FIRST AMENDMENT AGREEMENT
EXHIBIT 4
FIRST AMENDMENT AGREEMENT
This FIRST AMENDMENT AGREEMENT (this “Amendment”) is made as of the 6th day of
June, 2007 among:
(a) APPLIED INDUSTRIAL TECHNOLOGIES, INC., an Ohio corporation (“US Borrower”);
(b) each Canadian Borrower, as defined in the Credit Agreement, as hereinafter defined
(each such Canadian Borrower, together with US Borrower, collectively, “Borrowers” and,
individually, each a “Borrower”);
(c) the Lenders, as defined in the Credit Agreement, as hereinafter defined;
(d) KEYBANK NATIONAL ASSOCIATION, as the lead arranger, book runner and administrative
agent for the Lenders under the Credit Agreement (“Agent”); and
(e) U.S. BANK NATIONAL ASSOCIATION, as syndication agent under the Credit Agreement.
WHEREAS, Borrowers, Agent and the Lenders are parties to that certain Credit Agreement, dated
as of June 3, 2005, that provides, among other things, for loans and letters of credit aggregating
One Hundred Million Dollars ($100,000,000), all upon certain terms and conditions (as the same may
from time to time be amended, restated or otherwise modified, the “Credit Agreement”);
WHEREAS, Borrowers, Agent and the Lenders desire to amend the Credit Agreement to modify
certain provisions thereof;
WHEREAS, each capitalized term used herein and defined in the Credit Agreement, but not
otherwise defined herein, shall have the meaning given such term in the Credit Agreement; and
WHEREAS, unless otherwise specifically provided herein, the provisions of the Credit Agreement
revised herein are hereby amended effective as of the date of this Amendment;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein and for
other valuable consideration, Borrowers, Agent and the Lenders hereby agree as follows:
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1. Amendment to Introduction. The Credit Agreement is hereby amended to delete its
introductory paragraph therefrom and to insert in place thereof the following:
This CREDIT AGREEMENT (as the same may from time to time be amended, restated or
otherwise modified, this “Agreement”) is made effective as of the 3rd day of
June, 2005 among:
(a) APPLIED INDUSTRIAL TECHNOLOGIES, INC., an Ohio corporation (“US Borrower”);
(b) each Canadian Borrower, as hereinafter defined (each such Canadian Borrower,
together with US Borrower, collectively, “Borrowers” and, individually, each a “Borrower”);
(c) the lenders from time to time listed on Schedule 1 hereto and each other
Eligible Transferee, as hereinafter defined, that becomes a party hereto pursuant to Section
2.10(b) or 10.10 hereof (collectively, the “Lenders” and, individually, each a “Lender”);
(d) KEYBANK NATIONAL ASSOCIATION, as lead arranger, book runner and administrative
agent for the Lenders under this Agreement (“Agent”);
(e) U.S. BANK NATIONAL ASSOCIATION, as syndication agent under this Agreement (the
“Syndication Agent”);
(f) PNC BANK, NATIONAL ASSOCIATION, as co-documentation agent under this Agreement (a
“Co-Documentation Agent”); and
(g) JPMORGAN CHASE BANK, N.A., as co-documentation agent under this Agreement (a
“Co-Documentation Agent”).
2. Amendment to Definitions. Section 1.1 of the Credit Agreement is hereby amended to
delete the definitions of “Additional Commitment”, “Additional Lender Assumption Agreement”,
“Applicable Facility Fee Rate”, “Applicable Margin”, “Commitment Period”, “Maximum CAD Revolving
Amount”, “Maximum Commitment Amount”, “Maximum US Revolving Amount” and “Total Commitment Amount”
therefrom and to insert in place thereof, respectively, the following:
“Additional Commitment” shall mean an Additional US Commitment or an Additional CAD
Commitment.
“Additional Lender Assumption Agreement” shall mean an additional lender assumption
agreement, in form and substance satisfactory to Agent, wherein an Additional Lender shall
become a US Lender or a Canadian Lender.
“Applicable Facility Fee Rate” shall mean:
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(a) for any date prior to the First Amendment Effective Date, the Applicable Facility
Fee Rate in effect prior to the First Amendment Effective Date;
(b) for the period from the First Amendment Effective Date through October 31, 2007,
seven (7) basis points; and
(c) commencing with the Consolidated financial statements of US Borrower for the fiscal
year ending June 30, 2007, the number of basis points set forth in the following matrix,
based upon the result of the computation of the Leverage Ratio, shall be used to establish
the number of basis points that will go into effect on November 1, 2007 and thereafter:
| Leverage Ratio | Applicable Facility Fee Rate | |
Greater than or equal to 2.50 to 1.00
|
15.00 basis points | |
Less than 2.50 to 1.00 but greater than or
equal to 2.00 to 1.00
|
12.50 basis points | |
Less than 2.00 to 1.00 but greater than or
equal to 1.50 to 1.00
|
10.00 basis points | |
Less than 1.50 to 1.00 but greater than or
equal to 1.00 to 1.00
|
9.00 basis points | |
Less than 1.00 to 1.00 but greater than or
equal to 0.50 to 1.00
|
8.00 basis points | |
Less than 0.50 to 1.00
|
7.00 basis points |
After November 1, 2007, changes to the Applicable Facility Fee Rate shall be effective on
the first day of each month following the date upon which Agent received, or, if earlier,
Agent should have received, pursuant to Section 5.3(a) and (b) hereof, the Consolidated
financial statements of the Companies. The above matrix does not modify or waive, in any
respect, the requirements of Section 5.7 hereof, the rights of Agent and the Lenders to
charge the Default Rate, or the rights and remedies of Agent and the Lenders pursuant to
Articles VII and VIII hereof.
“Applicable Margin” shall mean:
(a) for any date prior to the First Amendment Effective Date, the Applicable Margin in
effect prior to the First Amendment Effective Date;
(b) for the period from the First Amendment Effective Date through October 31, 2007,
twenty-three (23) basis points; and
(c) commencing with the Consolidated financial statements of US Borrower for the fiscal
year ending June 30, 2007, the number of basis points set forth in the following matrix,
based upon the result of the computation of the Leverage Ratio, shall be
used to establish the number of basis points that will go into effect on November 1, 2007
and thereafter:
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| Leverage Ratio | Applicable Margin | |
Greater than or equal to 2.50 to 1.00
|
60.00 basis points | |
Less than 2.50 to 1.00 but greater than or equal to
2.00 to 1.00
|
50.00 basis points | |
Less than 2.00 to 1.00 but greater than or equal to
1.50 to 1.00
|
40.00 basis points | |
Less than 1.50 to 1.00 but greater than or equal to
1.00 to 1.00
|
31.00 basis points | |
Less than 1.00 to 1.00 but greater than or equal to
0.50 to 1.00
|
27.00 basis points | |
Less than to 0.50 to 1.00
|
23.00 basis points |
After November 1, 2007, changes to the Applicable Margin shall be effective on the first day
of each month following the date upon which Agent received, or, if earlier, Agent should
have received, pursuant to Section 5.3(a) and (b) hereof, the Consolidated financial
statements of the Companies. The above matrix does not modify or waive, in any respect, the
requirements of Section 5.7 hereof, the rights of Agent and the Lenders to charge the
Default Rate, or the rights and remedies of Agent and the Lenders pursuant to Articles VII
and VIII hereof.
“Commitment Period” shall mean the period from the Closing Date to June 5, 2012, or
such earlier date on which the Commitment shall have been terminated pursuant to Article
VIII hereof.
“Maximum CAD Revolving Amount” shall mean Five Million Dollars ($5,000,000), as such
amount may be increased up to the Ultimate CAD Commitment Amount pursuant to Section
2.10(b)(ii) hereof, or decreased pursuant to Section 2.10(a) hereof.
“Maximum Commitment Amount” shall mean Two Hundred Million Dollars ($200,000,000).
“Maximum US Revolving Amount” shall mean One Hundred Forty-Five Million Dollars
($145,000,000), as such amount may be increased up to the Ultimate US Commitment Amount
pursuant to Section 2.10(b)(i) hereof, or decreased pursuant to Section 2.10(a) hereof.
“Total Commitment Amount” shall mean One Hundred Fifty Million Dollars ($150,000,000),
as such amount may be increased up to the Maximum Commitment Amount pursuant to Section
2.10(b)(i) or (ii) hereof, or decreased pursuant to Section 2.10(a) hereof.
3. Addition to Definitions. Section 1.1 of the Credit Agreement is hereby amended to
add the following new definitions thereto:
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“Additional CAD Commitment” shall mean that term as defined in Section 2.10(b)(ii)
hereof.
“Additional US Commitment” shall mean that term as defined in Section 2.10(b)(i)
hereof.
“First Amendment Effective Date” shall mean June 6, 2007.
“Ultimate CAD Revolving Amount” shall mean the lesser of (a) Thirty Million Dollars
($30,000,000), or (b) an amount equal to (i) Two Hundred Million Dollars ($200,000,000),
minus (ii) the Maximum US Revolving Amount.
“Ultimate US Revolving Amount” shall mean the amount equal to (a) Two Hundred Million
Dollars ($200,000,000), minus (b) the Maximum CAD Revolving Amount.
4. Amendment to Modifications of Commitment. Section 2.10 of the Credit Agreement is
hereby amended to delete subsection (b) therefrom and to insert in place thereof the following:
(b) Increase in Commitment.
(i) US Commitment. At any time during the Commitment Increase Period,
US Borrower may increase the Maximum US Revolving Amount up to an amount that shall
not exceed the Ultimate US Revolving Amount (with a corresponding increase in the
Total Commitment Amount) by either (A) increasing, for one or more US Lenders, with
their prior written consent (and with the prior written consent of Agent), their
respective US Revolving Credit Commitments, or (B) including one or more Additional
Lenders, with the prior written consent of Agent (which shall not be unreasonably
withheld), each with a new US Revolving Credit Commitment, as a party to this
Agreement (each, an “Additional US Commitment”).
(ii) Canadian Commitment. At any time during the Commitment Increase
Period, US Borrower, on behalf of the Canadian Borrowers, may increase the Maximum
CAD Revolving Amount up to an amount that shall not exceed the Ultimate CAD
Revolving Amount (with a corresponding increase in the Total Commitment Amount) by
either (A) increasing, for one or more Canadian Lenders, with their prior written
consent (and with the prior written consent of Agent), their respective CAD
Revolving Credit Commitments, or (B) including one or more Additional Lenders, with
the prior written consent of Agent (which shall not be unreasonably withheld), each
with a new CAD Revolving Credit
Commitment, as a party to this Agreement (each, an “Additional CAD Commitment”).
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(iii) Generally. During the Commitment Increase Period, the Lenders
agree that Agent, in its sole discretion, may permit one or more Additional
Commitments upon satisfaction of the following requirements: (A) each Additional
Lender, if any, shall execute an Additional Lender Assumption Agreement, (B) Agent
shall provide to each Lender a revised Schedule 1 to this Agreement,
including revised Applicable Commitment Percentages for each of the Lenders, if
appropriate, at least three Business Days prior to the date of the effectiveness of
such Additional Commitments (each an “Additional Lender Assumption Effective Date”),
(C) each Additional Lender’s US Revolving Credit Commitment or CAD Revolving Credit
Commitment, as applicable, shall be for an amount of no less than Ten Million
Dollars ($10,000,000), and (D) US Borrower or the Canadian Borrowers, as applicable,
shall execute and deliver to Agent and the Lenders such replacement or additional
Revolving Credit Notes as shall be required by Agent (to the extent Notes have been
requested by the affected Lenders). In connection with the inclusion of an
Additional Lender with an Additional CAD Commitment, if determined to be reasonably
necessary by Agent, Borrowers understand and agree to enter into a technical
amendment with Agent and the Required Lenders, which amendment shall provide the
funding details for having multiple Canadian Lenders. The Lenders hereby authorize
Agent to execute each Additional Lender Assumption Agreement on behalf of the
Lenders. On each Additional Lender Assumption Effective Date, the US Lenders or
Canadian Lenders, as applicable, shall make adjustments among themselves with
respect to the US Revolving Loans or CAD Revolving Loans then outstanding and
amounts of principal, interest and facility fees and other amounts paid or payable
with respect thereto as shall be necessary, in the opinion of Agent, in order to
reallocate among such Lenders such outstanding amounts, based on the revised
Applicable Commitment Percentages and to otherwise carry out fully the intent and
terms of this Section 2.10(b). In connection with a commitment increase pursuant to
subpart (i) or (ii) above, it is understood and agreed that the Maximum Amount of
any Lender will not be increased (or decreased except pursuant to Section 2.10(a)
hereof) without the prior written consent of such Lender. Borrowers shall not
increase the Maximum US Revolving Amount, the Maximum CAD Revolving Amount, or the
Total Commitment Amount pursuant to this Section 2.10(b) if a Default or an Event of
Default shall then exist, or immediately after giving effect to any such increase
would exist.
5. Amendment to Liens Covenant. Section 5.9 of the Credit Agreement is hereby amended
to delete subsection (h) therefrom and to insert in place thereof the following:
(h) any other Liens (including all Liens existing on the Closing Date as set forth in
Schedule 5.9 hereto), so long as the aggregate amount of Indebtedness secured by all
such Liens (exclusive of asset securitizations) does not exceed for all Companies at
any time an aggregate amount equal to fifteen percent (15%) of Consolidated Total Assets,
based upon the financial statements of US Borrower for the most recently completed fiscal
quarter.
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6. Addition to Liens Covenant. Section 5.9 of the Credit Agreement is hereby amended
to add a new subsection (i) at the end thereof:
(i) any financing statement filed on a Company to evidence the sale of accounts
receivable of such Company pursuant to Section 5.12(j) hereof.
7. Amendment to Merger and Sale of Assets Covenant. Section 5.12 of the Credit
Agreement is hereby amended to delete subsection (g) therefrom and to insert in place thereof the
following:
(g) any Company may sell, lease, transfer or otherwise dispose of any of its assets to
any Person (in addition to any such sale, lease, transfer or disposal to US Borrower or a
Domestic Guarantor of Payment) so long as the aggregate amount of all such assets sold,
leased, transferred or otherwise disposed of by all Companies in any fiscal year of US
Borrower does not exceed an amount equal to ten percent (10%) of the rolling two-year
average (as calculated on a quarterly basis and divided by eight) of Consolidated Total
Assets; provided that any sale, transfer or disposition of fixed assets shall be excluded
from such calculation so long as the proceeds are reinvested in similar fixed assets within
one year from such sale, transfer or disposition (for clarification purposes, the exclusion
from the calculation shall not occur until the reinvestment date).
8. Addition to Merger and Sale of Assets Covenant. Section 5.12 of the Credit
Agreement is hereby amended to add the following new subsection (j) at the end thereof:
(j) in addition to the transfers of assets permitted above, if requested by a customer
of a Company, such Company shall be permitted to participate in such customer’s supply
financing program whereby such Company may sell all of its accounts receivable from such
customer to a third party financial institution on terms comparable to other vendors
participating in such supply financing program, so long as there shall be no credit recourse
to such Company with respect to such accounts receivable after such sale.
9. Amendment to Compliance with Laws Representation. Section 6.3 of the Credit
Agreement is hereby amended to add the following new subsections (d), (e) and (f) at the end
thereof:
(d) has ensured that no Person who owns a controlling interest in or otherwise controls
a Company is (i) listed on the Specially Designated Nationals and Blocked Person List
maintained by the Office of Foreign Assets Control (“OFAC”), Department of the Treasury, or
any other similar lists maintained by OFAC pursuant to any authorizing statute, executive
order or regulation, or (ii) a Person designated under Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001), any related
enabling legislation or any other similar executive orders;
(e) is in material compliance with all applicable Bank Secrecy Act (“BSA”) and
anti-money laundering laws and regulations; and
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(f) is in compliance, in all material respects, with the Patriot Act.
10. Amendment to Money Judgment Event of Default. Article VII of the Credit Agreement
is hereby amended to delete Section 7.8 therefrom and to insert in place thereof the following:
Section 7.8. Money Judgment. A final judgment or order for the payment of
money shall be rendered against any Company by a court of competent jurisdiction, that
remains unpaid or unstayed and undischarged for a period (during which execution shall not
be effectively stayed) of thirty (30) days after the date on which the right to appeal has
expired, provided that the aggregate of all such judgments, for all such Companies, shall
exceed the Dollar Equivalent of Twenty Million Dollars ($20,000,000) (less any amount that
will be covered by the proceeds of insurance and is not subject to dispute by the insurance
provider).
11. Amendment to Agency Provisions. Article IX of the Credit Agreement is hereby
amended to delete Section 9.13 therefrom and to insert in place thereof the following:
Section 9.13. Other Agents. As used in this Agreement, the term “Agent” shall
only include Agent. Neither the Syndication Agent nor the Co-Documentation Agents shall
have any rights, obligations or responsibilities hereunder in such capacity.
12. Amendment to Schedules. The Credit Agreement is hereby amended to delete
Schedule 1 (Lenders and Commitments) therefrom and to insert in place thereof a new
Schedule 1 in the form of the attached Schedule 1.
13. Closing Items. Concurrently with the execution of this Amendment:
(a) US Borrower shall execute and deliver to Agent, for delivery to each US Lender
increasing its commitment, a replacement US Revolving Credit Note, in the amounts specified
in Schedule 1 to the Credit Agreement;
(b) US Borrower shall execute and deliver to Agent, for delivery to JPMorgan Chase
Bank, N.A., a new US Revolving Credit Note, in the amounts specified in Schedule 1
to the Credit Agreement;
(c) US Borrower shall deliver to Agent and the Lenders appropriate resolutions of US
Borrower authorizing the increase in the Total Commitment Amount and the execution of this
Amendment;
(d) US Borrower shall pay an amendment fee to Agent, for the pro-rata benefit of the
Lenders, in an amount equal to five basis points multiplied by the Total Commitment Amount,
as in effect on the First Amendment Effective Date;
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(e) US Borrower shall execute and deliver to Agent, for its sole benefit, the
First Amendment Agent Fee Letter, and pay to Agent, for its sole account, the fees stated
therein;
(f) US Borrower shall cause each Guarantor of Payment to execute the attached Guarantor
Acknowledgment and Agreement; and
(g) US Borrower shall pay all legal fees and expenses of Agent in connection with this
Amendment.
14. JPMorgan Chase Bank, N.A., as a Lender. By executing this Amendment, JPMorgan
Chase Bank, N.A. (“Chase”) represents and warrants to Borrowers, Agent and the Lenders that (a) it
meets the requirements to be an assignee as set forth in Section 10.10 of the Credit Agreement; (b)
it is able to fund the Loans and the Letters of Credit as required by the Credit Agreement; (c) it
will perform, in accordance with their terms, all of the obligations which by the terms of the
Credit Agreement and the Related Writings are required to be performed by it as a Lender
thereunder; and (d) it has reviewed each of the Loan Documents. Chase appoints Agent to take such
action as agent on its behalf and to exercise such powers under the Credit Agreement as are
delegated to Agent by the terms thereof. On the First Amendment Effective Date, Chase shall become
and thereafter be deemed to be a “Lender” for the purposes of the Credit Agreement and the other
Loan Documents, and shall be bound thereby as if it were an original signatory thereto. All
notices, requests, demands and other communications provided for under the Credit Agreement to
Chase, mailed or delivered to it, shall be addressed to it at the address specified on the
signature pages of this Amendment, or at such other address as shall be designated by Chase in a
written notice to each of the other parties.
15. Representations and Warranties. Each Borrower hereby represents and warrants to
Agent and the Lenders that (a) such Borrower has the legal power and authority to execute and
deliver this Amendment; (b) the officers executing this Amendment have been duly authorized to
execute and deliver the same and bind such Borrower with respect to the provisions hereof; (c) the
execution and delivery hereof by such Borrower and the performance and observance by such Borrower
of the provisions hereof do not violate or conflict with the organizational agreements of such
Borrower or any law applicable to such 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 such Borrower; (d) no 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) such Borrower is not aware of any claim or offset
against, or defense or counterclaim to, such Borrower’s obligations or liabilities under the Credit
Agreement or any Related Writing; and (f) this Amendment constitutes a valid and binding obligation
of such Borrower in every respect, enforceable in accordance with its terms.
16. Waiver. Each Borrower, by signing below, hereby waives and releases Agent and the
Lenders and their respective directors, officers, employees, attorneys, affiliates and subsidiaries
from any and all claims, offsets, defenses and counterclaims of which such
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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.
17. References to Credit Agreement. Each reference that is made in the Credit
Agreement or any Related Writing shall hereafter be construed as a reference to the Credit
Agreement as amended hereby. Except as herein otherwise specifically provided, all terms and
provisions of the Credit Agreement are confirmed and ratified and shall remain in full force and
effect and be unaffected hereby. This Amendment is a Related Writing.
18. Counterparts. 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.
19. Headings. The headings, captions and arrangements used in this Amendment are for
convenience only and shall not affect the interpretation of this Amendment.
20. Severability. Any term or provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder
of this Amendment and the effect thereof shall be confined to the term or provision so held to be
invalid or unenforceable.
21. Governing Law. 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.
[Remainder of page intentionally left blank.]
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JURY TRIAL WAIVER. BORROWERS, AGENT AND THE LENDERS, TO THE EXTENT PERMITTED BY LAW,
HEREBY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, AMONG BORROWERS, AGENT AND THE LENDERS, OR ANY THEREOF, ARISING OUT
OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AMENDMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first set forth above.
| APPLIED INDUSTRIAL TECHNOLOGIES, INC. |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Xxxx X. Xxxxxx | ||||
| Vice President — Chief Financial Officer & Treasurer | ||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx | ||||
| Vice President — General Counsel & Secretary | ||||
| AIT LIMITED PARTNERSHIP by: Applied Nova Scotia Company, its general partner |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Xxxx X. Xxxxxx | ||||
| Vice President — Chief Financial Officer & Treasurer | ||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx | ||||
| Vice President — General Counsel & Secretary | ||||
| APPLIED INDUSTRIAL TECHNOLOGIES, LTD. |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Xxxx X. Xxxxxx | ||||
| Vice President — Chief Financial Officer & Treasurer | ||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx | ||||
| Vice President — General Counsel & Secretary | ||||
Signature Page 1 of 3
to First Amendment Agreement
to First Amendment Agreement
| APPLIED NOVA SCOTIA COMPANY |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Xxxx X. Xxxxxx | ||||
| Vice President — Chief Financial Officer & Treasurer | ||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx | ||||
| Vice President — General Counsel & Secretary | ||||
| DYNAVEST NOVA SCOTIA COMPANY |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Xxxx X. Xxxxxx | ||||
| Vice President — Chief Financial Officer & Treasurer | ||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx | ||||
| Vice President — General Counsel & Secretary | ||||
| KEYBANK NATIONAL ASSOCIATION, as Agent and as a Lender |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Senior Vice President | |||
| U.S. BANK NATIONAL ASSOCIATION, as Syndication Agent and as a Lender |
||||
| By: | /s/ Xxxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| PNC BANK, NATIONAL ASSOCIATION, as Co-Documentation Agent and as a Lender |
||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | Credit Officer | |||
Signature Page 2 of 3
to First Amendment Agreement
to First Amendment Agreement
| JPMORGAN CHASE BANK, N.A., as Co-Documentation Agent and as a Lender |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Senior Vice President | |||
| FIFTH THIRD BANK |
||||
| By: | /s/ Xxxxxx X. XxXxxxx | |||
| Name: | Xxxxxx X. XxXxxxx | |||
| Title: | Vice President | |||
| JPMORGAN CHASE BANK, N.A., TORONTO BRANCH |
||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: | Xxxxxxx X. Xxx | |||
| Title: | Senior Vice President | |||
Signature Page 3 of 3
to First Amendment Agreement
to First Amendment Agreement
ACKNOWLEDGMENT AND AGREEMENT
The undersigned consent and agree to and acknowledge the terms of the foregoing First Amendment
Agreement dated as of June 6, 2007. The undersigned further agree that the obligations of the
undersigned pursuant to the Guaranty of Payment executed by the undersigned shall remain in full
force and effect and be unaffected hereby.
The undersigned hereby waive and release Agent and the Lenders and their respective directors,
officers, employees, attorneys, affiliates and subsidiaries from any and all claims, offsets,
defenses and counterclaims of which the undersigned are 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.
JURY TRIAL WAIVER. THE UNDERSIGNED, TO THE EXTENT PERMITTED BY LAW, HEREBY WAIVE ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, AMONG BORROWERS, AGENT, THE LENDERS AND THE UNDERSIGNED, OR ANY THEREOF, ARISING OUT OF,
IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AMENDMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
| APPLIED INDUSTRIAL TECHNOLOGIES-CA LLC | APPLIED INDUSTRIAL TECHNOLOGIES-INDIANA LLC | |||||||
APPLIED INDUSTRIAL TECHNOLOGIES-DBB, INC. |
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APPLIED INDUSTRIAL TECHNOLOGIES-XXXXX, INC.
|
by: | APPLIED INDUSTRIAL TECHNOLOGIES, INC., | ||||||
APPLIED INDUSTRIAL TECHNOLOGIES-MAINLINE, INC.
|
the Managing Member | |||||||
APPLIED INDUSTRIAL TECHNOLOGIES-TX LP |
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AIR AND HYDRAULICS ENGINEERING, INCORPORATED
|
By: | /s/ Xxxx X. Xxxxxx | ||||||
ESI ACQUISITION CORPORATION
|
Xxxx X. Xxxxxx | |||||||
THE OHIO BALL BEARING COMPANY
|
Vice President — Chief Financial Officer & Treasurer | |||||||
BEARINGS PAN AMERICAN, INC. |
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BEARINGS SALES AND SERVICES, INC. |
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AIR DRAULICS ENGINEERING CO. |
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APPLIED INDUSTRIAL TECHNOLOGIES-CAPITAL LLC |
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| By: | /s/ Xxxx X. Xxxxxx | ||||
| Xxxx X. Xxxxxx | |||||
| Vice President — Chief Financial Officer & Treasurer | |||||
Signature Page 1 of 2
to Acknowledgment & Agreement
to Acknowledgment & Agreement
| APPLIED INDUSTRIAL TECHNOLOGIES-PA LLC | APPLIED-MICHIGAN, LTD. | |||||||||
by:
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APPLIED INDUSTRIAL TECHNOLOGIES, INC., the Member | by: | APPLIED INDUSTRIAL TECHNOLOGIES-DBB, INC., the Manager | |||||||
By:
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/s/ Xxxx X. Xxxxxx | By: | /s/ Xxxx X. Xxxxxx | |||||||
| Xxxx X. Xxxxxx Vice President — Chief Financial Officer & Treasurer |
Xxxx X. Xxxxxx Vice President — Chief Financial Officer & Treasurer |
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| XXXXXXX FLUID POWER, INC. APPLIED INDUSTRIAL TECHNOLOGIES-MBC, INC. |
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| By: | /s/ Xxxx X. Xxxxxx | ||||
| Xxxx X. Xxxxxx | |||||
| Vice President — Chief Financial Officer & Treasurer | |||||
| GUARANTOR OF CANADIAN LOANS: APPLIED INDUSTRIAL TECHNOLOGIES, INC. |
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| By: | /s/ Xxxx X. Xxxxxx | ||||
| Xxxx X. Xxxxxx | |||||
| Vice President — Chief Financial Officer & Treasurer | |||||
Signature Page 2 of 2
to Acknowledgment & Agreement
to Acknowledgment & Agreement
SCHEDULE 1
| US REVOLVING | US REVOLVING | |||||||||||
| CREDIT | CREDIT | |||||||||||
| COMMITMENT | COMMITMENT | MAXIMUM | ||||||||||
| US LENDERS | PERCENTAGE | AMOUNT | AMOUNT | |||||||||
KeyBank National
Association |
27.59 | % | $ | 40,000,000 | $ | 40,000,000 | ||||||
U.S. Bank National
Association |
24.14 | % | $ | 35,000,000 | $ | 35,000,000 | ||||||
PNC Bank, National
Association |
20.69 | % | $ | 30,000,000 | $ | 30,000,000 | ||||||
JPMorgan Chase Bank,
N.A. |
17.24 | % | $ | 25,000,000 | $ | 25,000,000 | ||||||
Fifth Third Bank |
10.34 | % | $ | 15,000,000 | $ | 15,000,000 | ||||||
Maximum US Revolving
Amount |
100.00 | % | $ | 145,000,000.00 | ||||||||
| CAD REVOLVING | CAD REVOLVING | |||||||||||
| CREDIT | CREDIT | |||||||||||
| COMMITMENT | COMMITMENT | MAXIMUM | ||||||||||
| CANADIAN LENDERS | PERCENTAGE | AMOUNT | AMOUNT | |||||||||
JPMorgan Chase
Bank, N.A., Toronto
Branch |
100.00 | % | $ | 5,000,000.00 | $ | 5,000,000.00 | ||||||
Maximum CAD
Revolving Amount |
100.00 | % | $ | 5,000,000.00 | ||||||||
TOTAL COMMITMENT
AMOUNT |
$ | 150,000,000.00 | ||||||||||
