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SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT AND WAIVER

Waiver Agreement

SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT AND WAIVER | Document Parties: COBRA ELECTRONICS CORPORATION | PRIVATEBANK AND TRUST COMPANY You are currently viewing:
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COBRA ELECTRONICS CORPORATION | PRIVATEBANK AND TRUST COMPANY

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Title: SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT AND WAIVER
Governing Law: Illinois     Date: 8/14/2009
Industry: Communications Equipment     Sector: Technology

SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT AND WAIVER, Parties: cobra electronics corporation , privatebank and trust company
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Exhibit 10.1

SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT AND WAIVER

THIS SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT AND WAIVER (“ Amendment ”) is made as of August 13, 2009 by and among COBRA ELECTRONICS CORPORATION, a Delaware corporation (the “ Borrower ”), THE PRIVATEBANK AND TRUST COMPANY, an Illinois state chartered bank, as Administrative Agent (“ Administrative Agent ”) and the Lenders currently party to the Loan Agreement (as hereinafter defined).

RECITALS

A. The Administrative Agent, the Lenders and the Borrower entered into a Loan and Security Agreement dated as of February 15, 2008 as amended by First Amendment to Loan and Security Agreement dated as of October 31, 2008 (as so amended, the “ Loan Agreement ”).

B. The parties to the Loan Agreement desire to enter into this Amendment for the purpose of making certain amendments to the Loan Agreement and waiving compliance with certain covenants in the Loan Agreement.

AGREEMENT

In consideration of the matters set forth in the recitals and the covenants and provisions herein set forth, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Definitions . Capitalized terms used but not defined herein are used as defined in the Loan Agreement.

2. Amendments . Upon satisfaction of the conditions precedent hereinafter set forth, the Loan Agreement shall be amended as follows:

2.1. The amount of the Revolving Loan Commitment of each Lender (currently set forth on its signature page to the Loan Agreement) shall be amended as follows:

 

Lender

  

Revolving Loan
Commitment

PrivateBank

RBS

  

$

$

15,743,488.60

12,256,511.40

2.2. Section 1.1 of the Loan Agreement shall be amended by adding new definitions of Availability Reserve , Dilution , Second Amendment Effective Date , Supplementary Fee Letter , Tangible Net Worth and Unmatured Event of Default thereto which read as follows:


Availability Reserve ” shall mean $2,500,000 for the period commencing the Second Amendment Effective Date through and including September 30, 2009 and $3,000,000 at all times thereafter.

Dilution ” shall mean, with respect to any period, the percentage obtained by dividing (i) the sum of non-cash credits against Accounts (including, but not limited to returns, adjustments and rebates) of Borrower for such period, plus pending or probable, but not yet applied, non-cash credits against Accounts of Borrower for such period, as determined by the Administrative Agent in its reasonable credit judgment consistent with industry standards for asset-based loans by (ii) gross invoiced sales of the Borrower for such period.

Second Amendment Effective Date ” shall mean August 13, 2009.

“Supplementary Fee Letter” shall mean the Supplementary Fee Letter dated August 13, 2009 between the Borrower and the Administrative Agent, as amended from time to time.”

Tangible Net Worth ” shall mean, as of any date, shareholders’ equity (including retained earnings) less prepaid assets and intangible assets of the Borrower and its Subsidiaries computed on a consolidated basis in accordance with GAAP.

Unmatured Event of Default ” shall mean any event that, if it continues uncured, will with the lapse of time or giving of notice, or both, constitute an Event of Default.

2.3. The definition of Applicable Margin contained in Section 1.1 of the Loan Agreement shall be amended in its entirety and as so amended shall read as follows:

Applicable Margin ” means, for any day, the rate per annum set forth below opposite the level (the “Level”) then in effect.

 

Level

  

Total Debt
to EBITDA
Ratio

  

Applicable
Margin for
Prime Rate
Loans

  

Applicable
Margin for
LIBOR Rate
Loans

  

Letter of Credit Fees

  

  

  

  

Documentary L/C
Fees

  

Standby
L/C Fees

I

  

Greater than or equal to 2.50:1

  

2.00%

  

4.50%

  

2.15%

  

3.00%

II

  

Greater than or equal to 2.00:1 but less than 2.50:1

  

1.00%

  

3.50%

  

2.00%

  

2.75%

III

  

Less than 2.00:1

  

0%

  

2.50%

  

1.85%

  

2.50%

 

2


The Applicable Margins with respect to Prime Rate Loans, LIBOR Rate Loans and the Letter of Credit Fees shall be adjusted, to the extent applicable, on the tenth (10 th ) Business Day after the Borrower provides the annual and quarterly financial statements and other information pursuant to subsection 9(c) , as applicable, and the related Compliance Certificate, with respect to fiscal quarters of Borrower ending on and after December 31, 2009, based on the Total Debt to EBITDA Ratio for such Computation Period. Notwithstanding anything contained in this paragraph to the contrary, (a) if the Borrower fails to deliver such financial statements and Compliance Certificate in accordance with the provisions of subsection 9(c) , the Applicable Margin shall be based upon Level I above beginning on the date such financial statements and Compliance Certificate were required to be delivered until the tenth (10 th ) Business Day after such financial statements and Compliance Certificate are actually delivered, whereupon the Applicable Margin shall be determined by the then current Level; (b) no reduction to any Applicable Margin shall become effective at any time when an Event of Default or Unmatured Event of Default has occurred and is continuing; (c) the initial Applicable Margin on the Second Amendment Effective Date shall be based on Level I until the date on which the financial statements and Compliance Certificate are delivered for the Fiscal Quarter ending December 31, 2009; and (d) the Applicable Margin shall be based upon Level I above until such time as the Borrower’s Total Debt to EBITDA Ratio qualifies for a different level for two (2) consecutive quarterly determination dates.

2.4. The introductory sentences of the definition of Eligible Account contained in Section 1.1 of the Loan Agreement shall be amended in their entirety to read as follows:

Eligible Account ” shall mean an Account (or in the case of clause (iii)(C) below, a claim arising from the sale of an Account) owing to Borrower which is acceptable to Administrative Agent in its reasonable credit judgment consistent with industry standards for asset-based loans for lending purposes. Without limiting Administrative Agent’s exercise of such judgment, Administrative Agent shall, in general, not consider an Account (or such claim) to be an Eligible Account unless it meets, and so long as it continues to meet, the following requirements:”

 

3


2.5. Clause (iv) of the definition of Eligible Account contained in Section 1.1 of the Loan Agreement shall be amended by deleting “fifty percent (50%)” and by substituting “twenty-five percent (25%)” therefor.

2.6. Clause (xiii) of the definition of Eligible Account contained in Section 1.1 of the Loan Agreement shall be amended by adding the following at the end thereof:

“and provided further that the Administrative Agent shall have the right, in its reasonable credit judgment consistent with industry standards for asset-based loans, to increase any of the percentage concentration limits contemplated under this clause (xiii) from time to time”

2.7. The introductory sentences of the definition of Eligible Inventory contained in Section 1.1 of the Loan Agreement shall be amended in their entirety to read as follows:

Eligible Inventory ” shall mean Inventory of Borrower which is acceptable to Administrative Agent, in its reasonable credit judgment consistent with industry standards for asset-based loans, for lending purposes. Without limiting Administrative Agent’s exercise of such judgment, Administrative Agent shall, in general, not consider Inventory to be Eligible Inventory unless it meets, and so long as it continues to meet, the following requirements:”

2.8. Section 2(a) of the Loan Agreement shall be amended in its entirety and as so amended shall read as follows:

 

 

(a)

Revolving Loans .

Subject to the terms and conditions of this Agreement and the Other Agreements, so long as no Event of Default or Unmatured Event of Default is then continuing, during the Original Term, each Lender, severally and not jointly, agrees to make in Dollars, Euros or Pounds Sterling, as requested by Borrower its Pro Rata Share of revolving loans and advances (the “Revolving Loans”) requested by Borrower up to such Lender’s Revolving Loan Commitment so long as after giving effect to such Revolving Loans, the sum of the aggregate unpaid principal balance of the Revolving Loans and the Letter of Credit Obligations does not exceed a Dollar Equivalent amount of up to the sum of the following sublimits (the “Revolving Loan Limit”) which shall be determined from time to time based on the most current borrowing base report furnished to the Administrative Agent pursuant to Section 9(a) hereof:

 

4


(i) Seventy-five percent (75%) of the face amount of Borrower’s Eligible Account; provided that such advance rate shall be reduced by one (1) percentage point for each whole percentage point (and rounded up to the nearest .25% in the case of a partial percentage point) by which Dilution (as determined by the Administrative Agent in its reasonable discretion based on the results of the most recent twelve (12) month period for which the Administrative Agent has conducted a field audit of the Borrower) exceeds fifteen percent (15%); plus

(ii) The lesser of (a) sixty percent (60%) of the lower of cost or market value of Borrower’s Eligible Inventory or (b) eighty-five percent (85%) of the appraised orderly liquidation value of Borrower’s Eligible Inventory; plus

(iii) Sixty percent (60%) against the face amount of commercial Letters of Credit issued or guaranteed by the Issuing Lender or letters of credit permitted under Section 13(b)(xii) hereof for the purpose of purchasing Eligible Inventory; provided, that such commercial Letters of Credit are in form and substance satisfactory to Administrative Agent; minus

(iv) The Availability Reserve and such other reserves as Administrative Agent elects, in its reasonable credit judgment consistent with industry standards for asset-based loans, to establish from time to time (including, without limitation, a rent reserve in an amount equal to three (3) months rent payable by Borrower for all of its leased inventory locations, a reserve for payments due under licensing agreements and a reserve with respect to Hedging Liabilities);

provided , that (x) the sum of the advances with respect to clauses (ii) and (iii) above shall at no time exceed Fourteen Million and No/100 Dollars ($14,000,000), and (y) the Revolving Loan Limit shall in no event exceed Twenty-Eight Million and No/100 Dollars ($28,000,000) (the “Maximum Revolving Loan Limit”) and further provided that the Administrative Agent may, in its reasonable credit judgment consistent with industry standards for asset-based loans, from time to time reduce the percentage advance rates specified in (i), (ii) and (iii) above upon notice to the Borrower and the Lenders.

The aggregate unpaid principal balance of the Revolving Loans (including the Dollar Equivalent of all Loans made in Euros or Pounds Sterling) shall not at any time exceed the lesser of the (i) Revolving Loan Limit minus the Letter of Credit Obligations and (ii) the Maximum Revolving Loan Limit minus the Letter of Credit Obligations. If at any time the outstanding Revolving Loans (including the Dollar Equivalent of all Loans made in Euros or Pounds Sterling) exceeds

 

5


either the Revolving Loan Limit or the Maximum Revolving Loan Limit, in each case minus the Letter of Credit Obligations, or any portion of the Revolving Loans (including the Dollar Equivalent of all Loans made in Euros or Pounds Sterling) and Letter of Credit Obligations exceeds any applicable sublimit within the Revolving Loan Limit, Borrower shall immediately, and without the necessity of demand by Administrative Agent, pay to Administrative Agent such amount as may be necessary to eliminate such excess and Administrative Agent shall apply such payment to the Revolving Loans in such order as Administrative Agent shall determine in its sole discretion; provided that Administrative Agent may, in its sole discretion, permit such excess (the “Interim Advance”) to remain outstanding and continue to advance Revolving Loans to Borrower on behalf of Lenders without the consent of any Lender for a period of up to sixty (60) calendar days, so long as (i) the amount of the Interim Advances does not exceed at any time One Million and No/100 Dollars ($1,000,000), (ii) the aggregate outstanding principal balance of the Revolving Loans (including the Dollar Equivalent of all Loans made in Euros or Pounds Sterling) does not exceed the Maximum Loan Limit, and (iii) Administrative Agent has not been notified by Requisite Lenders (or, if there are only three (3) Lenders, any two (2) of the Lenders) to cease making such Revolving Loans. If the Interim Advance is not repaid in full within sixty (60) days of the initial occurrence of the Interim Advance, no future advances may be made to Borrower without the consent of all Lenders until the Interim Advance is repaid in full.

Neither Administrative Agent nor any Lender shall be responsible for any failure by any other Lender to perform its obligations to make Revolving Loans hereunder, and the failure of any Lender to make its Pro Rata Share of any Revolving Loan hereunder shall not relieve any other Lender of its obligation, if any, to make its Pro Rata Share of any Revolving Loans hereunder.

If Borrower makes a request for a Revolving Loan as provided herein, Administrative Agent, at its option and in its sole discretion, shall do either of the following:

(i) advance the amount of the proposed Revolving Loan to Borrower disproportionately (a “Disproportionate Advance”) out of Administrative Agent’s own funds on behalf of Lenders, which advance shall be on the same day as Borrower’s request therefor with respect to Prime Rate Loans if Borrower notifies Administrative Agent of such request by 11:00 a.m., Chicago time on such day, and request settlement in accordance with Section 18 hereof such that upon such settlement each Lender’s share of the outstanding Revolving Loans (including, without limitation, the amount of any Disproportionate Advance) equals its Pro Rata Share; or

 

6


(ii) Notify each Lender by telecopy or other similar form of teletransmission of the proposed advance on the same day Administrative Agent is notified or deemed notified by Borrower of Borrower’s request for an advance pursuant to this Section 2(a) . Each Lender shall remit, to the demand deposit account designated by the Administrative Agent (i) with respect to Prime Rate Loans, at or prior to 3:00 P.M., Chicago time, on the date of notification, if such notification is made by the Administrative Agent to the Lenders at or prior to 1:00 p.m., Chicago time, or 10:00 A.M., Chicago time, on the business day immediately succeeding the date of such notification, if such notification is made by the Administrative Agent to the Lenders after 1:00 p.m., Chicago time, and (ii) with respect to LIBOR Rate Loans, at or prior to 12:00 noon., Chicago time, on the date such LIBOR Rate Loans are to be advanced, immediately available funds in an amount equal to such Lender’s Pro Rata Share of such proposed advance.

If and to the extent that a Lender does not settle with Administrative Agent as required under this Agreement (a “Defaulting Lender”) Borrower and Defaulting Lender severally agree to repay to Administrative Agent forthwith on demand such amount required to be paid by such Defaulting Lender to Administrative Agent, together with interest thereon, for each day from the date such amount is made available to Borrower until the date such amount is repaid to Administrative Agent (x) in the case of a Defaulting Lender at the Federal Funds Rate and (y) in the case of Borrower, at the interest rate applicable at such time for such Loans; provided, that Borrower’s obligation to repay such advance to Administrative Agent shall not relieve such Lender of its liability to Administrative Agent for failure to settle as provided in this Agreement.

Borrower hereby authorizes Administrative Agent, in its sole discretion, to charge any of Borrower’s accounts or advance Revolving Loans to make any payments of principal, interest, fees, costs or expenses required to be made under this Agreement or the Other Agreements; provided that the Administrative Agent agrees to give the Borrower advance notice (which may be telephonic or by electronic transmission) in the case of any such charge or Revolving Loan made in connection with payment of audit, legal or appraisal charges or any other payments to third parties.

 

7


A request for a Revolving Loan shall be made or shall be deemed to be made, each in the following manner: Borrower shall give Administrative Agent same day notice, no later than 12:00 noon (Chicago time) for such day, of its request for a Revolving Loan as a Prime Rate Loan, and at least three (3) Business Days prior notice of its request for a Revolving Loan as a LIBOR Rate Loan, in which notice Borrower shall specify the amount of the proposed borrowing and the proposed borrowing date; provided, however, that no such request may be made at a time when there exists an Event of Default or an event which, with the passage of time or giving of notice, will become an Event of Default. In the event that Borrower maintains a controlled disbursement account at Administrative Agent, each check presented for payment against such controlled disbursement account and any other charge or request for payment against such controlled disbursement account


 
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