SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.17
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (the “Amendment”), dated this
19th day of November, 2010, is by and among SL INDUSTRIES, INC., a New Jersey
corporation (“Parent Borrower”), the Subsidiaries of the Parent Borrower party hereto (each
a “Subsidiary Borrower” and collectively, the “Subsidiary Borrowers” and together
with the Parent Borrower, each a “Borrower” and collectively, the “Borrowers”), the
lenders party hereto, being not less than the Majority Lenders (the “Amendment Lenders”),
and BANK OF AMERICA, N.A., a national banking association (acting in its capacity as administrative
agent for the Lenders, the “Agent”).
BACKGROUND
A. Pursuant to that certain Amended and Restated Revolving Credit Agreement entered into as
of October 23, 2008, by and among the Borrowers, the Lenders, and the Administrative Agent, as
amended by a First Amendment and Waiver under Credit Agreement, dated August 12, 2009 (as
amended, modified, restated or otherwise supplemented from time to time, the “Credit
Agreement”), the Lenders agreed, inter alia, to extend to the Borrowers a revolving credit
facility of Forty Million Dollars ($40,000,000).
B. The Borrowers have requested, and the Amendment Lenders have agreed, upon the terms and
subject to the conditions set forth herein, to allow Parent Borrower to issue one or more
dividends and/or purchase its registered capital stock then issued and outstanding in an amount
not in excess, in the aggregate, of Thirteen Million Dollars ($13,000,000), prior to the Maturity
Date.
C. In July of 2010 the Subsidiary Borrower SLW Holdings, Inc. was dissolved and liquidated, in
accordance with the New Jersey Business Corporation Act, by its Board of Directors and with the
written consent of the Subsidiary Borrower SLGC Holdings, Inc., as its sole shareholder.
NOW, THEREFORE, for value received, and in consideration of Loans made or to be made, and
other credit accommodations given or to be given, to the Borrowers by the Lenders from time to
time, each Borrower, each Amendment Lender and the Agent hereby agree as follows:
1. Definitions. Except as expressly set forth herein, all capitalized terms used and
not defined herein shall have the respective meanings ascribed thereto in the Credit Agreement.
2. Amendment to Section 6.10 of the Credit Agreement. Section 6.10 of the Credit
Agreement is hereby amended and restated in its entirety as follows:
Section 6.10 Use of Proceeds. The proceeds of the Loans may
be used for Permitted Acquisitions, permitted Restricted Payments,
capital expenditures, general corporate purposes and working
capital purposes. No proceeds of any Loan shall be used for any
illegal purposes.
3. Amendment to Section 7.1(c) of the Credit Agreement. Section 7.1(c) of the Credit
Agreement is hereby amended and restated in its entirety as follows:
(c) Minimum Net Worth. As of each fiscal quarter end, the total
amount of stockholders equity of the Parent Borrower and its
Subsidiaries, on a consolidated basis, shall be not less than:
(i) Thirty-Seven Million Dollars ($37,000,000); plus
(ii) an amount equal to 50% of the cumulative amount of Net Income
(which shall not be reduced by the amount of any net loss for any
fiscal quarter) of the Parent Borrower and its Subsidiaries, on a
consolidated basis, for the period commencing on October 1, 2010,
and ending on the date of determination; minus
(iii) the aggregate amount of Restricted Payments paid after
November
_____
, 2010, pursuant to Section 9.4(a) hereof.
4. Amendment to Section 9.3(h) of the Credit Agreement. Section 9.3(h) of the Credit
Agreement is hereby amended and restated in its entirety as follows:
(h) prior to November 1, 2010, make Permitted Acquisitions and
Investments in Foreign Subsidiaries; and
5. Amendment to Section 9.4(a) of the Credit Agreement. Section 9.4(a) of the Credit
Agreement is hereby amended and restated in its entirety as follows:
(a) so long as no Default or Event of Default then exists or would
be caused thereby, the Parent Borrower may (i) prior to November 1,
2010, purchase its registered capital stock then issued and
outstanding in an amount not in excess of Twenty Million Dollars
($20,000,000), and (ii) during the period from November 1, 2010
through October 1, 2011, issue one or more dividends and/or purchase
its registered capital stock then issued and outstanding in an amount
not in excess, in the aggregate, of Thirteen Million Dollars
($13,000,000);
6. Amendment to Section 9.10 of the Credit Agreement. The phrase “either (a) a
Material Adverse Change or (b) liabilities to the Borrowers in excess of Ten Million Dollars
($10,000,000)” in Section 9.10 of the Credit Agreement is hereby replaced with the phrase “a
Material Adverse Change”.
7. Amendment to Section 11.1 of the Credit Agreement. The definition of “EBIT” in
Section 11.1 of the Credit Agreement is hereby amended and restated in its entirety as follows:
“EBIT” means, for any Person for any period:
(a) the Net Income of such Person for such period (before deducting
fees either paid in cash or deferred during the applicable period
under the Management Agreement referenced in Section 9.5);
plus
(b) the sum of the following, to the extent deducted in the
computation of such Net Income: (i) Interest Expense; and (ii)
income taxes including (with respect to each Subsidiary Borrower) any
amounts payable or paid to Parent Borrower for such taxes (but, if
there is a net tax benefit, that should be deducted from Net Income in
calculating EBIT); plus
(c) non-cash charges with respect to liabilities arising under
Environmental Laws that require an accrual of or a reserve for cash
charges for any future periods; less
(d) the amount of all cash payments made during the applicable period
to the extent such payments relate to non-cash charges with respect to
liabilities arising under Environmental Laws that were added back
in determining EBIT for such period or any prior period.
8. Amendment to Section 11.1 of the Credit Agreement. The phrase “excluding non-cash
charges” in Subsection (b)(vi)(B) of the definition of “EBITDA” in Section 11.1 of the Credit
Agreement is hereby replaced with the phrase “excluding non-cash charges (other than with respect
to liabilities arising under Environmental Laws)”.
9. No Waiver. No Default or Event of Default exists immediately before or immediately
after the date hereof. Nothing in this Amendment nor any communication between the Agent, any
Lender, the Loan Parties or any of their respective officers, agents, employees or representatives
shall be deemed to constitute a waiver of: (i) any Default or Event of Default arising as a result
of the foregoing representation proving to be false or incorrect in any material respect; or (ii)
any rights or remedies which the Agent or any Lender has against the Loan Parties under the Credit
Agreement or any other Loan Document and/or applicable law, with respect to any such Default or
Event of Default arising as a result of the foregoing representation proving to be false or
incorrect in any material respect.
10. Representations and Warranties. Each of the Borrowers hereby represents and
warrants to the Agent and the Lenders that: (i) the representations and warranties set forth in the
Credit Agreement are true and correct in all material respects as of the date hereof; (ii) there is
no Default or Event of Default under the Credit Agreement; (iii) each Borrower has the corporate or
limited liability company power necessary to execute, deliver this Amendment, to the extent each is
a party thereto; and (iv) the execution, delivery and performance of this Amendment have been duly
authorized by the applicable governing body of each Borrower, and when executed,
this Amendment will constitute the valid, binding and enforceable obligations of
each Borrowers.
11. Further Agreements and Representations. Each of the Borrowers hereby,
jointly and severally:
(a) ratifies, confirms and acknowledges that the Credit Agreement, as amended
hereby, and all other Loan Documents continue to be valid, binding and in full force
and effect as of the date hereof, and enforceable in accordance with their terms;
(b) covenants and agrees to perform all of their respective obligations under
the Credit Agreement, as amended hereby, and all other Loan Documents;
(c) acknowledges and agrees that as of the date hereof, no Borrower has any
defense, set-off, counterclaim or challenge against the payment of any sums owing to
the Agent or the Lenders or the enforcement of any of the terms of the Credit
Agreement, as amended hereby, or any of the other Loan Documents;
(d) acknowledges and agrees that all Loans presently or hereafter outstanding
under the Loan Documents shall continue to be secured by the Collateral;
(e) acknowledges and agrees that this Amendment does not constitute a
novation of the Loans;
(f) ratifies, confirms and continues all rights and remedies granted to the
Agent and the Lenders in the Loan Documents; and
(g) ratifies and confirms all waivers made by the Borrowers in the Loan
Documents.
12. Conditions to Effectiveness of this Amendment. The Agent’s and the
Amendment Lenders’ obligations hereunder are conditioned upon the satisfaction by the
Borrowers of the following conditions precedent:
(a) receipt by the Agent of this Amendment, duly executed by each of the
Borrowers and Majority Lenders;
(b) the Borrowers shall have paid to the Agent for the ratable benefit of the
Amendment Lenders an amendment and waiver fee equal to 0.125% of the Commitments of
the Amendment Lenders, which shall be fully earned upon each such Amendment Lender’s
execution of this Amendment, together with all reasonable out of pocket expenses of
the Administrative Agent incurred in connection with this Amendment, including,
without limitation, the reasonable fees and expenses of Administrative Agent’s
counsel; and
(c) receipt by the Agent of such additional agreements, instruments,
documents, writings and actions as the Agent and the Lenders may reasonably
request.
13. Miscellaneous.
(a) No reference to this Amendment need be made in the Credit Agreement or in any other Loan
Document.
(b) This Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that no Loan Party shall assign its rights
or obligations under this Amendment.
(c) This Amendment shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania without reference to the choice of law doctrine of the Commonwealth
of Pennsylvania.
(d) This Amendment may be executed in any number of counterparts with the same effect as if
all the signatures on such counterparts appeared on one document and each such counterpart shall
be deemed an original. Any signature on this Amendment, delivered by any party by facsimile
transmission shall be deemed to be an original signature thereto.
(e) To the extent of any inconsistency between the terms and conditions of this Amendment
and the terms and conditions of the Loan Documents, the terms and conditions of this Amendment
shall prevail. All terms and conditions of the Credit Agreement and any other Loan Documents not
inconsistent herewith shall remain in full force and effect.
(f) This Amendment is the entire agreement between the parties relating to the subject matter
hereof, incorporates or rescinds all prior agreements and understandings between the parties
hereto relating to the subject matter hereof, cannot be changed or terminated orally or by course
of conduct, and shall be deemed effective as of the date it is accepted by the Agent.
(g) Except as expressly set forth herein, neither the execution, delivery or performance of
this Amendment, nor anything contained herein, shall be construed as or shall operate as a course
of conduct, course of dealing or a consent to or waiver of any provision of, or any right, power
or remedy of the Agent or any Lender under, the Credit Agreement and the agreements and documents
executed in connection therewith.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to Credit Agreement
to be duly executed as of the date first above written.
| Parent Borrower: | ||||||||
| SL INDUSTRIES, INC. | ||||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||||
| Name: | Xxxxx X. Xxxxxxx | |||||||
| Title: | Chief Financial Officer | |||||||
| Subsidiary Borrowers: | ||||||||
| SL DELAWARE, INC. | ||||||||
| SL DELAWARE HOLDINGS, INC. | ||||||||
| MTE CORPORATION | ||||||||
| RFL ELECTRONICS INC. | ||||||||
| SL MONTEVIDEO TECHNOLOGY, INC. | ||||||||
| CEDAR CORPORATION | ||||||||
| TEAL ELECTRONICS CORPORATION | ||||||||
| MEX HOLDINGS LLC | ||||||||
| SL POWER ELECTRONICS CORPORATION | ||||||||
| SLGC HOLDINGS, INC. | ||||||||
| SL AUBURN, INC. | ||||||||
| SL SURFACE TECHNOLOGIES, INC. | ||||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||||
| Name: | Xxxxx X. Xxxxxxx | |||||||
| Title: | Authorized Officer | |||||||
[Signature page to Second Amendment to Credit Agreement]
| BANK OF AMERICA, N.A., in its capacity as Agent | ||||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||||
| Name: | Xxxxxx Xxxxxxxx | |||||||
| Title: | Senior Vice President | |||||||
[Signature page to Second Amendment to Credit Agreement]
| BANK OF AMERICA, N.A., in its capacity as a Lender | ||||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||||
| Name: | Xxxxxx Xxxxxxxx | |||||||
| Title: | Senior Vice President | |||||||
| PNC BANK, NATIONAL ASSOCIATION | ||||||||
| By: | /s/ Xxxx X. Xxxxx | |||||||
| Name: | Xxxx X. Xxxxx | |||||||
| Title: | Vice President | |||||||
| KEYBANK NATIONAL ASSOCIATION | ||||||||
| By: | /s/ Xxxx Xxxxxxxxxx | |||||||
| Name: | Xxxx Xxxxxxxxxx | |||||||
| Title: | Senior Vice President | |||||||
