Exhibit 4.5
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 FIRSTAR BANK MILWAUKEE,
N.A., a national banking association ("Bank") and BANDO McGLOCKLIN SMALL
BUSINESS INVESTMENT CORPORATION, a Wisconsin corporation ("Borrower").
WITNESSETH:
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:
AGREEMENTS
1. DEFINITIONS. As used in this Agreement, the listed terms
are defined as follows:
Adjusted Tangible Assets shall means 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
Prime Rate applicable to such Advance plus 2.0% per annum and such rate
shall change on each date that the Prime 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.
Prime Rate shall mean at any time, and from time to time,
the rate of interest then most recently announced by Bank as its "prime
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 from time to time at a fluctuating rate per annum equal to
the Prime Rate and such rate shall change on each date that such Prime
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 telephonic 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, 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 for each month shall be
1/12th of 1/2% of $12,500,000, payable in advance on the 27th day of the
preceding month.
B. 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. Copies of the documents and agreements evidencing the
Commercial Paper Relationship currently provided by Bank are attached
hereto as Exhibit B.
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 its primary operating account
at Bank.
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 First Bank (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 First Bank, (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 Additional 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 customers.
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 loan 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, Attn: George R.
Schonath, Chairman, and in the case of Bank, at 777 East Wisconsin Avenue,
Milwaukee, Wisconsin 53202, Attention: Jon B. Beggs, 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
FIRSTAR BANK MILWAUKEE, N.A.
By: _________________________________
Jon B. Beggs, Vice President