EXHIBIT 10.1.15
Execution
AMENDMENT NO. 14 TO FINANCING AGREEMENTS
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PNY TECHNOLOGIES, INC.
299 Webro Road
Parsippany, New Jersey 07054
as of December 5, 2000
Congress Financial Corporation
1133 Avenue of the Americas
New York, New York 10036
Gentlemen:
Congress Financial Corporation ("Lender"), and PNY Technologies,
Inc., formerly known as P.N.Y. Electronics, Inc. ("Borrower"), have entered into
certain financing arrangements as set forth in the Amended and Restated Loan
Agreement, dated February 23, 1996, by and among Lender (as assignee of First
Union National Bank) and Borrower as amended by Amendment No. 1 to Financing
Agreements, dated July 3, 1996, Amendment No. 2 to Financing Agreements, dated
April 15, 1997, Amendment No. 3 to Financing Agreements, dated June 2, 1997,
Amendment No. 4 to Financing Agreements, dated April 20, 1998, Amendment No. 5
to Financing Agreements, dated April 5, 1999, Amendment No. 6 to Financing
Agreements, dated September 29, 1999, Amendment No. 7 to Loan and Security
Agreement, dated March 17, 2000, Amendment No. 8 to Loan and Security Agreement,
dated June, 2000, Amendment No. 9 to Loan and Security Agreement, dated July 24,
2000, Amendment No. 10 to Loan and Security Agreement, dated as of August 21,
2000, Amendment No. 11 to Loan and Security Agreement, dated September 5, 2000,
Amendment No. 12 to Financing Agreements, dated October 16, 2000 and Amendment
No. 13 to Financing Agreements, dated as of December 5, 2000 (as amended hereby
and as the same now exists or may hereafter be further amended, modified,
supplemented, extended, renewed, restated or replaced, 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"). All capitalized terms used herein shall have the
meanings assigned thereto in the Loan Agreement and the other Financing
Agreements, unless otherwise defined herein.
Borrower has requested that Lender agree to certain amendments to the
Loan Agreement. Subject to the terms and conditions contained herein, Lender is
willing to agree to such amendments as are set forth herein. By this Amendment,
Lender 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 shall be
deemed and is hereby amended to include, in addition and not in limitation of,
each of the following definitions:
(i) "Amendment No. 14" shall mean shall mean this Amendment
No. 14 to Financing Agreements, by and between Lender and Borrower, as the same
now exists or may hereafter be further amended, modified, supplemented,
extended, renewed, restated or replaced.
(ii) "GS Stock Purchase Agreement" shall mean the Stock
Purchase Agreement, dated on or about the dated hereof, by and among Borrower,
GS Capital Partners II, L.P., GS Capital Partners II Offshore, L.P., Goldman,
Sachs & Co. Verwaltungs GmbH, Stone Street Fund 1995, L.P. and Bridge Street
Fund 1995, L.P., as the same now exists or may hereafter be further amended,
modified, supplemented, extended, renewed, restated or replaced.
(iii) "Ruth Cohen Subordinated Note" shall mean the
unsecured Subordinate Note, dated on or about the date hereof, issued by
Borrower and payable to Ruth Cohen in the original principal amount of
$9,810,000, as the same now exists or may hereafter be further amended,
modified, supplemented, extended, renewed, restated or replaced.
(b) Interpretation. All capitalized terms used herein shall have the
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meanings assigned thereto in the Loan Agreement and the other Financing
Agreements, unless otherwise defined herein.
2. Indebtedness. Section 7.2 of the Loan Agreement is hereby amended
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to include new Section 7.2(h) at the end thereof as follows:
(h) the unsecured Indebtedness of Borrower to Ruth Cohen
evidenced by the Ruth Cohen Subordinated Note, as in effect on the
date of Amendment No. 14, which Indebtedness is subject and
subordinate in right of payment to the right of Lender to receive the
prior full and final payment of all of the Designated Senior
Indebtedness (as such term is defined in the Ruth Cohen Subordinated
Note, as in effect on the date of Amendment No. 14); provided that:
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(i) the aggregate principal amount of such Indebtedness thereunder
shall not exceed $9,810,000, less all repayments of principal in
respect thereof, plus interest thereon at the rate set forth in the
Ruth Cohen Subordinated Note, as in effect on the date of Amendment
No. 14, (ii) Lender shall have received true, correct and complete
copies of the Ruth Cohen Subordinated Note and all agreements,
documents and instruments evidencing or otherwise related to such
Indebtedness, (iii) "Designated Senior Indebtedness" as such term is
defined in the Ruth Cohen Subordinated Note shall include the
Obligations, (v) Borrower shall not, directly or indirectly, make any
payments in respect of such Indebtedness, including, but not limited
to, any prepayments or other nonmandatory payments, except, that,
Borrower may make mandatory prepayments of principal required as a
result of an initial public offering of the common stock of Borrower
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and regularly scheduled payments of interest in accordance with the
terms of the Ruth Cohen Subordinated Note, as in effect on the date
of Amendment No. 14, provided, that, upon the occurrence and
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continuation of any Event of Default permitting Lender to declare the
Designated Senior Indebtedness due and payable prior to the date on
which the Designated Senior Indebtedness would otherwise have become
due and payable, no payments shall be made in respect of such
Indebtedness unless and until all Designated Senior Indebtedness has
been finally paid (in cash or cash equivalents) and satisfied in full
and the Financing Agreements have been terminated, (vi) Borrower
shall not, directly or indirectly, (A) amend, modify, alter or change
the terms of the Ruth Cohen Subordinated Note or any agreement,
document or instrument related thereto, except, that, Borrower may,
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after not less than ten (10) Business Days prior written notice to
Lender, amend, modify, alter or change the terms thereof so long as:
(1) either (aa) such amendment, modification, alternation or change
does not in any manner adversely affect Lender or any rights of
Lender as determined in good faith Lender or (bb) Lender has
consented in writing to such amendments, modification, alteration or
change and (2) such amendment, modification, alteration or change
does not relate to the terms of payment of the Indebtedness evidenced
thereby, the maturity date or amortization of such Indebtedness, the
amount of such Indebtedness, the terms of subordination of such
Indebtedness, the interest rate or any fees or charges or any
collateral with respect thereto, or change the definition of
"Designated Senior Indebtedness" or make any terms thereof more
restrictive or burdensome than as in effect on the date of Amendment
No. 14, or (B) redeem, retire, defease, purchase or otherwise acquire
such Indebtedness, or set aside or otherwise deposit or invest any
sums for such purpose, and (vii) Borrower shall furnish to Lender all
notices, demands or other materials in connection with such
indebtedness either received by Borrower or on its behalf, promptly
after the receipt thereof, or sent by Borrower or on its behalf,
concurrently with the sending thereof, as the case may be."
3. Dividends. Section 7.4 of the Loan Agreement is hereby amended to
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include new Sections 7.4(d) and (e) at the end thereof as follows:
"(d) purchase or redeem shares of Series B and Series C
Preferred Stock of Borrower from Shareholder and/or Ruth Cohen;
provided, that, as to such purchase or redemption all of the
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following conditions are satisfied as determined by Borrower: (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) the purchase or redemption
price for all such Preferred Stock to be purchased or redeemed
pursuant to this Section 7.4(d) shall not exceed: (A) $6,000,000 in
cash plus (B) the principal amount of the Ruth Cohen Subordinated
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Note as in effect on the date of Amendment No. 14 plus (C)
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$2,250,000, which shall not be paid to Shareholder or Ruth Cohen, but
shall be used by Borrower to repay $2,250,000 in Indebtedness
permitted under Section 7.6(a) hereof and owed by Shareholder and/or
Ruth Cohen to Borrower as of the date of Amendment No. 14, and (iii)
such purchase or redemption shall occur prior to December 15, 2000;
and
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(e) purchase or redeem 390 shares of Series A Preferred
Stock of Borrower from GS Capital Partners II, L.P. and certain of
its affiliates pursuant to the terms of the GS Stock Purchase
Agreement as in effect on the date of Amendment No. 14; provided
that, as to such purchase or redemption all of the following
conditions are satisfied as determined by Borrower: (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) the purchase price for the shares of
Series A Preferred Stock to be purchased or redeemed pursuant to this
Section 7.4(e) shall not exceed $819,000 in the aggregate, and (iii)
such purchase or redemption shall occur prior to December 15, 2000."
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 Loan Agreement and the other
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 Loan Agreement and the other Financing
Agreements):
(a) No Event of Default exists or has occurred and is continuing on
the date of this Amendment and no event has occurred or condition is existing
and continuing on the date of this Amendment which, with notice or passage of
time or both, would constitute an Event of Default (after giving effect to the
amendments to the Loan Agreement and the other 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 the 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
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upon the satisfaction of each of the following conditions precedent in a manner
satisfactory to Lender:
(a) the receipt by Lender of the GS Stock Purchase Agreement and all
related agreements, documents and instruments, duly authorized executed and
delivered the parties thereto;
(b) the receipt by Lender of the Ruth Cohen Subordinated Note and all
related agreements, documents and instruments, duly authorized executed and
delivered by Ruth Cohen and Borrower;
(c) the receipt by Lender of a copy of this Amendment, duly
authorized, executed and delivered by Borrower; and
(d) 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 of time or both, would constitute an Event of Default.
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6. Effect of this Amendment. Except as modified pursuant hereto, no
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other changes or modifications to the Loan Agreement and the other Financing
Agreements are intended or implied and in all other respects the Loan Agreement
and the other 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, the Loan Agreement and
the other Financing Agreements, the terms of this Amendment shall control. The
Loan Agreement and this Amendment shall be read and construed as one agreement.
7. Further Assurances. The parties hereto shall execute and deliver
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such 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 validity, interpretation and enforcement of
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this Amendment and the other Financing Agreements and any dispute arising out of
the relationship between the parties hereto whether in contract, tort, equity or
otherwise, shall be governed by the internal laws of the State of New York
(without giving effect to principles of conflicts of laws).
9. Binding Effect. This Amendment shall be binding upon and inure to
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the 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 hereto.
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Please sign the enclosed counterpart of this Amendment in the space
provided below, whereupon this Amendment, upon acceptance by Lender, shall
become a binding agreement by and between Borrower and Lender.
Very truly yours,
PNY TECHNOLOGIES, INC.
formerly known as
P.N.Y. Electronics, Inc.
By: /s/ Gadi Cohen
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Title:
AGREED:
CONGRESS FINANCIAL CORPORATION
By: /s/ ILLEGIBLE
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Title: Vice President
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