Exhibit 10.4
AMENDMENT #1 TO AMENDED AND
RESTATED RECEIVABLES
PURCHASE AGREEMENT
THIS AMENDMENT
#1 (this
“Amendment” ) , dated as of
December 11, 2008 (to be effective on the Effective Date) is
entered into by and among:
(a) Actuant Receivables Corporation,
a Nevada corporation ( “Seller”
),
(b) Actuant Corporation, a Wisconsin
corporation ( “Parent” ), as initial
Servicer, and
(c) Wachovia Bank, National
Association, individually as purchaser (
“Purchaser” ) and as agent for Purchaser
and its assigns under the Transaction Documents (together with its
successors and assigns in such capacity, the
“Agent” ),
with respect to the Amended and
Restated Receivables Purchase Agreement dated as of
September 10, 2008 by and among the Seller, Parent, Purchaser
and Agent (as amended, restated or otherwise modified from time to
time, the “Existing Agreement” ). Unless
defined elsewhere herein, capitalized terms used in this Amendment
shall have the meanings assigned to such terms in the Existing
Agreement.
PRELIMINARY
STATEMENT
Each of the parties wishes to amend
the Existing Agreement on the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE,
in consideration of the foregoing
premises and the mutual agreements herein contained and other good
and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as
follows:
Section 1. Amendment .
The definition of “Purchase Limit” contained in
Exhibit I to the Existing Agreement is hereby amended and
restated to read as follows:
“ “Purchase
Limit” means
$60,000,000.”
Section 2.
Representations . In order to induce the other parties
hereto to consent to this Amendment, Seller hereby confirms that,
as of the Effective Date:
(a) the representations and
warranties set forth in Section 5.1 of the Existing Agreement
are true and correct on and as of the date of this Amendment as
though made on the date hereof;
(b) no event has occurred and is
continuing that will constitute an Amortization Event or an
Unmatured Amortization Event; and
(c) the Aggregate Invested Amount
does not exceed the Purchase Limit and the aggregate Receivable
Interests do not exceed 100%.
Section 3. Conditions
Precedent . This Amendment shall become effective as of the
Effective Date upon the receipt by the Agent of counterparts
hereof, duly executed by each of the parties hereto.
Section 4. Miscellaneous
.
4.1. CHOICE OF LAW . THIS
AMENDMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
ILLINOIS.
4.2. CONSENT TO JURISDICTION
. EACH PARTY TO THIS AMENDMENT HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS
STATE COURT SITTING IN CHICAGO, ILLINOIS, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE
EXISTING AGREEMENT AS AMENDED HEREBY OR ANY DOCUMENT EXECUTED BY
SUCH PERSON PURSUANT TO THIS AMENDMENT OR THE EXISTING AGREEMENT AS
AMENDED HEREBY, AND EACH SUCH PARTY HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS
AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
AGENT OR ANY PURCHASER TO BRING PROCEEDINGS AGAINST ANY SELLER
PARTY IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL
PROCEEDING BY ANY SELLER PARTY AGAINST THE AGENT OR ANY PURCHASER
OR ANY
