Exhibit 4.15
THIS AMENDED AND RESTATED SUBSIDIARY GUARANTEE
AGREEMENT (together with instruments executed and
delivered pursuant to Section 20 hereof, this
"Agreement") dated as of May 22, 2002, among each of
the subsidiaries of ACTUANT CORPORATION, a Wisconsin
corporation (formerly known as Applied Power Inc.)
(the "Borrower") listed on Schedule I hereto (the
"Subsidiary Guarantors"), and CREDIT SUISSE FIRST
BOSTON, a bank organized under the laws of
Switzerland, acting through its New York Branch
("CSFB"), as collateral agent (in such capacity, the
"Collateral Agent") for the Secured Parties (as
defined in the Credit Agreement referred to below).
Reference is made to the Amended and Restated Credit Agreement
dated as of May 22, 2002 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement") among the Borrower, the Lenders (as
defined in Article I thereof), CSFB, as administrative agent (in such capacity,
the "Administrative Agent"), as collateral agent (in such capacity, the
"Collateral Agent") and as issuing bank (in such capacity, the "Issuing Bank")
for the Lenders, WACHOVIA BANK, NATIONAL ASSOCIATION as syndication agent (in
such capacity, the "Syndication Agent"), and ING CAPITAL LLC as documentation
agent (in such capacity, the "Documentation Agent"). Capitalized terms used and
not defined herein (including, without limitation, the term "Obligations", as
used in Section 1 and elsewhere herein) are used with the meanings assigned to
such terms in the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower, and the
Issuing Bank has agreed to issue Letters of Credit for the account of the
Borrower, in each case pursuant to, and upon the terms and subject to the
conditions specified in, the Credit Agreement. Each of the Subsidiary Guarantors
is a Subsidiary of the Borrower and acknowledges that it will derive substantial
benefit from the making of the Loans by the Lenders to the Borrower, and the
issuance of the Letters of Credit by the Issuing Bank for the account of the
Borrower. The obligations of the Lenders to make Loans and of the Issuing Bank
to issue Letters of Credit are conditioned on, among other things, the execution
and delivery by the Subsidiary Guarantors of a Subsidiary Guarantee Agreement in
the form hereof. As consideration therefor and in order to induce the Lenders to
make Loans and the Issuing Bank to issue Letters of Credit, the Subsidiary
Guarantors are willing to execute this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Subsidiary Guarantee. Each Subsidiary Guarantor
unconditionally guarantees, jointly with the other Subsidiary Guarantors and
severally, as a primary obligor and not merely as a surety, the due and punctual
payment of the Obligations. Each Subsidiary Guarantor waives notice of and
hereby consents to any agreements or arrangements whatsoever by the Secured
Parties with any other person pertaining to the Obligations, including
agreements and arrangements for payment, extension, renewal, subordination,
composition, arrangement, discharge or release of the whole or any part of the
Obligations, or for the discharge or surrender of any or all security, or for
the compromise, whether by way of acceptance of part payment or otherwise, and
the same shall in no way impair such Subsidiary Guarantor's liability hereunder.
SECTION 2. Obligations Not Waived. To the fullest extent
permitted by applicable law, each Subsidiary Guarantor waives presentment to,
demand of payment from and protest to the Borrower or any other person of any of
the Obligations, and also waives notice of acceptance of its guarantee, notice
of protest for nonpayment, and all other formalities. To the fullest extent
permitted by applicable law, the obligations of each Subsidiary Guarantor
hereunder shall not be affected by (a) the failure of any Loan Party to assert
any claim or demand or to enforce or exercise any right or remedy against the
Borrower or any other Subsidiary Guarantor under the provisions of the Credit
Agreement, any other Loan Document or otherwise, (b) any ex tension, renewal or
increase of or in any of the Obligations, (c) any rescission, waiver, amendment
or modification of, or any release
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from, any of the terms or provisions of this Agreement, the Credit Agreement,
any other Loan Document, any guarantee or any other agreement or instrument,
including with respect to any other Subsidiary Guarantor under this Agreement,
(d) the release of (or the failure to perfect a security interest in) any of the
security held by or on behalf of the Collateral Agent or any other Secured Party
or (e) the failure or delay of any Secured Party to exercise any right or remedy
against any other guarantor of the Obligations; provided, in any action or
proceeding involving any state corporate law, or any state, federal or foreign
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor hereunder
would otherwise be held or determined to be void, voidable, invalid or
unenforceable, or subordinated to the claims of any other creditors, on account
of the amount of its liability hereunder, then, notwithstanding any other
provision to the contrary, the amount of such liability shall, without any
further action by such Subsidiary Guarantor, any Lender, any Agent or any other
person, be automatically limited and reduced to the highest amount that is valid
and enforceable and not subordinated to the claims of other creditors as
determined in such action or proceeding.
SECTION 3. Security. Each of the Subsidiary Guarantors
authorizes the Collateral Agent to (a) take and hold security for the payment of
this Subsidiary Guarantee and the Obligations and exchange, enforce, waive and
release any such security, (b) apply such security and direct the order or
manner of sale thereof as it in its sole discretion may determine subject to the
terms of any other Loan Documents and (c) release or substitute any one or more
endorsees, other guarantors or other obligors.
SECTION 4. Guarantee of Payment. Each Subsidiary Guarantor
further agrees that its guarantee constitutes a guarantee of payment when due
and not of collection, and waives any right to require that any resort be had by
the Collateral Agent or any other Secured Party to any of the security held for
payment of the Obligations or to any balance of any deposit account or credit on
the books of the Collateral Agent or any other Secured Party in favor of the
Borrower or any other person.
SECTION 5. No Discharge or Diminishment of Guarantee. The
obligations of each Subsidiary Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason (other than the
indefeasible payment in full in cash of the Obligations), including any claim of
waiver, release, surrender, alteration or compromise of any of the Obligations,
and shall not be subject to any defense (other than a defense of payment) or
setoff, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality or unenforceability of the Obligations or otherwise.
Without limiting the generality of the foregoing, the obligations of each
Subsidiary Guarantor hereunder shall not be discharged or impaired or otherwise
affected by the failure of the Collateral Agent or any other Secured Party to
assert any claim or demand or to enforce any remedy under the Credit Agreement,
any other Loan Document, any guarantee or any other agreement or instrument, by
any amendment, waiver or modification of any provision of the Credit Agreement
or any other Loan Document or other agreement or instrument, by any default,
failure or delay, wilful or otherwise, in the performance of the Obligations, or
by any other act, omission or delay to do any other act that may or might in any
manner or to any extent vary the risk of such Subsidiary Guarantor or that would
otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law
or equity (other than the indefeasible payment in full in cash of all the
Obligations) or which would impair or eliminate any right of such Subsidiary
Guarantor to subrogation.
SECTION 6. Defenses Waived. To the fullest extent permitted by
applicable law, each of the Subsidiary Guarantors waives any defense based on or
arising out of the unenforceability of the Obligations or any part thereof from
any cause or the cessation from any cause of the liability (other than the final
and indefeasible payment in full in cash of the Obligations) of the Borrower or
any other person. The Collateral Agent and the other Secured Parties may, at
their election, foreclose on any security held by one or more of them by one or
more judicial or nonjudicial sales, accept an assignment of any such security in
lieu of foreclosure,
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compromise or adjust any part of the Obligations, make any other accommodation
with the Borrower or any other guarantor or exercise any other right or remedy
available to them against the Borrower or any other guarantor, without affecting
or impairing in any way the liability of any Subsidiary Guarantor hereunder
except to the extent the Obligations have been fully, finally and indefeasibly
paid in cash. Pursuant to applicable law, each of the Subsidiary Guarantors
waives any defense arising out of any such election even though such election
operates, pursuant to applicable law, to impair or to extinguish any right of
reimbursement or subrogation or other right or remedy of such Subsidiary
Guarantor against the Borrower or any other guarantor or any security.
SECTION 7. Agreement to Pay; Subordination. In furtherance of
the foregoing and not in limitation of any other right that the Collateral Agent
or any other Secured Party has at law or in equity against any Subsidiary
Guarantor by virtue hereof, upon the failure of the Borrower or any other Loan
Party to pay any Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise, each
Subsidiary Guarantor hereby promises to and will forthwith pay, or cause to be
paid, to the Collateral Agent or such other Secured Party as designated thereby
in cash an amount equal to the unpaid amount of such Obligations then due,
together with accrued and unpaid interest and fees on such Obligations. Upon
payment by any Subsidiary Guarantor of any sums to the Collateral Agent or any
Secured Party as provided above, all rights of such Subsidiary Guarantor against
the Borrower arising as a result thereof by way of right of subrogation,
contribution, reimbursement, indemnity or otherwise shall in all respects be
subordinate and junior in right of payment to the prior indefeasible payment in
full in cash of all the Obligations. In addition, any indebtedness of the
Borrower or any Subsidiary now or hereafter held by any Subsidiary Guarantor is
hereby subordinated in right of payment to the prior payment in full of the
Obligations. If any amount shall be paid to any Subsidiary Guarantor on account
of (i) such subrogation, contribution, reimbursement, indemnity or similar right
or (ii) any such indebtedness at any time when any Obligation then due and owing
has not been paid, such amount shall be held in trust for the benefit of the
Secured Parties and shall forthwith be paid to the Collateral Agent to be
credited against the payment of the Obligations, whether matured or unmatured,
in accordance with the terms of the Loan Documents.
SECTION 8. Information. Each of the Subsidiary Guarantors
assumes all responsibility for being and keeping itself informed of the
Borrower's financial condition and assets, all other circumstances bearing upon
the risk of nonpayment of the Obligations and the nature, scope and extent of
the risks that such Subsidiary Guarantor assumes and incurs hereunder and agrees
that none of the Collateral Agent or the other Secured Parties will have any
duty to advise any of the Subsidiary Guarantors of information known to it or
any of them regarding such circumstances or risks.
SECTION 9. Representations and Warranties. Each of the
Subsidiary Guarantors represents and warrants as to itself that all
representations and warranties relating to it contained in the Credit Agreement
are true and correct.
SECTION 10. Termination. The Guarantees made hereunder (a)
shall terminate when (i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on all Loans, (ii) each payment required to be
made under the Credit Agreement in respect of any Letter of Credit, and (iii)
all other Obligations then due and owing, have in each case been indefeasibly
paid in full and the Lenders have no further commitment to lend under the Credit
Agreement, the L/C Exposure has been reduced to zero and the Issuing Bank has no
further obligation to issue Letters of Credit under the Credit Agreement and (b)
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment, or any part thereof, on any Obligation is rescinded or repaid
in good faith settlement of a pending or threatened avoidance claim or must
otherwise be restored by any Secured Party upon the bankruptcy or reorganization
of the Company, the Borrower, or any Subsidiary Guarantor or otherwise.
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SECTION 11. Binding Effect; Several Agreement; Assignments;
Releases. Whenever in this Agreement any of the parties hereto is referred to,
such reference shall be deemed to include the successors and assigns of such
party; and all covenants, promises and agreements by or on behalf of the
Subsidiary Guarantors that are contained in this Agreement shall bind and inure
to the benefit of each party hereto and their respective successors and assigns.
This Agreement shall become effective as to any Subsidiary Guarantor when a
counterpart hereof (or a Supplement referred to in Section 20 hereof) executed
on behalf of such Subsidiary Guarantor shall have been delivered to the
Collateral Agent and a counterpart hereof (or a Supplement referred to in
Section 20) shall have been executed on behalf of the Collateral Agent, and
thereafter shall be binding upon such Subsidiary Guarantor and the Collateral
Agent and their respective successors and assigns, and shall inure to the
benefit of such Subsidiary Guarantor, the Collateral Agent and the other Secured
Parties, and their respective successors and assigns, except that no Subsidiary
Guarantor shall have the right to assign its rights or obligations hereunder or
any interest herein (and any such attempted assignment shall be void). This
Agreement shall be construed as a separate agreement with respect to each
Subsidiary Guarantor and may be amended, modified, supplemented, waived or
released with respect to any Subsidiary Guarantor without the approval of any
other Subsidiary Guarantor and without affecting the obligations of any other
Subsidiary Guarantor. The Collateral Agent is hereby expressly authorized to,
and agrees upon request of the Borrower it will, release any Subsidiary
Guarantor from its obligations hereunder in the event that all the capital stock
of such Subsidiary Guarantor shall be sold, transferred or otherwise disposed of
to a person that is not an Affiliate of the Borrower in a transaction permitted
by Section 6.05 of the Credit Agreement.
SECTION 12. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Agent hereunder
and of the other Secured Parties under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of this Agreement or consent to any departure by any
Subsidiary Guarantor therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) below, and then such waiver or consent shall
be effective only in the specific instance and for the purpose for which given.
No notice or demand on any Subsidiary Guarantor in any case shall entitle such
Subsidiary Guarantor to any other or further notice or demand in similar or
other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written agreement entered into
between the Subsidiary Guarantors to which such waiver, amendment or
modification relates and the Collateral Agent with consent required under the
Credit Agreement.
SECTION 13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Notices. All communications and notices hereunder
shall be in writing and given as provided in Section 9.01 of the Credit
Agreement. All communications and notices hereunder to each Subsidiary Guarantor
shall be given to it at its address set forth in Schedule I with a copy to the
Borrower.
SECTION 15. Survival of Agreement; Severability. (a) All
covenants, agreements, representations and warranties made by the Subsidiary
Guarantors herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the Collateral Agent
and the other Secured Parties and shall survive the making by the Lenders of the
Loans and the issuance of the Letters of Credit by the Issuing Bank regardless
of any investigation made by the Secured Parties or on their behalf, and shall
continue in full force and effect as
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long as the principal of or any accrued interest on any Loan or any other fee or
amount payable under this Agreement or any other Loan Document is outstanding
and unpaid, the L/C Exposure does not equal zero or the Commitments and the L/C
Commitment have not been terminated.
(b) In the event any one or more of the provisions contained
in this Agreement or in any other Loan Document should be held invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 16. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract, and shall become effective as
provided in Section 11. Delivery of an executed signature page to this Agreement
by facsimile transmission shall be as effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 17. Rules of Interpretation. The rules of
interpretation specified in Section 1.02 of the Credit Agreement shall be
applicable to this Agreement.
SECTION 18. Jurisdiction; Consent to Service of Process. (a)
Each Subsidiary Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State
court or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Collateral Agent or any other Secured Party may
otherwise have to bring any action or proceeding relating to this Agreement or
the other Loan Documents against any Subsidiary Guarantor or its properties in
the courts of any jurisdiction.
(b) Each Subsidiary Guarantor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 14. Nothing in
this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 19. Waiver of Jury Trial. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
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OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 19.
SECTION 20. Additional Subsidiary Guarantors. Pursuant to
Section 5.11 of the Credit Agreement, each Domestic Subsidiary that was not in
existence on the date of the Credit Agreement is required to enter into this
Agreement as a Subsidiary Guarantor upon becoming a Domestic Subsidiary. Upon
execution and delivery after the date hereof by the Collateral Agent and such a
Subsidiary of a Supplement in the form of Annex 1, such Subsidiary shall become
a Subsidiary Guarantor hereunder with the same force and effect as if originally
named as a Subsidiary Guarantor herein. The execution and delivery of any
Supplement adding an additional Subsidiary Guarantor as a party to this
Agreement shall not require the consent of any other Subsidiary Guarantor
hereunder. The rights and obligations of each Subsidiary Guarantor hereunder
shall remain in full force and effect notwithstanding the addition of any new
Subsidiary Guarantor as a party to this Agreement.
SECTION 21. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Secured Party is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other Indebtedness at any time owing by such Secured
Party to or for the credit or the account of any Subsidiary Guarantor against
any or all the obligations of such Subsidiary Guarantor now or hereafter
existing under this Agreement and the other Loan Documents held by such Secured
Party, irrespective of whether or not the Collateral Agent or any Secured Party
shall have made any demand under this Agreement or any other Loan Document and
although such obligations may be unmatured. The rights of each Secured Party
under this Section 21 are in addition to other rights and remedies (including
other rights of setoff) which such Secured Party may have.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
EACH OF THE SUBSIDIARIES LISTED ON
SCHEDULE I HERETO
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
CREDIT SUISSE FIRST BOSTON, as
Collateral Agent
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Director
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Director
