AMENDMENT NO. 10 TO FINANCING AGREEMENTS
200 Webro Road
Parsippany, New Jersey
August 21, 2000
Congress Financial Corporation
1133 Avenue of the Americas
, New York
Congress Financial Corporation ("Lender"), and PNY Technologies
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 and Amendment No. 9 to Loan and Security Agreement, dated July
24, 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.
In connection with the review of the financial statements of Borrower by
its independent certified public accountants for the period ended June 30, 2000.
15 shares of the currently outstanding Series B Preferred Stock of Borrower and
3 shares of the currently outstanding Series C Preferred Stock of Borrower in
each case owned by Ruth Cohen and listed on the balance sheet of Borrower in the
aggregate amount of $18,060,000 are being reclassified as indebtedness under
GAAP. Borrower has requested that Lender agree to amend the definition of the
term Adjusted Tangible Net Worth in the Loan Agreement so that such preferred
stock continues to be deemed equity for purposes of such definition,
notwithstanding the reclassification.
In consideration of the foregoing and the agreements and covenants
contained herein, Borrower and Lender hereby agree that in the calculation of
the Adjusted Tangible Net Worth of Borrower for purposes of Section 7.9 of the
Loan Agreement such preferred stock in the amount of up to $18,060,000 to the
extent outstanding shall be deemed to constitute equity at all times,
notwithstanding that such amount shall be reclassified as indebtedness pursuant
to the requirements of GAAP.
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, the Loan Agreement and the other Financing Agreements, the
terms of this Amendment shall control. The Loan Agreements and this Amendment
shall be read an construed as one agreement.
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
(without giving effect
to principles of conflicts of laws).
The Amendment shall be binding upon and inure to the benefit of each of the
parties hereto and their respective successors and assigns.
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.
Please sign the enclosed counterpart of this Amendment in the space
whereupon this Amendment, upon acceptance by Lender, shall become a binding
agreement by and between Borrower and Lender.
Very truly yours,
formerly known as
P.N.Y. Electronics, Inc.
By: /s/ Heidi Stuto
CONGRESS FINANCIAL CORPORATION
By: Janet L. Sart
Title: First Vice President