____________________________________________________________
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended September 30, 1994
Commission File Number 1-9026
COMPAQ COMPUTER CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 76-0011617
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
20555 SH 249, Houston, Texas 77070
(713) 370-0670
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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
(or for such shorter period that the Registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [ x ] No [ ]
The number of shares of the registrant's Common Stock, $.01 par
value, outstanding as of September 30, 1994, was 258.4 million.
____________________________________________________________
<PAGE>
P A R T I. FINANCIAL INFORMATION
Item 1. Financial Statements
COMPAQ COMPUTER CORPORTATION
CONSOLIDATED BALANCE SHEET
(Unaudited)
ASSETS
September 30, December 31,
1994 1993
---------------------------
(in millions)
Current Assets:
Cash & cash equivalents $ 389 $ 627
Short-term investments 3
Accounts receivable, net 2,043 1,377
Inventories 2,301 1,123
Prepaid expenses and other current
assets 228 164
----------- -----------
Total current assets 4,964 3,291
Property, plant, and equipment, less
accumulated depreciation 907 779
Other assets 60 14
------------ -----------
$ 5,931 $ 4,084
============ ===========
LIABILITIES AND STOCKHOLDER'S EQUITY
Current liabilities:
Notes payable $ 346
Accounts payable 832 $ 637
Income taxes payable 98 69
Other current liabilities 820 538
----------- -----------
Total current liabilities 2,096 1,244
----------- -----------
Long-term debt 300
-----------
Deferred income taxes 188 186
----------- ------------
Stockholders' equity:-
Preferred stock, $.01 par value: 10 million
shares authorized; none outstanding
Common stock and capital in excess of $.01 par
value: 400 million shares authorized;
258.4 million shares and 253.0 million
shares issued and outstanding 655 586
Retained earnings 2,692 2,068
----------- -----------
Total stockholders' equity 3,347 2,654
----------- -----------
$ 5,931 $ 4,084
=========== ===========
See accompanying notes to consolidated financial data
<PAGE>
COMPAQ COMPUTER CORPORATION
CONSOLIDATED STATEMENT OF INCOME
(Unaudited)
Nine months ended Quarter ended
September 30, September 30,
1994 1993 1994 1993
----------------------------------------
(in millions, except per share amounts)
Sales $7,615 $4,989 $2,838 $1,746
Cost of sales 5,682 3,813 2,185 1,333
------ ------ ------ ------
$1,933 $1,176 $ 653 $ 413
------ ------ ------ ------
Research & Development costs 165 126 58 47
Selling, general, and
administrative expense 867 586 310 209
Other income & expense,net 58 51 14 13
------ ------ ------ ------
1,090 763 382 269
------ ------ ------ ------
Income before provision
for income taxes 843 413 271 144
Provision for income taxes 219 102 70 37
------ ------ ------ ------
Net income $ 624 $ 311 $ 201 $ 107
====== ====== ====== ======
Earnings per common and
common equivalent share:
Primary $ 2.33 $ 1.23 $ 0.75 $ 0.42
====== ====== ====== ======
Assuming full
dilution $ 2.33 $ 1.22 $ 0.75 $ 0.42
====== ====== ====== ======
Shares used in computing
earnings per common and
common equivalent share:
Primary 267.9 252.1 268.8 254.1
====== ====== ====== ======
Assuming full
dilution 268.1 254.1 268.8 255.6
====== ====== ====== ======
See accompanying notes to consolidated financial data
<PAGE>
COMPAQ COMPUTER CORPORATION
CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
Nine months
ended September 30,
1994 1993
-------- --------
(in millions)
Cash flows from operating activities:
Cash received from customers $ 6,970 $ 4,758
Cash paid to suppliers and employees (7,365) (4,574)
Interest and dividends received 17 14
Interest paid (54) (45)
Income taxes paid (187) (66)
-------- --------
Net cash provided by (used in)
operating activities (619) 87
-------- --------
Cash flows from investing activities:
Purchases of property, plant, and equipment, net (260) (115)
Purchases of short-term investments (69)
Maturities of short-term investments 66
Other, net (46) (3)
-------- --------
Net cash used in investing activities (309) (118)
-------- --------
Cash flows from financing activities:
Proceeds from sale of equity securities 68 80
Proceeds from short-term borrowings 346
Issuance of long-term debt 300
-------- --------
Net cash provided by financing activities 714 80
-------- --------
Effect of exchange rate changes on cash (24) 13
-------- --------
Net increase (decrease) in cash
and cash equivalents (238) 62
Cash and cash equivalents at beginning of period 627 357
-------- --------
Cash and cash equivalents at end of period $ 389 $ 419
======== ========
Reconciliation of net income to net cash
provided by (used in) operating activities:
Net income $ 624 $ 311
Depreciation and amortization 125 119
Provision for bad debts 28 21
Deferred income taxes 3
Currency exchange losses 25 14
Increase in accounts receivable (656) (253)
Increase in inventories (1,177) (425)
Decrease (increase) in prepaid expenses and
other current assets (62) 19
Increase in accounts payable 193 114
Increase in income taxes payable 29 36
Increase in other current liabilities 249 131
-------- --------
Net cash provided by (used in) operating activities $ (619) $ 87
======== ========
See accompanying notes to consolidated financial data
<PAGE>
COMPAQ COMPUTER CORPORATION
NOTES TO CONSOLIDATED FINANCIAL DATA
Note 1 - Basis of presentation
The accompanying unaudited financial data as of September 30, 1994 and
December 31, 1993 and for the three month and nine month periods ended
September 30, 1994 and 1993 have been prepared on substantially the same
basis as the annual consolidated financial statements. In the opinion of the
Company, the data reflect all adjustments, consisting only of normal
recurring adjustments, necessary for a fair presentation of the
results for those periods and the financial condition at those dates.
Note 2 - Adoption of Statement of Financial Accounting Standards No.115
In January 1994 the Company adopted Statement of Financial Accounting
Standards No. 115 (FAS 115), Accounting for Certain Investments in
Debt and Equity Securities. The adoption of FAS 115 was not material
to the Company's financial statements.
Note 3 - Inventories
Inventories consisted of the following components:
September 30, December 31,
1994 1993
------- -------
(in millions)
Raw materials $ 1,072 $ 535
Work-in-process 248 90
Finished goods 981 498
------- -------
$ 2,301 $ 1,123
======= =======
Note 4 - Notes payable
At September 30, 1994, the Company had $346 million of short-term bank
borrowings outstanding under various bank arrangements.
In August 1994 the Company entered into agreements which provide for a
syndicated revolving credit facility of $500 million. No amounts had
been borrowed under this facility at September 30, 1994.
Note 5 - Long-term debt
In March 1994 the Company issued $300 million in senior notes,
including $150 million 6 1/2% notes due March 15, 1999 and $150
million 7 1/4% notes due March 15, 2004. Interest on the notes is
payable semi-annually on March 15 and September 15. The notes are not
redeemable prior to maturity and are not entitled to any sinking fund.
Note 6 - Other income and expense
Other income and expense consisted of the following components:
Nine months Three months
ended ended
September 30, September 30,
1994 1993 1994 1993
----- ----- ----- -----
(in millions)
Interest and dividend income $(17) $(14) $ (4) $ (6)
Interest expense associated with hedging 8 18 1 5
Other interest expense 45 28 18 9
Currency exchange losses, net 25 14 2 3
Other, net (3) 5 (3) 2
----- ----- ----- -----
$ 58 $ 51 $ 14 $ 13
===== ===== ===== =====
Note 7 - Earnings per share
All share and per-share information has been retroactively restated in
the accompanying financial data to reflect the three-for-one stock
split effected in the form of a 200% stock dividend declared by the
Company in April 1994.
<PAGE>
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
The following discussion should be read in conjunction with the
consolidated interim financial statements.
Results of Operations
The following table presents, as a percentage of sales,
certain selected financial data for the three month and nine month
periods ended September 30, 1994 and 1993.
Periods ended September 30,
Nine months Three months
1994 1993 1994 1993
------------------------------
Sales 100.0% 100.0% 100.0% 100.0%
Cost of sales 74.6 76.4 77.0 76.3
------------------------------
Gross margin 25.4 23.6 23.0 23.7
------------------------------
Research and development costs 2.2 2.5 2.0 2.7
Selling, general, and
administrative expense 11.4 11.8 10.9 12.0
Other income and expense, net .7 1.0 .6 .7
------------------------------
14.3 15.3 13.5 15.4
------------------------------
Income from consolidated companies
before provision for income taxes 11.1% 8.3% 9.5% 8.3%
==============================
Sales
Sales increased 63% and 53% in the third quarter and first
nine months of 1994, respectively, over the comparable periods of
1993 and 14% over the second quarter of 1994. Sales of systems
products grew 74%; portable products 59%; and desktop products
65% in the third quarter of 1994 compared to the same period of
1993. North American sales represented 50% and 52% of total sales
in the third quarter and first nine months of 1994, respectively,
as compared with 52% and 51% in the corresponding periods of
1993. European sales represented 33% and 34% of total sales in
the third quarter and first nine months of 1994, respectively, as
compared with 36% and 39% in the corresponding periods of 1993.
Other international sales, excluding Canada, represented 17% and
14% of the total sales in the third quarter and first nine months
of 1994 as compared with 12% and 11% in the comparable periods of
1993.
The Company's significant increase in consolidated sales in
the third quarter of 1994 stemmed primarily from an increase in
the number of units sold. Total computer unit sales increased 59%
in the third quarter of 1994 over the comparable period of 1993.
Unit sales growth primarily resulted from increased market
penetration led by the Company's aggressively priced Compaq
ProLinea (R), Deskpro (R), and Presario (R) desktop products, the Compaq
Elite TM notebook computers and Compaq Contura Aero TM subnotebook
computers, and the Prosignia TM VS systems products.
Unit growth did not translate directly into revenue growth
because of currency fluctuations and product mix. The average
aggregate revenue per unit increased in the third quarter of 1994
over the comparable period of 1993, primarily as a result of
currency fluctuations and product mix offset to some extent by
pricing actions and lower prices of the Company's products aimed
at the small business and consumer markets, which are an
increased portion of the Company's business. Competition
continues to have a significant impact on prices of the Company's
products and the Company anticipates additional pricing actions
as it attempts to maintain its strategy of increasing market
share. The Company attempts to mitigate the impact on
profitability of any pricing actions through implementation of
effective design to cost goals, the aggressive pursuit of reduced
component costs, manufacturing efficiencies, the control of
operating expenses, and the design of effective logistics
processes that lower costs associated with timely product
delivery.
Gross Margin
Gross margin as a percentage of sales fell to 23.0% in the
third quarter of 1994 compared to 23.7% in the third quarter of
1993 and 26.6% in the second quarter of 1994. The decline in
gross margin levels in the third quarter of 1994 primarily
resulted from pricing actions, promotional activities associated
with product transitions, manufacturing related costs associated
with product transitions, and a decrease in the proportion of
sales of the Company's higher margin products, which were
partially offset by currency fluctuations and reduced component
costs. The Company maintains a strategy designed to increase its
market share and continues to expand its presence in the price
sensitive consumer market segment. This strategy, along with the
expectation of a continued aggressive pricing environment, will
continue to put pressure on the Company's gross margins, and the
Company's gross margin level in the third quarter of 1994
reflects the business outlook for the remainder of the year and
1995.
Operating Expenses
Research and development costs increased 24% and 32% in
absolute dollars in the third quarter and first nine months of
1994, respectively, as compared with the corresponding periods of
1993 while declining as a percentage of sales. The Company is
committed to continuing significant research and development
programs and research and development costs are likely to remain
steady as a percentage of sales in the last quarter of 1994 while
increasing in absolute dollars.
Selling, general, and administrative expense increased 49%
and 48% in absolute dollars in the third quarter and first nine
months of 1994, respectively, as compared with the corresponding
period of 1993, while declining as a percentage of sales. The increase
in the amount of expense resulted from domestic and international
selling expense associated with higher unit volumes as well as
expense incurred in connection with the introduction of new
products, the entry into new markets (both domestically and
internationally), the expansion of distribution channels, and a
greater emphasis on advertising, customer service, and technical
support. The Company anticipates that selling, general and
administrative expenses will remain relatively stable as a
percentage of sales while increasing in absolute dollars in the
fourth quarter of 1994.
Other Items
Other income and expense in the third quarter of 1994 was an
expense of $14 million. In the third quarter of 1994 compared to
the corresponding period of 1993, the Company experienced higher
net interest expense in absolute dollars, which resulted from
interest costs incurred in connection with the Company's issuance
of $300 million of debt securities in March 1994, an increase in
interest expense in connection with financing resellers'
inventories, an increase in interest expense in connection with
borrowings under the Company's lines of credit, a decline in
interest earned on investable cash due to lower cash levels, and
a decrease in interest expense associated with the Company's
foreign exchange hedging program.
The translation gains and losses relating to the financial
statements of the Company's international subsidiaries, net of
offsetting gains and losses associated with hedging activities
related to the net monetary assets of these subsidiaries, are
included in other income and expense and were a net loss of $2
million in the third quarter of 1994, compared to a net loss of
$3 million in the third quarter of 1993.
Provision for Income Taxes
The Company estimates the effective tax rate for 1994 will
be 26%, an increase from 25% in 1993. The increase is
attributable to higher profitability and a decline in the
proportion of earnings derived from its Singaporean subsidiaries
to total Company earnings. The Company's favorable tax rate is
dependent upon its mix of international sales and full
utilization of Singaporean manufacturing facilities. A portion of
the undistributed earnings of the Company's Singaporean
subsidiaries are invested indefinitely in operations outside the
United States and, as a result, the Company is not taxed on these
earnings, which lowers its effective tax rate.
Liquidity and Capital Resources
At September 30, 1994, the Company had working capital of
approximately $2.9 billion compared to $2.0 billion at December
31, 1993.
The Company's cash, cash equivalents, and short-term
investments decreased to $392 million at September 30, 1994, from
$627 million at December 31, 1993, primarily because of increases
in inventories and accounts receivable related to the Company's
support of higher production and sales volumes, partially offset
by the Company's issuance of $300 million in debt securities
during the first quarter, borrowings under the Company's lines of
credit, and cash received in connection with the exercise of
employee stock options. Accounts receivable increased to $2.0
billion at September 30, 1994, from $1.4 billion at December 31,
1993, primarily as a result of higher sales levels. Inventory
levels increased to $2.3 billion from $1.1 billion during that
period. The increase in inventory resulted from delays in product
development which led to increases in component inventories, a
different sales mix than anticipated, and production planning in
support of anticipated fourth quarter demand and product
transitions.
Cash used in the first nine months of 1994 for the purchase
of property, plant and equipment totaled $260 million, including
$111 million in the third quarter. The Company estimates that
capital expenditures for land, buildings, and equipment during
the remainder of 1994 will be approximately $100 million. The
Company has commitments for only a small portion of such amounts
and the actual level of spending will depend on a variety of
factors, including general economic conditions and the Company's
business.
The Company currently expects to fund expenditures for
capital requirements as well as liquidity needs created by
changes in working capital from a combination of available cash
balances, internally generated funds, and financing arrangements.
The Company from time to time may borrow funds for actual or
anticipated funding needs or because it is economically
beneficial to borrow funds for the Company's needs instead of
repatriating funds in the form of dividends from its foreign
subsidiaries. The Company has outstanding debt securities of $300
million and short-term bank borrowings of $346 million. In August
the Company entered into agreements for a $500 million syndicated
credit facility, which remains unused as of the end of the third
quarter.
Factors that May Affect Future Results
The Company participates in a highly volatile industry that
is characterized by rapidly changing customer demand patterns and
fierce industry-wide competition for market share resulting in
aggressive pricing practices. In anticipation of continued growth
and expansion of its market share, the Company continues to
expand manufacturing and distribution capacity as well as
reengineer its internal processes. The Company's operating
results could be adversely affected should the Company be unable
to anticipate customer requirements accurately, to maintain short
design cycles while meeting evolving industry performance
standards, to manage its product transitions, inventory levels,
and manufacturing processes, or to distribute its products
quickly and efficiently in response to customer demand.
The Company has increased its inventory levels in support of
anticipated higher sales. In the event of a drop in worldwide
demand for PC products, lower than anticipated demand for one or
more of the Company's products in inventory, or a decline in the
pace at which the Company increases its market share, there could
be an adverse impact on sales and profitability. In order to
maintain or increase its market share, the Company must continue
to price its products competitively and from time to time may use
various incentive programs to increase sales. Some of these
strategies lower the average sales price per unit and may cause
declines in gross margin and profitability. Other sales
incentives increase operating expenses and may lower
profitability. To compensate for the impact of reduced prices and
sales incentives on its sales, gross margins, and profitability,
the Company must increase unit shipments, aggressively reduce
costs, and maintain tight control over operating expenses. If the
Company takes pricing actions and does not achieve significant
unit shipment increases, however, there could be an adverse
impact on sales, gross margins, and profitability.
The Company's product strategy focuses in part on marketing
products with distinctive features that comply with evolving
industry performance standards, meet customer quality
expectations, and are available at prices appealing to a variety
of purchasers. Because of the pace of technological advances in
the personal computer industry, the Company must introduce new
products on a timely basis that offer customers the latest
competitive technologies while managing the production and
marketing cycles of its existing products. If the Company were
unable to manage its product transitions successfully or to meet
customer quality expectations, it could experience an adverse
impact on sales and manufacturing and materials related costs,
including product obsolescence, which would negatively affect
profitability.
Although the Company designs many of its own components for
its products, across the Company's product range certain elements
of product strategy are dependent on technological developments
by, and manufacturing capacities of, other manufacturers. In
managing its production levels, product transitions, and
developments in microprocessor and other component technology,
the Company must develop and implement effective strategies that
anticipate component availability and pricing by suppliers as
well as forecast customer demand for its products. The Company
attempts to select suppliers that can provide sufficient and
timely supplies of high quality components. There can be no
assurance, however, that the Company will obtain the delivery of
the technology needed to introduce new products in a timely
manner, will acquire a sufficient supply of component shipments
utilizing such technology to deliver high volumes of its
products, will manage the lead times required to obtain
components to respond to short term shifts in customer demand
patterns, or will be able to obtain any competitive advantage in
access to new technology. If the Company were unable to develop
and launch new products in a timely fashion or unable to produce
its products in significant unit volumes, this failure could have
a material adverse effect on the Company's business.
Because of rapid technological changes in the computer
industry, extensive patent and copyright coverage, and the rapid
establishment of new copyright and patent rights, certain
components of the Company's products designed by the Company or
purchased from third parties may unknowingly infringe
intellectual property rights of others. The Company believes,
based in part on industry practices, that if any infringements do
exist, the Company will be able to modify its products to avoid
infringement, obtain components that do not infringe, or obtain
licenses or rights to such intellectual property rights on terms
not having a material adverse effect on the Company. There can be
no assurance, however, that the Company will be able to ensure
that component supplies and the cost of components are not
adversely affected by legal proceedings in which an adverse
determination is made with respect to intellectual property
rights. In order to minimize the impact to the Company of claims
of infringement, the Company is pursuing an active patent
portfolio development plan.
During 1994 the Company continued to broaden its product
distribution. Offering its products in an increasing number of
geographic locations and through a variety of distribution
channels, including distributors, mail order, electronics
superstores and other consumer retail outlets, requires the
Company to increase its geographic presence and to provide
increased levels of sales and support interface with customers.
There can be no assurance, however, that this direction will be
effective, or that the requisite service and support to ensure
the success of the Company's operations in new locations or
through new channels can be achieved in a cost effective manner.
While the Company anticipates that its geographic expansion will
continue and the number of outlets for its products will continue
to increase during the remainder of 1994 and in 1995, a reduction
in this growth could affect sales and profitability. Geographic
expansion, particularly the expansion of manufacturing operations
in developing countries, such as Brazil and China, also subjects
the Company to a number of political and economic risks, such as
currency devaluation and expropriation.
The Company's primary means of distribution remains third-
party resellers. The Company continuously monitors and manages
the credit it extends to resellers and attempts to limit credit
risks by broadening its distribution channels, utilizing certain
risk transfer instruments, and obtaining security interests in
property owned by its debtors. The Company's business could be
adversely affected, however, in the event that the generally weak
financial condition of third-party computer resellers worsens.
Upon the financial failure of a major reseller, the Company could
experience disruptions in its distribution as well as the loss of
the unsecured portion of any outstanding accounts receivable. The
Company believes that the continued expansion of its distribution
outlets and geographic growth will help mitigate any potential
impact on its sales.
The value of the U.S. dollar continues to affect the
Company's financial results. The functional currency for the
Company's international subsidiaries is the U.S. dollar. When the
U.S. dollar strengthens against other currencies, sales made in
those currencies translate into fewer sales in U.S. dollars; and
when the U.S. dollar weakens, sales made in local currencies
translate into higher sales in U.S. dollars. Correspondingly,
costs and expenses incurred in non-U.S. dollar currencies
increase when the U.S. dollar weakens and decline when the U.S.
dollar strengthens. Accordingly, changes in exchange rates may
positively or negatively affect the Company's consolidated sales
(as expressed in U.S. dollars), gross margins, and operating
expenses, and the Company's results of operations can be
significantly affected in the short term by fluctuations in
foreign currency exchange rates. From time to time the Company
engages in hedging programs aimed at limiting in part the impact
of currency fluctuations. Through these programs the Company
hedges a portion of anticipated sales of its international
marketing subsidiaries using purchased foreign currency option
contracts, hedges its Japanese-yen denominated purchase
commitments through the use of forward exchange contracts and
option contracts, and hedges its non-U.S. dollar net monetary
assets through the use of forward and option contracts. Although
these programs may reduce the impact of changes in currency
exchange rates, when the U.S. dollar sustains a strengthening
position against currencies in which the Company sells its
products or a weakening exchange rate against currencies in which
the Company incurs costs, particularly the Japanese yen, the
Company's sales or its costs are adversely affected.
General economic conditions have an impact on the Company's
business and financial results. From time to time the markets in
which the Company sells its products experience weak economic
conditions that may negatively affect sales of the Company's
products. Although the Company does not consider its business to
be highly seasonal, it has experienced seasonally higher sales
and earnings in the first and fourth quarters of the year. The
continued expansion of its retail business is likely to result in
the increased seasonality of the Company's business, particularly
in the second half of the year, and its financial results being more
dependent on retail business fluctuations.
Because of the foregoing factors, as well as other variables
affecting the Company's operating results, past financial
performance should not be considered a reliable indicator of
future performance, and investors should not use historical
trends to anticipate results or trends in future periods. In
addition, the Company's participation in a highly dynamic
industry often results in significant volatility of the Company's
common stock price.
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
The Company has been named as a defendant in a number of
repetitive stress injury lawsuits, primarily in New York state
courts or federal district courts for the New York City area. In
each of these lawsuits the plaintiff alleges that he or she
suffers from symptoms generally known as repetitive stress
injury, which allegedly were caused by the design of the keyboard
supplied with the computer the plaintiff used. The suits naming
the Company are similar to those filed against other major
suppliers of personal computers. Ultimate resolution of the
litigation against the Company may depend on progress in
resolving this type of litigation overall. The Company is unable
to determine at this time the outcome of these suits or the
likelihood of the Company's being named in additional suits by
plaintiffs' alleging similar injuries. The Company has denied
these claims and intends to defend vigorously the suits. The
Company believes that the claims will not have a material adverse
effect on the Company's financial results of operations or its
financial position.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibit No. Description
10.14 $200,000,000 Revolving Credit Agreement dated as
of August 1, 1994, among Compaq Computer Corporation,
the banks signatory thereto and Bank of America
National Trust and Savings Association, as
Administrative Agent, and NationsBank of Texas,
National Association as Co-agent
10.15 $300,000,000 Revolving Credit Agreement dated as
of August 1, 1994, among Compaq Computer Corporation,
the banks signatory thereto and Bank of America
National Trust and Savings Association, as
Administrative Agent, and NationsBank of Texas,
National Association as Co-agent
11 Statement regarding computation of per share earnings
27 Financial Data Schedule
(b) Reports on Form 8-K
1. Report on Form 8-K dated October 19, 1994, containing the
Company's news release dated October 19, 1994, with respect
to its interim financial results for the periods ended
September 30, 1994, including an unaudited consolidated
balance sheet as of September 30, 1994, and an unaudited
consolidated statement of income for the periods ended
September 30, 1994
All other items specified by Part II of this report are
inapplicable and accordingly have been omitted.
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.
October 27, 1994 Compaq Computer Corporation
/s/ DARYL J. WHITE
-----------------------------------
Daryl J. White, Senior Vice President,
Finance, and Chief Financial Officer
(as authorized officer and as principal
financial officer)
EXHIBIT 11
COMPAQ COMPUTER CORPORATION
STATEMENT RE COMPUTATION OF PER SHARE EARNINGS
FOR THE PERIODS ENDED SEPTEMBER 30
Primary earnings Fully diluted earnings
per share per share
Nine Three Nine Three
months months months months
-------- -------- -------- --------
(in millions, except per share amounts)
1994
----
Shares:
Weighted average number of
shares outstanding 256.8 258.0 256.8 258.0
Incremental shares attributed
to outstanding options 11.1 10.8 11.3 10.8
-------- -------- -------- --------
267.9 268.8 268.1 268.8
======== ======== ======== ========
Earnings:
Net income $ 624 $ 201 $ 624 $ 201
======== ======== ======== ========
Earnings per common and common
equivalent share $ 2.33 $ 0.75 $ 2.33 $ 0.75
======== ======== ======== ========
1993
----
Shares:
Weighted average number of
shares outstanding 244.2 247.0 244.2 247.0
Incremental shares attributed
to outstanding options 7.9 7.1 9.9 8.6
-------- -------- -------- --------
252.1 254.1 254.1 255.6
======== ======== ======== ========
Earnings:
Net income $ 311 $ 107 $ 311 $ 107
======== ======== ======== ========
Earnings per common and common
equivalent share $ 1.23 $ 0.42 $ 1.22 $ 0.42
======== ======== ======== ========
All share and per-share information has been retroactively restated in the
accompanying financial data to reflect the three-for-one stock split
effected in the form of a 200% stock dividend declared by the Company in
April 1994.
EXHIBIT 10.14
U.S. $200,000,000
REVOLVING CREDIT AGREEMENT
Dated as of August 1, 1994
among
COMPAQ COMPUTER CORPORATION,
THE BANKS PARTY HERETO
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
As Administrative Agent
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION,
Co-Agent
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms 1
1.02 Other Interpretive Provisions 12
1.03 Accounting Principles 12
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments 12
2.02 Notes 13
2.03 Procedure for Borrowings 13
2.04 Conversion and Continuation Elections
for Borrowings 14
2.05 Increase of Commitment 15
2.06 Ratable Reduction or Termination of Commitments 16
2.07 Non-Ratable Reduction or Termination
of Commitments 16
2.08 Optional and Mandatory Prepayments 17
2.09 Repayment 17
2.10 Interest 18
2.11 Fees 18
2.12 Computation of Fees and Interest 18
2.13 Interest Rate Determination and Protection 18
2.14 Payments by the Company 19
2.15 Payments by the Banks to the Agent 20
2.16 Sharing of Payments, Etc 21
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes 21
3.02 Breakage Costs 22
3.03 Increased Costs 22
3.04 Illegality 23
3.05 Reserves on LIBOR Loans 24
3.06 Replacement of Bank; Termination of Bank 24
3.07Reallocation of Commitments in Event of Merger, Etc 25
3.08 Certificates of Banks 26
3.09 Survival 26
ARTICLE IV
CONDITIONS PRECEDENT
4.01 Conditions of Initial Loans 27
4.02 Conditions to All Borrowings 28
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Corporate Existence 28
5.02 Corporate Power 28
5.03 Authorization and Approvals 29
5.04 Enforceable Obligations 29
5.05 Financial Statements 29
5.06 Litigation 29
5.07 Regulation U; Use of Proceeds 29
5.08 Investment Company Act 30
5.09 ERISA 30
5.10 Holding Company 30
5.11 Environmental Condition 30
5.12 No Material Adverse Change 30
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01 Compliance with Laws Etc 31
6.02 Reporting Requirements 31
6.03 Use of Proceeds 32
6.04 Maintenance of Insurance 32
6.05 Corporate Existence Etc 32
6.06 Visitation Rights 32
ARTICLE VII
NEGATIVE COVENANTS
7.01 Consolidated Tangible Net Worth 33
7.02 Liens 33
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Event of Default 33
8.02 Remedies 34
8.03 Rights Not Exclusive 34
ARTICLE IX
THE AGENT
9.01 Appointment and Authorization 35
9.02 Delegation of Duties 35
9.03 Liability of Agent 35
9.04 Reliance by Agent 35
9.05 Notice of Default 36
9.06 Credit Decision 36
9.07 Indemnification 37
9.08 Agent in Individual Capacity 37
9.09 Successor Agent 37
9.10 Withholding Tax 38
9.11 Co-Agent 39
ARTICLE X
MISCELLANEOUS
10.01 Amendments and Waivers 39
10.02 Notices 40
10.03 No Waiver: Cumulative Remedies 41
10.04 Costs and Expenses 41
10.05 Indemnity 41
10.06 Payments Set Aside 42
10.07 Binding Effect; Assignments; Participations 42
10.08 Set-off 43
10.09 Interest 44
10.10 Confidentiality 45
10.11 Preservation of Certain Matters 46
10.12 Notification of Addresses, Lending Offices Etc 46
10.13 Counterparts 46
10.14 Severability 46
10.15 Governing Law; Jurisdiction 46
10.16 ENTIRE AGREEMENT 47
SCHEDULES
Schedule 10.02 Notice Addresses, Payment and Lending Offices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D-1 Form of Opinion of Senior Vice
President and General Counsel of the Company
Exhibit D-2 Form of Opinion of Vinson & Elkins L.L.P.,
Counsel to the Company
Exhibit E Form Note
REVOLVING CREDIT AGREEMENT
dated as of August 1, 1994
COMPAQ COMPUTER CORPORATION, a Delaware corporation (the
"Company"), the several financial institutions from time to time
party to this Agreement (collectively, the "Banks", and
individually, a "Bank"), and Bank of America National Trust and
Savings Association, as administrative agent for the Banks, agree
as follows.
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. The following terms have the
following meanings:
"Acquiring Entity" has the meaning specified in Section
3.07.
"Adjusted CD Rate" means, for any Interest Period for each
Adjusted CD Rate Loan comprising part of the same Borrowing, an
interest rate per annum equal to the sum of:
(a) the rate per annum obtained by dividing (i) the
rate of interest determined by the Agent to be the average
(rounded upward to the nearest whole multiple of 1/100 of 1%
per annum, if such average is not such a multiple) of the
consensus bid rate determined by each of the Reference Banks
for the bid rates per annum, at 9:00 a.m. (Houston time) (or
as soon thereafter as practicable) on the first day of such
Interest Period, of New York certificate of deposit dealers
of recognized standing selected by such Reference Bank for
the purchase at face value of certificates of deposit of
such Reference Bank in an amount substantially equal to such
Reference Bank's Adjusted CD Rate Loan comprising part of
such Borrowing and with a maturity equal to such Interest
Period (provided that, if bid rate quotes from such dealers
are not available to any Reference Bank, such Reference Bank
shall notify the Agent of a reasonably equivalent rate
determined by it on the basis of another source or sources
selected by it), by (ii) a percentage equal to 100% minus
the Adjusted CD Rate Reserve Percentage for such Interest
Period, plus
(b) the Assessment Rate for such Interest Period.
The Adjusted CD Rate for the Interest Period for each
Adjusted CD Rate Loan comprising part of the same Borrowing
shall be determined by the Agent on the basis of applicable
rates furnished to and received by the Agent from the
Reference Banks on the first day of such Interest Period,
subject however, to the provisions of Section 2.13.
"Adjusted CD Rate Loan" means a Loan which bears interest at
the Adjusted CD Rate plus the Applicable Margin.
"Adjusted CD Rate Reserve Percentage" for any Interest
Period for each Adjusted CD Rate Loan comprising part of the same
Borrowing means the reserve percentage applicable on the first
day of such Interest Period under regulations issued from time to
time by the FRB for determining the maximum reserve requirement
(including, but not limited to, any emergency, supplemental or
other marginal reserve requirement) for a member bank of the
Federal Reserve System in New York City with deposits exceeding
one billion dollars with respect to liabilities consisting of or
including U.S. dollar nonpersonal time deposits in the United
States with a maturity equal to such Interest Period.
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. A Person shall be deemed
to control another Person if the controlling Person possesses,
directly or indirectly, the power to direct or cause the
direction of the management and policies of the other Person,
whether through the ownership of voting securities, by contract
or otherwise.
"Agent" means BofA in its capacity as administrative agent
for the Banks hereunder, and any successor administrative agent.
"Agent-Related Persons" means BofA and any successor
administrative agent arising under Section 9.09, together with
their respective Affiliates (including, in the case of BofA, the
Arranger), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"Agent's Payment Office" means the address for payments set
forth on Schedule 10.02 or such other address as the Agent may
from time to time specify.
"Agreement" means this Revolving Credit Agreement.
"Applicable Fee Amount" means, for any date, 0.125 percent
per annum.
"Applicable Margin" means, on any date and with respect to
each Adjusted CD Rate Loan or LIBOR Loan outstanding on such
date, 0.20 percent per annum; provided, that at any time as the
aggregate outstanding principal amount of Loans, together with
the aggregate outstanding principal amount of "Loans" under, and
as that term is defined in, the 3-Year Credit Agreement, exceeds
50% of the aggregate Commitments, together with the aggregate
"Commitments" under, and as that term is defined in, the 3-Year
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 2.08 hereof, or of the 3-Year
Credit Agreement as applicable), the Applicable Margin in respect
of Adjusted CD Rate Loans and LIBOR Loans hereunder shall be
increased by an additional 0.125 percentage points.
"Arranger" means BA Securities, Inc., a Delaware
corporation.
"Assessment Rate" for any Interest Period for each Adjusted
CD Rate Loan comprising part of the same Borrowing means the rate
determined by the Agent as equal to the annual assessment rate in
effect on the first day of such Interest Period payable to the
FDIC by a member of the Bank Insurance Fund that is classified as
adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification within the
meaning of 12 C.F.R. 327.3) for insuring time deposits at
offices of such member in the United States; or, in the event
that the FDIC shall at any time hereafter cease to assess time
deposits based upon such classifications or successor
classifications, equal to the maximum annual assessment rate in
effect on such day that is payable to the FDIC by commercial
banks (whether or not applicable to any particular Bank) for
insuring time deposits at offices of such banks in the United
States.
"Attorney Costs" means and includes the reasonable fees and
disbursements of any law firm or other external counsel and the
allocated cost of internal counsel.
"Bank" has the meaning specified in the introductory clause
hereto.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C. 101, et seq.).
"Base Rate" means, for any day, the higher of: (a) 1/2%
above the latest Federal Funds Rate, and (b) the rate of interest
in effect for such day as publicly announced from time to time by
the Bank which is the Agent at its principal office, as its
"prime" or "reference" rate (or comparable rate, if such Bank
does not so designate a "prime" or "reference" rate). The prime
or reference rate is a rate set by such Bank based upon various
factors including such Bank's costs and desired return, general
economic conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in the prime or reference
rate announced by such Bank shall take effect at the opening of
business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Loan that bears interest based on
the Base Rate.
"BofA" means Bank of America National Trust and Savings
Association, a national banking association.
"Borrowing" means a borrowing hereunder consisting of Loans
of the same Type made to the Company on the same day by the Banks
under Article II.
"Borrowing Date" means any date on which a Borrowing occurs
under Section 2.03.
"Business Day" means (i) any day of the year except
Saturday, Sunday and any day on which banks are required or
authorized to close in New York City or San Francisco and (ii) if
the applicable Business Day relates to any LIBOR Loans, any day
which is a "Business Day" described in clause (i) and which is
also a day for trading by and between banks in the London
interbank Eurodollar market.
"CD Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "CD Lending Office" opposite
its name on Schedule 10.02 or in the document pursuant to which
it became a party hereto as contemplated by Section 2.05,
3.06(a), 3.07 or 10.07(b) (or, if no such office is specified,
its Domestic Lending Office) or such other office of such Bank as
such Bank may from time to time specify to the Company and the
Agent.
"Change in Control" means the direct or indirect acquisition
by any person (as such term is used in Section 13(d) and Section
14(d)(2) of the Exchange Act), or related persons constituting a
group (as such term is used in Rule 13d-5 under the Exchange
Act), of (a) beneficial ownership of issued and outstanding
shares of voting stock of a corporation or other entity, the
result of which acquisition is that such person or such group
possesses in excess of 50% of the combined voting power of all
then-issued and outstanding voting stock of such corporation or
other entity, or (b) the power to elect, appoint, or cause the
election or appointment of at least a majority of the members of
the board of directors of such corporation or other entity.
"Closing Date" means the date on which all conditions
precedent set forth in Section 4.01 are satisfied or waived by
all Banks.
"Code" means the Internal Revenue Code of 1986, and
regulations promulgated thereunder.
"Commitment", as to each Bank, has the meaning specified in
Section 2.01.
"Commitment Percentage" means, as to any Bank at any time,
the percentage equivalent (expressed as a decimal, rounded to the
ninth decimal place) at such time of such Bank's Commitment
divided by the combined Commitments of all Banks.
"Company" means Compaq Computer Corporation, a Delaware
corporation and successors thereto.
"Compliance Certificate" means a certificate substantially
in the form of Exhibit C.
"Consolidated Net Worth" means at any date the consolidated
stockholders' equity of the Company and its consolidated
Subsidiaries (excluding any Redeemable Preferred Stock of the
Company).
"Consolidated Tangible Net Worth" means at any date
Consolidated Net Worth less the amount, if any, in excess of
$25,000,000 of consolidated "intangible assets" (as defined
below) included in determining Consolidated Net Worth. For the
purposes of this definition, "intangible assets" means the sum 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, 1993 in the book value of
any asset owned by the Company or a Subsidiary of the Company and
(ii) all unamortized goodwill, patents, trademarks, service
marks, trade names, copyrights, organization or developmental
expenses and other intangible items.
"Conversion/Continuation Date" means any date on which,
under Section 2.04, the Company (a) converts Loans of one Type to
another Type, or (b) continues as Loans of the same Type, but
with a new Interest Period, Loans having Interest Periods
expiring on such date.
"Debt" of any Person means, at any date, without duplica
tion, (i) obligations for the repayment of money borrowed which
are or should be shown on a balance sheet as debt in accordance
with GAAP, (ii) obligations as lessee under leases which, in
accordance with GAAP, are capital leases, (iii) non-contingent
reimbursement and payment obligations with respect to letters of
credit, bank guaranties or banker's acceptances, and (iv)
guaranties of payment or collection of any obligations described
in clauses (i), (ii) and (iii) of other Persons; provided, that
clauses (i), (ii) and (iii) include, in the case of obligations
of the Company or any Subsidiary, only such obligations as are or
should be shown as debt or capital lease liabilities on a
consolidated balance sheet in accordance with GAAP; and provided,
further, that the liability of any Person as a general partner of
a partnership for Debt of such partnership, if the partnership is
not a Subsidiary of such Person, shall not constitute "Debt."
"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured
or otherwise remedied during such time) constitute an Event of
Default.
"Dollars", "dollars" and "$" each mean lawful money of the
United States.
"Domestic Lending Office" means, with respect to any Bank,
the office of such Bank specified as its "Domestic Lending
Office" opposite its name on Schedule 10.02 hereto or in the
document pursuant to which it became a party hereto as
contemplated by Section 2.05, 3.06(a), 3.07 or 10.07(b) or such
other office of such Bank as such Bank may from time to time
specify to the Company and the Agent.
"Eligible Assignee" means (i) a commercial bank organized
under the laws of the United States, or any state thereof, and
having a combined capital and surplus of at least $200,000,000;
(ii) a commercial bank organized under the laws of any other
country which is a member of the Organization for Economic
Cooperation and Development or a political subdivision of any
such country, and having a combined capital and surplus of at
least $200,000,000, provided that such bank is acting through a
branch or agency located in the United States; and (iii) a Person
that is primarily engaged in the business of commercial banking
and that is (A) a Subsidiary of a Bank, (B) a Subsidiary of a
Person of which a Bank is a Subsidiary, or (C) a Person of which
a Bank is a Subsidiary.
"Environment" or "Environmental" has the meanings set forth
in the Comprehensive Environmental Response, Compensation, and
Liability Act at 42 U.S.C. 9601(8) (1982).
"Environmental Protection Statute" means any United States
local, state or federal, or any foreign, law, statute,
regulation, order, consent decree or other agreement or
Requirement of Law pertaining to the protection or regulation of
the Environment, including, without limitation, those laws,
statutes, regulations, orders, decrees, agreements and other
Requirements of Law relating to the disposal, cleanup,
production, storing, refining, handling, transferring, processing
or transporting of Hazardous Waste, Hazardous Substances or any
pollutant or contaminant, wherever located.
"ERISA" means the Employee Retirement Income Security Act of
1974, and regulations promulgated thereunder.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the FRB.
"Event of Default" means any of the events or circumstances
specified in Section 8.01.
"Exchange Act" means the Securities and Exchange Act of
1934, and regulations promulgated thereunder.
"FDIC" means the Federal Deposit Insurance Corporation, and
any Governmental Authority succeeding to any of its principal
functions.
"Federal Funds Rate" means, for any day, the rate set forth
in the weekly statistical release designated as H.15(519),
published by the FRB on the preceding Business Day opposite the
caption "Federal Funds (Effective)"; or, if any relevant day such
rate is not so published on any such preceding Business Day, the
rate for such day will be the arithmetic mean as determined by
the Agent of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New York City time) on
that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Agent.
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the
U.S. accounting profession), which are applicable to the
circumstances as of the date of determination.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any central bank
(or similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Hazardous Substance" has the meaning set forth in the
Comprehensive Environmental Response, Compensation, and Liability
Act at 42 U.S.C. 9601(14) and also includes each other substance
considered to be a hazardous substance under any analogous
statute or regulation.
"Hazardous Waste" has the meaning set forth in the Resource
Conservation and Recovery Act at 42 U.S.C. 6903(5) and also
includes each other substance considered to be a hazardous waste
under any analogous statute or regulation (including 40 C.F.R.
261.3).
"Highest Lawful Rate" means, with respect to each Bank, the
maximum nonusurious interest rate, if any, that at any time or
from time to time may be contracted for, taken, reserved, charged
or received on the Loans or on other indebtedness outstanding
under this Agreement or the Notes applicable to such Bank which
is presently in effect or, to the extent allowed by law, under
such applicable laws which may hereafter be in effect and which
allow a higher maximum nonusurious interest rate than applicable
laws now allow.
"Information" has the meaning specified in Section 10.10.
"Insolvency Proceeding" means (a) any case, action or
proceeding before any court or other Governmental Authority
relating to bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up or relief of debtors, or
(b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors, or other,
similar arrangement in respect of its creditors generally or any
substantial portion of its creditors; undertaken under Federal,
state or foreign law, including the Bankruptcy Code.
"Interest Payment Date" means, as to any Loan other than a
Base Rate Loan, the last day of each Interest Period applicable
to such Loan and, as to any Base Rate Loan, the last Business Day
of each calendar quarter and each date such Loan is converted
into another Type of Loan, provided, however, that if any
Interest Period for (i) an Adjusted CD Rate Loan exceeds 90 days,
the date that falls 90 days after the beginning of such Interest
Period is also an Interest Payment Date, or (ii) a LIBOR Loan
exceeds three months, the date that falls three months after the
beginning of such Interest Period is also an Interest Payment
Date.
"Interest Period" means, (a) as to any Adjusted CD Rate
Loan, the period commencing on the Borrowing Date or on the
Conversion/Continuation Date on which the Loan is converted into
or continued as an Adjusted CD Rate Loan, and ending on the date
30, 60, 90 or 180 days thereafter, and (b) as to any LIBOR Loan,
the period commencing on (and including) the Borrowing Date or on
the Conversion/Continuation Date on which the Loan is converted
into or continued as a LIBOR Loan, and ending on (but excluding)
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 to clauses (a) and (b) of this definition, as selected
by the Company in its Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be; provided that:
(i) if any Interest Period pertaining to an
Adjusted CD Rate 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 a
LIBOR 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 July 30, 1995.
"IRS" means the United States Internal Revenue Service.
"Lending Office" means, as to any Bank, the office or
offices of the Bank specified as its "CD Lending Office" or
"Domestic Lending Office" or "LIBOR Lending Office", as the case
may be, on Schedule 10.02, or such other office or offices as the
Bank may from time to time notify the Company and the Agent.
"LIBO Rate" means, for any Interest Period for each LIBOR
Loan comprising part of the same Borrowing, an interest rate per
annum equal to the average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which dollar deposits in
immediately available funds are offered by each of the Reference
Banks to leading banks in the London interbank Eurodollar market
at 11:00 a.m. (London time) two Business Days before the first
day of such Interest Period in an amount substantially equal to
the amount of the LIBOR Loan of such Reference Bank comprising
part of such Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period. The LIBO
Rate for each Interest Period for each LIBOR Loan comprising part
of the same Borrowing shall be determined by the Agent on the
basis of applicable rates furnished to and received by the Agent
from the Reference Banks two Business Days before the first day
of such Interest Period, subject, however, to the provisions of
Section 2.13.
"LIBOR Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "LIBOR Lending Office"
opposite its name on Schedule 10.02 or in the document pursuant
to which it became a party hereto as contemplated by Section
2.05, 3.06(a), 3.07 or 10.07(b) (or, if no such office is
specified, its Domestic Lending Office) or such other office of
such Bank as such Bank may from time to time specify to the
Company and the Agent.
"LIBOR Loan" means a Loan which bears interest at the LIBO
Rate plus the Applicable Margin.
"Loan" means a loan by a Bank to the Company pursuant to
Article II, and refers to an Adjusted CD Rate Loan, a Base Rate
Loan or a LIBOR Loan (each, a "Type" of Loan).
"Loan Documents" means this Agreement, the Notes and all
other documents delivered to the Agent or any Bank in connection
herewith.
"Majority Banks" means at any time the Banks then holding at
least 60% of the then aggregate unpaid principal amount of the
Notes held by Banks, or, if no principal amount is then
outstanding, Banks having at least 60% of the Commitments.
"Margin Stock" means "margin stock" as such term is defined
in Regulation G, U or X of the FRB.
"Minimum Tranche" means, in respect of Loans comprising part
of the same Borrowing, or to be converted or continued under
Section 2.04, (a) in the case of Base Rate Loans, $5,000,000 or
any multiple of $1,000,000 in excess thereof, and (b) in the case
of Adjusted CD Rate Loans and LIBOR Loans, $10,000,000 or any
multiple of $1,000,000 in excess thereof.
"Moody's" means Moody's Investors Service, Inc. and any
successor thereto that is a nationally recognized rating agency.
"New Affiliate Bank" has the meaning specified in Section
3.06.
"Note" has the meaning specified in Section 2.02.
"Notice of Borrowing" means a notice in substantially the
form of Exhibit A.
"Notice of Conversion/Continuation" means a notice in
substantially the form of Exhibit B.
"Obligations" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan
Document, owing by the Company to any Bank, the Agent, or any
Person required to be indemnified, whether direct or indirect
(including those acquired by assignment), absolute or contingent,
due or to become due, now existing or hereafter arising.
"Other Taxes" means any present or future stamp or
documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made hereunder or
from the execution, delivery or registration of, or otherwise
with respect to, this Agreement or any other Loan Document.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company,
trust, unincorporated association, joint venture or Governmental
Authority.
"Preferred Stock" means, as applied to any corporation,
shares of such corporation which shall be entitled to preference
or priority over any other shares of such corporation in respect
of either the payment of dividends or the distribution of assets
upon liquidation.
"Prescribed Forms" shall mean such duly executed and filed
form(s) or statement(s), and in such number of copies, which may,
from time to time, be prescribed by law and which, pursuant to
applicable provisions of (a) an income tax treaty between the
United States and the country of residence of the Bank providing
the form(s) or statement(s), (b) the Code, or (c) any applicable
rule or regulation under the Code, permit the Company and the
Agent to make payments hereunder for the account of such Bank
free of deduction or withholding of United States income or other
similar taxes.
"Redeemable" means, as applied to any Preferred Stock, any
Preferred Stock which (i) the issuer undertakes to redeem at a
fixed or determinable date or dates (other than pursuant to the
exercise of an option to redeem by the issuer, if the failure to
exercise such option would not materially adversely affect the
business, consolidated financial position or consolidated results
of operations of the issuer and its subsidiaries taken as a
whole), whether by operation of a sinking fund or otherwise, or
upon the occurrence of a condition not solely within the control
of the issuer, or (ii) is redeemable at the option of the holder.
"Reference Banks" means BofA, NationsBank of Texas, N.A.,
Chemical Bank and The Toronto-Dominion Bank.
"Replacement Bank" has the meaning specified in Section
3.06(a).
"Required Banks" means at any time the Banks holding at
least 50% of the then aggregate unpaid principal amount of the
Notes held by Banks, or if no principal amount is then
outstanding, Banks having at least 50% of the Commitments.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or
determination of an arbitrator or of a Governmental Authority, in
each case applicable to or binding upon the Person or any of its
property or to which the Person or any of its property is
subject.
"Responsible Officer" means the chief executive officer, the
president, the chief financial officer or the treasurer of the
Company.
"Restricted Subsidiary" means any Subsidiary of the Company
which has non-intercompany assets with an aggregate book value
exceeding 10% of the Consolidated Tangible Net Worth of the
Company based upon, at the time of determination, the most recent
year-end audited consolidated financial statements of the
Company.
"Resulting Increased Commitment" has the meaning specified
in Section 3.07.
"Revolving Termination Date" means the earlier to occur of:
(a) July 30, 1995; and
(b) the date on which the commitments of the Banks to
make Loans terminate in whole in accordance with
Section 2.06, Section 2.08(b) or 2.08(c) or Section 8.02.
"S&P" means Standard & Poor's Rating Group and any successor
thereto that is a nationally recognized rating agency.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal
functions.
"Senior Debt Indenture" means that certain indenture dated
as of March 1, 1994 between the Company and NationsBank of Texas,
N.A., as Trustee, without giving effect to any amendment or
modification thereof.
"Specified Transaction," in respect of the Company, means
any transaction or related set of transactions, that results,
directly or indirectly, in (i) any sale, lease or exchange of all
or substantially all of its property, (ii) the consolidation of
the Company with any other Person, or (iii) a merger of the
Company with or into any other Person, if in connection with such
sale, lease, exchange, consolidation or merger any consent,
approval or authorization of the shareholders of the Company is
required under any of the Company's organizational documents, or
any rule, regulation or Requirement of Law.
"Subsidiary" of a Person means any corporation, association,
partnership, limited liability company, business trust, joint
stock company, joint venture or other business entity of which
more than 50% of the voting stock or other equity interests (in
the case of Persons other than corporations), is owned or
controlled directly or indirectly by the Person, or one or more
of the Subsidiaries of the Person, or a combination thereof.
Unless the context otherwise clearly requires, references herein
to a "Subsidiary" refer to a Subsidiary of the Company.
"Surviving Bank" has the meaning specified in Section 3.07.
"Taxes" means any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, in the case of each Bank and the
Agent, taxes imposed on its net income, and franchise taxes
imposed on its net income, by the jurisdiction (or any political
subdivision thereof) under the laws of which such Bank or the
Agent, as the case may be, is organized or maintains a lending
office.
"3-Year Credit Agreement" means that Revolving Credit
Agreement dated as of this date among the Company, BofA as
Administrative Agent and the Banks party thereto under which the
Banks agree to extend credit on a three-year basis.
"Type" has the meaning specified in the definition of
"Loan."
"United States" and "U.S." each mean the United States of
America.
1.02 Other Interpretive Provisions. (a) The meanings of
defined terms are equally applicable to the singular and plural
forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and
similar words refer to this Agreement as a whole and not to any
particular provision of this Agreement. Subsection, Section,
Schedule and Exhibit references are to this Agreement unless
otherwise specified. The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures,
notices and other writings, however evidenced. The term
"including" is not limiting and means "including without
limitation."
(c) In the computation of periods of time from a
specified date to a later specified date, the word "from" means
"from and including"; the words "to" and "until" each mean "to
but excluding", and the word "through" means "to and including."
(d) Unless otherwise expressly provided herein, (i)
references to agreements (including this Agreement) and other
contractual instruments shall be deemed to include all subsequent
amendments and other modifications thereto, but only to the
extent such amendments and other modifications are not prohibited
by the terms of any Loan Document, (ii) references to any statute
or regulation are to be construed as including all statutory and
regulatory provisions consolidating, amending, replacing,
supplementing or interpreting the statute or regulation and (iii)
references to IRS forms, SEC forms, FRB statistical releases or
other forms, reports or documents of any Governmental Authority
are to be construed as including all forms, reports or other
documents that consolidate, amend or replace the forms, reports
or documents.
(e) The captions and headings of this Agreement are
for convenience of reference only and shall not affect the
interpretation of this Agreement.
1.03 Accounting Principles. (a) Unless the context
otherwise clearly requires, all accounting terms not expressly
defined herein shall be construed, and all financial computations
required under this Agreement shall be made, in accordance with
GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal
quarter" refer to such fiscal periods of the Company.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments. Each Bank severally
agrees, on the terms and conditions set forth herein, to make
loans to the Company from time to time on any Business Day during
the period from the Closing Date to the Revolving Termination
Date, in an aggregate principal amount not to exceed at any time
outstanding the amount set forth opposite the Bank's name on the
signature pages hereto (as such signature pages are deemed
modified pursuant to this Article II or Article III or
Section 10.07) (as such amount may be reduced or increased
pursuant to Sections 2.05, 2.06, 2.07, 2.08, 3.06, 3.07 or 8.02,
such Bank's "Commitment"); provided, however, that, after giving
effect to any Borrowing, the aggregate principal amount of all
outstanding Loans shall not at any time exceed the combined
Commitments. Within the limits of each Bank's Commitment, and
subject to the other terms and conditions hereof, the Company may
borrow under this Section 2.01, prepay under Section 2.08(a) and
reborrow under this Section 2.01.
2.02 Notes. The Loans made by each Bank are evidenced by a
note in substantially the form of Exhibit E ("Note") payable to
the order of that Bank, evidencing the aggregate indebtedness of
the Company to such Bank resulting from the Loans owed to such
Bank. Each Bank may endorse on the schedules annexed to its
Notes, the date, amount and maturity of each Loan made by it and
the amount of each payment of principal made by the Company with
respect thereto. Each Bank is irrevocably authorized by the
Company to endorse its Notes, and each Bank's record shall be
prima facie evidence of the matters reflected therein; provided,
however, that the failure of a Bank to make, or an error in
making, a notation thereon with respect to any Loan shall not
limit or otherwise affect the obligations of the Company
hereunder or under any such Note to such Bank.
2.03 Procedure for Borrowings. (a) Each Borrowing shall be
made upon the Company's irrevocable written notice delivered to
the Agent as described in Section 10.02 in the form of a Notice
of Borrowing prior to 11:00 a.m. (Houston time) (i) one Business
Day prior to the requested Borrowing Date, in the case of
Adjusted CD Rate Loans, (ii) three Business Days prior to the
requested Borrowing Date, in the case of LIBOR Loans, and (iii)
on the requested Borrowing Date, in the case of Base Rate Loans,
specifying:
(A) the amount of the Borrowing, which
shall be in an aggregate amount not less than the
Minimum Tranche;
(B) the requested Borrowing Date, which
shall be a Business Day;
(C) the Type of Loans comprising the
Borrowing;
(D) in the case of Adjusted CD Rate
Loans and LIBOR Loans, the duration of the Interest
Period applicable to such Loans included in such
notice. If the Notice of Borrowing fails to specify
the duration of the Interest Period for any Borrowing
comprised of Adjusted CD Rate Loans or LIBOR Loans,
such Interest Period shall be 90 days (in the case of
an Adjusted CD Rate Loan) and three months (in the case
of a LIBOR Loan);
provided, however, that with respect to a Borrowing, if any, to
be made on the Closing Date, the Notice of Borrowing shall be
delivered to the Agent not later than 11:00 a.m. (Houston time)
on the Closing Date and such Borrowing will consist of Base Rate
Loans only.
(b) Upon receipt of the Notice of Borrowing, the Agent
will promptly notify each Bank thereof and of the amount of such
Bank's Commitment Percentage of the Borrowing.
(c) Each Bank will make the amount of its Commitment
Percentage of each Borrowing available to the Agent for the
account of the Company at the Agent's Payment Office on the
Borrowing Date requested by the Company in immediately available
funds by 11:00 a.m. (Houston time) in the case of a Borrowing
comprised of Adjusted CD Rate Loans or LIBOR Loans, and by 2:00
p.m. (Houston time) in the case of a Borrowing comprised of Base
Rate Loans. The proceeds of all such Loans will then be made
available to the Company by the Agent by wire transfer of
immediately available funds in accordance with written
instructions provided to the Agent by the Company.
(d) After giving effect to any Borrowing, there may
not be more than (i) four different Interest Periods in effect in
respect of all Adjusted CD Rate Loans together then outstanding
and (ii) four different Interest Periods in effect in respect of
all LIBOR Loans together then outstanding.
2.04 Conversion and Continuation Elections for Borrowings.
(a) The Company may, upon irrevocable written notice to the Agent
under subsection (b) of this Section:
(i) elect, on any Business Day, in the case of
Base Rate Loans, or on the last day of the applicable
Interest Period, in the case of Adjusted CD Rate Loans or
LIBOR Loans, to convert any such Loans (or any part thereof
in an amount not less than the Minimum Tranche) into Loans
of another Type; or
(ii) elect to renew on the last day of the
applicable Interest Period any Loans having Interest Periods
maturing on such day (or any part thereof in an amount not
less than the Minimum Tranche);
provided, that if at any time the aggregate amount of Adjusted CD
Rate Loans or LIBOR Loans in respect of any Borrowing is
reduced, by payment, prepayment, or conversion of part thereof to
be less than the Minimum Tranche, such Loans shall automatically
convert into Base Rate Loans, and on and after such date the
right of the Company to continue such Loans as, and convert such
Loans into, Adjusted CD Rate Loans or LIBOR Loans shall
terminate, except that if and so long as each such Loan shall be
of the same Type and have the same Interest Period as Loans
comprising another Borrowing or other Borrowings, and the
aggregate unpaid principal amount of all such Loans of all such
Borrowings shall equal or exceed $10,000,000, the Company shall
have the right to continue all such Loans as, or to convert all
such Loans into, Loans of such Type having such Interest Period.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Agent not later
than 11:00 a.m. (Houston time) at least (i) one Business Day in
advance of the Conversion/Continuation Date, if the Loans are to
be converted into or continued as Adjusted CD Rate Loans; (ii)
three Business Days in advance of the Conversion/Continuation
Date, if the Loans are to be converted into or continued as LIBOR
Loans; and (iii) on the Conversion/Continuation Date, if the
Loans are to be converted into Base Rate Loans, specifying:
(A) the proposed
Conversion/Continuation Date;
(B) the aggregate amount of Loans to be
converted or renewed;
(C) the Type of Loans resulting from
the proposed conversion or continuation; and
(D) other than in the case of
conversions into Base Rate Loans, the duration of the
requested Interest Period.
(c) If upon the expiration of any Interest Period
applicable to any Adjusted CD Rate Loans or LIBOR Loans, the
Company has failed to select timely a new Interest Period to be
applicable to such Loans, the Company shall be deemed to have
elected to convert such Loans into Base Rate Loans.
(d) The Agent will promptly notify each Bank of its
receipt of a Notice of Conversion/Continuation, or, if no timely
notice is provided by the Company under this Section, the Agent
will promptly notify each Bank of the details of any automatic
conversion. All conversions and continuations shall be made
ratably according to the respective outstanding principal amounts
of the Loans held by each Bank with respect to which the notice
was given.
(e) Unless the Majority Banks otherwise agree, during
the existence of a Default or Event of Default, the Company may
not elect to have a Loan converted into or continued as an
Adjusted CD Rate Loan or a LIBOR Loan with an Interest Period
exceeding one month (in the case of a LIBOR Loan) or 30 days (in
the case of an Adjusted CD Rate Loan).
(f) After giving effect to any conversion or
continuation of Loans, there may not be more than (i) four
different Interest Periods in effect in respect of all Adjusted
CD Rate Loans together then outstanding and (ii) four different
Interest Periods in effect in respect of all LIBOR Loans together
then outstanding.
2.05 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 $250,000,000 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 2.07; (b) no Bank's Commitment
shall be increased without the consent of such Bank; (c) on the
effective date of any such increase in Commitments, there are no
amounts outstanding under any of the Notes and no Notice of
Borrowing is pending; (d) there has occurred and is continuing no
Default or Event of Default, and (e) there has been no ratable
reduction of Commitments pursuant to Section 2.06. The Company
shall give the Agent three Business Days' notice of the Company's
intention to increase the total Commitments pursuant to this
Section. Such notice 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. Each new Eligible Assignee, and each Bank agreeing to
increase its Commitment, shall execute and deliver to the Agent a
document in form and substance as may be reasonably required by
the Agent 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. In addition, the
Company shall execute and deliver 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.
Such Notes and other documents of the nature referred to in
Section 4.01 shall be furnished to the Agent in form and
substance as may be reasonably required by it. Upon execution
and delivery of such documents, and payment to the Agent of a non-
refundable processing fee of $2,500, 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.
2.06 Ratable Reduction or Termination of Commitments. The
Company may, upon not less than three Business Days' prior notice
to the Agent, terminate all the Commitments, or permanently
reduce all the Commitments by an aggregate minimum amount of
$10,000,000 or any multiple of $1,000,000 in excess thereof;
unless, after giving effect thereto and to any prepayments of
Loans made on the effective date thereof, the then-outstanding
principal amount of the Loans would exceed the amount of the
combined Commitments then in effect. Once reduced in accordance
with this Section, the Commitments may not be increased. Any
such reduction of the Commitments shall be applied ratably to
each Bank's Commitment according to its Commitment Percentage.
2.07 Non-Ratable Reduction or Termination of Commitments.
The Company shall have the right, without the consent of any
Bank, but subject to the approval of the Agent (which consent
shall not be unreasonably withheld), to reduce in part or to
terminate in whole the Commitment of one or more Banks
non-ratably, provided that (i) on the effective date of any such
reduction or termination (w) there are no amounts outstanding
under any of the Notes, (x) no Default or Event of Default shall
have occurred and be continuing, (y) the senior unsecured long-
term debt of the Company is rated BBB- or better by S&P or Baa3
or better by Moody's, and (z) the Company shall pay to any Bank
whose Commitment is terminated all amounts owed by the Company to
such Bank under this Agreement (including accrued commitment
fees), (ii) the aggregate amount of each non-ratable reduction
shall be at least $5,000,000, and (iii) the aggregate amount of
all such non-ratable reductions and terminations of Commitments
since the date of this Agreement shall not exceed the sum of
$50,000,000 plus the aggregate amount (but not greater than
$50,000,000) of all increases in Commitments effectuated pursuant
to Section 2.05. The Company shall give the Agent three Business
Days' notice of the Company's intention to reduce or terminate
any Commitment pursuant to this Section.
2.08 Optional and Mandatory Prepayments. (a) Subject to
Section 3.02, the Company may, at any time or from time to time
by irrevocable notice to the Agent, not less than (i) one
Business Day prior to a prepayment of Adjusted CD Rate Loans,
(ii) three Business Days prior to a prepayment of LIBOR Loans, or
(iii) by 11:00 a.m. (Houston time) on the Business Day of a
prepayment of Base Rate Loans, ratably prepay Loans in whole or
in part, in minimum amounts of $5,000,000 or any multiple of
$1,000,000 in excess thereof. Such notice of prepayment shall
specify the date and amount of such prepayment, the Type(s) of
Loans to be prepaid and the specific Borrowing or Borrowings
pursuant to which Loans were made. The Agent will promptly
notify each Bank of its receipt of any such notice, and of such
Bank's Commitment Percentage of such prepayment. If such notice
is given by the Company, the Company shall make such prepayment
and the payment amount specified in such notice shall be due and
payable on the date specified therein, together with accrued
interest to each such date on the amount prepaid.
(b) On the date that is 30 days after the occurrence
of any Change in Control as to the Company, the Company shall
prepay all outstanding Loans, together with accrued interest,
amounts payable pursuant to Section 3.02 and all other amounts
outstanding hereunder, and immediately upon the occurrence of
such Change in Control, the obligations of the Banks to make
additional Loans shall be terminated automatically.
(c) Immediately upon the occurrence of any Specified
Transaction and at any time prior to the date that is 180 days
after the date of consummation of such Specified Transaction, the
Agent shall at the request of, and may with the consent of, the
Required Banks, in their sole and absolute discretion, (i) by
notice to the Company pursuant to Section 10.02 hereof, declare
the outstanding principal amount of all Loans, together with
accrued interest, amounts payable pursuant to Section 3.02 and
all other amounts outstanding hereunder, to be immediately due
and payable, whereupon such amounts shall immediately be paid by
the Company, and (ii) by notice to the Company pursuant to
Section 10.02 hereof, declare the obligation of each Bank to make
Loans be terminated, whereupon such obligations shall be
terminated immediately.
(d) Any mandatory prepayment under subsection (b) or
(c) of this Section shall be made by the Company without
presentment, demand, protest or other notice of any kind, except
as provided in subsection (c), all of which are expressly waived
by the Company.
2.09 Repayment. The Company shall repay to the Agent for
the account of each Bank on the Revolving Termination Date the
aggregate principal amount of Loans outstanding on such date.
2.10 Interest. (a) Each Loan shall bear interest on the
outstanding principal amount thereof from the applicable
Borrowing Date until paid at a rate per annum equal to the
Adjusted CD Rate, the LIBOR Rate or the Base Rate, as the case
may be (and subject to the Company's right to convert to other
Types of Loans under Section 2.04), plus, in the case of Adjusted
CD Rate Loans and LIBOR Loans, the Applicable Margin; provided,
however, that in no event shall the applicable rate payable to
any Bank exceed the Highest Lawful Rate applicable to such Bank.
(b) Interest on each Loan shall be paid to the Agent
for the account of each Bank in arrears on each Interest Payment
Date. Interest shall also be paid on the date of any prepayment
of Loans under Section 2.08 for the portion of the Loans so
prepaid and upon payment in full thereof.
(c) Any principal amount of any Loan which is not paid
when due (whether at stated maturity, by acceleration or
otherwise) shall bear interest, to the extent permitted by law,
from the date on which such amount became due until such amount
is paid in full, payable on demand, at a rate per annum equal at
all times to the sum of the Base Rate in effect from time to time
plus 1.50% per annum, provided, however, that in no event shall
such rate as to any Bank exceed the Highest Lawful Rate
applicable to such Bank.
2.11 Fees. The Company agrees to pay to the Agent for the
account of each Bank a commitment fee on the average daily amount
by which such Bank's Commitment exceeds the aggregate outstanding
principal amount of such Bank's Loans from the date hereof until
the Revolving Termination Date at a rate per annum equal to the
Applicable Fee Amount, payable in arrears on the last day of each
calendar quarter during the term of such Bank's Commitment, and
on the Revolving Termination Date. The Company shall pay to the
Agent and the Arranger such additional fees as are set forth in
the fee letter dated June 28, 1994 among such Persons.
2.12 Computation of Fees and Interest. All computations of
interest for Base Rate Loans when the Base Rate is determined
according to clause (b) of the definition of "Base Rate" shall be
made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual
days elapsed (but not to exceed as to any Bank the Highest Lawful
Rate applicable to such Bank). Interest and fees shall accrue
during each period during which interest or such fees are
computed from the first day thereof to the last day thereof.
2.13 Interest Rate Determination and Protection. (a) Each
Reference Bank agrees to furnish to the Agent timely information
for the purpose of determining each Adjusted CD Rate or LIBO
Rate, as applicable. If any one or more of the Reference Banks
shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall
determine such interest rate on the basis of timely information
furnished by the remaining Reference Banks.
(b) The Agent shall give prompt notice to the Company
and the Banks of the applicable interest rate determined by the
Agent for purposes of Section 2.10(a).
(c) If fewer than two Reference Banks furnish timely
information to the Agent for determining the LIBO Rate for any
LIBOR Loans or the Adjusted CD Rate for any Adjusted CD Rate
Loans,
(i) the Agent shall forthwith notify the Company
and the Banks that the interest rate cannot be determined
for such LIBOR Loans or Adjusted CD Rate Loans, as the case
may be,
(ii) each such Loan will automatically, on the
last day of the then existing Interest Period therefor,
convert into a Base Rate Loan (or if such Loan is then a
Base Rate Loan, will continue as a Base Rate Loan), and
(iii) the obligation of the Banks to make, or
to convert Loans into or continue Loans as, Adjusted CD Rate
Loans or LIBOR Loans, as the case may be, shall be suspended
until the Agent shall notify the Company and the Banks that
the circumstances causing such suspension no longer exist.
(d) With respect to any LIBOR Loan or Adjusted CD Rate
Loan, upon request by the Company the Agent shall provide to the
Company the information furnished by each Reference Bank to
enable the Agent to determine the LIBOR Rate or the Adjusted CD
Rate, as the case may be, for such Loan.
(e) If, with respect to any Adjusted CD Rate Loans or
LIBOR Loans, the Majority Banks notify the Agent that the
applicable interest rate for any Interest Period for such Loans
cannot be reasonably determined or will not adequately reflect
the cost to such Majority Banks of making, funding or maintaining
their respective Adjusted CD Rate Loans or LIBOR Loans, as the
case may be, for such Interest Period, the Agent shall forthwith
so notify the Company and the Banks, whereupon
(i) each such Loan will automatically, on the
last day of the then existing Interest Period therefor,
convert into a Base Rate Loan (or, if such Loan is then a
Base Rate Loan, will continue as a Base Rate Loan), and
(ii) the obligation of the Banks to make, or to
convert such Loans into or continue Loans as, Adjusted CD
Rate Loans or LIBOR Loans, as the case may be, shall be
suspended until the Agent shall notify the Company and the
Banks that the circumstances causing such suspension no
longer exist.
2.14 Payments by the Company. Except as otherwise expressly
provided herein, all payments by the Company shall be made in
Dollars to the Agent for the account of the Banks at the Agent's
Payment Office and shall be made without setoff, recoupment or
counterclaim. Such payments shall be made in immediately
available funds no later than 12:00 noon (Houston time) on the
date specified herein. The Agent will promptly distribute to
each Bank its Commitment Percentage share (or other applicable
share as expressly provided herein) of such payment in like funds
as received. Any payment received by the Agent later than the
time specified above shall be deemed to have been received on the
following Business Day, and any applicable interest or fee shall
continue to accrue.
(b) Subject to the provisions set forth in the
definition of "Interest Period" herein, whenever any payment is
due on a day other than a Business Day, such payment shall be
made on the following Business Day, and such extension of time
shall in such case be included in the computation of interest or
fees, as the case may be.
(c) Unless the Agent receives notice from the Company
prior to the date on which any payment is due to the Banks that
the Company will not make such payment in full as and when
required, the Agent may assume that the Company has made such
payment in full to the Agent on such date in immediately
available funds, and the Agent may (but shall not be so
required), in reliance upon such assumption, distribute to each
Bank on such due date an amount equal to the amount then due such
Bank. If and to the extent the Company has not made such payment
in full to the Agent, each Bank shall repay to the Agent on
demand such amount distributed to such Bank, together with
interest thereon at the Federal Funds Rate for each day from the
date such amount is distributed to such Bank until the date
repaid.
2.15 Payments by the Banks to the Agent. (a) Unless the
Agent receives notice from a Bank on or prior to the Closing Date
or, with respect to any Borrowing after the Closing Date, at
least one Business Day prior to the proposed Borrowing Date, that
such Bank will not make available as and when required hereunder
to the Agent for the account of the Company the amount of that
Bank's Commitment Percentage of the Borrowing, the Agent may
assume that each Bank has made such amount available to the Agent
in immediately available funds on the Borrowing Date and the
Agent may (but shall not be so required), in reliance upon such
assumption, make available to the Company on such date a
corresponding amount. If and to the extent any Bank shall not
have made its full amount available to the Agent in immediately
available funds and the Agent in such circumstances has made
available to the Company such amount, that Bank shall on the
Business Day following such Borrowing Date make such amount
available to the Agent, together with interest at the Federal
Funds Rate for each day during such period. A notice of the
Agent submitted to any Bank with respect to amounts owing under
this subsection (a) shall be conclusive, absent manifest error.
If such amount is so made available, such payment to the Agent
shall constitute such Bank's Loan on the date of Borrowing for
all purposes of this Agreement. If such amount is not made
available to the Agent on the Business Day following the
Borrowing Date, the Agent will notify the Company of such failure
to fund and, upon demand by the Agent, the Company shall pay such
amount to the Agent for the Agent's account, together with
interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Bank to make any Loan on any
Borrowing Date shall not relieve any other Bank of any obligation
hereunder to make a Loan on such Borrowing Date, but no Bank
shall be responsible for the failure of any other Bank to make
the Loan to be made by such other Bank on any Borrowing Date.
2.16 Sharing of Payments, Etc. If, other than as expressly
provided elsewhere herein, any Bank shall obtain on account of
the Loans made by it any non-pro rata payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or
otherwise), such Bank shall immediately (a) notify the Agent of
such fact, and (b) purchase from the other Banks such
participations in the Loans made by them as shall be necessary to
cause such purchasing Bank to share the excess payment with each
of them in accordance with their Commitment Percentages;
provided, however, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Bank, such
purchase shall to that extent be rescinded and each other Bank
shall repay to the purchasing Bank the purchase price paid
therefor, together with an amount equal to such paying Bank's
Commitment Percentage (according to the proportion of (i) the
amount of such paying Bank's required repayment to (ii) the total
amount so recovered from the purchasing Bank) of any interest or
other amount paid or payable by the purchasing Bank in respect of
the total amount so recovered. The Company agrees that any Bank
so purchasing a participation from another Bank may, to the
fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such
participation as fully as if such Bank were the direct creditor
of the Company in the amount of such participation.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes. (a) Any and all payments by the Company to each
Bank or the Agent under this Agreement and any Note shall be made
free and clear of, and without deduction or withholding for, any
Taxes. In addition, the Company shall pay all Other Taxes.
(b) To the fullest extent permitted by applicable law,
the Company agrees to indemnify and hold harmless each Bank and
the Agent for the full amount of Taxes or Other Taxes (including
any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 3.01) paid by such Bank or the Agent
and any liability (including penalties, interest, additions to
tax and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or
legally asserted. Payment under this indemnification shall be
made within 30 days after the date the Bank or the Agent makes
written demand therefor in accordance with this Section 3.01(b).
(c) If the Company shall be required by law to deduct
or withhold any Taxes or Other Taxes from or in respect of any
sum payable under this Agreement or any Note to any Bank or the
Agent, then: (i) the sum payable shall be increased as necessary
so that after making all required deductions and withholdings
(including deductions and withholdings applicable to additional
sums payable under this Section 3.01) 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 or withholdings been made;
(ii) the Company shall make such deductions and withholdings; and
(iii) the Company shall pay the full amount deducted or withheld
to the relevant taxing or other authority in accordance with
applicable law.
(d) Notwithstanding anything to the contrary contained
in this Agreement, each of the Company and the Agent shall be
entitled, to the extent it is required to do so by law, to deduct
or withhold income or other similar taxes imposed by the United
States of America from interest, fees or other amounts payable
under this Agreement or any Note for the account of any Bank
(without indemnification or the payment by the Company of
increased amounts pursuant to clause (a), (b) or (c) above) other
than a Bank (i) which is a domestic corporation (as defined in
Section 7701 of the Code) for federal income tax purposes or (ii)
which has the Prescribed Forms on file with the Company and the
Agent for the applicable year, provided that if the Company shall
so deduct or withhold any such taxes, it shall provide a
statement to the Agent and such Bank, setting forth the amount of
such taxes so deducted or withheld, the applicable rate and any
other information or documentation which such Bank or the Agent
may reasonably request to assist such Bank or the Agent in
obtaining any allowable credits or deductions for the taxes so
deducted or withheld in the jurisdiction or jurisdictions in
which such Bank is subject to tax.
(e) Within 30 days after the date of any payment by
the Company of Taxes or Other Taxes, the Company shall furnish
the Agent the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment
satisfactory to the Agent.
(f) Each Bank shall use reasonable efforts (consistent
with its internal policies and legal and regulatory restrictions)
to select a jurisdiction for its Lending Office or change the
jurisdiction of its Lending Office, as the case may be, so as to
avoid the imposition of any Taxes or Other Taxes or to eliminate
any such additional payment by the Company which may thereafter
accrue; provided that no such selection or change shall be made
if, in the sole judgment of such Bank, such selection or change
would be disadvantageous to such Bank.
3.02 Breakage Costs. If (a) any payment of principal of any
Adjusted CD Rate Loan or LIBOR Loan is made by the Company prior
to the last day of an Interest Period relating to such Loan, or
(b) the Company fails to borrow a Borrowing consisting of an
Adjusted CD Rate Loan or LIBOR Loan on the date for such
Borrowing specified in the Notice of Borrowing (except as
permitted by and subject to the provisions of Sections 2.13(c)
and (e) and 3.04), then upon demand by any Bank, the Company
shall pay to the Agent for the account of such Bank any amounts
required to compensate such Bank for any losses, costs or
expenses which it may reasonably incur as a result of such
payment, including, without limitation, any loss (excluding loss
of anticipated profits), cost or expense incurred by reasons of
the liquidation or reemployment of deposits or other funds
acquired by such Bank to fund or maintain such Borrowing.
3.03 Increased Costs. (a) If, due to either: (i) after the
date hereof, the introduction of or any change (other than any
change by way of imposition or increase of reserve requirements
pursuant to Section 3.05) in or in the interpretation of any law
or regulation by a Governmental Authority charged with the
interpretation or administration thereof, or (ii) the compliance
with any guideline enacted after the date hereof or request
received after the date hereof from any Governmental Authority
(whether or not having the force of law) the effect of which is
to impose or modify any reserve, special deposit, insurance
assessment, or similar requirement relating to any extensions of
credit or other assets of, or any deposits with or other
liabilities of, any Bank (other than reserves maintained as
provided for in Section 3.05), there shall be any actual increase
in the cost to such Bank of agreeing to make or making, funding
or maintaining any Adjusted CD Rate Loan or LIBOR Rate Loan, then
the Company shall from time to time, upon demand by such Bank
(with a copy of such demand to the Agent), pay to the Agent for
the account of such Bank additional amounts sufficient to
compensate such Bank for such actual increased cost. Promptly
after any Bank becomes aware of any such introduction, change or
proposed compliance, such Bank shall notify the Company thereof.
No Bank shall be permitted to recover increased costs incurred or
accrued more than 90 days prior to the date such notice is given
to the Company.
(b) If the Company so notifies the Agent within five
Business Days after any Bank notifies the Company of any
increased cost pursuant to the provisions of Section 3.03(a), the
Company shall convert all Loans of the Type affected by such
increased cost of all Banks then outstanding into Loans of
another Type in accordance with Section 2.04 and, additionally,
reimburse such Bank for such increased cost in accordance with
Section 3.03(a).
(c) 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 therein, or
any change in the interpretation or administration thereof by any
Governmental Authority, charged with the interpretation or
administration thereof, or compliance by any Bank (or its Lending
Office) with 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 the effect of increasing
the amount of capital required or expected to be maintained as a
result of its Commitment hereunder, such Bank shall have the
right to give prompt written notice to the Company with a copy to
the Agent, which notice shall notify the Company of the
additional amounts as shall be required to compensate such Bank
for the increased cost to such Bank as a result of such increase
in capital and shall certify that such costs are generally being
charged by such Bank to other similarly situated borrowers under
similar credit facilities and such amounts shall be paid promptly
by the Company.
(d) Each Bank shall use its best efforts (consistent
with its internal policies and legal and regulatory restrictions)
to select a jurisdiction for its Lending Office or change the
jurisdiction of its Lending Office, as the case may be, so as to
avoid the imposition of any increased costs under this Section
3.03 or to eliminate the amount of any such increased cost which
may thereafter accrue; provided that no such selection or change
of the jurisdiction for its Lending Office shall be made if, in
the reasonable judgment of such Bank, such selection or change
would be disadvantageous to such Bank.
3.04 Illegality. Notwithstanding any other provision of
this Agreement, if any Bank shall notify the Agent that, after
the date hereof, the introduction of or any change in or in the
interpretation of any law or regulation shall make it unlawful,
or any Governmental Authority shall assert that it is unlawful,
for any Bank or its LIBOR Lending Office to make any LIBOR Loans
or to continue to fund or maintain any LIBOR Loan hereunder,
then, on notice thereof and demand therefor by such Bank to the
Company, (i) the obligation of such Bank to make LIBOR Loans and
to convert Loans into LIBOR Loans shall be suspended until the
Agent shall notify the Company that the circumstances causing
such suspension no longer exist, and (ii) the Company shall,
forthwith convert all LIBOR Loans of all Banks then outstanding
into Loans of another Type in accordance with Section 2.04.
3.05 Reserves on LIBOR Loans. If any Bank shall be required
under regulations of the FRB to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency
funds or deposits (currently known as "Eurocurrency
liabilities"), and if as a result thereof there is an increase in
the cost to such Bank of agreeing to make or making, funding or
maintaining LIBOR Loans, the Company shall from time to time,
upon demand by such Bank (with a copy of such demand to the
Agent), pay to the Agent for the account of such Bank additional
amounts, as additional interest hereunder, sufficient to
compensate Bank for such increased cost. Increased costs under
this Section 3.05 shall be payable by the Company on each
Interest Payment Date on such LIBOR Loans, provided the Company
shall have received at least 15 days' prior written notice (with
a copy to the Agent) of such additional interest from the Bank.
If a Bank fails to give notice 15 days prior to the relevant
Interest Payment Date, such additional interest shall be payable
15 days from receipt of such notice.
3.06 Replacement of Bank; Termination of Bank. In the event
that any Bank makes a demand for payment pursuant to Sections
3.01 or 3.03, or any Bank has suspended its funding of LIBOR
Loans pursuant to Section 3.04, the Company shall have the right,
if no Default or Event of Default then exists, to either replace
such Bank in accordance with subsection (a) of this Section 3.06
or terminate such Bank's Commitment in accordance with subsection
(b) of this Section 3.06. If any Banks that are not Affiliates
as of the Closing Date become Affiliates after the Closing Date
(each such Bank, a "New Affiliate Bank"), the Company shall have
the right, if no Default or Event of Default then exists, to
either replace each such New Affiliate Bank (other than the New
Affiliate Bank having the largest Commitment) in accordance with
subsection (a) of this Section 3.06 or terminate each such New
Affiliate Bank (other than the New Affiliate Bank having the
largest Commitment) in accordance with subsection (b) of this
Section 3.06.
(a) If the Company determines to replace a Bank
pursuant to this Section 3.06, the Company shall have the right
to replace such Bank with an entity that is an Eligible Assignee
(a "Replacement Bank"); provided that such Replacement Bank, (i)
if it is not already a Bank, shall be reasonably acceptable to
the Agent, (ii) shall unconditionally offer in writing (with a
copy to the Agent) to purchase all of such Bank's rights
hereunder and interest in the Loans owing to such Bank and the
Note held by such Bank without recourse at the principal amount
of such Note plus interest and fees accrued thereon to the date
of such purchase on a date therein specified, and (iii) shall, if
such Replacement Bank is not already a Bank, execute and deliver
to the Agent a document in form and substance satisfactory to the
Agent pursuant to which such Replacement Bank becomes a party
hereto with a Commitment equal to that of the Bank being
replaced, which document shall (among other matters) specify the
CD Lending Office, Domestic Lending Office and LIBOR Lending
Office of such Replacement Bank. Upon satisfaction of the
requirements set forth in the first sentence of this Section
3.06(a), acceptance of such offer to purchase by the Bank to be
replaced, payment to such Bank of the purchase price in
immediately available funds, and the payment by the Company of
all requested costs accruing to the date of purchase which the
Company is obligated to pay under Section 3.02 and all other
amounts owed by the Company to such Bank (other than the
principal of and interest on the Loans of such Bank purchased by
the Replacement Bank and interest and fees accrued thereon to the
date of purchase), and payment to the Agent of a non-refundable
processing fee of $2,500, the Replacement Bank shall constitute a
"Bank" hereunder with a Commitment as so specified and the Bank
being so replaced shall no longer constitute a "Bank" hereunder
(with the signature pages being amended to reflect same) and such
Bank shall be relieved of its obligations hereunder. If,
however, (x) a Bank accepts such an offer and such proposed
Replacement Bank fails to purchase such rights and interest on
such specified date in accordance with the terms of such offer,
the Company shall continue to be obligated to pay the increased
costs or additional amounts due to such Bank pursuant to Section
3.01, 3.03 or 3.05 (if a demand for repayment of increased costs
or additional amounts pursuant to any of such Sections is the
basis for the proposed replacement), as the case may be, or (y)
the Bank proposed to be replaced fails to accept such purchase
offer, the Company (if the basis for the proposed replacement is
a demand for payment of increased costs or additional amounts
pursuant to Sections 3.01, 3.03 or 3.05) shall not be obligated
to pay to such Bank such increased costs or additional amounts to
the extent incurred or accrued from and after the date of such
purchase offer, but in each of the cases set forth in clauses (x)
and (y), the Company shall continue to have the right to
terminate such Bank's Commitment in accordance with Section
3.06(b) hereof.
(b) In the event that the Company determines to
terminate a Bank's Commitment pursuant to this Section 3.06, the
Company shall give notice to such Bank of the Company's election
to terminate (a copy shall be sent to the Agent), and such
termination shall become effective 15 days thereafter unless such
Bank withdraws its request for additional compensation (with
respect to a proposed termination based on a request for
additional compensation) or reinstates its funding of LIBOR Loans
(with respect to a proposed termination based on a suspension of
funding of LIBOR Loans). On the date of the termination of the
Commitment of any Bank pursuant to this Section 3.06(b), (x) the
Company shall deliver notice of the effectiveness of such
termination to such Bank and to the Agent, (y) the Company shall
pay all amounts owed by the Company to such Bank under this
Agreement or under the Note payable to such Bank (including
principal of and interest on the Loans owed to such Bank, accrued
commitment fees and amounts specified in such Bank's notice (if
any) delivered pursuant to Sections 3.01, 3.03 or 3.05 as the
case maybe, with respect to the period prior to such termination)
and (z) upon the occurrence of the events set forth in clauses
(x) and (y), such Bank shall cease to be a "Bank" hereunder for
all purposes and such Bank shall be relieved of its obligations
hereunder.
3.07 Reallocation of Commitments in Event of Merger, Etc.
If after the Closing Date any Bank merges or consolidates with or
into one or more other Banks, the surviving entity of such merger
or consolidation (the "Surviving Bank") shall at the request of
the Company, if no Default or Event of Default then exists,
assign all or a portion of its Resulting Increased Commitment (as
defined below) to one or more entities selected by the Company
that are Eligible Assignees (each an "Acquiring Entity");
provided that (i) each Acquiring Entity shall unconditionally
offer in writing (with a copy to the Agent) to purchase a portion
of such Surviving Bank's Resulting Increased Commitment and the
portion of the Loans owing to such Surviving Bank and the Note or
Notes held by such Surviving Bank allocable to the amount of the
Resulting Increased Commitment to be acquired; (ii) the portion
of the Resulting Increased Commitment of the Surviving Bank
acquired by each Acquiring Entity shall be in integral multiples
of $1,000,000; (iii) the purchase price to be paid by the
Acquiring Entity shall be the outstanding principal amount of the
Loans owed to such Surviving Bank on the date of purchase (plus
interest and fees accrued thereon) that are allocable to the
amount of the Resulting Increased Commitment being acquired; and
(iv) each Acquiring Entity, if it is not already a Bank, shall be
reasonably acceptable to the Agent. Each Assignment hereunder
shall be accomplished in accordance with the second sentence of
Section 10.07(b), and to the extent of any such assignment, the
Surviving Bank shall be relieved of its obligations hereunder
with respect to its assigned Commitment. To the extent that the
Surviving Bank's Resulting Increased Commitment is not acquired
by an Acquiring Entity, the Company shall have the right to
terminate the Surviving Bank's Resulting Increased Commitment by
notice given to the Agent and such Bank within 180 days after the
effective date of such merger or consolidation. The termination
shall be effective 15 days thereafter, provided that on the date
of termination the Company shall have paid to the Surviving Bank
all amounts owed by the Company to the Surviving Bank allocable
to the amount of the Surviving Bank's Resulting Increased
Commitment being terminated (including principal of the Loans
owed to such Surviving Bank allocable to the portion of the
Resulting Increased Commitment being terminated plus interest and
fees accrued on such portion). The amounts owed by the Company
to the Surviving Bank under the Agreement that are allocable to
the amount of the Resulting Increased Commitment being acquired
or terminated pursuant to this Section 3.07, shall be the product
of (a) all amounts owed by the Company to the Surviving Bank
hereunder on the date of acquisition or termination (including
the outstanding principal amount of the Loans owed to the
Surviving Bank and interest and fees accrued thereon), and (b) a
fraction having as it numerator the amount of the Resulting
Increased Commitment being acquired or terminated and having as
its denominator the total amount of the Surviving Bank's
Commitment without giving effect to such acquisition or
termination. For the purposes of this Section 3.07, "Resulting
Increased Commitment" shall mean (a) the total combined
Commitment of the Surviving Bank immediately following a merger
or consolidation contemplated by this Section 3.07, minus (b) the
amount of the largest Commitment (immediately prior to such
merger or consolidation) of any Bank that was a party to such
merger or consolidation.
3.08 Certificates of Banks. Any Bank claiming reimbursement
or compensation under this Article III shall, as part of each
notice and demand for payment required under this Article III,
deliver to the Company (with a copy to the Agent) a certificate
setting forth in reasonable detail the amount and basis of the
reimbursement or compensation payable to the Bank hereunder and
such certificate shall be conclusive and binding on the Company
in the absence of manifest error.
3.09 Survival. The agreements and obligations of the
Company in this Article III shall survive the payment of all
other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
4.01 Conditions of Initial Loans. The obligation of each
Bank to make its initial Loan hereunder is subject to the
condition that the Agent have received on or before the Closing
Date all of the following, in form and substance satisfactory to
the Agent:
(a) Credit Agreement and Notes. This Agreement and
the Notes executed by each party thereto;
(b) Resolutions; Incumbency. (i) Copies of the
resolutions of the board of directors of the Company authorizing
the transactions contemplated hereby, certified as of the Closing
Date by the Secretary or an Assistant Secretary of the Company;
and (ii) a certificate of the Secretary or Assistant Secretary of
the Company certifying the names and true signatures of the
officers of the Company authorized to execute and deliver each
Loan Document to be executed by the Company;
(c) Organization Documents: Good Standing. Each of
the following documents: (i) the articles or certificate of
incorporation and the bylaws of the Company as in effect on the
Closing Date, certified by the Secretary or Assistant Secretary
of the Company as of the Closing Date; and (ii) a good standing
certificate for the Company from the Secretary of State (or
similar, applicable Governmental Authority) of its state of
incorporation and of the State of Texas dated as of a recent
date;
(d) Legal Opinions. An opinion of Wilson B. Fargo,
Senior Vice President and General Counsel of the Company,
addressed to the Agent and the Banks, substantially in the form
of Exhibit D-1; and an opinion of Vinson & Elkins L.L.P., counsel
to the Company, addressed to the Agent and the Banks,
substantially in the form of Exhibit D-2;
(e) Prior Agreement. Evidence that the commitments of
the lenders under that Credit Agreement dated as of May 10, 1993
among the Company, Nationsbank of Texas, N.A. and the other banks
named therein have been duly cancelled or terminated and that all
principal, interest, fees, expenses and other amounts outstanding
thereunder have been paid in full;
(f) 3-Year Credit Agreement. Evidence that all
conditions to closing of the 3-Year Credit Agreement have
occurred;
(g) Officer's Certificate. A certificate signed by a
Responsible Officer of the Company, dated as of the Closing Date,
stating that
(i) the representations and warranties contained
in Article V are true and correct on and as of such date,
and
(ii) no Default or Event of Default exists or
would result from the initial Borrowing; and
(h) Other Documents. Such other approvals, opinions,
documents or materials as the Agent or any Bank may reasonably
request.
4.02 Conditions to All Borrowings. The obligation of each
Bank to make any Loan is subject to the satisfaction of the
following conditions precedent on the relevant Borrowing Date:
(a) Notice of Borrowing. The Agent shall have
received (except as provided in Section 2.03(a)) a Notice of
Borrowing;
(b) Continuation of Representations and Warranties.
The representations and warranties in Article V shall be true and
correct on and as of such Borrowing Date with the same effect as
if made on and as of such Borrowing Date (except to the extent
such representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of such
earlier date); and
(c) No Existing Default. No Default or Event of
Default shall exist or shall result from such Borrowing.
Each Notice of Borrowing submitted by the Company hereunder, and
each making of a Borrowing by the Company, shall constitute a
representation and warranty by the Company hereunder, as of the
date of each such notice or request and as of each Borrowing
Date, that the conditions in Section 4.02 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each
Bank that:
5.01 Corporate Existence. The Company and each of its
Restricted Subsidiaries are duly incorporated or otherwise
formed, validly existing and (if applicable) in good standing in
each case under the laws of its jurisdiction of incorporation or
formation and have all requisite power and all authority as a
corporation, partnership or other form of business organization,
governmental licenses, authorizations, certificates, consents and
approvals required to carry on their respective businesses as now
conducted in all material respects.
5.02 Corporate Power. The execution, delivery and
performance by the Company of the Loan Documents and the
consummation of the transactions contemplated by such Loan
Documents are within the Company's corporate powers, have been
duly authorized by all necessary corporate action, and do not
contravene (a) the Company's charter or bylaws or (b) any law or
regulation applicable to the Company, or (c) any material
("material" for the purposes of this representation meaning
creating a liability of $50,000,000 or more) agreement binding on
the Company, or, to its knowledge, any other agreement binding on
the Company.
5.03 Authorization and Approvals. No authorization or
approval or other action by, and no notice to or filing with, any
Governmental Authority is required for the due execution,
delivery and performance by the Company of the Loan Documents or
the consummation of the transactions contemplated by such Loan
Documents.
5.04 Enforceable Obligations. This Agreement has been duly
executed and delivered by the Company. This Agreement is, and,
when executed and delivered in accordance with this Agreement,
each Note will be, the legal, valid and binding obligations of
the Company enforceable against the Company in accordance with
their respective terms, except as such enforceability may be
limited by any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally,
and by general principles of equity.
5.05 Financial Statements. The audited consolidated balance
sheet of the Company and its Subsidiaries as of December 31,
1993, and the related audited consolidated statements of income
and cash flows for the fiscal year then ended (as shown on the
Company's Form 10-K for the year ended December 31, 1993) and the
unaudited consolidated balance sheet of the Company and its
Subsidiaries as of March 31, 1994 and the related unaudited
statements of income and cash flows for the fiscal quarter then
ended (as shown on the Company's Form 10-Q for the quarter ended
March 31, 1994), fairly present the consolidated financial
condition of the Company and its Subsidiaries as of such dates
and the consolidated results of operations of the Company and its
Subsidiaries for such fiscal periods, all in accordance with GAAP
except as otherwise expressly noted therein, subject (in the case
of the unaudited balance sheet and income statement) to changes
resulting from normal year-end audit adjustments.
5.06 Litigation. Except as disclosed in the Company's Form
10-K for the year ended December 31, 1993, or the Company's Form
10-Q for the quarter ended March 31, 1994, which were delivered
to the Banks prior to the date hereof, or as further disclosed by
the Company to the Banks and the Agent in writing, there is no
pending or, to the knowledge of the Company, threatened action or
proceeding affecting the Company or any of its Subsidiaries
before any court, governmental agency or arbitrator, in which
there is a reasonable likelihood of an adverse decision which
could materially adversely affect the consolidated financial
condition or operations of the Company and its Subsidiaries,
taken as a whole. There is no pending or, to the knowledge of
the Company, threatened action or proceeding affecting the
Company which purports to affect the legality, validity, binding
effect or enforceability of any of the Loan Documents.
5.07 Regulation U; Use of Proceeds. Following the
application of the proceeds of each Loan, not more than 25% of
the value of the assets of the Company which are subject to any
arrangement with the Agent or any Bank (herein or otherwise)
whereby the Company's or any Subsidiary's right or ability to
sell, pledge or otherwise dispose of assets is in any way
restricted will be Margin Stock. The Company shall not, and
shall not suffer or permit any of its Subsidiaries to, use any
portion of the Loan proceeds, directly or indirectly, to acquire
any securities in connection with any transaction subject to
Section 13 (other than an Investment Transaction) or Section 14
of the Exchange Act, unless, prior to the time such transaction
becomes subject to such Section 13 or 14, the board of directors
or other applicable governing body of the Person that is the
issuer of such securities has adopted a resolution approving such
transaction and approving a Change in Control with respect to
such Person whereby the Company may acquire control of such
Person. For purposes of this Section 5.07, an "Investment
Transaction" means a transaction subject to Section 13(d), but
not Section 16, of the Exchange Act, provided that in connection
with such transaction the Company or its Subsidiary (as the case
may be) has reported and at all times continues to report to the
SEC that such transaction is undertaken for investment purposes
only and not for any of the purposes specified in clauses 4(a)
through (j), inclusive, of Schedule 13D.
5.08 Investment Company Act. Neither the Company nor any of
its Subsidiaries is an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
5.09 ERISA. The Company is in compliance with all
applicable provisions of ERISA.
5.10 Holding Company. Neither the Company nor any of its
Subsidiaries is a "holding company", or a "subsidiary company" of
a "holding company", or an "affiliate" of a "holding company" or
of a "subsidiary company" of a "holding company", or a "public
utility" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.11 Environmental Condition. Except as disclosed in the
Company's Form 10-K Report for the year ended December 31, 1993
or in the Company's Form 10-Q Report for the quarter ended March
31, 1994, or as further disclosed by the Company to the Banks and
the Agent in writing, the aggregate contingent and non-contingent
liabilities of the Company and its Subsidiaries which are
presently known to any Responsible Officer and reasonably
expected to arise in connection with (a) the requirements of
Environmental Protection Statutes or (b) any obligation or
liability to any Person in connection with any Environmental
matters, including any release or threatened release of any
Hazardous Substance or Hazardous Waste, does not exceed 10% of
the Consolidated Tangible Net Worth of the Company (excluding
such liabilities to the extent covered by insurance if the
insurer has confirmed that such insurance covers such
liabilities).
5.12 No Material Adverse Change. Since December 31, 1993,
there has been no material adverse change in the business,
consolidated financial position or consolidated results of
operation of the Company and its Subsidiaries.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or
any Note shall remain unpaid, the Company will unless the
Majority Banks waive compliance in writing:
6.01 Compliance with Laws Etc. Comply and cause each of its
Subsidiaries to comply in all material respects with all
applicable laws, rules, regulations and orders, including
compliance with the requirements of ERISA and Environmental
Protection Statutes and the payment and discharge before
delinquency of all taxes, assessments and governmental charges or
levies imposed upon the Company or any of its Subsidiaries or any
property of the Company or any of its Subsidiaries, in each case
to the extent that the failure to comply, pay or discharge would
have a material adverse effect on the Company and its
Subsidiaries taken as a whole; provided that neither the Company
nor any Subsidiary of the Company shall be required to pay any
such tax, assessment, charge or levy or comply with any
requirement which is being contested in good faith and adequately
reserved against to the extent required by GAAP.
6.02 Reporting Requirements. Furnish to each of the Banks:
(a) promptly after the filing or sending thereof and
in any event not later than 115 days after the end of each fiscal
year, a copy of the Company's annual report which it sends to its
public security holders and a copy of the Company's report on
Form 10-K which the Company files with the SEC for such year
together with a duly-completed Compliance Certificate;
(b) promptly after the filing thereof, and in any
event within 60 days after the end of each of the first three
fiscal quarters during each fiscal year, the Company's report on
Form 10-Q which the Company files with the SEC for such quarter
together with a duly completed Compliance Certificate;
(c) promptly, but in any event within five days after
a Responsible Officer of the Company has obtained knowledge
thereof, a notice of each Default or Event of Default, together
with a statement of a Responsible Officer setting forth the
details of such Default or Event of Default and the actions which
the Company has taken and proposes to take with respect thereto;
(d) promptly after the filing thereof, copies of each
of the reports on Form 8-K and each Schedule 13D (and any
amendment thereto), if any, which the Company files with the SEC;
and
(e) promptly upon any Responsible Officer becoming
aware thereof, notice of any transaction or event that is, or is
reasonably anticipated to result in, a Specified Transaction; and
(f) such other information respecting the condition or
operations, financial or otherwise, of the Company and its
Subsidiaries as any Bank through the Agent may from time to time
reasonably request.
6.03 Use of Proceeds. Use the proceeds of the Loans for
general corporate purposes, including to backstop the Company's
commercial paper program.
6.04 Maintenance of Insurance. Maintain, and cause each of
its Restricted Subsidiaries to maintain, insurance with
responsible and reputable insurance companies or associations in
such amounts and covering such risks as are usually carried by
companies engaged in similar businesses and owning similar
properties in the same general areas in which the Company and its
Restricted Subsidiaries operate, provided that the Company and
its Restricted Subsidiaries may self-insure to the extent and in
the manner normal for companies of like size, type and financial
condition. The Company may maintain its Restricted Subsidiaries'
insurance on behalf of them.
6.05 Corporate Existence Etc. Preserve and maintain, and
cause each of its Restricted Subsidiaries to preserve and
maintain, its corporate existence, rights and franchises;
provided, however, that no Event of Default shall arise under
this Section 6.05 as a result of any Specified Transaction if any
prepayment required under Section 2.08(c) is timely made, or as a
result of the termination of existence, rights and franchises of
any Restricted Subsidiary pursuant to any merger or consolidation
to which such Restricted Subsidiary is a party, and provided,
further, that the Company or any Restricted Subsidiary shall not
be required to preserve any right or franchise if the Company or
such Restricted Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of the business of
the Company or such Restricted Subsidiary, as the case may be,
and that the loss thereof is not disadvantageous in any material
respect to the Banks.
6.06 Visitation Rights. From time to time and so long as
any visit or inspection will not unreasonably interfere with the
operations of the Company and its Restricted Subsidiaries, upon
reasonable notice, permit the Agent and any Bank or any agents or
representatives thereof to examine the financial records and
books of account of, and visit and inspect the properties of, the
Company and any such Restricted Subsidiary, and to discuss the
affairs, finances and accounts of the Company and any such
Restricted Subsidiary with any of their respective officers or
directors.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or
any Note shall remain unpaid, the Company will not, unless the
Majority Banks waive compliance in writing:
7.01 Consolidated Tangible Net Worth. Have Consolidated
Tangible Net Worth of less than $2,000,000,000.
7.02 Liens. Fail to perform and observe any term, covenant
or agreement contained in Section 3.7 of the Senior Debt
Indenture (as modified for purposes hereof as set forth in the
proviso to the next sentence hereof). For the purposes of this
Section 7.02, Section 3.7 and the definitions of all terms
defined in the Senior Debt Indenture and used in or otherwise
applicable to such Section 3.7 are hereby incorporated in this
Agreement by reference as if such provisions and definitions were
set forth in full herein; provided, however, that solely for the
purposes of this Section 7.02 the word "Securities" as used in
the Senior Debt Indenture shall mean the Notes, the phrase "this
Section 3.7" used therein shall mean this Section 7.02, and the
word "Issuer" used therein shall mean the Company.
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Event of Default. Any of the following shall
constitute an "Event of Default":
(a) Non-Payment. The Company fails to pay, (i) any
principal on any Note when such principal is due and payable,
(ii) any interest on any Note within five days after such
interest becomes due and payable, or (iii) the commitment fee set
forth in Section 2.11 within 15 days after such commitment fee
becomes due and payable; or
(b) Representation or Warranty. Any representation or
warranty made by the Company or any Responsible Officer
(including representations and warranties deemed made pursuant to
Section 4.02 hereof) under or in connection with any Loan
Document is incorrect in any material respect on or as of the
date made or deemed made; or
(c) Specific Defaults. The Company fails to perform
or observe any term, covenant or agreement contained in any of
Sections 6.02(c), 6.02(e), 6.02(f), 7.01 or 7.02; or
(d) Other Defaults. The Company fails to perform or
observe any other term or covenant contained in this Agreement,
and such default shall continue unremedied for a period of 30
days after written notice thereof is given to the Company by the
Agent at the request of any Bank; or
(e) Cross-Default. The Company or any Restricted
Subsidiary (i) fails to make any payment of principal of or
premium or interest on (A) any Debt outstanding under the 3-Year
Credit Agreement, or (B) any Debt (other than Debt described in
clause (iv) of the definition of Debt) which is outstanding in
the principal amount of at least $50,000,000 in the aggregate of
the Company or such Restricted Subsidiary (as the case may be),
when such payment in respect of Debt described in clause (A) or
(B) becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise), and
such failure continues after the applicable grace or notice
period, if any, in effect on the date of such failure, event or
condition in the agreement or instrument relating to any such
Debt; or (ii) fails to perform or observe any other condition or
covenant, or any other event shall occur or condition exist,
under any agreement or instrument relating to any such Debt
(other than Debt described in clause (iv) of the definition of
Debt) and such failure continues after the applicable grace or
notice period in effect on the date of such failure, event or
condition, if any, if the effect of such failure, event or
condition is to cause any such Debt to be declared to be due and
payable prior to its stated maturity; or
(f) Insolvency; Voluntary Proceedings. The Company or
any Restricted Subsidiary (i) generally fails to pay, or admits
in writing its inability to pay, its debts as they become due,
subject to applicable grace periods, if any, whether at stated
maturity or otherwise; (ii) commences any Insolvency Proceeding
with respect to itself; or (iii) takes any corporate action to
effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. Any involuntary
Insolvency Proceeding is commenced or filed against the Company
or any Restricted Subsidiary, and such Involuntary Proceeding is
not released, vacated or stayed within 60 days after the
commencement or filing thereof; or
(h) Judgments. Any judgment or order for the payment
of money in excess of $50,000,000 shall be rendered against the
Company and remain unsatisfied and either (i) enforcement
proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 60
consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect.
8.02 Remedies. If any Event of Default shall occur and be
continuing, the Agent shall, at the request of, or may, with the
consent of, the Majority Banks, (a) by notice to the Company,
declare the obligation of each Bank to make Loans be terminated,
whereupon such obligations shall be terminated; (b) by notice to
the Company, declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon, and
all other amounts owing or payable hereunder or under any other
Loan Document, to be immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived by the Company; and (c)
exercise on behalf of itself and the Banks all other rights and
remedies available to it and the Banks under the Loan Documents
or applicable law; provided, however, that upon the occurrence of
any event specified in subsection (f) or (g) of Section 8.01 (in
the case of subsection (g) upon the expiration of the 60-day
period mentioned therein), the obligation of each Bank to make
Loans shall automatically terminate and the unpaid principal
amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable
without further act of the Agent or any Bank.
8.03 Rights Not Exclusive. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies
provided by law or in equity.
ARTICLE IX
THE AGENT
9.01 Appointment and Authorization. Each Bank hereby
irrevocably appoints, designates and authorizes the Agent to take
such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms
of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement
or in any other Loan Document, the Agent shall not have any
duties or responsibilities, except those expressly set forth
herein, nor shall the Agent have or be deemed to have any
fiduciary relationship with any Bank, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or
otherwise exist against the Agent.
9.02 Delegation of Duties. The Agent may execute any of its
duties under this Agreement or any other Loan Document by or
through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining
to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it
selects with reasonable care.
9.03 Liability of Agent. None of the Agent-Related Persons
shall (i) be liable for any action taken or omitted to be taken
by any of them under or in connection with this Agreement or any
other Loan Document or the transactions contemplated hereby
(except for its own gross negligence or willful misconduct), or
(ii) be responsible in any manner to any of the Banks for any
recital, statement, representation or warranty made by the
Company or any Subsidiary or Affiliate of the Company, or any
officer thereof, contained in this Agreement or in any other Loan
Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent
under or in connection with, this Agreement or any other Loan
Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of the Company or any other party to
any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any
obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in,
or conditions of, this Agreement or any other Loan Document, or
to inspect the properties, books or records of the Company or any
of the Company's Subsidiaries or Affiliates.
9.04 Reliance by Agent. (a) The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, statement or
other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal
counsel (including counsel to the Company), independent
accountants and other experts selected by the Agent. The Agent
shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it
shall first receive such advice or concurrence of the Majority
Banks as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Banks against any
and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Majority
Banks or all of the Banks if required by Section 10.01 and such
request and any action taken or failure to act pursuant thereto
shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the
conditions specified in Section 4.01, each Bank that has executed
this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter
either sent by the Agent to such Bank for consent, approval,
acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the
Bank.
9.05 Notice of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or
Event of Default, except with respect to defaults in the payment
of principal, interest and fees required to be paid to the Agent
for the account of the Banks, unless the Agent shall have
received written notice from a Bank or the Company referring to
this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". The Agent
will notify the Banks of its receipt of any such notice. The
Agent shall take such action with respect to such Default or
Event of Default as may be requested by the Majority Banks in
accordance with Article VIII; provided, however, that unless and
until the Agent has received any such request, the Agent may (but
shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the
Banks.
9.06 Credit Decision. Each Bank acknowledges that none of
the Agent-Related Persons has made any representation or warranty
to it, and that no act by the Agent hereinafter taken, including
any review of the affairs of the Company and its Subsidiaries,
shall be deemed to constitute any representation or warranty by
any Agent-Related Person to any Bank. Each Bank represents to
the Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal
of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of
the Company and its Subsidiaries, and all applicable bank
regulatory laws relating to the transactions contemplated hereby,
and made its own decision to enter into this Agreement and to
extend credit to the Company hereunder. Each Bank also
represents that it will, independently and without reliance upon
any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking
or not taking action under this Agreement and the other Loan
Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of
the Company. Except for notices, reports and other documents
expressly herein required to be furnished to the Banks by the
Agent, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning
the business, prospects, operations, property, financial and
other condition or creditworthiness of the Company which may come
into the possession of any of the Agent-Related Persons.
9.07 Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify
upon demand the Agent-Related Persons (to the extent not
reimbursed by or on behalf of the Company and without limiting
the obligation of the Company to do so), pro rata, from and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Agent-Related
Persons in any way relating to or arising out of the Loan
Documents or any action taken or omitted by an Agent-Related
Person, provided, however, that no Bank shall be liable for the
payment to the Agent-Related Persons of any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from
such Person's gross negligence or willful misconduct. IT IS THE
INTENTION OF THE BANKS THAT EACH AGENT-RELATED PERSON SHALL, TO
THE EXTENT PROVIDED IN THIS SECTION 9.07, BE INDEMNIFIED FOR ITS
ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE. Without limitation of
the foregoing, each Bank shall reimburse the Agent upon demand
for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Agent in connection
with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice
in respect of rights or responsibilities under, this Agreement,
any other Loan Document, or any document contemplated by or
referred to herein, to the extent that the Agent is not
reimbursed for such expenses by or on behalf of the Company. The
undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of the
Agent.
9.08 Agent in Individual Capacity. The Bank serving as
Agent and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity
interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the
Company and its Subsidiaries and Affiliates as though the Bank
serving as Agent were not the Agent hereunder and without notice
to or consent of the Banks. The Banks acknowledge that, pursuant
to such activities, the Bank serving as Agent or its Affiliates
may receive information regarding the Company or its Affiliates
(including information that may be subject to confidentiality
obligations in favor of the Company or such Subsidiary) and
acknowledge that the Agent shall be under no obligation to
provide such information to them. With respect to its Loans, the
Bank serving as Agent shall have the same rights and powers under
this Agreement as any other Bank and may exercise the same as
though it were not the Agent, and the terms "Bank" and "Banks"
include the Bank serving as Agent in its individual capacity.
9.09 Successor Agent. The Agent may, and at the request of
the Majority Banks shall, resign as Agent upon 30 days' prior
written notice to the Banks and the Company. If the Agent
resigns under this Agreement, the Majority Banks shall appoint
from among the Banks a successor agent for the Banks which
successor agent shall be subject to approval by the Company. If
no successor agent is appointed prior to the effective date of
the resignation of the Agent, the Agent may appoint, after
consulting with the Banks and the Company, a successor agent from
among the Banks. Upon the acceptance of its appointment as
successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Agent and the
term "Agent" shall mean such successor agent and the retiring
Agent's appointment, powers and duties as Agent shall be
terminated. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article IX and Sections 3.01, 10.04
and 10.05 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this
Agreement. If no successor agent has accepted appointment as
Agent by the date which is 30 days following a retiring Agent's
notice of resignation, the retiring Agent's resignation shall
nevertheless thereupon become effective and the Banks shall
perform all of the duties of the Agent hereunder and under any
other Loan Document until such time, if any, as the Majority
Banks appoint a successor agent as provided for above.
9.10 Withholding Tax. (a) If any Bank is a foreign
corporation, foreign partnership or foreign trust within the
meaning of the Code and such Bank claims exemption from, or a
reduction of, United States withholding tax under Sections 1441
or 1442 of the Code, such Bank agrees with and in favor of the
Agent, to deliver to the Agent:
(i) if such Bank claims an exemption from, or a
reduction of, withholding tax under a United States tax
treaty, two properly completed and executed IRS Forms 1001
and W-8 at least 30 days before the payment of any interest
is due in the first calendar year and at least 30 days
before the payment of any interest in each third succeeding
calendar year during which interest may be paid under this
Agreement;
(ii) if such Bank claims that interest paid under
this Agreement is exempt from United States withholding tax
because it is effectively connected with a United States
trade or business of such Bank, two properly completed and
executed copies of IRS Form 4224 at least 30 days before the
payment of any interest is due in the first taxable year of
such Bank and in each succeeding taxable year of such Bank
during which interest may be paid under this Agreement; and
(iii) such other form or forms as may be
required under the Code or other laws of the United States
as a condition to exemption from, or reduction of, United
States withholding tax.
The Agent shall deliver one copy of each such form to
the Company. Such Bank agrees to promptly notify the Agent of
any change in circumstances which would modify or render invalid
any claimed exemption or reduction.
(b) If any Bank claims exemption from, or reduction
of, withholding tax under a United States tax treaty by providing
IRS Form 1001 and such Bank sells, assigns, grants a
participation in, or otherwise transfers all or part of the
Obligations of the Company to such Bank, such Bank agrees to
notify the Agent (which in turn shall notify the Company) of the
percentage amount in which it is no longer the beneficial owner
of Obligations of the Company to such Bank. To the extent of
such percentage amount, the Agent (and the Company) will treat
such Bank's IRS Form 1001 as no longer valid.
(c) If any Bank claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Agent sells,
assigns, grants a participation in, or otherwise transfers all or
part of the Obligations of the Company to such Bank, such Bank
agrees to notify the Agent (which in turn shall notify the
Company) of the percentage amount in which it is no longer the
beneficial owner of Obligations of the Company to such Bank. To
the extent of such percentage amount, the Agent (and the Company)
will treat such Bank's Form 4224 as no longer valid.
(d) If any Bank is entitled to a reduction in the
applicable withholding tax, the Agent may withhold from any
interest payment to such Bank an amount equivalent to the
applicable withholding tax after taking into account such
reduction. If the forms or other documentation required by
subsection (a) of this Section are not delivered to the Agent,
then the Agent may withhold from any interest payment to such
Bank not providing such forms or other documentation an amount
equivalent to the applicable withholding tax (without taking into
account such reduction).
(e) If the IRS or any other Governmental Authority of
the United States or other jurisdiction asserts a claim that the
Agent did not properly withhold tax from amounts paid to or for
the account of any Bank (because the appropriate form was not
delivered, was not properly executed, or because such Bank failed
to notify the Agent of a change in circumstances which rendered
the exemption from, or reduction of, withholding tax ineffective,
or for any other reason) such Bank shall indemnify the Agent
fully for all amounts paid, directly or indirectly, by the Agent
as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts
payable to the Agent under this Section, together with all costs
and expenses (including Attorney Costs). The obligation of the
Banks under this subsection shall survive the payment of all
Obligations and the resignation or replacement of the Agent.
9.11 Co-Agent. The Bank identified on the facing page and
signature page of this Agreement as "co-agent" shall have no
right, power, obligation, liability, responsibility or duty under
this Agreement other than those applicable to all Banks as such.
Each Bank acknowledges that it has not relied, and will not rely,
on the Bank so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE X
MISCELLANEOUS
10.01 Amendments and Waivers. No amendment or waiver of
any provision of this Agreement or any other Loan Document, and
no consent with respect to any departure by the Company
therefrom, shall be effective unless the same shall be in writing
and signed by the Majority Banks and acknowledged by the Agent,
and then such waiver shall be effective only in the specific
instance and for the specific purpose for which given; provided,
however, that no such waiver, amendment, or consent shall, unless
in writing and signed by all the Banks and acknowledged by the
Agent, do any of the following:
(a) increase or extend the Commitment of any Bank
(except as provided in Section 2.05) or reinstate any Commitment
terminated pursuant to Section 8.02 or subsections (b) or (c) of
Section 2.08;
(b) postpone or delay any date fixed for any payment
of principal, interest or fees due to the Banks (or any of them)
hereunder or under any Loan Document;
(c) reduce the principal of, or the rate of interest
specified herein on any Loan, or any fees payable hereunder or
under any other Loan Document;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes which is required
for the Banks or any of them to take any action hereunder; or
(e) amend this Section or any provision herein
providing for consent or other action by all Banks;
and, provided further, that no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to
the Majority Banks or all the Banks, as the case may be, affect
the rights or duties of the Agent under this Agreement or any
other Loan Document.
10.02 Notices. (a) All notices, requests and other
communications shall be in writing (including, unless the context
expressly otherwise provides, by telecopier transmission,
provided that any matter transmitted by telecopier shall be
immediately preceded or confirmed by a telephone call to the
recipient at the number specified on the applicable signature
page hereof), and mailed, telecopied or delivered, to the address
or telecopier number specified for notices on Schedule 10.02; or,
as directed to the Company or the Agent, to such other address as
shall be designated by such party in a written notice to the
other parties, and as directed to any other party, at such other
address as shall be designated by such party in a written notice
to the Company and the Agent.
(b) All such notices, requests and communications
shall be effective, if sent by overnight courier, one Business
Day after delivery to the courier company; if sent by telecopier,
when received in legible form by the receiving telecopier
equipment; if mailed, upon the second Business Day after the date
deposited into the U.S. mail; or if delivered, upon delivery;
provided that (i) notices pursuant to Article II or IX shall not
be effective until actually received by the Agent, and (ii)
telecopied notices received by any party after its normal
business hours (or on a day other than a Business Day) shall be
effective on the next Business Day.
(c) Any agreement of the Agent and the Banks herein to
receive certain notices by telephone or facsimile is solely for
the convenience and at the request of the Company. The Agent and
the Banks shall be entitled to rely on the authority of any
Person purporting to be a Person authorized by the Company to
give such notice and the Agent and the Banks shall not have any
liability to the Company or other Person on account of any action
taken or not taken by the Agent or the Banks in reliance upon
such telephonic or facsimile notice. The obligation of the
Company to repay the Loans shall not be affected in any way or to
any extent by any failure by the Agent and the Banks to receive
written confirmation of any telephonic or facsimile notice or the
receipt by the Agent and the Banks of a confirmation which is at
variance with the terms understood by the Agent and the Banks to
be contained in the telephonic or facsimile notice.
10.03 No Waiver: Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Agent or
any Bank, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege.
10.04 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated
hereby are consummated, pay for all reasonable costs and expenses
incurred by the Agent in connection with the preparation,
delivery, administration and execution of, and any amendment,
supplement, waiver or modification to (in each case, whether or
not consummated), this Agreement, any Loan Document and any other
documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby;
limited, however, in the case of the preparation, execution and
delivery of the Loan Documents, to the reasonable Attorney Costs
of one law firm and, to the extent not duplicative, internal
counsel, for the Agent as more fully provided in a letter
agreement between the Company and the Agent; and
(b) pay or reimburse the Agent and each Bank within
five Business Days after demand for all costs and expenses
(including reasonable Attorney Costs) incurred by them in
connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or
any other Loan Document during the existence of an Event of
Default or after acceleration of the Loans (including in
connection with any "workout" or restructuring regarding the
Loans, and including in any Insolvency Proceeding or appellate
proceeding).
10.05 Indemnity. The Company agrees, to the fullest
extent permitted by law, to indemnify and hold harmless the
Agent-Related Persons, and each Bank and its respective
directors, officers, employees and agents, from and against any
and all claims, damages, liabilities and expenses (including,
without limitation, reasonable Attorney Costs) for which any of
them may become liable or which may be incurred by or asserted
against the Agent-Related Persons, or such Bank or any such
director, officer, employee or agent (other than by another Bank
or any successor or assign of another Bank), in each case in
connection with or arising out of or by reason of any
investigation, litigation, or proceeding, whether or not the
Agent or such Bank or any such director, officer, employee or
agent is a party thereto, arising out of, related to or in
connection with any Loan Document or any transaction in which any
proceeds of all or any part of the Loans are applied, EXPRESSLY
INCLUDING ANY SUCH CLAIM, DAMAGE, LIABILITY OR EXPENSE ARISING
OUT OF THE ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH
INDEMNIFIED PERSON (but excluding any such claim, damage,
liability or expense to the extent attributable to the gross
negligence or willful misconduct of, or violation of any law or
regulation by, any such indemnified Person).
10.06 Payments Set Aside. To the extent that the
Company makes a payment to the Agent or the Banks, or the Agent
or the Banks exercise their right of set-off, and such payment or
the proceeds of such set-off or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by
the Agent or such Bank in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any
Insolvency Proceeding or otherwise, then (a) to the extent of
such recovery the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such set-off had
not occurred, and (b) each Bank severally agrees to pay to the
Agent upon demand its pro rata or other applicable share of any
amount so recovered from or repaid by the Agent.
10.07 Binding Effect; Assignments; Participations. (a)
This Agreement shall become effective when it shall have been
executed by the Company and the Agent and when the Agent shall
have, as to each Bank, either received a copy (including one
transmitted by telecopier) of a signature page hereof executed by
such Bank and thereafter shall be binding upon and inure to the
benefit of and be enforceable by the Company, the Agent and each
Bank and their respective successors and assignees, subject to
Section 10.07(e) and except that the Company shall not have the
right to assign its rights or obligations hereunder or any
interest herein without the prior written consent of the Banks
(other than an assignment effectuated by operation of law
pursuant to a Specified Transaction).
(b) Each Bank may grant participations to one or more
commercial banks or other Persons, in each case in accordance
with applicable law, in or to all or any part of, the Loans owing
to such Bank and the Note held by such Bank subject to Section
10.07(e), and to the extent of any such participation (unless
otherwise stated therein) the purchaser of such participation
shall, to the fullest extent permitted by law, have the same
rights to payment hereunder and under such Loan and Note as it
would have if it were such Bank hereunder, provided that (x) the
originating Bank's obligations under this Agreement, including,
without limitation, its commitment to make loans to the Company
hereunder, shall remain unchanged, such Bank shall remain solely
responsible for the performance thereof, such Bank shall remain
the holder of any such Note for all purposes under this
Agreement, and the Company, the other Banks 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; (y)
no such participant shall be entitled to receive any greater
payment pursuant to Sections 3.01, 3.03 and 3.05 hereof than such
Bank would have been entitled to receive with respect to the
rights assigned except as a result of circumstances arising after
the date of such participation to the extent that such
circumstances affect other Banks and participants generally; and
(z) no Bank shall grant a participation that conveys to the
participant the right to vote or consent under this Agreement,
other than the right to vote upon or consent to (i) any increase
in the amount of such Bank's Commitment; (ii) any reduction of
the principal amount of, or interest to be paid on, such Bank's
Loan or Note; (iii) any reduction of the Commitment Fee; or (iv)
any postponement of the due date in respect of any amounts owed
to such Bank under any Loan Document.
(c) In accordance with applicable law, any Bank may
assign a portion, in an amount of at least $10,000,000 of its
Commitment (provided such assignment does not result in the
remaining Commitment of the assigning Bank being less than
$20,000,000), together with a ratable portion of its Loans and
other rights and obligations hereunder to an Eligible Assignee,
with the prior written consents of the Agent and (unless there
has occurred and is continuing an Event of Default) the Company,
which consents shall not be unreasonably withheld, subject to
Section 10.07(e). Each such Eligible Assignee to which an
assignment has been made pursuant to this Section 10.07(c) which
is not already a Bank shall become a party to this Agreement as a
Bank by executing and delivering to the Agent an amendment to
this Agreement or a supplemental agreement with the assigning
Bank, which amendment or supplemental agreement shall be in form
and substance reasonably satisfactory to the Agent and shall
(among other matters) specify the CD Lending Office, Domestic
Lending Office and Eurodollar Lending Office of such Eligible
Assignee, provided that, in the case of each such assignment, (i)
at such time the signature pages to this Agreement shall be
deemed to be modified to reflect the Commitments of such assignee
Bank and of the existing Banks, (ii) the Company shall issue new
Notes to such assignee Bank and to the assigning Bank to reflect
the revised Commitments and (iii) the Agent shall receive at the
time of such assignment, from the assigning or assignee Bank, a
non-refundable assignment fee of $2,500. To the extent of any
assignment pursuant to this Section 10.07(c), the assigning Bank
shall be relieved of its obligations hereunder with respect to
its assigned Commitment.
(d) In addition to the assignments and participations
permitted under Section 10.07(b) and (c), any Bank may at any
time create a security interest in, or pledge, all or any portion
of its rights under this Agreement and the Notes held by it in
favor of any Federal Reserve Bank in accordance with Regulation A
of the FRB, and such Federal Reserve Bank may enforce such pledge
or security interest in any manner permitted under applicable
law.
(e) Unless an Event of Default has occurred and is
continuing, no assignments or participations shall result in a
Bank (together with its Affiliates) holding Commitments, or
participations therein, in excess of $100,000,000 without the
prior written consent of the Company.
10.08 Set-off. In addition to any rights and remedies
of the Banks provided by law, if an Event of Default exists or
the Loans have been accelerated, to the fullest extent permitted
by applicable law each Bank is authorized at any time and from
time to time, without prior notice to the Company, any such
notice being waived by the Company to the fullest extent
permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any
time held by, and other indebtedness at any time owing by, such
Bank to or for the credit or the account of the Company against
any and all Obligations owing to such Bank, now or hereafter
existing, irrespective of whether or not the Agent or such Bank
shall have made demand under this Agreement or any Loan Document
and although such Obligations may be contingent or unmatured.
Each Bank agrees promptly to notify the Company and the Agent
after any such set-off and application made by such Bank;
provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application.
10.09 Interest. (a) It is the intention of the parties
hereto that the Agent and each Bank shall conform strictly to
usury laws applicable to it, if any. Accordingly, if the
transactions with the Agent or any Bank contemplated hereby would
be usurious under applicable law, if any, then, in that event,
notwithstanding anything to the contrary in this Agreement, the
Notes or any other agreement entered into in connection with this
Agreement or the Notes, it is agreed as follows: (i) the
aggregate of all consideration which constitutes interest under
applicable law that is contracted for, taken, reserved, charged
or received by the Agent or such Bank, as the case may be, under
this Agreement, the Notes or under any other agreement entered
into in connection with this Agreement or the Notes shall under
no circumstances exceed the maximum amount allowed by such
applicable law and any excess shall be cancelled automatically
and, if theretofore paid, shall be refunded by the Agent or such
Bank, as the case may be, to the Company, and (ii) in the event
that the maturity of any Loan or other obligation payable to the
Agent or such Bank, as the case may be, is accelerated or in the
event of any required or permitted prepayment, then such
consideration that constitutes interest under law applicable to
the Agent or such Bank, as the case may be, may never include
more than the maximum amount allowed by such applicable law and
excess interest, if any, to the Agent or such Bank, as the case
may be, provided for in this Agreement or otherwise shall be
cancelled automatically as of the date of such acceleration or
prepayment and, if theretofore paid, shall, at the option of the
Agent or such Bank, as the case may be, be credited by the Agent
or such Bank, as the case may be, on the principal amount of the
obligations owed to the Agent or such Bank, as the case may be,
by the Company or refunded by the Agent or such Bank, as the case
may be, to the Company. To the extent that Article 5069-1.04 of
the Texas Revised Civil Statutes is relevant to any Bank for the
purposes of determining the Highest Lawful Rate, such Bank hereby
elects to determine the applicable rate ceiling under such
Article by the indicated (weekly) rate ceiling from time to time
in effect, subject to such Bank's right to subsequently change
such rate ceiling in accordance with applicable law. Tex. Rev.
Civ. Stat. Ann. art. 5069, ch. 15 (which regulates certain
revolving credit loan accounts and revolving triparty accounts)
shall not apply to this Agreement or the Notes.
(b) In the event that at any time the interest rate
applicable to any Loan made by any Bank would exceed the Highest
Lawful Rate, the rate of interest to accrue on the Loans by such
Bank shall be limited to the Highest Lawful Rate, but shall
accrue, to the extent permitted by law, on the principal amount
of the Loans made by such Bank from time to time outstanding, if
any, at the Highest Lawful Rate allowed by applicable law until
the total amount of interest accrued on the Loans made by such
Bank equals the amount of interest which would have accrued if
the interest rates applicable to the Loans pursuant to Article II
had at all times been in effect. In the event that upon the
final payment of the Loans made by any Bank and termination of
the Commitment of such Bank, the total amount of interest paid to
such Bank hereunder is less than the total amount of interest
which would have accrued if the interest rates applicable to such
Loans pursuant to Article II had at all times been in effect,
then the Company agrees to pay to such Bank, to the extent
permitted by law, an amount equal to the excess of (a) the lesser
of (i) the amount of interest which would have accrued on such
Loans if the Highest Lawful Rate had at all times been in-effect
or (ii) the amount of interest which would have accrued if the
interest rates applicable to such Loans pursuant to Article II
had at all times been in effect over (b) the amount of interest
otherwise accrued on such Loans in accordance with this
Agreement.
10.10 Confidentiality. (a) Each Bank and the Agent
acknowledge that certain confidential and proprietary information
of the Company (the "Information") is a valuable, special, and a
unique asset of the Company. Each Bank and the Agent agree that
they will use the care specified below to keep all Information in
confidence, and will not use any Information except as provided
in this Section, or disclose any portion of the Information to
any third party without the prior written consent of the Company
except as provided in this Section. Each Bank and the Agent
covenant to use the care specified below to not disclose such
Information on behalf of itself, its officers, directors, agents,
employees, and affiliates. Each Bank and the Agent shall use the
same degree of care to protect the confidentiality of all
Information as such Bank or the Agent, as the case may be, uses
to protect its own confidential and proprietary information
(which it does not wish to have published or disseminated).
(b) Information provided by the Company to any Bank or
the Agent, which the Company in good faith regards as Information
hereunder shall be clearly marked by the Company as
"Confidential," "Proprietary," or bear any other appropriate
notice indicating the sensitive nature of the Information. Any
tangible Information not easily markable shall be transmitted by
the Company to such Bank or the Agent under cover of written
letter which clearly identifies the Information and designates it
as confidential "Information". All information conveyed to such
Bank or the Agent orally relating to plans, forecasts, products
or other non-public information shall be deemed confidential
"Information".
(c) If any Bank or the Agent is confronted with legal
action to disclose Information received under this Agreement or
otherwise makes disclosures of confidential information under
clauses (ii), (iii) or (iv) of Section 10.10(e) (other than any
disclosure to a regulatory authority pursuant to an examination
of the books, records or affairs of such Bank or Agent), such
Bank or the Agent, as the case may be, shall (to the extent
permitted by applicable law) promptly notify the Company.
(d) All Information disclosed or furnished under this
Agreement shall remain the property of the Company. At the
Company's request, the Information in tangible form shall be
promptly returned or destroyed, together with all copies thereof
unless such return or destruction is contrary to law, regulation,
legal process, administrative order, or administrative request
having, or deemed to have, the force of law. Upon request, the
appropriate Bank or the Agent, as the case may be, shall provide
written certification of the destruction.
(e) Notwithstanding the foregoing, each Bank and the
Agent may disclose Information (i) as has become generally
available to the public, (ii) as may be required or appropriate
in any report, statement or testimony submitted to any municipal,
state or Federal regulatory body having or claiming to have
jurisdiction over such Bank or to the FRB, or the FDIC or similar
organizations (whether in the United States or elsewhere),
(iii) as may be required or appropriate in response to any
summons or subpoena or in connection with any litigation, (iv) in
order to comply with any law, order, regulation or ruling
applicable to such Bank, (v) to the prospective transferee in
connection with any contemplated transfer of any of the Notes or
any interest therein by such Bank, provided, that such
prospective transferee executes an agreement with the Company or
the transferor containing provisions substantially identical to
those contained in this Section, (vi) to the extent reasonably
required in connection with any litigation or proceeding to which
the Agent, any Bank or their respective Affiliates may be party,
(vii) to such Bank's independent auditors and other professional
advisors, (viii) to the extent reasonably necessary to disclose
in connection with the exercise of any remedy hereunder and under
the Notes, or (ix) as to any Bank, as expressly permitted under
the terms of any other document or agreement regarding
confidentiality to which the Company is party or is deemed party
with such Bank.
10.11 Preservation of Certain Matters. Notwithstanding
any other term or provision hereof to the contrary, any entity
ceasing to be a "Bank" for purposes of this Agreement, by virtue
of any matter or event contemplated by Section 2.06, 2.07, 3.06
or 10.07, shall retain any and all rights arising under Section
10.05, and shall continue to remain responsible to the Agent for
all liabilities under Section 9.07 and Section 9.10 relating to
matters occurring prior to the termination of such entity as a
"Bank."
10.12 Notification of Addresses, Lending Offices Etc.
Each Bank shall notify the Agent in writing of any changes in the
address to which notices to the Bank should be directed, of
addresses of any Lending Office, of payment instructions in
respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably
request.
10.13 Counterparts. This Agreement may be executed in
any number of separate counterparts, each of which, when so
executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one
and the same agreement.
10.14 Severability. The illegality or unenforceability
of any provision of this Agreement or any instrument or agreement
required hereunder shall not in any way affect or impair the
legality or enforceability of the remaining provisions of this
Agreement or any instrument or agreement required hereunder.
10.15 Governing Law; Jurisdiction. (a) THIS AGREEMENT
AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAW OF THE STATE OF NEW YORK; PROVIDED THAT
THE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH OF THE COMPANY, THE AGENT AND THE BANKS
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-
EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE
AGENT AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN
RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE
COMPANY, THE AGENT AND THE BANKS EACH WAIVES PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY NEW YORK LAW.
10.16 ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT AND THE
LOAN DOCUMENTS, AS DEFINED IN THIS AGREEMENT, REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
COMPAQ COMPUTER CORPORATION
By:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as
Administrative Agent
By:
Title:
Commitment: $20,000,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By:
Title:
Commitment: $18,000,000 NATIONSBANK TEXAS, N.A., as Co-
Agent and as a Bank
By:
Title:
Commitment: $6,000,000 ABN AMRO BANK N.V.
By:
Title:
By:
Title:
Commitment: $8,000,000 BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By:
Title:
Commitment: $8,000,000 THE BANK OF TOKYO TRUST COMPANY
By:
Title:
Commitment: $6,000,000 BANKERS TRUST COMPANY
By:
Title:
Commitment: $8,000,000 BARCLAYS BANK PLC
By:
Title:
Commitment: $6,000,000 THE CHASE MANHATTAN BANK N.A.
By:
Title:
Commitment: $8,000,000 CHEMICAL BANK
By:
Title:
Commitment: $8,000,000 CITIBANK, N.A.
By:
Title:
Commitment: $8,000,000 CREDIT LYONNAIS NEW YORK BRANCH
By:
Title:
Commitment: $8,000,000 DEUTSCHE BANK AG
NEW YORK AND/OR CAYMAN ISLANDS
BRANCHES
By:
Title:
By:
Title:
Commitment: $8,000,000 DRESDNER BANK AG
By:
Title:
By:
Title:
Commitment: $6,000,000 FIRST NATIONAL BANK OF BOSTON
By:
Title:
Commitment: $6,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By:
Title:
Commitment: $8,000,000 THE FUJI BANK, LIMITED, HOUSTON
AGENCY
By:
Title:
Commitment: $6,000,000 NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By:
Title:
By:
Title:
NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH
By:
Title:
By:
Title:
Commitment: $10,000,000 ROYAL BANK OF CANADA
By:
Title:
Commitment: $10,000,000 THE SANWA BANK LIMITED,
DALLAS AGENCY
By:
Title:
Commitment: $8,000,000 SHAWMUT BANK, N.A.
By:
Title:
Commitment: $8,000,000 SOCIETE GENERALE, SOUTHWEST AGENCY
By:
Title:
Commitment: $8,000,000 STANDARD CHARTERED BANK
By:
Title:
Commitment: $10,000,000 TORONTO DOMINION (TEXAS), INC.
By:
Title:
EXHIBIT A
NOTICE OF BORROWING
Bank of America National Trust and
Savings Association, as Administrative Agent
Global Agency #5596
1455 Market Street, 12th Floor
San Francisco, CA 94103
Attn: Compaq SAO [Date]
Ladies and Gentlemen:
This Notice of Borrowing is delivered pursuant to Section
2.03 of the $200,000,000 Revolving Credit Agreement, dated as of
August 1, 1994 (together with all amendments, if any, from time
to time made thereto, the "Credit Agreement"), among Compaq
Computer Corporation, a Delaware corporation (the "Company"),
certain Banks parties thereto and Bank of America National Trust
and Savings Association, as administrative agent for such Banks.
Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the
Credit Agreement.
The Company hereby irrevocably requests a Borrowing under
the Credit Agreement, and in that connection sets forth below the
information relating to such Borrowing (the "Proposed Borrowing")
as required by Section 2.03(a) of the Credit Agreement:
(i) The Borrowing Date of the Proposed Borrowing is
________________, 199___.
(ii) The type of Loans comprising the Proposed
Borrowing is [Base Rate Loans] [Adjusted CD Rate Loans]
[LIBOR Loans].
(iii) The aggregate amount of the Proposed
Borrowing is $___________.
*[(iv) The duration of the Interest Period for each
Loan made as part of the Proposed Borrowing is _______
(days) (months).]
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the
date of the Proposed Borrowing:
(A) the representations and warranties contained in
Article V of the Credit Agreement are true and correct on
and as of such Borrowing Date with the same effect as if
made on and as of such Borrowing Date (except to the extent
such representations and warranties expressly refer to an
earlier date, in which case they are true and correct as of
such earlier date); and
(B) no Default or Event of Default exists or shall
result from such proposed borrowing.
Very truly yours,
COMPAQ COMPUTER CORPORATION
By:
Name:
Title:
EXHIBIT B
CONVERSION/CONTINUATION NOTICE
Bank of America National Trust and
Savings Association, as Administrative Agent
Global Agency #5596
1455 Market Street, 12th Floor
San Francisco, CA 94103
Attn: Compaq SAO [Date]
Ladies and Gentlemen:
This Conversion/Continuation Notice is delivered pursuant to
Section 2.04 of the $200,000,000 Revolving Credit Agreement,
dated as of August 1, 1994 (together with all amendments, if any,
from time to time made thereto, the "Credit Agreement"), among
Compaq Computer Corporation, a Delaware corporation (the
"Company"), certain Banks parties thereto and Bank of America
National Trust and Savings Association, as administrative agent
for such Banks. Unless otherwise defined herein or the context
otherwise requires, terms used herein have the meanings provided
in the Credit Agreement.
The Company hereby requests that on _________ ____, 199__,
(1) $__________ of the presently outstanding principal
amount of the Loans originally made on ___________, 199__
[and $______________ of the presently outstanding principal
amount of the Loans originally made on __________________,
199__],
(2) all presently being maintained as *[Adjusted CD
Rate Loans] [Base Rate Loans] [LIBOR Loans],
(3) be [converted into] [continued as],
(4) **[Adjusted CD Rate Loans having as Interest
Period of ___ days] [LIBOR Loans having an Interest Period
of ___ months] [Base Rate Loans].
The Company has caused this Conversion/Continuation Notice
to be executed and delivered, and the certification and
warranties contained herein to be made this _____ day of
_____________, 199__.
COMPAQ COMPUTER CORPORATION
By:
Name:
Title:
EXHIBIT C
COMPLIANCE CERTIFICATE
This Compliance Certificate is delivered pursuant to Section
6.02 of the $200,000,000 Revolving Credit Agreement dated as of
August 1, 1994 (together with all amendments, if any, from time
to time made thereto, the "Credit Agreement") among Compaq
Computer Corporation, a Delaware corporation (the "Company"),
certain Banks parties thereto and Bank of America National Trust
and Savings Association, individually and as Administrative Agent
for such Banks. Unless otherwise defined herein or the context
otherwise requires, terms used herein have the meanings provided
in the Credit Agreement.
The undersigned certifies, represents and warrants as follows
:
(a) The Consolidated Tangible Net Worth of the
Company as of ______________, 19__, was
$_________________.
[Insert calculation in reasonable detail]
(b) There exists on the date of this Compliance
Certificate no Default or Event of Default under the
Credit Agreement.
EXECUTED AND DELIVERED this ____ day of ______________,
199__.
COMPAQ COMPUTER CORPORATION
By:
Name:
Title:
EXHIBIT D-1
August 1, 1994
To each of the Banks parties to the
$200,000,000 Revolving Credit Agreement
dated as of August 1, 1994 among
Compaq Computer Corporation, said Banks
and Bank of America National Trust and Savings
Association as Administrative Agent for said Banks,
and to such Administrative Agent
Re: Compaq Computer Corporation Revolving Credit
Agreement
Ladies and Gentlemen:
As General Counsel of Compaq Computer Corporation, a Delaware
corporation (the "Company"), I am familiar with the $200,000,000
Revolving Credit Agreement dated as of August 1, 1994 (the
"Credit Agreement") among the Company, the Banks listed on the
signature pages thereof and Bank of America National Trust and
Savings Association, individually and as administrative agent for
such Banks (the "Agent"). In such capacity, I am also familiar
with the Certificate of Incorporation and Bylaws of the Company.
This opinion is being furnished to you pursuant to Section
4.01(d) of the Credit Agreement. Terms used herein but not
defined herein shall have the same meaning ascribed to such terms
in the Credit Agreement.
Before rendering this opinion, I (or other attorneys with the
Company's legal department acting under my direction) have
examined the Credit Agreement and the Loan Documents, and have
examined and relied upon originals or photostatic or certified
copies of such corporate records, certificates of officers of the
Company and of public officials, and such agreements, documents
and instruments, and have made such investigations of law, as I
or such other attorneys have deemed relevant and necessary as the
basis for the opinion hereinafter expressed. In such
examination, I or such other attorneys assumed the genuineness of
all signatures (other than signatures of officers of the Company
on the Loan Documents), the authenticity of all documents
submitted to us as originals, and the conformity to original
documents of all documents submitted to us as photostatic or
certified copies.
On the basis of the foregoing, I am of the opinion that:
1. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware, and has all corporate powers and all
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted, except to the extent failure to obtain such
licenses, authorizations, consents or approvals would not
materially adversely affect the business, consolidated
financial position or consolidated results of operations of
the Company and its Subsidiaries taken as a whole.
2. The execution, delivery and performance by the
Company of the Loan Documents are within the Company's
corporate powers, have been duly authorized by all necessary
corporate action on the part of the Company, and do not
contravene, or constitute a default under, (a) the
Certificate of Incorporation or Bylaws of the Company, [or]
(b) [any contractual restriction contained in any material
(meaning for the purposes of this opinion those creating a
monetary liability of $50,000,000 or more) indenture, loan
or credit agreement, receivables sale or financing
agreement, lease financing agreement, capital lease,
mortgage, security agreement, bond or note, or any guaranty
of any of such obligations to which the Company is a party,
or (c)] any judgment, injunction, order or decree known to
me to be binding upon the Company. The execution, delivery
and performance by the Company of the Loan Documents will
not result in the creation or imposition of any lien,
security interest or other charge or encumbrance on any
asset of the Company. The Credit Agreement and the Notes
have been duly executed and delivered by the Company.
3. Except as disclosed in the Company's Form 10-K for
the year ended December 31, 1993, or the Company's Form 10-Q
for the quarter ended March 31, 1994, there is no action,
suit or proceeding pending or, to my knowledge, threatened
against the Company or any of its Subsidiaries before any
court or arbitrator or any governmental agency, in which
there is a reasonable possibility of an adverse decision
which could materially adversely affect the consolidated
financial condition or operations of the Company and its
Subsidiaries taken as a whole or which in any manner draws
into question the validity of the Credit Agreement or any
other Loan Document.
4. Neither the Company nor any Subsidiary is an
"investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended.
5. Neither the Company nor any Subsidiary is a
"holding company", a "subsidiary company" of a "holding
company", an "affiliate" of a "holding company" or an
"affiliate" of a "subsidiary company" of a "holding
company", in each case as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
The opinions set forth above are subject to the following
qualifications:
1. In rendering the opinions expressed in paragraph 2
above, neither I nor any other attorney acting under my
direction have not made any examination of any accounting or
financial matters related to certain of the covenants
contained in certain documents to which the Company may be
subject, and I express no opinion with respect thereto.
2. This opinion is limited in all respects to the
laws of the State of Texas and the General Corporation Law
of the State of Delaware and Federal law.
3. In rendering the opinion expressed in paragraph 3
above, I [(or the other attorneys acting under my
direction)] have only reviewed the files and records of the
Company and its Subsidiaries, and we have consulted with
such senior officers of the Company and its Subsidiaries as
we have deemed necessary.
This opinion is solely for the benefit of the Banks, the
Agent, their respective successors, assigns and participants and
may not be relied upon in connection with any other transaction
or by any other person; provided, however, that Vinson & Elkins
L.L.P. may rely on certain provisions of this opinion to the
extent stated in its opinion for the purposes of rendering its
opinion pursuant to Section 4.01(d) of the Credit Agreement.
Very truly yours,
Wilson B. Fargo
EXHIBIT D-2
August 1, 1994
To each of the Banks parties to the
$200,000,000 Revolving Credit Agreement
dated as of August 1, 1994 among
Compaq Computer Corporation, said Banks
and Bank of America National Trust and
Savings Association, as Administrative Agent
for such Banks, and Nationsbank of Texas,
National Association, as Co-Agent for such
Banks and to such Agents
Re: Compaq Computer Corporation
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
4.01(d) of the $200,000,000 Revolving Credit Agreement, dated as
of August 1, 1994 (the "Credit Agreement"), among Compaq Computer
Corporation (the "Company"), the Banks parties thereto and Bank
of America National Trust and Savings Association, as
Administrative Agent for such Banks, and Nationsbank of Texas,
National Association, as Co-Agent for such Banks. Except as
otherwise defined herein, terms defined in the Credit Agreement
are used herein as therein defined.
We have acted as counsel for the Company in connection
with the preparation, execution, delivery and effectiveness of
the Credit Agreement and the other Loan Documents.
In that connection, we have examined:
(1) The Credit Agreement;
(2) The Notes and other documents furnished
by the Company pursuant to the conditions
precedent set forth in Section 4.01 of the Credit
Agreement; and
(3) Such other materials as we have deemed
necessary to render the opinions provided herein.
In rendering the opinions herein set forth, we have
assumed (i) the due authorization, execution and delivery of each
document referred to in clauses (1) and (2) of the third para
graph of this opinion by all parties to such documents and that
each such document is valid, binding and enforceable (subject to
limitations on enforceability of the types referred to in
paragraphs (a) and (b) below) against the parties thereto other
than the Company, (ii) the legal capacity of natural persons,
(iii) the genuineness of all signatures, (iv) the authenticity of
all documents submitted to us as originals and (v) the conformity
to original documents of all documents submitted to us as copies.
In addition, we have (i) investigated such questions of law and
(ii) relied as to factual matters on such certificates from
officers and representatives of the Company and from public
officials, as we have deemed necessary or appropriate for the
purposes of this opinion.
Based upon the foregoing and upon such investigation as
we have deemed necessary, we are of the following opinion:
No authorization, approval or other action by, and
no notice to or filing with, any governmental authority or
regulatory body is required to be made or obtained by the
Company for the execution, delivery and performance by the
Company of the Credit Agreement and the Notes.
None of the execution, delivery or performance by
the Company of the Credit Agreement and the Notes
contravenes any provision of law or regulation (including,
without limitation, Regulation X issued by the FRB)
applicable to the Company or of Regulation U issued by the
FRB.
The Credit Agreement and the Notes constitute the
legal, valid and binding obligations of the Company en
forceable against the Company in accordance with their
terms.
The opinions set forth above are subject to the following quali
fications:
(a) Our opinion in paragraph 3 above is subject, as to
enforceability, to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law
affecting creditors' rights generally.
(b) Our opinion in paragraph 3 above is subject, as to
enforceability, to the effect of general principles of
equity (regardless of whether considered in a proceeding in
equity or at law), including without limitation, concepts of
materiality, reasonableness, good faith and fair dealing,
and also to the possible unavailability of specific perform
ance or injunctive relief. Such principles of equity are of
general application, and in applying such principles a
court, among other things, might not allow a creditor to
accelerate maturity of a debt upon the occurrence of a
default deemed immaterial or might decline to order the
Company to perform covenants.
(c) We express no opinion with respect to the
enforceability under Texas law of the provisions of the
Credit Agreement and the Notes stating that such documents
shall be governed by, and construed in accordance with, the
laws of the state of New York.
(d) We express no opinion with respect to the
following provisions to the extent that the same are
contained in the Credit Agreement or the Notes: (i)
provisions releasing, exculpating or exempting a party from,
or requiring the indemnification of a party for, liability
for its own action or inaction, to the extent that the same
are inconsistent with public policy, and (ii) provisions
purporting to waive rights to notice, legal defenses, or
other benefits that cannot be waived under applicable law.
In rendering the opinions expressed in paragraphs I, II
and III above, we have relied upon the opinions stated in para
graphs 1, 2 (so far as such paragraph 2 relates to the corporate
powers of, and due authorization of the Loan Documents by, the
Company), 4 and 5 of the opinion, dated today, of the General
Counsel of the Company which is being delivered to you pursuant
to Section 4.01(d) of the Credit Agreement.
We have not been called upon to, and accordingly do
not, express any opinion as to the various state and Federal laws
regulating banks or the conduct of their business (except Regula
tion U issued by the FRB) that may relate to the Loan Documents
or the transactions contemplated thereby. Without limiting the
generality of the foregoing, we express no opinion as to the
effect of the law of any jurisdiction other than the State of
Texas and the State of New York wherein any Bank may be located
or where any enforcement of the Loan Documents may be sought
which limits the rates of interest legally chargeable or
collectible.
This opinion is limited to the laws of the State of
Texas and the State of New York, the General Corporation Law of
the State of Delaware and the Federal law of the United States.
The opinions herein have been furnished at your request
and are solely for your benefit and the benefit of your
respective successors, assigns and participants in connection
with the subject transaction and may not be relied upon by any
other person or by you or any other person in any other context
without the prior written consent of the undersigned.
Very truly yours,
Vinson & Elkins L.L.P.
EXHIBIT E
PROMISSORY NOTE
U.S. $ Dated: August 1, 1994
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 Loans (as defined in the $200,000,000 Revolving
Credit Agreement dated as of August 1, 1994 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 Revolving Credit
Agreement, as amended 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).
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 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 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 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, the indebtedness of the Company
resulting from each Loan owing to the Bank being evidenced by
this 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 Promissory Note shall be governed by, and construed in
accordance with, the internal laws of the State of New York.
COMPAQ COMPUTER CORPORATION
By:
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
Amount of
Amount Principal Unpaid
of Type of Paid or Principal
Notation
Date Loan Loan Prepaid Balance Made
By
<TABLE>
SCHEDULE 10.02
NOTICE ADDRESSES, PAYMENT AND LENDING OFFICES
<CAPTION>
Addresses for Notices Address for Payments
<S> <C> <C>
BANK OF AMERICA NATIONAL Bank of America N.T. & S.A. Bank of America N.T. & S.A.
TRUST 1455 Market Street, 12th (ABA 121-000-358)
AND SAVINGS ASSOCIATION, Floor Attn: Global Agency #5596
as Administrative Agent San Francisco, CA 94103 1850 Gateway Boulevard
Attn: Global Agency #5596 Concord, CA 94520
Facsimile: (415) 622-4894 For credit to account:
No. 12335 14314
With a copy to: Ref: Compaq Computer
Corporation
Bank of America N.T. & S.A.
555 California Street
41st Floor
San Francisco, CA 94104
Attn: Corporate Banking
High Technology
Kevin McMahon
Telephone: (415) 622-8088
Facsimile: (415) 622-
4585/2514
</TABLE>
<TABLE>
<CAPTION>
Bank Commitment Domestic/CD/LIBOR Lending Addresses for Notices
Offices
<S> <C> <C> <C>
BANK OF AMERICA $20,000,000 Bank of America N.T. & Bank of America N.T. & S.A.
NATIONAL TRUST AND S.A. 555 California Street
SAVINGS 1850 Gateway Boulevard 41st Floor
ASSOCIATION, as a Concord, CA 94520 San Francisco, CA 94104
Bank Attn: Corporate Banking
High Technology
Kevin McMahon
Telephone: (415) 622-8088
Facsimile: (415) 622-
4585/2514
ABN AMRO BANK N.V. $6,000,000 ABN AMRO Bank N.V. Credit Matters:
Houston Agency Houston Agency
Three Riverway, Suite 1600 ABN AMRO Bank N.V.
Houston, TX 77056 Houston Agency
Attn: Michael N. Oaks Three Riverway, Suite 1600
Telephone: (713) 964-3356 Houston, TX 77056
Facsimile: (713) 629-7533 Attn: Michael N. Oaks
Telephone: (713) 964-3356
Facsimile: (713) 629-7533
Operations/Administration:
ABN AMRO BANK N.V.
Houston Agency
Three Riverway, Suite 1600
Houston, TX 77056
Attn: Patricia Baker
Telephone: (713) 964-3331
Facsimile: (713) 629-7533
THE BANK OF TOKYO $8,000,000 The Bank of Tokyo Trust Credit Matters:
TRUST COMPANY Company
1251 Avenue of the The Bank of Tokyo Trust
Americas Company
12th Floor 1251 Avenue of the Americas
New York, NY 10116-3138 12th Floor
Attn: Rolando Uy New York, NY 10116-3138
Telephone: (212) 766-5461 Attn: Elizabeth Tocchini
Facsimile: (212) 732-1678 Telephone: (212) 782-4319
Facsimile: (212) 782-6440
THE BANK OF TOKYO Operations/Administration:
TRUST COMPANY
(Continued) The Bank of Tokyo Trust
Company
1251 Avenue of the Americas
New York, NY 10116-3138
Attn: Rolando Uy
Telephone: (212) 766-5461
Facsimile: (212) 732-1678
BANQUE NATIONALE $8,000,000 Banque Nationale de Paris Credit Matters:
DE PARIS Houston Agency
Houston Agency 333 Clay Street Banque Nationale de Paris
Suite 3400 Houston Agency
Houston, TX 77002 333 Clay Street
Attn: John L. Stacy Suite 3400
Telephone: (713) 951-1222 Houston, TX 77002
Facsimile: (713) 659-1414 Attn: John L. Stacy
Telephone: (713) 951-1222
Facsimile: (713) 659-1414
Operations/Administration:
Banque Nationale de Paris
Houston Agency
333 Clay Street
Suite 3400
Houston, TX 77002
Attn: Donna Rose/Josie
Gonzalez
Telephone: (713) 951-
1240/1239
Facsimile: (713) 659-1414
BANKERS TRUST $6,000,000 Bankers Trust Company Credit Matters:
COMPANY P.O. Box 318
Church Street Station Bankers Trust Company
New York, NY 10008-0318 P.O. Box 318
Attn: Virginia Sermier Church Street Station
M.D. New York, NY 10008-0318
Telephone: (212) 250-5298 Attn: Virginia Sermier
Facsimile: (212) 250-7478 M.D.
Telephone: (212) 250-5298
Facsimile: (212) 250-7478
BANKERS TRUST Operations/Administration:
COMPANY
(continued) Bankers Trust Company
P.O. Box 318
Church Street Station
New York, NY 10008-0318
Attn: Tom Alpoyanis
Telephone: (212) 250-7345
Facsimile: (212) 250-
7351
BARCLAYS BANK PLC $8,000,000 Barclays Bank Plc Barclays Bank Plc
222 Broadway, 11th Floor 222 Broadway, 11th Floor
New York, NY 10038 New York, NY 10038
Attn: Clarke Moody Attn: Clarke Moody
Telephone: (212) 412-2584 Telephone: (212) 412-2584
Facsimile: (212) 412-7580 Facsimile: (212) 412-7580
THE CHASE $6,000,000 The Chase Manhattan Bank The Chase Manhattan Bank
MANHATTAN BANK N.A. N.A.
N.A. One Chase Manhattan Plaza One Chase Manhattan Plaza
5th Floor 5th Floor
New York, NY 10081 New York, NY 10081
Attn: Nina Smith Attn: Nina Smith
Managing Director Managing Director
Telephone: (212) 552-1043 Telephone: (212) 552-1043
Facsimile: (212) 552-6731 Facsimile: (212) 552-6731
Operations/Administration:
The Chase Manhattan Bank
N.A.
One Chase Plaza
5th Floor
New York, NY 10081
Attn: Elaine Augustine
Asst. Treasurer
Telephone: (212) 552-6549
Facsimile: (212) 552-6731
CHEMICAL BANK $8,000,000 Chemical Bank Chemical Bank
270 Park Avenue 270 Park Avenue
New York, NY 10017 New York, NY 10017
Attn: Edmond DeForest Attn: Edmond DeForest
Telephone: (212) 270-9627 Telephone: (212) 270-9627
Facsimile: (212) 270-2112 Facsimile: (212) 270-2112
Operations/Administration:
Chemical Bank
270 Park Avenue
New York, NY 10017
Attn: Carmen Fulton
Operations Officer
Telephone: (212) 270-6745
Facsimile: (212) 270-3942
CITIBANK, N.A. $8,000,000 Citibank, N.A. Credit Matters:
399 Park Avenue
4th Floor, Zone 17 Citibank, N.A.
New York, NY 10043 399 Park Avenue
Attn: James M. Walsh 4th Floor, Zone 17
Telephone: (212) 559-7538 New York, NY 10043
Facsimile: (212) 593-0054 Attn: James M. Walsh
Telephone: (212) 559-7538
Facsimile: (212) 593-0054
Operations/Administration:
Citibank, N.A.
399 Park Avenue
New York, NY 10043
Attn: Sophie Tetenes
Telephone: (212) 559-5916
Facsimile: (212) 826-6214
CREDIT LYONNAIS $8,000,000 Credit Lyonnais Credit Matters:
New York Branch New York Branch
c/o Credit Lyonnais Dallas Credit Lyonnais
Lincoln Plaza New York Branch
500 N. Akard, Suite 3210 c/o Credit Lyonnais Dallas
Dallas, TX 75201 Lincoln Plaza
Attn: Cliff Hoover 500 N. Akard, Suite 3210
Vice President Dallas, TX 75201
Telephone: (214) 954-3500 Attn: Cliff Hoover
Facsimile: (214) 954-3312 Vice President
Telephone: (214) 954-3500
Facsimile: (214) 954-3312
Operations/Administration:
Credit Lyonnais
New York Branch
c/o Credit Lyonnais Dallas
Lincoln Plaza
500 N. Akard Street
Suite 3210
Dallas, TX 75201
Attn: Judy Gordon
Telephone: (214) 954-3500
Facsimile: (214) 954-3312
DEUTSCHE BANK AG $8,000,000 Deutsche Bank AG Credit Matters:
New York and/or New York Branch
Cayman Island 31 West 52nd Street Deutsche Bank AG
Branches 24th Floor New York Branch
New York, NY 10019 31 West 52nd Street
Attn: Gregory M. Hill 24th Floor
Telephone: (212) 474-8240 New York, NY 10019
Facsimile: (212) 474-8212 Attn: Jeffrey N. Weiser
Telephone: (212) 474-8233
Facsimile: (212) 474-8212
Operations/Administration:
Deutsche Bank AG
New York Branch
31 West 52nd Street
24th Floor
New York, NY 10019
Attn: Gregory M. Hill
Telephone: (212) 474-8240
Facsimile: (212) 474-8212
DRESDNER BANK AG $8,000,000 Dresdner Bank AG Credit Matters:
New York Branch 75 Wall Street, 30th Floor
and New York, NY 10005-2889 Dresdner Bank AG
Grand Cayman Attn: Lora Lam 75 Wall Street, 30th Floor
Branch Telephone: (212) 574-0288 New York, NY 10005-2889
Facsimile: (212) 574-0130 Attn: Craig Erickson
Telephone: (212) 574-0183
Facsimile: (212) 574-0130
Operations/Administration:
Dresdner Bank AG
75 Wall Street, 30th Floor
New York, NY 10005-2889
Attn: Lora Lam
Telephone: (212) 574-0288
Facsimile: (212) 574-0130
THE FIRST NATIONAL $6,000,000 The First National Bank Credit Matters:
BANK OF BOSTON of Boston
100 Federal Street The First National Bank
Boston, MA 02110 of Boston
Telephone: (617) 467-2286 100 Federal Street
Facsimile: (617) 467-2276 Boston, MA 02110
Attn: Elizabeth M. Passela
Telephone: (617) 434-5542
Facsimile: (617) 434-0819
Operations/Administration:
The First National Bank
of Boston
100 Federal Street
Boston, MA 02110
Attn: Mary Noonan
Telephone: (617) 434-7814
Facsimile: (617) 434-0819
THE FIRST NATIONAL $6,000,000 The First National Bank Credit Matters:
BANK OF CHICAGO of Chicago
One First National Plaza The First National Bank
Suite 0088 of Chicago
Chicago, IL 60670-0088 One First National Plaza
Suite 0088
Chicago, IL 60670-0088
Attn: Cory Olson
Telephone: (312) 732-1706
Facsimile: (312) 732-1117
Operations/Administration:
The First National Bank
of Chicago
One First National Plaza
Suite 0088
Chicago, IL 60670-0088
Attn: Dennis Degen/Colleen
Muff
Telephone: (312) 732-9757
Facsimile: (312) 732-5161
THE FUJI BANK, $8,000,000 The Fuji Bank, Limited Credit Matters:
LIMITED Houston Agency
Houston Agency Two Houston Center The Fuji Bank, Limited
909 Fannin Street, Suite Houston Agency
2800 Two Houston Center, Suite
Houston, TX 77010 2800
Attn: Jenny Lin 909 Fannin Street
Telephone: (713) 650-7821 Houston, TX 77010
Facsimile: (713) 759-0048 Attn: Mark F. Polasek
Telephone: (713) 650-7863
Facsimile: (713) 759-0048
Operations/Administration:
The Fuji Bank, Limited
Houston Agency
Two Houston Center, Suite
2800
909 Fannin Street
Houston, TX 77010
Attn: Jenny Lin
Telephone: (713) 650-7821
Facsimile: (713) 759-0048
NATIONSBANK TEXAS, $18,000,000 NationsBank Texas, N.A. Credit Matters:
N.A., as Co-Agent 901 Main Street, 67th
and as a Bank Floor NationsBank Texas, N.A.
Dallas, TX 75202 700 Louisiana Street
Attn: Geri Lewis 8th Floor
Telephone: (214) 508-0592 Houston, TX 77002
Facsimile: (214) 508-0944 Attn: Forest Scott
Singhoff
Senior Vice
President
Telephone: (713) 247-6961
Facsimile: (713) 247-6719
Operations/Administration:
NationsBank Texas, N.A.
901 Main Street, 67th Floor
Dallas, TX 75202
Attn: Geri Lewis
Telephone: (214) 508-0592
Facsimile: (214) 508-0944
NATIONAL $6,000,000 Domestic/CD Lending Credit Matters:
WESTMINSTER BANK Offices:
PLC, New York National Westminster Bank
Branch and Nassau National Westminster Bank Plc
Branch Plc Texas Commerce Tower-6070
New York Branch 600 Travis Street
175 Water Street, 19th Houston, TX 77002
Floor Attn: Steve J. Krakoski
New York, NY 10038 Telephone: (713) 221-2402
Facsimile: (713) 221-2430
LIBOR Lending Office Operations/Administration:
National Westminster Bank National Westminster Bank
Plc Plc
Nassau Branch 175 Water Street, 19th
175 Water Street, 19th Floor
Floor New York, NY 10038
New York, NY 10038 Attn: Robert Passarello
Telephone: (212) 602-4149
Facsimile: (212) 602-4118
ROYAL BANK OF $10,000,000 Royal Bank of Canada Credit Matters:
CANADA Pierrepont Plaza
300 Cadman Plaza West Royal Bank of Canada
Brooklyn, NY 11201-2701 600 Wilshire Blvd., Suite
800
Los Angeles, CA 90017
Attn: Michael A. Cole
Robert K. Mimaki
Telephone: (213) 955-
5328/5346
Facsimile: (213) 955-5350
Operations/Administration:
Royal Bank of Canada
Pierrepont Plaza
300 Cadman Plaza West
Brooklyn, NY 11201-2701
Attn: Linda Swanston
Loans Administration
Telephone: (212) 868-7170
Facsimile: (212) 522-6292
THE SANWA BANK $10,000,000 The Sanwa Bank Limited, Credit Matters:
LIMITED, Dallas Dallas Agency
Agency 901 Main Street, The Sanwa Bank Limited,
Suite 2830 LB 165 Dallas Agency
Dallas, TX 75202 901 Main Street,
Attn: Greg Crowe, AVP Suite 2830 LB 165
Telephone: (214) 744-5555 Dallas, TX 75202
Facsimile: (214) 741-6535 Attn: Matthew G. Patrick,
AVP
Telephone: (214) 744-5555
Facsimile: (214) 741-6535
Operations/Administration:
The Sanwa Bank Limited,
Dallas Agency
901 Main Street,
Suite 2830 LB165
Dallas, TX 75202
Attn: Greg Crowe, AVP
Telephone: (214) 744-5555
Facsimile: (214) 741-6535
SHAWMUT BANK, N.A. $8,000,000 Shawmut Bank, N.A. Shawmut Bank, N.A.
One Federal Street One Federal Street
Mail Stop OF-0323 Mail Stop OF-0323
Boston, MA 02211 Boston, MA 02211
Attn: Judy Whalen Attn: Frank Benesh
Telephone: (617) 292-3907 Director
Facsimile: (617) 292-3241 Telephone: (617) 292-3514
Facsimile: (617) 423-5214
SOCIETE GENERALE $8,000,000 Societe Generale, Credit Matters:
Southwest Agency Southwest Agency
2001 Ross Avenue, Suite Societe Generale,
4800 Southwest Agency
Dallas, TX 75201 1111 Bagby Street, Suite
Attn: Ralph Saheb 2020
Vice President Houston, TX 77002
Telephone: (214) 979-2777 Attn: Emmanuel Cheseau
Facsimile: (214) 754-0171 Telephone: (713) 759-6316
Facsimile: (713) 650-0824
Operations/Administration:
Societe Generale,
Southwest Agency
2001 Ross Avenue, Suite
4800
Dallas, TX 75201
Attn: Molly Franklin
Telephone: (214) 979-2767
Facsimile: (214) 754-0171
STANDARD CHARTERED $8,000,000 Standard Chartered Bank Standard Chartered Bank
BANK Two Ravina Drive, Suite 1000 Louisiana Street
500 Suite 960
Atlanta, GA 30346 Houston, TX 77002
Attn: Rafeek Gafor Attn: Anil Dua
Linda Beaty Vice President
Telephone: (404) 390-6344 and Manager
Facsimile: (404) 396-1035 Telephone: (713) 227-6900
Facsimile: (713) 227-5003
With a copy to:
Standard Chartered Bank
Two Ravina Drive, Suite 500
Atlanta, GA 30346
Attn: Rafeek Gafor
Linda Beaty
Telephone: (404) 390-6344
Facsimile: (404) 396-1035
TORONTO DOMINION $10,000,000 Toronto Dominion Bank Toronto Dominion Bank
BANK Houston Agency Houston Agency
909 Fannin Street, Suite 909 Fannin Street, Suite
1700 1700
Houston, TX 77010 Houston, TX 77010
Attn: Dianne Bailey Attn: Mark G. Fields
Telephone: (713) 653-8250 Director
Facsimile: (713) 951-9921 Telephone: (713) 653-8225
Facsimile: (713) 652-2647
With a copy to:
Toronto Dominion Bank
31 West 52nd Street
20th Floor
New York, NY 10019
Attn: Doug Weir
Telephone: (212) 468-0575
Facsimile: (212) 262-1926
</TABLE>
_______________________________
*To be included for a Proposed Borrowing comprised of
Adjusted CD Rate Loans or LIBOR Loans.
*Select appropriate interest rate option.
**Unless otherwise agreed, a Loan cannot be converted into
or continued as a CD Rate Loan or a LIBOR Loan with an Interest
Period exceeding one month (in the case of a LIBOR Loan) or 30
days (in the case of an adjusted CD Rate Loan) during the
existence of a Default or Event of Default.
EXHIBIT 10.15
U.S. $300,000,000
REVOLVING CREDIT AGREEMENT
Dated as of August 1, 1994
among
COMPAQ COMPUTER CORPORATION,
THE BANKS PARTY HERETO
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
As Administrative Agent
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION,
Co-Agent
3-Year Revolving Credit
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms 1
1.02 Other Interpretive Provisions 13
1.03 Accounting Principles 13
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments 13
2.02 Notes 14
2.03 Procedure for Borrowings 14
2.04Conversion and Continuation Elections for Borrowings 15
2.05 Increase of Commitment 16
2.06 Ratable Reduction or Termination of Commitments 17
2.07Non-Ratable Reduction or Termination of Commitments 17
2.08 Optional and Mandatory Prepayments 18
2.09 Repayment 18
2.10 Interest 18
2.11 Fees 19
2.12 Computation of Fees and Interest 19
2.13 Interest Rate Determination and Protection 19
2.14 Payments by the Company 20
2.15 Payments by the Banks to the Agent 21
2.16 Sharing of Payments, Etc 21
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes 22
3.02 Breakage Costs 23
3.03 Increased Costs 23
3.04 Illegality 24
3.05 Reserves on LIBOR Loans 25
3.06 Replacement of Bank; Termination of Bank 25
3.07Reallocation of Commitments in Event of Merger, Etc 26
3.08 Certificates of Banks 27
3.09 Survival 27
ARTICLE IV
CONDITIONS PRECEDENT
4.01 Conditions of Initial Loans 28
4.02 Conditions to All Borrowings 29
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Corporate Existence 29
5.02 Corporate Power 29
5.03 Authorization and Approvals 30
5.04 Enforceable Obligations 30
5.05 Financial Statements 30
5.06 Litigation 30
5.07 Regulation U; Use of Proceeds 30
5.08 Investment Company Act 31
5.09 ERISA 31
5.10 Holding Company 31
5.11 Environmental Condition 31
5.12 No Material Adverse Change 31
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01 Compliance with Laws Etc 32
6.02 Reporting Requirements 32
6.03 Use of Proceeds 33
6.04 Maintenance of Insurance 33
6.05 Corporate Existence Etc 33
6.06 Visitation Rights 33
ARTICLE VII
NEGATIVE COVENANTS
7.01 Consolidated Tangible Net Worth 34
7.02 Leverage Ratio 34
7.03 Liens 34
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Event of Default 34
8.02 Remedies 35
8.03 Rights Not Exclusive 36
ARTICLE IX
THE AGENT
9.01 Appointment and Authorization 36
9.02 Delegation of Duties 36
9.03 Liability of Agent 36
9.04 Reliance by Agent 37
9.05 Notice of Default 37
9.06 Credit Decision 37
9.07 Indemnification 38
9.08 Agent in Individual Capacity 38
9.09 Successor Agent 39
9.10 Withholding Tax 39
9.11 Co-Agent 41
ARTICLE X
MISCELLANEOUS
10.01 Amendments and Waivers 41
10.02 Notices 41
10.03 No Waiver: Cumulative Remedies 42
10.04 Costs and Expenses 42
10.05 Indemnity 43
10.06 Payments Set Aside 43
10.07 Binding Effect; Assignments; Participations 43
10.08 Set-off 45
10.09 Interest 45
10.10 Confidentiality 46
10.11 Preservation of Certain Matters 47
10.12 Notification of Addresses, Lending Offices Etc 47
10.13 Counterparts 47
10.14 Severability 47
10.15 Governing Law; Jurisdiction 48
10.16 ENTIRE AGREEMENT 48
SCHEDULES
Schedule 10.02 Notice Addresses, Payment and Lending Offices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D-1 Form of Opinion of Senior Vice
President and General Counsel of the Company
Exhibit D-2 Form of Opinion of Vinson & Elkins L.L.P.,
Counsel to the Company
Exhibit E Form Note
REVOLVING CREDIT AGREEMENT
dated as of August 1, 1994
COMPAQ COMPUTER CORPORATION, a Delaware corporation (the
"Company"), the several financial institutions from time to time
party to this Agreement (collectively, the "Banks", and
individually, a "Bank"), and Bank of America National Trust and
Savings Association, as administrative agent for the Banks, agree
as follows.
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. The following terms have the
following meanings:
"Acquiring Entity" has the meaning specified in Section
3.07.
"Adjusted CD Rate" means, for any Interest Period for each
Adjusted CD Rate Loan comprising part of the same Borrowing, an
interest rate per annum equal to the sum of:
(a) the rate per annum obtained by dividing (i) the
rate of interest determined by the Agent to be the average
(rounded upward to the nearest whole multiple of 1/100 of 1%
per annum, if such average is not such a multiple) of the
consensus bid rate determined by each of the Reference Banks
for the bid rates per annum, at 9:00 a.m. (Houston time) (or
as soon thereafter as practicable) on the first day of such
Interest Period, of New York certificate of deposit dealers
of recognized standing selected by such Reference Bank for
the purchase at face value of certificates of deposit of
such Reference Bank in an amount substantially equal to such
Reference Bank's Adjusted CD Rate Loan comprising part of
such Borrowing and with a maturity equal to such Interest
Period (provided that, if bid rate quotes from such dealers
are not available to any Reference Bank, such Reference Bank
shall notify the Agent of a reasonably equivalent rate
determined by it on the basis of another source or sources
selected by it), by (ii) a percentage equal to 100% minus
the Adjusted CD Rate Reserve Percentage for such Interest
Period, plus
(b) the Assessment Rate for such Interest Period.
The Adjusted CD Rate for the Interest Period for each
Adjusted CD Rate Loan comprising part of the same Borrowing
shall be determined by the Agent on the basis of applicable
rates furnished to and received by the Agent from the
Reference Banks on the first day of such Interest Period,
subject however, to the provisions of Section 2.13.
"Adjusted CD Rate Loan" means a Loan which bears interest at
the Adjusted CD Rate plus the Applicable Margin.
"Adjusted CD Rate Reserve Percentage" for any Interest
Period for each Adjusted CD Rate Loan comprising part of the same
Borrowing means the reserve percentage applicable on the first
day of such Interest Period under regulations issued from time to
time by the FRB for determining the maximum reserve requirement
(including, but not limited to, any emergency, supplemental or
other marginal reserve requirement) for a member bank of the
Federal Reserve System in New York City with deposits exceeding
one billion dollars with respect to liabilities consisting of or
including U.S. dollar nonpersonal time deposits in the United
States with a maturity equal to such Interest Period.
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. A Person shall be deemed
to control another Person if the controlling Person possesses,
directly or indirectly, the power to direct or cause the
direction of the management and policies of the other Person,
whether through the ownership of voting securities, by contract
or otherwise.
"Agent" means BofA in its capacity as administrative agent
for the Banks hereunder, and any successor administrative agent.
"Agent-Related Persons" means BofA and any successor
administrative agent arising under Section 9.09, together with
their respective Affiliates (including, in the case of BofA, the
Arranger), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"Agent's Payment Office" means the address for payments set
forth on Schedule 10.02 or such other address as the Agent may
from time to time specify.
"Agreement" means this 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) 0.11%
A-/A3 0.13%
BBB+/Baal 0.15%
BBB/Baa2 0.20%
BBB-/Baa3 0.25%
(or lower, or no
Applicable Rating)
"Applicable Margin" means, on any date and with respect to
each Adjusted CD Rate Loan or LIBOR Loan outstanding on such
date, the applicable margin (on a per annum basis) set forth
below based on the Applicable Rating on such date:
Adjusted
Applicable CD Rate LIBO Rate
Rating Loans Loans
A/A1 (or higher) 0.30% 0.30%
A-/A3 0.32% 0.32%
BBB+/Baa1 0.35% 0.35%
BBB/Baa2 0.40% 0.40%
BBB-/Baa3 0.50% 0.50%
(or lower, or no
Applicable Rating)
Provided, that at any time as the aggregate outstanding
principal amount of Loans, together with the aggregate
outstanding principal amount of "Loans" under, and as
that term is defined in, the 364-Day Credit Agreement,
exceeds 50% of the aggregate Commitments, together with
the aggregate "Commitments" under, and as that term is
defined in, 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 2.08 hereof, or of the 364-Day Credit
Agreement as applicable), the Applicable Margin in
respect of Adjusted CD Rate Loans and LIBOR Loans
hereunder shall be increased by an additional 0.125
percentage points.
"Applicable Rating" means the most favorable ratings issued
from time to time by S&P or Moody's as applicable to the
Company's senior unsecured long-term debt; provided that (a) if
the most favorable ratings established by such rating agencies
indicate two different pricing levels, the level corresponding to
the more favorable of such ratings shall apply, (b) if only one
such rating agency shall provide a rating as to the Company's
senior unsecured long-term debt, the pricing level shall be
determined based upon such rating, and (c) if the ratings system
of either of S&P or Moody's shall change prior to the date all
Obligations have been paid and the Commitments cancelled, the
Company, Agent and Banks shall negotiate in good faith to amend
this Agreement promptly to reflect such changed system.
"Arranger" means BA Securities, Inc., a Delaware
corporation.
"Assessment Rate" for any Interest Period for each Adjusted
CD Rate Loan comprising part of the same Borrowing means the rate
determined by the Agent as equal to the annual assessment rate in
effect on the first day of such Interest Period payable to the
FDIC by a member of the Bank Insurance Fund that is classified as
adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification within the
meaning of 12 C.F.R. 327.3) for insuring time deposits at
offices of such member in the United States; or, in the event
that the FDIC shall at any time hereafter cease to assess time
deposits based upon such classifications or successor
classifications, equal to the maximum annual assessment rate in
effect on such day that is payable to the FDIC by commercial
banks (whether or not applicable to any particular Bank) for
insuring time deposits at offices of such banks in the United
States.
"Attorney Costs" means and includes the reasonable fees and
disbursements of any law firm or other external counsel and the
allocated cost of internal counsel.
"Bank" has the meaning specified in the introductory clause
hereto.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C. 101, et seq.).
"Base Rate" means, for any day, the higher of: (a) 1/2%
above the latest Federal Funds Rate, and (b) the rate of interest
in effect for such day as publicly announced from time to time by
the Bank which is the Agent at its principal office, as its
"prime" or "reference" rate (or comparable rate, if such Bank
does not so designate a "prime" or "reference" rate). The prime
or reference rate is a rate set by such Bank based upon various
factors including such Bank's costs and desired return, general
economic conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in the prime or reference
rate announced by such Bank shall take effect at the opening of
business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Loan that bears interest based on
the Base Rate.
"BofA" means Bank of America National Trust and Savings
Association, a national banking association.
"Borrowing" means a borrowing hereunder consisting of Loans
of the same Type made to the Company on the same day by the Banks
under Article II.
"Borrowing Date" means any date on which a Borrowing occurs
under Section 2.03.
"Business Day" means (i) any day of the year except
Saturday, Sunday and any day on which banks are required or
authorized to close in New York City or San Francisco and (ii) if
the applicable Business Day relates to any LIBOR Loans, any day
which is a "Business Day" described in clause (i) and which is
also a day for trading by and between banks in the London
interbank Eurodollar market.
"CD Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "CD Lending Office" opposite
its name on Schedule 10.02 or in the document pursuant to which
it became a party hereto as contemplated by Section 2.05,
3.06(a), 3.07 or 10.07(b) (or, if no such office is specified,
its Domestic Lending Office) or such other office of such Bank as
such Bank may from time to time specify to the Company and the
Agent.
"Change in Control" means the direct or indirect acquisition
by any person (as such term is used in Section 13(d) and Section
14(d)(2) of the Exchange Act), or related persons constituting a
group (as such term is used in Rule 13d-5 under the Exchange
Act), of (a) beneficial ownership of issued and outstanding
shares of voting stock of a corporation or other entity, the
result of which acquisition is that such person or such group
possesses in excess of 50% of the combined voting power of all
then-issued and outstanding voting stock of such corporation or
other entity, or (b) the power to elect, appoint, or cause the
election or appointment of at least a majority of the members of
the board of directors of such corporation or other entity.
"Closing Date" means the date on which all conditions
precedent set forth in Section 4.01 are satisfied or waived by
all Banks.
"Code" means the Internal Revenue Code of 1986, and
regulations promulgated thereunder.
"Commitment", as to each Bank, has the meaning specified in
Section 2.01.
"Commitment Percentage" means, as to any Bank at any time,
the percentage equivalent (expressed as a decimal, rounded to the
ninth decimal place) at such time of such Bank's Commitment
divided by the combined Commitments of all Banks.
"Company" means Compaq Computer Corporation, a Delaware
corporation and successors thereto.
"Compliance Certificate" means a certificate substantially
in the form of Exhibit C.
"Consolidated Net Worth" means at any date the consolidated
stockholders' equity of the Company and its consolidated
Subsidiaries (excluding any Redeemable Preferred Stock of the
Company).
"Consolidated Tangible Net Worth" means at any date
Consolidated Net Worth less the amount, if any, in excess of
$25,000,000 of consolidated "intangible assets" (as defined
below) included in determining Consolidated Net Worth. For the
purposes of this definition, "intangible assets" means the sum 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, 1993 in the book value of
any asset owned by the Company or a Subsidiary of the Company and
(ii) all unamortized goodwill, patents, trademarks, service
marks, trade names, copyrights, organization or developmental
expenses and other intangible items.
"Conversion/Continuation Date" means any date on which,
under Section 2.04, the Company (a) converts Loans of one Type to
another Type, or (b) continues as Loans of the same Type, but
with a new Interest Period, Loans having Interest Periods
expiring on such date.
"Debt" of any Person means, at any date, without duplica
tion, (i) obligations for the repayment of money borrowed which
are or should be shown on a balance sheet as debt in accordance
with GAAP, (ii) obligations as lessee under leases which, in
accordance with GAAP, are capital leases, (iii) non-contingent
reimbursement and payment obligations with respect to letters of
credit, bank guaranties or banker's acceptances, and (iv)
guaranties of payment or collection of any obligations described
in clauses (i), (ii) and (iii) of other Persons; provided, that
clauses (i), (ii) and (iii) include, in the case of obligations
of the Company or any Subsidiary, only such obligations as are or
should be shown as debt or capital lease liabilities on a
consolidated balance sheet in accordance with GAAP; and provided,
further, that the liability of any Person as a general partner of
a partnership for Debt of such partnership, if the partnership is
not a Subsidiary of such Person, shall not constitute "Debt."
"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured
or otherwise remedied during such time) constitute an Event of
Default.
"Dollars", "dollars" and "$" each mean lawful money of the
United States.
"Domestic Lending Office" means, with respect to any Bank,
the office of such Bank specified as its "Domestic Lending
Office" opposite its name on Schedule 10.02 hereto or in the
document pursuant to which it became a party hereto as
contemplated by Section 2.05, 3.06(a), 3.07 or 10.07(b) or such
other office of such Bank as such Bank may from time to time
specify to the Company and the Agent.
"Eligible Assignee" means (i) a commercial bank organized
under the laws of the United States, or any state thereof, and
having a combined capital and surplus of at least $200,000,000;
(ii) a commercial bank organized under the laws of any other
country which is a member of the Organization for Economic
Cooperation and Development or a political subdivision of any
such country, and having a combined capital and surplus of at
least $200,000,000, provided that such bank is acting through a
branch or agency located in the United States; and (iii) a Person
that is primarily engaged in the business of commercial banking
and that is (A) a Subsidiary of a Bank, (B) a Subsidiary of a
Person of which a Bank is a Subsidiary, or (C) a Person of which
a Bank is a Subsidiary.
"Environment" or "Environmental" has the meanings set forth
in the Comprehensive Environmental Response, Compensation, and
Liability Act at 42 U.S.C. 9601(8) (1982).
"Environmental Protection Statute" means any United States
local, state or federal, or any foreign, law, statute,
regulation, order, consent decree or other agreement or
Requirement of Law pertaining to the protection or regulation of
the Environment, including, without limitation, those laws,
statutes, regulations, orders, decrees, agreements and other
Requirements of Law relating to the disposal, cleanup,
production, storing, refining, handling, transferring, processing
or transporting of Hazardous Waste, Hazardous Substances or any
pollutant or contaminant, wherever located.
"ERISA" means the Employee Retirement Income Security Act of
1974, and regulations promulgated thereunder.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the FRB.
"Event of Default" means any of the events or circumstances
specified in Section 8.01.
"Exchange Act" means the Securities and Exchange Act of
1934, and regulations promulgated thereunder.
"FDIC" means the Federal Deposit Insurance Corporation, and
any Governmental Authority succeeding to any of its principal
functions.
"Federal Funds Rate" means, for any day, the rate set forth
in the weekly statistical release designated as H.15(519),
published by the FRB on the preceding Business Day opposite the
caption "Federal Funds (Effective)"; or, if any relevant day such
rate is not so published on any such preceding Business Day, the
rate for such day will be the arithmetic mean as determined by
the Agent of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New York City time) on
that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Agent.
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the
U.S. accounting profession), which are applicable to the
circumstances as of the date of determination.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any central bank
(or similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Hazardous Substance" has the meaning set forth in the
Comprehensive Environmental Response, Compensation and Liability
Act at 42 U.S.C. 9601(14) and also includes each other substance
considered to be a hazardous substance under any analogous
statute or regulation.
"Hazardous Waste" has the meaning set forth in the Resource
Conservation and Recovery Act at 42 U.S.C. 6903(5) and also
includes each other substance considered to be a hazardous waste
under any analogous statute or regulation (including 40 C.F.R.
261.3).
"Highest Lawful Rate" means, with respect to each Bank, the
maximum nonusurious interest rate, if any, that at any time or
from time to time may be contracted for, taken, reserved, charged
or received on the Loans or on other indebtedness outstanding
under this Agreement or the Notes applicable to such Bank which
is presently in effect or, to the extent allowed by law, under
such applicable laws which may hereafter be in effect and which
allow a higher maximum nonusurious interest rate than applicable
laws now allow.
"Information" has the meaning specified in Section 10.10.
"Insolvency Proceeding" means (a) any case, action or
proceeding before any court or other Governmental Authority
relating to bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up or relief of debtors, or
(b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors, or other,
similar arrangement in respect of its creditors generally or any
substantial portion of its creditors; undertaken under Federal,
state or foreign law, including the Bankruptcy Code.
"Interest Payment Date" means, as to any Loan other than a
Base Rate Loan, the last day of each Interest Period applicable
to such Loan and, as to any Base Rate Loan, the last Business Day
of each calendar quarter and each date such Loan is converted
into another Type of Loan, provided, however, that if any
Interest Period for (i) an Adjusted CD Rate Loan exceeds 90 days,
the date that falls 90 days after the beginning of such Interest
Period is also an Interest Payment Date, or (ii) a LIBOR Loan
exceeds three months, the date that falls three months after the
beginning of such Interest Period is also an Interest Payment
Date.
"Interest Period" means, (a) as to any Adjusted CD Rate
Loan, the period commencing on the Borrowing Date or on the
Conversion/Continuation Date on which the Loan is converted into
or continued as an Adjusted CD Rate Loan, and ending on the date
30, 60, 90 or 180 days thereafter, and (b) as to any LIBOR Loan,
the period commencing on (and including) the Borrowing Date, or
on the Conversion/Continuation Date on which the Loan is
converted into or continued as a LIBOR Loan, and ending on (but
excluding) 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 to clauses (a) and (b) of this definition, as selected
by the Company in its Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be; provided that:
(i) if any Interest Period pertaining to an
Adjusted CD Rate 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 a
LIBOR 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 July 31, 1997.
"IRS" means the United States Internal Revenue Service.
"Lending Office" means, as to any Bank, the office or
offices of the Bank specified as its "CD Lending Office" or
"Domestic Lending Office" or "LIBOR Lending Office", as the case
may be, on Schedule 10.02, or such other office or offices as the
Bank may from time to time notify the Company and the Agent.
"LIBO Rate" means, for any Interest Period for each LIBOR
Loan comprising part of the same Borrowing, an interest rate per
annum equal to the average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which dollar deposits in
immediately available funds are offered by each of the Reference
Banks to leading banks in the London interbank Eurodollar market
at 11:00 a.m. (London time) two Business Days before the first
day of such Interest Period in an amount substantially equal to
the amount of the LIBOR Loan of such Reference Bank comprising
part of such Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period. The LIBO
Rate for each Interest Period for each LIBOR Loan comprising part
of the same Borrowing shall be determined by the Agent on the
basis of applicable rates furnished to and received by the Agent
from the Reference Banks two Business Days before the first day
of such Interest Period, subject, however, to the provisions of
Section 2.13.
"LIBOR Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "LIBOR Lending Office"
opposite its name on Schedule 10.02 or in the document pursuant
to which it became a party hereto as contemplated by Section
2.05, 3.06(a), 3.07 or 10.07(b) (or, if no such office is
specified, its Domestic Lending Office) or such other office of
such Bank as such Bank may from time to time specify to the
Company and the Agent.
"LIBOR Loan" means a Loan which bears interest at the LIBO
Rate plus the Applicable Margin.
"Loan" means a loan by a Bank to the Company pursuant to
Article II, and refers to an Adjusted CD Rate Loan, a Base Rate
Loan or a LIBOR Loan (each, a "Type" of Loan).
"Loan Documents" means this Agreement, the Notes and all
other documents delivered to the Agent or any Bank in connection
herewith.
"Majority Banks" means at any time the Banks then holding at
least 60% of the then aggregate unpaid principal amount of the
Notes held by Banks, or, if no principal amount is then
outstanding, Banks having at least 60% of the Commitments.
"Margin Stock" means "margin stock" as such term is defined
in Regulation G, U or X of the FRB.
"Minimum Tranche" means, in respect of Loans comprising part
of the same Borrowing, or to be converted or continued under
Section 2.04, (a) in the case of Base Rate Loans, $5,000,000 or
any multiple of $1,000,000 in excess thereof, and (b) in the case
of Adjusted CD Rate Loans and LIBOR Loans, $10,000,000 or any
multiple of $1,000,000 in excess thereof.
"Moody's" means Moody's Investors Service, Inc. and any
successor thereto that is a nationally recognized rating agency.
"New Affiliate Bank" has the meaning specified in Section
3.06.
"Note" has the meaning specified in Section 2.02.
"Notice of Borrowing" means a notice in substantially the
form of Exhibit A.
"Notice of Conversion/Continuation" means a notice in
substantially the form of Exhibit B.
"Obligations" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan
Document, owing by the Company to any Bank, the Agent, or any
Person required to be indemnified, whether direct or indirect
(including those acquired by assignment), absolute or contingent,
due or to become due, now existing or hereafter arising.
"Other Taxes" means any present or future stamp or
documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made hereunder or
from the execution, delivery or registration of, or otherwise
with respect to, this Agreement or any other Loan Document.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company,
trust, unincorporated association, joint venture or Governmental
Authority.
"Preferred Stock" means, as applied to any corporation,
shares of such corporation which shall be entitled to preference
or priority over any other shares of such corporation in respect
of either the payment of dividends or the distribution of assets
upon liquidation.
"Prescribed Forms" shall mean such duly executed and filed
form(s) or statement(s), and in such number of copies, which may,
from time to time, be prescribed by law and which, pursuant to
applicable provisions of (a) an income tax treaty between the
United States and the country of residence of the Bank providing
the form(s) or statement(s), (b) the Code, or (c) any applicable
rule or regulation under the Code, permit the Company and the
Agent to make payments hereunder for the account of such Bank
free of deduction or withholding of United States income or other
similar taxes.
"Redeemable" means, as applied to any Preferred Stock, any
Preferred Stock which (i) the issuer undertakes to redeem at a
fixed or determinable date or dates (other than pursuant to the
exercise of an option to redeem by the issuer, if the failure to
exercise such option would not materially adversely affect the
business, consolidated financial position or consolidated results
of operations of the issuer and its subsidiaries taken as a
whole), whether by operation of a sinking fund or otherwise, or
upon the occurrence of a condition not solely within the control
of the issuer, or (ii) is redeemable at the option of the holder.
"Reference Banks" means BofA, NationsBank of Texas, N.A.,
Chemical Bank and The Toronto-Dominion Bank.
"Replacement Bank" has the meaning specified in Section
3.06(a).
"Required Banks" means at any time the Banks holding at
least 50% of the then aggregate unpaid principal amount of the
Notes held by Banks, or if no principal amount is then
outstanding, Banks having at least 50% of the Commitments.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or
determination of an arbitrator or of a Governmental Authority, in
each case applicable to or binding upon the Person or any of its
property or to which the Person or any of its property is
subject.
"Responsible Officer" means the chief executive officer, the
president, the chief financial officer or the treasurer of the
Company.
"Restricted Subsidiary" means any Subsidiary of the Company
which has non-intercompany assets with an aggregate book value
exceeding 10% of the Consolidated Tangible Net Worth of the
Company based upon, at the time of determination, the most recent
year-end audited consolidated financial statements of the
Company.
"Resulting Increased Commitment" has the meaning specified
in Section 3.07.
"Revolving Termination Date" means the earlier to occur of:
(a) July 31, 1997; and
(b) the date on which the commitments of the Banks to
make Loans terminate in whole in accordance with
Section 2.06, Section 2.08(b) or 2.08(c) or Section 8.02.
"S&P" means Standard & Poor's Rating Group and any successor
thereto that is a nationally recognized rating agency.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal
functions.
"Senior Debt Indenture" means that certain indenture dated
as of March 1, 1994 between the Company and NationsBank of Texas,
N.A., as Trustee, without giving effect to any amendment or
modification thereof.
"Specified Transaction," in respect of the Company, means
any transaction or related set of transactions, that results,
directly or indirectly, in (i) any sale, lease or exchange of all
or substantially all of its property, (ii) the consolidation of
the Company with any other Person, or (iii) a merger of the
Company with or into any other Person, if in connection with such
sale, lease, exchange, consolidation or merger any consent,
approval or authorization of the shareholders of the Company is
required under any of the Company's organizational documents, or
any rule, regulation or Requirement of Law.
"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 August 1, 1997.
"Subsidiary" of a Person means any corporation, association,
partnership, limited liability company, business trust, joint
stock company, joint venture or other business entity of which
more than 50% of the voting stock or other equity interests (in
the case of Persons other than corporations), is owned or
controlled directly or indirectly by the Person, or one or more
of the Subsidiaries of the Person, or a combination thereof.
Unless the context otherwise clearly requires, references herein
to a "Subsidiary" refer to a Subsidiary of the Company.
"Surviving Bank" has the meaning specified in Section 3.07.
"Taxes" means any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, in the case of each Bank and the
Agent, taxes imposed on its net income, and franchise taxes
imposed on its net income, by the jurisdiction (or any political
subdivision thereof) under the laws of which such Bank or the
Agent, as the case may be, is organized or maintains a lending
office.
"364-Day Credit Agreement" means that Revolving Credit
Agreement dated as of this date among the Company, BofA as
Administrative Agent and the Banks party thereto under which the
Banks agree to extend credit on a 364-day basis.
"Total Capitalization" means, at any time, the sum (without
duplication) of (a) Total Senior Debt, (b) the total outstanding
principal amount (or the book carrying amount of such Debt if
issued at a discount) of Subordinated Debt of the Company and its
consolidated Subsidiaries, (c) Consolidated Net Worth less any
amount thereof attributable to "minority interests" (as defined
below), and (d) Redeemable Preferred Stock of the Company and its
consolidated Subsidiaries. For the purpose of this definition,
"minority interests" means any investment or interest of the
Company in any corporation, partnership or other entity to the
extent that the total amount thereof owned by the Company
(directly or indirectly) constitutes 50% or less of all
outstanding interests or investments in such corporation,
partnership or entity.
"Total Senior Debt" means, at any time, all consolidated
Debt of the Company and its consolidated Subsidiaries other than
Subordinated Debt.
"Type" has the meaning specified in the definition of
"Loan."
"United States" and "U.S." each mean the United States of
America.
1.02 Other Interpretive Provisions. (a) The meanings of
defined terms are equally applicable to the singular and plural
forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and
similar words refer to this Agreement as a whole and not to any
particular provision of this Agreement. Subsection, Section,
Schedule and Exhibit references are to this Agreement unless
otherwise specified. The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures,
notices and other writings, however evidenced. The term
"including" is not limiting and means "including without
limitation."
(c) In the computation of periods of time from a
specified date to a later specified date, the word "from" means
"from and including"; the words "to" and "until" each mean "to
but excluding", and the word "through" means "to and including."
(d) Unless otherwise expressly provided herein, (i)
references to agreements (including this Agreement) and other
contractual instruments shall be deemed to include all subsequent
amendments and other modifications thereto, but only to the
extent such amendments and other modifications are not prohibited
by the terms of any Loan Document, (ii) references to any statute
or regulation are to be construed as including all statutory and
regulatory provisions consolidating, amending, replacing,
supplementing or interpreting the statute or regulation and (iii)
references to IRS forms, SEC forms, FRB statistical releases or
other forms, reports or documents of any Governmental Authority
are to be construed as including all forms, reports or other
documents that consolidate, amend or replace the forms, reports
or documents.
(e) The captions and headings of this Agreement are
for convenience of reference only and shall not affect the
interpretation of this Agreement.
1.03 Accounting Principles. (a) Unless the context
otherwise clearly requires, all accounting terms not expressly
defined herein shall be construed, and all financial computations
required under this Agreement shall be made, in accordance with
GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal
quarter" refer to such fiscal periods of the Company.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments. Each Bank severally
agrees, on the terms and conditions set forth herein, to make
loans to the Company from time to time on any Business Day during
the period from the Closing Date to the Revolving Termination
Date, in an aggregate principal amount not to exceed at any time
outstanding the amount set forth opposite the Bank's name on the
signature pages hereto (as such signature pages are deemed
modified pursuant to this Article II or Article III or
Section 10.07) (as such amount may be reduced or increased
pursuant to Sections 2.05, 2.06, 2.07, 2.08, 3.06, 3.07 or 8.02,
such Bank's "Commitment"); provided, however, that, after giving
effect to any Borrowing, the aggregate principal amount of all
outstanding Loans shall not at any time exceed the combined
Commitments. Within the limits of each Bank's Commitment, and
subject to the other terms and conditions hereof, the Company may
borrow under this Section 2.01, prepay under Section 2.08(a) and
reborrow under this Section 2.01.
2.02 Notes. The Loans made by each Bank are evidenced by a
note in substantially the form of Exhibit E ("Note") payable to
the order of that Bank, evidencing the aggregate indebtedness of
the Company to such Bank resulting from the Loans owed to such
Bank. Each Bank may endorse on the schedules annexed to its
Notes, the date, amount and maturity of each Loan made by it and
the amount of each payment of principal made by the Company with
respect thereto. Each Bank is irrevocably authorized by the
Company to endorse its Notes, and each Bank's record shall be
prima facie evidence of the matters reflected therein; provided,
however, that the failure of a Bank to make, or an error in
making, a notation thereon with respect to any Loan shall not
limit or otherwise affect the obligations of the Company
hereunder or under any such Note to such Bank.
2.03 Procedure for Borrowings. (a) Each Borrowing shall be
made upon the Company's irrevocable written notice delivered to
the Agent as described in Section 10.02 in the form of a Notice
of Borrowing prior to 11:00 a.m. (Houston time) (i) one Business
Day prior to the requested Borrowing Date, in the case of
Adjusted CD Rate Loans, (ii) three Business Days prior to the
requested Borrowing Date, in the case of LIBOR Loans, and (iii)
on the requested Borrowing Date, in the case of Base Rate Loans,
specifying:
(A) the amount of the Borrowing, which
shall be in an aggregate amount not less than the
Minimum Tranche;
(B) the requested Borrowing Date, which
shall be a Business Day;
(C) the Type of Loans comprising the
Borrowing;
(D) in the case of Adjusted CD Rate
Loans and LIBOR Loans, the duration of the Interest
Period applicable to such Loans included in such
notice. If the Notice of Borrowing fails to specify
the duration of the Interest Period for any Borrowing
comprised of Adjusted CD Rate Loans or LIBOR Loans,
such Interest Period shall be 90 days (in the case of
an Adjusted CD Rate Loan) and three months (in the case
of a LIBOR Loan);
provided, however, that with respect to a Borrowing, if any, to
be made on the Closing Date, the Notice of Borrowing shall be
delivered to the Agent not later than 11:00 a.m. (Houston time)
on the Closing Date and such Borrowing will consist of Base Rate
Loans only.
(b) Upon receipt of the Notice of Borrowing, the Agent
will promptly notify each Bank thereof and of the amount of such
Bank's Commitment Percentage of the Borrowing.
(c) Each Bank will make the amount of its Commitment
Percentage of each Borrowing available to the Agent for the
account of the Company at the Agent's Payment Office on the
Borrowing Date requested by the Company in immediately available
funds by 11:00 a.m. (Houston time) in the case of a Borrowing
comprised of Adjusted CD Rate Loans or LIBOR Loans, and by 2:00
p.m. (Houston time) in the case of a Borrowing comprised of Base
Rate Loans. The proceeds of all such Loans will then be made
available to the Company by the Agent by wire transfer of
immediately available funds in accordance with written
instructions provided to the Agent by the Company.
(d) After giving effect to any Borrowing, there may
not be more than (i) four different Interest Periods in effect in
respect of all Adjusted CD Rate Loans together then outstanding
and (ii) four different Interest Periods in effect in respect of
all LIBOR Loans together then outstanding.
2.04 Conversion and Continuation Elections for Borrowings.
(a) The Company may, upon irrevocable written notice to the Agent
under subsection (b) of this Section:
(i) elect, on any Business Day, in the case of
Base Rate Loans, or on the last day of the applicable
Interest Period, in the case of Adjusted CD Rate Loans or
LIBOR Loans, to convert any such Loans (or any part thereof
in an amount not less than the Minimum Tranche) into Loans
of another Type; or
(ii) elect to renew on the last day of the
applicable Interest Period any Loans having Interest Periods
maturing on such day (or any part thereof in an amount not
less than the Minimum Tranche);
provided, that if at any time the aggregate amount of Adjusted CD
Rate Loans or LIBOR Loans in respect of any Borrowing is
reduced, by payment, prepayment, or conversion of part thereof to
be less than the Minimum Tranche, such Loans shall automatically
convert into Base Rate Loans, and on and after such date the
right of the Company to continue such Loans as, and convert such
Loans into, Adjusted CD Rate Loans or LIBOR Loans shall
terminate, except that if and so long as each such Loan shall be
of the same Type and have the same Interest Period as Loans
comprising another Borrowing or other Borrowings, and the
aggregate unpaid principal amount of all such Loans of all such
Borrowings shall equal or exceed $10,000,000, the Company shall
have the right to continue all such Loans as, or to convert all
such Loans into, Loans of such Type having such Interest Period.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Agent not later
than 11:00 a.m. (Houston time) at least (i) one Business Day in
advance of the Conversion/Continuation Date, if the Loans are to
be converted into or continued as Adjusted CD Rate Loans; (ii)
three Business Days in advance of the Conversion/Continuation
Date, if the Loans are to be converted into or continued as LIBOR
Loans; and (iii) on the Conversion/Continuation Date, if the
Loans are to be converted into Base Rate Loans, specifying:
(A) the proposed
Conversion/Continuation Date;
(B) the aggregate amount of Loans to be
converted or renewed;
(C) the Type of Loans resulting from
the proposed conversion or continuation; and
(D) other than in the case of
conversions into Base Rate Loans, the duration of the
requested Interest Period.
(c) If upon the expiration of any Interest Period
applicable to any Adjusted CD Rate Loans or LIBOR Loans, the
Company has failed to select timely a new Interest Period to be
applicable to such Loans, the Company shall be deemed to have
elected to convert such Loans into Base Rate Loans.
(d) The Agent will promptly notify each Bank of its
receipt of a Notice of Conversion/Continuation, or, if no timely
notice is provided by the Company under this Section, the Agent
will promptly notify each Bank of the details of any automatic
conversion. All conversions and continuations shall be made
ratably according to the respective outstanding principal amounts
of the Loans held by each Bank with respect to which the notice
was given.
(e) Unless the Majority Banks otherwise agree, during
the existence of a Default or Event of Default, the Company may
not elect to have a Loan converted into or continued as an
Adjusted CD Rate Loan or a LIBOR Loan with an Interest Period
exceeding one month (in the case of a LIBOR Loan) or 30 days (in
the case of an Adjusted CD Rate Loan).
(f) After giving effect to any conversion or
continuation of Loans, there may not be more than (i) four
different Interest Periods in effect in respect of all Adjusted
CD Rate Loans together then outstanding and (ii) four different
Interest Periods in effect in respect of all LIBOR Loans together
then outstanding.
2.05 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 $400,000,000 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 $100,000,000 plus
the aggregate amount (but not greater than $100,000,000) of all
non-ratable reductions and terminations of Commitments
effectuated pursuant to Section 2.07; (b) no Bank's Commitment
shall be increased without the
consent of such Bank; (c) on the effective date of any such
increase in Commitments, there are no amounts outstanding under
any of the Notes and no Notice of Borrowing is pending; (d) there
has occurred and is continuing no Default or Event of Default,
and (e) there has been no ratable reduction of Commitments
pursuant to Section 2.06. The Company shall give the Agent three
Business Days' notice of the Company's intention to increase the
total Commitments pursuant to this Section. Such notice 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. Each new
Eligible Assignee, and each Bank agreeing to increase its
Commitment, shall execute and deliver to the Agent a document in
form and substance as may be reasonably required by the Agent
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. In addition, the Company shall
execute and deliver a Note in the principal amount of the Commit
ment 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. Such
Notes and other documents of the nature referred to in Section
4.01 shall be furnished to the Agent in form and substance as may
be reasonably required by it. Upon execution and delivery of
such documents, and payment to the Agent of a non-refundable
processing fee of $2,500, 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.
2.06 Ratable Reduction or Termination of Commitments. The
Company may, upon not less than three Business Days' prior notice
to the Agent, terminate all the Commitments, or permanently
reduce all the Commitments by an aggregate minimum amount of
$10,000,000 or any multiple of $1,000,000 in excess thereof;
unless, after giving effect thereto and to any prepayments of
Loans made on the effective date thereof, the then-outstanding
principal amount of the Loans would exceed the amount of the
combined Commitments then in effect. Once reduced in accordance
with this Section, the Commitments may not be increased. Any
such reduction of the Commitments shall be applied ratably to
each Bank's Commitment according to its Commitment Percentage.
2.07 Non-Ratable Reduction or Termination of Commitments.
The Company shall have the right, without the consent of any
Bank, but subject to the approval of the Agent (which consent
shall not be unreasonably withheld), to reduce in part or to
terminate in whole the Commitment of one or more Banks
non-ratably, provided that (i) on the effective date of any such
reduction or termination (w) there are no amounts outstanding
under any of the Notes, (x) no Default or Event of Default shall
have occurred and be continuing, (y) the senior unsecured long-
term debt of the Company is rated BBB- or better by S&P or Baa3
or better by Moody's, and (z) the Company shall pay to any Bank
whose Commitment is terminated all amounts owed by the Company to
such Bank under this Agreement (including accrued commitment
fees), (ii) the aggregate amount of each non-ratable reduction
shall be at least $5,000,000, and (iii) the aggregate amount of
all such non-ratable reductions and terminations of Commitments
since the date of this Agreement shall not exceed the sum of
$100,000,000 plus the aggregate amount (but not greater than
$100,000,000) of all increases in Commitments effectuated
pursuant to Section 2.05. The Company shall give the Agent three
Business Days' notice of the Company's intention to reduce or
terminate any Commitment pursuant to this Section.
2.08 Optional and Mandatory Prepayments. (a) Subject to
Section 3.02, the Company may, at any time or from time to time
by irrevocable notice to the Agent, not less than (i) one
Business Day prior to a prepayment of Adjusted CD Rate Loans,
(ii) three Business Days prior to a prepayment of LIBOR Loans, or
(iii) by 11:00 a.m. (Houston time) on the Business Day of a
prepayment of Base Rate Loans, ratably prepay Loans in whole or
in part, in minimum amounts of $5,000,000 or any multiple of
$1,000,000 in excess thereof. Such notice of prepayment shall
specify the date and amount of such prepayment, the Type(s) of
Loans to be prepaid and the specific Borrowing or Borrowings
pursuant to which Loans were made. The Agent will promptly
notify each Bank of its receipt of any such notice, and of such
Bank's Commitment Percentage of such prepayment. If such notice
is given by the Company, the Company shall make such prepayment
and the payment amount specified in such notice shall be due and
payable on the date specified therein, together with accrued
interest to each such date on the amount prepaid.
(b) On the date that is 30 days after the occurrence
of any Change in Control as to the Company, the Company shall
prepay all outstanding Loans, together with accrued interest,
amounts payable pursuant to Section 3.02 and all other amounts
outstanding hereunder, and immediately upon the occurrence of
such Change in Control, the obligations of the Banks to make
additional Loans shall be terminated automatically.
(c) Immediately upon the occurrence of any Specified
Transaction or at any time prior to the date that is 180 days
after the date of consummation of such Specified Transaction, the
Agent shall at the request of, and may with the consent of, the
Required Banks, in their sole and absolute discretion, (i) by
notice to the Company pursuant to Section 10.02 hereof, declare
the outstanding principal amount of all Loans, together with
accrued interest, amounts payable pursuant to Section 3.02 and
all other amounts outstanding hereunder, to be immediately due
and payable, whereupon such amounts shall immediately be paid by
the Company, and (ii) by notice to the Company pursuant to
Section 10.02 hereof, declare the obligation of each Bank to make
Loans be terminated, whereupon such obligations shall be
terminated immediately.
(d) Any mandatory prepayment under subsection (b) or
(c) of this Section shall be made by the Company without
presentment, demand, protest or other notice of any kind, except
as provided in subsection (c), all of which are expressly waived
by the Company.
2.09 Repayment. The Company shall repay to the Agent for
the account of each Bank on the Revolving Termination Date the
aggregate principal amount of Loans outstanding on such date.
2.10 Interest. (a) Each Loan shall bear interest on the
outstanding principal amount thereof from the applicable
Borrowing Date until paid at a rate per annum equal to the
Adjusted CD Rate, the LIBOR Rate or the Base Rate, as the case
may be (and subject to the Company's right to convert to other
Types of Loans under Section 2.04), plus, in the case of Adjusted
CD Rate Loans and LIBOR Loans, the Applicable Margin; provided,
however, that in no event shall the applicable rate payable to
any Bank exceed the Highest Lawful Rate applicable to such Bank.
(b) Interest on each Loan shall be paid to the Agent
for the account of each Bank in arrears on each Interest Payment
Date. Interest shall also be paid on the date of any prepayment
of Loans under Section 2.08 for the portion of the Loans so
prepaid and upon payment in full thereof.
(c) Any principal amount of any Loan which is not paid
when due (whether at stated maturity, by acceleration or
otherwise) shall bear interest, to the extent permitted by law,
from the date on which such amount became due until such amount
is paid in full, payable on demand, at a rate per annum equal at
all times to the sum of the Base Rate in effect from time to time
plus 1.50% per annum, provided, however, that in no event shall
such rate as to any Bank exceed the Highest Lawful Rate
applicable to such Bank.
2.11 Fees. The Company agrees to pay to the Agent for the
account of each Bank a commitment fee on the average daily amount
by which such Bank's Commitment exceeds the aggregate outstanding
principal amount of such Bank's Loans from the date hereof until
the Revolving Termination Date at a rate per annum equal to the
Applicable Fee Amount, payable in arrears on the last day of each
calendar quarter during the term of such Bank's Commitment, and
on the Revolving Termination Date. The Company shall pay to the
Agent and the Arranger such additional fees as are set forth in
the fee letter dated June 28, 1994 among such Persons.
2.12 Computation of Fees and Interest. All computations of
interest for Base Rate Loans when the Base Rate is determined
according to clause (b) of the definition of "Base Rate" shall be
made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual
days elapsed (but not to exceed as to any Bank the Highest Lawful
Rate applicable to such Bank). Interest and fees shall accrue
during each period during which interest or such fees are
computed from the first day thereof to the last day thereof.
2.13 Interest Rate Determination and Protection. (a) Each
Reference Bank agrees to furnish to the Agent timely information
for the purpose of determining each Adjusted CD Rate or LIBO
Rate, as applicable. If any one or more of the Reference Banks
shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall
determine such interest rate on the basis of timely information
furnished by the remaining Reference Banks.
(b) The Agent shall give prompt notice to the Company
and the Banks of the applicable interest rate determined by the
Agent for purposes of Section 2.10(a).
(c) If fewer than two Reference Banks furnish timely
information to the Agent for determining the LIBO Rate for any
LIBOR Loans or the Adjusted CD Rate for any Adjusted CD Rate
Loans,
(i) the Agent shall forthwith notify the Company
and the Banks that the interest rate cannot be determined
for such LIBOR Loans or Adjusted CD Rate Loans, as the case
may be,
(ii) each such Loan will automatically, on the
last day of the then existing Interest Period therefor,
convert into a Base Rate Loan (or if such Loan is then a
Base Rate Loan, will continue as a Base Rate Loan), and
(iii) the obligation of the Banks to make, or to
convert Loans into or continue Loans as, Adjusted CD Rate
Loans or LIBOR Loans, as the case may be, shall be suspended
until the Agent shall notify the Company and the Banks that
the circumstances causing such suspension no longer exist.
(d) With respect to any LIBOR Loan or Adjusted CD Rate
Loan, upon request by the Company the Agent shall provide to the
Company the information furnished by each Reference Bank to
enable the Agent to determine the LIBOR Rate or the Adjusted CD
Rate, as the case may be, for such Loan.
(e) If, with respect to any Adjusted CD Rate Loans or
LIBOR Loans, the Majority Banks notify the Agent that the
applicable interest rate for any Interest Period for such Loans
cannot be reasonably determined or will not adequately reflect
the cost to such Majority Banks of making, funding or maintaining
their respective Adjusted CD Rate Loans or LIBOR Loans, as the
case may be, for such Interest Period, the Agent shall forthwith
so notify the Company and the Banks, whereupon
(i) each such Loan will automatically, on the
last day of the then existing Interest Period therefor,
convert into a Base Rate Loan (or, if such Loan is then a
Base Rate Loan, will continue as a Base Rate Loan), and
(ii) the obligation of the Banks to make, or to
convert such Loans into or continue Loans as, Adjusted CD
Rate Loans or LIBOR Loans, as the case may be, shall be
suspended until the Agent shall notify the Company and the
Banks that the circumstances causing such suspension no
longer exist.
2.14 Payments by the Company. Except as otherwise expressly
provided herein, all payments by the Company shall be made in
Dollars to the Agent for the account of the Banks at the Agent's
Payment Office and shall be made without setoff, recoupment or
counterclaim. Such payments shall be made in immediately
available funds no later than 12:00 noon (Houston time) on the
date specified herein. The Agent will promptly distribute to
each Bank its Commitment Percentage share (or other applicable
share as expressly provided herein) of such payment in like funds
as received. Any payment received by the Agent later than the
time specified above shall be deemed to have been received on the
following Business Day, and any applicable interest or fee shall
continue to accrue.
(b) Subject to the provisions set forth in the
definition of "Interest Period" herein, whenever any payment is
due on a day other than a Business Day, such payment shall be
made on the following Business Day, and such extension of time
shall in such case be included in the computation of interest or
fees, as the case may be.
(c) Unless the Agent receives notice from the Company
prior to the date on which any payment is due to the Banks that
the Company will not make such payment in full as and when
required, the Agent may assume that the Company has made such
payment in full to the Agent on such date in immediately
available funds, and the Agent may (but shall not be so
required), in reliance upon such assumption, distribute to each
Bank on such due date an amount equal to the amount then due such
Bank. If and to the extent the Company has not made such payment
in full to the Agent, each Bank shall repay to the Agent on
demand such amount distributed to such Bank, together with
interest thereon at the Federal Funds Rate for each day from the
date such amount is distributed to such Bank until the date
repaid.
2.15 Payments by the Banks to the Agent. (a) Unless the
Agent receives notice from a Bank on or prior to the Closing Date
or, with respect to any Borrowing after the Closing Date, at
least one Business Day prior to the proposed Borrowing Date, that
such Bank will not make available as and when required hereunder
to the Agent for the account of the Company the amount of that
Bank's Commitment Percentage of the Borrowing, the Agent may
assume that each Bank has made such amount available to the Agent
in immediately available funds on the Borrowing Date and the
Agent may (but shall not be so required), in reliance upon such
assumption, make available to the Company on such date a
corresponding amount. If and to the extent any Bank shall not
have made its full amount available to the Agent in immediately
available funds and the Agent in such circumstances has made
available to the Company such amount, that Bank shall on the
Business Day following such Borrowing Date make such amount
available to the Agent, together with interest at the Federal
Funds Rate for each day during such period. A notice of the
Agent submitted to any Bank with respect to amounts owing under
this subsection (a) shall be conclusive, absent manifest error.
If such amount is so made available, such payment to the Agent
shall constitute such Bank's Loan on the date of Borrowing for
all purposes of this Agreement. If such amount is not made
available to the Agent on the Business Day following the
Borrowing Date, the Agent will notify the Company of such failure
to fund and, upon demand by the Agent, the Company shall pay such
amount to the Agent for the Agent's account, together with
interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Bank to make any Loan on any
Borrowing Date shall not relieve any other Bank of any obligation
hereunder to make a Loan on such Borrowing Date, but no Bank
shall be responsible for the failure of any other Bank to make
the Loan to be made by such other Bank on any Borrowing Date.
2.16 Sharing of Payments, Etc. If, other than as expressly
provided elsewhere herein, any Bank shall obtain on account of
the Loans made by it any non-pro rata payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or
otherwise), such Bank shall immediately (a) notify the Agent of
such fact, and (b) purchase from the other Banks such
participations in the Loans made by them as shall be necessary to
cause such purchasing Bank to share the excess payment with each
of them in accordance with their Commitment Percentages;
provided, however, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Bank, such
purchase shall to that extent be rescinded and each other Bank
shall repay to the purchasing Bank the purchase price paid
therefor, together with an amount equal to such paying Bank's
Commitment Percentage (according to the proportion of (i) the
amount of such paying Bank's required repayment to (ii) the total
amount so recovered from the purchasing Bank) of any interest or
other amount paid or payable by the purchasing Bank in respect of
the total amount so recovered. The Company agrees that any Bank
so purchasing a participation from another Bank may, to the
fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such
participation as fully as if such Bank were the direct creditor
of the Company in the amount of such participation.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes. (a) Any and all payments by the Company to each
Bank or the Agent under this Agreement and any Note shall be made
free and clear of, and without deduction or withholding for, any
Taxes. In addition, the Company shall pay all Other Taxes.
(b) To the fullest extent permitted by applicable law,
the Company agrees to indemnify and hold harmless each Bank and
the Agent for the full amount of Taxes or Other Taxes (including
any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 3.01) paid by such Bank or the Agent
and any liability (including penalties, interest, additions to
tax and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or
legally asserted. Payment under this indemnification shall be
made within 30 days after the date the Bank or the Agent makes
written demand therefor in accordance with this Section 3.01(b).
(c) If the Company shall be required by law to deduct
or withhold any Taxes or Other Taxes from or in respect of any
sum payable under this Agreement or any Note to any Bank or the
Agent, then: (i) the sum payable shall be increased as necessary
so that after making all required deductions and withholdings
(including deductions and withholdings applicable to additional
sums payable under this Section 3.01) 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 or withholdings been made;
(ii) the Company shall make such deductions and withholdings; and
(iii) the Company shall pay the full amount deducted or withheld
to the relevant taxing or other authority in accordance with
applicable law.
(d) Notwithstanding anything to the contrary contained
in this Agreement, each of the Company and the Agent shall be
entitled, to the extent it is required to do so by law, to deduct
or withhold income or other similar taxes imposed by the United
States of America from interest, fees or other amounts payable
under this Agreement or any Note for the account of any Bank
(without indemnification or the payment by the Company of
increased amounts pursuant to clause (a), (b) or (c) above) other
than a Bank (i) which is a domestic corporation (as defined in
Section 7701 of the Code) for federal income tax purposes or (ii)
which has the Prescribed Forms on file with the Company and the
Agent for the applicable year, provided that if the Company shall
so deduct or withhold any such taxes, it shall provide a
statement to the Agent and such Bank, setting forth the amount of
such taxes so deducted or withheld, the applicable rate and any
other information or documentation which such Bank or the Agent
may reasonably request to assist such Bank or the Agent in
obtaining any allowable credits or deductions for the taxes so
deducted or withheld in the jurisdiction or jurisdictions in
which such Bank is subject to tax.
(e) Within 30 days after the date of any payment by
the Company of Taxes or Other Taxes, the Company shall furnish
the Agent the original or a certified copy of a receipt (if
available) evidencing payment thereof, or other evidence of
payment satisfactory to the Agent.
(f) Each Bank shall use reasonable efforts (consistent
with its internal policies and legal and regulatory restrictions)
to select a jurisdiction for its Lending Office or change the
jurisdiction of its Lending Office, as the case may be, so as to
avoid the imposition of any Taxes or Other Taxes or to eliminate
any such additional payment by the Company which may thereafter
accrue; provided that no such selection or change shall be made
if, in the sole judgment of such Bank, such selection or change
would be disadvantageous to such Bank.
3.02 Breakage Costs. If (a) any payment of principal of any
Adjusted CD Rate Loan or LIBOR Loan is made by the Company prior
to the last day of an Interest Period relating to such Loan, or
(b) the Company fails to borrow a Borrowing consisting of an
Adjusted CD Rate Loan or LIBOR Loan on the date for such
Borrowing specified in the Notice of Borrowing (except as
permitted by and subject to the provisions of Sections 2.13(c)
and (e) and 3.04), then upon demand by any Bank, the Company
shall pay to the Agent for the account of such Bank any amounts
required to compensate such Bank for any losses, costs or
expenses which it may reasonably incur as a result of such
payment, including, without limitation, any loss (excluding loss
of anticipated profits), cost or expense incurred by reasons of
the liquidation or reemployment of deposits or other funds
acquired by such Bank to fund or maintain such Borrowing.
3.03 Increased Costs. (a) If, due to either: (i) after the
date hereof, the introduction of or any change (other than any
change by way of imposition or increase of reserve requirements
pursuant to Section 3.05) in or in the interpretation of any law
or regulation by a Governmental Authority charged with the
interpretation or administration thereof, or (ii) the compliance
with any guideline enacted after the date hereof or request
received after the date hereof from any Governmental Authority
(whether or not having the force of law) the effect of which is
to impose or modify any reserve, special deposit, insurance
assessment, or similar requirement relating to any extensions of
credit or other assets of, or any deposits with or other
liabilities of, any Bank (other than reserves maintained as
provided for in Section 3.05), there shall be any actual increase
in the cost to such Bank of agreeing to make or making, funding
or maintaining any Adjusted CD Rate Loan or LIBOR Rate Loan, then
the Company shall from time to time, upon demand by such Bank
(with a copy of such demand to the Agent), pay to the Agent for
the account of such Bank additional amounts sufficient to
compensate such Bank for such actual increased cost. Promptly
after any Bank becomes aware of any such introduction, change or
proposed compliance, such Bank shall notify the Company thereof.
No Bank shall be permitted to recover increased costs incurred or
accrued more than 90 days prior to the date such notice is given
to the Company.
(b) If the Company so notifies the Agent within five
Business Days after any Bank notifies the Company of any
increased cost pursuant to the provisions of Section 3.03(a), the
Company shall convert all Loans of the Type affected by such
increased cost of all Banks then outstanding into Loans of
another Type in accordance with Section 2.04 and, additionally,
reimburse such Bank for such increased cost in accordance with
Section 3.03(a).
(c) 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 therein, or
any change in the interpretation or administration thereof by any
Governmental Authority, charged with the interpretation or
administration thereof, or compliance by any Bank (or its Lending
Office) with 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 the effect of increasing
the amount of capital required or expected to be maintained as a
result of its Commitment hereunder, such Bank shall have the
right to give prompt written notice to the Company with a copy to
the Agent, which notice shall notify the Company of the
additional amounts as shall be required to compensate such Bank
for the increased cost to such Bank as a result of such increase
in capital and shall certify that such costs are generally being
charged by such Bank to other similarly situated borrowers under
similar credit facilities and such amounts shall be paid promptly
by the Company.
(d) Each Bank shall use its best efforts (consistent
with its internal policies and legal and regulatory restrictions)
to select a jurisdiction for its Lending Office or change the
jurisdiction of its Lending Office, as the case may be, so as to
avoid the imposition of any increased costs under this Section
3.03 or to eliminate the amount of any such increased cost which
may thereafter accrue; provided that no such selection or change
of the jurisdiction for its Lending Office shall be made if, in
the reasonable judgment of such Bank, such selection or change
would be disadvantageous to such Bank.
3.04 Illegality. Notwithstanding any other provision of
this Agreement, if any Bank shall notify the Agent that, after
the date hereof, the introduction of or any change in or in the
interpretation of any law or regulation shall make it unlawful,
or any Governmental Authority shall assert that it is unlawful,
for any Bank or its LIBOR Lending Office to make any LIBOR Loans
or to continue to fund or maintain any LIBOR Loan hereunder,
then, on notice thereof and demand therefor by such Bank to the
Company, (i) the obligation of such Bank to make LIBOR Loans and
to convert Loans into LIBOR Loans shall be suspended until the
Agent shall notify the Company that the circumstances causing
such suspension no longer exist, and (ii) the Company shall,
forthwith convert all LIBOR Loans of all Banks then outstanding
into Loans of another Type in accordance with Section 2.04.
3.05 Reserves on LIBOR Loans. If any Bank shall be required
under regulations of the FRB to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency
funds or deposits (currently known as "Eurocurrency
liabilities"), and if as a result thereof there is an increase in
the cost to such Bank of agreeing to make or making, funding or
maintaining LIBOR Loans, the Company shall from time to time,
upon demand by such Bank (with a copy of such demand to the
Agent), pay to the Agent for the account of such Bank additional
amounts, as additional interest hereunder, sufficient to
compensate Bank for such increased cost. Increased costs under
this Section 3.05 shall be payable by the Company on each
Interest Payment Date on such LIBOR Loans, provided the Company
shall have received at least 15 days' prior written notice (with
a copy to the Agent) of such additional interest from the Bank.
If a Bank fails to give notice 15 days prior to the relevant
Interest Payment Date, such additional interest shall be payable
15 days from receipt of such notice.
3.06 Replacement of Bank; Termination of Bank. In the event
that any Bank makes a demand for payment pursuant to Sections
3.01 or 3.03, or any Bank has suspended its funding of LIBOR
Loans pursuant to Section 3.04, the Company shall have the right,
if no Default or Event of Default then exists, to either replace
such Bank in accordance with subsection (a) of this Section 3.06
or terminate such Bank's Commitment in accordance with subsection
(b) of this Section 3.06. If any Banks that are not Affiliates
as of the Closing Date become Affiliates after the Closing Date
(each such Bank, a "New Affiliate Bank"), the Company shall have
the right, if no Default or Event of Default then exists, to
either replace each such New Affiliate Bank (other than the New
Affiliate Bank having the largest Commitment) in accordance with
subsection (a) of this Section 3.06 or terminate each such New
Affiliate Bank (other than the New Affiliate Bank having the
largest Commitment) in accordance with subsection (b) of this
Section 3.06.
(a) If the Company determines to replace a Bank
pursuant to this Section 3.06, the Company shall have the right
to replace such Bank with an entity that is an Eligible Assignee
(a "Replacement Bank"); provided that such Replacement Bank, (i)
if it is not already a Bank, shall be reasonably acceptable to
the Agent, (ii) shall unconditionally offer in writing (with a
copy to the Agent) to purchase all of such Bank's rights
hereunder and interest in the Loans owing to such Bank and the
Note held by such Bank without recourse at the principal amount
of such Note plus interest and fees accrued thereon to the date
of such purchase on a date therein specified, and (iii) shall, if
such Replacement Bank is not already a Bank, execute and deliver
to the Agent a document in form and substance satisfactory to the
Agent pursuant to which such Replacement Bank becomes a party
hereto with a Commitment equal to that of the Bank being
replaced, which document shall (among other matters) specify the
CD Lending Office, Domestic Lending Office and LIBOR Lending
Office of such Replacement Bank. Upon satisfaction of the
requirements set forth in the first sentence of this Section
3.06(a), acceptance of such offer to purchase by the Bank to be
replaced, payment to such Bank of the purchase price in
immediately available funds, and the payment by the Company of
all requested costs accruing to the date of purchase which the
Company is obligated to pay under Section 3.02 and all other
amounts owed by the Company to such Bank (other than the
principal of and interest on the Loans of such Bank purchased by
the Replacement Bank and interest and fees accrued thereon to the
date of purchase), and payment to the Agent of a non-refundable
processing fee of $2,500, the Replacement Bank shall constitute a
"Bank" hereunder with a Commitment as so specified and the Bank
being so replaced shall no longer constitute a "Bank" hereunder
(with the signature pages being amended to reflect same) and such
Bank shall be relieved of its obligations hereunder. If,
however, (x) a Bank accepts such an offer and such proposed
Replacement Bank fails to purchase such rights and interest on
such specified date in accordance with the terms of such offer,
the Company shall continue to be obligated to pay the increased
costs or additional amounts due to such Bank pursuant to Section
3.01, 3.03 or 3.05 (if a demand for repayment of increased costs
or additional amounts pursuant to any of such Sections is the
basis for the proposed replacement), as the case may be, or (y)
the Bank proposed to be replaced fails to accept such purchase
offer, the Company (if the basis for the proposed replacement is
a demand for payment of increased costs or additional amounts
pursuant to Sections 3.01, 3.03 or 3.05) shall not be obligated
to pay to such Bank such increased costs or additional amounts to
the extent incurred or accrued from and after the date of such
purchase offer, but in each of the cases set forth in clauses (x)
and (y), the Company shall continue to have the right to
terminate such Bank's Commitment in accordance with Section
3.06(b) hereof.
(b) In the event that the Company determines to
terminate a Bank's Commitment pursuant to this Section 3.06, the
Company shall give notice to such Bank of the Company's election
to terminate (a copy shall be sent to the Agent), and such
termination shall become effective 15 days thereafter unless such
Bank withdraws its request for additional compensation (with
respect to a proposed termination based on a request for
additional compensation) or reinstates its funding of LIBOR Loans
(with respect to a proposed termination based on a suspension of
funding of LIBOR Loans). On the date of the termination of the
Commitment of any Bank pursuant to this Section 3.06(b), (x) the
Company shall deliver notice of the effectiveness of such
termination to such Bank and to the Agent, (y) the Company shall
pay all amounts owed by the Company to such Bank under this
Agreement or under the Note payable to such Bank (including
principal of and interest on the Loans owed to such Bank, accrued
commitment fees and amounts specified in such Bank's notice (if
any) delivered pursuant to Sections 3.01, 3.03 or 3.05 as the
case maybe, with respect to the period prior to such termination)
and (z) upon the occurrence of the events set forth in clauses
(x) and (y), such Bank shall cease to be a "Bank" hereunder for
all purposes and such Bank shall be relieved of its obligations
hereunder.
3.07 Reallocation of Commitments in Event of Merger, Etc.
If after the Closing Date any Bank merges or consolidates with or
into one or more other Banks, the surviving entity of such merger
or consolidation (the "Surviving Bank") shall at the request of
the Company, if no Default or Event of Default then exists,
assign all or a portion of its Resulting Increased Commitment (as
defined below) to one or more entities selected by the Company
that are Eligible Assignees (each an "Acquiring Entity");
provided that (i) each Acquiring Entity shall unconditionally
offer in writing (with a copy to the Agent) to purchase a portion
of such Surviving Bank's Resulting Increased Commitment and the
portion of the Loans owing to such Surviving Bank and the Note or
Notes held by such Surviving Bank allocable to the amount of the
Resulting Increased Commitment to be acquired; (ii) the portion
of the Resulting Increased Commitment of the Surviving Bank
acquired by each Acquiring Entity shall be in integral multiples
of $1,000,000; (iii) the purchase price to be paid by the
Acquiring Entity shall be the outstanding principal amount of the
Loans owed to such Surviving Bank on the date of purchase (plus
interest and fees accrued thereon) that are allocable to the
amount of the Resulting Increased Commitment being acquired; and
(iv) each Acquiring Entity, if it is not already a Bank, shall be
reasonably acceptable to the Agent. Each Assignment hereunder
shall be accomplished in accordance with the second sentence of
Section 10.07(b), and to the extent of any such assignment, the
Surviving Bank shall be relieved of its obligations hereunder
with respect to its assigned Commitment. To the extent that the
Surviving Bank's Resulting Increased Commitment is not acquired
by an Acquiring Entity, the Company shall have the right to
terminate the Surviving Bank's Resulting Increased Commitment by
notice given to the Agent and such Bank within 180 days after the
effective date of such merger or consolidation. The termination
shall be effective 15 days thereafter, provided that on the date
of termination the Company shall have paid to the Surviving Bank
all amounts owed by the Company to the Surviving Bank allocable
to the amount of the Surviving Bank's Resulting Increased
Commitment being terminated (including principal of the Loans
owed to such Surviving Bank allocable to the portion of the
Resulting Increased Commitment being terminated plus interest and
fees accrued on such portion). The amounts owed by the Company
to the Surviving Bank under the Agreement that are allocable to
the amount of the Resulting Increased Commitment being acquired
or terminated pursuant to this Section 3.07, shall be the product
of (a) all amounts owed by the Company to the Surviving Bank
hereunder on the date of acquisition or termination (including
the outstanding principal amount of the Loans owed to the
Surviving Bank and interest and fees accrued thereon), and (b) a
fraction having as it numerator the amount of the Resulting
Increased Commitment being acquired or terminated and having as
its denominator the total amount of the Surviving Bank's
Commitment without giving effect to such acquisition or
termination. For the purposes of this Section 3.07, "Resulting
Increased Commitment" shall mean (a) the total combined
Commitment of the Surviving Bank immediately following a merger
or consolidation contemplated by this Section 3.07, minus (b) the
amount of the largest Commitment (immediately prior to such
merger or consolidation) of any Bank that was a party to such
merger or consolidation.
3.08 Certificates of Banks. Any Bank claiming reimbursement
or compensation under this Article III shall, as part of each
notice and demand for payment required under this Article III,
deliver to the Company (with a copy to the Agent) a certificate
setting forth in reasonable detail the amount and basis of the
reimbursement or compensation payable to the Bank hereunder and
such certificate shall be conclusive and binding on the Company
in the absence of manifest error.
3.09 Survival. The agreements and obligations of the
Company in this Article III shall survive the payment of all
other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
4.01 Conditions of Initial Loans. The obligation of each
Bank to make its initial Loan hereunder is subject to the
condition that the Agent have received on or before the Closing
Date all of the following, in form and substance satisfactory to
the Agent:
(a) Credit Agreement and Notes. This Agreement and
the Notes executed by each party thereto;
(b) Resolutions; Incumbency. (i) Copies of the
resolutions of the board of directors of the Company authorizing
the transactions contemplated hereby, certified as of the Closing
Date by the Secretary or an Assistant Secretary of the Company;
and (ii) a certificate of the Secretary or Assistant Secretary of
the Company certifying the names and true signatures of the
officers of the Company authorized to execute and deliver each
Loan Document to be executed by the Company;
(c) Organization Documents: Good Standing. Each of
the following documents: (i) the articles or certificate of
incorporation and the bylaws of the Company as in effect on the
Closing Date, certified by the Secretary or Assistant Secretary
of the Company as of the Closing Date; and (ii) a good standing
certificate for the Company from the Secretary of State (or
similar, applicable Governmental Authority) of its state of
incorporation and of the State of Texas dated as of a recent
date;
(d) Legal Opinions. An opinion of Wilson B. Fargo,
Senior Vice President and General Counsel of the Company,
addressed to the Agent and the Banks, substantially in the form
of Exhibit D-1, and an opinion of Vinson & Elkins L.L.P., counsel
to the Company, addressed to the Agent and the Banks,
substantially in the form of Exhibit D-2;
(e) Prior Agreement. Evidence that the commitments of
the lenders under that Credit Agreement dated as of May 10, 1993
among the Company, Nationsbank of Texas, N.A. and the other banks
named therein have been duly cancelled or terminated and that all
principal, interest, fees, expenses and other amounts outstanding
thereunder have been paid in full;
(f) 364-Day Credit Agreement. Evidence that all
conditions to closing of the 364-Day Credit Agreement have
occurred;
(g) Officer's Certificate. A certificate signed by a
Responsible Officer of the Company, dated as of the Closing Date,
stating that
(i) the representations and warranties contained
in Article V are true and correct on and as of such date,
and
(ii) no Default or Event of Default exists or
would result from the initial Borrowing; and
(h) Other Documents. Such other approvals, opinions,
documents or materials as the Agent or any Bank may reasonably
request.
4.02 Conditions to All Borrowings. The obligation of each
Bank to make any Loan is subject to the satisfaction of the
following conditions precedent on the relevant Borrowing Date:
(a) Notice of Borrowing. The Agent shall have
received (except as provided in Section 2.03(a)) a Notice of
Borrowing;
(b) Continuation of Representations and Warranties.
The representations and warranties in Article V shall be true and
correct on and as of such Borrowing Date with the same effect as
if made on and as of such Borrowing Date (except to the extent
such representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of such
earlier date); and
(c) No Existing Default. No Default or Event of
Default shall exist or shall result from such Borrowing.
Each Notice of Borrowing submitted by the Company hereunder, and
each making of a Borrowing by the Company, shall constitute a
representation and warranty by the Company hereunder, as of the
date of each such notice or request and as of each Borrowing
Date, that the conditions in Section 4.02 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each
Bank that:
5.01 Corporate Existence. The Company and each of its
Restricted Subsidiaries are duly incorporated or otherwise
formed, validly existing and (if applicable) in good standing in
each case under the laws of its jurisdiction of incorporation or
formation and have all requisite power and all authority as a
corporation, partnership or other form of business organization,
governmental licenses, authorizations, certificates, consents and
approvals required to carry on their respective businesses as now
conducted in all material respects.
5.02 Corporate Power. The execution, delivery and
performance by the Company of the Loan Documents and the
consummation of the transactions contemplated by such Loan
Documents are within the Company's corporate powers, have been
duly authorized by all necessary corporate action, and do not
contravene (a) the Company's charter or bylaws or (b) any law or
regulation applicable to the Company, or (c) any material
("material" for the purposes of this representation meaning
creating a liability of $50,000,000 or more) agreement binding on
the Company, or, to its knowledge, any other agreement binding on
the Company.
5.03 Authorization and Approvals. No authorization or
approval or other action by, and no notice to or filing with, any
Governmental Authority is required for the due execution,
delivery and performance by the Company of the Loan Documents or
the consummation of the transactions contemplated by such Loan
Documents.
5.04 Enforceable Obligations. This Agreement has been duly
executed and delivered by the Company. This Agreement is, and,
when executed and delivered in accordance with this Agreement,
each Note will be, the legal, valid and binding obligations of
the Company enforceable against the Company in accordance with
their respective terms, except as such enforceability may be
limited by any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally,
and by general principles of equity.
5.05 Financial Statements. The audited consolidated balance
sheet of the Company and its Subsidiaries as of December 31,
1993, and the related audited consolidated statements of income
and cash flows for the fiscal year then ended (as shown on the
Company's Form 10-K for the year ended December 31, 1993) and the
unaudited consolidated balance sheet of the Company and its
Subsidiaries as of March 31, 1994 and the related unaudited
statements of income and cash flows for the fiscal quarter then
ended (as shown on the Company's Form 10-Q for the quarter ended
March 31, 1994), fairly present the consolidated financial
condition of the Company and its Subsidiaries as of such dates
and the consolidated results of operations of the Company and its
Subsidiaries for such fiscal periods, all in accordance with GAAP
except as otherwise expressly noted therein, subject (in the case
of the unaudited balance sheet and income statement) to changes
resulting from normal year-end audit adjustments.
5.06 Litigation. Except as disclosed in the Company's Form
10-K for the year ended December 31, 1993, or the Company's Form
10-Q for the quarter ended March 31, 1994, which were delivered
to the Banks prior to the date hereof, or as further disclosed by
the Company to the Banks and the Agent in writing, there is no
pending or, to the knowledge of the Company, threatened action or
proceeding affecting the Company or any of its Subsidiaries
before any court, governmental agency or arbitrator, in which
there is a reasonable likelihood of an adverse decision which
could materially adversely affect the consolidated financial
condition or operations of the Company and its Subsidiaries,
taken as a whole. There is no pending or, to the knowledge of
the Company, threatened action or proceeding affecting the
Company which purports to affect the legality, validity, binding
effect or enforceability of any of the Loan Documents.
5.07 Regulation U; Use of Proceeds. Following the
application of the proceeds of each Loan, not more than 25% of
the value of the assets of the Company which are subject to any
arrangement with the Agent or any Bank (herein or otherwise)
whereby the Company's or any Subsidiary's right or ability to
sell, pledge or otherwise dispose of assets is in any way
restricted will be Margin Stock. The Company shall not, and
shall not suffer or permit any of its Subsidiaries to, use any
portion of the Loan proceeds, directly or indirectly, to acquire
any securities in connection with any transaction subject to
Section 13 (other than an Investment Transaction) or Section 14
of the Exchange Act, unless, prior to the time such transaction
becomes subject to such Section 13 or 14, the board of directors
or other applicable governing body of the Person that is the
issuer of such securities has adopted a resolution approving such
transaction and approving a Change in Control with respect to
such Person whereby the Company may acquire control of such
Person. For purposes of this Section 5.07, an "Investment
Transaction" means a transaction subject to Section 13(d), but
not Section 16, of the Exchange Act, provided that in connection
with such transaction the Company or its Subsidiary (as the case
may be) has reported and at all times continues to report to the
SEC that such transaction is undertaken for investment purposes
only and not for any of the purposes specified in clauses 4(a)
through (j), inclusive, of Schedule 13D.
5.08 Investment Company Act. Neither the Company nor any of
its Subsidiaries is an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
5.09 ERISA. The Company is in compliance with all
applicable provisions of ERISA.
5.10 Holding Company. Neither the Company nor any of its
Subsidiaries is a "holding company", or a "subsidiary company" of
a "holding company", or an "affiliate" of a "holding company" or
of a "subsidiary company" of a "holding company", or a "public
utility" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.11 Environmental Condition. Except as disclosed in the
Company's Form 10-K Report for the year ended December 31, 1993
or in the Company's Form 10-Q Report for the quarter ended March
31, 1994, or as further disclosed by the Company to the Banks and
the Agent in writing, the aggregate contingent and non-contingent
liabilities of the Company and its Subsidiaries which are
presently known to any Responsible Officer and reasonably
expected to arise in connection with (a) the requirements of
Environmental Protection Statutes or (b) any obligation or
liability to any Person in connection with any Environmental
matters, including any release or threatened release of any
Hazardous Substance or Hazardous Waste, do not exceed 10% of the
Consolidated Tangible Net Worth of the Company (excluding such
liabilities to the extent covered by insurance if the insurer has
confirmed that such insurance covers such liabilities).
5.12 No Material Adverse Change. Since December 31, 1993,
there has been no material adverse change in the business,
consolidated financial position or consolidated results of
operation of the Company and its Subsidiaries.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or
any Note shall remain unpaid, the Company will unless the
Majority Banks waive compliance in writing:
6.01 Compliance with Laws Etc. Comply and cause each of its
Subsidiaries to comply in all material respects with all
applicable laws, rules, regulations and orders, including
compliance with the requirements of ERISA and Environmental
Protection Statutes and the payment and discharge before
delinquency of all taxes, assessments and governmental charges or
levies imposed upon the Company or any of its Subsidiaries or any
property of the Company or any of its Subsidiaries, in each case
to the extent that the failure to comply, pay or discharge would
have a material adverse effect on the Company and its
Subsidiaries taken as a whole; provided that neither the Company
nor any Subsidiary of the Company shall be required to pay any
such tax, assessment, charge or levy or comply with any
requirement which is being contested in good faith and adequately
reserved against to the extent required by GAAP.
6.02 Reporting Requirements. Furnish to each of the Banks:
(a) promptly after the filing or sending thereof and
in any event not later than 115 days after the end of each fiscal
year, a copy of the Company's annual report which it sends to its
public security holders and a copy of the Company's report on
Form 10-K which the Company files with the SEC for such year
together with a duly-completed Compliance Certificate;
(b) promptly after the filing thereof, and in any
event within 60 days after the end of each of the first three
fiscal quarters during each fiscal year, the Company's report on
Form 10-Q which the Company files with the SEC for such quarter
together with a duly completed Compliance Certificate;
(c) promptly, but in any event within five days after
a Responsible Officer of the Company has obtained knowledge
thereof, a notice of each Default or Event of Default, together
with a statement of a Responsible Officer setting forth the
details of such Default or Event of Default and the actions which
the Company has taken and proposes to take with respect thereto;
(d) promptly after the filing thereof, copies of each
of the reports on Form 8-K and each Schedule 13D (and any
amendment thereto), if any, which the Company files with the SEC;
(e) no later than five Business Days after the date of
promulgation thereof by such rating agency, notice of any change
in the Applicable Rating by S&P or Moody's that would change the
Applicable Margin or Applicable Fee Amount;
(f) promptly upon any Responsible Offer becoming aware
thereof, notice of any transaction or event that is, or is
reasonably anticipated to result in, a Specified Transaction; and
(g) such other information respecting the condition or
operations, financial or otherwise, of the Company and its
Subsidiaries as any Bank through the Agent may from time to time
reasonably request.
6.03 Use of Proceeds. Use the proceeds of the Loans for
general corporate purposes, including to backstop the Company's
commercial paper program.
6.04 Maintenance of Insurance. Maintain, and cause each of
its Restricted Subsidiaries to maintain, insurance with
responsible and reputable insurance companies or associations in
such amounts and covering such risks as are usually carried by
companies engaged in similar businesses and owning similar
properties in the same general areas in which the Company and its
Restricted Subsidiaries operate, provided that the Company and
its Restricted Subsidiaries may self-insure to the extent and in
the manner normal for companies of like size, type and financial
condition. The Company may maintain its Restricted Subsidiaries'
insurance on behalf of them.
6.05 Corporate Existence Etc. Preserve and maintain, and
cause each of its Restricted Subsidiaries to preserve and
maintain, its corporate existence, rights and franchises;
provided, however, that no Event of Default shall arise under
this Section 6.05 as a result of any Specified Transaction if any
prepayment required under Section 2.08(c) is timely made, or as a
result of the termination of existence, rights and franchises of
any Restricted Subsidiary pursuant to any merger or consolidation
to which such Restricted Subsidiary is a party, and provided,
further, that the Company or any Restricted Subsidiary shall not
be required to preserve any right or franchise if the Company or
such Restricted Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of the business of
the Company or such Restricted Subsidiary, as the case may be,
and that the loss thereof is not disadvantageous in any material
respect to the Banks.
6.06 Visitation Rights. From time to time and so long as
any visit or inspection will not unreasonably interfere with the
operations of the Company and its Restricted Subsidiaries, upon
reasonable notice, permit the Agent and any Bank or any agents or
representatives thereof to examine the financial records and
books of account of, and visit and inspect the properties of, the
Company and any such Restricted Subsidiary, and to discuss the
affairs, finances and accounts of the Company and any such
Restricted Subsidiary with any of their respective officers or
directors.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or
any Note shall remain unpaid, the Company will not, unless the
Majority Banks waive compliance in writing:
7.01 Consolidated Tangible Net Worth. Have Consolidated
Tangible Net Worth of less than $2,000,000,000.
7.02 Leverage Ratio. Permit, as of the last day of any
fiscal quarter, its ratio of (a) the aggregate outstanding
principal amount of Total Senior Debt to (b) Total Capitalization
to be greater than 50%.
7.03 Liens. Fail to perform and observe any term, covenant
or agreement contained in Section 3.7 of the Senior Debt
Indenture (as modified for purposes hereof as set forth in the
proviso to the next sentence hereof). For the purposes of this
Section 7.03, Section 3.7 and the definitions of all terms
defined in the Senior Debt Indenture and used in or otherwise
applicable to such Section 3.7 are hereby incorporated in this
Agreement by reference as if such provisions and definitions were
set forth in full herein; provided, however, that solely for the
purposes of this Section 7.03 the word "Securities" as used in
the Senior Debt Indenture shall mean the Notes, the phrase "this
Section 3.7" used therein shall mean this Section 7.03, and the
word "Issuer" used therein shall mean the Company.
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Event of Default. Any of the following shall
constitute an "Event of Default":
(a) Non-Payment. The Company fails to pay, (i) any
principal on any Note when such principal is due and payable,
(ii) any interest on any Note within five days after such
interest becomes due and payable, or (iii) the commitment fee set
forth in Section 2.11 within 15 days after such commitment fee
becomes due and payable; or
(b) Representation or Warranty. Any representation or
warranty made by the Company or any Responsible Officer
(including representations and warranties deemed made pursuant to
Section 4.02 hereof) under or in connection with any Loan
Document is incorrect in any material respect on or as of the
date made or deemed made; or
(c) Specific Defaults. The Company fails to perform
or observe any term, covenant or agreement contained in any of
Sections 6.02(c), 6.02(e), 6.02(f), 7.01, 7.02 or 7.03; or
(d) Other Defaults. The Company fails to perform or
observe any other term or covenant contained in this Agreement,
and such default shall continue unremedied for a period of 30
days after written notice thereof is given to the Company by the
Agent at the request of any Bank; or
(e) Cross-Default. The Company or any Restricted
Subsidiary (i) fails to make any payment of principal of or
premium or interest on (A) any Debt outstanding under the 364-Day
Credit Agreement, or (B) any Debt (other than Debt described in
clause (iv) of the definition of Debt) which is outstanding in
the principal amount of at least $50,000,000 in the aggregate of
the Company or such Restricted Subsidiary (as the case may be),
when such payment in respect of Debt described in clause (A) or
(B) becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise), and
such failure continues after the applicable grace or notice
period, if any, in effect on the date of such failure, event or
condition in the agreement or instrument relating to any such
Debt; or (ii) fails to perform or observe any other condition or
covenant, or any other event shall occur or condition exist,
under any agreement or instrument relating to any such Debt
(other than Debt described in clause (iv) of the definition of
Debt) and such failure continues after the applicable grace or
notice period in effect on the date of such failure, event or
condition, if any, if the effect of such failure, event or
condition is to cause any such Debt to be declared to be due and
payable prior to its stated maturity; or
(f) Insolvency; Voluntary Proceedings. The Company or
any Restricted Subsidiary (i) generally fails to pay, or admits
in writing its inability to pay, its debts as they become due,
subject to applicable grace periods, if any, whether at stated
maturity or otherwise; (ii) commences any Insolvency Proceeding
with respect to itself; or (iii) takes any corporate action to
effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. Any involuntary
Insolvency Proceeding is commenced or filed against the Company
or any Restricted Subsidiary, and such Involuntary Proceeding is
not released, vacated or stayed within 60 days after the
commencement or filing thereof; or
(h) Judgments. Any judgment or order for the payment
of money in excess of $50,000,000 shall be rendered against the
Company and remain unsatisfied and either (i) enforcement
proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 60
consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect.
8.02 Remedies. If any Event of Default shall occur and be
continuing, the Agent shall, at the request of, or may, with the
consent of, the Majority Banks, (a) by notice to the Company,
declare the obligation of each Bank to make Loans be terminated,
whereupon such obligations shall be terminated; (b) by notice to
the Company, declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon, and
all other amounts owing or payable hereunder or under any other
Loan Document, to be immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived by the Company; and (c)
exercise on behalf of itself and the Banks all other rights and
remedies available to it and the Banks under the Loan Documents
or applicable law; provided, however, that upon the occurrence of
any event specified in subsection (f) or (g) of Section 8.01 (in
the case of subsection (g) upon the expiration of the 60-day
period mentioned therein), the obligation of each Bank to make
Loans shall automatically terminate and the unpaid principal
amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable
without further act of the Agent or any Bank.
8.03 Rights Not Exclusive. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies
provided by law or in equity.
ARTICLE IX
THE AGENT
9.01 Appointment and Authorization. Each Bank hereby
irrevocably appoints, designates and authorizes the Agent to take
such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms
of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement
or in any other Loan Document, the Agent shall not have any
duties or responsibilities, except those expressly set forth
herein, nor shall the Agent have or be deemed to have any
fiduciary relationship with any Bank, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or
otherwise exist against the Agent.
9.02 Delegation of Duties. The Agent may execute any of its
duties under this Agreement or any other Loan Document by or
through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining
to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it
selects with reasonable care.
9.03 Liability of Agent. None of the Agent-Related Persons
shall (i) be liable for any action taken or omitted to be taken
by any of them under or in connection with this Agreement or any
other Loan Document or the transactions contemplated hereby
(except for its own gross negligence or willful misconduct), or
(ii) be responsible in any manner to any of the Banks for any
recital, statement, representation or warranty made by the
Company or any Subsidiary or Affiliate of the Company, or any
officer thereof, contained in this Agreement or in any other Loan
Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent
under or in connection with, this Agreement or any other Loan
Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of the Company or any other party to
any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any
obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in,
or conditions of, this Agreement or any other Loan Document, or
to inspect the properties, books or records of the Company or any
of the Company's Subsidiaries or Affiliates.
9.04 Reliance by Agent. (a) The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, statement or
other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal
counsel (including counsel to the Company), independent
accountants and other experts selected by the Agent. The Agent
shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it
shall first receive such advice or concurrence of the Majority
Banks as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Banks against any
and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Majority
Banks or all of the Banks if required by Section 10.01 and such
request and any action taken or failure to act pursuant thereto
shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the
conditions specified in Section 4.01, each Bank that has executed
this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter
either sent by the Agent to such Bank for consent, approval,
acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the
Bank.
9.05 Notice of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or
Event of Default, except with respect to defaults in the payment
of principal, interest and fees required to be paid to the Agent
for the account of the Banks, unless the Agent shall have
received written notice from a Bank or the Company referring to
this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". The Agent
will notify the Banks of its receipt of any such notice. The
Agent shall take such action with respect to such Default or
Event of Default as may be requested by the Majority Banks in
accordance with Article VIII; provided, however, that unless and
until the Agent has received any such request, the Agent may (but
shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the
Banks.
9.06 Credit Decision. Each Bank acknowledges that none of
the Agent-Related Persons has made any representation or warranty
to it, and that no act by the Agent hereinafter taken, including
any review of the affairs of the Company and its Subsidiaries,
shall be deemed to constitute any representation or warranty by
any Agent-Related Person to any Bank. Each Bank represents to
the Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal
of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of
the Company and its Subsidiaries, and all applicable bank
regulatory laws relating to the transactions contemplated hereby,
and made its own decision to enter into this Agreement and to
extend credit to the Company hereunder. Each Bank also
represents that it will, independently and without reliance upon
any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking
or not taking action under this Agreement and the other Loan
Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of
the Company. Except for notices, reports and other documents
expressly herein required to be furnished to the Banks by the
Agent, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning
the business, prospects, operations, property, financial and
other condition or creditworthiness of the Company which may come
into the possession of any of the Agent-Related Persons.
9.07 Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify
upon demand the Agent-Related Persons (to the extent not
reimbursed by or on behalf of the Company and without limiting
the obligation of the Company to do so), pro rata, from and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Agent-Related
Persons in any way relating to or arising out of the Loan
Documents or any action taken or omitted by an Agent-Related
Person, provided, however, that no Bank shall be liable for the
payment to the Agent-Related Persons of any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from
such Person's gross negligence or willful misconduct. IT IS THE
INTENTION OF THE BANKS THAT EACH AGENT-RELATED PERSON SHALL, TO
THE EXTENT PROVIDED IN THIS SECTION 9.07, BE INDEMNIFIED FOR ITS
ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE. Without limitation of
the foregoing, each Bank shall reimburse the Agent upon demand
for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Agent in connection
with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice
in respect of rights or responsibilities under, this Agreement,
any other Loan Document, or any document contemplated by or
referred to herein, to the extent that the Agent is not
reimbursed for such expenses by or on behalf of the Company. The
undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of the
Agent.
9.08 Agent in Individual Capacity. The Bank serving as
Agent and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity
interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the
Company and its Subsidiaries and Affiliates as though the Bank
serving as Agent were not the Agent hereunder and without notice
to or consent of the Banks. The Banks acknowledge that, pursuant
to such activities, the Bank serving as Agent or its Affiliates
may receive information regarding the Company or its Affiliates
(including information that may be subject to confidentiality
obligations in favor of the Company or such Subsidiary) and
acknowledge that the Agent shall be under no obligation to
provide such information to them. With respect to its Loans, the
Bank serving as Agent shall have the same rights and powers under
this Agreement as any other Bank and may exercise the same as
though it were not the Agent, and the terms "Bank" and "Banks"
include the Bank serving as Agent in its individual capacity.
9.09 Successor Agent. The Agent may, and at the request of
the Majority Banks shall, resign as Agent upon 30 days' prior
written notice to the Banks and the Company. If the Agent
resigns under this Agreement, the Majority Banks shall appoint
from among the Banks a successor agent for the Banks which
successor agent shall be subject to approval by the Company. If
no successor agent is appointed prior to the effective date of
the resignation of the Agent, the Agent may appoint, after
consulting with the Banks and the Company, a successor agent from
among the Banks. Upon the acceptance of its appointment as
successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Agent and the
term "Agent" shall mean such successor agent and the retiring
Agent's appointment, powers and duties as Agent shall be
terminated. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article IX and Sections 3.01, 10.04
and 10.05 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this
Agreement. If no successor agent has accepted appointment as
Agent by the date which is 30 days following a retiring Agent's
notice of resignation, the retiring Agent's resignation shall
nevertheless thereupon become effective and the Banks shall
perform all of the duties of the Agent hereunder and under any
other Loan Document until such time, if any, as the Majority
Banks appoint a successor agent as provided for above.
9.10 Withholding Tax. (a) If any Bank is a foreign
corporation, foreign partnership or foreign trust within the
meaning of the Code and such Bank claims exemption from, or a
reduction of, United States withholding tax under Sections 1441
or 1442 of the Code, such Bank agrees with and in favor of the
Agent, to deliver to the Agent:
(i) if such Bank claims an exemption from, or a
reduction of, withholding tax under a United States tax
treaty, two properly completed and executed IRS Forms 1001
and W-8 at least 30 days before the payment of any interest
is due in the first calendar year and at least 30 days
before the payment of any interest in each third succeeding
calendar year during which interest may be paid under this
Agreement;
(ii) if such Bank claims that interest paid under
this Agreement is exempt from United States withholding tax
because it is effectively connected with a United States
trade or business of such Bank, two properly completed and
executed copies of IRS Form 4224 at least 30 days before the
payment of any interest is due in the first taxable year of
such Bank and in each succeeding taxable year of such Bank
during which interest may be paid under this Agreement; and
(iii) such other form or forms as may be required
under the Code or other laws of the United States as a
condition to exemption from, or reduction of, United States
withholding tax.
The Agent shall deliver one copy of each such form to
the Company. Such Bank agrees to promptly notify the Agent of
any change in circumstances which would modify or render invalid
any claimed exemption or reduction.
(b) If any Bank claims exemption from, or reduction
of, withholding tax under a United States tax treaty by providing
IRS Form 1001 and such Bank sells, assigns, grants a
participation in, or otherwise transfers all or part of the
Obligations of the Company to such Bank, such Bank agrees to
notify the Agent (which in turn shall notify the Company) of the
percentage amount in which it is no longer the beneficial owner
of Obligations of the Company to such Bank. To the extent of
such percentage amount, the Agent (and the Company) will treat
such Bank's IRS Form 1001 as no longer valid.
(c) If any Bank claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Agent sells,
assigns, grants a participation in, or otherwise transfers all or
part of the Obligations of the Company to such Bank, such Bank
agrees to notify the Agent (which in turn shall notify the
Company) of the percentage amount in which it is no longer the
beneficial owner of Obligations of the Company to such Bank. To
the extent of such percentage amount, the Agent (and the Company)
will treat such Bank's Form 4224 as no longer valid.
(d) If any Bank is entitled to a reduction in the
applicable withholding tax, the Agent may withhold from any
interest payment to such Bank an amount equivalent to the
applicable withholding tax after taking into account such
reduction. If the forms or other documentation required by
subsection (a) of this Section are not delivered to the Agent,
then the Agent may withhold from any interest payment to such
Bank not providing such forms or other documentation an amount
equivalent to the applicable withholding tax (without taking into
account such reduction).
(e) If the IRS or any other Governmental Authority of
the United States or other jurisdiction asserts a claim that the
Agent did not properly withhold tax from amounts paid to or for
the account of any Bank (because the appropriate form was not
delivered, was not properly executed, or because such Bank failed
to notify the Agent of a change in circumstances which rendered
the exemption from, or reduction of, withholding tax ineffective,
or for any other reason) such Bank shall indemnify the Agent
fully for all amounts paid, directly or indirectly, by the Agent
as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts
payable to the Agent under this Section, together with all costs
and expenses (including Attorney Costs). The obligation of the
Banks under this subsection shall survive the payment of all
Obligations and the resignation or replacement of the Agent.
9.11 Co-Agent. The Bank identified on the facing page and
signature page of this Agreement as "co-agent" shall have no
right, power, obligation, liability, responsibility or duty under
this Agreement other than those applicable to all Banks as such.
Each Bank acknowledges that it has not relied, and will not rely,
on the Bank so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE X
MISCELLANEOUS
10.01 Amendments and Waivers. No amendment or waiver of
any provision of this Agreement or any other Loan Document, and
no consent with respect to any departure by the Company
therefrom, shall be effective unless the same shall be in writing
and signed by the Majority Banks and acknowledged by the Agent,
and then such waiver shall be effective only in the specific
instance and for the specific purpose for which given; provided,
however, that no such waiver, amendment, or consent shall, unless
in writing and signed by all the Banks and acknowledged by the
Agent, do any of the following:
(a) increase or extend the Commitment of any Bank
(except as provided in Section 2.05) or reinstate any Commitment
terminated pursuant to Section 8.02 or subsections (b) or (c) of
Section 2.08;
(b) postpone or delay any date fixed for any payment
of principal, interest or fees due to the Banks (or any of them)
hereunder or under any Loan Document;
(c) reduce the principal of, or the rate of interest
specified herein on any Loan, or any fees payable hereunder or
under any other Loan Document;
(d) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Notes which is
required for the Banks or any of them to take any action
hereunder; or
(e) amend this Section or any provision herein
providing for consent or other action by all Banks;
and, provided further, that no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to
the Majority Banks or all the Banks, as the case may be, affect
the rights or duties of the Agent under this Agreement or any
other Loan Document.
10.02 Notices. (a) All notices, requests and other
communications shall be in writing (including, unless the context
expressly otherwise provides, by telecopier transmission,
provided that any matter transmitted by telecopier shall be
immediately preceded or confirmed by a telephone call to the
recipient at the number specified on the applicable signature
page hereof), and mailed, telecopied or delivered, to the address
or telecopier number specified for notices on Schedule 10.02; or,
as directed to the Company or the Agent, to such other address as
shall be designated by such party in a written notice to the
other parties, and as directed to any other party, at such other
address as shall be designated by such party in a written notice
to the Company and the Agent.
(b) All such notices, requests and communications
shall be effective, if sent by overnight courier, one Business
Day after delivery to the courier company; if sent by telecopier,
when received in legible form by the receiving telecopier
equipment; if mailed, upon the second Business Day after the date
deposited into the U.S. mail; or if delivered, upon delivery;
provided that (i) notices pursuant to Article II or IX shall not
be effective until actually received by the Agent, and (ii)
telecopied notices received by any party after its normal
business hours (or on a day other than a Business Day) shall be
effective on the next Business Day.
(c) Any agreement of the Agent and the Banks herein
to receive certain notices by telephone or facsimile is solely
for the convenience and at the request of the Company. The Agent
and the Banks shall be entitled to rely on the authority of any
Person purporting to be a Person authorized by the Company to
give such notice and the Agent and the Banks shall not have any
liability to the Company or other Person on account of any action
taken or not taken by the Agent or the Banks in reliance upon
such telephonic or facsimile notice. The obligation of the
Company to repay the Loans shall not be affected in any way or to
any extent by any failure by the Agent and the Banks to receive
written confirmation of any telephonic or facsimile notice or the
receipt by the Agent and the Banks of a confirmation which is at
variance with the terms understood by the Agent and the Banks to
be contained in the telephonic or facsimile notice.
10.03 No Waiver: Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Agent or
any Bank, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege.
10.04 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated
hereby are consummated, pay for all reasonable costs and expenses
incurred by the Agent in connection with the preparation,
delivery, administration and execution of, and any amendment,
supplement, waiver or modification to (in each case, whether or
not consummated), this Agreement, any Loan Document and any other
documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby;
limited, however, in the case of the preparation, execution and
delivery of the Loan Documents, to the reasonable Attorney Costs
of one law firm and, to the extent not duplicative, internal
counsel, for the Agent as more fully provided in a letter
agreement between the Company and the Agent; and
(b) pay or reimburse the Agent and each Bank within
five Business Days after demand for all costs and expenses
(including reasonable Attorney Costs) incurred by them in
connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or
any other Loan Document during the existence of an Event of
Default or after acceleration of the Loans (including in
connection with any "workout" or restructuring regarding the
Loans, and including in any Insolvency Proceeding or appellate
proceeding).
10.05 Indemnity. The Company agrees, to the fullest extent
permitted by law, to indemnify and hold harmless the Agent-
Related Persons, and each Bank and its respective directors,
officers, employees and agents, from and against any and all
claims, damages, liabilities and expenses (including, without
limitation, reasonable Attorney Costs) for which any of them may
become liable or which may be incurred by or asserted against the
Agent-Related Persons, or such Bank or any such director,
officer, employee or agent (other than by another Bank or any
successor or assign of another Bank), in each case in connection
with or arising out of or by reason of any investigation,
litigation, or proceeding, whether or not the Agent or such Bank
or any such director, officer, employee or agent is a party
thereto, arising out of, related to or in connection with any
Loan Document or any transaction in which any proceeds of all or
any part of the Loans are applied, EXPRESSLY INCLUDING ANY SUCH
CLAIM, DAMAGE, LIABILITY OR EXPENSE ARISING OUT OF THE ORDINARY,
SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH INDEMNIFIED PERSON (but
excluding any such claim, damage, liability or expense to the
extent attributable to the gross negligence or willful misconduct
of, or violation of any law or regulation by, any such
indemnified Person).
10.06 Payments Set Aside. To the extent that the Company
makes a payment to the Agent or the Banks, or the Agent or the
Banks exercise their right of set-off, and such payment or the
proceeds of such set-off or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by
the Agent or such Bank in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any
Insolvency Proceeding or otherwise, then (a) to the extent of
such recovery the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such set-off had
not occurred, and (b) each Bank severally agrees to pay to the
Agent upon demand its pro rata or other applicable share of any
amount so recovered from or repaid by the Agent.
10.07 Binding Effect; Assignments; Participations. (a) This
Agreement shall become effective when it shall have been executed
by the Company and the Agent and when the Agent shall have, as to
each Bank, either received a copy (including one transmitted by
telecopier) of a signature page hereof executed by such Bank and
thereafter shall be binding upon and inure to the benefit of and
be enforceable by the Company, the Agent and each Bank and their
respective successors and assignees, subject to Section 10.07(e)
and except that the Company shall not have the right to assign
its rights or obligations hereunder or any interest herein
without the prior written consent of the Banks (other than an
assignment effectuated by operation of law pursuant to a
Specified Transaction).
(b) Each Bank may grant participations to one or more
commercial banks or other Persons, in each case in accordance
with applicable law, in or to all or any part of, the Loans owing
to such Bank and the Note held by such Bank subject to Section
10.07(e), and to the extent of any such participation (unless
otherwise stated therein) the purchaser of such participation
shall, to the fullest extent permitted by law, have the same
rights to payment hereunder and under such Loan and Note as it
would have if it were such Bank hereunder, provided that (x) the
originating Bank's obligations under this Agreement, including,
without limitation, its commitment to make loans to the Company
hereunder, shall remain unchanged, such Bank shall remain solely
responsible for the performance thereof, such Bank shall remain
the holder of any such Note for all purposes under this
Agreement, and the Company, the other Banks 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; (y)
no such participant shall be entitled to receive any greater
payment pursuant to Sections 3.01, 3.03 and 3.05 hereof than such
Bank would have been entitled to receive with respect to the
rights assigned except as a result of circumstances arising after
the date of such participation to the extent that such
circumstances affect other Banks and participants generally; and
(z) no Bank shall grant a participation that conveys to the
participant the right to vote or consent under this Agreement,
other than the right to vote upon or consent to (i) any increase
in the amount of such Bank's Commitment; (ii) any reduction of
the principal amount of, or interest to be paid on, such Bank's
Loan or Note; (iii) any reduction of the Commitment Fee; or (iv)
any postponement of the due date in respect of any amounts owed
to such Bank under any Loan Document.
(c) In accordance with applicable law, any Bank may
assign a portion, in an amount of at least $10,000,000 of its
Commitment (provided such assignment does not result in the
remaining Commitment of the assigning Bank being less than
$20,000,000), together with a ratable portion of its Loans and
other rights and obligations hereunder to an Eligible Assignee,
with the prior written consents of the Agent and (unless there
has occurred and is continuing an Event of Default) the Company,
which consents shall not be unreasonably withheld, subject to
Section 10.07(e). Each such Eligible Assignee to which an
assignment has been made pursuant to this Section 10.07(c) which
is not already a Bank shall become a party to this Agreement as a
Bank by executing and delivering to the Agent an amendment to
this Agreement or a supplemental agreement with the assigning
Bank, which amendment or supplemental agreement shall be in form
and substance reasonably satisfactory to the Agent and shall
(among other matters) specify the CD Lending Office, Domestic
Lending Office and Eurodollar Lending Office of such Eligible
Assignee, provided that, in the case of each such assignment, (i)
at such time the signature pages to this Agreement shall be
deemed to be modified to reflect the Commitments of such assignee
Bank and of the existing Banks, (ii) the Company shall issue new
Notes to such assignee Bank and to the assigning Bank to reflect
the revised Commitments and (iii) the Agent shall receive at the
time of such assignment, from the assigning or assignee Bank, a
non-refundable assignment fee of $2,500. To the extent of any
assignment pursuant to this Section 10.07(c), the assigning Bank
shall be relieved of its obligations hereunder with respect to
its assigned Commitment.
(d) In addition to the assignments and participations
permitted under Section 10.07(b) and (c), any Bank may at any
time create a security interest in, or pledge, all or any portion
of its rights under this Agreement and the Notes held by it in
favor of any Federal Reserve Bank in accordance with Regulation A
of the FRB, and such Federal Reserve Bank may enforce such pledge
or security interest in any manner permitted under applicable
law.
(e) Unless an Event of Default has occurred and is
continuing, no assignments or participations shall result in a
Bank (together with its Affiliates) holding Commitments, or
participations therein, in excess of $100,000,000 without the
prior written consent of the Company.
10.08 Set-off. In addition to any rights and remedies of
the Banks provided by law, if an Event of Default exists or the
Loans have been accelerated, to the fullest extent permitted by
applicable law each Bank is authorized at any time and from time
to time, without prior notice to the Company, any such notice
being waived by the Company to the fullest extent permitted by
law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held
by, and other indebtedness at any time owing by, such Bank to or
for the credit or the account of the Company against any and all
Obligations owing to such Bank, now or hereafter existing,
irrespective of whether or not the Agent or such Bank shall have
made demand under this Agreement or any Loan Document and
although such Obligations may be contingent or unmatured. Each
Bank agrees promptly to notify the Company and the Agent after
any such set-off and application made by such Bank; provided,
however, that the failure to give such notice shall not affect
the validity of such set-off and application.
10.09 Interest. (a) It is the intention of the parties
hereto that the Agent and each Bank shall conform strictly to
usury laws applicable to it, if any. Accordingly, if the
transactions with the Agent or any Bank contemplated hereby would
be usurious under applicable law, if any, then, in that event,
notwithstanding anything to the contrary in this Agreement, the
Notes or any other agreement entered into in connection with this
Agreement or the Notes, it is agreed as follows: (i) the
aggregate of all consideration which constitutes interest under
applicable law that is contracted for, taken, reserved, charged
or received by the Agent or such Bank, as the case may be, under
this Agreement, the Notes or under any other agreement entered
into in connection with this Agreement or the Notes shall under
no circumstances exceed the maximum amount allowed by such
applicable law and any excess shall be cancelled automatically
and, if theretofore paid, shall be refunded by the Agent or such
Bank, as the case may be, to the Company, and (ii) in the event
that the maturity of any Loan or other obligation payable to the
Agent or such Bank, as the case may be, is accelerated or in the
event of any required or permitted prepayment, then such
consideration that constitutes interest under law applicable to
the Agent or such Bank, as the case may be, may never include
more than the maximum amount allowed by such applicable law and
excess interest, if any, to the Agent or such Bank, as the case
may be, provided for in this Agreement or otherwise shall be
cancelled automatically as of the date of such acceleration or
prepayment and, if theretofore paid, shall, at the option of the
Agent or such Bank, as the case may be, be credited by the Agent
or such Bank, as the case may be, on the principal amount of the
obligations owed to the Agent or such Bank, as the case may be,
by the Company or refunded by the Agent or such Bank, as the case
may be, to the Company. To the extent that Article 5069-1.04 of
the Texas Revised Civil Statutes is relevant to any Bank for the
purposes of determining the Highest Lawful Rate, such Bank hereby
elects to determine the applicable rate ceiling under such
Article by the indicated (weekly) rate ceiling from time to time
in effect, subject to such Bank's right to subsequently change
such rate ceiling in accordance with applicable law. Tex. Rev.
Civ. Stat. Ann. art. 5069, ch. 15 (which regulates certain
revolving credit loan accounts and revolving triparty accounts)
shall not apply to this Agreement or the Notes.
(b) In the event that at any time the interest rate
applicable to any Loan made by any Bank would exceed the Highest
Lawful Rate, the rate of interest to accrue on the Loans by such
Bank shall be limited to the Highest Lawful Rate, but shall
accrue, to the extent permitted by law, on the principal amount
of the Loans made by such Bank from time to time outstanding, if
any, at the Highest Lawful Rate allowed by applicable law until
the total amount of interest accrued on the Loans made by such
Bank equals the amount of interest which would have accrued if
the interest rates applicable to the Loans pursuant to Article II
had at all times been in effect. In the event that upon the
final payment of the Loans made by any Bank and termination of
the Commitment of such Bank, the total amount of interest paid to
such Bank hereunder is less than the total amount of interest
which would have accrued if the interest rates applicable to such
Loans pursuant to Article II had at all times been in effect,
then the Company agrees to pay to such Bank, to the extent
permitted by law, an amount equal to the excess of (a) the lesser
of (i) the amount of interest which would have accrued on such
Loans if the Highest Lawful Rate had at all times been in-effect
or (ii) the amount of interest which would have accrued if the
interest rates applicable to such Loans pursuant to Article II
had at all times been in effect over (b) the amount of interest
otherwise accrued on such Loans in accordance with this
Agreement.
10.10 Confidentiality. (a) Each Bank and the Agent
acknowledge that certain confidential and proprietary information
of the Company (the "Information") is a valuable, special, and a
unique asset of the Company. Each Bank and the Agent agree that
they will use the care specified below to keep all Information in
confidence, and will not use any Information except as provided
in this Section, or disclose any portion of the Information to
any third party without the prior written consent of the Company
except as provided in this Section. Each Bank and the Agent
covenant to use the care specified below to not disclose such
Information on behalf of itself, its officers, directors, agents,
employees, and affiliates. Each Bank and the Agent shall use the
same degree of care to protect the confidentiality of all
Information as such Bank or the Agent, as the case may be, uses
to protect its own confidential and proprietary information
(which it does not wish to have published or disseminated).
(b) Information provided by the Company to any Bank
or the Agent, which the Company in good faith regards as
Information hereunder shall be clearly marked by the Company as
"Confidential," "Proprietary," or bear any other appropriate
notice indicating the sensitive nature of the Information. Any
tangible Information not easily markable shall be transmitted by
the Company to such Bank or the Agent under cover of written
letter which clearly identifies the Information and designates it
as confidential "Information". All information conveyed to such
Bank or the Agent orally relating to plans, forecasts, products
or other non-public information shall be deemed confidential
"Information".
(c) If any Bank or the Agent is confronted with legal
action to disclose Information received under this Agreement or
otherwise makes disclosures of confidential information under
clauses (ii), (iii) or (iv) of Section 10.10(e) (other than any
disclosure to a regulatory authority pursuant to an examination
of the books, records or affairs of such Bank or Agent), such
Bank or the Agent, as the case may be, shall (to the extent
permitted by applicable law) promptly notify the Company.
(d) All Information disclosed or furnished under this
Agreement shall remain the property of the Company. At the
Company's request, the Information in tangible form shall be
promptly returned or destroyed, together with all copies thereof
unless such return or destruction is contrary to law, regulation,
legal process, administrative order, or administrative request
having, or deemed to have, the force of law. Upon request, the
appropriate Bank or the Agent, as the case may be, shall provide
written certification of the destruction.
(e) Notwithstanding the foregoing, each Bank and the
Agent may disclose Information (i) as has become generally
available to the public, (ii) as may be required or appropriate
in any report, statement or testimony submitted to any municipal,
state or Federal regulatory body having or claiming to have
jurisdiction over such Bank or to the FRB, or the FDIC or similar
organizations (whether in the United States or elsewhere),
(iii) as may be required or appropriate in response to any
summons or subpoena or in connection with any litigation, (iv) in
order to comply with any law, order, regulation or ruling
applicable to such Bank, (v) to the prospective transferee in
connection with any contemplated transfer of any of the Notes or
any interest therein by such Bank, provided, that such
prospective transferee executes an agreement with the Company or
the transferor containing provisions substantially identical to
those contained in this Section, (vi) to the extent reasonably
required in connection with any litigation or proceeding to which
the Agent, any Bank or their respective Affiliates may be party,
(vii) to such Bank's independent auditors and other professional
advisors, (viii) to the extent reasonably necessary to disclose
in connection with the exercise of any remedy hereunder and under
the Notes, or (ix) as to any Bank, as expressly permitted under
the terms of any other document or agreement regarding
confidentiality to which the Company is party or is deemed party
with such Bank.
10.11 Preservation of Certain Matters. Notwithstanding any
other term or provision hereof to the contrary, any entity
ceasing to be a "Bank" for purposes of this Agreement, by virtue
of any matter or event contemplated by Section 2.06, 2.07, 3.06
or 10.07 shall retain any and all rights arising under Section
10.05, and shall continue to remain responsible to the Agent for
all liabilities under Section 9.07 and Section 9.10 relating to
matters occurring prior to the termination of such entity as a
"Bank."
10.12 Notification of Addresses, Lending Offices Etc. Each
Bank shall notify the Agent in writing of any changes in the
address to which notices to the Bank should be directed, of
addresses of any Lending Office, of payment instructions in
respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably
request.
10.13 Counterparts. This Agreement may be executed in any
number of separate counterparts, each of which, when so executed,
shall be deemed an original, and all of said counterparts taken
together shall be deemed to constitute but one and the same
agreement.
10.14 Severability. The illegality or unenforceability of
any provision of this Agreement or any instrument or agreement
required hereunder shall not in any way affect or impair the
legality or enforceability of the remaining provisions of this
Agreement or any instrument or agreement required hereunder.
10.15 Governing Law; Jurisdiction. (a) THIS AGREEMENT AND
THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE INTERNAL LAW OF THE STATE OF NEW YORK; PROVIDED THAT THE
AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL
LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH OF THE COMPANY, THE AGENT AND THE BANKS
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-
EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE
AGENT AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN
RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE
COMPANY, THE AGENT AND THE BANKS EACH WAIVES PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY NEW YORK LAW.
10.16 ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT AND THE LOAN
DOCUMENTS, AS DEFINED IN THIS AGREEMENT, REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
COMPAQ COMPUTER CORPORATION
By:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By:
Title:
Commitment: $30,000,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By:
Title:
Commitment: $27,000,000 NATIONSBANK TEXAS, N.A., as Co-
Agent and as a Bank
By:
Title:
Commitment: $9,000,000 ABN AMRO BANK N.V.
By:
Title:
By:
Title:
Commitment: $12,000,000 BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By:
Title:
Commitment: $12,000,000 THE BANK OF TOKYO TRUST COMPANY
By:
Title:
Commitment: $9,000,000 BANKERS TRUST COMPANY
By:
Title:
Commitment: $12,000,000 BARCLAYS BANK PLC
By:
Title:
Commitment: $9,000,000 THE CHASE MANHATTAN BANK, N.A.
By:
Title:
Commitment: $12,000,000 CHEMICAL BANK
By:
Title:
Commitment: $12,000,000 CITIBANK, N.A.
By:
Title:
Commitment: $12,000,000 CREDIT LYONNAIS NEW YORK BRANCH
By:
Title:
Commitment: $12,000,000 DEUTSCHE BANK AG
NEW YORK AND/OR CAYMAN ISLANDS
BRANCHES
By:
Title:
By:
Title:
Commitment: $12,000,000 DRESDNER BANK AG
By:
Title:
By:
Title:
Commitment: $9,000,000 FIRST NATIONAL BANK OF BOSTON
By:
Title:
Commitment: $9,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By:
Title:
Commitment: $12,000,000 THE FUJI BANK, LIMITED, HOUSTON
AGENCY
By:
Title:
Commitment: $9,000,000 NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By:
Title:
By:
Title:
NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH
By:
Title:
By:
Title:
Commitment: $15,000,000 ROYAL BANK OF CANADA
By:
Title:
Commitment: $15,000,000 THE SANWA BANK LIMITED,
DALLAS AGENCY
By:
Title:
Commitment: $12,000,000 SHAWMUT BANK, N.A.
By:
Title:
Commitment: $12,000,000 SOCIETE GENERALE, SOUTHWEST AGENCY
By:
Title:
Commitment: $12,000,000 STANDARD CHARTERED BANK
By:
Title:
Commitment: $15,000,000 TORONTO DOMINION (TEXAS), INC.
By:
Title:
EXHIBIT A
NOTICE OF BORROWING
Bank of America National Trust and
Savings Association, as Administrative Agent
Global Agency #5596
1455 Market Street, 12th Floor
San Francisco, CA 94103
Attn: Compaq SAO
[Date]
Ladies and Gentlemen:
This Notice of Borrowing is delivered pursuant to Section
2.03 of the $300,000,000 Revolving Credit Agreement, dated as of
August 1, 1994 (together with all amendments, if any, from time
to time made thereto, the "Credit Agreement"), among Compaq
Computer Corporation, a Delaware corporation (the "Company"),
certain Banks parties thereto and Bank of America National Trust
and Savings Association, as administrative agent for such Banks.
Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the
Credit Agreement.
The Company hereby irrevocably requests a Borrowing under the
Credit Agreement, and in that connection sets forth below the
information relating to such Borrowing (the "Proposed Borrowing")
as required by Section 2.03(a) of the Credit Agreement:
(i) The Borrowing Date of the Proposed Borrowing is
________________, 199___.
(ii) The type of Loans comprising the Proposed Borrowing
is [Base Rate Loans] [Adjusted CD Rate Loans] [LIBOR Loans].
(iii) The aggregate amount of the Proposed Borrowing
is $___________.
*[(iv) The duration of the Interest Period for each
Loan made as part of the Proposed Borrowing is _______
(days) (months).]
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the
date of the Proposed Borrowing:
(A) the representations and warranties contained in
Article V of the Credit Agreement are true and correct on
and as of such Borrowing Date with the same effect as if
made on and as of such Borrowing Date (except to the extent
such representations and warranties expressly refer to an
earlier date, in which case they are true and correct as of
such earlier date); and
(B) no Default or Event of Default exists or shall
result from such Proposed Borrowing.
Very truly yours,
COMPAQ COMPUTER CORPORATION
By:
Name:
Title:
EXHIBIT B
CONVERSION/CONTINUATION NOTICE
Bank of America National Trust and
Savings Association, as Administrative Agent
Global Agency #5596
1455 Market Street, 12th Floor
San Francisco, CA 94103
Attn: Compaq SAO
Ladies and Gentlemen:
This Conversion/Continuation Notice is delivered pursuant to
Section 2.04 of the $300,000,000 Revolving Credit Agreement,
dated as of August 1, 1994 (together with all amendments, if any,
from time to time made thereto, the "Credit Agreement"), among
Compaq Computer Corporation, a Delaware corporation (the
"Company"), certain Banks parties thereto and Bank of America
National Trust and Savings Association, as administrative agent
for such Banks. Unless otherwise defined herein or the context
otherwise requires, terms used herein have the meanings provided
in the Credit Agreement.
The Company hereby requests that on _________ ____, 199__,
(1) $__________ of the presently outstanding principal
amount of the Loans originally made on ___________, 199__
[and $______________ of the presently outstanding principal
amount of the Loans originally made on __________________,
199__],
(2) all presently being maintained as *[Adjusted CD
Rate Loans] [Base Rate Loans] [LIBOR Loans],
(3) be [converted into] [continued as],
(4) **[Adjusted CD Rate Loans having as Interest Period
of ___ days] [LIBOR Loans having an Interest Period of ___
months] [Base Rate Loans].
The Company has caused this Conversion/Continuation Notice to
be executed and delivered this _____ day of _____________, 199__.
COMPAQ COMPUTER CORPORATION
By:
Name:
Title:
EXHIBIT C
COMPLIANCE CERTIFICATE
This Compliance Certificate is delivered pursuant to Section
6.02 of the $300,000,000 Revolving Credit Agreement dated as of
August 1, 1994 (together with all amendments, if any, from time
to time made thereto, the "Credit Agreement") among Compaq
Computer Corporation, a Delaware corporation (the "Company"),
certain Banks parties thereto and Bank of America National Trust
and Savings Association, as administrative agent for such Banks.
Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the
Credit Agreement.
The undersigned certifies, represents and warrants as
follows:
(a) The Consolidated Tangible Net Worth of the
Company as of ___________, 19__ was $________________.
[Insert calculation in reasonable detail]
(b) The Leverage Ratio of the Company is
______________________.
[Insert calculation in reasonable detail]
(c) There exists on the date of this Compliance
Certificate no Default or Event of Default under the
Credit Agreement.
EXECUTED AND DELIVERED this ____ day of ______________,
199__.
COMPAQ COMPUTER CORPORATION
By:
Name:
Title:
EXHIBIT D-1
August 1, 1994
To each of the Banks parties to the
$300,000,000 Revolving Credit Agreement
dated as of August 1, 1994 among
Compaq Computer Corporation, said Banks
and Bank of America National Trust and Savings
Association as Administrative Agent for said Banks,
and to such Administrative Agent
Re: Compaq Computer Corporation Revolving Credit
Agreement
Ladies and Gentlemen:
As General Counsel of Compaq Computer Corporation, a Delaware
corporation (the "Company"), I am familiar with the $300,000,000
Revolving Credit Agreement dated as of August 1, 1994 (the
"Credit Agreement") among the Company, the Banks listed on the
signature pages thereof and Bank of America National Trust and
Savings Association, as administrative agent for such Banks (the
"Agent"). In such capacity, I am also familiar with the
Certificate of Incorporation and Bylaws of the Company and the
corporate records of the Company. This opinion is being
furnished to you pursuant to Section 4.01(d) of the Credit
Agreement. Terms used herein but not defined herein shall have
the same meaning ascribed to such terms in the Credit Agreement.
Before rendering this opinion, I (or other attorneys with the
Company's legal department acting under my direction) have
examined the Credit Agreement and the Loan Documents, and have
examined and relied upon originals or photostatic or certified
copies of such corporate records, certificates of officers of the
Company and of public officials, and such agreements, documents
and instruments, and have made such investigations of law, as I
or such other attorneys have deemed relevant and necessary as the
basis for the opinion hereinafter expressed. In such
examination, I or such other attorneys assumed the genuineness of
all signatures (other than signatures of officers of the Company
on the Loan Documents), the authenticity of all documents
submitted to us as originals, and the conformity to original
documents of all documents submitted to us as photostatic or
certified copies.
On the basis of the foregoing, I am of the opinion that:
1. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware, and has all corporate powers and all
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted, except to the extent failure to obtain such
licenses, authorizations, consents or approvals would not
materially adversely affect the business, consolidated
financial position or consolidated results of operations of
the Company and its Subsidiaries taken as a whole.
2. The execution, delivery and performance by the
Company of the Loan Documents are within the Company's
corporate powers, have been duly authorized by all necessary
corporate action on the part of the Company, and do not
contravene, or constitute a default under, (a) the
Certificate of Incorporation or Bylaws of the Company, or
(b) any contractual restriction contained in any material
(meaning for the purposes of this opinion those creating a
monetary liability of $50,000,000 or more) indenture, loan
or credit agreement, receivables sale or financing
agreement, lease financing agreement, capital lease,
mortgage, security agreement, bond or note, or any guaranty
of any of such obligations to which the Company is a party,
or, to my knowledge, any other agreement or instrument to
which the Company is a party or (c) any judgment,
injunction, order or decree known to me to be binding upon
the Company. The execution, delivery and performance by the
Company of the Loan Documents will not result in the
creation or imposition of any lien, security interest or
other charge or encumbrance on any asset of the Company.
The Credit Agreement and the Notes have been duly executed
and delivered by the Company.
3. Except as disclosed in the Company's Form 10-K for
the year ended December 31, 1993, or the Company's Form 10-Q
for the quarter ended March 31, 1994, there is no action,
suit or proceeding pending or, to my knowledge, threatened
against the Company or any of its Subsidiaries before any
court or arbitrator or any governmental agency, in which
there is a reasonable possibility of an adverse decision
which could materially adversely affect the consolidated
financial condition or operations of the Company and its
Subsidiaries taken as a whole or which in any manner draws
into question the validity of the Credit Agreement or any
other Loan Document.
4. Neither the Company nor any Subsidiary is an
"investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended.
5. Neither the Company nor any Subsidiary is a
"holding company", a "subsidiary company" of a "holding
company", an "affiliate" of a "holding company" or an
"affiliate" of a "subsidiary company" of a "holding
company", in each case as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
The opinions set forth above are subject to the following
qualifications:
1. In rendering the opinions expressed in paragraph 2
above, neither I nor any other attorney acting under my
direction have made any examination of any accounting or
financial matters related to financial covenants contained
in certain documents to which the Company may be subject,
and I express no opinion with respect thereto.
2. This opinion is limited in all respects to the
laws of the State of Texas and the General Corporation Law
of the State of Delaware and Federal law.
3. In rendering the opinion expressed in paragraph 3
above, I [(or the other attorneys acting under my
direction)] have only reviewed the files and records of the
Company and its Subsidiaries, and we have consulted with
such senior officers of the Company and its Subsidiaries as
we have deemed necessary.
This opinion is solely for the benefit of the Banks, the
Agent, their respective successors, assigns and participants and
may not be relied upon in connection with any other transaction
or by any other person; provided, however, that Vinson & Elkins
L.L.P. may rely on certain provisions of this opinion to the
extent stated in its opinion for the purposes of rendering its
opinion pursuant to Section 4.01(d) of the Credit Agreement.
Very truly yours,
Wilson B. Fargo
EXHIBIT D-2
August 1, 1994
To each of the Banks parties to the
$300,000,000 Revolving Credit Agreement
dated as of August 1, 1994 among
Compaq Computer Corporation, said Banks
and Bank of America National Trust and
Savings Association, as Administrative Agent
for such Banks, and Nationsbank of Texas,
National Association, as Co-Agent for such
Banks and to such Agents
Re: Compaq Computer Corporation
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
4.01(d) of the $300,000,000 Revolving Credit Agreement, dated as
of August 1, 1994 (the "Credit Agreement"), among Compaq Computer
Corporation (the "Company"), the Banks parties thereto and Bank
of America National Trust and Savings Association, as
Administrative Agent for such Banks, and Nationsbank of Texas,
National Association, as Co-Agent for such Banks. Except as
otherwise defined herein, terms defined in the Credit Agreement
are used herein as therein defined.
We have acted as counsel for the Company in connection
with the preparation, execution, delivery and effectiveness of
the Credit Agreement and the other Loan Documents.
In that connection, we have examined:
(1) The Credit Agreement;
(2) The Notes and other documents furnished
by the Company pursuant to the conditions
precedent set forth in Section 4.01 of the Credit
Agreement; and
(3) Such other materials as we have deemed
necessary to render the opinions provided herein.
In rendering the opinions herein set forth, we have
assumed (i) the due authorization, execution and delivery of each
document referred to in clauses (1) and (2) of the third para
graph of this opinion by all parties to such documents and that
each such document is valid, binding and enforceable (subject to
limitations on enforceability of the types referred to in
paragraphs (a) and (b) below) against the parties thereto other
than the Company, (ii) the legal capacity of natural persons,
(iii) the genuineness of all signatures, (iv) the authenticity of
all documents submitted to us as originals and (v) the conformity
to original documents of all documents submitted to us as copies.
In addition, we have (i) investigated such questions of law and
(ii) relied as to factual matters on such certificates from
officers and representatives of the Company and from public
officials, as we have deemed necessary or appropriate for the
purposes of this opinion.
Based upon the foregoing and upon such investigation as
we have deemed necessary, we are of the following opinion:
No authorization, approval or other action by, and
no notice to or filing with, any governmental authority or
regulatory body is required to be made or obtained by the
Company for the execution, delivery and performance by the
Company of the Credit Agreement and the Notes.
None of the execution, delivery or performance by
the Company of the Credit Agreement and the Notes
contravenes any provision of law or regulation (including,
without limitation, Regulation X issued by the FRB)
applicable to the Company or of Regulation U issued by the
FRB.
The Credit Agreement and the Notes constitute the
legal, valid and binding obligations of the Company en
forceable against the Company in accordance with their
terms.
The opinions set forth above are subject to the following quali
fications:
(a) Our opinion in paragraph 3 above is subject, as to
enforceability, to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law
affecting creditors' rights generally.
(b) Our opinion in paragraph 3 above is subject, as to
enforceability, to the effect of general principles of
equity (regardless of whether considered in a proceeding in
equity or at law), including without limitation, concepts of
materiality, reasonableness, good faith and fair dealing,
and also to the possible unavailability of specific perform
ance or injunctive relief. Such principles of equity are of
general application, and in applying such principles a
court, among other things, might not allow a creditor to
accelerate maturity of a debt upon the occurrence of a
default deemed immaterial or might decline to order the
Company to perform covenants.
(c) We express no opinion with respect to the
enforceability under Texas law of the provisions of the
Credit Agreement and the Notes stating that such documents
shall be governed by, and construed in accordance with, the
laws of the state of New York.
(d) We express no opinion with respect to the
following provisions to the extent that the same are
contained in the Credit Agreement or the Notes: (i)
provisions releasing, exculpating or exempting a party from,
or requiring the indemnification of a party for, liability
for its own action or inaction, to the extent that the same
are inconsistent with public policy, and (ii) provisions
purporting to waive rights to notice, legal defenses, or
other benefits that cannot be waived under applicable law.
In rendering the opinions expressed in paragraphs I, II
and III above, we have relied upon the opinions stated in para
graphs 1, 2 (so far as such paragraph 2 relates to the corporate
powers of, and due authorization of the Loan Documents by, the
Company), 4 and 5 of the opinion, dated today, of the General
Counsel of the Company which is being delivered to you pursuant
to Section 4.01(d) of the Credit Agreement.
We have not been called upon to, and accordingly do
not, express any opinion as to the various state and Federal laws
regulating banks or the conduct of their business (except Regula
tion U issued by the FRB) that may relate to the Loan Documents
or the transactions contemplated thereby. Without limiting the
generality of the foregoing, we express no opinion as to the
effect of the law of any jurisdiction other than the State of
Texas and the State of New York wherein any Bank may be located
or where any enforcement of the Loan Documents may be sought
which limits the rates of interest legally chargeable or
collectible.
This opinion is limited to the laws of the State of
Texas and the State of New York, the General Corporation Law of
the State of Delaware and the Federal law of the United States.
The opinions herein have been furnished at your request
and are solely for your benefit and the benefit of your
respective successors, assigns and participants in connection
with the subject transaction and may not be relied upon by any
other person or by you or any other person in any other context
without the prior written consent of the undersigned.
Very truly yours,
Vinson & Elkins L.L.P.
EXHIBIT E
PROMISSORY NOTE
U.S. $ Dated: August 1, 1994
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 July 31,
1997 the principal sum of U.S.
dollars (U.S. $__________) or, if less, the aggregate unpaid
principal amount of the Loans (as defined in the $300,000,000
Revolving Credit Agreement dated as of August 1, 1994 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
Revolving Credit Agreement, as amended 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).
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 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 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 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, the indebtedness of the Company
resulting from each Loan owing to the Bank being evidenced by
this 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 Promissory Note shall be governed by, and construed in
accordance with, the internal laws of the State of New York.
COMPAQ COMPUTER CORPORATION
By:
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
Amount of
Amount Principal Unpaid
of Type of Paid or Principal
Notation
Date Loan Loan Prepaid Balance
Made By
<TABLE>
SCHEDULE 10.02
NOTICE ADDRESSES, PAYMENT AND LENDING OFFICES
<CAPTION>
Addresses for Notices Address for Payments
<S> <C> <C>
BANK OF AMERICA NATIONAL Bank of America N.T. & S.A. Bank of America N.T. & S.A.
TRUST 1455 Market Street, 12th (ABA 121-000-358)
AND SAVINGS ASSOCIATION, Floor Attn: Global Agency #5596
as Administrative Agent San Francisco, CA 94103 1850 Gateway Boulevard
Attn: Global Agency #5596 Concord, CA 94520
Facsimile: (415) 622-4894 For credit to account:
No. 12335 14314
With a copy to: Ref: Compaq Computer
Corporation
Bank of America N.T. & S.A.
555 California Street
41st Floor
San Francisco, CA 94104
Attn: Corporate Banking
High Technology
Kevin McMahon
Telephone: (415) 622-8088
Facsimile: (415) 622-
4585/2514
</TABLE>
<TABLE>
<CAPTION>
Bank Commitment Domestic/CD/LIBOR Lending Addresses for Notices
Offices
<S> <C> <C> <C>
BANK OF AMERICA $30,000,000 Bank of America N.T. & Bank of America N.T. & S.A.
NATIONAL TRUST AND S.A. 555 California Street
SAVINGS 1850 Gateway Boulevard 41st Floor
ASSOCIATION, as a Concord, CA 94520 San Francisco, CA 94104
Bank Attn: Corporate Banking
High Technology
Kevin McMahon
Telephone: (415) 622-8088
Facsimile: (415) 622-
4585/2514
ABN AMRO BANK N.V. $9,000,000 ABN AMRO Bank N.V. Credit Matters:
Houston Agency Houston Agency
Three Riverway, Suite 1600 ABN AMRO Bank N.V.
Houston, TX 77056 Houston Agency
Attn: Michael N. Oaks Three Riverway, Suite 1600
Telephone: (713) 964-3356 Houston, TX 77056
Facsimile: (713) 629-7533 Attn: Michael N. Oaks
Telephone: (713) 964-3356
Facsimile: (713) 629-7533
Operations/Administration:
ABN AMRO BANK N.V.
Houston Agency
Three Riverway, Suite 1600
Houston, TX 77056
Attn: Patricia Baker
Telephone: (713) 964-3331
Facsimile: (713) 629-7533
THE BANK OF TOKYO $12,000,000 The Bank of Tokyo Trust Credit Matters:
TRUST COMPANY Company
1251 Avenue of the The Bank of Tokyo Trust
Americas Company
12th Floor 1251 Avenue of the Americas
New York, NY 10116-3138 12th Floor
Attn: Rolando Uy New York, NY 10116-3138
Telephone: (212) 766-5461 Attn: Elizabeth Tocchini
Facsimile: (212) 732-1678 Telephone: (212) 782-4319
Facsimile: (212) 782-6440
THE BANK OF TOKYO Operations/Administration:
TRUST COMPANY
(Continued) The Bank of Tokyo Trust
Company
1251 Avenue of the Americas
New York, NY 10116-3138
Attn: Rolando Uy
Telephone: (212) 766-5461
Facsimile: (212) 732-1678
BANQUE NATIONALE $12,000,000 Banque Nationale de Paris Credit Matters:
DE PARIS Houston Agency
Houston Agency 333 Clay Street Banque Nationale de Paris
Suite 3400 Houston Agency
Houston, TX 77002 333 Clay Street
Attn: John L. Stacy Suite 3400
Telephone: (713) 951-1222 Houston, TX 77002
Facsimile: (713) 659-1414 Attn: John L. Stacy
Telephone: (713) 951-1222
Facsimile: (713) 659-1414
Operations/Administration:
Banque Nationale de Paris
Houston Agency
333 Clay Street
Suite 3400
Houston, TX 77002
Attn: Donna Rose/Josie
Gonzalez
Telephone: (713) 951-
1240/1239
Facsimile: (713) 659-1414
BANKERS TRUST $9,000,000 Bankers Trust Company Credit Matters:
COMPANY P.O. Box 318
Church Street Station Bankers Trust Company
New York, NY 10008-0318 P.O. Box 318
Attn: Virginia Sermier Church Street Station
M.D. New York, NY 10008-0318
Telephone: (212) 250-5298 Attn: Virginia Sermier
Facsimile: (212) 250-7478 M.D.
Telephone: (212) 250-5298
Facsimile: (212) 250-7478
BANKERS TRUST Operations/Administration:
COMPANY
(Continued) Bankers Trust Company
P.O. Box 318
Church Street Station
New York, NY 10008-0318
Attn: Tom Alpoyanis
Telephone: (212) 250-7345
Facsimile: (212) 250-
7351
BARCLAYS BANK PLC $12,000,000 Barclays Bank Plc Barclays Bank Plc
222 Broadway, 11th Floor 222 Broadway, 11th Floor
New York, NY 10038 New York, NY 10038
Attn: Clarke Moody Attn: Clarke Moody
Telephone: (212) 412-2584 Telephone: (212) 412-2584
Facsimile: (212) 412-7580 Facsimile: (212) 412-7580
THE CHASE $9,000,000 The Chase Manhattan Bank The Chase Manhattan Bank
MANHATTAN BANK N.A. N.A.
N.A. One Chase Manhattan Plaza One Chase Manhattan Plaza
5th Floor 5th Floor
New York, NY 10081 New York, NY 10081
Attn: Nina Smith Attn: Nina Smith
Managing Director Managing Director
Telephone: (212) 552-1043 Telephone: (212) 552-1043
Facsimile: (212) 552-6731 Facsimile: (212) 552-6731
Operations/Administration:
The Chase Manhattan Bank
N.A.
One Chase Plaza
5th Floor
New York, NY 10081
Attn: Elaine Augustine
Asst. Treasurer
Telephone: (212) 552-6549
Facsimile: (212) 552-6731
CHEMICAL BANK $12,000,000 Chemical Bank Chemical Bank
270 Park Avenue 270 Park Avenue
New York, NY 10017 New York, NY 10017
Attn: Edmond DeForest Attn: Edmond DeForest
Telephone: (212) 270-9627 Telephone: (212) 270-9627
Facsimile: (212) 270-2112 Facsimile: (212) 270-2112
Operations/Administration:
Chemical Bank
270 Park Avenue
New York, NY 10017
Attn: Carmen Fulton
Operations Officer
Telephone: (212) 270-6745
Facsimile: (212) 270-3942
CITIBANK, N.A. $12,000,000 Citibank, N.A. Credit Matters:
399 Park Avenue
4th Floor, Zone 17 Citibank, N.A.
New York, NY 10043 399 Park Avenue
Attn: James M. Walsh 4th Floor, Zone 17
Telephone: (212) 559-7538 New York, NY 10043
Facsimile: (212) 593-0054 Attn: James M. Walsh
Telephone: (212) 559-7538
Facsimile: (212) 593-0054
Operations/Administration:
Citibank, N.A.
399 Park Avenue
New York, NY 10043
Attn: Sophie Tetenes
Telephone: (212) 559-5916
Facsimile: (212) 826-6214
CREDIT LYONNAIS $12,000,000 Credit Lyonnais Credit Matters:
New York Branch New York Branch
c/o Credit Lyonnais Dallas Credit Lyonnais
Lincoln Plaza New York Branch
500 N. Akard, Suite 3210 c/o Credit Lyonnais Dallas
Dallas, TX 75201 Lincoln Plaza
Attn: Cliff Hoover 500 N. Akard, Suite 3210
Vice President Dallas, TX 75201
Telephone: (214) 954-3500 Attn: Cliff Hoover
Facsimile: (214) 954-3312 Vice President
Telephone: (214) 954-3500
Facsimile: (214) 954-3312
Operations/Administration:
Credit Lyonnais
New York Branch
c/o Credit Lyonnais Dallas
Lincoln Plaza
500 N. Akard Street
Suite 3210
Dallas, TX 75201
Attn: Judy Gordon
Telephone: (214) 954-3500
Facsimile: (214) 954-3312
DEUTSCHE BANK AG $12,000,000 Deutsche Bank AG Credit Matters:
New York and/or New York Branch
Cayman Island 31 West 52nd Street Deutsche Bank AG
Branches 24th Floor New York Branch
New York, NY 10019 31 West 52nd Street
Attn: Gregory M. Hill 24th Floor
Telephone: (212) 474-8240 New York, NY 10019
Facsimile: (212) 474-8212 Attn: Jeffrey N. Weiser
Telephone: (212) 474-8233
Facsimile: (212) 474-8212
Operations/Administration:
Deutsche Bank AG
New York Branch
31 West 52nd Street
24th Floor
New York, NY 10019
Attn: Gregory M. Hill
Telephone: (212) 474-8240
Facsimile: (212) 474-8212
DRESDNER BANK AG $12,000,000 Dresdner Bank AG Credit Matters:
New York Branch 75 Wall Street, 30th Floor
and New York, NY 10005-2889 Dresdner Bank AG
Grand Cayman Attn: Lora Lam 75 Wall Street, 30th Floor
Branch Telephone: (212) 574-0288 New York, NY 10005-2889
Facsimile: (212) 574-0130 Attn: Craig Erickson
Telephone: (212) 574-0183
Facsimile: (212) 574-0130
Operations/Administration:
Dresdner Bank AG
75 Wall Street, 30th Floor
New York, NY 10005-2889
Attn: Lora Lam
Telephone: (212) 574-0288
Facsimile: (212) 574-0130
THE FIRST NATIONAL $9,000,000 The First National Bank Credit Matters:
BANK OF BOSTON of Boston
100 Federal Street The First National Bank
Boston, MA 02110 of Boston
Telephone: (617) 467-2286 100 Federal Street
Facsimile: (617) 467-2276 Boston, MA 02110
Attn: Elizabeth M. Passela
Telephone: (617) 434-5542
Facsimile: (617) 434-0819
Operations/Administration:
The First National Bank
of Boston
100 Federal Street
Boston, MA 02110
Attn: Mary Noonan
Telephone: (617) 434-7814
Facsimile: (617) 434-0819
THE FIRST NATIONAL $9,000,000 The First National Bank Credit Matters:
BANK OF CHICAGO of Chicago
One First National Plaza The First National Bank
Suite 0088 of Chicago
Chicago, IL 60670-0088 One First National Plaza
Suite 0088
Chicago, IL 60670-0088
Attn: Cory Olson
Telephone: (312) 732-1706
Facsimile: (312) 732-1117
Operations/Administration:
The First National Bank
of Chicago
One First National Plaza
Suite 0088
Chicago, IL 60670-0088
Attn: Dennis Degen/Colleen
Muff
Telephone: (312) 732-9757
Facsimile: (312) 732-5161
THE FUJI BANK, $12,000,000 The Fuji Bank, Limited Credit Matters:
LIMITED Houston Agency
Houston Agency Two Houston Center The Fuji Bank, Limited
909 Fannin Street, Suite Houston Agency
2800 Two Houston Center, Suite
Houston, TX 77010 2800
Attn: Jenny Lin 909 Fannin Street
Telephone: (713) 650-7821 Houston, TX 77010
Facsimile: (713) 759-0048 Attn: Mark F. Polasek
Telephone: (713) 650-7863
Facsimile: (713) 759-0048
Operations/Administration:
The Fuji Bank, Limited
Houston Agency
Two Houston Center, Suite
2800
909 Fannin Street
Houston, TX 77010
Attn: Jenny Lin
Telephone: (713) 650-7821
Facsimile: (713) 759-0048
NATIONSBANK TEXAS, $27,000,000 NationsBank Texas, N.A. Credit Matters:
N.A., as Co-Agent 901 Main Street, 67th
and as a Bank Floor NationsBank Texas, N.A.
Dallas, TX 75202 700 Louisiana Street
Attn: Geri Lewis 8th Floor
Telephone: (214) 508-0592 Houston, TX 77002
Facsimile: (214) 508-0944 Attn: Forest Scott
Singhoff
Senior Vice
President
Telephone: (713) 247-6961
Facsimile: (713) 247-6719
Operations/Administration:
NationsBank Texas, N.A.
901 Main Street, 67th Floor
Dallas, TX 75202
Attn: Geri Lewis
Telephone: (214) 508-0592
Facsimile: (214) 508-0944
NATIONAL $9,000,000 Domestic/CD Lending Credit Matters:
WESTMINSTER BANK Offices:
PLC, New York National Westminster Bank
Branch and Nassau National Westminster Bank Plc
Branch Plc Texas Commerce Tower-6070
New York Branch 600 Travis Street
175 Water Street, 19th Houston, TX 77002
Floor Attn: Steve J. Krakoski
New York, NY 10038 Telephone: (713) 221-2402
Facsimile: (713) 221-2430
LIBOR Lending Office Operations/Administration:
National Westminster Bank National Westminster Bank
Plc Plc
Nassau Branch 175 Water Street, 19th
175 Water Street, 19th Floor
Floor New York, NY 10038
New York, NY 10038 Attn: Robert Passarello
Telephone: (212) 602-4149
Facsimile: (212) 602-4118
ROYAL BANK OF $15,000,000 Royal Bank of Canada Credit Matters:
CANADA Pierrepont Plaza
300 Cadman Plaza West Royal Bank of Canada
Brooklyn, NY 11201-2701 600 Wilshire Blvd., Suite
800
Los Angeles, CA 90017
Attn: Michael A. Cole
Robert K. Mimaki
Telephone: (213) 955-
5328/5346
Facsimile: (213) 955-5350
Operations/Administration:
Royal Bank of Canada
Pierrepont Plaza
300 Cadman Plaza West
Brooklyn, NY 11201-2701
Attn: Linda Swanston
Loans Administration
Telephone: (212) 868-7170
Facsimile: (212) 522-6292
THE SANWA BANK $15,000,000 The Sanwa Bank Limited, Credit Matters:
LIMITED, Dallas Dallas Agency
Agency 901 Main Street, The Sanwa Bank Limited,
Suite 2830 LB 165 Dallas Agency
Dallas, TX 75202 901 Main Street,
Attn: Greg Crowe, AVP Suite 2830 LB 165
Telephone: (214) 744-5555 Dallas, TX 75202
Facsimile: (214) 741-6535 Attn: Matthew G. Patrick,
AVP
Telephone: (214) 744-5555
Facsimile: (214) 741-6535
Operations/Administration:
The Sanwa Bank Limited,
Dallas Agency
901 Main Street,
Suite 2830 LB165
Dallas, TX 75202
Attn: Greg Crowe, AVP
Telephone: (214) 744-5555
Facsimile: (214) 741-6535
SHAWMUT BANK, N.A. $12,000,000 Shawmut Bank, N.A. Shawmut Bank, N.A.
One Federal Street One Federal Street
Mail Stop OF-0323 Mail Stop OF-0323
Boston, MA 02211 Boston, MA 02211
Attn: Judy Whalen Attn: Frank Benesh
Telephone: (617) 292-3907 Director
Facsimile: (617) 292-3241 Telephone: (617) 292-3514
Facsimile: (617) 423-5214
SOCIETE GENERALE $12,000,000 Societe Generale, Credit Matters:
Southwest Agency Southwest Agency
2001 Ross Avenue, Suite Societe Generale,
4800 Southwest Agency
Dallas, TX 75201 1111 Bagby Street, Suite
Attn: Ralph Saheb 2020
Vice President Houston, TX 77002
Telephone: (214) 979-2777 Attn: Emmanuel Cheseau
Facsimile: (214) 754-0171 Telephone: (713) 759-6316
Facsimile: (713) 650-0824
Operations/Administration:
Societe Generale,
Southwest Agency
2001 Ross Avenue, Suite
4800
Dallas, TX 75201
Attn: Molly Franklin
Telephone: (214) 979-2767
Facsimile: (214) 754-0171
STANDARD CHARTERED $12,000,000 Standard Chartered Bank Standard Chartered Bank
BANK Two Ravina Drive, Suite 1000 Louisiana Street
500 Suite 960
Atlanta, GA 30346 Houston, TX 77002
Attn: Rafeek Gafor Attn: Anil Dua
Linda Beaty Vice President
Telephone: (404) 390-6344 and Manager
Facsimile: (404) 396-1035 Telephone: (713) 227-6900
Facsimile: (713) 227-5003
With a copy to:
Standard Chartered Bank
Two Ravina Drive, Suite 500
Atlanta, GA 30346
Attn: Rafeek Gafor
Linda Beaty
Telephone: (404) 390-6344
Facsimile: (404) 396-1035
TORONTO DOMINION $15,000,000 Toronto Dominion Bank Toronto Dominion Bank
BANK Houston Agency Houston Agency
909 Fannin Street, Suite 909 Fannin Street, Suite
1700 1700
Houston, TX 77010 Houston, TX 77010
Attn: Dianne Bailey Attn: Mark G. Fields
Telephone: (713) 653-8250 Director
Facsimile: (713) 951-9921 Telephone: (713) 653-8225
Facsimile: (713) 652-2647
With a copy to:
Toronto Dominion Bank
31 West 52nd Street
20th Floor
New York, NY 10019
Attn: Doug Weir
Telephone: (212) 468-0575
Facsimile: (212) 262-1926
</TABLE>
_______________________________
*To be included for a Proposed Borrowing comprised of
Adjusted CD Rate Loans or LIBOR Loans.
*Select appropriate interest rate option.
**Unless otherwise agreed, a Loan cannot be converted into
or continued as a CD Rate Loan or a LIBOR Loan with an Interest
Period exceeding one month (in the case of a LIBOR Loan) or 30
days (in the case of an adjusted CD Rate Loan) during the
existence of a Default or Event of Default.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
COMPAQ COMPUTER CORPORATION'S CONSOLIDATED BALANCE SHEET AND CONSOLIDATED
STATMENT OF INCOME FOR THE PERIOD ENDED SEPTEMBER 30, 1994 AND IS QUALIFIED
IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-END> SEP-30-1994
<CASH> 389
<SECURITIES> 3
<RECEIVABLES> 2,043
<ALLOWANCES> 0
<INVENTORY> 2,301
<CURRENT-ASSETS> 4,964
<PP&E> 907
<DEPRECIATION> 0
<TOTAL-ASSETS> 5,931
<CURRENT-LIABILITIES> 2,096
<BONDS> 300
<COMMON> 655
0
0
<OTHER-SE> 2,692
<TOTAL-LIABILITY-AND-EQUITY> 5,931
<SALES> 7,615
<TOTAL-REVENUES> 7,615
<CGS> 5,682
<TOTAL-COSTS> 5,682
<OTHER-EXPENSES> 1,032
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 53
<INCOME-PRETAX> 843
<INCOME-TAX> 219
<INCOME-CONTINUING> 624
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 624
<EPS-PRIMARY> 2.33
<EPS-DILUTED> 2.33
</TABLE>
