SECOND AMENDMENT TO CREDIT AND GUARANTY AGREEMENT
EXHIBIT
10.7
SECOND AMENDMENT TO CREDIT
AND GUARANTY AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AND
GUARANTY AGREEMENT (hereinafter referred to as this "Second Amendment")
is made as of the 30th day of
June, 2009, 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
BEL 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 hereinafter, Bel Ventures, Bel Power, Bel Transformer, and Bel
Connector 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 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 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 Guarantors (hereinafter referred to as the "First 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, shall he referred to as the "Loan Agreement");
and
WHEREAS, 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 Second Amendment for the purposes more fully
set forth and described herein; and
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
Second Amendment as follows:
(i) The
existing definition of "Consolidated Fixed Charge
Ratio" in Section 1.1 of the
Loan Agreement is hereby deleted in its entirety and the following new
definition is hereby inserted in its place and stead:
EXHIBIT
10.7
"Consolidated Fixed Charge
Ratio" means, as of the last day of each fiscal quarter, the ratio of (i)
Consolidated EBITDA plus unrestricted and
unencumbered cash and Cash Equivalents in excess of $20,000,000.00 in the
aggregate held in the United States of America in the name of the Borrower or
any of its Domestic Subsidiaries -to- (ii) Consolidated Fixed Charges, in each
case the Four Quarter Trailing Period."
(ii) 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, each Secured Hedging Agreement and all other agreements,
instruments and documents executed or delivered in connection
herewith."
(iii) The
following new definition is hereby inserted into Section 1.1 of the
Loan Agreement in its proper place:
""Second Amendment"
shall mean that certain Second Amendment to Credit and Guaranty Agreement
dated as of June 30, 2009 executed by and among the Borrower, the Lender, and
the then current Subsidiary Guarantors as of the date of such Second Amendment
to Credit and Guaranty Agreement, pursuant to which the parties thereto amended
and modified the terms, conditions, and provisions of this
Agreement."
(iv) Section 6.1(f) of the
Loan Agreement is hereby deleted in its entirety and the following new Sections 6.1(f) and (g)
are hereby inserted in its place and stead:
“(f)
concurrently with any delivery of financial statements under subsections (a) or (b)
above, a report of cash and Cash Equivalents as of the end of the
relevant quarterly or annual period, in form and substance reasonably acceptable
to the Lender; and
(g)
promptly following any request therefor, such other information regarding the
Borrower or any Subsidiary, or compliance with the terms of this Agreement, as
the Lender may reasonably request."
(v) 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 Second
Amendment.
2. Remaking
of Representations and Warranties. All representations and warranties
contained in the Loan Agreement, as amended and modified by this Second
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.
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EXHIBIT
10.7
3. No
Amendment of Other Terms. All other terms and conditions of the Loan
Agreement, as amended and modified by this Second 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.
4. 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 Second 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 in
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
warrant 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 Second Amendment and that such execution and delivery
constitutes the legal and validly binding action of such entities.
5. No
Novation. It is the intention of the parties hereto that this Second
Amendment shall not constitute a novation.
6. 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.
7. Fees,
Costs, Expenses and Expenditures. The Borrower shall pay all of the
Lender's reasonable expenses in connection with this Second Amendment,
including, without limitation, reasonable fees and disbursements of Lender's
legal counsel.
8. 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.
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EXHIBIT
10.7
9.
Binding
Effect; Governing Law. This Second Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and/or assigns. This Second Amendment shall be governed by and construed in
accordance with the laws of the State of New Jersey.
10.
Counterparts.
This Second Amendment may be executed by one or more of the parties to
this Second 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 BLANK)
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EXHIBIT
10.7
IN WITNESS WHEREOF, the
Lender, the Borrower, and the Guarantors have duly executed and delivered this
Second 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
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BEL CONNECTOR 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
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corporations
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EXHIBIT
10.7
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LENDER:
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BANK
OF AMERICA, N.A.
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By:
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Name:
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Title:
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