Exhibit 4.3
SECOND AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
April 28, 2000, amends and supplements that certain Amended and Restated Credit
Agreement dated as of April 30, 1999, as amended to date (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, N.A. (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 Second Amendment.
2. Amendments to Credit Agreement. The Credit Agreement is amended as
follows:
(a) The following definition is added to section 1 to appear in the
appropriate alphabetical sequence:
"IRB Letter of Credit" means that certain Irrevocable Transferable
Direct Pay Letter of Credit No. S104502 dated March 23, 2000 in the stated
face amount of $8,873,061.64 issued by the Agent, for the account of the
Company, for the benefit of
the Certificate Trustee pursuant to the Indenture, as the same may be
increased, reduced, renewed, extended, amended, modified, supplemented,
restated or replaced from time to time.
(b) The definitions of "CP Placement Agent" and CP Placement
Agreement" contained in section 1 are amended to read as follows:
"CP Placement Agent" means either Firstar, or any of its
Affiliates, or U.S. Bank, or any of its Affiliates, acting in their
capacity as placement agent or dealer,as applicable, for the Commercial
Paper under a CP Placement Agreement.
"CP Placement Agreement" means the commercial paper dealer
agreements, placement agreements, letter agreements or such other documents
or agreements between the Company and Firstar, or any of its Affiliates, or
U.S. Bank, or any of its Affiliates, as the case may be, setting forth the
terms under which Firstar, or any of its Affiliates, or U.S. Bank, or any
of its Affiliates, as the case may be, will place Commercial Paper, as
amended, revised, supplemented or restated from time to time.
(c) Subsection (a) of the definition of "Leased Real Estate Borrowing
Base Amount" contained in section 1 is amended by deleting "$30,000,000"
contained therein and substituting "$40,000,000" in its place.
(d) The definition of "Letter of Credit" contained in section 1 is
amended to read as follows:
"Letter of Credit" means a letter of credit issued by the Agent at
the request of the Company pursuant to section 2.1(c), including the IRB
Letter of Credit, and "Letters of Credit" means all such letters of credit.
(e) 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 commitmen of the Lenders to severally participate in, Letters of Credit
issued by the Agent for the account of the Company from time to time
outstanding under section 2.1(c), in an aggregate amount not to exceed at
any
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time outstanding $15,000,000. The LOC Commitment is a subfacility of the
Revolving Loan Commitment rather than a separate, independent commitment.
(f) The definition of "Maturity Date" contained in section 1 is
amended by deleting "April 28, 2000" contained therein and substituting "June
30, 2000" in its place.
(g) The definition of "Transferred Loan Value" contained in section 1
is amended deleting the phrase "the Letter of Credit" in each place it appears
and substituting the phrase "the IRB Letter of Credit" in each respective place.
(h) The definition of "Revolving Loan Commitment" contained in section
1 is amended by deleting "$70,000,000" contained therein and substituting
"$75,000,000" in its place.
(i) Section 2.1(c)(i) is amended to read as follows:
(i) Issuance. The Agent will issue standby Letters of Credit,
which it may lawfully issue, in United States Dollars, for the account of
the Company, subject to the terms and conditions hereof, at any time during
the period from the Closing Date to the Maturity Date; provided that:
[1] The LOC Exposure as of the applicable Borrowing Date 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] Each Letter of Credit and all proceedings related to the
issuance of each Letter of Credit shall be satisfactory in form and content
to the Agent;
[4] By 12 p.m., Milwaukee time, at least three Business Days
prior to the proposed Borrowing Date of a Letter of Credit, the Company
shall deliver to the Agent a duly
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executed application and agreement for such Letter of Credit, in form and
content satisfactory to the Agent.; and
[5] No Letter of Credit shall be issued hereunder unless on the
proposed Borrowing Date all of the conditions precedent specified in
section 4.2 shall have been satisfied as fully as if the issuance of such
Letter of Credit were a Revolving Loan.
(j) Section 2.13 is amended by deleting the phrase "the Letter of
Credit" in each place it appears therein and substituting the phrase "any Letter
of Credit" in each place, respectively.
(k) Section 2.14 is amended by deleting the phrase "the Letter of
Credit" in each place it appears therein and substituting the phrase "any Letter
of Credit" in each place, respectively.
(l) Section 6.12 is amended to read as follows:
6.12 Third Party Loan Concentration. Permit the sum of (a) the
aggregate outstanding principal balance of Third Party Loans to, and (b)
the aggregate amount of all lease payments, under any leases of real
property, owing from, a single Person and all Affiliates of such Person to
exceed $5,000,000 other than the existing loans and leases to the Lang
Company and its Affiliates as set forth on Schedule 6.12 attached hereto.
For purposes of complying with this covenant, Third Party Loans to, and
leases with, a Person and any of its Affiliates shall only be aggregated to
the extent that loans or other extensions of credit to such Person and any
of its Affiliates would be required to be aggregated under the "combination
rules" found in the regulations of the Office of the Comptroller of
Currency at 12 CFR Part 32, Section 32.5.
(m) Section 9.2(e) of the Credit Agreement is amended to read as
follows:
(e) the execution and delivery or transfer of, or payment or
failure to pay under, any 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 extent, but
only to the
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extent, caused by (i) the willful misconduct or gross negligence of the
Agent in determining whether a draw or certificate presented under a Letter
of Credit complied with the terms of the Letter of Credit or (ii) the
Agent's willful failure to pay under a Letter of Credit after the
presentation to it by the beneficiary of a draw and certificate strictly
complying with the terms and conditions of the Letter of Credit; and
(n) Section 9.2(f) is amended by deleting the phrase "the Letter of
Credit" contained therein and substituting the phrase "the IRB Letter of Credit"
in its place.
(o) References in the Loan Documents to "a Letter of Credit," "each
Letter of Credit" and "the Letters of Credit" shall again be read as such
references.
(p) The Company and the Lenders acknowledge that in connection with
the execution of this Second Amendment The Huntington National Bank
("Huntington") will drop out of the bank group and the remaining Lenders will
increase their commitments to cover (i) the former commitment of Huntington and
(ii) any increase to the aggregate Revolving Loan Commitment of the Lenders
pursuant to this Second Amendment. The Company and the Lenders further
acknowledge and agree that the new Percentages and Revolving Loan Commitments of
each Lender are as set forth next to each Lender's signature to this Second
Amendment.
(q) The Lenders hereby acknowledge and agree that in accordance with
the definition of "Owner-Occupied Real Estate Loan" the Third Party Loans listed
on Schedule A attached hereto shall be deemed to be Owner-Occupied Real Estate
Loans notwithstanding that such Third Party Loans no longer qualify as
Owner-Occupied Real Estate Loans because the real property securing each
respective Third Party Loan is no longer occupied by the borrower, an Affiliate
of the borrower or other party related to the borrower.
(r) Exhibits A and D and Schedule A attached hereto shall be deemed to
be exhibits and a schedule, respectively, to the Credit Agreement and Exhibits A
and D shall replace their predecessors attached thereto.
3. Effectiveness of Second Amendment. This Second Amendment shall become
effective upon its execution and delivery by the Company, the Lenders and the
Agent and satisfaction of the following conditions:
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(a) Replacement Notes. The Agent shall have received for each Lender a
promissory note of the Company in the form of Exhibit A attached hereto,
appropriately completed, payable to each respective Lender, in the full amount
of such Lender's Revolving Loan Commitment (collectively, the "Replacement
Notes").
(b) Commercial Paper Documentation. Firstar and U.S. Bank, or any of
their affiliates shall have received any and all documents reasonably requested
by either of them in connection with the commercial paper arrangements
maintained by each of them with the Company.
(c) 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 of the Company authorizing the issuance, execution and delivery of
this Second Amendment and the Replacement Notes; 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.
(d) Reaffirmation of Guaranty. The Agent shall have received a
reaffirmation of guaranty duly executed by the Guarantor in form and substance
satisfactory to the Agent pursuant to which the Guarantor reaffirms its
obligations to the Lenders and the Agent..
(e) Opinion of Counsel. The Agent shall have received an opinion of
counsel to the Company, addressed to the Agent and the Lenders, in form and
substance satisfactory to the Agent and it's counsel.
(f) Proceedings Satisfactory. All other proceedings contemplated by
this Second 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:
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(a) The execution and delivery of this Second Amendment, the
Replacement Notes 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 Second
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.
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
Second Amendment.
6. Full Force and Effect. The Credit Agreement, as amended hereby, remains
in full force and effect.
7. Counterparts. This Second 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 Second Amendment by signing any such
counterpart.
[Intentionally Left Blank, Signatures Appear on Next Page]
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BANDO XXXXXXXXXX SMALL BUSINESS
LENDING CORPORATION
BY_____________________________
Its___________________________
Revolving Loan
Commitment Percentage
-------------- ----------
FIRSTAR BANK, N.A., (formerly known
$30,000,000 40.0000000% as Firstar Bank Milwaukee, N.A.), as
the Agent and a Lender
BY_____________________________
Its___________________________
U.S. BANK NATIONAL ASSOCIATION
$25,000,000 33.3333333% (formerly known as First Bank
National Association)
BY_____________________________
Its___________________________
LASALLE BANK NATIONAL
$10,000,000 13.3333333% ASSOCIATION (formerly known
as LaSalle National Bank)
BY_____________________________
Its___________________________
$10,000,000 13.3333334% M&I XXXXXXXX & ILSLEY BANK
BY_____________________________
Its___________________________
BY_____________________________
Its___________________________
S-1
EXHIBIT A
FORM OF PROMISSORY NOTE
$___________ April 28, 2000
FOR VALUE RECEIVED, the undersigned, BANDO XXXXXXXXXX SMALL BUSINESS
LENDING CORPORATION, a Wisconsin corporation (the "Company"), hereby promises to
pay to the order of __________________ (the "Lender") the principal sum of
_________ Dollars ($___________) or, if less, the aggregate unpaid principal
amount of all Revolving Loans made by the Lender to the Company pursuant to the
Amended and Restated Credit Agreement, dated as of April 30, 1999 (such Credit
Agreement, as it may be amended, restated, supplemented or otherwise modified
from time to time, being hereinafter called the "Credit Agreement"), among the
Company, the Lender, the other financial institutions parties thereto and
Firstar Bank, N.A. (formerly known as Firstar Bank Milwaukee, N.A.), as agent
for the Lenders, on the dates and in the amounts provided in the Credit
Agreement. The Company further promises to pay interest on the unpaid principal
amount of the Revolving Loans evidenced hereby from time to time at the rates,
on the dates, and otherwise as provided in the Credit Agreement.
The Lender is authorized to endorse the amount and the date on which each
Revolving Loan is made, the maturity date therefor and each payment of principal
with respect thereto on the schedules annexed hereto and made a part hereof, or
on continuations thereof which shall be attached hereto and made a part hereof;
provided, that any failure to endorse such information on such schedule or
continuation thereof shall not in any manner affect any obligation of the
Company under the Credit Agreement and this Promissory Note (the "Note").
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement, which Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
This Note replaces that certain Note dated as of April 30, 1999, in the
stated principal amount of $___________ from the undersigned to the Lender,
and the undersigned acknowledges and agrees that the indebtedness incurred
thereunder has not been extinguished and that no novation has occurred.
Terms defined in the Credit Agreement are used herein with their defined
meanings therein unless otherwise defined herein. This Note shall be governed
by, and construed and interpreted in accordance with, the laws of the State of
Wisconsin applicable to contracts made and to be performed entirely within such
State.
BANDO XXXXXXXXXX SMALL BUSINESS
LENDING CORPORATION
BY______________________________
Title:_________________________
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Schedule A to Note
BASE RATE LOANS AND REPAYMENT OF BASE RATE LOANS
(3)
(2) Maturity (4)
Amount of Date of Amount of (5)
(1) Base Base Rate Notation
Date Rate Loan Rate Loan Loan Repaid Made By
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Schedule B to Revolving Note
LIBOR RATE LOANS AND REPAYMENT OF
LIBOR RATE LOANS
(3)
(2) Maturity (4)
Amount of Date of Amount of (5)
(1) Base Base Rate Notation
Date Rate Loan Rate Loan Loan Repaid Made By
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EXHIBIT D
BANDO XXXXXXXXXX SMALL BUSINESS LENDING CORPORATION
BORROWING BASE CERTIFICATE
Financial
Statement Date: ____________, _____
To: Firstar Bank, N.A. (formerly known as Firstar Bank Milwaukee, N.A., as
Agent for the Lenders party to the Amended and Restated Credit Agreement
dated as of April 30, 1999 (as extended, renewed, amended or restated from
time to time, the "Credit Agreement") among Bando XxXxxxxxxx Small Business
Lending Corporation, certain Lenders which are signatories thereto and
Firstar Bank, N.A., as Agent
Ladies and Gentlemen:
1. Attached as Schedule 1 hereto are (a) a true and correct copy of the
unaudited consolidated and consolidating balance sheet of the Company and its
consolidated Subsidiaries as of the end of the month ended ___________, ______
and (b) the related unaudited consolidated and consolidating statement of income
and the related consolidated statements of shareholders' equity, and cash flows
for the period commencing on the first day of the fiscal year and ending on the
last day of such month, setting forth in each case in comparative form the
figures for the previous year, and certified by a Responsible Officer that such
financial statements were prepared in accordance with GAAP (subject only to
ordinary, good faith year-end audit adjustments and the absence of footnotes)
and fairly present, in all material respects, the financial position and the
results of operations of the Company and its consolidated Subsidiaries.
2. The undersigned has reviewed and is familiar with the terms of the
Credit Agreement and has made, or has caused to be made under his/her
supervision, a detailed review of the transactions and conditions (financial or
otherwise) of the Company during the accounting period covered by the attached
financial statements.
3. To the best of the undersigned's knowledge, the Company, during such
period, has observed, performed or satisfied all of its covenants and other
agreements, and satisfied every condition in the Credit Agreement to be
observed, performed or satisfied by the Company, and the undersigned has no
knowledge of any Default or Event of Default.
4. The following Borrowing Base Amount analyses and information set forth
on Schedule 2 attached hereto are true and accurate on and as of the date of
this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
_________________, _____.
BANDO XXXXXXXXXX SMALL BUSINESS
LENDING CORPORATION
BY
-----------------------------------
Title:
--------------------------
2
[NOTE: SAMPLE ONLY]
SCHEDULE 2
----------
(to the Borrowing Base Certificate)
As of __________, ____
1. Owner-Occupied Real Estate Loan Borrowing Base Amount:
(a) Eligible Owner-Occupied Real Estate Loans that are not Nonperforming
Loans:
(i) Outstanding principal balance: $_________
(ii) Established Value of the real
property securing such Loans: $_________
X .64
Subtotal = $_________
(iii) Lesser of (i) and Subtotal in (ii) $_________
(b) Eligible Owner-Occupied Real Estate Loans that are Nonperforming:
(i) Outstanding principal balance: $_________
(ii) Established Value of the real
property securing such Loans: $_________
X .50
Subtotal = $_________
(iii) Lesser of (i) and Subtotal in (ii) $_________
(c) Total: [sum of (a)(iii) and (b)(iii)] $_________
(d) Total Outstanding Principal Balance of
Eligible Owner-Occupied Real Estate
Loans [sum of (a)(i) and (b)(i)] $_________
(e) divided by 1.10 = $_________
(f) Owner-Occupied Real Estate Loan Borrowing
Base Amount [lesser of (e) and (c)] $_________
3
2. Leased Real Estate Borrowing Base Amount:
(a) Eligible Leased Real Estate that are not Nonperforming Leases:
(i) Established Value of such Eligible
Leased Real Estate: $_________
X .80
(ii) Subtotal = $_________
(b) Eligible Leased Real Estate that are Nonperforming Leases:
(i) Established Value of such Eligible
Leased Real Estate: $_________
X .50
(ii) Subtotal = $_________
(c) Subtotal: [sum of (a)(ii) and (b)(ii)] $_________
(d) Leased Real Estate Borrowing Base Amount
[Lesser of (c) and $40,000,000] $_________
3. Eligible Construction Loans:
(a) Outstanding principal balance: $_________
X .80
Subtotal = $_________
(b) Total [Lesser of Subtotal in (a) and $5,000,000] $_________
4. Eligible Construction Costs:
(a) Total construction costs (less the
aggregate amount of Soft Costs in excess
of 5% of total construction costs) $_________
X .80
(b) Total $_________
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5. Transferred Loan Borrowing Base Amount:
(a) Transferred Loans for which Certificates of Participation issued under
the Indenture remain outstanding:
(i) Outstanding principal balance: $_________
(ii) Fair market value of the real property
and equipment securing such Loans $_________
X .64
Subtotal = $_________
(iii) Lesser of (i) and Subtotal in (ii) $_________
(b) Transferred Loans for which Certificates of Participation issued under
the Indenture no longer remain outstanding:
(i) Outstanding principal balance: $_________
(ii) Fair market value of the real property
and equipment securing such Loans $_________
X .50
Subtotal = $_________
(iii) Lesser of (i) and Subtotal in (ii) $_________
(c) Transferred Loan Borrowing Base Amount
[Sum of (a)(iii) and (b)(iii)] $__________
6. Borrowing Base Amount [sum of 1(f),
2(d), 3(b), 4(b) and 5(c)] $_________
7. Total Commercial Paper Outstanding $_________
8. Total Revolving Loans Outstanding (including $_________
Swing Line Loans and the face amount of
outstanding Letters of Credit)
9. Total Credit Outstanding [sum of 7 and 8] $_________
10. Excess Availability (Overadvance) [6 minus 9] $_________
6
