EXHIBIT 4.2
FOURTH AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated
as of June 29, 2001, 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 MCGLOCKLIN 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 Fourth Amendment.
2. Amendments to Credit Agreement. The Credit Agreement is amended as
follows:
(a) The definition of "Adjusted Tangible Net Worth" contained in
section 1 is amended to read as follows:
"Adjusted Tangible Net Worth" means, with respect to the
Company on any date of determination, the remainder of (a) net book
value (after deducting related depreciation, obsolescence, amortization
and other proper reserves) at which the Adjusted Tangible Assets of the
Company would be shown on a balance sheet of the Company at such date,
but excluding any amounts arising from write-ups of assets, minus (b)
the amount at which the Company's liabilities (other than Subordinated
Debt, preferred stock, capital stock, surplus, and retained earnings)
would be shown on such balance sheet, and including as liabilities all
reserves for contingencies and other potential liabilities and minus
(c) the outstanding principal balance of Third Party Loans made by the
Company to Licensed Products, Inc.
(b) The definition of "Maturity Date" contained in section 1 is
amended by deleting "June 29, 2001" contained therein and substituting "June 28,
2002" in its place.
(c) The definition of "Parent" contained in section 1 is amended to
read as follows:
"Parent" means The Middleton Doll Company (formerly known as
Bando McGlocklin Capital Corporation), a Wisconsin corporation.
(d) Section 2.16 is created and added to read as follows:
2.16 Option to Increase Revolving Loan Commitments.
(a) From time to time, subsequent to the Closing Date, the
Company may, upon notice to the Agent (which shall promptly provide a
copy of such notice to the Lenders), if no Default or Event of Default
then exists, propose to increase the aggregate amount of the Revolving
Loan Commitments of the Lenders (the amount of such increase, the
"Increased Commitments"); provided that the aggregate amount of all
such increases pursuant to this section 2.16 may not exceed
$10,000,000. The Company may designate one or more other banks or other
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financial institutions (which may be, but need not be, one or more of
the existing Lenders) which at the time agree in the case of any such
lender that is an existing Lender to increase its Revolving Loan
Commitment and, in the case of any other such lender (an "Additional
Lender"), agree to become a party to this Agreement. The sum of the
increases in the Revolving Loan Commitments of the existing Lenders
pursuant to this subsection (a) plus the Revolving Loan Commitments of
the Additional Lenders shall not in the aggregate exceed the Increased
Commitments.
(b) An increase in the aggregate amount of the Revolving
Loan Commitments pursuant to this section 2.16 shall become effective
upon receipt by the Agent of an agreement in form and substance
satisfactory to the Agent signed by the Company, by each Additional
Lender and by each other Lender whose Revolving Loan Commitment is to
be increased, setting forth the new Revolving Loan Commitments of such
Lenders and setting forth the agreement of each Additional Lender to
become a party to this Agreement and to be bound by all of the terms
and provisions hereof, together with such evidence of appropriate
corporate authorization on the part of the Company with respect to the
Increased Commitments and such opinions of counsel for the Company with
respect to the Increase Commitments as the Agent may reasonably
request.
(c) Upon any increase in the aggregate amount of the
Revolving Loan Commitments pursuant to this section 2.16, the Company
shall, at the end of the then current Interest Period with respect
thereto, prepay any LIBOR Rate Loan then outstanding in its entirety
and, to the extent the Company elects to do so and subject to the
conditions set forth in this Agreement, the Company shall reborrow
LIBOR Rate Loans from the Lenders in proportion to their respective
Revolving Loan Commitments after giving effect to such increase, until
such time as all outstanding LIBOR Rate Loans are held by the Lenders
in such proportion.
(e) Section 6.11 is amended by adding the following sentence at the
end thereof:
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Notwithstanding anything to the contrary contained herein, for purposes
of calculating the foregoing ratio, the Company's Third Party Loans to
Licensed Products, Inc. shall not be treated as Nonperforming Loans.
(f) The Company and the Lenders acknowledge that in connection with
the execution of this Fourth Amendment Firstar Bank, N.A. shall increase its
Revolving Loan Commitment by $25 million and U.S. Bank National Association
shall cease to be a Lender under the Credit Agreement. 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 Fourth Amendment.
(g) Exhibit A-1 attached hereto shall be deemed to be an exhibit to
the Credit Agreement.
3. Effectiveness of Fourth Amendment. This Fourth 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 Firstar a
promissory note of the Company in the form of Exhibit A-1 attached hereto,
payable to Firstar, in the full amount of Firstar's Revolving Loan Commitment
(the "Replacement Note").
(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 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.
(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 Fourth 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 Fourth 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
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 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 Fourth Amendment.
6. Full Force and Effect. The Credit Agreement, as amended hereby,
remains in full force and effect.
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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 the parties hereto may execute this Fourth Amendment by signing any such
counterpart.
[Intentionally Left Blank, Signatures Appear on Next Page]
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BANDO MCGLOCKLIN SMALL BUSINESS LENDING
CORPORATION
BY /s/ Susan J. Hauke
--------------------------------------
Its V.P. Finance
Revolving Loan
Commitment Percentage
FIRSTAR BANK, N.A., (as successor by
$50,000,000 66.6666666% merger to Firstar Bank Milwaukee, N.A.),
as the Agent and a Lender
BY /s/ John B. Beggs
--------------------------------------
Its Vice President
LASALLE BANK NATIONAL
$15,000,000 20.0000000% ASSOCIATION (formerly known
as LaSalle National Bank)
BY /s/ Daniel Garces
--------------------------------------
Its Vice President
$10,000,000 13.3333334% M&I MARSHALL & ILSLEY BANK
- ----------- ----------
$75,000,000 100.0000000% BY /s/ James Tepp
=========== =========== --------------------------------------
Its Vice President
BY /s/ P.D. Kuepke
--------------------------------------
Its Vice President
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EXHIBIT A-1
FORM OF PROMISSORY NOTE
$50,000,000 June 29, 2001
FOR VALUE RECEIVED, the undersigned, BANDO MCGLOCKLIN SMALL BUSINESS
LENDING CORPORATION, a Wisconsin corporation (the "Company"), hereby promises to
pay to the order of FIRSTAR BANK, N.A. (the "Lender") the principal sum of Fifty
Million Dollars ($50,000,000) 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
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 $25,000,000 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 MCGLOCKLIN 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 Loan Notation
Date Rate Loan Rate Loan Repaid Made By
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Schedule B to Revolving Note
LIBOR RATE LOANS AND REPAYMENT OF
LIBOR RATE LOANS
(3) (4)
(2) Maturity Amount of
Amount of Date of LIBOR (5)
(1) LIBOR LIBOR Rate Loan Notation
Date Rate Loan Rate Loan Repaid Made By
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