EXHIBIT 10.1.3
AMENDMENT NO. 2 TO FINANCING AGREEMENTS
---------------------------------------
PNY TECHNOLOGIES, INC.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
April 15, 1997
CoreStates Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Congress Financial Corporation,
as Agent
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Gentlemen:
CoreStates Bank, N.A. ("Lender"), Congress Financial Corporation, as agent
for Lender (in such capacity, "Agent") and PNY Technologies, Inc., formerly
known as P.N.Y. Electronics, Inc. ("Borrower") have entered into certain
financing arrangements pursuant to which Agent may make loans and advances and
provide other financial accommodations to Borrower as set forth in the Amended
and Restated Loan Agreement, dated February 23, 1996, by and among Lender, Agent
and Borrower as amended by Amendment No. 1 to Financing Agreements, dated July
3, 1996 (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").
Borrower has requested that Lender and Agent (a) waive certain Events of
Default, (b) change the interest rate payable by Borrower, (c) amend certain
financial covenants and (d) agree to certain other amendments to the Financing
Agreements in connection with the foregoing. Subject to the terms and
conditions contained herein, Lender and Agent are willing to waive such Events
of Default, change the interest rate, amend certain financial covenants and
agree to such amendments. By this Amendment, Lender, Agent and Borrower desire
and intend to evidence such waivers and amendments.
In consideration of the foregoing and the agreements and covenants
contained herein, the parties hereto agree as follows:
2. Definitions.
-----------
(a) Amendments to Definition. All references to the term "Interest
------------------------
Rate" in the Loan Agreement and any of the other Financing Agreements shall be
deemed and each such reference is hereby amended to mean, effective March 15,
1997, as to Prime Rate Loans, a rate of one and one-quarter (1 1/4%) percent per
annum in excess of the Prime Rate and, as to Eurodollar Rate Loans, a rate of
two and one-half (2 1/2%) percent per annum in excess of the Adjusted Eurodollar
Rate (based on the Eurodollar Rate applicable for the Interest Period selected
by Borrower as in effect three (3) Business Days after the date of receipt by
Agent of the request of Borrower for such Eurodollar Rate Loans in accordance
with the terms hereof, whether such rate is higher or lower than any rate
previously quoted to Borrower); provided, that:
-------- ----
(i) if the Net Income of Borrower for the fiscal year of
Borrower ending December 31, 1997 is greater than $5,000,000 calculated based on
the unaudited financial statements of Borrower for such period received by
Agent, then effective as of the first day of the month after the receipt by
Agent of such financial statements, the Interest Rate as to Prime Rate Loans
shall be a rate of one (1%) percent per annum in excess of the Prime Rate and
the Interest Rate, as to Eurodollar Rate Loans, shall be a rate of two and one-
quarter (2 1/4%) percent per annum in excess of the Adjusted Eurodollar Rate;
(ii) if the Net Income of Borrower for the fiscal year of
Borrower ending December 31, 1997, calculated based on the audited financial
statements of Borrower for such period received by Agent in accordance with
Section 7.11(a) of the Loan Agreement is (A) greater than $5,000,000, then the
Interest Rate as to Prime Rate Loans shall be a rate of three-quarters of one
(3/4%) percent per annum in excess of the Prime Rate and the Interest Rate as to
Eurodollar Rate Loans shall be a rate of two (2%) percent per annum in excess of
the Adjusted Eurodollar Rate effective as of the first day of the month after
the receipt by Agent of such audited financial statements and (B) equal to or
less than $5,000,000, then the Interest Rate as to Prime Rate Loans shall be a
rate of one and one-quarter (1 1/4%) percent per annum in excess of the Prime
Rate and the Interest Rate as to Eurodollar Rate Loans shall be a rate of two
and one-half (2 1/2%) percent per annum in excess of the Adjusted Eurodollar
Rate Loans, effective as of the first day of the month after the receipt by
Agent of such audited financial statements; and
(iii) notwithstanding anything to the contrary set forth above,
the Interest Rate shall mean the rate of three and
-2-
one-quarter (3 1/4%) percent per annum in excess of the Prime Rate as to Prime
Rate Loans and the rate of four and one-half (4 1/2%) percent per annum in
excess of the Adjusted Eurodollar Rate as to Eurodollar Rate Loans, at Agent's
option, (A) for the period on and after the date of termination or non-renewal
of the Loan Agreement or the date fifteen (15) days after the date of notice by
Agent to Borrower of an Event of Default under Section 8.1(a) of the Accounts
Agreement as a result of the failure of Borrower to comply with Sections 7.9 or
7.10 of the Loan Agreement or the date three (3) Business Days after the date of
notice by Agent to Borrower of any other Event of Default, and for so long as
any such Event of Default is continuing as determined by Agent or until such
time as all Obligations are indefeasibly paid in full (notwithstanding entry of
any judgment against Borrower) and (B) on the Loans at any time outstanding in
excess of the amounts available to Borrower under Section 4 of the Loan
Agreement (whether or not such excess(es), arise or are made with or without the
receipt by Agent of such financial statements, Lender's or Agent's knowledge or
consent and whether made before or after an Event of Default).
(b) Additional Definitions.
----------------------
(i) "Net Income" shall mean, as to any Person, with respect to
any period, the consolidated net income (loss) of such Person, determined in
accordance with GAAP, excluding, however, to the extent included therein, any
extraordinary gains, any extraordinary and unusual items and income or loss
attributable to equity in Subsidiaries or Affiliates, any net income realized as
a result of changes of accounting principles or the application thereto to such
Person, any gain (but not loss), together with any related Provision for Taxes
on such gain (but not loss), realized in connection with (A) any sale, lease
conveyance, or other disposition of any assets (including, without limitation,
dispositions pursuant to sale and leaseback transactions), other than in the
ordinary course of business and (B) the sale of any shares of capital stock or
equivalents, excluding any extraordinary gain (but not loss), together with any
Provision for Taxes on such extraordinary gain (but not loss).
(ii) "Provision for Taxes" shall mean, with respect to a fiscal
year of any Person, an amount equal to all taxes imposed on or measured by net
income, whether federal, state or local, and whether foreign or domestic, that
are paid or payable by such Person in respect of such fiscal year on a
consolidated basis in accordance with GAAP.
(c) Interpretation. All capitalized terms used herein shall have the
--------------
meanings assigned thereto in the other Financing Agreements, unless otherwise
defined herein.
-3-
3. Adjusted Tangible Net Worth.
---------------------------
(a) Section 7.9(a) of the Loan Agreement is hereby deleted in its
entirety and the following substituted therefor:
"(a) Borrower shall not permit Adjusted Tangible Net Worth for the
periods stated below to be not less than the amount specified below for
such period and, after the last day of the period set forth below in
Section 7.9(a)(x), effective as of the first day of each calendar quarter
commencing with the calendar quarter ending June 30, 1998, Borrower shall
not permit Adjusted Tangible Net Worth in any such quarter to be less than
the amount equal to the amount required for the immediately preceding
calendar quarter plus $1,000,000:
Adjusted Tangible
Period Net Worth
------ -----------------
(i) From the date hereof
through March 31, 1996 $14,008,000 (or
if less, the amount
equal to eighty (80%)
percent of the Adjusted
Tangible Net Worth for
Borrower on a stand-alone
basis as at December 31,
1995 calculated based on
the audited financial
statements of Borrower
delivered to Agent pursuant
to Section 7.11(a)(i))
(ii) From April 1, 1996
through June 30, 1996 $17,669,000
(iii) From July 1, 1996
through September 30, 1996 $ 4,500,000
(iv) From October 1, 1996
through December 31, 1996 $ 7,000,000
(v) From January 1, 1996
through March 31, 1997 $10,000,000
(vi) From April 1, 1997
through June 30, 1997 $ 1,400,000
(vii) From July 1, 1997
through September 30, 1997 $ 3,400,000
-4-
(viii) From October 1, 1997
through December 31, 1997 $ 5,500,000
(ix) From January 1, 1998
through March 31, 1998 $ 6,400,000
(x) From April 1, 1998
through June 30, 1998 $7,400,000"
4. Interest Coverage Ratio. Section 7.10 of the Loan Agreement is hereby
-----------------------
deleted in its entirety and the following substituted therefor:
"7.10 Interest Coverage Ratio. Borrower shall not permit the Interest
-----------------------
Coverage Ratio for the periods stated below to be less than the amount
specified below for such period:
Period Interest Coverage Ratio
------ -----------------------
(a) From April 1, 1997
through June 30, 1997 2.00 to 1
(b) From July 1, 1997
through September 30, 1997 2.25 to 1
(c) From October 1, 1997
through December 31, 1997 2.50 to 1
(d) From January 1, 1998
and all times thereafter 3.00 to 1"
5. Financial Statements and Other Information. Section 7.11 of the Loan
------------------------------------------
Agreement is hereby amended by adding a new Section 7.11(d) thereto as follows:
"(d) Borrower shall provide Agent and Lender within ninety
(90) days after the beginning of each of its fiscal years, an
annual operating plan (to include forecasted consolidated
balance sheets, statements of income and expenses and
statements of cash flow, in each case consistent with
Borrower's past practices) for Borrower as at the end of and
for each quarter of such fiscal year, together with (i)
forecasts of the nature requested in this Section 7.11(d),
computed on an annual basis and (ii) appropriate supporting
detail as reasonably requested by Agent and Lender."
6. Representations, Warranties and Covenants. In addition to the
-----------------------------------------
continuing representations, warranties and covenants heretofore or hereafter
made by Borrower to Lender pursuant to
-5-
the 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 Financing Agreements):
(a) No Event of Default exists on the date of this Amendment (after
giving effect to the amendments to the 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 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 upon
--------------------
the satisfaction of each of the following conditions precedent in a manner
satisfactory to Lender:
(a) the receipt by Agent 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 or time or both, would constitute an Event of Default.
8. Waivers.
-------
(a) Lender hereby waives the Event of Default arising or which will
arise prior to March 31, 1997 as a result of the failure of Borrower to
maintain the Adjusted Tangible Net Worth for the period prior to, and including,
March 31, 1997 in the amounts required under Section 7.9 of the Loan Agreement.
(b) Lender hereby waives the Event of Default arising or which will
arise prior to March 31, 1997 as a result of the failure of Borrower to maintain
the Interest Coverage Ratio for the period prior to, and including, March 31,
1997 in the amounts required under Section 7.10 of the Loan Agreement.
(c) Lender has not waived and is not by this Amendment waiving, and
has no intention of waiving any other Event of Default which may have occurred
or will occur prior to March 31, 1997, or may be continuing on March 31, 1997 or
any Event of Default which may occur after March 31, 1997 (whether the same or
similar to the Events of Default referred to in Sections 6(a) and 6(b) above or
otherwise) and Lender reserves the right, in its discretion, to exercise any or
all of its rights and remedies arising under the terms of the Financing
Agreements as a result
-6-
of any Event of Default which may have occurred or will occur prior to March 31,
1997, or are continuing on March 31, 1997 or any Event of Default which may
occur after March 31, 1997 (whether the same or similar to the Events of Default
described in Sections 6(a) and 6(b) above or otherwise). The waivers contained
in Sections 6(a) and 6(b) shall not constitute waivers of any Events of Default
arising as a result of the failure of Borrower to comply with Sections 7.9 or
7.10 of the Loan Agreement at any time after March 31, 1997 (except as otherwise
provided herein).
9. Effect of this Amendment. Except as modified pursuant hereto, no
------------------------
other changes or modifications to the Financing Agreements are intended or
implied and in all other respects the 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 and the other Financing Agreements, the terms of this Amendment shall
control.
10. 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.
11. Governing Law. The rights and obligations hereunder of each of the
-------------
parties hereto shall be governed by and interpreted and determined in accordance
with the laws of the State of New York.
12. 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.
13. 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 hereof.
-7-
Please sign the enclosed counterpart of this Amendment in the space
provided below, whereupon this Amendment, as so accepted by Lender and Agent,
shall become a binding agreement among Borrower, Lender and Agent.
Very truly yours,
PNY TECHNOLOGIES, INC.,
formerly known as
P.N.Y. Electronics, Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------
Title: Senior Vice-President
----------------------
AGREED:
CONGRESS FINANCIAL CORPORATION,
in its capacity as Agent
By: /s/ ILLEGIBLE
---------------------------
Title: Vice President
------------------------
CORESTATES BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Title: Vice President
------------------------
-8-
