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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report: May 10, 1995 Commission file number: 0-16214
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ALBANY INTERNATIONAL CORP.
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(Exact name of registrant as specified in its charter)
Delaware 14-0462060
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(State or other jurisdiction of (IRS Employer Identification
incorporation or organization) Number)
1373 Broadway, Albany, New York 12204
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 518-445-2200
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EXHIBITS
10(i)(i) - Amended and Restated Credit Agreement, dated as of March 31,
1995, among the Registrant, certain banks listed therein, and
Morgan Guaranty Trust Company of New York, as Agent.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ALBANY INTERNATIONAL CORP.
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(Registrant)
Date: May 10, 1995
by /s/ Michael C. Nahl
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Michael C. Nahl
Sr. Vice President and
Chief Financial Officer
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EXHIBIT 10(i)(i)
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EXECUTION COPY
$150,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
March 31, 1995
among
Albany International Corp.
The Banks Party Hereto
and
Morgan Guaranty Trust Company of New York,
as Agent
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2
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TABLE OF CONTENTS*
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. . . . . . . . . . . . . . . . . . . . . . 1
1.2. Accounting Terms and Determinations. . . . . . . . . . 16
1.3 Certain Currency Conversions.. . . . . . . . . . . . . 16
1.4. Types of Borrowings. . . . . . . . . . . . . . . . . . 16
ARTICLE II
THE CREDITS
SECTION 2.1. Commitments to Lend. . . . . . . . . . . . . . . . . . 17
2.2. Notice of Committed Borrowing. . . . . . . . . . . . . 17
2.3. Money Market Borrowings. . . . . . . . . . . . . . . . 18
2.4. Notice to Banks; Funding of Loans. . . . . . . . . . . 22
2.5. Notes. . . . . . . . . . . . . . . . . . . . . . . . . 23
2.6. Maturity of Loans. . . . . . . . . . . . . . . . . . . 24
2.7. Interest Rates.. . . . . . . . . . . . . . . . . . . . 24
2.8. Fees.. . . . . . . . . . . . . . . . . . . . . . . . . 26
2.9. Optional Termination or Reduction of Commitments.. . . 26
2.10. Mandatory Termination or Reduction of Commitments. . . 26
2.11. Optional Prepayments.. . . . . . . . . . . . . . . . . 27
2.12. General Provisions as to Payments. . . . . . . . . . . 27
2.13. Funding Losses.. . . . . . . . . . . . . . . . . . . . 28
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* The Table of Contents is not a part of this Agreement.
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PAGE
2.14. Computation of Interest and Fees.. . . . . . . . . . . 28
2.15. Regulation D Compensation. . . . . . . . . . . . . . . 28
2.16. Withholding Tax Exemption. . . . . . . . . . . . . . . 29
2.17. Judgment Currency. . . . . . . . . . . . . . . . . . . 30
2.18. Foreign Withholding Taxes and Other Costs. . . . . . . 30
ARTICLE III
CONDITIONS
SECTION 3.1. Effectiveness. . . . . . . . . . . . . . . . . . . . . 32
3.2. Borrowings.. . . . . . . . . . . . . . . . . . . . . . 33
3.3. First Borrowing by Each Eligible Subsidiary. . . . . . 34
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
SECTION 4.1. Corporate Existence and Power. . . . . . . . . . . . . 34
4.2. Corporate and Governmental
Authorization; No Contravention. . . . . . . . . . . . 35
4.3. Binding Effect.. . . . . . . . . . . . . . . . . . . . 35
4.4. Financial Information. . . . . . . . . . . . . . . . . 35
4.5. Litigation.. . . . . . . . . . . . . . . . . . . . . . 36
4.6. Compliance with ERISA. . . . . . . . . . . . . . . . . 36
4.7. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . 36
4.8. Subsidiaries.. . . . . . . . . . . . . . . . . . . . . 36
4.9. General Indebtedness, Pari Passu Status. . . . . . . . 37
4.10. Compliance with Laws.. . . . . . . . . . . . . . . . . 37
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PAGE
4.11. Environmental Matters. . . . . . . . . . . . . . . . . 37
4.12. Full Disclosure. . . . . . . . . . . . . . . . . . . . 37
ARTICLE V
COVENANTS
SECTION 5.1. Information. . . . . . . . . . . . . . . . . . . . . . 38
5.2. Payment of Obligations.. . . . . . . . . . . . . . . . 41
5.3. Maintenance of Property; Insurance.. . . . . . . . . . 42
5.4. Conduct of Business and Maintenance of Existence.. . . 42
5.5. Inspection of Property, Books and Records. . . . . . . 42
5.6. Subsidiary Debt. . . . . . . . . . . . . . . . . . . . 42
5.7. Negative Pledge. . . . . . . . . . . . . . . . . . . . 43
5.8. Consolidations, Mergers and Sales of Assets. . . . . . 44
5.9. Transactions with Affiliates.. . . . . . . . . . . . . 45
5.10. Restricted Payments. . . . . . . . . . . . . . . . . . 46
5.11. Compliance with Laws.. . . . . . . . . . . . . . . . . 46
5.12. Sale of Receivables. . . . . . . . . . . . . . . . . . 47
5.13. Limitations on Sale-Leasebacks.. . . . . . . . . . . . 47
5.14. Limitations on Investments.. . . . . . . . . . . . . . 47
5.15. Cash Flow to Total Debt Ratio. . . . . . . . . . . . . 48
5.16. Consolidated Tangible Net Worth. . . . . . . . . . . . 48
5.17. Interest Coverage Ratio. . . . . . . . . . . . . . . . 48
5.18. Use of Proceeds. . . . . . . . . . . . . . . . . . . . 48
ARTICLE VI
DEFAULTS
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PAGE
SECTION 6.1. Events of Default. . . . . . . . . . . . . . . . . . . 49
6.2. Notice of Default. . . . . . . . . . . . . . . . . . . 52
ARTICLE VII
THE AGENT
SECTION 7.1. Appointment and Authorization. . . . . . . . . . . . . 52
7.2. Agent and Affiliates.. . . . . . . . . . . . . . . . . 52
7.3. Action by Agent. . . . . . . . . . . . . . . . . . . . 53
7.4. Consultation with Experts. . . . . . . . . . . . . . . 53
7.5. Liability of Agent.. . . . . . . . . . . . . . . . . . 53
7.6. Indemnification. . . . . . . . . . . . . . . . . . . . 53
7.7. Credit Decision. . . . . . . . . . . . . . . . . . . . 53
7.8. Successor Agent. . . . . . . . . . . . . . . . . . . . 54
7.9. Agency Fees. . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
AFFECTING FIXED RATE LOANS
SECTION 8.1. Basis for Determining Interest Rate Inadequate or
Unfair . . . . . . . . . . . . . . . . . . . . . . . . 54
8.2. Illegality.. . . . . . . . . . . . . . . . . . . . . . 55
8.3. Increased Cost and Reduced Return. . . . . . . . . . . 56
8.4. Base Rate Loans Substituted for Affected Fixed Rate
Loans. . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE IX
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PAGE
REPRESENTATIONS AND WARRANTIES
OF ELIGIBLE SUBSIDIARIES
SECTION 9.1. Corporate Existence and Power. . . . . . . . . . . . . 58
9.2. Corporate and Governmental Authorization; No
Contravention. . . . . . . . . . . . . . . . . . . . . 58
9.3. Binding Effect.. . . . . . . . . . . . . . . . . . . . 59
9.4. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . 59
9.5. General Indebtedness, Pari Passu Status. . . . . . . . 59
ARTICLE X
GUARANTY
SECTION 10.1. The Guaranty . . . . . . . . . . . . . . . . . . . . . 60
10.2. Guaranty Unconditional.. . . . . . . . . . . . . . . . 60
10.3. Discharge Only Upon Payment In Full; Reinstatement
In Certain Circumstances.. . . . . . . . . . . . . . . 61
10.4. Waiver by the Company. . . . . . . . . . . . . . . . . 61
10.5. Subrogation. . . . . . . . . . . . . . . . . . . . . . 61
10.6. Stay of Acceleration.. . . . . . . . . . . . . . . . . 62
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Notices. . . . . . . . . . . . . . . . . . . . . . . . 62
11.2. No Waivers.. . . . . . . . . . . . . . . . . . . . . . 62
11.3. Expenses; Documentary Taxes; Indemnification.. . . . . 63
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PAGE
11.4. Right of Set-Off; Sharing of Set-Offs. . . . . . . . . 63
11.5. Increased Commitments; Additional Banks. . . . . . . . 64
11.6. Amendments and Waivers.. . . . . . . . . . . . . . . . 66
11.7. Successors and Assigns.. . . . . . . . . . . . . . . . 66
11.8. Collateral.. . . . . . . . . . . . . . . . . . . . . . 68
11.9. Consent to Jurisdiction; Service of Process. . . . . . 68
11.10. Existing Credit Agreement. . . . . . . . . . . . . . . 69
11.11. New York Law.. . . . . . . . . . . . . . . . . . . . . 69
11.12. Counterparts; Integration. . . . . . . . . . . . . . . 69
11.13. WAIVER OF JURY TRIAL.. . . . . . . . . . . . . . . . . 69
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of Counsel for the Company
Exhibit F - Opinion of Davis Polk & Wardwell,
Special Counsel for the Agent
Exhibit G - Form of Election to Participate
Exhibit H - Form of Election to Terminate
Exhibit I - Opinion of Counsel for the Borrower
(Borrowings by Eligible Subsidiaries)
Exhibit J - Assignment and Assumption Agreement
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AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 31, 1995 among
ALBANY INTERNATIONAL CORP., the BANKS party hereto and MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as Agent.
WHEREAS, the Company, the banks parties thereto and the Agent are
parties to a Credit Agreement dated as of July 16, 1992 (the "Existing Credit
Agreement");
WHEREAS, the parties hereto desire to further amend the Existing Credit
Agreement to (i) extend the Termination Date from July 16, 1997 to March 31,
2000, and (ii) make certain other changes therein as hereinafter provided;
WHEREAS, the parties hereto also desire to restate the Existing Credit
Agreement as so amended; and
WHEREAS, on the Restatement Effective Date (as defined herein) the
Existing Credit Agreement will be so amended and restated to read in full as set
forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. The following terms, as used herein, have
the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.3.
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form
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prepared by the Agent and submitted to the Agent (with a copy to the Company)
duly completed by such Bank.
"Affiliate" means, as to any designated Person, any other Person
directly or indirectly controlling, controlled by or under direct or indirect
common control with such Person and, without limiting the generality of the
foregoing, includes (i) any Person that beneficially owns or holds 5% or more of
any class of voting securities of such designated Person or 5% or more of the
equity interest in, or the interest in the profits of, such designated Person
and (ii) any Person of which such designated Person beneficially owns or holds
5% or more of any class of voting securities or in which such designated Person
beneficially owns or holds 5% or more of the equity interest or interest in the
profits. For the purposes of this definition, control, as used with respect to
the designated Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities or by contract or
otherwise.
"Agent" means Morgan Guaranty Trust Company of New York in its capacity
as agent for the Banks hereunder, and its successors in such capacity.
"Amended Agreement", when used with respect to this Agreement, means
this Agreement as amended and restated by the Amended and Restated Credit
Agreement dated as of March 31, 1995 and as further amended from time to time
thereafter.
"Applicable Lending Office" means, with respect to any Bank, (i) in the
case of its Base Rate Loans, its Domestic Lending Office, (ii) in the case of
its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of
its Money Market Loans, its Money Market Lending Office.
"Assignee" has the meaning set forth in Section 11.7(c).
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"Bank" means each bank listed on the signature pages of this Amended
Agreement as having a Commitment, each additional bank which becomes a Bank
pursuant to Section 11.5, each Assignee which becomes a Bank pursuant to Section
11.7(c), and their respective successors.
"Base Rate" means, for any day, a rate per annum equal to the higher of
(i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal
Funds Rate for such day.
"Base Rate Loan" means a Committed Loan to be made by a Bank as a Base
Rate Loan in accordance with the applicable Notice of Committed Borrowing or
pursuant to Article VIII.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" means the Company or any Eligible Subsidiary, as the context
may require, and their respective successors, and "Borrowers" means all of the
foregoing.
"Borrowing" has the meaning set forth in Section 1.4.
"Cash Flow to Total Debt Ratio" means, at the end of any fiscal quarter,
the ratio of (i) Consolidated Cash Flow for the four consecutive fiscal quarters
then ended to (ii) Total Debt as of the end of such fiscal quarter.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof or in an agreement
signed and delivered to the Agent pursuant to Section 11.5 or in an Assignment
and Assumption Agreement delivered to the Agent pursuant to Section 11.7(c), as
such amount may from time to time be reduced pursuant to Section 2.9 or changed
pursuant to Section 11.7(c)
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"Committed Loan" means a loan made by a Bank pursuant to Section 2.1.
"Company" means Albany International Corp., a Delaware corporation, and
its successors.
"Company's 1994 Form 10-K" means the Company's annual report on Form
10-K for 1994, as filed with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934.
"Consolidated Cash Flow" means, for any period, (i) Consolidated Net
Income for such period excluding therefrom (y) the net positive amount (if any)
of all extraordinary items during such period and (z) any equity in earnings of
unconsolidated Affiliates plus (ii) the sum of (A) the aggregate amount of all
cash distributions during such period by unconsolidated Affiliates to the
Company and its Consolidated Subsidiaries and (B) consolidated depreciation and
amortization expense of the Company and its Consolidated Subsidiaries for such
period.
"Consolidated Net Income" means, for any period, the consolidated net
income of the Company and its Consolidated Subsidiaries for such period.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such financial statements were prepared
as of such date.
"Consolidated Tangible Net Worth" means at any date the consolidated
common shareholders' equity of the Company and its Consolidated Subsidiaries,
less (to the extent reflected in such consolidated common shareholders' equity)
(i) all trade accounts receivable of the Company or any Consolidated Subsidiary
that are payable by any unconsolidated Subsidiary and are outstanding more than
90 days and (ii) Consolidated Intangible Assets, all determined as of such date.
For purposes of this definition "Consolidated Intangible Assets" means the
amount (to the
4
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extent reflected in such consolidated common shareholders' equity) of (i) all
write-ups (other than write-ups of assets of a going concern business made
within twelve months after the acquisition of such business and, subject to
compliance with APB-16, write-ups resulting from the Merger) subsequent to
December 31, 1982 in the book value of any asset owned by the Company or a
Consolidated Subsidiary, (ii) all Investments in unconsolidated Subsidiaries not
otherwise excluded from the definition of Consolidated Tangible Net Worth and
(iii) all unamortized debt discount and expense, goodwill, patents, trademarks,
service marks, trade names, copyrights, organization or developmental expenses
and other intangible items of a similar nature (but not prepaid expenses or
unamortized deferred charges) other than any of the foregoing items in this
clause (iii) that arose or were acquired in connection with the Merger. For
purposes of the foregoing definitions of Consolidated Tangible Net Worth and
Consolidated Intangible Assets, consolidated common shareholders' equity of the
Company and its Consolidated Subsidiaries, and each item added or subtracted
therefrom in accordance with such definitions, shall be adjusted by adding back
the cumulative foreign currency translation adjustment with respect to such
shareholders' equity or such item, if negative, or subtracting the cumulative
foreign currency translation adjustment with respect to such shareholders'
equity or such item, if positive.
"Continuing Director" means at any date a member of the Company's board
of directors (i) who was a member of such board 24 months prior to such date or
(ii) who was nominated or elected by at least two-thirds of the directors who
were Continuing Directors at the time of such nomination or election or whose
election to the Company's board of directors was recommended or endorsed by at
least two-thirds of the directors who were Continuing Directors at the time of
such election.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase
5
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price of property or services, except (a) trade accounts payable arising in the
ordinary course of business, (b) obligations incurred in connection with
additions to property, plant or equipment which are deferred for no more than
120 days after the later of the acquisition or completion of installation of
such additions, (c) other obligations which are deferred for no more than 120
days after the date on which they would first be reflected as liabilities on a
balance sheet of such Person and (d) obligations to pay for services of
officers, directors or employees of the Company or any Subsidiary, (iv) all
obligations of such Person as lessee under capital leases, (v) all deferred
obligations of such Person to reimburse any bank or other Person in respect of
amounts paid under a letter of credit or similar instrument, (vi) all
obligations of such Person to purchase securities or other property in
connection with the sale of the same or substantially similar securities or
property, (vii) all Debt of others secured by a Lien on any asset of such
Person, whether or not such Debt is assumed by such Person, and (viii) all Debt
of others Guaranteed by such Person.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized by law to close.
"Domestic Lending Office" means, as to each Bank, its office located at
its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Company and the Agent.
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"Election to Participate" means an Election to Participate substantially
in the form of Exhibit G hereto.
"Election to Terminate" means an Election to Terminate substantially in
the form of Exhibit H hereto.
"Eligible Subsidiary" means any Permitted Borrower Subsidiary as to
which an Election to Participate shall have been delivered to the Agent and as
to which an Election to Terminate shall not have been delivered to the Agent.
Each such Election to Participate and Election to Terminate shall be duly
executed on behalf of such Permitted Borrower Subsidiary and the Company in such
number of copies as the Agent may request. The delivery of an Election to
Terminate shall not affect any obligation of an Eligible Subsidiary theretofore
incurred. The Agent shall promptly give notice to the Banks of the receipt of
any Election to Participate or Election to Terminate.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to the
environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Company, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company or any
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Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office, branch
or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Company and the Agent.
"Euro-Dollar Loan" means a Committed Loan to be made by a Bank as a
Euro-Dollar Loan in accordance with the applicable Notice of Committed
Borrowing.
"Euro-Dollar Margin" has the meaning set forth in Section 2.7(b).
"Euro-Dollar Reference Bank" means the principal London office of Morgan
Guaranty Trust Company of New York or, after such appointment, any other bank
appointed pursuant to Section 11.7(f).
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.15.
"Event of Default" has the meaning set forth in Section 6.1.
"Existing Credit Agreement" has the meaning set forth in the first
WHEREAS clause at the beginning of this Amended Agreement.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
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Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, PROVIDED that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Morgan Guaranty Trust Company of New
York on such day on such transactions as determined by the Agent.
"Fixed Rate Loans" means Euro-Dollar Loans or Money Market Loans
(excluding Money Market LIBOR Loans bearing interest at the Base Rate pursuant
to Section 8.1(a)) or any combination of the foregoing.
"Guarantee" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Debt of any other Person
or in any manner providing for the payment of any Debt of any other Person or
otherwise protecting the holder of such Debt against loss (whether by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, or to take-or-pay or otherwise), PROVIDED that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
correlative meaning.
"Hazardous Substances" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics.
"Interest Coverage Ratio" means, at the end of any fiscal quarter, the
ratio of (i) Consolidated Cash Flow for the period of four consecutive fiscal
quarters then ended plus consolidated tax expense and net interest expense for
the Company and its Consolidated Subsidiaries, to the extent
9
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deducted in determining Consolidated Cash Flow for such period to
(ii) consolidated net interest expense for the Company and its Consolidated
Subsidiaries for such period.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending one,
two, three or six months thereafter, as the Borrower may elect in the applicable
Notice of Borrowing; PROVIDED that:
(a) any Interest Period which would otherwise end on a day which is not
a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business Day
of a calendar month; and
(c) any Interest Period that would otherwise end after the Termination
Date shall end on the Termination Date.
(2) with respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing and ending 30 days thereafter; PROVIDED that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) which would otherwise end on a day which is not
a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) any Interest Period that would otherwise end after the Termination
Date shall end on the Termination Date.
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(3) with respect to each Money Market LIBOR Borrowing, the period commencing on
the date of such Borrowing and ending such whole number of months thereafter as
the Borrower may elect in accordance with Section 2.3; PROVIDED that:
(a) any Interest Period which would otherwise end on a day which is not
a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business Day
of a calendar month; and
(c) any Interest Period that would otherwise end after the Termination
Date shall end on the Termination Date.
(4) with respect to each Money Market Absolute Rate Borrowing, the period
commencing on the date of such Borrowing and ending such number of days
thereafter (but not less than 30 days) as the Borrower may elect in accordance
with Section 2.3; PROVIDED that:
(a) any Interest Period which would otherwise end on a day which is not
a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) any Interest Period that would otherwise end after the Termination
Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
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"Investment" means any investment in any Person, whether by means of
share purchase, capital contribution, loan, time deposit or otherwise.
"Level I" status exists at any date if the Cash Flow to Total Debt Ratio
as of the end of the most recent fiscal quarter ending 45 days or more before
such date is not less than 0.35 to 1.
"Level II" status exists at any date if the Cash Flow to Total Debt
Ratio as of the end of the most recent fiscal quarter ending 45 days or more
before such date is less than 0.35 to 1 and not less than 0.27 to 1.
"Level III" status exists at any date if the Cash Flow to Total Debt
Ratio as of the end of the most recent fiscal quarter ending 45 days or more
before such date is less than 0.27 to 1 and not less than 0.20 to 1.
"Level IV" status exists at any date if the Cash Flow to Total Debt
Ratio as of the end of the most recent fiscal quarter ending 45 days or more
before such date is less than 0.20.
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.3.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, the Company or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"Loan" means a Base Rate Loan or a Euro-Dollar Loan or a Money Market
Loan and "Loans" means Base Rate Loans or Euro-Dollar Loans or Money Market
Loans or any combination of the foregoing.
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"London Interbank Offered Rate" has the meaning set forth in Section
2.7(b).
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $1,000,000.
"Merger" means the merger of A.I.C. Investors Corp. into the Company on
the terms and in connection with the transactions described in the Proxy
Statement of the Company dated July 1, 1983.
"Money Market Absolute Rate" has the meaning set forth in Section
2.3(d)(ii).
"Money Market Absolute Rate Loan" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Company
and the Agent; PROVIDED that any Bank may from time to time by notice to the
Borrower and the Agent designate separate Money Market Lending Offices for its
Money Market LIBOR Loans, on the one hand, and its Money Market Absolute Rate
Loans, on the other hand, in which case all references herein to the Money
Market Lending Office of such Bank shall be deemed to refer to either or both of
such offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank pursuant to
a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 8.1(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.3(d)(ii).
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"Money Market Quote" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.3.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Net Unrecovered Amount" means, with respect to any Investment of the
Company or any Subsidiary permitted pursuant to clause (d) or (e) of Section
5.14, the historical cost of such Investment less any payments received as
proceeds of sale or returns of capital by the Company or any Subsidiary with
respect to such Investment (after subtracting from such proceeds any provisions
for taxes reflected in the financial statements of the Company or any Subsidiary
with respect to such sale or return of capital). The historical cost of any
Investment by the Company or any Subsidiary that was made in the form of a
transfer of capital stock, or an option to purchase capital stock, of the
Company shall be deemed to be the fair market value of such capital stock or
option at the time such Investment was made.
"Notes" means promissory notes of a Borrower, substantially in the form
of Exhibit A hereto, evidencing the obligation of such Borrower to repay the
Loans borrowed by it, and "Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as defined
in Section 2.2) or a Notice of Money Market Borrowing (as defined in Section
2.3(f)).
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
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"Participant" has the meaning set forth in Section 11.7(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Acceptance" means any banker's acceptance accepted by a bank
or trust company referred to in clause (i), (ii) or (iii) of the definition of
Permitted Deposit.
"Permitted Borrower Subsidiary" means any Wholly-Owned Consolidated
Subsidiary that is incorporated in, and has its principal place of business in,
Finland, France, Germany, the Netherlands, Norway, Sweden or the United Kingdom.
"Permitted Deposit" means any deposit with, including any certificate of
deposit issued by, (i) any office of any Bank, (ii) any office of any bank or
trust company which is organized under the laws of the United States of America
or any state thereof or the District of Columbia if the debt securities of such
bank or trust company or its holding company are rated at least A or the
equivalent thereof by Standard & Poor's Ratings Group or A2 or the equivalent
thereof by Moody's Investors Service, Inc., (iii) any bank organized under the
laws of a jurisdiction other than the United States of America or any state
thereof if such bank is one of the five largest banks in such jurisdiction as
measured by total capital (PROVIDED that the aggregate amount of all such
deposits with such banks that are organized under the laws of a country that is
not a member of the Organization for Economic Cooperation shall at no time
exceed $5,000,000 in the aggregate), or (iv) any bank or trust company organized
under the laws of any jurisdiction if the total of all deposits therewith by the
Company and its Subsidiaries is less than $100,000.
"Permitted Shareholders" means (i) J. Spencer Standish, (ii) any of his
descendants or legatees, (iii) any executor, personal representative or spouse
of J. Spencer
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Standish or of any of his descendants, (iv) any person who was a director or
employee of the Company on March 31, 1995, (v) any corporation, trust or other
entity holding voting stock of the Company as to which one or more of the
persons identified in the foregoing clauses (i) through (iv) have sole voting or
investment power, (vi) any trust as to which persons so identified hold at least
85% of the beneficial interest in the income and principal of the trust
disregarding the interests of contingent remaindermen and (vii) any Employee
Stock Ownership Plan for the benefit of employees of the Company.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Prime Rate" means the rate of interest publicly announced by Morgan
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Principal Officer" means any of the following officers of the Company:
Chairman of the Board, President, Senior Vice President, Vice
President-Secretary, Controller and Treasurer. If the titles of the Company's
officers are changed after March 31, 1995, the term "Principal Officer" shall
thereafter mean any officer performing substantially the same functions as are
presently performed by one or more of the officers listed in the first sentence
of this definition.
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"Receivables" means all accounts, contract rights, chattel paper,
instruments, general intangibles and other assets arising out of or in
connection with the sale or lease of goods or the rendering of services.
"Refunding Borrowing" means a Committed Borrowing which, after
application of the proceeds thereof, results in no net increase in the
outstanding principal amount of Committed Loans made by any Bank.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Related Business" means a business consisting primarily of an activity
related or complementary to an activity conducted as of December 31, 1994 by the
Company or its Consolidated Subsidiaries. Related Business shall include,
without limitation, a business engaged in the design, manufacture or
distribution of (i) paper machine clothing or (ii) products which (a) are used
in physical contact with, in close proximity to, or in conjunction with paper
machine clothing or any other product manufactured by the Company or its
Consolidated Subsidiaries, (b) are used to control, measure or monitor paper
machine clothing or any such other product or (c) utilize paper machine clothing
or any such other product.
"Required Banks" means at any time Banks having at least 51% of the
aggregate amount of the Commitments or, if the Commitments shall have expired or
been terminated, Banks holding at least 51% of the aggregate unpaid principal
amount of the Notes.
"Restatement Effective Date" has the meaning set forth in Section 3.1.
"Restricted Payment" means (i) any purchase, redemption, retirement or
other acquisition of capital stock of the Company or any option, warrant or
other right to acquire capital stock of the Company and (ii) any dividend or
other distribution on any shares of the capital stock of
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the Company (except dividends payable solely in shares of its common stock).
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Company.
"Temporary Cash Investment" means any Investment in (i) direct
obligations of the United States of America or any agency thereof, or
obligations guaranteed by the United States of America or any agency thereof or
(ii) commercial paper rated in the highest grade by either Standard & Poor's
Ratings Group or Moody's Investors Service, Inc., PROVIDED that, in each case,
such Investment matures within one year from the date of acquisition thereof by
the Company or any Subsidiary.
"Termination Date" means March 31, 2000 (or, if such day is not a
Euro-Dollar Business Day, then the next succeeding Euro-Dollar Business Day).
"Total Debt" means, at any date, the Debt of the Company and its
Consolidated Subsidiaries determined on a consolidated basis.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the present value of all benefits under such Plan
exceeds (ii) the fair market value of all Plan assets allocable to such benefits
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"Usage" means at any date the percentage equivalent of a fraction (i)
the numerator of which is the aggregate outstanding principal amount of the
Loans at such date, after giving effect to any borrowing or payment on
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<PAGE>
such date, and (ii) the denominator of which is the aggregate amount of the
Commitments on such date. If for any reason any Loans remain outstanding after
termination of the Commitments, the Usage for each date on or after the date of
such termination shall be deemed to be greater than 50%.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated Subsidiary
all of the shares of capital stock or other ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly owned by
the Company.
SECTION 1.2. ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent (except for changes concurred in by the Company's
independent public accountants) with the most recent audited consolidated
financial statements of the Company and its Consolidated Subsidiaries delivered
to the Banks; PROVIDED that, if the Company notifies the Agent that the Company
wishes to amend any covenant contained in Article V to eliminate the effect of
any change in generally accepted accounting principles on the operation of such
covenant (or if the Agent notifies the Company that the Required Banks wish to
amend any such covenant for such purpose), then the Company's compliance with
such covenant shall be determined on the basis of generally accepted accounting
principles in effect immediately before the relevant change in generally
accepted accounting principles became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Company
and the Required Banks.
SECTION 1.3 CERTAIN CURRENCY CONVERSIONS. For the purposes of any
covenant contained in Article V of this Agreement which requires a determination
based on a number of Dollars, all amounts denominated in other currencies
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shall be valued at the applicable exchange rate used or to be used in preparing
a consolidated balance sheet of the Company and its Consolidated Subsidiaries as
at the end of the then most recently completed fiscal quarter of the Company.
SECTION 1.4. TYPES OF BORROWINGS. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to a Borrower pursuant to
Article II on a single date and for a single Interest Period. Borrowings are
classified for purposes of this Agreement either by reference to the pricing of
Loans comprising such Borrowing (E.G., a "Euro-Dollar Borrowing" is a Borrowing
comprised of Euro-Dollar Loans) or by reference to the provisions of Article II
under which participation therein is determined (I.E., a "Committed Borrowing"
is a Borrowing under Section 2.1 in which all Banks participate in proportion to
their Commitments, while a "Money Market Borrowing" is a Borrowing under Section
2.3 in which the Bank participants are determined on the basis of their bids in
accordance therewith).
ARTICLE II
THE CREDITS
SECTION 2.1. COMMITMENTS TO LEND. Each Bank severally agrees, on the
terms and conditions set forth in this Amended Agreement, to make loans to the
Company or any Eligible Subsidiary from time to time during the period from and
including the Restatement Effective Date to but not including the Termination
Date; PROVIDED that, immediately after each such loan is made, the aggregate
outstanding principal amount of all Committed Loans made by such Bank under this
Agreement shall not exceed the amount of its Commitment as then in effect. Each
Borrowing shall be in an aggregate principal amount of $3,000,000 or any larger
multiple of $1,000,000 (except that any such Borrowing may be in the aggregate
amount of the unused Commitments) and shall be made from the several Banks
ratably in proportion to their respective Commitments. Within the foregoing
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limits (and subject to the provisions of Article VIII, if applicable) the
Borrowers may borrow under this Section, repay, or to the extent permitted by
Section 2.11, prepay Loans and reborrow at any time prior to but not including
the Termination Date.
SECTION 2.2. NOTICE OF COMMITTED BORROWING. The relevant Borrower
shall give the Agent notice (a "Notice of Committed Borrowing") not later than
(y) 10:00 A.M. (New York City time) on the date of each Base Rate Borrowing and
(z) 11:00 A.M. (New York City time) on the third Euro-Dollar Business Day before
each Euro-Dollar Borrowing specifying:
(i) the date of such Borrowing, which shall be a Domestic Business Day
in the case of a Domestic Borrowing or a Euro-Dollar Business Day in the case
of a Euro-Dollar Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) whether the Loans comprising such Borrowing are to be Base Rate
Loans or Euro-Dollar Loans; and
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
SECTION 2.3. MONEY MARKET BORROWINGS.
(a) THE MONEY MARKET OPTION. In addition to Committed Borrowings
pursuant to Section 2.1, the Company may, as set forth in this Section, request
the Banks to make offers to make Money Market Loans to the Company on any date
prior to the Termination Date. The Banks may, but shall have no obligation to,
make such offers and the Company may, but shall have no obligation to, accept
any such offers in the manner set forth in this Section.
(b) MONEY MARKET QUOTE REQUEST. When the Company wishes to request
offers to make Money Market Loans under this Section, it shall transmit to the
Agent by telex or
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facsimile transmission a Money Market Quote Request substantially in the form of
Exhibit B hereto so as to be received no later than 10:00 A.M. (New York City
time) on (x) the fifth Euro-Dollar Business Day prior to the date of Borrowing
proposed therein, in the case of a LIBOR Auction or (y) the Domestic Business
Day next preceding the date of Borrowing proposed therein, in the case of an
Absolute Rate Auction (or, in either case, such other time or date as the
Company and the Agent shall have mutually agreed and shall have notified to the
Banks not later than the date of the Money Market Quote Request for the first
LIBOR Auction or Absolute Rate Auction for which such change is to be effective)
specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day in the
case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be $3,000,000
or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto, subject to
the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a Money
Market Margin or a Money Market Absolute Rate.
The Company may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Company and the Agent may agree) of any other Money Market
Quote Request.
(c) INVITATION FOR MONEY MARKET QUOTES. Promptly upon receipt of a
Money Market Quote Request, the Agent shall send to the Banks by telex or
facsimile transmission an Invitation for Money Market Quotes substantially in
the form of Exhibit C hereto, which shall constitute an
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invitation by the Company to each Bank to submit Money Market Quotes offering to
make the Money Market Loans to which such Money Market Quote Request relates in
accordance with this Section.
(d) SUBMISSION AND CONTENTS OF MONEY MARKET QUOTES. (i) Each Bank
may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection (d) and must
be submitted to the Agent by telex or facsimile transmission at its offices
specified in or pursuant to Section 11.01 not later than (x) 2:00 P.M. (New York
City time) on the fourth Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) 9:00 A.M. (New York City time)
on the proposed date of Borrowing, in the case of an Absolute Rate Auction (or,
in either case, such other time or date as the Company and the Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of
the Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective); PROVIDED that Money Market
Quotes submitted by the Agent (or any affiliate of the Agent) in the capacity of
a Bank may be submitted, and may only be submitted, if the Agent or such
affiliate notifies the Company of the terms of the offer or offers contained
therein not later than (x) one hour prior to the deadline for the other Banks,
in the case of a LIBOR Auction or (y) 15 minutes prior to the deadline for the
other Banks, in the case of an Absolute Rate Auction. Subject to Articles III
and VI, any Money Market Quote so made shall be irrevocable except with the
written consent of the Agent given on the instructions of the Company.
(ii) Each Money Market Quote shall be in substantially the form of
Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
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(B) the principal amount of the Money Market Loan for which each such
offer is being made, which principal amount (w) may be greater than or less
than the Commitment of the quoting Bank, (x) must be $3,000,000 or a larger
multiple of $1,000,000, (y) may not exceed the principal amount of Money
Market Loans for which offers were requested and (z) may be subject to an
aggregate limitation as to the principal amount of Money Market Loans for
which offers being made by such quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the "Money Market Margin") offered
for each such Money Market Loan, expressed as a percentage (specified to the
nearest 1/10,000th of 1%) to be added to or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of interest per
annum (specified to the nearest 1/10,000th of 1%) (the "Money Market Absolute
Rate") offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto or does
not specify all of the information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
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(C) proposes terms other than or in addition to those set forth in the
applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) NOTICE TO COMPANY. The Agent shall promptly notify the Company of
the terms (x) of any Money Market Quote submitted by a Bank that is in
accordance with subsection (d) and (y) of any Money Market Quote that amends,
modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Money Market Quote Request. Any
such subsequent Money Market Quote shall be disregarded by the Agent unless such
subsequent Money Market Quote is submitted solely to correct a manifest error in
such former Money Market Quote. The Agent's notice to the Company shall specify
(A) the aggregate principal amount of Money Market Loans for which offers have
been received for each Interest Period specified in the related Money Market
Quote Request, (B) the respective principal amounts and Money Market Margins or
Money Market Absolute Rates, as the case may be, so offered and (C) if
applicable, limitations on the aggregate principal amount of Money Market Loans
for which offers in any single Money Market Quote may be accepted.
(f) ACCEPTANCE AND NOTICE BY COMPANY. Not later than 10:00 A.M. (New
York City time) on (x) the third Euro-Dollar Business Day prior to the proposed
date of Borrowing, in the case of a LIBOR Auction or (y) the proposed date of
Borrowing, in the case of an Absolute Rate Auction (or, in either case, such
other time or date as the Company and the Agent shall have mutually agreed and
shall have notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective), the Company shall notify the Agent of its
acceptance or non-acceptance of the offers so notified to it pursuant to
subsection (e). In the case of acceptance, such notice (a "Notice of Money
Market Borrowing") shall specify the aggregate principal amount of offers for
each Interest
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Period that are accepted. The Company may accept any Money Market Quote in
whole or in part; PROVIDED that:
(i) the aggregate principal amount of each Money Market Borrowing may
not exceed the applicable amount set forth in the related Money Market Quote
Request,
(ii) the principal amount of each Money Market Borrowing must be
$3,000,000 or a larger multiple of $1,000,000,
(iii) acceptance of offers may only be made on the basis of ascending
Money Market Margins or Money Market Absolute Rates, as the case may be, and
(iv) the Company may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the requirements
of this Agreement.
(g) ALLOCATION BY AGENT. If offers are made by two or more Banks with
the same Money Market Margins or Money Market Absolute Rates, as the case may
be, for a greater aggregate principal amount than the amount in respect of which
such offers are accepted for the related Interest Period, the principal amount
of Money Market Loans in respect of which such offers are accepted shall be
allocated by the Agent among such Banks as nearly as possible (in multiples of
$1,000,000, as the Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determinations by the Agent of the amounts
of Money Market Loans shall be conclusive in the absence of manifest error.
SECTION 2.4. NOTICE TO BANKS; FUNDING OF LOANS.
(a) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's share (if any) of
such Borrowing and such Notice of Borrowing shall not thereafter be revocable by
the Borrower.
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(b) Not later than 12:00 Noon (New York City time) on the date of each
Borrowing, each Bank participating therein shall (except as provided in
subsection (c) of this Section) make available its share of such Borrowing, in
Federal or other funds immediately available in New York City, to the Agent at
its address specified in or pursuant to Section 11.1. Unless the Agent
determines that any applicable condition specified in Article III has not been
satisfied, the Agent will make the funds so received from the Banks available to
the Borrower at the Agent's aforesaid address.
(c) If any Bank makes a new Loan hereunder on a day on which the
relevant Borrower is to repay all or any part of an outstanding Loan from such
Bank, such Bank shall apply the proceeds of its new Loan to make such repayment
and only an amount equal to the difference (if any) between the amount being
borrowed and the amount being repaid shall be made available by such Bank to the
Agent as provided in subsection (b) of this Section, or remitted by the relevant
Borrower to the Agent as provided in Section 2.12, as the case may be.
(d) Unless the Agent shall have received notice from a Bank prior to
the date of any Borrowing that such Bank will not make available to the Agent
such Bank's share of such Borrowing, the Agent may assume that such Bank has
made such share available to the Agent on the date of such Borrowing in
accordance with subsections (b) and (c) of this Section and the Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so
made such share available to the Agent, such Bank and the Borrower severally
agree to repay to the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the Agent, at
(i) in the case of the Borrower, a rate per annum equal to the higher of the
Federal Funds Rate and the interest rate applicable thereto pursuant to Section
2.7 and (ii) in the case of such Bank, the Federal Funds Rate. If such Bank
shall repay to the Agent such
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corresponding amount, such amount so repaid shall constitute such Bank's Loan
included in such Borrowing for purposes of this Agreement. In no event shall
any payment by the Agent, or repayment by the relevant Borrower, of any amount
pursuant to this Section 2.4(d) relieve the Bank that failed to make available
its share of the related Borrowing of its obligations hereunder.
SECTION 2.5. NOTES. (a) The Loans of each Bank to each Borrower
shall be evidenced by a single Note of such Borrower payable to the order of
such Bank for the account of its Applicable Lending Office in an amount equal to
the aggregate unpaid principal amount of such Bank's Loans to such Borrower.
(b) Each Bank may, by notice to a Borrower and the Agent (to be given
not later than two Domestic Business Days prior to the first Borrowing by such
Borrower), request that its Loans of a particular type to such Borrower be
evidenced by a separate Note of such Borrower in an amount equal to the
aggregate unpaid principal amount of such Loans. Each such Note shall be in
substantially the form of Exhibit A hereto, with appropriate modifications to
reflect the fact that it evidences solely Loans of the relevant type. Each
reference in this Agreement to a "Note" or the "Notes" of such Bank shall be
deemed to refer to and include any or all of such Notes, as the context may
require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.1(c) or
3.3(a), the Agent shall mail such Note to such Bank. Each Bank shall record,
and prior to any transfer of its Note shall endorse on the schedules forming a
part thereof appropriate notations to evidence, the date, amount and maturity of
each Loan evidenced by its Note and the date and amount of each payment of
principal made by the relevant Borrower with respect thereto; PROVIDED that the
failure of any Bank to make any such recordation or endorsement shall not affect
the obligations of any Borrower hereunder or under the Notes. Each Bank is
hereby irrevocably authorized by each Borrower so to endorse its
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Notes and to attach to and make a part of any Note a continuation of any such
schedule as and when required.
SECTION 2.6. MATURITY OF LOANS. Each Loan included in any Borrowing
shall mature, and the principal amount thereof shall be due and payable, on the
last day of the Interest Period applicable to such Borrowing.
SECTION 2.7. INTEREST RATES. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan was made until it becomes due, at a rate per annum equal to the Base
Rate for such day. Such interest shall be payable for each Interest Period on
the last day thereof. Any overdue principal of or interest on any Base Rate
Loan shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 1% plus the Base Rate for such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day (except the last day) during the Interest
Period applicable thereto, at a rate per annum equal to the sum of the
Euro-Dollar Margin for such day plus the applicable London Interbank Offered
Rate. Such interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than three months, three months
after the first day thereof.
"Euro-Dollar Margin" means (i) 0.2250% for any day on which Level I
status exists, (ii) 0.2125% for any day on which Level II status exists and
Usage is less than 50%, (iii) 0.3375% for any day on which Level II status
exists and Usage is 50% or more, (iv) 0.3625% for any day on which Level III
status exists and Usage is less than 50%, (v) 0.4875% for any day on which Level
III status exists and Usage is 50% or more, (vi) 0.4375% for any day on which
Level IV status exists and Usage is less than 50% and (vii) 0.5625% for any day
on which Level IV status exists and Usage is 50% or more.
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The "London Interbank Offered Rate" applicable to any Interest Period
means the rate per annum at which deposits in Dollars are offered to the Euro-
Dollar Reference Bank in the London interbank market at approximately 11:00 A.M.
(London time) two Euro-Dollar Business Days before the first day of such
Interest Period in an amount approximately equal to the principal amount of the
Euro-Dollar Loan of such Bank to which such Interest Period is to apply and for
a period of time comparable to such Interest Period.
(c) Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 1% plus the higher of (i) the sum of the
Euro-Dollar Margin for such day plus the London Interbank Offered Rate
applicable to such Loan and (ii) the Euro-Dollar Margin for such day plus the
rate per annum at which one day (or, if such amount due remains unpaid more than
three Euro-Dollar Business Days, then for such other period of time not longer
than six months as the Agent may elect) deposits in Dollars in an amount
approximately equal to such overdue payment due to the Euro-Dollar Reference
Bank are offered to the Euro-Dollar Reference Bank in the London interbank
market for the applicable period determined as provided above (or, if the
circumstances described in clause (a) or (b) of Section 8.1 shall exist, at a
rate per annum equal to the sum of 1% plus the Base Rate for such day).
(d) Subject to Section 8.1(a), each Money Market LIBOR Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the sum of the London Interbank
Offered Rate for such Interest Period (determined in accordance with Section
2.7(b) as if the related Money Market LIBOR Borrowing were a Committed
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the
Bank making such Loan in accordance with Section 2.3. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the
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Money Market Absolute Rate quoted by the Bank making such Loan in accordance
with Section 2.3. Such interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is longer than three months,
at intervals of three months after the first day thereof. Any overdue
principal of or interest on any Money Market Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the sum of 1%
plus the Base Rate for such day.
(e) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Borrower and the
Banks by telex, cable or facsimile transmission of each rate of interest so
determined, and its good faith determination thereof shall be conclusive in the
absence of manifest error.
SECTION 2.8. FEES. The Company shall pay to the Agent for the account
of the Banks ratably a facility fee for each day at the Facility Fee Rate.
Such facility fee shall accrue for each day (i) from and including the
Restatement Effective Date to but excluding the date on which the Commitments
shall have been terminated in their entirety, on the aggregate amount of the
Commitments on such day (whether used or unused) and (ii) from and including the
date on which the Commitments shall have been terminated in their entirety to
but excluding the date the Loans shall be repaid in their entirety, on the
aggregate outstanding principal amount of the Loans on such day. Accrued
facility fees shall be payable quarterly on each March 31, June 30, September 30
and December 31 and upon the date of termination of the Commitments in their
entirety (and, if later, the date the Loans shall be repaid in their entirety).
"Facility Fee Rate" means (i) 0.1500% for any day on which Level I status
exists, (ii) 0.1875% for any day on which Level II status exists, (iii) 0.2000%
for any day on which Level III status exists and (iv) 0.2500% for any day on
which Level IV status exists.
SECTION 2.9. OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS. The
Company may, upon at least three Domestic Business Days' notice to the Agent,
terminate at
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any time, or proportionately reduce from time to time by an aggregate amount of
$3,000,000 or any larger multiple of $1,000,000, the unused portions of the
Commitments. If the Commitments are terminated in their entirety, all fees
accrued under Section 2.8 shall be payable on the effective date of such
termination.
SECTION 2.10. MANDATORY TERMINATION OR REDUCTION OF COMMITMENTS. The
Commitments shall terminate on the Termination Date and any Loans then
outstanding (together with accrued interest thereon) shall be due and payable in
full on such date.
SECTION 2.11. OPTIONAL PREPAYMENTS. (a) Any Borrower may, upon at
least one Domestic Business Day's notice to the Agent, prepay its Base Rate
Loans (or any Money Market Borrowing bearing interest at the Base Rate pursuant
to Section 8.1(a)) in whole at any time, or from time to time in part in amounts
aggregating $3,000,000 or any larger multiple of $1,000,000 by paying the
principal amount to be prepaid together with interest accrued thereon to the
date of prepayment. Each such optional prepayment shall be applied to prepay
the relevant Base Rate Loans of the several Banks in proportion to their
respective Commitments.
(b) Except as provided in Section 8.2, no Borrower may prepay all or
any portion of the principal amount of any Fixed Rate Loan prior to the maturity
thereof.
(c) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Bank of the contents thereof and of such
Bank's ratable share of such prepayment and such notice shall not thereafter be
revocable by the Borrower.
SECTION 2.12. GENERAL PROVISIONS AS TO PAYMENTS. (a) The Borrowers
shall make each payment of principal of, and interest on, the Loans and of fees
hereunder not later than 11:00 A.M. (New York City time) on the date when due,
in Federal or other funds immediately available in New York City, to the Agent
at its address referred to in Section 11.1. The Agent will promptly distribute
to each Bank its
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ratable share of each such payment received by the Agent for the account of the
Banks. Whenever any payment of principal of, or interest on, the Base Rate
Loans or of fees shall be due on a day which is not a Domestic Business Day, the
date for payment thereof shall be extended to the next succeeding Domestic
Business Day. Whenever any payment of principal of, or interest on, the
Euro-Dollar Loans shall be due on a day which is not a Euro-Dollar Business Day,
the date for payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case the date for payment thereof shall be the next
preceding Euro-Dollar Business Day. Whenever any payment of principal of, or
interest on, the Money Market Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day. If the date for any payment of
principal is extended by operation of law or otherwise, interest thereon shall
be payable for such extended time.
(b) Unless the Agent shall have received notice from a Borrower prior
to the date on which any payment is due from such Borrower to the Banks
hereunder that such Borrower will not make such payment in full, the Agent may
assume that such Borrower has made such payment in full to the Agent on such
date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount then due
such Bank. If and to the extent that such Borrower shall not have so made such
payment, each Bank shall repay to the Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for each day from the
date such amount is distributed to such Bank until the date such Bank repays
such amount to the Agent, at the Federal Funds Rate.
SECTION 2.13. FUNDING LOSSES. If a Borrower makes any payment of
principal with respect to any Fixed Rate Loan (pursuant to Article VI or VIII or
otherwise) on any day other than the last day of the Interest Period applicable
thereto, or the end of an applicable period fixed
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pursuant to Section 2.7 (c), or if a Borrower fails to borrow any Fixed Rate
Loans after notice of such Borrowing has been given to any Bank in accordance
with Section 2.4(a), such Borrower shall reimburse each Bank on demand for any
resulting loss or expense incurred by such Bank (or by any existing or
prospective Participant in the related Loan), including (without limitation) any
loss incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after any such payment or
failure to borrow, PROVIDED that such Bank shall have delivered to such Borrower
a certificate as to the amount of such loss or expense, which certificate shall
be conclusive in the absence of manifest error.
SECTION 2.14. COMPUTATION OF INTEREST AND FEES. Interest based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in
a leap year) and paid for the actual number of days elapsed (including the first
day but excluding the last day). All other interest and fees hereunder shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day).
SECTION 2.15. REGULATION D COMPENSATION. Each Bank may require a
Borrower to pay, contemporaneously with each payment of interest on its
Euro-Dollar Loans, additional interest on the related Euro-Dollar Loan of such
Bank at a rate per annum equal to the excess of (i) (A) the applicable London
Interbank Offered Rate (or other base rate determined pursuant to Section
2.7(c)) divided by (B) one MINUS the Euro-Dollar Reserve Percentage over (ii)
the rate specified in clause (i)(A), such rate to be adjusted automatically on
and as of the effective date of any change in the Euro-Dollar Reserve
Percentage. Any Bank wishing to require payment of such additional interest (x)
shall so notify the Company and the Agent, in which case such additional
interest on the Euro-Dollar Loans of such Bank shall be payable to such Bank at
the place in the United States of America indicated in such notice with respect
to each Interest Period commencing at least five Euro-Dollar Business Days after
the giving of such notice and (y) shall notify the relevant Borrower at least
five Euro-Dollar
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Business Days prior to each date on which interest is payable on its Euro-Dollar
Loans of the amount then due to such Bank under this Section.
"Euro-Dollar Reserve Percentage" means, with respect to any Euro-Dollar
Loan for any day, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement for a member
bank of the Federal Reserve System in New York City with deposits exceeding five
billion Dollars in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on such Euro-Dollar Loan is determined or any category of
extensions of credit or other assets which includes such Euro-Dollar Loan, or
would include such Euro-Dollar Loan, if made by a non-United States office of
the relevant Bank).
SECTION 2.16. WITHHOLDING TAX EXEMPTION. At least five Domestic
Business Days prior to the first date on which interest or fees are payable
hereunder for the account of any Bank, each Bank that is not incorporated under
the laws of the United States of America or a state thereof agrees that it will
deliver to each of the Company and the Agent two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, certifying in either case
that such Bank is entitled to receive payments from the Company under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes. Each Bank which so delivers a Form 1001 or 4224 further
undertakes to deliver to each of the Company and the Agent two additional copies
of such form (or a successor form) on or before the date that such form expires
or becomes obsolete or after the occurrence of any event requiring a change in
the most recent form so delivered by it, and such amendments thereto or
extensions or renewals thereof as may be reasonably requested by the Company or
the Agent, in each case certifying that such Bank is entitled to receive
payments from the Company under this Agreement and the Notes without deduction
or withholding of any United States federal income taxes, unless an event
(including without
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limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Bank from duly completing
and delivering any such form with respect to it and such Bank advises the
Company and the Agent that it is not capable of receiving such payments without
any deduction or withholding of United States federal income tax.
SECTION 2.17. JUDGMENT CURRENCY. If for the purpose of obtaining
judgment in any court it is necessary to convert a sum due from any Borrower
hereunder or under any of the Notes in Dollars into another currency, the
parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Agent could purchase Dollars with such other currency at
the Agent's New York office on the Domestic Business Day preceding that on which
final judgment is given. The obligations of each Borrower in respect of any sum
due to any Bank or the Agent hereunder or under any Note shall, notwithstanding
any judgment in a currency other than Dollars, be discharged only to the extent
that on the Domestic Business Day following receipt by such Bank or the Agent
(as the case may be) of any sum adjudged to be so due in such other currency
such Bank or the Agent (as the case may be) may in accordance with normal
banking procedures purchase Dollars with such other currency; if the amount of
Dollars so purchased is less than the sum originally due to such Bank or the
Agent, as the case may be, in Dollars, each Borrower agrees, to the fullest
extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Bank or the Agent, as the
case may be, against such loss, and if the amount of Dollars so purchased
exceeds (a) the sum originally due to any Bank or the Agent, as the case may be,
and (b) any amounts shared with other Banks as a result of allocations of such
excess as a disproportionate payment to such Bank under Section 11.4, such Bank
or the Agent, as the case may be, agrees to remit such excess to the appropriate
Borrower.
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SECTION 2.18. FOREIGN WITHHOLDING TAXES AND OTHER COSTS. (a) All
payments by an Eligible Subsidiary of principal of and interest on its Notes and
of all other amounts payable under this Agreement are payable without deduction
for or on account of any present or future taxes, duties or other charges levied
or imposed by the government of any jurisdiction outside the United States of
America or by any political subdivision or taxing authority thereof or therein
through withholding or deduction with respect to any such payments. If any such
taxes, duties or other charges are so levied or imposed, such Eligible
Subsidiary will pay additional interest or will make additional payments in such
amounts so that every net payment of principal of and interest on its Notes and
of all other amounts payable by it under this Agreement, after withholding or
deduction for or on account of any such present or future taxes, duties or other
charges, will not be less than the amount provided for herein. Such Eligible
Subsidiary shall furnish promptly to the Agent official receipts evidencing the
payment of any tax, duty or other charge so withheld or deducted.
(b) If the cost to any Bank of making or maintaining any Loan to an
Eligible Subsidiary is increased, or the amount of any sum received or
receivable by any Bank (or its Applicable Lending Office) is reduced by an
amount deemed by such Bank to be material, by reason of the fact that such
Eligible Subsidiary is incorporated in, or conducts business in, a jurisdiction
outside the United States of America, such Eligible Subsidiary shall indemnify
such Bank for such increased cost or reduction within 15 days after demand by
such Bank (with a copy to the Agent). A certificate of such Bank claiming
compensation under this subsection (b) and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error.
(c) Each Bank will promptly notify the Company and the Agent of any
event of which it has knowledge that will entitle such Bank to additional
interest or payments pursuant to subsection (b) and will designate a different
Applicable Lending Office, if, in the judgment of such Bank, such designation
will avoid the need for, or reduce the
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amount of, such compensation and will not be otherwise disadvantageous to such
Bank.
ARTICLE III
CONDITIONS
SECTION 3.1. EFFECTIVENESS. The amendment and restatement of the
Existing Credit Agreement provided for herein shall become effective on the date
(the "Restatement Effective Date") that each of the following conditions shall
have been satisfied (or waived in accordance with Section 11.6):
(a) receipt by the Agent of a notice from the Company specifying the
Restatement Effective Date (which shall not be later than April 15, 1995);
(b) receipt by the Agent of a duly executed counterpart of this Amended
Agreement signed by each of the parties hereto (or, in the case of any party
as to which an executed counterpart shall not have been received, receipt by
the Agent in form satisfactory to it of telegraphic, telex, facsimile or
other written confirmation from such party of execution of a counterpart
hereof by such party);
(c) receipt by the Agent of a duly executed Note of the Company for the
account of each Bank dated on or before the Restatement Effective Date and
complying with the provisions of Section 2.5;
(d) receipt by the Agent of a certificate, dated the Restatement
Effective Date, signed by a principal financial officer of the Company, to
the effect that (i) no Default shall have occurred and be continuing on the
Restatement Effective Date and (ii) each of the representations and
warranties contained in this Amended Agreement is true on and as of the
Restatement Effective Date;
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(e) receipt by the Agent of an opinion of Thomas H. Hagoort, General
Counsel of the Company, dated the Restatement Effective Date, substantially
in the form of Exhibit E hereto and covering such additional matters relating
to the transactions contemplated hereby as the Required Banks may reasonably
request;
(f) receipt by the Agent of an opinion of Davis Polk & Wardwell,
special counsel for the Agent, dated the Restatement Effective Date,
substantially in the form of Exhibit F hereto and covering such additional
matters relating to the transactions contemplated hereby as the Required
Banks may reasonably request;
(g) receipt by the Agent of evidence satisfactory to it that the
Company has paid (or made arrangements satisfactory to the Agent for paying)
all amounts required to be paid by the Company on the Restatement Effective
Date pursuant to Section 11.10; and
(h) receipt by the Agent of all documents which it may reasonably
request relating to the existence of the Company, the corporate authority for
and the validity of this Amended Agreement and the Notes delivered pursuant
to clause (c) of this Section, and any other matters relevant thereto, all in
form and substance satisfactory to the Agent.
The Agent will deliver to each Bank copies of the certificates and opinions
delivered to the Agent pursuant to this Section 3.1 promptly after the
Restatement Effective Date. On the Restatement Effective Date, the Existing
Credit Agreement shall, without further action by any of the parties thereto, be
amended and restated to read in full as set forth herein; PROVIDED that the
rights and obligations of the parties to the Existing Credit Agreement with
respect to the period prior to the Restatement Effective Date shall continue to
be governed by the provisions of the Existing Credit Agreement.
SECTION 3.2. BORROWINGS. The obligation of each Bank to make a Loan
on the occasion of each Borrowing
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hereunder on and after the Restatement Effective Date is subject to the
satisfaction of the following conditions:
(a) receipt by the Agent of a Notice of Borrowing as required by
Section 2.2 or 2.3, as the case may be;
(b) the fact that, immediately after such Borrowing, the aggregate
outstanding principal amount of the Loans will not exceed the aggregate
amount of the Commitments;
(c) the fact that, immediately after such Borrowing, no Default shall
have occurred and be continuing; and
(d) the fact that each of the representations and warranties contained
in this Agreement (except in the case of a Refunding Borrowing, the
representations and warranties set forth in Sections 4.4(b) and 4.5 as to any
matter which has theretofore been disclosed in writing by the Company to the
Banks) shall be true on and as of the date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in clauses
(b), (c) and (d) of this Section.
SECTION 3.3. FIRST BORROWING BY EACH ELIGIBLE SUBSIDIARY. The
obligation of each Bank to make a Loan on the occasion of the first Borrowing by
each Eligible Subsidiary is subject to the satisfaction of the following further
conditions:
(a) receipt by the Agent for the account of each Bank of a duly
executed Note of such Eligible Subsidiary, dated on or before the date of
such Borrowing complying with the provisions of Section 2.5;
(b) receipt by the Agent of an opinion of counsel for such Eligible
Subsidiary acceptable to the Agent,
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substantially in the form of Exhibit I hereto and covering such additional
matters relating to the transactions contemplated hereby as the Required
Banks may reasonably request; and
(c) receipt by the Agent of all documents which it may reasonably
request relating to the existence of such Eligible Subsidiary, the corporate
authority for and the validity of the Election to Participate of such
Eligible Subsidiary, this Agreement and the Notes of such Eligible
Subsidiary, and any other matters relevant thereto, all in form and substance
satisfactory to the Agent.
The opinion referred to in clause (b) above shall be dated no more than five
Euro-Dollar Business Days before the date of the first Borrowing by such
Eligible Subsidiary hereunder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company represents and warrants that:
SECTION 4.1. CORPORATE EXISTENCE AND POWER. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted. The Company is duly qualified as a foreign
corporation, licensed and in good standing in each jurisdiction in the United
States of America where qualification and/or licensing is required by the nature
of its business or the character and location of its property, business or
customers and in which the failure to so qualify and/or be licensed could have a
material adverse effect on the business, financial position or results of
operations of
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the Company and its Consolidated Subsidiaries, considered as a whole.
SECTION 4.2. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO
CONTRAVENTION. The execution, delivery and performance by the Company of this
Amended Agreement and its Notes are within the Company's corporate powers, have
been duly authorized by all necessary corporate action, require no action by or
in respect of, or filing with, any governmental body, agency or official and do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or by-laws of the Company
or of any agreement, judgment, injunction, order, decree or other instrument
binding upon the Company or result in the creation or imposition of any Lien on
any asset of the Company or any of its Subsidiaries.
SECTION 4.3. BINDING EFFECT. This Amended Agreement constitutes a
valid and binding agreement of the Company and its Notes, when executed and
delivered in accordance with this Amended Agreement, will constitute valid and
binding obligations of the Company.
SECTION 4.4. FINANCIAL INFORMATION.
(a) The consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of December 31, 1994 and the related consolidated statement of
income and retained earnings and consolidated statement of cash flows for the
fiscal year then ended, reported on by Coopers and Lybrand LLP and set forth in
the Company's 1994 Form 10-K, a copy of which has been delivered to each of the
Banks, fairly present, in conformity with generally accepted accounting
principles, the consolidated financial position of the Company and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such fiscal year.
(b) Since December 31, 1994 there has been no material adverse change
in the business, financial position, results of operations or prospects of the
Company and its Consolidated Subsidiaries, considered as a whole.
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SECTION 4.5. LITIGATION. There is no action, suit or proceeding
pending against, or to the knowledge of the Company threatened against or
affecting, the Company or any of its Subsidiaries before any court or arbitrator
or any governmental body, agency or official in which there is a reasonable
possibility of an adverse decision which could materially adversely affect the
consolidated financial position, consolidated results of operations or the
business of the Company and its Consolidated Subsidiaries, considered as a
whole, or which in any manner draws into question the validity of this Amended
Agreement or the Notes.
SECTION 4.6. COMPLIANCE WITH ERISA. Each member of the ERISA Group
has fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a Lien or the posting of
a bond or other security under ERISA or the Internal Revenue Code or (iii)
incurred any liability under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA.
SECTION 4.7. TAXES. United States Federal income tax returns of the
Company and its Subsidiaries have been examined and closed through the fiscal
year ended December 31, 1986. The Company and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Company or any
Subsidiary. The charges, accruals and reserves on the books of the Company and
its Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Company, adequate.
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SECTION 4.8. SUBSIDIARIES. Each of the Company's corporate
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
SECTION 4.9. GENERAL INDEBTEDNESS, PARI PASSU STATUS. The obligations
of the Company under this Amended Agreement and its Notes are direct,
unconditional and general obligations of the Company and, except to the extent
that certain categories of indebtedness and liabilities, not constituting Debt,
may be preferred by law, rank at least PARI PASSU with all other unsecured
indebtedness (except deferred or subordinated indebtedness) and liabilities
(actual or contingent) issued, created or assumed by the Company or for which
the Company is responsible.
SECTION 4.10. COMPLIANCE WITH LAWS. The Company and each of its
Subsidiaries are in compliance with all applicable laws, rules and regulations,
other than such laws, rules or regulations as to which (i) the Company or its
Subsidiaries are contesting in good faith the validity or applicability of the
law, rule or regulation or (ii) failure to comply with the law, rule or
regulation cannot reasonably be expected to have consequences which would
materially and adversely affect the business, financial position, results of
operations or prospects of the Company and its Consolidated Subsidiaries,
considered as a whole.
SECTION 4.11. ENVIRONMENTAL MATTERS. The Company takes appropriate
steps to monitor the effect of Environmental Laws on the business, operations
and properties of the Company and its Subsidiaries, and evaluates any
liabilities and costs identified thereby (including, without limitation, any
capital or operating expenditures required for clean-up or closure of properties
presently or previously owned, any capital or operating expenditures required to
achieve or maintain compliance with environmental protection standards imposed
by law or as a condition of any license, permit or contract, any related
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constraints on operating activities, including any periodic or permanent
shutdown of any facility or reduction in the level of or change in the nature of
operations conducted thereat and any actual or potential liabilities to third
parties, including employees, and any related costs and expenses). On the
basis of this evaluation, the Company has reasonably concluded that
Environmental Laws are unlikely to have a material adverse effect on the
business, financial position, results of operations or prospects of the Company
and its Consolidated Subsidiaries, considered as a whole.
SECTION 4.12. FULL DISCLOSURE. All information heretofore furnished by
the Company to the Agent or any Bank for purposes of or in connection with this
Amended Agreement or any transaction contemplated hereby is, and all such
information hereafter furnished by the Company to the Agent or any Bank will be,
true and accurate in all material respects on the date as of which such
information is stated or certified. The Company has disclosed to the Banks in
writing any and all facts which materially and adversely affect or may affect
(to the extent the Company can now reasonably foresee) the business, operations
or financial position of the Company and its Consolidated Subsidiaries, taken as
a whole, or the ability of the Company to perform its obligations under this
Amended Agreement.
ARTICLE V
COVENANTS
The Company agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note remains unpaid:
SECTION 5.1. INFORMATION. The Company will deliver to each of the
Banks:
(a) within 90 days after the end of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Consolidated Subsidiaries
as of the
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end of such fiscal year and the related consolidated statements of income and
retained earnings and of cash flows for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year, all
reported on in a manner acceptable to the Securities and Exchange Commission
by Coopers & Lybrand LLP or other independent public accountants of nationally
recognized standing;
(b) within 90 days after the end of each fiscal year of the Company, a
consolidating balance sheet of the Company and its Consolidated Subsidiaries
as of the end of such fiscal year and the related consolidating statements of
income and retained earnings and of cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal
year, accompanied by a certificate of the chief financial officer or the
chief accounting officer of the Company to the effect that the amount shown
for each item in each of the component financial statements shown in separate
columns in such consolidating financial statements is the amount that would
be shown for such item on a corresponding financial statement of the relevant
entity or entities prepared substantially in accordance with generally
accepted accounting principles, except for adjustments reflected in the
consolidating adjustments shown on such consolidating financial statements;
(c) within 45 days after the end of each of the first three quarters of
each fiscal year of the Company, a consolidated balance sheet of the Company
and its Consolidated Subsidiaries as of the end of such quarter and the
related consolidated statements of income and retained earnings and of cash
flows for such quarter and for the portion of the Company's fiscal year ended
at the end of such quarter, setting forth in each case in comparative form
the figures for the corresponding quarter and the corresponding portion of
the Company's previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, generally accepted accounting
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principles and consistency by the chief financial officer or the chief
accounting officer of the Company;
(d) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (c) above, a certificate of the
chief financial officer, the chief accounting officer or the treasurer of the
Company (i) setting forth in reasonable detail such calculations as are
required to establish whether the Company was in compliance with the
requirements of Sections 5.6 to 5.8, inclusive, Section 5.10 and Sections
5.12 to 5.17, inclusive, on the date of such financial statements, (ii)
stating whether any Default exists on the date of such certificate and, if
any Default then exists, setting forth the details thereof and the action
which the Company is taking or proposes to take with respect thereto and
(iii) stating whether, since the date of the most recent previous delivery of
financial statements pursuant to clause (a) or (c) above, there has been any
material adverse change in the business, financial position or results of
operations or prospects of the Company and its Consolidated Subsidiaries,
considered as a whole, and, if so, the nature of such material adverse
change;
(e) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements as to
whether anything has come to their attention to cause them to believe that
(i) any Default existed on the date of such statements or (ii) the
calculations set forth in the officer's certificate delivered simultaneously
therewith pursuant to clause (d) above are not correct. Such accountants'
statement may also state that their examination was not directed primarily
towards obtaining knowledge of such matters and, as to specifically
identified covenants, would not form a basis for reasonably reliable
conclusions;
(f) within five Domestic Business Days after a Principal Officer
becomes aware of the occurrence of
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any Default, a certificate of the chief financial officer or the chief
accounting officer of the Company setting forth the details thereof and the
action which the Company is taking or proposes to take with respect thereto;
(g) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(h) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and all reports on Forms 10-K, 10-Q and 8-K
and similar reports which the Company shall have filed with the Securities
and Exchange Commission;
(i) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section
4043 of ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of
such notice; (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee to administer any
Plan, a copy of such notice (iv) applies for a waiver of the minimum funding
standard under Section 412 of the Internal Revenue Code, a copy of such
application; (v) gives notice of intent to terminate any Plan under Section
4041(c) of ERISA, a copy of such notice and other information filed with the
PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section
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4063 of ERISA, a copy of such notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit Arrangement which
has resulted or could result in the imposition of a Lien or the posting of a
bond or other security, a certificate of the chief financial officer or the
chief accounting officer of the Company setting forth details as to such
occurrence and action, if any, which the Company or applicable member of the
ERISA Group is required or proposes to take; and
(j) as soon as reasonably practicable after a Principal Officer obtains
knowledge thereof, notice of the commencement of, or of a material threat of
the commencement of, any action, suit or proceeding against the Company or
any of its Subsidiaries before any court or arbitrator or any governmental
body, agency or official in which, in the opinion of the Company, there is a
reasonable possibility of an adverse decision which could materially
adversely affect the business, consolidated financial position or
consolidated results of operations of the Company and its Consolidated
Subsidiaries, taken as a whole, or which in any manner questions the validity
of this Agreement or the Notes, together with such additional information
about such pending or threatened action, suit or proceeding as may be
reasonably requested by any Bank;
(k) as soon as reasonably practicable after a Principal Officer obtains
knowledge thereof, notice of any Lien or threatened Lien securing an amount
(net of any applicable insurance) exceeding 25% of Consolidated Tangible Net
Worth; and
(l) from time to time such additional information regarding the
financial position or business of the Company as the Agent, at the request of
any Bank, may reasonably request.
SECTION 5.2. PAYMENT OF OBLIGATIONS. The Company will, and will cause
each of its Subsidiaries to,
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pay and discharge, at or before maturity, (i) all lawful taxes, assessments and
governmental charges or levies upon it or its property or assets, and (ii) all
claims or demands of materialmen, mechanics, carriers, warehousemen, landlords
and other like Persons which, in any such case, if unpaid, might by law give
rise to a Lien upon any of its property or assets, except where any of the items
in (i) or (ii) may be contested in good faith by appropriate proceedings, and
the Company or Subsidiary, as the case may be, shall have set aside on its
books, in accordance with generally accepted accounting principles, appropriate
reserves for the accrual of any such items.
SECTION 5.3. MAINTENANCE OF PROPERTY; INSURANCE. The Company will
keep, and will cause each of its Subsidiaries to keep, all property useful and
necessary in its business in good working order and condition; will maintain and
will cause each Subsidiary to maintain (either in the name of the Company or in
such Subsidiary's own name) with responsible insurance companies, insurance on
all its property for an amount not less than 90% of the replacement cost thereof
against at least such risks (and with such risk retention) as are usually
insured against in the same general area by companies of established repute
engaged in the same or a similar business; and will furnish to the Banks, upon
written request from the Agent, full information as to the insurance carried.
SECTION 5.4. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. The
Company will preserve, renew and keep in full force and effect its corporate
existence and its rights, privileges and franchises necessary or desirable in
the normal conduct of its business.
SECTION 5.5. INSPECTION OF PROPERTY, BOOKS AND RECORDS. The Company
will keep, and will cause each Subsidiary to keep, proper books of record and
account in which full, true and correct entries in conformity with generally
accepted accounting principles shall be made of all dealings and transactions in
relation to its business and activities. The Company will permit, and will
cause each Subsidiary to permit, representatives of any Bank to
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visit and inspect any of their respective properties, to examine and make
abstracts from any of their respective books and records and to discuss their
respective affairs, finances and accounts with their respective officers,
employees and independent public accountants, all at such reasonable times and
as often as may reasonably be desired, PROVIDED that nothing in this Section 5.5
shall require the Company to disclose any confidential or proprietary
information and PROVIDED further that appropriate advance arrangements for any
such visit, inspection or examination shall be made with a Principal Officer.
SECTION 5.6. SUBSIDIARY DEBT. The sum of (i) the total Debt of all
Consolidated Subsidiaries (excluding all Loans outstanding hereunder and all
Debt of a Consolidated Subsidiary to the Company or to a Wholly-Owned
Consolidated Subsidiary) plus (ii) the aggregate unliquidated amount of all
Receivables theretofore sold by all Consolidated Subsidiaries (excluding
Receivables sold to the Company or to a Wholly-Owned Consolidated Subsidiary)
will at no time exceed $125,000,000.
SECTION 5.7. NEGATIVE PLEDGE. Neither the Company nor any
Consolidated Subsidiary will create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it, except:
(a) Liens existing on March 31, 1995 securing Debt outstanding on March
31, 1995 in an aggregate principal amount not exceeding $3,000,000 (exclusive
of Liens permitted by subsection (h) hereof);
(b) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset,
PROVIDED that such Lien attaches to such asset concurrently with or within
180 days after the acquisition thereof;
(c) any Lien existing on any asset of any corporation at the time such
corporation becomes a Consolidated Subsidiary and not created in
contemplation of such event;
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(d) any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into the Company or a
Consolidated Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof by
the Company or a Consolidated Subsidiary and not created in contemplation of
such acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, PROVIDED that such Debt is not increased and is not
secured by any additional assets;
(g) any Lien on any Receivable which is sold pursuant to Section 5.12
securing the purchase price of such Receivable;
(h) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt in an aggregate principal amount outstanding not to
exceed 5% of Consolidated Tangible Net Worth; and
(i) any other Lien arising in the ordinary course of its business which
(i) does not secure Debt and (ii) does not secure claims or obligations as to
which the Required Banks reasonably determine after consultation with the
Company that the Company or a Consolidated Subsidiary is or will become
obligated to pay an aggregate amount (net of any applicable insurance)
exceeding 25% of Consolidated Tangible Net Worth.
SECTION 5.8. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The Company
will not, and will not permit any Subsidiary to, consolidate or merge with, or
sell, lease or otherwise dispose of any of its assets to, any Person, except
that:
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(a) the Company may merge with any Person; PROVIDED that the surviving
corporation is the Company;
(b) any Subsidiary may consolidate or merge with any Person, PROVIDED
that (i) the surviving corporation is the Company or a Wholly-Owned
Consolidated Subsidiary and (ii) if such Subsidiary is a Borrower, the
surviving corporation remains liable for such Borrower's obligations
hereunder and under its Notes;
(c) any Subsidiary may sell, lease or otherwise dispose of any of its
assets to the Company or any Wholly-Owned Consolidated Subsidiary, PROVIDED
that the assets (or the value of the assets) so sold, leased or otherwise
disposed of may, under applicable law, be remitted to the acquiring entity
within 180 days thereafter without the payment of any taxes or other charges
as a result of such remittance;
(d) the Company may sell, lease or otherwise dispose of any of its
assets to any Subsidiary for cash equal to not less than the fair value of
such assets, PROVIDED that such cash is freely transferable to the United
States of America and if in a foreign currency is freely convertible into
Dollars;
(e) the Company or any Subsidiary may sell, lease or otherwise dispose
of any of its inventory in the ordinary course of business and any of its
assets which are obsolete, excess or unserviceable;
(f) the Company, Albany International Canada, Inc., Albany
International S.A. and Albany International Industria e Comercio Ltda. may
sell Receivables for cash pursuant to Section 5.12; and
(g) the Company or any Subsidiary may sell, lease or otherwise dispose
of any of its assets for fair value (other than as permitted by clauses (a)
to (f) inclusive), PROVIDED that the aggregate net book value of all assets
of the Company and its Subsidiaries sold, leased or otherwise disposed of
during any fiscal year
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of the Company pursuant to this clause (g) shall not exceed 15% of the
consolidated net book value of all assets of the Company and its Subsidiaries
at the end of the preceding fiscal year.
SECTION 5.9. TRANSACTIONS WITH AFFILIATES. The Company will not, and
will not permit any Subsidiary to, directly or indirectly, pay any funds to or
for the account of, make any investment in, engage in any transaction with or
effect any transaction in connection with any joint enterprise or other joint
arrangement with, any Affiliate (other than the Company or a Wholly-Owned
Consolidated Subsidiary), except that
(a) the Company may declare and pay any dividend permitted by Section
5.10;
(b) the Company or any Subsidiary may make payments of principal,
interest and premium on any Debt of the Company or such Subsidiary held by an
Affiliate if the terms of such Debt are substantially as favorable to the
Company or such Subsidiary as the terms which could have been obtained at the
time of the creation of such Debt from a lender which was not an Affiliate;
(c) the Company or any Subsidiary may make payments or provide
compensation for services rendered by any Affiliate who is an officer,
director or employee of the Company or any Subsidiary;
(d) the Company or any Subsidiary may make any Investment permitted by
Section 5.14; and
(e) the Company or any Subsidiary may make sales to or purchases from
any Affiliate and, in connection therewith, extend credit, may make payments
or provide compensation for services rendered by any Affiliate, and may
engage in any other transaction with any Affiliate, if such sales or
purchases are made or such services are rendered or such transaction is on
terms and conditions at least as favorable to the Company or
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such Subsidiary as the terms and conditions which would apply in a similar
transaction with a Person not an Affiliate.
SECTION 5.10. RESTRICTED PAYMENTS. (a) The Company will not, and will
not permit any Subsidiary to, declare or make any Restricted Payment unless,
immediately after giving effect to such Restricted Payment, no Default shall
have occurred and be continuing and either
(A) the sum of all Restricted Payments (including such Restricted
Payment, but excluding any prior Restricted Payment to the extent that it was
permitted solely by reason of clause (B) of this Section) made during the
period of four consecutive fiscal quarters ending with the fiscal quarter in
which such Restricted Payment is to be made will not exceed 50% of
Consolidated Net Income for the period of four consecutive fiscal quarters
ending with the fiscal quarter immediately preceding the fiscal quarter in
which such Restricted Payment is to be made or
(B) the sum of all Restricted Payments (including such Restricted
Payment) made after December 31, 1994 that were not permitted by the
foregoing clause (A) would not exceed the sum of (i) $35,000,000 and (ii) the
aggregate Value of all treasury stock of the Company transferred in a
transaction constituting a Treasury Stock Transfer after June 30, 1994.
For purposes of this Section 5.10, a "Treasury Stock Transfer" means (i) any
contribution of treasury stock of the Company to its Employee Stock Ownership
Plan, (ii) any transfer of treasury stock of the Company to any Person (other
than an Affiliate) as consideration for an Investment permitted by Section 5.14
or (iii) any sale of treasury stock of the Company for cash to any Person (other
than an Affiliate). The "Value" of each share of treasury stock transferred in
a Treasury Stock Transfer shall be determined at the time of its transfer and
shall be the fair market value thereof in the case of items (i) and (ii) of the
definition of Treasury Stock Transfer and the net cash
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proceeds received from the sale thereof in the case of item (iii) of such
definition.
(b) Notwithstanding the foregoing, this Section 5.10 shall not prevent
or restrict (i) payment of a dividend within 90 days after its declaration if
payment thereof would have been permitted at the declaration date or (ii)
declaration or payment of stock dividends or stock splits.
SECTION 5.11. COMPLIANCE WITH LAWS. The Company will comply, and
cause each Subsidiary to comply, in all material respects with all applicable
laws, ordinances, rules, regulations, and requirements of governmental
authorities (including, without limitation, Environmental Laws and ERISA and the
rules and regulations thereunder) except where the necessity of compliance
therewith is contested in good faith by appropriate proceedings.
SECTION 5.12. SALE OF RECEIVABLES. The Company will not, and will not
permit any Subsidiary to, sell or in any manner dispose of any Receivables,
except that
(i) each of Albany International S.A. and Albany International
Industria e Comercio may sell its Receivables, PROVIDED that the aggregate
unliquidated amount of all Receivables sold by Albany International S.A. and
Albany International Industria e Comercio shall not at any time exceed
$5,000,000; and
(ii) the Company may sell its Receivables, PROVIDED that the aggregate
unliquidated amount of all Receivables sold by the Company shall not at any
time exceed $40,000,000.
SECTION 5.13. LIMITATIONS ON SALE-LEASEBACKS. The Company will not,
and will not permit any Subsidiary to, enter into any arrangement, directly or
indirectly, with any Person whereby the Company or such Subsidiary shall after
December 31, 1994 sell or transfer property whether now owned or hereafter
acquired, and then or thereafter rent or lease as lessee such property or any
part thereof or any other property which the Company or any Subsidiary intends
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to use for substantially the same purpose or purposes as the property being sold
or transferred, unless after giving effect to any such sale or transfer, the
aggregate fair market value of all property of the Company and its Subsidiaries
so sold or transferred after December 31, 1994 does not exceed $25,000,000.
SECTION 5.14. LIMITATIONS ON INVESTMENTS. The Company will not, and
will not permit any Subsidiary to, make any Investment except:
(a) Temporary Cash Investments;
(b) Loans and advances to the Company or any Subsidiary, PROVIDED that,
in the case of a loan or advance to any Subsidiary, repayment of such loan or
advance by such Subsidiary is not prohibited or materially restricted by any
applicable exchange control regulations or other laws or regulations;
(c) Permitted Deposits and Permitted Acceptances;
(d) any Investment in a Person which is or by reason of such Investment
becomes a Consolidated Subsidiary and which is engaged in a Related Business;
PROVIDED that, immediately after such Investment is made, the aggregate Net
Unrecovered Amount of all Investments made pursuant to this clause (d) after
December 31, 1994 shall not exceed $150,000,000; and
(e) any additional Investment not otherwise permitted by clauses (a)
through (d) if, immediately after giving effect thereto, the aggregate Net
Unrecovered Amount of all Investments made pursuant to this clause (e) does
not exceed $10,000,000.
SECTION 5.15. CASH FLOW TO TOTAL DEBT RATIO. The Cash Flow to Total
Debt Ratio will, at the end of each fiscal quarter of the Company ending (y)
prior to December 31, 1995, be greater than 0.18 to 1, and (z) on or after
December 31, 1995, be greater than 0.20 to 1.
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SECTION 5.16. CONSOLIDATED TANGIBLE NET WORTH. At no time will (i)
the sum of (x) Consolidated Tangible Net Worth plus (y) an amount equal to the
lesser of (A) the aggregate purchase price of all common stock of the Company
repurchased by it after September 30, 1994 and (B) $35,000,000 be less than (ii)
$225,000,000 increased, at the end of each fiscal quarter of the Company
commencing with its fiscal quarter ending on March 31, 1995, by an amount equal
to 50% of Consolidated Net Income (if a positive number) for such fiscal
quarter.
SECTION 5.17. INTEREST COVERAGE RATIO. The Interest Coverage Ratio
will, at the end of each fiscal quarter of the Company, be greater than 4.0 to
1.
SECTION 5.18. USE OF PROCEEDS. The proceeds of Borrowings under this
Amended Agreement will be used (i) on the Restatement Effective Date, to repay
outstanding loans under the Existing Credit Agreement, as in effect immediately
before the Restatement Effective Date, and (ii) for general corporate purposes
of the Company and its Subsidiaries. None of the proceeds of the Loans will be
used in violation of any applicable law or regulation and, without limiting the
generality of the foregoing, no use of such proceeds will include any use
thereof, directly or indirectly, for the purpose, whether immediate, incidental
or ultimate, of purchasing or carrying any "margin stock" within the meaning of
Regulation U (except that the Company or any of its Subsidiaries may use the
proceeds of the Loans to purchase or carry shares of common stock of the
Company). The Company will not engage principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying any such "margin stock".
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ARTICLE VI
DEFAULTS
SECTION 6.1. EVENTS OF DEFAULT. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) any principal of any Loan shall not be paid when due, or any
interest, fees or other amounts payable hereunder shall not be paid within
five days of the due date thereof;
(b) the Company shall fail to observe or perform any covenant
contained in Section 5.1(f) or Sections 5.6 to 5.8, inclusive, Section 5.10
or Sections 5.12 to 5.18, inclusive; PROVIDED that, if the Required Banks
make a determination which causes a Lien that would otherwise be permitted
by clause (i) of Section 5.7 to be prohibited by Section 5.7, such Lien
shall not constitute an Event of Default unless it continues to exist for
30 days after written notice of such determination has been given to the
Company by the Agent at the request of the Required Banks;
(c) any Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause
(a) or (b) above) for 10 days after written notice thereof has been given
to the Company by the Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made by
any Borrower in this Agreement or in any certificate, financial statement
or other document delivered pursuant to this Agreement shall prove to have
been incorrect in any material respect when made (or deemed made);
(e) the Company or any Subsidiary shall fail to make any payment in
respect of any Debt (other than Debt outstanding under this Agreement) with
an outstanding aggregate principal amount in excess of
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$500,000 when due or within any applicable grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Debt of the Company or any Subsidiary
with an outstanding aggregate principal amount in excess of $500,000, or
enables the holder of such Debt or any Person acting on such holder's
behalf to accelerate the maturity thereof;
(g) the Company or any Subsidiary shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, or shall consent to any such relief
or to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally to
pay its debts as they become due, or shall take any corporate action to
authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Company or any Subsidiary seeking liquidation, reorganization
or other relief with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed
for a period of 30 days; or an order for relief shall be entered against
the Company or any Subsidiary under the federal bankruptcy laws as now or
hereafter in effect;
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(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $500,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA
to terminate, to impose liability (other than for premiums under Section
4007 of ERISA) in respect of, or to cause a trustee to be appointed to
administer any Material Plan; or a condition shall exist by reason of which
the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or
partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $1,000,000;
(j) a judgment or order for the payment of money in excess of
$500,000 shall be rendered against the Company or any Subsidiary and such
judgment or order shall continue unsatisfied and unstayed for a period of
10 days;
(k) in any jurisdiction any governmental action is taken which
interferes with the ability of the Company or any Subsidiary to carry on
its business and which thereby has a material adverse effect on the
business, financial position, results of operations or prospects of the
Company and its Consolidated Subsidiaries, considered as a whole;
(l) any substantial part of the assets, revenues or share capital of
the Company or any Subsidiary is expropriated or nationalized by any
government and such expropriation or nationalization has a material adverse
effect on the business, financial position, results of operations or
prospects of the Company and its Consolidated Subsidiaries, considered as a
whole; or
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(m) at a time when J. Spencer Standish does not directly or
indirectly have the power to cast more than 50% of the votes entitled to be
cast for the election of directors of the Company, any person or "group" of
persons (within the meaning of "group" as used in Section 13 or 14 of the
Securities Exchange Act of 1934, as amended), exclusive of persons who are
Permitted Shareholders, shall have beneficial ownership (within the meaning
of Rule 13d-3 promulgated by the Securities and Exchange Commission under
said Act) of shares entitling the holders thereof to cast 30% or more of
the votes for the election of directors of the Company; or Continuing
Directors no longer constitute a majority of the board of directors of the
Company;
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Commitments, by notice to the Company
terminate the Commitments with respect to any or all of the Borrowers, and they
shall thereupon terminate, and (ii) if requested by Banks holding Notes
evidencing more than 50% in aggregate principal amount of the Loans, by notice
to the Company declare the Notes of any or all of the Borrowers (together with
accrued interest thereon) to be, and such Notes shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by each Borrower; PROVIDED that in
the case of any of the Events of Default specified in clause (g) or (h) above
with respect to any Borrower, without any notice to the Company or any other act
by the Agent or the Banks, the Commitments with respect to such Borrower shall
thereupon terminate and the Notes of such Borrower (together with accrued
interest thereon) shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
each Borrower, and PROVIDED further that, if any event specified in clauses (e)
through (l) inclusive shall have occurred only in relation to a Subsidiary
(other than a Borrower), the Agent shall not serve such a notice unless such
event would in the reasonable opinion of the Required Banks have a material
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adverse effect on the ability of the Borrowers to perform their obligations
under this Agreement.
SECTION 6.2. NOTICE OF DEFAULT. The Agent shall give notice to the
Company under Section 6.1(c) promptly upon being requested to do so by any Bank
and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.1. APPOINTMENT AND AUTHORIZATION. Each Bank irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the Notes as are delegated to
the Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
SECTION 7.2. AGENT AND AFFILIATES. Morgan Guaranty Trust Company of
New York shall have the same rights and powers under this Agreement as any other
Bank and may exercise or refrain from exercising the same as though it were not
the Agent, and Morgan Guaranty Trust Company of New York and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with any Borrower or any Subsidiary or affiliate of any Borrower as if
it were not the Agent hereunder.
SECTION 7.3. ACTION BY AGENT. The obligations of the Agent
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Agent shall not be required to take any action
with respect to any Default, except as expressly provided in Article VI.
SECTION 7.4. CONSULTATION WITH EXPERTS. The Agent may consult with
legal counsel (who may be counsel for any Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in
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accordance with the advice of such counsel, accountants or experts.
SECTION 7.5. LIABILITY OF AGENT. Neither the Agent nor any of its
directors, officers, agents, or employees shall be liable for any action taken
or not taken by it in connection herewith (i) with the consent or at the request
of the Required Banks or (ii) in the absence of its own gross negligence or
willful misconduct. Neither the Agent nor any of its directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into or verify (i) any statement, warranty or representation made in
connection with this Agreement or any borrowing hereunder; (ii) the performance
or observance of any of the covenants or agreements of any Borrower; (iii) the
satisfaction of any condition specified in Article III, except receipt of items
required to be delivered to the Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement, the Notes or any other instrument or writing
furnished in connection herewith. The Agent shall not incur any liability by
acting in reliance upon any notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex, facsimile transmission or similar
writing) believed by it to be genuine or to be signed by the proper party or
parties.
SECTION 7.6. INDEMNIFICATION. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent (to the extent not
reimbursed by the Borrowers) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from the Agent's gross negligence or willful misconduct) that the Agent
may suffer or incur in connection with this Agreement or any action taken or
omitted by the Agent hereunder.
SECTION 7.7. CREDIT DECISION. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will,
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independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking any action
under this Agreement.
SECTION 7.8. SUCCESSOR AGENT. The Agent may resign at any time by
giving written notice thereof to the Banks and the Company. Upon any such
resignation, the Required Banks shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the Required
Banks, and shall have accepted such appointment, within 30 days after the
retiring Agent gives notice of resignation, then the retiring Agent may, on
behalf of the Banks, appoint a successor Agent, which shall be a commercial bank
organized or licensed under the laws of the United States of America or of any
State thereof and having a combined capital and surplus of at least $50,000,000.
Upon the acceptance of its appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Article shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent.
SECTION 7.9. AGENCY FEES. The Company shall pay fees to the Agent
in the amounts and on the dates heretofore agreed to by the Company and the
Agent.
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ARTICLE VIII
CHANGE IN CIRCUMSTANCES
AFFECTING FIXED RATE LOANS
SECTION 8.1. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR
UNFAIR. If on or prior to the first day of any Interest Period for any Fixed
Rate Borrowing:
(a) the Agent is advised by the Euro-Dollar Reference Bank that
deposits in dollars (in the applicable amounts) are not being offered to
the Euro-Dollar Reference Bank in the relevant market for such Interest
Period, or
(b) in the case of a Euro-Dollar Borrowing, Banks having 50% or more
of the aggregate amount of the Commitments advise the Agent that the London
Interbank Offered Rate as determined by the Agent will not adequately and
fairly reflect the cost to such Banks of funding their Euro-Dollar Loans
for such Interest Period,
the Agent shall forthwith give notice thereof to the Company and the Banks,
whereupon until the Agent notifies the Company that the circumstances giving
rise to such suspension no longer exist (which it shall promptly do when it is
advised or determines that such circumstances have ceased to exist or, in the
case of clause (b) above, when the Agent is so notified by Banks having 50% or
more of the aggregate amount of the Commitments), the obligations of the Banks
to make Euro-Dollar Loans shall be suspended. Unless the Borrower notifies the
Agent at least two Domestic Business Days before the date of any Fixed Rate
Borrowing for which a Notice of Borrowing has previously been given (and with
respect to which a notice has been given under this Section 8.1) that it elects
not to borrow on such date, (i) if such Fixed Rate Borrowing is a Committed
Borrowing, such Borrowing shall instead be made as a Base Rate Borrowing and
(ii) if such Fixed Rate Borrowing is a Money Market LIBOR Borrowing, the Money
Market LIBOR Loans comprising such Borrowing shall bear interest for each day
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from and including the first day to but excluding the last day of the Interest
Period applicable thereto at the Base Rate for such day.
SECTION 8.2. ILLEGALITY. If, after March 31, 1995, the adoption of
any applicable law, rule or regulation, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Euro-Dollar Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for any Bank (or its Euro-Dollar Lending Office) to make, maintain
or fund its Euro-Dollar Loans to any Borrower and such Bank shall so notify the
Agent, the Agent shall forthwith give notice thereof to the other Banks and the
Company, whereupon until such Bank notifies the Company and the Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Bank to make Euro-Dollar Loans to such Borrower shall be suspended. Before
giving any notice to the Agent pursuant to this Section, such Bank shall
designate a different Euro-Dollar Lending Office if such designation will avoid
the need for giving such notice and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. If such Bank shall determine that it
may not lawfully continue to maintain and fund any of its outstanding
Euro-Dollar Loans to such Borrower to maturity and shall so specify in such
notice, such Borrower shall immediately prepay in full the then outstanding
principal amount of each such Euro-Dollar Loan, together with accrued interest
thereon. Concurrently with prepaying each such Euro-Dollar Loan, such Borrower
shall borrow a Base Rate Loan in an equal principal amount from such Bank (on
which interest and principal shall be payable contemporaneously with the related
Euro-Dollar Loans of the other Banks), and such Bank shall make such a Base Rate
Loan.
SECTION 8.3. INCREASED COST AND REDUCED RETURN. (a) If, on or
after (x) March 31, 1995, in the case of any
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Committed Loan or any obligation to make Committed Loans or (y) the date of the
related Money Market Quote, in the case of any Money Market Loan, the adoption
of any applicable law, rule or regulation, or any change therein, or any change
in the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency:
(i) shall subject any Bank (or its Applicable Lending Office) to any
tax, duty or other charge with respect to its Fixed Rate Loans, its Notes
or its obligation to make Fixed Rate Loans, or shall change the basis of
taxation of payments to any Bank (or its Applicable Lending Office) of the
principal of or interest on its Fixed Rate Loans or any other amounts due
under this Agreement in respect of its Fixed Rate Loans or its obligation
to make Fixed Rate Loans (except for changes in the rate of tax on the
overall net income of such Bank or its Applicable Lending Office imposed by
the jurisdiction in which such Bank's principal executive office or
Applicable Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding with respect to any Euro-Dollar Loan any such
requirement with respect to which such Bank is entitled to compensation
during the relevant Interest Period under Section 2.15) against assets of,
deposits with or for the account of, or credit extended by, any Bank (or
its Applicable Lending Office) or shall impose on any Bank (or its
Applicable Lending Office) or on the London interbank market any other
condition affecting its Fixed Rate Loans, its Notes or its obligation to
make Fixed Rate Loans;
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and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making or maintaining any Fixed Rate Loan, or
to reduce the amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under its Notes with respect
thereto, by an amount deemed by such Bank to be material, then, within 15 days
after demand by such Bank (with a copy to the Agent), the Company shall pay to
such Bank such additional amount or amounts as will compensate such Bank for
such increased cost or reduction.
(b) If, after March 31, 1995, any Bank shall have determined that the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Bank (or
its Applicable Lending Office) with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within 15 days after
demand by such Bank (with a copy to the Agent), the Company shall pay to such
Bank such additional amount or amounts as will compensate such Bank (or its
Parent) for such reduction.
(c) Each Bank will promptly notify the Company and the Agent of any
event of which it has knowledge, occurring after March 31, 1995 which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of
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any Bank claiming compensation under this Section and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount, such Bank may use
any reasonable averaging and attribution methods.
SECTION 8.4. BASE RATE LOANS SUBSTITUTED FOR AFFECTED FIXED RATE
LOANS. If (i) the obligation of any Bank to make Euro-Dollar Loans to any
Borrower has been suspended pursuant to Section 8.2 or (ii) any Bank has
demanded compensation under Section 8.3(a) and the Borrower shall, by at least
five Euro-Dollar Business Days' prior notice to such Bank through the Agent,
have elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Company that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
(a) all Loans to such Borrower which would otherwise be made by such
Bank as Euro-Dollar Loans shall be made instead as Base Rate Loans (on
which interest and principal shall be payable contemporaneously with the
related Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans to such Borrower has been
repaid, all payments of principal which would otherwise be applied to repay
such Euro-Dollar Loans shall be applied to repay its Base Rate Loans
instead.
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ARTICLE IX
REPRESENTATIONS AND WARRANTIES
OF ELIGIBLE SUBSIDIARIES
Each Eligible Subsidiary shall be deemed by the execution and delivery
of its Election to Participate to have represented and warranted to the Banks as
of the date thereof that:
SECTION 9.1. CORPORATE EXISTENCE AND POWER. It is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and is a Wholly-Owned Consolidated Subsidiary of
the Company.
SECTION 9.2. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO
CONTRAVENTION. The execution and delivery by it of its Election to Participate
and its Notes, and the performance by it of this Agreement and its Notes, are
within its corporate powers, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene, or constitute a
default under, any provision of applicable law or regulation or of its organic
documents or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or such Eligible Subsidiary or result in the
creation or imposition of any Lien on any asset of the Company or any of its
Subsidiaries.
SECTION 9.3. BINDING EFFECT. This Agreement constitutes a valid and
binding agreement of such Eligible Subsidiary and its Notes, when executed and
delivered in accordance with this Agreement, will constitute valid and binding
obligations of such Eligible Subsidiary.
SECTION 9.4. TAXES. Except as disclosed in such Election to
Participate, there is no income, stamp or other tax of any country, or any
taxing authority thereof or therein, imposed by or in the nature of withholding
or otherwise, which is imposed on any payment to be made by
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such Eligible Subsidiary pursuant hereto or on its Notes, or is imposed on or by
virtue of the execution, delivery or enforcement of its Election to Participate
or of its Notes.
SECTION 9.5. GENERAL INDEBTEDNESS, PARI PASSU STATUS. The
obligations of such Eligible Subsidiary under this Agreement and its Notes are
direct, unconditional and general obligations of such Eligible Subsidiary and,
except to the extent that certain categories of indebtedness and liabilities,
not constituting Debt, may be preferred by law, rank at least PARI PASSU with
all other unsecured indebtedness (except deferred or subordinated indebtedness)
and liabilities (actual or contingent) issued, created or assumed by such
Eligible Subsidiary or for which it is responsible.
ARTICLE X
GUARANTY
SECTION 10.1. THE GUARANTY. The Company hereby unconditionally
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Note issued
by each Eligible Subsidiary pursuant to this Agreement, and the full and
punctual payment of all other amounts payable by each Eligible Subsidiary under
this Agreement. Upon failure by any Eligible Subsidiary to pay punctually any
such amount, the Company shall forthwith on demand pay the amount not so paid at
the place and in the manner specified in this Agreement.
SECTION 10.2. GUARANTY UNCONDITIONAL. The obligations of the Company
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of any Eligible Subsidiary under this
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Agreement or any of its Notes, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this Agreement
or any Note;
(iii) any release, non-perfection or invalidity of any direct or
indirect security for any obligation of any Eligible Subsidiary under this
Agreement or any of its Notes;
(iv) any change in the corporate existence, structure or ownership of
any Eligible Subsidiary, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting any Eligible Subsidiary or its assets or
any resulting release or discharge of any obligation of any Eligible
Subsidiary contained in this Agreement or any of its Notes;
(v) the existence of any claim, set-off or other rights which the
Company may have at any time against any Eligible Subsidiary, the Agent,
any Bank or any other Person, whether in connection herewith or any
unrelated transactions, PROVIDED that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against any
Eligible Subsidiary for any reason of this Agreement or any of its Notes,
or any provision of applicable law or regulation purporting to prohibit the
payment by any Eligible Subsidiary of the principal of or interest on any
of its Notes or any other amount payable by it under this Agreement, or any
delivery of an Election to Terminate by any Eligible Subsidiary; or
(vii) any other act or omission to act or delay of any kind by any
Eligible Subsidiary, the Agent, any Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the Company's
obligations hereunder.
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SECTION 10.3. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN
CERTAIN CIRCUMSTANCES. The Company's obligations hereunder shall remain in full
force and effect until the Commitments shall have terminated and the principal
of and interest on the Notes and all other amounts payable by the Company and
each Eligible Subsidiary under this Agreement shall have been paid in full. If
at any time any payment of the principal of or interest on any Note or any other
amount payable by any Eligible Subsidiary under this Agreement is rescinded or
must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of any Eligible Subsidiary or otherwise, the Company's
obligations hereunder with respect to such payment shall be reinstated at such
time as though such payment had been due but not made at such time.
SECTION 10.4. WAIVER BY THE COMPANY. The Company irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against any Eligible Subsidiary or any other Person.
SECTION 10.5. SUBROGATION. Upon making any payment with respect to
any Eligible Subsidiary under this Article X, the Company shall be subrogated to
the rights of the payee against such Eligible Subsidiary with respect to such
payment; PROVIDED that the Company shall not enforce any payment by way of
subrogation until any Commitment of the Banks to such Eligible Subsidiary shall
have been terminated and all amounts of principal of and interest on the Notes
of such Eligible Subsidiary and all other amounts payable by such Eligible
Subsidiary under this Agreement have been paid in full.
SECTION 10.6. STAY OF ACCELERATION. If acceleration of the time for
payment of any amount payable by any Eligible Subsidiary under this Agreement or
its Notes is stayed upon insolvency, bankruptcy or reorganization of such
Eligible Subsidiary, all such amounts otherwise subject to acceleration under
the terms of this Agreement shall nonetheless be payable by the Company
hereunder forthwith on
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demand by the Agent made at the request of the Required Banks.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. NOTICES. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (w) in the case of the Company or the Agent, at its address, facsimile
number or telex number set forth on the signature pages hereof; (x) in the case
of any Eligible Subsidiary, at its address, facsimile number or telex number set
forth in its Election to Participate; (y) in the case of any Bank, at its
address, facsimile number or telex number set forth in its Administrative
Questionnaire; or (z) in the case of any party, such other address, facsimile
number or telex number as such party may hereafter specify for the purpose by
notice to the Agent and the Company. Each such notice, request or other
communication shall be effective (i) if given by telex, when such telex is
transmitted to the telex number specified in this Section and the appropriate
answerback is received, (ii) if given by facsimile transmission, when
transmitted to the facsimile number specified in this Section and confirmation
of receipt is received, (iii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iv) if given by any other means, when delivered at
the address specified in this Section; PROVIDED that notices to the Agent under
Article II or Article VIII shall not be effective until received.
SECTION 11.2. NO WAIVERS. No failure or delay by the Agent or any
Bank in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The
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rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
SECTION 11.3. EXPENSES; DOCUMENTARY TAXES; INDEMNIFICATION. (a) The
Company shall pay (i) all out-of-pocket expenses of the Agent, including fees
and disbursements of special counsel for the Agent, in connection with the
preparation and administration of this Amended Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all out-of-pocket expenses incurred by
the Agent or any Bank, including fees and disbursements of counsel (who may be
employees of such Bank, provided that any allocation of such expenses is made in
accordance with such Bank's customary practice), in connection with such Event
of Default and collection and other enforcement proceedings resulting therefrom.
The Company shall indemnify each Bank against any transfer taxes, documentary
taxes, assessments or charges made by any governmental authority by reason of
the execution and delivery of this Agreement, any Election to Participate or
Election to Terminate or any Note or any amendment hereof or thereof.
(b) The Company agrees to indemnify each Bank and hold each Bank
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel (who may be employees of such Bank, provided that any
allocation of such expenses is made in accordance with such Bank's customary
practice), which may be incurred by any Bank (or by the Agent in connection with
its actions as Agent hereunder) in connection with any investigative,
administrative or judicial proceeding (whether or not such Bank shall be
designated a party thereto) relating to or arising out of this Agreement or any
actual or proposed use of proceeds of Loans hereunder; PROVIDED that no Bank
shall have the right to be indemnified hereunder for its own gross negligence or
willful misconduct as determined by a court of competent jurisdiction.
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SECTION 11.4. RIGHT OF SET-OFF; SHARING OF SET-OFFS. (a) If (i) an
Event of Default has occurred and is continuing and (ii) Banks holding Notes
evidencing more than 50% in aggregate principal amount of the Loans have
requested the Agent to declare the Notes forthwith due and payable pursuant to
Section 6.1, or the Notes have become due and payable without notice as provided
in Section 6.1, then each Bank is hereby authorized at any time and from time to
time, to the extent permitted by applicable law, without notice to any Borrower
(any such notice being expressly waived by each Borrower), to set off and apply
all deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Bank to or for the
credit or the account of any Borrower against any and all of the obligations of
such Borrower now or hereafter existing to such Bank under this Agreement or
under its Notes, irrespective of whether or not the Bank shall have made any
demand under this Agreement or such Notes. Each Bank agrees promptly to notify
the Borrower after any such set-off and application made by such Bank, PROVIDED
that the failure to give such notice shall not affect the validity of such
setoff and application. The rights of the Banks under this Section are in
addition to any other rights and remedies which the Banks may have.
(b) Each Bank agrees that if it shall, by exercising any right of
set-off or counterclaim or otherwise, receive payment of a proportion of the
aggregate amount of principal and interest due with respect to any Note of a
Borrower held by it which is greater than the proportion received by any other
Bank in respect of the aggregate amount of principal and interest due with
respect to any Note of the same Borrower held by such other Bank, the Bank
receiving such proportionately greater payment shall purchase such
participations in the Notes of such Borrower held by the other Banks, and such
other adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Notes of such Borrower held by the
Banks shall be shared by the Banks pro rata; PROVIDED that (i) if all or a part
of such proportionately greater payment is thereafter recovered from such Bank,
the purchase of such participations shall be
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rescinded, and the purchase prices paid therefor returned (without interest) to
such Bank, to the extent of such recovery and (ii) nothing in this Section shall
impair the right of any Bank to exercise any right of set-off or counterclaim it
may have and to apply the amount subject to such exercise to the payment of
indebtedness of a Borrower other than its indebtedness under its Notes. Each
Borrower agrees, to the fullest extent it may effectively do so under applicable
law, that any holder of a participation in one of its Notes, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of set-off
or counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of such Borrower in the
amount of such participation.
SECTION 11.5. INCREASED COMMITMENTS; ADDITIONAL BANKS. (a) At any
time after the Restatement Effective Date, if no Default has occurred and is
continuing, the Company may, upon at least 30 days' notice to the Agent and the
Banks, propose to increase the aggregate amount of the Commitments to an amount
not to exceed $175,000,000 (the amount of such increase being herein called the
"Increased Commitment Amount"). So long as there has been no prior increase in
the Commitments under this Section 11.5, each Bank, for a period of 15 days
following receipt of such notice, may (but shall have no obligation to) elect by
notice to the Company and the Agent to increase such Bank's Commitment by its
pro rata share of the Increased Commitment Amount (such pro rata share to be
determined on the basis of the Commitments in effect immediately before such
increase is requested). If Banks having at least 51% of the aggregate amount of
the Commitments so notify the Company and the Agent within such 15-day period,
then (i) the Commitment of each such electing Bank shall be increased by its pro
rata share of the increased Commitment Amount and (ii) the Commitments of the
other Banks shall be unchanged, in each case subject to Section 11.5(b). If
Banks having more than 49% of the aggregate amount of the Commitments do not
elect to increase their commitments as provided in this subsection (a), the
Commitments of all Banks shall be unchanged.
78
<PAGE>
(b) If Banks having at least 51% but less than 100% of the aggregate
amount of the Commitments shall have elected to increase their Commitments in
accordance with Section 11.5(a), the Borrower may designate one or more banks
(which may include, if they are willing, one or more of the Banks) to assume
Commitments (or increase their Commitments) hereunder; PROVIDED that the initial
or incremental Commitments of such banks shall not in the aggregate exceed the
unsubscribed portion of the Increased Commitment Amount. Any such bank that was
not previously a Bank hereunder shall become a party to this Agreement and be
considered a Bank hereunder for all purposes if it shall agree in writing to be
bound by all of the terms and provisions of this Agreement, such agreement to
specify the amount of the Commitment of such additional Bank and to be otherwise
in form and substance satisfactory to the Agent.
(c) An increase in the aggregate amount of the Commitments pursuant
to this Section 11.5 shall become effective upon the receipt by the Agent of an
agreement in form and substance satisfactory to the Agent signed by the Company,
by each additional Bank and by each other Bank whose Commitment is to be
increased, setting forth the new Commitments of such Banks and setting forth the
agreement of each additional Bank to become a party to this Agreement and to be
bound by all the terms and provisions hereof, together with such evidence of
appropriate corporate authorization on the part of the Company with respect to
the Increased Commitment Amount and such opinions of counsel for the Company
with respect to the Increased Commitment Amount as the Agent or the Required
Banks may reasonably request.
SECTION 11.6. AMENDMENTS AND WAIVERS. Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Company and the Required Banks
(and, if the rights or duties of the Agent are affected thereby, by the Agent);
PROVIDED that no such amendment or waiver shall, unless signed by all the Banks,
(i) increase or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all Banks) or subject any Bank to any additional
obligation, (ii) reduce the principal
79
<PAGE>
of or rate of interest on any Loan or any fees hereunder, (iii) postpone the
date fixed for any payment of principal of or interest on any Loan or any fees
hereunder or for the termination of any Commitment, (iv) release the Company
from its obligations under Article X with respect to any Eligible Subsidiary,
(v) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes, or the number of Banks, which shall be required
for the Banks or any of them to take any action under this Section or any other
provision of this Agreement or (vi) change any provision of this Section 11.6;
and PROVIDED FURTHER that no such amendment, waiver or modification shall,
unless signed by an Eligible Subsidiary, (w) subject such Eligible Subsidiary to
any additional obligation, (x) increase the principal of or rate of interest on
any outstanding Loan of such Eligible Subsidiary, (y) accelerate the stated
maturity of any outstanding Loan of such Eligible Subsidiary or (z) change this
PROVISO.
SECTION 11.7. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that no Borrower may assign
or otherwise transfer any of its rights under this Agreement without the prior
written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrowers and the Agent, such Bank shall remain responsible for the performance
of its obligations hereunder, and the Borrowers and the Agent shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement. Any agreement pursuant to which any Bank
may grant such a participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the obligations of the
Borrowers hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; PROVIDED
that
80
<PAGE>
such participation agreement may provide that such Bank will not agree to any
modification, amendment or waiver of this Agreement described in clause (i),
(ii), (iii) or (iv) of Section 11.6 without the consent of the Participant.
The Borrowers agree that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Sections 2.15 and
Article VIII with respect to its participating interest. An assignment or
other transfer which is not permitted by subsection (c) or (d) below shall be
given effect for purposes of this Agreement only to the extent of a
participating interest granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement and the Notes, and such Assignee
shall assume such rights and obligations, pursuant to an Assignment and
Assumption Agreement in substantially the form of Exhibit J hereto executed by
such Assignee and such transferor Bank, with (and subject to) the subscribed
consent (which will not be unreasonably withheld) of the Company and the Agent;
PROVIDED that if an Assignee is a Person which controls, is controlled by or is
under common control with such transferor Bank, no such consent shall be
required; and PROVIDED FURTHER that such assignment may, but need not, include
rights of the transferor Bank in respect of outstanding Money Market Loans.
Upon execution and delivery of such instrument and payment by such Assignee to
such transferor Bank of an amount equal to the purchase price agreed between
such transferor Bank and such Assignee, such Assignee shall be a Bank party to
this Agreement and shall have all the rights and obligations of a Bank with a
Commitment as set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a corresponding extent,
and no further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this subsection (c), the transferor
Bank, the Agent and the Borrowers shall make appropriate arrangements so that,
if required, new Notes are issued to the Assignee. In connection with any such
assignment, the transferor Bank
81
<PAGE>
shall pay to the Agent an administrative fee for processing such assignment in
accordance with the Agent's standard schedule for such charges in effect at the
time of such assignment. If the Assignee is not incorporated under the laws of
the United States of America or a state thereof, it shall, prior to the first
date on which interest or fees are payable hereunder for its account, deliver to
the Company and the Agent certification as to exemption from deduction or
withholding of any United States federal income taxes in accordance with Section
2.16.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Notes to a Federal Reserve Bank. No such
assignment shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 8.3 than such
Bank would have been entitled to receive with respect to the rights transferred,
unless such transfer is made (i) with the Company's prior written consent, (ii)
by reason of the provisions of Section 8.2 or 8.3 requiring such Bank to
designate a different Applicable Lending Office under certain circumstances or
(iii) at a time when the circumstances giving rise to such greater payment did
not exist.
(f) If the Euro-Dollar Reference Bank assigns all of its Notes to an
unaffiliated institution, the Agent shall, in consultation with the Company and
with the consent of the Required Banks, appoint another bank to act as the Euro-
Dollar Reference Bank hereunder.
SECTION 11.8. COLLATERAL. Each of the Banks represents to the Agent
and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in connection with any
present or future extension or maintenance of any credit provided for in this
Agreement.
82
<PAGE>
SECTION 11.9. CONSENT TO JURISDICTION; SERVICE OF PROCESS. Each
Borrower irrevocably submits to the non-exclusive jurisdiction of any New York
State or Federal court sitting in The City of New York over any suit, action or
proceeding arising out of or relating to this Agreement or any of the Notes.
Each Borrower irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding brought in such a court and any claim that any
such suit, action or proceeding brought in such a court has been brought in an
inconvenient forum. Each Borrower consents to process being served in any such
suit, action or proceeding by either (a) mailing a copy thereof by registered or
certified air mail, postage prepaid, return receipt requested, to its address
specified pursuant to Section 11.1 or (b) serving a copy thereof upon such
Borrower at its address specified pursuant to Section 11.1. Each Borrower
agrees that such service (a) shall be deemed in every respect effective service
of process upon it in any such suit, action or proceeding and (b) shall, to the
fullest extent permitted by law, be taken and held to be valid personal service
upon and personal delivery to it. Nothing in this Section 11.9 shall affect the
right of any Bank to serve process in any manner permitted by law or limit the
right of any Bank to bring proceedings against any Borrower in the courts of any
other jurisdiction.
SECTION 11.10. EXISTING CREDIT AGREEMENT. On the Restatement
Effective Date and concurrently with the first Borrowing under this Amended
Agreement, the Company shall repay all committed loans (if any) outstanding
under the Existing Credit Agreement, together with all accrued but unpaid
interest thereon, and all accrued but unpaid fees payable thereunder. The
parties hereto which are also parties to the Existing Credit Agreement waive the
provisions of Section 2.11 of the Existing Credit Agreement to the extent
required to permit such repayment of loans. The Company shall reimburse the
banks as provided in Section 2.13 of the Existing Credit Agreement for any loss
or expense incurred as a result of such repayment occurring on a day other than
the last day of the interest period applicable to any such loan. If, before the
Restatement
83
<PAGE>
Effective Date, the Company gives the Agent a Notice of Borrowing as provided in
Section 2.2 or 2.3(f) of this Amended Agreement for a Borrowing to occur on or
after the Restatement Effective Date, such Notice of Borrowing shall be
effective for the purposes of this Amended Agreement; PROVIDED that if the
Company fails to borrow any Fixed Rate Loans as specified in such Notice of
Borrowing the Company shall reimburse each Bank for any resulting loss or
expense as provided in Section 2.13.
SECTION 11.11. NEW YORK LAW. This Agreement and each Note shall be
construed in accordance with and governed by the law of the State of New York.
SECTION 11.12. COUNTERPARTS; INTEGRATION. This Amended Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. Except as provided in the last sentence of Section 3.1, this
Amended Agreement constitutes the entire agreement and understanding among the
parties hereto and supersedes any and all prior agreements and understandings,
oral or written, relating to the subject matter hereof.
SECTION 11.13. WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, THE AGENT
AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
84
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amended
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
ALBANY INTERNATIONAL CORP.
By_________________________
Title:
1373 Broadway
Albany, New York 12204
Mailing Address: P.O. Box 1907
Albany, New York 12201
Telex number: 145-350
Answerback: ALBYINTER MNAN
Facsimile number: (518) 447-6305
COMMITMENT
$21,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By_________________________
Title:
$16,500,000 BANK OF MONTREAL
By____________________________
Title:
85
<PAGE>
$16,500,000 THE CHASE MANHATTAN BANK, N.A.
By____________________________
Title:
$16,500,000 THE FIRST NATIONAL BANK
OF BOSTON
By____________________________
Title:
$16,500,000 NBD BANK
By____________________________
Title:
$16,500,000 FLEET BANK OF NEW YORK
By____________________________
Title:
$16,500,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By____________________________
Title:
86
<PAGE>
$10,000,000 CHEMICAL BANK
By____________________________
Title:
$10,000,000 CITIBANK, N.A.
By____________________________
Title:
$10,000,000 NATIONAL WESTMINSTER BANK PLC
By____________________________
Title:
____________
Total Commitments
$ 150,000,000
============
87
<PAGE>
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By_________________________
Title:
Attention:
Telex number:
Facsimile number:
88
<PAGE>
EXHIBIT A
NOTE
New York, New York
, 19
For value received, [name of Borrower], a [jurisdiction of]
incorporation] corporation (the "Borrower"), promises to pay to the order of
(the "Bank"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Bank to the Borrower pursuant to the
Credit Agreement referred to below on the last day of the Interest Period
relating to such Loan. The Borrower promises to pay interest on the unpaid
principal amount of each such Loan on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Morgan Guaranty Trust Company of
New York, 60 Wall Street, New York, New York.
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, prior to any transfer hereof, appropriate notations to evidence the
foregoing information with respect to each such Loan then outstanding shall be
endorsed by the Bank on the schedule attached hereto, or on a continuation of
such schedule attached to and made a part hereof; PROVIDED that the failure of
the Bank to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Amended and Restated
Credit Agreement dated as of March 31, 1995 among Albany International Corp.,
the banks party
<PAGE>
thereto and Morgan Guaranty Trust Company of New York, as Agent (as the same may
be amended from time to time, the "Credit Agreement"). Terms defined in the
Credit Agreement are used herein with the same meanings. Reference is made to
the Credit Agreement for provisions for the prepayment hereof and the
acceleration of the maturity hereof.
[Albany International Corp. has, pursuant to the provisions of the]
Credit Agreement, unconditionally guaranteed the payment in full of the
principal of and interest on this note.]*
[NAME OF BORROWER]
By____________________
Title:
____________________
* To be deleted in case of Notes executed and delivered by the Company.
-2-
<PAGE>
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
_______________________________________________________________________________
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
_______________________________________________________________________________
<S> <C> <C> <C> <C> <C>
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
</TABLE>
-3-
<PAGE>
EXHIBIT B
FORM OF MONEY MARKET QUOTE REQUEST
[Date]
To: Morgan Guaranty Trust Company of New York
(the "Agent")
From: Albany International Corp. (the "Company")
Re: Amended and Restated Credit Agreement (the "Credit Agreement") dated
as of March 31, 1995 among the Company, the Banks party thereto and
the Agent
We hereby give notice pursuant to Section 2.3 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
PRINCIPAL AMOUNT * INTEREST PERIOD **
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered]
Rate.]
Terms used herein have the meanings assigned to them in the Credit
Agreement.
ALBANY INTERNATIONAL CORP.
- ------------------------
* Amount must be $3,000,000 or a larger multiple of $1,000,000.
** Not less than one month (LIBOR Auction) or not less than 30 days
(Absolute Rate Auction), subject to the provisions of the definition of Interest
Period.
<PAGE>
By________________________
Title:
-2-
<PAGE>
EXHIBIT C
FORM OF INVITATION FOR MONEY MARKET QUOTES
To: [Name of Bank]
Re: Invitation for Money Market Quotes to Albany International Corp.
(the "Company")
Pursuant to Section 2.3 of the Amended and Restated Credit Agreement
dated as of March 31, 1995 among the Company, the Banks party thereto and the
undersigned, as Agent, we are pleased on behalf of the Company to invite you to
submit Money Market Quotes to the Company for the following proposed Money
Market Borrowing(s):
Date of Borrowing: __________________
PRINCIPAL AMOUNT INTEREST PERIOD
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered]
Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [9:00]
A.M.] (New York City time) on [date].
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By______________________
Authorized Officer
<PAGE>
EXHIBIT D
FORM OF MONEY MARKET QUOTE
To: Morgan Guaranty Trust Company
of New York, as Agent
Re: Money Market Quote to
Albany International Corp. (the "Company")
In response to your invitation on behalf of the Company dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
_____________________________
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest Money Market
- -------------------------
* As specified in the related Invitation.
<PAGE>
AMOUNT** PERIOD*** [MARGIN****] [ABSOLUTE RATE*****]
- -------- --------- ------------ --------------------
$
$
[Provided, that the aggregate principal amount of Money Market Loans for]
which the above offers may be accepted shall not exceed $________.]**
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Amended and
Restated Credit Agreement dated as of March 31, 1995 among the Company, the
Banks party thereto and yourselves, as Agent, irrevocably obligates us to make
the Money Market Loan(s) for which any offer(s) are accepted, in whole or in
part.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:___________________
Authorized Officer
- ----------------------------
** Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the individual
offers exceeds the amount the Bank is willing to lend. Bids must be made for
$3,000,000 or a larger multiple of $1,000,000.
*** Not less than one month or not less than 30 days, as specified in the
related Invitation. No more than five bids are permitted for each Interest
Period.
**** Margin over or under the London Interbank Offered Rate determined for
the applicable Interest Period. Specify percentage (to the nearest 1/10,000 of
1%) and specify whether "PLUS" or "MINUS".
***** Specify rate of interest per annum (to the nearest 1/10,000th of 1%).
** Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the individual
offers exceeds the amount the Bank is willing to lend. Bids must be made for
$3,000,000 or a larger multiple of $1,000,000.
-2-
<PAGE>
-3-
<PAGE>
EXHIBIT E
OPINION OF
COUNSEL FOR THE COMPANY
[Dated the Restatement]
Effective Date]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
I have acted as counsel for Albany International Corp. (the "Company")
in connection with the Amended and Restated Credit Agreement (the "Credit
Agreement") dated as of March 31, 1995 among the Company, the banks party
thereto and Morgan Guaranty Trust Company of New York, as Agent. Terms defined
in the Credit Agreement are used herein as therein defined.
I have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion.
The opinions expressed herein are limited to questions arising under
the laws of the State of New York and the United States of America and the
General Corporation Law of the State of Delaware, and I do not purport to
express an opinion on any question arising under the law of
<PAGE>
any other jurisdiction. I have assumed, with your permission, that the
signatures on all the documents that I have examined are genuine. I have made
no investigation of the matters as to which (i) I state in paragraph 1 below
that the Company has informed me or (ii) my opinion is stated herein to be to
the best of my knowledge except that I have examined the agreements identified
on Schedule A hereto with respect to the Company's obligations as borrower or
guarantor thereunder. In rendering the opinion expressed in paragraph 4 below,
I have relied, with your permission, on the representations of the Banks
contained in Section 11.8 of the Credit Agreement.
Upon the basis of the foregoing, I am of the opinion that:
1. The Company is a corporation validly existing and in good
standing under the laws of the State of Delaware, and has all corporate powers
required to carry on its business as now conducted. The Company has informed
me that the Company is duly qualified as a foreign corporation and in good
standing in each jurisdiction in the United States of America where
qualification is required by the nature of its business or the character and
location of its property, business or customers and in which the failure to so
qualify could have a material adverse effect on the business, financial position
or results of operations of the Company and its Consolidated Subsidiaries,
considered as a whole.
2. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes of the Company are within the Company's corporate
powers, have been duly authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or by-laws
of the Company or, to the best of my knowledge, of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Company or, to
the best of my
-2-
<PAGE>
knowledge, result in the creation or imposition of any Lien on any asset of the
Company or any of its Subsidiaries.
3. The Credit Agreement constitutes a valid and binding agreement of
the Company and the Notes of the Company constitute valid and binding
obligations of the Company, subject to applicable bankruptcy, insolvency,
moratorium and similar laws affecting creditors' rights generally.
4. The extensions of credit by the Banks as contemplated by the
Credit Agreement do not and will not involve any violation of Regulation U or X
of the Board of Governors of the Federal Reserve System as currently in effect.
I am furnishing this opinion letter to you solely for your benefit.
This letter is not to be used, circulated, quoted or otherwise referred to for
any other purpose.
Very truly yours,
Thomas H. Hagoort
General Counsel of
the Company
-3-
<PAGE>
Schedule A
-4-
<PAGE>
EXHIBIT F
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE AGENT
--------------------------------------
[Dated the Restatement
Effective Date]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the Amended and Restated
Credit Agreement (the "Credit Agreement") dated as of March 31, 1995 among
Albany International Corp., a Delaware corporation (the "Company"), the banks
party thereto (the "Banks") and Morgan Guaranty Trust Company of New York, as
Agent (the "Agent"), and have acted as special counsel for the Agent for the
purpose of rendering this opinion pursuant to Section 3.1(f) of the Credit
Agreement. Terms defined in the Credit Agreement are used herein as therein
defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
<PAGE>
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes of the Company are within the Company's corporate
powers and have been duly authorized by all necessary corporate action.
2. The Credit Agreement constitutes a valid and binding agreement of
the Company and the Notes of the Company constitute valid and binding
obligations of the Company.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of the
United States of America and the General Corporation Law of the State of
Delaware. In giving the foregoing opinion, we express no opinion as to the
effect (if any) of any law of any jurisdiction (except the State of New York) in
which any Bank is located which limits the rate of interest that such Bank may
charge or collect.
We have also reviewed the opinion delivered to the Agent pursuant to
clause (e) of Section 3.1 of the Credit Agreement and have found such opinion to
be substantially responsive to the requirements of the Credit Agreement.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without our prior written consent.
Very truly yours,
-2-
<PAGE>
EXHIBIT G
FORM OF ELECTION TO PARTICIPATE
, 19
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent for
the Banks party to the Amended and Restated
Credit Agreement dated as of March 31,
1995 among Albany International Corp.,
such Banks and such Agent (the
"Credit Agreement")
Dear Sirs:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meaning provided therein.
The undersigned, [name of Eligible Subsidiary], a [jurisdiction of]
incorporation] corporation, hereby elects to be an Eligible Subsidiary for
purposes of the Amended and Restated Credit Agreement, effective from the date
hereof until an Election to Terminate shall have been delivered on behalf of the
undersigned in accordance with the Credit Agreement. The undersigned is a
Permitted Borrower Subsidiary. The undersigned confirms that the
representations and warranties set forth in Article IX of the Credit Agreement
are true and correct as to the undersigned as of the date hereof, and the
undersigned hereby agrees to perform all the obligations of an Eligible
Subsidiary under, and to be bound in all respects by the terms of, the Credit
Agreement, including without limitation
<PAGE>
Section 11.9 thereof, as if the undersigned were a signatory party thereto.
The undersigned hereby irrevocably designates, appoints and empowers
the Company as its designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, and in respect of its property, service of
any and all legal process, summons, notices and documents which may be served in
any such action or proceeding.
[Tax disclosure pursuant to Section 9.4]
The address to which all notices to the undersigned under the Credit
Agreement should be directed is: . This instrument
shall be construed in accordance with and governed by the laws of the State of
New York.
Very truly yours,
[NAME OF ELIGIBLE SUBSIDIARY]
By____________________________
Title:
The undersigned hereby confirms that [name of Eligible Subsidiary] is
an Eligible Subsidiary for purposes of the Credit Agreement described above.
ALBANY INTERNATIONAL CORP.
By____________________________
Title:
Receipt of the above Election to Participate is hereby acknowledged on
and as of the date set forth above.
-2-
<PAGE>
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By____________________________
Title:
-3-
<PAGE>
EXHIBIT H
FORM OF ELECTION TO TERMINATE
, 19
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent for
the Banks party to the Amended and Restated
Credit Agreement dated as of March 31,
1995 among Albany International Corp.,
such Banks and such Agent (the
"Credit Agreement")
Dear Sirs:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meaning provided therein.
The undersigned, [name of Eligible Subsidiary], a [jurisdiction of]
incorporation] corporation, hereby elects to terminate its status as an Eligible
Subsidiary for purposes of the Credit Agreement, effective as of the date
hereof. The undersigned hereby represents and warrants that all principal and
interest on all Notes of the undersigned and all other amounts payable by the
undersigned pursuant to the Credit Agreement have been paid in full on or prior
to the date hereof. Notwithstanding the foregoing, this Election to Terminate
shall not affect any obligation of the undersigned under the Credit Agreement or
under any Note heretofore incurred.
This instrument shall be construed in accordance with and governed by
the laws of the State of New York.
<PAGE>
Very truly yours,
[NAME OF ELIGIBLE SUBSIDIARY]
By___________________________
Title:
The undersigned hereby confirms that the status of [name of Eligible]
Subsidiary] as an Eligible Subsidiary for purposes of the Credit Agreement
described above is terminated as of the date hereof.
ALBANY INTERNATIONAL CORP.
By____________________________
Title:
Receipt of the above Election to Terminate is hereby acknowledged on
and as of the date set forth above.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By____________________________
Title:
-2-
<PAGE>
EXHIBIT I
OPINION OF
COUNSEL FOR THE BORROWER
(BORROWINGS BY ELIGIBLE SUBSIDIARIES)
[Dated as provided in]
Section 3.3 of the
Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
I am counsel to [name of Eligible Subsidiary, jurisdiction of]
incorporation] (the "Borrower") and give this opinion pursuant to Section 3.3(b)
of the Amended and Restated Credit Agreement (the "Credit Agreement") dated as
of March 31, 1995 among Albany International Corp. (the "Company"), the banks
party thereto and Morgan Guaranty Trust Company of New York, as Agent. Terms
defined in the Credit Agreement are used herein as therein defined.
I have examined originals or copies, certified or otherwise identified
to my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion.
<PAGE>
Upon the basis of the foregoing, I am of the opinion that:
1. The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of [jurisdiction of incorporation], and is a
Wholly-Owned Consolidated Subsidiary of the Company.
2. The execution and delivery by the Borrower of its Election to
Participate and its Notes and the performance by the Borrower of the Credit
Agreement and its Notes are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the [describe relevant organic documents] of the Borrower or,
to the best of my knowledge, of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Company or the Borrower or, to the
best of my knowledge, result in the creation or imposition of any Lien on any
asset of the Company or any of its Subsidiaries.
3. The Credit Agreement constitutes a valid and binding agreement of
the Borrower and its Notes constitute valid and binding obligations of the
Borrower, subject to applicable bankruptcy, insolvency, moratorium and similar
laws affecting creditors' rights generally.
4. Except as disclosed in the Borrower's Election to Participate,
there is no income, stamp or other tax of [jurisdiction of incorporation and,
if] different, principal place of business], or any taxing authority thereof or
therein, imposed by or in the nature of withholding or otherwise, which is
imposed on any payment to be made by the Borrower pursuant to the Credit
Agreement or its Notes, or is imposed on or by virtue of the execution, delivery
or enforcement of its Election to Participate or of its Notes.
Very truly yours,
-2-
<PAGE>
EXHIBIT J
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), ALBANY INTERNATIONAL CORP. (the
"Company") and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the
"Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the Amended and Restated Credit Agreement (the "Credit Agreement")
dated as of March 31, 1995 among the Company, the Assignor and the other Banks
party thereto, as Banks, and the Agent;
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans in an aggregate principal amount at any time
outstanding not to exceed $__________;
WHEREAS, Committed Loans made by the Assignor under the Credit
Agreement in the aggregate principal amount of $__________ are outstanding at
the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned Amount"),
together with a corresponding portion of its outstanding Committed Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. ASSIGNMENT. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from
<PAGE>
the Assignor and assumes all of the obligations of the Assignor under the Credit
Agreement to the extent of the Assigned Amount, including the purchase from the
Assignor of the corresponding portion of the principal amount of the Committed
Loans made by the Assignor outstanding at the date hereof. Upon the execution
and delivery hereof by the Assignor, the Assignee, the Company and the Agent and
the payment of the amounts specified in Section 3 required to be paid on the
date hereof (i) the Assignee shall, as of the date hereof, succeed to the rights
and be obligated to perform the obligations of a Bank under the Credit Agreement
with a Commitment in an amount equal to the Assigned Amount, and (ii) the
Commitment of the Assignor shall, as of the date hereof, be reduced by a like
amount and the Assignor released from its obligations under the Credit Agreement
to the extent such obligations have been assumed by the Assignee. The
assignment provided for herein shall be without recourse to the Assignor.
SECTION 3. PAYMENTS. As consideration for the assignment and
sale contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on
the date hereof in Federal funds an amount equal to $_________. It is
understood that facility fees accrued to the date hereof are for the account of
the Assignor and such fees accruing from and including the date hereof are for
the account of the Assignee. Each of the Assignor and the Assignee hereby
agrees that if it receives any amount under the Credit Agreement which is for
the account of the other party hereto, it shall receive the same for the account
of such other party to the extent of such other party's interest therein and
shall promptly pay the same to such other party.
[SECTION 4. CONSENT OF THE COMPANY AND THE AGENT. This Agreement is]
conditioned upon the consent of the Company and the Agent pursuant to Section
11.7(c) of the Credit Agreement. The execution of this Agreement by the Company
and the Agent is evidence of this consent. Pursuant to Section 11.7(c) the
Company agrees to execute and deliver a Note [and to cause each Eligible]
Subsidiary to execute and deliver a Note] payable to the order of the Assignee
to evidence the assignment and assumption provided for herein.]
SECTION 5. NON-RELIANCE ON ASSIGNOR. The Assignor makes no
representation or warranty in connection with, and
- -------------------------
* Amount should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee. It may be preferable in an
appropriate case to specify these amounts generically or by formula rather than
as a fixed sum.
-2-
<PAGE>
shall have no responsibility with respect to, the solvency, financial condition,
or statements of any Borrower, or the validity and enforceability of the
obligations of any Borrower in respect of the Credit Agreement or any Note. The
Assignee acknowledges that it has, independently and without reliance on the
Assignor, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and will continue to be responsible for making its own independent
appraisal of the business, affairs and financial condition of the Borrowers.
SECTION 6. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. COUNTERPARTS. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By_________________________
Title:
[ASSIGNEE]
By__________________________
Title:
ALBANY INTERNATIONAL CORP.
By__________________________
Title:
-3-
<PAGE>
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By__________________________
Title:
-4-
