AMENDMENT NO. 1
AMENDMENT NO. 1, dated as of April 9, 2001 ("Amendment"), to the Credit
Agreement dated as of July 31, 2000, (the "Credit Agreement"), among Actuant
Corporation (the "Company"), Credit Suisse First Boston as Lead Arranger,
Collateral Agent and Administrative Agent, First Union National Bank, as
Syndication Agent, ING (U.S.) Capital LLC, as Documentation Agent and the
Lenders party thereto. Capitalized terms not otherwise defined herein have the
same meaning assigned to such terms in the Credit Agreement.
W I T N E S S E T H :
WHEREAS, "Applied Power Inc." was formally renamed "Actuant Corporation" on
January 15, 2001;
WHEREAS, pursuant to Section 9.08 of the Credit Agreement, the Company and
the Required Lenders desire to amend certain provisions of the Credit Agreement;
NOW THEREFORE, in consideration of the premises and covenants contained
herein, and for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Amendment
(a) Exchange Rate: The definition of Exchange Rate in Section 1.01 of
the Credit Agreement is hereby amended by adding the following
sentence at the end thereof:
"For purposes of Sections 2.12(b) and 2.13(g), in the event that
a Lender of a Tranche B Term Loan elects to have a prepayment
applied to the Tranche A Term Loans which election results in a
requirement to prepay or repay Alternative Currency denominated
Tranche A Term Loans, the Exchange Rate shall be calculated in
accordance with the second sentence hereof on the Business Day
following the receipt of such election."
(b) Section 2.12. Clauses (a) and (b) of Section 2.12 of the Credit
Agreement are hereby amended by deleting such clauses in their
entirety and replacing them with the following:
"(a) The Borrower shall have the right at any time and from time to
time to prepay any Borrowing, in whole or in part, upon prior written
or telecopy notice (or telephone notice promptly confirmed by written
or telecopy notice) to the Administrative Agent before 11:00 a.m., New
York City time at least (x) seven Business Days prior to the date of
prepayment in the case of Eurocurrency Rate Loans denominated on one
or more Alternative Currencies, (y) four Business Days prior to the
date of prepayment in the case of Loans denominated in Dollars, and
(z) on the date of prepayment in the case of ABR Revolving Loans;
provided, however, that each partial prepayment shall be in an amount
that is an integral multiple of $1,000,000 (or the Alternative
Currency Equivalent thereof) and not less than $5,000,000 (or the
Alternative Currency Equivalent thereof); provided, further, however,
that in connection with any optional prepayment of an Alternative
Currency Loan the Borrower shall provide seven Business Days notice
and an amount of Dollars sufficient to make the required pro rata
prepayment of Tranche B Term Loans and Tranche C Term Loans in
accordance with Section 2.12(b) (assuming, for this purpose, that no
Lender of Tranche B Term Loans waives its prepayment in accordance
with Section 2.12(b)). Notwithstanding anything else contained herein
but subject to the second proviso above, in connection with any
prepayment of Tranche A Term Loans, the Borrower may elect to prepay
only Dollar denominated Tranche A Term Loans or Alternative Currency
denominated Tranche A Term Loans (or any combination thereof) pursuant
to Section 2.12(b) to the extent such Loans remain outstanding at such
time but only in the event the Borrower provides for such prepayment
in the appropriate currency.
(b) Optional prepayments of Term Loans shall first be allocated and
applied pro rata to the next scheduled installment of principal due in
respect of the Tranche A Term Loans, Tranche B Term Loans and Tranche
C Term Loans under Sections 2.11(a)(i), (ii) and (iii),
respectively. Thereafter, optional prepayments shall be allocated
pro rata to the then outstanding Tranche A Term Loans, the
Tranche B Term Loans and the Tranche C Term Loans (after giving
effect to the prepayments applied with respect to the next
scheduled installment provided for in the prior sentence) and
applied pro rata to the remaining scheduled installments of
principal due in respect thereof under Sections 2.11(a)(i), (ii)
and (iii), respectively; provided, however, Lenders of the
Tranche B Term Loans shall have the right (to the extent Tranche
A Term Loans remain outstanding after giving effect to such
prepayment of the Tranche A Term Loans) to waive any such
prepayment (other than as applied to the next scheduled
prepayment) by giving notice in writing to the Administrative
Agent at least three Business Days prior to the prepayment, in
which case the waived portion of any such prepayment will be
allocated to the Tranche A Term Loan. In the event that one or
more of the Lenders of the Tranche B Term Loans waive such
prepayment in accordance with the prior sentence, the prepayment
will be applied first to the Dollar denominated Tranche A Term
Loans and thereafter to the Alternative Currency Tranche A Term
Loans based upon the Exchange Rate. The Administrative Agent
shall determine the amount of such payment based on the Exchange
Rate and the Borrower shall be responsible for delivering the
Alternative Currency."
(c) Section 2.13(g). Section 2.13(g) of the Credit Agreement is
hereby amended by deleting such section in its entirety and replacing
it as follows:
"Each mandatory prepayment shall be made by the Borrower in a
combination of Dollars and the Alternative Currency (based upon
the Exchange Rate) in proportion to the amounts to be repaid;
provided, that in connection with any mandatory prepayment of an
Alternative Currency Loan the Borrower shall provide an amount of
Dollars sufficient to make the required pro rata prepayment of
Tranche B Term Loans and Tranche C Term Loans in accordance with
this Section 2.13(g) (assuming, for this purpose, that no Lender
of
Tranche B Term Loans waives its prepayment in accordance with
Section 2.12(j)). In the event that one or more of the Lenders of
the Tranche B Term Loans waives its prepayment in accordance with
Section 2.12(j), the prepayment will be applied first to the
Dollar denominated Tranche A Term Loans and thereafter to the
Alternative Currency Tranche A Term Loans based upon the Exchange
Rate. The Administrative Agent shall determine the amount of such
payment based on the Exchange Rate and shall convert the Dollars
to the Alternative Currency at the direction of the Borrower. The
Borrower shall pay to the Administrative Agent any shortfall as a
result of such conversion."
(d) Section 6.01. Sections 6.01(k) and (m) of the Credit Agreement are
hereby amended by deleting such sections in their entirety and replacing
them as follows:
"(k) subject to Section 6.01(m) below, Indebtedness incurred by Foreign
Subsidiaries incurred from time to time after the Closing Date so long as the
aggregate principal amount of all Indebtedness (including trade letters of
credit) incurred pursuant to this paragraph (k) at any time outstanding does not
exceed the Dollar Equivalent of $75,000,000; provided, no such Indebtedness may
be incurred when on a pro forma basis for such incurrence (x) the aggregate
principal amount of all such Indebtedness outstanding would be greater than
$45,000,000 and (y) the Senior Leverage Ratio would be greater than 1.5:1.0;
provided, further, none of the Indebtedness permitted pursuant to this paragraph
(k) may be directly or indirectly guaranteed by the Borrower or any Domestic
Subsidiaries of the Borrower;
(m) additional Indebtedness of the Borrower and its Subsidiaries to the
extent not permitted by the foregoing clauses of this Section 6.01 not to exceed
$10,000,000 in aggregate principal amount at any time outstanding; provided, the
aggregate amount of Indebtedness under Sections 6.01(k) and (m) does not exceed
$80,000,000 at any one time."
(e) Section 6.05. Section 6.05(b) of the Credit Agreement is hereby
amended by deleting such Section in its entirety and replacing it with the
following:
"(b) each of the Borrower and its Subsidiaries may (i) in the
ordinary course of business, sell, lease or otherwise dispose of
any assets which, in the reasonable judgment of such person, are
obsolete, worn out or otherwise no longer useful in the conduct
of such person's business, and (ii) unless an Event of Default
shall have occurred and be continuing, subject to Section
2.13(b), sell, lease or otherwise dispose of any assets, provided
that the aggregate consideration received in respect of all
assets subject to sales or other dispositions pursuant to this
clause (b)(ii) shall not exceed the sum of (i) $10,000,000 in any
twelve months, not including the proceeds of the sale of assets
listed on Schedule 2.13(b);"
(f) Section 6.06. Section 6.06 of the Credit Agreement is hereby amended
by deleting the word "and" at the end of Section (b), substituting "; and"
for the "." at the end of Section (c) and adding the following new Section
(d):
"(d) so long as there shall exist no Default or Event of Default
(both before and after giving effect to the payment thereof), the
Borrower may repurchase outstanding shares of its common stock or
equivalents thereof or rights to purchase any of the foregoing
issued in connection with the Borrower's directors compensation
plan; provided that the aggregate amount of shares repurchased
paid by the Borrower pursuant to this Section 6.06(d) (exclusive
of amounts paid as described pursuant to Section 6.06(b)) shall
not exceed $750,000 in any fiscal year and shall not exceed a
maximum of $1,750,000."
2. Conditions to Effectiveness. This Amendment shall become effective as
of the date first above written when, and only when, the Administrative Agent
shall have received counterparts of this Amendment executed by the Company and
the Requisite Lenders or, as to any of the Lenders, advice satisfactory to the
Administrative Agent that such Lender has executed this Amendment. The
effectiveness of this Amendment (other than Sections 5 and 7 hereof) is
conditioned upon the accuracy of the representations and warranties set forth in
Section 3 hereof.
3. Representations and Warranties. In order to induce the Lenders and the
Agents to enter into this Amendment, the Company represents and warrants to each
of the Lenders and the Agents that after giving effect to this Amendment, (i) no
Default or Event of Default has occurred and is continuing; and
(ii) all of the representations and warranties in the Credit Agreement, after
giving effect to this Amendment, are true and complete in all material respects
on and as of the date hereof as if made on the date hereof (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date).
4. Reference to and Effect on the Credit Agreement and the Notes. On and
after the effectiveness 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 each of the other Credit
Documents to the "Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement, as amended by this Amendment. The Credit Agreement, the Notes
and each of the other Credit Documents, as specifically amended by this
Amendment, are and shall continue to be in full force and effect and are hereby
in all respects ratified and confirmed.
5. Costs, Expenses and Taxes. The Company agrees to pay all reasonable
costs and expenses of the Agents in connection with the preparation, execution
and delivery of this Amendment and the other instruments and documents to be
delivered hereunder, if any (including, without limitation, the reasonable fees
and expenses of Cahill Gordon & Reindel) in accordance with the terms of Section
9.05 of the Credit Agreement. In addition, the Company shall pay or reimburse
any and all stamp and other taxes payable or determined to be payable in
connection with the execution and delivery of this Amendment and the other
instruments and documents to be delivered hereunder, if any, and agrees to save
each Agent and each Lender harmless from and against any and all liabilities
with respect to or resulting from any delay in paying or omission to pay such
taxes.
6. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute but one and the same agreement. Delivery
of an executed counterpart of a signature page to this Amendment by telecopier
shall be effective as delivery of a manually executed counterpart of this
Amendment.
7. Governing Law. This Amendment shall be governed by, and construed and
enforced in accordance with, the internal laws of the State of New York
(including Section 5-1401 of the General Obligations Law of the State of New
York), without
giving effect to any provisions thereof relating to conflicts of law.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
ACTUANT CORPORATION
By: /s/ Terence M. Braatz
---------------------
By: Terence M. Braatz
Title: Treasurer
AVALON CAPITAL LTD.
By: INVESCO Senior Secured
Management, Inc.
As Portfolio Advisor
By: /s/ Gregory Stoeckle
--------------------
Name: Gregory Stoeckle
Title: Authorized Signatory
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured
Management, Inc.
As Portfolio Advisor
By: /s/ Gregory Stoeckle
--------------------
Name: Gregory Stoeckle
Title: Authorized Signatory
Bank One, NA (Main Office Chicago)
as one of the Lenders
(please type)
By: /s/ Jenny A. Gilpin
-------------------
Name: Jenny A. Gilpin
Title: First Vice President
Black Diamond CLO 2000-1 Ltd.
as one of the Lenders
(please type)
By: /s/
Name:
Title:
CERES II FINANCE LTD.
By: INVESCO Senior Secured
Management, Inc.
As Sub-Managing Agent (Financial)
By: /s/ Gregory Stoeckle
--------------------
Name: Gregory Stoeckle
Title: Authorized Signatory
CREDIT INDUSTRIEL ET
COMMERCIAL
as one of the Lenders
(please type)
By: /s/ Brian O'Leary
-----------------
/s/ Anthony Rock
-----------------
Name: Brian O'Leary
Title: Vice President
Name: Anthony Rock
Title: Vice President
CREDIT SUISSE FIRST BOSTON
as one of the Lenders
By: /s/ David W. Kratovil
----------------------
Name: David W. Kratovil
Title: Director
By: /s/ Lalita Advani
-----------------
Name: Lalita Advani
Title: Assistant Vice
President
Firstar Bank, N.A.
as one of the Lenders
(please type)
By: /s/ Caroline V. Krider
----------------------
Name: Caroline V. Krider
Title: Vice President
Fleet National Bank
as one of the Lenders
(please type)
By: /s/ Richard D Briggs, Jr.
-------------------------
Name: Richard D. Briggs, Jr.
Title: Director
Fremont Investment & Loan
as one of the Lenders
(please type)
By: /s/ Kannika Viravan
-------------------
Name: Kannika Viravan
Title: Vice President
Harris Bank and Trust Company
as one of the Lenders
(please type)
By: /s/
ING (U.S.) CAPITAL LLC
as one of the Lenders
(please type)
By: /s/ Bill Redmond
----------------------
Name: William B. Redmond
Title: Vice President
J.H. WHITNEY MARKET VALUE
FUND, L.P.
By: Whitney Market Value GP,
LLC, General Partner, as one
of the Lenders
By: /s/ Michael B. DeFlorio
-----------------------
Michael B. DeFlorio, Managing
Director
KZH CNC LLC
as one of the Lenders
(please type)
By: /s/ Susan Lee
-------------
Name: Susan Lee
Title: Authorized Agent
LaSalle Bank National
Association
as one of the Lenders
By: /s/ James A. Meyer
------------------
James A. Meyer
Senior Vice President
M&I Marshall & Ilsley Bank
as one of the Lenders
(please type)
By: /s/ James E. Miller
-------------------
Name: James E. Miller
Title: Vice President
By: /s/ Gina A. Peter
-----------------
Name: Gina A. Peter
Title: Senior Vice President
The Mitsubishi Trust and
Banking Corporation
as one of the Lenders
(please type)
By: /s/ Toshihiro Hayashi
---------------------
Name: Toshihiro Hayashi
Title: Senior Vice President
National City
as one of the Lenders
(please type)
By: /s/ John Platek
---------------
Name: John Platek
Title: Account Officer
NATIONWIDE LIFE INSURANCE
COMPANY
as one of the Lenders
(please type)
By: /s/ Thomas S. Leggett
---------------------
Name: Thomas S. Leggett
Title: Investment Officer
SIERRA CLO-I
as one of the Lenders
(please type)
By: /s/ John M. Casparian
Name: John M. Casparian
Title: Chief Operating
Officer, Centre Pacific LLP
(Manager)
U.S. Bank National Association
as one of the Lenders
(please type)
By: /s/ Alan Holman
---------------
Name: Alan Holman
Title: Vice President
VAN KAMPEN
PRIME RATE INCOME TRUST
By: Van Kampen Investment
Advisory Corp.
as one of the Lenders
(please type)
By: /s/ Darvin D. Pierce
--------------------
Name: Darvin D. Pierce
Title: Principal
VAN KAMPEN
SENIOR INCOME TRUST
By: Van Kampen Investment
Advisory Corp.
as one of the Lenders
(please type)
By: /s/ Darvin D. Pierce
---------------------
Name: Darvin D. Pierce
Title: Principal
Wachovia Bank, N.A.
as one of the Lenders
By: /s/ Bradford L. Watkins
-----------------------
Name: Bradford L. Watkins
Title: Vice President
WINGED FOOT FUNDING TRUST
as one of the Lenders
(please type)
By: /s/ Ann E. Morris
------------------
Name: Ann E. Morris
Title: Authorized Agent