THIRD AMENDMENT TO CREDIT AND GUARANTY AGREEMENT
EXHIBIT
10.9
THIRD AMENDMENT TO CREDIT
AND GUARANTY AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AND
GUARANTY AGREEMENT (hereinafter referred to as this "Third Amendment") is
made as of the 29th day of January, 2010, by and among
BEL FUSE INC., a corporation
duly organized, validly existing and in good standing under the laws of the
State of New Jersey, having an address located at 000 Xxx Xxxxx Xxxxxx, Xxxxxx
Xxxx, Xxx Xxxxxx 00000 (hereinafter referred to as the "Borrower"),
AND
BEI, VENTURES INC., a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, having an address located at c/o Bel Fuse Inc., 000
Xxx Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000 (hereinafter referred to as
"Bel
Ventures"),
AND
BEL POWER INC., a corporation
duly organized, validly existing and in good standing under the laws of the
State of Massachusetts, having an address located at c/o Bel Fuse Inc., 000 Xxx
Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000 (hereinafter referred to as "Bel
Power"),
AND
BEL TRANSFORMER INC., a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, having an address located at c/o Bel Fuse Inc., 000
Xxx Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000 (hereinafter referred to as
"Bel
Transformer"),
AND
BEL CONNECTOR INC., a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, having an address located at c/o Bel Fuse Inc., 000
Xxx Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000 (hereinafter referred to as
"Bel
Connector"),
AND
CINCH CONNECTORS, INC., a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, having an address located at c/o Bel Fuse Inc., 000
Xxx Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000 (hereinafter referred to as
"Cinch Connectors",
and hereinafter Bel Ventures, Bel Power, Bel Transformer, and Bel
Connector shall be collectively referred to as the "Original Guarantors",
and hereinafter the Original Guarantors and Cinch Connectors shall be
collectively referred to as the "Guarantors"),
AND
BANK OF AMERICA, NATIONAL
ASSOCIATION, a national banking association duly organized and validly
existing under the laws of the United States of America, having an office
located at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred
to as the "Lender").
WITNESSETH:
WHEREAS, pursuant to the
terms, conditions, and provisions of that certain Credit and Guaranty Agreement
dated February 12, 2007, executed by and among the Borrower, the Lender, Bel
Power Products Inc., a Delaware corporation (hereinafter referred to as "Bel Power Products"),
and the Original Guarantors (hereinafter referred to as the "Original Loan
Agreement"), (i) the Lender made available to the Borrower an unsecured
revolving credit loan facility in the maximum principal amount of up to Twenty
Million and 00/100 ($20,000,000.00) Dollars for working capital purposes,
capital expenditures, and other lawful corporate purposes of the Borrower
(hereinafter referred to as the "Revolving Credit
Facility") and (ii) each Original Guarantor and Bel Power Products, as an
original guarantor, absolutely, irrevocably and unconditionally guarantied the
full and prompt payment when due (whether at stated maturity, by acceleration or
otherwise) of the "Borrower Obligations" (as such term is defined in the
Original Loan Agreement); and
WHEREAS, the Revolving Credit
Facility is evidenced by that certain Revolving Credit Loan Note dated February
12, 2007, executed by the Borrower, as maker, in favor of the Lender, as payee
(hereinafter referred to as the "Revolving Credit Loan
Note"), in the maximum principal amount of up to $20,000,000.00;
and
WHEREAS, Bel Power Products
has merged with and into Bel Power, with Bel Power being the surviving entity,
as evidenced by (i) those certain Articles of Merger Involving Domestic
Corporations, Foreign Corporations or Foreign Other Entities dated July 6, 2006
and filed with the Office of the Secretary of the Commonwealth of Massachusetts
on September 1, 2006 and (ii) that certain Certificate of Merger dated January
10, 2008 and filed with the Secretary of State of the State of Delaware on
January 22, 2008; and
WHEREAS, pursuant to the
terms, conditions, and provisions of that certain First Amendment to Credit and
Guaranty Agreement dated as of April 30, 2008, executed by and among the Lender,
the Borrower, and the Original Guarantors (hereinafter referred to as the "First Amendment"),
the Borrower, the Original Guarantors, and the Lender amended the
Original Loan Agreement for the purposes more fully set forth and described
therein; and
WHEREAS, pursuant to the
terms, conditions, and provisions of that certain Second Amendment to Credit and
Guaranty Agreement dated as of June 30, 2009, executed by and among the Lender,
the Borrower, and the Original Guarantors (hereinafter referred to as the "Second Amendment"),
the Borrower, the Guarantors, and the Lender amended the Original Loan
Agreement for the purposes more fully set forth and described therein
(hereinafter the Original Loan Agreement, as amended and modified by the First
Amendment and the Second Amendment, shall be referred to as the "Loan Agreement");
and
WHEREAS, the Borrower has
acquired one hundred percent (100%) of the issued and outstanding stock of Cinch
Connectors (hereinafter referred to as the "Acquisition") on the
date hereof and, pursuant to the terms, conditions, and provisions of that
certain Guaranty Supplement No. 1 dated of even date herewith, executed by and
between Cinch Connectors and the Lender, Cinch Connectors has been added as a
"Subsidiary Guarantor" (as such term is defined in the Loan Agreement) of the
Revolving Credit Facility;
WHEREAS, in connection with
the Acquisition, the Borrower, the Guarantors, and the Lender have agreed to
further amend and modify the terms, conditions, and provisions of the Loan
Agreement pursuant to the terms, conditions, and provisions of this Third
Amendment for the purposes more fully set forth and described herein;
and
[THIRD
AMENDMENT TO CREDIT AND
GUARANTY
AGREEMENT]
WHEREAS, defined terms used
but not expressly defined herein shall have the same meanings when used herein
as set forth in the Loan Agreement
NOW, THEREFORE, intending to
be legally bound hereby the Borrower, the Guarantors, and the Lender hereby
promise, covenant, and agree as follows:
1. Loan
Agreement. The Loan Agreement is hereby amended and modified by this
Third Amendment as follows:
(i) The
existing definition of "Loan Documents" in Section 1.1 of the
Loan Agreement is hereby deleted in its entirety and the following new
definition of "Loan Documents" is hereby inserted in its place and
stead:
""Loan Documents"
means, collectively, this Agreement, the Note, the First Amendment, the
Second Amendment, the Third Amendment, the each Secured Hedging Agreement and
all other agreements, instruments and documents executed or delivered in
connection herewith."
(ii) The
following new definition is hereby inserted into Section 1.1 of the
Loan Agreement in its proper place:
""Third Amendment"
shall mean that certain Third Amendment to Credit and Guaranty Agreement
dated as of January 29, 2010 executed by and among the Borrower, the Lender, and
the then current Subsidiary Guarantors as of the date of such Third Amendment to
Credit and Guaranty Agreement, pursuant to which the parties thereto amended and
modified the terms, conditions, and provisions of this Agreement."
(iii) Schedule 4.13 of the
Loan Agreement is hereby deleted in its entirety and a new Schedule 4.13 in the
form attached hereto as Exhibit "A" is hereby
inserted in its place and stead.
(iv) Any
and all references to the "Loan Agreement" shall be amended and modified to
refer to the Loan Agreement as amended and modified by this Third
Amendment.
2. Satisfaction
of Conditions Precedent to the Acquisition. The Borrower, Guarantors, and
Lender, as applicable, hereby represent and warrant that all conditions
precedent to the Acquisition set forth in the Loan Agreement, including, without
limitation, those conditions precedent set forth in Section 6.9 and Section 7.5(c) of the
Loan Agreement, have been fully satisfied.
3. Remaking
of Representations and Warranties. All representations and warranties
contained in the Loan Agreement, as amended and modified by this Third
Amendment, and all of the other Loan Documents, are true, accurate, and complete
as of the date hereof and shall be deemed continuing representations and
warranties so long as the Revolving Credit Facility shall remain
outstanding.
[THIRD
AMENDMENT TO CREDIT AND
GUARANTY
AGREEMENT)
3
4. No Amendment
of Other Terms. All other terms and conditions of the Loan Agreement, as
amended and modified by this Third Amendment, the Revolving Credit Loan Note,
and all of the other Loan Documents remain in full force and effect, except as
amended and modified herein, and the parties hereto hereby expressly confirm and
reaffirm all of their respective liabilities, obligations, duties and
responsibilities under and pursuant to the Loan Agreement, the Revolving Credit
Loan Note, and all of the other Loan Documents.
5. Further
Agreements and Representations. The Borrower and the Guarantors do hereby
(i) ratify, confirm, and acknowledge that the Loan Agreement, as amended and
modified by this Third Amendment, the Revolving Credit Loan Note, and all other
Loan Documents continue to be valid, binding and in full force and effect, (ii)
acknowledge and agree that, as of the date hereof. the Borrower has no defense,
set-off, counterclaim, or challenge against the payment of any sums due and
owing to the Lender or the enforcement of any of the terms of the Loan Agreement
and/or any of the other Loan Documents, (iii) acknowledge and agree that all
representations and warranties of the Borrower and the Guarantors contained m
the Loan Agreement and the other Loan Documents are true, accurate, and correct
as of the date hereof as if made on and as of the date hereof, except to the
extent any such representation or warranty is by its terms limited to a certain
date or dates in which case it remains true, accurate, and correct as of such
date or dates and that none of the corporate documents of the Borrower or the
Guarantors have been materially amended, modified, or supplemented since the
date of the execution and delivery of the Loan Agreement, and (iv) represent and
wanrant that the Borrower and the Guarantors have taken all necessary action
required by law and by their respective corporate governing documents to execute
and deliver this Third Amendment and that such execution and delivery
constitutes the legal and validly binding action of such entities.
6. No
Novation. It is the intention of the parties hereto that this Third
Amendment shall not constitute a novation.
7. Additional
Documents; Further Assurances. The Borrower and the Guarantors hereby
covenant and agree to execute and deliver to the Lender, or to cause to be
executed and delivered to the Lender contemporaneously herewith, at their sole
cost and expense, any other documents, agreements, statements, resolutions,
certificates, opinions, consents, searches, and information as the Lender may
reasonably request in connection with the matters or actions described herein.
The Borrower and the Guarantors hereby further covenant and agree to execute and
deliver to the Lender, or to use reasonable efforts to cause to be executed and
delivered to the Lender, at their sole cost and expense, from time to time, any
and all other documents, agreements, statements, certificates, and information
as the Lender shall reasonably request to evidence or effect the terms of the
Loan Agreement, and/or any of the other Loan Documents. All such documents,
agreements, statements, etc., shall be in form and content reasonably acceptable
to the Lender.
8. Fees,
Costs, Expenses and Expenditures. The Borrower shall pay all of the
Lender's reasonable expenses in connection with this Third Amendment, including,
without limitation, reasonable fees and disbursements of Lender's legal
counsel.
9. No
Waiver.
Nothing contained herein constitutes an agreement or obligation by the
Lender to grant any further amendments to any of the Loan Documents, as amended
and modified hereby, and nothing contained herein constitutes a waiver or
release by the Lender of any rights or remedies available to the Lender under
the Loan Documents, as amended and modified hereby, at law or in
equity.
[THIRD
AMENDMENT TO CREDIT AND
GUARANTY
AGREEMENT]
4
10. Waiver, Release
and Indemnification by the
Borrower and Waiver and Release by the
Guarantors. To induce the Lender to enter into this Third Amendment, the
Borrower and the Guarantors, and any person or entity claiming by or through any
or all of them, each waives and releases and forever discharges the Lender and
its officers, directors, shareholders, agents, parent corporation, subsidiaries,
affiliates, trustees, administrators, attorneys, predecessors, successors, and
assigns and the heirs, executors, administrators, successors, and assigns of any
such person or entity, as releasees (hereinafter collectively referred to as the
"Releasees")
from any liability, damage (whether direct or indirect, consequential,
special, exemplary, or punitive), claim (including, without limitation, any
claim for contribution or indemnity), loss or expense of any kind, in each case
whether now known or unknown, past or present, asserted or unasserted,
contingent or liquidated, at law or in equity, that it may have against any
Releasee arising from the beginning of time to the date hereof arising out of or
relating to the Revolving Credit Facility. The Borrower further agrees to
indemnify and hold the Releasees harmless from any loss, damage, judgment,
liability, or expense (including attorneys' fees) suffered by or rendered
against the Lender on account of any claims of third parties arising out of or
relating to the Revolving Credit Facility. The Borrower further states that it
has carefully read the foregoing release and indemnity and the Guarantors
further state that they have carefully read the foregoing release, and each of
the Borrower and the Guarantors knows the contents thereof and grants the same
as its own free act and deed.
11.
Binding
Effect; Governing Law. This Third Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and/or assigns. This Third Amendment shall be governed by and construed in
accordance with the laws of the State of New Jersey.
12.
Counterparts.
This Third Amendment may be executed by one or more of the parties to
this Third Amendment in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANKI
[THIRD
AMENDMENT TO CREDIT AND
GUARANTY
AGREEMENT]
5
IN WITNESS WHEREOF, the
Lender, the Borrower, and the Guarantors have duly executed and delivered this
Third Amendment, all as of the day and year first written above.
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BORROWER:
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BEL FUSE. INC., a New
Jersey corporation
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| By: |
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| Xxxxx
Xxxx Vice President |
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GUARANTORS:
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BEL VENTURES INC., a
Delaware corporation
BEL POWER INC., a
Massachusetts corporation
BEL TRANSFORMER INC., a
Delaware corporation
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BEL CONNECTOR INC., a
Delaware corporation
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CINCH CONNECTORS, INC.,
a Delaware
corporation
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AS
TO EACH OF THE FOREGOING:
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By:
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Xxxxx
Xxxx
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Vice
President of each of the above-referenced
corporations
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LENDER:
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BANK
OF AMERICA, N.A.
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By:
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Xxxxx
X. Xxxxxxx
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|
Senior
Vice
President
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[THIRD
AMENDMENT TO CREDIT AND
GUARANTY
AGREEMENT]
IN WITNESS WHEREOF, the
Lender, the Borrower, and the Guarantors have duly executed and delivered this
Third Amendment, all as of the day and year first written above.
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BORROWER:
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BEL FUSE INC., a New
Jersey corporation
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By:
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Xxxxx
Xxxx
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|
Vice
President
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GUARANTORS:
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BEL VENTURES INC., a
Delaware corporation
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BEL POWER INC., a
Massachusetts corporation
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BEL TRANSFORMER INC., a
Delaware corporation
BEL CONNECTOR INC., a
Delaware corporation
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CINCH CONNECTORS, INC.,
a Delaware
corporation
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AS
TO EACH OF THE FOREGOING:
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By:
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Xxxxx
Xxxx
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Vice
President of each of the above-referenced corporations
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LENDER:
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BANK
OF AMERICA, N.A.
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By:
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Xxxxx
X. Xxxxxxx
Senior
Vice
President
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[THIRD
AMENDMENT TO CREDIT AND
GUARANTY
AGREEMENT]
6
EXHIBIT
"A"
ATTACHED
TO AND MADE A PART OF THAT CERTAIN THIRD AMENDMENT TO CREDIT AND GUARANTY
AGREEMENT EXECUTED BY AND AMONG BEL FUSE INC., BEL VENTURES INC., BEL POWER
INC., BEL TRANSFORMER INC., BEL CONNECTOR INC., CINCH CONNECTORS, INC., AND BANK
OF AMERICA, NATIONAL ASSOCIATION
DATED
AS OF JANUARY 29, 2010
List of
Subsidiaries
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Name
|
Jurisdiction
of
Formation
|
Equity Securities
Owner(s)
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Bel
Connector Inc.
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Delaware
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Bel
Fuse Inc.
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Bel
Fuse Delaware, Inc.
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Delaware
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Bel
Fuse Inc.
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Bel
Power Inc.
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Massachusetts
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Bel
Fuse Inc.
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Bel
Transformer Inc.
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Delaware
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Bel
Fuse Inc.
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Bel
Ventures Inc.
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Delaware
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Bel
Fuse Inc.
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Cinch
Connectors, Inc.
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Delaware
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Bel
Fuse Inc.
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Bel
Fuse Europe Ltd.
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United
Kingdom
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Bel
Fuse Inc.
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Cinch
Connectors Ltd.
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United
Kingdom
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Cinch
Connectors, Inc.
|
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Bel
Fuse Limited
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Hong
Kong
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Bel
Fuse Inc. (3,305,580 shares)
Xxxxxx
Xxxxxxxxx (1 share)
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Bel
Fuse (MCO) LTD.
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Macau
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Bel
Fuse Inc.
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Bel
Xxxxxxx GmbH
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Germany
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Bel
Fuse Inc.
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Bel
Components Ltd.
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Hong
Kong
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Bel Fuse
Limited
Bel Fuse
Limited
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Bel
Delaware LLC
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Delaware
|
|||
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Bel
Fuse Macau LDA
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Macau
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Bel
Fuse Limited
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Bel
Sales (Hong Kong) Ltd.
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Hong
Kong
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Bel
Fuse Limited
|
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Top
East Corporation Ltd.
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Hong
Kong
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Bel
Fuse Limited
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Xxxxxxx
Connector Systems
de
Mexico, S.A. de C.V.
|
Mexico
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Bel
Connector Inc. (490 shares)
Transformer
One LLC (10 shares)
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Cinch
Connectors de
Mexico,
S.A. de C.V.
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Mexico
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Cinch
Connectors, Inc.
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Signal
Dominicana, S.R.L.
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Dominican
Republic
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Bel
Transformer Inc. (99 shares)
Transformer
One LLC (1 share)
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Bel
Xxxxxxx s.r.o.
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Czech
Republic
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Bel
Xxxxxxx GmbH
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Bel
Power (Hangzhou)
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PRC
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Bel
Fuse Macau
LDA
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[THIRD
AMENDMENT TO CREDIT AND
GUARANTY
AGREEMENT]
7
GUARANTY SUPPLEMENT NO.
I
THIS GUARANTY SUPPLEMENT NO.
1, dated as of January 29, 2010, supplements, amends, and modifies that
certain (i) the Credit and Guaranty Agreement, dated February 12, 2007, executed
by and among BEL FUSE INC.
(the "Borrower"), the Subsidiary Guarantors party thereto, and BANK OF AMERICA, N.A. (the
"Lender")(as it may have been subsequently amended, supplemented or otherwise
modified from time to time, the "Credit Agreement").
Capitalized terms used herein and not defined herein shall have the meanings
assigned to such terms in the Credit Agreement.
The
Lender has agreed to make the Loans to the Borrower pursuant to, and upon the
terms and subject to the conditions specified in, the Credit Agreement. The
Subsidiary Guarantors have entered into the Credit Agreement in order to induce
the Lender to make the Loans. Pursuant to Section 6.9 of the
Credit Agreement, each Subsidiary created or acquired after the Effective Date
that is a Domestic Subsidiary is to become a Subsidiary Guarantor by the
execution and delivery of this Guarantee Supplement.
The
undersigned Subsidiary (the "New Subsidiary Guarantor")
is executing this Guaranty Supplement No. 1 in accordance with the
requirements of the Credit Agreement to become a Subsidiary Guarantor under the
Credit Agreement in order to induce the Lender to make additional Loans and as
consideration for the Loans previously made.
Accordingly,
the Lender and the New Subsidiary Guarantor agree that,
in accordance with Section 6.9 of the
Credit Agreement, the New Subsidiary Guarantor, by its signature below, becomes
a Subsidiary Guarantor under the Credit Agreement with the same force and effect
as if originally named therein as a Subsidiary Guarantor and the New Subsidiary
Guarantor hereby (i) agrees to all the terms and provisions of the Credit
Agreement applicable to it as a Subsidiary Guarantor thereunder and (n)
represents and warrants that the representations and warranties made with
respect to it as a Subsidiary Guarantor thereunder are true and correct on and
as of the date hereof. Each reference to a "Subsidiary Guarantor" in any Loan
Document shall be deemed to include the New Subsidiary Guarantor from and after
the date hereof.
[REMAINDER
OF PAGE LEFT INTENTIONALLY BLANK]
IN EVIDENCE of the agreement
by the parties hereto to the terms and conditions herein contained, each such
party has caused this Guaranty Supplement No. 1 to the duly executed on its
behalf.
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CINCH CONNECTORS, INC.,
a Delaware
corporation
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By:
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Xxxxx
Xxxx
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Vice
President
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Address for Notices:
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c/o
Bel Fuse Inc.
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000
Xxx Xxxxx Xxxxxx
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Xxxxxx
Xxxx, XX 00000
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Attention:
Xxxxx Xxxx - Vice President
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Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
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Accepted
and agreed to as
of the
date first above written:
BANK
OF AMERICA, N.A.
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By:
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Xxxxx
X. Xxxxxxx
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Senior
Vice President
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IN EVIDENCE of the agreement
by the parties hereto to the terms and conditions herein contained, each such
party has caused this Guaranty Supplement No. 1 to be duly executed on its
behalf.
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CINCH CONNECTORS, INC.,
a Delaware
corporation
|
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By:
|
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Xxxxx
Xxxx
|
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|
Vice
President
|
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Address for Notices:
|
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c/o
Bel Fuse Inc.
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000
Xxx Xxxxx Xxxxxx
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Xxxxxx
Xxxx, XX 00000
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Attention:
Xxxxx Xxxx - Vice President
|
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Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
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Accepted
and agreed to as
of the
date first above written:
BANK
OF AMERICA, N.A.
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By:
|
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|
Xxxxx
X. Xxxxxxx
|
|
|
Senior
Vice President
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