SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated
as of February 24, 2003, 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
U.S. BANK NATIONAL ASSOCIATION (formerly known as Firstar Bank, N.A., successor
by merger to 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 Sixth Amendment.
2. Amendments to Credit Agreement. The Credit Agreement is amended as
follows:
(a) The definition of "Revolving Loan Commitment" contained in
section 1 is hereby amended to read as follows:
"Revolving Loan Commitment" means the obligation of each
Lender to make Revolving Loans to the
Company. The total Revolving Loan Commitment of the Lenders is
initially $60,000,000 and is subject to reduction from time to time
pursuant to section 2.6. The Revolving Loan Commitment of each Lender
is such Lender's Percentage of the total Revolving Loan Commitment and
the initial Revolving Loan Commitment of each Lender is set forth on
Exhibit H attached hereto.
(b) Section 6.9 is amended to read as follows:
6.9 Adjusted Tangible Net Worth. Permit Adjusted Tangible
Net Worth to be less than $18,000,000 at any time.
(c) Exhibit H attached hereto shall be deemed to be an exhibit to
the Credit Agreement and shall replace its predecessor attached thereto.
3. Effectiveness of Sixth Amendment. This Sixth Amendment shall become
effective upon its execution and delivery by the Company, the Lenders and the
Agent, and the receipt by the Agent of an Acknowledgment, Consent and
Reaffirmation duly executed by the Guarantor, whereby the Guarantor acknowledges
and consents to the terms of this Sixth Amendment.
4. Consent to Return-of-Capital Dividend. Notwithstanding anything to
the contrary contained in the Credit Agreement, including section 6.1 thereof,
the Banks and the Agent hereby consent to the Company's payment of a one-time,
return-of-capital dividend to the Company's Parent in an amount not to exceed
$3,000,000.
5. Representations and Warranties. The Company represents and warrants
to the Lenders and the Agent that:
(a) The execution and delivery of this Sixth 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
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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
Sixth 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.
6. 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 Sixth Amendment.
7. Full Force and Effect. The Credit Agreement, as amended hereby,
remains in full force and effect.
8. Counterparts. This Sixth Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Sixth 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 /s/ Xxxxx X. Xxxxx
---------------------------------------
Its VP Finance
--------------------------------
U.S. BANK NATIONAL ASSOCIATION
(formely known as Firstar Bank, N.A.,
successor by merger to Firstar Bank
Milwaukee, N.A.), as the Agent
and a Lender
BY /s/ Xxx X. Xxxxx
--------------------------------------
Its VP
--------------------------------
LASALLE BANK NATIONAL
ASSOCIATION (formerly known
as LaSalle National Bank)
BY /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Its Vice President
--------------------------------
M&I XXXXXXXX & XXXXXX BANK
BY /s/ Xxx Xxxx
--------------------------------------
Its VP
--------------------------------
BY /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Its SVP
--------------------------------
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EXHIBIT H
Lenders' Revolving Loan Commitments
-----------------------------------
------------------------------------- ----------------------------------- -----------------------------------
Lender Revolving Loan Percentage
Commitment
------------------------------------- ----------------------------------- -----------------------------------
U.S. Bank National Association $35,000,000 58.3333333%
------------------------------------- ----------------------------------- -----------------------------------
LaSalle Bank National Association $15,000,000 25.0000000%
------------------------------------- ----------------------------------- -----------------------------------
M&I Xxxxxxxx & Ilsley Bank $10,000,000 16.6666667%
------------------------------------- ----------------------------------- -----------------------------------
