<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 30, 1997
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
SCHEDULE 14D-1
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(D)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 2)
---------------
CORE INDUSTRIES INC
(Name of Subject Company)
---------------
UD NEVADA CORP.
AND
UNITED DOMINION INDUSTRIES LIMITED
(Bidder)
---------------
COMMON STOCK, $1.00 PAR VALUE
(Title of Class of Securities)
---------------
218675106
(CUSIP Number of Class of Securities)
---------------
RICHARD L. MAGEE, ESQ.
SECRETARY
UD NEVADA CORP.
UNITED DOMINION INDUSTRIES LIMITED
2300 ONE FIRST UNION CENTER
CHARLOTTE, NORTH CAROLINA 28202-6039
TELEPHONE: (704) 347-6800
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of Bidder)
COPY TO:
STEPHEN M. LYNCH, ESQ.
ROBINSON, BRADSHAW & HINSON, P.A.
1900 INDEPENDENCE CENTER
101 NORTH TRYON STREET
CHARLOTTE, NORTH CAROLINA 28246
TELEPHONE: (704) 377-2536
---------------
<PAGE> 2
CUSIP No. 218675106 SCHEDULE 14D-1 Page 2 of 8 pages
-------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
UD Nevada Corp.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
BK, WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(e) or 2(f) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Nevada
- --------------------------------------------------------------------------------
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
0
- --------------------------------------------------------------------------------
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7)
EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
0.0%
- --------------------------------------------------------------------------------
10 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
-2-
<PAGE> 3
CUSIP No. 218675106 SCHEDULE 14D-1 Page of 8 pages
-------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
United Dominion Industries Limited
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
BK, WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(e) or 2(f) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
- --------------------------------------------------------------------------------
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
0
- --------------------------------------------------------------------------------
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7)
EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
0.0%
- --------------------------------------------------------------------------------
10 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
-3-
<PAGE> 4
This Amendment No. 2 (this "Amendment No. 2") is to the Tender Offer
Statement on Schedule 14D-1 (the "Statement") that relates to the offer by UD
Nevada Corp., a Nevada corporation ("Purchaser") and an indirect wholly owned
subsidiary of United Dominion Industries Limited, a corporation organized under
the laws of Canada ("Parent"), to purchase all outstanding shares of Common
Stock, par value $1.00 per share, of Core Industries Inc, a Nevada corporation,
at a price of $25.00 per Share, net to the seller in cash, without interest
thereon, upon the terms and subject to the conditions set forth in Purchaser's
Offer to Purchase dated July 2, 1997 (the "Offer to Purchase") and in the
related Letter of Transmittal (which, as amended from time to time, together
constitute the "Offer"), copies of which were attached to the Statement as
Exhibits (a)(1) and (a)(2) thereto, respectively. The Offer is scheduled to
expire at 12:00 midnight, New York City time, on July 30, 1997, unless extended
in accordance with the Offer to Purchase. The Statement was filed with the
Securities and Exchange Commission on July 2, 1997.
This Amendment No. 2 also constitutes an amendment to the Statement on
Schedule 13D with respect to the acquisition by Purchaser and Parent of
beneficial ownership of the Shares. The item numbers and responses thereto below
are in accordance with the requirements of Schedule 14D-1.
Capitalized terms used in this Amendment No. 2 but not defined herein
have the meanings ascribed to such terms in the Offer to Purchase and the
Statement.
ITEM 4. SOURCE AND AMOUNT OF FUNDS AND OTHER CONSIDERATION.
Item 4 is hereby amended and supplemented by adding to the end thereof
the following:
On July 18, 1997, Parent, United Dominion Holdings, Inc. and
United Dominion Industries, Inc. entered into a $650,000,000 Second
Amendment and Restatement of the Credit Agreement and Guaranty dated as
of July 28, 1997 with Royal Bank of Canada, as Agent, and the financial
Institutions named therein (the "Credit Agreement"). The Credit
Agreement establishes the Five-Year Facility described in Section 9 of
the Offer to Purchase. A copy of the Credit Agreement is filed as
Exhibit (b)(2) hereto and is incorporated by reference herein. Parent
will not enter into the Bridge Facility described in the Offer to
Purchase. Working capital and borrowings under the Credit Agreement
will be sufficient to fund the purchase of Shares in the Offer and
payment for remaining Shares in the Merger.
ITEM 10. ADDITIONAL INFORMATION.
Item 10 is hereby amended and supplemented by adding to the end thereof
the following:
The boldface paragraph appearing in Section 7 of the Offer to
Purchase (the third paragraph on page 10) is hereby amended and
restated to read as follows:
PROJECTED INFORMATION OF THIS TYPE IS BASED ON
ESTIMATES AND ASSUMPTIONS THAT ARE INHERENTLY SUBJECT TO SIGNIFICANT
ECONOMIC AND COMPETITIVE UNCERTAINTIES AND CONTINGENCIES, ALL OF WHICH
ARE DIFFICULT TO PREDICT AND MANY OF WHICH ARE BEYOND THE COMPANY'S
CONTROL. THESE FORWARD-LOOKING STATEMENTS ARE SUBJECT TO CERTAIN RISKS
AND UNCERTAINTIES THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY
FROM THESE PROJECTIONS. THESE PROJECTIONS REFLECT NUMEROUS ASSUMPTIONS,
ALL MADE BY MANAGEMENT OF
-4-
<PAGE> 5
THE COMPANY, WITH RESPECT TO INDUSTRY PERFORMANCE, GENERAL BUSINESS,
ECONOMIC, MARKET AND FINANCIAL CONDITIONS AND OTHER MATTERS INCLUDING
ASSUMED INTEREST EXPENSE AND EFFECTIVE TAX RATES CONSISTENT WITH
HISTORICAL LEVELS FOR THE COMPANY, ALL OF WHICH ARE DIFFICULT TO
PREDICT, MANY OF WHICH ARE BEYOND THE COMPANY'S CONTROL AND NONE OF
WHICH WERE SUBJECT TO APPROVAL BY PARENT OR PURCHASER. ACCORDINGLY,
THERE CAN BE NO ASSURANCE THAT THE PROJECTED RESULTS WILL BE REALIZED
OR THAT ACTUAL RESULTS WILL NOT BE SIGNIFICANTLY HIGHER OR LOWER THAN
THOSE SET FORTH ABOVE. IN ADDITION, THESE PROJECTIONS WERE NOT PREPARED
WITH A VIEW TO PUBLIC DISCLOSURE OR COMPLIANCE WITH THE PUBLISHED
GUIDELINES OF THE COMMISSION OR THE GUIDELINES ESTABLISHED BY THE
AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS REGARDING
PROJECTIONS AND FORECASTS AND ARE INCLUDED IN THIS OFFER TO PURCHASE
ONLY BECAUSE SUCH INFORMATION WAS MADE AVAILABLE TO PARENT BY THE
COMPANY. NONE OF PARENT, PURCHASER OR THEIR FINANCIAL ADVISORS ASSUMES
ANY RESPONSIBILITY FOR THE ACCURACY OR VALIDITY OF THE FOREGOING
PROJECTIONS. NONE OF PARENT, PURCHASER AND ANY OF THEIR FINANCIAL
ADVISORS HAS MADE, OR MAKES, ANY REPRESENTATION TO ANY PERSON REGARDING
THE INFORMATION CONTAINED IN THESE PROJECTIONS AND NONE OF THEM NOR THE
COMPANY INTENDS TO UPDATE OR OTHERWISE REVISE THESE PROJECTIONS TO
REFLECT CIRCUMSTANCES EXISTING AFTER THE DATE WHEN MADE OR TO REFLECT
CIRCUMSTANCES EXISTING AFTER THE DATE WHEN MADE OR TO REFLECT THE
OCCURRENCE OF FUTURE EVENTS EVEN IN THE EVENT THAT ANY OR ALL OF THE
ASSUMPTIONS UNDERLYING THESE PROJECTIONS ARE SHOWN TO BE IN ERROR.
The initial clause contained in the first sentence of Section
14 of the Offer to Purchase (page 28) is amended and restated to read
as follows (the remainder of such sentence, including the list of
conditions to the Offer, is unchanged):
14. CERTAIN CONDITIONS OF THE OFFER. Notwithstanding
any other provision of the Offer, Purchaser shall not be required to
accept for payment or pay for any Shares tendered pursuant to the
Offer, and may terminate or amend the Offer and may postpone the
acceptance for payment of and payment for Shares tendered, if (i) the
Minimum Condition shall not have been satisfied prior to the Expiration
Date, (ii) any applicable waiting period under the HSR Act shall not
have expired or been terminated prior to the expiration of the Offer or
(iii) at any time on or after the date of the Merger Agreement, and
prior to the Expiration Date, any of the following conditions shall
exist:
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 is hereby amended and supplemented by adding the following:
(a)(12) Press release issued by Parent on July 29, 1997
(b)(2) $650,000,000 Second Amendment and Restatement of the Credit
Agreement and Guaranty, dated as of July 28, 1997, among
Parent, United Dominion Industries, Inc. and United Dominion
Holdings, Inc., as Obligors, the financial institutions named
therein, as Banks, and Royal Bank of Canada, as Agent
-5-
<PAGE> 6
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
UD NEVADA CORP.
By: /s/ GLENN A. EISENBERG
------------------------------
Name: Glenn A. Eisenberg
Title: Vice President
By: /s/ ROBERT P. MCKINNEY
------------------------------
Name: Robert P. McKinney
Title: Assistant Secretary
July 29, 1997
-6-
<PAGE> 7
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
UNITED DOMINION INDUSTRIES LIMITED
By: /s/ GLENN A. EISENBERG
------------------------------
Name: Glenn A. Eisenberg
Title: Senior Vice President
By: /s/ ROBERT P. MCKINNEY
------------------------------
Name: Robert P. McKinney
Title: Assistant Secretary
July 29, 1997
-7-
<PAGE> 8
EXHIBIT INDEX
Exhibit
No.
- ---
(a)(1)* Form of Offer to Purchase dated July 2, 1997
(a)(2)* Form of Letter of Transmittal
(a)(3)* Form of Notice of Guaranteed Delivery
(a)(4)* Form of Letter from Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Furman Selz LLC to Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees
(a)(5)* Form of Letter from Brokers, Dealers, Commercial Banks, Trust
Companies and Nominees to Clients
(a)(6)* Form of Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9
(a)(7)* Summary Advertisement as published in The Wall Street Journal on
July 2, 1997
(a)(8)* Press release issued by Parent on June 26, 1997
(a)(9)* Press release issued by the Company on June 26, 1997
(a)(10)* Form of Letter from Putnam Investments to participants in Core
Industries Inc 401(k) Plans, with transmittal instructions
(a)(11)* Press release issued by Parent on July 23, 1997
(a)(12) Press release issued by Parent on July 29, 1997 (incorporated by
reference to Exhibit (a)(14) to Amendment No. 4/Final to Schedule
14D-1 of Parent and UD Delaware Corp. with respect to Imo
Industries Inc. dated July 29, 1997)
(b)(1)* Commitment letter dated June 24, 1997 from Royal Bank of Canada in
favor of Parent and United Dominion Industries, Inc.
(b)(2) $650,000,000 Second Amendment and Restatement of the Credit
Agreement and Guaranty, dated as of July 28, 1997, among Parent,
United Dominion Industries, Inc. and United Dominion Holdings, Inc.,
as Obligors, the financial institutions named therein, as Banks, and
Royal Bank of Canada, as Agent
(c)(1)* Agreement and Plan of Merger, dated as of June 25, 1997, among
Parent, Purchaser and the Company
(c)(2)* Confidentiality Agreement dated October 2, 1996 between the Company
and United Dominion Industries, Inc.
(c)(3)* Letter Agreement dated June 20, 1997 between the Company and Parent
regarding payment of certain fees
- -----------------------
* Previously filed.
-8-
<PAGE> 1
EXHIBIT (b)(2)
EXECUTION COPY
$650,000,000
SECOND AMENDMENT AND RESTATEMENT
of the
CREDIT AGREEMENT AND GUARANTY
Dated as of July 28, 1997
among
UNITED DOMINION INDUSTRIES LIMITED
UNITED DOMINION INDUSTRIES, INC.
and
UNITED DOMINION HOLDINGS, INC.,
as Obligors
THE FINANCIAL INSTITUTIONS NAMED HEREIN,
as Banks
and
ROYAL BANK OF CANADA,
as Agent
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
<S> <C> <C>
ARTICLE I. DEFINED TERMS; CONSTRUCTION................................... 1
1.1 Defined Terms............................................................................... 1
1.2 Accounting and Banking Terms and Calculations............................................... 17
1.3 Construction................................................................................ 18
ARTICLE II. THE CREDIT FACILITIES...................................... 19
2.1 Commitments................................................................................. 19
2.2 Committed Loan Borrowings................................................................... 19
2.3 Procedure for Committed Loan Borrowings..................................................... 20
2.4 Competitive Bid Loans....................................................................... 21
2.5 Procedure for Competitive Bid Loan Borrowing................................................ 21
2.6 Evidence of Indebtedness.................................................................... 25
2.7 Termination or Reduction of Commitments..................................................... 26
2.8 Prepayments................................................................................. 26
2.9 Conversion Option........................................................................... 27
2.10 Interest Rates and Payment Dates............................................................ 28
2.11 Inability to Determine Eurodollar Rate or
Deutschemark Rate; Unavailability........................................................... 29
2.12 Reserves; Increased Costs................................................................... 31
2.13 Illegality.................................................................................. 32
2.14 Funding Losses.............................................................................. 33
2.15 Taxes....................................................................................... 33
2.16 Pro Rata Treatment and Payments............................................................. 34
2.17 Use of Proceeds of Borrowings............................................................... 36
2.18 Parent's Authority.......................................................................... 36
2.19 Mitigation of Costs......................................................................... 37
2.20 Letters of Credit........................................................................... 37
ARTICLE III. EXPENSES, FEES AND INDEMNIFICATION............................... 41
3.1 Expenses.................................................................................... 41
3.2 Fees........................................................................................ 41
3.3 Indemnification............................................................................. 43
ARTICLE IV. GUARANTY............................................ 43
4.1 Guaranty of Payment......................................................................... 43
4.2 Obligations Unconditional................................................................... 44
4.3 Payment by Guarantor-Obligors............................................................... 45
4.4 Stay of Acceleration........................................................................ 45
4.5 Cumulative Remedies......................................................................... 46
4.6 Waivers..................................................................................... 46
4.7 Subrogation; Limitation of Guaranty......................................................... 46
4.8 Survival of Guaranty........................................................................ 47
4.9 Subordination............................................................................... 47
ARTICLE V. REPRESENTATIONS AND WARRANTIES.................................. 47
5.1 Corporate Status............................................................................ 47
5.2 Power and Authority, Binding Effect and Rank of
Obligations................................................................................. 47
5.3 No Violation................................................................................ 48
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
5.4 Governmental Approvals...................................................................... 48
5.5 Litigation.................................................................................. 48
5.6 Taxes....................................................................................... 49
5.7 Regulated Borrowing......................................................................... 49
5.8 No Burdensome Agreements; No Default........................................................ 49
5.9 Margin Stock................................................................................ 50
5.10 Financial Statements........................................................................ 50
5.11 Title to Properties......................................................................... 50
5.12 Compliance with Environmental and Other Laws................................................ 50
5.13 Compliance with ERISA....................................................................... 51
5.14 Foreign Plans............................................................................... 51
5.15 Retiree Health and Life Insurance Benefits.................................................. 51
5.16 [RESERVED].................................................................................. 51
5.17 Enforceability in Canada.................................................................... 51
5.18 Payment Obligations......................................................................... 52
ARTICLE VI. CONDITIONS PRECEDENT...................................... 52
6.1 Conditions to Effectiveness................................................................. 52
6.2 Conditions of Each Borrowing................................................................ 54
ARTICLE VII. AFFIRMATIVE COVENANTS..................................... 56
7.1 Existence, Properties....................................................................... 56
7.2 Payment of Debts; Taxes..................................................................... 56
7.3 Financial Statements, Reports, etc.......................................................... 57
7.4 [RESERVED].................................................................................. 58
7.5 Notice of Default or Litigation............................................................. 58
7.6 Records, Inspection......................................................................... 58
7.7 Observance of Legal Requirements............................................................ 58
7.8 Obtain Approval............................................................................. 59
7.9 Further Assurances.......................................................................... 59
7.10 [RESERVED].................................................................................. 59
7.11 Right to Inspect............................................................................ 59
ARTICLE VIII. NEGATIVE COVENANTS...................................... 59
8.1 Borrowed Money Indebtedness................................................................. 59
8.2 Liens....................................................................................... 59
8.3 Merger, Sale of Assets...................................................................... 60
8.4 Contingent Obligations...................................................................... 61
8.5 [RESERVED].................................................................................. 61
8.6 Dividends and Purchases of Stock............................................................ 61
8.7 Loans and Advances.......................................................................... 62
8.8 Change in Nature of Business................................................................ 62
8.9 Transactions with Affiliates................................................................ 62
8.10 Fixed Charge Coverage Ratio................................................................. 62
8.11 Consolidated Funded Debt.................................................................... 62
8.12 New Payment Obligations..................................................................... 62
8.13 ERISA....................................................................................... 63
ARTICLE IX. EVENTS OF DEFAULT........................................ 63
9.1 Failure of Payment.......................................................................... 63
9.2 Misstatements............................................................................... 63
9.3 Certain Covenants........................................................................... 63
9.4 Other Covenants............................................................................. 63
9.5 Other Obligations........................................................................... 63
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
9.6 Judgments................................................................................... 64
9.7 Bankruptcy.................................................................................. 64
ARTICLE X. THE AGENT............................................ 65
10.1 Appointment of Agent........................................................................ 65
10.2 Nature of Agent's Duties.................................................................... 66
10.3 No Reliance by Banks, Actions by Agent...................................................... 66
10.4 Reimbursement and Indemnification of Agent.................................................. 67
10.5 The Agent; Individually..................................................................... 68
10.6 Successor Agent............................................................................. 68
10.7 The Agent and the Obligors.................................................................. 68
ARTICLE XI. MISCELLANEOUS.......................................... 68
11.1 Stamp Taxes................................................................................. 68
11.2 Right of Set-off and Compensation........................................................... 69
11.3 Notices..................................................................................... 69
11.4 No Waiver; Remedies Cumulative.............................................................. 69
11.5 Amendments and Waivers...................................................................... 70
11.6 Adjustments................................................................................. 71
11.7 Benefit of Agreement; Assignments and
Participations.............................................................................. 71
11.8 Governing Law............................................................................... 74
11.9 Submission to Jurisdiction.................................................................. 74
11.10 Usury....................................................................................... 75
11.11 Severability................................................................................ 75
11.12 Survival.................................................................................... 75
11.13 Enforcement by Agent........................................................................ 76
11.14 Obligations Several......................................................................... 76
11.15 Confidentiality of Information.............................................................. 76
11.16 Currency.................................................................................... 77
11.17 Descriptive Headings........................................................................ 77
11.18 Counterparts................................................................................ 77
11.19 English Language............................................................................ 77
11.20 WAIVERS OF JURY TRIAL....................................................................... 77
11.21 Additional Commitments; New Banks........................................................... 78
11.22 No Bankruptcy Proceedings................................................................... 78
</TABLE>
iii
<PAGE> 5
SCHEDULES
Schedule I Commitments
Schedule II Addresses for Notices and Lending Offices
Schedule 5.18 Payment Obligations
Schedule 6.1 Jurisdictions of Incorporation and Qualification
Schedule 8.4 Contingent Obligations
Schedule 8.7 Loans and Advances
EXHIBITS
Exhibit A Form of Opinion of Stikeman, Elliot
Exhibit B Form of Opinion of Robert P. McKinney, Esq.
Exhibit C-1 Form of Competitive Bid Loan Request
Exhibit C-2 Form of Competitive Bid Loan Offer
Exhibit C-3 Form of Competitive Bid Loan Confirmation
Exhibit D Form of Notice of Conversion
Exhibit E Form of Opinion of Simpson Thacher & Bartlett
Exhibit F Form of Designation Agreement
iv
<PAGE> 6
SECOND AMENDMENT AND RESTATEMENT, dated as of July 28, 1997,
of the Amendment and Restatement of the Credit Agreement and Guaranty, dated as
of June 20, 1996, as amended (the "Existing Agreement"), among (i) UNITED
DOMINION INDUSTRIES LIMITED, a Canadian corporation (the "Parent"), UNITED
DOMINION INDUSTRIES, INC., a Delaware corporation ("UDI"), UNITED DOMINION
HOLDINGS, INC., a Delaware corporation ("UDH") (individually, an "Obligor" and,
collectively, the "Obligors"), (ii) the financial institutions listed on the
signature pages hereof or which, pursuant to Section 11.7(b) hereof, shall
become "Banks" hereunder (individually, a "Bank" and, collectively, the "Banks")
and (iii) ROYAL BANK OF CANADA, as agent for the Banks hereunder (in such
capacity, together with any successor thereto, the "Agent").
WHEREAS, the parties to the Existing Agreement desire to amend
and restate the Existing Agreement in its entirety to, among other things, (i)
finance the acquisition of Imo Industries Inc. ("Imo"), a Delaware corporation
(the "Imo Acquisition"), (ii) finance the acquisition of Core Industries Inc.
("Core"), a Nevada corporation (the "Core Acquisition" and together with the Imo
Acquisition, the "Acquisitions"), (iii) refinance certain existing indebtedness
of Imo and Core, (iv) provide for an increase in the aggregate Commitments to
$650,000,000 and (v) amend certain covenants and definitions in the Existing
Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties agree that, on the Effective
Date, the Existing Agreement shall be amended and restated in its entirety to
read as follows:
ARTICLE I. DEFINED TERMS; CONSTRUCTION
1.1 Defined Terms. In this Agreement:
"Additional Commitments" has the meaning specified in
Section 11.21.
"Affiliate" means, with respect to any Person, any other
Person that directly or indirectly controls, or is under common control with, or
is controlled by such Person. As used in this definition, "control" (including,
with its correlative meanings, "controlled by" and "under common control with")
means possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interest, by contract or otherwise) and, in any
event, any Person that owns, directly or indirectly, 5% or more of the
securities having ordinary voting power for the election of directors or other
governing body of a corporation or 5% or more of the partnership or other
ownership interests of any other Person (other than as a limited partner of such
other Person) shall be
<PAGE> 7
2
deemed to "control" (including its correlative meanings referred to above) such
corporation or other Person.
"Agent's Office" means the office of the Agent located at
Financial Square, New York, New York 10005, or such other office in the United
States as the Agent may hereafter designate to the other parties hereto.
"Aggregate Commitment" means the sum of the Commitments.
"Aggregate Outstanding Extensions of Credit" means, as to any
Bank at any time, an amount equal to the sum of (a) the sum of the aggregate
principal amount of all Loans made by such Bank then outstanding in Dollars and
the aggregate Equivalent Amount in Dollars of all Loans made by such Bank then
outstanding in Deutschemarks and (b) such Bank's Commitment Percentage of the
L/C Obligations then outstanding.
"Agreed Currency" has the meaning specified in Section 11.16.
"Agreement" means this Second Amendment and Restatement of the
Credit Agreement and Guaranty as it may hereafter be amended, supplemented or
otherwise modified.
"Applicable Margin" means (a) with respect to Base Rate Loans,
zero percent (O%), and (b) with respect to Eurodollar Rate Committed Loans and
Deutschemark Rate Committed Loans, (i) for the period from the Effective Date to
the first Pricing Determination Date, a rate per annum equal to 17 basis points
and (ii) thereafter for each period from each Pricing Determination Date to the
next Pricing Determination Date, the rate set forth opposite the Status of the
Obligors at the beginning of each such period as set forth below:
<TABLE>
<CAPTION>
Status Applicable Margin
------ -----------------
<S> <C>
Level I 0.1700%
Level II 0.2500%
Level III 0.3250%
</TABLE>
"Asset Securitization Expense" means, for any period, the
funding costs, servicing fees, fees on unutilized purchase commitments, and
other similar costs and expenses incurred in connection with asset
securitization transactions of the Parent or any of its Consolidated
Subsidiaries.
"Assignment" has the meaning specified in Section 11.7.
"Banks" has the meaning specified in the preamble hereto and
including the Designated Lenders, if any, from time to time; provided however,
that the term "Bank" shall exclude each Designated Lender when used in reference
to a Committed Loan
<PAGE> 8
3
(except to the extent a Designated Lender is the obligee of a Committed Loan
actually funded by it pursuant to subsection 2.3(c) hereof), the Commitments or
terms relating to the Committed Loans (except as noted above) and the
Commitments.
"Bank Parties" has the meaning specified in Section 3.3.
"Base Rate" means, for any day, the higher of (a) the rate of
interest per annum determined by RBC from time to time in New York, New York in
its sole discretion as its Dollar prime commercial lending rate for such day,
and (b) the rate of interest per annum equal to the sum of (i) the rate (based
on a year of 365 days or 366 days, as the case may be, and rounded upward, if
necessary, to the nearest 1/100th of one percent) of interest offered to RBC in
the interbank market as the overnight federal funds rate as of a time reasonably
selected by RBC in an amount equal to the principal amount of Base Rate Loans to
be outstanding on the day such rate is effective (or, if such day is not a
Business Day, on the next preceding Business Day), (ii) cost of reserves and
(iii) one-half of one percent (1/2%).
"Base Rate Borrowing" means a Borrowing consisting of Base
Rate Loans.
"Base Rate Loan" means any Committed Loan made to any Obligor
in Dollars at such time as it bears interest at a rate based on the Base Rate.
"Benefited Bank" shall have the meaning specified in Section
11.6.
"Borrowed Money Indebtedness" means for any Person (a) all
indebtedness of such Person for borrowed money, (b) all indebtedness of such
Person evidenced by a promissory note, bond, debenture or similar instrument,
(c) all obligations to pay the deferred purchase price of property or services
(other than trade and other accounts payable incurred in the ordinary course of
business), (d) all obligations of such Person in respect of any lease of
property by such Person as lessee that would, in accordance with GAAP, be
required to be classified as a capital lease and (e), without duplication, all
Contingent Obligations of such Person.
"Borrowing" means (i) a use of the Commitments by way of
Committed Loans or Letters of Credit or (ii) the making of a Competitive Bid
Loan to or for the account of any Obligor on a given date.
"Borrowing Date" means, with respect to any Loan or Letter of
Credit, the date on which such Loan or Letter of Credit is made or issued
pursuant to a notice given under Section 2.3(a), Section 2.5 or Section 2.20(a),
as the case may be.
<PAGE> 9
4
"Business Day" means (a) for all purposes other than those
described in the following clauses (b) and (c), any day other than a Saturday or
Sunday or any other day on which commercial banks in New York, New York are
authorized or obligated by law or other governmental action to close, (b) with
respect to all notices and determinations in connection with, and payments of
principal of and interest on, Eurodollar Loans, any Business Day described in
the preceding clause (a) on which trading by and between banks in Dollar
deposits in the London interbank Eurodollar market is carried out, and (c) with
respect to all notices and determinations in connection with, and payments of
principal of and interest on, Deutschemark Loans, any Business Day described in
clause (a) on which trading by and between banks in Deutschemark deposits in the
London interbank Deutschemark market is carried out and any Business Day
described in clause (a) on which settlements by and between banks in Frankfurt,
Germany of amounts denominated in Deutschemarks are carried out.
"Capital Lease Obligations" means, at any date of
determination thereof, with respect to any Person, the obligations of such
Person to pay rent and other amounts under any lease of (or other arrangement
conveying the rights to use) real or personal property, or a combination
thereof, which obligations are required to be classified and accounted for as
capital leases on a balance sheet of such Person in accordance with GAAP.
"Cash Equivalents" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America, the Government of
Canada, the Republic of France or The Federal Republic of Germany or any agency
or instrumentality of any thereof (provided that the full faith and credit of
the United States of America, the Government of Canada, the Republic of France
or The Federal Republic of Germany is pledged in support thereof) having
maturities of not more than twelve months from the date of acquisition, (b) time
deposits, certificates of deposit, eurodollar time deposits, eurodollar
certificates of deposit and bankers' acceptances of (i) any commercial bank
organized under the laws of the United States of America or any state thereof,
the Government of Canada, the Republic of France, The Federal Republic of
Germany, the United Kingdom or the Republic of Austria having capital and
surplus in excess of $100,000,000 or the Equivalent Amount thereof or (ii) any
other bank that is a Bank hereunder or whose long-term senior unsecured debt
rating from S&P is at least A or from Moody's is at least A-2 or from Dominion
Bond Rating Service is at least AA or R-1 Middle, in each case with maturities
of not more than three months from the date of acquisition, (c) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in the preceding clause (a) entered into with any bank
meeting the qualifications specified in the preceding clause (b), (d) commercial
paper and variable rate notes issued by the parent corporation of any commercial
bank
<PAGE> 10
5
meeting the qualifications specified in the preceding clause (b) and other
commercial paper and variable rate notes rated at least A-2 or the equivalent
thereof by S&P or at least P-2 or the equivalent thereof by Moody's or at least
AA or R-1 Middle by Dominion Bond Rating Service, and in each case maturing
within three months after the date of acquisition, and (e) auction rate notes or
auction rate preferred stock issued by a United States domestic corporation,
provided that the auction periods applicable thereto shall not be in excess of
three months and that any such notes or preferred stock are rated at least A by
S&P or A2 by Moody's.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, as to each Bank, the obligation of such
Bank to make Committed Loans to and/or issue or participate in Letters of Credit
issued on behalf of the Obligors hereunder in an aggregate principal and/or face
amount not to exceed the amount in Dollars set forth opposite such Bank's name
on Schedule I and subsequently such amount as increased, decreased or left
unchanged in accordance with Section 2.7.
"Committed Loans" collectively means the Base Rate Loans, the
Eurodollar Rate Committed Loans and the Deutschemark Rate Committed Loans.
"Commitment Percentage" means, as to each Bank, the percentage
equivalent of a fraction the numerator of which is such Bank's Commitment and
the denominator of which is the Aggregate Commitment; such percentage shall
initially be that set forth opposite such Bank's name on Schedule I.
"Commitment Period" means the period commencing on the date of
this Agreement and ending on the Termination Date.
"Competitive Bid Loan" means each Loan made pursuant to
Sections 2.4 and 2.5.
"Competitive Bid Loan Availability Period" means the period
from and including the date of this Agreement to and including the date which is
7 days prior to the Termination Date.
"Competitive Bid Loan Confirmation" means each confirmation by
the relevant Obligor of its acceptance of Competitive Bid Loan Offers, which
confirmation shall be substantially in the form of Exhibit C-3 and shall be
delivered to the Agent by facsimile transmission.
"Competitive Bid Loan Interest Payment Date" means, as to each
Competitive Bid Loan, each interest payment date specified by the relevant
Obligor for such Competitive Bid Loan in the related Competitive Bid Loan
Request.
<PAGE> 11
6
"Competitive Bid Loan Maturity Date" means, as to each
Competitive Bid Loan, the maturity date specified by the relevant Obligor for
such Competitive Bid Loan in the related Competitive Bid Loan Request.
"Competitive Bid Loan Offer" means each offer by a Bank to
make Competitive Bid Loans pursuant to a Competitive Bid Loan Request, which
offer shall contain the information specified in Exhibit C-2 and shall be
delivered to the Agent by telephone, immediately confirmed by facsimile
transmission.
"Competitive Bid Loan Period" means, with respect to any
Competitive Bid Loan, the period during which such Loan is outstanding.
"Competitive Bid Loan Request" means each request by an
Obligor for Banks to submit bids to make Competitive Bid Loans, which request
shall contain the information in respect of such requested Competitive Bid Loans
specified in Exhibit C-1 and shall be delivered to the Agent in writing, by
facsimile transmission, or by telephone, immediately confirmed by facsimile
transmission.
"Consolidated Fixed Charges" means, for any period, the sum of
(a) Consolidated Interest Expense for such period, (b) the total amount of cash
dividends on preferred stock paid or required to be paid by the Parent or any of
its Consolidated Subsidiaries during such period, except such dividends paid to
the Parent or any of its Consolidated Subsidiaries plus (c) Asset Securitization
Expense for such period.
"Consolidated Funded Debt" means, at any date of determination
thereof, the sum of the (i) aggregate principal amount of all Borrowed Money
Indebtedness and Contingent Obligations of the Parent and its Consolidated
Subsidiaries outstanding at such date that mature more than one year from such
date and (ii) the excess over $10,000,000 of the aggregate principal amount of
all Borrowed Money Indebtedness and Contingent Obligations of the Parent and its
Consolidated Subsidiaries outstanding at such date that mature within one year
of such date.
"Consolidated Income Available for Fixed Charges" means, for
any period, the sum of (a) the net income (or loss) before extraordinary items
(other than those extraordinary items related to the utilization of tax-loss
carryforwards) of the Parent and its Consolidated Subsidiaries for such period
taken as a single accounting period, (b) provisions for deferred income taxes or
recognition of other noncash expenses during such period, (c) amortization
expense related to intangible assets for such period, (d) depreciation expense
for such period, (e) Consolidated Interest Expense for such period and (d) Asset
Securitization Expense for such period, all as determined on a
<PAGE> 12
7
consolidated basis for the Parent and its Consolidated Subsidiaries in
accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the
total interest expense (including that attributable to capitalized leases in
accordance with GAAP) of the Parent and its Consolidated Subsidiaries on a
consolidated basis with respect to all outstanding Borrowed Money Indebtedness
of the Parent and its Consolidated Subsidiaries for such period, as determined
in accordance with GAAP.
"Consolidated Net Worth" means, at any date of determination
thereof, (a) the sum of the common stock and paid-in surplus, plus retained
earnings (or minus accumulated deficit), plus equity adjustments from foreign
currency translations and plus convertible preferred stock of the Parent and its
Consolidated Subsidiaries on a consolidated basis, plus (b) the then unpaid
principal amount of Subordinated Debt.
"Consolidated Subsidiary" means, at any date of determination
thereof, any Subsidiary of the Parent whose accounts would properly be
consolidated with the accounts of the Parent as at such date in accordance with
GAAP.
"Consolidated Total Assets" means at any date of determination
thereof, the amount at which the total assets of the Parent and its Consolidated
Subsidiaries would be shown on a consolidated balance sheet of the Parent as of
such date calculated in accordance with GAAP.
"Consolidated Total Capitalization" means, at any date of
determination thereof, the sum of Consolidated Funded Debt (less Contingent
Obligations, to the extent included in Consolidated Funded Debt) and
Consolidated Net Worth at such date.
"Contingent Obligations" means, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any Borrowed
Money Indebtedness, lease, dividends or other obligation ("primary obligation")
of any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including (without limitation) any obligation of such Person,
whether or not contingent, (a) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (b) to advance or
supply funds (i) for the purchase or payment of any such primary obligation or
(ii) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (c) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (d) otherwise to assure or hold
harmless the owner of such primary obligation against loss in respect thereof;
provided, however, that the term "Contingent
<PAGE> 13
8
Obligations" does not include (A) endorsements of instruments for deposit or
collection in the ordinary course of business, (B) any obligation to the issuer
of a commercial or standby letter of credit, letter guaranty or surety bond
obtained in the ordinary course of business to support the obligations of any
Obligor, any Subsidiary of any Obligor, or any Person engaged in a joint
enterprise with any Obligor or any such Subsidiary, to perform under a contract
entered into in the ordinary course of business or (C) sales with recourse of
term receivables and chattel paper acquired in the ordinary course of business
of the Parent or any of its Subsidiaries or of the obligations referred to in
Section 8.7(b).
"Default" means any Event of Default and any event, act or
condition that with notice or lapse of time, or both, would constitute an Event
of Default.
"Defaulting Obligor" has the meaning specified in Section 4.1.
"Designated Lender" means a special purpose corporation that
is identified as such on the signature pages hereto next to the caption
"Designated Lender" as well as each special purpose corporation that (i) shall
have become a party to this Agreement pursuant to subsection 11.7(e) hereto, and
(ii) is not otherwise a Bank.
"Designating Lender" means each Bank that is identified as
such on the signature pages hereto next to the caption "Designating Lender" and
immediately below the signature of its Designated Lender as well as each Bank
that shall designate a Designated Lender pursuant to subsection 11.7(e) hereof.
"Designation Agreement" means a designation agreement in
substantially the form of Exhibit F attached hereto, entered into by a Bank and
a Designated Lender and accepted by the Obligors and the Agent.
"Deutschemarks" or "DM" mean lawful money of Germany. Any
reference in this Agreement to payment in "Deutschemarks" or "DM" means payment
in Deutschemark funds immediately available and freely transferable in
Frankfurt, Germany.
"Deutschemark Borrowing" means a Borrowing consisting of
Deutschemark Loans, the Equivalent Amount of which in Dollars shall not in the
aggregate exceed $60,000,000.
"Deutschemark Loans" means the collective reference to
Deutschemark Rate Committed Loans and Deutschemark Rate Competitive Bid Loans.
"Deutschemark Rate" means, with respect to each Deutschemark
Rate Committed Loan during a specific Interest
<PAGE> 14
9
Period and each Deutschemark Rate Competitive Bid Loan during a specific
Competitive Bid Loan Period, the rate per annum equal to the arithmetic average
(rounded up to the nearest one-sixteenth of one percent (1/16%)) of the offered
quotation to prime banks in the London interbank Deutschemark market by each
Reference Bank for Deutschemark deposits for delivery on the first day of such
Interest Period or Competitive Bid Loan Period, as applicable, for the number of
days in such Interest Period or Competitive Bid Loan Period, as applicable and
in an amount comparable to the principal amount of the Deutschemark Loan of such
Reference Bank in such Deutschemark Borrowing to be outstanding during such
Interest Period or Competitive Bid Loan Period, as applicable, determined as of
approximately 11:00 A.M., London time, two Business Days before the beginning of
such Interest Period or Competitive Bid Loan Period, as applicable. If any
Reference Bank fails to provide the Agent with its reference rate, the
Deutschemark Rate shall be based on the rate provided to the Agent by the other
Reference Banks.
"Deutschemark Rate Committed Loan" means any Committed Loan
made to an Obligor in Deutschemarks.
"Deutschemark Rate Competitive Bid Loan" means any Competitive
Bid Loan made to an Obligor in Deutschemarks pursuant to a Deutschemark Rate
Competitive Bid Loan Request.
"Deutschemark Rate Competitive Bid Loan Request" means any
Competitive Bid Loan Request requesting the Banks to offer to make Competitive
Bid Loans at the Deutschemark Rate plus (or minus) a margin.
"Dollars" and "$" mean lawful money of the United States of
America. Any reference in this Agreement to payment in "Dollars" means payment
in Dollar funds immediately available in New York, New York.
"Effective Date" means the date on (a) which counterparts of
this Agreement executed by each of the Obligors, the Banks and the Agent shall
have been delivered to the Obligors and the Agent and (b) the other conditions
set forth in Section 6 shall have been satisfied.
"Eligible Assignee" means (a) a commercial bank organized
under the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (b) a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development, or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
United States; and (c) a Person that is primarily engaged in the business of
commercial banking and that is (i) a Subsidiary of a Bank, (ii) a Subsidiary of
a
<PAGE> 15
10
Person of which a Bank is a Subsidiary, or (iii) a Person of which a Bank is a
Subsidiary.
"Employee Benefit Plan" means each ERISA Plan and each other
pension, profit sharing, retirement, bonus, deferred compensation, stock option,
stock purchase, severance pay or insurance plan for officers or employees,
maintained, contributed to or legally obligated to be contributed to (i) by any
Obligor or (ii) solely, with respect to potential liability of and through any
current or former ERISA Affiliate arising or continuing in respect of such plan
under Section 302 of ERISA of Title IV of ERISA or Section 412 of the Code while
such entity was an ERISA Affiliate, by such current or former ERISA Affiliate.
"Equivalent Amount" means, on any date, the amount of
Deutschemarks into which Dollars may be converted at RBC's mid-point 11:00 A.M.
spot rate in London, England or the amount of Dollars into which Deutschemarks
may be converted at RBC's mid-point 11:00 A.M. spot rate in London, England.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" means any corporation or trade or business
that is a member of any group of organizations (i) described in Section 414(b)
or (c) of the Code and the regulations issued thereunder of which any Obligor is
a member and (ii) solely with respect to potential liability under Section
302(c)(11) of ERISA or Section 412(c)(11) of the Code or the lien created under
Section 302(f) of ERISA or Section 412(n) of the Code, described in Section
414(m) or (o) of the Code and the regulations issued thereunder of which any
Obligor is a member.
"ERISA Pension Plan" means an employee pension benefit plan as
defined in Section 3(2) of ERISA.
"ERISA Plan" means an ERISA Pension Plan or an ERISA Welfare
Plan.
"ERISA Welfare Plan" means an employee welfare benefit plan as
defined in Section 3(1) of ERISA.
"Eurodollar Borrowing" means a Borrowing consisting of
Eurodollar Loans.
"Eurodollar Loans" means the collective reference to
Eurodollar Rate Committed Loans and Eurodollar Rate Competitive Bid Loans.
"Eurodollar Rate" means, with respect to each Eurodollar Rate
Committed Loan during a specific Interest Period and each Eurodollar Rate
Competitive Bid Loan during a specific Competitive Bid Loan Period, the rate per
annum equal to the
<PAGE> 16
11
arithmetic average (rounded up to the nearest one-sixteenth of one percent
(1/16%)) of the offered quotation to prime banks in the London interbank
Eurodollar market by each Reference Bank for Dollar deposits for delivery on
the first day of such Interest Period or Competitive Bid Loan Interest Period,
as applicable, for the number of days in such Interest Period or Competitive
Bid Loan Interest Period and in an amount comparable to the principal amount of
the Eurodollar Rate Committed Loan or Eurodollar Rate Competitive Bid Loan of
such Reference Bank to be outstanding during such Interest Period or
Competitive Bid Loan Interest Period, as applicable, determined as of
approximately 11:00 A.M., London time, two Business Days before the beginning
of such Interest Period or Competitive Bid Loan Interest Period. If any
Reference Bank fails to provide the Agent with its reference rate, the
Eurodollar Rate shall be based on the rate provided to the Agent by the other
Reference Banks.
"Eurodollar Rate Committed Loan" means any Committed Loan made
to an Obligor in Dollars at such time as it bears interest at a rate based on
the Eurodollar Rate
"Eurodollar Rate Competitive Bid Loan" means any Competitive
Bid Loan made to an Obligor in Dollars pursuant to a Eurodollar Rate Competitive
Bid Loan Request.
"Eurodollar Rate Competitive Bid Loan Request" means any
Competitive Bid Loan Request requesting the Banks to offer to make Competitive
Bid Loans at the Eurodollar Rate plus (or minus) a margin.
"Event of Default" means any event specified in Article IX.
"Facility Fee" has the meaning specified in Section 3.2(b)
hereof.
"Federal Funds Rate" means, at any date of determination
thereof, the actual cost to the Issuing Bank on such day with respect to
overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers.
"Fee Letter" means the letter dated June 24, 1997 among RBC
and the Obligors.
"Fixed Rate" means with respect to any Fixed Rate Competitive
Bid Loan, the fixed rate of interest applicable thereto.
"Fixed Rate Competitive Bid Loan" means any Competitive Bid
Loan made to an Obligor in Dollars pursuant to a Competitive Bid Loan Request.
<PAGE> 17
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"Fixed Rate Competitive Bid Loan Request" means any
Competitive Bid Loan Request requesting the Banks to offer to make Competitive
Bid Loans at a fixed rate (as compared to a rate composed of the Eurodollar Rate
plus (or minus) a margin).
"Foreign Plan" means each plan that provides retirement or
health benefits and that is maintained or contributed to by any Obligor or any
Subsidiary of any Obligor for the benefit of employees of any Obligor or any
Subsidiary of any Obligor outside the United States.
"GAAP" means generally accepted accounting principles.
Whenever the term "GAAP" is used in this Agreement with respect to UDI and UDH
and their Consolidated Subsidiaries, such term refers to United States generally
accepted accounting principles, and whenever the term "GAAP" is used in this
Agreement with respect to the Parent and its Consolidated Subsidiaries, such
term refers to Canadian generally accepted accounting principles, in each case
consistent with those applied in the preparation of the financial statements
referred to in Section 5.10 with such changes therein as are made with the
concurrence of any Obligor's independent certified public accountants.
"Guarantor-Obligor" has the meaning specified in Section 4.1.
"Hazardous Material" means any material encompassed within any
definition of "hazardous substance," "hazardous waste," "hazardous material,"
"pollutant or contaminant," or "oil" provided in either the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. ss. 9601, et
seq., the Solid Waste Disposal Act, 42 U.S.C. ss. 6901, et seq., the Hazardous
Materials Transportation Act, 49 U.S.C. ss. 1801, et seq., the Oil Pollution Act
of 1990, 33 U.S.C. ss. 2701, et seq., the Canadian federal counterparts to such
Acts, a state law of any state or a provincial law of any province in which any
Obligor is located or conducts business, or any regulation or rule issued under
authority of any of the preceding.
"Indemnified Liabilities" has the meaning specified in
Section 3.3.
"Interest Payment Date" means (a) as to any Base Rate Loan,
the last Business Day of each calendar month, commencing July 31, 1997, (b) as
to any Eurodollar Rate Committed Loan and Deutschemark Rate Committed Loan in
respect of which an Interest Period of one, two or three months has been
selected, the last day of such Interest Period, (c) as to any Eurodollar Rate
Committed Loan and Deutschemark Rate Committed Loan in respect of which an
Interest Period of six, nine or twelve months has been selected, the last day of
each three-month period falling within such Interest Period and the last day of
such Interest Period and (d) as to any Competitive Bid Loan, the last day of the
Competitive Bid Loan Period applicable thereto.
<PAGE> 18
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"Interest Period" means, with respect to any Eurodollar Rate
Committed Loan or Deutschemark Rate Committed Loan, (a) initially, the period
commencing on, as the case may be, the Borrowing Date on which such Eurodollar
Rate Committed Loan or Deutschemark Rate Committed Loan is made or the date on
which such Eurodollar Rate Committed Loan results from the conversion of a Base
Rate Committed Loan and ending one, two, three, six, nine or twelve months
thereafter, as selected in a notice of borrowing or conversion as provided in
Section 2.3(a) or 2.9, and (b) thereafter, each period commencing on the last
day of the immediately preceding Interest Period and ending one, two, three,
six, nine or twelve months thereafter, as selected by irrevocable notice to the
Agent (which notice must be received by the Agent before 10:00 A.M., three
Business Days before the last day of the then current Interest Period with
respect to such Eurodollar Rate Committed Loan, four Business Days before the
last day of the then current Interest Period with respect to such Deutschemark
Rate Committed Loan or, in the case of notices with respect to Eurodollar Rate
Committed Loans or Deutschemark Rate Committed Loans having requested Interest
Periods of nine or twelve months, four Business Days before the last day of the
then current Interest Period with respect to Eurodollar Rate Committed Loans or
five Business Days before the last day of the then current Interest Period with
respect to Deutschemark Rate Committed Loans); provided that (i) if any Interest
Period would otherwise end on a day that is not a Business Day, that Interest
Period shall be extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the immediately
preceding Business Day, (ii) no Interest Period that would extend beyond the
Termination Date may be selected, (iii) if no notice is given with respect to
selection of an Interest Period as provided above, any affected Eurodollar Rate
Committed Loan shall be converted to a Base Rate Loan and any affected
Deutschemark Rate Committed Loan shall be prepaid and reborrowed as a Base Rate
Loan, in either case on the last day of the Interest Period then in effect, (iv)
any Interest Period that begins on the last 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 end on the last Business Day of
a calendar month, and (v) Interest Periods of nine and twelve months are
available, but only if matching funds are available to each Bank for such
period.
"Issuing Bank" means RBC or any other Bank as may be selected
by the Parent and the Agent from time to time, as the issuing bank of Letters of
Credit in accordance with the provisions of Section 2.20.
"L/C Obligations" means, at any time, an amount equal to the
sum of (a) the aggregate undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of Reimbursement Obligations.
<PAGE> 19
14
"Letters of Credit" has the meaning specified in Section
2.20(a).
"Letter of Credit Fee" has the meaning specified in Section
3.2(d) hereof.
"Level I" means, at any date of determination thereof, that
either (a) as of the date of delivery of the most recent officer's certificate
pursuant to Section 6.2(a), 6.2(b) or 7.3(c), Consolidated Funded Debt was less
than 40% of Consolidated Total Capitalization or (b) the Senior Unsecured Debt
of the Parent has a rating from S&P of at least A- or a rating from Moody's of
at least A3.
"Level II" means, at any date of determination thereof, that
(a) either (i) as of the date of delivery of the most recent officer's
certificate pursuant to Section 6.2(a), 6.2(b) or 7.3(c), Consolidated Funded
Debt was not less than 40% and not greater than 50% of Consolidated Total
Capitalization, or (ii) the Senior Unsecured Debt of the Parent has a rating
from S&P of at least BBB or a rating from Moody's of at least Baa2 and (b) Level
I does not apply.
"Level III" means, at any date of determination thereof, that
(a) either (i) as of the date of delivery of the most recent officer's
certificate pursuant to Section 6.2(a), 6.2(b) or 7.3(c), Consolidated Funded
Debt was greater than 50% of Consolidated Total Capitalization, or (ii) the
Senior Unsecured Debt of the Parent has a rating from S&P of BBB- or lower or a
rating from Moody's of Baa3 or lower and (b) neither Level I nor Level II
applies.
"Lien" means, with respect to any Person, (a) any lien
(including, without limitation, any statutory lien), hypothecation, privilege,
mortgage, pledge, encumbrance, servitude, easement, right-of-way, charge
(general or specific) or conditional sale or other title retention agreement
(including, without limitation, the rights of a lessor under a capital lease to
the property leased thereunder) or other security interest of any kind upon any
property or assets of any character of such Person, whether now owned or
hereafter acquired by such Person, or upon the income or profits therefrom, (b)
the transfer, pledge or assignment by such Person of any of its property or
assets for the purpose of subjecting the same to the payment of any indebtedness
of such Person or others in priority to the payment by such Person or its
general creditors, and (c) any agreement to give or do any of the foregoing.
"Liquidity Bank" means for any Designated Lender, at any date
of determination, the collective reference to the financial institutions which
at such date are providing liquidity or credit support facilities to or for the
account of such Designated Lender to fund such Designated Lender's obligations
<PAGE> 20
15
hereunder or to support the securities, if any, issued by such Designated Lender
to fund such obligations.
"Loans" means the collective reference to the Committed Loans
and the Competitive Bid Loans.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Effect" means a material adverse effect on
the operations, business, property, assets or financial condition of the Parent
and its Subsidiaries, taken as a whole.
"Material Subsidiary" means any Subsidiary of any Obligor the
total assets of which comprise five percent (5%) or more of the Consolidated
Total Assets.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means any "multiemployer plan" (within
the meaning of Section 3(37) of ERISA) that is contributed to by any Obligor,
any Subsidiary of any Obligor or any ERISA Affiliate.
"New Banks" has the meaning specified in Section 11.21.
"Obligations" means all obligations and indebtedness of each
Obligor to the Banks or any Affiliate of a Bank and the Agent hereunder.
"Person" means an individual, partnership, firm, corporation,
association, trust or other enterprise or any government or political
subdivision or agency, department or instrumentality thereof.
"Pricing Determination Date" means each date on which (1) the
Parent delivers a certificate pursuant to Section 6.2(a), 6.2(b) or 7.3(c) or
(2) S&P or Moody's changes the rating of the Senior Unsecured Debt of the
Parent.
"Process Agent" has the meaning specified in Section 11.9(a).
"Prohibited Transaction" means any "prohibited transaction"
(within the meaning of Section 406 of ERISA or Section 4975 of the Code) that
could subject any Obligor or any Subsidiary of any Obligor to any tax, penalty
or other liability under ERISA or the Code.
"RBC" means Royal Bank of Canada.
"Reference Banks" means, with respect to any Eurodollar
Borrowing or Deutschemark Borrowing, RBC, Wachovia Bank, N.A. and Commerzbank
AG.
<PAGE> 21
16
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing margin requirements.
"Reimbursement Obligation" means the obligation of the
Obligors to reimburse the Issuing Bank in respect of a drawing under a Letter of
Credit.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping, or
disposing into the environment, or the abandonment of any aboveground or
underground storage tank, barrel, container, or other receptacle which contains,
or at any time contained, any Hazardous Material.
"Required Banks" means Banks whose Commitment Percentages
aggregate at least 67%, or, at any time after the Commitments shall have expired
or been terminated and there are Committed Loans or L/C Obligations outstanding,
Banks holding at least 67% of the outstanding amount of such Committed Loans and
L/C Obligations, or, if the Commitments have expired or been terminated, and
there are no Committed Loans or L/C Obligations outstanding, Banks holding at
least 67% of the outstanding amount of the Competitive Bid Loans.
"Significant Subsidiary" means any Subsidiary whose assets
constitute two percent (2%) or more of the total assets of the Parent and its
Consolidated Subsidiaries, on a consolidated basis.
"S&P" means Standard & Poor's Ratings Services, a Division of
The McGraw-Hill Companies, Inc..
"Senior Unsecured Debt" means, with respect to any Person,
unsecured, unguaranteed and unsubordinated indebtedness for borrowed money of
such Person from time to time outstanding, having an original stated maturity of
more than one year from the date of issuance.
"Status" means the applicability of Level I, Level II or Level
III, as the case may be.
"Subordinated Debt" means that portion of the principal of any
unsecured indebtedness of the Parent and its Consolidated Subsidiaries for
borrowed money that is not required to be paid (whether by way of mandatory
sinking fund, mandatory redemption, mandatory prepayment or otherwise) before
the Termination Date, provided that (i) such indebtedness is not subject to any
financial maintenance covenants or cross-default (as opposed to
cross-acceleration) provisions and (ii) the payment of principal of and interest
(including post-petition interest) on such indebtedness and all other
obligations of the Parent and its Consolidated Subsidiaries to the holders
thereof is subordinated
<PAGE> 22
17
to the prior payment in full of the Obligations on terms and conditions approved
in writing by the Required Banks.
"Subsidiary" means, with respect to any Person, (a) any
corporation of which more than 50% of the stock of any class or classes having
by the terms thereof ordinary voting power to elect a majority of the directors
of such corporation (irrespective of whether or not at the time stock of any
class or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by such Person,
either directly or indirectly through Subsidiaries, and (b) any partnership,
association, joint venture or other entity in which such Person has more than a
50% equity interest, either directly or indirectly through Subsidiaries.
"Termination Date" means July 27, 2002 or any earlier date on
which the Commitments are terminated pursuant to Section 2.7 or Article IX.
"Type" means, with respect to any Committed Loan, any type of
Committed Loan determined by the currency in which such Committed Loan is made
and the interest rate option applicable to it, i.e., Eurodollar Rate Committed
Loan, Deutschemark Rate Committed Loan or Base Rate Loan, and with respect to
any Competitive Bid Loan, any type of Competitive Bid Loan determined by whether
such Competitive Bid Loan is a Eurodollar Rate Competitive Bid Loan,
Deutschemark Rate Competitive Bid Loan or a Fixed Rate Competitive Bid Loan.
"U.S. Lending Office" means, with respect to any Bank, the
office of such Bank (if any) specified under the heading "U.S. Lending Office"
on Schedule II or such other office or affiliate of such Bank located in the
United States as such Bank shall designate from time to time by notice to the
Obligors and the Agent.
"Utilization Fee" has the meaning specified in Section 3.2(c).
"wholly-owned Subsidiary" means, with respect to any Person,
any Subsidiary of such Person all of whose voting capital stock, except
directors' qualifying shares, is owned, directly or indirectly, by such Person.
"written" or "in writing" means in any form of written
communication, including communication by means of telex, telecopier device,
telegraph or cable.
1.2 Accounting and Banking Terms and Calculations. (a) All
accounting and financial terms not specifically defined herein shall be
construed in accordance with GAAP. All banking terms not specifically defined
herein shall be construed in accordance with general practice among commercial
banks in New
<PAGE> 23
18
York, New York, London, England, Frankfurt, Germany or Toronto, Ontario, as the
context may require.
(b) If any change in accounting principles from those used in
the preparation of the financial statements referred to in Section 5.10 occurs
after the date hereof as a result of the promulgation of rules, regulations,
pronouncements or opinions by the Financial Accounting Standards Board of the
American Institute of Certified Public Accountants or any equivalent Canadian
organization (or successors thereto or agencies with similar functions) and
results in a change in the calculation of financial covenants, standards or
terms found in this Agreement, then the parties hereto shall negotiate in good
faith amendments to such financial covenants, standards or terms so as to
equitably reflect such change with the desired result that the evaluations of
the Obligors' financial conditions and compliance with financial covenants
contained herein shall be the same after such change as if such change had not
been made; provided that if the parties hereto do not reach agreement with
respect to amended covenants, standards or terms within thirty (30) days of the
effective date of the change in accounting principles, and if such change
results in any Obligor being in Default under this Agreement, the Agent, at the
request of the Required Banks, shall (a) declare the Commitments to be
terminated, whereupon they shall immediately terminate, and/or (b) declare the
Obligations to be due and payable, whereupon they shall become due and payable
on the day that is ninety (90) days after the date of declaration. The foregoing
provisions with respect to time periods applicable to the exercise of remedies
available to the Banks shall apply only to Defaults occurring under this
Agreement solely as a result of any such change in accounting principles.
(c) For purposes of determining at any given time the amount
in Dollars of any outstanding Loan in Deutschemarks, the DM amount thereof shall
be converted to the Equivalent Amount thereof in Dollars.
1.3 Construction. (a) Unless otherwise expressly specified
herein, (i) defined terms denoting the singular number shall, when in the plural
form, denote the plural number of the matter or item to which such defined terms
refer and vice versa, (ii) the words "hereof", "herein", "hereunder" and other
similar words refer to this Agreement as a whole, (iii) Article, Section,
Schedule and Exhibit references in this Agreement are to Articles, Sections,
Schedules and Exhibits of this Agreement and (iv) words of the neuter gender
mean and include correlative words of the masculine and feminine gender.
(b) The Table of Contents and the captions in this Agreement
are for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.
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19
(c) All references herein to times of day shall be New York
City time unless otherwise expressly specified herein. All references to "days"
shall be to calendar days unless Business Days are specified.
ARTICLE II. THE CREDIT FACILITIES
2.1 Commitments. Subject to and upon the terms and conditions
hereof, each Bank severally (and not jointly and severally) agrees to extend
credit to the Obligors from time to time during the Commitment Period by making
revolving credit loans to the Obligors under Sections 2.2 and 2.3 in an
aggregate principal amount at any one time outstanding (calculated in the case
of Deutschemark Loans, on the basis of the then Equivalent Amount thereof in
Dollars) which, when added to the product of such Bank's Commitment Percentage
multiplied by the then outstanding L/C Obligations, does not exceed such Bank's
Commitment; provided, however, that (a) the aggregate principal amount at any
one time outstanding of Deutschemark Loans (including, without limitation,
Deutschemark Rate Competitive Bid Loans) shall not exceed the Equivalent Amount
of $60,000,000, (b) that the aggregate L/C Obligations at any one time
outstanding shall not exceed $75,000,000 and (c) the sum of the aggregate
principal amount of the Loans at any time outstanding (calculated in the case of
Deutschemark Loans, on the basis of the then Equivalent Amount thereof in
Dollars) and the then outstanding L/C Obligations shall not then exceed the then
aggregate amount of the Commitments and, provided, further, that, if at any time
any of the computations set forth in the preceding proviso shall not be complied
with, the Obligors shall prepay Loans and/or cash collateralize L/C Obligations
to the extent necessary to cause them to be in compliance with the preceding
proviso. During the Commitment Period the Obligors may use the Commitments by
borrowing, prepaying Committed Loans in whole or in part and reborrowing, all in
accordance with the terms and conditions hereof.
2.2 Committed Loan Borrowings. (a) Each Borrowing under the
Commitments may consist of Eurodollar Rate Committed Loans, Deutschemark Rate
Committed Loans or Base Rate Loans (but not a combination thereof unless
required by Section 2.13), in each case as determined by the relevant Obligor
and notified to the Agent by the Parent in accordance with Section 2.3;
provided, however that no Borrowing of Eurodollar Rate Committed Loans or
Deutschemark Rate Committed Loans shall be made after the day that is one month
before the Termination Date. Each Borrowing shall be in the minimum principal
amount of DM5,000,000 in the case of Deutschemark Rate Committed Loans and
$5,000,000 in the case of all other Committed Loans or any larger whole multiple
of DM1,000,000 or $1,000,000, or, if less, the unused portion of the respective
Commitments (in which case the Borrowing shall consist only of Base Rate Loans)
and shall be made by the relevant Banks pro rata as provided in Section 2.16(a).
<PAGE> 25
20
(b) The Committed Loans shall mature on and be payable in full
on the Termination Date and bear interest for the period from the Borrowing
Dates thereof to the date of payment in full thereof on the unpaid principal
amount thereof from time to time outstanding at the applicable interest rate
per annum determined and payable as specified in Section 2.10.
2.3 Procedure for Committed Loan Borrowings. (a)
Borrowings may be made by the Obligors under the Commitments during the
Commitment Period on any Business Day, provided that the Parent acting on such
Obligor's behalf gives the Agent irrevocable notice (which notice must be
received by the Agent before 10:00 A.M. (i) as to any Eurodollar Rate Committed
Loans or Deutschemark Rate Committed Loans in respect of which an Interest
Period of one, two, three or six months has been selected, three Business Days
before the requested Borrowing Date with respect to Eurodollar Rate Committed
Loans or four Business Days before the requested Borrowing Date with respect to
Deutschemark Rate Committed Loans, (ii) as to any Eurodollar Rate Committed
Loans and Deutschemark Rate Committed Loans in respect of which an Interest
Period of nine or twelve months has been selected, four Business Days before the
requested Borrowing Date with respect to Eurodollar Rate Committed Loans or five
Business Days before the requested Borrowing Date with respect to Deutschemark
Rate Committed Loans, or (iii) as to any Base Rate Loans, two Business Days
before the requested Borrowing Date) at the Agent's Office specifying (A) the
Obligor requesting such Borrowing, (B) the amount to be borrowed, (C) the
requested Borrowing Date, (D) if the Borrowing is to consist of Committed Loans,
the Type of Committed Loans to be borrowed, and (E) if the Borrowing is to
consist of Eurodollar Rate Committed Loans or Deutschemark Rate Committed Loans,
the length of the Interest Period for such Loans. On receipt of such notice from
the Parent, the Agent shall promptly notify each Bank thereof.
(b) Each Bank shall make the amount of such Bank's Loan to be
made on the requested Borrowing Date available to the Agent for the relevant
Obligor's account at the Agent's Office not later than 11:00 A.M. on the
requested Borrowing Date in immediately available funds. Subject to Section
2.17, the proceeds of each Committed Loan will be made available to the relevant
Obligor by the Agent in immediately available funds by depositing such proceeds
in such Obligor's account with RBC.
(c) For any Bank which is a Designating Lender, any Committed
Loan to be made by such Bank may from time to time be made by its Designated
Lender in such Designated Lender's sole discretion, and nothing herein shall
constitute a commitment to make Committed Loans by such Designated Lender;
provided that if any Designated Lender elects not to, or fails to, make such
Committed Loan, its Designating Lender hereby agrees that it shall make such
Committed Loan pursuant to the terms hereof. Any Committed Loan actually funded
by a Designated Lender shall
<PAGE> 26
21
constitute a utilization of the Commitment of the Designating Lender for all
purposes hereunder.
2.4 Competitive Bid Loans. Subject to the terms and conditions
of this Agreement, each Obligor may borrow Competitive Bid Loans from time to
time on any Business Day during the Competitive Bid Loan Availability Period.
Within the limits and on the conditions herein set forth with respect to
Competitive Bid Loans, including, without limitation, clauses (a), (b) and (c)
of the first proviso to the first sentence of Section 2.1, each Obligor may
borrow, repay and reborrow Competitive Bid Loans. A Competitive Bid Loan Request
may request offers for Competitive Bid Loans to be made on not more than one
Borrowing Date and to mature on not more than five Competitive Bid Loan Maturity
Dates.
2.5 Procedure for Competitive Bid Loan Borrowing. (a)
The Parent, acting on an Obligor's behalf, may request Competitive Bid Loans by
delivering a Competitive Bid Loan Request to the Agent, (i) not later than 10:00
A.M., four Business Days prior to the proposed Borrowing Date (in the case of a
Eurodollar Rate Competitive Bid Loan Request), (ii) not later than 10:00 A.M.,
five Business Days prior to the proposed Borrowing Date (in the case of a
Deutschemark Rate Competitive Bid Loan Request) and (iii) not later than 10:00
A.M., one Business Day prior to the proposed Borrowing Date (in the case of a
Fixed Rate Competitive Bid Loan Request). Each Competitive Bid Loan Request in
respect of any Borrowing Date may solicit bids for Competitive Bid Loans on such
Borrowing Date in an aggregate principal amount of DM5,000,000 or US$5,000,000,
as the case may be, or a whole multiple of DM1,000,000 or US$1,000,000, as the
case may be, in excess thereof. Each Competitive Bid Loan Request shall specify
the Obligor requesting such Borrowing. The Competitive Bid Loan Maturity Date
for each Competitive Bid Loan shall be the date set forth therefor in the
relevant Competitive Bid Loan Request, which date, in the case of Fixed Rate
Competitive Bid Loans shall be not less than 7 days nor more than 180 days after
the respective Borrowing Dates therefor and in the case of Eurodollar Rate
Competitive Bid Loans and Deutschemark Rate Competitive Bid Loans shall be not
less than 30 days nor more than 180 days after the Borrowing Date therefor, and
in any event, shall not be later than the Termination Date. The Agent shall
notify each Bank promptly by facsimile transmission of the contents of each
Competitive Bid Loan Request received by the Agent.
(b) In the case of a Eurodollar Rate Competitive Bid Loan
Request, upon receipt of notice from the Agent of the contents of such
Competitive Bid Loan Request, each Bank may elect, in its sole discretion, to
offer irrevocably to make one or more Competitive Bid Loans at the applicable
Eurodollar Rate plus (or minus) a margin determined by such Bank in its sole
discretion for each such Competitive Bid Loan. Any such
<PAGE> 27
22
irrevocable offer shall be made by delivering a Competitive Bid Loan Offer to
the Agent, before 2:00 P.M., on the day that is three Business Days before the
proposed Borrowing Date, setting forth:
(i) the maximum amount of Competitive Bid Loans for each
Competitive Bid Loan Maturity Date and the aggregate maximum amount of
Competitive Bid Loans for all Competitive Bid Loan Maturity Dates which
such Bank would be willing to make pursuant to such Competitive Bid
Loan Offer (which amounts may, subject to Section 6.2, exceed the
Commitment of such Bank); and
(ii) the margin above or below the applicable Eurodollar
Rate at which such Bank is willing to make each such Competitive Bid
Loan.
The Agent shall advise the relevant Obligor before 3:00 P.M., on the date which
is three Business Days before the proposed Borrowing Date of the contents of
each such Competitive Bid Loan Offer received by it. If the Agent, in its
capacity as a Bank, shall elect, in its sole discretion, to make any such
Competitive Bid Loan Offer, it shall advise the relevant Obligor of the contents
of its Competitive Bid Loan Offer before 1:15 P.M., on the date which is three
Business Days before the proposed Borrowing Date.
(c) In the case of a Deutschemark Rate Competitive Bid Loan
Request, upon receipt of notice from the Agent of the contents of such
Competitive Bid Loan Request, each Bank may elect, in its sole discretion, to
offer irrevocably to make one or more Competitive Bid Loans at the applicable
Deutschemark Rate plus (or minus) a margin determined by such Bank in its sole
discretion for each such Competitive Bid Loan. Any such irrevocable offer shall
be made by delivering a Competitive Bid Loan Offer to the Agent, before 2:00
P.M., on the day that is four Business Days before the proposed Borrowing Date,
setting forth:
(i) the maximum amount of Competitive Bid Loans for each
Competitive Bid Loan Maturity Date and the aggregate maximum amount of
Competitive Bid Loans for all Competitive Bid Loan Maturity Dates which
such Bank would be willing to make pursuant to such Competitive Bid
Loan Offer (which amounts may, subject to Section 6.2, exceed the
Commitment of such Bank); and
(ii) the margin above or below the applicable
Deutschemark Rate at which such Bank is willing to make each such
Competitive Bid Loan.
The Agent shall advise the relevant Obligor before 3:00 P.M., on the date which
is four Business Days before the proposed
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23
Borrowing Date of the contents of each such Competitive Bid Loan Offer received
by it. If the Agent, in its capacity as a Bank, shall elect, in its sole
discretion, to make any such Competitive Bid Loan Offer, it shall advise the
relevant Obligor of the contents of its Competitive Bid Loan Offer before 1:15
P.M., on the date which is four Business Days before the proposed Borrowing
Date.
(d) In the case of a Fixed Rate Competitive Bid Loan Request,
upon receipt of notice from the Agent of the contents of such Competitive Bid
Loan Request, each Bank may elect, in its sole discretion, to offer irrevocably
to make one or more Competitive Bid Loans at a rate of interest determined by
such Bank in its sole discretion for each such Competitive Bid Loan. Any such
irrevocable offer shall be made by delivering a Competitive Bid Loan Offer to
the Agent before 9:15 A.M., on the proposed Borrowing Date, setting forth:
(i) the maximum amount of Competitive Bid Loans for each
Competitive Bid Loan Maturity Date, and the aggregate maximum amount of
Competitive Bid Loans for all Competitive Bid Loan Maturity Dates,
which such Bank would be willing to make pursuant to such Competitive
Bid Loan Offer (which amounts may, subject to Section 6.2, exceed such
Bank's Commitment); and
(ii) the rate of interest at which such Bank is willing
to make each such Competitive Bid Loan.
The Agent shall advise the relevant Obligor before 9:30 A.M., on the proposed
Borrowing Date of the contents of each such Competitive Bid Loan Offer received
by it. If the Agent, in its capacity as a Bank, shall elect, in its sole
discretion, to make any such Competitive Bid Loan Offer, it shall advise the
relevant Obligor of the contents of its Competitive Bid Loan Offer before 8:45
A.M., on the proposed Borrowing Date.
(e) Before 3:30 P.M., three Business Days before the proposed
Borrowing Date (in the case of Eurodollar Rate Competitive Bid Loans) and four
Business Days before the proposed Borrowing Date (in the case of Deutschemark
Rate Competitive Bid Loans) and before 10:00 A.M., on the proposed Borrowing
Date (in the case of Fixed Rate Competitive Bid Loans), the relevant Obligor, in
its absolute discretion, shall:
(i) cancel such Competitive Bid Loan Request by
giving the Agent telephone notice to that effect, or
(ii) by giving telephone notice to the Agent (immediately
confirmed by delivery to the Agent of a Competitive Bid Loan
Confirmation by facsimile transmission) (A) subject to the provisions
of Section 2.5(f), accept one or more of the offers made by any Bank or
Banks pursuant to Section 2.5(b), Section 2.5(c) or Section 2.5(d), as
the
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case may be, and (B) reject any remaining offers made by Banks pursuant
to Section 2.5(b), Section 2.5(c) or Section 2.5(d), as the case may
be.
(f) An Obligor's acceptance of Competitive Bid Loans in
response to any Competitive Bid Loan Offers shall be subject to the following
limitations:
(i) the amount of Competitive Bid Loans accepted for
each Competitive Bid Loan Maturity Date specified by any Bank in its
Competitive Bid Loan Offer shall not exceed the maximum amount for such
Competitive Bid Loan Maturity Date specified in such Competitive Bid
Loan Offer;
(ii) the aggregate amount of Competitive Bid Loans
accepted for all Competitive Bid Loan Maturity Dates specified by any
Bank in its Competitive Bid Loan Offer shall not exceed the aggregate
maximum amount specified in such Competitive Bid Loan Offer for all
such Competitive Bid
Loan Maturity Dates;
(iii) an Obligor may not accept offers for Competitive Bid
Loans for any Competitive Bid Loan Maturity Date in an aggregate
principal amount in excess of the maximum principal amount requested in
the related Competitive Bid Loan Request; and
(iv) if an Obligor accepts any of such offers, it must
accept offers based solely upon pricing for each relevant Competitive
Bid Loan Maturity Date and upon no other criteria whatsoever, and if
two or more Banks submit offers for any Competitive Bid Loan Maturity
Date at identical pricing and such Obligor accepts any of such offers
but does not wish to (or, by reason of the limitations set forth in
Section 6.2, cannot) borrow the total amount offered by such Banks with
such identical pricing, such Obligor shall accept offers from all of
such Banks in amounts allocated among them pro rata according to the
amounts offered by such Banks (with appropriate rounding, in the sole
discretion of such Obligor, to assure that each accepted Competitive
Bid Loan is a whole multiple of DM1,000,000 or US$1,000,000, as the
case may be); provided that if the number of Banks that submit offers
for any Competitive Bid Loan Maturity Date at identical pricing is such
that, after such Obligor accepts such offers pro rata in accordance
with the foregoing provisions of this paragraph, the Competitive Bid
Loan to be made by any such Bank would be less than DM1,000,000 or
US$1,000,000, as the case may be, principal amount, the number of such
Banks shall be reduced by the Agent by random lottery until the
Competitive Bid Loans to be made by each such remaining Bank would be
in a principal amount of DM1,000,000 or US$1,000,000, as the case may
be.
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(g) If an Obligor notifies the Agent that a Competitive Bid
Loan Request is cancelled pursuant to Section 2.5(e)(i), the Agent shall give
prompt telephone notice thereof to the Banks.
(h) If an Obligor accepts pursuant to Section 2.5(e)(ii) one
or more of the offers made by any Bank or Banks, the Agent promptly shall notify
each Bank which has made an offer of (i) the aggregate amount of such
Competitive Bid Loans to be made on such Borrowing Date and the respective
Competitive Bid Loan Maturity Dates therefor and (ii) the acceptance or
rejection of any Competitive Bid Loans Offers made by such Bank. Before 12:00
A.M., on the Borrowing Date specified in the applicable Competitive Bid Loan
Request, each Bank whose Competitive Bid Loan Offer has been accepted shall make
available to the Agent at the Agent's Office the amount of Competitive Bid Loans
to be made by such Bank on such Borrowing Date, in immediately available funds.
The Agent will make such funds available prior to 2:00 P.M., on such Borrowing
Date to the relevant Obligor as soon as practicable on such date at such office
of the Agent. As soon as practicable after each Borrowing Date, the Agent shall
notify each Bank of the aggregate amount of Competitive Bid Loans advanced on
such Borrowing Date and the respective Competitive Bid Loan Maturity Dates
thereof.
(i) For any Bank which is a Designating Lender, any
Competitive Bid Loan to be made by such Designating Lender may from time to time
be made by its Designated Lender in such Designated Lender's sole discretion,
and nothing herein shall constitute a commitment to make Competitive Bid Loans
by such Designated Lender; provided that if any Designated Lender elects not to,
or fails to, make any such Competitive Bid Loan that has been accepted by the
Obligors in accordance with the foregoing, its Designating Lender hereby agrees
that it shall make such Competitive Bid Loan pursuant to the terms hereof.
2.6 Evidence of Indebtedness. Each Bank shall open and
maintain on its books, accounts and records evidencing its portion of the
Borrowings made available to each Obligor under this Agreement. Such Bank shall
debit therein the amount of its portion of such Borrowings and fees payable to
it hereunder and shall enter therein each payment of principal of and interest
on its Loans, Letter of Credit reimbursement obligations and fees and shall
record therein all other amounts becoming due to it under this Agreement. Such
accounts and records maintained by each Bank will constitute, in the absence of
manifest error, prima facie evidence of the indebtedness of each Obligor to such
Bank pursuant to this Agreement, the date such Bank made its portion of each
Borrowing available to an Obligor and the amounts each Obligor has paid from
time to time on account of the principal of and interest on such Bank's Loans,
Letter of Credit reimbursement obligations and fees hereunder. The Agent shall
open and maintain in its books, master accounts and records in
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which it shall record the foregoing information with respect to each Bank.
2.7 Termination or Reduction of Commitments. The Parent,
acting on behalf of itself and any other Obligor, shall have the right, on at
least five Business Days' notice to the Agent (effective on receipt), at any
time to terminate the Commitments or from time to time to reduce the aggregate
amount of the Commitments, provided, however that (i) no such termination or
reduction shall be permitted if it would result in the Aggregate Commitment
being less than the aggregate then outstanding principal amount of Competitive
Bid Loans, (ii) any such reduction shall be accompanied by prepayment of
Committed Loans made under such Commitments, together with accrued interest on
the amount prepaid to the date of such prepayment, to the extent (if any) that
the aggregate amount in Dollars (including the Equivalent Amount thereof in
Dollars of outstanding Deutschemark Rate Committed Loans) of the Borrowings then
outstanding exceeds the aggregate amount of the Commitments as then reduced,
(iii) any termination of the Commitments shall be accompanied by prepayment in
full of the Committed Loans then outstanding, together with accrued interest
thereon to the date of such prepayment, any unpaid Facility Fee in respect of
such Commitments then accrued under Section 3.2(b) and all other amounts payable
under this Agreement, (iii) any termination of the Commitments while Eurodollar
Rate Committed Loans and Deutschemark Rate Committed Loans are outstanding may
be made only on the last day of an Interest Period so that the prepayment of
Eurodollar Rate Committed Loans and Deutschemark Rate Committed Loans required
thereby will not result in any loss or expense to any Bank of a kind described
in Section 2.14(d), (iv) upon termination of the Commitments, if there are any
Letters of Credit outstanding, the Obligors shall, jointly and severally,
provide to the Agent cash collateral in an amount equal to the aggregate
outstanding L/C Obligations, which shall be used to pay any outstanding drawings
under Letters of Credit and, 91 days after all Letters of Credit have been paid
or terminated, any remaining cash collateral shall be remitted to the Obligors,
and (v) no such termination or reduction shall be permitted if, after giving
effect thereto and any prepayments of the Committed Loans made on the effective
date thereof and any cash collateral provided for the L/C Obligations, the sum
of the aggregate outstanding principal amount of Loans and L/C Obligations would
exceed the Aggregate Commitment. Any such reduction shall be in the aggregate
amount of $10,000,000 or any larger whole multiple of $5,000,000 and shall
reduce permanently the amount of the Commitments then in effect. Each such
reduction shall reduce each Bank's Commitment by the percentage by which such
reduction reduced the Aggregate Commitment.
2.8 Prepayments. (a) If at any time the aggregate amount in
Dollars of the outstanding Borrowings by the Obligors exceeds the Aggregate
Commitment, the Obligors shall, promptly upon any Bank's request given through
the Agent, (i) first,
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27
prepay Base Rate Loans, (ii) second, prepay Eurodollar Rate Committed Loans,
(iii) third, prepay Deutschemark Rate Committed Loans and (iv) fourth, cash
collateralize Letters of Credit, in each case in sufficient amounts such that
after giving effect to such prepayment, the aggregate amount in Dollars of the
outstanding Borrowings by the Obligors shall not exceed the Aggregate
Commitment.
(b) Any Obligor may, on the last day of the applicable
Interest Period if the Committed Loans to be prepaid are Eurodollar Rate
Committed Loans or Deutschemark Rate Committed Loans or at any time and from
time to time if the Loans to be prepaid are Base Rate Loans, prepay any
Borrowing consisting of Committed Loans to such Obligor, in whole or in part,
without premium or penalty, on at least three Business Days', in the case of
Eurodollar Rate Committed Loans or Deutschemark Rate Committed Loans, or one
Business Day's, in the case of Base Rate Loans, irrevocable notice from the
Parent acting on such Obligor's behalf to the Agent (in each case effective on
receipt), specifying the Obligor making such prepayment, the date and amount of
such prepayment and the Committed Loans to be prepaid. On receipt of such notice
from the Parent, the Agent shall promptly notify each Bank thereof. If such
notice is given, the specified Obligor shall make such prepayment and the amount
specified in such notice shall be due and payable on the date specified therein,
together with accrued interest to such date on the amount prepaid. Prepayments
of Committed Loans may be reborrowed in accordance with the terms hereof. A
partial prepayment of Committed Loans shall be in the aggregate principal
amount, respectively, of $5,000,000 or any larger whole multiple of $1,000,000
or DM5,000,000 or any larger whole multiple of DM1,000,000.
2.9 Conversion Option. (a) Any Obligor may elect from time to
time on any Business Day to convert Committed Loans of one Type to Committed
Loans of another Type available under the applicable Commitments (except that,
anything in this Agreement to the contrary notwithstanding (other than under
paragraph (e) of Section 2.10), Committed Loans denominated in Deutschemarks may
not be converted to Committed Loans denominated in Dollars or vice versa but
must be repaid and then reborrowed in the other currency) by causing the Parent
to give the Agent irrevocable notice (effective on receipt), substantially in
the form of Exhibit D, at the Agent's Office before 10:00 A.M. at least three
Business Days (or four Business Days with respect to requests to convert to
Eurodollar Rate Committed Loans having Interest Periods of nine or twelve
months) prior to the requested conversion date, specifying the Obligor electing
such conversion, the Committed Loans to be converted, the Type of Committed
Loans to be converted to and, if to be converted to a Eurodollar Rate Committed
Loan, the Interest Period therefor. On receipt of such Notice of Conversion from
the Parent, the Agent shall promptly notify each Bank thereof. Any such
conversion of Eurodollar Rate Committed Loans shall only be made on the last day
of an Interest
<PAGE> 33
28
Period with respect thereto; no partial conversion of Eurodollar Rate Committed
Loans shall reduce the aggregate principal amount of Eurodollar Rate Committed
Loans to such Obligor having the same Interest Period to an amount less than the
minimum amount of an initial Borrowing consisting of Eurodollar Rate Committed
Loans; Base Rate Loans may be converted to Eurodollar Rate Committed Loans only
if no Default or Event of Default exists on the date of conversion; and Base
Rate Loans may not be converted to Eurodollar Rate Committed Loans after the day
that is one month before the Termination Date.
(b) Eurodollar Rate Committed Loans and Deutschemark Rate
Committed Loans may be continued as such upon the expiration of an Interest
Period with respect thereto by compliance with the notice provisions contained
in clause (b) of the definition of Interest Period; provided, however that
Eurodollar Rate Committed Loans and Deutschemark Rate Committed Loans may not be
continued as such when any Default or Event of Default exists but shall (i) in
the case of Eurodollar Rate Committed Loans, automatically be converted to Base
Rate Loans and (ii) in the case of Deutschemark Rate Committed Loans, be prepaid
and reborrowed as Base Rate Loans, in each case on the last day of the Interest
Period with respect thereto that began before the Agent obtained knowledge of
such Default or Event of Default.
2.10 Interest Rates and Payment Dates. (a) Each Eurodollar
Rate Committed Loan shall bear interest for each Interest Period with respect
thereto on the unpaid principal amount thereof at a rate per annum equal to the
sum of the Eurodollar Rate determined for such Interest Period plus the
Applicable Margin from time to time in effect.
(b) Each Deutschemark Rate Committed Loan shall bear interest
for such Interest Period with respect thereto on the unpaid principal amount
thereof at a rate per annum equal to the sum of the Deutschemark Rate determined
for such Interest Period plus the Applicable Margin from time to time in effect.
(c) Each Base Rate Loan shall bear interest for the period
from and including the Borrowing Date thereof or the date of conversion from a
Eurodollar Rate Committed Loan or Deutschemark Rate Committed Loan, as the case
may be, until the date of conversion to a Eurodollar Rate Committed Loan or
Deutschemark Rate Committed Loan or maturity, as the case may be, on the unpaid
principal amount thereof at a rate per annum equal to the sum of the Base Rate
plus the Applicable Margin from time to time in effect.
(d) Each Competitive Bid Loan shall bear interest at the rate
per annum determined pursuant to Section 2.5.
(e) If all or a portion of the principal amount of the Loans
is not paid when due (whether at the stated maturity, by acceleration or
otherwise), each Eurodollar Loan or Deutschemark
<PAGE> 34
29
Loan (if any) shall be converted to a Base Rate Loan at the end of the Interest
Period or Competitive Bid Loan Period, as applicable, that began before the date
such unpaid principal amount became due (any Deutschemark Loan so converted to a
Base Rate Loan shall be converted to the Equivalent Amount thereof in Dollars on
the last day of the Interest Period or Competitive Bid Loan Period, as
applicable, with respect thereto). Any such overdue principal amount of the
Loans and, to the extent permitted by applicable law, any overdue interest on
the Loans shall bear interest at a rate per annum which is (i) in the case of
overdue principal, the rate that would otherwise be applicable thereto pursuant
to the foregoing provisions of this Section 2.10 plus 1% and (ii) in the case of
overdue interest, to the extent permitted by applicable law, the sum of the Base
Rate plus one percent (1%), in each case from the date of such nonpayment until
paid in full (before and after judgment).
(f) Interest payable pursuant to paragraphs (a), (b), (c) or
(d) of this Section 2.10 shall be payable in arrears on each Interest Payment
Date. Interest payable pursuant to paragraph (e) of this Section 2.10 shall be
payable on demand. Interest on Deutschemark Loans shall be payable in
Deutschemarks, and interest on other Types of Loans shall be payable in Dollars.
(g) Interest shall be calculated on the basis of a 360-day
year, in the case of interest payable pursuant to paragraphs (a), (b) and (d) of
this Section 2.10, and a 365-day or 366-day year, as the case may be, in the
case of interest payable pursuant to paragraph (c) of this Section 2.10, for the
actual days elapsed. The Agent shall, as soon as practicable, notify the Parent
of each determination of a Eurodollar Rate or Deutschemark Rate. Any change in
the interest rate on Base Rate Loans resulting from a change in the Base Rate
shall become effective as of the opening of business on the day on which such
change in such rate becomes effective. The Agent shall, as soon as practicable,
notify the Parent of the effective date and the amount of each such change in
the Base Rate. Each determination of an interest rate by the Agent pursuant to
any provision of this Agreement shall be conclusive and binding on all the
parties hereto in the absence of error.
(h) For the purposes of disclosure pursuant to the Interest
Act (Canada), the yearly rate of interest to which any rate of interest is
equivalent may be determined by multiplying the applicable rate by a fraction,
the numerator of which is the number of days in the calendar year in which the
period for which interest at such rate is payable hereunder ends, and the
denominator of which is (i) 360 in the case of rates of interest based on the
Eurodollar Rate or the Deutschemark Rate, or (ii) 365 (366 in any leap year) in
the case of rates of interest based on the Base Rate.
2.11 Inability to Determine Eurodollar Rate or Deutschemark
Rate; Unavailability. (a) If (a) the Agent
<PAGE> 35
30
determines (which determination shall be conclusive and binding upon all the
parties hereto) that by reason of circumstances affecting the interbank
Eurodollar market, adequate and reasonable means do not exist for ascertaining
the Eurodollar Rate applicable pursuant to Section 2.10(a) for any Interest
Period, (b) all the Reference Banks shall fail to furnish quotations to the
Agent in order to fix the Eurodollar Rate, (c) the Agent receives notice from
the Reference Banks that deposits in Dollars are not being offered by the
Reference Banks to prime banks in the London interbank market for such interest
period or in the applicable amounts, or (d) any Bank notifies the Agent that the
London interbank offered rate for such Interest Period does not adequately
reflect the cost of funding for such Interest Period, in each case with respect
to (x) a proposed Borrowing consisting of Eurodollar Rate Committed Loans, (y)
the Eurodollar Rate Committed Loans that will result from a requested conversion
of Base Rate Loans into Eurodollar Rate Committed Loans or (z) the continuation
of Eurodollar Rate Committed Loans beyond the expiration of the then current
Interest Period with respect thereto, the Agent shall forthwith give notice to
the Parent and the Banks at least one Business Day before, as the case may be,
the requested Borrowing Date for such Eurodollar Rate Committed Loans, the
conversion date of such Base Rate Loans or the last day of such Interest Period.
If such notice is given, (i) any requested Borrowing of Eurodollar Rate
Committed Loans shall be made as Base Rate Loans, (ii) any Base Rate Loans that
were to have been converted to Eurodollar Rate Committed Loans shall be
continued as Loans of the Type they then are, and (iii) any outstanding
Eurodollar Rate Committed Loans shall be converted, on the last day of the then
current Interest Period with respect thereto, to Base Rate Loans. Until such
notice has been withdrawn by the Agent, no further Eurodollar Rate Committed
Loans shall be made nor shall the Obligors have the right to convert Base Rate
Loans to Eurodollar Rate Committed Loans.
(b) If (a) the Agent determines (which determination shall be
conclusive and binding upon all the parties hereto) that by reason of
circumstances affecting the interbank Deutschemark market, adequate and
reasonable means do not exist for ascertaining the Deutschemark Rate applicable
pursuant to Section 2.10(b) for any Interest Period, (b) all the Reference Banks
shall fail to furnish quotations to the Agent in order to fix the Deutschemark
Rate, (c) the Agent receives notice from the Reference Banks that deposits in
Deutschemarks are not being offered by the Reference Banks to prime banks in the
London interbank market for such interest period or in the applicable amounts,
or (d) any Bank notifies the Agent that the London interbank offered rate for
such Interest Period does not adequately reflect the cost of funding for such
Interest Period, in each case with respect to (x) a proposed Borrowing
consisting of Deutschemark Rate Committed Loans or (y) the continuation of
Deutschemark Rate Committed Loans beyond the expiration of the then current
Interest Period with respect thereto, the Agent shall forthwith give notice to
the Parent and the Banks at least
<PAGE> 36
31
one Business Day before, as the case may be, the requested Borrowing Date for
such Deutschemark Rate Committed Loans or the last day of such Interest Period.
If such notice is given, (i) any requested Borrowing of Deutschemark Rate
Committed Loans shall be made as Base Rate Loans and (ii) any outstanding
Deutschemark Rate Committed Loans shall be prepaid, on the last day of the then
current Interest Period with respect thereto, and reborrowed as Base Rate Loans.
Until such notice has been withdrawn by the Agent, no further Deutschemark Rate
Committed Loans shall be made.
2.12 Reserves; Increased Costs. (a) The Obligors agree to pay,
jointly and severally, to each Bank promptly upon its demand an amount equal to
the cost to such Bank of making or maintaining any Eurodollar Rate Committed
Loan or Deutschemark Rate Committed Loan as a result of any reserve requirements
(including, without limitation, basic, supplemental, marginal and emergency
reserves) applicable to such Bank with respect to Eurocurrency liabilities (as
defined in Regulation D of the Board of Governors of the Federal Reserve System
as from time to time in effect or any successor regulation establishing reserve
requirements). A certificate as to any amount payable pursuant to the preceding
sentence submitted by any Bank to the Parent shall be conclusive, provided that
the determination thereof is made on a reasonable basis.
(b) If any law, rule, regulation, treaty, directive or
executive agreement or any change therein or in the interpretation or
application thereof by any governmental authority, agency or instrumentality or
any court or any request or directive (whether or not having the force of law)
from any central bank or other governmental authority, agency or
instrumentality:
(i) subjects any Bank to any tax of any kind whatsoever
with respect to this Agreement or any Borrowing hereunder or changes
the basis of taxation of payments to such Bank of principal, commitment
or stamping fees, interest or any other amount payable hereunder
(except for changes in the rate of, or basis of, tax on the net income,
net worth, franchise or, in Canada, capital of such Bank);
(ii) imposes, modifies or holds applicable to any Bank
(or any corporation controlling any Bank) any reserve or capital
adequacy requirements (other than those reserve requirements subject to
paragraph (a) of this Section 2.12) or liquidity ratios or requires any
Bank (or any corporation controlling any Bank) to make special deposits
against or in respect of assets or liabilities of, deposits with or for
the account of, or credit extended by, such Bank; or
(iii) imposes on any Bank any other condition affecting
this Agreement or the Borrowings;
<PAGE> 37
32
and the result of any of the foregoing is (A) to increase the cost to such Bank
of making its portion of the Borrowings available or to reduce any amount
received or receivable by such Bank hereunder, (B) to require such Bank (or any
corporation controlling such Bank) to make any payment to any fiscal, monetary,
regulatory or other authority calculated on or by reference to any amount
received or receivable by such Bank under this Agreement or (C) to reduce the
rate of return on such Bank's capital (or the capital of such corporation) as a
consequence of its obligations hereunder to a level below that which such Bank
(or such corporation) could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's (or such corporation's)
policies with respect to capital adequacy), in any case by an amount deemed by
such Bank (or such corporation) to be material, then, in any such case, the
Obligors shall promptly pay, jointly and severally, such Bank (or such
corporation controlling such Bank), on its written demand to the Parent (given
through the Agent), any additional amount necessary to compensate such Bank (or
such corporation) for such additional cost, reduced amount receivable or
reduction in rate of return with respect to this Agreement or the Borrowings,
together with interest on such amount from the date demanded until payment in
full thereof at the rate per annum applicable to Base Rate Loans, calculated on
the basis of a 365-day or 366-day year, as the case may be, and actual days
elapsed. If any Bank becomes entitled to claim any additional amount pursuant to
this Section 2.12, it shall promptly notify the Parent and the Agent of the
event by reason of which it has become so entitled. A certificate as to any
additional amount payable pursuant to the first sentence of this Section 2.12
submitted by any Bank to the Parent shall be conclusive, provided that the
determination thereof is made on a reasonable basis. In determining such amount,
the affected Bank may use any reasonable averaging and attribution methods.
Notwithstanding the foregoing, the Obligors shall not be responsible for any
such additional costs, reduced amount receivable or reduction in rate of return
that is incurred or suffered by any Bank before such Bank gives notice thereof
except to the extent that failure to give such notice was the result of
retroactive application of any law, rule, regulation, treaty, directive,
interpretation or request, misinterpretation thereof by any governmental
authority, agency or instrumentality or any court or good faith
misinterpretation thereof by such Bank.
2.13 Illegality. Notwithstanding any other provisions hereof,
if any law, regulation, treaty or directive or any change therein or in the
interpretation or application thereof by any governmental authority, agency or
instrumentality or any court makes it unlawful for any Bank to make or maintain
Eurodollar Rate Committed Loans or Deutschemark Rate Committed Loans as
contemplated by this Agreement, such Bank shall give notice (by telephone
confirmed in writing) thereof to the Parent and the Agent and (a) such Bank's
commitment to make Eurodollar Rate Committed Loans or Deutschemark Rate
Committed Loans or to convert Base Rate Loans to Eurodollar Rate Committed Loans
shall
<PAGE> 38
33
forthwith be canceled, (b) each Loan made by such Bank then outstanding as a
Eurodollar Rate Committed Loan or Deutschemark Rate Committed Loan (if any)
shall automatically be converted to, or in the case of a Deutschemark Rate
Committed Loan, prepaid and reborrowed as, a Base Rate Loan on the last day of
the then current Interest Period for such Eurodollar Rate Committed Loan or
Deutschemark Rate Committed Loan or on such earlier date as required by law and
(c) such Bank shall thereafter make its portion of any requested Borrowing
consisting of Eurodollar Rate Committed Loans available as a Base Rate Loan. On
receipt of such notice from any Bank, the Agent shall promptly notify the Parent
and each other Bank thereof. Each Obligor hereby agrees promptly to pay any
Bank, upon its demand, any additional amount necessary to compensate such Bank
for any costs incurred by such Bank in making any conversion of Eurodollar Rate
Committed Loans or prepayment of Deutschemark Rate Committed Loans made by such
Bank to such Obligor in accordance with this Section 2.13 if such conversion
occurs on a day that is not the last day of an Interest Period, including (but
not limited to) any interest or fees payable by such Bank to lenders of funds
obtained by it in order to make or maintain such Eurodollar Rate Committed Loans
or Deutschemark Rate Committed Loans (such Bank's notice of such costs, as
certified to the relevant Obligor, to be conclusive absent manifest error).
2.14 Funding Losses. Each Obligor agrees to indemnify each
Bank and to hold each Bank harmless from any loss (other than loss of profit) or
expense that such Bank may sustain or incur as a consequence of (a) default by
such Obligor in payment of principal of, or interest on, any Eurodollar Rate
Committed Loan or Deutschemark Rate Committed Loan made to it by such Bank,
including (but not limited to) any such loss or expense arising from interest or
fees payable by such Bank to lenders of funds obtained by it in order to
maintain such Eurodollar Rate Committed Loan or Deutschemark Rate Committed
Loan, (b) default by such Obligor in making a Borrowing or conversion after
notice thereof has been given in accordance with Section 2.3 or 2.9, (c) default
by such Obligor in making any prepayment after notice thereof has been given in
accordance with Section 2.8 or (d) a prepayment of a Eurodollar Rate Committed
Loan or Deutschemark Rate Committed Loan, or payment thereof upon acceleration,
on a day that is not the last day of an Interest Period with respect thereto,
including (but not limited to) any such loss or expense arising from interest or
fees payable by such Bank to lenders of funds obtained by it in order to
maintain such Eurodollar Rate Committed Loan or Deutschemark Rate Committed
Loan. This covenant shall survive payment of the Loans and the termination of
this Agreement.
2.15 Taxes. (a) All payments made by any Obligor under this
Agreement shall be made free of, and without deduction for or on account of, and
each Obligor shall indemnify and hold each Bank and the Agent harmless on an
after-tax basis from, any present or future taxes, levies, imports, duties,
deductions,
<PAGE> 39
34
charges or withholdings of any kind imposed in connection with the transactions
contemplated by this Agreement and all liabilities with respect thereto
(excluding, in the case of Borrowings by the Parent, income and capital taxes of
Canada or any political subdivision or taxing authority thereof or therein
imposed on the income, or with respect to the capital, of each Bank (if such
Bank is engaged in business in Canada) and, in the case of Borrowings by UDI and
UDH, taxes imposed on the income of, and franchise and net worth taxes imposed
on each Bank by the United States of America or any political subdivision or
taxing authority thereof or therein (if such Bank is engaged in business in the
United States) and, in either case, taxes imposed on the income of, and
franchise taxes imposed on, each Bank and the Agent by any jurisdiction in which
such Bank or the Agent, as the case may be, is incorporated) (all such
non-excluded taxes, levies, imposts, duties, deductions, charges, withholdings
and liabilities hereinafter referred to as "Taxes"). If any such Tax is required
to be withheld or deducted from any such payment, such Obligor will pay such
additional amount to the affected Bank or the Agent as will ensure that such
Bank or the Agent receives an amount equal to the full amount it would have
received had such withholding or deduction not been made. Notwithstanding the
foregoing, an Obligor shall have no obligation to pay any amount to or for the
account of any Bank or the Agent on account of any Taxes pursuant to this
Section 2.15 to the extent that such amount results from the failure of any Bank
or the Agent to deliver to the Obligor and the Agent, on or before the date
payment is due by the Obligor to such Bank or the Agent, two (2) duly completed
copies of United States Internal Revenue Service Form 4224 or 1001, or any
successor applicable form, as the case may be, certifying that the Bank or the
Agent is entitled to receive such payments without deduction or withholding of
United States Federal income taxes, if either such form or successor form would
be applicable. Whenever any Tax is withheld or deducted by an Obligor, such
Obligor shall, promptly upon the affected Bank's or the Agent's request, furnish
to it evidence of the payment thereof to the proper authorities. If the Obligors
are not legally permitted to indemnify any Bank or the Agent on an after-tax
basis as provided in this Section 2.15, then they shall promptly furnish to the
affected Bank or the Agent official receipts showing payment of the relevant
Taxes to the proper authorities.
(b) If after a Borrowing has occurred a Bank shall change its
U.S. Lending Office with respect to such Borrowing, such Bank shall not be
entitled to receive any greater payment under this Section 2.15 than such Bank
would have been entitled to receive if it had not changed its U.S. Lending
Office, unless such change was at the request of the Obligor or at a time when
the circumstances giving rise to such greater payment did not exist.
2.16 Pro Rata Treatment and Payments. (a) Each Borrowing under
the Commitments (other than of Competitive Bid
<PAGE> 40
35
Loans) and each payment of the Facility Fees, the Utilization Fees and the
Letter of Credit Fees with respect to the Commitments shall be made pro rata by
or for the account of the Banks according to their respective Commitments. Each
payment (including each prepayment) of principal of, or interest on, Committed
Loans shall be made pro rata for the account of the Banks according to the
respective amounts of their Loans outstanding under their Commitments.
(b) All payments (including prepayments) to be made by an
Obligor under this Agreement shall be made, without set-off or counterclaim, not
later than 2:00 P.M. New York time (in the case of Dollar amounts) or 11:00 A.M.
Frankfurt time (in the case of Deutschemark amounts) on the due date at the
Agent's Office in New York (in the case of Dollar amounts) or to the Agent's
account in Frankfurt, Germany (in the case of Deutschemark amounts) in
immediately available and freely transferable funds and, in the case of payments
of principal of, or interest on, the Deutschemark Loans, in lawful money of
Germany or, in all other cases, in lawful money of the United States of America.
Payments received by the Agent after 2:00 P.M. New York time (in the case of
Dollar amounts) or 11:00 A.M. Frankfurt time (in the case of Deutschemark
amounts) will be deemed to have been received on the following Business Day.
Payments received not later than 2:00 P.M. New York time (in the case of Dollar
amounts) or 11:00 A.M. Frankfurt time (in the case of Deutschemark amounts) on
any day shall be distributed by the Agent to the Banks or itself, as the case
may be, on the day of receipt, and payments received after 2:00 P.M. New York
time (in the case of Dollar amounts) or 11:00 A.M. Frankfurt time (in the case
of Deutschemark amounts) on any day shall be distributed by the Agent to the
Banks on the following Business Day, in each case in like funds as received. If
any payment hereunder (other than payments on the Eurodollar Loans or
Deutschemark Loans) becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day, and, with
respect to payments of principal, interest thereon shall be payable at the
applicable rate during such extension. If any payment on a Eurodollar Loan or
Deutschemark Loan becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day unless the
result of such extension would be to extend such payment into another calendar
month, in which event such payment shall be made on the immediately preceding
Business Day.
(c) Unless the Agent is notified in writing by any Bank before
a Borrowing Date that such Bank will not make available to the Agent the amount
of its Committed Loan(s) to be made on such Borrowing Date, the Agent may (but
shall not be obligated to) assume that such Bank will make such amount available
to the Agent on such Borrowing Date and may, in reliance on such assumption,
make available to the Obligor a corresponding amount. If such amount is made
available to the Agent by such Bank on a date after such Borrowing Date, such
Bank
<PAGE> 41
36
shall pay to the Agent on demand an amount equal to the product of (i) the
average daily federal funds rate (in the case of Dollar amounts) or the
overnight rate charged to the Agent by the corresponding bank (in the case of
Deutschemark amounts) per annum during the period referred to in clause (iii) of
this sentence times (ii) the amount of such Bank's Committed Loan(s) to be made
on such Borrowing Date times (iii) the number of days that elapse from and
including such Borrowing Date to the date on which the amount of such Committed
Loan(s) becomes immediately available to the Agent divided by (iv) 360. If the
amount of such Bank's Committed Loan(s) to be made on any Borrowing Date is not
in fact made available to the Agent by such Bank within three Business Days
after such Borrowing Date, the Agent shall be entitled to recover such amount
from the relevant Obligor, on demand, with interest thereon at the rate per
annum applicable to such Loan(s) hereunder. No Bank shall be responsible for the
failure of any other Bank to make its portion of any Borrowing available to an
Obligor.
(d) Unless the Agent is notified in writing by the Parent
before any payment date of a Committed Loan that the Obligors will not make
available to the Agent the payment of principal or interest to be made on such
date, the Agent may (but shall not be obligated to) assume that the Obligors
will make such amount available to the Agent on such date and may, in reliance
on such assumption, make available to the Banks entitled thereto a corresponding
amount. If such amount is not in fact made available to the Agent by the
Obligors within three Business Days after such date, the Agent shall be entitled
to recover a pro rata share of such amount from each Bank that received a
portion thereof, on demand, with interest thereon at a rate per annum equal to
the average daily federal funds rate (in the case of Dollar amounts) or the
overnight rate charged to the Agent by the corresponding bank (in the case of
Deutschemark amounts) per annum during the period from the date of such Bank's
receipt of its portion of such amount to the date of its return thereof to the
Agent, calculated on the basis of a 360-day year for the actual days elapsed.
2.17 Use of Proceeds of Borrowings. The Letters of Credit and
the proceeds of any Borrowings shall be used (i) to finance the ongoing
operations and corporate purposes of the Obligors and their Subsidiaries, (ii)
to finance the Acquisitions and (iii) refinance certain existing indebtedness of
Imo and Core. No part of the proceeds of any Borrowing shall be used to
purchase, carry or refinance any Margin Stock in violation of Regulation U or to
extend credit for the purpose of purchasing, carrying or refinancing Margin
Stock in violation of Regulation U.
2.18 Parent's Authority. UDI and UDH hereby authorize the
Parent to act on UDI's and UDH's behalf to give all notices and instructions
required or permitted to be given by UDI or UDH under this Article II.
<PAGE> 42
37
2.19 Mitigation of Costs. Each Bank agrees that it will, as
promptly as practicable after it has actual knowledge of the occurrence of an
event or existence of a condition that would cause it (or any corporation
controlling it) to be entitled to compensation pursuant to Section 2.12, 2.13 or
2.15, use its best efforts to make, fund or maintain its Committed Loans or to
take such other action as it deems appropriate to reduce or eliminate the
compensation to which it would otherwise be entitled, provided that such Bank
shall not be required to take any such action if, in its sole discretion, the
taking thereof would adversely affect it or its Loans.
2.20 Letters of Credit. (a) The Parent may, from time to time,
request the Issuing Bank to issue, and the Issuing Bank shall, if so requested
and if such issuance in the sole determination of the Issuing Bank would not
violate any applicable law or regulation, issue U.S. dollar denominated letters
of credit for the account of the Parent or any of its Consolidated Subsidiaries
(the "Letters of Credit"), subject to the terms and conditions set forth in this
Section 2.20. Each Letter of Credit shall be issued on terms agreed to by the
Issuing Bank in conformity with the Uniform Customs and Practice for Documentary
Credits of the International Chamber of Commerce, as adopted from time to time.
The sum of (i) the aggregate maximum amount available for drawing under all
Letters of Credit outstanding and (ii) all unpaid Reimbursement Obligations
shall not exceed $75,000,000. Except to the extent inconsistent with any
specific provisions concerning Letters of Credit set forth in this Section 2.20,
each Letter of Credit shall constitute a Borrowing under this Agreement, and all
provisions of this Agreement concerning Borrowings shall apply to Letters of
Credit; provided, however that, with respect to calculations as to compliance by
the Obligors with the financial covenants set forth in this Agreement, a Letter
of Credit shall not constitute a Borrowing under this Agreement unless such
Letter of Credit falls within the definition of the term "Contingent
Obligations".
(b) No Letter of Credit shall have an initial expiration date
later than the earlier of (i) two years after the date of issuance thereof and
(ii) the Termination Date in effect on the date of issuance thereof.
(c) Immediately upon the issuance of each Letter of Credit,
the Issuing Bank shall be deemed to have sold and transferred to each Bank, and
each Bank shall be deemed to have purchased and received from the Issuing Bank,
irrevocably and without any further action by any party, an undivided interest
and participation in any such Letter of Credit, each drawing thereunder and the
obligations of the Obligors under this Agreement in respect thereof in an amount
equal to such Bank's pro rata share of the maximum amount available to be drawn
under such Letter of Credit, as calculated by the Issuing Bank. All such
interests so purchased and received by each Bank shall be deemed to be
Obligations for the purpose of any sale, assignment
<PAGE> 43
38
or other transaction thereof by any Bank and any such act shall be effected only
pursuant to Section 11.7(b).
(d) In addition to satisfaction of the conditions precedent
set forth in Section 6.2, the Issuing Bank shall not be obligated to issue any
Letter of Credit hereunder if, as of the proposed date of issuance of such
Letter of Credit, any order, judgment or decree of any governmental authority
shall purport by its terms to enjoin or restrain the Issuing Bank from issuing
the Letter of Credit or any Bank from participating in such Letter of Credit, or
any law, rule or regulation applicable to the Issuing Bank or any Bank or any
request or directive (whether or not having the force of law) from any
governmental authority with jurisdiction over the Issuing Bank or any Bank,
shall prohibit or otherwise prevent the Issuing Bank from issuing letters of
credit generally or such Letter of Credit, or prohibit or otherwise prevent such
Bank from participating in letters of credit generally or such Letter of Credit,
or shall impose upon the Issuing Bank or such Bank with respect to that Letter
of Credit any restriction or unreimbursed reserve requirement not in effect on
July 1, 1997 or any unreimbursed cost or expense which was not applicable, in
effect or known to the Issuing Bank or such Bank on or as of July 1, 1997 and
which the Issuing Bank or such Bank in good faith deems materially adverse to
it.
(e) Request for Issuance. (i) Each Letter of Credit shall be
issued upon application, which application must be received by the Issuing Bank
no later than 10:00 A.M. (New York City time) on the second Business Day prior
to the date of the proposed issuance of such Letter of Credit, by the Parent to
the Issuing Bank, which shall give to each Bank prompt notice thereof. Each such
application for issuance of a Letter of Credit by the Parent shall be in form
satisfactory to the Issuing Bank and shall specify therein, inter alia, the
requested (A) date of such issuance (which shall be a Business Day), (B) maximum
amount of such Letter of Credit, (C) expiration date of such Letter of Credit
and (D) name and address of the beneficiary of such Letter of Credit. The
Issuing Bank will, subject to satisfaction of the applicable conditions set
forth in Section 6.2, make such Letter of Credit available as directed by the
Parent in its application for such Letter of Credit.
(ii) The Issuing Bank shall furnish to each Bank on the
first Business Day of each month a report setting forth the issuance and
expiration dates of Letters of Credit issued during the preceding month and
setting forth such Bank's participation therein.
(f) Drawing and Reimbursement. (i) In the event of payment by
the Issuing Bank of any amount to a beneficiary under any Letter of Credit, the
Issuing Bank promptly shall notify each Bank of its share thereunder. Each Bank
thereupon promptly shall make the amount of its share available to the Issuing
Bank in immediately available funds. The Obligors jointly and severally
<PAGE> 44
39
agree to reimburse the Issuing Bank for each amount that the Issuing Bank pays
in respect of any draft drawn under any Letter of Credit not later than 2:00
P.M. on the day that is two (2) Business Days after payment of such amount by
the Issuing Bank under such Letter of Credit. Each Reimbursement Obligation
owing with respect to any drawing under any Letter of Credit shall bear interest
from the date of payment of such drawing by the Issuing Bank under such Letter
of Credit at the interest rate applicable to Base Rate Loans under this
Agreement until the date which occurs two (2) Business Days after the date of
such payment by the Issuing Bank, and thereafter, until the date on which such
Reimbursement Obligation is paid in full, at the interest rate for overdue Base
Rate Loans calculated in accordance with Section 2.10(e). Payments made by an
Obligor on account of a Reimbursement Obligation shall be distributed by the
Issuing Bank to the Banks in accordance with Section 2.16(b).
(ii) In the event the Issuing Bank is required to fund any
payment to a beneficiary under any Letter of Credit prior to receipt by the
Issuing Bank of the amount of the share of such payment of any given Bank, such
Bank's share will be deemed funded and the Issuing Bank will fund its portion at
the overnight Federal Funds Rate. Any such Bank shall pay interest on the amount
which has not been timely paid from the date on which the Issuing Bank funded
such Bank's share of the applicable payment under the Letter of Credit until the
date on which such Bank's payment, together with the interest required to be
paid thereon, is paid in full, at a rate equal to the Federal Funds Rate,
computed on the basis of a year of 360 days for the actual number of days
(including the first day but excluding the last day) occurring during the period
during which such interest is payable; provided, however, that if such failure
to pay shall continue for two (2) calendar days, interest shall accrue and be
payable by such Bank from the end of the second day until paid in full, at a
rate per annum equal to one percent (1%) plus the Base Rate, computed on the
basis of a year of 365 or 366 days for the actual number of days (including the
first day but excluding the last day) occurring during the period from the end
of such second calendar day until payment in full is made by such Bank to the
Issuing Bank.
(iii) In determining whether to pay any draft drawn under
any Letter of Credit, the Issuing Bank shall have no obligation to the Banks
other than to confirm that any documents required to be delivered under such
Letter of Credit appear to have been delivered and that they appear to comply on
their face with the requirements of such Letter of Credit. No action taken or
omitted to be taken by the Issuing Bank under or in connection with any Letter
of Credit shall result in any liability of the Issuing Bank to any Bank, other
than with respect to any liability arising from the Issuing Bank's gross
negligence or willful misconduct.
<PAGE> 45
40
(iv) If any payment received on account of any
Reimbursement Obligation with respect to a Letter of Credit and distributed to a
Bank as a participant therein under Section 2.16(b) is thereafter set aside,
avoided or recovered from the Issuing Bank in connection with any receivership,
liquidation, reorganization or bankruptcy proceeding relating to an Obligor,
each Bank that received such distribution shall, upon demand by the Issuing
Bank, pay to the Issuing Bank such Bank's pro rata share of the amount so set
aside, avoided or recovered.
(g) Obligations Absolute. The obligations of the Obligors
hereunder and under any other agreement or instrument relating to any Letter of
Credit shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of such Letter of Credit and this Agreement. As
between the Obligors and the Issuing Bank, the Obligors assume all risks of the
acts and omissions of, or misuse of such Letters of Credit by the respective
beneficiaries of the Letters of Credit. In furtherance and not in limitation of
the foregoing, the Issuing Bank shall not be responsible:
(i) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit
or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason;
(ii) for the existence of any claim, set-off, defense
or other right that any Obligor may have at any time against any beneficiary or
any transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank or any other
Person;
(iii) for the misapplication by the beneficiary of a
Letter of Credit of the proceeds of any drawing under such Letter of Credit;
(iv) for any statement or any other document
presented under a Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or inaccurate in any
respect; or
(v) for payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or certificate that does not comply in
immaterial respects with the terms of the Letter of Credit.
None of the above shall affect, impair, or prevent the vesting
of any of the Issuing Bank's rights or powers hereunder, but the Issuing Bank
shall not be relieved of any liability it may otherwise have as a result of its
gross negligence or willful misconduct.
<PAGE> 46
41
ARTICLE III. EXPENSES, FEES AND INDEMNIFICATION
3.1 Expenses. Each Obligor jointly and severally agrees to pay
on demand, regardless of whether any Default or Event of Default has occurred or
whether any proceeding to enforce this Agreement has been commenced, all
reasonable out-of-pocket expenses (including, without limitation, fees and
disbursements of counsel) (a) incurred by the Agent in connection with the
negotiation, preparation, administration, filing or recording of this Agreement,
any waivers or consents in connection herewith and any future amendments or
waivers or requests for amendments or waivers of this Agreement (whether or not
the transactions contemplated thereby shall be consummated) and the making and
repayment of the Borrowings hereunder and (b) incurred by the Agent or any Bank
in connection with the preservation and enforcement of the rights of the Agent
and the Banks under and in connection with this Agreement and the Borrowings
after the occurrence of a Default or Event of Default. This covenant shall
survive payment of the Loans and the Reimbursement Obligations and termination
of this Agreement. Each Obligor hereby authorizes the Banks to make Base Rate
Loans to such Obligor and to use the proceeds thereof to pay any amount owed by
such Obligor under this Section 3.1 if such Obligor fails to pay such amount
within two Business Days after demand, and the Agent agrees to notify the Parent
of the making of any such Loans. Such Loans shall be made in the minimum amount
necessary and without regard to the requirements of Article II with respect to
notice and minimum borrowing amount.
3.2 Fees. (a) Each Obligor jointly and severally agrees to pay
to the Agent as and when due all fees payable to the Agent pursuant to the Fee
Letter.
(b) Each Obligor jointly and severally agrees to pay to the
Agent for the account of each Bank according to such Bank's respective
Commitment from time to time in effect a facility fee (the "Facility Fee") in
Dollars and, in each case from and including the Effective Date to the
Termination Date, computed on the Aggregate Commitment at a rate per annum equal
to 8.0 basis points for the period from the Effective Date to the first Pricing
Determination Date and thereafter for each period from each Pricing
Determination Date to the next Pricing Determination Date, the rate set forth
opposite the Status of the Obligors at the beginning of each such period as set
forth below:
<TABLE>
<CAPTION>
Status Applicable Rate
------ ---------------
<S> <C>
Level I 0.0800%
Level II 0.1000%
Level III 0.1250%
</TABLE>
The Facility Fee shall be payable quarterly in arrears on the last day of each
March, June, September and December, commencing September 30, 1997, and on the
Termination Date. Such fees shall
<PAGE> 47
42
be calculated on the basis of a 365-day or 366-day year, as the case may be, for
the actual days elapsed.
(c) In Level III only, each Obligor jointly and severally
agrees to pay to the Agent for the ratable accounts of the Banks a utilization
fee (the "Utilization Fee") in Dollars if the average Borrowings outstanding
during any calendar quarter are greater than fifty percent (50%) of the average
aggregate Commitments during such quarter and the Senior Unsecured Debt of the
Parent is not rated by S&P at BBB- or better or Moody's at Baa3 or better, in
each case from and including the Effective Date to the Termination Date,
computed on the daily outstanding Borrowings at a rate per annum equal to 5.0
basis points. If such Utilization Fee becomes payable, it shall be payable
quarterly in arrears on the last day of each March, June, September and
December, commencing September 30, 1997 and on the Termination Date. Such fee
shall be calculated on the basis of a 365-day or 366-day year, as the case may
be, for the actual days elapsed.
(d) Each Obligor jointly and severally agrees to pay to the
Agent for the ratable accounts of the Banks a letter of credit fee (the "Letter
of Credit Fee") in Dollars on the aggregate daily amount available for drawing
under all Letters of Credit, in each case from and including the Effective Date
to the Termination Date, computed on the daily amount available for drawing
under all outstanding Letters of Credit at a rate per annum equal to 17.0 basis
points for the period from the Effective Date to the first Pricing Determination
Date and thereafter for each period from each Pricing Determination Date to the
next Pricing Determination Date, the rate set forth opposite the Status of the
Obligors at the beginning of each such period as set forth below:
<TABLE>
<CAPTION>
Status Applicable Rate
------ ---------------
<S> <C>
Level I 0.1700%
Level II 0.2500%
Level III 0.3250%
</TABLE>
The Letter of Credit Fee shall be payable quarterly in arrears
on the last day of each March, June, September and December, commencing
September 30, 1997 and on the Termination Date. Such Letter of Credit Fee shall
be calculated on the basis of a 360-day year for the actual days elapsed.
(e) Each Obligor jointly and severally agrees to pay to the
Issuing Bank, for its own account, a fee in connection with the issuance and
administration of each Letter of Credit in the amount separately agreed upon
among the Obligors and the Issuing Bank.
<PAGE> 48
43
3.3 Indemnification. In consideration of the execution and
delivery of this Agreement by each Bank and the Agent and the extension of the
Commitments, each Obligor jointly and severally indemnifies, exonerates and
holds the Agent and each Bank and each of their respective officers, directors,
employees and agents (collectively, the "Bank Parties") free and harmless from
and against any and all actions, causes of action, suits, losses, costs,
liabilities and damages and expenses actually incurred in connection therewith
(irrespective of whether such Bank Party is a party to the action for which
indemnification hereunder is sought), including reasonable attorneys' fees and
disbursements (collectively, the "Indemnified Liabilities"), incurred by the
Bank Parties or any of them as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Borrowing; (b) the entering into and
performance of this Agreement by any of the Bank Parties (including any action
brought by or on behalf of any Obligor as the result of any determination by the
Required Banks not to fund any Borrowing); or (c) any investigation, litigation
or proceeding related to any acquisition or proposed acquisition by any Obligor
or any Subsidiary of any Obligor of all or any portion of the stock or all or
substantially all the assets of any Person or merger, whether or not the Agent
or such Bank is party thereto, except for any such Indemnified Liabilities
arising for the account of a particular Bank Party by reason of its own gross
negligence, willful misconduct, or breach of this Agreement. Without limiting
the foregoing, each Obligor, jointly and severally, indemnifies, exonerates and
holds harmless each of the Bank Parties free and harmless from and against any
and all actions, causes of action, suits, losses, costs, liabilities and damages
and expenses relating to or arising from any Hazardous Material, Release, or
other environmental matter, including, without limitation, reasonable legal,
accounting, consulting, engineering, and related expenses, that such Bank Party,
or its successors or assigns incur as a result of this Agreement, except for any
liabilities and related expenses arising from a Release for which such Bank
Party is solely responsible. If and to the extent that the foregoing undertaking
may be unenforceable for any reason, each Obligor jointly and severally agrees
to make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities that is permissible under applicable law. No Designated
Lender shall be liable for any payment under this subsection 3.3 so long as, and
to the extent that, its Designating Lender makes such payments. This covenant
shall survive payment of the Obligations and termination of this Agreement.
ARTICLE IV. GUARANTY
4.1 Guaranty of Payment. For valuable consideration, the
sufficiency and receipt of which are hereby acknowledged by each Obligor, and to
induce the Banks and the Agent to enter into
<PAGE> 49
44
this Agreement and to make Borrowings available hereunder, each Obligor (a
"Guarantor-Obligor") hereby irrevocably and unconditionally guarantees, as
primary obligor and not merely as surety, to each Bank and the Agent and their
successors, endorsees, transferees and assigns, the prompt and complete payment
when due (whether at the stated maturity, by acceleration or otherwise) of all
Obligations of the other Obligors to the Banks and the Agent, now existing or
hereafter incurred, under or arising out of or in connection with this
Agreement, whether for principal, interest, fees, expenses or otherwise. Each
Guarantor-Obligor hereby irrevocably and unconditionally agrees, that upon
default by any other Obligor (a "Defaulting Obligor") in the payment to any Bank
or the Agent, when due of any Obligation, such Guarantor-Obligors will
immediately pay the same in accordance with the terms of this Agreement,
together with any and all reasonable expenses that are incurred by any Bank or
the Agent in collecting the same, without further notice or demand. This
guaranty is a guaranty of payment and not of collection. Any Bank or the Agent
may proceed immediately against any Guarantor-Obligor upon any default by any
Defaulting Obligor in the payment of any Obligation when due, and neither the
Banks nor the Agent shall be required to (a) obtain or enforce any judgment
against such Defaulting Obligor, (b) file a claim in any bankruptcy, insolvency
or reorganization proceeding involving such Defaulting Obligor, (c) resort to
any collateral for the Obligations or (d) enforce or exhaust any rights against
such Defaulting Obligor or its assets. Any Guarantor-Obligor may, at any time
before a notice of acceleration is given to the Obligors pursuant to Article IX,
pay or perform such Obligation, and the Banks and the Agent agree to accept such
payment or performance from such Guarantor-Obligor. Each Guarantor-Obligor
waives for all purposes of this Article IV the benefit of discussion and
division.
4.2 Obligations Unconditional. (a) The obligations of each
Guarantor-Obligor under this Article IV shall be continuing, absolute and
unconditional irrespective of, and shall not be subject to any defense (other
than the defense that no Event of Default existed at the time demand was made
for payment by such Guarantor-Obligor under this Article IV) or set-off,
counterclaim, recoupment or termination whatsoever by reason of, (i) the
legality, genuineness, validity, regularity or enforceability (as against the
other Obligors, the Banks or the Agent) of this Agreement, (ii) the existence,
value, validity or extent of any collateral for the Obligations or the
perfection of any bankers' liens thereon, (iii) any provision of applicable law
or regulation purporting to prohibit the payment by any Obligor of the
Obligations, (iv) any default, failure or delay, willful or otherwise, in the
performance by any Obligor of the Obligations, or any other act or thing or
omission or delay to do any other act or thing that may or might in any manner
or to any extent vary the risk of any Obligor, (v) any extension of time given
any other Obligor by any Bank or the Agent or any failure on the part of any
Bank or the Agent to exercise recourse against
<PAGE> 50
45
any other Obligor or any other Person or the renunciation of any such recourse
or (vi) any other action or circumstance that might otherwise constitute a legal
or equitable discharge of a surety or guarantor, unless and until all of the
Obligations have been paid in full. Neither the Agent nor any Bank makes any
representation or warranty in respect to any such circumstances or has any duty
or responsibility whatsoever to any Obligor with respect to the management and
maintenance of the Obligations.
(b) Without limiting the generality of the foregoing, each
Guarantor-Obligor hereby agrees that the Banks may at any time, or from time to
time, in the Banks' discretion (i) renew and/or extend or accelerate the time of
payment, and/or the manner, place or terms of payment of, all or any part of the
Obligations of any other Obligor, or any renewal or renewals thereof, (ii)
extend the time for any other Obligor's performance of, or compliance with, any
term, covenant or agreement contained in this Agreement or waive such compliance
or performance, (iii) waive any condition specified herein to making Borrowings
available hereunder, (iv) extend the Commitment Period, (v) exchange, release
and/or surrender all or any part of any collateral security that may hereafter
be held by, or on behalf of, the Banks in connection with this Article IV or any
or all of the Obligations, (vi) sell and/or purchase any or all of such
collateral at public or private sale, or at any broker's board, and after
deducting all costs and expenses of every kind for collection, sale or delivery,
apply the proceeds of any such sale or sales to any of the Obligations (with the
Obligors remaining liable or any deficiency), (vii) settle or compromise any and
all of the Obligations with any Obligor and/or any other Person(s) liable
thereon and/or subordinate the payment of same or any part thereof to the
payment of any other debts or claims that may at any time be due or owing to the
Banks and/or any other Person(s); all in such manner and upon such terms as the
Banks may see fit, and without notice to or further assent from the Obligors,
each of which hereby agrees to be and remain bound under this Article IV
irrespective of the existence, value or condition of any collateral and
notwithstanding any such change, exchange, settlement, compromise, surrender,
release, sale, application, renewal, extension or any other action hereinbefore
mentioned.
4.3 Payment by Guarantor-Obligors. In case of the failure of
any Obligor to pay any Obligation when due, the other Obligors hereby agree to
make such payment punctually when and as the same becomes due and payable
(whether at the stated maturity, by acceleration or otherwise), in the currency
required hereunder and in immediately available funds and to the Person, at the
place and in the manner specified herein for the payment of such unpaid
Obligation in this Agreement.
4.4 Stay of Acceleration. If demand for, or acceleration of
the time for, payment by any Obligor to any Bank or the Agent of any Obligation
is stayed upon the insolvency, bankruptcy, reorganization or proposed compromise
or arrangement
<PAGE> 51
46
with creditors of such Obligor, all Obligations of which payment or performance
is stayed, that would otherwise be subject to demand for payment or acceleration
under the terms of this Agreement, shall nonetheless be payable by the other
Obligors forthwith on demand by such Bank or the Agent.
4.5 Cumulative Remedies. Each Bank and the Agent may pursue
its rights and remedies under this Article IV and shall be entitled to payment
under this Article IV notwithstanding any other guaranty of, or security for,
all or any part of the Obligations, and notwithstanding any action taken or
omitted to be taken by any Bank or the Agent to enforce any of its rights or
remedies against any Obligor under this Article IV or under such other guaranty
or with respect to any security.
4.6 Waivers. Except for notices and demands expressly provided
for herein, each Obligor hereby waives diligence, presentment, demand of
payment, protest and all notices (whether of nonpayment, dishonor, protest or
otherwise) with respect to the Obligations, notice of acceptance of this Article
IV and of the incurring by the other Obligors of any Obligation and all demands
whatsoever. Each Obligor hereby waives any defense that it might have based on a
failure to remain informed of the financial condition of the other Obligors or
the ability of the other Obligors to perform under this Agreement.
4.7 Subrogation; Limitation of Guaranty.
(a) Each Obligor hereby irrevocably waives all rights that it
may now have or hereafter acquire against the other Obligors, whether arising by
contract or operation of law (including, without limitation, any such right
arising under the Federal Bankruptcy Code of 1978, as amended) or otherwise by
reason of any payment by it pursuant to the provisions of this Article IV,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification or any right to participate in any
claim or remedy of Agent or any Bank against the other Obligors, whether or not
such claim or remedy arises in equity, or under contract, statute or common law,
including, without limitation the right to take or receive from the other
Obligors, directly or indirectly, in cash or other property or by set-off or any
other manner, in each case whether or not the Obligations have been paid in
full. Each Obligor further agrees with the other Obligors for the benefit of its
creditors (including, without limitation, each Bank and the Agent) that any
payment by it pursuant to this Article IV shall constitute a contribution of
capital by such Obligor.
(b) Notwithstanding anything to the contrary set forth herein,
each Obligor shall be liable under this Article IV for the maximum amount that
can be incurred without rendering payment hereunder, as it relates to such
Obligor, voidable under
<PAGE> 52
47
applicable laws relating to fraudulent conveyance or fraudulent transfer.
4.8 Survival of Guaranty. The provisions of this Article IV
shall continue in effect and be binding upon each Obligor so long as any
Commitment is in effect and until all of the Obligations have been paid in full.
The liability of each Obligor under this Article IV shall be reinstated and
revived with respect to any amount at any time paid to or for the account of any
Bank or the Agent by such Obligor thereafter required to be, and that is,
restored and returned by such Bank or the Agent to such Obligor, or its trustee
or receiver or similar official, upon the bankruptcy, insolvency or
reorganization of such Obligor or for any other reason, all as though such
amount had not been paid by such Obligor.
4.9 Subordination. Each Obligor agrees that (a) all existing
and future indebtedness of such Obligor to the other Obligors shall be subject
and subordinate to the Obligations, (b) if a Default or Event of Default exists,
it will not pay to any other Obligor any indebtedness owing by such Obligor to
such other Obligor until all of the Obligations have been finally paid and
performed in full and (c) it will mark its records with respect to such
indebtedness and any instrument evidencing any such indebtedness to indicate
that such indebtedness is subject to subordination pursuant to this Agreement.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
In order to induce the Banks and the Agent to enter into this
Agreement and the Banks to extend credit to the Obligors hereunder, each Obligor
represents and warrants to the Banks and the Agent as follows:
5.1 Corporate Status. Each Obligor (a) is a corporation duly
organized and validly existing and, in the case of UDI and UDH, in good standing
under the laws of the jurisdiction of its incorporation, (b) has the corporate
power and authority to own its property and assets and to transact the business
in which it is engaged, and (c) is duly qualified to do business as a foreign
corporation and in good standing in each jurisdiction in which the character of
its properties or the transaction of its business makes such qualification
necessary and in which failure to be so qualified would have a material adverse
effect on its operations, business, property, assets or financial condition.
5.2 Power and Authority, Binding Effect and Rank of
Obligations. Each Obligor has the corporate power to execute, deliver and
perform this Agreement and all related agreements, instruments and documents and
has taken all necessary corporate action (including, without limitation,
obtaining any consent of stockholders required by law or by its Articles or
Certificate of
<PAGE> 53
48
Incorporation or By-Laws) to authorize its execution, delivery and performance
hereof and thereof. This Agreement has been duly executed and delivered by each
Obligor and constitutes a legal, valid and binding obligation of each Obligor,
enforceable against each Obligor in accordance with its terms, except to the
extent that such enforceability may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally from time to time in effect and may be subject to
the discretion of courts with respect to the granting of equitable remedies and
their power to stay proceedings for the execution of judgments. The obligations
of each Obligor under this Agreement rank as to enforceability at least pari
passu with all other unsecured obligations of such Obligor other than tax
liabilities and other liabilities entitled to priority by statute.
5.3 No Violation. Neither the execution, delivery or
performance by any Obligor of this Agreement and all related agreements,
instruments and documents nor the consummation of the transactions herein and
therein contemplated nor its compliance with the terms and provisions hereof and
thereof will (a) require the consent of any other Person (including, without
limitation, its stockholders and creditors) that has not been obtained or is not
in full force and effect, (b) violate any law or regulation, the Articles or
Certificate of Incorporation or By-Laws of such Obligor or any order,
injunction, decree, determination or award of any court, tribunal, arbitrator or
governmental agency, commission, board or public authority binding on such
Obligor or any of its property or (c) violate or constitute (with due notice or
lapse of time or both) a default under, or result in the creation or imposition
of (or the obligation to create) any Lien upon any of such Obligor's assets
pursuant to the terms of any contract, indenture, lease or other instrument or
agreement to which any Obligor is a party or by which it or any of its property
or assets is bound or to which it may be subject.
5.4 Governmental Approvals. No order, permission, consent,
approval, license, authorization, registration or validation of, filing with, or
exemption by, any governmental agency, commission, board or public authority is
required to be obtained or made by any Obligor in connection with its execution,
delivery and performance of this Agreement.
5.5 Litigation. There are no actions, suits, proceedings
(including proceedings by or before any arbitrator or administrative agency) or
claims of which any Obligor has notice pending or, to the best of the knowledge
of any Obligor, threatened against or affecting such Obligor or any of its
Subsidiaries that challenges the legality, validity or propriety of such
Obligor's execution and delivery of this Agreement or any related agreement,
instrument or document, that relate to the transactions contemplated hereby or
that, if adversely determined, would have a material adverse effect on the
<PAGE> 54
49
operations, business, property, assets or financial condition of the Parent and
its Subsidiaries, taken as a whole.
5.6 Taxes. All tax returns required to be filed by the Parent
or any Subsidiary in any jurisdiction have, in fact, been filed, and all taxes,
assessments, fees and other governmental charges upon any Obligor or any of its
Subsidiaries or upon any of their respective properties, income or franchises,
which are shown to be due and payable in such filed returns have been paid,
other than those being contested in good faith by appropriate proceedings. There
are no material controversies known to any Obligor with respect to other federal
or state income tax matters of the Parent and its Subsidiaries in which there is
a reasonable possibility of an adverse decision which would result in a Material
Adverse Effect. To the extent that there is no reasonable possibility of an
adverse decision which would result in a Material Adverse Effect, the provisions
for taxes on the books of the Parent and each Subsidiary are adequate in all
material respects for all open years and for its current fiscal year.
5.7 Regulated Borrowing. No Obligor is subject to any United
States or Canadian federal or provincial statute or regulation limiting its
ability to incur indebtedness for borrowed money.
5.8 No Burdensome Agreements; No Default. Neither any Obligor
nor any Subsidiary of any Obligor is a party to (a) any contract or agreement
providing for such Obligor's or Subsidiary's sale of goods or performance of
services that would, if performed according to its terms and under the
circumstances contemplated at the time of its execution, have a material adverse
effect on the operations, business, property, assets or financial condition of
the Parent and its Subsidiaries, taken as a whole, or on such Obligor's ability
to carry out its Obligations or (b) any indenture, loan or credit agreement,
lease or other agreement or instrument, or subject to any corporate restriction
or restriction resulting from its Articles or Certificate of Incorporation, that
could have a material adverse effect on the operations, business, property,
assets or financial condition of the Parent and its Subsidiaries, taken as a
whole, or on such Obligor's ability to carry out its Obligations. No Obligor is
in default in any material respect in the performance, observance or fulfillment
of any obligation, covenant or condition contained in any contract, indenture,
lease or other instrument or agreement to which it is a party. To the best of
its knowledge, no Obligor is in violation of any law or regulation or any order,
injunction, decree, determination or award of any court, tribunal, arbitrator or
governmental agency, commission, board or public authority binding on such
Obligor or any of its property or in violation of, or in default under, its
Articles or Certificate of Incorporation or By-laws in any manner that would
have a material adverse effect on the operations, business, property, assets or
financial condition of the Parent
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and its Subsidiaries, taken as a whole. No Default or Event of Default has
occurred and is continuing.
5.9 Margin Stock. No Obligor is engaged principally, or as one
of its important activities, in the business of extending, or arranging for the
extension of, credit for the purpose of purchasing or carrying any Margin Stock.
No more than 25% of the assets of any Obligor on a consolidated basis consists
of Margin Stock.
5.10 Financial Statements. The consolidated statement of
financial position of the Parent and its Consolidated Subsidiaries at December
31, 1996 and the related consolidated statements of income, of changes in
shareholders' equity and of cash flows for the fiscal year then ended, all
reported on by KPMG Peat Marwick Thorne and heretofore delivered to each Bank,
are correct and complete, have been prepared in accordance with GAAP
consistently applied and present fairly the consolidated financial position of
the Parent and its Consolidated Subsidiaries at such date and the results of its
operations for the fiscal year then ended. No Obligor has any material
liabilities, contingent or otherwise, including liabilities for taxes or any
unusual forward or long-term commitments, that are not provided for, disclosed
by or reserved against to the extent required by GAAP in such financial
statements or in the notes thereto, and there are no unrealized or anticipated
losses from any unfavorable commitments of any Obligor that may materially and
adversely affect the operations, business, property or assets or condition
(financial or otherwise) of any Obligor. As of the Effective Date, there has
been no material adverse change in the consolidated operations, business,
property and assets or financial or other condition of any Obligor since March
31, 1997.
5.11 Title to Properties. To the best of each Obligor's
knowledge, each Obligor has good and marketable title to all properties and
assets owned by it, real and personal, material to the business of such Obligor
and a good leasehold interest in all properties and assets leased by it, real
and personal, material to the business of such Obligor. None of such properties
of any Obligor is subject to any Lien of any kind or nature whatsoever, material
to the business of any Obligor, except for Liens permitted by Section 8.2 and
operating leases.
5.12 Compliance with Environmental and Other Laws. (a) Neither
the Parent nor any of its Subsidiaries is (i) in material default as of the date
hereof with respect to any order, writ, injunction or decree of any court or
(ii) in default as of the date hereof in any material respect under any law,
ordinance, order, regulation, license or demand (including ERISA, the
Occupational Safety and Health Act of 1970 and laws and regulations establishing
quality criteria and standards for air, water, land and toxic waste) of any
federal, state, municipal or other governmental agency, default with respect to
or under which would have a Material Adverse Effect.
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(b) As of the date hereof, the Parent and its Subsidiaries are
in compliance with all applicable state and federal environmental, health and
safety statutes and regulations, including, without limitation, regulations
promulgated under the Resource Conservation and Recovery Act of 1976, 42 U.S.C.
ss.ss. 6901 et seq., except where failure to be in compliance would not have a
Material Adverse Effect. After giving effect to applicable reserves on the books
of the Parent and its Subsidiaries for environmental remediation and related
costs and based on current information available to each Obligor with respect to
the cost of remediation, the nature and extent of the Parent or any of its
Subsidiaries' involvement in sites which are currently known to require
remediation and the anticipated contributions of other potentially responsible
parties as well as applicable insurance, each Obligor believes that the
anticipated and estimable liabilities of the Parent and its Subsidiaries
resulting from environmental matters and required expenditures for remediation
programs it may be required to undertake will not have a Material Adverse
Effect.
5.13 Compliance with ERISA. Each Employee Benefit Plan, and,
to the knowledge of the Parent and its Subsidiaries, each Multiemployer Plan, is
in material compliance in all respects with, and has been administered in all
respects in compliance with, the applicable provisions of ERISA, the Code and
any other Federal or State law except where failure to be so in compliance or to
be so administered could not result in a Material Adverse Effect.
5.14 Foreign Plans. Each Foreign Plan has been maintained in
substantial compliance with its terms and, to the best of each Obligor's
knowledge, with the requirements prescribed by any and all statutes, orders,
rules and regulations that are applicable to such Foreign Plan.
5.15 Retiree Health and Life Insurance Benefits. No retiree
health or life insurance benefits are provided in an aggregate amount that is
material to the operations, business, property, assets or financial condition of
the Parent and its Subsidiaries taken as a whole under the terms of any Employee
Benefit Plan that is maintained, or otherwise contributed to, by any Obligor,
any Subsidiary of any Obligor or any ERISA Affiliate for the benefit of the
employees (including, without limitation, any retired employees) of any Obligor,
any Subsidiary of any Obligor or any ERISA Affiliate.
5.16 [RESERVED].
5.17 Enforceability in Canada. Under the laws of Canada and
the Province of Ontario, the submission by each Obligor to the non-exclusive
jurisdiction of any United States federal court sitting in, or any state court
of, the State of New York with respect to matters under this Agreement, as
provided in Section 11.9, and the terms of Section 11.8 that state that this
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52
Agreement shall be governed by the laws of the State of New York, are binding
upon each Obligor. Such submission to jurisdiction and choice of law would be
enforceable in any proceeding brought in a court of competent jurisdiction in
the Province of Ontario subject, however, to any mandatory legislative
provisions hereafter enacted and public policy considerations that may be
applied by such court.
5.18 Payment Obligations. Save as set forth on Schedule 5.18,
no Obligor has incurred (a) any public debt that is subject to repayment at the
option of holders thereof or issued any preferred stock that is subject to
redemption or retraction at the option of the holders thereof or (b) at the date
hereof any public debt that is subject to repayment on or before the Termination
Date.
ARTICLE VI. CONDITIONS PRECEDENT
6.1 Conditions to Effectiveness. The effectiveness of this
Agreement is subject to the satisfaction of the condition precedent that on or
before the Effective Date the Agent shall have received each of the following
documents and instruments, in form and substance satisfactory to the Agent and
its counsel and in sufficient number for distribution to each Bank:
(a) Credit Documents. This Agreement, executed and delivered
by a duly authorized officer of the Obligors, each Bank and the Agent.
(b) Charter Documents. (i) Copies of the Articles or
Certificate of Incorporation of each Obligor, as amended to the Effective Date,
currently certified, in the case of each of UDI and UDH, by the appropriate
public official of the jurisdiction of its incorporation, and, in the case of
Parent, by an appropriate corporate officer, and (ii) currently dated
certificates of appropriate public officials as to (x) in the case of UDI and
UDH, the existence and the good standing of each of UDI and UDH in its
jurisdiction of incorporation and each jurisdiction having an asterisk set forth
opposite its name on Schedule 6.1 and (y) in the case of the Parent, the status
or compliance of the Parent in each jurisdiction having an asterisk set forth
opposite its name on Schedule 6.1;
(c) By-Laws. Copies of the By-Laws of each Obligor, as amended
to the Effective Date, duly certified as of the Effective Date by its Secretary
or an Assistant Secretary;
(d) Resolutions. Copies of the resolutions of the Board of
Directors of each Obligor authorizing its execution, delivery and performance of
this Agreement and all related agreements, instruments and documents, certified
as of the Effective Date by its Secretary or an Assistant Secretary (which
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53
certificate shall state that such resolutions have not been amended, modified,
revoked or rescinded as of such date);
(e) Incumbency Certificates. A certificate of the Secretary or
an Assistant Secretary of each Obligor, dated the Effective Date, certifying the
names and titles of the officers authorized to execute this Agreement and any
related documents on such Obligor's behalf, together with specimen signatures of
such officers;
(f) Opinions. Favorable written opinions dated the Effective
Date and addressed to the Banks and the Agent, of (i) Stikeman, Elliott,
Canadian Counsel of the Parent, substantially in the form of Exhibit A, covering
such other matters related to the transactions contemplated hereby as any Bank
or the Agent may reasonably request, (ii) Robert P. McKinney, Assistant General
Counsel of UDI, substantially in the form of Exhibit B and (iii) Simpson Thacher
& Bartlett, New York Counsel to the Agent, substantially in the form of Exhibit
E. Insofar as any opinion required by this paragraph (e) involves matters of law
of any jurisdiction other than the law of any jurisdiction in which the counsel
giving such opinion is admitted to practice, such opinion may be given in
reliance upon an opinion or opinions of local counsel acceptable to the Agent
and its counsel, copies of which opinion(s) shall be attached, and such counsel
shall state that they have no reason to believe that the Banks and the Agent are
not justified in relying on such opinion(s) of local counsel;
(g) Compliance Certificate. A certificate of the chief
executive officer, the chief financial officer or a senior financial officer of
the Parent, dated the Effective Date, to the effect that the Obligors are in
compliance with all of the terms and provisions set forth herein on their part
to be observed or performed, that the representations and warranties set forth
in Article V hereof are true and correct on and as of the Effective Date and
that no Default or Event of Default has occurred and is continuing or would
result from the Borrowing made on such Borrowing Date;
(h) Financial Compliance Certificate. A certificate of the
chief executive officer, the chief financial officer or a senior financial
officer of the Parent, dated the Effective Date, and containing calculations
showing in reasonable detail whether the Parent is in compliance with Sections
8.10 and 8.11 as of June 30, 1997;
(i) Payment of Fees. Evidence, in form and substance
satisfactory to the Agent, that all accrued but unpaid interest and fees owing
under and in respect of the Existing Agreement shall have been paid in full and
that all fees and expenses as detailed in the Fee Letter shall have been paid in
full;
(j) Existing Agreement. Evidence, in form and substance
satisfactory to the Agent, that no Loans (as defined in
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54
the Existing Agreement) are outstanding on the Effective Date and all fees,
interest, breakage costs and dollar amounts owing thereunder have been paid in
full; and
(k) Other Documents. Such other documents as the Agent may
reasonably request.
6.2 Conditions of Each Borrowing. The obligation of each Bank
to make available its portion (if any) of any Borrowing is subject to the
satisfaction of the following conditions precedent:
(a) Imo Acquisition. In connection with any Borrowing made in
connection with the Imo Acquisition, (i) copies of the resolutions of the Board
of Directors of Imo approving the Imo Acquisition, certified as of the Borrowing
Date by its Secretary or Assistant Secretary (which certificate shall state that
such resolutions have not been amended, modified, revoked or rescinded as of
such date), (ii) copies of the resolutions of the Board of Directors of the
Parent approving the Imo Acquisition, certified as of the Borrowing Date by its
Secretary or Assistant Secretary (which certificate shall state that such
resolutions have not been amended, modified, revoked or rescinded as of such
date), (iii) copies of all agreements and documents relating to the Imo
Acquisition, (iv) evidence, in form and substance satisfactory to the Agent,
that sufficient shares of Imo have been tendered to constitute legal control of
Imo by the Parent or a Subsidiary of the Parent and (v) a certificate of the
chief executive officer, the chief financial officer or a senior financial
officer of the Parent, dated the Borrowing Date, containing calculations showing
in reasonable detail whether the Parent is in compliance with Sections 8.10 and
8.11.
(b) Core Acquisition. In connection with any Borrowing made in
connection with the Core Acquisition, (i) copies of the resolutions of the Board
of Directors of Core approving the Core Acquisition, certified as of the
Borrowing Date by its Secretary or Assistant Secretary (which certificate shall
state that such resolutions have not been amended, modified, revoked or
rescinded as of such date), (ii) copies of the resolutions of the Board of
Directors of the Parent approving the Core Acquisition, certified as of the
Borrowing Date by its Secretary or Assistant Secretary (which certificate shall
state that such resolutions have not been amended, modified, revoked or
rescinded as of such date), (iii) copies of all agreements and documents
relating to the Core Acquisition, (iv) evidence, in form and substance
satisfactory to the Agent, that sufficient shares of Core have been tendered to
constitute legal control of Core by the Parent or a Subsidiary of the Parent and
(v) a certificate of the chief executive officer, the chief financial officer or
a senior financial officer of the Parent, dated the Borrowing Date, containing
calculations showing in reasonable detail whether the Parent is in compliance
with Sections 8.10 and 8.11.
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(c) No Material Adverse Change. In connection with any
Borrowing made in connection with either the Imo Acquisition or the Core
Acquisition, there shall have occurred no material adverse change which shall be
continuing as of the Borrowing Date for such Borrowing in the consolidated
financial position of any Obligor and their respective Consolidated Subsidiaries
from those shown in the balance sheets referred to in Section 5.10;
(d) Notice. The Agent shall have received the notice required
by Section 2.3(a);
(e) Representations. The representations and warranties made
by each Obligor in Article V or in any certificate, document or other statement
furnished at any time under or in connection herewith shall be true and correct
on and as of the Borrowing Date for such Borrowing, as if made on and as of such
date;
(f) No Default. No Default or Event of Default shall exist on
the Borrowing Date for such Borrowing or after giving effect to such Borrowing;
(g) Borrowing Within Commitments. After giving effect to the
Borrowings requested to be made on such date (i) the aggregate outstanding
amount of the Committed Loans and Reimbursement Obligations of each Bank shall
not exceed such Bank's Commitment then in effect and (ii) the Aggregate
Outstanding Extensions of Credit shall not exceed the Aggregate Commitment;
(h) Margin Regulations. Neither the making of such Borrowing
nor the use of the proceeds thereof shall violate or be inconsistent with
Regulation G, T, U or X of the Board of Governors of the Federal Reserve System;
and
(i) Additional Matters. The Agent shall have received in
sufficient number for distribution to each Bank such other documents,
statements, certificates, information and evidence as the Agent may have
reasonably requested. All documents and legal matters in connection with the
transactions contemplated by this Agreement shall be satisfactory in form and
substance to the Agent and its counsel.
Each request for a Borrowing hereunder shall constitute a representation and
warranty by the Obligors hereunder as of the Borrowing Date of such Borrowing
that the conditions in paragraphs (e) through (i) of this Section 6.2 have been
satisfied.
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ARTICLE VII. AFFIRMATIVE COVENANTS
So long as any Commitment is in effect and until the full
payment and performance of all of the Obligations, each Obligor agrees that,
unless the Required Banks, or the Agent acting on behalf of the Required Banks,
otherwise consent in writing:
7.1 Existence, Properties. Such Obligor will, and will cause
each of its Material Subsidiaries to, do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence,
rights and franchises, except as otherwise permitted by Section 8.3; comply with
all laws applicable to it whose violation could have, a material adverse effect
on the operations, business, properties, assets or financial condition of the
Parent and its Subsidiaries taken as a whole; remain or become qualified to
engage in business and in good standing in all jurisdictions in which the
character of its properties or the transaction of its business makes such
qualification necessary; maintain, preserve and protect all trade names,
trademarks, copyrights, patents, permits, service marks and licenses or rights
thereto owned by or licensed to it material to the conduct of its business;
maintain its property used or useful in the conduct of its business and keep the
same in good repair, working order and condition, normal wear and tear excepted,
and from time to time make, or cause to be made, all needful and proper repairs,
renewals, replacements, betterments and improvements thereto so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; and maintain insurance substantially comparable in
coverage, amount and deductibles to that carried on the date hereof.
7.2 Payment of Debts; Taxes. Such Obligor will, and will cause
each of its Subsidiaries to, pay all of its debts and obligations promptly and,
in the case of trade obligations, in accordance with normal terms and trade
practices of similar businesses in the location where such Obligor or Subsidiary
operates and promptly pay and discharge, or cause to be paid or discharged, all
taxes, assessments or other governmental charges or levies imposed upon it, its
income and profits or any of its property, real, personal or mixed, or upon any
part thereof, before the same becomes in default, as well as all lawful claims
for labor, materials and supplies or otherwise that, if unpaid, might become a
Lien upon such properties or any part thereof; provided, however, that such
Obligor or such Subsidiary shall not be required to pay and discharge, or cause
to be paid or discharged, any such debt, obligation, tax, assessment, charge,
levy or claim so long as (a) the validity thereof is contested in good faith by
appropriate proceedings, (b) such Obligor or such Subsidiary has set aside on
its books adequate reserves therefor in accordance with GAAP and (c) any Lien
resulting from the nonpayment or non-discharge of such debt, obligation, tax,
assessment, charge, levy or claim does not materially and
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57
adversely affect the operations, business, property, assets or financial
condition of the Parent and its Subsidiaries, taken as a whole.
7.3 Financial Statements, Reports, etc. The Parent will
furnish or cause to be furnished to the Agent (with a copy for each Bank):
(a) as soon as available but not later than 120 days after the
close of each of its fiscal years, consolidated statements of financial position
of the Parent and its Consolidated Subsidiaries at the close of such fiscal year
and the related consolidated statements of income, of changes in shareholders'
equity and of cash flows for such year, setting forth in comparative form the
figures for the previous year, such financial statements to be reported on (such
report to include the statement that such financial statements have been
prepared in accordance with GAAP consistently applied during the period involved
and present fairly the consolidated financial position and results of operations
of the Parent and its Consolidated Subsidiaries) without a qualification arising
out of the scope of the audit, by KPMG Peat Marwick (or another firm of
independent certified public accountants reasonably acceptable to the Required
Banks), together with the statement of such accountants that, in connection with
making their examination of such financial statements, they have reviewed the
provisions of this Agreement and that nothing has come to their attention to
lead them to believe that any Default or Event of Default exists and in
particular, but without limitation, that they have no knowledge of any Default
or Event of Default under Article VIII or, if such is not the case, specifying
such Default or Event of Default and the nature thereof (it being understood
that the examination of such accountants cannot be relied upon to give them
knowledge of any Default or Event of Default except as it relates to accounting
or auditing matters);
(b) as soon as available but not later than 60 days after the
close of each of the first three quarters of each fiscal year of the Parent, a
consolidated statement of financial position of the Parent and its Consolidated
Subsidiaries at the close of such quarter and the related consolidated
statements of income and of year to date cash flows for such quarter and for the
period from the beginning of the then current fiscal year to the end of such
quarter, such financial statements to be certified by the chief executive
officer, the chief financial officer or a senior financial officer of the Parent
as being complete and correct, prepared in accordance with GAAP consistently
applied during the period involved and fairly presenting the consolidated
financial position and results of operations of the Parent and its Consolidated
Subsidiaries for the period then ended (subject to normal year-end audit
adjustments);
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(c) together with each delivery of financial statements
pursuant to paragraph (a) or (b) of this Section 7.3, a certificate of the chief
executive officer, the chief financial officer or a senior financial officer of
the Parent stating whether there has occurred during the fiscal period with
respect to which such financial statements are being delivered a Default or
Event of Default, and, if any Default or Event of Default existed or exists,
specifying the nature and period of the existence thereof and what action any
Obligor has taken or proposes to take with respect thereto (said certificate to
contain calculations showing in reasonable detail whether the Parent is in
compliance with Sections 8.10 and 8.11);
(d) promptly upon their filing, copies of all registration
statements and all reports on Forms 10-K, 10-Q or 8-K filed by any Obligor with
the Securities and Exchange Commission or comparable documents filed with any
Canadian federal or provincial securities regulatory authority;
(e) promptly, notice of any change in the rating of the Senior
Unsecured Debt of the Parent by S&P or Moody's; and
(f) with reasonable promptness, such other information
regarding any Obligor as the Agent, or any Bank through the Agent, may
reasonably request.
7.4 [RESERVED].
7.5 Notice of Default or Litigation. Such Obligor will give
the Agent and each Bank as soon as possible and in any event within five days
after becoming aware thereof notice of (a) the occurrence of any Default or
Event of Default and a statement of such Obligor's chief executive officer, the
chief financial officer or a senior financial officer setting forth the details
thereof and the action that such Obligor has taken or proposes to take with
respect thereto and (b) any action or proceeding involving or affecting such
Obligor or any of its Subsidiaries an adverse determination of which would
materially and adversely affect the consolidated financial condition or
operations of the Parent and its Subsidiaries, taken as a whole.
7.6 Records, Inspection. Such Obligor will, and will cause
each of its Material Subsidiaries to, maintain appropriate books and records
with respect to the operation of its business and permit authorized
representatives of the Agent to visit and inspect at its offices and facilities
on reasonable prior notice, from time to time during normal business hours, to
examine its books and records and make copies or extracts therefrom and to
discuss its affairs and accounts with its officers and accountants.
7.7 Observance of Legal Requirements. Such Obligor will, and
will cause each of its Subsidiaries to, observe and comply in all material
respects with all statutes, rules,
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regulations, guidelines or other requirements having the force of law that now
or at any time hereafter may be applicable to it, the noncompliance with which
could have a material adverse effect upon the business, operations or
consolidated financial condition of such Obligor and its Subsidiaries.
7.8 Obtain Approval. Such Obligor will promptly obtain and
make each consent, license, authorization, approval, filing or registration that
is hereafter necessary or desirable to enable such Obligor to comply with its
obligations under this Agreement and promptly furnish evidence thereof to the
Agent.
7.9 Further Assurances. Such Obligor will, and will cause each
of its Subsidiaries to, at no cost or expense to the Agent or any Bank, execute
and deliver to the Agent all such further documents and instruments and do all
such other acts and things as may be reasonably required, in the opinion of the
Agent or any Bank, to enable the Agent or any Bank to exercise and enforce its
rights under this Agreement.
7.10 [RESERVED].
7.11 Right to Inspect. Such Obligor shall allow
representatives, employees, and agents of the Agent or any Bank to inspect on
reasonable prior notice the property and operations of such Obligor and its
Subsidiaries with respect to matters encompassed within Section 5.12. For this
purpose, such Obligor and any of its Subsidiaries shall provide access to its
property for the Agent or any Bank during normal working hours, or as otherwise
mutually agreed between the parties, and shall provide to the Agent or any Bank
at its request a copy of any studies, investigations, orders, notices or other
documents relating to environmental matters involving such Obligor or any of its
Subsidiaries.
ARTICLE VIII. NEGATIVE COVENANTS
So long as any Commitment is in effect and until the payment
and performance in full of all of the Obligations, each Obligor agrees that,
unless the Required Banks, or the Agent acting on behalf of the Required Banks,
otherwise consent in writing:
8.1 Borrowed Money Indebtedness. Such Obligor will not permit
any of its Subsidiaries that is not a Consolidated Subsidiary to create, incur,
assume or suffer to exist at any time any Borrowed Money Indebtedness that would
cause a Default or Event of Default if such Subsidiary were a Consolidated
Subsidiary.
8.2 Liens. Such Obligor will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien of any
kind upon any of its property or assets,
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whether now owned or hereafter acquired, except (a) Liens disclosed in the
consolidated financial statements (including the notes thereto) of the Parent
referred to in Section 5.10; (b) Liens for taxes, assessments, levies or
governmental charges not yet due or that are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves have been
established to the extent required by GAAP; (c) deposits or pledges to secure
obligations under workmen's compensation, social security or similar laws, or
under unemployment insurance; (d) deposits or pledges to secure bids, tenders,
contracts (other than contracts for the payment of money), leases, statutory
obligations, surety and appeal bonds and other obligations of like nature
arising in the ordinary course of business; (e) mechanics', workmen's,
materialmen's or other like liens arising in the ordinary course of business
with respect to obligations that are not due or that are being contested in good
faith; (f) Liens (if any) securing the Obligations; (g) servitudes, easements,
rights-of-way, restrictions, minor defects or irregularities in title and other
Liens incurred in the ordinary course of business that are not in the aggregate
substantial in amount and that do not in any case materially detract from the
value of the property subject thereto nor interfere with the ordinary conduct of
business of the Parent or any of its Subsidiaries; (h) purchase money Liens
securing Borrowed Money Indebtedness for the purchase price of the property
subject thereto, which Liens secure Borrowed Money Indebtedness in an amount not
greater than 105% of the purchase price of such property and apply only to the
property purchased: (i) Liens arising from judgments or decrees in circumstances
not constituting an Event of Default; (j) Liens on property of any corporation
existing at the time such corporation becomes a Subsidiary of any Obligor or
which such corporation is at such time legally bound to create (then or in the
future); (k) Liens on Margin Stock owned by such Obligor or any of its
Subsidiaries to the extent that the fair market value of such Margin Stock
exceeds 25% of the fair market value of the property and assets (including
Margin Stock) of such Obligor or such Subsidiary; (1) any renewal, extension or
refunding (or successive renewals, extensions or refundings) of the Liens
referred to in the preceding clauses (a), (h), (i), and (k), provided that (i)
the indebtedness secured by any such renewed, extended or refunded Lien is in a
principal amount not greater than the indebtedness that it replaces and (ii)
such Lien applies only to the property (or portion thereof) covered by the Lien
that it replaces; and (m) Liens (if any) created on assets sold, transferred or
assigned to a trustee in connection with any asset securitization transactions
effected pursuant to Section 8.3(b)(ii) hereof.
8.3 Merger, Sale of Assets. Such Obligor will not, and will
not permit any of its Subsidiaries to, (a) enter into any merger or
consolidation, except a merger or consolidation of any Subsidiary of any Obligor
with such Obligor, any other Obligor or a wholly-owned Subsidiary of any Obligor
or with any other Person, provided that if an Obligor is a party to such
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merger or consolidation, such Obligor is the surviving corporation and otherwise
a wholly-owned Subsidiary of an Obligor is the surviving corporation and
expressly assumes the obligations of such Obligor hereunder, and provided,
further, that no Default or Event of Default would exist immediately after
giving effect to such merger or consolidation, or (b) sell, lease or otherwise
dispose of (whether in one or in a series of transactions) all or substantially
all of its property and assets if to do so would cause a Default or Event of
Default, provided, however, that nothing in this clause (b) shall restrict the
right of such Obligor or any of its Subsidiaries (i) to sell, lease or otherwise
dispose of Margin Stock to the extent that the fair market value of such Margin
Stock exceeds 25% of the fair market value of the property and assets (including
Margin Stock) of such Obligor or such Subsidiary or (ii) to sell, transfer or
assign accounts receivable for the purpose of effecting one or more asset
securitization transactions to the extent that the aggregate gross amount of
such accounts receivable being serviced at any one time does not exceed
$150,000,000.
8.4 Contingent Obligations. Such Obligor will not, and will
not permit any of its Subsidiaries to, incur, assume, suffer to exist or
otherwise become liable upon any Contingent Obligation, except (a) Contingent
Obligations permitted by Article IV; (b) Contingent Obligations disclosed in the
financial statements referred to in Section 5.10 or in the notes thereto; (c)
Contingent Obligations disclosed in Schedule 8.4; (d) Contingent Obligations in
respect of any primary obligation (as described in the definition of "Contingent
Obligations") of any other Obligor or a Consolidated Subsidiary; and (e) other
Contingent Obligations, provided that the aggregate amount of the related
primary obligations does not exceed $20,000,000 at any one time outstanding.
8.5 [RESERVED].
8.6 Dividends and Purchases of Stock. The Parent will not (a)
declare any dividends, or set apart any sum for the payment of any dividends, on
any shares of any class of its capital stock (other than dividends payable
solely in shares of its capital stock) if a Default or Event of Default would
exist immediately after the making of such payment or such payment would
materially and adversely affect its consolidated financial condition, or (b)
apply or set apart any of its property or assets to or for the purchase,
redemption or other retirement of, or make any other distribution, by reduction
of capital or otherwise, in respect of, any shares of any class of its capital
stock; provided, however, that the Parent may purchase up to $50 million in the
aggregate of shares of any class of its capital stock so long as no Default or
Event of Default would exist immediately after the making of such purchase and
such purchase would not materially and adversely affect its consolidated
financial condition.
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8.7 Loans and Advances. Such Obligor will not, and will not
permit any of its Subsidiaries to, make or maintain any loan or advance to any
Person other than such Obligor, another Obligor or a Consolidated Subsidiary,
except (a) loans and advances to any Subsidiary of the Parent that is not a
Consolidated Subsidiary, provided that the resulting Borrowed Money Indebtedness
of such Subsidiary would not cause a Default or Event of Default if such
Subsidiary were a Consolidated Subsidiary and the lender were a third party; (b)
deferred purchase price obligations to such Obligor or Subsidiary acquired in
connection with the sale of assets and shown on Schedule 8.7 and other such
deferred purchase price obligations to the Obligors and their Subsidiaries not
exceeding $30,000,000 at any one time outstanding; (c) deferred purchase price
obligations acquired in connection with the sale of Windsor Door, not to exceed
$5,000,000 in the aggregate; (d) loans made by finance company Subsidiaries in
the ordinary course of their businesses; and (e) other loans and advances made
in the ordinary course of its business and not exceeding $15,000,000 in the
aggregate at any one time outstanding for all Obligors and their Subsidiaries.
8.8 Change in Nature of Business. The Obligors and their
Subsidiaries will not materially change the general character of the business of
the Parent and its Subsidiaries, taken as a whole, as now conducted nor engage
in any type of business not reasonably related to such business of the Parent
and its Subsidiaries, taken as a whole, as now normally conducted or as now
proposed to be conducted, including any business engaged in the following
activities: construction products and services, engineering or industrial
products.
8.9 Transactions with Affiliates. Such Obligor will not, and
will not permit any of its Subsidiaries to, directly or indirectly, enter into
any lease, loan agreement or other transaction with any Affiliate of such
Obligor other than another Obligor or a wholly-owned Subsidiary of any Obligor
on terms that are less favorable to such Obligor or such Subsidiary than those
that might be obtained at the time from Persons other than an Affiliate.
8.10 Fixed Charge Coverage Ratio. The Parent will not permit
the ratio of its Consolidated Income Available for Fixed Charges to its
Consolidated Fixed Charges to be less than 2.50:1.00 at any time.
8.11 Consolidated Funded Debt. The Parent will not permit
Consolidated Funded Debt to exceed 55% of Consolidated Total Capitalization at
any time.
8.12 New Payment Obligations. Except with respect to any
continuing obligations described in Schedule 5.18, such Obligor will not issue
any public debt or preferred stock that provides that the holders thereof have
any right, at their
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option, to require such Obligor to redeem such debt or preferred stock before
the Termination Date.
8.13 ERISA. Such Obligor will not, and will not permit any of
its Subsidiaries to, seek any waiver from the minimum funding standard set forth
under Section 302 of ERISA or Section 412 of the Code or to engage in any
Prohibited Transaction with respect to any ERISA Plan, ERISA Welfare Plan or
Multiemployer Plan.
ARTICLE IX. EVENTS OF DEFAULT
If any of the following events occurs:
9.1 Failure of Payment. Any principal of any Loan (including
any prepayment) and any interest on any Loan and any amount due pursuant to
Section 2.20(f)(i) is not paid when due and in the currency and manner provided
herein; or any interest on any Base Rate Loan is not paid when due and in the
currency and manner provided herein and such failure continues for five days; or
any other amount due hereunder is not paid when due and in the currency and
manner provided herein and such failure continues for five days;
9.2 Misstatements. Any representation, warranty or statement
made by any Obligor herein or in any document, certificate or financial or other
statement delivered in connection herewith proves to be or to have been
incorrect or misleading in any material respect as of the date at which it is
made or deemed to be made; provided, however, with respect to estimates,
forecasts and projections of future financial performance, if any, each Obligor
represents only that such estimates, forecasts and projections were prepared in
good faith and on a basis believed by each Obligor to be reasonable based on the
assumptions set forth therein, and each Obligor specifically and expressly
disclaims any representation or warranty that such are or will be predictive of
actual results;
9.3 Certain Covenants. Any Obligor defaults in the due
performance or observance of any term, covenant or agreement to be performed or
observed by it contained in Article VIII and such default, if capable of cure,
is not cured within fifteen days;
9.4 Other Covenants. Any Obligor defaults in the due
performance or observance of any other term, covenant or agreement to be
performed or observed by it pursuant to this Agreement and such default, if
capable of cure, is not cured within thirty days;
9.5 Other Obligations. Any obligation or obligations of any
Obligor or any Significant Subsidiary in respect of Borrowed Money Indebtedness
in an aggregate amount exceeding
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$25,000,000 (or the equivalent thereof in other currencies) is or becomes due
and payable prior to its stated maturity (other than as a result of a voluntary
prepayment or redemption) or is not paid as and when it becomes due and payable
(whether at the stated maturity, by required prepayment or redemption, on
acceleration, on demand or otherwise) and such failure continues after the
applicable grace period (if any) specified in the agreement or instrument
relating to such Borrowed Money Indebtedness, or there occurs and is continuing
any event that constitutes an event of default under any instrument, agreement
or evidence of indebtedness relating to any obligation or obligations of any
Obligor or any Significant Subsidiary in respect of any Borrowed Money
Indebtedness exceeding $25,000,000 (or the equivalent thereof in other
currencies), the effect of which is to permit the holder or holders of such
instrument, agreement or evidence of indebtedness, or a trustee, agent or other
representative on behalf of such holder or holders, to cause such Borrowed Money
Indebtedness to become due prior to its stated maturity or regularly scheduled
date of payment;
9.6 Judgments. Any Obligor or any Significant Subsidiary
permits any judgment against it in excess of $25,000,000 (or the equivalent
thereof in other currencies) to remain undischarged for a period of more than 60
days unless during such period such judgment is effectively stayed or bonded, on
appeal or otherwise; or
9.7 Bankruptcy. Any Obligor or any Significant Subsidiary
commences any case, proceeding or other action or makes any proposal relating to
it in bankruptcy or seeking reorganization, liquidation, dissolution,
winding-up, arrangement, composition, compromise, readjustment of its debts or
any other relief under any bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement, composition, compromise, readjustment of debt or
similar act or law of any jurisdiction, now or hereafter existing, or takes any
action indicating its consent to, approval of, or acquiescence in, any such
case, proceeding or other action; any Obligor or any such Significant Subsidiary
applies for or there is appointed a receiver, interim receiver, sequestrator,
trustee or custodian of it or for all or a substantial part of its property; any
Obligor or any such Significant Subsidiary makes an assignment for the benefit
of creditors; any Obligor or any such Significant Subsidiary fails generally to
pay its debts as they mature or admits in writing its inability to pay its debts
as they mature; any Obligor or any such Significant Subsidiary is adjudicated
insolvent or bankrupt; there is commenced against any Obligor or any such
Significant Subsidiary any case or proceeding or any other action is taken
against any Obligor or any such Significant Subsidiary in bankruptcy or seeking
reorganization, liquidation, dissolution, winding-up, arrangement, composition,
compromise, readjustment of its debts or any other relief under any bankruptcy,
insolvency, reorganization, liquidation, dissolution, arrangement, composition,
compromise, readjustment of debt or
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similar act or law of any jurisdiction, now or hereafter existing; there is
appointed a receiver, interim receiver, sequestrator, trustee or custodian of
any Obligor or any such Significant Subsidiary or for all or a substantial part
of its property; or there is a seizure before judgment practiced, or a warrant
of attachment, execution or similar process issued, against any substantial part
of the property of any Obligor or any such Significant Subsidiary; then, and at
any time during the continuance of such event (except as otherwise provided in
Section 1.2(b)), (A) if such event is an Event of Default specified in Section
9.7 above with respect to any Obligor, automatically the Commitments shall
immediately terminate and the Obligations shall immediately become due and
payable, and (B) if such event is any other Event of Default, the Agent may, and
at the request of the Required Banks shall, by notice to each Obligor, (a)
declare the Commitments to be terminated, whereupon they shall immediately
terminate; and/or (b) declare the Obligations to be immediately due and payable,
whereupon they shall immediately become due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived, and/or (c) exercise the other rights and remedies provided herein, at
law or in equity. The Required Banks shall have the right, in their sole
discretion, to determine which rights, security, Liens, guaranties or remedies
shall be retained, pursued, released, subordinated or modified, or with respect
to which action shall be taken without in any way modifying or affecting any
others or any rights of the Banks and the Agent under this Agreement.
In addition to any other remedies, upon the occurrence of any
Event of Default and at any time during the continuance thereof, the Agent may,
and at the request of the Required Banks shall, by written notice to the Parent,
require that the Obligors, jointly and severally, provide to the Agent (to the
extent permitted by applicable law) cash collateral in an amount equal to the
aggregate outstanding face amount of any outstanding Letters of Credit. Such
cash collateral shall be held in an account at the Agent's Office in New York
and shall be under the sole dominion and control of the Agent. Such cash
collateral shall be used to pay any drawings under Letters of Credit and, when
all Letters of Credit have been paid or terminated, any remaining cash
collateral shall be applied to payment of any other unpaid Obligations or, if
there are none, shall be remitted to the Obligors on the 91st day after the
payment in full of the Obligations.
ARTICLE X. THE AGENT
10.1 Appointment of Agent. In order to expedite and facilitate
the operation of the credit facilities established under this Agreement, each
Bank hereby designates and appoints RBC as the agent of such Bank as herein
specified. Each Bank
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irrevocably authorizes and directs the Agent to take such action on its behalf
under the terms and provisions of this Agreement and to exercise such powers
hereunder as are specifically delegated to or required of the Agent by the terms
and provisions of this Agreement, together with such powers as are reasonably
incidental thereto. Without hereby limiting any implied authority, the Agent is
hereby expressly authorized on behalf of each Bank to, and the Agent shall,
receive on behalf of each Bank (a) all documents to be delivered to such Bank
under the terms hereof, and promptly distribute the same to such Bank, and (b)
any payment of principal, interest and the Facility Fee payable under Section
3.2 or other amounts payable pursuant to this Agreement, except payments claimed
by any Bank pursuant to Section 2.12, 2.13 or 2.15, and promptly distribute to
each Bank its ratable share of all payments so received. The Agent may perform
any of its duties hereunder by or through its agents or employees.
10.2 Nature of Agent's Duties. The Agent shall have no duties
or responsibilities except those expressly set forth in this Agreement. Neither
the Agent nor any of its officers, directors, employees or agents shall be
liable to any Bank for any action taken or permitted to be taken by it or them
hereunder or in connection herewith except for its or their own gross negligence
or willful misconduct. The duties of the Agent shall be mechanical and
administrative in nature; the Agent shall not by reason of this Agreement have a
fiduciary relationship in respect of any Bank, and nothing in this Agreement,
express or implied, is intended to impose on the Agent any obligations except as
expressly set forth herein. The Agent shall not be responsible in any manner to
any Bank for the effectiveness, enforceability, genuineness, validity or due
execution of this Agreement or any other agreement or instrument or any
certificate, request, financial statement, notice or opinion of counsel or for
any recital, statement, warranty or representation contained herein or in any
such instrument and shall not be under any obligation to ascertain or inquire as
to the performance or observance of any term or provision of this Agreement or
any other agreement on the part of any Obligor. Without limiting the generality
of the foregoing, the Agent shall, in the absence of actual knowledge to the
contrary, be entitled to accept any certificate furnished pursuant to this
Agreement as conclusive evidence of the facts stated therein.
10.3 No Reliance by Banks, Actions by Agent. (a) Each Bank
severally represents and warrants to the Agent that it has made and will
continue to make such independent investigation of the financial condition and
affairs of each Obligor as such Bank deems appropriate in connection with its
entering into this Agreement and making available its portion of the Borrowings
hereunder, that it has and will continue to make its own appraisal of the
creditworthiness of each Obligor and that in connection with such investigation
and appraisal it has not
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relied upon any information provided to it by the Agent or any other Bank.
(b) The Agent may at any time request instructions from the
Banks with respect to any action or approval that, by the terms of this
Agreement, the Agent is permitted or required to take or to grant, and if such
instructions are requested, the Agent (in its capacity as such) shall be
absolutely entitled to refrain from taking any action or to withhold any
approval and shall not be under any liability whatsoever to any Person for
refraining from any action or withholding any approval under this Agreement
until it shall have received such instructions from the Required Banks or all
the Banks, as may be required hereunder, provided, however, that the Agent shall
not in any event be required to comply with any instructions given it by the
Banks if the Agent determines that such compliance would expose it to personal
liability or is contrary to law or to the terms of this Agreement, but the Banks
shall in all events indemnify the Agent from any action taken by it in
accordance with the instructions of the Required Banks (or in accordance with
the instructions of all the Banks to the extent that, pursuant to Section 11.5,
such action requires the consent of all the Banks). No Bank shall have any right
of action whatsoever against the Agent as a result of the Agent acting or
refraining from acting hereunder in accordance with instructions from the
Required Banks (or, if expressly required by this Agreement, all the Banks). The
Agent shall be entitled to rely on any notice, consent, certificate, affidavit,
letter, telephonic notice, telecopy, telegram, teletype message, statement,
order or other document reasonably believed by it to be genuine and correct and
to have been signed or sent by the proper Person(s) and, with respect to legal
matters, upon opinion of counsel selected by the Agent.
10.4 Reimbursement and Indemnification of Agent. Each Bank
severally agrees (a) to reimburse the Agent, pro rata according to its
Commitment Percentage, for any out-of-pocket expenses incurred for the benefit
of the Banks and not reimbursed by the Obligors, and for any reasonable counsel
fees and compensation of agents and employees for services rendered on behalf of
the Banks in connection with this Agreement or in enforcing the rights of the
Banks hereunder and not reimbursed by the Obligors and (b) to indemnify the
Agent, to the extent the Obligors fail to do so, pro rata according to such
Bank's Commitment Percentage for all losses, liabilities, claims, damages or
expenses arising out of or relating to any action or inaction of the Agent
hereunder, other than any such losses, liabilities, claims, damages or expenses
arising from the Agent's gross negligence or willful misconduct. If any Obligor
subsequently reimburses the Agent for the same expenses, fees, compensation,
losses, liabilities, claims or damages, the Agent shall promptly return to each
Bank entitled thereto its pro rata share (according to its Commitment
Percentage) of such subsequent reimbursement.
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10.5 The Agent; Individually. With respect to its Commitments
hereunder, the portion of the Borrowings made available by it and any principal,
interest, Reimbursement Obligations, fees or other amounts owed to it, the
Agent, in its individual capacity and not as Agent, shall have the same rights
and powers hereunder and under other agreements as any other Bank and shall be
entitled to exercise the same as though it were not the Agent, and the term
"Bank" or "Banks" shall, unless the context otherwise indicates, include RBC in
its individual capacity.
10.6 Successor Agent. The Agent may resign as Agent at any
time upon the giving of at least 60 days' prior notice to the Banks and the
Obligors and may be removed at any time, with or without cause, by the Required
Banks. In the event of any such resignation or removal, the Required Banks shall
have 30 days to appoint another Bank as the successor Agent, with the consent of
the Parent, and if no such successor Agent is appointed within said 30-day
period, the retiring Agent may, on behalf of the Banks, appoint a successor
Agent, with the consent of the Parent, which shall be a commercial bank
organized under the laws of, or licensed under the laws of the United States or
any state thereof to maintain a branch or agency in, the United States of
America or any state thereof and having a combined capital and surplus of not
less than $1,000,000,000 (or the equivalent thereof in other currencies). Upon
the acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges, obligations 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 or removal hereunder as Agent,
the provisions of this Article X shall inure to its benefit as to any actions or
approvals taken or given or omitted to be taken or given by it while it was
Agent under this Agreement.
10.7 The Agent and the Obligors. The Agent may accept deposits
from, lend money to, and generally engage in any kind of banking, trust or other
business with, any Obligor and its Subsidiaries and Affiliates and may accept
fees and other consideration from any Obligor and its Subsidiaries and
Affiliates for services in connection with this Agreement and otherwise without
having to account for the same to any of the Banks.
ARTICLE XI. MISCELLANEOUS
11.1 Stamp Taxes. The Obligors agree, jointly and severally,
promptly upon demand by any Bank or the Agent, to pay and hold the Agent and the
Banks harmless from and against any and all present and future stamp and other
similar taxes with respect to this Agreement and any document or instrument
related hereto and save the Agent and the Banks harmless from and against
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any and all liabilities with respect to or resulting from any delay or omission
to pay such taxes. This covenant shall survive payment of the Obligations and
termination of this Agreement.
11.2 Right of Set-off and Compensation. In addition to any
rights now or hereafter granted under applicable law or otherwise and not by way
of limitation of any such rights, upon the occurrence and during the continuance
of an Event of Default, the Agent and the Banks are hereby authorized at any
time or from time to time, without presentment, demand, protest or other notice
of any kind to the Obligors or to any other Person, any such notice being hereby
expressly waived, to setoff and effect compensation and to appropriate and apply
any and all deposits (general or special) and any other indebtedness at any time
held or owing by the Banks to or for the credit or the account of any Obligor
against and on account of the Obligations, including (without limitation) all
claims of any nature or description arising out of or connected with this
Agreement, irrespective of whether or not the Banks shall have made any demand
hereunder and although said Obligations, or any of them, are contingent or
unmatured.
11.3 Notices. Except as otherwise specified herein, all
notices, requests, demands or other communications to or upon the respective
parties hereto shall be in writing and shall be deemed to have been duly given
or made five Business Days after being mailed (by registered or certified mail,
return receipt requested) or when delivered by hand or overnight courier or by
telex or telecopier to the party to which such notice, request, demand or other
communication is required or permitted to be given or made under this Agreement,
addressed to such party at its address or telex or telecopier number set forth
on Schedule II, or at such other address or telex or telecopier number as such
party may hereafter specify by a notice to the other parties; provided, however,
that any notice requiring that an action be taken by the recipient shall be sent
by telex or telecopier.
11.4 No Waiver; Remedies Cumulative. No failure or delay on
the part of any Bank or the Agent in exercising any right, power or privilege
hereunder and no course of dealing between any or all of the Obligors, the Banks
and the Agent shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any related
document preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder. The rights and remedies herein
expressly provided are cumulative and not exclusive of any rights or remedies
that the Banks or the Agent would otherwise have. No notice to or demand on any
Obligor in any case shall entitle such Obligor or any other Obligor to any other
or further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Banks or the Agent to any other or further action in
any circumstances without notice or demand.
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11.5 Amendments and Waivers. The Required Banks and the
Obligors may, or with the written consent of the Required Banks, the Agent and
the Obligors may, from time to time, enter into written amendments, supplements
or modifications hereof for the purpose of adding any provisions hereto or
changing in any manner the rights of the Banks, the Agent or the Obligors
hereunder, and the Required Banks may, or with the consent of the Required Banks
the Agent on behalf of the Banks may, execute and deliver to the Obligors a
written instrument waiving, on such terms and conditions as may be specified in
such instrument, any of the requirements of this Agreement or any Default or
Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall (a) unless signed by all
of the Banks, (i) increase the amount of any Bank's Commitment(s) (except for
any increase resulting from an assignment pursuant to Section 11.7 hereof) or
extend the Commitment Period, (ii) reduce the amount of any principal, interest,
Reimbursement Obligations, fee or expenses payable to any Bank or the Agent or
extend the due date of any principal, interest, Reimbursement Obligations, fee
or expenses or waive any default in the payment when due of any principal,
interest, Reimbursement Obligations, fee or expenses hereunder, (iii) amend or
modify Article IV or release any Guarantor-Obligor thereunder (and any such
release shall not require the consent of any Obligor), (iv) amend Article VI or
waive or modify the requirements of Section 6.1 or of Section 6.2 with respect
to the initial Borrowing (but the Required Banks may waive the requirements of
Section 6.2 with respect to subsequent Borrowings), (v) consent to the
assignment or transfer by any Obligor of any of its rights and Obligations under
this Agreement except in connection with a merger, consolidation or sale of
assets permitted by Section 8.3 or (vi) amend this Section 11.5 or the
definition of "Required Banks" in Section 1.1 or any provision hereof requiring
the consent of all the Banks or (b) modify Article X or limit the rights and
privileges of, or impose additional duties or obligations on, the Agent without
the consent of the Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Banks and shall be binding upon
the Obligors, the Banks and the Agent. In the case of any waiver, the Obligors,
the Banks and the Agent shall be restored to their former position and rights
hereunder and any Default or Event of Default waived shall be deemed to be cured
and not continuing; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon. Except as
expressly provided in this Agreement, no notice to or demand on any Obligor in
any case shall entitle it to any other or further notice or demand in similar or
other circumstances. Each Designating Lender may act on behalf of its Designated
Lender with respect to any rights of its Designated Lender to grant or withhold
any consent hereunder to the fullest extent it has been so delegated to act by
its Designated Lender pursuant to its Designation Agreement.
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The Agent shall in all cases be protected in relying on the
representation of a Designating Lender that such Designating Lender may act on
behalf of its Designated Lender without independent verification.
11.6 Adjustments. If any Bank (a "Benefited Bank") at any time
receives any payment of all or part of its portion of the Borrowings under the
Commitments or interest thereon, or receives any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 9.7 or otherwise) in excess of
such Bank's pro rata share thereof, such Benefited Bank shall purchase for cash
from each other Bank entitled to share such payment or collateral such part of
such other Bank's portion of such Borrowings, or shall provide such other Bank
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefited Bank to share the excess payment or benefits
of such collateral or proceeds ratably with each such other Bank; provided,
however, that if all or any portion of such excess payment or benefits is
thereafter recovered from such Benefited Bank, such purchase shall be rescinded,
and the purchase price and benefits returned by such other Banks, pro rata
according to their shares of such purchase price and benefits, to the extent of
such recovery, but without interest. Each Obligor agrees that each Bank so
purchasing a part of another Bank's portion of such Borrowings may, to the
fullest extent permitted by law, exercise all rights (including, without
limitation, rights of set-off) with respect to such part as fully as if such
Bank were the direct holder of such part.
11.7 Benefit of Agreement; Assignments and Participations. (a)
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors and assigns;
provided, however, that (except as permitted under Section 8.3) no Obligor may
transfer any of its rights or Obligations hereunder without the prior written
consent of each Bank.
(b) With the consent of each Obligor, which may not be
unreasonably withheld or delayed, each Bank shall have the right at any time to
sell, assign, syndicate, transfer or negotiate all or any portion of such Bank's
Commitments and its interests in the Obligations hereunder to an Eligible
Assignee to be selected by such Bank (collectively, an "assignment"); provided
that (i) any such assignment of less than all of such Bank's Commitments and
Obligations hereunder shall be in the minimum principal amount of $15,000,000,
(ii) after giving effect to any such assignment of less than all of such Bank's
Commitments and Obligations hereunder, such Bank shall retain not less than
$25,000,000 in Commitments and Obligations hereunder, (iii) such Bank shall have
delivered to the Agent a fee of $2,500 in respect of each such assignment and
(iv) such assignment does not violate any applicable securities laws of any
jurisdiction. From
<PAGE> 77
72
and after the date of any such permitted assignment, the Eligible Assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it, shall have the rights and
obligations of, and be deemed to be, a Bank hereunder, and the assigning Bank
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it, relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an assignment covering all or the remaining
portion of an assigning Bank's rights and obligations under this Agreement, the
Bank shall cease to be a party hereto). Any Bank, without the consent of any
Obligor, any other Bank or the Agent, may assign, pledge or grant participations
in its rights with respect to its interest in the Obligations hereunder to any
Federal Reserve Bank or any Affiliate of such Bank which is an Eligible
Assignee. Notwithstanding anything to the contrary contained herein, any Bank
may sell, transfer, assign or grant participations in all or any part of the
Competitive Bid Loans made by it.
(c) Subject to the provisions of this Section 11.7, each Bank
shall have the right at any time to sell undivided participating interests in
all or any part of its Borrowings to one or more Affiliates of such Bank or to
one or more other banks; provided that (1) such sale or transfer does not
violate any applicable securities laws of any jurisdiction, (ii) such sale or
transfer shall not relieve such Bank of any obligation or liability hereunder,
and (iii) such Bank shall make and receive all payments for the account of its
participants and shall retain exclusively, and shall continue to exercise
exclusively, all rights of approval and administration available hereunder with
respect to such Bank's Borrowings, even after giving effect to any such sale or
transfer, and such Bank shall make such arrangements with its participants as
may be necessary to accomplish the foregoing, provided that any such participant
may be given the right to vote its interest with respect to any change of the
principal of, or the rate of interest on, any Obligation or any change of the
time of payment of principal (other than with respect to prepayments required by
Section 2.8(a)) of, or interest on, any Obligation by which it would be
affected. No such participant shall be a Bank for any purpose under this
Agreement, other than for the purposes of Sections 2.12 (but only to the extent
that the selling Bank would be entitled to payment thereunder), 11.1, 11.2 and
the proviso at the end of the immediately preceding sentence, without the
consent of the Agent, the Required Banks and each Obligor.
(d) It is expressly agreed that, in connection with any
assignment, the sale and transfer of any participations or offers therefor
pursuant to this Section 11.7, each Bank may, subject to Section 11.15, provide
to any assignee or participant or prospective assignee or participant such
information pertaining to the Obligors or any of their Subsidiaries as such Bank
has received from the Obligors (directly or indirectly) and general credit
information based on such Bank's records.
<PAGE> 78
73
(e) Any Bank may at any time designate not more than one
Designated Lender to fund Committed Loans and/or Competitive Bid Loans on behalf
of such Designating Lender subject to the terms of this subsection 11.7(e) and
the provisions of the foregoing subsection 11.7(b) hereof shall not apply to
such designation; provided that each Designated Lender which is a non- U.S. Bank
shall comply with the provisions of subsection 2.15 hereof. No Bank may have
more than one Designated Lender at any time. Such designation may occur either
by the execution of the signature pages hereof by such Bank and Designated
Lender next to the appropriate "Designating Lender" and "Designated Lender"
captions, or by execution by such parties of a Designation Agreement subsequent
to the date hereof; provided, that any Bank and its Designated Lender executing
the signature pages hereof as "Designating Lender" and "Designated Lender",
respectively, on the date hereof shall be deemed to have executed a Designation
Agreement, and shall be bound by the respective representations, warranties and
covenants contained therein, and such designation shall be conclusively deemed
to be accepted by the Obligors and the Agent. The parties to each such
designation occurring subsequent to the execution date hereof shall execute and
deliver to the Agent and the Obligors for their acceptance a Designation
Agreement. Upon such receipt of an appropriately completed Designation Agreement
executed by a Designating Lender and a designee representing that it is a
Designated Lender and consented to by the Obligors, the Agent will accept such
Designation Agreement and will give prompt notice thereof to the Obligors and
the other Banks, whereupon, (i) from and after the effective date specified in
the Designation Agreement, the Designated Lender shall become a party to this
Agreement with a right to make Committed Loans and Competitive Bid Loans on
behalf of its Designating Lender pursuant to subsections 2.3(c) and 2.5(i),
respectively and (ii) the Designated Lender shall not be required to make
payments with respect to any obligations and liabilities in this Agreement
except to the extent of excess cash flow of such Designated Lender which is not
otherwise required to repay obligations of such Designated Lender which are then
due and payable; provided, however, that regardless of such designation and
assumption by the Designated Lender, the Designating Lender shall be and remain
obligated to the Obligors, the Agent and the Banks for each and every of the
obligations of the Designating Lender and its related Designated Lender with
respect to this Agreement, including, without limitation, any actions taken by
the Designated Lender with respect to the Agreement, any indemnification
obligations under subsection 3.3 hereof and any sums otherwise payable to the
Obligors by the Designated Lender. Each Designating Lender, or a specified
branch or affiliate thereof, shall serve as the administrative agent of its
Designated Lender and shall on behalf of its Designated Lender: (i) receive any
and all payments made for the benefit of such Designated Lender and (ii) give
and receive all communications and notices and take all actions hereunder,
including, without limitation, votes, approvals, waivers,
<PAGE> 79
74
consents and amendments under or relating to this Agreement. Any such notice,
communication, vote, approval, waiver, consent or amendment shall be signed by a
Designating Lender, or specified branch or affiliate thereof, as administrative
agent for its Designated Lender and need not be signed by such Designated Lender
on its own behalf. The Obligors, the Agent and the Banks may rely thereon
without any requirement that the Designated Lender sign or acknowledge the same.
No Designated Lender may assign or transfer all or any portion of its interest
hereunder, other than via an assignment to its Designating Lender or Liquidity
Bank, if any, or otherwise in accordance with the provisions of subsection
11.7(b) hereof.
11.8 Governing Law. This Agreement and the rights and
obligations of the parties hereto shall be construed in accordance with, and be
governed by, the law of the State of New York without taking into effect its
conflicts of laws principles.
11.9 Submission to Jurisdiction. (a) Each Obligor irrevocably
hereby consents and agrees that any legal action, suit or proceeding against it
with respect to its Obligations or any other matter under or arising out of or
in connection with this Agreement may be brought in the United States federal
courts sitting in, or in the state courts of, the State of New York, as any Bank
or the Agent may elect, and, by execution and delivery of this Agreement, each
Obligor hereby irrevocably accepts and submits to the non-exclusive jurisdiction
of each such court in personam, generally and unconditionally with respect to
any such action, suit or proceeding for itself and in respect of its property,
assets and revenues. Each Obligor hereby irrevocably designates and appoints CT
Corporation System (the "Process Agent") located on the date hereof at 1633
Broadway, New York, New York 10019, as its designee, appointee and agent to
receive, accept and acknowledge for and on behalf of such Obligor and its
property, assets and revenues, service of any and all legal process, summons,
notices and documents that may be served in any such action, suit or proceeding
in United States federal courts sitting in, and the state courts of, the State
of New York, which service may be made on the Process Agent in accordance with
legal procedures prescribed for such courts. If for any reason the Process Agent
ceases to have an office in New York City, each Obligor agrees to designate an
agent in New York City satisfactory to the Banks on the terms and for the
purposes of this Section 11.9. Each Obligor further hereby irrevocably consents
and agrees, to the fullest extent permitted by law, to the service of any and
all legal process, summons, notices and documents out of any of said courts in
any such action, suit or proceeding by serving a copy thereof upon the Process
Agent or any other relevant agent for service of process referred to in this
Section 11.9 (whether or not the appointment of such Agent shall for any reason
prove to be ineffective or such Agent shall accept or acknowledge such service)
or by mailing copies thereof by registered or certified air mail, postage
prepaid, to the address specified as provided in Section 11.3 for notices to it.
<PAGE> 80
75
Each Obligor waives, to the fullest extent permitted by law, any right that it
may now or hereafter have to plead or claim that the failure of any Process
Agent to give any notice of such service to such Obligor has impaired or
affected in any way the validity of such service or any judgment rendered in any
action or proceeding based thereon.
(b) Nothing herein shall in any way be deemed to limit the
ability of the Banks or the Agent to serve any legal process, summons, notices
and documents in any other manner permitted by applicable law or to obtain
jurisdiction over any Obligor or bring actions, suits or proceedings against any
Obligor in such other jurisdictions, and in such manner, as may be permitted by
applicable law.
(c) Each Obligor hereby irrevocably and unconditionally
waives, to the fullest extent permitted by law, any objection that it may now or
hereafter have to the laying of venue of any action, suit or proceeding arising
out of or in connection with this Agreement brought in the United States federal
courts sitting in, or the state courts of, the State of New York and hereby
further irrevocably and unconditionally waives and agrees, to the fullest extent
permitted by law, not to plead or claim that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum, provided,
however, that any Obligor shall be entitled to exercise any right that it would
have but for this Section 11.9 to remove an action from the state courts of New
York to the United States federal courts sitting in New York.
11.10 Usury. Anything herein to the contrary notwithstanding,
the obligation of each Obligor to pay interest on the Borrowings and the fees
payable hereunder shall be subject to the limitation that such payment shall not
be required to the extent that receipt of such payment by any Bank would be
contrary to the provisions of any applicable law limiting the maximum rate of
interest or the fees that may be charged or collected by such Bank.
11.11 Severability. If any part of this Agreement is contrary
to, prohibited by, or deemed invalid under, any applicable law of any
jurisdiction, such provision shall, as to such jurisdiction, be inapplicable and
deemed omitted to the extent so contrary, prohibited or invalid, without
invalidating the remainder hereof or affecting the validity or enforceability of
such provision in any other jurisdiction.
11.12 Survival. All covenants, agreements, representations and
warranties made herein shall survive the execution and delivery of this
Agreement and the making of the Borrowings and shall continue in full force and
effect until all of the Obligations have been paid in full and the Commitments
have been terminated. All indemnities set forth herein (including, without
limitation, in Sections 10.4 and 11.1) shall
<PAGE> 81
76
survive the making and repayment of the Borrowings and the termination of this
Agreement.
11.13 Enforcement by Agent. This Agreement may be enforced
against the Obligors by the Agent on behalf of and for the benefit of all the
Banks without joining any Bank in any enforcement proceeding, and each Bank
hereby specifically gives its mandate to the Agent, to take on its behalf any
and all proceedings the Agent deems appropriate.
11.14 Obligations Several. The obligations of the Banks
hereunder are several and not joint. The Agent, in its capacity as such, shall
have no liability for the failure of any Bank to make available its portion of
any Borrowing required to be made available by such Bank, and no Bank shall be
liable for the failure of any other Bank to make available its portion of any
Borrowing required to be made available by such other Bank hereunder. The
failure of any Bank to make available its portion of any Borrowing hereunder or
to perform its obligations hereunder shall not relieve any other Bank, the Agent
or the Obligors of any of its or their respective obligations under this
Agreement nor limit any right of the non-defaulting Banks hereunder. Nothing
contained in this Agreement, and no action taken by the Banks pursuant hereto,
shall be deemed to constitute the Banks a partnership, association, joint
venture or other entity.
11.15 Confidentiality of Information. Each Bank understands
that some of the information furnished to it pursuant to Section 7.3 or
otherwise pursuant hereto may be received by it prior to the time that such
information is made public. Each Bank agrees that it will keep all information
so furnished to it confidential and will not disclose to other Persons such
information until it has become public; provided, however, that each Bank and
the Agent may disclose such information (a) to any Bank, (b) to the extent
required by law or pursuant to subpoenas or other court order or legal process,
(c) to bank supervisory and bank supervisory examiners, (d) to such Bank's
attorneys, auditors and accountants, (e) to any court, tribunal or body
considering proceedings in relation to or arising out of this Agreement or the
Obligations or as otherwise prudent or necessary in connection with any such
pending or threatened proceedings and (f) to any potential assignee of or
participant in the Borrowings or the credit facilities established hereunder
which has agreed to be bound by the provisions of this Section 11.15. No such
disclosure shall be made pursuant to clause (f) of the preceding sentence to any
potential participant which is engaged, or whose Affiliates are engaged, in a
material respect in one of the same lines of business as any Obligor. The
furnishing of information to any third party pursuant to the foregoing
exceptions shall not relieve the Agent and the Banks from their confidentiality
obligation with respect to subsequent use of that or any other information.
<PAGE> 82
77
11.16 Currency. The currency specified in any provision
hereof, whether Dollars or Deutschemarks (the "Agreed Currency"), is of the
essence. The Obligations due to any Bank or the Agent under this Agreement
shall, notwithstanding any payment in any currency other than the Agreed
Currency (whether pursuant to judgment or award or otherwise), be discharged
only to the extent of the amount of the Agreed Currency that such Bank or the
Agent may, in accordance with normal banking procedures, purchase and receive
with the sum paid in such other currency (including any premium and costs of
exchange) on the Business Day immediately following the day on which such Bank
or the Agent receives such payment in such other currency. If the conversion
rate actually applied differs from the rate of exchange prevailing on such
Business Day and, as a result, the amount of the Agreed Currency so purchased
falls short of the amount originally due to such Bank or the Agent in the Agreed
Currency, the Obligors agree, jointly and severally, to pay such additional
amounts, in the Agreed Currency, as may be necessary to indemnify such Bank or
the Agent against such shortfall (and if the amount of the Agreed Currency so
purchased exceeds the amount originally due, the excess shall be refunded to the
Obligor that furnished the other currency used to purchase the Agreed Currency).
Any Obligation not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided in this Section 11.16,
shall continue in full force and effect. No such obligation shall be affected by
any judgment being obtained for any other amount due under or in respect of this
Agreement or by any time or indulgence granted to any Obligor from time to time.
11.17 Descriptive Headings. The Table of Contents and the
captions in this Agreement are for convenience of reference only and shall not
define or limit the provisions hereof.
11.18 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument and all
signatures need not appear on any one counterpart. A complete set of
counterparts shall be lodged with the Parent and the Agent.
11.19 English Language. This Agreement, its Schedules and
Exhibits and related documents have been drafted in English at the express
request of the parties hereto. La presente convention, ses annexes et les
documents y afferents ont ete rediges en anglais a la demande expresse des
parties.
11.20 WAIVERS OF JURY TRIAL. THE OBLIGORS, THE AGENT AND THE
BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM
THEREIN.
<PAGE> 83
78
11.21 Additional Commitments; New Banks. (a) Provided no
Default or Event of Default has occurred and is continuing, the Obligors and any
Bank may, by written agreement and with notice to the Agent, terminate such
Bank's Commitment, permanently reduce such Bank's Commitment to the amount of
the Aggregate Outstanding Extenstion of Credit of such Bank or reduce such
Bank's Commitment to a mutually agreed amount; provided that on or before the
effective date of such termination the relevant Obligor shall pay such Bank all
outstanding amounts due such Bank under this Agreement; and provided further
that in no event shall the aggregate amount of all such terminations and
reductions effected in respect of all Banks reduce the Aggregate Commitments by
more than the sum of (i) $100,000,000 plus (ii) the amount of Additional
Commitments (if any). Upon any such termination or reduction, the Agent shall
revise Schedule 1 hereto accordingly and furnish copies of such revised Schedule
to the Obligors and each Bank.
(b) Provided no Default or Event of Default has occurred and
is continuing, with the consent of the Obligors and the Agent and subject to the
limitations of this Section 11.21, (i) any Bank may increase its Commitment
hereunder and (ii) one or more additional banks or financial institutions
(collectively, "New Banks") may, by execution of a supplement to this Agreement,
in form and substance satisfactory to the Agent, the Obligors, and such Bank or
New Bank, become parties hereto and undertake Commitments hereunder (and any
such bank or financial institution shall thereafter for all purposes be treated
as a Bank as though it had been an original signatory to this Agreement). Any
increases in Commitments of the kind referred to in (i) above and new
Commitments of the kind referred to in (ii) above are referred to collectively
herein as "Additional Commitments." Notwithstanding the other provisions of this
Section 11.21, the aggregate amount of all Additional Commitments may not exceed
$100,000,000. Upon any such Additional Commitment, the Agent shall revise
Schedule 1 hereto accordingly and furnish copies of such revised Schedule to the
Obligors and each Bank.
11.22 No Bankruptcy Proceedings. Each of the Obligors and each
of the Banks and the Agent agrees that it will not institute against any
Designated Lender or join any other Person in instituting against any Designated
Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under any federal or state bankruptcy or similar law, for one year
and one day after the payment in full of the latest maturing commercial paper
note issued by such Designated Lender.
<PAGE> 84
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their duly authorized officers as of the date
first written above.
Obligors:
UNITED DOMINION INDUSTRIES UNITED DOMINION INDUSTRIES,
LIMITED INC.
By: /s/ Thomas J. Snyder By: /s/ Thomas J. Snyder
--------------------------- -------------------------
Title: Vice President and Title: Vice President and
Treasurer Treasurer
By: /s/ Robert P. McKinney By: /s/ Robert P. McKinney
--------------------------- -------------------------
Title: Assistant Secretary Title: Assistant Secretary
UNITED DOMINION HOLDINGS, INC.
By: /s/ Thomas J. Snyder
---------------------------
Title: Vice President and
Treasurer
By: /s/ Robert P. McKinney
---------------------------
Title: Assistant Secretary
<PAGE> 85
FINANCIAL INSTITUTIONS:
ROYAL BANK OF CANADA
By: /s/ John M. Crawford
---------------------------
Title: Senior Manager
<PAGE> 86
ABN-AMRO BANK N.V.,
ATLANTA AGENCY
By: /s/ Steven L. Hipsman
---------------------------
Title: Vice President
By: /s/ Larry K. Kelley
---------------------------
Title: Group Vice President
<PAGE> 87
BANK OF MONTREAL
By: /s/ Thruston W. Pettus
---------------------------
Title: Director
<PAGE> 88
CIBC INC.
By: /s/ Roger Colden
---------------------------
Title: Director
<PAGE> 89
COMMERZBANK AG,
ATLANTA AGENCY
By: /s/ Andreas Bremer
---------------------------
Title: Senior Vice President
By: /s/ Eric R. Kagerer
---------------------------
Title: Vice President
<PAGE> 90
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ Michael J. McKenney
---------------------------
Title: Vice President
<PAGE> 91
FIRST UNION NATIONAL BANK
By: /s/ [Authorized Officer]
---------------------------
Title: Senior Vice President
<PAGE> 92
NATIONSBANK, N.A.
By: /s/ Dick Parkhurst
---------------------------
Title: Vice President
<PAGE> 93
TORONTO DOMINION
(NEW YORK), INC.
By: /s/ David G. Parker
---------------------------
Title: Vice President
<PAGE> 94
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK
BRANCH
By: /s/ Alan F. Bookspan
---------------------------
Title: Vice President
By: /s/ James Veneau
---------------------------
Title: Analyst
<PAGE> 95
WACHOVIA BANK, N.A.
By: /s/ Christopher Fincher
---------------------------
Title: Vice President
<PAGE> 96
AGENT:
ROYAL BANK OF CANADA
as Agent
By: /s/ Colin Lambert
---------------------------
Title: Vice President and
Head of Global
Syndications
<PAGE> 97
SCHEDULE I
COMMITMENTS
<TABLE>
<CAPTION>
Commitment
Bank Commitment Percentage
- ------------------------- ------------ ------------
<S> <C> <C>
Royal Bank of Canada $150,000,000 23.076923%
ABN-AMRO Bank N.V.,
Atlanta Agency 50,000,000 7.692308%
Bank of Montreal 50,000,000 7.692308%
CIBC Inc. 50,000,000 7.692308%
Commerzbank AG,
Atlanta Agency 50,000,000 7.692308%
Bank of America National
Trust and Savings
Association 50,000,000 7.692308%
First Union National Bank
of North Carolina, N.A. 50,000,000 7.692308%
NationsBank, N.A. 50,000,000 7.692308%
Toronto Dominion
(New York), Inc. 50,000,000 7.692308%
Westdeutsche Landesbanke
Girozentrale, New York
Branch 50,000,000 7.692308%
Wachovia Bank, N.A. 50,000,000 7.692308%
------------ --------
AGGREGATE COMMITMENT $650,000,000 100.0%
</TABLE>
<PAGE> 98
SCHEDULE II
ADDRESSES FOR NOTICES AND LENDING OFFICES
The Agent
Addresses for notices: Royal Bank of Canada
Financial Square, 24th Floor
New York, NY 10005-3531
Telecopier: (212) 428-6459
Telephone: (212) 428-6261
Attention: J. Crawford
and
Financial Square, 23rd Floor
New York, NY 10005-3531
Telecopier: (212) 428-2310
Telephone: (212) 428-6308
Attention: Agency Services
Royal Bank of Canada
Addresses for notices: Corporate Banking - East U.S.A.
Financial Square, 24th Floor
New York, NY 10005-3531
Telecopier: (212) 428-6459
Telephone: (212) 428-6261
Attention: J. Crawford
and
Financial Square, 23rd Floor
New York, NY 10005-3531
Telecopier: (212) 428-2372
Telephone: (212) 428-6332
Attention: Credit Administration
U.S. Lending Office: Financial Square, 23rd Floor
New York, NY 10005-3531
Telecopier: (212) 428-2372
Telephone: (212) 428-6332
Attention: Credit Administration
<PAGE> 99
II-2
Bank of America National Trust
and Savings Association
Address for notices: 1230 Peachtree Street N.E.
Suite 3800
Atlanta, GA 30309
Telephone: (404) 249-6913
Telecopier: (404) 249-6938
Attention: Michael J. McKenney, VP
U.S. Lending Office 231 South LaSalle Street
for Committed Chicago, IL 60697
Loans & Deutschemark MC 04976
Competitive Bid Telephone: (312) 828-6674
Loans: Telecopier: (312) 974-9626
Attention: Fred Fischer
Account Administration 200-9
U.S. Lending Office 555 California Street
for US Dollar San Francisco, CA 94104
Competitive Bid Telephone: (415) 622-2020
Loans: Telecopier: (415) 622-2235
Attention: Carolyn Alberts
<PAGE> 100
II-3
Bank of Montreal
Address for notices: 430 Park Avenue
14th Floor
New York, NY 10022
Telecopier: (212) 605-1525
Telephone: (212) 605-1436
Attention: Maggie Gaglin and
Thruston Pettus
U.S. Lending Office: 430 Park Avenue
14th Floor
New York, NY 10022
Telecopier: (212) 605-1525
Telephone: (212) 605-1436
Attention: Maggie Gaglin
Toronto Dominion (New York), Inc.
Addresses for notices: 31 West 52nd Street
20th Floor
New York, NY 10019-6101
Telecopier: (212) 262-1926
Telephone: (212) 468-0574
Attention: Eric Skillins
and
909 Fannin Street
17th Floor
Houston, TX 77010
Telecopier: (713) 951-9921
Telephone: (713) 653-8241
Attention: Kimberly Burleson,
Vice President
U.S. Lending Office: 909 Fannin Street
17th Floor
Houston, TX 77010
Telecopier: (713) 951-9921
Telephone: (713) 653-8241
Attention: Kimberly Burleson,
Vice President
<PAGE> 101
II-4
CIBC Inc.
Address for notices: Two Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, GA 30339
Telecopier: (404) 319-4950/4951
Telephone: (404) 319-4817
Attention: Kelli Jones
U.S. Lending Office: Two Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, GA 30339
Telecopier: (404) 319-4954
Telephone: (404) 319-4902
Attention: Roger Colden
Commerzbank AG, Atlanta Agency
Address for notices: 2 World Financial Center
New York, NY 10281-1050 Telecopier:
(212) 266-7593
Telephone: (212) 266-7345
Attention: Gabriela E. Schmidtchen
U.S. Lending Office: 2 World Financial Center
New York, NY 10281-10150 Telecopier:
(212) 266-7593
Telephone: (212) 266-7345
Attention: Gabriela E. Schmidtchen
NationsBank, N.A.
Address for notices: NationsBank Corporate Center
101 N. Tryon Street
(NC1-001-15-05)
Charlotte, NC 28255
Telephone: (704) 388-1111
Telecopier: (704) 386-8694
Attention: Jacquetta Banks
Corporate Credit
Services
U.S. Lending Office: NationsBank Corporate Center
101 N. Tryon Street
(NC1-001-15-05)
Charlotte, NC 28255
Telephone: (704) 388-1111
Telecopier: (704) 386-8694
Attention: Jacquetta Banks
Corporate Credit
Services
<PAGE> 102
II-5
First Union National Bank of North Carolina
Address for notices: South Tryon Street
MC-0145
Charlotte, NC 28288-0145
Telecopier: (704) 374-4000
Telephone: (704) 374-6784
Attention: Patty Dempsey, CBSS
U.S. Lending Office: 301 South Tryon Street
MC-0145
Charlotte, NC 28288-0145
Telecopier: (704) 374-4000
Telephone: (704) 374-7632
Attention: Bert M. Corum, V.P.
ABN-AMRO Bank N.V., Atlanta Agency
Address for notices: One Ravina Drive
Suite 1200
Atlanta, Georgia 30346
Telecopier: (770) 395-9188
Telephone: (770) 395-7990
Attention: Reenie Williamson
U.S. Lending Office: One Ravina Drive
Suite 1200
Atlanta, Georgia 30346
Telecopier: (770) 395-9188
Telephone: (770) 399-7381
Attention: Patrick Thom, A.V.P.
Westdeutsche Landesbank Girozentrale,
New York Branch
Address for notices: 1211 Avenue of the Americas
23rd Floor
New York, NY 10036
Telecopier: (212) 302-7946
Telephone: (212) 852-6152
Attention: Cheryl Wilson,
Loan Administration
U.S. Lending Office: 1211 Avenue of the Americas
23rd Floor
New York, NY 10036
Telecopier: (212) 852-6023
Telephone: (212) 852-6307
Attention: Alan S. Bookspan,
Corporate Finance
<PAGE> 103
II-6
Wachovia Bank, N.A.
Address for notices: 400 South Tryon Street
31st Floor
Charlotte, NC 28202
Telecopier: (704) 378-5035
Telephone: (704) 378-5702
Attention: Chris Fincher
U.S. Lending Office: 400 South Tryon Street
31st Floor
Charlotte, NC 28202
Telecopier: (704) 378-5035
Telephone: (704) 378-5702
Attention: Chris Fincher
Parent
Address for notices: c/o United Dominion Industries,
Inc.
2300 One First Union Center
301 South College Street
Charlotte, NC 28202
Telecopier: (704) 347-6885
Attention: Thomas J. Snyder,
Vice President and
Treasurer
UDI and UDH
Address for notices: c/o United Dominion Industries,
Inc.
2300 One First Union Center
301 South College Street
Charlotte, NC 28202
Telecopier: (704) 347-6885
Attention: Thomas J. Snyder,
Vice President and
Treasurer
<PAGE> 104
EXHIBIT A
[FORM OF OPINION OF STIKEMAN, ELLIOT]
[Letterhead of Stikeman, Elliot]
July __, 1997
To: Royal Bank of Canada as Agent for each person who is now or at
any time hereafter becomes a Bank under the Credit Agreement
herein referred to, and to each such Bank
Dear Sirs:
RE: UNITED DOMINION INDUSTRIES LIMITED
We have acted as Ontario counsel to United Dominion Industries
Limited ("UDIL") in connection with the following opinion pertaining to the
Second Amendment and Restatement of the Credit Agreement and Guaranty dated as
of July __, 1997 (the "Credit Agreement") among UDIL, United Dominion
Industries, Inc., United Dominion Holdings, Inc. and a syndicate of banks
identified in the Credit Agreement (the "Banks") with Royal Bank of Canada
acting as agent for the Banks.
For the purposes of this opinion, we have examined an executed
copy of the Credit Agreement, the constating documents and the by-laws of UDIL
and originals or copies of such corporate records, certificates of public
officials and of authorized representatives of UDIL, and such other agreements,
instruments and documents, and have considered such questions of law, as we have
deemed necessary as a basis for the opinions hereinafter expressed. For the
purposes of the opinion expressed in paragraph 1, we have relied solely on a
Certificate of Compliance issued by Industry Canada dated _______, 1997.
For the purposes of the opinions expressed herein, we have:
(a) assumed the genuineness of all signatures, the
authenticity of all documents delivered to us as
originals, and the conformity to authentic original
documents of all documents submitted to us as copies;
(b) relied, as to certain matters of fact not within our
knowledge and not independently verifiable by us,
upon certificates of certain officers or directors of
UDIL dated the date hereof, copies of which
certificates have been delivered to you;
<PAGE> 105
2
(c) assumed the due authorization, execution and delivery
of the Credit Agreement by each of the parties
thereto other than UDIL and that the Credit Agreement
constitutes a legal, valid and binding agreement
enforceable against each such party in accordance
with its terms;
(d) assumed that negotiations in respect of the
transactions contemplated by or referred to in the
Credit Agreement took place outside Canada and all
documents executed and delivered in that connection
were executed and delivered outside Canada and the
decisions of those Banks, which are not incorporated
in Canada, to enter into the said transactions were
not made in Canada; and
(e) assumed that the Credit Agreement would be
interpreted and understood under the laws of New York
to have the same meaning and content as it would have
under the laws of the Province of Ontario.
No opinion is expressed herein as to the effect in the
Province of Ontario of any covenant or other term or condition which is, by
implication of foreign law, part of the Credit Agreement.
We are qualified to practice law in the Province of Ontario,
Canada and we do not purport to be expert in or express any opinion herein
concerning any law other than the laws of the Province of Ontario and the
federal laws of Canada applicable therein ("Ontario Law").
Where the phrase "Public Policy" is used herein it shall mean
public policy as that term would be applied by a court of competent jurisdiction
in the Province of Ontario (an "Ontario Court").
The opinions set forth herein are subject to the following
qualifications and limitations:
(a) the enforceability of the Credit Agreement may be
affected or limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation
or other laws (whether statutory, common law or
otherwise) affecting the rights of creditors
generally;
(b) the enforceability of the Credit Agreement is subject
to general principles of equity and equitable
remedies which are applied for or are available in
the discretion of the courts;
(c) the Currency Act (Canada) precludes a court in Canada
from giving a judgment in any currency other than
Canadian currency;
<PAGE> 106
3
(d) the costs of and incidental to all proceedings
authorized to be taken in court or before a judge are
in the discretion of the court or judge and the court
or judge has full power to determine by whom and to
what extent costs shall be paid; and
(e) an Ontario Court may decline to hear an action if it
considers that it is not the proper forum for such
action.
Subject to, based upon, and relying on the foregoing, we are
of the opinion that:
1. Status: UDIL is a corporation validly subsisting
under the laws of Canada and has not been dissolved.
2. Power:
(a) UDIL has all requisite corporate power and capacity
to (i) own or lease its property and assets and to
carry on the business now being conducted by it in
the Province of Ontario, and (ii) enter into the
Credit Agreement, grant any security created thereby,
and perform its obligations under the Credit
Agreement.
(b) UDIL has all requisite corporate power and capacity
to own and hold shares in the capital of UDII.
(c) As a corporation amalgamated under the Canada
Business Corporations Act (the "CBCA"), UDIL is
qualified to carry on business generally in the
Province of Ontario and UDIL has complied with all
statutory obligations imposed upon a corporation
amalgamated under the CBCA which carries on business
generally in the Province of Ontario.
3. Corporate: All necessary corporate action has been
taken by UDIL to authorize the (i) execution and delivery by it of the Credit
Agreement; and (ii) performance by it of its obligations under the Credit
Agreement.
4. Execution and Delivery: The Agreement has been duly
authorized, executed and delivered by UDIL to the extent that due execution and
delivery of the Credit Agreement are matters governed by Ontario Law.
5. Choice of Law: The choice of the laws of the State of
New York as the governing law of the Credit Agreement will be upheld as a valid
choice of law by an Ontario Court in respect of all issues under Ontario Law
which are characterized as contract issues provided that (a) such choice of law
is not contrary to Public Policy, and (b) such choice of law is bona fide and
legal (in the sense that it was not made with a view to avoiding the
consequences of the laws of any other jurisdiction). We are not
<PAGE> 107
4
aware of (a) any basis upon which an Ontario Court would conclude that the
choice of the laws of the State of New York would be contrary to Public Policy,
or (b) any facts which would cause an Ontario Court to conclude that such choice
of law was not bona fide or was made with a view to avoiding the consequences of
the laws of any other jurisdiction.
6. Application of New York Law: If the Credit Agreement is
sought to be enforced by or on behalf of the Banks in the Province of Ontario in
accordance with the laws of the State of New York, an Ontario Court would,
subject to paragraph 5 above and to the extent specifically pleaded and proved
as a fact by expert evidence, recognize and apply the laws of the State of New
York to all issues which, under the conflict of law rules of the Province of
Ontario are to be determined in accordance with the proper or governing law of a
contract, except that in any such proceedings such court (a) will apply such
Ontario Law as it characterizes as procedural and will not apply those laws of
the State of New York which such court characterizes as procedural; and (b) will
not apply those laws of the State of New York which (A) it characterizes as of a
revenue, expropriatory, penal or similar nature, or (B) would be contrary to
Public Policy. An Ontario Court, however, reserves to itself an inherent power
to decline to hear such an action if it is contrary to Public Policy for it to
do so or if concurrent proceedings are being brought elsewhere.
7. Action on Judgment: Ontario Law permits an action to be
brought in the Ontario Court to enforce any final and conclusive judgement in
personam for a sum certain which has not been satisfied, in whole or in part and
which is not impeachable as void or voidable under the internal laws of the
State of New York, provided that:
(a) the New York Court rendering such judgement has
jurisdiction over the judgement debtor, as recognized by
an Ontario Court and the New York Court;
(b) such judgment was not obtained by fraud or in a manner
contrary to natural justice and the enforcement thereof
would not be contrary to Public Policy;
(c) the enforcement of such judgment does not constitute,
directly or indirectly, the enforcement of foreign
revenue, expropriatory, penal or similar laws;
(d) no new admissible evidence, right or defense relevant to
the action accrues or is discovered prior to the rendering
of judgment by the Ontario Court;
(e) the enforcement of such judgement would not be contrary to
any order made by the Attorney-General of Canada under the
Foreign Extraterritorial Measures Act (Canada) or the
Competition Tribunal
<PAGE> 108
5
under the Competition Act (Canada) in respect of
certain judgements, laws and directives having
effects on competition in Canada; and
(f) there has been compliance with the Limitations Act
(Ontario) which provides that an action to enforce a
foreign judgment must be commenced within six years
of the date of the foreign judgment.
The provision in the Credit Agreement pursuant to which the
parties have agreed to submit to the jurisdiction of a New York court would be
recognized by an Ontario court as conferring jurisdiction upon that New York
court for the purposes of (a) above.
8. No Contravention: Neither the execution and delivery
of the Credit Agreement nor the consummation of the transactions contemplated by
the Credit Agreement nor the fulfillment of, or compliance with, the terms of
the Credit Agreement, in each case, by UDIL contravenes or results in a breach
of any of the terms, conditions or provisions of, or constitutes a default under
(or, to the extent such fulfillment or compliance does contravene or result in a
breach of any of the terms, conditions or provisions of, or constitutes a
default under, the same has been consented to or waived):
(a) the terms of the constating documents or by-laws of
UDIL; or
(b) any statutes of the Province of Ontario or statutes
of Canada applicable herein.
9. Consents: No authorization, consent or approval of,
exemption from, declaration by, qualification with, or giving of notice to, any
regulatory or governmental body having jurisdiction over UDIL is required in the
Province of Ontario in connection with the execution, delivery and performance
by UDIL of the Credit Agreement.
This letter and the opinions expressed herein are provided
solely in connection with the transactions referred to above and may not be
relied upon by any person other than the addressees either in connection with
this or any other matter or transaction.
Yours truly,
<PAGE> 109
EXHIBIT B
[FORM OF OPINION OF ROBERT P. MCKINNEY, ESQ.]
[Letterhead of Robert P. McKinney, Esq.]
July ___, 1997
To: Royal Bank of Canada, as Agent for each person who is now or
at any time hereafter becomes a Bank under the Second
Amendment and Restatement of the Credit Agreement and
Guaranty herein referred to, and to each such Bank
Ladies and Gentlemen:
I am the Assistant General Counsel of United Dominion
Industries, Inc., a Delaware corporation (the "UDII") and have acted as counsel
to UDII and its parent, United Dominion Holdings, Inc., a Delaware corporation
("UDHI") (UDII and UDHI are individually an "Obligor" and collectively
"Obligors") in such capacity in connection with the negotiation, execution and
delivery of the Second Amendment and Restatement of the Credit Agreement and
Guaranty dated as of July __, 1997 (the "Credit Agreement") among United
Dominion Industries Limited, a Canadian corporation, UDHI, UDII, a Delaware
corporation, the banks parties thereto (the "Banks") and The Royal Bank of
Canada, as Agent. This opinion is delivered to you pursuant to Section 6.1(f) of
the Credit Agreement. Unless otherwise defined herein, terms defined in the
Credit Agreement have the meanings given them therein when used herein.
I have examined an executed counterpart of the Credit
Agreement and such corporate documents and records of the Obligors, certificates
of public officials and officers of the Obligors and other documents as I have
deemed necessary or appropriate for the purposes of this opinion. I have assumed
for purposes of this opinion the genuineness of signatures and the authority of
persons signing agreements on behalf of parties thereto other than the Obligors,
the authenticity of all documents submitted to me as originals and the
conformity to authentic original documents of all documents submitted to me and
my staff as certified, conformed or photostatic copies.
This opinion is limited solely to the laws of the State of
North Carolina (under which I am licensed to practice law), the Delaware General
Corporation Law and the federal laws of the United States of America, and I
assume no responsibility as to the applicability of the laws of any other
jurisdiction to the subject transaction or the effect of such laws thereon.
Based on the foregoing, I am of the opinion that:
1. Each Obligor (a) is a corporation duly organized and
validly existing in good standing under the laws of the State of Delaware, (b)
is duly qualified to conduct business as a foreign corporation and in good
standing in each jurisdiction in which the character of its properties or the
transaction of its business makes such qualification necessary (except where the
failure to so qualify would not have a Material Adverse Effect), and (c) has the
corporate power and authority to own its property and assets, to transact the
business in which it is engaged and to execute, deliver and perform the Credit
Agreement.
<PAGE> 110
2
2. Each Obligor has taken all necessary corporate action to
authorize the execution, delivery and the performance of the Credit Agreement.
3. The execution, delivery and the performance of the Credit
Agreement by each Obligor, the consummation of the transactions contemplated by
the Credit Agreement and compliance with the terms and provisions thereof will
not (a) require the consent of any other person that has not been obtained or is
not in full force and effect, (b) violate any treaty, law or regulation or any
order, injunction, decree, determination or award of any court, tribunal,
arbitrator or governmental agency, commission, board or public authority binding
on it or any of its property, (c) violate or constitute (with due notice or
lapse of time or both) a default under, or result in the creation or imposition
of (or the obligation to create) any Lien upon any of its assets pursuant to the
terms of, any contract, indenture, lease or other instrument or agreement to
which it is a party or by which any of its property or assets is bound or to
which it may be subject, or (d) violate the Articles or Certificate of
Incorporation or Bylaws of either Obligor.
4. No order, permission, consent, approval, license,
authorization, registration or validation of filing with, or exemption by, any
governmental agency, commission, board or public authority is required to be
obtained or made by either Obligor in connection with the execution, delivery or
the performance of the Credit Agreement.
5. The Credit Agreement has been duly authorized, executed
and delivered by each Obligor.
6. To the best of my knowledge, no action, suit, proceeding
(including proceedings by or before any arbitrator or administrative agency) or
claim is pending of which either Obligor has notice or threatened against or
affecting either Obligor that challenges the legality, validity or propriety of
such Obligor's execution, delivery or the performance of the Credit Agreement,
that relates to the transactions contemplated by the Credit Agreement or that,
if adversely determined, would have a material adverse effect on the financial
condition of the Parent and its Subsidiaries, taken as a whole.
7. To the best of my knowledge, there are no stamp taxes,
registration taxes, levies, duties, imposts or official or sealed papers taxes
or similar charges now due, or that under present law could in the future become
due, in connection with the Credit Agreement or the enforcement of the Credit
Agreement against either Obligor.
8. To the best of my knowledge, no filing, registration or
recording of the Credit Agreement or any instrument relating to the Credit
Agreement in any public office or elsewhere is necessary in order to assure the
validity, effectiveness, enforceability and admissibility in evidence of the
Credit Agreement.
9. Neither Obligor is subject to any law or regulation
limiting its ability to incur indebtedness for borrowed money that would
adversely affect the transactions contemplated by the Credit Agreement.
10. Except with respect to obligations secured by Liens
permitted or contemplated by the Credit Agreement, and subject to the discretion
of any court of equity to subordinate or prioritize obligations, the obligations
of each Obligor under the Credit
<PAGE> 111
3
Agreement rank at least part passu in priority of payment with all other
indebtedness of either Obligor of which I have knowledge.
This opinion is furnished by me solely for your benefit and
may not be relied upon by any other Person (except a participant in, or assignee
of, the Loans) or for any other purpose without my prior written consent.
Very truly yours,
----------------------------------------
Robert P. McKinney
Assistant General Counsel
<PAGE> 112
EXHIBIT C-1 TO
CREDIT AGREEMENT
[FORM OF COMPETITIVE BID LOAN REQUEST]
-----------------, ------
Royal Bank of Canada, as Agent
[Address of Agent's Office]
Reference is made to the Second Amendment and Restatement of the Credit
Agreement and Guaranty, dated as of July __, 1997, among United Dominion
Industries Limited, United Dominion Industries, Inc., United Dominion Holdings,
Inc., the financial institutions named therein, and Royal Bank of Canada as
Agent (as the same may be amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"). Terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
This is [a Eurodollar Rate] [a Deutschemark Rate] [a Fixed Rate]
Competitive Bid Loan Request pursuant to Section 2.5(a) of the Credit Agreement
requesting quotes for the following Competitive Bid Loans:
<TABLE>
<CAPTION>
==================================================================================================================================
Loan 1 Loan 2 Loan 3 Loan 4 Loan 5
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Aggregate [DM][US$ [DM][US$ [DM][US$ [DM][US$ [DM][US$
Principal Amount ] ____ ]_____ ] ____ ] ____ ]____
- ----------------------------------------------------------------------------------------------------------------------------------
Borrowing Date
- ----------------------------------------------------------------------------------------------------------------------------------
Maturity Date
- ----------------------------------------------------------------------------------------------------------------------------------
Competitive Bid
Loan Interest
Payment Dates
===================================================================================================================================
</TABLE>
Very truly yours,
[NAME OF OBLIGOR]
By:
-------------------------
Name:
Title:
By:
-------------------------
Name:
Title:
<PAGE> 113
EXHIBIT C-2 TO
CREDIT AGREEMENT
[FORM OF COMPETITIVE BID LOAN OFFER]
Royal Bank of Canada, as Agent
- ---------------,-----
[Address of Agent's Office]
Reference is made to the Second Amendment and Restatement of the Credit
Agreement and Guaranty, dated as of July __, 1997, among United Dominion
Industries Limited, United Dominion Industries, Inc., United Dominion Holdings,
Inc., the financial institutions named therein, and Royal Bank of Canada, as
Agent (as the same may be amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"). Terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement. In
accordance with Section 2.5(b) [Eurodollar Rate Competitive Bid Loan Request],
Section 2.5(c) [Deutschemark Rate Competitive Bid Loan Request] or 2.5(d) [Fixed
Rate Competitive Bid Loan Request] of the Credit Agreement, the undersigned Bank
offers to make Competitive Bid Loans thereunder in the following amounts with
the following maturity dates:
<TABLE>
==================================================================================================
<S> <C>
Competitive Bid Aggregate Maximum Amount:
Loan Date: __________, _____ [DM][US$]____
==================================================================================================
Maturity Date 1: Maximum Amount:
__________, _____ [DM][US$]__________
[DM][US$]________ offered at
_______*
[DM][US$]________ offered at
_______*
==================================================================================================
Maturity Date 2: Maximum Amount:
__________, _____ [DM][US$]__________
[DM][US$]________ offered at
_______*
[DM][US$]________ offered at
_______*
==================================================================================================
Maturity Date 3: Maximum Amount:
__________, _____ [DM][US$]__________
[DM][US$]________ offered at
_______*
[DM][US$]________ offered at
_______*
==================================================================================================
</TABLE>
- -------------
* Insert the interest rate offered for the specified loan amount. In the
case of Eurodollar Rate Competitive Bid Loans or Deutschemark Rate Competitive
Bid Loans, insert a margin bid. In the case of Fixed Rate Competitive Bid Loans,
insert a fixed rate bid.
<PAGE> 114
3
<TABLE>
<CAPTION>
==================================================================================================
<S> <C>
Maturity Date 4: Maximum Amount:
__________, _____ [DM][US$]__________
[DM][US$]________ offered at
_______*
[DM][US$]________ offered at
_______*
==================================================================================================
Maturity Date 5: Maximum Amount:
__________, _____ [DM][US$]__________
[DM][US$]________ offered at
_______*
[DM][US$]________ offered at
_______*
==================================================================================================
</TABLE>
Very truly yours,
[NAME OF BANK]
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Telephone No.:
------------------------
Fax No.:
------------------------------
<PAGE> 115
EXHIBIT C-3 TO
CREDIT AGREEMENT
[FORM OF COMPETITIVE BID LOAN CONFIRMATION]
-------------, ------
Royal Bank of Canada, as Agent
[Address of Agent's Office]
Reference is made to the Second Amendment and Restatement of the Credit
Agreement and Guaranty, dated as of July __, 1997, among United Dominion
Industries Limited, United Dominion Industries, Inc., United Dominion Holdings,
Inc., the financial institutions named therein, and Royal Bank of Canada, as
Agent (as the same may be amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"). Terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
In accordance with Section 2.5(e)(ii) of the Credit Agreement, the
undersigned accepts and confirms the offers by Bank(s) to make Competitive Bid
Loans to the undersigned on ____________ , _____ [Competitive Bid Loan Borrowing
Date] under Section 2.5(e) in the (respective) amount(s) set forth on the
attached list of Competitive Bid Loans offered.
Very truly yours,
[Name of Obligor]
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
[Obligor must attach Competitive Bid Loan offer list prepared by Agent with
accepted amount entered by the Obligor to the right of each Competitive Bid Loan
offer].
<PAGE> 116
EXHIBIT D TO
CREDIT AGREEMENT
----------------
[FORM OF NOTICE OF CONVERSION]
To: Royal Bank of Canada
[Address of Agent's Office] [Date](1/)
Ladies and Gentlemen:
Reference is made to the Second Amendment and Restatement of
the Credit Agreement and Guaranty, dated as of July __, 1997, among United
Dominion Industries Limited, United Dominion Industries, Inc., United Dominion
Holdings, Inc., the financial institutions named therein, and Royal Bank of
Canada, as Agent (as the same may be amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
In accordance with Section 2.9(a) of the Credit Agreement, the
undersigned hereby gives irrevocable notice of a conversion of Committed Loans.
We have outstanding $[______] by outstanding way of
[_______](2/). Please convert $[______] outstanding into $[______] of [_______]
(3/) on the [____] day of [________]. [If conversion to a Eurodollar Rate
Committed Loan is requested please specify the Interest Period therefor].
[NAME OF OBLIGOR]
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
- -------------
(1/) At least three Business Days (or four Business Days with respect to
requests to convert to Eurodollar Rate Committed Loans having Interest
Periods of nine or twelve months) prior to the requested conversion
date
(2/) Specify Type of Committed Loan(s) to be converted
(3/) Specify Type of Committed Loan(s) to be converted to
<PAGE> 117
EXHIBIT F
FORM OF DESIGNATION AGREEMENT
Reference is made to that certain Second Amendment and
Restatement of the Credit Agreement dated as of July __, 1997 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement")
among United Dominion Industries Limited, United Dominion Industries, Inc.,
United Dominion Holdings, Inc. (the "Obligors"), the Banks parties thereto, and
Royal Bank of Canada, as Agent (the "Agent"). Terms defined in the Credit
Agreement are used herein with the same meaning.
[NAME OF DESIGNATING LENDER] (the "Designating Lender"), [NAME
OF DESIGNEE] (the "Designee"), the Agent and the Obligors agree as follows:
1. Pursuant to subsection 11.7(e) of the Credit Agreement, the
Designating Lender hereby designates the Designee, and the Designee hereby
accepts such designation, to have a right to make Committed Loans and/or
Competitive Bid Loans pursuant to subsections 2.3 and 2.5, respectively, of the
Credit Agreement.
2. Except as set forth in Section 7 below, the Designating
Lender makes no representation or warranty and assumes no responsibility
pursuant to this Designation Agreement with respect to (a) any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of any related documents or any other instrument and document furnished
pursuant thereto and (b) the financial condition of the Obligors or the
performance or observance by the Obligors of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto.
3. The Designee (a) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in subsections 5.10 and 7.3 of the Credit Agreement and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Designation Agreement; (b) agrees that it will
independently and without reliance upon the Agent, the Designating Lender 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 action under the Credit Agreement; (c) confirms that it is a Designed
Lender; (d) appoints and authorizes the Agent to take such action as Agent on
its behalf and to exercise such powers and discretion under the Credit Agreement
as are delegated to the Agent by the terms thereof, together with such powers
and discretion as are reasonably incidental thereto; and (e) agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of the Credit Agreement are required to be performed by it as a Bank.
4. The Designee hereby appoints [Designating Lender or a
specified branch or affiliate of Designating Lender] as Designee's agent and
attorney in fact and grants to [Designating Lender or a specified branch or
affiliate of Designating Lender] an irrevocable power of attorney to receive
payments made for the benefit of Designee under the Credit Agreement, to deliver
and receive all communications and notices under the Credit Agreement and other
related documents and to exercise on Designee's behalf all rights to vote and to
<PAGE> 118
2
grant and make approvals, waivers, consents of amendments to or under the Credit
Agreement or other related documents. Any document executed by such agent on the
Designee's behalf in connection with the Credit Agreement or other related
documents shall be binding on the Designee. The Obligors, the Agent and each of
the Banks may rely on and are beneficiaries of the preceding provisions.
5. Following the execution of this Designation Agreement by
the Designating Lender, its Designee and the Obligors, it will be delivered to
the Agent for acceptance and recording by the Agent. The effective date for this
Designation Agreement (the "Effective Date") shall be the date of acceptance
hereof by the Agent, unless otherwise specified on the signature page thereto.
6. Each of the Obligors and each of the Designating Lender and
the Agent hereby (i) acknowledges that the Designee is relying on the
non-petition provisions of subsection 11.22 of the Credit Agreement as agreed to
by all signatories thereto and (ii) reaffirms that it will not institute against
the Designee or join any other Person in instituting against the Designee any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under any federal or state bankruptcy or similar law for one year and one day
after the payment in full of the latest maturing commercial paper note issued by
the Designee.
7. The Designating Lender unconditionally agrees to pay or
reimburse the Designee and save the Designee harmless against all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
or asserted by any of the parties to the Credit Agreement against the Designee,
in its capacity as such, in any way relating to or arising out of this Agreement
or the Credit Agreement or any action taken or omitted by the Designee hereunder
or thereunder, provided that the Designating Lender shall not be liable to the
Designee for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements if the
same results from the Designee's gross negligence or willful misconduct.
8. Upon such acceptance and recording by the Agent, as of the
Effective Date, the Designee shall be a party to the Credit Agreement with a
right to make Committed Loans and/or Competitive Bid Loans as a Designated
Lender pursuant to subsections 2.3(c) and 2.5(i), respectively, of the Credit
Agreement and the rights and obligations of a Designated Lender related thereto;
provided, however, that the Designee shall not be required to make payments with
respect to such obligations except to the extent of excess cash flow of the
Designee which is not otherwise required to repay obligations of the Designee
Lender which are then due and payable. Notwithstanding the foregoing, the
Designating Lender shall be and remain obligated to the Obligors, the Agent and
the Banks for each and every of the obligations of the Designee and the
Designating Lender with respect to the Credit Agreement, including, without
limitation, any indemnification obligations under subsection 3.3 of the Credit
Agreement and any sums otherwise payable to the Obligors by the Designee.
9. This Designation Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
<PAGE> 119
3
10. This Designation Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Designation Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart of this Designation Agreement.
<PAGE> 120
4
IN WITNESS WHEREOF, the Designating Lender and the Designee
intending to be legally bound, have caused this Designation Agreement to be
executed by their officer thereunto duly authorized as of the date first above
written.
[NAME OF DESIGNATING LENDER],
as Designating Lender
By:
-------------------------------
Name:
Title:
[NAME OF DESIGNEE],
as Designee
By:
-------------------------------
Name:
Title:
Lending Office and address for notices:
Agreed to and accepted by:
UNITED DOMINION INDUSTRIES LIMITED
By:
-------------------------------
Name:
Title:
Agreed to and accepted as of this ____ day
of __________, 199_, by:
UNITED DOMINION INDUSTRIES, INC.
By:
-------------------------------
Name:
Title:
Agreed to and accepted as of this ____ day
of __________, 199_, by:
<PAGE> 121
5
UNITED DOMINION HOLDINGS, INC.
By:
---------------------------------
Name:
Title:
Agreed to and accepted as of this ____ day
of __________, 199_, by:
ROYAL BANK OF CANADA,
as Agent
By:
---------------------------------
Name:
Title:
Effective Date (if other than the date of
acceptance by the Agent): _________ __, ____
