Exhibit 4.1
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT (this "Agreement") made
as of the 28th day of June, 1996, by and between FIRST BANK (N.A.), a
national banking association ("Bank") and BANDO McGLOCKLIN SMALL BUSINESS
INVESTMENT CORPORATION, a Wisconsin corporation ("Borrower").
W I T N E S S E T H :
WHEREAS, Bank and Borrower entered into a Loan Agreement dated
October 12, 1988 (the "Revolving Loan Agreement") pursuant to which the
Bank agreed to extend credit to the Company on the terms and subject to
the conditions set forth therein; and
WHEREAS, the Revolving Loan Agreement has previously been
amended several times and Bank and Borrower now desire to amend and
restate the Revolving Loan Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
A G R E E M E N T S
1. DEFINITIONS. As used in this Agreement, the listed terms
are defined as follows:
Adjusted Tangible Assets shall mean all assets except: (a)
trademarks, tradenames, franchises, goodwill, and other similar
intangibles; (b) assets located and notes and receivables due
from obligors domiciled outside the United States of America,
Puerto Rico, or Canada; and (c) accounts, notes, and other
receivables due from Affiliates or employees.
Adjusted Tangible Net Worth shall mean the remainder of (a)
net book value (after deducting related depreciation,
obsolescence, amortization and other proper reserves) at which
the Adjusted Tangible Assets of Borrower would be shown on a
balance sheet at such date, but excluding any amounts arising
from write-ups of assets, minus (b) the amount at which its
liabilities (other than 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.
Advance shall mean the proceeds of the Credit Facility
advanced from time to time by Bank to Borrower in accordance
with the terms of this Agreement.
Affiliate shall mean any Person directly or indirectly
controlling, controlled by or under direct or indirect common
control with any other Person. A Person shall be deemed to
control another Person if the controlling Person owns ten
percent (10%) or more of any class of voting securities of the
controlled Person or possesses, directly or indirectly, the
power to direct or cause the direction of the management or
policies of the controlled Person, whether through ownership of
stock, by contract or otherwise.
Bank's Expenses shall mean and shall include:
(i) all expenses incurred by Bank in the
negotiation, documentation, administration of this
Agreement, the other Loan Documents and the Loan,
including, but not limited to, accounting and
attorney's fees and expenses of any kind and mailing
costs;
(ii) all expenses incurred by Bank in connection
with any verification and inspection of the Collateral
and/or any audit and inspection of any Borrower's
books, accounts, records, correspondence and other
papers;
(iii) all taxes levied against or paid by
Bank (other than taxes on, or measured by, the income
of Bank) and all filing and recording fees, costs and
expenses which may be incurred by Bank in respect to
the filing and/or recording of any document or
instrument relating to the transactions described in
this Agreement;
(iv) all costs and expenses (including all
allocated costs of staff counsel which are employees
of Bank) incurred by Bank to collect the collateral
(with or without suit), correct any Default or Event
of Default, or enforce any provision of this
Agreement; and
(v) all costs, outlays, attorney's fees and
expenses of any kind (including all allocated costs of
staff counsel) incurred in the enforcement of this
Agreement or the other Loan Documents or the defense
of legal proceedings involving any claim made against
Bank arising out of this Agreement, the other Loan
Documents or the protection of the Collateral.
Business Day shall mean a day, other than a Saturday,
Sunday or holiday, on which banks are open for business in
Milwaukee, Wisconsin.
Collateral Agent shall mean Firstar Trust Company or any
successor Collateral Agent appointed pursuant to the terms of
the Intercreditor Agreement.
Credit Facility shall mean the revolving credit facility
established pursuant to section 2 of this Agreement and as
further defined therein.
Default shall mean an event or condition the occurrence of
which would, with a lapse of time or the giving of notice or
both, become an Event of Default.
Default Rate shall mean, with respect to any Advance, the
sum of the Reference Rate plus 2.0% per annum, and such rate
shall change on each date that such Reference Rate changes.
Event of Default shall have the meaning set forth in
section 10 herein.
Funding Date shall mean the date of each Advance made
hereunder.
Intercreditor Agreement shall mean that certain
Intercreditor Agreement dated as of October 12, 1988, as amended
from time to time, among the financial institutions that are or
may become parties thereto.
Loan shall mean all indebtedness owed by Borrower to Bank
arising under this Agreement or the Note.
Loan Documents shall mean this Agreement, the Note and all
other agreements and documents previously, now or hereafter
delivered to Bank pursuant to or in connection with the
transactions contemplated hereby or in connection with the
Revolving Loan Agreement, and any amendments, supplements,
modifications, renewals, replacements, consolidations,
substitutions and extensions of any of the foregoing.
Maturity Date shall mean October 31, 1996 or such earlier
date on which Bank declares the Note to be immediately due and
payable pursuant to section 10 of this Agreement.
Note shall mean the Revolving Note executed and delivered
by Borrower to Bank pursuant to the terms of this Agreement, in
the form of Exhibit A attached hereto.
Obligations shall mean any and all debts, obligations and
liabilities of Borrower to Bank arising out of the this
Agreement, the Note and the other Loan Documents, as amended
from time to time, and all transactions thereunder, whether
heretofore, now or hereafter made, incurred or created, whether
due or not due, absolute or contingent, liquidated or
unliquidated, determined or undetermined, whether for principal
interest or other debts, obligations or liabilities thereunder,
and whether or not any or all such debts, obligations and
liabilities are or become bared by any statute of limitations or
otherwise unenforceable.
Person means an individual, corporation, partnership, joint
venture, trust or unincorporated organization, or a government
or any agency or political subdivision thereof.
Reference Rate shall mean at any time, and from time to
time, the rate of interest then most recently established by
Bank as its "reference rate", which is not necessarily Bank's
lowest or most favorable rate of interest at any time.
SWIB Documents shall mean (i) the Second Amended and
Restated Agreement dated November 11, 1991, by and between the
State of Wisconsin Investment Board ("SWIB"), as lender, and
Borrower, as amended, (ii) the Master Purchase Agreement dated
March 3, 1995, as amended on April 14, 1995, by and between SWIB
and Borrower, and (iii) all documents and instruments executed
and/or delivered by Borrower and/or SWIB which evidences,
services, modifies or amends the transactions contemplated by
the documents described in clauses (i) and (ii) above.
2. REVOLVING CREDIT FACILITY. Subject to the terms and
conditions hereinafter set forth in this Agreement, Bank agrees to make
available to Borrower a revolving credit facility (the "Credit Facility"),
pursuant to which Borrower may obtain Advances from Bank, repay such
Advances and reborrow, provided, however, the aggregate principal balance
of Advances outstanding at any time shall not exceed $12,500,000 less the
aggregate outstanding principal amount of all commercial paper created by
Borrower pursuant to section 5. Except for Advances to retire commercial
paper outstanding pursuant only to the commercial paper facility made
available to Borrower by Bank, in no event shall Borrower be entitled to
receive any Advance if the making of such Advance would cause the
aggregate amount of all loans made to Borrower by Bank and the Additional
Lenders to exceed 80% of the value of the collateral then held by the
Collateral Agent.
A. Advances under the Credit Facility shall be evidenced
by the Note in the maximum amount of the Credit Facility.
Although the Note shall be expressed to be payable in the full
amount of Credit Facility specified above, Borrower shall be
obligated to pay only the amount actually disbursed to or for
the account of Borrower, together with interest on the unpaid
balance of the sums so disbursed, which remain outstanding from
time to time as shown on the records of Bank. The Note shall be
dated as of the date of this Agreement and shall be payable in
full on or before the Maturity Date.
B. The outstanding principal balance under the Note shall
bear interest at a fluctuating rate per annum equal to the
Reference Rate and such rate shall change on each date that such
Reference Rate changes. During the continuance of an Event of
Default, the outstanding principal balance under the Note shall
bear interest at the Default Rate. All interest shall be
calculated for actual days elapsed on the basis of a 360-day
year. Interest accrued on each Advance shall be payable in
arrears on (i) the first day of each calendar month, commencing
with the first such date to occur after the date hereof, (ii) on
any date on which the Advance is prepaid, whether due to
acceleration or otherwise, and (iii) on the Maturity Date.
Interest shall not be payable for the day of any payment on the
amount paid if payment is received by Bank prior to noon
(Milwaukee time). If any payment of principal or interest under
the Note shall become due on a day that is not a Business Day,
such payment shall be made on the next succeeding Business Day
and, in the case of a payment of principal, such extension of
time shall be included in computing interest due in connection
with such payment; provided that for purposes of section 10
hereof, any payments of principal described in this sentence
shall be considered to be "due" on such next succeeding Business
Day.
C. All disbursements made to Borrower under the Credit
Facility shall be entered as debits on Bank's records. Bank
shall also record as credits all payments made by Borrower on
the indebtedness under the Credit Facility. At least once a
month, Bank shall render a statement of account showing as of
its date the indebtedness owed on the Credit Facility debited
and credited as set forth above. Unless within thirty (30) days
of the date of said statement of account Borrower notifies Bank
in writing of an objection to said statement, there shall be a
rebuttable presumption that said statement is correct.
D. All disbursements to Borrower under the Credit
Facility shall be made only in whole multiples of $10,000. All
payments by Borrower to Bank with respect to repayment of the
Credit Facility shall be made only in whole multiples of
$10,000.
E. Duly authorized officers or employees of Borrower as
designated by Borrower to Bank by telephone notice, confirmed in
writing, if requested by Bank, may from time to time contact a
designated officer or employee of Bank, requesting that Bank
increase or decrease the total principal amount of the Credit
Facility then outstanding not to exceed the amount stated above.
Bank shall immediately increase or decrease the principal
balance then outstanding under the Note. All such requests must
be received by Bank no later than 3:00 p.m. All requests
received after that time may be processed as if received the
following Business Day.
(1) Each such request for an increase or
decrease of the principal amount outstanding under the
Note shall be confirmed immediately in writing by the
authorized person making the request and mailed to the
attention of the person to whom the request was made.
(2) In the event such a request by Borrower
results in an increase in the total principal amount
then outstanding, Bank shall credit the amount of said
increase to Borrower's checking account maintained
with the Bank. In the event that such request results
in a decrease to the total principal amount then
outstanding, Bank shall debit Borrower's checking
account maintained with Bank and the reduction shall
be made to the total principal amount then outstanding
on the Note.
F. All payments of the Obligations hereunder shall be
made, without set-off, deduction, or counterclaim, in
immediately available funds to Bank at Bank's address specified
herein, by noon (local time) on the date when due. All of
Bank's Expenses, fees, commissions, costs, expenses, and other
charges under or pursuant to the Loan Documents, and all
payments made and out-of-pocket charges under or pursuant to the
Loan Documents will be charged as Advances to the Loan as of the
date due from Borrower or the date paid or incurred by Bank, as
the case may be.
G. If the adoption of or change in any law or any
governmental or quasi-governmental rule, regulation, policy,
guidelines or directive (whether or not having the force of
law), or any interpretation thereof, or the compliance of Bank
therewith,
(i) subjects Bank to any tax, duty, charge or
withholding on or from payments due from Borrower
(excluding federal and state taxation of the overall
net income of Bank), or changes the basis of such
taxation of payments to Bank in respect of its
Advances or other amounts due it hereunder, or
(ii) imposes or increases or deems applicable any
reserve, assessment, insurance charge, special deposit
or similar requirement against assets of, deposits
with or for the account of, or credit extended by,
Bank, or
(iii) imposes any other condition, and the
result is to increase the costs of Bank of making,
funding or maintaining loans or reduces any amount
receivable by Bank in connection with loans, or
requires Bank to make any payment calculated by
reference to the amount of loans held or participated
in or interest received by it, by an amount deemed
material by Bank,
then, within fifteen (15) days of demand by Bank, Borrower shall
pay Bank that portion of such increased expenses incurred or
reduction in an amount received which Bank determines is
attributable to making, funding and maintaining the Advances and
the revolving credit facility.
H. If Bank determines the amount of capital required or
expected to be maintained by Bank or any corporate entity
controlling Bank is increased as a result of a Change (as
defined below), then, within fifteen (15) days of demand by
Bank, Borrower shall pay Bank the amount necessary to compensate
for any shortfall in the rate of return on the portion of such
increased capital which Bank determines is attributable to this
Agreement, its Advances, or its obligation to make Advances
hereunder (after taking into account Bank's policies as to
capital adequacy). "Change" means (i) any change after the date
of this Agreement in the Risk-Based Capital Guidelines (as
defined below) or (ii) any adoption of or change in any other
law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not
having the force of law) after the date of this Agreement which
affects the amount of capital required or expected to be
maintained by Bank or any corporation controlling any Bank.
"Risk-Based Capital Guidelines" means (i) the risk-based capital
guidelines in effect in the United States on the date of this
Agreement, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory
authorities outside the United State implementing the July 1988
report of the Basle Committee on Banking Regulation and
Supervisory Practices Entitled "International Convergence of
Capital Measurements and Capital Standards", including
transition rules, and any amendment to such regulations adopted
prior to the date of this Agreement.
I. Bank shall deliver a written statement of Bank as to
the amount due, if any, under sections 2.G. or 2.H. hereof.
Such written statement shall set forth in reasonable detail the
calculations upon which Bank determined such amount and shall be
final, conclusive and binding on Borrower in the absence of
manifest error. Unless otherwise provided herein, the amount
specified in the written statement shall be payable on demand
after receipt, by Borrower of the written statement. The
obligations of Borrower under sections 2.G. and 2.H. hereof
shall survive payment of the Obligations and termination of this
Agreement.
J. Bank's obligations to make Advances under this
Agreement shall terminate at 5:00 p.m. (Milwaukee time) on the
Maturity Date. Notwithstanding the foregoing, (i) upon the
occurrence of an Event of Default, Bank may immediately
terminate its obligations to make Advances under this Agreement
without notice or demand, and (ii) so long as any Default shall
have occurred and remains uncured, the Bank shall have no
obligation to make any Advance under the Credit Facility. On
the Maturity Date, the Loan, the Note, and all other Obligations
of Borrower to Bank shall be immediately due and payable in
full, without notice or demand and shall be repaid to Bank by a
wire transfer of immediately available federal funds.
3. USE OF CREDIT FACILITY. Borrower shall be entitled to
Advances under the Credit Facility solely for the following purposes:
(i) funding for any proper corporate purposes not prohibited by the rules
and regulations of the United States Small Business Administration (the
"SBA"), except that such disbursements may not be used for investments in
securities, cash, cash equivalents or investment instruments, provided,
however, that nothing herein shall prohibit the use of such funds for
investing in "small business concerns", as defined in SBA regulations;
(ii) funding payment obligations of Borrower with respect to reverse
repurchase agreements with financial institutions; (iii) funding payments
of dividends (to the extent permitted by this Agreement); (iv) funding
loans by Borrower to third parties ("Third Party Loans"); (v) funding
Borrower's repurchase of participation interests in Third Party Loans;
(vi) funding payment obligations of Borrower to Limited Lenders (as
defined in section 8.A. hereof); (vii) except as provided in the following
clause (viii), funding Borrower's retirement of commercial paper
outstanding pursuant to a facility made available to Borrower by any Bank;
or (viii) after the occurrence and during the continuance of a Default or
Event of Default, funding Borrower's retirement of commercial paper
outstanding pursuant only to the commercial paper facility made available
to Borrower by Bank (other than when acting as a Limited Lender) pursuant
to section 5.A. of this Agreement.
A. Upon the occurrence and during the continuance of a
Default or Event of Default, Borrower authorizes Bank to make an
Advance under the Credit Facility in an amount necessary to
retire any commercial paper outstanding under the commercial
paper facility made available by Bank to Borrower pursuant to
section 5.A. of this Agreement. Such Advance may be made by Bank
in its sole discretion, and may be made by Bank directly to the
holders of the commercial paper which is to be so retired.
4. AVAILABILITY FEE. As additional compensation to Bank for
its agreement to make the Credit Facility available to Borrower, Borrower
agrees to pay to Bank an Availability Fee to be calculated and paid as
follows:
A. The Availability Fee shall be payable monthly in
advance on the last day of each calendar month for the
succeeding month, commencing on the first such date to occur
after the date hereof.
B. The Availability Fee to be paid on each of the
aforesaid monthly payment dates shall be one-twelfth of five-
eighths percent of $12,500,000.00. The Availability Fee to be
paid on the first payment date shall include the accrued but
unpaid portion of the Availability Fee as defined in and payable
pursuant to the Revolving Loan Agreement.
C. Borrower may terminate this Agreement upon (i) written
notice to Bank, stating that Borrower irrevocably terminates its
right to receive any new Advances under the Credit Facility and
its Commercial Paper Relationship, and (ii) payment of the
entire outstanding balance of the Credit Facility and Commercial
Paper Relationship, together with all interest accrued and
unpaid thereon, and any and all other fees and amounts which are
then due to Bank pursuant to this Agreement. After such
termination, Borrower shall have no further obligation to pay
the monthly Availability Fee for calendar months succeeding the
month in which the said termination occurs.
5. COMMERCIAL PAPER.
A. Bank has agreed to provide to Borrower a commercial paper
facility (the "Commercial Paper Relationship" or the "Relationship"), and
Bank may continue to provide the Commercial Paper Relationship to Borrower
during the term of this Agreement. This Relationship shall be evidenced
by documents and agreements substantially in the form as are presently
used between Bank and Borrower except to the extent such documents may be
modified from time to time as changes are made by Bank to the documents
and agreements customarily used by Bank for non-rated commercial paper and
shall be subject to such terms and conditions as are customarily imposed
by Bank. Subject to section 5.B. below, Borrower agrees that the
principal amount of the commercial paper issued through Bank (other than
when acting as a Limited Lender) pursuant to such Relationship shall not
exceed the maximum principal amount of the Credit Facility authorized
hereunder less the principal amount outstanding under the Note.
B. In the event Bank elects to act as a Limited Lender from
time to time, Borrower may, if Bank agrees, issue through Bank commercial
paper in an aggregate principal amount exceeding the amount described in
section 5.A. above, if separate lending agreements are entered into
between Borrower and Bank.
6. REPRESENTATIONS AND WARRANTIES. Borrower represents and
warrants by its execution of this Agreement on the date hereof, and by its
request of each Advance shall be deemed to remake on each Funding Date,
the following matters set forth in this section 6. Each representation
and warranty shall be deemed to be material and shall be conclusively
presumed to have been relied upon by Bank regardless of any information
possessed or any investigation made by Bank. The following
representations, warranties and covenants shall be cumulative and in
addition to all other representations, warranties and agreements which
Borrower shall give or cause to be given to Bank, either now or hereafter.
A. Borrower is a corporation duly organized and existing
under the laws of the State of Wisconsin and is duly authorized
under all applicable provisions of law to carry on its business
as presently conducted. Borrower has the corporate power to
enter into this Agreement and to borrow hereunder.
B. The making of this Agreement and compliance with the
terms hereof by Borrower have been duly authorized by all
necessary corporate action and do not conflict with and are not
in contravention of (1) any provision of the Articles of
Incorporation and By-Laws of Borrower, (2) any indenture,
contract or agreement to which Borrower is a party or to which
it is subject, or (3) any law, ordinance, statute, rule or
regulation binding upon Borrower.
C. Borrower is not a party to any litigation or
administrative proceedings, nor so far as it is known by
Borrower is any litigation or administrative proceeding
threatened against it which would, if adversely determined,
cause any material adverse change in Borrower's financial
condition or in the conduct of its business, except as
previously disclosed to and approved by the Bank in writing
prior to the date hereof.
D. All copies of documents, contracts, agreements and
assignments which Borrower has furnished to Bank are true and
correct copies. All financial statements heretofore furnished
to Bank are true and correct in all material respects subject to
customary year end adjustments. There has been no material
adverse change in the property or business operations of
Borrower since the date of the last financial statement, except
pursuant to the conduct of its ordinary business, and except as
shall have been disclosed in writing by Borrower to Bank prior
to the date of execution of this Agreement.
E. Borrower has paid, and will pay when due, all federal,
state and local taxes, and will promptly prepare and file
returns for accrued taxes.
F. Borrower has filed all statements, if any, which it
may be required to file under the provisions of any applicable
state or federal securities laws or regulations or if any such
statements have not been filed such failure shall not have any
material adverse effect upon the Borrower. Borrower is not
engaged in the business of carrying margin stock within the
meaning of Regulation U of the Board of Governors of the Federal
Reserve System.
G. This Agreement is legal, valid, binding upon, and
enforceable against Borrower in accordance with its terms,
except to the extent enforcement is limited by laws relating to
bankruptcy or insolvency.
H. Borrower owns all of its assets free and clear of any
liens or security interests, except liens and security interests
permitted pursuant to section 8.B. of this Agreement.
I. Borrower has all licenses (including all licenses
required by the SBA in order for Borrower to operate as a "Small
Business Investment Company"), registrations, permits, and
franchises necessary for the conduct of its business which
violation or failure to obtain would materially and adversely
affects its business or condition (financially or otherwise).
J. Borrower is not in violation of any laws, ordinances,
or governmental rules or regulations to which it or its business
is subject (including, without limitation, the provisions of 13
C.F.R. Section 107.210 (1995) relating to small business
investment companies).
7. AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and
agrees as follows:
A. Borrower shall furnish Bank monthly financial
statements (i.e., consolidated balance sheets and consolidated
income statements) no later than thirty (30) days subsequent to
each month's end for such month. Together with the monthly
financial statements, Borrower shall provide a report
identifying all the banks through which the Borrower is then
issuing commercial paper, and the principal amount of commercial
paper then outstanding issued through each bank. Within ninety
(90) days after the end of each fiscal year of Borrower, Bank
shall be provided with an audited income statement for such year
and an audited balance sheet as of the end of such year. All
statements are to be prepared in accordance with generally
accepted principles of auditing and accounting applied on a
basis consistent with the accounting practices of Borrower
reflected in the audited financial statements for the preceding
fiscal year, and year end statements are to be certified without
material qualification by Price Waterhouse, by any other "big
six" national accounting firm, or by any independent certified
public accountants of recognized standing selected by Borrower
and acceptable to Bank. Borrower shall also furnish to Bank all
other financial statements reasonably requested by Bank.
Borrower shall also furnish to Bank copies of (i) all
financial statements, reports and returns as it shall send to
its stockholders, (ii) all regular, periodic, or special reports
(including but not limited to semi-annual reports on Form N-SAR
and amendments to its registration statements on Form N-5) which
it is or may be required to file with the Securities & Exchange
Commission or any governmental department, bureau, commission or
agency succeeding to the functions of the Securities & Exchange
Commission, and (iii) all examination reports of its affairs
which it shall receive from the SBA; all of which documents
shall be delivered to Bank forthwith as and when sent, filed, or
received by Borrower.
Bank may at any time, and without notice to or consent of
Borrower, deliver to any participant in the Advances which are
the subject of this Agreement, copies of all financial
statements, reports, or any other documents delivered to Bank
hereunder.
B. Borrower shall keep proper books of record and
accounts and, upon application, give any representative of Bank
access during normal business hours to, and permit him or her to
examine, any and all books, records and documents in Borrower's
possession relating to the financial affairs of Borrower and to
inspect any of its properties.
C. Together with each of the monthly financial statements
and the year-end audited financial statements to be provided
pursuant to section 7.A. above, Borrower shall also furnish to
Bank a certificate signed by its President or Chief Financial
Officer stating that he or she has no knowledge of any events of
default which have occurred under this Agreement or of any
matters which would with the passage of time constitute an event
of default hereunder, or if he or she shall have obtained
knowledge of any such default or potential default he or she
shall disclose in such statement the default or potential
default and the nature thereof. Each such certificate shall be
dated as of the last day of the month or year for which it is
submitted.
D. Borrower shall maintain all insurable property, real
and personal, owned by it insured at all times against loss or
damage by fire or other normally insured hazards through a
responsible insurance carrier selected by it in such amounts and
to the extent of the coverage as is customary for companies
engaged in similar businesses and in similar locations, but in
no event shall said insurance be less than that which Bank, in
good faith, believes is sufficient and adequate to protect the
operating value of the property of Borrower. Borrower shall
also carry insurance to cover its interest as mortgagee in the
property securing the Third Party Loans to be effective in the
event of any failure of the owner of such property to carry
property insurance with respect thereto. The Collateral Agent
(used herein as defined in the Intercreditor Agreement) shall be
named as secured party loss payee in all such policies. Copies
of all such insurance policies shall be delivered to Bank.
E. Borrower shall keep the properties that are material
to the operation of its business, whether owned or leased, in
good condition, repair and working order.
F. Borrower shall duly pay and discharge all lawful
taxes, assessments and governmental charges upon it or against
its properties prior to the date on which penalties are attached
thereto, unless and to the extent only that the same shall be
contested in good faith and by appropriate proceedings by the
Borrower and provided Borrower has established appropriate
reserves for the payment of said taxes in accordance with
generally accepted accounting practices.
G. Borrower shall do all things necessary to maintain its
corporate existence, to preserve and keep in full force and
effect its rights and franchises necessary to continue its
businesses, and to comply with all applicable laws, regulations
and ordinances (including without limitation any applicable
state or federal securities laws) with respect to which the
failure to comply would have a material adverse effect on the
Borrower.
H. Borrower shall pay to Bank, upon demand, all
reasonable charges and expenses incurred by Bank for attorney's
fees and expenses of litigation, in seeking relief from the
automatic stay or any other bankruptcy proceedings, or in
connection with or in any way related to Bank's relationship
with Borrower, with respect to the transactions contemplated by
this Agreement, whether hereunder or otherwise, including
without limitation those incurred or expended in connection with
the preparation of this Agreement or any amendment hereto,
extension of the Credit Facility hereunder, and the protection
or enforcement of Bank's rights hereunder.
In addition thereto, Borrower shall pay to Bank all
reasonable charges and expenses incurred by Bank, of every kind
or description, arising subsequent to the occurrence of any
Event of Default, including but not limited to reasonable
attorneys fees and expenses of litigation.
I. With respect to each of its Plans, if any, under the
Employee Retirement Income Security Act ("ERISA") and the
Internal Revenue Code (the "Code"), Borrower represents and
warrants that:
1. all funding requirements have been met and
will continue to be met on an annual basis;
2. no "prohibited transactions" have occurred
and that none of the transactions which are the
subject of this Agreement constitute prohibited
transactions under the rulings or regulations of ERISA
or the Code;
3. all such Plans are and will continue to be
qualified Plans; and
4. the Borrower has complied with, and will
continue to comply with, all reporting and disclosure
requirements under ERISA, the Code, and the applicable
rulings and regulations with respect to which the
failure to so comply would have a material adverse
effect on the Borrower.
J. Borrower shall maintain an operating account at the
Bank, and Bank is hereby authorized to charge such account for
all amounts due from Borrower to Bank pursuant to this Agreement
as and when due.
K. Borrower shall indemnify, defend and hold Bank, and
its officers, directors, employees, and agents, harmless from
and against all claims, injury, damage, loss, costs (including
attorneys' fees and costs) and liability of any and every kind
to any persons or property by reason of (i) the breach of any
representation or warranty herein or in any other Loan Document,
(ii) the failure to fulfill any obligation under this Agreement
or under any other Loan Document, or (iii) any other matter
relating to, or action taken by Bank in connection with, the
Credit Facility, unless caused by the gross negligence or
willful misconduct of Bank.
8. NEGATIVE COVENANTS OF BORROWER: Borrower covenants and
agrees as follows:
A. Borrower shall not, without the prior written consent
of Bank, create, incur, assume or have outstanding, any
indebtedness for money except:
(1) the Loan under this Agreement or any
renewals thereof;
(2) indebtedness for other borrowings payable to
Bank;
(3) other indebtedness as shown on the financial
statements presented to Bank prior to the closing of
the transactions contemplated hereunder;
(4) unsecured current liabilities incurred in
the ordinary course of business;
(5) debentures issued by Borrower which are
guaranteed by the SBA;
(6) revolving credit facilities (the "Permitted
Credit Facilities") extended by Firstar Bank
Milwaukee, N.A., LaSalle National Bank and other
lenders pursuant to the Intercreditor Agreement
(collectively the "Additional Lenders");
(7) subject to the limitations in 8.B. below,
indebtedness for loans from the State of Wisconsin
Investment Board and/or other institutional lenders
(which lenders may include without limitation Bank or
any one or more of the Additional Lenders, but may not
include other financial institutions of which the
deposits are insured by the FDIC or FSLIC)
(collectively, the "Limited Lenders") which are
secured only by specific Third Party Loans (the
"Limited Lenders' Collateral");
(8) indebtedness incurred for the purchase of
capital assets provided said indebtedness is unsecured
or is secured only by purchase money security
interests in the assets so purchased;
(9) indebtedness for commercial paper issued
pursuant to facilities made available to Borrower by
Bank and Firstar Bank Milwaukee, N.A.; and
(10) indebtedness under reverse repurchase
agreements with Bank or an Additional Lender, if such
agreements are secured by United States Treasury
securities the Borrower owns on the date hereof.
B. Borrower shall not, without prior written consent of
Bank, create, suffer, or permit to be created any mortgage,
pledge, security interest, assignment, encumbrance or other lien
upon any real property, equipment, fixtures, accounts, contract
rights, chattel paper, instruments, documents, general
intangibles, inventory, or any other property now owned or
hereafter acquired by it, except (i) the Limited Lenders'
security interests in the Limited Lenders' Collateral as
described in the next paragraph; (ii) the purchase money
security interests permitted in Section 8.A above; (iii)
existing liens, charges or encumbrances specifically indicated
on the financial statements previously delivered to Bank by
Borrower; (iv) liens for taxes, assessments or governmental
charges not delinquent or being contested in good faith by
Borrower; (v) construction lien claims not delinquent; (vi)
liens or deposits in connection with workmen's compensation or
other insurance or to secure the performance of bids, trade
contracts, leases, public or statutory obligations of like
nature incurred in the ordinary course of business; (vii)
security interests in favor of Bank, the Collateral Agent, and
the Additional Lenders; and (viii) security interests, if any,
in United States Treasury securities now owned and presently
subject to reverse repurchase agreements with Bank or an Addi-
tional Lender, to the extent such investments are permitted
under section 8.K. below.
A lender can only provide loans as a Limited Lender if, at
the time the Limited Lender makes a loan to Borrower, the Third
Party Loans pledged to the Limited Lender to secure the loan do
not have outstanding principal balances exceeding 110% of all
obligations of Borrower to the Limited Lender plus commercial
paper issued through the Limited Lender in its capacity as a
Limited Lender.
C. Borrower shall not merge with or into or consolidate
with or into any other corporation or entity, or sell, lease,
transfer or otherwise dispose of all or any substantial part of
its property, assets or business (other than by sales made in
the ordinary course of business and sales of participation
interests in Third Party Loans).
D. Borrower shall not, without prior written consent of
Bank, enter into any agreement providing for the leasing by it
of property which has been, or is to be, sold or transferred by
it to the lessor thereof.
E. Borrower shall not redeem, purchase, or otherwise
acquire directly or indirectly any shares of any class of its
capital stock without the prior written consent of Bank.
F. Borrower shall not permit the ratio, calculated as of
the last day of each month, of (a) the aggregate amount of all
of Borrower's indebtedness and liabilities (including
liabilities under guaranties and contingent liabilities),
including all Obligations (numerator), to (b) Borrower's
Adjusted Tangible Net Worth (denominator), to be more than 7:1.
G. Borrower's aggregate total realized losses on Third
Party Loans during the term of this Agreement shall not exceed
the greater of $1,000,000 or two and one-half per cent (2.5%) of
the total principal amount of all outstanding Third Party Loans,
as determined from the then most recent annual audited financial
statements to be provided by Borrower to Bank pursuant to this
Agreement. For the purposes of this section, a loss on a Third
Party Loan is "realized" when the loss is so identified on
Borrower's financial statements.
H. Borrower shall, at all times, maintain an Adjusted
Tangible Net Worth of not less than $19,500,000.
I. Borrower shall not in any of its fiscal years pay or
declare any dividend or make any other distribution on account
of any class of its stock that would be treated as a
return-of-capital dividend for income tax purposes.
J. Borrower may not make, have or acquire any
investments, except (i) investments in "small business
concerns", as defined in the SBA regulations, and (ii)
investments that are permitted by 13 CFR Section 107.708, or
otherwise permitted by the SBA, and are held by or subject to a
security interest in favor of Bank or an Additional Lender.
K. The ratio of (i) the sum of the aggregate outstanding
principal balances of all Third Party Loans evidenced by
promissory notes or other agreements held by Bank or the
Collateral Agent pursuant to section 9 of this Agreement and
securing Borrower's obligations only to Bank and the Additional
Lenders pursuant to the Intercreditor Agreement minus the sum of
(w) the aggregate dollar amount of all Participated Third Party
Loans (as defined below), if any, plus (x) if there is more than
one Third Party Loan to a Person or an Affiliate thereof (each,
an "Affiliated Third Party Loan", and collectively, "Affiliated
Third Party Loans") and if any one of such Affiliated Third
Party Loans is (1) a Participated Third Party Loan, and (2) not
separately identifiable (e.g., by means of a loan identification
number) and Borrower does not have collateral as security for
such loan which is separate and distinct from the collateral
pledged to Borrower for any other applicable Affiliated Third
Party Loan, then the aggregate dollar amount of all such
Affiliated Third Party Loans (excluding Participated Third Party
Loans which are included in such aggregate dollar amount of
Affiliated Third Party Loans), to (ii) the sum of (y) the
outstanding principal balances of Borrower's obligations to Bank
hereunder and the Additional Lenders (in their capacity as
Additional Lenders, and not when acting as Limited Lenders),
plus (z) the total principal amount of all of Borrower's
outstanding commercial paper issued pursuant to facilities made
available to Borrower by Bank and any Additional Lenders (in
their capacity as Additional Lenders, and not when acting as
Limited Lenders) shall not at any time be less than 1.25 to 1.0.
As used herein, the term "Participated Third Party Loan" shall
mean a Third Party Loan in which Borrower has sold a
participation interest or made an assignment (in whole or in
part) to any third party.
Within thirty (30) days after the end of each calendar
month and at such other times as requested by Bank, Borrower
shall deliver to Bank a certificate with a schedule of all of
its Third Party Loans and stating which Third Party Loans are
held by the Collateral Agent pursuant to the Intercreditor
Agreement and which are held by the Limited Lenders, the amount
of each participation sold by Borrower in each Third Party Loan,
and the amounts of each such participation interests sold on a
"first-out" or "with recourse" basis. The aforesaid certificate
shall also set forth the ratio referred to in the previous
paragraph calculated as of the end of the month for which the
certificate is submitted and shall separately state the amount
of each component required to be used in calculating that ratio.
L. Borrower shall not permit the average monthly
percentage for the preceding three calendar months of the
aggregate unpaid principal balance of all Third Party Loans
contractually delinquent for a period of more than 30 days to
exceed ten percent (10%) of the aggregate unpaid principal
balance of all Third Party Loans.
M. Except as provided in the following sentence, Borrower
shall not make (or enter into any agreement to make) any Third
Party Loan, the terms of which would allow for the maximum
aggregate principal advances of such Third Party Loan to exceed
eighty percent (80%) of the fair market value of the property
(as such value is set forth in an appraisal of such property in
form and substance satisfactory to Bank) which is included in
Borrower's security for the repayment of such Third Party Loan.
Notwithstanding the foregoing, Borrower shall be permitted to
make Third Party Loans where the maximum aggregate advances of
such loans can equal a maximum of 100% of the value of the
property (as such value is set forth in an appraisal of such
property in form and substance satisfactory to Bank) which is
included in Borrower's security for the repayment of such Third
Party Loans (such Third Party Loans are referred to herein as
"Maximum LTV Third Party Loans"); provided, however, that the
aggregate amount of all such Maximum LTV Third Party Loans
permitted by the preceding clause shall not at any time exceed
2.5% of the aggregate amount of all Third Party Loans which
constitute collateral for the Obligations.
N. Borrower shall comply (or cause the compliance) with
all of the covenants set forth in the SWIB Documents on the date
of this Agreement, which covenants (to the extent not
inconsistent with the covenants contained in this Agreement) are
hereby incorporated into and made a part of this Agreement.
Borrower's covenant contained in the preceding sentence shall
survive the termination, satisfaction, cancellation or
modification of the SWIB Documents or any of the covenants
contained therein.
O. Borrower shall not make advances to its customers to
permit its customers to meet their debt service obligations owed
to Borrower, nor shall Borrower capitalize any interest payments
owed to Borrower from its customer.
9. SECURITY: As security for the repayment of the Credit
Facility, and any and all other loans to or Obligations of Borrower
hereunder (other than obligations to Bank acting in its capacity as a
Limited Lender), including any and all extensions and renewals of the
foregoing:
A. Borrower has granted to Bank a security interest in
all of Borrower's general intangibles, accounts, contract
rights, chattel paper and instruments, and Borrower's books and
records pertaining to any of the foregoing, whether now owned or
hereafter acquired, and all proceeds and products of the
foregoing. The aforesaid security interest shall be a first and
paramount lien on the foregoing collateral, subject to, and, on
the terms set forth in the Intercreditor Agreement, on an equal
priority with, the security interest of the Additional Lenders,
all as provided in the General Security Agreement between
Borrower and Bank dated as of March 26, 1993, as the same has
and may be amended from time to time (the "Security Agreement");
provided, however, the aforesaid security interest in Third
Party Loans constituting the Limited Lenders' Collateral shall
be subordinate to the security interests of the Limited Lenders.
Bank's rights with respect to its security interest in the
aforesaid property will be subject to the terms and conditions
of the Security Agreement. Borrower specifically acknowledges
and agrees that the payment of the Obligations is secured by all
security interests, mortgages, pledges and hypothecations
previously or hereafter granted by Borrower in favor of Bank or
in favor of the Collateral Agent for the benefit of Bank,
including without limitation, the Security Agreement.
B. Borrower shall execute and deliver to the Collateral
Agent on behalf of Bank and the Additional Lenders, at any time
or times at the request of Bank or the Collateral Agent, all
financing statements, security agreements, assignments, letters
of authority, pledges, notices and other agreements, instruments
and documents which Bank may request in a form satisfactory to
it, to further evidence, perfect and maintain the security
interests and liens granted or to be granted to Bank in
aforesaid collateral and to fully consummate all of the
transactions contemplated hereunder and under any other
agreement, instrument or documents hereafter executed by
Borrower and delivered to Bank.
Without limiting the obligations of Borrower pursuant to
the foregoing provisions and except as to Third Party Loans
constituting Limited Lenders' Collateral, Borrower shall
immediately endorse to the order of and deliver to the
Collateral Agent all promissory notes or other instruments
evidencing Third Party Loans heretofore or hereafter made by
Borrower and shall assign and deliver to such Collateral Agent
any and all mortgages, security agreements, and other documents
evidencing or securing such Third Party Loans.
10. DEFAULT: Bank may, at its option, upon the occurrence of
any of the following events (each an "Event of Default"), without prior
notice to Borrower, immediately terminate Borrower's right to receive
Advances under this Agreement and immediately declare the outstanding
balance of the Note, together with all interest accrued thereon, to be
immediately due and payable, without notice of any kind and
notwithstanding anything to the contrary herein contained. The following
are Events of Default:
A. Any representation or warranty made by Borrower in
this Agreement, or in any certificate of Borrower furnished to
Bank hereunder, shall prove to have been incorrect in any
material respect as of the time when made;
B. If Borrower shall fail to pay any interest or
principal under the Credit Facility when due hereunder, or fail
to pay when due any principal or interest on any of its other
indebtedness, if any, to Bank, whether at maturity or by
acceleration or otherwise, and such failure shall continue
uncured for a period of five (5) days after the applicable due
date;
C. Borrower shall default in the performance or
observance of any covenant or agreement contained in this
Agreement or in any other agreement between Borrower and Bank,
provided, however, that a breach in the performance or
observance of an affirmative covenant or agreement contained in
section 7 of this Agreement shall only constitute a default if
the breach remains uncured for a period of twenty (20) days
after written notice thereof from Bank to Borrower;
D. Borrower shall:
(1) Apply for or consent to the appointment of a
receiver, trustee or liquidator of Borrower or of all
or substantial part of the assets of Borrower,
(2) Be unable to, or admit in writing its
inability to, pay its debts as they mature,
(3) Make a general assignment for the benefit of
creditors,
(4) Be adjudicated a bankrupt or insolvent,
(5) File a voluntary petition in bankruptcy or a
petition or an answer seeking reorganization or an
arrangement with creditors or to take advantage of any
insolvency law, or an answer admitting the material
allegations of a petition filed against Borrower in
any bankruptcy, reorganization or insolvency
proceeding, or
(6) Corporate action shall be taken by Borrower
for the purpose of effecting any of the foregoing;
E. A petition for an order, judgment or decree shall be
filed, without the application, approval or consent of Borrower,
with any court of competent jurisdiction, seeking reorganization
of Borrower, or the appointment of a receiver, trustee or
liquidator of Borrower or of all or a substantial part of the
assets of Borrower, and such petition shall remain undismissed
for any period of sixty (60) days;
F. Borrower shall default in the payment of principal or
interest on any obligation (other than the Credit Facility) for
borrowed money beyond any period of grace provided with respect
thereto or in the performance of any other agreement, term or
condition contained therein or in any agreement or security
interest relating to any such obligation beyond any period of
grace provided with respect thereto, if the effect of such
default is to cause or permit the holder or holders of such
obligation (or a trustee or agent on behalf of such holder or
holders) to cause such obligation to become due prior to its
stated maturity;
G. A final judgment which, together with other
outstanding final judgments against it, exceeds an aggregate of
Fifty Thousand Dollars ($50,000.00) shall be entered against
Borrower and remain outstanding and unsatisfied or unstayed
after sixty (60) days from the date of entry thereof, unless an
appeal has been taken and perfected within the time provided by
law and suitable bond has been provided to stay execution of
such judgment; or
H. Borrower shall cease to be a Small Business Investment
Company licensed pursuant to the rules and regulations of the
SBA, or the SBA shall have instituted formal proceedings to
revoke or cancel Borrower's license (either of such events to be
hereinafter referred to as an "SBA Termination Event");
provided, however, that if the Borrower shall give notice to the
Bank of the occurrence of an SBA Termination Event within ten
(10) days after the occurrence thereof, then such SBA
Termination Event shall constitute an event of default hereunder
only upon the expiration of ninety (90) days after the
occurrence of such SBA Termination Event. The Bank shall have
no obligation to make any advances to Borrower under the Credit
Facility after the occurrence of an SBA Termination Event; or
I. Either of the following shall occur:
(1) Bando McGlocklin Capital Corporation
("BMCC") shall transfer, sell, pledge or hypothecate
all or any portion of the issued and outstanding stock
of Borrower (of any class or type) owned by BMCC from
time to time; or
(2) Except for the issued and outstanding stock
of Borrower owned by BMCC, if at any time more than
thirty percent (30%) of the issued and outstanding
stock of Borrower, of any class or type, shall be
owned by any one person or entity or Affiliate
thereof.
In the event of any occurrence of any event of default, Borrower
shall pay all Bank's Expenses which may be incurred by Bank with
respect thereto, including reasonable attorneys' fees, and all
such sums shall be and become part of the Obligations pursuant
to this Agreement. In addition to and not in lieu of any other
right or remedy it may have at any time, Bank at any time and
from time to time at its election, may (but it shall not be
required to) do or perform or comply with or cause to be done or
performed or complied with anything which Borrower may be
required to do or comply with under this Agreement if Borrower
shall fail to do so; Borrower shall reimburse Bank upon demand
for any cost or expense Bank may pay or incur in such respect,
together with interest thereon at the Default Rate of interest
set forth herein for the Credit Facility from the date of such
demand until paid. The failure of Bank at any time or from time
to time to exercise any right or remedy, whether arising from or
by virtue of any event of default or otherwise, shall not
constitute a waiver of any such right or remedy and shall not
impair the right of Bank to exercise such right or remedy or any
other right or remedy thereafter or to insist upon strict
performance. No waiver of any right or remedy by Bank shall be
valid or effective unless made in writing and signed by an
officer of Bank. Any effective waiver of any right or remedy
shall not be deemed to constitute a waiver of any other right or
remedy then existing or which may thereafter arise or accrue.
Upon the occurrence of any Event of Default, and pursuant to the
provisions of this paragraph, Bank may sue to enforce the
obligations of Borrower pursuant to this Agreement.
Presentment, demand, protest and notice of every kind are hereby
expressly waived.
11. CONDITIONS OF DISBURSEMENT: Bank shall be under no
obligation to make any Advances under the Credit Facility pursuant to this
Agreement unless the following conditions shall have been fulfilled:
A. The representations and warranties of Borrower
contained herein shall be true at the time of the initial
Advance and at the time of each subsequent Advance under this
Agreement as though such representations and warranties were
made at such time.
B. Borrower shall have performed and complied with all
agreements and conditions required by this Agreement to be
performed or complied with by it.
C. Prior to the initial advance under this Agreement
Borrower shall have delivered to Bank an opinion in writing of
Borrower's legal counsel, Foley & Lardner, dated on or after the
date of this Agreement, to the effect that (i) Borrower is a
corporation validly existing under the laws of the State of
Wisconsin, and has the corporate power and authority to enter
into this Agreement and to make borrowings and execute and
deliver the notes as provided for herein; (ii) the making of
this Agreement and compliance with the terms hereof by Borrower
and the execution and delivery of the Note pursuant hereto do
not conflict with or contravene any provision of the Articles of
Incorporation, or By-Laws of Borrower, or any material
indenture, contract or agreement of which such counsel has
knowledge, to which Borrower is a party or to which it is
subject (or that any such contravention has been appropriately
waived), or, to the extent of the business of the Borrower of
which such counsel has knowledge, any statute, rule or
regulation binding upon Borrower; (iii) all corporate action
necessary to authorize Borrower to enter into this Agreement, to
perform its obligations hereunder, and to execute and deliver
any and all documents necessary to comply with the provisions of
this Agreement has been taken; (iv) the obtaining of the Credit
Facility hereunder has been authorized and approved by all
necessary corporate action; (v) this Agreement and Note have
been duly executed by the Borrower; (vi) this Agreement, the
Note, and the Security Agreement referred to in this Agreement,
constitute the legal, valid and binding obligations of Borrower
and are enforceable against Borrower in accordance with their
terms, subject to customary bankruptcy exceptions; (vii) no
consent of any public body, agency, commission or board is
necessary to the making and assumption of obligations hereunder
by Borrower; and (viii) so far as it is known to such counsel
there is no material litigation, and there are no proceedings by
any public body, agency, or authority, pending or threatened
against Borrower.
D. Borrower shall deliver to Bank, Firstar Trust
Company's acknowledgment of all collateral in Firstar Trust
Company's possession providing security for Borrower's
obligations to Bank.
E. Prior to the initial Advance under this Agreement,
Borrower shall furnish Bank with certified resolutions of its
Board of Directors authorizing its (i) entry into this Agreement
and performance of the covenants contained herein, (ii) the
issuance of the Note and (iii) the execution and delivery of any
and all other documents, agreements or instruments reasonably
requested by Bank.
F. Borrower shall furnish Bank with a certificate of
incumbency with respect to the persons authorized to execute
this Agreement, the Note, and all other documents to be executed
in connection with the transactions which are the subject of
this Agreement.
G. Prior to the initial Advance under this Agreement,
Borrower shall deliver to Bank copies of all agreements between
Borrower and the SBA relating to the SBA's guarantee of
obligations of Borrower, together with copies of all outstanding
debentures or other evidence of debt issued by Borrower and
guaranteed by the SBA.
H. Prior to the initial Advance hereunder, the Bank and
the parties to the Intercreditor Agreement shall have executed
an amendment to the Intercreditor Agreement in form and
substance satisfactory to the Bank, and copies of all such
agreements, in form and substance acceptable to Bank, shall have
been delivered to Bank.
12. MISCELLANEOUS.
A. The provisions of this Agreement shall inure to the benefit
of and be binding upon any successor to any of the parties hereto and
shall extend and be available to any holder of the Note and renewals
thereof.
Borrower shall not assign or attempt to assign its rights under
this Agreement. Bank shall have the right to assign, transfer, sell,
negotiate, pledge or otherwise hypothecate this Agreement and any of its
rights and security hereunder, including the Note and any other Loan
Document to any affiliate of Bank or to any bank or other entity which in
Bank's good faith judgment has the capacity to perform Bank's obligations
hereunder. Borrower hereby agrees that all of the rights and remedies of
Bank in connection with the interest so assigned shall be enforceable
against Borrower by such assignee with the same force and effect and to
the same extent as the same would have been enforceable by Bank but for
such assignment. Borrower agrees that Bank shall have the right to sell
participations in the Credit Facility without the consent of Borrower.
Notwithstanding Bank's participation of any part of the Credit Facility,
Bank shall remain responsible for the performance of all its obligations
hereunder.
B. No failure on the part of Bank to exercise, and no delay in
exercising any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise by Bank of any right hereunder
preclude any other or future exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
C. In the event that any date provided herein for any payment
by Borrower shall not be a Business Day, such payment date shall be deemed
to be the next following Business Day.
D. All representations and warranties made herein shall
survive the extension of any Advance under this Agreement and the
execution and the delivery of the Note or renewals thereof.
E. All notices, statements, requests and demands herein
provided for shall be deemed to have been given or made when deposited in
the mails, postage prepaid, or delivered to a telegraph company, charges
prepaid, in the case of Borrower, when addressed to Borrower, 13555
Bishops Court, Suite 205, Brookfield, Wisconsin 53005, Attention: George
R. Schonath, Chairman, and in the case of Bank, at 201 West Wisconsin
Avenue, Milwaukee, Wisconsin 53259, Attention: Dennis Bowgren, Vice
President; or in such other manner, as to any party hereto, as such shall
designate in a written notice to the other party hereto.
F. This Agreement shall be deemed to be a contract made under
the laws of the State of Wisconsin and shall be construed and enforced in
accordance with the laws of said State.
G. Section headings in this Agreement and the other Loan
Documents are for convenience of reference only, and shall not govern the
interpretation of any of the provisions of this Agreement and the other
Loan Documents.
H. This Agreement and all other agreements referred to herein
or delivered in connection herewith shall constitute the entire agreement
between the parties relating to the subject matter hereof, shall rescind
all prior agreements and understandings between the parties hereto
relating to the subject matter hereof, and shall not be changed or
terminated orally.
I. All representations, warranties, and covenants made by
Borrower under this Agreement or any other Loan Document shall be
considered to have been relied upon by Bank and shall survive the delivery
to Bank of the Note and the making of the Loan herein contemplated
regardless of any investigation made by Bank or on its behalf.
J. Any provision in this Agreement or any other Loan Document
that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative,
unenforceable, or invalid without affecting the remaining provisions in
that jurisdiction or the operation, enforceability, or validity of that
provision in any other jurisdiction, and to this end the provisions of all
Loan Documents are declared to be severable.
K. Borrower hereby irrevocably submits to the non-exclusive
jurisdiction of any United States Federal or Wisconsin state court sitting
in Milwaukee County, Wisconsin, in any action or proceeding arising out of
or relating to this Agreement, the Note or any other Loan Document and
Borrower hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in any such court and
irrevocably waives any objection it may now or hereafter have as to the
venue of any such suit, action or proceeding brought in such a court or
that such court is an inconvenient forum. Nothing herein shall limit the
right of Bank to bring proceedings against Borrower in the courts of any
other jurisdiction. Any judicial proceeding by Borrower against Bank or
any affiliate of Bank involving, directly or indirectly, any matter in any
way arising out of, related to, or connected with this Agreement, the Note
or any other Loan Document shall be brought only in a court in Milwaukee
County, Wisconsin.
L. BORROWER AND BANK EACH HEREBY WAIVE TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS AGREEMENT, THE NOTE OR ANY OTHER LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
M. This Agreement 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 Agreement by signing any
such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
BANDO McGLOCKLIN SMALL
BUSINESS INVESTMENT
CORPORATION
By: _________________________________
George R. Schonath,
Chairman of the Board and
Chief Executive Officer
By: _________________________________
Jon P. McGlocklin, President
FIRST BANK (N.A.)
By: _________________________________
Dennis Bowgren,
Vice President