Exhibit 10.9
CONSOLIDATED AMENDMENT NO. 1
TO
CREDIT AGREEMENT
This Consolidated Amendment No. 1 to Credit Agreement (this "Amendment"),
dated as of October 31, 2002, is entered into by and between PREFORMED LINE
PRODUCTS COMPANY ("Borrower") and NATIONAL CITY BANK ("Bank").
WITNESSETH:
WHEREAS, the parties have entered into a Credit Agreement dated December
30, 1994, as amended by First Amendment to Credit Agreement dated as of November
30, 1997 (the "First Amendment") and Second Amendment to Credit Agreement dated
as of July 6, 2000 (the "Second Amendment") (as amended, the "Credit Agreement";
all terms used in the Credit Agreement being used herein with the same meaning);
and
WHEREAS, the parties desire to further amend certain provisions of the
Credit Agreement to (a) decrease the amount of the subject commitment to
$20,000,000.00, (b) change the interest rate and (c) amend certain covenants;
and
WHEREAS, in light of the fact that certain terms set forth in previous
amendments have been affected by later amendments and/or will be affected by
this Amendment and for ease of reference, the parties also desire to restate and
consolidate in this Amendment all amendments to the Credit Agreement that are
effective on and as of the date hereof;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
SECTION I - AMENDMENTS TO CREDIT AGREEMENT
A. Subsections 2A.01 through 2A.05 of the Credit Agreement are hereby
amended in their entirety to read as follows:
2A.01 AMOUNT -- The amount of the subject commitment is twenty million and
00/100ths dollars ($20,000,000.00), but that amount may be reduced from
time to time pursuant to subsection 2A.03 and the subject commitment may
be terminated pursuant to section 5B.
2A.02 TERM -- The subject commitment shall commence as of the date of this
Agreement and shall remain in effect on a revolving basis through January
1, 2006 (the expiration date) EXCEPT that a later expiration date may be
established from time to time pursuant to subsection 2A.05 and EXCEPT that
the subject commitment shall end in any event upon any earlier reduction
thereof to zero pursuant to subsection 2A.03 or any earlier termination
pursuant to section 5B.
2A.03 OPTIONAL REDUCTIONS -- Borrower shall have the right, at all times
and without the payment of any premium, to permanently reduce the amount
of the subject commitment by giving Bank one banking day's prior written
notice of the amount of each such reduction and the effective date thereof
subject, however, to the following:
(a) No such reduction shall reduce the subject commitment to a
lesser aggregate amount than the sum of the aggregate unpaid
principal balance of the fixed-rate loans then outstanding plus the
aggregate undrawn face amounts of the outstanding subject LCs plus
the aggregate unpaid principal balance of any fixed-rate loans and
aggregate face amounts of any subject LCs to be obtained pursuant to
any unfulfilled credit request under subsection 2B.02.
(b) Concurrently with each reduction Borrower shall prepay such
part, if any, of the principal of the subject loans then outstanding
as may be in excess of the amount of the subject commitment as so
reduced. Subsection 2B.13 and section 6C shall apply to each such
prepayment.
2A.04 COMMITMENT FEE -- Borrower agrees to pay Bank a commitment fee
(a) based on the average daily difference between the amount of the
subject commitment from time to time in effect and the aggregate of
the unpaid principal balance of all subject loans then outstanding
plus the undrawn face amount of all outstanding subject LCs,
(b) computed (on the basis of a 360-day year and the actual number
of days elapsed) at a rate of one-fifth of one percent (1/5%) per
annum so long as the subject commitment remains in effect and
(c) payable in arrears on October 1, 2002 and on the first day of
each January, April, July and October thereafter and at the end of
the subject commitment.
2A.05 EXTENSION OF SUBJECT COMMITMENT -- Whenever Borrower furnishes its
audited financial statements to Bank pursuant to clause (b) of subsection
3A.01, commencing with Borrower's audited financial statements for its
fiscal year ending December 31, 2002, Borrower may request that the
subject commitment be extended one year to the December 31 next following
the expiration date then in effect. Bank agrees to give consideration to
each such request; but in no event shall Bank be committed to extend the
subject commitment, nor shall the subject commitment be so extended,
unless and until both Borrower and Bank shall have executed and delivered
an extension agreement substantially in the form of Exhibit C with the
blanks appropriately filled.
B. Clauses (a) and (b) of subsection 2B.11 are hereby amended in their
entirety to read as follows:
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(a) Prior to maturity each MM loan shall bear interest at a rate
equal to the money market rate in effect at the start of the
applicable contract period plus one percent (1%) per annum.
(b) Prior to maturity each LIBOR loan shall bear interest at a rate
equal to the LIBO pre-margin rate in effect at the start of the
applicable contract period plus one percent (1%) per annum.
C. Subsection 3B.01 of the Credit Agreement is hereby amended in its
entirety to read as follows:
3B.01 NET WORTH -- Borrower will not suffer or permit the
consolidated net worth (exclusive of the cumulative foreign currency
translation adjustment component thereof as reflected in Borrower's
financial statements) of the companies at any time to be less than
the required minimum amount in effect at the time in question. The
required minimum amount shall be one hundred twenty million dollars
($120,000,000) EXCEPT that that amount shall be permanently
increased as of the end of each fiscal quarter of Borrower by an
amount equal to fifty percent (50%) of Borrower's consolidated net
income, if any, after taxes, for the quarter then ending. The
determination of Borrower's net worth shall exclude the amount, if
any, of Borrower's after-tax loss on the sale of Superior Modular
Products up to $10,000,000.
D. Subsection 3B.04 of the Credit Agreement is hereby amended in its
entirety to read as follows:
3B.04 PRETAX INTEREST COVERAGE -- Borrower will not suffer or permit
the aggregate, determined as of the last day each fiscal quarter
(commencing with the present fiscal quarter), of
(a) the net income of the companies for the previous
four (4) quarters plus
(b) the aggregate interest expense of the companies for the
previous four (4) quarters plus
(c) the aggregate federal, state and local income taxes of
the companies for the previous four (4) quarters
to be less than an amount equal to three hundred percent (300%) of
the aggregate interest expense of the companies for the previous
four quarters, all as determined on a consolidated basis.
E. Subsection 3D.01 of the Credit Agreement is hereby amended in its
entirety to read as follows:
3D.01 EQUITY TRANSACTIONS -- No Company will
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(a) be a party to any merger or consolidation, PROVIDED, that if
no default under this Agreement shall then exist and if none
would thereupon begin to exist, this clause (a) shall not apply
to any merger or consolidation involving only subsidiaries, any
merger of Borrower with one or more subsidiaries in which
Borrower is the surviving corporation, or any dissolution and
liquidation of a subsidiary,
(b) lease as lessor, sell, sell-leaseback or otherwise transfer
(whether in one transaction or a series of transactions) all or
any substantial part of its fixed assets EXCEPT chattels that
shall have become obsolete or no longer useful in its present
business,
(c) except for the merger transactions permitted under clause
(a) of this subsection, purchase or otherwise acquire all or
substantially all of the capital stock or the assets and
business of any corporation or other business enterprise if the
aggregate amount of all such purchases and acquisitions would
exceed $20,000,000 for any one transaction or $30,000,000 in the
aggregate, or
(d) make any investment in the stock or other equity securities
of its subsidiaries if the aggregate amount of such investments
would exceed ten million dollars ($10,000,000), EXCEPT that this
clause (d) shall not apply to acquisitions permitted under
clause (c) of this subsection or to Borrower's existing
investments in the stocks and other equity securities of
subsidiaries or any other investments fully disclosed in
Borrower's most recent 4A.02 financial statements.
F. The following new section 2C is hereby added to the Credit Agreement:
2C. LETTERS OF CREDIT -- Bank agrees that so long as the subject
commitment remains in effect Bank will issue such letters of credit
(each, a subject LC) for Borrower's account as Borrower may from time
to time request subject, however, to the conditions of this Agreement.
2C.01 MAXIMUM -- Bank shall not issue any subject LC if, after
giving effect thereto,
(a) the aggregate undrawn balance of all then outstanding
subject LCs would exceed five hundred thousand dollars
($500,000) or
(b) the sum of the aggregate outstanding subject loans plus
the aggregate undrawn balance of all then outstanding
subject LCs would exceed the subject commitment as then in
effect.
2C.02 TERM -- No subject LC shall permit any draft to be drawn
thereunder on a date (the "last draw date") that is more than
one (1) year after the date of its issue, nor shall any subject
LC permit the last draw date to be later than the third (3rd)
banking day next preceding the expiration date.
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2C.03 FORM -- Each subject LC shall
(a) be issued in such form as Bank may reasonably require,
(b) be either a commercial letter of credit used solely for the
importation of goods in the ordinary course of Borrower's business
or a standby letter of credit, and
(c) be denominated in United States dollars.
2C.04 COMMISSION -- Borrower shall pay Bank at the issuance of each
subject LC a non-refundable commission equal to
(a) Bank's standard percentage fee of the face amount of each
commercial import letter of credit, or
(b) one percent (1%) of the face amount of each standby letter of
credit
plus any other standard fees for issuance, amendment, registration or
draws or any similar act generally charged by Bank in respect of letters
of credit issued by it.
2C.05 REIMBURSEMENT -- Borrower agrees to reimburse Bank for each draft
or other item paid by Bank pursuant to or otherwise in respect of any
subject LC.
2C.06 SUBJECT LOAN BACK-UP -- In the event of a draw under any subject
LC, Bank is irrevocably authorized to prepare, to sign Borrower's name
to, and to deliver on Borrower's behalf an appropriate credit request
requesting a RR loan in an amount equal to the reimbursement amount plus
any interest thereon. Bank will make the requested RR loan even if any
default under this agreement shall then exist under the Agreement and
even if Borrower for any other reason would then not be entitled to
obtain any subject loan. Bank shall disburse all such loan proceeds
directly to Bank to satisfy Borrower's reimbursement liability.
2C.07 UNCONDITIONAL OBLIGATION -- The obligation of Bank to make, and of
Borrower to pay, the RR loans made pursuant to the preceding section
shall be absolute and unconditional and shall be performed under all
circumstances, including (without limitation)
(a) any lack of validity or enforceability of the subject LC in
question,
(b) the existence of any claim, offset, defense or other right that
Borrower may have against the beneficiary of such subject LC or any
of its successors in interest,
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(c) the existence of any claim, offset, defense or other right
that Bank may have against Borrower or any of its affiliates or
against the beneficiary of such subject LC or any of their
successors in interest,
(d) the existence of any fraud or misrepresentation in the
presentment of any draft or other item drawn and paid under
such subject LC or
(e) any payment of any draft or other item by Bank which does not
strictly comply with the terms of such subject LC provided such
payment shall not have constituted gross negligence or willful
misconduct.
G. The following new subsection 5B.04 is hereby added to the Credit
Agreement:
5B.04 SUBJECT LCs -- If the maturity of the subject indebtedness shall be
accelerated pursuant to subsection 5B.01 or 5B.02, Borrower shall
immediately deposit with Bank, as security for Borrower's obligation to
reimburse Bank for any then outstanding subject LCs, cash or acceptable
marketable securities having a fair cash value equal to the sum of the
aggregate undrawn balance of any then outstanding subject LCs. For this
purpose, acceptable marketable securities include only those referred to
in clause (v) of subsection 3D.02.
H. Section 6H of the Credit Agreement is hereby renumbered section 6I and
the following new subsection 6H is hereby added to the Credit Agreement:
6H. INDEMNITY: MISCELLANEOUS COSTS/SUBJECT LCs -- Borrower agrees to
defend and indemnify Bank against, and to hold Bank harmless from, any
loss, liability, damage, claim, cost, or expense relating to Bank's
issuance or maintenance of any subject LC or to Bank's payment of any
draft drawn thereunder, excluding any such loss, liability, damage, claim,
cost, or expense resulting from Bank's gross negligence or willful
misconduct.
I. Section 6I is hereby amended in its entirety to read as follows:
6I. CERTIFICATE FOR INDEMNIFICATION -- Each demand by Bank for payment
pursuant to section 6A, 6B, 6C, 6D, 6E, 6F, 6G or 6H shall be accompanied
by a certificate setting forth the reason for the payment, the amount to
be paid, and the computations and assumptions in determining the amount,
which certificate shall be presumed to be correct in the absence of
manifest error. In determining the amount of any such payment, Bank may
use reasonable averaging and attribution methods.
SECTION II - CONDITIONS PRECEDENT
It is a condition precedent to the effectiveness of this Amendment that,
prior to or on the date hereof, the following items shall have been delivered to
Bank (in form and substance acceptable to Bank):
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(A) an Amended and Restated Promissory Note ("Amended Note") in favor of
Bank, in the form of EXHIBIT A to this Amendment, with all blanks
appropriately completed, duly executed by Borrower;
(B) a current list of the names and addresses of Borrower's subsidiaries
and Borrower's ownership percentage of each to be attached hereto as
Schedule A;
(C) a current list of all of Borrower's loans to others, including but not
limited to subsidiaries, to be attached hereto as Schedule B;
(D) a current list of all security interests, mortgages or other voluntary
or involuntary liens on any of Borrower's real or personal property, to be
attached hereto as Schedule C; and
(E) such other documents as Bank may request to implement this Amendment
and the transactions contemplated hereby.
If Bank shall consummate the transaction contemplated hereby prior to the
fulfillment of any of the conditions precedent set forth above, the consummation
of such transaction shall constitute only an extension of time for the
fulfillment of such conditions and not a waiver thereof. Upon receipt of the
properly completed and executed Amended Note, Bank agrees to return to Borrower
the previously executed note respecting the subject loans and the same shall be
marked "Replaced" or "Substituted" or with words of like meaning.
SECTION III - REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants to Bank that:
(A) none of the representations and warranties made in subsections 4B.01
through 4B.09 of the Credit Agreement has ceased to be true and complete
in any material respect as of the date hereof; and
(B) as of the date hereof no "default under this Agreement" has occurred
that is continuing.
SECTION IV - ACKNOWLEDGMENTS CONCERNING OUTSTANDING LOANS
Borrower acknowledges and agrees that, as of the date hereof, all of
Borrower's outstanding loan obligations to Bank are owed without any offset,
defense, claim or counterclaim of any nature whatsoever. Borrower authorizes
Bank to share all credit and financial information relating to Borrower with
Bank's parent company and with any subsidiary or affiliate company of Bank or of
Bank's parent company.
SECTION V - REFERENCES
On and after the effective date of this Amendment, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", or words of like
import referring to the Credit Agreement, and each reference in the subject
notes or other related writings to the "Credit
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Agreement", "thereof", or words of like import referring to the Credit Agreement
shall mean and refer to the Credit Agreement as amended hereby. The Credit
Agreement, as amended by this Amendment, is and shall continue to be in full
force and effect and is hereby ratified and confirmed in all respects. To the
extent any amendment set forth in any previous amendment is omitted from this
Amendment, the same shall be deemed eliminated as between Borrower and Bank as
of the date hereof. The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of Bank under the
Credit Agreement or constitute a waiver of any provision of the Credit Agreement
except as specifically set forth herein. From and after the date of this
Amendment references in the Credit Agreement to EXHIBIT B shall be deemed to be
references to the form of the Amended Note attached hereto as EXHIBIT A.
SECTION VI - GOVERNING LAW
This Amendment, and the respective rights and obligations of the parties
hereto, shall be construed in accordance with and governed by Ohio law.
IN WITNESS WHEREOF, the Borrower and the Bank have caused this Amendment
to be executed by their authorized officers as of the date and year first above
written.
NATIONAL CITY BANK PREFORMED LINE PRODUCTS
COMPANY
By: /Patrick M. Pastore/ By: /Eric. R. Graef/
Printed Name: Patrick M. Pastore Printed Name: Eric R. Graef
Title: SVP Title: VP - Finance
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AMENDED AND RESTATED PROMISSORY NOTE
$20,000,000.00 _________ , Ohio __________ , 2002
FOR VALUE RECEIVED, the undersigned, PREFORMED LINE PRODUCTS COMPANY, an Ohio
corporation, ("Borrower"), promises to pay to the order of NATIONAL CITY BANK
("Bank"), at the address specified on the bills received by Borrower from Bank
(or at such other place as Bank may from time to time designate by written
notice), the principal sum of
TWENTY MILLION AND 00/100THS DOLLARS
(or, if less, the aggregate unpaid principal balance from time to time shown on
the reverse side hereof or as may be entered in a loan account on Bank's books
and records, or both), together with interest computed in the manner provided in
the Credit Agreement referred to below, which principal and interest is payable
in accordance with provisions in the Credit Agreement.
This note is issued pursuant to a Credit Agreement dated as of December 30,
1994, as amended from time to time (as amended, the "Credit Agreement") by and
between Borrower and Bank. This note is issued in substitution for that certain
$20,000,000.00 Tranche A Promissory Note and that certain $20,000,000.00 Tranche
B Promissory Note, both dated as of November 30, 1997 (collectively, the "Old
Note"). This Note is not intended as a novation of the obligations of Borrower
under the Old Note but rather is merely a restatement of the obligations
thereunder after giving effect to the most recent amendment to the Credit
Agreement.
Reference is made to the Credit Agreement for the definitions of certain terms,
for provisions governing the making of subject loans, the acceleration of the
maturity thereof, rights of prepayment, and for other provisions to which this
note is subject. Any endorsement by the payee on the reverse side of this note
(or any allonge thereto) shall be presumptive evidence of the data so endorsed.
Address: PREFORMED LINE PRODUCTS COMPANY
660 Beta Drive
Mayfield Village, Ohio 44143 By: EXHIBIT--DO NOT SIGN
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Printed Name:
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Title:
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EXHIBIT A