EXHIBIT 10.1.13
AMENDMENT NO. 12 TO FINANCING AGREEMENTS
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PNY TECHNOLOGIES, INC.
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October 16, 2000
Congress Financial Corporation
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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 and Amendment No. 11 to Loan and Security Agreement, dated September 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.
(a) Amendments to Definitions. All references to the term "Maximum
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Credit" in the Loan Agreement and the other Financing Agreements and each such
reference is hereby amended to mean $60,000,000 for the period commencing on
October 16, 2000 through and including November 30, 2000 and $50,000,000 at all
other times.
(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. Consent. Notwithstanding any provision of the Loan Agreement or
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any of the other Financing Agreements to the contrary, subject to the terms and
conditions contained in this Amendment, Lender hereby consents to the issuance
by Borrower, and sale in a registered public offering, of capital stock of
Borrower (the "Offering"); provided, that (a) Borrower shall not pay or be
required to pay any dividends or repurchase or redeem any capital stock or make
any other payments in respect thereof, except that Borrower may redeem Series B
Preferred Stock and Series C Preferred Stock in accordance with the terms
thereof as in effect on the date hereof in an aggregate amount not to exceed
$18,100,000, with proceeds payable to Borrower from the Offering, (b) the terms
of the Offering and of the capital stock that is the subject thereof, and the
terms and conditions of the purchase and sale of such capital stock, shall not
include any terms that limit the right of Borrower to request or receive Loans
or Credits or the right of Borrower or any other party thereto to amend, modify,
supplement, extend, renew, restate or replace any of the other Financing
Agreements or otherwise relate to or adversely affect the arrangements of
Borrower with Lender or are more restrictive or burdensome to Borrower than the
terms of any capital stock of Borrower in effect on the date hereof, and (c) as
of the date of such issuance and sale and after giving effect thereto,
Shareholder shall be the legal, beneficial and record owner of not less than
fifty-one (51%) percent of all issued and outstanding capital stock of Borrower
entitled to vote.
3. Borrowing Base Certificate. Notwithstanding anything to the
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contrary contained in Section 5.2(a) of the Loan Agreement, Borrower shall only
be required to provide to Lender a Borrowing Base Certificate on the last
Business Day of each month if, as of such date (a) no Event of Default exists or
shall have occurred and be continuing and (b) the Excess Availability of
Borrower at all times during the immediately preceding thirty (30) consecutive
days shall have been not less than $25,000,000 and the Excess Availability of
Borrower on such date shall be not less than $25,000,000; provided, that, the
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foregoing shall not be construed to limit the obligation of Borrower to provide
to Lender all Borrowing Base Certificates required by such Section 5.2(a) at any
time that the Excess Availability or Borrower shall be less than $25,000,000 or
an Event of Default shall exist or have occurred and be continuing.
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
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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. Amendment Fee. In consideration of the amendment set forth herein,
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Borrower shall pay to Lender an amendment fee in the amount of $15,000, which
fee is fully earned and payable on the date hereof. Lender may, at its option,
charge such fee to the loan account of Borrower maintained by Lender.
6. 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.
7. 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.
8. 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.
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
(without giving effect to principles of conflicts of laws).
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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 maybe 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.
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/ ▇▇▇▇▇ ▇▇▇▇▇
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Title: Treasurer
AGREED:
CONGRESS FINANCIAL CORPORATION
By: /s/ ILLEGIBLE
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Title: Vice President
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