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EXHIBIT 10.19
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. $1,000,000,000
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,
the per annum percentage amount set forth below based on the
Applicable Rating on such date:
Applicable
Rating Fee Percentage
---------- --------------
A+/A1 (or higher) 0.0600%
A/A2 0.0650%
A-/A3 0.0725%
BBB+/Baa1 0.0800%
BBB/Baa2 0.1000%
BBB /Baa3 0.1500%
BB+/Ba1 0.2000%
(or lower, or no
Applicable Rating)
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"Applicable Margin" means, on any date and
with respect to each CD Loan or Offshore Loan outstanding on
such date, the applicable margin (on a per annum basis) set
forth below based on the Applicable Rating on such date:
Applicable CD Offshore
Rating Loans Loans
---------- ----- --------
A+/A1 (or higher) 0.2000% 0.2000%
A/A2 0.2250% 0.2250%
A-/A3 0.2500% 0.2500%
BBB+/Baa1 0.2800% 0.2800%
BBB/Baa2 0.3750% 0.3750%
BBB /Baa3 0.4000% 0.4000%
BB+/Ba1 0.6250% 0.6250%
(or lower, or no
Applicable Rating)
Provided, that at any time as the aggregate outstanding
principal amount of Revolving Loans, together with the
aggregate outstanding principal amount of "Revolving Loans"
under, and as that term is defined in, the 364-Day Credit
Agreement, exceeds 50% of the combined Commitments of all the
Banks, together with the combined "Commitments" (as that term
is defined in the 364-Day Credit Agreement) of all the lenders
under the 364-Day Credit Agreement (and any time after the
termination of commitments to lend under clause (a) of
Section 8.02 or under paragraph (b) or (c) of Section 2.09
hereof, or of the 364-Day Credit Agreement, as applicable),
the Applicable Margin in respect of CD Loans and Offshore
Loans hereunder shall be increased by an additional 0.125
percentage points.
"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, 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;
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(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 31, 2001; 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.
"Subordinated Debt" means any Debt of the Company (i)
that expressly provides that it is subordinate in right of payment to
the Loans made by the Banks hereunder, and (ii) under the terms of
which no payments of principal shall be payable (whether by scheduled
maturity, required prepayment, or otherwise, unless as a result of the
acceleration of such Debt, in accordance with the terms thereof) prior
to the date set forth in clause (a) of the definition of "Revolving
Termination Date."
"364-Day Credit Agreement" means that U.S.
$500,000,000 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 364-day basis.
(b) 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
(including the Notes) 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 with the law of the State of New York.
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(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:
---------------------------------
Title:
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as
Administrative Agent
By:
---------------------------------
Title:
------------------------------
Commitment: $71,619,048 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Swingline
Bank and as a Bank
By:
---------------------------------
Title:
------------------------------
Commitment: $63,333,333 CITIBANK, N.A., as Co-Agent and as
a Bank
By:
---------------------------------
Title:
------------------------------
Commitment: $63,333,333 NATIONSBANK TEXAS, N.A., as Co-Agent
and as a Bank
By:
---------------------------------
Title:
------------------------------
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Commitment: $36,571,851 ABN AMRO BANK N.V.
By: ABN AMRO North America,
Inc., as agent
By:
---------------------------------
Title:
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By:
---------------------------------
Title:
------------------------------
Commitment: $36,571,429 BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By:
---------------------------------
Title:
------------------------------
Commitment: $20,000,000 BARCLAYS BANK PLC
By:
---------------------------------
Title:
------------------------------
Commitment: $36,571,429 COMMERZBANK AG, ATLANTA AGENCY
By:
---------------------------------
Title:
------------------------------
Commitment: $20,000,000 DEN DANSKE BANK AKTIESELSKAB,
CAYMAN ISLANDS BRANCH
By:
---------------------------------
Title:
------------------------------
By:
---------------------------------
Title:
------------------------------
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Commitment: $36,571,429 DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By:
---------------------------------
Title:
------------------------------
By:
---------------------------------
Title:
------------------------------
Commitment: $36,571,000 DRESDNER BANK AG
By:
---------------------------------
Title:
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By:
---------------------------------
Title:
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Commitment: $10,000,000 FIRST NATIONAL BANK OF BOSTON
By:
---------------------------------
Title:
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Commitment: $36,571,429 FLEET NATIONAL BANK
By:
---------------------------------
Title:
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Commitment: $36,571,429 XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By:
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Title:
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Commitment: $20,000,000 NATIONAL AUSTRALIA BANK LIMITED
By:
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Title:
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Commitment: $20,000,000 NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By:
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Title:
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By:
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Title:
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NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH
By:
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Title:
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By:
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Title:
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Commitment: $36,571,429 PNC BANK, N.A.
By:
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Title:
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Commitment: $46,571,429 ROYAL BANK OF CANADA
By:
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Title:
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Commitment: $36,571,429 SOCIETE GENERALE, SOUTHWEST AGENCY
By:
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Title:
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Commitment: $20,000,000 BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:
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Title:
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Commitment: $56,571,429 THE CHASE MANHATTAN BANK
By:
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Title:
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Commitment: $36,571,429 THE FIRST NATIONAL BANK OF CHICAGO
By:
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Title:
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Commitment: $36,571,429 THE FUJI BANK, LIMITED, HOUSTON
AGENCY
By:
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Title:
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Commitment: $20,000,000 THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., NEW YORK BRANCH
By:
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Title:
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Commitment: $20,000,000 THE NORTHERN TRUST COMPANY
By:
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Title:
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Commitment: $36,571,429 THE SANWA BANK LIMITED, DALLAS AGENCY
By:
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Title:
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Commitment: $36,571,429 THE SUMITOMO BANK, LIMITED,
HOUSTON AGENCY
By:
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Title:
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Commitment: $36,571,429 TORONTO DOMINION (TEXAS), INC.
By:
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Title:
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Commitment: $36,571,429 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 $1,000,000,000 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:
--------------------------------
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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