EXHIBIT 4.4
FIRST AMENDMENT AGREEMENT
This FIRST AMENDMENT AGREEMENT (this "Amendment") is made as of January
31, 2002, by and among THE TIMKEN COMPANY, an Ohio corporation ("Borrower"),
the banking institutions named in Schedule 1 to the Credit Agreement, as
hereinafter defined (collectively, "Banks" and, individually, "Bank"), and
KEYBANK NATIONAL ASSOCIATION, as administrative agent ("Agent"):
WHEREAS, Borrower, Agent and the Banks are parties to a certain Credit
Agreement dated as of July 10, 1998, as the same may from time to time be
amended, restated or otherwise modified, which provides, among other things,
for loans aggregating Three Hundred Million Dollars ($300,000,000), all upon
certain terms and conditions ("Credit Agreement");
WHEREAS, Borrower, Agent and the Banks desire to amend the Credit
Agreement to modify certain provisions thereof; and
WHEREAS, each capitalized term used herein shall be defined in accordance
with the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein and for other valuable considerations, Borrower, Agent and the
Banks agree as follows:
1. Article I of the Credit Agreement is hereby amended to delete the
definitions of "Applicable Facility Fee Rate", "Applicable Eurodollar Margin"
and "Consolidated Net Worth" therefrom and to insert in place thereof,
respectively, the following:
"Applicable Facility Fee Rate" shall mean a rate based on the S&P
Rating or the Moody's Rating, whichever is higher, as follows:
S&P Rating Moody's Rating Applicable Facility Fee Rate
A or higher A2 or higher 10.0 Basis Points
A- A3 12.5 Basis Points
BBB+ Baa1 15.0 Basis Points
BBB Baa2 17.5 Basis Points
BBB- or less Baa3 25.0 Basis Points
Changes to the Applicable Facility Fee Rate shall be immediately effective
upon a change in the Moody's Rating or the S&P Rating, as applicable;
provided, however, that if at any time there shall be a difference between
the Moody's Rating and the S&P Rating of greater than one rating, then the
Applicable Facility Fee Rate then in effect shall be based upon the
average of (a) the number of basis points as determined from the Moody's
Rating, and (b) the number of basis points as determined from the S&P
Rating. The above matrix does not modify or waive, in any respect, the
rights of the Banks to charge the Default Rate, or the rights and remedies
of Agent and the Banks pursuant to Articles VII and VIII hereof.
"Applicable Eurodollar Margin" shall mean a margin based on the S&P
Rating or the Moody's Rating, whichever is higher, as follows:
Applicable
S&P Rating Moody's Rating Eurodollar Margin
A or higher A2 or higher 25.0 Basis Points
A- A3 30.0 Basis Points
BBB+ Baa1 37.5 Basis Points
BBB Baa2 52.5 Basis Points
BBB- or less Baa3 75.0 Basis Points
Changes to the Applicable Eurodollar Margin shall be immediately effective
upon a change in the Moody's Rating or the S&P Rating, as applicable;
provided, however, that if at any time there shall be a difference between
the Moody's Rating and the S&P Rating of greater than one rating, then the
Applicable Eurodollar Margin then in effect shall be based upon the
average of (a) the number of basis points as determined from the Moody's
Rating, and (b) the number of basis points as determined from the S&P
Rating. The above matrix does not modify or waive, in any respect, the
rights of the Banks to charge the Default Rate, or the rights and remedies
of Agent and the Banks pursuant to Articles VII and VIII hereof.
"Consolidated Net Worth" shall mean, at any date, the Consolidated
net worth of Borrower and its Consolidated Subsidiaries, determined as of
such date in accordance with GAAP; provided, however, that for purposes of
calculating the leverage ratio pursuant to Section 5.6 of this Agreement,
Borrower shall exclude from Consolidated net worth for Borrower's fiscal
years 2001 and 2002 any adjustments made to Consolidated net worth as a
result of the effects of FAS 87, provided that the cumulative amount of
such adjustments for Borrower's fiscal years 2001 and 2002 may not exceed
Two Hundred Thirty Million Dollars ($230,000,000).
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2. Schedule 1 of the Credit Agreement is hereby deleted with the
attached "Schedule 1" to be inserted in place thereof.
3. Concurrently with the execution of this Amendment, Borrower shall:
(a) pay to Agent, for the pro rata benefit of each Bank that shall
have executed this Amendment on or before 12:00 noon (Cleveland, Ohio
time) on January 31, 2002 (an "Approving Bank"), in an amount equal to
ten (10) basis points times the aggregate amount of the Revolving Credit
Commitments of the Approving Banks; and
(b) pay all legal and other fees and expenses of Agent in connection
with this Amendment.
4. Borrower hereby represents and warrants to Agent and the Banks that
(a) Borrower has the legal power and authority to execute and deliver this
Amendment; (b) the officers executing this Amendment on behalf of Borrower
have been duly authorized to execute and deliver the same and bind
Borrower with respect to the provisions hereof; (c) the execution and
delivery hereof by Borrower and the performance and observance by Borrower
of the provisions hereof do not violate or conflict with the
organizational agreements of Borrower or any law applicable to Borrower or
result in a breach of any provision of or constitute a default under any
other agreement, instrument or document binding upon or enforceable
against Borrower; (d) no Unmatured Event of Default or Event of Default
exists under the Credit Agreement, nor will any occur immediately after
the execution and delivery of this Amendment or by the performance or
observance of any provision hereof; (e) neither Borrower nor any
Subsidiary has any claim or offset against, or defense or counterclaim
to, any of Borrower's obligations or liabilities under the Credit
Agreement or any Related Writing; and (f) this Amendment constitutes a
valid and binding obligation of Borrower in every respect, enforceable
in accordance with its terms.
5. Each reference that is made in the Credit Agreement or any other
writing to the Credit Agreement shall hereafter be construed as a
reference to the Credit Agreement as amended hereby. Except as herein
otherwise specifically provided, all provisions of the Credit Agreement
shall remain in full force and effect and be unaffected hereby.
6. Borrower hereby waives and releases Agent and each of the Banks and
their respective directors, officers, employees, attorneys, affiliates and
subsidiaries from any and all claims, offsets, defenses and counterclaims
of which Borrower is aware, such waiver and release being with full
knowledge and understanding of the circumstances and effect thereof and
after having consulted legal counsel with respect thereto.
7. This Amendment may be executed in any number of counterparts, by
different parties hereto in separate counterparts and by facsimile
signature, each of which when so executed and delivered shall be deemed
to be an original and all of which taken together shall constitute but
one and the same agreement.
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8. The rights and obligations of all parties hereto shall be governed by
the laws of the State of Ohio, without regard to principles of conflicts
of laws.
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9. JURY TRIAL WAIVER. BORROWER, AGENT AND EACH OF THE BANKS HEREBY WAIVE
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, AGENT AND THE
BANKS, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH
THIS AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED
THERETO.
THE TIMKEN COMPANY
By: /s/ G. E. Little
Name: G. E. Little
Title: Senior V.P. - Finance
KEYBANK NATIONAL ASSOCIATION,
as Agent and as a Bank
By: /s/ Marianne T. Meil
Name: Marianne T. Meil
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Kenneth R. McDonnell
Name: Kenneth R. McDonnell
Title: AVP
BANK ONE, N.A.
By: /s/ Glenn A. Currin
Name: Glenn A. Currin
Title: Director
MELLON BANK, N.A.
By: /s/ Janis Pinsky
Name: Janis Pinsky
Title: Assistant Vice President
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HSBC BANK USA
By: /s/ Christopher M. Samms
Name: Christopher M. Samms
Title: First Vice President, Officer #9426
BANK OF AMERICA, N.A.
By: /s/ Thomas R. Durham
Name: Thomas R. Durham
Title: Managing Director
NORTHERN TRUST COMPANY
By: /s/ Roger McDougal
Name: Roger McDougal
Title: Second Vice President
REVOLVING COMMITMENT VEHICLE
CORPORATION
By: JPMorgan Chase, as Attorney-in-Fact
for, REVOLVING COMMITMENT VEHICLE
CORPORATION
By: /s/ David Weintrob
Name: David Weintrob
Title: Vice President
SAN PAOLO IMI S.p.A.
By: /s/ Luca Sacchi
Name: Luca Sacchi
Title: Vice President
By: /s/ Carlo Persico
Name: Carlo Persico
General Manager
UNITED NATIONAL BANK AND TRUST
By: /s/ Leo E. Doyle
Name: Leo E. Doyle
Title: Executive Vice President
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SCHEDULE 1
COMMITMENT MAXIMUM
BANKING INSTITUTIONS PERCENTAGE AMOUNT
____________________________ __________ __________
KeyBank National Association 19.2899% $ 57,869,338
Bank One, N.A. 17.9644% $ 53,893,332
HSBC Bank USA (formerly 8.9822% $ 26,946,666
Marine Midland Bank)
Mellon Bank, N.A. 8.9822% $ 26,946,666
Bank of America, N.A. 8.9822% $ 26,946,666
(formerly NationsBank,N.A.)
Northern Trust Company 8.9822% $ 26,946,666
Revolving Commitment Vehicle 8.9822% $ 26,946,666
Corporation
The Bank of New York 8.0840% $ 24,252,000
San Paolo IMI S.p.A. (formerly 8.0840% $ 24,252,000
Istituto Bancario San Paolo di
Torino Spa)
United National Bank and Trust 1.6667% $ 5,000,000
_______
Total Commitment Amount 100.00% $ 300,000,000
10744809v9
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