EXHIBIT 10.1.2
AMENDMENT NO. 1 TO FINANCING AGREEMENTS
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P.N.Y. ELECTRONICS, INC.
200 Anderson Avenue
Moonachie, New Jersey 07074
July 3, 1996
CoreStates Bank, N.A.
1339 Chestnut Street
Philadelphia, Pennsylvania 19107
Congress Financial Corporation
1133 Avenue of the Americas
New York, New York 10036
Gentlemen:
CoreStates Bank, N.A. ("Lender"), Congress Financial Corporation, as agent
for Lender (in such capacity, "Agent") and P.N.Y. Electronics, Inc. ("Borrower")
have entered into certain financing arrangements pursuant to the Amended and
Restated Loan Agreement, dated February 23, 1996, by and among Lender, Agent and
Borrower (the "Loan Agreement") and all agreements, documents and instruments at
any time executed and/or delivered in connection therewith or related thereto
(together with the Loan Agreement as the same are amended hereby, and as the
same may be further amended, modified, supplemented, extended, renewed, restated
or replaced, collectively, the "Financing Agreements").
Borrower intends to pay interest due on December 31, 1995 with respect to
the Subordinated Note, dated August 3, 1995, issued by Borrower payable to the
order of Gadi Cohen in the original principal amount of $15,000,000 (the "Note")
and the Subordinated Note, dated August 3, 1995, issued by Borrower payable to
the order of Gadi Cohen in the original principal amount of $5,140,000 (subject
to adjustment as provided therein) to the extent of the incremental federal and
state income tax liabilities incurred by Gadi Cohen for the tax year of 1995 due
to the constructive receipt of such interest by Gadi Cohen (the "Interest
Payment") as set forth in the letter, dated May 21, 1996, from Gadi Cohen to
Borrower (the "Interest Payment Letter").
In addition, pursuant to the Exchange Agreement, dated as of May 31, 1996,
by and between Ruth Cohen and Borrower (the "Exchange Agreement"), Ruth Cohen,
as holder of the Note, plans
to surrender the Note to Borrower for cancellation in exchange for fifteen
shares of Series B Cumulative Redeemable Preferred Stock of Borrower (the
"Exchange Transaction").
Borrower has requested that Lender and Agent (a) consent to the payment of
the Interest Payment to Gadi Cohen pursuant to and in accordance with the
Interest Payment Letter, (b) consent to the Exchange Transaction pursuant to and
in accordance with the Exchange Agreement and (c) agree to certain amendments to
the Financing Agreements in connection with the foregoing. Subject to the terms
and conditions contained herein, Lender and Agent are willing to consent to such
matters and agree to such amendments. By this Amendment, Lender, Agent and
Borrower desire and intend to evidence such consent and amendments.
In consideration of the foregoing and the agreements and covenants
contained herein, the parties hereto agree as follows:
1. Definitions.
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(a) Amendments to Definitions.
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(i) All references to the term "Eligible Accounts" in the Loan
Agreement and any of the other Financing Agreements shall be deemed and each
such reference is hereby amended to mean Accounts created by Borrower in the
ordinary course of business arising out of Borrower's sale of goods or rendition
of services, which are and at all times shall continue to be acceptable to Agent
in all respects. Standards of eligibility may be fixed and revised from time to
time solely by Agent in Agent's exclusive judgment exercised in good faith. In
determining eligibility, Agent may, but need not, rely on agings, reports and
schedules of Accounts furnished by Borrower, but reliance by Agent thereon from
time to time shall not be deemed to limit Agent's right to revise standards of
eligibility at any time as to both Borrower's present and future Accounts. In
general, an Account shall not be deemed eligible unless: (a) the Account Debtor
on such Account is and at all times continues to be acceptable to Agent, (b)
such Account complies in all respects with the representations, covenants and
warranties contained in the Accounts Agreement and herein, (c) no more than
ninety (90) days have elapsed since the original invoice date of such Account,
(d) as to Foreign Accounts, either, at Agent's option, (1) the Account Debtor
has delivered to Borrower an irrevocable letter of credit issued or confirmed by
a bank satisfactory to Agent, sufficient to cover such Account, in form and
substance satisfactory to Agent, and, if required by Agent the original of such
letter of credit has been delivered to Agent or to Agent's designee and the
issuer thereof notified of the assignment of the proceeds of such letter of
credit to Agent or (2) such Account is subject to credit insurance payable to
Agent issued by an insurer and on terms and in an amount acceptable to Agent or
(3) such
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Account and the Account Debtor with respect thereto are and continue to
otherwise be acceptable in all respects to Agent in Agent's good faith, and (e)
as to Accounts where the chief executive office of the Account Debtor with
respect to such Accounts is located in Canada, at any time promptly upon
Lender's request, Borrower shall execute and deliver, or cause to be executed
and delivered, such other agreements, documents and instruments as may be
required by Lender to perfect the security interests of Lender in those Accounts
of an Account Debtor with its chief executive office in Canada in accordance
with the applicable laws of the Province of Canada in which such chief executive
office is located and take or cause to be taken such other and further actions
as Lender may request to enable Lender as secured party with respect thereto to
collect such Accounts under the applicable laws of the Province of Canada.
(ii) All references to the term "Foreign Accounts" in the Loan
Agreement and any of the other Financing Agreements shall be deemed and each
such reference is hereby amended to mean any Account at any time owing by an
Account Debtor which: (a) does not maintain its chief executive office in the
United States, Puerto Rico, the U.S. Virgin Islands or Canada, (b) is not
organized under the laws of the United States or any state thereof, Puerto Rico,
the U.S. Virgin Islands or Canada, or (c) is the government of any foreign
country or sovereign state, or of any state, province, municipality or other
political subdivision thereof, or of any department, agency, public corporation
or other instrumentality thereof.
(iii) All references to the term "Subordinated Notes" in the Loan
Agreement and any of the other Financing Agreements shall be deemed and each
such reference is hereby amended to mean solely the Subordinated Note, dated
August 3, 1995, issued by Borrower payable to the order of Shareholder in the
original principal amount of $5,140,000 subject to adjustment as provided
therein, as the same now exists or may be amended, modified, supplemented,
extended, renewed, restated or replaced.
(b) Additional Definitions.
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(i) "Amendment No. 1" shall mean this Amendment No. 1 to Financing
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Agreements by and among Lender, Agent and Borrower, as the same now exists or
may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
(ii) "PNY UK" shall mean PNY Electronics (UK) Limited, a corporation
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organized under the laws of England and a subsidiary of Borrower, and its
successors and assigns.
(iii) "FF" shall mean the legal tender of France.
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(iv) "Series B Preferred Stock" shall mean the shares of Series B
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Cumulative Redeemable Preferred Stock, par value $.01 per share, of Borrower
having the rights and benefits set forth in the Certificate of Designations of
Series B Cumulative Redeemable Preferred Stock of Borrower dated June 13, 1996.
(c) Interpretation. All capitalized terms used herein shall have the
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meanings assigned thereto in the other Financing Agreements, unless otherwise
defined herein.
2. Consent. Subject to the terms and conditions contained herein,
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Congress hereby confirms that it has no objection to (i) the payment by Borrower
of the Interest Payment to Gadi Cohen pursuant to and in accordance with the
Interest Payment Letter and (ii) the Exchange Transaction pursuant to and in
accordance with the Exchange Letter.
3. Subsidiaries. Section 7.1 of the Loan Agreement is hereby deleted in
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its entirety and the following substituted therefor:
"7.1 Subsidiaries. Borrower does not have any Subsidiaries as of the
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date hereof except for PNY France, P.N.Y. Electronics GmbH and PNY UK.
Borrower shall not form or acquire any other Subsidiaries without the prior
written consent of Agent."
4. Indebtedness. The reference to "$20,140,000" contained in Section
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7.2(e) of the Loan Agreement is hereby deleted and the following substituted
therefor: "$5,140,000".
5. Dividends. Section 7.4 of the Loan Agreement is hereby amended by
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adding a new Section 7.4(c) thereto as follows:
"(c) purchase or redeem shares of Series B Preferred Stock of Borrower
with the proceeds from any underwritten public offering of shares of Common
Stock or other equity securities issued by Borrower pursuant to an
effective registration statement under the Securities Act or in connection
with the sale of Borrower in which the shares of Common Stock are exchanged
for or changed into cash or other property (other than consideration
consisting solely of common stock of the acquiring or surviving entity);
provided, that, as to each such purchase or redemption all of the following
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conditions are satisfied as determined by Agent: (i) as of the date of such
purchase or redemption and after giving effect thereto, no Event of
Default, or act, condition, or event which with notice or passage of time
or both would constitute an Event of Default shall exist or have occurred,
(ii) Lender shall
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have received not less than ten (10) Business Days prior written notice of
the intention of Borrower to purchase or redeem such Series B Preferred
Stock, which notice shall specify in reasonable detail acceptable to Agent,
the amount which Borrower is paying for the Series B Preferred Stock to be
purchased or redeemed, the anticipated date of such purchase or redemption
and such other information with respect thereto as Lender may reasonably
request and (iii) as of the date of any such purchase or redemption and
after giving effect thereto, Excess Availability shall be not less than
$5,000,000."
6. Loans, Investments, Guaranties, Etc.
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(a) Section 7.6(d) of the Loan Agreement is hereby deleted in its
entirety and the following substituted therefor:
"(d) loans by Borrower to PNY France, provided, that: (i) in no event
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shall the amount of the loans by Borrower to PNY France exceed the
aggregate principal amount of FF8,700,000 and (ii) the Indebtedness of PNY
France to Borrower arising pursuant to such loan is not and shall not be
evidenced by any promissory note or other instruments, unless the original
of such note or other instrument is immediately upon the reasonable request
of Agent delivered to Agent, duly endorsed and assigned by Borrower to
Agent;"
(b) Section 7.6 of the Loan Agreement is hereby amended by adding a
new Section 7.6(i) thereto as follows:
"(i) the equity investment of Borrower as of the date of Amendment No.
1 represented by 100 shares of the common stock of PNY UK constituting one
hundred (100%) percent of the total shares of outstanding common stock of
PNY UK."
(c) Section 7.6 of the Loan Agreement is hereby amended by adding a
new Section 7.6(j) thereto as follows:
"(j) cash equity capital contributions after the date hereof by
Borrower to PNY UK; provided, that, (i) Agent shall have received not less
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than ten (10) Business Days prior written notice of the intention of
Borrower to make any such capital contribution, which notice shall specify
the date and amount of such contribution, (ii) on the date of any such
capital contribution and after giving effect thereto, no Event of Default
or act, condition or event which with notice or passage of time or both
would constitute an Event of Default shall exist or have occurred, and
(iii) the
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aggregate amount of such capital contributions shall not exceed $250,000."
7. Adjusted Tangible Net Worth. Section 7.9 of the Loan Agreement is
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hereby deleted in its entirety and the following substituted therefor:
"7.9 Adjusted Tangible Net Worth.
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(a) Borrower shall not permit Adjusted Tangible Net Worth for the
periods stated below to be not less than the amount specified below for
such period:
Adjusted Tangible
Period Net Worth
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(i) From the date hereof
through March 31, 1996 $14,008,000 (or if less, the amount
equal to eighty (80%) percent of
the Adjusted Tangible Net Worth for
Borrower on a stand-alone basis as
at December 31, 1995 calculated
based on the audited financial
statements of Borrower delivered to
Agent pursuant to Section
7.11(a)(i))
(ii) From April 1, 1996
through June 30, 1996 $17,669,000
(iii) From July 1, 1996
through September 30, 1996 $ 4,500,000
(iv) From October 1, 1996
through December 31, 1996 $ 7,000,000
(v) From January 1, 1996
through March 31, 1997 $10,000,000
(vi) From April 1, 1997
through June 30, 1997 $30,801,000
(vii) From July 1, 1997
through August 31, 1997 $36,589,000
(viii) From September 1, 1997 and
at all times thereafter $42,568,000
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(b) Notwithstanding anything to the contrary contained in Section
7.9(a) above, in the event that Borrower is delivering to Lender a
Borrowing Base Certificate in accordance with Section 5.2 hereof for not
less than thirty (30) consecutive days (after previously providing Agent on
a daily basis with a schedule of Accounts, collections received and credits
issued and on a weekly basis with an inventory report) (i) upon Lender's
request, Borrower shall promptly provide Lender (but in any event within
thirty (30) days after Lender's request) with financial projections for the
period ending no earlier than March 31, 1997, which projections shall be
based on the reasonable, good faith assumptions of the senior management of
Borrower and shall otherwise be in form and substance satisfactory to
Lender, and (ii) Lender may, in its discretion, effective upon the date of
written notice by Lender to Borrower, change the amounts for the Adjusted
Tangible Net Worth of Borrower set forth in Section 7.9(a) above for any
fiscal quarter thereafter to an amount equal to: (A) the Adjusted Tangible
Net Worth of Borrower for any such fiscal quarter calculated based on the
financial projections provided by Borrower to Lender pursuant to Section
7.9(b)(i) (or at Lender's option, the most recent financial projections
delivered prior thereto by Borrower to Lender for such period) minus (B)
$2,000,000."
8. Financial Statements and Other Information. Section 7.11(a)(iii) of
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the Loan Agreement is hereby deleted in its entirety and the following
substituted therefor:
"(iii) with each of the audited financial statements delivered
pursuant to Section 7.11(a)(i) above, except for Borrower's audited
consolidated financial statements for Borrower's fiscal year ending
December 31, 1995, a certificate of the independent certified public
accountants that examined such statements to the effect that they have
reviewed and are familiar with the Financing Agreements and that, in
examining such financial statements, they did not become aware of any fact
or condition of a financial or accounting nature which then constituted an
Event of Default, except for those, if any, described in reasonable detail
in such certificate."
9. Representations, Warranties and Covenants. In addition to the
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continuing representations, warranties and covenants heretofore or hereafter
made by Borrower to Lender pursuant to the Financing Agreements, Borrower hereby
represents, warrants and covenants with and to Lender as follows (which
representations, warranties and covenants are continuing and
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shall survive the execution and delivery hereof and shall be incorporated into
and made a part of the Financing Agreements):
(a) No Event of Default exists on the date of this Amendment (after
giving effect to the amendments to the Financing Agreements made by this
Amendment).
(b) This Amendment has been duly executed and delivered by Borrower
and is in full force and effect as of the date hereof, and the agreements and
obligations of Borrower contained herein constitute legal, valid and binding
obligations of Borrower enforceable against Borrower in accordance with their
respective terms.
(c) Borrower has delivered, or caused to be delivered, to Agent true,
correct and complete copies of the Exchange Agreement and all other agreements
evidencing or relating to the Exchange Transaction.
(d) Borrower has delivered, or caused to be delivered, to Agent a
true, correct and complete copy of the Interest Payment Letter.
10. Conditions Precedent. The effectiveness of the consents in Section 2
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hereof and the amendments herein shall be effective upon the satisfaction of
each of the following conditions precedent in a manner satisfactory to Lender:
(a) the receipt by Agent of a copy of this Amendment, duly
authorized, executed and delivered by Borrower;
(b) Agent shall have received true, correct and complete copies of
the Exchange Agreement, and all other agreements which evidence and relate to
the Exchange Transaction, duly authorized, executed and delivered by the parties
thereto;
(c) Agent shall have received true, correct and complete copies of
the Interest Payment Letter, duly authorized, executed and delivered by the
parties thereto;
(d) Agent shall have received all amendments and other certificates
relating to the Series B Preferred Stock as filed with the appropriate
government authorities and such other evidence of the effectiveness thereof as
Lender may request; and
(e) no Event of Default shall have occurred and be continuing and no
event shall have occurred or condition be existing and continuing which, with
notice or passage or time or both, would constitute an Event of Default.
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11. Waivers.
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(a) Lender hereby waives the Event of Default arising prior to the
date hereof as a result of the failure of Borrower to maintain the Adjusted
Tangible Net Worth for the period prior to the date hereof in the amounts
required under Section 7.9 of the Loan Agreement.
(b) Lender hereby waives the Event of Default arising prior to the
date hereof as a result of the failure of Borrower to maintain the Interest
Coverage Ratio for the period prior to the date hereof in the amounts required
under Section 7.10 of the Loan Agreement.
(c) Lender hereby waives the Event of Default arising prior to the
date hereof as a result of the failure of Borrower to deliver to Lender and
Agent Borrower's audited consolidated financial statements for Borrower's fiscal
year ending December 31, 1995 and Borrower's consolidated financial statements
for Borrower's fiscal quarter ending March 31, 1996 provided that Borrower
delivers to Lender and Agent such financial statements by no later than July 10,
1996. The failure of Borrower to deliver such financial statements to Lender and
Agent by July 10, 1996 will be an Event of Default.
(d) Lender hereby waives the Event of Default arising prior to the
date hereof as a result of the failure of Borrower to deliver to Lender and
Agent with respect to Borrower's audited consolidated financial statements for
Borrower's fiscal year ending December 31, 1995, a certificate of the
independent certified public accountants that examined such statements, in
accordance with the terms of Section 7.11(a)(iii) of the Loan Agreement.
(e) Lender hereby waives the Event of Default arising prior to the
date hereof as a result of the loans by Borrower to PNY France which exceed the
aggregate principal amount of loans by Borrower to PNY France permitted under
Section 7.6(d) of the Loan Agreement.
(f) Lender has not waived and is not by this Amendment waiving, and
has no intention of waiving any other Event of Default which may have occurred
prior to the date hereof, or may be continuing on the date hereof or any Event
of Default which may occur after the date hereof (whether the same or similar to
the Events of Default referred to in Sections 11(a), 11(b), 11(c), 11(d) and
11(e) above or otherwise) and Lender reserves the right, in its discretion, to
exercise any or all of its rights and remedies arising under the terms of the
Financing Agreements as a result of any Event of Default which may have occurred
prior to the date hereof, or are continuing on the date hereof or any Event of
Default which may occur after the date
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hereof (whether the same or similar to the Events of Default described in
Sections 11(a), 11(b), 11(c), 11(d) and 11(e) above or otherwise). The waivers
contained in Sections 11(a), 11(b), 11(c), 11(d) and 11(e) shall not constitute
waivers of any Events of Default arising as a result of the failure of Borrower
to comply with Sections 7.6, 7.9, 7.10 or 7.11 of the Loan Agreement at any time
after the date of this Amendment (except as otherwise provided herein).
12. Effect of this Amendment. Except as modified pursuant hereto, no
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other changes or modifications to the Financing Agreements are intended or
implied and in all other respects the Financing Agreements are hereby
specifically ratified, restated and confirmed by all parties hereto as of the
effective date hereof. To the extent of conflict between the terms of this
Amendment and the other Financing Agreements, the terms of this Amendment shall
control.
13. Further Assurances. The parties hereto shall execute and deliver such
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additional documents and take such additional action as may be necessary or
desirable to effectuate the provisions and purposes of this Amendment.
14. Governing Law. The rights and obligations hereunder of each of the
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parties hereto shall be governed by and interpreted and determined in accordance
with the laws of the State of New York.
15. Binding Effect. This Amendment shall be binding upon and inure to the
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benefit of each of the parties hereto and their respective successors and
assigns.
16. Counterparts. This Amendment may be executed in any number of
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counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment, it shall not be
necessary to produce or account for more than one counterpart thereof signed by
each of the parties hereof.
Please sign the enclosed counterpart of this Amendment in the space
provided below, whereupon this Amendment, as so accepted by Lender and Agent,
shall become a binding agreement among Borrower, Lender and Agent.
Very truly yours,
P.N.Y. ELECTRONICS, INC.
By: /s/ LUKE M. BESHAR
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Title: Vice President and C.F.O.
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[SIGNATURES CONTINUED ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
AGREED:
CONGRESS FINANCIAL CORPORATION,
in its capacity as Agent
By: /s/ ILLEGIBLE
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Title: Assistant Vice President
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CORESTATES BANK, N.A.
By: /s/ MICHELE A. WALCOFF
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Title: Vice President
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