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Exhibit 4
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (this "Amendment"), dated as
of February 28, 1995 is among APPLIED POWER INC., a Wisconsin corporation (the
"Company"), APPLIED POWER FINANCE S.A., a French corporation ("APSA"), BANK OF
AMERICA ILLINOIS, ABN AMRO BANK N.V., and PNC BANK, NATIONAL ASSOCIATION, as
Lenders and BANK OF AMERICA ILLINOIS (f/k/a Continental Bank), as
administrative agent for the Lenders (the "Agent").
W I T N E S S E T H :
WHEREAS, the Company, APSA, the Lenders and the Agent entered into that
certain Credit Agreement dated as of August 22, 1994 (the "Original Credit
Agreement"); and
WHEREAS, the Company and APSA have requested the Lenders to amend the
Original Credit Agreement to increase the Aggregate Commitment;
NOW, THEREFORE, the parties hereto, in consideration of the premises
and mutual agreements herein contained, hereby agree as follows:
1. Definitions. Capitalized terms used herein that are defined in the
Original Credit Agreement shall have the same meaning when used herein unless
otherwise defined herein.
2. Amendments to Original Credit Agreement. From and after the
Effective Date (as hereinafter defined), the Original Credit Agreement is
hereby amended as follows:
(a) Section 1.1 - "Defined Terms" of the Original Credit
Agreement is amended as follows:
(i) The definition of "Agent" is amended in its entirety to
read as follows:
Agent means Bank of America Illinois (f/k/a/
Continental Bank), together with its successors and assigns.
(ii) The definition of "Aggregate Commitment" is amended in
its entirety to read as follows:
Aggregate Commitment at any time means (a) on or before
March 1, 1995, $40,000,000, (b) during the period commencing
on March 1, 1995 and ending on August 31, 1995, $80,000,000,
and (c) from and after September 1, 1995, $40,000,000,
as such amounts may be reduced from time to time pursuant to
Section 5.1.
(iii) The definition of "Continental" is amended in its
entirety to read as follows:
Continental means Bank of America Illinois (f/k/a
Continental Bank)
(b) Section 2.1.1 of the Original Credit Agreement is amended
by adding the following at the end of the first sentence thereof:
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"; provided, however, that in no event shall the aggregate
principal Dollar Amount of all outstanding Bid Loans of APSA plus the
aggregate principal Dollar Amount of all outstanding Committed
Loans of APSA exceed the lesser of (x) $40,000,000 and (y) the
Aggregate Commitment."
(c) Section 3.1 of the Original Credit Agreement is amended by
inserting the following at the end of the first sentence thereof:
"provided, further, that the aggregate principal Dollar Amount
of all outstanding Bid Loans of APSA plus the aggregate principal
Dollar Amount of all outstanding Committed Loans of APSA shall not at
any time exceed the lesser of (x) $40,000,000 and (y) the Aggregate
Commitment.
(d) Section 5.2 of the Original Credit Agreement is amended by
adding the following new subsection (c) thereto:
(c) If on September 1, 1995, the Dollar Amount of the
aggregate outstanding principal amount of all Loans exceeds (as a
result of fluctuations in applicable foreign exchange rates, the
reduction of the Commitments or otherwise) the Aggregate Commitment,
the Borrowers shall make a mandatory prepayment of the Loans in an
amount equal to such excess. Such payment shall be applied (and, to
the extent necessary, made in the applicable Available Currencies) to
repay first, Floating Rate Loans, second, Committed Eurocurrency Loans,
and third, Bid Loans. Any prepayment of a Fixed Rate Loan shall be
subject to the provisions of Section 7.4.
(e) Schedule I of the Original Credit Agreement is deleted and
Schedule I to this Amendment is substituted therefor.
3. Representations and Warranties of each Borrower. In order to
induce the Lender and the Agent to execute and deliver this Amendment, each
Borrower hereby represents and warrants to each Lender and to the Agent that:
(a) The representations and warranties of such Borrower
contained in the Credit Agreement are true and correct in all material
respects on and as of the date hereof as though made on and as of the date
hereof.
(b) No Event of Default or Unmatured Event of Default has
occurred and is continuing on and as of the date hereof or will result from the
execution and delivery of this Amendment or the consummation of the
transactions contemplated herein.
4. Conditions to Effectiveness of this Amendment. This Amendment
shall become effective March 1, 1995 (the "Effective Date") provided that on or
before such date the Agent shall have received:
(a) from each Borrower, five originally executed counterparts
of a certificate of its Secretary or Assistant Secretary as to
(i) the resolutions of its Board of Directors authorizing
such Borrower's execution, delivery and performance of this Amendment
and all other documents, instruments and agreements related hereto,
and
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(ii) the incumbency and signatures of those of its officers
authorized to act with respect to this Amendment and the Credit
Agreement and each other document, instrument or agreement to be
executed by it in connection with this Amendment;
(b) Counterparts of this Agreement executed by each Borrower,
the Agent and each Lender.
(c) Five originally executed counterparts of a certificate of
each Borrower dated the Effective Date certifying that the matters set
forth in Section 3.1 hereof are true and correct with the same effect as if
then made.
(d) Five signed opinions dated the Effective Date and
addressed to the Agent and all Lenders, each substantially in the form of
Exhibits F and G to the Original Credit Agreement, as applicable, covering the
Amendment and the Original Credit Agreement, as amended from:
(i) Quarles & Brady, counsel for the Company;
(ii) Salens Hertzfeld & Herlbronn, counsel for APSA; and
(iii) Mayer, Brown & Platt, counsel for the Agent.
(e) Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of each Borrower shall be
satisfactory in form and substance to the Agent and its counsel; the Agent and
its counsel shall have received all information, and such counterpart originals
or such certified or other copies of such documents, instruments and agreements
as the Agent or its counsel may reasonably request; and all legal matters
incident to the transactions contemplated by this Amendment shall be
satisfactory to counsel to the Agent.
5. Miscellaneous.
(a) From and after the date hereof, each reference to the
Original Credit Agreement shall be deemed to be a reference to the Original
Credit Agreement as amended hereby. As amended hereby, the Original Credit
Agreement is hereby reaffirmed, approved and confirmed in every respect, and
shall remain in full force and effect including, without limitation, the
guaranty in Section 13 of the Original Credit Agreement.
(b) This Amendment may be executed by the parties hereto in
any number of counterparts and by the different parties on separate
counterparts and each such counterpart shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same Amendment.
(c) THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed and delivered by their respective officers thereunto duly authorized
as of the day and year first above written.
APPLIED POWER, INC.
By: /s/ Douglas R. Dorszynski
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Title: Vice President Tax and Treasurer
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APPLIED POWER FINANCE S.A.
By: /s/ Douglas R. Dorszynski
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Title: Designated Attorney in fact
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BANK OF AMERICA ILLINOIS (f/k/a
Continental Bank) in its individual
capacity and as Agent
By: /s/ Meg Klaggett
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Title: Vice President
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ABN AMRO BANK N.V.
By: /s/ R. Michael Schwartz
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Title: Vice President
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By: /s/ William Heissenbuttel
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Title: Vice President
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ Richard T. Jander
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Title: Vice President
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Schedule I
Commitment
Commitment Commitment from and
prior to from 3/1/95 after
Lender 3/1/95 to 8/31/95 9/1/95 Percentage
------ ---------- ----------- ---------- ----------
Bank of $ 20,000,000 $ 40,000,000 $ 20,000,000 50%
America
Illinois
ABN AMRO 10,000,000 20,000,000 10,000,000 25%
N.V.
PNC Bank, 10,000,000 20,000,000 10,000,000 25%
National
Association
TOTAL $ 40,000,000 $ 80,000,000 $ 40,000,000 100%