Exhibit 10.1
SIXTH MODIFICATION TO LOAN AND SECURITY AGREEMENT
This Sixth Modification to Loan and Security Agreement (this “Modification”) is entered into by and between INFOSONICS CORPORATION and INFOSONICS DE MEXICO S.A. DE C.V. (jointly and severally, individually and collectively “Borrower”) and COMERICA BANK (“Bank”) as of this 5th day of August 2005, at San Jose, California.
RECITALS
This Modification is entered into upon the basis of the following facts and understandings of the parties, which facts and understandings are acknowledged by the parties to be true and accurate:
Bank and Borrower previously entered into a Loan and Security Agreement (Accounts and Inventory) dated August 20, 2002, which was subsequently modified pursuant to those certain modification agreements dated March 13, 2003, August 19, 2003, March 4, 2004, March 29, 2004 and July 28, 2004. The Loan and Security Agreement as so modified, and as such may be otherwise modified, amended, restated, supplemented, revised or replaced from time to time prior to the date hereof shall collectively be referred to herein as the “Agreement.”
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as set forth below.
AGREEMENT
1. Incorporation by Reference. The Recitals and the documents referred to herein are incorporated herein by this reference. Except as otherwise noted, the terms not defined herein shall have the meaning set forth in the Agreement.
2. Modification to the Agreement. Subject to the satisfaction of the conditions precedent as set forth in Section 3 hereof, the Agreement is hereby modified as set forth below.
A. Section 1.11 of the Agreement is hereby amended by deleting it in its entirety and replacing it with the following:
“1.11 Credit Limit shall mean Ten Million and 00/100 Dollars ($10,000,000.00).”
B. In Section 3.1 of the Agreement, the date “August 15, 2005” is hereby deleted and replaced with “September 15, 2005.”
3. Legal Effect.
a. Except as specifically set forth in this Modification, all of the terms and conditions of the Agreement remain in full force and effect. Except as expressly set forth herein, the execution, delivery, and performance of this Modification shall not operate as a waiver of, or as an amendment of, any right, power or remedy of Bank under the Agreement, as in effect prior to the date hereof. Borrower ratifies and reaffirms the continuing effectiveness of all promissory notes, guaranties, securities agreements, mortgages, deeds of trust, environmental agreements and all other instruments, documents and agreements entered into in connection with the Agreement.
b. Borrower represents and warrants that each of the representations and warranties contained in the Agreement are true and correct as of the date of this Modification, and that no Event of Default has occurred and is continuing.
c. The effectiveness of this Modification and each of the documents, instruments and agreements entered into in connection with this Modification is conditioned upon receipt by Bank of this Modification and any other documents which Bank may require to carry out the terms.
4. Miscellaneous Provisions.
a. This is an integrated Modification and supersedes all prior negotiations and agreements regarding the subject matter hereof. All amendments hereto must be in writing and signed by the parties.
b. This Modification may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties have agreed as of the date first set forth above.
INFOSONICS CORPORATION | COMERICA BANK | ||
|
|
|
|
|
|
|
|
By: /s/ Joseph Ram |
| By: /s/ Tomas Schmidt |
|
Name: Joseph Ram | Name: Tomas Schmidt | ||
Title: CEO | Title: Vice President – Western Division | ||
|
| ||
|
| ||
INFOSONICS DE MEXICO S.V. DE C.V. |
| ||
|
| ||
|
| ||
By: /s/ Joseph Ram |
|
| |
Name: Joseph Ram |
| ||
Title: CEO |
| ||