EXHIBIT 10.1.18
[EXECUTION]
AMENDMENT NO. 17 TO FINANCING AGREEMENTS
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PNY TECHNOLOGIES, INC.
299 Webro Road
Parsippany, New Jersey 07054
As of Ju1y 31, 2002
Congress Financial Corporation
1133 Avenue of the Americas
New York, New York 10036
Ladies and 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, Amendment No.
13 to Financing Agreements, dated as of December 5, 2000, Amendment No. 14 to
Financing Agreements, dated as of December 6, 2000, Amendment No. 15 to
Financing Agreements, dated as of January 15, 2001 and Amendment No. 16 to
Financing Agreements, dated as of November 6, 2001 (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 and to waive certain Events of Default. Subject to the terms and
conditions contained herein, Lender is willing to agree to such amendments and
waive such Events of Default. By this Amendment, Lender and Borrower desire and
intend to evidence such amendments and waivers.
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.
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(i) "Capital Stock" shall mean, with respect to any Person,
any and all shares, interests, participations or other equivalents (however
designated) of such Person's capital stock or partnership, limited liability
company or other equity interests at any time outstanding, and any and all
rights, warrants or options exchangeable for or convertible into such capital
stock or other interests (but excluding any debt security that is exchangeable
for or convertible into such capital stock).
(ii) "EBITDA" shall mean, as to any Person, with respect to
any period, an amount equal to: (A) the Net Income of such Person and its
Subsidiaries for such period, plus (B) depreciation, amortization and other
non-cash charges (including, but not limited to, imputed interest and deferred
compensation) for such period (to the extent deducted in the computation of Net
Income of such Person), all in accordance with GAAP, plus (C) Interest Expense
for such period (to the extent deducted in the computation of Net Income of such
Person), plus (D) the Provision for Taxes for such period (to the extent
deducted in the computation of Net Income of such Person).
(b) Amendment to Definitions.
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(i) The definition of "Adjusted Tangible Net Worth" set
forth in Section 1.1(c) of the Loan Agreement is hereby deleted in its entirety
and the following is substituted therefor:
"(c) "Adjusted Tangible Net Worth" shall mean, as
to any Person, at any time, in accordance with GAAP, on a
consolidated basis for such Person and its Subsidiaries,
the amount equal to the difference between: (i) the
aggregate net book value of all assets of such Person and
its Subsidiaries (excluding the book value of good will,
non-competition agreements, patents, tidemarks, copyrights,
licenses and other intangible assets), calculating the book
value of inventory for this purpose on a first-in-first-out
basis, after deducting from such book values all
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appropriate reserves in accordance with GAAP (including all
reserves for doubtful receivables, obsolescence,
depreciation and amortization) and (ii) the aggregate
amount of the Indebtedness and other liabilities of such
Person and its Subsidiaries (including tax and other proper
accruals)."
(ii) All references to the term "Financing Agreements" in
the Loan Agreement and the other Financing Agreements shall mean, and each such
reference is hereby amended to include, in addition and not in limitation, this
Amendment and all other agreements, documents or instruments at any time
executed and/or delivered by Borrower or any other person in connection
herewith, as the same now exist or may hereafter be 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. Borrowing Base Certificate. Notwithstanding anything to the
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contrary contained in this Section 5.2(a) of the Loan Agreement or Section 3 of
Amendment No. 12 to Financing Agreements, dated October 16, 2000, by and between
Borrower and Lender, after the date hereof, Borrower shall not be required to
deliver to Lender Borrowing Base Certificates.
3. Reporting. Notwithstanding anything to the contrary set forth in
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the Loan Agreement or any of the other Financing Agreements. Borrower hereby
agrees, in addition to and not in limitation of any of its obligations under the
Loan Agreement or any of the other Financing Agreements, Borrower shall deliver
or cause to be delivered to Lender, in form and substance satisfactory to
Lender, the following: (a) on a weekly basis (but in any event by no later than
the third (3rd) Business Day after the end of each week), or any time that an
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
or the Excess Availability shall be less than $5,000,000, on a daily basis, a
schedule of Accounts, collections received and credits issued with respect
thereto, (b) on a weekly basis (but in any event by no later than the third
(3rd) Business Day after the end of each week), an inventory report, and (c) on
a monthly basis (but in any event by no later than the tenth (10th) day of each
month), an aging of Accounts.
4. Amendments.
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(a) 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. Borrower and its Subsidiaries shall
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not permit their Adjusted Tangible Net Worth as of the dates set
forth below to be less than the amount specified below for each such
date:
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Adjusted Tangible
Date Net Worth
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(a) June 30, 2002 $6,500,000
(b) September 30, 2002 $6,500,000
(c) December 31, 2002 and at all
times thereafter $8,000,000
(b) Interest Coverage Ratio. Section 7.10 of the Loan Agreement is
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hereby deleted in its entirety and replaced with the following:
"7.10 EBITDA. Borrower and its Subsidiaries shall not, for any period
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set forth below (each, a "Test Period"), permit their cumulative
EBITDA, on a consolidated basis, to be less than the amount set forth
below opposite such Test Period:
Test Period EBITDA
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(a) From January 1, 2002 through and
including June 30, 2002 $2,500,000
(b) From January 1, 2002 through and
including September 30, 2002 $5,300,000
(c) From January 1, 2002 through and
including December 31, 2002 $9,400,000
For purposes of this Section 7.10, EBITDA shall be calculated without
giving effect to non-cash stock expense of Borrower and the one-time fixed
charge in connection with the closing of the Borrower's facility in Ireland in
April, 2002."
5. Consent. Subject to the terms and conditions contained herein,
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Lender hereby agrees that, notwithstanding anything to the contrary contained
herein or in the Loan Agreement, Borrower may make payments of principal and
interest (including prepayments) to Gadi Cohen in respect of Indebtedness of
Borrower evidenced by 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 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; provided, that, as of the date of any such payment and immediately
after giving effect thereto, each of the following conditions shall be
satisfied: (a) Lender shall not have given Borrower written notice of the
occurrence of an Event of Default, (b) after giving effect to any payment made
or to be made in accordance with this Section 5, an Event of Default shall not
exist, (c) the aggregate amount of all such payments in any fiscal year shall
not exceed the lesser of: (i) $2,000,000, or (ii) fifty (50%) percent of the Net
Income of Borrower in the immediately preceding fiscal year, and (d) the average
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daily Excess Availability of Borrower for the thirty (30) day period immediately
prior to such payment (or, if shorter, the period from the date hereof through
the date of such payment) and after giving effect to such payment shall not be
less than $3,500,000. For the purposes of this section, Net Income of Borrower
shall be calculated without giving effect to non-cash stock expense of Borrower
and the one-time fixed charge in connection with the closing of the Borrower's
facility in Ireland in April, 2002."
6. Appraisals. Notwithstanding anything to the contrary set forth in
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the Loan Agreement or any of the other Financing Agreements, promptly upon
Lender's request, Borrower shall, at its expense, within thirty (30) days
immediately following the date hereof and hereafter no more than twice in any
twelve (12) month period, but at any time or times as Lender may request on or
after an Event of Default, deliver or cause to be delivered to Lender a written
appraisal with respect to any or all of the Collateral in form, scope and
methodology acceptable to Lender and by an appraiser acceptable to Lender,
addressed to Lender and upon which Lender is expressly permitted to rely. Such
appraisals shall list all items and categories thereof, describing the condition
of same and setting forth the lower of cost (calculated on a first-in-first-out
basis) or fair market value, in such form as is satisfactory to Lender.
7. 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.
(c) On or before August 16, 2002, Borrower shall cause to be
delivered to Lender written appraisals with respect to the Inventory in form,
scope and methodology acceptable to Lender and by an appraiser acceptable to
Lender, addressed to Lender and upon which Lender is expressly permitted to
rely.
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8. Waivers.
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(a) Subject to the terms and conditions set forth herein, Lender
hereby waives the Event of Default arising under Section 8.1(a) of the Accounts
Agreement as a result of: (i) the failure of Borrower to deliver to Lender the
audited consolidated financial statements of Borrower and its Subsidiaries for
the fiscal year ended December 31, 2001, together with the certificate of the
independent certified public accountants of Borrower related thereto as required
under Sections 7.11(a)(i) and 7.11(a)(iii) of the Loan Agreements, respectively,
within one hundred twenty (120) days after the end of such fiscal year, and (ii)
the failure of Borrower to comply with the covenant contained in Section 7.10 of
the Loan Agreement for the period from October 1, 2001 through and including
December 31, 2001 (collectively, the "Existing Defaults"); provided, that,
Lender shall have received such audited consolidated financial statements
financial statements of Borrower and its Subsidiaries, together with such
certificate of independent certified public accountants, all in form and
substance satisfactory to Lender, on or before seven (7) days from the date
hereof. Except as Lender may otherwise expressly agree in writing, such waiver
shall automatically and without further action by the parties hereto be deemed
rescinded and terminated and of no force and effect with respect to all of the
Existing Defaults any time after seven (7) days from the date hereof, if
Borrower fails to deliver to Lender, such financial statements and certificate
on or before seven (7) days from the date hereof, it being understood and agreed
that the effect of such rescission and termination shall be to permit Agent to
exercise its rights and remedies in accordance with the terms of the Loan
Agreement with respect to the Existing Defaults immediately on the eighth day
from the date hereof without any further notice or passage of time.
(b) Lender has not waived, is not by this Amendment waiving, and has
no intention of waiving any Events of Default that may have occurred on or
before the date hereof (other than the Existing Defaults), whether or not
continuing on the date hereof, or that may occur after the date hereof (whether
the same or similar to the Existing Defaults) or otherwise, including any Events
of Default arising from the failure of Borrower to comply with Section 7.11 of
the Loan Agreement as specified in Section 8(a) hereof, at any time after seven
(7) days from the date hereof, as a result of the recission and termination of
the waiver provided for above or otherwise. Nothing contained herein shall be
construed as a waiver of the failure of Borrower to comply with such sections
after such date.
(c) The foregoing waiver shall not be construed as a bar to or a
waiver of any other or further defaults or Events of Default on any future
occasion, whether similar in kind or otherwise and shall not constitute a
waiver, express or implied of any of the rights and remedies of Lender arising
under the terms of the Financing Agreements on any future occasion or otherwise,
all of which Lender specifically reserves. Nothing contained herein should be
construed to entitle Borrower to any other or further waiver with respect to any
defaults under the Financing Agreements at any time after the date hereof or
otherwise.
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9. Fee. In consideration of the amendments, waivers and consent set
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forth herein, Borrower shall on the date hereof, pay to Lender, and Lender may,
at its option, charge the account of Borrower maintained by Lender, a fee in the
amount of $25,000, which fee shall constitute part of the Obligations and is
fully earned as of the date hereof.
10. 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 a copy of this Amendment, duly
authorized, executed and delivered by Borrower;
(b) the receipt by Lender of the fee set forth in Section 9 hereof;
and
(c) 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.
11. 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.
12. Additional Events of Default. The parties hereto acknowledge,
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confirm and agree that the failure of Borrower to comply with any of the
covenants, conditions and agreements contained herein or in any other agreement,
document or instrument at any time executed by Borrower in connection herewith
shall constitute an Event of Default under the Financing Agreements.
13. 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.
14. 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 but
excluding any principles of conflicts of law or other rule of law that would
cause the application of the law of any jurisdiction other than the laws of the
State of New York.
15. 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.
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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 hereto.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
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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/ Heidi Stuto
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Title: Treasurer
AGREED:
CONGRESS FINANCIAL CORPORATION
By: /s/ ILLEGIBLE
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Title: AVP
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