EXHIBIT 10.10
CONSOLIDATED AMENDMENT NO. 2
TO
CREDIT AGREEMENT
This Consolidated Amendment No. 2 to Credit Agreement (this
"Amendment"), dated as of March 26, 2003, 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, Second Amendment to Credit Agreement dated as of July 6,
2000, and Consolidated Amendment No. 1 to Credit Agreement dated as of October
31, 2002 (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 amend certain covenants; and
WHEREAS, Borrower has requested that Bank waive certain requirements of
the Credit Agreement which have not been met and Bank is willing to honor
Borrower's request subject to the terms and conditions of this Amendment; 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.
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B. Clauses (a) and (b) of subsection 2B.11 are hereby amended in their
entirety to read as follows:
(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 plus
(d) the following amounts for the following periods:
For the four (4) quarters ending 3/31/03 $7,588,000
For the four (4) quarters ending 6/30/03 $7,588,000
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For the four (4) quarters ending 9/30/03 $2,900,000
For the four (4) quarters ending 12/31/03
and each measurement period thereafter $ 0
plus
(e) any noncash goodwill impairment charges incurred
by Borrower during the previous four (4) quarters
(but not earlier than December 31, 2002)
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
(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:
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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.
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.
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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,
(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:
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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 - WAIVER
Bank hereby waives all violations of subsection 3B.04 of the Credit
Agreement which occurred prior to the date hereof. The execution, delivery and
effectiveness of this Amendment and the specific waiver set forth herein shall
not operate as a waiver of any other right, power or remedy of Bank under the
Credit Agreement or constitute a continuing waiver of any kind.
SECTION III - 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):
(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 list of the names and addresses of Borrower's subsidiaries and
Borrower's ownership percentage of each dated September 12, 2002 to be
attached hereto as Schedule A;
(C) a list of all of Borrower's loans to others, including but not
limited to subsidiaries, as of June 30, 2002 to be attached hereto as
Schedule B;
(D) a list of all security interests, mortgages or other voluntary or
involuntary liens on any of Borrower's real or personal property as of
October 31, 2002, to be attached hereto as Schedule C; and
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(E) such other documents as Bank may request to implement this
Amendment and the transactions contemplated hereby.
Bank acknowledges that items (A) through (D) have been delivered to Bank. 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 IV - 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 V - 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 VI - 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 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
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Exhibit B shall be deemed to be references to the form of the Amended Note
attached hereto as Exhibit A.
SECTION VII - 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: Senior Vice President Title: Vice President - 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
---------------------------------
Printed Name:_______________________
Title:______________________________
EXHIBIT A