AMENDMENT NO. 1 Dated as of February 26, 2008 to AMENDED AND RESTATED CREDIT AGREEMENT Dated as of December 14, 2006
Exhibit
10.10
AMENDMENT
NO. 1
Dated as
of February 26, 2008
to
AMENDED
AND RESTATED CREDIT AGREEMENT
Dated as
of December 14, 2006
THIS
AMENDMENT NO. 1 (“Amendment”) is made
as of February 26, 2008 (the “Effective Date”) by
and among Franklin Electric Co., Inc., an Indiana corporation (the “Borrower”), the
financial institutions listed on the signature pages hereof and JPMorgan Chase
Bank, National Association, as Administrative Agent (the “Administrative
Agent”), under that certain Credit Agreement dated as of December 14,
2006 by and among the Borrower, the Lenders and the Administrative Agent (as
amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”). Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings given to them in the Credit
Agreement.
WHEREAS,
the Borrower has requested that certain modifications be made to the Credit
Agreement;
WHEREAS,
the Borrower, the Lenders party hereto and the Administrative Agent have agreed
to amend the Credit Agreement on the terms and conditions set forth
herein;
NOW,
THEREFORE, in consideration of the premises set forth above, the terms and
conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Borrower, the
Lenders party hereto and the Administrative Agent hereby agree to the following
amendments to the Credit Agreement.
1. Amendments to Credit
Agreement. Effective as of the Effective Date but subject to
the satisfaction of the conditions precedent set forth in Section 2 below, the
Credit Agreement is hereby amended as follows:
(a) Section 5.08
(Leverage Ratio) of the Credit Agreement is hereby amended by deleting the
language now contained therein and substituting the following
therefor:
“As of
the end of each fiscal quarter ending on or about December 31, 2007 or before
and the end of each fiscal quarter ending on or about June 30, 2009 or
thereafter, the Leverage Ratio shall not exceed 3.0 to 1.0, and as of the end of
each fiscal quarter ending on or about March 29, 2008 or thereafter to and
including the fiscal quarter ending on or about April 4, 2009, the Leverage
Ratio shall not exceed 3.5 to 1.0.”
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CH1
4125604v.3
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(b) The
Pricing Schedule to the Credit Agreement is hereby amended by deleting the
Pricing Schedule now attached to the Credit Agreement and substituting therefor
the Pricing Schedule attached to this Amendment.
2. Conditions of
Effectiveness. The effectiveness of this Amendment is subject
to the conditions precedent that the Administrative Agent shall have received
(i) counterparts of this Amendment duly executed by the Borrower, the Required
Lenders and the Administrative Agent and (ii) for the account of each Lender
which delivers its executed signature page hereto by such time as is requested
by the Administrative Agent, a work fee equal to $5,000.
3. Representations and
Warranties of the Borrower. The Borrower hereby represents and
warrants as follows:
(a) This
Amendment and the Credit Agreement as amended hereby constitute legal, valid and
binding obligations of the Borrower and are enforceable against the Borrower in
accordance with their terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
(b) As of the
date hereof and after giving effect to the terms of this Amendment, (i) no
Default shall have occurred and be continuing and (ii) the representations and
warranties of the Borrower set forth in the Credit Agreement, as amended hereby,
are true and correct in all material respects as of the date hereof (other than
such representations and warranties as are made of a specific earlier date, in
which case such representations and warranties were true and correct in all
material respects as of such earlier date).
4. Reference to and Effect on
the Credit Agreement.
(a) Upon the
effectiveness hereof, each reference to the Credit Agreement in the Credit
Agreement or any other Loan Document shall mean and be a reference to the Credit
Agreement as amended hereby.
(b) Except as
specifically amended above, the Credit Agreement and all other documents,
instruments and agreements executed and/or delivered in connection therewith
shall remain in full force and effect and are hereby ratified and
confirmed.
(c) The
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of the Administrative Agent or the Lenders,
nor constitute a waiver of any provision of the Credit Agreement or any other
documents, instruments and agreements executed and/or delivered in connection
therewith.
5. Governing
Law. This Amendment shall be construed in accordance with and
governed by the law of the State of Illinois.
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6. Costs and
Expenses. The Borrower agrees to pay all reasonable
out-of-pocket costs, fees and other expenses (including attorneys’ fees and
expenses charged to the Administrative Agent) incurred by the Administrative
Agent in connection with the preparation, execution and enforcement of this
Amendment.
7. Headings. Section
headings in this Amendment are included herein for convenience of reference only
and shall not constitute a part of this Amendment for any other
purpose.
8. Counterparts. This
Amendment may be executed by one or more of the parties hereto on any number of
separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
[Signature
Pages Follow]
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IN
WITNESS WHEREOF, this Amendment has been duly executed as of the day and year
first above written.
FRANKLIN
ELECTRIC CO., INC.,
as the
Borrower
By:____________________________________
Name:
Title:
Signature
Page to Amendment No. 1 to
Franklin
Electric Credit Agreement
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JPMORGAN
CHASE BANK,
NATIONAL
ASSOCIATION,
individually
as a Lender and, as the Swingline Lender, as the Issuing Bank and as the
Administrative Agent
By:_______________________________________
Name:
Title:
Signature
Page to Amendment No. 1 to
Franklin
Electric Credit Agreement
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WACHOVIA
BANK,
NATIONAL
ASSOCIATION,
By:____________________________________
Name:
Title:
Signature
Page to Amendment No. 1 to
Franklin
Electric Credit Agreement
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LASALLE
BANK, NATIONAL ASSOCIATION
By:____________________________________
Name:
Title:
Signature
Page to Amendment No. 1 to
Franklin
Electric Credit Agreement
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XXXXX
FARGO BANK, NATIONAL ASSOCIATION
By:____________________________________
Name:
Title:
Signature
Page to Amendment No. 1 to
Franklin
Electric Credit Agreement
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PRICING
SCHEDULE
|
APPLICABLE
MARGIN
|
LEVEL
I
STATUS
|
LEVEL
II
STATUS
|
LEVEL
III
STATUS
|
LEVEL
IV
STATUS
|
LEVEL
V
STATUS
|
LEVEL
VI
STATUS
|
|
Eurocurrency
Loans
|
0.270%
|
0.31%
|
0.40%
|
0.50%
|
0.70%
|
0.90%
|
|
APPLICABLE
FEE
RATE
|
LEVEL
I
STATUS
|
LEVEL
II
STATUS
|
LEVEL
III
STATUS
|
LEVEL
IV
STATUS
|
LEVEL
V
STATUS
|
LEVEL
VI STATUS
|
|
Facility
Fee
|
0.08%
|
0.09%
|
0.10%
|
0.125%
|
0.175%
|
0.225%
|
For
purposes of this Schedule, the following terms have the following meanings,
subject to the final paragraph of this Schedule:
"Financials"
means the annual or quarterly financial statements of the Borrower delivered
pursuant to Section 5.01(i) or (ii).
"Level I
Status" exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, the Leverage Ratio is less
than or equal to 1.0 to 1.00.
"Level II
Status" exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not
qualified for Level I Status and (ii) the Leverage Ratio is less than or equal
to 1.5 to 1.00.
"Level
III Status" exists at any date if, as of the last day of the fiscal quarter of
the Borrower referred to in the most recent Financials, (i) the Borrower has not
qualified for Level I Status or Level II Status and (ii) the Leverage Ratio is
less than or equal to 2.0 to 1.00.
"Level IV
Status" exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not
qualified for Level I Status, Level II Status or Level III Status and (ii) the
Leverage Ratio is less than or equal to 2.5 to 1.00.
"Level V
Status" exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not
qualified for Level I Status, Level II Status, Level III Status or Level IV
Status and (ii) the Leverage Ratio is less than or equal to 3.00 to
1.00.
“Level VI
Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, the Borrower has not
qualified for Level I Status, Level II Status, Level III Status, Level IV Status
or Level V Status.
"Status"
means either Level I Status, Level II Status, Level III Status, Level IV Status
or Level V Status or Level VI Status.
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The
Applicable Margin and Applicable Fee Rate shall be determined in accordance with
the foregoing table based on the Borrower's Status as reflected in the then most
recent Financials. Adjustments, if any, to the Applicable Margin or
Applicable Fee Rate shall be effective five Business Days after the Agent has
received the applicable Financials. If the Borrower fails to deliver
the Financials to the Agent at the time required pursuant to Section 5.01, then
the Applicable Margin and Applicable Fee Rate shall be the highest Applicable
Margin and Applicable Fee Rate set forth in the foregoing table until five days
after such Financials are so delivered.
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