Exhibit 10.3 to IntriCon Corporation Form 8-K dated October 5, 2007






Exhibit 10.3 


 


FIRST AMENDMENT


TO


LOAN AND SECURITY AGREEMENT


 


THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”) is made and entered into as of September 29, 2007, by and among INTRICON CORPORATION a Pennsylvania corporation (“IntriCon”), RESISTANCE TECHNOLOGY, INC., a Minnesota corporation (“RTI”), RTI ELECTRONICS, INC., a Delaware corporation (“RTIE”), and INTRICON TIBBETTS CORPORATION (formerly known as TI Acquisition Corporation), a Maine corporation (“ITC”) (each, a “Borrower”; collectively, the “Borrowers”), and LASALLE BANK
NATIONAL ASSOCIATION, a national banking association (the “Bank”).


RECITALS:


A.        Borrowers and Bank are parties to a certain Loan and Security Agreement dated as of May 22, 2007 (the “Loan Agreement”). Capitalized terms not otherwise defined in this Amendment shall have the meanings assigned to them in the Loan Agreement. 


B.        Borrowers have requested that Bank modify the Tangible Net Worth Covenant, and Bank has agreed to do so upon the terms and subject to the conditions set forth in this Amendment.


AGREEMENTS:


NOW, THEREFORE, in consideration of the premises herein set forth and for other good and valuable consideration, the nature, receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:





	
             
 	
            1.
 	
            Recitals. Borrowers and Bank agree that the Recitals set forth above are true and correct.
 









	
             
 	
            2.
 	
            Amendment to Tangible Net Worth Covenant.
 







a.         Restated Tangible Net Worth. Section 10.1 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:


10.1     Tangible Net Worth. As of each of the measurement dates set forth in the chart below, the Borrowers shall maintain consolidated Tangible Net Worth in an amount not less than the amount set opposite such date in the chart below:





	
            Measurement Date
 	
            Tangible Net Worth Requirement
 
	
            September 30, 2007:
 	
            $4,700,000
 
	
            December 31, 2007:
 	
            $5,000,000
 
	
            March 31, 2008, and the last day of each fiscal quarter thereafter:
 	
            Tangible Net Worth Requirement as of the immediately preceding Measurement Date, plus fifty percent (50.00%) of the aggregate consolidated Net Income earned by the Borrowers and their respective Subsidiaries during the immediately preceding fiscal quarter, provided, however, that net losses incurred in any fiscal quarter shall not be subtracted in the determination of the Tangible Net Worth Requirement.
 





 


 









 


b.        Subject to Section 3 below, this Amendment shall be deemed effective as of September 30, 2007.


3.         Conditions Precedent. This Amendment shall become effective upon delivery to the Bank of the following, each in form and substance acceptable to the Bank:


a.        This Amendment, duly executed by Borrowers.


b.         With respect to each Borrower, a copy of the resolutions of the Board of Directors of such Borrower authorizing the execution, delivery and performance of this Amendment certified as true and accurate by an officer of such Borrower, along with a certificate of such officer which certifies that, except as disclosed in and attached to such certificate, there has been no amendment to either the Articles of Incorporation or the Bylaws of such Borrower since true and accurate copies of the same were last delivered and certified to Bank, and that said Articles of Incorporation and the Bylaws (i) remain in full force and effect as of the date of this Amendment, (ii) identify each officer of such Borrower authorized to execute this Amendment and any other instrument or agreement executed by such Borrower in connection
with this Amendment, and (iii) set forth specimen signatures of each officer of such Borrower referred to above and identifies the office or offices held by such officer. 


c.         Such other documents, instruments and agreements as Bank may reasonably require, and payment of all unpaid legal fees and expenses incurred by Bank through the date of this Amendment in connection with the Loan Agreement and this Amendment.


4.         Representations; No Default. Each Borrower represents and warrants that: (a) such Borrower has the power and legal right and authority to enter into this Amendment and has duly authorized the execution and delivery of this Amendment and other agreements and documents executed and delivered by such Borrower in connection herewith, (b) neither this Amendment nor the agreements contained herein contravene or constitute a Default or Event of Default under the Loan Agreement or a default under any other agreement, instrument or indenture to which such Borrower is a party or a signatory, or any provision of such Borrower’s Articles of Incorporation or Bylaws or, to the best of such Borrower’s knowledge, any other agreement or requirement of law, or result in the imposition of any
lien or other encumbrance on any of its property under any agreement binding on or applicable to such Borrower or any of its property except, if any, in favor of Bank, (c) no consent, approval or authorization of or registration or declaration with any party, including but not limited to any governmental authority, is required in connection with the execution and delivery by such Borrower of this Amendment or other agreements and documents executed and delivered by such Borrower in connection herewith or the performance of obligations of such Borrower herein described, except for those which such Borrower has obtained or provided and as to which such Borrower has delivered certified copies of documents evidencing each such action to Bank, (d) no events have taken place and no circumstances exist at the date hereof which would give such Borrower grounds to assert a defense, offset or counterclaim to the obligations of such Borrower under the Loan Agreement or any of the other Loan
Documents, (e) there are no known claims, causes of action, suits, debts, liens, obligations, liabilities, demands, losses, costs and expenses (including attorneys’ fees) of any kind, character or nature whatsoever, fixed or contingent, which such Borrower may have or claim to have against the Bank, which might arise out of or be connected with any act of commission or omission of the Bank existing or occurring on or prior to the date of this Amendment, including, without limitation, any claims, liabilities or obligations arising with respect to the indebtedness evidenced by the Notes, and (f) no Event of Default has occurred and is continuing under the Loan Agreement.


 









 


5.         Affirmation, Further References. Bank and Borrowers each acknowledge and affirm that the Loan Agreement, as hereby amended, is hereby ratified and confirmed in all respects and all terms, conditions and provisions of the Loan Agreement (except as amended by this Amendment) and of each of the other Loan Documents shall remain unmodified and in full force and effect. All references in any document or instrument to the Loan Agreement are hereby amended and shall refer to the Loan Agreement as amended by this Amendment. 


6.         Merger and Integration, Superseding Effect. This Amendment, from and after the date hereof, embodies the entire agreement and understanding between the parties hereto and supersedes and has merged into it all prior oral and written agreements on the same subjects by and between the parties hereto with the effect that this Amendment, shall control with respect to the specific subjects hereof and thereof.


7.         Severability. Whenever possible, each provision of this Amendment and any other statement, instrument or transaction contemplated hereby or thereby or relating hereto or thereto shall be interpreted in such manner as to be effective, valid and enforceable under the applicable law of any jurisdiction, but, if any provision of this Amendment or any other statement, instrument or transaction contemplated hereby or thereby or relating hereto or thereto shall be held to be prohibited, invalid or unenforceable under the applicable law, such provision shall be ineffective in such jurisdiction only to the extent of such prohibition, invalidity or unenforceability, without invalidating or rendering unenforceable the remainder of such provision or the remaining provisions of this Amendment or any
other statement, instrument or transaction contemplated hereby or thereby or relating hereto or thereto in such jurisdiction, or affecting the effectiveness, validity or enforceability of such provision in any other jurisdiction.


8.         Successors. This Amendment shall be binding upon Borrowers and Bank and their respective successors and assigns, and shall inure to the benefit of Borrowers and Bank and to the respective successors and assigns of Bank.


9.         Costs and Expenses. Each Borrower jointly and severally agrees to reimburse Bank, upon execution of this Amendment, for all reasonable out-of-pocket expenses (including attorneys’ fees and legal expenses of counsel for Bank) incurred in connection with the Loan Agreement, including in connection with the negotiation, preparation and execution of this Amendment and all other documents negotiated, prepared and executed in connection with this Amendment, and in enforcing the obligations of Borrowers under this Amendment, and to pay and save Bank harmless from all liability for, any stamp or other taxes which may be payable with respect to the execution or delivery of this Amendment. 


10.       Headings. The headings of various sections of this Amendment have been inserted for reference only and shall not be deemed to be a part of this Amendment.


11.       Counterparts. This Amendment may be executed in several counterparts as deemed necessary or convenient, each of which, when so executed, shall be deemed an original, provided that all such counterparts shall be regarded as one and the same document, and any party to this Amendment may execute any such agreement by executing a counterpart of such agreement.


12.       Governing Law. This Amendment shall be governed by the internal laws of the State of Minnesota, without giving effect to conflict of law principles thereof.


 









 



13.       Release of Rights and Claims. Each Borrower, for itself and its successors and assigns, hereby releases, acquits, and forever discharges the Bank and its successors and assigns for any and all manner of actions, suits, claims, charges, judgments, levies and executions occurring or arising from the transactions entered into with the Bank prior to entering into this Amendment whether known or unknown, liquidated or unliquidated, fixed or contingent, direct or indirect which such Borrower may have against the Bank.


14.       No Waiver. Nothing contained in this Amendment (or in any other agreement or understanding between the parties) shall constitute a waiver of, or shall otherwise diminish or impair, the Bank’s rights or remedies under the Loan Agreement or any of the other Loan Documents, or under applicable law. 


 


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signature page follows]


 









 



IN WITNESS WHEREOF, the parties hereto have entered into this Amendment as of the date first above written.


	BORROWERS:	INTRICON CORPORATION,
a Pennsylvania corporation 
	 
	    	By:    	/s/   Scott Longval 
	 	Name:   Scott Longval
Title:     Chief Financial Officer 
	 





	 	RESISTANCE TECHNOLOGY, INC.,
a Minnesota corporation 
	 
	    	By:    	/s/   Scott Longval 
	 	Name:   Scott Longval
Title:     Chief Financial Officer
	 






	 	RTI ELECTRONICS, INC.,
a Delaware corporation 
	 
	    	By:    	/s/   Scott Longval 
	 	Name:   Scott Longval
Title:     Chief Financial Officer
	 







	 	INTRICON TIBBETTS CORPORATION,
(formerly known as TI Acquisition Cororation),
a Maine corporation 
	 
	    	By:    	/s/   Scott Longval 
	 	Name:   Scott Longval
Title:     Chief Financial Officer
	 







	BANK: 	LASALLE BANK NATIONAL ASSOCIATION,
a national banking association 
	 
	    	By:    	/s/   Peter Pricco 
	 	Name:   Peter Pricco
Title:     Vice President