EXHIBIT 10.1.20
[8/05/03]
AMENDMENT NO. 19 TO FINANCING AGREEMENTS
PNY TECHNOLOGIES, INC.
299 Webro Road
Parsippany, New Jersey 07054
As of August 6, 2003
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, Amendment No. 16 to
Financing Agreements, dated as of November 6, 2001, Amendment No. 17 to
Financing Agreements, dated as of July 31, 2001 and Amendment No. 18 to
Financing Agreements, dated as of March 20, 2003 (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 an Event of Default. Subject to the terms and
conditions contained herein, Lender is willing to agree to such amendments and
waive such Event of Default to the extent set forth herein. 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.
-----------
(a) Additional Definitions.
----------------------
(i) "Fixed Charge Coverage Ratio" shall mean, with respect Borrower
and its Subsidiaries, measured monthly, the ratio of (A) the EBITDA of Borrower
and its Subsidiaries during the twelve (12) months immediately preceding the
determination date with respect to the calculation of the Fixed Charge Coverage
Ratio to (B) Fixed Charges of Borrower and its Subsidiaries for such twelve (12)
month period.
(ii) "Fixed Charges" shall mean, as to any Person and its
Subsidiaries with respect to any period, the sum of, without duplication, (A)
all Interest Expense, (B all regularly scheduled (as determined at the beginning
of the respective period) principal payments of Indebtedness for borrowed money
and Indebtedness under capitalized lease obligations (without duplicating in
items (A) and (B) of this definition the interest component of the capitalized
lease obligations), (C) all capital expenditures, (D) all cash dividends,
repurchases or redemptions paid by such Person and its Subsidiaries during such
period in respect of the Common Stock, (E) all payments made with respect to
indebtedness payable on demand, including, but not limited to, amounts paid on
demand under the Ruth Cohen Subordinated Note, and (F) all charges far Federal,
State, local and foreign income taxes.
(b) Amendment to Definitions. 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.
(c) Interpretation. All capitalized terms used herein shall have the
--------------
meanings assigned thereto in the Loan Agreement and the other Financing
Agreements, unless otherwise defined herein.
2. Amendment.
---------
(a) Adjusted Tangible Net Worth. Section 7.9 of the Loan Agreement is
----------------------------
hereby deleted in its entirety and the following substituted therefor:
"7.9 Adjusted Tangible Net Worth. Borrower and its Subsidiaries shall
---------------------------------
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:
Adjusted Tangible
Date Net Worth
---- ---------
(a) June 30, 2002 $6,500,000
(b) September 30, 2002 $6,500,000
(c) June 30, 2003 and at
all times thereafter $11,000,000"
(d) EBITDA. Section 7.10 of the Loan Agreement is hereby deleted in
------
its entirety and replaced with the following:
2
"7.10 Intentionally Deleted."
(e) Fixed Charge Coverage Ratio. Section 7 of the Loan Agreement
---------------------------
shall be amended to include a new Section 7.14 at the end of such section as
follows:
"7.14 Fixed Charge Coverage Ratio. Borrower and its
--------------------------------
Subsidiaries, shall have and maintain, on the last business day of
each fiscal month, a Fixed Charge Coverage Ratio of not less than 1.1
to 1.00 for the twelve (12) month period immediately prior to such
date.
3. Representations, Warranties and Covenants. In addition to the
--------------- ------------------------
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:
4. Waiver.
------
(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 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, 2002, 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 Agreement, respectively,
within one hundred twenty (120) days after the end of such fiscal year (the
"Existing Financial Statement Default"); 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 August 8, 2003. 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 the Existing Financial Statement Default any time after August
8, 2003, if Borrower fails to deliver to Lender, such financial statements and
certificate on or before August 8, 2003, it being understood and agreed that the
effect of such recission and termination shall be to permit Lender to exercise
its rights and remedies in accordance with the terms of the Loan Agreement with
respect to the Existing Financial Statement Default immediately on and after
August 9, 2003 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 Financial Statement Default),
whether or not continuing on the date hereof, or that may occur after the date
hereof (whether the same or similar to the Existing Financial Statement Default)
or otherwise, including any Events of Default arising from the failure of
Borrower and its Subsidiaries to comply with Section 7.11 of the Loan Agreement
as specified in Section 4(a) hereof, at any time after August 8, 2003, 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
3
failure of Borrower and its Subsidiaries 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.
5. Conditions Precedent. 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 Lender of a copy of this Amendment, duly
authorized, executed and delivered by Borrower; and
(b) 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 (other
than the Existing Financial Statement Default).
6. Effect of this Amendment. Except as modified pursuant hereto, no
------------------------
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. Additional Events of Default. The parties hereto acknowledge,
----------------------------
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.
8. Further Assurances. The parties hereto shall execute and deliver
------------------
such additional documents and take such additional action as may be necessary or
desirable to effectuate the provisions and purposes of this Amendment.
9. Governing Law. The validity, interpretation and enforcement of
-------------
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.
10. Binding Effect. This Amendment shall be binding upon and inure to
---------------
the benefit of each of the parties hereto and their respective successors and
assigns.
11. Counterparts. This Amendment may be executed in any number of
------------
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]
4
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
--------------------------------
Title: Treasurer
AGREED:
CONGRESS FINANCIAL CORPORATION
By: /s/ ILLEGIBLE
---------------------------------
Title: First Vice President
5