Exhibit 4.4
THIRD AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
June 30, 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. (as 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 Third 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:
"Eligible IRB Transaction" means a municipal, or other
governmental or quasi-governmental authority, bond
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transaction in connection with which the Company causes to be issued a
letter of credit, pursuant to section 2.1(c) hereof, to support the
issuance, reissuance or remarketing of such bonds on behalf of the
Company's customer in exchange for which (a) the Company enters into a
contractual agreement with the customer whereby the customer agrees to
reimburse the Company for any draws under such letter of credit which the
Company has reimbursed, or has agreed to reimburse, to the letter of credit
issuing bank and (b) as security for the customer's obligations owing to
the Company, the customer grants to, or causes to be granted to, the
Company, a first priority mortgage lien on the real property owned by the
customer, an Afffiliate of the customer or other party related to the
customer and which is the subject of the bond transaction.
"Eligible IRB Transactions Borrowing Base Amount" means an amount
equal the sum of the Eligible IRB Transaction Collateral Values for all
outstanding Eligible IRB Transactions.
"Eligible IRB Transaction Collateral Value" means, with respect to
any Eligible IRB Transaction, (a) prior to any draw under the Letter of
Credit issued with respect to such Eligible IRB Transaction by the bond
trustee therefor for the purpose of redeeming the outstanding bonds as a
result of a default thereunder, the lesser of (i) the outstanding principal
balance of such bonds and (ii) an amount equal to 64% of the fair market
value of the real property and equipment securing the Company's customer's
obligations to the Company in connection with such Eligible IRB
Transaction, 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 issued
with respect to such Eligible IRB Transaction by the bond trustee therefor
for the purpose of redeeming the outstanding bonds as a result of a default
thereunder, the lesser of (i) the outstanding principal balance of such
bonds and (ii) an amount equal to 50% of the fair market value of the real
property and equipment securing the Company's customer's obligations to the
Company in connection with such Eligible IRB Transaction as determined by
an MAI appraiser acceptable to the
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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.
(b) The definition of "Borrowing Base Amount" contained in section 1 is
amended to read as follows:
"Borrowing Base Amount" means, on each date of determination, an
amount equal to the sum of:
(a) the Owner-Occupied Real Estate Loan Borrowing Base
Amount;
(b) the Leased Real Estate Borrowing Base Amount;
(c) the lesser of (i) 80% of the Applicable Percentage of the
outstanding principal balances of Eligible Construction Loans and (ii)
$5,000,000;
(d) 80% of Eligible Construction Costs;
(e) the Transferred Loan Borrowing Base Amount; and
(f) the Eligible IRB Transactions Borrowing Base Amount.
(c) The definition of "Maturity Date" contained in section 1 is
amended by deleting "June 30, 2000" contained therein and substituting "June 29,
2001" in its place.
(d) Section 6.13 is amended to read as follows:
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6.13 Net Earnings. Permit Net Earnings for any fiscal quarter of
the Company to be less than $1.
(e) The Company and the Lenders acknowledge that in connection with
the execution of this Third Amendment LaSalle Bank National Association shall
increase its Revolving Loan Commitment by $5 million and Firstar Bank, N.A.
shall decrease its Revolving Loan Commitment by $5 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 next to each Lender's signature
to this Third Amendment.
(f) Exhibits A and D attached hereto shall be deemed to be exhibits to
the Credit Agreement and shall replace their predecessors attached thereto.
3. Effectiveness of Third Amendment. This Third 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 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) New Mortgages. The Agent shall have received mortgages, duly
executed by the Company, covering all real property of the Company to be
included in the Leased Real Estate Borrowing Base Amount and not already subject
to a mortgage in favor of the Agent, for the benefit of the Lenders, if any.
(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 Third
4
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) Amendment to Collateral Custodian Agreement. The Agent shall have
received an amendment to the Collateral Custodian Agreement, in form and
substance reasonably satisfactory to the Agent, duly executed by the Company,
the Agent and the Collateral Custodian.
(f) Proceedings Satisfactory. All other proceedings contemplated by
this Third 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 Third 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 Third
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
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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
Third Amendment.
6. Full Force and Effect. The Credit Agreement, as amended hereby, remains
in full force and effect.
7. Counterparts. This Third 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 Third 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
$25,000,000 33.3333333% 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
$15,000,000 20.0000000% ASSOCIATION (formerly known
as LaSalle National Bank)
BY_____________________________
Its___________________________
$10,000,000 13.3333334% M&I XXXXXXXX & XXXXXX BANK
----------- -----------
BY_____________________________
Its___________________________
$75,000,000 100.0000000% BY_____________________________
=========== =========== Its___________________________
S-1
EXHIBIT A
FORM OF PROMISSORY NOTE
$___________ June 30, 2000
FOR VALUE RECEIVED, the undersigned, BANDO XXXXXXXXXX SMALL BUSINESS
LENDING CORPORATION, a Wisconsin corporation (the "Company"), hereby promises to
pay to the order of __________________ (the "Lender") the principal sum of
_________ Dollars ($___________) 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. (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 April 28, 2000, 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. (as successor by merger to 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:
----------------------------
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[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 $_________
4
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. Eligible IRB Transactions Borrowing Base Amount:
(a) Eligible IRB Transactions for which the underlying bonds have not been
redeemed as a result of a default thereunder:
(i) Outstanding principal balance: $_________
6
(ii) Fair market value of the real
property and equipment securing
such Eligible IRB Transactions $_________
X .64
Subtotal = $_________
(iii) Lesser of (i) and Subtotal in (ii) $_________
(b) Eligible IRB Transactions for which the underlying bonds have been
redeemed as a result of default thereunder:
(i) Outstanding principal balance: $_________
(ii) Fair market value of the real
property and equipment securing
such Eligible IRB Transactions $_________
X .50
Subtotal = $_________
(iii) Lesser of (i) and Subtotal in (ii) $_________
(c) Eligible IRB Transactions Borrowing Base
Amount [Sum of (a)(iii) and (b)(iii)] $_________
7. Borrowing Base Amount [Sum of 1(f),
2(d), 3(b), 4(b), 5(c) and 6(c)] $_________
8. Total Commercial Paper Outstanding $_________
9. Total Revolving Loans Outstanding (including $_________
Swing Line Loans and the face amount of
outstanding Letters of Credit)
10. Total Credit Outstanding [sum of 8 and 9] $_________
11. Excess Availability (Overadvance) [7 minus 10] $_________
7
