<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
Mark One
X QUARTERLY REPORT UNDER SECTION 13 OR 15 (D)
--- OF THE SECURITIES AND EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1996.
TRANSITION REPORT PURSUANT TO SECTION 13 OR
--- 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _____________________ to _______________________
Commission File Number 1-2677
QUAKER STATE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 25-0742820
(State or other jurisdiction of (IRS Employer
incorporation of organization) Identification No.)
225 East John Carpenter Freeway
Irving, Texas 75062
(Address of Principal Executive Offices)
(Zip Code)
(214)868-0400
(Registrant's telephone number, including area code)
Not applicable
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
----- -----
As of April 30, 1996, 32,885,694 shares of Capital Stock, par value
$1.00 per share, of the registrant were outstanding.
<PAGE> 2
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
Quaker State Corporation and Subsidiaries
<TABLE>
<CAPTION>
Quarter ended March 31 1996 1995
- --------------------------------------------------------------------------------------
(in thousands except per share data, unaudited)
<S> <C> <C>
REVENUES
Sales and operating revenues $ 278,781 $ 239,533
Other, net 2,026 3,795
- --------------------------------------------------------------------------------------
TOTAL REVENUES 280,807 243,328
COSTS AND EXPENSES
Cost of sales and operating costs 187,112 171,078
Selling, general and administrative 73,672 56,015
Depreciation and amortization 8,399 6,878
Interest 2,168 1,536
- --------------------------------------------------------------------------------------
TOTAL COSTS AND EXPENSES 271,351 235,507
- --------------------------------------------------------------------------------------
Pretax income from continuing operations 9,456 7,821
Provision for income taxes 3,750 3,600
- --------------------------------------------------------------------------------------
Income from continuing operations 5,706 4,221
Income from discontinued operations - 1,375
- --------------------------------------------------------------------------------------
NET INCOME $ 5,706 $ 5,596
======================================================================================
PER SHARE:
Income from continuing operations $ 0.17 $ 0.13
Income from discontinued operations - 0.05
- --------------------------------------------------------------------------------------
NET INCOME PER SHARE $ 0.17 $ 0.18
======================================================================================
WEIGHTED AVERAGE SHARES OUTSTANDING 32,896 31,586
======================================================================================
DIVIDENDS PAID PER SHARE $ 0.10 $ 0.10
======================================================================================
</TABLE>
The accompanying notes are an integral part of the financial statements.
1
<PAGE> 3
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
Quaker State Corporation and Subsidiaries
<TABLE>
<CAPTION>
Quarter ended March 31 1996 1995
- ---------------------------------------------------------------------------------------
(in thousands, unaudited)
<S> <C> <C>
NET CASH USED IN OPERATING ACTIVITIES $ (988) $ (8,171)
- ---------------------------------------------------------------------------------------
CASH FLOW FROM INVESTING ACTIVITIES
Proceeds from disposal of property and equipment 37 2,239
Capital expenditures (16,752) (7,013)
Other, net (1,827) -
- ---------------------------------------------------------------------------------------
NET CASH USED IN INVESTING ACTIVITIES (18,542) (4,774)
- ---------------------------------------------------------------------------------------
CASH FLOW FROM FINANCING ACTIVITIES
Dividends paid (3,284) (3,149)
Proceeds from long-term debt 175 404
Payments on long-term debt (3,087) (883)
- ---------------------------------------------------------------------------------------
NET CASH USED IN FINANCING ACTIVITIES (6,196) (3,628)
- ---------------------------------------------------------------------------------------
Net decrease in cash and cash equivalents (25,726) (16,573)
Cash and cash equivalents at beginning of period 30,659 29,805
- ---------------------------------------------------------------------------------------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 4,933 $ 13,232
=======================================================================================
</TABLE>
The accompanying notes are an integral part of the financial statements.
2
<PAGE> 4
CONDENSED CONSOLIDATED BALANCE SHEETS
Quaker State Corporation and Subsidiaries
<TABLE>
<CAPTION>
3/31/96 12/31/95
- ------------------------------------------------------------------------------------------------------
(in thousands except share data) (UNAUDITED)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 4,933 $ 30,659
Accounts and notes receivable, net 155,676 129,267
Inventories 86,387 80,284
Other current assets 41,403 36,796
- ------------------------------------------------------------------------------------------------------
Total current assets 288,399 277,006
- ------------------------------------------------------------------------------------------------------
Property, plant and equipment, net of accumulated
depreciation of $217,652 and $210,851 211,974 203,259
Other assets 232,788 236,758
- ------------------------------------------------------------------------------------------------------
TOTAL ASSETS $ 733,161 $ 717,023
======================================================================================================
LIABILITIES
Current liabilities:
Accounts payable $ 71,967 $ 53,465
Accrued liabilities 85,142 84,225
Installments on long-term debt 7,207 7,243
- ------------------------------------------------------------------------------------------------------
Total current liabilities 164,316 144,933
- ------------------------------------------------------------------------------------------------------
Long-term debt, less current installments 115,643 118,519
Other long-term liabilities 178,185 181,416
- ------------------------------------------------------------------------------------------------------
Total liabilities 458,144 444,868
- ------------------------------------------------------------------------------------------------------
STOCKHOLDERS' EQUITY
Capital stock, $1.00 par value; authorized shares, 95,000,000;
issued shares, 32,858,094 at 3/31/96 and
32,824,157 at 12/31/95 32,858 32,824
Additional capital 139,512 139,068
Retained earnings 105,827 103,519
Other, net (3,180) (3,256)
- ------------------------------------------------------------------------------------------------------
Total stockholders' equity 275,017 272,155
- ------------------------------------------------------------------------------------------------------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 733,161 $ 717,023
======================================================================================================
</TABLE>
The accompanying notes are an integral part of the financial statements.
3
<PAGE> 5
SEGMENT INFORMATION
Quaker State Corporation and Subsidiaries
Sales and operating revenues and contribution
to income from continuing operations by industry segment:
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------
Quarter ended March 31 1996 1995
- ------------------------------------------------------------------------------------
(in thousands, unaudited)
<S> <C> <C>
OPERATING REVENUES
Lubricant and Lubricant Services $ 254,522 $ 213,077
Truck-Lite 23,530 25,683
Docks 729 773
- ------------------------------------------------------------------------------------
Total sales and operating revenues $ 278,781 $ 239,533
====================================================================================
OPERATING PROFITS
Lubricant and Lubricant Services $ 14,480 $ 8,009
Truck-Lite 2,010 3,779
Docks 181 205
- ------------------------------------------------------------------------------------
TOTAL OPERATING PROFITS 16,671 11,993
- ------------------------------------------------------------------------------------
Interest expense (2,168) (1,536)
Corporate other income 751 1,640
General corporate expense (5,798) (4,276)
- ------------------------------------------------------------------------------------
PRETAX INCOME $ 9,456 $ 7,821
====================================================================================
</TABLE>
The accompanying notes are an integral part of the financial statements.
4
<PAGE> 6
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Quaker State Corporation and Subsidiaries (unaudited)
1. In the opinion of management of Quaker State Corporation (the company), the
accompanying financial statements include all adjustments which are
necessary for a fair statement of the results for such periods. All of
these adjustments are of a normal recurring nature. The December 31, 1995
condensed consolidated balance sheet data was derived from audited
financial statements, but does not include all disclosures required by
generally accepted accounting principals. These statements should be read
in conjunction with the financial statements included as part of the 1995
Annual Report on Form 10-K.
As of January 1, 1996, the company began reporting Q Lube results as a
component of its core lubricant and lubricant services businesses. Prior
to that, Q Lube had been reported as a separate segment.
2. The effective tax rate of 40% for continuing operations is higher than the
35% federal rate due to the added impact of state and foreign taxes and
nondeductible intangible asset amortization.
3. In March 1995, the Financial Accounting Standards Board issued Standard No.
121 "Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to be Disposed Of" which establishes accounting standards for the
impairment of long-lived assets, certain identifiable intangibles, and
goodwill related to those assets to be held and used, and for long-lived
assets and certain identifiable intangibles to be disposed of. Effective
January 1, 1996, the company adopted the provisions of this accounting
standard. There was no significant impact on the financial statements, as
a result of adopting this accounting standard.
4. The following schedule is prepared on a pro forma basis as though Slick 50
had been acquired and the company's Natural Gas Exploration and Production
Division had been sold as of the beginning of 1995, after including the
impact of adjustments, such as amortization of intangible assets,
intercompany sales elimination and related tax effects.
<TABLE>
<CAPTION>
For the quarter ended March 31, 1995 (in thousands except per share data)
- --------------------------------------------------------------------------------
<S> <C>
Revenues $260,813
Income from continuing operations $ 4,716
Income per share from continuing operations $ .14
- --------------------------------------------------------------------------------
</TABLE>
The pro forma results are not necessarily indicative of what would have
occurred if the acquisition and disposition had been in effect for the
periods presented. In addition, they are not intended to be a projection
of future results.
5. Inventories are stated at the lower of cost or market. Cost is determined
on the last-in, first-out (LIFO) basis for all crude oil, the majority of
company refined petroleum and vehicular lighting products; and on the
first-in, first-out (FIFO) basis for other inventories. The reserve to
reduce the carrying value of inventories from FIFO basis to LIFO basis
amounted to $20.8 million at March 31, 1996 and $18.9 million at December
31, 1995. Inventories consist of:
<TABLE>
<CAPTION>
(in thousands) 3/31/96 12/31/95
- --------------------------------------------------------------------------------
<S> <C> <C>
Crude Oil $ 4,190 $ 4,718
Finished and in-process petroleum products 58,409 51,658
Other 23,788 23,908
- --------------------------------------------------------------------------------
Total $ 86,387 $ 80,284
================================================================================
</TABLE>
5
<PAGE> 7
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Quaker State Corporation and Subsidiaries (unaudited)
6. In December 1993, the United States commenced a lawsuit against the company
in the U.S. District Court for the Northern District of West Virginia. The
complaint alleges the company violated the federal Resource Conservation
and Recovery Act and the federal Clean Air Act at the Congo refinery on
various dates starting in 1980 and seeks civil penalties not to exceed
$25,000 per day for each violation. The company is involved in settlement
discussions on this matter.
In addition, the company has received notices from the EPA and others that
it is a "potentially responsible party" relative to certain waste disposal
sites identified by the EPA and may be required to share in the cost of
cleanup. The company has accrued for all matters which are probable and
can be reasonably estimated.
Contingent liabilities of an indeterminate amount exist in connection with
suits and claims arising in the ordinary course of business.
In the opinion of management, all matters discussed above are adequately
accrued for or covered by insurance, or, if not so provided for, are
without merit or the disposition is not anticipated to have a material
effect on the company's financial position; however, one or more of these
matters could have a material effect on future quarterly or annual results
of operations when resolved.
7. On April 17, 1996, the company replaced its $45 million line of credit with
a $90 million Credit Agreement. The Credit Agreement provides for loans from
time to time not in excess of $90 million outstanding at any time, and
provides for various interest rate elections by the company. The Credit
Agreement expires April 17, 2001.
8. On April 24, 1996, the company announced it had a preliminary agreement to
acquire Blue Coral, Inc. (Blue Coral) for a combination of cash and stock
and the assumption of certain debt. Blue Coral is a leading manufacturer,
marketer and distributor of high quality automotive appearance products.
The transaction, valued in excess of $100 million, is expected to close in
the second quarter of 1996 subject to the execution of a definitive
agreement and completion of customary closing conditions including normal
regulatory approvals.
6
<PAGE> 8
Item 2. Management's Discussion and Analysis of Results of Operations and
Financial Condition
The condensed consolidated financial statements, segment information and
related notes for Quaker State Corporation (the company) included in this Form
10-Q, should be read as an integral part of this analysis.
The company reported net income of $5.7 million or $.17 per share for the
quarter ended March 31, 1996, compared to net income of $5.6 million or $.18
per share for the quarter ended March 31, 1995. The quarter ended March 31,
1995 included $1.4 million, or $.05 per share, of income from the discontinued
Natural Gas Exploration and Production Division. The weighted average shares
of capital stock outstanding for the quarter ended March 31, 1996 increased
over 1,300,000 shares compared to the quarter ended March 31, 1995, primarily
as a result of issuing shares in connection with the acquisition of Slick 50,
Inc. (Slick 50) in July 1995. Sales and operating revenues from continuing
operations were $278.8 million for the quarter ended March 1, 1996, up $39.3
million from $239.5 million for the quarter ended March 31, 1995. Sales and
operating revenues include $24.3 million from Slick 50 for the quarter ended
March 31, 1996. Operating profit from continuing operations for the quarter
ended March 31, 1996, increased 39% to $16.7 million from $12 million for the
quarter ended March 31, 1995.
Lubricant and lubricant services operating profit was $14.5 million for the
quarter ended March 31, 1996, up 81% compared to $8 million for the quarter
ended March 31, 1995. Revenues for the quarter ended March 31, 1996 were
$254.5 million, up $41.5 million from $213 million for the quarter ended March
31, 1995. Branded and private label motor oil sales volumes increased 4% and
18%, respectively, for the quarter ended March 31, 1996. Refinery product
margins improved as a result of higher sales prices for base stocks, gasoline
and fuel oil. Car counts were up 8% and the average ticket price was up 5% at
the company's Q Lube operations. As of January 1, 1996, the company began
reporting Q Lube results as a component of its core lubricant and lubricant
services businesses. Prior to that, Q Lube had been reported as a separate
segment.
Truck-Lite operating profit for the quarter ended March 31, 1996 was $2
million, down 47% compared to $3.8 million for the quarter ended March 31,
1995. Revenues were down $2.2 million to $23.5 million from $25.7 million for
the quarter ended March 31, 1995. Truck-Lite continues to suffer from
softening of the overall automotive and truck markets.
For the quarter ended March 31, 1996, corporate income was $751,000 compared to
$1.6 million for the quarter ended March 31, 1995. The decrease is primarily
due to additional royalty income received in 1995. Interest expense increased
for the quarter ended March 31, 1996 as a result of the issuance of $100
million of Notes in October 1995. Corporate expenses increased to $5.8 million
from $4.3 million for the quarter ended March 31, 1995, due to the increased
benefit and lease costs and higher than expected transition costs.
The effective tax rate of 40% for continuing operations is higher than the 35%
federal rate due to the added impact of state and foreign taxes and
nondeductible intangible asset amortization.
7
<PAGE> 9
Management's Discussion and Analysis of Results of Operations and Financial
Condition, continued
The company has a preliminary agreement to acquire Blue Coral, Inc. (Blue
Coral) for a combination of cash and stock and the assumption of certain debt.
Blue Coral is a leading manufacturer, marketer and distributor of high quality
automotive appearance products. The transaction, valued in excess of $100
million, is expected to close in the second quarter of 1996 subject to the
execution of a definitive agreement and completion of customary closing
conditions including normal regulatory approvals.
On April 17, 1996, the company replaced its $45 million line of credit with a
$90 million Credit Agreement. The Credit Agreement provides for loans from time
to time not in excess of $90 million outstanding at any time, and provides for
various interest rate elections by the company. The Credit Agreement expires
April 17, 2001.
Cash and cash equivalents decreased by $25.7 million over the quarter ended
March 31, 1996. The decrease was comprised of $1 million net cash used in
operations, $18.5 million net cash used in investing activities and $6.2
million net cash used in financing activities. Cash used in operations was
impacted by additional working capital requirements and cash paid in connection
with the 1995 restructuring program.
Cash used in investing activities of $18.5 million was primarily due to $16.8
million of capital expenditures. Cash used in financing activities of $6.2
million was primarily due to $3.3 million payment of dividends and $3 million
of debt payments.
In March 1995, the Financial Accounting Standards Board issued Standard No.
121, "Accounting for the Impairment of Long- Lived Assets and for Long-Lived
Assets to be Disposed Of" which establishes accounting standards for the
impairment of long-lived assets, certain identifiable intangibles, and goodwill
related to those assets to be held and used and for long-lived assets and
certain identifiable intangibles to be disposed of. The company adopted this
standard effective January 1, 1996. There was no significant impact on the
company's financial statements.
8
<PAGE> 10
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
In its annual report on Form 10-K for the year ending December 31, 1995, Quaker
State Corporation ("Quaker State") reported that, in April 1994, Lazy Oil, Inc.
commenced a class action in the Federal District Court for the Western District
of Pennsylvania against Witco Corporation, Quaker State and Pennzoil Company.
Three similar actions were subsequently commenced and were consolidated with the
original action. The Consolidated Amended Complaint alleges violations of
Section 1 of the Sherman Act, based upon an allegation that the defendants,
since at least January 1, 1981, conspired and combined to fix, lower, maintain,
and stabilize the price of Pennsylvania grade crude oil purchased from the
plaintiffs and others. In December 1995, the plaintiffs and Quaker State entered
into a Settlement Agreement compromising and settling all claims against Quaker
State in the class action. Pursuant to the Settlement Agreement, Quaker State
has paid $4,400,000 into a settlement fund, subject to return of up to
$2,400,000 if at any time before a jury is impaneled another defendant reaches a
more favorable settlement with the plaintiffs. A hearing on preliminary
approval by the Court of the settlement was held in March 1996, and a final
hearing on approval of the settlement is scheduled to be held in June 1996.
Item 5. Other information
On April 24, 1996, Quaker State announced that it had reached preliminary
agreement to acquire Blue Coral, Inc., a manufacturer, marketer and distributor
of automotive appearance products. The consideration for the acquisition will
be a combination of cash, stock, and assumption by Quaker State of certain
outstanding indebtedness of Blue Coral, Inc. Completion of the transaction is
subject to the execution of definitive agreements and satisfaction of certain
closing conditions, including normal regulatory approvals.
In April 1996, Quaker State entered into a Credit Agreement with a group of
Banks including Morgan Guaranty Trust Company of New York as agent for the
Banks. The Credit Agreement provides for loans from time to time not in excess
of $90 million outstanding at any time, and provides for various interest rate
elections by Quaker State. The Credit Agreement has an expiration date of
April 17, 2001.
Item 6. Exhibits and Reports on Form 8-K
(a) 2. Press Release dated April 24, 1996, concerning acquisition of
Blue Coral, Inc., filed herewith.
10. $90 million Credit Agreement dated as of April 17, 1996, among
Quaker State, the Banks listed therein and Morgan Guaranty Trust
Company of New York, as agent for the Banks, filed herewith.
11. Computation of net income per share for the quarters ending March
31, 1996 and March 31, 1995, filed herewith.
27. Financial Data Schedule, filed herewith.
(b) No current reports on Form 8-K were filed by Quaker State during the
quarter ending March 31, 1996.
9
<PAGE> 11
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
QUAKER STATE CORPORATION
(Registrant)
Date 5/14/96 By /s/ Herbert M. Baum
----------------- -----------------------------------
Herbert M. Baum
Chairman of the Board and
Chief Executive Officer
Date 5/14/96 By /s/ C. A. Conrad
----------------- -----------------------------------
Conrad A. Conrad
Vice Chairman and
Chief Financial Officer
10
<PAGE> 12
QUAKER STATE CORPORATION
EXHIBIT LIST
The following Exhibits are required to be filed with this quarterly
report on Form 10-Q.
Exhibit No. and Document
2. Press Release dated April 24, 1996 concerning the acquisition
of Blue Coral, Inc., filed herewith.
10. $90 million Credit Agreement dated as of April 17, 1996, among
Quaker State Corporation, the Banks listed therein and Morgan
Guaranty Trust Company of New York, as agent for the Banks,
filed herewith.
11. Computation of Net Income Per Share for the quarters ended
March 31, 1996 and 1995, filed herewith.
27. Financial Data Schedule, filed herewith.
11
<PAGE> 1
EXHIBIT 2
[QUAKER STATE LOGO]
For More Information:
Stephen D. Blum
Vice President - Corporate Relations
Office: (214) 868-0438
Home: (214) 869-9474
FOR IMMEDIATE RELEASE
QUAKER STATE TO ACQUIRE BLUE CORAL, INC.
IRVING, TX, April 24 1996 -- Quaker State Corporation (NYSE:KSF) today
announced that it has reached preliminary agreement to acquire Blue Coral,
Inc., a leading manufacturer, marketer and distributor of a full range of
high-quality automotive appearance products.
"This acquisition represents significant strategic progress for the New
Quaker State," said Quaker State Chairman and Chief Executive Officer Herbert M.
Baum. "Blue Coral not only will broaden our portfolio of higher-margin
automotive products, but also will make Quaker State a more valued supplier to
its customers. This acquisition fits perfectly with our consistently stated
corporate mission to actively pursue businesses that capitalize on our strong
sales, distribution and customer service competencies in the automotive
aftermarket."
Quaker State will acquire Blue Coral for a combination of cash and stock,
plus the assumption of certain outstanding indebtedness. The transaction, valued
in excess of $100 million, is subject to execution of definitive agreements and
completion of customary closing conditions, including normal regulatory
approvals.
(More)
<PAGE> 2
QUAKER STATE TO ACQUIRE BLUE CORAL, INC.
Page 2
Blue Coral, headquartered in Cleveland, Ohio, is a privately held company
with 1995 annual sales of approximately $100 million. Its consumer products are
among the market leaders in major automotive appearance product categories,
specifically wax/polish, car wash and tire care. The Blue Coral Consumer
Products Division has doubled its sales since 1993. Leading brands include the
Blue Coral(R) line of car washes, surface protectants, and interior treatments;
Westley's(R) Bleche-Wite(R), America's best-selling tire cleaner; Black
Magic(TM) Protectant and Tire Dressing; Touchless Acrylic(TM) Restoration
Coating; and Espree(R) line of wheel cleaners.
Another division, Blue Coral Systems, is the largest supplier to the
professional and commercial car wash industry, selling to and servicing more
than 8,000 customers, including: full service and exterior conveyor operators,
self-serve automatic car washes, free-standing detail shops, and new and
used-car dealerships. In addition, Blue Coral Systems provides products and
services to the 35,000 self-serve, oil company-owned car wash systems.
Blue Coral's NicSand division manufactures and distributes a full line of
automotive application products under the Blue Coral brand name, such as
brushes, sponges, bonnets, sanding sheets and buffeting pads.
Blue Coral International, whose major markets include the UK, France,
Japan, Scandinavia and Australia, was the company's fastest-growing division
this past year. Continued growth is expected as Blue Coral's high-quality line
of value-added products is introduced to new international markets.
(More)
<PAGE> 3
QUAKER STATE TO ACQUIRE BLUE CORAL, INC.
Page 3
Baum added: "Blue Coral will be an excellent addition to Quaker State. Its
brands are popular and profitable. It is a high value-added business that suits
our margin-growth strategy very well. And we are most excited by the prospects
of greater synergies and added leverage in sales and distribution of the Blue
Coral and Slick 50 brands as we broaden Quaker State's reach into the
automotive consumer products aftermarket."
"We are eager to become part of Quaker State," said Sheldon G. Adelman,
chairman and chief executive officer of Blue Coral, Inc. "Our brands and our
businesses complement each other, and we share a commitment to quality and
customer service." Adelman will be vice chairman of Quaker State following the
acquisition, responsible for the Blue Coral and Slick 50 units of Quaker State.
Quaker State Corporation is principally a producer of motor oil and
lubricants, both branded and private label, and a marketer of products and
services in the automotive aftermarket. Operating divisions manufacture safety
lighting equipment for cars and trucks and market a full range of high-quality
automotive chemical treatment products.
QQQ
<PAGE> 1
Exhibit 10
[CONFORMED COPY]
$90,000,000
CREDIT AGREEMENT
dated as of
April 17, 1996
among
Quaker State Corporation,
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Agent
_________________________
J.P. Morgan Securities Inc.
as Arranger
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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Page
<S> <C>
ARTICLE 1
DEFINITIONS
1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Accounting Terms and Determinations . . . . . . . . . . . . . . . . . . 14
1.3. Types of Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 2
THE CREDITS
2.1. Commitments to Lend . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.2. Notice of Committed Borrowing . . . . . . . . . . . . . . . . . . . . . 16
2.3. Money Market Borrowings . . . . . . . . . . . . . . . . . . . . . . . . 16
2.4. Notice to Banks; Funding of Loans . . . . . . . . . . . . . . . . . . . 20
2.5. Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.6. Maturity of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.7. Interest Rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.8. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.9. Optional Termination or Reduction of Commitments . . . . . . . . . . . . 26
2.10. Method of Electing Interest Rates . . . . . . . . . . . . . . . . . . . 26
2.11. Mandatory Termination of Commitments . . . . . . . . . . . . . . . . . 28
2.12. Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.13. General Provisions as to Payments . . . . . . . . . . . . . . . . . . . 29
2.14. Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.15. Computation of Interest and Fees . . . . . . . . . . . . . . . . . . . 30
2.16. Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE 3
CONDITIONS
3.1. Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.2. Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1. Corporate Existence and Power . . . . . . . . . . . . . . . . . . . . 33
4.2. Corporate and Governmental Authorization; No Contravention . . . . . . 33
4.3. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.4. Financial Information . . . . . . . . . . . . . . . . . . . . . . . . 33
</TABLE>
i
<PAGE> 3
<TABLE>
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Page
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4.5. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.6. Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.7. Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.8. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.9. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.10. Regulatory Restrictions on Borrowing . . . . . . . . . . . . . . . . . 35
4.11. Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE 5
COVENANTS
5.1. Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5.2. Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . 38
5.3. Maintenance of Property; Insurance . . . . . . . . . . . . . . . . . . 38
5.4. Conduct of Business and Maintenance of Existence . . . . . . . . . . . 39
5.5. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.6. Inspection of Property, Books and Records . . . . . . . . . . . . . . 39
5.7. Mergers and Sales of Assets . . . . . . . . . . . . . . . . . . . . . . 40
5.8. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.9. Negative Pledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.10. Debt to Total Capital . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.11. Debt of Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.12. Fixed Charge Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . 42
5.13. Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE 6
DEFAULTS
6.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.2. Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE 7
THE AGENT
7.1. Appointment and Authorization . . . . . . . . . . . . . . . . . . . . . 45
7.2. Agent and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.3. Action by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.4. Consultation with Experts . . . . . . . . . . . . . . . . . . . . . . . 45
7.5. Liability of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.6. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.7. Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.8. Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.9. Agent's Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE 8
CHANGE IN CIRCUMSTANCES
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
8.1. Basis for Determining Interest Rate Inadequate or Unfair . . . . . . . 47
8.2. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
8.3. Increased Cost and Reduced Return . . . . . . . . . . . . . . . . . . . 49
8.4. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
8.5. Base Rate Loans Substituted for Affected Fixed Rate Loans . . . . . . . 52
ARTICLE 9
MISCELLANEOUS
9.1. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.2. No Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.3. Expenses; Indemnification . . . . . . . . . . . . . . . . . . . . . . . 54
9.4. Sharing of Set-Offs . . . . . . . . . . . . . . . . . . . . . . . . . . 54
9.5. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . 55
9.6. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . 55
9.7. Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
9.8. Governing Law; Submission to Jurisdiction . . . . . . . . . . . . . . . 57
9.9. Counterparts; Integration; Effectiveness . . . . . . . . . . . . . . . 57
9.10. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . 58
9.11. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Pricing Schedule
Schedule 4.6 - Certain ERISA Liabilities
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of Counsel for the Borrower
Exhibit F - Opinion of Special Counsel for the Agent
Exhibit G - Assignment and Assumption Agreement
</TABLE>
iii
<PAGE> 5
AGREEMENT dated as of April 17, 1996 among QUAKER STATE
CORPORATION, the BANKS listed on the signature pages hereof and MORGAN GUARANTY
TRUST COMPANY OF NEW YORK, as Agent.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used
herein, have the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market
Quotes setting forth Money Market Absolute Rates pursuant to Section 2.3.
"Adjusted CD Rate" has the meaning set forth in Section
2.7(b).
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.7(c).
"Administrative Questionnaire" means, with respect to each
Bank, an administrative questionnaire in the form prepared by the Agent and
submitted to the Agent (with a copy to the Borrower) duly completed by such
Bank.
"Affiliate" means (i) any Person that directly, or indirectly
through one or more intermediaries, controls the Borrower (a "Controlling
Person") or (ii) any Person (other than the Borrower or a Subsidiary) which is
controlled by or is under common control with a Controlling Person. As used
herein, the term "control" means possession, directly or indirectly, of the
power to vote 10% or more of any class of voting securities of a Person or to
direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
"Agent" means Morgan Guaranty Trust Company of New York in its
capacity as agent for the Banks hereunder, and its successors in such capacity.
"Applicable Lending Office" means, with respect to any Bank,
(i) in the case of its Domestic Loans, its
<PAGE> 6
Domestic Lending Office, (ii) in the case of its Euro-Dollar Loans, its
Euro-Dollar Lending Office and (iii) in the case of its Money Market Loans, its
Money Market Lending Office.
"Assessment Rate" has the meaning set forth in Section 2.7(b).
"Assignee" has the meaning set forth in Section 9.6(c).
"Bank" means each bank listed on the signature pages hereof,
each Assignee which becomes a Bank pursuant to Section 9.6(c), and their
respective successors.
"Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus
the Federal Funds Rate for such day.
"Base Rate Loan" means (i) a Committed Loan which bears
interest at the Base Rate pursuant to the applicable Notice of Committed
Borrowing or Notice of Interest Rate Election or the provisions of Article 8 or
(ii) an overdue amount which was a Base Rate Loan immediately before it became
overdue.
"Benefit Arrangement" means at any time an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrower" means Quaker State Corporation, a Delaware
corporation, and its successors.
"Borrower's 1995 Form 10-K" means the Borrower's annual report
on Form 10-K for 1995, as filed with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934.
"Borrowing" has the meaning set forth in Section 1.3.
"CD Base Rate" has the meaning set forth in Section 2.7(b).
"CD Loan" means (i) a Committed Loan which bears interest at a
CD Rate pursuant to the applicable Notice of Committed Borrowing or Notice of
Interest Rate Election or (ii) an overdue amount which was a CD Loan
immediately before it became overdue.
2
<PAGE> 7
"CD Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
"CD Rate" means a rate of interest determined pursuant to
Section 2.7(b) on the basis of an Adjusted CD Rate.
"CD Reference Banks" means Texas Commerce Bank National
Association, NationsBank of Texas, N.A. and Morgan Guaranty Trust Company of
New York.
"Closing Date" means the date on or after the Effective Date
on which the Agent shall have received the documents specified in or pursuant
to Section 3.1.
"Commitment" means, with respect to each Bank, the amount set
forth opposite the name of such Bank on the signature pages hereof, as such
amount may be reduced from time to time pursuant to Section 2.9.
"Committed Loan" means a loan made by a Bank pursuant to
Section 2.1; provided that, if any such loan or loans (or portions thereof) are
combined or subdivided pursuant to a Notice of Interest Rate Election, the term
"Committed Loan" shall refer to the combined principal amount resulting from
such combination or to each of the separate principal amounts resulting from
such subdivision, as the case may be.
"Consolidated Debt" means at any date the Debt of the Borrower
and its Consolidated Subsidiaries, determined on a consolidated basis as of
such date.
"Consolidated EBITDA" means, for any fiscal period,
Consolidated Net Income for such period plus, to the extent deducted in
determining Consolidated Net Income for such period, the aggregate amount of
(i) Consolidated Interest Expense, (ii) income tax expense and (iii)
depreciation, amortization and other similar non-cash charges.
"Consolidated Interest Expense" means, for any period, the
interest expense of the Borrower and its Consolidated Subsidiaries determined
on a consolidated basis for such period.
"Consolidated Net Income" means, for any fiscal period, the
net income of the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis for such period, exclusive of the effect of any
extraordinary or other non-recurring gain (but not loss).
3
<PAGE> 8
"Consolidated Rental Expense" means, for any period, the
aggregate rental expense of the Borrower and its Consolidated Subsidiaries
determined on a consolidated basis for such period.
"Consolidated Stockholders' Equity" means at any date
consolidated stockholders' equity of the Borrower and its Consolidated
Subsidiaries at such date.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which would be consolidated with those of the
Borrower in its consolidated financial statements if such statements were
prepared as of such date.
"Consolidated Tangible Net Worth" means at any date the
Consolidated Stockholders' Equity less consolidated Intangible Assets, all
determined as of such date. For purposes of this definition "Intangible
Assets" means the amount (to the extent reflected in determining such
Consolidated Stockholders' Equity) of (i) all write-ups (other than write-ups
resulting from foreign currency translations and write-ups of assets of a going
concern business made within twelve months after the acquisition of such
business) subsequent to December 31, 1995 in the book value of any asset owned
by the Borrower or a Consolidated Subsidiary, (ii) all Investments in
unconsolidated Subsidiaries and all equity investments in Persons which are not
Subsidiaries and (iii) all unamortized debt discount and expense, unamortized
deferred charges, goodwill, patents, trademarks, service marks, trade names,
anticipated future benefit of tax loss carry-forwards, copyrights, organization
or developmental expenses and other intangible assets.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee which are
capitalized in accordance with generally accepted accounting principles, (v)
all non-contingent obligations (and, for purposes of Section 5.9 and the
definitions of Material Debt and Material Financial Obligations, all contingent
obligations) of such Person to reimburse any bank or other Person in respect of
amounts paid under a letter of credit or similar instrument, (vi) all Debt
secured by a Lien on any asset of such Person, whether or not such Debt is
otherwise an
4
<PAGE> 9
obligation of such Person and (vii) all Debt of others Guaranteed by such
Person.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Derivatives Obligations" of any Person means all obligations
of such Person in respect of any rate swap transaction, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity index
swap, equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency
option or any other similar transaction (including any option with respect to
any of the foregoing transactions) or any combination of the foregoing
transactions.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in New York City are authorized
by law to close.
"Domestic Lending Office" means, as to each Bank, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Domestic Lending Office)
or such other office as such Bank may hereafter designate as its Domestic
Lending Office by notice to the Borrower and the Agent; provided that any Bank
may so designate separate Domestic Lending Offices for its Base Rate Loans, on
the one hand, and its CD Loans, on the other hand, in which case all references
herein to the Domestic Lending Office of such Bank shall be deemed to refer to
either or both of such offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in
Section 2.7(b).
"Effective Date" means the date this Agreement becomes
effective in accordance with Section 9.9.
"Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental
5
<PAGE> 10
restrictions relating to the environment, the effect of the environment on
human health or to emissions, discharges or releases of pollutants,
contaminants, Hazardous Substances or wastes into the environment including,
without limitation, ambient air, surface water, ground water, or land, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, Hazardous Substances or wastes or the clean-up or other
remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower or any Subsidiary, are treated as a single employer under Section 414
of the Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on
which commercial banks are open for international business (including dealings
in dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its
office, branch or affiliate located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative Questionnaire
as its Euro-Dollar Lending Office) or such other office, branch or affiliate of
such Bank as it may hereafter designate as its Euro-Dollar Lending Office by
notice to the Borrower and the Agent.
"Euro-Dollar Loan" means (i) a Committed Loan which bears
interest at a Euro-Dollar Rate pursuant to the applicable Notice of Committed
Borrowing or Notice of Interest Rate Election or (ii) an overdue amount which
was a Euro-Dollar Loan immediately before it became overdue.
"Euro-Dollar Margin" means a rate per annum determined in
accordance with the Pricing Schedule.
"Euro-Dollar Rate" means a rate of interest determined
pursuant to Section 2.7(c) on the basis of an Adjusted London Interbank Offered
Rate.
"Euro-Dollar Reference Banks" means the principal London
offices of Texas Commerce Bank National Association (or any of its affiliates),
NationsBank of Texas, N.A. and Morgan Guaranty Trust Company of New York.
6
<PAGE> 11
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.7(c).
"Event of Default" has the meaning set forth in Section 6.1.
"Existing Credit Agreement" means the Credit Agreement dated
as of September 29, 1995 among the Borrower, the banks party thereto and Morgan
Guaranty Trust Company of New York, as agent.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if such day is not a
Domestic Business Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Domestic Business Day as so
published on the next succeeding Domestic Business Day, and (ii) if no such
rate is so published on such next succeeding Domestic Business Day, the Federal
Funds Rate for such day shall be the average rate quoted to Morgan Guaranty
Trust Company of New York on such day on such transactions as determined by the
Agent.
"Fixed Charge Coverage Ratio" means, at any date, the ratio of
(i) the sum of (A) Consolidated EBITDA plus (B) Consolidated Rental Expense, in
each case for the four consecutive fiscal quarters of the Borrower and its
Consolidated Subsidiaries ending on such date to (ii) the sum of Consolidated
Interest Expense and Consolidated Rental Expense for such period.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or
Money Market Loans (excluding Money Market LIBOR Loans bearing interest at the
Base Rate pursuant to Section 8.1) or any combination of the foregoing.
"Group of Loans" means at any time a group of Loans consisting
of (i) all Committed Loans which are Base Rate Loans at such time, (ii) all
Euro-Dollar Loans having the same Interest Period at such time or (iii) all CD
Loans having the same interest period at such time, provided that, if a
Committed Loan of any particular Bank is converted to or made as a Base Rate
Loan pursuant to Article 8, such Loan shall be included in the same Group or
Groups of Loans from time to time as it would have been in if it had not been
so converted or made.
7
<PAGE> 12
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Debt (whether arising by virtue of partnership arrangements, by agreement
to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or
(ii) entered into for the purpose of assuring in any other manner the holder of
such Debt of the payment thereof or to protect such holder against loss in
respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Substances" means any toxic, radioactive, caustic
or otherwise hazardous substance, including petroleum, its derivatives,
by-products and other hydrocarbons, or any substance having any constituent
elements displaying any of the foregoing characteristics.
"Indemnitee" has the meaning set forth in Section 9.3(b).
"Interest Period" means: (1) with respect to each Euro-Dollar
Loan, the period commencing on the date of borrowing specified in the
applicable Notice of Borrowing or on the date specified in the applicable
Notice of Interest Rate Election and ending one, two, three or six months
thereafter, as the Borrower may elect in the applicable notice; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
8
<PAGE> 13
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(2) with respect to each CD Loan, the period commencing on
the date of borrowing specified in the applicable Notice of Borrowing or on the
date specified in the applicable Notice of Interest Rate Election and ending
30, 60, 90 or 180 days thereafter, as the Borrower may elect in the applicable
notice provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b) below) which would otherwise end on
a day which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(3) with respect to each Money Market LIBOR Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such whole number of months thereafter as the Borrower may
elect in accordance with Section 2.3; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(4) with respect to each Money Market Absolute Rate Loan, the
period commencing on the date of borrowing specified in the applicable Notice
of Borrowing and ending such number of days thereafter (but not less than 30
days)
9
<PAGE> 14
as the Borrower may elect in accordance with Section 2.3; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, or any successor statute.
"Investment" means any investment in any Person, whether by
means of share purchase, capital contribution, loan, Guarantee, time deposit or
otherwise (but not including any demand deposit).
"LIBOR Auction" means a solicitation of Money Market Quotes
setting forth Money Market Margins based on the London Interbank Offered Rate
pursuant to Section 2.3.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind. For the purposes
of this Agreement, the Borrower or any Subsidiary shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"Loan" means a Domestic Loan, a Euro-Dollar Loan or a Money
Market Loan and "Loans" means Domestic Loans, Euro-Dollar Loans or Money Market
Loans or any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.7(c).
"Material Adverse Effect" means (i) a material adverse effect
upon the business, financial position, results of operations or prospects of
the Borrower and its Consolidated Subsidiaries, considered as a whole or (ii)
an adverse effect on the rights and remedies of the Agent and the Banks
hereunder or under any Note.
"Material Debt" means Debt (other than the Notes) of the
Borrower and/or one or more of its Subsidiaries, arising in one or more related
or unrelated transactions, in
10
<PAGE> 15
an aggregate principal or face amount exceeding $10,000,000.
"Material Financial Obligations" means a principal or face
amount of Debt and/or payment or collateralization obligations in respect of
Derivatives Obligations of the Borrower and/or one or more of its Subsidiaries,
arising in one or more related or unrelated transactions, exceeding in the
aggregate $10,000,000.
"Material Plan" means at any time a Plan or Plans having
aggregate Unfunded Liabilities in excess of $10,000,000.
"Material Subsidiary" means, at any time, any Subsidiary of
the Borrower whose total revenues (or, in the case of a Subsidiary which has
subsidiaries, consolidated total revenues) as shown by the latest financial
statements delivered by the Borrower pursuant to Section 4.4(a), 5.1(a) or
5.1(b), as the case may be, are at least 15% of the consolidated total revenues
of the Borrower and its Consolidated Subsidiaries (as shown on such financial
statements) at such time.
"Money Market Absolute Rate" has the meaning set forth in
Section 2.3(d).
"Money Market Absolute Rate Loan" means a loan to be made by a
Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its
Domestic Lending Office or such other office, branch or affiliate of such Bank
as it may hereafter designate as its Money Market Lending Office by notice to
the Borrower and the Agent; provided that any Bank may from time to time by
notice to the Borrower and the Agent designate separate Money Market Lending
Offices for its Money Market LIBOR Loans, on the one hand, and its Money Market
Absolute Rate Loans, on the other hand, in which case all references herein to
the Money Market Lending Office of such Bank shall be deemed to refer to either
or both of such offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank
pursuant to a LIBOR Auction (including such a loan bearing interest at the Base
Rate pursuant to Section 8.1).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
11
<PAGE> 16
"Money Market Margin" has the meaning set forth in Section
2.3(d)(ii)(C).
"Money Market Quote" means an offer by a Bank to make a Money
Market Loan in accordance with Section 2.3.
"Multiemployer Plan" means at any time an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any
member of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a member of the
ERISA Group during such five year period.
"Notes" means promissory notes of the Borrower, substantially
in the form of Exhibit A hereto, evidencing the obligation of the Borrower to
repay the Loans, and "Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing
(as defined in Section 2.2) or a Notice of Money Market Borrowing (as defined
in Section 2.3(f)).
"Notice of Interest Rate Election" has the meaning set forth
in Section 2.10.
"Parent" means, with respect to any Bank, any Person
controlling such Bank.
"Participant" has the meaning set forth in Section 9.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a limited
liability company, a partnership, an association, a trust or any other entity
or organization, including a government or political subdivision or an agency
or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Internal
Revenue Code and either (i) is maintained, or contributed to, by any member of
the ERISA Group for employees of any member of the ERISA Group or (ii) has at
any time within the preceding
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five years been maintained, or contributed to, by any Person which was at such
time a member of the ERISA Group for employees of any Person which was at such
time a member of the ERISA Group.
"Pricing Schedule" means the Schedule attached hereto
identified as such.
"Prime Rate" means the rate of interest publicly announced by
Morgan Guaranty Trust Company of New York in New York City from time to time as
its Prime Rate.
"Quarterly Dates" means each March 31, June 30, September 30
and December 31.
"Reference Banks" means the CD Reference Banks or the
Euro-Dollar Reference Banks, as the context may require, and "Reference Bank"
means any one of such Reference Banks.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 66
2/3% of the aggregate amount of the Commitments or, if the Commitments shall
have been terminated, holding Notes evidencing at least 66 2/3% of the
aggregate unpaid principal amount of the Loans.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's capital stock (except dividends
payable solely in shares of its capital stock) or (ii) any payment on account
of the purchase, redemption, retirement or acquisition of (a) any shares of the
Borrower's capital stock or (b) any option, warrant or other right to acquire
shares of the Borrower's capital stock (but not including payments of
principal, premium (if any) or interest made pursuant to the terms of
convertible debt securities prior to conversion).
"Revolving Credit Period" means the period from and including
the Closing Date to but not including the Termination Date.
"Subsidiary" means, as to any Person, any corporation or other
entity of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by such Person;
unless otherwise specified, "Subsidiary" means a Subsidiary of the Borrower.
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"Termination Date" means April 17, 2001, or, if such day is
not a Euro-Dollar Business Day, the next succeeding Euro-Dollar Business Day
unless such Euro-Dollar Business Day falls in another calendar month, in which
case the Termination Date shall be the next preceding Euro-Dollar Business Day.
"Total Capital" means, at any date, the sum of (x)
Consolidated Debt plus (y) Consolidated Stockholders Equity (including for this
purpose any amount attributable to stock which is required to be redeemed or is
redeemable at the option of the holder, if certain events or conditions occur
or exist or otherwise), in each case determined at such date.
"Unfunded Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the value of all benefit liabilities
under such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the
fair market value of all Plan assets allocable to such liabilities under Title
IV of ERISA (excluding any accrued but unpaid contributions), all determined as
of the then most recent valuation date for such Plan, but only to the extent
that such excess represents a potential liability of a member of the ERISA
Group to the PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including
the States and the District of Columbia, but excluding its territories and
possessions.
SECTION 1.2. Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from time
to time, applied on a basis consistent (except for changes concurred in by the
Borrower's independent public accountants) with the most recent audited
consolidated financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Banks; provided that, if the Borrower notifies
the Agent that the Borrower wishes to amend any covenant in Article 5 to
eliminate the effect of any change in generally accepted accounting principles
on the operation of such covenant (or if the Agent notifies the Borrower that
the Required Banks wish to amend Article 5 for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
generally accepted accounting principles in effect
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<PAGE> 19
immediately before the relevant change in generally accepted accounting
principles became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Borrower and the Required
Banks.
SECTION 1.3. Types of Borrowings. The term "Borrowing"
denotes the aggregation of Loans of one or more Banks to be made to the
Borrower pursuant to Article 2 on the same date, all of which Loans are of the
same type (subject to Article 8) and, except in the case of Base Rate Loans,
have the same initial Interest Period. Borrowings are classified for purposes
of this Agreement either by reference to the pricing of Loans comprising such
Borrowing (e.g., a "Fixed Rate Borrowing" is a Euro-Dollar Borrowing, a CD
Borrowing or a Money Market Borrowing (excluding any such Borrowing consisting
of Money Market LIBOR Loans bearing interest at the Base Rate pursuant to
Section 8.1), and a "Euro-Dollar Borrowing" is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of Article 2 under which
participation therein is determined (i.e., a "Committed Borrowing" is a
Borrowing under Section 2.1 in which all Banks participate in proportion to
their Commitments, while a "Money Market Borrowing" is a Borrowing under
Section 2.3 in which the Bank participants are determined on the basis of their
bids in accordance therewith).
ARTICLE 2
THE CREDITS
SECTION 2.1. Commitments to Lend. (a) During the Revolving
Credit Period, each Bank severally agrees, on the terms and conditions set
forth in this Agreement, to make loans to the Borrower pursuant to this Section
from time to time in amounts such that the aggregate principal amount of
Committed Loans by such Bank at any one time outstanding shall not exceed the
amount of its Commitment. Each Borrowing under this Section shall be in an
aggregate principal amount of $5,000,000 or any larger multiple of $1,000,000
(except that any such Borrowing may be in the aggregate amount available in
accordance with Section 3.2) and shall be made from the several Banks ratably
in proportion to their respective Commitments. Within the foregoing limits,
the Borrower may borrow under this Section, prepay Loans to the extent
permitted by Section 2.12 and reborrow at any time during the Revolving Credit
Period under this Section.
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<PAGE> 20
SECTION 2.2. Notice of Committed Borrowing. The Borrower
shall give the Agent notice (a "Notice of Committed Borrowing") not later than
10:30 A.M. (New York City time) on (x) the date of each Base Rate Borrowing,
(y) the second Domestic Business Day before each CD Borrowing and (z) the third
Euro-Dollar Business Day before each Euro- Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) whether the Loans comprising such Borrowing are to bear
interest initially at the Base Rate, a CD Rate or a Euro-Dollar Rate;
and
(iv) in the case of a Fixed Rate Borrowing, the duration of
the Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
SECTION 2.3. Money Market Borrowings. (a) The Money Market
Option. In addition to Committed Borrowings pursuant to Section 2.1, the
Borrower may, as set forth in this Section, request the Banks during the
Revolving Credit Period to make offers to make Money Market Loans to the
Borrower. The Banks may, but shall have no obligation to, make such offers and
the Borrower may, but shall have no obligation to, accept any such offers in
the manner set forth in this Section.
(b) Money Market Quote Request. When the Borrower wishes to
request offers to make Money Market Loans under this Section, it shall transmit
to the Agent by telex or facsimile transmission a Money Market Quote Request
substantially in the form of Exhibit B hereto so as to be received not later
than 10:30 A.M. (New York City time) on (x) the fifth Euro-Dollar Business Day
prior to the date of Borrowing proposed therein, in the case of a LIBOR Auction
or (y) the Domestic Business Day next preceding the date of Borrowing proposed
therein, in the case of an Absolute Rate Auction (or, in either case, such
other time or date as the Borrower and the Agent shall have mutually agreed and
shall have notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective) specifying:
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<PAGE> 21
(i) the proposed date of Borrowing, which shall be a
Euro-Dollar Business Day in the case of a LIBOR Auction or a Domestic
Business Day in the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$5,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Borrower and the Agent may agree) of any other Money
Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon
receipt of a Money Market Quote Request, the Agent shall send to the Banks by
telex or facsimile transmission an Invitation for Money Market Quotes
substantially in the form of Exhibit C hereto, which shall constitute an
invitation by the Borrower to each Bank to submit Money Market Quotes offering
to make the Money Market Loans to which such Money Market Quote Request relates
in accordance with this Section.
(d) Submission and Contents of Money Market Quotes. (i)
Each Bank may submit a Money Market Quote containing an offer or offers to make
Money Market Loans in response to any Invitation for Money Market Quotes. Each
Money Market Quote must comply with the requirements of this subsection (d) and
must be submitted to the Agent by telex or facsimile transmission at its
offices specified in or pursuant to Section 9.1 not later than (x) 2:00 P.M.
(New York City time) on the fourth Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) 9:30 A.M.
(New York City time) on the proposed date of Borrowing, in the case of an
Absolute Rate Auction (or, in either case, such other time or date as the
Borrower and the Agent shall have mutually agreed and shall have notified to
the Banks not later than the date of the Money Market Quote Request for the
first LIBOR Auction or Absolute Rate Auction for which such change is to be
effective); provided that Money Market Quotes submitted by
17
<PAGE> 22
the Agent (or any affiliate of the Agent) in the capacity of a Bank may be
submitted, and may only be submitted, if the Agent or such affiliate notifies
the Borrower of the terms of the offer or offers contained therein not later
than (x) one hour prior to the deadline for the other Banks, in the case of a
LIBOR Auction or (y) 15 minutes prior to the deadline for the other Banks, in
the case of an Absolute Rate Auction. Subject to Articles 3 and 6, any Money
Market Quote so made shall be irrevocable except with the written consent of
the Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the
form of Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which
each such offer is being made, which principal amount (w) may be
greater than or less than the Commitment of the quoting Bank, (x) must
be $5,000,000 or a larger multiple of $1,000,000, (y) may not exceed
the principal amount of Money Market Loans for which offers were
requested and (z) may be subject to an aggregate limitation as to the
principal amount of Money Market Loans for which offers being made by
such quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin above or below
the applicable London Interbank Offered Rate (the "Money Market
Margin") offered for each such Money Market Loan, expressed as a
percentage (specified to the nearest 1/10,000th of 1%) to be added to
or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000th of 1%) (the
"Money Market Absolute Rate") offered for each such Money Market Loan,
and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
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<PAGE> 23
(A) is not substantially in conformity with Exhibit D hereto
or does not specify all of the information required by subsection
(d)(ii) above;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set
forth in the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Agent shall promptly notify the
Borrower of the terms (x) of any Money Market Quote submitted by a Bank that is
in accordance with subsection (d) and (y) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a previous Money Market
Quote submitted by such Bank with respect to the same Money Market Quote
Request. Any such subsequent Money Market Quote shall be disregarded by the
Agent unless such subsequent Money Market Quote is submitted solely to correct
a manifest error in such former Money Market Quote. The Agent's notice to the
Borrower shall specify (A) the aggregate principal amount of Money Market Loans
for which offers have been received for each Interest Period specified in the
related Money Market Quote Request, (B) the respective principal amounts and
Money Market Margins or Money Market Absolute Rates, as the case may be, so
offered and (C) if applicable, limitations on the aggregate principal amount of
Money Market Loans for which offers in any single Money Market Quote may be
accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:30
A.M. (New York City time) on (x) the third Euro-Dollar Business Day prior to
the proposed date of Borrowing, in the case of a LIBOR Auction or (y) the
proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of
the Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective), the Borrower shall notify
the Agent of its acceptance or non-acceptance of the offers so notified to it
pursuant to subsection (e). In the case of acceptance, such notice (a "Notice
of Money Market Borrowing") shall specify the aggregate principal amount of
offers for each Interest Period that are accepted. The Borrower may accept any
Money Market Quote in whole or in part; provided that:
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<PAGE> 24
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the
related Money Market Quote Request;
(ii) the principal amount of each Money Market Borrowing must be
$5,000,000 or a larger multiple of $1,000,000;
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the
case may be; and
(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) Allocation by Agent. If offers are made by two or more
Banks with the same Money Market Margins or Money Market Absolute Rates, as the
case may be, for a greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related Interest Period, the
principal amount of Money Market Loans in respect of which such offers are
accepted shall be allocated by the Agent among such Banks as nearly as possible
(in multiples of $1,000,000, as the Agent may deem appropriate) in proportion
to the aggregate principal amounts of such offers. Determinations by the Agent
of the amounts of Money Market Loans shall be conclusive in the absence of
manifest error.
SECTION 2.4. Notice to Banks; Funding of Loans. (a) Upon
receipt of a Notice of Borrowing, the Agent shall promptly notify each Bank of
the contents thereof and of such Bank's share (if any) of such Borrowing and
such Notice of Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 12:00 Noon (New York City time) on the
date of each Borrowing, each Bank participating therein shall make available
its share of such Borrowing, in Federal or other funds immediately available in
New York City, to the Agent at its address referred to in Section 9.1. Unless
the Agent determines that any applicable condition specified in Article 3 has
not been satisfied, the Agent will make the funds so received from the Banks
available to the Borrower at the Agent's aforesaid address.
(c) Unless the Agent shall have received notice from a Bank
prior to the date of any Borrowing that such Bank will not make available to
the Agent such Bank's share
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of such Borrowing, the Agent may assume that such Bank has made such share
available to the Agent on the date of such Borrowing in accordance with
subsections (b) and (c) of this Section and the Agent may, in reliance upon
such assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent that such Bank shall not have so made such share
available to the Agent, such Bank and the Borrower severally agree to repay to
the Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Agent, at (i) in the case
of the Borrower, a rate per annum equal to the higher of the Federal Funds Rate
and the interest rate applicable thereto pursuant to Section 2.7 and (ii) in
the case of such Bank, the Federal Funds Rate. If such Bank shall repay to the
Agent such corresponding amount, such amount so repaid shall constitute such
Bank's Loan included in such Borrowing for purposes of this Agreement.
SECTION 2.5. Notes. (a) The Loans of each Bank shall be
evidenced by a single Note payable to the order of such Bank for the account of
its Applicable Lending Office in an amount equal to the aggregate unpaid
principal amount of such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and the Agent,
request that its Loans of a particular type be evidenced by a separate Note in
an amount equal to the aggregate unpaid principal amount of such Loans. Each
such Note shall be in substantially the form of Exhibit A hereto with
appropriate modifications to reflect the fact that it evidences solely Loans of
the relevant type. Each reference in this Agreement to the "Note" of such Bank
shall be deemed to refer to and include any or all of such Notes, as the
context may require.
(c) Upon receipt of each Bank's Note pursuant to Section
3.1(a), the Agent shall forward such Note to such Bank. Each Bank shall record
the date, amount and type of each Loan made by it and the date and amount of
each payment of principal made by the Borrower with respect thereto, and may,
if such Bank so elects in connection with any transfer or enforcement of its
Note, endorse on the schedule forming a part thereof appropriate notations to
evidence the foregoing information with respect to each such Loan then
outstanding; provided that the failure of any Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Notes. Each Bank is hereby irrevocably authorized by the Borrower so
to endorse its Note and to attach to and make a part of
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its Note a continuation of any such schedule as and when required.
SECTION 2.6. Maturity of Loans. (a)Each Loan shall mature,
and the principal amount thereof shall be due and payable, on the Termination
Date.
(b) Each Money Market Loan included in any Money Market
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing.
SECTION 2.7. Interest Rates. (a) Each Base Rate Loan shall
bear interest on the outstanding principal amount thereof, for each day from
the date such Loan is made until it becomes due, at a rate per annum equal to
the Base Rate for such day. Such interest shall be payable quarterly in
arrears on each Quarterly Date and, with respect to the principal amount of any
Base Rate Loan converted to a CD Loan or a Euro-Dollar Loan, on each date a
Base Rate Loan is so converted. Any overdue principal of or interest on any
Base Rate Loan shall bear interest, payable on demand, for each day until paid
at a rate per annum equal to the sum of 2% plus the rate otherwise applicable
to Base Rate Loans for such day.
(b) Each CD Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of the CD Margin for such day
plus the Adjusted CD Rate applicable to such Interest Period; provided that if
any CD Loan shall, as a result of clause (2)(b) of the definition of Interest
Period, have an Interest Period of less than 30 days, such CD Loan shall bear
interest during such Interest Period at the rate applicable to Base Rate Loans
during such period. Such interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is longer than 90 days, at
intervals of 90 days after the first day thereof. Any overdue principal of or
interest on any CD Loan shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to the sum of 2% plus the higher of (i)
the rate applicable to Base Rate Loans for such day and (ii) the sum of the CD
Margin plus the Adjusted CD Rate applicable to such Loan at the date such
payment was due.
The "Adjusted CD Rate" applicable to any Interest Period means
a rate per annum determined pursuant to the following formula:
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[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
__________
* The amount in brackets being rounded upward, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is the
rate of interest determined by the Agent to be the average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the prevailing rates per annum
bid at 10:00 A.M. (New York City time) (or as soon thereafter as practicable)
on the first day of such Interest Period by two or more New York certificate of
deposit dealers of recognized standing for the purchase at face value from each
CD Reference Bank of its certificates of deposit in an amount comparable to the
principal amount of the CD Loan of such CD Reference Bank to which such
Interest Period applies and having a maturity comparable to such Interest
Period.
"Domestic Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including without
limitation any basic, supplemental or emergency reserves) for a member bank of
the Federal Reserve System in New York City with deposits exceeding five
billion dollars in respect of new non-personal time deposits in dollars in New
York City having a maturity comparable to the related Interest Period and in an
amount of $100,000 or more. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change in the Domestic
Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate
in effect on such day which is payable by a member of the Bank Insurance Fund
classified as adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. Section 327.4(a) (or any successor provision) to the Federal Deposit
Insurance Corporation (or any successor) for such Corporation's (or such
successor's) insuring time deposits at offices of such institution in the
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United States. The Adjusted CD Rate shall be adjusted automatically on and as
of the effective date of any change in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for each day during each Interest Period
applicable thereto, at a rate per annum equal to the sum of the Euro-Dollar
Margin for such day plus the Adjusted London Interbank Offered Rate applicable
to such Interest Period. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than
three months, at intervals of three months after the first day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar
Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Interest
Period means the average (rounded upward, if necessary, to the next higher 1/16
of 1%) of the respective rates per annum at which deposits in dollars are
offered to each of the Euro-Dollar Reference Banks in the London interbank
market at approximately 11:00 A.M. (London time) two Euro-Dollar Business Days
before the first day of such Interest Period in an amount approximately equal
to the principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference
Bank to which such Interest Period is to apply and for a period of time
comparable to such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in New York City with deposits exceeding five
billion dollars in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents). The Adjusted London Interbank Offered
Rate shall be adjusted automatically on and as of the effective date of any
change in the Euro-Dollar Reserve Percentage.
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(d) Any overdue principal of or interest on any Euro-Dollar
Loan shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the higher of (i) the sum of 2% plus the Euro-Dollar Margin
for such day plus the quotient obtained (rounded upward, if necessary, to the
next higher 1/100 of 1%) by dividing (x) the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the respective rates per annum at
which one day (or, if such amount due remains unpaid more than three
Euro-Dollar Business Days, then for such other period of time not longer than
three months as the Agent may select) deposits in dollars in an amount
approximately equal to such overdue payment due to each of the Euro-Dollar
Reference Banks are offered to such Euro-Dollar Reference Bank in the London
interbank market for the applicable period determined as provided above by (y)
1.00 minus the Euro-Dollar Reserve Percentage (or, if the circumstances
described in clause (a) or (b) of Section 8.1 shall exist, at a rate per annum
equal to the sum of 2% plus the rate applicable to Base Rate Loans for such
day) and (ii) the sum of 2% plus the Euro- Dollar Margin for such day plus the
Adjusted London Interbank Offered Rate applicable to such Loan at the date such
payment was due.
(e) Subject to Section 8.1, each Money Market LIBOR Loan
shall bear interest on the outstanding principal amount thereof, for the
Interest Period applicable thereto, at a rate per annum equal to the sum of the
London Interbank Offered Rate for such Interest Period (determined in
accordance with Section 2.7(c) as if the related Money Market LIBOR Borrowing
were a Committed Euro-Dollar Borrowing) plus (or minus) the Money Market Margin
quoted by the Bank making such Loan in accordance with Section 2.3. Each Money
Market Absolute Rate Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate per annum
equal to the Money Market Absolute Rate quoted by the Bank making such Loan in
accordance with Section 2.3. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than
three months, at intervals of three months after the first day thereof. Any
overdue principal of or interest on any Money Market Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the sum
of 2% plus the Base Rate for such day.
(f) The Agent shall determine each interest rate applicable
to the Loans hereunder. The Agent shall give prompt notice to the Borrower and
the participating Banks of each rate of interest so determined, and its
determination
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<PAGE> 30
thereof shall be conclusive in the absence of manifest error.
(g) Each Reference Bank agrees to use its best efforts to
furnish quotations to the Agent as contemplated by this Section. If any
Reference Bank does not furnish a timely quotation, the Agent shall determine
the relevant interest rate on the basis of the quotation or quotations
furnished by the remaining Reference Bank or Banks or, if none of such
quotations is available on a timely basis, the provisions of Section 8.1 shall
apply.
SECTION 2.8. Fees. The Borrower shall pay to the Agent for
the account of the Banks ratably a facility fee at the Facility Fee Rate
(determined daily in accordance with the Pricing Schedule). Such facility fee
shall accrue (i) from and including the Closing Date to but excluding the date
of termination of the Commitments in their entirety, on the daily aggregate
amount of the Commitments (whether used or unused) and (ii) from and including
such date of termination to but excluding the date the Loans shall be repaid in
their entirety, on the daily aggregate outstanding principal amount of the
Loans. Such facility fee shall be payable quarterly in arrears on each
Quarterly Date and on the date of termination of the Commitments in their
entirety (and, if later, the date the Loans shall be repaid in their entirety).
SECTION 2.9. Optional Termination or Reduction of
Commitments. During the Revolving Credit Period, the Borrower may, upon at
least three Domestic Business Days' notice to the Agent, (i) terminate the
Commitments at any time, if no Loans are outstanding at such time or (ii)
ratably reduce from time to time by an aggregate amount of $5,000,000 or a
larger multiple of $1,000,000, the aggregate amount of the Commitments in
excess of the aggregate outstanding principal amount of the Loans.
SECTION 2.10. Method of Electing Interest Rates. (a) The
Loans included in each Committed Borrowing shall bear interest initially at the
type of rate specified by the Borrower in the applicable Notice of Committed
Borrowing. Thereafter, the Borrower may from time to time elect to change or
continue the type of interest rate borne by each Group of Loans (subject in
each case to the provisions of Article 8), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect
to convert such Loans to CD Loans as of any Domestic Business Day or
to Euro-Dollar Loans as of any Euro-Dollar Business Day;
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(ii) if such Loans are CD Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or Euro-Dollar Loans or elect to
continue such Loans as CD Loans for an additional Interest Period,
subject to Section 2.14 in the case of any such conversion or
continuation effective on any day other than the last day of the then
current Interest Period applicable to such Loans; and
(iii) if such Loans are Euro-Dollar Loans, the Borrower may
elect to convert such Loans to Base Rate Loans or CD Loans or elect to
continue such Loans as Euro-Dollar Loans for an additional Interest
Period, subject to Section 2.14 in the case of any such conversion or
continuation effective on any day other than the last day of the then
current Interest Period applicable to such Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Agent not later than 10:00 A.M. (New York City time) on
the third Euro-Dollar Business Day before the conversion or continuation
selected in such notice is to be effective (unless the relevant Loans are to be
converted to Domestic Loans of the other type or are CD Rate Loans to be
continued as CD Rate Loans for an additional Interest Period, in which case
such notice shall be delivered to the Agent not later than 10:00 A.M. (New York
City time) on the second Domestic Business Day before such conversion or
continuation is to be effective). A Notice of Interest Rate Election may, if
it so specifies, apply to only a portion of the aggregate principal amount of
the relevant Group of Loans; provided that (i) such portion is allocated
ratably among the Loans comprising such Group and (ii) the portion to which
such Notice applies, and the remaining portion to which it does not apply, are
each $5,000,000 or any larger multiple of $1,000,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable
clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the
new type of Loans and, if the Loans
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being converted are to be Fixed Rate Loans, the duration of the next
succeeding Interest Period applicable thereto; and
(iv) if such Loans are to be continued as CD Loans or Euro-Dollar
Loans for an additional Interest Period, the duration of such
additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from
the Borrower pursuant to subsection (a) above, the Agent shall promptly notify
each Bank of the contents thereof and such notice shall not thereafter be
revocable by the Borrower.
(d) An election by the Borrower to change or continue the
rate of interest applicable to any Group of Loans pursuant to this Section
shall not constitute a "Borrowing" subject to the provisions of Section 3.2.
SECTION 2.11. Mandatory Termination of Commitments. The
Commitments shall terminate on the Termination Date and any Loans then
outstanding (together with accrued interest thereon) shall be due and payable
on such date.
SECTION 2.12. Optional Prepayments. (a) The Borrower may,
upon at least one Domestic Business Day's notice to the Agent, prepay any Group
of Base Rate Loans (or any Money Market Borrowing bearing interest at the Base
Rate pursuant to Section 8.1), in whole at any time, or from time to time in
part in amounts aggregating $5,000,000 or any larger multiple of $1,000,000, by
paying the principal amount to be prepaid together with accrued interest
thereon to the date of prepayment. Each such optional prepayment shall be
applied to prepay ratably the Loans of the several Banks included in such
Group.
(b) The Borrower may not prepay all or any portion of the
principal amount of any Fixed Rate Loan (except, solely with respect to Money
Market Loans, as provided in subsection (a) above) prior to the maturity
thereof.
(c) Upon receipt of a notice of prepayment pursuant to this
Section, the Agent shall promptly notify each Bank of the contents thereof and
of such Bank's ratable
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share (if any) of such prepayment and such notice shall not thereafter be
revocable by the Borrower.
SECTION 2.13. General Provisions as to Payments. (a) The
Borrower shall make each payment of principal of, and interest on, the Loans
and of fees hereunder, not later than 12:00 Noon (New York City time) on the
date when due, in Federal or other funds immediately available in New York
City, to the Agent at its address referred to in Section 9.1. The Agent will
promptly distribute to each Bank its ratable share of each such payment
received by the Agent for the account of the Banks. Whenever any payment of
principal of, or interest on, the Domestic Loans or of fees shall be due on a
day which is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever any payment of
principal of, or interest on, the Euro-Dollar Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case the
date for payment thereof shall be the next preceding Euro-Dollar Business Day.
Whenever any payment of principal of, or interest on, the Money Market Loans
shall be due on a day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding Euro-Dollar Business
Day. If the date for any payment of principal is extended by operation of law
or otherwise, interest thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Banks hereunder
that the Borrower will not make such payment in full, the Agent may assume that
the Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Bank on such due date an amount equal to the amount then due such Bank. If and
to the extent that the Borrower shall not have so made such payment, each Bank
shall repay to the Agent forthwith on demand such amount distributed to such
Bank together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.14. Funding Losses. If the Borrower makes any
payment of principal with respect to any Fixed Rate Loan or any Fixed Rate Loan
is converted (pursuant to Article 2, 6 or 8 or otherwise) on any day other than
the last day of an Interest Period applicable thereto, or the last day of an
applicable period fixed pursuant to Section
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2.7(d), or if the Borrower fails to borrow, prepay, convert or continue any
Fixed Rate Loans after notice has been given to any Bank in accordance with
Section 2.4(a), 2.12(c) or 2.10(c) the Borrower shall reimburse each Bank
within 15 days after demand for any resulting loss or expense incurred by it
(or by an existing or prospective Participant in the related Loan), including
(without limitation) any loss incurred in obtaining, liquidating or employing
deposits from third parties, but excluding loss of margin for the period after
any such payment or conversion or failure to borrow, prepay, convert or
continue, provided that such Bank shall have delivered to the Borrower a
certificate as to the amount of such loss or expense, which certificate shall
be conclusive in the absence of manifest error.
SECTION 2.15. Computation of Interest and Fees. Interest
based on the Prime Rate hereunder shall be computed on the basis of a year of
365 days (or 366 days in a leap year) and paid for the actual number of days
elapsed (including the first day but excluding the last day) (i.e. (interest
rate divided by 365 (or 366 days in a leap year)) times (actual number of days
elapsed). All other interest and fees shall be computed on the basis of a year
of 360 days and paid for the actual number of days elapsed (including the first
day but excluding the last day) (i.e. (interest rate or fee rate divided by
360) times (actual number of days elapsed ).
SECTION 2.16. Change of Control. If a Change of Control
shall occur (i) the Borrower will, within ten days after the occurrence
thereof, give each Bank notice thereof and shall describe in reasonable detail
the facts and circumstances giving rise thereto and (ii) each Bank may, by
three Domestic Business Days' notice to the Borrower and the Agent given not
later than 60 days after such Change of Control, terminate its Commitment,
which shall thereupon be terminated, and declare the Note held by it (together
with accrued interest thereon) and any other amounts payable hereunder for its
account to be, and such Note and such other amounts shall thereupon become,
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower.
For purposes of this Section, the following terms have the
following meanings:
A "Change of Control" shall occur if (i) any person or group
of persons (within the meaning of Section 13 or 14 of the Securities
Exchange Act of 1934, as amended) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 promulgated
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<PAGE> 35
by the Securities and Exchange Commission under said Act) of 45% or
more in voting power of the outstanding Voting Stock of the Borrower
or (ii) during any period of 12 consecutive calendar months,
individuals who were either (x) directors of the Borrower on the first
day of such period or (y) elected to fill vacancies caused by the
ordinary course resignation or retirement of any other director and
whose nomination or election was approved by a vote of at least a
majority of the directors then still in office who were directors of
the Borrower on the first day of such period, shall cease to
constitute a majority of the board of directors of the Borrower.
"Voting Stock" means capital stock of any class or classes
(however designated) having ordinary voting power for the election of
directors of the Borrower, other than stock having such power only by
reason of the happening of a contingency.
ARTICLE 3
CONDITIONS
SECTION 3.1. Closing. The closing hereunder shall occur upon
receipt by the Agent of the following documents, each dated the Closing Date
unless otherwise indicated:
(a) a duly executed Note for the account of each Bank dated
on or before the Closing Date complying with the provisions of Section
2.5;
(b) an opinion of the Director, Corporate Legal Services of
the Borrower, substantially in the form of Exhibit E hereto and
covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request;
(c) an opinion of Davis Polk & Wardwell, special counsel for
the Agent, substantially in the form of Exhibit F hereto and covering
such additional matters relating to the transactions contemplated
hereby as the Required Banks may reasonably request;
(d) evidence satisfactory to it that the commitments under
the Existing Credit Agreement have terminated, all loans thereunder
have been repaid in full (all Banks hereunder which are also banks
under
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the Existing Credit Agreement hereby agreeing that such repayment may
be made, whether at the end of interest periods under the Existing
Credit Agreement or not) and all accrued fees and other amounts
payable thereunder (including, without limitation, any funding costs
payable pursuant to the Existing Credit Agreement) have been paid in
full; and
(e) all documents the Agent may reasonably request relating
to the existence of the Borrower, the corporate authority for and the
validity of this Agreement and the Notes, and any other matters
relevant hereto, all in form and substance satisfactory to the Agent.
The Agent shall promptly notify the Borrower and the Banks of the Closing Date,
and such notice shall be conclusive and binding on all parties hereto.
SECTION 3.2. Borrowings. The obligation of any Bank to make
a Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) the fact that the Closing Date shall have occurred on or
prior to April 24, 1996;
(b) receipt by the Agent of a Notice of Borrowing as required
by Section 2.2 or 2.3, as the case may be;
(c) the fact that, immediately after such Borrowing, the
aggregate outstanding principal amount of the Loans will not exceed
the aggregate amount of the Commitments;
(d) the fact that, immediately before and after such
Borrowing, no Default shall have occurred and be continuing; and
(e) the fact that the representations and warranties of the
Borrower contained in this Agreement shall be true on and as of the
date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of
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such Borrowing as to the facts specified in clauses (c), (d) and (e) of this
Section.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.1. Corporate Existence and Power. The Borrower is
a corporation duly incorporated, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, and has all corporate powers
and all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
SECTION 4.2. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement and the Notes are within the corporate powers of the Borrower, have
been duly authorized by all necessary corporate action, require no action by or
in respect of, or filing with, any governmental body, agency or official and do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or by-laws of the Borrower
or of any agreement, judgment, injunction, order, decree or other instrument
binding upon the Borrower or any of its Subsidiaries or result in the creation
or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries.
SECTION 4.3. Binding Effect. This Agreement constitutes a
valid and binding agreement of the Borrower and each Note, when executed and
delivered in accordance with this Agreement, will constitute a valid and
binding obligation of the Borrower, in each case enforceable in accordance with
its terms.
SECTION 4.4. Financial Information. (a) The consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of December
31, 1995 and the related consolidated statements of income and cash flows for
the fiscal year then ended, reported on by Coopers & Lybrand L.L.P. and
incorporated by reference in the Borrower's 1995 Form 10-K, a copy of which has
been delivered to each of the Banks, fairly present, in conformity with
generally accepted accounting principles, the consolidated financial position
of the Borrower and its Consolidated Subsidiaries as of such
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date and their consolidated results of operations and cash flows for such
fiscal year.
(b) Since December 31, 1995 there has been no material
adverse change in the business, financial position, results of operations or
prospects of the Borrower and its Consolidated Subsidiaries, considered as a
whole (including without limitation any such material adverse change caused by
any action, suit or proceeding disclosed in the Borrower's periodic reports
filed with the Securities and Exchange Commission from time to time).
SECTION 4.5. Litigation. Except as set forth in the
Borrower's periodic reports filed with the Securities and Exchange Commission
from time to time, there is no action, suit or proceeding pending against, or
to the knowledge of the Borrower threatened against or affecting, the Borrower
or any of its Subsidiaries before any court or arbitrator or any governmental
body, agency or official in which there is a reasonable possibility of an
adverse decision which could materially adversely affect the business,
consolidated financial position or consolidated results of operations of the
Borrower and its Consolidated Subsidiaries, considered as a whole, or which in
any manner draws into question the validity or enforceability of this Agreement
or the Notes.
SECTION 4.6. Compliance with ERISA. To the best of the
Borrower's knowledge, each member of the ERISA Group has fulfilled its
obligations under the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan and is in compliance in all material
respects with the presently applicable provisions of ERISA and the Internal
Revenue Code with respect to each Plan. To the best of the Borrower's
knowledge, no member of the ERISA Group has (i) sought a waiver of the minimum
funding standard under Section 412 of the Internal Revenue Code in respect of
any Plan, (ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could
result in the imposition of a Lien or the posting of a bond or other security
under ERISA or the Internal Revenue Code or (iii) except as set forth in
Schedule 4.6, incurred any liability in excess of $10,000,000 under Title IV of
ERISA other than a liability to the PBGC for premiums under Section 4007 of
ERISA.
SECTION 4.7. Environmental Matters. In the ordinary course
of its business, the Borrower conducts an ongoing review of the effect of
Environmental Laws on the
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business, operations and properties of the Borrower and its Subsidiaries, in
the course of which it identifies and evaluates associated liabilities and
costs (including, without limitation, any capital or operating expenditures
required for clean-up or closure of properties presently or previously owned,
any capital or operating expenditures required to achieve or maintain
compliance with environmental protection standards imposed by law or as a
condition of any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted thereat, any costs or liabilities in connection with off-site
disposal of wastes or Hazardous Substances, and any actual or potential
liabilities to third parties, including employees, and any related costs and
expenses). On the basis of this review, the Borrower has reasonably concluded
that such associated liabilities and costs, including the costs of compliance
with Environmental Laws, are unlikely to have a material adverse effect on the
business, financial condition, results of operations or prospects of the
Borrower and its Consolidated Subsidiaries, considered as a whole.
SECTION 4.8. Taxes. The Borrower and its Subsidiaries have
filed (or have made timely requests for an extension to file) all United States
Federal income tax returns and all other material tax returns which are
required to be filed by them and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Borrower or any
Subsidiary, other than any such taxes the non-payment of which, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
The charges, accruals and reserves on the books of the Borrower and its
Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate.
SECTION 4.9. Subsidiaries. Each of the Borrower's corporate
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted
(except for any governmental licenses, authorizations, consents or approvals
the absence of which could not reasonably be expected to have a Material
Adverse Effect).
SECTION 4.10. Regulatory Restrictions on Borrowing. The
Borrower is not an "investment company"
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within the meaning of the Investment Company Act of 1940, as amended, a
"holding company" within the meaning of the Public Utility Holding Company Act
of 1935, as amended, or otherwise subject to any regulatory scheme which
restricts its ability to incur debt.
SECTION 4.11. Full Disclosure. The information heretofore
furnished by the Borrower to the Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby taken as
a whole does not, and the information hereafter so furnished, taken as a whole
with all information previously furnished will not, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
ARTICLE 5
COVENANTS
The Borrower agrees that, so long as any Bank has any
Commitment hereunder or any amount payable under any Note remains unpaid:
SECTION 5.1. Information. The Borrower will deliver to each
of the Banks:
(a) as soon as available and in any event within 120 days
after the end of each fiscal year of the Borrower, a consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of
the end of such fiscal year and the related consolidated statements of
income and cash flows for such fiscal year, setting forth in each case
in comparative form the figures for the previous fiscal year, all
reported on in a manner acceptable to the Securities and Exchange
Commission by Coopers & Lybrand L.L.P. or other independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within 45 days
after the end of each of the first three quarters of each fiscal year
of the Borrower, a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such quarter and the
related consolidated statements of income and cash flows for such
quarter and for the portion of the Borrower's fiscal year ended at the
end of such quarter, setting forth in the case of such statements
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<PAGE> 41
of income and cash flows, in comparative form the figures for the
corresponding quarter and the corresponding portion of the Borrower's
previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, generally accepted
accounting principles and consistency by the chief financial officer
or the chief accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of
the chief financial officer or the chief accounting officer of the
Borrower (i) setting forth in reasonable detail the calculations
required to establish whether the Borrower was in compliance with the
requirements of Sections 5.9 through 5.14, inclusive, on the date of
such financial statements and (ii) stating whether any Default exists
on the date of such certificate and, if any Default then exists,
setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i)
whether anything has come to their attention to cause them to believe
that any Default existed on the date of such statements and (ii)
confirming the calculations set forth in the officer's certificate
delivered simultaneously therewith pursuant to clause (c) above;
(e) within ten days after any officer of the Borrower obtains
knowledge of any Default, if such Default is then continuing, a
certificate of the chief financial officer or the chief accounting
officer of the Borrower setting forth the details thereof and the
action which the Borrower is taking or proposes to take with respect
thereto;
(f) promptly upon the mailing thereof to the shareholders of
the Borrower generally, copies of all financial statements, reports
and proxy statements so mailed;
(g) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and reports on
Forms 10-K, 10-Q and 8-K
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(or their equivalents) which the Borrower shall have filed with the
Securities and Exchange Commission;
(h) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which the
Borrower reasonably believes might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the
plan administrator of any Plan has given or is required to give notice
of any such reportable event, a copy of the notice of such reportable
event given or required to be given to the PBGC; (ii) receives notice
of complete or partial withdrawal liability under Title IV of ERISA or
notice that any Multiemployer Plan is in reorganization, is insolvent
or has been terminated, a copy of such notice; (iii) receives notice
from the PBGC under Title IV of ERISA of an intent to terminate,
impose liability (other than for premiums under Section 4007 of ERISA)
in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard
under Section 412 of the Internal Revenue Code, a copy of such
application; (v) gives notice of intent to terminate any Plan under
Section 4041(c) of ERISA, a copy of such notice and other information
filed with the PBGC; (vi) gives notice of withdrawal from any Plan
pursuant to Section 4063 of ERISA, a copy of such notice; or (vii)
fails to make any payment or contribution to any Plan or Multiemployer
Plan or in respect of any Benefit Arrangement or makes any amendment
to any Plan or Benefit Arrangement which has resulted or which the
Borrower reasonably believes could result in the imposition of a Lien
or the posting of a bond or other security, a certificate of the chief
financial officer or the chief accounting officer of the Borrower
setting forth details as to such occurrence and action, if any, which
the Borrower or applicable member of the ERISA Group is required or
proposes to take; and
(i) from time to time such additional information regarding
the financial position or business of the Borrower and its
Subsidiaries as the Agent, at the request of any Bank, may reasonably
request.
SECTION 5.2. Payment of Obligations. The Borrower will pay
and discharge, and will cause each Subsidiary to pay and discharge, at or
before maturity, all their respective material obligations and liabilities
(including, without limitation, tax liabilities and claims
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of materialmen, warehousemen and the like which if unpaid might by law give
rise to a Lien), except where the same may be contested in good faith by
appropriate proceedings, and will maintain, and will cause each Subsidiary to
maintain, in accordance with generally accepted accounting principles,
appropriate reserves for the accrual of any of the same.
SECTION 5.3. Maintenance of Property; Insurance. (a) The
Borrower will keep, and will cause each Subsidiary to keep, all material
property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted.
(b) The Borrower will, and will cause each of its
Subsidiaries to, maintain (either in the name of the Borrower or in such
Subsidiary's own name) with financially sound and responsible insurance
companies, insurance on all their respective material properties in at least
such amounts, against at least such risks and with such risk retention as are
usually maintained, insured against or retained, as the case may be, in the
same general area by companies of established repute engaged in the same or a
similar business; and will furnish to the Banks, upon request from the Agent,
information presented in reasonable detail as to the insurance so carried.
SECTION 5.4. Conduct of Business and Maintenance of
Existence. The Borrower will preserve, renew and keep in full force and
effect, and will cause each Subsidiary to preserve, renew and keep in full
force and effect their respective corporate existence and their respective
material rights, privileges and franchises necessary or desirable in the normal
conduct of business (except for any rights, privileges or franchises the
non-maintenance of which could not reasonably be expected to have a Material
Adverse Effect); provided that nothing in this Section 5.4 shall prohibit (i)
the merger of a Subsidiary into the Borrower or the merger or consolidation of
a Subsidiary with or into another Person if the corporation surviving such
consolidation or merger is a Subsidiary and if, in each case, after giving
effect thereto, no Default shall have occurred and be continuing or (ii) the
termination of the corporate existence of any Subsidiary if the Borrower in
good faith determines that such termination is in the best interest of the
Borrower and is not materially disadvantageous to the Banks.
SECTION 5.5. Compliance with Laws. The Borrower will comply,
and cause each Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental
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authorities (including, without limitation, Environmental Laws and ERISA and
the rules and regulations thereunder) except (i) where the necessity of
compliance therewith is contested in good faith by appropriate proceedings or
(ii) where noncompliance could not reasonably be expected to have a Material
Adverse Effect.
SECTION 5.6. Inspection of Property, Books and Records. The
Borrower will keep, and will cause each Subsidiary to keep, proper books of
record and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and will
permit, and will cause each Subsidiary to permit, representatives of any Bank
at such Bank's expense to visit and inspect any of their respective properties,
to examine and make abstracts from any of their respective books and records
and to discuss their respective affairs, finances and accounts with their
respective officers, employees and independent public accountants, all at such
reasonable times and as often as may reasonably be desired.
SECTION 5.7. Mergers and Sales of Assets. The Borrower will
not (i) consolidate or merge with or into any other Person, (ii) sell, lease or
otherwise transfer, directly or indirectly, all or substantially all of the
assets of the Borrower to any other Person or Persons; provided that the
Borrower may merge with another Person if (x) the Borrower is the corporation
surviving such merger and (y) after giving effect to such merger, no Default
shall have occurred and be continuing.
SECTION 5.8. Use of Proceeds. The proceeds of the Loans made
under this Agreement will be used by the Borrower for general corporate
purposes. None of such proceeds will be used, directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of buying or carrying any
"margin stock" within the meaning of Regulation U.
SECTION 5.9. Negative Pledge. Neither the Borrower nor any
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement securing
Debt outstanding on the date of this Agreement in an aggregate
principal or face amount not exceeding $26,000,000;
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(b) any Lien existing on any asset of any person at the time
such person becomes a Subsidiary and not created in contemplation of
such event;
(c) any Lien on any asset securing Debt incurred or assumed
for the purpose of financing all or any part of the cost of acquiring
such asset, provided that such Lien attaches to such asset
concurrently with or within 90 days after the acquisition thereof;
(d) any Lien on any asset of any person existing at the time
such person is merged or consolidated with or into the Borrower or a
Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition
thereof by the Borrower or a Subsidiary and not created in
contemplation of such acquisition;
(f) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any
of the foregoing clauses of this Section, provided that such Debt is
not increased and is not secured by any additional assets;
(g) Liens existing as of the date hereof or arising
hereafter, in each case arising in the ordinary course of its business
and which (i) do not secure Debt or Derivatives Obligations, (ii) do
not secure any obligation in an amount exceeding $10,000,000 and (iii)
do not in the aggregate materially detract from the value of its
assets or materially impair the use thereof in the operation of its
business;
(h) Liens on cash and cash equivalents securing Derivatives
Obligations, provided that the aggregate amount of cash and cash
equivalents subject to such Liens may at no time exceed $10,000,000;
and
(i) Liens not otherwise permitted by the foregoing clauses of
this Section securing Debt in an aggregate principal or face amount at
any date not to exceed 20% of Consolidated Tangible Net Worth at such
date.
SECTION 5.10. Debt to Total Capital. The ratio of
Consolidated Debt to Total Capital shall not exceed at any time .5:1.
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SECTION 5.11. Debt of Subsidiaries. The Borrower will not
permit any of its Material Subsidiaries to incur or at any time be liable with
respect to any Debt except:
(a) Debt owed to the Borrower or to a wholly owned
Subsidiary;
(b) Debt secured by a Lien permitted by Section 5.9(c) and
any refinancing, extension, renewal or refunding thereof;
(c) Debt of any Person existing at the time such Person is
merged or consolidated with or into any Material Subsidiary and not
incurred in contemplation of such merger or consolidation;
(d) Debt of any Person existing at the time such Person
becomes a Material Subsidiary, regardless of whether such Debt was
incurred in contemplation of such event; and
(e) Debt not otherwise permitted by the foregoing clauses in
an aggregate principal or face amount at any time outstanding not to
exceed $35,000,000.
SECTION 5.12. Fixed Charge Coverage Ratio. As of the last
day of each fiscal quarter of the Borrower, the Fixed Charge Ratio will not be
less than 1.4:1.
SECTION 5.13. Transactions with Affiliates. The Borrower
will not, and will not permit any Subsidiary to, directly or indirectly, pay
any funds to or for the account of, make any investment (whether by acquisition
of stock or indebtedness, by loan, advance, transfer of property, guarantee or
other agreement to pay, purchase or service, directly or indirectly, any Debt,
or otherwise) in, lease, sell, transfer or otherwise dispose of any assets,
tangible or intangible, to, or participate in, or effect, any transaction with,
any Affiliate except on an arms-length basis on terms at least as favorable to
the Borrower or such Subsidiary Affiliate than could have been obtained from a
third party who was not an Affiliate; provided that the foregoing provisions of
this Section shall not prohibit any such Person from declaring or paying any
lawful dividend or other payment ratably in respect of all of its capital stock
of the relevant class so long as, after giving effect thereto, no Default shall
have occurred and be continuing.
ARTICLE 6
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DEFAULTS
SECTION 6.1. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan
when due or any interest, any fees or any other amount payable
hereunder within 5 days of the due date thereof;
(b) the Borrower shall fail to observe or perform any
covenant contained in Article 5, other than those contained in
Sections 5.1 through 5.6;
(c) the Borrower shall fail to observe or perform any covenant
or agreement contained in this Agreement (other than those covered by
clause (a) or (b) above) for 30 days after notice thereof has been
given to the Borrower by the Agent at the request of any Bank;
(d) any representation, warranty, certification or statement
made by the Borrower in this Agreement or in any certificate,
financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect in any material respect
when made (or deemed made);
(e) the Borrower or any Subsidiary shall fail to make any
payment in respect of any Material Financial Obligations when due or
within any applicable grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables the
holder of such Debt or any Person acting on such holder's behalf to
accelerate the maturity thereof;
(g) the Borrower or any Material Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an
involuntary case or other proceeding
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commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing;
(h) an involuntary case or other proceeding shall be
commenced against the Borrower or any Material Subsidiary seeking
liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against the Borrower or
any Material Subsidiary under the federal bankruptcy laws as now or
hereafter in effect;
(i) except with respect to any liability disclosed in
Schedule 4.6; any member of the ERISA Group shall fail to pay when due
an amount or amounts aggregating in excess of $10,000,000 which it
shall have become liable to pay under Title IV of ERISA; or notice of
intent to terminate a Material Plan under Section 4041(c) of ERISA
shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums under Section
4007 of ERISA) in respect of, or to cause a trustee to be appointed to
administer any Material Plan; or a condition shall exist under Section
4042(a) of ERISA by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal
from, or a default, within the meaning of Section 4219(c)(5) of ERISA,
with respect to, one or more Multiemployer Plans which could cause one
or more members of the ERISA Group to incur a current payment
obligation in excess of $10,000,000; or
(j) judgments or orders for the payment of money in excess of
$10,000,000 shall be rendered against the Borrower or any Subsidiary
and such judgments or orders shall continue unsatisfied and unstayed
for a period of 10 days;
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then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Commitments, by notice to the Borrower
terminate the Commitments and they shall thereupon terminate, and (ii) if
requested by Banks holding more than 50% of the aggregate principal amount of
the Loans, by notice to the Borrower declare the Loans (together with accrued
interest thereon) to be, and the Loans shall thereupon become, immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; provided that in the case of
any of the Events of Default specified in clause 6.1(g) or 6.1(h) above with
respect to the Borrower, without any notice to the Borrower or any other act by
the Agent or the Banks, the Commitments shall thereupon terminate and the Loans
(together with accrued interest thereon) shall become immediately due and
payable without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower.
Notwithstanding anything contained in the foregoing paragraph,
if at any time within 60 days after the Notes have been declared due pursuant
to the preceding paragraph, the Borrower shall pay all arrears of interest and
all payments on account of principal which shall have become due otherwise than
by acceleration and all Events of Default (other than non-payment of the
principal of and accrued interest on the Loans, in each case which is due and
payable solely by virtue of acceleration) shall be remedied or waived pursuant
to Section 9.5, then the Required Banks by written notice to the Borrower to
be delivered by the Agent, may at their option rescind and annul the
acceleration and its consequences; but such action shall not affect any
subsequent Event of Default or Default or impair any right of the Banks
consequent thereon.
SECTION 6.2. Notice of Default. The Agent shall give notice
to the Borrower under Section 6.1(c) promptly upon being requested to do so by
any Bank and shall thereupon notify all the Banks thereof.
ARTICLE 7
THE AGENT
SECTION 7.1. Appointment and Authorization. Each Bank
irrevocably appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the Notes as
are delegated
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to the Agent by the terms hereof or thereof, together with all such powers as
are reasonably incidental thereto.
SECTION 7.2. Agent and Affiliates. Morgan Guaranty Trust
Company of New York shall have the same rights and powers under this Agreement
as any other Bank and may exercise or refrain from exercising the same as
though it were not the Agent, and Morgan Guaranty Trust Company of New York and
its affiliates may accept deposits from, lend money to, and generally engage in
any kind of business with the Borrower or any Subsidiary or affiliate of the
Borrower as if it were not the Agent.
SECTION 7.3. Action by Agent. The obligations of the Agent
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Agent shall not be required to take any action
with respect to any Default, except as expressly provided in Article 6.
SECTION 7.4. Consultation with Experts. The Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the advice of such counsel, accountants or experts.
SECTION 7.5. Liability of Agent. Neither the Agent nor any
of its affiliates nor any of their respective directors, officers, agents or
employees shall be liable for any action taken or not taken by it in connection
herewith (i) with the consent or at the request of the Required Banks or (ii)
in the absence of its own gross negligence or willful misconduct. Neither the
Agent nor any of its affiliates nor any of their respective directors,
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any statement, warranty or representation
made in connection with this Agreement or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of the
Borrower; (iii) the satisfaction of any condition specified in Article 3,
except receipt of items required to be delivered to the Agent; or (iv) the
validity, effectiveness or genuineness of this Agreement, the Notes or any
other instrument or writing furnished in connection herewith. The Agent shall
not incur any liability by acting in reliance upon any notice, consent,
certificate, statement, or other writing (which may be a bank wire, telex,
facsimile transmission or similar writing) believed by it to be genuine or to
be signed by the proper party or parties.
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SECTION 7.6. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this Agreement or any action
taken or omitted by such indemnitees hereunder.
SECTION 7.7. Credit Decision. Each Bank acknowledges that it
has, independently and without reliance upon the Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.8. Successor Agent. The Agent may resign at any
time by giving notice thereof to the Banks and the Borrower. Upon any such
resignation, the Required Banks shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the Required
Banks, and shall have accepted such appointment, within 30 days after the
retiring Agent gives notice of resignation, then the retiring Agent may, on
behalf of the Banks, appoint a successor Agent, which shall be a commercial
bank organized or licensed under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at least
$50,000,000. Upon the acceptance of its appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation hereunder as Agent, the provisions of this Article
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent.
SECTION 7.9. Agent's Fee. The Borrower shall pay to the
Agent for its own account fees in the amounts and at the times previously
agreed upon between the Borrower and the Agent.
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ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.1. Basis for Determining Interest Rate Inadequate
or Unfair. If on or prior to the first day of any Interest Period for any CD
Loan, Euro-Dollar Loan or Money Market LIBOR Loan:
(a) the Agent is advised by the Reference Banks that deposits
in dollars (in the applicable amounts) are not being offered to the
Reference Banks in the relevant market for such Interest Period, or
(b) in the case of CD Loans or Euro-Dollar Loans, Banks
having 50% or more of the aggregate principal amount of the affected
Loans advise the Agent that the Adjusted CD Rate or the Adjusted
London Interbank Offered Rate, as the case may be, as determined by
the Agent will not adequately and fairly reflect the cost to such
Banks of funding their CD Loans or Euro-Dollar Loans, as the case may
be, for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, (i) the obligations of the Banks to
make CD Loans or Euro-Dollar Loans, as the case may be, or to continue or
convert outstanding Loans as or into CD Loans or Euro-Dollar Loans, as the case
may be, shall be suspended and (ii) each outstanding CD Loan or Euro-Dollar
Loan, as the case may be, shall be converted into a Base Rate Loan on the last
day of the then current Interest Period applicable thereto. Unless the
Borrower notifies the Agent at least two Domestic Business Days before the date
of any Fixed Rate Borrowing for which a Notice of Borrowing has previously been
given that it elects not to borrow on such date, (i) if such Fixed Rate
Borrowing is a Committed Borrowing, such Borrowing shall instead be made as a
Base Rate Borrowing and (ii) if such Fixed Rate Borrowing is a Money Market
LIBOR Borrowing, the Money Market LIBOR Loans comprising such Borrowing shall
bear interest for each day from and including the first day to but excluding
the last day of the Interest Period applicable thereto at the Base Rate for
such day.
SECTION 8.2. Illegality. If, on or after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any
change in any applicable law, rule or regulation, or any change in the
interpretation or
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administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank (or its Euro-Dollar Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency shall make it unlawful or impossible for any
Bank (or its Euro-Dollar Lending Office) to make, maintain or fund its
Euro-Dollar Loans and such Bank shall so notify the Agent, the Agent shall
forthwith give notice thereof to the other Banks and the Borrower, whereupon
until such Bank notifies the Borrower and the Agent that the circumstances
giving rise to such suspension no longer exist, the obligation of such Bank to
make Euro-Dollar Loans, or to convert outstanding Loans into Euro-Dollar Loans,
shall be suspended. Before giving any notice to the Agent pursuant to this
Section, such Bank shall designate a different Euro-Dollar Lending Office if
such designation will avoid the need for giving such notice and will not, in
the judgment of such Bank, be otherwise disadvantageous to such Bank. If such
notice is given, each Euro-Dollar Loan of such Bank then outstanding shall be
converted to a Base Rate Loan either (a) on the last day of the then current
Interest Period applicable to such Euro-Dollar Loan if such Bank may lawfully
continue to maintain and fund such Loan to such day or (b) immediately if such
Bank shall determine that it may not lawfully continue to maintain and fund
such Loan to such day.
SECTION 8.3. Increased Cost and Reduced Return. (a) If on
or after (x) the date hereof, in the case of any Committed Loan or any
obligation to make Committed Loans or (y) the date of the related Money Market
Quote, in the case of any Money Market Loan, the adoption of any applicable
law, rule or regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Applicable Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency
shall impose, modify or deem applicable any reserve (including, without
limitation, any such requirement imposed by the Board of Governors of the
Federal Reserve System, but excluding (i) with respect to any CD Loan any such
requirement included in an applicable Domestic Reserve Percentage and (ii) with
respect to any Euro-Dollar Loan any such requirement included in an applicable
Euro-Dollar Reserve Percentage), special deposit, insurance assessment
(excluding, with respect to any CD Loan, any such
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requirement reflected in an applicable Assessment Rate) or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Bank (or its Applicable Lending Office) or shall impose on any Bank (or its
Applicable Lending Office) or on the United States market for certificates of
deposit or the London interbank market any other condition affecting its Fixed
Rate Loans, its Note or its obligation to make Fixed Rate Loans and the result
of any of the foregoing is to increase the cost to such Bank (or its Applicable
Lending Office) of making or maintaining any Fixed Rate Loan, or to reduce the
amount of any sum received or receivable by such Bank (or its Applicable
Lending Office) under this Agreement or under its Note with respect thereto, by
an amount deemed by such Bank to be material, then, within 15 days after demand
by such Bank (with a copy to the Agent), the Borrower shall pay to such Bank
such additional amount or amounts as will compensate such Bank for such
increased cost or reduction.
(b) If any Bank shall have determined that, after the date
hereof, the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change in any such law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within 15 days
after demand by such Bank (with a copy to the Agent), the Borrower shall pay to
such Bank such additional amount or amounts as will compensate such Bank (or
its Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower and the Agent
of any event of which it has knowledge, occurring after the date hereof, which
will entitle such Bank to compensation pursuant to this Section and will
designate a different Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the judgment
of such Bank, be otherwise disadvantageous to such Bank. A certificate of any
Bank claiming compensation under this Section and
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setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of manifest error. In determining such amount,
such Bank may use any reasonable averaging and attribution methods.
SECTION 8.4. Taxes. (a) For the purposes of this Section
8.4, the following terms have the following meanings:
"Taxes" means any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings with respect to any
payment by the Borrower pursuant to this Agreement or under any Note, and all
liabilities with respect thereto, excluding (i) in the case of each Bank and
the Agent, taxes imposed on its income, and franchise or similar taxes imposed
on it, by a jurisdiction under the laws of which such Bank or the Agent (as the
case may be) is organized or in which its principal executive office is located
or, in the case of each Bank, in which its Applicable Lending Office is located
and (ii) in the case of each Bank, any United States withholding tax imposed on
such payments but only to the extent that such Bank is subject to United States
withholding tax at the time such Bank first becomes a party to this Agreement.
"Other Taxes" means any present or future stamp or documentary
taxes and any other excise or property taxes, or similar charges or levies,
which arise from any payment made pursuant to this Agreement or under any Note
or from the execution or delivery of, or otherwise with respect to, this
Agreement or any Note.
(b) Any and all payments by the Borrower to or for the
account of any Bank or the Agent hereunder or under any Note shall be made
without deduction for any Taxes or Other Taxes; provided that, if the Borrower
shall be required by law to deduct any Taxes or Other Taxes from any such
payments, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) such Bank or the Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law and (iv) the Borrower
shall furnish to the Agent, at its address referred to in Section 9.1, the
original or a certified copy of a receipt evidencing payment thereof.
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(c) The Borrower agrees to indemnify each Bank and the Agent
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section) paid by such Bank or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or
with respect thereto. This indemnification shall be paid within 15 days after
such Bank or the Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Bank listed on the signature
pages hereof and on or prior to the date on which it becomes a Bank in the case
of each other Bank, and from time to time thereafter if requested in writing by
the Borrower (but only so long as such Bank remains lawfully able to do so),
shall provide the Borrower and the Agent with Internal Revenue Service form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Bank is entitled to benefits under an
income tax treaty to which the United States is a party which exempts the Bank
from United States withholding tax or reduces the rate of withholding tax on
payments of interest for the account of such Bank or certifying that the income
receivable pursuant to this Agreement is effectively connected with the conduct
of a trade or business in the United States.
(e) For any period with respect to which a Bank has failed to
provide the Borrower or the Agent with the appropriate form pursuant to Section
8.4(d) (unless such failure is due to a change in treaty, law or regulation
occurring subsequent to the date on which such form originally was required to
be provided), such Bank shall not be entitled to indemnification under Section
8.4(b) or (c) with respect to Taxes imposed by the United States; provided that
if a Bank, which is otherwise exempt from or subject to a reduced rate of
withholding tax, becomes subject to Taxes because of its failure to deliver a
form required hereunder, the Borrower shall take such steps as such Bank shall
reasonably request to assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to
or for the account of any Bank pursuant to this Section, then such Bank will
change the jurisdiction of its Applicable Lending Office if, in the judgment of
such Bank, such change (i) will eliminate or reduce any such additional
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payment which may thereafter accrue and (ii) is not otherwise disadvantageous
to such Bank.
SECTION 8.5. Base Rate Loans Substituted for Affected Fixed
Rate Loans. If (i) the obligation of any Bank to make, or convert outstanding
Loans to, Euro-Dollar Loans has been suspended pursuant to Section 8.2 or (ii)
any Bank has demanded compensation under Section 8.3 or 8.4 with respect to its
CD Loans or Euro-Dollar Loans and the Borrower shall, by at least five
Euro-Dollar Business Days' prior notice to such Bank through the Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer exist:
(a) all Loans which would otherwise be made by such Bank as
(or continued as or converted into) CD Loans or Euro-Dollar Loans, as
the case may be, shall instead be Base Rate Loans (on which interest
and principal shall be payable contemporaneously with the related
Fixed Rate Loans of the other Banks); and
(b) after each of its CD Loans or Euro-Dollar Loans, as the
case may be, has been repaid (or converted to a Base Rate Loan), all
payments of principal which would otherwise be applied to repay such
Fixed Rate Loans shall be applied to repay its Base Rate Loans
instead.
If such Bank notifies the Borrower that the circumstances giving rise to such
notice no longer apply, the principal amount of each such Base Rate Loan shall
be converted into a CD Loan or Euro-Dollar Loan, as the case may be, on the
first day of the next succeeding Interest Period applicable to the related CD
Loans or Euro-Dollar Loans of the other Banks.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (a) in the case of the Borrower or the Agent, at its address, facsimile
number or telex number set forth on the signature pages hereof, (b) in the case
of any Bank, at its address,
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<PAGE> 58
facsimile number or telex number set forth in its Administrative Questionnaire
or (c) in the case of any party, such other address, facsimile number or telex
number as such party may hereafter specify for the purpose by notice to the
Agent and the Borrower. Each such notice, request or other communication shall
be effective (i) if given by telex, when such telex is transmitted to the telex
number specified in this Section and the appropriate answerback is received,
(ii) if given by facsimile transmission, when transmitted to the facsimile
number specified in this Section and confirmation of receipt is received, (iii)
if given by mail, 72 hours after such communication is deposited in the mails
with first class postage prepaid, addressed as aforesaid or (iv) if given by
any other means, when delivered at the address specified in this Section;
provided that notices to the Agent under Article 2 or Article 8 shall not be
effective until received.
SECTION 9.2. No Waivers. No failure or delay by the Agent or
any Bank in exercising any right, power or privilege hereunder or under any
Note shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.3. Expenses; Indemnification. (a) The Borrower
shall pay (i) all out-of-pocket expenses of the Agent, including reasonable
fees and disbursements of special counsel for the Agent, in connection with the
preparation and administration of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all out-of-pocket expenses incurred by
the Agent and each Bank, including (without duplication) the reasonable fees
and disbursements of counsel, in connection with such Event of Default and
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom.
(b) The Borrower agrees to indemnify the Agent and each Bank,
their respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in
connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be
54
<PAGE> 59
designated a party thereto) brought or threatened relating to or arising out of
this Agreement or any actual or proposed use of proceeds of Loans hereunder;
provided that no Indemnitee shall have the right to be indemnified hereunder
for such Indemnitee's own gross negligence or willful misconduct as determined
by a court of competent jurisdiction.
SECTION 9.4. Sharing of Set-Offs. Each Bank agrees that if
it shall, by exercising any right of set-off or counterclaim or otherwise,
receive payment of a proportion of the aggregate amount of principal and
interest due with respect to any Note held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest due with respect to any Note held by such other Bank,
the Bank receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks, and such other adjustments
shall be made, as may be required so that all such payments of principal and
interest with respect to the Notes held by the Banks shall be shared by the
Banks pro rata; provided that nothing in this Section shall impair the right of
any Bank to exercise any right of set-off or counterclaim it may have and to
apply the amount subject to such exercise to the payment of indebtedness of the
Borrower other than its indebtedness hereunder. The Borrower agrees, to the
fullest extent it may effectively do so under applicable law, that any holder
of a participation in a Note, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim and other rights
with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Borrower in the amount of such
participation.
SECTION 9.5. Amendments and Waivers . Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Borrower and the Required Banks
(and, if the rights or duties of the Agent are affected thereby, by the Agent);
provided that no such amendment or waiver shall, unless signed by all the
Banks, (i) increase or decrease the Commitment of any Bank (except for a
ratable decrease in the Commitments of all Banks) or subject any Bank to any
additional obligation, (ii) reduce the principal of or rate of interest on any
Loan or any fees hereunder, (iii) postpone the date fixed for any payment of
principal of or interest on any Loan or any fees hereunder or for any scheduled
reduction or termination of any Commitment or (iv) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes, or the
number of Banks, which shall be required for the Banks or any of them
55
<PAGE> 60
to take any action under this Section or any other provision of this Agreement.
SECTION 9.6. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that the Borrower
may not assign or otherwise transfer any of its rights under this Agreement
without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or
other institutions (each a "Participant") participating interests in its
Commitment or any or all of its Loans. In the event of any such grant by a
Bank of a participating interest to a Participant, whether or not upon notice
to the Borrower and the Agent, such Bank shall remain responsible for the
performance of its obligations hereunder, and the Borrower and the Agent shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement. Any agreement pursuant to
which any Bank may grant such a participating interest shall provide that such
Bank shall retain the sole right and responsibility to enforce the obligations
of the Borrower hereunder including, without limitation, the right to approve
any amendment, modification or waiver of any provision of this Agreement;
provided that such participation agreement may provide that such Bank will not
agree to any modification, amendment or waiver of this Agreement described in
clause (i), (ii), or (iii) of Section 9.5 without the consent of the
Participant. The Borrower agrees that each Participant shall, to the extent
provided in its participation agreement, be entitled to the benefits of Article
8 with respect to its participating interest. An assignment or other transfer
which is not permitted by subsection (c) or (d) below shall be given effect for
purposes of this Agreement only to the extent of a participating interest
granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or
other institutions (each an "Assignee") all, or a proportionate part
(equivalent to an initial Commitment of not less than $5,000,000) of all, of
its rights and obligations under this Agreement and the Notes, and such
Assignee shall assume such rights and obligations, pursuant to an Assignment
and Assumption Agreement in substantially the form of Exhibit G hereto executed
by such Assignee and such transferor Bank, with (and subject to) the subscribed
consent of the Borrower, which shall not be unreasonably withheld, and the
Agent; provided that if an Assignee is an affiliate of such transferor Bank or
was a Bank immediately
56
<PAGE> 61
prior to such assignment, no such consent shall be required; and provided
further that such assignment may, but need not, include rights of the
transferor Bank in respect of outstanding Money Market Loans. Upon execution
and delivery of such instrument and payment by such Assignee to such transferor
Bank of an amount equal to the purchase price agreed between such transferor
Bank and such Assignee, such Assignee shall be a Bank party to this Agreement
and shall have all the rights and obligations of a Bank with a Commitment as
set forth in such instrument of assumption, and the transferor Bank shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this subsection (c), the transferor
Bank, the Agent and the Borrower shall make appropriate arrangements so that,
if required, a new Note is issued to the Assignee. In connection with any such
assignment, the transferor Bank shall pay to the Agent an administrative fee
for processing such assignment in the amount of $2,500. If the Assignee is not
incorporated under the laws of the United States of America or a state thereof,
it shall deliver to the Borrower and the Agent certification as to exemption
from deduction or withholding of any United States federal income taxes in
accordance with Section 8.4.
(d) Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Note to a Federal Reserve Bank. No such
assignment shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any
Bank's rights shall be entitled to receive any greater payment under Section
8.3 or 8.4 than such Bank would have been entitled to receive with respect to
the rights transferred, unless such transfer is made with the Borrower's prior
written consent or by reason of the provisions of Section 8.2, 8.3 or 8.4
requiring such Bank to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
SECTION 9.7. Collateral. Each of the Banks represents to the
Agent and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.8. Governing Law; Submission to Jurisdiction. This
Agreement and each Note shall be governed by and construed in accordance with
the laws of the
57
<PAGE> 62
State of New York. The Borrower hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York State court sitting in New York City for purposes
of all legal proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. The Borrower irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
SECTION 9.9. Counterparts; Integration; Effectiveness. This
Agreement may be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective upon receipt by the Agent of
counterparts hereof signed by each of the parties hereto (or, in the case of
any party as to which an executed counterpart shall not have been received,
receipt by the Agent in form satisfactory to it of telegraphic, telex,
facsimile or other written confirmation from such party of execution of a
counterpart hereof by such party).
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER,
THE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.11. Confidentiality. The Agent and each Bank
agrees to keep any information delivered or made available by the Borrower
pursuant to this Agreement confidential from anyone other than persons employed
or retained by such Bank who are engaged in evaluating, approving, structuring
or administering the credit facility contemplated hereby; provided that nothing
herein shall prevent any Bank from disclosing such information (a) to any other
Bank or to the Agent, (b) subject to provisions substantially similar to those
contained in this Section, to any other Person if reasonably incidental to the
administration of the credit facility contemplated hereby, (c) upon the order
of any court or administrative agency, (d) upon the request or demand of any
regulatory agency or authority, (e) which had been publicly disclosed other
than as a result of a disclosure by the Agent or any Bank
58
<PAGE> 63
prohibited by this Agreement, (f) in connection with any litigation to which
the Agent, any Bank or its subsidiaries or Parent may be a party, (g) to the
extent necessary in connection with the exercise of any remedy hereunder, (h)
to such Bank's or Agent's legal counsel and independent auditors and (i)
subject to provisions substantially similar to those contained in this Section,
to any actual or proposed Participant or Assignee. The Agent or any Bank, as
the case may be, shall give prompt notice of any disclosure made by it pursuant
to clauses (c) or (f) of this Section; provided that the Agent or such Bank
shall be required to give such notice with respect to any disclosure made by it
pursuant to clause (f) solely to the extent that the interests of the Agent or
such Bank, as the case may be, and the Borrower in the relevant litigation are
not adverse in any material respect.
59
<PAGE> 64
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
QUAKER STATE CORPORATION
By /s/ Paul E. Konney
--------------------------
Title: Vice President
Address:
225 E. John Carpenter Frwy
Irving, TX 75062
Telex:
Facsimile:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ James S. Finch
--------------------------
Title: Vice President
Address: 60 Wall Street
New York, NY 10260
Telex:
Facsimile:
Commitments:
- ------------
$25,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ James S. Finch
--------------------------
Title: Vice President
$25,000,000 NATIONSBANK OF TEXAS, N.A.
By /s/ Malcolm C. Turner
--------------------------
Title: Senior Vice President
60
<PAGE> 65
$25,000,000 TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By: /s/ Matthew H. Hildreth
--------------------------
Title: Vice President
$15,000,000 ABN AMRO BANK, N.V. Houston Agency
By ABN AMRO NORTH AMERICA,
INC., as Agent
By /s/ Robert Cunningham
--------------------------
Title: Vice President & Director
By: /s/ Michael W. DePriest
--------------------------
Title: Vice President & Diretor
Total Commitments
=================
$90,000,000
61
<PAGE> 66
PRICING SCHEDULE
Each of "Euro-Dollar Margin", "CD Margin" and "Facility Fee Rate" means,
for any date, the rates set forth below in the row opposite such term and in
the column corresponding to the "Pricing Level" that applies at such date:
<TABLE>
<CAPTION>
Level I Level II Level III Level IV Level V Level VI
------- -------- --------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
CD Margin 0.295% 0.31% 0.325% 0.35% 0.45% 0.625%
Euro-Dollar 0.17% 0.185% 0.20% 0.225% 0.325% 0.50%
Margin
Facility Fee 0.08% 0.09% 0.10% 0.125% 0.175% 0.25%
Rate
</TABLE>
For purposes of this Schedule, the following terms have the following
meanings, subject to the last paragraph of this Schedule:
"Level I Pricing" applies at any date if, at such date, the
Borrower's long-term debt is rated A or higher by S&P or A2 or higher by
Moody's.
"Level II Pricing" applies at any date if, at such date, (i) the
Borrower's long-term debt is rated A- or higher by S&P or A3 or higher by
Moody's and (ii) Level I Pricing does not apply.
"Level III Pricing" applies at any date if, at such date, (i) the
Borrower's long-term debt is rated BBB+ or higher by S&P or Baa1 or higher by
Moody's and (ii) neither Level I Pricing nor Level II Pricing applies
"Level IV Pricing" applies at any date if, at such date, (i) the
Borrower's long-term debt is rated BBB or higher by S&P or Baa2 or higher by
Moody's and (ii) none of Level I Pricing, Level II Pricing and Level III
Pricing applies.
"Level V Pricing" applies at any date if, at such date, (i) the
Borrower's long-term debt is rated BBB- or higher by S&B or Baa3 or higher by
Moody's and (ii) none of Level I Pricing, Level II Pricing, Level III Pricing
and Level IV Pricing applies.
"Level VI Pricing" applies at any date if, at such date, no other
Pricing Level applies.
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<PAGE> 67
"Moody's" means Moody's Investors Service, Inc.
"Pricing Level" refers to the determination of which of Level I,
Level II, Level III, Level IV, Level V or Level VI applies at any date.
"S&P" means Standard & Poor's Ratings Group.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior unsecured long-term debt securities of the Borrower
without third-party credit enhancement, and any rating assigned to any other
debt security of the Borrower shall be disregarded. The rating in effect at
any date is that in effect at the close of business on such date. In the case
of split ratings from S&P or Moody's, the rating to be used to determine which
Pricing Level is the higher of the two (e.g. BB+/Baa3 results in Level V
Pricing); provided that if the split is more than one full rating category, the
intermediate (or the higher of the two intermediate ratings) will be used
(e.g., BBB+/Baa3 results in Level IV Pricing and BB/Baa2 results in Level V
Pricing).
63
<PAGE> 68
Schedule 4.6
POTENTIAL LIABILITY UNDER TITLE IV OF ERISA
1. Borrower's subsidiary, The Valley Camp Coal Company ("Valley
Camp") and several Valley Camp subsidiaries formerly conducted
coal mining operations and were parties to collective bargaining
agreements with the United Mine Workers of America pursuant to
which contributions were made to the UMWA Health and Retirement
funds. Valley Camp and its subsidiaries ceased active mining
operations in 1992 and 1993. The most recent estimate of the
potential withdrawal liability is $11 million.
2. Borrower's subsidiary, Freedom Freightways, Inc., formerly
conducted trucking operations and employed members of the
International Brotherhood of Teamsters pursuant to a collective
bargaining agreement. Trucking operations concluded in 1995 and a
liability may exist to the Teamsters' Central States Pension Fund.
The most recent estimate of the potential withdrawal liability is
$220,000.
64
<PAGE> 69
EXHIBIT A - Note
NOTE
New York, New York
___________ __, 199_
For value received, QUAKER STATE CORPORATION, a Delaware
corporation (the "Borrower"), promises to pay to the order of
______________________ (the "Bank"), for the account of its Applicable Lending
Office, the unpaid principal amount of each Loan made by the Bank to the
Borrower pursuant to the Credit Agreement referred to below on the maturity
date provided for in the Credit Agreement. The Borrower promises to pay
interest on the unpaid principal amount of each such Loan on the dates and at
the rate or rates provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of Morgan Guaranty
Trust Company of New York, 60 Wall Street, New York, New York.
All Loans made by the Bank, the respective types thereof and all
repayments of the principal thereof shall be recorded by the Bank and, if the
Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to
each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement
dated as of April 17, 1996 among Quaker State Corporation, the banks listed on
the signature pages thereof and Morgan Guaranty Trust Company of New York, as
Agent (as the same may be amended from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
QUAKER STATE CORPORATION
By____________________
Name:
<PAGE> 70
LOANS AND PAYMENTS OF PRINCIPAL
__________________________________________________________________________
Amount Type Amount of
of of Principal Notation
Date Loan Loan Repaid Made By
- --------------------------------------------------------------------------
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
2
<PAGE> 71
EXHIBIT B - Money Market Quote Request
Form of Money Market Quote Request
[Date]
To: Morgan Guaranty Trust Company of New York (the "Agent")
From: Quaker State Corporation
Re: Credit Agreement (as amended, the "Credit Agreement") dated as
of April 17, 1996 among Quaker State Corporation, the Banks
listed on the signature pages thereof and the Agent
We hereby give notice pursuant to Section 2.3 of the Credit
Agreement that we request Money Market Quotes for the following proposed Money
Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount(1) Interest Period(2)
- ------------------- ------------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
____________________
(1) Amount must be $5,000,000 or a larger multiple of
$1,000,000
(2) Not less than one month (LIBOR Auction) or not less than 30
days (Absolute Rate Auction), subject to the provisions of the
definition of Interest Period.
<PAGE> 72
Terms used herein have the meanings assigned to them in the Credit
Agreement.
Quaker State Corporation
By________________________
Name:
Title:
2
<PAGE> 73
EXHIBIT C - Invitation for Money Market Quotes
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to Quaker State Corporation (the
"Borrower")
Pursuant to Section 2.3 of the Credit Agreement dated as of
April 17, 1996 among Quaker State Corporation, the Banks parties thereto and
the undersigned, as Agent, we are pleased on behalf of the Borrower to invite
you to submit Money Market Quotes to the Borrower for the following proposed
Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
- ---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Please respond to this invitation by no later than [2:00 P.M.]
[9:30 A.M.] (New York City time) on [date].
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By______________________
Authorized Officer
<PAGE> 74
EXHIBIT D - Money Market Quote
Form of Money Market Quote
To: Morgan Guaranty Trust Company of New York, as Agent
Re: Money Market Quote to Quaker State Corporation (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
_____________________________
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the following
principal amounts, for the following Interest Periods and at the
following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
- -------- --------- ---------------------------------
$
$
[Provided, that the aggregate principal amount of Money Market Loans
for which the above offers may be accepted shall not exceed
$____________.]**
__________
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the individual
offers exceeds the amount the Bank is willing to lend. Bids must be made for
$5,000,000 or a larger multiple of $1,000,000.
(notes continued on following page)
<PAGE> 75
We understand and agree that the offer(s) set forth
above, subject to the satisfaction of the applicable conditions set
forth in the Credit Agreement dated as of April 17, 1996 among Quaker
State Corporation, the Banks listed on the signature pages thereof and
yourselves, as Agent, irrevocably obligates us to make the Money
Market Loan(s) for which any offer(s) are accepted, in whole or in
part.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
__________
*** Not less than one month or not less than 30 days, as specified in the
related Invitation. No more than five bids are permitted for each Interest
Period.
**** Margin over or under the London Interbank Offered Rate determined for the
applicable Interest Period. Specify percentage (to the nearest 1/10,000 of 1%)
and specify whether "PLUS" or "MINUS".
***** Specify rate of interest per annum (to the nearest 1/10,000th of 1%).
2
<PAGE> 76
EXHIBIT E- Opinion of Counsel for the Borrower
[Closing Date]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
I am Director, Corporate Legal Services of Quaker State
Corporation (the "Borrower") and have acted as counsel for the Borrower in
connection with the Credit Agreement (the "Credit Agreement") dated as of April
17, 1996 among the Borrower, the banks listed on the signature pages thereof,
and Morgan Guaranty Trust Company of New York, as Agent. Terms defined in the
Credit Agreement are used herein as therein defined. This opinion is being
rendered to you at the request of my client pursuant to Section 3.1(b) of the
Credit Agreement.
I have examined originals or copies, certified or otherwise
identified to my satisfaction, of such documents, corporate records,
certificates of public officials and of officers of the Borrower, and other
instruments and have conducted such other investigations of fact and law as I
have deemed necessary or advisable for purposes of this opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. The Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of Delaware and has all corporate
powers and to the best of my knowledge, has all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted, except for governmental licenses, authorizations, consents, and
approvals in jurisdictions the absence of which, in the aggregate, could not
reasonably be expected to have a material adverse effect on the business,
consolidated financial position or consolidated results of operations of the
Borrower and its Consolidated Subsidiaries, considered as a whole.
1
<PAGE> 77
2. The execution, delivery and performance by the Borrower of
the Credit Agreement and the Notes are within the corporate powers of the
Borrower, have been duly authorized by all necessary corporate action, require
no action by or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or by- laws
of the Borrower or, (i) of any agreement or instrument under which Debt in
excess of $10,000,000 has been or may be incurred or (ii) to the best of my
knowledge, of any agreement, instrument (other than any agreement or instrument
described in clause (i)), judgement, binding upon the Borrower or any of its
Subsidiaries or result in the creation or imposition of any Lien on any asset
of the Borrower or any of its Subsidiaries, except, solely with respect to
clause (ii), where such contravention or default could not reasonably be
expected to have a material adverse effect on the business, consolidated
financial position or consolidated results of operations of the Borrower and
its Consolidated Subsidiaries, taken as a whole.
3. The Credit Agreement constitutes a valid and binding
agreement of the Borrower and each Note constitutes a valid and binding
obligation of the Borrower, in each case enforceable in accordance with its
terms except as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting creditors' rights
generally and by general principles of equity.
4. Except as set forth in the Borrower's periodic reports
filed with the Securities and Exchange Commission from time to time and
excepting certain pending or threatened proceedings concerning certain
advertising of the Borrower and a Subsidiary described to the Banks prior to
the date hereof, there is no action, suit or proceeding pending against, or, to
the best of my knowledge, threatened against or affecting, the Borrower or any
of its Subsidiaries before any court or arbitrator or any governmental body,
agency or official, in which, to the best of my knowledge, there is a
reasonable possibility of an adverse decision which could materially adversely
affect the business, consolidated financial position or consolidated results of
operations of the Borrower and its Consolidated Subsidiaries, considered as a
whole, or which in any manner draws into question the validity of the Credit
Agreement or the Notes.
5. Each of the Borrower's Material Subsidiaries is a
corporation validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all
2
<PAGE> 78
corporate powers and, to the best of my knowledge, has all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted, except for governmental licenses,
authorizations, consents, and approvals the absence of which, in the aggregate,
could not reasonably be expected to have a material adverse effect on the
business, consolidated financial position or consolidated results of operations
of the Borrower and its Consolidated Subsidiaries, considered as a whole.
I am a member of the bar of the Commonwealth of Pennsylvania,
and the foregoing opinion is limited to the laws of the Commonwealth of
Pennsylvania, the federal laws of the United States and the General Corporation
law of the State of Delaware.
The foregoing expresses my opinion as of the date hereof and
does not purport to cover future changes in law or fact which may affect the
conclusions reached herein. I undertake no responsibility to update this
opinion in the event of future changes in laws or fact which may affect the
conclusions reached herein.
This opinion is furnished in connection with and as one of the
conditions of closing of the Credit Agreement and may not be used for any other
purpose or disclosed to or relied upon by any party not a party to the Credit
Agreement, except that any addressee may furnish a copy hereof to examiners,
auditors, and any other governmental or regulatory authorities pursuant to any
request thereby or in accordance with any rules or regulations thereof (whether
or not having the force of law), pursuant to subpoena or similar legal process,
or to prospective Participants or Assignees.
Very truly yours,
3
<PAGE> 79
EXHIBIT F - Opinion of Davis Polk & Wardwell
[Closing Date]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the Credit
Agreement (the "Credit Agreement") dated as of April 17, 1996 among Quaker
State Corporation, a Delaware corporation (the "Borrower"), the banks listed on
the signature pages thereof (the "Banks"), and Morgan Guaranty Trust Company of
New York, as Agent (the "Agent"), and have acted as special counsel for the
Agent for the purpose of rendering this opinion pursuant to Section 3.1(c) of
the Credit Agreement. Terms defined in the Credit Agreement are used herein as
therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
We have assumed that the execution, delivery and performance
by the Borrower of the Credit Agreement and the Notes are within the Borrower's
corporate powers and have been duly authorized by all necessary corporate
action.
Upon the basis of the foregoing, we are of the opinion that
the Credit Agreement constitutes a valid and binding agreement of the Borrower
and each Note constitutes a valid and binding obligation of the Borrower, in
each case enforceable in accordance with its terms except as the same may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and by general principles of equity.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York and the
federal laws of the United States
<PAGE> 80
of America. In giving the foregoing opinion, we express no opinion as to the
effect (if any) of any law of any jurisdiction (except the State of New York)
in which any Bank is located which limits the rate of interest that such Bank
may charge or collect.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by any other person without our prior written consent.
Very truly yours,
6
<PAGE> 81
EXHIBIT G - Assignment and Assumption Agreement
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among (NAME OF ASSIGNOR)
(the "Assignor"), (NAME OF ASSIGNEE) (the "Assignee"), QUAKER STATE CORPORATION
(the "Borrower") and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the
"Agent").
WHEREAS, this Assignment and Assumption Agreement (the
"Agreement") relates to the Credit Agreement dated as of April 17, 1996 among
the Borrower, the Assignor and the other Banks party thereto, as Banks, and the
Agent (as amended, the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor
has a Commitment to make Loans to the Borrower in an aggregate principal amount
at any time outstanding not to exceed $__________;
WHEREAS, Committed Loans made to the Borrower by the Assignor
under the Credit Agreement in the aggregate principal amount of $__________ are
outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all
of the rights of the Assignor under the Credit Agreement in respect of a
portion of its Commitment thereunder in an amount equal to $__________ (the
"Assigned Amount"), together with a corresponding portion of its outstanding
Committed Loans, and the Assignee proposes to accept assignment of such rights
and assume the corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise
defined herein shall have the respective meanings set forth in the Credit
Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells
to the Assignee all of the rights of the Assignor under the Credit Agreement to
the extent of the Assigned
<PAGE> 82
Amount, and the Assignee hereby accepts such assignment from the Assignor and
assumes all of the obligations of the Assignor under the Credit Agreement to
the extent of the Assigned Amount, including the purchase from the Assignor of
the corresponding portion of the principal amount of the Committed Loans made
by the Assignor outstanding at the date hereof. Upon the execution and
delivery hereof by the Assignor, the Assignee, [the Borrower and the Agent] and
the payment of the amounts specified in Section 3 required to be paid on the
date hereof (i) the Assignee shall, as of the date hereof, succeed to the
rights and be obligated to perform the obligations of a Bank under the Credit
Agreement with a Commitment in an amount equal to the Assigned Amount, and (ii)
the Commitment of the Assignor shall, as of the date hereof, be reduced by a
like amount and the Assignor released from its obligations under the Credit
Agreement to the extent such obligations have been assumed by the Assignee.
The assignment provided for herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and
sale contemplated in Section 2 hereof, the Assignee shall pay to the Assignor
on the date hereof in Federal funds the amount heretofore agreed between
them.(1) It is understood that facility fees accrued to the date hereof are
for the account of the Assignor and such fees accruing from and including the
date hereof are for the account of the Assignee. Each of the Assignor and the
Assignee hereby agrees that if it receives any amount under the Credit Agreement
which is for the account of the other party hereto, it shall receive the same
for the account of such other party to the extent of such other party's interest
therein and shall promptly pay the same to such other party.
[SECTION 4. Consent of the Borrower and the Agent. This
Agreement is conditioned upon the consent of the Borrower and the Agent
pursuant to Section 9.6(c) of the Credit Agreement. The execution of this
Agreement by the Borrower and the Agent is evidence of this consent. Pursuant
to Section 9.6(c), the Borrower agrees to execute and deliver a Note payable to
the order of the Assignee to evidence the assignment and assumption provided
for herein.]
____________________
(1) Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any portion
of any upfront fee to be paid by the Assignor to the Assignee. It may be
preferable in an appropriate case to specify these amounts generically or by
formula rather than as a fixed sum.
2
<PAGE> 83
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Credit Agreement or any Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
3
<PAGE> 84
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date
first above written.
(NAME OF ASSIGNOR)
By_________________________
Name:
Title:
(NAME OF ASSIGNEE)
By__________________________
Name:
Title:
[QUAKER STATE CORPORATION
By__________________________
Name:
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By__________________________
Name:
Title: ]
4
<PAGE> 1
EXHIBIT 11
COMPUTATION OF NET INCOME PER SHARE
Quaker State Corporation and Subsidiaries
<TABLE>
<CAPTION>
1996 1995
- -------------------------------------------------------------------------------------------------
(in thousands except per share data, unaudited)
<S> <C> <C> <C>
1. Net income $ 5,706 $ 5,596
=================================================================================================
2. Average number of shares of capital stock outstanding 32,819 31,473
3. Shares issuable upon exercise of dilutive stock
options outstanding during the period, based on
average market prices 77 113
4. Shares issuable upon exercise of dilutive stock
options outstanding during the period, based on
higher of average or period-end market prices 98 113
5. Average number of capital and capital equivalent
shares outstanding (2 + 3) 32,896 31,586
6. Average number of capital shares outstanding,
assuming full dilution (2 + 4) 32,917 31,586
7. Net income per capital and capital equivalent share
(1 divided by 5) $ 0.17 $ 0.18
=================================================================================================
8. Net income per capital share assuming full dilution
(1 divided by 6) $ 0.17 $ 0.18
=================================================================================================
</TABLE>
The accompanying notes are an integral part of the financial statements.
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> MAR-31-1996
<CASH> 4,933
<SECURITIES> 0
<RECEIVABLES> 155,676
<ALLOWANCES> 3,514
<INVENTORY> 86,387
<CURRENT-ASSETS> 288,399
<PP&E> 429,626
<DEPRECIATION> 217,652
<TOTAL-ASSETS> 733,161
<CURRENT-LIABILITIES> 164,316
<BONDS> 0
<COMMON> 32,858
0
0
<OTHER-SE> 242,159
<TOTAL-LIABILITY-AND-EQUITY> 733,161
<SALES> 278,781
<TOTAL-REVENUES> 280,807
<CGS> 142,904
<TOTAL-COSTS> 44,208
<OTHER-EXPENSES> 82,071
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,168
<INCOME-PRETAX> 9,456
<INCOME-TAX> 3,750
<INCOME-CONTINUING> 5,706
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 5,706
<EPS-PRIMARY> 0.17
<EPS-DILUTED> 0.17
</TABLE>
