Exhibit 10.5
AMENDMENT #2 TO AMENDED AND
RESTATED RECEIVABLES
PURCHASE AGREEMENT
THIS AMENDMENT
#2 (this
“Amendment” ) , dated as of
February 10, 2009 (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 “Originator” contained in Exhibit I
to the Existing Agreement is hereby amended and restated in its
entirety to read as follows:
“
“Originator” means each of Parent, GB Tools and Supplies,
Inc., a Wisconsin corporation, Versa Technologies, Inc., a Delaware
corporation, Kwikee Products Company, LLC, a Delaware limited
liability company, Nielsen Hardware Corp., a Connecticut
corporation, B.W. Elliott Manufacturing Co., LLC, a New York
limited liability company, Acme Electric Corporation, a New York
corporation, Atlantic Guest, Inc., a Delaware corporation,
Hydratight Operations, Inc. (formerly Hydratight Sweeney, Inc.), a
Delaware corporation, Hydratight, Inc. (formerly Hydratight Sweeney
Products Corporation), a Delaware corporation, D.L. Ricci Corp., a
Minnesota corporation, Precision Sure-Lock, Inc., a Delaware
corporation, Key Components, Inc. (successor by merger to Key
Components, LLC), a New York corporation, Maxima
Technologies & Systems, LLC, a Delaware limited liability
company, ACME Electric Inc. (successor by merger to Actown
Electrocoil, Inc.), a Delaware corporation, BH Electronics, Inc., a
Tennessee corporation and Templeton, Kenly & Co., Inc., an
Illinois corporation, in its capacity as a seller under the
Receivables Sale Agreement.”
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 (a) receipt by the Agent of
counterparts hereof, duly executed by each of the parties hereto,
(b) filing of amendments (in form suitable for filing) to the
financing statements against Seller in connection with the Existing
Agreement to reflect the change in definition of
“Originator” , (c) receipt by the
Agent of counterparts to Amendment #20 to the Receivables Purchase
Agreement, duly executed by each of the parties thereto,
(d) effectiveness of (i) Amendment #11 to the Receivables
Sale Agreement of even date herewith and (ii) the Seventh
Amended and Restated Collection Account Agreement of even date
herewith by and among JPMorgan Chase Bank, N.A. and Agent and
(e) payment of all outstanding legal fees and expenses of
Latham & Watkins LLP.
Section 4. Miscellaneous
.
4.1. CHOICE OF LAW . THIS
AMENDMENT SHALL BE GOVERN
