NINTH AMENDMENT TO LOAN AND
SECURITY AGREEMENT
THIS NINTH
AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “
Amendment ”), dated as of August 3, 2009, is
entered into among WACHOVIA CAPITAL FINANCE CORPORATION (WESTERN),
a California corporation formerly known as Congress Financial
Corporation (Western) (“ Agent ”), as
administrative and collateral agent for the Lenders party to the
Loan Agreement (as defined below) from time to time (“
Lenders ”), WACHOVIA CAPITAL FINANCE CORPORATION
(WESTERN), a California corporation formerly known as Congress
Financial Corporation (Western), as a Lender (“
Wachovia ”), and ROCKFORD CORPORATION, an Arizona
corporation (“ Borrower Agent ”).
A. Agent,
Wachovia, Wachovia Bank, National Association, as arranger,
Borrower Agent, and Audio Innovations, Inc., an Oklahoma
corporation (“ AII ”) have previously entered
into that certain Loan and Security Agreement dated March 29,
2004, as amended by the First Amendment to Loan and Security
Agreement and Conditional Default Waiver dated as of June 10,
2004, the Second Amendment to Loan and Security Agreement dated as
of December 30, 2004, the Third Amendment to Loan and Security
Agreement dated as of August 31, 2005, the Fourth Amendment to
Loan and Security Agreement and Consent dated as of March 21,
2006, the Fifth Amendment to Loan and Security Agreement dated as
of August 31, 2006, the Sixth Amendment to Loan and Security
Agreement dated as of March 7, 2007, the Seventh Amendment to
Loan and Security Agreement dated as of November 28, 2007, and
the Eighth Amendment to Loan and Security Agreement dated as of
July 30, 2008 (the “ Loan Agreement ”),
pursuant to which Wachovia has made certain loans and financial
accommodations available to Borrower Agent and AII. Terms used
herein without definition shall have the meanings ascribed to them
in the Loan Agreement.
B. AII has
since dissolved.
C. Borrower
Agent has requested Agent and Wachovia to amend the Loan Agreement
in certain respects, and Agent and Wachovia are willing to
accommodate such request on the terms and conditions set forth
herein.
D. Borrower
Agent is entering into this Amendment with the understanding and
agreement that, except as specifically provided herein, none of
Agent’s or Lenders’ rights or remedies as set forth in
the Loan Agreement is being waived or modified by the terms of this
Amendment.
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants herein
contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1.
Amendments to Loan Agreement .
(a)
Events of Default . Section 10.1(n) of the Loan
Agreement is hereby amended and restated to read in its entirety as
follows:
“(n)
Intentionally Omitted;”
2.
Effectiveness of this Amendment . Agent must have received
the following items, in form and content acceptable to Agent,
before this Amendment is effective.
(a)
Amendment . This Amendment, fully executed in a sufficient
number of counterparts for distribution to all parties.
(b)
Representations and Warranties . The representations and
warranties set forth herein and in the Loan Agreement must be true
and correct.
(c)
Other Required Documentation. All other documents and
legal
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