FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit 10.3
FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (“Amendment”) is made as of April 9, 2010 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 heretofore amended (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.
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 definition of Availability Reserve contained in Section 1 of the Loan is hereby amended in its entirety to read as follows:
“Availability Reserve” shall mean $3,000,000 for the period prior to the Fifth Amendment Effective Date and $2,500,000 at all times thereafter.
2.2. Section 1.1 of the Loan Agreement is hereby amended by adding new definitions of Fifth Amendment and Fifth Amendment Effective Date which read as follows:
“Fifth Amendment” means the Fifth Amendment to Loan and Security Agreement dated as of April 9, 2010 by and among the Borrower, the Administrative Agent and the Lenders.
“Fifth Amendment Effective Date” shall mean April 9, 2010.
2.3. Section 4(c) of the Loan Agreement is hereby amended by adding a new subsection (vi) at the end thereof which reads as follows:
“(vi) Fifth Amendment Fee. The Borrower agrees to pay to the Administrative Agent for the pro rata account of the Lenders party to the Fifth Amendment the sum of $10,000 as and for a nonrefundable amendment fee, such fee to be payable on July 1, 2010 provided that such fee shall be waived in the event the Borrower has repaid the Liabilities in full and terminated the Revolving Loan Commitments on or before June 30, 2010.”
3. Affirmation. Except as expressly amended hereby, the Loan Agreement and the Other Agreements are and shall continue in full force and effect and the Borrower hereby fully ratifies and affirms the Loan Agreement and each Other Agreement to which it is a party. Reference in any of this Amendment, the Loan Agreement or any Other Agreement to the Loan Agreement shall be a reference to the Loan Agreement as amended hereby and as further amended, modified, restated, supplemented or extended from time to time.
4. Representations and Warranties. To induce the Administrative Agent and Lenders to execute this Amendment, the Borrower hereby represents and warrants to the Lenders as follows:
4.1. The Borrower is duly authorized to execute and deliver this Amendment and is duly authorized to perform its obligations hereunder.
4.2. The execution, delivery and performance by the Borrower of this Amendment do not and will not (i) require any consent or approval of any Person (other than any consent or approval which has been obtained and is in full force and effect), (ii) conflict with (A) any provision of law, (B) the charter, by-laws or other organizational documents of the Borrower or (C) any agreement, indenture, instrument or other document, or any judgment, order or decree, which is binding upon the Borrower or any of its properties or (iii) require, or result in, the creation or imposition of any Lien on any asset of the Borrower other than Liens in favor of the Administrative Agent.
4.3. This Amendment is the legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to bankruptcy, insolvency and similar laws affecting enforceability of creditors’ rights generally and to general principles of equity.
4.4. The representations and warranties in the Loan Agreement and Other Agreements (including but not limited to Section 11 of the Loan Agreement) are true and correct with the same effect as though made on and as of the date of this Amendment (except to the extent stated to relate to a specific earlier date, in which case such representations and warranties were true and correct as of such earlier date).
4.5. No Unmatured Event of Default or Event of Default has occurred and is continuing.
5. Conditions to Amendment. This Amendment shall become effective upon the satisfaction in full of all of the following conditions precedent, each of which shall be satisfactory to the Administrative Agent and the Requisite Lenders:
5.1. Amendment. The Borrower and the Requisite Lenders shall have executed and delivered to the Administrative Agent this Amendment.
5.2. Fees and Expenses. The Borrower shall have paid all of the Administrative Agent’s legal fees and expenses in connection with this Amendment to the extent invoiced.
5.3. Other. Such other documents as the Administrative Agent or Lender shall reasonably request.
6. Costs and Expenses. The Borrower shall pay or reimburse the Administrative Agent within five Business Days after demand for all reasonable costs and expenses (including reasonable attorneys fees) incurred by it in connection with the preparation, delivery, administration, and execution of this Amendment and the documentation and transactions contemplated hereby.
7. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall constitute an original, but all of which when taken together shall constitute one instrument. Delivery of an executed counterpart of this Amendment by facsimile or electronic transmission shall be effective as delivery of an original counterpart.
8. Headings. The headings and captions of this Amendment are for the purposes of reference only and shall not affect the construction of, or be taken into consideration in interpreting, this Amendment.
9. APPLICABLE LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS WITHOUT GIVING EFFECT TO ILLINOIS CHOICE OF LAW DOCTRINE.
The parties hereto have caused this Amendment to be executed by their duly authorized officers, all as of the day and year first above written.
Signature Pages Follow
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COBRA ELECTRONICS CORPORATION |
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By: |
/s/ Xxxxxxx Xxxxx |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Senior Vice President & CFO |
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THE PRIVATEBANK AND TRUST COMPANY, individually as a Lender and as Administrative Agent |
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By: |
/s/ Xxxxxxxx Xxxxx |
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Name: |
Xxxxxxxx Xxxxx |
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Title: |
Managing Director |
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RBS CITIZENS, N.A., as a Lender |
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By: |
/s/ Xxxx X. Xxxxxxx |
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Name: |
Xxxx X. Xxxxxxx |
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Title: |
Senior Vice President |
