Exhibit 4.1
SEVENTH AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as
of June 27, 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 Seventh Amendment.
2. Amendments to Credit Agreement. The Credit Agreement is amended as
follows:
(a) The definition of "Maturity Date" contained in section 1 is
amended by deleting "June 27, 2003" contained therein and substituting "June 25,
2004" in its place.
(b) 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 $65,000,000
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.
(c) Section 5.14 is created to read as follows:
5.14 2003 Asset Review. The Company agrees to cooperate
with, and assist in the conduct of, a review (or reviews) of the
Company's assets by any one or more of the Banks (which review or
reviews may be conducted independently if so desired by such
Banks), which review shall be of a scope reasonably satisfactory
to such Bank or Banks, as the case may be, and the results of
which shall be reasonably acceptable to such Bank or Banks, as
the case may be; provided that the Company agrees that ifthe
results of any such asset review are unacceptable to any Bank it
shall, upon the expiration of 90 days following notice by such
Bank or Banks,as the case may be, to the Company that such asset
review was unacceptable, constitute an Event of Default
hereunder, unless such Event of Default is cured to the
satisfaction of, or otherwise waived by, each of the Banks.
(d) 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 Third Party Loans to, and leases with, Xxxxxx Investment
Company, LLC and its Affiliates which shall not exceed
$11,660,000 in the aggregate at any time outstanding; provided
that upon the sale of such company's real property commonly
referred to as the "ACV
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Building", such amount shall be reduced to an amount not to
exceed $9,905,000. 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.
(e) Section 9.12(b) is amended to read as follows:
(b) modify this section 9.12, change the definition of
"Majority Lenders", increase or extend any Revolving Loan
Commitment or LOC Commitment, increase the Percentage of any
Lender, change the definition of "Borrowing Base Amount," reduce,
or extend the scheduled due date for payment of, any fees payable
hereunder, or waive any Event of Default arising under section
5.14 hereof, shall be effective unless consented to by each
Lender;
(f) The Company and the Lenders acknowledge that, simultaneously with
the execution of this Seventh Amendment M&I Xxxxxxxx & Xxxxxx Bank shall
increase its Revolving Loan Commitment by $5 million to $15 million. The Company
and the Lenders further acknowledge and agree that the new Percentages and
Revolving Loan Commitments of each Lender are as set forth on Exhibit H attached
to this Seventh Amendment and incorporated into the Credit Agreement.
(g) Exhibits A-2 and H attached hereto shall be deemed to be exhibits
to the Credit Agreement and Exhibit H shall replace its predecessor attached
thereto.
3. Effectiveness of Seventh Amendment. This Seventh Amendment shall
become effective upon its execution and delivery by the Company, the Lenders and
the Agent and satisfaction of the following conditions:
(a) Replacement Note. The Agent shall have received for M&I Xxxxxxxx
& Ilsley Bank ("M&I") a promissory note of the Company in the form of Exhibit
A-2 attached hereto, payable to M&I, in the full amount of M&I's Revolving Loan
Commitment (the "Replacement Note").
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(b) 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 Seventh 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.
(c) 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..
(d) Proceedings Satisfactory. All other proceedings contemplated by
this Seventh 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 Seventh Amendment, the
Replacement Note 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
Seventh 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
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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
Seventh Amendment.
6. Full Force and Effect. The Credit Agreement, as amended hereby,
remains in full force and effect.
7. Counterparts. This Seventh 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 Seventh 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 Vice President - 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/ Xxxxx X. Check, Sr.
-------------------------------------
Its Vice President
---------------------------------
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/ Xxxxx Xxxx
-------------------------------------
Its Vice President
---------------------------------
BY /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------------
Its Vice President
---------------------------------
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EXHIBIT A-2
FORM OF PROMISSORY NOTE
$15,000,000 June 27, 2003
FOR VALUE RECEIVED, the undersigned, BANDO XXXXXXXXXX SMALL BUSINESS
LENDING CORPORATION, a Wisconsin corporation (the "Company"), hereby promises to
pay to the order of M&I XXXXXXXX & XXXXXX BANK (the "Lender") the principal sum
of Fifteen Million Dollars ($15,000,000) 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 U.S. Bank National Association (formerly known as Firstar
Bank, N.A., as successor by merger to 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 June 30, 2000, in the
stated principal amount of $10,000,000 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
-------------------------------------
Its
---------------------------------
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EXHIBIT H
Lenders' Revolving Loan Commitments
--------------------------------- ------------------------- -----------
Lender Revolving Loan Commitment Percentage
--------------------------------- ------------------------- -----------
U.S. Bank National Association $35,000,000 53.8461538%
--------------------------------- ------------------------- -----------
LaSalle Bank National Association $15,000,000 23.0769231%
--------------------------------- ------------------------- -----------
M&I Xxxxxxxx & Xxxxxx Bank $15,000,000 23.0769231%
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