Re: Amendment No. 2 to Second Amended and Restated Note Purchase
Exhibit
10.13
February
26, 2008
Franklin
Electric Co., Inc.
000 Xxxx
Xxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxx 00000
Attention:
Secretary
|
Re:
|
Amendment
No. 2 to Second Amended and Restated Note
Purchase
|
and Private Shelf
Agreement
Ladies
and Gentlemen:
Reference is made to that certain
Second Amended and Restated Note Purchase and Private Shelf Agreement dated as
of September 9, 2004 by and among Franklin Electric Co., Inc., an Indiana
corporation (the “Company”), Prudential Investment Management, Inc. (“PIM”), The
Prudential Insurance Company of America (“PICA” and together with PIM,
“Prudential”) as amended by that certain letter agreement dated as of April 9,
2007 by and among the Company, PIM and PICA (the “Note Agreement”), and each
other Prudential Affiliate which from time to time becomes a party to the Note
Agreement in accordance with the terms thereof. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Agreement.
Pursuant
to the request of the Company and in accordance with the provisions of paragraph
11C of the Note Agreement, the parties hereto agree as follows:
SECTION
1. Amendment. From
and after the Effective Date (as defined in Section 3 hereof), the Note
Agreement is amended as follows:
1.1 Paragraph
6B(10) of the Note Agreement is hereby amended and restated in its entirety to
read as follows:
6B(10). Debt to EBITDA
Ratio. At the end of each Fiscal Quarter, the ratio of
Consolidated Total Debt as at the end of such Fiscal Quarter to Consolidated
EBITDA for the period of four consecutive Fiscal Quarters then ended shall not
exceed: (i) for any Fiscal Quarter ending on March 31, 2002, through and
including December 31, 2007, 3.00 to 1.00, (ii) for any Fiscal Quarter ending on
March 29, 2008, through and including April 4, 2009, 3.50 to 1.00, and (iii) for
any Fiscal Quarter ending on June 30, 2009 or thereafter, 3.00 to
1.00.
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1.2 The
definition of “Applicable Number” appearing in paragraph 5G of the Note
Agreement is hereby amended and restated in its entirety to read as
follows:
“Applicable Number” shall mean
(i) .00075 if, with respect to such Fiscal Quarter, the ratio of Consolidated
Total Debt to EBITDA, as calculated above, was equal to or greater than 2.00 to
1.00, but not greater than 2.50 to 1.00, (ii) .0015 if, with respect to such
Fiscal Quarter, the ratio of Consolidated Total Debt to EBITDA, as calculated
above, was greater than 2.50 to 1.00 but not greater than 3.00 to 1.00 or (iii)
..0025 if, with respect to such Fiscal Quarter, the ratio of Consolidated Total
Debt to EBITDA, as calculated above, was greater than 3.00 to 1.00.
SECTION
2. Representations
and Warranties.
The Company represents and warrants that, after giving effect hereto, each
representation and warranty set forth in paragraph 8 of the Note Agreement, as
amended hereby, is true on and as of the date of the execution and delivery of
this letter by the Company with the same effect as if made on such date (except
to the extent of changes caused by transactions contemplated under and permitted
by the Note Agreement, as amended hereby).
SECTION 3. Conditions
Precedent; Binding Agreement. This letter shall become
effective as of the date hereof (the “Effective Date”) upon (i) the return by
the Company to Prudential Capital Group (Attention: Wiley X. Xxxxx) of an
original counterpart to this letter, duly executed and delivered by the Company,
PIM, PICA and each of the other noteholders signatory hereto (the
“Other Holders”) and (ii) the receipt by Wiley X. Xxxxx, counsel for PIM, PICA
and the Other Holders, of an amendment to the Company’s primary bank facility in
form and substance reasonably acceptable to the Required Holders amending such
facility in substantially the same manner as Section 1.1 above. Upon
the satisfaction of the foregoing conditions, this letter shall become a binding
agreement among the Company, PIM, PICA and such Other
Holders.
SECTION
4. Reference
to and Effect on Agreement. Upon the Effective Date, each
reference to the Note Agreement in any other document, instrument or agreement
shall mean and be a reference to the Note Agreement as modified by this
letter. Except as specifically set forth in Section 1 hereof, the
Note Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects.
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SECTION 5. Governing
Law. THIS LETTER SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY,
THE LAWS OF THE STATE OF ILLINOIS (EXCLUDING ANY CONFLICTS OF LAW RULES WHICH
WOULD OTHERWISE CAUSE THIS LETTER TO BE CONSTRUED OR ENFORCED IN ACCORDANCE
WITH, OR THE RIGHTS OF THE PARTIES TO BE GOVERNED BY, THE LAWS OF ANY OTHER
JURISDICTION).
SECTION 6. Counterparts;
Section Titles. This letter may
be executed in any number of counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute but one and the same instrument. The section titles
contained in this letter are and shall be without substance, meaning or content
of any kind whatsoever and are not a part of the agreement between the parties
hereto. Delivery of an executed counterpart of a signature page to
this letter by facsimile shall be effective as delivery of a manually executed
counterpart of this letter.
Very
truly yours,
PRUDENTIAL
INVESTMENT MANAGEMENT, INC.
By:
Vice-President
THE
PRUDENTIAL INSURANCE COMPANY
OF
AMERICA
By: ___________________________________
Vice
President
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MUTUAL
OF OMAHA INSURANCE
COMPANY
By: Prudential
Private Placement Investors,
L.P. (as Investment
Advisor)
By: Prudential
Private Placement Investors, Inc.
(as its
General Partner)
By: ______________________________
Vice President
UNITED
OF OMAHA LIFE INSURANCE
COMPANY
By: Prudential
Private Placement Investors,
L.P. (as Investment
Advisor)
By: Prudential
Private Placement Investors, Inc.
(as its
General Partner)
By: ______________________________
Vice President
Agreed
and accepted:
FRANKLIN
ELECTRIC CO., INC.
By: ______________________________
Xxxxxx
X. Xxxxxx,
Vice
President, Chief Financial Officer
and
Secretary
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