by the Company from the Certificate
Trustee (by purchase or otherwise), the Transferred Loan Value of such
Transferred Loan shall be $0 until the date the Agent receives a new
appraisal of the relevant real property and equipment, or the Company and
the Majority Lenders otherwise agree.
2
(b) The definition of Letter of Credit contained in section 1 is
amended to read as follows:
"Letter of Credit" means the Irrevocable Letter of Credit issued by
the Agent in favor of the Certificate Trustee.
(c) The definition of "LOC Commitment" contained in section 1 is
amended to read as follows:
"LOC Commitment" means the commitment of the Agent to issue, and
the Commitment of the Lenders to severally participate in, the Letter of
Credit. The LOC Commitment is initially $10,500,000. The LOC Commitment is
a subfacility of the Revolving Loan Commitment rather than a separate,
independent commitment.
(d) The definition of "Transferred Loan" contained in section 1 is
amended to read as follows:
"Transferred Loan" means an industrial development revenue bond
issued by a Wisconsin municipality which the Company has sold to the trust
created under the Indenture.
(e) The definition of "Transferred Loan Borrowing Base Amount"
contained in section 1 is amended to read as follows:
"Transferred Loan Borrowing Base Amount" means the sum of the
Transferred Loan Values for all outstanding Transferred Loans.
(f) Section 2.1(c)(i) is amended to read as follows:
(i) Issuance. The Agent will issue the Letter of Credit, subject to
the terms and conditions hereof, at any time during the period from the
Closing Date to the Maturity Date; provided that:
3
[1] The amount available for drawing under the Letter of Credit
shall not exceed the LOC Commitment;
[2] The amount available for drawing plus the aggregate
outstanding principal balance of all Revolving Loans shall not exceed
the lesser of [a] the Revolving Loan Commitment then in effect and [b]
the Borrowing Base Amount as shown on the Borrowing Base Certificate
most recently furnished to the Agent by the Company;
[3] The Letter of Credit and all proceedings related thereto
shall be satisfactory in form and content to the Agent;
[4] At or prior to the issuance date of the Letter of Credit
the Agent shall have received [a] a copy of the Indenture, duly
executed by the Company and the Certificate Trustee, [b] an
application from the Company requesting the issuance of the Letter of
Credit and [c] a certificate, signed by the President of the Company,
to the effect that on the issuance date the representations and
warranties of the Company set forth in this Agreement are true and
correct in all material respects and that no Default or Event of
Default exists; and
[5] The conditions set forth in section 4.2 of this Agreement
have been satisfied.
(g) Sections 2.13 and 2.14 are amended to read as follows:
2.13 Capital Adequacy. As used in this section, the term
"Regulatory Change" means any change enacted or issued after the date of
this Agreement of any (or the adoption after the date of this Agreement of
any new) federal or state law, regulation, interpretation, direction,
policy or guideline, or any court decision, which affects (or, in the case
of a court decision would, if the decision were applicable to any Lender,
affect) the treatment of any Revolving Loan, the Letter of Credit or any
commitment of any Lender hereunder as an asset or other item included for
the purpose of calculating the appropriate amount of capital to be
maintained by such
4
Lender or any corporation controlling such Lender. If such Regulatory
Change has the effect of reducing the rate of return on such Lender's or
such corporation's capital as a consequence of the Revolving Loans, the
Letter of Credit or commitments of such Lender hereunder to a level below
that which such Lender or such corporation could have achieved but for such
Regulatory Change (taking into account such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed in good
faith by such Lender to be material, then from time to time following
notice by such Lender to the Company of such Regulatory Change, within ten
days after demand from such Lender, the Company shall pay to such Lender
such additional amount or amounts as will compensate such Lender or such
corporation, as the case may be, for such reduction. Such notice (which
shall include calculations in reasonable detail) shall, in the absence of
manifest error, be conclusive and binding on the Company.
2.14 Yield Protection. If any law or any governmental rule,
regulation, policy, guideline or directive (whether or not having the force
of law), or any interpretation thereof, or the compliance of any Lender
therewith,
(a) subjects any Lender to any tax, duty, charge or withholding on or
from payments due from the Company (excluding federal taxation of the overall
net income of any Lender and any such tax, duty, charge or withholding in effect
as of the date of this Agreement), or changes the basis of taxation of payments
to any Lender in respect of its Revolving Loans, the Letter of Credit or other
amounts due it hereunder (excluding federal taxation of the overall net income
of any Lender);
(b) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender (other
than reserves and assessments taken into account in determining the interest
rate applicable to LIBOR Rate Loans) with respect to its Revolving Loans or the
Letter of Credit; or
(c) imposes any other condition the result of which is to increase the
cost to any Lender of making, funding or maintaining the Revolving Loans or the
Letter of Credit or reduces any amount received by any Lender in connection with
the Revolving Loans or the Letter of Credit
5
or requires any Lender to make any payment calculated by reference to the amount
of Revolving Loans held or interest received by it or by reference to the amount
of such Lender's participation in the Letter of Credit, by an amount deemed
material by such Lender;
then, within 15 days of demand by such Lender, the Company shall pay such Lender
that portion of such increased expense incurred or reduction in an amount
received which such Lender determines is attributable thereto. Such notice
(which shall include calculations in reasonable detail) shall, in the absence of
manifest error, be conclusive and binding on the Company.
(h) Section 5.13 of the Credit Agreement is created and reads as
follows:
5.13 Compliance with Indenture. Timely (subject to any applicable
grace periods provided for therein) comply with all of the Company's
obligations under the Indenture.
(i) Section 6.6 is amended by deleting the "and" at the end of
subsection (f) thereof, deleting the "." at the end of subsection (g) thereof,
inserting a ";" in its place, and creating a new subsection (h) to read as
follows:
and (h) acquisition of any Junior Certificate (as defined in the
Indenture) of any Series (as defined in the Indenture) in connection with
the transfer by the Company of any Transferred Loan to the trust created
under the Indenture.
(j) Section 6.17 of the Credit Agreement is created to read as follows:
6.17 No Amendment to Indenture or Transferred Loans. Amend, modify,
supplement or revise the Indenture or the terms of any Transferred Loan,
(a) at any time that a Default or Event of Default exists hereunder, or (b)
if no Default or Event of Default then exists, if such amendment,
modification, supplementation or revision would (i) alter any of the "money
terms" under the Indenture, including, the rate of interest payable
thereunder, the amount of, or schedule for the repayment of the principal
thereof, or the amount of any fees payable thereunder, (ii) require any
amendment or modification to any of the terms of the Letter of Credit or
6
(iii) otherwise adversely affect the rights or remedies of the Agent or the
Lenders with respect to any Transferred Loan.
(k) Section 9.2 of the Credit Agreement is revised to read as follows:
9.2 Indemnification. The Company agrees to defend, indemnify and
hold harmless the Agent, the Collateral Custodian, the Lenders and their
respective directors, officers, employees and agents from and against any
and all loss, cost, expense or liability (including reasonable attorneys'
fees) incurred in connection with any and all claims or proceedings
(whether brought by a private party or governmental agency) as a result of,
or arising out of or relating to:
(a) bodily injury, property damage, abatement or remediation,
environmental damage or impairment or any other injury or damage
resulting from or relating to any hazardous or toxic substance or
contaminated material (as determined under Environmental Laws) located
on or migrating into, from or through property previously, now or
hereafter owned or occupied by the Company, which the Agent or any
Lender may incur due to the making of the Revolving Loans, the
exercise of any of its rights under the Security Documents, or
otherwise;
(b) any transaction financed or to be financed, in whole or in
part, directly or indirectly, with the proceeds of any Revolving Loan;
(c) any claim that the offering, issuance, placement or sale of
Commercial Paper, or any document used in connection therewith,
resulted in a violation of law, including any federal or state
securities law;
(d) the entering into, performance of and exercise of their
rights under this Agreement or any other Loan Document by the Agent,
the Collateral Custodian and the Lenders;
(e) the execution and delivery or transfer of, or payment or
failure to pay under, the Letter of Credit; provided, however, that
the Company shall not be required to indemnify the Agent or the
Lenders for any claims, damages, losses, liabilities, costs or
expenses to the
7
extent, but only to the extent, caused by (i) the willful misconduct
or gross negligence of the Agent in determining whether a draw or
certificate presented under the Letter of Credit complied with the
terms of the Letter of Credit or (ii) the Agent's willful failure to
pay under the Letter of Credit after the presentation to it by the
Certificate Trustee of a draw and certificate strictly complying with
the terms and conditions of the Letter of Credit; and
(f) the issuance and sale of the Certificates of Participation
in the trust created under the Indenture, the issuance of the Letter
of Credit or the consummation of the transactions contemplated by the
Indenture; provided, however, that the Company shall not be required
to indemnify the Agent or the Lenders for any claims, damages, losses,
liabilities, costs or expenses to the extent, but only to the extent,
caused by (i) any misstatement of a material fact concerning the Agent
which was made or furnished by the Agent or (ii) any failure by the
Agent to state a material fact concerning the Agent, in connection
with the sale of such Certificates of Participation.
This indemnity will survive foreclosure of any security
interest or mortgage or conveyance in lieu of foreclosure and the
repayment of the Revolving Loans and the discharge and release of the
Security Documents.
(l) References in the Loan Documents to "a Letter of Credit," "each
Letter of Credit" and "the Letters of Credit" shall refer to the Letter of
Credit.
(m) Exhibit D attached hereto shall be deemed to be an Exhibit to the
Credit Agreement and shall replace its predecessor attached thereto.
3. Effectiveness of First Amendment. This First Amendment shall become
effective upon its execution and delivery by the Company, the Lenders and the
Agent and satisfaction of the following conditions:
(a) Closing Certificate of the Company. The Agent shall have received
copies for each of the Lenders, certified by the Secretary of the Company to be
true and correct and in full force and effect, of (i) a statement to the effect
that the Articles of Incorporation and By-Laws of the Company delivered to the
Lenders on April 30, 1999 have not been amended since that date and remain in
full force and effect as of the date hereof; (ii) resolutions of the Board of
Directors
8
of the Company authorizing the issuance, execution and delivery of this First
Amendment; and (iii) a statement containing the names and titles of the officer
or officers of the Company authorized to sign such documents, together with true
signatures of such officers.
(b) Ancillary Documents. The Agent shall have received such additional
documents, agreements, instruments, certifications and opinions of counsel as
the Agent may reasonably request in connection with the transaction contemplated
by the Indenture and the issuance of the Letter of Credit.
(c) Proceedings Satisfactory. All other proceedings contemplated by
this First Amendment shall be satisfactory to the Lenders and the Agent, and the
Lenders and the Agent shall have received such other information relating hereto
as the Lenders or the Agent may reasonably request.
4. Representations and Warranties. The Company represents and warrants to
the Lenders and the Agent that:
(a) The execution and delivery of this First Amendment and related
documents, and the performance by the Company of its obligations thereunder, are
within its corporate power, have been duly authorized by proper corporate action
on the part of the Company, are not in violation of any existing law, rule or
regulation of any governmental agency or authority, any order or decision of any
court, the Articles of Incorporation or By-Laws of the Company or the terms of
any agreement, restriction or undertaking to which the Company is a party or by
which it is bound, and do not require the approval or consent of the
shareholders of the Company, any governmental body, agency or authority or any
other person or entity; and
(b) The representations and warranties contained in the Loan Documents
are true and correct in all material respects as of the date of this First
Amendment except (i) the representations and warranties contained in section 3.3
of the Credit Agreement shall apply to the most recent financial statements
delivered by the Company to the Lenders pursuant to sections 5.1 and 5.2 of the
Credit Agreement and (ii) for changes contemplated or permitted by the Loan
Documents and, to the Company's knowledge, no condition exists or event or act
has occurred that, with or without the giving of notice or the passage of time,
would constitute an Event of Default under the Credit Agreement.
9
5. Costs and Expenses. The Company agrees to pay to the Agent, on demand,
all costs and expenses (including reasonable attorneys' fees) paid or incurred
by the Agent in connection with the negotiation, execution and delivery of this
First Amendment.
6. Full Force and Effect. The Credit Agreement, as amended hereby, remains
in full force and effect.
7. Counterparts. This First Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of parties hereto may execute this First Amendment by signing any such
counterpart.
[Intentionally Left Blank, Signatures Appear on Next Page]
10
BANDO XXXXXXXXXX SMALL BUSINESS LENDING
CORPORATION
BY
--------------------------------------
Its
-----------------------------------
FIRSTAR BANK, N.A., (formerly known
as Firstar Bank Milwaukee, N.A.), as the
Agent and a Lender
BY
--------------------------------------
Its
-----------------------------------
U.S. BANK NATIONAL ASSOCIATION
(formerly known as First Bank National
Association)
BY
--------------------------------------
Its
-----------------------------------
LASALLE BANK NATIONAL
ASSOCIATION (formerly known
as LaSalle National Bank)
BY
--------------------------------------
Its
-----------------------------------
THE HUNTINGTON NATIONAL BANK
BY
--------------------------------------
Its
-----------------------------------
M&I XXXXXXXX & ILSLEY BANK
BY
--------------------------------------
Its
-----------------------------------
BY
--------------------------------------
Its
-----------------------------------
S-1
