Exhibit 4.6
FIRST AMENDMENT TO AMENDED AND
RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT,
dated as of October 31, 1996, amends the Amended and Restated Loan
Agreement dated as of June 28, 1996,(the "Loan Agreement"), by and between
FIRSTAR BANK MILWAUKEE, N.A. ("Bank") and BANDO XxXXXXXXXX SMALL BUSINESS
INVESTMENT CORPORATION ("Borrower").
RECITAL
Bank and Borrower desire to amend the Loan Agreement as provided
below.
AGREEMENTS
In consideration of the Recital and the agreements contained
herein and in the Loan Agreement, Bank and Borrower agree as follows:
1. Definitions and References. Capitalized terms used herein
shall have the meanings set forth in the Loan Agreement. All references
to the Loan Agreement contained in the Note or Loan Documents shall mean
the Loan Agreement as amended by this First Amendment.
2. Amendments. The Loan Agreement is amended as follows:
(a) The definition of "Maturity Date" contained in
section 1 thereof is amended by deleting the date "October 31, 1996"
contained therein and substituting the date "October 31, 1997" in its
place.
(b) Section 7.L. is created to read as follows:
L. Borrower shall promptly notify Bank upon
Borrower's obtaining all necessary Securities & Exchange
Commission and shareholder approvals relating to Borrower's
desire to (1) deregister its status as a "small business
investment company" under the Investment Company Act of 1940,
(2) surrender its U.S. Small Business Administration small
business investment company license and (3) conduct its
operations as a real estate investment trust under Section 856
of the Internal Revenue Code of 1986, as amended, all of which
are to be effective as of the close of Borrower's business on
December 31, 1996. Bank acknowledges that Borrower is currently
in the process of obtaining all such necessary approvals and
Bank acknowledges that upon satisfactory review by Bank of all
documentation relating to the deregistration of Borrower and the
execution of all documentation reasonably deemed necessary by
Bank to preserve Bank's rights against Borrower (including,
without limitation, documentation relating to existing interest
rate swap agreements), Bank shall not unreasonably withhold its
consent, which consent is required under the Loan Agreement, to
the transactions described in this paragraph.
3. Effectiveness of this Amendment. This Amendment shall
become effective upon execution and delivery hereof by Borrower and Bank
and receipt by Bank of evidence satisfactory to Bank that First Bank
(N.A.) and LaSalle National Bank have renewed and extended their
respective credit facilities to Borrower through at least October 31,
1997.
4. Representations and Warranties. Borrower represents and
warrants to Bank that:
(a) The execution and delivery of this First Amendment are
within its corporate power, have been duly authorized by all proper
corporate action on the part of Borrower, are not in violation of any
existing law, rule or regulation of any governmental agency or authority,
and order or decision of any Court, the Articles of Incorporation or By-
Laws of Borrower or the terms of any agreement, restriction of undertaking
to which Borrower is a party or by which it is bound, and do not require
the approval or consent of the shareholders of Borrower, any governmental
body, agency or authority or any other person or entity.
(b) The representations and warranties contained in the
Loan Agreement are correct and complete as of the date of this First
Amendment and no condition or event exists or act has occurred that, with
or without the giving of notice or the passage of time, would constitute
an Event of Default under the Loan Agreement.
5. Expenses and Fees. Borrower shall reimburse Bank for all
out-of-pocket expenses incurred by Bank and all reasonable legal fees and
expenses incurred by Bank in connection with the preparation, negotiation,
execution and administration of this First Amendment. Bank may debit any
account of Borrower maintained at Bank for the full amount of all such
fees and expenses.
6. Full Force and Effect. Except as amended hereby, the Loan
Agreement shall remain in full force and effect.
7. Counterparts. This First Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one
agreement, and any of parties hereto may execute this First Amendment by
signing any such counterpart.
FIRSTAR BANK MILWAUKEE, N.A.
BY _________________________________
Xxx X. Xxxxx, Vice President
BANDO XxXXXXXXXX SMALL BUSINESS
INVESTMENT CORPORATION
BY _________________________________
Its ___________________________
BY _________________________________
Its ___________________________
