Exhibit 10.9
AMENDMENT #18 TO RECEIVABLES
PURCHASE AGREEMENT
THIS AMENDMENT
#18 (this
“Amendment” ) , dated as of
September 10, 2008 is entered into by and among:
(a) Actuant Receivables Corporation,
a Nevada corporation ( “Seller”
),
(b) Actuant Corporation, a Wisconsin
corporation ( “Parent” ), as initial
Servicer,
(c) Variable Funding Capital Company
LLC (as assignee of Blue Ridge Asset Funding Corporation, a
Delaware corporation) ( “VFCC” ),
and
(d) Wachovia Bank, National
Association, as agent for VFCC and its assigns under the
Transaction Documents and under the Liquidity Agreement (together
with its successors and assigns in such capacity, the
“Agent” ),
with respect to the Receivables
Purchase Agreement dated as of May 30, 2001 by and among the
Seller, Parent, VFCC 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. Amendments
.
(a) Section 7.1(b)(vii) is
hereby amended and restated to read in its entirety as
follows:
“(vii) ERISA
.
(a) The occurrence or the reasonably
expected occurrence of any ERISA Event that, when taken together
with all other such ERISA Events, could reasonably be expected to
result in a material liability.
(b) The filing or the written
indication to Parent or the relevant ERISA Affiliate of the intent
of the PBGC to file notice of a Lien in relation to any Plan or
with regard to any of the Purchased Assets.”
(b) Section 9.1(d) of the
Existing Agreement is hereby amended by changing the phrase
“ten (10)” contained therein to “thirty
(30)”.
(c) Section 9.1(f) of the
Existing Agreement is hereby amended by changing the dollar amount
of “$5,000,000” contained therein to
“$10,000,000”.
(d) Section 9.1(j) of the
Existing Agreement is hereby amended by changing the dollar amount
of “$5,000,000” contained therein to
“$10,000,000”.
(e) Section 9.1(o) of the
Existing Agreement is hereby amended by changing the dollar amount
of “$1,000,000” contained therein to
“$10,000,000”.
(f) Section 9.1(p) of the
Existing Credit Agreement is hereby amended and restated to read in
its entirety as follows:
“(p) The Internal Revenue
Service shall file notice of a lien pursuant to Section 6323
of the Tax Code with regard to any of the Purchased Assets and such
lien shall not have been released within seven (7) days, or
the PBGC shall, or shall indicate in writing to the Parent or the
relevant ERISA Affiliate its intention to, file notice of a lien
pursuant to Section 4068 of ERISA with regard to any Plan of
the Purchased Assets.”
(g) The definition of
“Amortization Date” contained in Exhibit I to the
Existing Agreement is hereby amended and restated in its entirety
to read as follows:
“ “Amortization
Date” means the
earliest to occur of (i) March 10, 2009, (ii) the
day on which any of the conditions precedent set forth in
Section 6.2 are not satisfied, (iii) the Business Day
immediately prior to the occurrence of an Event of Bankruptcy with
respect to any Seller Party, (iv) the Business Day specified
in a written notice from the Agent following the occu
