Exhibit 4.14
THIS AMENDED AND RESTATED INDEMNITY,
SUBROGATION and CONTRIBUTION AGREEMENT
(together with instruments executed and
delivered pursuant to Section 12, this
"Agreement") dated as of May 22, 2002, among
ACTUANT CORPORATION, a Wisconsin corporation
(formerly known as Applied Power Inc.) (the
"Company"), each subsidiary of the Company
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 herein).
Reference is made to (a) 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 Company, 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"), (b) the Subsidiary
Guarantee Agreement dated as of May 22, 2002 (as amended, supplemented or
otherwise modified from time to time, the "Subsidiary Guarantee Agreement"),
among the Subsidiary Guarantors and the Collateral Agent, and (c) the Security
Documents referred to in the Credit Agreement. Capitalized terms used herein and
not defined 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. The Subsidiary Guarantors have guaranteed
such Loans and the other Obligations (as defined in the Credit Agreement) of the
Borrower under the Credit Agreement pursuant to the Credit Agreement and the
Subsidiary Guarantee Agreement and have granted Liens on and security interests
in certain of their assets pursuant to the Security Documents to secure the
Obligations. 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 Parents and the Subsidiary Guarantors of an
agreement in the form hereof.
Accordingly, the Borrower, each Subsidiary Guarantor and the Collateral
Agent agree as follows:
SECTION 1. Indemnity and Subrogation. In addition to all such rights of
indemnity and subrogation as the Subsidiary Guarantors may have under applicable
law (but subject to Section 3), the Borrower agrees that (a) in the event a
payment shall be made by any Subsidiary Guarantor under the Subsidiary Guarantee
Agreement, the Borrower shall indemnify such Subsidiary Guarantor for the full
amount of such payment and, until such indemnification obligation shall have
been satisfied, such Subsidiary Guarantor shall be subrogated to the rights of
the person to whom such payment shall have been made to the extent of such
payment and (b) in the event any assets of any Subsidiary Guarantor shall be
sold pursuant to any Security Document to satisfy a claim of any Secured Party,
the Borrower shall indemnify such Subsidiary Guarantor in an amount equal to the
greater of the book value or the fair market value of the assets so sold.
SECTION 2. Contribution and Subrogation. Each Subsidiary Guarantor (a
"Contributing Guarantor") agrees (subject to Section 3) that, in the event a
payment shall be made by any other Subsidiary Guarantor under the Subsidiary
Guarantee Agreement or assets of any other Subsidiary Guarantor shall be sold
pursuant to any Security Document to satisfy a claim of any Secured Party, and,
in either case, such other Subsidiary Guarantor
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(the "Claiming Guarantor") shall not have been fully indemnified by the Borrower
as provided in Section 1, the Contributing Guarantor shall, to the extent the
Claiming Guarantor shall not have been so indemnified by the Borrower, indemnify
the Claiming Guarantor in an amount equal to the amount of such payment or the
fair market value of such assets, as the case may be, in each case multiplied by
a fraction of which the numerator shall be the net worth of the Contributing
Guarantor on the date hereof (or, in the case of any Subsidiary Guarantor
becoming a party hereto pursuant to Section 12, the date of the Supplement
hereto executed and delivered by such Subsidiary Guarantor) and the denominator
shall be the aggregate net worth of all the Subsidiary Guarantors on the date
hereof (or, in the case of any Subsidiary Guarantor becoming a party hereto
pursuant to Section 12, the date of the Supplement hereto executed and delivered
by such Subsidiary Guarantor). Any Contributing Guarantor making any payment to
a Claiming Guarantor pursuant to this Section 2 shall be subrogated to the
rights of such Claiming Guarantor under Section 1 to the extent of such payment.
SECTION 3. Subordination. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Subsidiary Guarantors under
Sections 1 and 2 and all other rights of indemnity, contribution or subrogation
under applicable law or otherwise shall be fully subordinated to the
indefeasible payment in full in cash of the Obligations. No failure on the part
of either the Borrower or any Subsidiary Guarantor to make the payments required
by Sections 1 and 2 (or any other payments required under applicable law or
otherwise) shall in any respect limit the obligations and liabilities of any
Subsidiary Guarantor with respect to its obligations hereunder, and each
Subsidiary Guarantor shall remain liable for the full amount of the obligations
of such Subsidiary Guarantor hereunder.
SECTION 4. Termination. This Agreement shall survive and be in full
force and effect so long as the Subsidiary Guarantee Agreement has not been
terminated, and shall continue to be effective or be reinstated, as the case may
be, if at any time payment, or any part thereof, of any Obligation is rescinded
or must otherwise be restored by any Secured Party upon the bankruptcy or
reorganization of either the Borrower, any Subsidiary Guarantor or otherwise.
SECTION 5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. No Waiver, Amendment. (a) No failure on the part of the
Collateral Agent or any Subsidiary Guarantor to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy by the Collateral Agent or any Subsidiary Guarantor preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
All remedies hereunder are cumulative and are not exclusive of any other
remedies provided by law. None of the Collateral Agent and the Subsidiary
Guarantors shall be deemed to have waived any rights hereunder unless such
waiver shall be in writing and signed by such parties.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Borrower, the Subsidiary Guarantors and the Collateral Agent, with any
consent required under the Credit Agreement.
SECTION 7. Notices. All communications and notices hereunder shall be
in writing and given as provided in the Credit Agreement or the Subsidiary
Guarantee Agreement, as applicable, and addressed as specified therein.
SECTION 8. Binding Agreement, Assignments. 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 parties that are contained in this
Agreement shall bind
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and inure to the benefit of their respective successors and assigns. Neither the
Borrower nor any Subsidiary Guarantor may assign or transfer any of its rights
or obligations hereunder (and any such attempted assignment or transfer shall be
void) without the prior written consent of the Required Lenders. Notwithstanding
the foregoing, at the time any Subsidiary Guarantor is released from its
obligations under the Subsidiary Guarantee Agreement in accordance with the
Subsidiary Guarantee Agreement and the Credit Agreement, such Subsidiary
Guarantor will cease to have any rights or obligations under this Agreement.
SECTION 9. Survival of Agreement, Severability. (a) All covenants and
agreements made by the Borrower and each Subsidiary Guarantor herein and in the
certificates or other instruments prepared or delivered in connection with this
Agreement or the other Loan Documents shall be considered to have been relied
upon by the Collateral Agent, the other Secured Parties and each Subsidiary
Guarantor, shall survive the making by the Lenders of the Loans and the issuance
of the Letters of Credit by the Issuing Bank and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loans or
any other fee or amount payable under the Credit Agreement, this Agreement or
any of the other Loan Documents is outstanding and unpaid, the L/C Exposure does
not equal zero or the Commitments have not been terminated.
(b) In case any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, no
party hereto shall be required to comply with such provision for so long as such
provision is held to be invalid, illegal or unenforceable, but the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby. 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 10. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement shall be effective with
respect to any Subsidiary Guarantor when a counterpart bearing the signature of
such Subsidiary Guarantor shall have been delivered to the Collateral Agent.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 11. Rules of Interpretation. The rules of interpretation
specified in Section 1.02 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 12. Additional Subsidiary Guarantors. Subject to the provisions
of Section 5.11(b) 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 such a Subsidiary. Upon
execution and delivery, after the date hereof, by the Collateral Agent and such
a Subsidiary of an instrument in the form of Annex 1 hereto, such Subsidiary
shall become a Subsidiary Guarantor hereunder with the same force and effect as
if originally named as a Subsidiary Guarantor hereunder. The execution and
delivery of any instrument adding an additional Subsidiary Guarantor as a party
to this Agreement shall not require the consent of any 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first appearing above.
ACTUANT CORPORATION
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By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
EACH OF THE SUBSIDIARIES LISTED ON
SCHEDULE I HERETO
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
CREDIT SUISSE FIRST BOSTON, as
Collateral Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director