EXHIBIT 10.1.7
AMENDMENT NO. 6 TO FINANCING AGREEMENTS
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PNY TECHNOLOGIES, INC.
000 Xxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
September 29, 1999
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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. 3"), Amendment No. 4 to Financing Agreements, dated April 20,
1998 and Amendment No. 5 to Financing Agreements, dated April __, 1999 (as the
same now exists or may hereafter be 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. Amendment to Definition. All references to the term "Maximum
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Credit" in the Loan Agreement and the other Financing Agreements shall be deemed
and each such reference is hereby amended to mean: (a) $50,000,000 for the
period beginning on and including September 29, 1999 and ending on but not
including January 1, 2000, and (b) $40,000,000 beginning on and including
January 1, 2000 and at all times thereafter.
2. Amendments to Financing Agreements.
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(a) Loans. Section 4.1(a)(iii)(B) of the Loan Agreement is
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hereby deleted in its entirety and the following substituted therefor:
"(B) (1) $20,000,000 for the period beginning on and including
September 29, 1999 and ending on but not including January 1, 2000,
and (2) $15,000,000 beginning on January 1, 2000 and at all times
thereafter."
(b) Withdrawal of Collateral. Notwithstanding anything to the
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contrary in any of the Financing Agreements (including, without limitation,
Section 2(c) of Amendment No. 3), Xxxx Xxxxx shall not be permitted to withdraw
any amounts from the collateral provided to Lender pursuant to the Pledge and
Security Agreement, dated June 2, 1997, by Xxxx Xxxxx in favor of Lender, during
the period beginning on and including September 29, 1999 and ending on but not
including January 1, 2000.
3. 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.
4. 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:
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(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 amendment fee referred to in Section
5 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.
5. Amendment Fee. Borrower shall pay to Lender as an amendment fee the
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amount of $10,000 which fee shall be fully earned and payable as of the date
hereof. Lender may, at its option, charge the amount of such fee directly to
Borrower's loan account maintained by Lender.
6. 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.
7. 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.
8. Governing Law. The validity, interpretation and enforcement of this
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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).
9. Binding Effect. This Amendment shall be binding upon and inure to the
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benefit of each of the parties hereto and their respective successors and
assigns.
10. 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.
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.
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Very truly yours,
PNY TECHNOLOGIES, INC.
formerly known as
P.N.Y. Electronics, Inc.
By: /s/ XXXXX XXXXX
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Title: Treasurer
AGREED:
CONGRESS FINANCIAL CORPORATION
By: /s/ XXXXX SART
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Title: First Vice President
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