FIRST AMENDMENT TO FINANCING AGREEMENT
THIS FIRST AMENDMENT TO FINANCING AGREEMENT (this "Amendment"),
made and entered into as of Februrary 19, 1998, is by and between is by and
between TECH SQUARED INC., a Minnesota corporation (the "Borrower"), and
FIRST BANK NATIONAL ASSOCIATION, a National Banking Association (the
"Lender").
RECITALS
1. The Lender and the Borrower entered into a Financing Agreement
dated as of June 27, 1997 (the "Financing Agreement"); and
2. The Borrower desires to amend certain provisions of the
Agreement, and the Lender has agreed to make such amendments, subject to the
terms and conditions set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby covenant
and agree to be bound as follows:
SECTION 1. CAPITALIZED TERMS. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to them in the
Financing Agreement, unless the context shall otherwise require.
SECTION 2. AMENDMENTS. The Financing Agreement is hereby amended as
follows:
2.1 THE ADVANCES. Section 2.1 of the Financing Agreement is amended
in its entirety as follows:
Section 2.1 THE ADVANCES. On the terms and subject to the
conditions hereof, at the Borrower's request, the Lender, in its absolute and
sole discretion and without any commitment to do so, may make the following
Advances available to the Borrower:
2.1(a) up to seventy-five percent (75%) of the net amount of
Eligible Accounts which are listed in the Borrower's most current Borrowing
Base Certificate and which are deemed eligible for advances by the Lender, or
such greater or lesser percentage at the Lender's sole and absolute discretion
(the "Accounts Advances") not to exceed however the maximum amount of Two
Million Five Hundred Thousand and no/100 Dollars ($2,500,000);
2.1(b) up to thirty percent (30%) of the net amount of Eligible
Inventory of finished goods which is listed in the Borrower's most current
Borrowing Base Certificate and which is deemed eligible for advances by the
Lender, or such greater or lesser percentage at the Lender's sole and absolute
discretion, not to exceed a maximum amount of $500,000 (the "Inventory
Advances");
Notwithstanding the preceding clauses 2.1(a),and 2.1(b), the maximum aggregate
amount advanced from time to time shall not exceed $2,500,000.
At the Borrower's request, Lender may in its sole and absolute discretion issue
letters of credit, not to exceed a maximum amount of $400,000 in the aggregate.
Any such issued letter of credit shall reduce the available amount of Accounts
Advances by the amount of any issued letter(s) of credit. Borrower agrees to
pay Lender any amounts paid by Lender on any such letters of credit. In
addition to the Letter of Credit Fee, Borrower also agrees to pay Lender's
customary charges for issuing such letters of credit and to reimburse Lender
for any cost and expenses it incurs in connection with any such guarantee.
Loans for additional sums requested by the Borrower may be made at the Lender's
sole discretion based upon the Lender's valuation of the Borrower's collateral
or other factors. The Borrower acknowledges and agrees that the Lender may
from time to time, for the Lender's convenience, segregate or apportion the
Borrower's collateral for purposes of determining the amounts and maximum
amounts of Advances which may be made hereunder. Nevertheless, the Lender's
security interest in all such collateral, and any other collateral rights,
interests and properties which may now or hereafter be available to the Lender,
shall secure and may be applied to the payment of any and all Advances and
other indebtedness secured by the Lender's security interest, in any order or
manner of application and without regard to the method by which the Lender
determines to make Advances hereunder.
2.2 LETTER OF CREDIT FEE. A new Section 2.9 of the Financing
Agreement is added to provide as follows:
Section 2.9 LETTER OF CREDIT FEE. The Borrower shall pay to the Lender
an annual fee in an amount equal to one percent (1%) of the maximum aggregate
amount of the letters of credit ($4,000) (the "Letter of Credit Fee").
Borrower has paid $2,000 of the first year's Letter of Credit Fee and the
remaining Letter of Credit fee shall be payable on February 19, 1998.
Subsequent Letter of Credit Fees shall be payable on each anniversary of the
date of this Agreement.
SECTION 3. EFFECTIVENESS OF AMENDMENTS. The amendments contained in
this Amendment shall become effective upon delivery by the Borrower of, and
compliance by the Borrower with, the following:
3.1 This Amendment, duly executed by the Borrower.
3.2 A copy of the resolutions of the Board of Directors of the
Borrower authorizing the execution, delivery and performance of this
Amendment certified as true and accurate by its Secretary or Assistant
Secretary, along with a certification by such Secretary or Assistant
Secretary (i)certifying that there has been no amendment to the Articles
of Incorporation or Bylaws of the Borrower since true and accurate copies
of the same were delivered to the Lender with a certificate of the
Secretary of the Borrower dated June 27, 1998, and (ii) identifying each
officer of the Borrower authorized to execute this Amendment and any other
instrument or agreement executed by the Borrower in connection with this
Amendment, and certifying as to specimens of such officer's signature and
such officer's incumbency in such offices as such officer holds.
3.3 A consent and reaffirmation by the Guarantor.
3.4 The Borrower shall have fully paid the first year's Letter of
Credit Fee.
2
SECTION 4. REPRESENTATIONS; ACKNOWLEDGMENTS. The Borrower hereby
represents that on and as of the date hereof and after giving effect to this
Amendment (a)all of the representations and warranties contained in the
Financing Agreement, and in any and all other Loan Documents of the Borrower,
are true, correct and complete in all respects as of the date hereof as though
made on and as of such date, except for changes permitted by the terms of the
Financing Agreement, and (b) the Borrower is in compliance with all covenants
and agreements of the Borrower as set forth in the Financing Agreement and in
any and all other Loan Documents of the Borrower. The Borrower represents and
warrants that the Borrower has the power and legal right and authority to enter
into this Amendment and has duly authorized as appropriate the execution and
delivery of this Amendment and other agreements and documents executed and
delivered by the Borrower in connection herewith or therewith by proper
corporate action. The Borrower acknowledges and agrees that its obligations to
the Lender under the Financing Agreement exist and are owing without offset,
defense or counterclaim assertable by the Borrower against the Lender. The
Borrower further acknowledges and agrees that its obligations to the Lender
under the Financing Agreement, as amended, constitute "Obligations" within the
meaning of the Security Agreement and are secured by the Security Agreement, as
amended.
SECTION 5. AFFIRMATION, FURTHER REFERENCES. Except as expressly
modified under this Amendment, all of the terms, conditions, provisions,
agreements, requirements, promises, obligations, duties, covenants and
representations of the Borrower under the Financing Agreement, the Security
Agreement, and any and all other Loan Documents entered into with respect to
the obligations under the Financing Agreement are incorporated herein by
reference and are hereby ratified and affirmed in all respects by the Borrower.
All references in the Financing Agreement to "this Agreement," "herein,"
"hereof," and similar references, and all references in the other Loan
Documents to the "Agreement," shall be deemed to refer to the Agreement, as
amended by this Amendment.
SECTION 6. MERGER AND INTEGRATION, SUPERSEDING EFFECT. This
Amendment, from and after the date hereof, embodies the entire agreement and
understanding between the parties hereto and supersedes and has merged into it
all prior oral and written agreements on the same subjects by and between the
parties hereto with the effect that this Amendment, shall control with respect
to the specific subjects hereof and thereof.
SECTION 7. SEVERABILITY. whenever possible, each provision of this
Amendment and any other statement, instrument or transaction contemplated
hereby or thereby or relating hereto or thereto shall be interpreted in such
manner as to be effective, valid and enforceable under the applicable law of
any jurisdiction, but, if any provision of this Amendment or any other
statement, instrument or transaction contemplated hereby or thereby or relating
hereto or thereto shall be held to be prohibited, invalid or unenforceable
under the applicable law, such provision shall be ineffective in such
jurisdiction only to the extent of such prohibition, invalidity or
unenforceability, without invalidating or rendering unenforceable the remainder
of such provision or the remaining provisions of this Amendment or any other
statement, instrument or transaction contemplated hereby or thereby or relating
hereto or thereto in such jurisdiction, or affecting the effectiveness,
validity or enforceability of such provision in any other jurisdiction.
SECTION 8. SUCCESSORS. This Amendment shall be binding upon the
Borrower and the Lender and their respective successors and assigns, and shall
inure to the benefit of the Borrower and the Lender and the successors and
assigns of the Lender.
SECTION 9. LEGAL EXPENSES. The Borrower agrees to reimburse the
Lender, upon execution of this Amendment, for all reasonable out-of-pocket
expenses (including attorneys'
3
fees and legal expenses of Xxxxxx & Xxxxxxx, counsel for the Lender) incurred
in connection with the Financing Agreement, including in connection with the
negotiation, preparation and execution of this Amendment and all other
documents negotiated, prepared and executed in connection with this
Amendment, and in enforcing the obligations of the Borrower under the
Financing Agreement, as amended by this Amendment, which obligations of the
Borrower shall survive any termination of the Financing Agreement.
SECTION 10. HEADINGS. The headings of various sections of this
Amendment have been inserted for reference only and shall not be deemed to be a
part of this Amendment.
SECTION 11. COUNTERPARTS. This Amendment may be executed in several
counterparts as deemed necessary or convenient, each of which, when so
executed, shall be deemed an original, provided that all such counterparts
shall be regarded as one and the same document, and either party to this
Amendment may execute any such agreement by executing a counterpart of such
agreement.
SECTION 12. GOVERNING LAW. The Amendment Documents shall be
governed by the internal laws of the State of Minnesota, without giving effect
to conflict of law principles thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date and year first above written.
TECH SQUARED INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Title: CEO Chairman
---------------------------------
FIRST BANK NATIONAL ASSOCIATION
By: /s/ [ILLEGIBLE]
-----------------------------------
Title: Officer
---------------------------------
4
CERTIFICATE OF SECRETARY OF
TECH SQUARED INC.
I, _________________________ , hereby certify to FIRST BANK NATIONAL
ASSOCIATION that I am the Secretary of Tech Squared Inc., a Minnesota
corporation (the "Company") and that the following resolutions have been
duly adopted by the Board of Directors of the Company in a manner
authorized by the laws of the State of Minnesota:
"WHEREAS, the Company wishes to borrow money from FIRST BANK
NATIONAL ASSOCIATION (the "Lender"), and for that purpose intends to
enter into a First Amendment to Financing Agreement with the Lender.
RESOLVED, the Company shall enter into a First Amendment to
Financing Agreement with the Lender under which the Company may
obtain advances up to $2,500,000, or such greater or lesser amount in
the Lender's absolute and sole discretion and the President, Vice
President, Secretary or Treasurer of the Company is hereby authorized
at any time and from time to time to execute and deliver to the
Lender such First Amendment to Financing Agreement and any security
agreements, mortgages, subordination agreements, pledge agreements,
assignments of life insurance, reimbursement agreements, or
amendments to any of the foregoing as may be contemplated or required
pursuant to such First Amendment to Financing Agreement or otherwise,
all in such form as such officer may determine and approve (such
determination and approval to be established conclusively by such
officer's execution and delivery of such First Amendment to Financing
Agreement and any such related documents and instruments).
FURTHER RESOLVED, that the President, Vice President, Secretary
or Treasurer of the Company is hereby authorized at any time and from
time to time to sell, assign, transfer, mortgage, create security
interests in and pledge to the Lender the real property, goods,
instruments, documents, securities, chattel paper, accounts, contract
rights and other intangibles and any other property now owned or
hereafter acquired by the Company, either absolutely for such
consideration as such officer may determine to be appropriate or as
security for the payment or performance of any or all debts,
liabilities and obligations of every type and description now or at
any time hereafter owed to the Lender by the Company, on such terms
as such officer may approve, and to do such other acts or things in
connection therewith or pursuant thereto as such officer may
determine to be appropriate (such determination and approval to be
established conclusively by the instrument executed or action taken
by such officer).
FURTHER RESOLVED, it is hereby acknowledged that each and every
note, guaranty, security agreement and other instrument made pursuant
to the foregoing resolutions is and will be made and given for the
corporate purposes of this Company.
FURTHER RESOLVED, the Secretary or Assistant Secretary shall
certify to the Lender the names and signatures of the persons who
presently are duly elected, qualified and acting as the officers
authorized to act under the foregoing resolutions, and the Secretary
or Assistant Secretary shall from time to time hereafter, upon a
change in the facts so certified, immediately certify to the Lender
the names and signatures of the persons then authorized to sign or to
act; the Lender shall be fully protected in relying on such
certificates and on the obligation of the Secretary or an Assistant
Secretary immediately to certify to the Lender any change in any fact
certified, and the Lender shall be indemnified and saved harmless by
the Company from any and all claims, demands, expenses, costs and
damages resulting from or growing out of honoring or relying on the
signature or other authority
(whether or not properly used) of any officer whose name and signature was
so certified, or refusing to honor any signature or authority not so
certified."
I further certify that the foregoing resolutions have not been amended or
revoked and are in full force and effect on the date hereof.
I further certify that the Board of Directors of the Company has, and at
the time of adoption of the foregoing resolutions had, full power and
lawful authority to adopt the foregoing resolutions and to confer the
powers therein granted upon the officers designated, and that such
officers have full power and authority to exercise the same.
I further certify that the Articles of Incorporation and bylaws delivered
to the Lender not been amended since June 27, 1997, and are in full force
and effect on the date hereof.
I further certify that the officers whose names appear below have been
duly elected to and now hold the offices in the Company set forth opposite
their respective names and that the signature appearing opposite the name
of each of such officer is authentic and official:
Name Title Signature
Xxxx Xxxxxxx Chairman, CEO /s/ Xxxx Xxxxxxx
-------------------- ----------------- ---------------------
Xxxxx Xxxxx President, COO /s/ Xxxxx Xxxxx
-------------------- ----------------- ---------------------
-------------------- ----------------- ---------------------
I further certify that shareholder approval of the foregoing resolutions
is not required and said resolutions are effective and binding on the
Company without approval by its shareholders.
Dated March 20, 1998
------------------------
/s/ Xxxx Xxxxxxx
-----------------------------
Secretary, Tech Squared Inc.
/s/ Xxxxx Xxxxx
--------------------------------
Attest by a Director
March ____, 1998
Republic Acceptance Corporation
0000 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Re: Consent to Amendment to Financing Agreement dated as of
February 19, 1998 (the "Amendment") by and between Republic
Acceptance Corporation ("Lender") and TECH SQUARED INC.,
a Minnesota corporation ("Company") and Reaffirmation
of related Undertakings
Ladies and Gentlemen:
This will confirm that:
a) The undersigned hereby consents to the terms of the Amendment and to
the execution and delivery of the Amendment by the Company;
b) The obligations and indebtedness of the Company under the Financing
Agreement dated June 27, 1997 between Lender and the Company, as amended by the
Amendment (collectively, the "Financing Agreement"), constitute the obligations
and indebtedness of the Company within the meaning of, and are guaranteed
pursuant to, that Guaranty of the undersigned dated June 27, 1997 (the
"Guaranty"), and all of the terms, covenants and conditions of the Guaranty
remain in full force and effect.
/s/ Xxxx X. Xxxxxxx
----------------------------------
XXXX X. XXXXXXX
