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: March 15, 1996 Commission file number: 0-16214
ALBANY INTERNATIONAL CORP.
(Exact name of registrant as specified in its charter)
Delaware 14-0462060
- -------------------------------------- ----------------------------
(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
EXHIBITS
10(i)(i) - Amended and Restated Credit Agreement, dated as of February 29,
1996, among the Registrant, certain banks listed therein, and
Morgan Guaranty Trust Company of New York, as Agent.
10(o)(v) - Deferred Compensation Plan of Albany International Corp.
10(o)(vi) - Centennial Deferred Compensation Plan.
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.
--------------------------
(Registrant)
Date: March 15, 1996
by /s/Michael C. Nahl
----------------------------
Michael C. Nahl
Sr. Vice President and
Chief Financial Officer
[CONFORMED COPY]
$300,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
February 29, 1996
among
Albany International Corp.
The Banks Party Hereto
and
Morgan Guaranty Trust Company of New York,
as Agent
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.. . . . . . . . . . 17
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
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.. . . . . . . . . . . . . . . . . 31
ARTICLE III
CONDITIONS
SECTION 3.1. Effectiveness.. . . . . . . . . . . . . 32
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* The Table of Contents is not a part of this
Agreement.
-i-
3.2. Borrowings. . . . . . . . . . . . . . 33
3.3. First Borrowing by Each Eligible
Subsidiary. . . . . . . . . . . . . . 34
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
Page
SECTION 4.1. Corporate Existence and Power . . . . . 35
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.. . . . . . . . . . . . . . . . . 37
4.8. Subsidiaries. . . . . . . . . . . . . . 37
4.9. General Indebtedness, Pari Passu Status. 37
4.10. Compliance with Laws. . . . . . . . . . 37
4.11. Environmental Matters.. . . . . . . . . 37
4.12. Full Disclosure.. . . . . . . . . . . . 38
ARTICLE V
COVENANTS
SECTION 5.1. Information . . . . . . . . . . . . . . 38
5.2. Payment of Obligations. . . . . . . . . 42
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.. . . . . . . . . . . . 43
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. . . . . . . . . . 47
5.12. Sale of Receivables.. . . . . . . . . . 47
5.13. Limitations on Sale-Leasebacks. . . . . 47
5.14. Limitations on Investments. . . . . . . 48
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Page
5.15. Cash Flow to Total Debt Ratio.. . . . . 48
5.16. Consolidated Tangible Net Worth.. . . . 48
5.17. Interest Coverage Ratio.. . . . . . . . 49
5.18. Use of Proceeds.. . . . . . . . . . . . 49
ARTICLE VI
DEFAULTS
SECTION 6.1. Events of Default . . . . . . . . . . . 49
6.2. Notice of Default.. . . . . . . . . . . 52
ARTICLE VII
THE AGENT
SECTION 7.1. Appointment and Authorization . . . . . 53
7.2. Agent and Affiliates. . . . . . . . . . 53
7.3. Action by Agent.. . . . . . . . . . . . 53
7.4. Consultation with Experts.. . . . . . . 53
7.5. Liability of Agent. . . . . . . . . . . 53
7.6. Indemnification.. . . . . . . . . . . . 54
7.7. Credit Decision.. . . . . . . . . . . . 54
7.8. Successor Agent.. . . . . . . . . . . . 54
7.9. Agency Fees.. . . . . . . . . . . . . . 55
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
AFFECTING FIXED RATE LOANS
SECTION 8.1. Basis for Determining Interest Rate
Inadequate or Unfair. . . . . . . . . . 55
8.2. Illegality. . . . . . . . . . . . . . . 56
8.3. Increased Cost and Reduced Return.. . . 56
8.4. Base Rate Loans Substituted for Affected
Fixed Rate Loans. . . . . . . . . . . . 58
-iii-
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
OF ELIGIBLE SUBSIDIARIES
Page
SECTION 9.1. Corporate Existence and Power . . . . . 59
9.2. Corporate and Governmental Authorization;
No Contravention. . . . . . . . . . . . 59
9.3. Binding Effect. . . . . . . . . . . . . 59
9.4. Taxes.. . . . . . . . . . . . . . . . . 59
9.5. General Indebtedness, Pari Passu Status. 60
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.. . . . . . . . . . . . . . 62
10.6. Stay of Acceleration. . . . . . . . . . 62
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Notices . . . . . . . . . . . . . . . . 62
11.2. No Waivers. . . . . . . . . . . . . . . 63
11.3. Expenses; Documentary Taxes;
Indemnification.. . . . . . . . . . . . 63
11.4. Right of Set-Off; Sharing of Set-Offs.. 64
11.5. Amendments and Waivers. . . . . . . . . 65
11.6. Successors and Assigns. . . . . . . . . 65
11.7. Collateral. . . . . . . . . . . . . . . 67
11.8. Consent to Jurisdiction; Service of
Process.. . . . . . . . . . . . . . . . 67
11.9. Existing Credit Agreement.. . . . . . . 68
11.10. New York Law. . . . . . . . . . . . . . 68
11.11. Counterparts; Integration.. . . . . . . 68
11.12. WAIVER OF JURY TRIAL. . . . . . . . . . 69
-iv-
Page
Commitment Schedule
Pricing Schedule
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
-v-
AMENDED AND RESTATED CREDIT AGREEMENT dated as of
February 29, 1996 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 Morgan Guaranty Trust Company of New York, as Agent are
parties to a $150,000,000 Amended and Restated Credit
Agreement dated as of March 31, 1995 (the "Existing Credit
Agreement");
WHEREAS, the parties hereto desire to further
amend the Existing Credit Agreement to (i) increase the
aggregate amount of the Commitments from $150,000,000 to
$300,000,000, (ii) extend the Termination Date from March
31, 2000 to February 28, 2002, and (iii) make certain other
changes 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.
"Adjusted Consolidated Cash Flow" means, for any
period of four consecutive fiscal quarters, Consolidated
Cash Flow for such period adjusted, if the Company so
elects, to include any going concern business acquired by
the Company or any of its Consolidated Subsidiaries during
such period (an "Acquired Business") as if it had been
acquired (and any Debt incurred to finance the acquisition
thereof had been incurred) at the beginning of such period;
provided that:
(i) financial statements of the Acquired Business
are available for the portion of such period prior to
the date of such acquisition (the "Prior Period"), and
such financial statements are (x) prepared in
accordance with GAAP and reported on by independent
public accountants, or (y) prepared in accordance with
accounting principles other than GAAP, reported on by
independent public accountants and then adjusted by the
Company to conform in all material respects to GAAP, or
(z) prepared and/or adjusted in any other manner
approved in writing by the Required Banks; and
(ii) in the first compliance certificate
delivered pursuant to Section 5.1(d) covering a period
for which Consolidated Cash Flow is adjusted to include
the Acquired Business for a Prior Period, the Company's
chief financial officer, chief accounting officer or
treasurer shall state that the Company has elected to
adjust Consolidated Cash Flow to include the Acquired
Business for such Prior Period and shall certify that
such adjustment has been made on the basis of financial
statements that comply with (x), (y) or (z) of clause
(i) above, as the case may be.
"Administrative Questionnaire" means, with respect
to each Bank, an administrative questionnaire in the form
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.
2
"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
February 29, 1996 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
11.6(c).
"Bank" means each bank listed on the Commitment
Schedule, each Assignee which becomes a Bank pursuant to
Section 11.6(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) Adjusted
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 its name on the Commitment
Schedule or in an Assignment and Assumption Agreement
3
delivered to the Agent pursuant to Section 11.6(c), as such
amount may from time to time be reduced pursuant to Section
2.9 or changed pursuant to Section 11.6(c).
"Commitment Schedule" means the Commitment
Schedule attached hereto.
"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.
"Company's Latest Form 10-Q" means the Company's
quarterly report on Form 10-Q for the quarter ended
September 30, 1995, 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 their
consolidated Intangible Assets, all determined as of such
date. For purposes of this definition, "Intangible Assets"
means the amount (to the extent reflected in determining
4
such consolidated common shareholders' equity) of (i) all
write-ups (other than write-ups resulting from foreign
currency translations and write-ups of assets of a going
concern business made within twelve months after the
acquisition of such business) subsequent to September 30,
1995 in the book value of any asset owned by the Company or
a Consolidated Subsidiary, (ii) all investments in
unconsolidated Subsidiaries and all equity investments in
Persons which are not Subsidiaries, in each case to the
extent that the carrying value of such investment on the
Company's books exceeds its historical cost, and (iii) all
unamortized debt discount and expense, unamortized deferred
charges (but only to the extent that the aggregate amount
thereof exceeds $15,000,000), goodwill, patents, trademarks,
service marks, trade names, copyrights, organization or
developmental expenses and other intangible assets. 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 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
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
5
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.
"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.
"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
6
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
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" means a rate per annum
determined in accordance with the Pricing Schedule.
"Euro-Dollar Reference Bank" means the principal
London office of Morgan Guaranty Trust Company of New York
7
or, after such appointment, any other bank appointed
pursuant to Section 11.6(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
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.
"GAAP" means accounting principles generally
accepted in the United States 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.
"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),
8
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
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) if any Interest Period includes a date on
which a payment of principal of the Loans is required
to be made under Section 2.10 but does not end on such
date, then (i) the principal amount (if any) of each
Euro-Dollar Loan required to be repaid on such date
shall have an Interest Period ending on such date and
(ii) the remainder (if any) of each such Euro-Dollar
Loan shall have an Interest Period determined as set
forth above.
9
(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.
(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
10
(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.
"Investment" means any investment in any Person,
whether by means of share purchase, capital contribution,
loan, time deposit or otherwise.
"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.
"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.
"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
11
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. The term "Money
Market Loan" shall also include money market loans made to
the Company on February 29, 1996 in an aggregate amount not
exceeding $100,000,000.
"Money Market Margin" has the meaning set forth in
Section 2.3(d)(ii).
"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.
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"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.
"Participant" has the meaning set forth in Section
11.6(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 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 Service 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 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
Standish or of any of his descendants, (iv) any person who
was a director or employee of the Company on February 15,
13
1996, (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.
"Pricing Schedule" means the Pricing Schedule
attached hereto.
"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 February 15, 1996, 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.
"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
14
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, 1995 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
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 or any agency
thereof, or obligations guaranteed by the United States or
any agency thereof or (ii) commercial paper rated in the
highest grade by either Standard & Poor's Ratings Service or
Moody's Investors Service, Inc., provided that, in each
15
case, such Investment matures within one year from the date
of acquisition thereof by the Company or any Subsidiary.
"Termination Date" means February 28, 2002 (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.
"United States" means the United States of
America.
"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 Determina-
tions. 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 GAAP 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 GAAP 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 GAAP in effect immediately before the rele-
vant change in GAAP 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
16
of Dollars, all amounts denominated in other currencies
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
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
17
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
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
18
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
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
19
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,
(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:
20
(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;
(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
Period that are accepted. The Company may accept any Money
Market Quote in whole or in part; provided that:
21
(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.
(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.
22
(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
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
23
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
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.
The "London Interbank Offered Rate" applicable to
any Interest Period means the rate per annum at which
24
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 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
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.
25
(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 (determined for each
day in accordance with the Pricing Schedule). 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).
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
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. (a) On February 28, 2001 the Commitments
shall be reduced pro rata to the extent (if any) required so
that the aggregate amount of the Commitments immediately
after such reduction does not exceed $150,000,000. On that
date, the Borrower shall repay such principal amount
(together with accrued interest thereon) of each Bank's
outstanding Loans, if any, as may be necessary so that after
such repayment (i) the aggregate outstanding principal
amount of such Bank's Committed Loans does not exceed the
amount of such Bank's Commitment as then reduced, and (ii)
the aggregate unpaid principal amount of all outstanding
Loans does not exceed the aggregate amount of the
Commitments as then reduced.
26
(b) 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
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
27
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
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
28
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 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
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. (a) 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 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
29
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 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.
(b) If a Bank fails to provide the Company or the
Agent with an appropriate form as and when required by
Section 2.16(a), such Bank shall not be entitled to be
indemnified under Section 8.3(a)(i) for taxes that would not
have been imposed if such Bank had complied with Section
2.16(a). However, if such Bank is entitled to a refund for
such taxes, the Company shall take such steps as such Bank
shall reasonably request to assist such Bank to recover such
taxes. Except as provided in this subsection (b), such
Bank's rights under this Agreement shall not be adversely
affected by its failure to comply with Section 2.16(a).
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
30
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.
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 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, 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
31
Applicable Lending Office, if, in the judgment of such Bank,
such designation will avoid the need for, or reduce the
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") when each of the following conditions shall
have been satisfied (or waived in accordance with Section
11.5):
(a) receipt by the Agent of a notice from the
Company specifying the Restatement Effective Date
(which shall not be later than March 15, 1996;
(b) receipt by the Agent of (i) a duly executed
counterpart of this Amended Agreement signed by each of
the parties hereto and (ii) a counterpart hereof with
the form of consent on the signature pages hereof
signed by each of National Westminster Bank PLC and The
Chase Manhattan Bank, N.A. (or, if any such executed
counterpart shall not have been received, receipt by
the Agent in form satisfactory to it of telegraphic,
telex, facsimile or other written confirmation that
such counterpart has been executed and sent to it);
(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;
(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
32
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 11.9; 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
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, (i) the aggregate outstanding principal
amount of the Loans will not exceed the aggregate
amount of the Commitments and (ii) the aggregate
outstanding principal amount of the Loans having
Interests Periods ending after February 28, 2001 will
not exceed $150,000,000;
33
(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(c) 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,
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.
34
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 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 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 Agreement
constitutes a valid and binding agreement of the Company and
its Notes, when executed and delivered in accordance with
this 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
35
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 GAAP, 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) The unaudited consolidated balance sheet of
the Company and its Consolidated Subsidiaries as of
September 30, 1995 and the related unaudited consolidated
statements of income and retained earnings and cash flows
for the nine months then ended, set forth in the Company's
Latest Form 10-Q, a copy of which has been delivered to each
of the Banks, fairly present, in conformity with GAAP, 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
nine month period (subject to normal year-end adjustments).
(c) Since September 30, 1995 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.
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
36
under Title IV of ERISA other than a liability to the PBGC
for premiums under Section 4007 of ERISA.
SECTION 4.7. Taxes. 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.
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
37
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
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
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 audited and reported on in a manner
38
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 GAAP, 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, conformity with GAAP 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
39
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
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
40
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
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
41
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,
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, and the Company shall have set
aside on its books, in accordance with GAAP, 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 applicable to it,
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 visit and inspect any of their respective
42
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 December 31, 1995 securing
Debt outstanding on December 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;
(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
43
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:
(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;
44
(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 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., Martel Catala 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
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
45
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
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, 1995
that were not permitted by the foregoing clause (A)
would not exceed the sum of (i) $40,000,000 and (ii)
the aggregate Value of all treasury stock of the
Company transferred in a transaction constituting a
Treasury Stock Transfer after December 31, 1995.
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
46
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
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., Albany
International Canada, Martel Catala 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 $50,000,000.
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, 1995 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
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
47
market value of all property of the Company and its
Subsidiaries so sold or transferred after December 31, 1995
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, 1995 shall not exceed $140,000,000; 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, 1998, be greater than 0.18 to 1, and (z) on or after
December 31, 1998, be greater than 0.20 to 1.
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 December 31, 1995 and (B)
$35,000,000 be less than (ii) $250,000,000 increased, at the
end of each fiscal quarter of the Company commencing with
its fiscal quarter ending on March 31, 1996, by an amount
equal to 50% of Consolidated Net Income (if a positive
number) for such fiscal quarter.
48
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 loans outstanding
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".
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;
49
(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
$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,
50
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;
(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
51
(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
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.
52
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 . 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
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
53
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,
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 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.
54
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.
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
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.
55
SECTION 8.2. Illegality. If, after February 15,
1996, 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) February 15, 1996, in the case of
any 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:
56
(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;
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 February 15, 1996, 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
57
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 February 15, 1996 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 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
58
Euro-Dollar Loans shall be applied to repay its Base
Rate Loans instead.
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
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.
59
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
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
60
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.
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.
61
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
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
62
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
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.
63
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
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
64
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. 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
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
reduction or 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 11.5; 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 11.6. 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
65
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
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 11.5 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, 2.18(b) 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
shall pay to the Agent an administrative fee for processing
such assignment in accordance with the Agent's standard
66
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 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 11.7. 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.
SECTION 11.8. 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
67
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 11.8 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 11.9. 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
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 11.10. 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 11.11. Counterparts; Integration. This
Amended Agreement may be signed in any number of counter-
parts, 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
68
supersedes any and all prior agreements and understandings,
oral or written, relating to the subject matter hereof.
SECTION 11.12. 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.
69
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: /s/ Raymond Dufresne
------------------------
Title: Vice President &
Treasurer
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
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ R. Blake Witherington
------------------------
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Jane Hwang
------------------------
Title: Vice President
NBD BANK
By: /s/ Stephen E. McDonald
------------------------
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ Lucy Coyle
------------------------
Title: Vice President
70
BANK OF MONTREAL
By: /s/ Donald J. Jordan
------------------------
Title: Director
CHEMICAL BANK
By: /s/ Steve Malinowski
------------------------
Title: Vice President
CITIBANK, N.A.
By: /s/ Tom Stott
------------------------
Title: Vice President
FLEET BANK
By: /s/ Anthony Davidson
------------------------
Title: Assistant Vice President
ABN AMRO BANK N.V., NEW YORK BRANCH
By: /s/ George Dugan
------------------------
Title: Vice President
By: /s/ David W. Stack
------------------------
Title: Assistant Vice President
MARINE MIDLAND BANK
By: /s/ William M. Holland
------------------------
Title: Vice President
71
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By: /s/ Yoshinori Kawamura
------------------------
Title: Joint General Manager
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By: /s/ R. Blake Witherington
------------------------
Title: Vice President
60 Wall Street
New York, New York 10260
Attention:
Telex number:
Facsimile number:
Each of the undersigned banks is a party to the
Existing Credit Agreement but will not be a party to the
foregoing Amended Agreement after the Restatement Effective
Date. Solely in its capacity as a party to the Existing
Credit Agreement (and in order to satisfy the requirements
of Section 11.6 thereof), each of the undersigned banks
consents to the foregoing Amended Agreement; provided that
such consent shall not be effective unless all amounts to be
paid for its account under Section 11.9 of the foregoing
Amended Agreement are paid on the Restatement Effective
Date.
THE CHASE MANHATTAN BANK, N.A.
By: /s/ Hans H. Heinsen
------------------------
Title: Managing Director
NATIONAL WESTMINSTER BANK PLC
By: /s/ Maria Amaral-LeBlanc
------------------------
Title: Vice President
72
COMMITMENT SCHEDULE
Name of Bank Commitment
- ------------ -----------
Morgan Guaranty Trust $40,000,000
Company of New York
The First National Bank $33,000,000
of Boston
NBD Bank $33,000,000
Bank of America National $28,000,000
Trust and Savings Association
Bank of Montreal $28,000,000
Chemical Bank $28,000,000
Citibank, N.A. $28,000,000
Fleet Bank $28,000,000
ABN AMRO Bank N.V., $18,000,000
New York Branch
Marine Midland Bank $18,000,000
The Sumitomo Bank, Limited,
New York Branch $ 18,000,000
------------
Total $300,000,000
73
PRICING SCHEDULE
(in basis points per annum)
"Facility Fee Rate" means, for any date, the rate
set forth below in the row opposite such term and in the
column corresponding to the Pricing Level that applies at
such date. "Euro-Dollar Margin" means, for any date, the
rate set forth below in the row opposite such term in the
line corresponding to the Usage at such date and in the
column corresponding to the Pricing Level that applies at
such date:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Pricing Level Level 1 Level II Level III Level IV
- ------------------------------------------------------------------------------
Facility Fee 15.00 18.75 20.00 25.00
- ------------------------------------------------------------------------------
Euro-Dollar
Margin
Usage less than 50% 22.50 21.25 36.25 43.75
Usage greater than 50% 22.50 33.75 48.75 56.25
- ------------------------------------------------------------------------------
</TABLE>
For purposes of this Schedule, the following terms
have the following meanings:
"Level I Pricing" applies 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 Pricing" applies 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 Pricing" applies 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 Pricing" applies 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 to 1.
"Pricing Level" refers to the determination of
which of Level I, Level II, Level III or Level IV Pricing
applies at any date.
"Usage" means at any date the percentage
equivalent of a fraction (i) the numerator of which is the
74
aggregate outstanding principal amount of the Loans at such
date, after giving effect to any borrowing or payment on
such date, and (ii) the denominator of which is the
aggregate amount of the Commitments at 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%.
75
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 February
29, 1996 among Albany International Corp., the banks party
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-
LOANS AND PAYMENTS OF PRINCIPAL
- -------------------------------------------------------------------------------
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
-3-
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 February 29, 1996 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.
By________________________
Title:
- ---------------
* 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.
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 February 29, 1996
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
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
Amount** Period*** [Margin****] [Absolute Rate*****]
- --------- -------- ----------- ---------------
$
$
- ---------------
* As specified in the related Invitation.
** 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%).
[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 February 29, 1996 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.
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 dated as of February 29, 1996 (the
"Credit Agreement") 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 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 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 11.7
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 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
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
Schedule A
1. Debt issued in connection with industrial revenue bonds
<TABLE>
<CAPTION>
Original Final
Lender Maturity
-------- --------
<S> <C> <C>
a. City of Menasha, Wisconsin, The Chase 1996
Industrial Revenue Manhattan
Installment Note (Albany Bank
International Project),
1981, as amended ($3,800,000
original principal amount).
b. City of Portland, Tennessee, The Chase 1996
Industrial Revenue Manhattan
Installment Note (Albany Bank
International Corp.
Project), 1981, as amended
($700,000 original principal
amount).
c. Rensselaer County Industrial Norstar 2007
Development Agency Flexible Bank of
Rate Demand Industrial Upstate
Development Revenue Bonds NY
(Albany International Corp.
project), 1987, as amended
($10,000,000 original
principal amount).
</TABLE>
2. Merchandise Orders Purchase and Sale Agreement, dated
as of January 28, 1991 among the Company, CXC
Incorporated and Citicorp North America, Inc., as
amended.
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 dated as of February
29, 1996 (the "Credit Agreement") 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.
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 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,
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 February 29, 1996
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 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 Section 11.8 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.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By____________________________
Title:
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 February 29, 1996
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.
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:
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 dated as of February 29, 1996 (the
"Credit Agreement") 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.
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,
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 dated as of February 29, 1996 (the "Credit
Agreement") 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
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 11.6(c) of the Credit
Agreement. The execution of this Agreement by the Company and
the Agent is evidence of this consent. Pursuant to Section
11.6(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.
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:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By__________________________
Title:
DEFERRED COMPENSATION PLAN OF
ALBANY INTERNATIONAL CORP.
(As Amended and Restated Effective as of January 1, 1996)
1. Purpose
The purpose of this Plan ("Plan") is to enable directors and certain
employees of Albany International Corp. (the "Company") to defer the receipt of
compensation that they otherwise would have received currently in cash, and to
receive the deferred amount, plus interest thereon, at a time which they choose
when they make the original deferral election or subsequently as permitted by
the Plan. The Plan is intended to be an unfunded plan maintained by the Company
primarily for the purpose of providing deferred compensation to a select group
of management or highly compensated employees within the meaning of Sections
201, 301 and 401 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and shall be interpreted in a manner consistent with such
intent. As used herein, the term "Albany Group" shall mean the Company and all
corporations which are, at the time, subsidiaries of the Company.
2. Effective Date
The Plan shall be effective from and after January 1, 1990, until
terminated as provided herein.
3. Eligibility
All directors and all employees of the Company who are in the
management incentive compensation group and other employees, who with respect
to any year are approved for participation by the Compensation and Stock Option
Committee (the "Committee") of the Board of Directors of the Company ("eligible
employees") will be eligible to participate in the Plan.
4. Compensation Covered by the Plan
The compensation covered by the Plan ("covered compensation") will be
any regular or bonus compensation payable to a director or an eligible employee
by the Company.
5. Election to Defer
Each director and eligible employee may, in lieu of receiving current
covered compensation, elect to defer:
(a) any designated percentage of his/her covered compensation; or
(b) any designated dollar amount of his/her covered compensation.
Notwithstanding any other provisions of this Plan, no director or
eligible employee may elect to defer any covered compensation under this Plan
which, if not deferred, would be received by such director or eligible employee
after December 31, 1995.
6. Investment of Deferred Covered Compensation
(a) As used herein, the term "Moody's Rate" for any calendar month
shall mean a rate equal to one-twelfth (1/12) of the average of
the monthly composite yields on Moody's Seasoned Corporate Bond
Yield Index for the immediately preceding calendar year, as
published by Moody's Investors Service, Inc. in Moody's Bond
Record (or any successor thereto), or, if such monthly yield
islonger published, a substantially similar average selected by
the Committee in its sole discretion. As used herein, the term
"Additional Rate" shall mean such additional monthly rate as the
Committee, in its sole discretion, shall from time to time
determine. The Additional Rate as of January 1, 1990 shall be
zero (0.0) percentage points and, effective from and after
January 1, 1996 and until changed by the Committee, shall be
one-quarter of one (0.25) percentage point. The Committee, in
its sole discretion, may change the Additional Rate at any time;
provided that at no time shall the Additional Rate be less than
zero (0.0) percentage points.
(b) The Company will establish a bookkeeping account (each, an
"Account") for each director and eligible employee who has
elected to defer the receipt of covered compensation under
Section 5 (each, a "participant"). As of the last day of each
month, the Company shall credit such participant's Account with
the amount of covered compensation that, but for such election,
would have been paid to him during that month. As of the last
day of each month, each Account of each participant will be
credited with interest on the balance credited to such Account
at the beginning of that month, calculated at a rate equal to
the Moody's Rate for such month plus the Additional Rate,
except as otherwise provided in Sections 6(c), 6(d), 6(e) and
6(f) below. The undistributed balance of the Account of a
participant shall, from and after the date such participant
is to commence to receive distributions thereof, bear interest
for each month at a rate equal to the Moody's Rate for such
month plus the Additional Rate applicable to such Account,
except as otherwise provided in Section 6(e) below.
(c) The balance credited to the Account of a participant who
initially elects to receive such balance pursuant to an election
under Section 7(a)(1)(A) shall earn interest at the Moody's
Rate, except as otherwise provided in Section 6(d) below.
(d) (1) If a participant has a request granted pursuant to Section
7(d) to redefer receipt of the balance credited to his/her
Account to a date certain pursuant to Section 7(a)(1)(A),
interest on such balance shall continue to accrue at the Moody's
Rate.
2
(2) If a participant has a request granted pursuant to Section
7(d) to redefer receipt of the balance credited to his/her
Account to his/her termination of service as a director of
the Company or his/her termination of service as an
employee of the Albany Group, interest on the balance of
such Account shall accrue interest from the date certain
specified in the participant's original deferral election
for the payment of such balance until the date such
participant receives such balance at a rate equal to the
Moody's Rate from time to time plus the Additional Rate in
effect at the time the request is granted (subject to
Sections 6(e) and 6(f) below). Until such date certain
specified in the participant's original deferral election,
such participant's Account shall continue to accrue
interest at the Moody's Rate.
(e) (1) If a participant's service as an employee of the Albany
Group or as a director of the Company is terminated either
(A) by the Albany Group for cause, as determined by the
Committee in its sole discretion, or (B) voluntarily by
such employee or director prior to the earlier to occur of
(i) retirement under the Company's Pension Plus Plan at or
after his/her attainment of age 55 with at least ten (10)
years of service with the Albany Group or (ii) attainment
of age 60, then such participant's Account shall be deemed
to have earned interest for the five (5) years immediately
preceding the date on which all, or the first installment,
of the balance of such Account is received by such
participant at the Moody's Rate, and such Account shall
be recalculated to take into account such interest accrual
at the Moody's Rate. In addition, after such date any
undistributed balance in such participant's Account shall
also bear interest at the Moody's Rate.
(2) The service of a participant who has elected to receive the
balance credited to his/her Account upon the later of
his/her termination of service as a director of the Company
or his/her termination of service as an employee of the
Albany Group shall not be deemed "terminated" pursuant to
Section 6(e)(1)(B) above if such participant continues to
serve as either a director of the Company or an employee of
the Albany Group.
(f) In the case of an early distribution pursuant to Section 8(b),
the portion of the participant's Account so distributed shall be
deemed to have earned interest at the Moody's Rate from the date
of the initial deferral until the time of such early
distribution, and such Account shall be recalculated to take
into account such interest accrual at the Moody's Rate.
7. Distribution of Deferred Compensation
(a) At the time of an election to defer pursuant to Section 5, each
director and eligible employee also shall elect the time at
which and the manner in which the balance credited to his/her
Account shall be distributed to him. Such election shall be
irrevocable, except as provided in this Section 7 or in Section
8 hereof.
3
(1) A participant shall be entitled to elect to receive, or to
commence receiving, the balance credited to his/her
Account:
(A) on a date set by him; or
(B) on the occurrence of a stated event, such as his/her
death, retirement from his/her principal business
activity, termination of services as a director or
of employment with the Company, disability or any
other event or occurrence stipulated by him and
approved by the Committee.
Notwithstanding such election, a participant shall have the
balance credited to his/her Account automatically
distributed to him (or his/her designated beneficiary or
beneficiaries), in the manner provided pursuant to Section
7(a)(2) but subject to the further provisions of this
Section 7, upon the occurrence of his/her death, disability
(as defined in the Company's Pension Plus Plan, as amended
from time to time) or the later of his/her termination of
service as a director of the Company or his/her termination
of service as an employee of the Albany Group.
(2) Each participant shall be entitled to elect to receive such
balance in either a lump sum or in approximately equal
monthly installments (as determined by the Committee in its
sole discretion) over a period elected by him of not more
than ten (10) years.
(b) A participant who has elected to receive the balance credited to
his/her Account in monthly installments may request that the
Committee amend the manner in which he is to receive such
balance. Such request shall be in writing, may only be made once
and may only request acceleration of the receipt of such
balance, either by receipt of a lump sum instead of equal
monthly installments or by decreasing the period over which
equal monthly installments are to be paid. The Committee, in its
sole and absolute discretion, may grant or reject such request.
Any such amendment shall not be effective with respect to a
participant if (1) the date set by him for distribution of such
balance pursuant to Section 7(a)(1)(A) is within two (2) years
after such amendment or (2) the stated event triggering
distribution of such balance elected by him pursuant to Section
7(a)(1)(B) occurs within two (2) years after such amendment.
(c) Subject to the provisions contained in this Section 7(c) and in
Sections 7(d) and 8, all distributions of the balance credited
to a participant's Account shall be made, or shall commence,
either on the date certain elected by the participant for such
distribution or within thirty (30) days after any other
triggering event under Section 7(a). The Company may, in its
sole and absolute discretion, delay, for a period of up to one
(1) year, any distribution to be made in the form of a lump sum.
The Company may also, in its sole and absolute discretion,
delay, for a period of up to one (1) year, any payment to the
extent that such payment would result in compensation to the
4
participant that is not deductible for federal income tax
purposes (whether by reason of Section 162(m) of the Internal
Revenue Code of 1986 or otherwise). Interest shall accrue on
such delayed distributions at the same respective interest rates
as were being applied to the balance in the participant's
Account immediately prior to the Company's decision to delay
such payment.
(d) A participant who has elected to receive the balance credited to
his/her Account on a date certain pursuant to Section 7(a)(1)(A)
may request that the Committee amend such election and allow him
to defer the receipt of such balance to (1) a later date
permitted by Section 7(a)(1)(A), (2) his/her termination of
service as an employee of the Albany Group or (3) the later of
his/her termination of service as a director of the Company or
his/her termination of services as an employee of the Albany
Group; provided that he makes such request to the Committee
prior to two (2) years before the date on which he otherwise
would have been entitled to receive such balance. Such request
shall be made in writing, indicating the revised date upon
which he would like distribution of such balance to occur, and
may only be made once during his/her participation in the
Plan. All covered compensation deferred subsequent to the date
of such request shall also be distributed at such later date.
The Committee, in its sole and absolute discretion, may grant or
reject such request.
8. Early Distributions
(a) A distribution of a portion or the entire balance credited to
the Account of a participant may be made prior to the time at
which he would have been entitled to receive, or to commence
receiving, such balance in accordance with the instrument filed
pursuant to Section 7(a) hereof in the event of hardship. For
purposes of this Section 8(a), a distribution is on account of
hardship only if the distribution is made:
(1) on account of an immediate and heavy financial need of the
participant, occasioned by an unanticipated emergency
caused by events beyond his/her
5
control that would result in severe financial hardship if
the distribution were not permitted;
(2) in an amount required to satisfy such financial need; and
(3) in circumstances in which the need cannot be satisfied from
other resources that are reasonably available to the
participant, such as through reimbursement or compensation
by insurance or otherwise, by reasonable liquidation of
his/her assets (to the extent such liquidation would not
itself cause an immediate and heavy financial need), by
cessation of further deferrals under the Plan, or by other
permitted distributions or nontaxable (at the time of the
loan) loans from other plans maintained by the Albany
Group, or by borrowing from commercial sources on
reasonable commercial terms.
A participant shall make a request in writing to the Committee
for a distribution to be made on account of hardship. The
Committee shall determine whether the requested distribution
satisfies the requirements of this Section 8(a) on the basis of
all relevant facts and circumstances. Any distribution of less
than 100% of the balance credited to the Account of a
participant pursuant to this Section 8(a) shall be deemed to be
a distribution of the earliest compensation which would have
been paid had it not been deferred.
(b) A distribution of a portion or the entire balance credited to
the Account of a participant may be made prior to the time at
which he would have been entitled to receive, or to commence
receiving, such balance in accordance with the instrument filed
pursuant to Section 7(a) hereof upon the occurrence of an
extraordinary event and for good reason as determined by the
Committee, in its sole and absolute discretion, upon the request
of such participant. The Committee, in its sole and absolute
discretion, may grant or reject such request. Any distribution
of less than 100% of the balance credited to the Account of a
participant pursuant to this Section 8(b) shall be deemed to be
a distribution of the earliest compensation which would have
been paid had it not been deferred.
9. Manner of Election
Prior to January 1 of each year, beginning with 1990, each director
and eligible employee shall be entitled to file an instrument with the
Committee exercising his/her election under Section 5 of the Plan. Such
election shall be irrevocable with respect to the year following its date of
filing. If a director or eligible employee does not file such an instrument
under the plan, his/her covered compensation shall be paid to him in cash on a
non-deferred basis. An election once filed shall continue in effect with
respect to subsequent years unless revoked or amended by an instrument in
writing filed with the Committee by the director or eligible employee. Any such
revocation or amendment shall be effective as of January 1 of the year next
following the filing thereof. Notwithstanding any other provisions of this
Plan, no director or eligible employee may elect to defer any covered
6
compensation under this Plan which, if not deferred, would be received by such
director or eligible employee after December 31, 1995.
10. Administration of Plan
The Plan shall be administered by the Compensation and Stock Option
Committee of the Board of Directors of the Company. The Committee shall
interpret the Plan and make all decisions with respect to the rights of
directors and eligible employees hereunder; provided, however, that no member
of the Committee shall act on any matter in which such member has a particular
or special interest. All elections and other instruments shall be filed with
the Committee on forms prescribed by the Committee from time to time. The
initial forms to be used for making elections pursuant to Sections 5 and 7(a)
hereof are attached hereto as Exhibits A and B, respectively.
11. Funding
This Plan shall be unfunded. Amounts payable hereunder shall be paid
from the general assets of the Company. The Company may establish a trust
pursuant to a trust agreement and make contributions thereto for the purpose of
assisting the Company in meeting its obligations in respect of benefits payable
under the Plan. Any such trust agreement shall contain procedures to the
following effect:
(a) In the event of the insolvency of the Company, the trust fund
will be available to pay the claims of any creditor of the
Company to whom a distribution may be made in accordance with
state and federal bankruptcy laws. The Company shall be deemed
to be "insolvent" if the Company is subject to a pending
proceeding as a debtor under the federal Bankruptcy Code (or any
successor federal statute) or any state bankruptcy code. In the
event the Company becomes insolvent, the Board of Directors and
chief executive officer of the Company shall notify the trustee
of that event as soon as practicable. Upon receipt of such
notice, or if the trustee receives other written allegation of
the Company's insolvency, the trustee shall cease making
payments of benefits from the trust fund, shall hold the trust
fund for the benefit of the Company's creditors, and shall take
such steps as are necessary to determine within thirty (30) days
whether the Company is insolvent. In the case of the trustee's
actual knowledge of or other determination of the Company's
insolvency, the trustee will deliver assets of the trust fund to
satisfy claims of the Company's creditors as directed by a court
of competent jurisdiction;
(b) The trustee shall resume payment of benefits under the trust
agreement only after the trustee has determined that the Company
is not insolvent (or is no longer insolvent, if the trustee had
previously determined the Company to be insolvent) or upon
receipt of an order of a court of competent jurisdiction
requiring such payment. If the trustee discontinues payment of
benefits pursuant to paragraph (a) of this Section 11 and
subsequently resumes such payment, the first payment on account
of a participant following such discontinuance shall include an
7
aggregate amount equal to the difference between the payments
which would have been made on account of such participant under
the trust agreement and the aggregate payments actually made on
account of such participant by the Company during any such
period of discontinuance, plus interest on such amount at a rate
equivalent to the net rate of return earned by the trust fund
during the period of such discontinuance.
12. Reports to Participants
The Committee shall provide to each participant a report twice a year,
as of each June 30 and December 31, detailing the status of that participant's
Account.
13. Amendment or Termination
This Plan may be amended or terminated at any time by the Board of
Directors of the Company or by the Committee. Upon termination of the Plan, the
Committee may distribute to each participant the balance credited to his/her
Account at the time of such termination in the form of a lump sum or otherwise
as it determines in its sole discretion. The Company shall notify each
participant and each beneficiary currently entitled to benefits under the Plan
of termination of the Plan within ninety (90) days after such termination;
provided that the failure to give such notice shall not affect the Company's
rights hereunder.
14. Non-Assignability
Interests in covered compensation deferred or in a participant's
Account shall not be assignable or transferable or subject to attachment,
garnishment, levy, execution or other legal or equitable process, except by
will or the laws of descent and distribution.
15. Plan Not a Contract of Employment
This Plan is not a contract of employment, and the terms of employment
of any employee of the Albany Group shall not be affected in any way by the
Plan or related instruments except as specifically provided in the Plan or such
related instruments. The establishment of the Plan shall not be construed as
conferring any legal rights upon any employee for a continuation of employment,
nor shall it interfere with the right of the Albany Group to discharge any
employee and to treat him without regard to the effect which such treatment
might have upon him as a participant. Each participant and all persons who may
have or claim any right by reason of his/her participation shall be bound by
the terms of the Plan and all agreements entered into pursuant thereto.
16. Construction
(a) The Plan is intended to qualify as an unfunded plan maintained
primarily for the purpose of providing deferred compensation for
a select group of management or highly compensated employees as
referred to in Section 201(2) of ERISA, and its terms shall be
8
interpreted accordingly. Otherwise, the laws of the State of New
York shall control the interpretation and performance of the
terms of the Plan.
(b) If any provision of the Plan, or the application of any such
provision to any person or circumstances, shall be invalid under
any federal or state law, neither the application of such
provision to persons or circumstances other than those as to
which such provision is invalid nor any other provisions of the
Plan shall be affected thereby.
9
Exhibit A
DEFERRED COMPENSATION PLAN OF
ALBANY INTERNATIONAL CORP.
Election as to Amount of Compensation to be Deferred
The undersigned, [a director] [an eligible employee] under the
Deferred Compensation Plan of Albany International Corp., hereby elects as
follows pursuant to Section 5 of such Plan:
Please withhold from my current covered compensation the following:
(check one only)
a. ___% of my regular compensation and ___% of my bonus compensation.
b. ___% of my covered compensation.
The foregoing shall be effective for the calendar year commencing
January 1, 19__ and shall remain in effect until revoked or amended by me,
which revocation or amendment shall be effective on the January 1 thereafter.
Executed this _____ day of ____________, 19__.
- ----------------------------------
Signature
Exhibit B
DEFERRED COMPENSATION PLAN OF
ALBANY INTERNATIONAL CORP.
Election as to Time and Manner in which Deferred Compensation
shall be Distributed
The undersigned, [a director] [an eligible employee] under the
Deferred Compensation Plan of Albany International Corp., hereby elects as
follows, pursuant to Section 7 of such Plan:
1. Time of Distribution
The value of my deferred compensation shall be distributed to me, or
such distribution shall commence:
(check one only)
a. _____ on ____________ ____ ____
Month Day Year
b. _____ upon retirement from the Company.
My Deferred Compensation Account will be distributed in the event
of death, disability or termination.
2. Manner of Distribution
Distribution shall be made as follows:
(check one only)
a. _____ in a lump sum
b. _____ in approximately equal monthly installments over 10 years
c. _____ in approximately equal monthly installments over __ years
3. Designation of Beneficiary
Upon my death, the following person(s) shall be entitled to receive
the value of deferred compensation owing to me:
<TABLE>
<CAPTION>
Name Address Relationship
<S> <C> <C>
- ------------------------ ------------------------ ------------------------
- ------------------------ ------------------------ ------------------------
- ------------------------ ------------------------ ------------------------
</TABLE>
This deferred compensation shall be paid to these persons
_____ in the manner otherwise payable to me
_____ in a lump sum
I understand that the foregoing elections under paragraphs 1 and 3
above are irrevocable, except as provided in Sections 7 or Section 8 of the
Plan.
Executed this _____ day of ____________, 19__.
- ----------------------------------
Signature
ALBANY INTERNATIONAL CORP.
CENTENNIAL DEFERRED COMPENSATION PLAN
(Effective as of July 1, 1995)
1. Purpose
The purpose of this Plan ("Plan") is to enable directors and certain
employees of Albany International Corp. (the "Company") and its subsidiaries to
defer the receipt of compensation that they otherwise would have received
currently in cash, and to receive the deferred amount, plus interest thereon,
at a time which they choose when they make the original deferral election or
subsequently as permitted by the Plan. The Plan is intended to be an unfunded
plan maintained by the Company primarily for the purpose of providing deferred
compensation to a select group of management or highly compensated employees
within the meaning of Sections 201, 301 and 401 of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), and shall be interpreted in
a manner consistent with such intent. As used herein, the term "Albany Group"
shall mean the Company and all corporations which are, at the time,
subsidiaries of the Company.
2. Effective Date
The Plan shall be effective from and after July 1, 1995, until
terminated as provided herein.
3. Eligibility
The persons eligible to participate in the Plan are (a) all employees
of the Company who are in the top management incentive compensation group and
any other employees of the Company or any other member of the Albany Group who,
with respect to any year, are approved for participation by the Compensation
and Stock Option Committee (the "Committee") of the Board of Directors of the
Company (collectively, the "eligible employees") and (b) all directors of the
Company.
4. Compensation Covered by the Plan
The compensation covered by the Plan ("covered compensation") will be
(a) any base salary or bonus compensation payable to an eligible employee by
the Company or any other member of the Albany Group and (b) any directors' fees
payable to a director by the Company.
5. Election to Defer
Each director and eligible employee may, in lieu of receiving current
covered compensation, elect to defer:
(a) any designated percentage of his/her covered compensation; or
(b) any designated dollar amount of his/her covered compensation.
6. Investment of Deferred Covered Compensation
(a) As used herein, the term "Moody's Rate" for any calendar month
shall mean a rate equal to one-twelfth (1/12) of the average of
the monthly composite yields on Moody's Seasoned Corporate Bond
Yield Index for the immediately preceding calendar year, as
published by Moody's Investors Service, Inc. in Moody's Bond
Record (or any successor thereto), or, if such monthly yield is
no longer published, a substantially similar average selected by
the Committee in its sole discretion. As used herein, the term
"Additional Rate" shall mean such additional monthly rate as the
Committee, in its sole discretion, shall from time to time
determine. The Additional Rate at the effective date of the Plan
and until changed by the Committee shall be one-quarter of one
(0.25) percentage point. The Committee, in its sole discretion,
may change the Additional Rate at any time; provided that at no
time shall the Additional Rate be less than zero (0.0)
percentage points. Such new Additional Rate shall apply to
amounts deferred pursuant to an election received by the
Company on or after the date on which the change is adopted and
announced by the Committee. The amount in each existing Account
(as described below) of a participant on the effective date of
such change, and any amounts credited thereafter pursuant to an
election received prior to the date on which such change is
adopted and announced by the Committee, shall continue to earn
interest at the Moody's Rate in effect from time to time plus
the Additional Rate in effect at the time the election relating
to such Account was made.
(b) The Company will establish a bookkeeping account or accounts
(each, an "Account") for each director and eligible employee who
has elected to defer the receipt of covered compensation under
Section 5 (each, a "participant"). Each participant shall have a
separate Account for each calendar year (or, in the case of
1995, the remainder thereof) for which such participant shall
have filed an election to defer covered compensation. As of the
last day of each month in any year, the Company, with respect to
each participant who has properly elected to defer covered
compensation for that year, shall credit such participant's
Account for that year with the amount of covered compensation
that, but for such election, would have been paid to him during
that month. As of the last day of each month, each Account of
each participant will be credited with interest on the balance
credited to such Account at the beginning of that month,
calculated at a rate equal to the Moody's Rate for such month
plus the Additional Rate applicable to such Account, except as
otherwise provided in Sections 6(c), 6(e) and 6(f) below.
The undistributed balance of each Account of a participant
shall, from and after the date such participant is to commence
to receive distributions thereof, bear interest for each month
at a rate equal to the Moody's Rate for such month plus the
2
Additional Rate applicable to such Account, except as otherwise
provided in Section 6(e) below. All distributions of the
balances credited to a participant's Accounts made in the form
of installment payments pursuant to Section 7(a)(2) shall be
deemed to be made pro rata from each of the participant's
Accounts.
(c) The balance credited to all Accounts of a participant who
initially elects to receive such balance pursuant to an election
under Section 7(a)(1)(A) shall earn interest at the Moody's
Rate, except as otherwise provided in Section 6(d) below.
(d) (1) If a participant has a request granted pursuant to Section
7(d) to redefer receipt of the balances credited to his/her
Accounts to a date certain pursuant to Section 7(a)(1)(A),
interest on such balances shall continue to accrue at the
Moody's Rate.
(2) If a participant has a request granted pursuant to Section
7(d) to redefer receipt of the balances credited to his/her
Accounts to a date specified pursuant to Section 7(a)(1)(B)
or 7(a)(1)(C), interest on the balance of each Account
established prior to the date certain specified in the
participant's original deferral election for the payment of
such balance shall accrue interest from such date certain
until the date such participant receives such balance at a
rate equal to the Moody's Rate from time to time plus the
Additional Rate in effect at the time the request is
granted (subject to Sections 6(e) and 6(f) below). Until
such date certain specified in the participant's original
deferral election, such participant's Accounts shall
continue to accrue interest at the Moody's Rate. Each
Account of a participant established after the date certain
specified in the participant's original deferral election
shall accrue interest at a rate equal to the Moody's Rate
from time to time plus the Additional Rate in effect at the
time the election relating to such Account is made (subject
to Sections 6(e) and 6(f) below).
(e) (1) If a participant's service as an employee of the Albany
Group or as a director of the Company is terminated either (A)
by the Albany Group for cause, as determined by the Committee in
its sole discretion, or (B) voluntarily by such employee or
director prior to the earlier to occur of (i) retirement under
the Company's Pension Plus Plan at or after his/her attainment
of age 55 with at least ten (10) years of service with the
Albany Group or (ii) attainment of age 60, then all of such
participant's Accounts shall be deemed to have earned interest
for the five (5) years immediately preceding the date on which
all, or the first installment, of the balances of such Accounts
(treating all Accounts of the participant as a single Account
for this purpose) is received by such participant at the Moody's
Rate, and such Accounts shall be recalculated to take into
account such interest accrual at the Moody's Rate. In addition,
after such date any undistributed balances in such participant's
Accounts shall also bear interest at the Moody's Rate.
3
(2) The service of a participant who has elected to receive the
balances credited to his/her Accounts at the time set forth
in Section 7(a)(1)(C) below shall not be deemed
"terminated" pursuant to Section 6(e)(1)(B) above if such
participant continues to serve as either a director of the
Company or an employee of the Albany Group.
(f) In the case of an early distribution pursuant to Section 8(b),
the portion of any participant Account so distributed shall be
deemed to have earned interest at the Moody's Rate from the date
of the initial deferral until the time of such early
distribution, and such Account shall be recalculated to take
into account such interest accrual at the Moody's Rate.
7. Distribution of Deferred Compensation
(a) At the time of an election to defer pursuant to Section 5, each
director and eligible employee also shall elect the time at
which and the manner in which the balance credited to all of
his/her Accounts shall be distributed to him. Each participant
shall be entitled to make a single election pursuant to this
Section 7(a), which election shall be made at the time the
participant makes his/her first election to defer pursuant to
Section 5 and shall be applicable to all of such participant's
Accounts (including those established for subsequent years).
Such election shall be irrevocable, except as provided in this
Section 7 or in Section 8 hereof.
(1) A participant shall be entitled to elect to receive, or to
commence receiving, the balances credited to his/her
Accounts:
(A) upon the earlier of (i) a date certain specified by
him at the time he makes an election to defer or
(ii) the later of his/her termination of service as
a director of the Company or as an employee of the
Albany Group;
(B) upon his/her termination of service as an employee
of the Albany Group (whether or not such participant
is then a director of the Company); or
(C) upon the later of his/her termination of service as
a director of the Company or his/her termination of
service as an employee of the Albany Group.
Notwithstanding such election, a participant shall have the
balances credited to his/her Accounts automatically distributed
to him (or his/her designated beneficiary or beneficiaries), in
the manner provided pursuant to Section 7(a)(2) but subject to
the further provisions of this Section 7, upon the occurrence of
his/her death or disability (as defined in the Company's Pension
Plus Plan, as amended from time to time).
4
(2) A participant who has elected to receive, or to commence
receiving, the balances credited to his/her Accounts at the
time set forth in Section 7(a)(1)(B) or 7(a)(1)(C) above
shall be entitled to elect to receive such balances in
either a lump sum or in approximately equal monthly
installments (as determined by the Committee in its sole
discretion) over a period elected by him of not more than
thirty (30) years. A participant who has elected to receive
the balances credited to his/her Accounts as set forth in
Section 7(a)(1)(A) above shall receive such balances in the
form of a lump sum.
(b) A participant who has elected to receive, or to commence
receiving, the balances credited to his/her Accounts at the time
set forth in Section 7(a)(1)(B) or 7(a)(1)(C) above may request
that the Committee amend the manner in which he is to receive
such balances. Such request shall be in writing, may only be
made once and may only request acceleration of the receipt of
such balances, either by receipt of a lump sum instead of equal
monthly installments or by decreasing the period over which
equal monthly installments are to be paid. The Committee, in its
sole and absolute discretion, may grant or reject such request.
Any such amendment shall not be effective with respect to a
participant if (1) he had elected to receive, or to commence
receiving, the balances credited to his/her Accounts pursuant to
Section 7(a)(1)(B) and his/her service as an employee of the
Albany Group terminates for any reason within two (2) years
after such amendment or (2) he had elected to receive, or to
commence receiving, the balances credited to his/her Accounts
pursuant to Section 7(a)(1)(C) and his/her service both as a
director of the Company and as an employee of the Albany Group
terminates for any reason within two (2) years after such
amendment.
(c) Subject to the provisions contained in this Section 7(c) and in
Sections 7(d) and 8, all distributions of the balances credited
to a participant's Accounts shall be made, or shall commence,
either on the date certain elected by the participant for such
distribution or within thirty (30) days after any other
triggering event under Section 7(a). The Company may, in its
sole and absolute discretion, delay, for a period of up to one
(1) year, any distribution to be made in the form of a lump sum.
The Company may also, in its sole and absolute discretion,
delay, for a period of up to one (1) year, any payment to the
extent that such payment would result in compensation to the
participant that is not deductible for federal income tax
purposes (whether by reason of Section 162(m) of the Internal
Revenue Code of 1986 or otherwise). Interest shall accrue on
such delayed distributions at the same respective interest rates
as were being applied to the balances in the participant's
Accounts immediately prior to the Company's decision to delay
such payment.
(d) A participant who has elected to receive the balances credited
to his/her Accounts on a date certain pursuant to Section
7(a)(1)(A) may request that the Committee amend such election
and allow him to defer the receipt of such balances to a later
date permitted by Section 7(a)(1); provided that he makes such
5
request to the Committee prior to two (2) years before the date
on which he otherwise would have been entitled to receive such
balances. Such request shall be made in writing, indicating the
revised date upon which he would like distribution of such
balances to occur, and may only be made once during his/her
participation in the Plan. All covered compensation deferred
subsequent to the date of such request shall also be distributed
at such later date. The Committee, in its sole and absolute
discretion, may grant or reject such request.
(e) An election made pursuant to Section 7(a) may also designate a
beneficiary or beneficiaries who shall receive payments of the
balances credited to the participant's Accounts upon the death
of the participant, which designation may be amended by an
instrument in writing filed with the Committee or by will. Such
beneficiary or beneficiaries shall be entitled to receive any
remaining payments due to the participant hereunder in the
manner in which the participant was entitled to receive such
payments. Notwithstanding any other provisions of this Plan, no
distribution of the balances credited to a participant's
Accounts to a beneficiary or beneficiaries of such participant
shall take place over a period longer than fifteen (15) years
beginning on the date such beneficiary or beneficiaries begins
to receive such distribution.
8. Early Distributions
(a) A distribution of a portion or the entire balance credited to
any Account of a participant may be made prior to the time at
which he would have been entitled to receive, or to commence
receiving, such balance in accordance with the instrument filed
pursuant to Section 7(a) hereof in the event of hardship. For
purposes of this Section 8(a), a distribution is on account of
hardship only if the distribution is made:
(1) on account of an immediate and heavy financial need of the
participant, occasioned by an unanticipated emergency
caused by events beyond his/her control that would result
in severe financial hardship if the distribution were not
permitted;
(2) in an amount required to satisfy such financial need; and
(3) in circumstances in which the need cannot be satisfied from
other resources that are reasonably available to the
participant, such as through reimbursement or compensation
by insurance or otherwise, by reasonable liquidation of
his/her assets (to the extent such liquidation would not
itself cause an immediate and heavy financial need), by
cessation of further deferrals under the Plan, or by other
permitted distributions or nontaxable (at the time of the
loan) loans from other plans maintained by the Albany
Group, or by borrowing from commercial sources on
reasonable commercial terms.
6
A participant shall make a request in writing to the Committee
for a distribution to be made on account of hardship. The
Committee shall determine whether the requested distribution
satisfies the requirements of this Section 8(a) on the basis of
all relevant facts and circumstances. Any distribution of less
than 100% of the balances credited to all existing Accounts of a
participant pursuant to this Section 8(a) shall be deemed to be
a distribution of the earliest compensation which would have
been paid had it not been deferred.
(b) A distribution of a portion or the entire balance credited to
any Account of a participant may be made prior to the time at
which he would have been entitled to receive, or to commence
receiving, such balance in accordance with the instrument filed
pursuant to Section 7(a) hereof upon the occurrence of an
extraordinary event and for good reason as determined by the
Committee, in its sole and absolute discretion, upon the request
of such participant. The Committee, in its sole and absolute
discretion, may grant or reject such request. Any distribution
of less than 100% of the balances credited to all existing
Accounts of a participant pursuant to this Section 8(b) shall be
deemed to be a distribution of the earliest compensation which
would have been paid had it not been deferred.
9. Manner of Election
No earlier than November 1 and no later than December 15 of the year
immediately prior to the year in which such covered compensation would
otherwise be earned and paid, each director and eligible employee shall be
entitled to file instruments with the Committee exercising his/her elections
under Section 5 and, in the case of the director's or eligible employee's
initial election under the Plan, Section 7(a) of the Plan. Each election under
Section 5 shall be applicable only to covered compensation earned and otherwise
payable in the immediately subsequent year. Notwithstanding the foregoing, (a)
in the year in which the Plan is first implemented, directors and eligible
employees shall be entitled to file such instruments to defer covered
compensation for services to be performed during such year and subsequent to
such elections not later than thirty (30) days after the date the Plan becomes
effective and (b) in the first year in which a director or eligible employee
becomes eligible to participate in the Plan, such director or eligible employee
shall be entitled to file such instruments to defer covered compensation for
services to be performed during such year and subsequent to such elections
within thirty (30) days after the date he first becomes eligible. Each election
under Section 5 shall be irrevocable. Except as otherwise provided in Sections
7 and 8, the election under Section 7(a) shall also be irrevocable. If a
director or eligible employee does not file such instruments under the Plan,
his/her covered compensation shall be paid to him in cash on a non-deferred
basis.
10. Administration of Plan
The Plan shall be administered by the Compensation and Stock Option
Committee of the Board of Directors of the Company. The Committee shall
interpret the Plan and make all decisions with respect to the rights of
directors and eligible employees hereunder; provided,
7
however, that no member of the Committee shall act on any matter in which
such member has a particular or special interest. All elections and other
instruments shall be filed with the Committee on forms prescribed by the
Committee from time to time. The initial forms to be used for making
elections pursuant to Sections 5 and 7(a) hereof are attached hereto as
Exhibits A and B, respectively.
11. Funding
This Plan shall be unfunded. Amounts payable hereunder shall be paid
from the general assets of the Company. The Company may establish a trust
pursuant to a trust agreement and make contributions thereto for the purpose of
assisting the Company in meeting its obligations in respect of benefits payable
under the Plan. Any such trust agreement shall contain procedures to the
following effect:
(a) In the event of the insolvency of the Company, the trust fund
will be available to pay the claims of any creditor of the
Company to whom a distribution may be made in accordance with
state and federal bankruptcy laws. The Company shall be deemed
to be "insolvent" if the Company is subject to a pending
proceeding as a debtor under the federal Bankruptcy Code (or any
successor federal statute) or any state bankruptcy code. In the
event the Company becomes insolvent, the Board of Directors and
chief executive officer of the Company shall notify the trustee
of that event as soon as practicable. Upon receipt of such
notice, or if the trustee receives other written allegation of
the Company's insolvency, the trustee shall cease making
payments of benefits from the trust fund, shall hold the trust
fund for the benefit of the Company's creditors, and shall take
such steps as are necessary to determine within thirty (30) days
whether the Company is insolvent. In the case of the trustee's
actual knowledge of or other determination of the Company's
insolvency, the trustee will deliver assets of the trust fund to
satisfy claims of the Company's creditors as directed by a court
of competent jurisdiction;
(b) The trustee shall resume payment of benefits under the trust
agreement only after the trustee has determined that the Company
is not insolvent (or is no longer insolvent, if the trustee had
previously determined the Company to be insolvent) or upon
receipt of an order of a court of competent jurisdiction
requiring such payment. If the trustee discontinues payment of
benefits pursuant to paragraph (a) of this Section 11 and
subsequently resumes such payment, the first payment on account
of a participant following such discontinuance shall include an
aggregate amount equal to the difference between the payments
which would have been made on account of such participant under
the trust agreement and the aggregate payments actually made on
account of such participant by the Company during any such
period of discontinuance, plus interest on such amount at a rate
equivalent to the net rate of return earned by the trust fund
during the period of such discontinuance.
8
12. Reports to Participants
The Committee shall provide to each participant a report twice a year,
as of each June 30 and December 31, detailing the status of that participant's
Accounts.
13. Amendment or Termination
This Plan may be amended or terminated at any time by the Board of
Directors of the Company or by the Committee; provided, however, that no
amendment may reduce the interest rate on any covered compensation deferred
pursuant to an election made prior to the date on which such amendment is
adopted and announced by the Committee, whether or not credited to a
participant's Account prior to the effective date of such amendment. Upon
termination of the Plan, the Committee may distribute to each participant the
balances credited to his/her Accounts at the time of such termination in the
form of a lump sum or otherwise as it determines in its sole discretion. The
Company shall notify each participant and each beneficiary currently entitled
to benefits under the Plan of termination of the Plan within ninety (90) days
after such termination; provided that the failure to give such notice shall not
affect the Company's rights hereunder.
14. Non-Assignability
Interests in covered compensation deferred or in a participant's
Accounts shall not be assignable or transferable or subject to attachment,
garnishment, levy, execution or other legal or equitable process, except by
will or the laws of descent and distribution.
15. Plan Not a Contract of Employment
This Plan is not a contract of employment, and the terms of employment
of any employee of the Albany Group shall not be affected in any way by the
Plan or related instruments except as specifically provided in the Plan or such
related instruments. The establishment of the Plan shall not be construed as
conferring any legal rights upon any employee for a continuation of employment,
nor shall it interfere with the right of the Albany Group to discharge any
employee and to treat him without regard to the effect which such treatment
might have upon him as a participant. Each participant and all persons who may
have or claim any right by reason of his/her participation shall be bound by
the terms of the Plan and all agreements entered into pursuant thereto.
16. Construction
(a) The Plan is intended to qualify as an unfunded plan maintained
primarily for the purpose of providing deferred compensation for
a select group of management or highly compensated employees as
referred to in Section 201(2) of ERISA, and its terms shall be
interpreted accordingly. Otherwise, the laws of the State of New
York shall control the interpretation and performance of the
terms of the Plan.
(b) If any provision of the Plan, or the application of any such
provision to any person or circumstances, shall be invalid under
any federal or state law, neither the application of such
9
provision to persons or circumstances other than those as to
which such provision is invalid nor any other provisions of the
Plan shall be affected thereby.
10
Exhibit A
ALBANY INTERNATIONAL CORP.
CENTENNIAL DEFERRED COMPENSATION PLAN
Election as to Amount of Covered Compensation to be
Deferred for 19__
The undersigned, [a director] [and] [an eligible employee] under the
Centennial Deferred Compensation Plan (the "Plan") of Albany International
Corp. (the "Company"), hereby elects as follows pursuant to Section 5 of such
Plan:
Please withhold from my covered compensation payable in 19__ the
following:
(check one only)
(a) ___% of my base salary per month and ___% of my annual bonus compensation.
(b) $____ per month out of my base salary and $____ out of my annual bonus
compensation.
(check one only)
(a) ___% of my directors' fees.
(b) $____ out of my directors' fees.
The foregoing election shall be effective for the calendar year
commencing January 1, 19__ and ending December 31 of such year. The foregoing
election is subject to the terms and conditions of the Plan, which are
incorporated herein by reference.
By executing this election, I acknowledge that:
(a) I have received (i) a copy of the Plan, (ii) the most recent Annual
Report of the Company containing the Company's audited financial
statements for the most recently ended fiscal year of the Company and
(iii) such other financial information regarding the Company as I deem
necessary in connection with my execution of this election and my
participation in the Plan; and
(b) I understand that my rights under the Plan are as a general creditor
of the Company and that no funds of the Company will be set aside, in
a trust or otherwise, for the payment of benefits owing to me under
the Plan.
I UNDERSTAND THAT ANY COVERED COMPENSATION WHICH I DEFER PURSUANT TO THIS
ELECTION WILL NOT BE INCLUDED AS "COMPENSATION" FOR PURPOSES OF DETERMINING THE
AMOUNT OF BENEFITS (IF ANY) I WILL RECEIVE UNDER THE COMPANY'S PENSION PLUS
PLAN AND UNDER THE COMPANY'S
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN, AND THAT SUCH NON-INCLUSION MAY RESULT
IN A REDUCTION OF SUCH BENEFITS. I ALSO UNDERSTAND THAT ANY COVERED
COMPENSATION WHICH I DEFER PURSUANT TO THIS ELECTION WILL NOT BE INCLUDED AS
"COMPENSATION" FOR PURPOSES OF DETERMINING THE PERCENTAGE OF MY COMPENSATION
THAT I MAY HAVE ELECTED TO CONTRIBUTE OR TO HAVE CONTRIBUTED TO MY ACCOUNT IN
THE COMPANY'S PROSPERITY PLUS 401(K) PLAN, AND THAT SUCH NON-INCLUSION MAY
REDUCE THE CONTRIBUTIONS TO SUCH ACCOUNT AND MAY REDUCE THE AMOUNT OF MATCHING
CONTRIBUTIONS AND PROFIT-SHARING CONTRIBUTIONS (IF ANY) FOR WHICH I MAY BE
ELIGIBLE UNDER THE COMPANY'S PROSPERITY PLUS 401(K) PLAN AND PROSPERITY PLUS
EMPLOYEE STOCK OWNERSHIP PLAN. I FURTHER UNDERSTAND THAT ANY COVERED
COMPENSATION WHICH I DEFER PURSUANT TO THIS ELECTION MAY NEVERTHELESS BE
SUBJECT TO CERTAIN EMPLOYMENT TAXES ON A CURRENT BASIS, SUCH AS TAXES UNDER
THE FEDERAL INSURANCE CONTRIBUTIONS (SOCIAL SECURITY) ACT.
Executed this _____ day of ____________, 19__.
- ----------------------------------
Signature
EMPLOYEES OF THE ALBANY GROUP WHO WORK OUTSIDE THE UNITED STATES SHOULD CONSULT
WITH THEIR PERSONAL TAX ADVISER REGARDING THE EFFECT OF PARTICIPATION IN THE
PLAN ON THEIR PARTICULAR CIRCUMSTANCES.
Exhibit B
ALBANY INTERNATIONAL CORP.
CENTENNIAL DEFERRED COMPENSATION PLAN
Election as to Time and Manner in which Deferred Compensation
shall be Distributed
The undersigned, [a director] [and][an eligible employee] under the
Centennial Deferred Compensation Plan (the "Plan") of Albany International
Corp. (the "Company"), hereby elects as follows, pursuant to Section 7(a) of
such Plan:
1. Time of Distribution
The balances credited to my Accounts (as defined in the Plan) shall be
distributed to me, or such distribution shall commence:
(check one only)
(a) _____ on the earlier of [Month/Day/Year] or my termination of service as
a director of the Company or as an employee of the Company and its
subsidiaries (collectively, the "Albany Group").
(b) _____ upon my termination of service as an employee of the Albany Group
(whether or not I am then a director of the Company).
(c) _____ upon the later of my termination of service as a director of the
Company or as an employee of the Albany Group.
The balances credited to my Accounts will be automatically distributed
in the event of my earlier death or disability (as defined in the Company's
Pension Plus Plan, as amended from time to time).
2. Manner of Distribution
Distribution shall be made as follows:
(check one only)
(a) _____ in a lump sum
(b) _____ in approximately equal monthly installments over 30 years
(c) _____ in approximately equal monthly installments over __ years
If option (a) is checked in paragraph 1 above, only option (a) may be
checked under this paragraph 2.
3. Designation of Beneficiaries
Upon my death, the following person(s) shall be entitled to receive
the balances credited to my Accounts:
<TABLE>
<CAPTION>
Name Address Relationship
<S> <C> <C>
- ------------------------ ------------------------ ------------------------
- ------------------------ ------------------------ ------------------------
- ------------------------ ------------------------ ------------------------
</TABLE>
I understand that the foregoing elections under paragraphs 1 and 2
above are irrevocable, except as provided in Sections 7 and 8 of the Plan, and
apply to all covered compensation the receipt of which I may elect to defer in
the future pursuant to the Plan. The foregoing elections are subject to the
terms and conditions of the Plan, which are incorporated herein by reference.
Executed this _____ day of ____________, 19__.
- ----------------------------------
Signature
