Exhibit 10.19
AMENDMENT #13 TO RECEIVABLES SALE
AGREEMENT
THIS AMENDMENT
#13 (this
“Amendment” ), is dated as of
June 23, 2009, is by and among Actuant Corporation, a
Wisconsin corporation ( “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,
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,
Templeton, Kenly & Co., Inc., an Illinois corporation
(each of the foregoing, an “ Originator ”
and collectively, the “ Originators ” ),
Actuant Receivables Corporation, a Nevada corporation (
“Buyer” ), and Wachovia Bank, National
Association, as Agent (the “Agent” ), and
pertains to the Receivables Sale Agreement dated as of May 30,
2001 by and among Parent, the Originators and Buyer (as amended,
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
The parties wish to amend certain
terms of 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) Acme Electric Corporation, a New
York corporation (“ Acme NY ”), and BH
Electronics, Inc., a Tennessee corporation (“
BH ”), are hereby deleted as Originators under
the Existing Agreement and released from their obligations
thereunder; provided, however, that all other obligations of each
Originator (other than Acme NY and BH) and Buyer under or relating
to the Existing Agreement or any other Transaction Documents shall
survive and shall not be discharged, terminated, released or
satisfied hereby.
(b) Exhibit II to the Existing
Agreement is hereby amended and restated in its entirety to read as
set forth in Exhibit II to this Amendment.
(c) Exhibit III to the Existing
Agreement is hereby amended and restated in its entirety to read as
set forth in Exhibit III to this Amendment.
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Section 2.
Representations . Each of the Originators hereby confirms
that, as of the date of this Amendment, no event has occurred and
is continuing that will constitute a Termination Event or an
Unmatured Termination Event.
Section 3. Conditions
Precedent . This Amendment shall become effective as of the
date first above written upon receipt by the Agent of counterparts
of (i) this Amendment duly executed by each of the parties,
(ii) a Reconveyance of Specific Receivables for each of Acme
NY and BH, in each case duly executed by each of the parties
thereto and in form and substance acceptable to Agent.
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 ORIGINATOR AND BUYER 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 ORIGINATOR PURSUANT TO THIS AMENDMENT OR THE EXISTING
AGREEMENT AS AMENDED HEREBY AND EACH ORIGINATOR AND BUYER 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 BUYER (OR ITS ASSIGNS) TO BRING
PROCEEDINGS AGAINST ANY ORIGINATOR IN THE COURTS OF ANY OTHER
JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY ORIGINATOR AGAINST
BUYER (OR ITS ASSIGNS) OR ANY AFFILIATE THEREOF INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH THIS AMENDMENT OR THE EXISTING AGREEMENT AS AMENDED
HEREBY OR ANY DOCUMENT EXECUTED BY ANY ORIGINATOR PURSUANT TO THIS
AMENDMENT OR THE EXISTING AGREEMENT AS AMENDED HEREBY SHALL BE
BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
4.3. WAIVER OF JURY TRIAL .
EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS AMENDMENT OR THE EXISTING
AGREEMENT AS AMENDED HEREBY, ANY DOCUMENT EXECUTED BY ANY
ORIGINATOR PURSUANT TO THIS AMENDMENT OR THE EXISTING AGREEMENT AS
AMENDED HEREBY OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR
THEREUNDER.
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4.4. 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
when taken together shall constitute one and the same
Agreement.
4.5. Reference To And Effect on
Existing Agreement . Except as specifically modified above, the
Existing Agreement and the other Transaction Documents shall remain
in full force and effect and are herby ratified and confirmed. The
execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of Agent under
the Existing Agreement or any other Transaction Documents, nor
constitute a waiver of any provision of the Existing Agreement or
any other Transaction Documents, except as specificall