EXHIBIT 10.1.21
[11/05/03]
AMENDMENT NO. 20 TO FINANCING AGREEMENTS
PNY TECHNOLOGIES, INC.
299 Webro Road
Parsippany, New Jersey 07054
As of November 7, 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, Amendment No. 18 to Financing
Agreements, dated as of March 20, 2003 and Amendment No. 19 to Financing
Agreements, dated as of August 7, 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. Subject to the terms and conditions contained herein, Lender is
willing to agree to such amendments to the extent 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) Amendment to Definitions. All references to the term "Financing
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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. Term.
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(a) Section 5.3 (a) of the Loan Agreement is hereby amended by
deleting the reference to "seven (7)" appearing in the fourth line thereof and
substituting the following therefor: "eleven (11)".
(b) Section 5.3 of the Loan Agreement is hereby amended by adding a
new Section 5.3(c) thereto as follows:
"(c) If for any reason this Agreement is terminated prior to the end
of the then current term or renewal term of this Agreement, in view
of the impracticality and extreme difficulty of ascertaining actual
damages and by mutual agreement of the parties as to a reasonable
calculation of Lender's lost profits as a result thereof, Borrower
agrees to pay to Lender, upon the effective date of such termination,
an early termination fee in the amount set forth below if such
termination is effective in the period indicated:
Amount Period
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(i) 1% of Maximum Credit From the date hereof to and including the
ninth anniversary of the date hereof
(ii) 1/2 % of Maximum Credit From and after the ninth anniversary of the
date hereof to but not including the
eleventh anniversary of the date hereof or
if the term of this Agreement is extended,
at any time prior to the end of the then
current term.
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Such early termination fee shall be presumed to be the amount of
damages sustained by Lender as a result of such early termination and
Borrower agrees that it is reasonable under the circumstances
currently existing. In addition, Lender shall be entitled to such
early termination fee upon the occurrence of any Event of Default
described in Section 8.1(d) in the Accounts Agreement, even if Lender
does not exercise the right to terminate this Agreement, but elects,
at its option, to provide financing to Borrower or permit the use of
cash collateral under the United States Bankruptcy Code. The early
termination fee provided for in this Section 5.3 shall be deemed
included in the Obligations."
3. Financial Statements and Other Information. Section 7.11(a) of the
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Loan Agreement is hereby amended by adding a new Section 7.1l(a)(iv) thereto as
follows:
"(iv) As soon as available, but in any event not
later than thirty (30) days after the end of each fiscal month,
monthly unaudited consolidated financial statements, and unaudited
consolidating financial statements (including in each case balance
sheets, statements of income and loss, statements of cash flow, and
statements of shareholders' equity), all in reasonable detail, fairly
presenting the financial position and the results of the operations
of Borrowers and its Subsidiaries as of the end of and through such
fiscal month, certified to be correct by the chief financial officer
of Borrowers and its Subsidiaries, subject to normal year-end
adjustments and no footnotes and accompanied by a compliance
certificate substantially in the form of Exhibit E hereto, along with
a schedule in a form satisfactory to Lender of the calculations used
in determining, as of the end of such month, whether Borrowers and
its Subsidiaries are in compliance with the covenants set forth in
Sections 7.9 and 7.14 of this Agreement for such month."
4. Audit Fee. Borrower agrees to pay Lender on demand all
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out-of-pocket expenses and costs heretofore and from time to time hereafter
incurred by Lender during the course of periodic field examinations of the
Collateral and Borrower's operations, plus a per diem charge at Agent's then
standard rate for Agent's examiners in the field and office (which rate as of
the date hereof is $750 per person per day); provided, that, so long as no Event
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of Default exists or has occurred, the aggregate amount of such per diem charges
paid by Borrower in any one (1) calendar year shall not exceed $25,000."
5. Exhibits to Loan Agreement. The Loan Agreement is hereby amended
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by adding at the end thereof a new Exhibit E to the Loan Agreement in the form
attached hereto.
6. 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).
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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 the legal, valid and binding
obligations of Borrower enforceable against Borrower in accordance with their
respective terms.
7. 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; 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).
8. 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.
9. 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.
10. 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.
11. Counterparts. This Amendment may be executed in any number of
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counterparts, each of which shall be an original, but all of which taken
together shall constitute one and the same Amendment. Delivery of an executed
counterpart of this Amendment by telefacsimile shall have the same force and
effect as the delivery of an original executed counterpart of this Amendment.
Any party delivering an executed counterpart of this Amendment by telefacsimile
shall also deliver an original executed counterpart, but the failure to do so
shall not affect the validity, enforceability or binding effect of this
Amendment
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EXHIBIT E
TO
LOAN AND SECURITY AGREEMENT
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Compliance Certificate
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To: Congress Financial Corporation
1133 Avenue of the Americas
New York, New York 10036
Ladies and Gentlemen:
I hereby certify to you pursuant to Section 7.11 of the Loan
Agreement (as defined below) as follows:
1. I am the duly elected Chief Financial Officer of PNY Technologies,
Inc., formerly known as P.N.Y. Electronics, Inc., a Delaware corporation
("Borrower"). Capitalized terms used herein without definition shall have the
meanings given to such terms in the Loan and Security Agreement, dated February
23, 1996, by and between Congress Financial Corporation ("Lender") and Borrower
(as such Loan and Security Agreement is amended, modified or supplemented, from
time to time, the "Loan Agreement").
2. I have reviewed the terms of the Loan Agreement, and have made, or
have caused to be made under my supervision, a review in reasonable detail of
the transactions and the financial condition of Borrower and each of its
Subsidiaries, during the immediately preceding fiscal month.
3. The review described in Section 2 above did not disclose the
existence during or at the end of such fiscal month, and I have no knowledge of
the existence and continuance on the date hereof, of any condition or event
which constitutes an Event of Default, except as set forth on Schedule I
attached hereto. Described on Schedule I attached hereto are the exceptions, if
any, to this Section 3 listing, in detail, the nature of the condition or event,
the period during which it has existed and the action which Borrower has taken,
is taking, or proposes to take with respect to such condition or event.
4. I further certify that, based on the review described in Section 2
above, Borrower has not at any time during or at the end of such fiscal month,
except as specifically described on Schedule II attached hereto or as permitted
by the Loan Agreement, done any of the following:
(a) Changed its respective corporate name, or
transacted business under any trade name,
style, or fictitious name, other than those
previously described to you and set forth in
the Financing Agreements.
(b) Changed the location of its chief executive
office, changed its jurisdiction of
incorporation, changed its type of organization
or changed the location of or disposed of any
of its properties or assets, or established any
new asset locations.
(c) Materially changed the terms upon which it
sells goods (including sales on consignment) or
provides services, nor has any vendor or trade
supplier to Borrower during or at the end of
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such period materially adversely changed the
terms upon which it supplies goods to Borrower.
(d) Permitted or suffered to exist any security
interest in or liens on any of its properties,
whether real or personal, other than as
specifically permitted in the Financing
Agreements.
(e) Received any notice of, or obtained knowledge
of any of the following not previously
disclosed to Lender: (i) the generation, use,
storage, treatment, transportation,
manufacture, handling, production or
disposition of any hazardous material, on or
off Borrower's premises (whether or not owned
by it) in any manner which at any time violated
any applicable statutes, rules or regulations
relating to environmental pollution and
employee health and safety or any license,
permit, certificate, approval or similar
authorization thereunder or (ii) any
investigation, proceeding, complaint, order,
directive, claim, citation or notice with
respect to: (A) any non-compliance with or
violation of any requirements of any statute,
rule or regulation relating to environmental
pollution or employee health and safety, by
Borrower or (B) the release, spill or
discharge, threatened or actual, of any
hazardous material or (C) the generation, use,
storage, treatment, transportation,
manufacture, handling, production or disposal
of any hazardous materials or (D) any other
environmental, health or safety matter, which
has a material adverse effect on Borrower or
its business, operations or assets or any
properties at which Borrower transported,
stored or disposed of any hazardous materials.
(f) Become aware of, obtained knowledge of, or
received notification of, any breach or
violation of any material covenant contained in
any instrument or agreement in respect of
Indebtedness for money borrowed by Borrower.
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5. Attached hereto as Schedule III are the calculations used in
determining, as of the end of such fiscal month whether Borrower is in
compliance with the covenants set forth in Section 7.9 and 7.14 of the Loan
Agreement for such fiscal month.
The foregoing certifications are made and delivered this day
of___________, 20_.
Very truly yours,
PNY TECHNOLOGIES, INC.
By:
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Title:
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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: First Vice President