Exhibit 4.2
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT, dated as of June 30, 2000,
amends and supplements that certain Credit Agreement dated as of April 30, 1998
(as amended to the date, the "Credit Agreement") among BANDO XXXXXXXXXX CAPITAL
CORPORATION, a Wisconsin corporation (the "Company") and FIRSTAR BANK, N.A. (as
successor by merger to Firstar Bank Milwaukee, N.A.) (the "Bank").
RECITAL
The Company and the Bank 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 Bank 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 Fourth Amendment.
2. Amendments to Credit Agreement. The Credit Agreement is amended as
follows:
(a) The definition of "Maturity Date" contained in section 1 of the
Credit Agreement is amended by deleting "June 30, 2000" contained therein and
substituting "June 29, 2001" in its place.
(b) The definition of "Revolving Loan Commitment" contained in section
1 of the Credit Agreement is amended to read as follows:
"Revolving Loan Commitment" means $8,500,000, provided that such
amount may be reduced in accordance with
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section 2.1(a), and provided further, that such amount shall be reduced by
$500,000 as of January 31, 2001.
(c) Section 2.1(a) is amended by adding the following paragraph at the
end thereof:
Notwithstanding the foregoing, any advances by the Bank in excess
of $7,500,000 (or in excess of $7,000,000 after January 31, 2001) shall
not, on or after December 31, 2000, exceed the lesser of (a) $1,000,000 or
(b) 60% of the increase, if any, in the retained earnings of BMIC from
December 31, 1999 (as reflected in the financial statements furnished by
the Company pursuant to sections 5.1 and 5.2 hereof), at which time BMIC's
retained earnings equaled $4,106,000, through December 31, 2000, and the
Company shall, on or before January 31, 2001, make such payment, if any, on
the Note as is necessary in order that the foregoing limitation is not
exceeded.
(d) Exhibit A attached hereto shall be deemed to be a exhibit to the
Credit Agreement and shall replace its predecessor attached thereto.
3. Effectiveness of Fourth Amendment. This Fourth Amendment shall become
effective upon its execution and delivery by the Company and the Bank, and the
satisfaction of the following conditions:
(a) Replacement Note. The Bank shall have received the promissory note
of the Company in the form of Exhibit A, duly executed by the Company (the
"Replacement Note).
(b) Guaranty Reaffirmations. The Bank shall have received a guaranty
reaffirmation duly executed by BMSBLC and BMIC, respectively, whereby each
entity reaffirms its obligations under its previously executed guaranty in favor
of the Bank with respect to the obligations of the Company.
(c) Closing Certificate. The Bank shall have received copies,
certified by the Secretary of the Company to be true and correct and in full
force and effect as of the date of this Fourth Amendment, of (i) a statement to
the effect that the Articles of Incorporation and By-Laws of the Company
remained unamended since the most recent date copies of Articles of
Incorporation and By-Laws were provided to the Bank on April 30, 1999 and such
Articles of Incorporation and By-
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laws remain in full force and effect as of the date of this Fourth Amendment;
(ii) resolutions of the Board of Directors of the Company authorizing the
issuance, execution and delivery of this Fourth Amendment and the Replacement
Note; 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) Proceedings Satisfactory. All other proceedings contemplated by
this Fourth Amendment shall be satisfactory to the Bank, and the Bank shall have
received such other information relating hereto as the Bank may reasonably
request.
4. Representations and Warranties. The Company represents and warrants to
the Bank that:
(a) The execution, delivery and issuance of this Fourth Amendment and
the Replacement Note, and the performance by the Company of its obligations
hereunder, 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 Fourth
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 Bank 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 Bank, on demand,
all costs and expenses (including reasonable attorneys' fees) paid or
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incurred by the Bank in connection with the negotiation, execution and delivery
of this Fourth Amendment.
6. Full Force and Effect. The Credit Agreement, as amended hereby, remains
in full force and effect.
7. Counterparts. This Fourth 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 Fourth Amendment by signing any such
counterpart.
BANDO XXXXXXXXXX CAPITAL CORPORATION
BY_____________________________
Its___________________________
FIRSTAR BANK, N.A. (as successor by
merger to Firstar Bank Milwaukee, N.A.)
BY_____________________________
Its___________________________
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EXHIBIT A
NOTE
$8,500,000 Milwaukee, Wisconsin
June 30, 2000
FOR VALUE RECEIVED, the undersigned, BANDO XXXXXXXXXX CAPITAL CORPORATION,
a Wisconsin corporation, promises, on or before the Maturity Date (as defined in
the Credit Agreement referred to below), to pay to the order of FIRSTAR BANK,
N.A. (the "Bank") the principal sum of Eight Million Five Hundred Thousand
Dollars, or such lesser amount as is shown to be outstanding according to the
records of the Bank, in such amounts and at such times as set forth in the
Credit Agreement referred to below. The undersigned further promises to pay
interest on the unpaid principal balance of this Note from time to time
outstanding from the date hereof at such rates and payable at such times as set
forth in the Credit Agreement referred to below.
Payments of both principal and interest are to be made in immediately
available funds in lawful currency of the United States of America at the office
of the Bank, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx, 00000, or such
other place as the holder of this Note shall designate to the undersigned in
writing.
This Note is the Note issued by the undersigned pursuant to a Credit
Agreement dated as of April 30, 1998 between the undersigned and the Bank (as
the same has been and may from time to time be amended, modified, supplemented
or restated, the "Credit Agreement"). Reference is made to the Credit Agreement
for rights and obligations as to prepayment and acceleration of maturity. This
Note replaces that certain Note dated as of April 28, 2000 in the stated
principal amount of $7,500,000 from the undersigned to the Bank, and the
undersigned acknowledges and agrees that the indebtedness incurred thereunder
has not been extinguished and that no novation has occurred.
The undersigned agrees to pay all costs of collection, including reasonable
attorneys' fees.
BANDO XXXXXXXXXX CAPITAL CORPORATION
BY______________________________
Its____________________________
