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:
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Revolving Loan
Commitment
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PrivateBank
RBS
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$
$
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15,743,488.60
12,256,511.40
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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.
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Total Debt
to EBITDA
Ratio
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Applicable
Margin for
Prime Rate
Loans
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Applicable
Margin for
LIBOR Rate
Loans
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Letter of Credit
Fees
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Documentary L/C
Fees
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Standby
L/C Fees
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I
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Greater than or
equal to 2.50:1
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2.00%
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4.50%
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2.15%
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3.00%
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II
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Greater than or
equal to 2.00:1 but less than 2.50:1
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1.00%
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3.50%
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2.00%
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2.75%
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III
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Less than
2.00:1
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0%
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2.50%
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1.85%
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2.50%
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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:”
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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:
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:
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(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
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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
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(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.
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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