EXHIBIT 10.1.4
AMENDMENT NO. 3 TO FINANCING AGREEMENTS
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PNY TECHNOLOGIES, INC.
200 Anderson Avenue
Moonachie, New Jersey 07074
June 2, 1997
CoreStates Bank, N.A.
1339 Chestnut Street
Philadelphia, Pennsylvania 19107
Congress Financial Corporation,
as Agent
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 PNY Technologies, Inc., formerly
known as P.N.Y. Electronics, Inc. ("Borrower") have entered into certain
financing arrangements pursuant to which Agent may make loans and advances and
provide other financial accommodations to Borrower as set forth in the Amended
and Restated Loan Agreement, dated February 23, 1996, by and among Lender, Agent
and Borrower as amended by Amendment No. 1 to Financing Agreements, dated July
3, 1996 and by Amendment No. 2 to Financing Agreements, dated April 15, 1997
(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 has requested that Lender and Agent (a) make certain supplemental
loans in addition to those currently provided for in the Loan Agreement and the
other Financing Agreements, and (b) 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 agree to such amendments. By
this Amendment, Lender, Agent and Borrower desire and intend to evidence such
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) Additional Definitions. As used herein, the following terms shall
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have the respective meanings given to them below, and the Loan Agreement and the
other Financing Documents shall be deemed and are hereby amended to include, in
addition and not in limitation, each of the following definitions:
(i) "Pledged Collateral Value" shall mean at any time the
lesser of:
(A) the sum of the market value at such time of the
Pledged Securities in the Account consisting of U.S.
treasury bills, U.S. treasury notes and municipal
securities having maturities of 90 days or less (as
the terms "Pledged Securities" and "Account" are
defined in the pledge and security agreement referred
to in Section 5(c) hereof) plus the amount of cash
then in the Account; or
(B) $4,000,000.
(ii) "Supplemental Inventory Value" shall mean the lesser of:
(A) fifteen (15%) percent of the Value of Eligible
Inventory; or
(B) (1) $4,000,000 for the period from and including the
date hereof through and including September 5, 1997;
(2) $3,000,000 for the period from and including
September 6, 1997 through and including September 12,
1997; (3) $2,000,000 for the period from and
including September 13, 1997 through and including
September 19, 1997; (4) $1,000,000 for the period
from and including September 20, 1997 through and
including September 26, 1997; and (5) $0 from and
including September 27, 1997 and thereafter.
(iii) "Supplemental Loan Limit" shall mean, on any date, the sum
of the Pledged Collateral Value on such date, plus the Supplemental Inventory
Value on such date.
(iv) "Supplemental Loans" shall mean the loans hereafter made
by Lender to or for the benefit of Borrower on a revolving basis (involving
advances, repayments and readvances) as set forth in Section 2 hereof.
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(b) Amendments to Definitions.
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(i) Section 1.1(aa) of the Loan Agreement is amended by
deleting the amount "$70,000,000" appearing therein, and by substituting
therefor the amount "$50,000,000".
(ii) All references to the term "Maximum Credit" in the Loan
Agreement and any of the other Financing Agreements shall be deemed and each
such reference is hereby amended to mean $50,000,000.
(iii) All references to the term "Loans" in the Loan Agreement
and the other Financing Agreements shall be deemed and each such reference is
hereby amended to include, in addition and not in limitation, the Supplemental
Loans.
(iv) All references to the term "Financing Agreements" in the
Loan Agreement shall be deemed to include, in addition and not in limitation,
this Amendment No. 3, the Limited Guarantee referred to in Section 5(b) hereof,
the Pledge Agreement referred to in Section 5(c) hereof, and all other
agreements, documents and instruments at any time executed and/or delivered by
Borrower or any other person in connection with any of the foregoing, as the
same now exist or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced.
(c) Interpretation. All capitalized terms used herein shall have the
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meanings assigned thereto in the other Financing Documents, unless otherwise
defined herein.
2. Supplemental Loans.
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(a) In addition to the Loans which may be made by Lender to Borrower
pursuant to Section 4.1 of the Loan Agreement, upon the request of Borrower,
made at any time and from time to time, subject to the terms and conditions
contained herein, in the Loan Agreement and in the other Financing Agreements,
Lender shall make Supplemental Loans to Borrower in amounts in excess of the
amounts otherwise available to Borrower under Section 4.1 of the Loan Agreement
(as calculated by Lender and Agent, and subject to the sublimits and reserves
provided for in the Loan Agreement and the other Financing Agreements) up to the
amount of the Supplemental Loan Limit as then in effect.
(b) Without limiting any of the rights of Lender pursuant to Section
2(e) below or otherwise, on the next business day after each date when any
reduction to the Supplemental Inventory Value becomes effective, Borrower agrees
absolutely and unconditionally to automatically and without demand make a
payment to Lender in respect of the Supplemental Loans in an amount equal to the
excess, if any, of the aggregate unpaid principal amount of the Supplemental
Loans over the amount of
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Supplemental Loan Limit as so reduced by the reduction in the Supplemental
Inventory Value. All interest accrued on the principal amount of the
Supplemental Loans paid pursuant to this Section 2(b) shall be paid, or may be
charged by Agent to the loan account(s) of Borrower, at Agent's option, on the
date of such payment.
(c) From and after September 30, 1997, Gadi Cohen shall be permitted
to withdraw, from time to time, amounts of collateral covered by the pledge and
security agreement referred to in Section 5(c) hereof, subject to the following
conditions:
(i) each such withdrawal (other than a withdrawal consisting
of all the remaining collateral covered by such agreement) shall be in the
amount of $1,000,000 or an integral multiple thereof;
(ii) Gadi Cohen shall have given the Agent not less than five
(5) business days' prior written notice of such intended withdrawal, such notice
to contain information as to the amount and date of the proposed withdrawal,
which shall be a business day;
(iii) Without limiting any of the rights of Lender pursuant to
Section 2(e) below or otherwise, not later than such proposed withdrawal,
Borrower agrees absolutely and unconditionally to automatically and without
demand make a payment to Lender in respect of the Supplemental Loans in an
amount equal to the excess, if any, of the aggregate unpaid principal amount of
the Supplemental Loans over the amount of the Pledged Collateral Value as
reduced after giving effect to such proposed withdrawal, such payment to be
accompanied by such reports or other supporting information from Smith Barney
Inc., in form and substance satisfactory to Agent, verifying that, after giving
to such withdrawal and such payment, the aggregate unpaid principal amount of
the Supplemental Loans will not exceed the Pledged Collateral Value.
All accrued interest on the principal amount of the Supplemental Loans paid
pursuant to this Section 2(c) shall be paid or may be charged by Agent to the
loan account(s) of Borrower, at Agent's option, on the date of such payment.
(d) Except in Agent's and Lender's discretion, Borrower shall not
have any right to request, and Lender shall not make, any Supplemental Loans in
excess of the Supplemental Loan Limit as then in effect. The Supplemental Loans
shall be secured by all Collateral.
(e) Unless sooner demanded by Lender in accordance with terms of the
Loan Agreement or the other Financing Agreements, or otherwise due as provided
above, all outstanding and unpaid Obligations arising pursuant to the
Supplemental Loans
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(including, but not limited to, principal, interest, fees, costs, expenses and
other charges in respect thereof payable by Borrower to Lender or Agent) shall
automatically, without notice or demand, be absolutely and unconditionally due
and payable and Borrower shall pay to Lender or Agent, as the case may be, in
cash or other immediately available funds all such Obligations on such day as
the Supplemental Loan Limit shall be $0. Interest shall accrue and be due, until
and including the next business day, if the amount so paid by Borrower to the
bank account designated by Agent for such purpose is received in such bank
account after 11:00 a.m. New York City time.
(f) Borrower acknowledges and agrees that, notwithstanding anything
to the contrary contained in the Loan Agreement or the other Financing
Agreements, the failure of Borrower to pay such Obligations arising pursuant to
the Supplemental Loans:
(i) on the business day after the effective date of any
reduction in the Supplemental Loan Limit to the extent due as set forth in
Section 2(b) above; or
(ii) on the business day of any reduction in the Pledged
Collateral Value as set forth in Section 2(c) above; or any other failure of
Borrower to pay all of such Obligations arising pursuant to the Supplemental
Loans on the day that the Supplemental Loan equals $0, shall constitute an Event
of Default.
3. Closing Fee. Borrower shall pay to Agent as a closing fee the amount
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of $40,000 which shall be fully earned as of the date hereof and $20,000 of
which shall be payable on the date hereof and $20,000 of which shall be payable
on July 31, 1997, provided, that, such amount shall become immediately due and
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payable, without notice or demand, at Agent's option, upon the occurrence of an
Event of Default, or act, condition or event which with notice or passage of
time or both would constitute an Event of Default.
4. 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 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).
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(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.
5. Conditions Precedent. The amendments herein shall be effective upon
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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, in form and substance
satisfactory to Agent, the limited guarantee of payment of the Obligations in
respect of the Supplemental Loans from Gadi Cohen, duly executed and delivered
by him;
(c) Agent shall have received, in form and substance
satisfactory to Agent, a pledge and security agreement from Gadi Cohen pursuant
to which he grants to Agent for the benefit of Lender a first priority security
interest in and lien on and pledge to the Agent for the benefit of Lender,
certain securities as more fully described therein (referred to herein as the
"Pledged Securities"), and all of his right, title and interest in and to a
certain securities account maintained for him at Smith Barney Inc., as more
fully described therein (the "Account") to secure the full payment and
performance of his obligations under the limited guarantee referred to in
Section 5(b) above, duly executed and delivered by him;
(d) Agent shall have received evidence, in form and substance
satisfactory to Agent, that the Account has been established in the name of the
Agent as Secured Party, and such other evidence, in form and substance
satisfactory to Agent, that Agent may require that Agent has a valid perfected
first priority security interest in and lien on the Pledged Securities and the
Account;
(e) Borrower shall have paid the portion of the Closing Fee
referred to in Section 3 due and payable on the date hereof; and
(f) 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.
6. Effect of this Amendment. Except as modified pursuant hereto, no other
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changes or modifications to the Financing Agreements are intended or implied and
in all other respects the Financing Agreements are hereby specifically ratified,
restated
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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.
7. 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.
8. 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.
9. 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.
10. 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,
PNY TECHNOLOGIES, INC.
formerly known as
P.N.Y. Electronics, Inc.
By: /s/ Luke Beshar
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Title: Senior Vice-President
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AGREED:
CONGRESS FINANCIAL CORPORATION,
in its capacity as Agent
By: /s/ ILLEGIBLE
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Title: Senior 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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