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EXHIBIT 10.17
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
ARRANGED BY BA SECURITIES, INC.
THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this "Amendment
and Restatement") dated as of October 29, 1996, by and among COMPAQ COMPUTER
CORPORATION, a Delaware corporation (the "Company"), the several financial
institutions from time to time party hereto (the "Banks"), and BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as administrative agent for the Banks
(the "Agent").
RECITALS
A. The Company, Banks, and Agent are parties to a U.S. $250,000,000
Revolving Credit Agreement dated as of October 31, 1995 (the "Credit
Agreement").
B. The parties hereto desire to amend such Credit Agreement as set
forth herein and to restate such Credit Agreement in its entirety to read as
set forth in the Credit Agreement with the amendments specified below.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree that the
Credit Agreement shall be amended and restated in its entirety to read as set
forth in the Credit Agreement with the following amendments, and agree as
follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. Amendments to Credit Agreement.
(a) Section 1.01 of the Credit Agreement shall be
amended by amending the following defined terms to read in their entirety as
follows:
"Agreement" means this Amended and Restated Revolving
Credit Agreement.
"Applicable Fee Amount" means, for any date, 0.060%
per annum.
"5-Year Credit Agreement" means that U.S.
$1,000,000,000 Amended and Restated Revolving Credit Agreement dated
as of this date among the Company, BofA as Administrative Agent and
the lenders party thereto, under which such lenders have agreed to
extend credit to the Company on a five-year basis.
"Interest Period" means (a) as to any Adjusted CD
Rate Revolving Loan, the period commencing on the Borrowing Date or on
the Conversion/Continuation Date on which a Revolving Loan is
converted into or continued as an Adjusted CD Rate Revolving Loan, and
ending on the date 30, 60, 90 or 180 days thereafter, as selected by
the Company in its Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, (b) as to any LIBOR
Revolving Loan, the period commencing on the Borrowing Date or on the
Conversion/Continuation Date on which a Revolving Loan is converted
into or continued as a LIBOR Revolving Loan, and ending on the day
which numerically corresponds to such date one,
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two, three or six months thereafter (or if such month has no
numerically corresponding day, on the last Business Day of such
month), as selected by the Company in its Notice of Borrowing or
Notice of Conversion/Continuation, as the case may be, and (c) as to
any Swingline Loan, the period commencing on the Borrowing Date of
such Loan and ending on such date, not more than 10 days later, as
agreed upon by the Company and the Swingline Bank at the time of the
Borrowing of such Loan; provided that:
(i) if any Interest Period pertaining to
a CD Loan would otherwise end on a day that is not a Business
Day, that Interest Period shall be extended to the following
Business Day;
(ii) if any Interest Period pertaining to
an Offshore Loan would otherwise end on a day that is not a
Business Day, that Interest Period shall be extended to the
following Business Day unless the result of such extension
would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the
preceding business Day; and
(iii) no Interest Period for any Loan shall
extend beyond the date set forth in clause (a) of the
definition of "Revolving Termination Date."
"Revolving Termination Date" means the earlier to
occur of:
(a) October 28, 1997; and
(b) the date on which the commitments of the
Banks to make Loans terminate in whole in accordance with
Section 2.07, Section 2.09(b) or 2.09(c) or Section 8.02.
(b) Section 2.06 of the Credit Agreement shall be amended to
read in its entirety as follows:
2.06 Increase of Commitments. The Company shall
have the right, without the consent of the Banks but subject to the
approval of the Agent (which approval shall not be unreasonably
withheld), to effectuate from time to time an increase in the total
Commitments under this Agreement by adding to this Agreement one or
more Persons that are Eligible Assignees (who shall, upon completion
of the requirements stated in this Section, constitute "Banks"
hereunder), or by allowing one or more Banks to increase their
Commitments hereunder, so that such added and increased Commitments
shall equal the increase in Commitments effectuated pursuant to this
Section; provided that (a) no increase in Commitments pursuant to this
Section shall result in the total Commitments exceeding $550,000,000
or shall result in the aggregate amount of the increases in the
Commitments effectuated pursuant to this Section since the date of
this Agreement being in excess of the sum of $50,000,000 plus the
aggregate amount (but not greater than $50,000,000) of all non-ratable
reductions and terminations of Commitments effectuated pursuant to
Section 2.08; (b)no Bank's Commitment shall be increased without the
consent of such Bank; (c) there has occurred and is continuing no
Default or Event of Default, and (d) there has been no ratable
reduction of Commitments pursuant to Section 2.07. The Company shall
deliver or pay, as applicable, to the Agent each of the following
items prior to 11:00 a.m. (Houston time) (i) three Business Days prior
to the requested effective date of such increase in the Commitments,
if such date is a No Loan Date, or (ii) five Business Days prior to
the requested effective date of such increase in the Commitments, if
such date is not a No Loan
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Date:
(A) a written notice of the Company's
intention to increase the total Commitments pursuant to this
Section, which shall specify each new Eligible Assignee, if
any, the changes in amounts of Commitments that will result,
and such other information as is reasonably requested by the
Agent;
(B) a document in form and substance as
may be reasonably required by the Agent, executed and
delivered by each new Eligible Assignee and each Bank agreeing
to increase its Commitment, pursuant to which it becomes a
party hereto or increases its Commitment, as the case may be,
which document, in the case of a new Eligible Assignee, shall
(among other matters) specify the CD Lending Office, Domestic
Lending Office and LIBOR Lending Office of such new Eligible
Assignee;
(C) a Note in the principal amount of
the Commitment of each new Eligible Assignee, or a replacement
Note in the principal amount of the increased Commitment of
each Bank agreeing to increase its Commitment, as the case may
be, executed and delivered by the Company, which Note shall be
in form and substance as may be reasonably required by Agent;
and
(D) a non-refundable processing fee of
$3,500, for the sole account of the Agent.
Upon receipt of any notice referred to in clause (A) above, the Agent
will promptly notify each Bank thereof. Upon execution and delivery
of such documents and the payment of such fee, such new Eligible
Assignee shall constitute a "Bank" hereunder with a Commitment as
specified therein, or such Bank's Commitment shall increase as
specified therein, as the case may be. The Company agrees to pay to
the Banks any and all amounts to the extent payable pursuant to
Section 3.02 as a result of any such increase in the Commitments.
(c) With effect from and after the Effective Date (i) each
Person listed on the signature pages hereof which is not a party to the Credit
Agreement (a "New Bank") shall become a Bank party to the Credit Agreement, as
amended and restated hereby, and (ii) the Commitment of each Bank shall be the
amount set forth opposite the name of such Bank on the signature pages hereof.
Any Bank which was a party to the Credit Agreement but is not listed on the
signature pages hereof shall upon the Effective Date cease to be a Bank party
to the Credit Agreement, as amended and restated hereby, and all accrued fees
and other amounts payable under the Credit Agreement for the account of such
Bank shall be due and payable on such date; provided that the provisions of the
Credit Agreement which expressly survive payment of all Obligations shall inure
to the benefit of, or, as applicable, shall continue to be binding on, such
Bank with respect to the period prior to the Effective Date.
3. Representations and Warranties. The Company hereby represents and
warrants to the Agent and the Banks as follows:
(a) No Default or Event of Default has occurred and is
continuing.
(b) All representations and warranties of the Company
contained in the Credit Agreement are true and correct as though made on and as
of this date.
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(c) The Company is entering into this Amendment and
Restatement on the basis of its own investigation and for its own reasons,
without reliance upon the Agent and the Banks or any other Person.
4. Effective Date. This Amendment and Restatement will become
effective as of October 29, 1996 (the "Effective Date"), provided that each of
the following conditions precedent is satisfied:
(a) The Agent has received from the Company and each of the
Banks a duly executed original (or, if elected by the Agent, an executed
facsimile copy) of this Amendment and Restatement.
(b) The Agent has received from the Company a copy of a
resolution passed by the board of directors of the Company, certified by the
Secretary or an Assistant Secretary of the Company as being in full force and
effect on the date hereof, authorizing the execution, delivery and performance
of this Amendment and Restatement.
(c) The Agent shall have received an opinion of the General
Counsel of the Company and another internal counsel of the Company licensed to
practice law in the State of New York, substantially in the form of Exhibit D-1
and Exhibit D-2 to the Credit Agreement, with reference to this Amendment and
Restatement, the Notes and the Credit Agreement as amended and restated hereby.
(d) The Agent shall have received a certificate signed by a
Responsible Officer of the Company, dated as of the Effective Date, stating
that the representations and warranties set forth in Article V of the Credit
Agreement are true and correct in all material respects and that no Default or
Event of Default has occurred and is continuing or would result as a result of
any Borrowing.
(e) The Agent shall have received a duly executed Note for
each of the New Banks (a "New Note") and a duly executed Amended and Restated
Note (an "Amended Note") in the form of Exhibit A to this Amendment and
Restatement, payable to the order of each of the Banks which is not a New Bank.
5. Reservation of Rights. The Company acknowledges and agrees
that the execution and delivery by the Agent and the Banks of this Amendment
and Restatement shall not be deemed to create a course of dealing or otherwise
obligate the Agent or the Banks to execute any amendments or amendments and
restatements in the future.
6. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants
and provisions of the Credit Agreement are and shall remain in full force and
effect and all references therein and in the other Loan Documents to such
Credit Agreement shall henceforth refer to the Credit Agreement as amended and
restated hereby, and all references in the Credit Agreement and in the other
Loan Documents to the Notes shall refer to the New Notes and the Amended Notes.
The words "hereof", "herein", "hereunder" and similar words contained in the
Credit Agreement shall refer to the Agreement as amended and restated hereby.
(b) This Amendment and Restatement shall be binding upon and
inure to the benefit of the parties hereto and thereto and their respective
successors and assigns. No third party beneficiaries are intended in
connection with this Amendment and Restatement.
(c) This Amendment and Restatement shall be governed by and
construed in accordance
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with the law of the State of New York.
(d) This Amendment and Restatement may be executed in any
number of counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. Each
of the parties hereto understands and agrees that this document (and any other
document required herein) may be delivered by any party thereto either in the
form of an executed original or an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original, and
that receipt by the Agent of a facsimile transmitted document purportedly
bearing the signature of a Bank or the Company shall bind such Bank or the
Company, respectively, with the same force and effect as the delivery of a hard
copy original. Any failure by the Agent to receive the hard copy executed
original of such document shall not diminish the binding effect of receipt of
the facsimile transmitted executed original of such document of the party whose
hard copy page was not received by the Agent.
(e) The Company covenants to pay to or reimburse the Agent,
upon demand, for all costs and expenses (including allocated costs of in house
counsel) incurred in connection with the development, preparation, negotiation,
execution and delivery of this Amendment and Restatement.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment and Restatement as of the date first above written.
COMPAQ COMPUTER CORPORATION
By:
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Title:
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative
Agent
By:
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Title:
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Commitment: $44,761,905 BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Swingline Bank and as a
Bank
By:
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Title:
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Commitment: $43,004,761 CITIBANK, N.A., as Co-Agent and as a Bank
By:
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Title:
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Commitment: $43,004,761 NATIONSBANK TEXAS, N.A., as Co-Agent and
as a Bank
By:
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Title:
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Commitment: $22,800,000 ABN AMRO BANK N.V.
By: ABN AMRO North America, Inc., as agent
By:
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Title:
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By:
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Title:
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Commitment: $22,857,143 BANQUE NATIONALE DE PARIS, HOUSTON AGENCY
By:
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Title:
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Commitment: $22,857,143 COMMERZBANK AG, ATLANTA AGENCY
By:
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Title:
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Commitment: $22,857,143 DEUTSCHE BANK AG
NEW YORK AND/OR CAYMAN ISLANDS BRANCHES
By:
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Title:
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By:
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Title:
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Commitment: $22,857,143 DRESDNER BANK AG
By:
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Title:
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By:
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Title:
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Commitment: $22,857,143 FLEET NATIONAL BANK
By:
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Title:
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Commitment: $22,857,143 XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By:
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Title:
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Commitment: $22,857,143 PNC BANK, N.A.
By:
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Title:
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Commitment: $22,857,143 ROYAL BANK OF CANADA
By:
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Title:
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Commitment: $22,857,143 SOCIETE GENERALE, SOUTHWEST AGENCY
By:
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Title:
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Commitment: $22,857,143 THE CHASE MANHATTAN BANK
By:
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Title:
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Commitment: $22,857,143 THE FIRST NATIONAL BANK OF CHICAGO
By:
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Title:
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Commitment: $22,857,143 THE FUJU BANK, LIMITED, HOUSTON AGENCY
By:
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Title:
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Commitment: $15,000,000 THE SANWA BANK LIMITED, DALLAS AGENCY
By:
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Title:
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Commitment: $22,857,143 THE SUMITOMO BANK, LIMITED, HOUSTON AGENCY
By:
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Title:
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Commitment: $22,857,143 TORONTO DOMINION (TEXAS), INC.
By:
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Title:
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Commitment: $11,428,571 XXXXX FARGO BANK, N.A.
By:
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Title:
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EXHIBIT A
FORM OF
AMENDED AND RESTATED PROMISSORY NOTE
U.S. $__________ Dated: October 29, 1996
FOR VALUE RECEIVED, the undersigned, Compaq Computer Corporation, a
Delaware corporation (the "Company"), HEREBY PROMISES TO PAY to the order of
____________________(the "Bank") for the account of its applicable Lending
Office (as defined in the Credit Agreement referred to below) on the Revolving
Termination Date (as defined in the Credit Agreement) the principal sum of
________ U.S. dollars (U.S. $__________) or, if less, the aggregate unpaid
principal amount of the Revolving Loans (as defined in the $500,000,000 Amended
and Restated Revolving Credit Agreement dated as of October 29, 1996 among the
Company, the Bank, certain other lenders parties thereto and Bank of America
National Trust and Savings Association, as Administrative Agent for the Bank
and such other lenders; such Amended and Restated Revolving Credit Agreement,
as amended or amended and restated from time to time being herein referred to
as the "Credit Agreement") owing to the Bank outstanding on the Revolving
Termination Date (as defined in the Credit Agreement), together with the
principal amount of any outstanding Swingline Loans (as defined in the Credit
Agreement) made by the Bank as Swingline Bank (as defined in the Credit
Agreement).
The Company promises to pay interest on the unpaid principal amount of
each Loan owing to the Bank from the date of such Loan until such principal
amount is paid in full, at such interest rates, and payable at such times, as
are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Bank of America National Trust and Savings Association, as
Administrative Agent, at the Agent's Payment Office (as defined in the Credit
Agreement), in immediately available funds. Each Loan owed to the Bank by the
Company pursuant to the Credit Agreement, and all payments made on account of
principal thereof, shall be recorded by the Bank and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this Amended and
Restated Promissory Note; provided that the failure of the Bank to make any
such recordation or endorsement shall not affect the obligations of the Company
hereunder or under the Credit Agreement.
This Amended and Restated Promissory Note is one of the Notes referred
to in, and is subject to and is entitled to the benefits of, the Credit
Agreement. The Credit Agreement, among other things, (i) provides for the
making of Revolving Loans by the Bank to the Company from time to time in an
aggregate amount not to exceed the U.S. dollar amount first above mentioned and
the making of Swingline Loans by the Bank as Swingline Bank to the Company from
time to time in an aggregate amount not to exceed the Swingline Commitment (as
such terms are defined in the Credit Agreement) the indebtedness of the
Company resulting from each Loan owing to the Bank being evidenced by this
Amended and Restated Promissory Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified. This Amended and
Restated Promissory Note is an amendment and restatement of, and has been
issued by the Company in substitution for and not in satisfaction of, any Note
held by the Bank under the Credit Agreement as in effect prior to the amendment
and restatement thereof effective as of the date hereof.
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This Amended and Restated Promissory Note shall be governed by, and
construed in accordance with, the internal laws of the State of New York.
COMPAQ COMPUTER CORPORATION
By:
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Name:
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Title:
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LOANS AND PAYMENTS OF PRINCIPAL
Amount of
Amount Principal Unpaid
of Type of Paid or Principal Notation
Date Loan Loan Prepaid Balance Made By
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