EXHIBIT 10.13
SECOND AMENDMENT TO
FINANCING AGREEMENT
THIS SECOND AMENDMENT TO FINANCING AGREEMENT (this "Amendment"), made
and entered into as of June 30, 1999, is by and between INSIGNIA SYSTEMS, INC.,
a Minnesota corporation ("Borrower"), and U.S. BANCORP REPUBLIC COMMERCIAL
FINANCE, INC., f/k/a Republic Acceptance Corporation, a Minnesota corporation
(the "Lender").
RECITALS
1. The Lender and the Borrower entered into a Financing Agreement dated
as of December 29, 1997, as amended by that First Amendment to Financing
Agreement dated as of September 30, 1998 (as amended, the "Financing
Agreement");
2. The Borrower and the Lender desire to amend certain provisions of
the Financing Agreement.
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 in its
entirety as follows:
2.1 DEFINITIONS. The definition of Eligible Inventory
contained in Section 1.1 of the Financing Agreement is modified in its
entirety as follows:
"Eligible Inventory": Inventory of the Borrower which
the Lender, in its sole and absolute discretion, deems
eligible for Advances, but which meets the following minimum
requirements: (a) it is owned by the Borrower, is subject to a
first priority perfected
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security interest in favor of the Lender, and is not subject
to any assignment, claim or Lien other than (i) a Lien in
favor of the Lender and (ii) Liens consented to by the Lender
in writing; (b) it consists of raw materials or non-customer
specific finished goods paper stock (not including work in
process and supplies); (c) if held for sale or lease or
furnishing under contracts of service, it is (except as the
Lender may otherwise consent in writing) new and unused; (d)
except as the Lender may otherwise consent, it is not stored
with a bailee, warehouseman or similar party; if so stored
with the Lender's consent, such bailee, warehouseman or
similar party has issued and delivered to the Lender, in form
and substance acceptable to the Lender, such documents and
agreements as the Lender may require, including, without
limitation, warehouse receipts therefor in the Lender's name;
(e) it is not software, or inventory of Impulse or SIGNright
machines; (f) the Lender has determined, in its sole and
absolute discretion, that it is not unacceptable due to age,
type, category, quality and/or quantity; (g) it is not held by
the Borrower on consignment and is not subject to any other
repurchase or return agreement; (h) it is not held by a
customer of the Borrower or any other Person on consignment;
(i) it complies with all standards imposed by any governmental
agency having regulatory authority over such goods and/or
their use, manufacture or sale; and (j) the warranties,
representations and covenants contained in any security
agreement or other agreement of the Borrower with or given to
the Lender relating directly or indirectly to the Borrower's
Inventory are applicable to it without exception.
2.2 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, not
to exceed a maximum amount of $2,350,000 (the "Accounts
Advances");
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2.1(b) up to thirty percent (30%) of the net amount
of Eligible Inventory 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");
2.1(c) Letters of Credit. Until September 1, 2000,
the Lender agrees the Borrower may cause to be issued through
an Affiliate of the Lender, in the sole and absolute
discretion of such Affiliate, standby or documentary letters
of credit, provided, however, that the total amount of all
unexpired letters of credit and unreimbursed draws under
letters of credit (the "LC Obligations") shall not at any time
exceed $240,000 and the total amount of the outstanding
principal balance of the Advances under clauses 2.1(a) and
2.1(b) plus 125% of the LC Obligations (the "Total Revolving
Outstandings") shall not at any time exceed $2,350,000. If
issued, all letters of credit shall be subject to a 1% fee
payable to the issuer, and the Borrower will execute such
applications, security or pledge agreements and other
documents required by Lender's Affiliate and shall pay the
Lender's and such Affiliate's fees and expenses related to
such letters of credit. Each letter of credit shall be for a
period not to exceed one year, but may be renewable annually
for additional one year periods not to exceed three years in
the aggregate. Any draw under a letter of credit may, at the
option of the Lender, be repaid through an Advance, which the
Lender may make, and which the Borrower is obligated to repay,
even though (a) any agreement of the Lender to make Advances
in its sole discretion may have expired or terminated, (b) the
Borrower is at that time the debtor in any bankruptcy,
reorganization or insolvency proceeding, or (c) the Total
Revolving Outstandings exceed the availability under the most
recent Borrower Base Certificate or $2,350,000.
The total amounts advanced under Section 2.1(a), 2.1(b) and
2.1(c) is the Facility Amount.
Notwithstanding the previous clauses 2.1(a), 2.1(b)and 2.1(c),
the maximum aggregate amount advanced against all Eligible Accounts and
all Eligible Inventory from time to time shall not exceed $2,350,000.
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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.
2.3 INTEREST RATES AND INTEREST PAYMENTS. Section 2.3 of the
Financing Agreement is amended in its entirety as follows:
Section 2.3 Interest Rates and Interest Payments.
Interest shall accrue on the unpaid balance of the Advances at
a floating rate per annum equal to the sum of the Reference
Rate plus 3% (the "Applicable Rate") and shall be due and
payable monthly in arrears on the last day of each calendar
month; provided, however, that upon the occurrence and during
the continuance of any failure by the Borrower to comply with
any agreement or covenant of the Borrower under any Loan
Document, the unpaid balance of the Advances shall thereafter
bear interest at a floating rate equal to the sum of (a) the
Applicable Rate, plus (b) 2% and shall be due and payable on
demand; and provided further that the minimum amount of
interest due and payable in any month shall not be less than
$7,500.
SECTION 2.4 YEAR 2000. A new Section 5.12 is added to provide
as follows:
Section 5.12 The Borrower has reviewed and assessed
its business operations and computer systems and applications
to address the "year 2000 problem" (that is, computer
applications used by Borrower, directly or indirectly through
third parties, may be unable to properly perform
date-sensitive functions before, during and after January 1,
2000). Borrower reasonably believes that the year 2000 problem
will not result in a material adverse change in Borrower's
business condition (financial or otherwise), operations,
properties or prospects or ability to repay Lender. Borrower
is
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in the process of implementing a plan to remediate year 2000
problems and will complete implementation of such plan with
respect to any material year 2000 problems, and testing
thereof, by September 30, 1999. Borrower agrees that this
representation will be true and correct on and shall be deemed
made by Borrower on each date Borrower requests any advance
under this Agreement or delivers any information to Lender.
Borrower will promptly deliver to Lender such information
relating to this representation and covenant as Lender
requests from time to time.
SECTION 2.5 TERMINATION. Article VII of the Financing
Agreement is amended in its entirety to provide as follows:
ARTICLE VII
TERMINATION BY BORROWER
This agreement shall continue in effect until terminated upon not less
than 30 days' prior written notice delivered by the Borrower to Lender by
certified mail. Termination shall not impair or affect the Lender's rights
existing as of the time notice of Termination is given. Borrowers obligations
with respect to payment of any Termination fee shall be fixed and owing as of
date such notice is given and not when such notice becomes effective.
In the event that the Borrower gives notice to the Lender of the
termination of this Agreement under Section VII hereof at any time prior to
September 1, 2000, the Borrower will pay to the Lender a prepayment charge, as
additional compensation for the Lender's costs of entering into this Agreement,
in the amount of (i) 3% of the Facility Amount if the notice of termination
occurs prior to September 1, 1999; and (ii) 2% of the Facility Amount if the
notice of termination occurs after September 1, 1999, but before September 1,
2000, unless the outstanding amount of Borrower's obligations hereunder are
refinanced in full by an affiliate of U.S. Bancorp.
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 each of the Borrower
authorizing the execution, delivery and performance of this Amendment
certified as true and accurate by its Secretary, along with a
certification by such Secretary (i) certifying that there has been no
amendment to the Articles of Incorporation or Bylaws of the
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Borrower since true and accurate copies of the same were delivered to
the Lender with a certificate of the Secretary of the Borrower dated
December 29, 1997, 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.
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, or which relates to changes in the financial condition of
the Borrower that are reflected in the financial statements furnished to Lender
or in the nature of prospects in the Borrower's business that have been
delivered to Lender, 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
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
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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' 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.
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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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date and year first above written.
INSIGNIA SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Its: VP Finance
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U.S. BANCORP REPUBLIC COMMERCIAL
FINANCE, INC.
By: /s/Xxxxx Xxxxxx
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Its: Vice President
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