Exhibit
10.21.4
THIRD
AMENDMENT TO LOAN AND SECURITY AGREEMENT AND WAIVER
This THIRD AMENDMENT TO LOAN AND
SECURITY AGREEMENT AND WAIVER (this “ Amendment
”) is made and entered into as of December 31, 2008, by and
among INTRICON CORPORATION, a Pennsylvania corporation (
“IntriCon ”), INTRICON, INC., formerly known as,
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 of IntriCon, RTI, RTIE and ITC,
a “ Borrower ” and, collectively, “
Borrowers ”), and BANK OF AMERICA N.A. as successor by
merger to LASALLE BANK NATIONAL ASSOCIATION., a national banking
association (“ Bank ”).
RECITALS:
A. Borrowers
and Bank are parties to that certain Loan and Security Agreement
dated as of May 22, 2007 (as the same may have been or may
hereafter be amended, restated, supplemented or otherwise modified
from time to time, 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 Fixed Charge Coverage
covenant.
C. Bank
has agreed to amend the Loan Agreement and certain of the Loan
Documents upon 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
Fixed Charge Coverage . Section 10.3 of the Loan
Agreement is hereby amended by deleting it in its entirety and
replacing it with the foregoing:
10.3
Fixed Charge Coverage . As of the last day of each calendar
quarter, for the period of four (4) consecutive calendar quarters
then-ended, the Borrowers and their respective Subsidiaries shall
maintain a ratio of (a) the total of consolidated EBITDA for such
period, minus the sum of all income taxes paid in cash by
the Borrowers on a consolidated basis and all Capital Expenditures
of the Borrowers made during such period which are not financed
with Funded Debt, to (b) the sum for such period of (i) Interest
Charges plus (ii) required or scheduled payments made in
respect of principal of Funded Debt, of not less than 1.25 to 1.00
on and before December 31, 2008, and not less than 1.50 to 1.00
thereafter.
3.
Conditions
Precedent . This Amendment shall become effective upon delivery
to Bank of the following, each in form and substance acceptable to
Bank:
a.
This Amendment,
duly executed by Borrowers.
1
b.
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 he
