EXHIBIT 10.9
FIRST AMENDMENT dated as of August 8, 1997 (this "Amendment"), to
the COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT dated
as of May 16, 1996 (the "Agreement"), among TUPPERWARE CORPORATION, the
BORROWING SUBSIDIARIES (as defined in the Agreement), the LENDERS (as
defined in the Agreement) and THE CHASE MANHATTAN BANK (formerly known
as Chemical Bank), a New York banking corporation, as agent for the
Lenders (in such capacity, the "Agent").
A. Tupperware Corporation has requested that the Lenders amend
certain provisions of the Agreement. The Lenders are willing to enter
into this Amendment, subject to the terms and conditions of this Amendment.
B. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to them in the Agreement.
Accordingly, in consideration of the mutual agreements contained
in this Amendment and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the parties
hereto hereby agree as follows:
SECTION 1. Amendment to Article I.
The following amendments are made to the definitions contained in Article I
of the Agreement:
(a) The definition of "Applicable Margin" is hereby amended to
read as follows: "Applicable Margin" shall mean on any date, with respect
to Eurocurrency Standby Loans or, as the case may be, L/C Participation
Fees, the applicable percentage set forth below based upon the Ratings
most recently announced by the Rating Agencies as of such date:
Category 1 Percentage
Aa3 or higher by Xxxxx'x; .1150%
AA- or higher by S&P
Category 2
A2 or higher by Xxxxx'x; .1350%
A or higher by S&P
Category 3
A3 by Xxxxx'x; .1500%
A- by S&P
Category 4
Baa1 by Xxxxx'x; .1850%
BBB+ by S&P
Category 5
Baa2 by Xxxxx'x; .2000%
BBB by S&P
Category 6
Baa3 by Xxxxx'x; .2500%
BBB- by S&P
Category 7
Ba1 or lower by Xxxxx'x; .4500%
BB+ or lower by S&P
For purposes of the foregoing, (i) if either Xxxxx'x or S&P shall not have
in effect a Rating, then such Rating Agency shall be deemed to have
established a rating in Category 7; (ii) if the Ratings established or
deemed to have been established shall fall within different Categories,
then (x) if such Ratings shall differ by only one Category or if one of
such Ratings shall be deemed to be in Category 7 because the applicable
Rating Agency shall not yet have established a Rating, the Applicable
Margin shall be based upon the higher of the two Ratings, (y) if such
Ratings shall differ by only two Categories, the Applicable Margin shall
be determined by reference to the Category that falls between the two
Categories in which the Ratings shall fall and (z) otherwise, the
Applicable Margin shall be determined by reference to the Category one
level above that in which the lower of the two Ratings shall fall (and
for these purposes one Category is above another if the Ratings it
contains are superior to those in such other Category), and (iii) if any
Rating shall be changed (other than as a result of a change in the rating
system of the applicable Rating Agency), such change shall be effective
as of the date on which it is first announced by the Rating Agency making
such change. Each such change in the Applicable Margin shall apply to
all outstanding Eurocurrency Standby Loans during the period commencing
on the effective date of such change and ending on the date immediately
preceding the effective date of the next such change. If the rating
system of any Rating Agency shall change, or if any Rating Agency shall
cease to be in the business of rating corporate debt obligations or shall
have terminated its Rating for reasons outside the control of the Company,
the parties hereto shall negotiate in good faith to amend this definition
to reflect such changed rating system or the absence of such Rating, and
pending the effectiveness of any such amendment, the Applicable Margin
shall be determined by reference to the Rating from the other Rating
Agency.
(b) The definition of "Borrowing Subsidiary" is hereby amended
to read as follows: "Borrowing Subsidiary" shall mean any Subsidiary of
the Company designated as a Borrowing Subsidiary by the Company pursuant
to Section 2.21.
(c) The definition of "Excluded Taxes" is hereby amended by
adding the following sentence to the end thereof: "It is understood and
agreed that any withholding tax attributable to the designation of a
Borrowing Subsidiary or the making of any payment from a location outside
the United States of America after such time shall not be an Excluded Tax."
(d) The definition of "Facility Fee Percentage" is hereby
amended to read as follows: "Facility Fee Percentage" shall mean on any
date the applicable percentage set forth below based upon the Ratings
most recently announced by the Rating Agencies as of such date:
Category 1 Percentage
Aa3 or higher by Xxxxx'x; .0600%
AA- or higher by S&P
Category 2
A2 or higher by Xxxxx'x; .0650%
A or higher by S&P
Category 3
A3 by Xxxxx'x; .0750%
A- by S&P
Category 4
Baa1 by Xxxxx'x; .0900%
BBB+ by S&P
Category 5
Baa2 by Xxxxx'x; .1000%
BBB by S&P
Category 6
Baa3 by Xxxxx'x; .1500%
BBB- by S&P
Category 7
Ba1 or lower by Xxxxx'x; .1750%
BB+ or lower by S&P
For purposes of the foregoing, (i) if either Xxxxx'x or S&P shall not have
in effect a Rating, then such Rating Agency shall be deemed to have
established a rating in Category 7; (ii) if the Ratings established or
deemed to have been established shall fall within different Categories,
then (x) if such Ratings shall differ by only one Category or if one of
such Ratings shall be deemed to be in Category 7 because the applicable
Rating Agency shall not yet have established a Rating, the Facility Fee
Percentage shall be based upon the higher of the two Ratings, (y) if
such Ratings shall differ by only two Categories, the Facility Fee
Percentage shall be determined by reference to the Category that falls
between the two Categories in which the Ratings shall fall and (z)
otherwise, the Facility Fee Percentage shall be determined by reference
to the Category one level above that in which the lower of the two
Ratings shall fall (and for these purposes one Category is above another
if the Ratings it contains are superior to those in such other Category),
and (iii) if any Rating shall be changed (other than as a result of a
change in the rating system of the applicable Rating Agency), such change
shall be effective as of the date on which it is first announced by the
Rating Agency making such change. Each such change in the Facility Fee
Percentage shall apply at any time during the period commencing on the
effective date of such change and ending on the date immediately preceding
the effective date of the next such change. If the rating system of any
Rating Agency shall change, or if any Rating Agency shall cease to be in
the business of rating corporate debt obligations or shall have terminated
its Rating for reasons outside the control of the Company, the parties
hereto shall negotiate in good faith to amend this definition to reflect
such changed rating system or the absence of such Rating, and pending the
effectiveness of any such amendment, the Facility Fee Percentage shall be
determined by reference to the Rating from the other Rating Agency.
(e) The definition of "Guarantor" is hereby amended to read as
follows: "Guarantor" shall mean (a) the Company and (b) each Domestic
Borrowing Subsidiary (other than any Domestic Borrowing Subsidiary (i) that
has no significant assets or operations or (ii) that has not directly or
indirectly borrowed Loans or obtained Letters of Credit in an aggregate
principal and/or face amount of $1,000,000 or more).
(f) The definition of "Maturity Date" is hereby amended to read
as follows: "Maturity Date" shall mean August 8, 2002.
SECTION 2. Amendment to Section 2.19.
Section 2.19 of the Agreement is hereby amended by adding the following
clause (f) to the end thereof:
"(f) If the Agent, any Lender or any Fronting Bank (as the case
may be) receives a refund of any Taxes or Other Taxes for which the
Agent, such Lender, or such Fronting Bank (as the case may be) has
received payment from any Borrower hereunder, it shall promptly
notify such Borrower thereof and shall promptly repay such refund,
without interest and net of any expenses incurred; provided that
such Borrower, upon the request of the Agent, such Lender or such
Fronting Bank (as the case may be), agrees to return the amount of
such refund (plus any penalties, interest or other charges required
to be paid) to the Agent, such Lender or such Fronting Bank (as the
case may be) in the event the Agent, such Lender or such Fronting
Bank (as the case may be) is required to repay such amount to the
relevant Governmental Authority."
SECTION 3. Amendment to Section 5.01.(d).
Section 5.01.(d) of the Agreement is hereby amended as of the Effective
Date by deleting the phrase "5.03(b), 5.03(c), 5.03(i), 5.03(k), 5.06,"
from the seventh line thereof.
SECTION 4. Amendment to Section 5.06.
Section 5.06. of the Agreement is hereby amended as of the Effective Date
to read as follows:
"The Subsidiaries will not issue any preferred stock or create,
incur, assume or permit to exist any Debt except (i) preferred stock
of Subsidiaries in an aggregate stated value not in excess of
$25,000,000, (ii) Debt created hereunder and under the Multicurrency
Addenda, (iii) Debt of Foreign Finance Subsidiaries in an aggregate
amount for all such Foreign Finance Subsidiaries not in excess of
the amount of any Debt of such Foreign Finance Subsidiaries
outstanding as of August 8, 1997, plus $300,000,000, (iv) preferred
stock or Debt of a Wholly-Owned Consolidated Subsidiary issued or
payable to the Company or another Wholly-Owned Consolidated
Subsidiary; provided that the Company or such other Wholly-Owned
Consolidated Subsidiary may not suffer to exist any Lien on any
instrument representing such preferred stock or Debt or the
right to payment on such preferred stock or Debt, as the case may be
and (v) other Debt in an aggregate amount for all Subsidiaries not
in excess of $200,000,000."
Section 5. Purchase and Sale of Commitments and Loans.
(a) Upon the satisfaction of the conditions set forth in
Section 7 hereof on the Effective Date, but immediately prior to any
borrowing on such date under the Agreement, without the necessity of
further action by any party, the Lenders specified on Schedule 1
hereto as "Selling Lenders" shall sell, transfer and assign to the
Lenders specified on Schedule 1 hereto as "Purchasing Lenders" all
of such Selling Lender's right, title and interest in and to its
Commitment, to the extent set forth on Schedule 1 hereto, together
with its L/C Commitment, its outstanding Loans and participations
in Letters of Credit, so as to reflect such transfer, and each
Purchasing Lender shall purchase, take and acquire from the Selling
Lenders a portion of the Selling Lenders' right, title and interest
in and to its Commitment together with its L/C Commitment, its
outstanding Loans and participations in Letters of Credit, so that
after giving effect to all such transfers, the Commitments of each
of the Lenders (including Lenders which are not Selling Lenders or
Purchasing Lenders) shall be as specified on Schedule 1 hereto.
(b) Prior to the Effective Date, the Agent shall notify each
Purchasing Lender and each Selling Lender of the amounts to be
funded and received, respectively, by each Purchasing Lender and
Selling Lender in order to give effect to the foregoing transfers
and to ensure that the outstanding Loans and Letter of Credit
participations of each of the Lenders properly reflect such transfers.
Each Selling Bank shall, to the extent provided in this Amendment,
relinquish its rights and be released from its obligations under
the Agreement.
(c) Each Selling Lender hereby agrees that any unpaid Facility
Fee owed to it as of the Effective Date shall be paid by the Borrower
to the Agent on September 30, 1997, and distributed to such Lender
on such date.
SECTION 6. Representations, Warranties and Agreements.
Tupperware Corporation hereby represents and warrants to and agrees with
each Lender and the Agent, before and after the Effective Date (as
defined below), that:
(a) The representations and warranties set forth in Article IV
of the Agreement are true and correct in all material respects with
the same effect as if made on the Effective Date (as defined below),
except to the extent such representations and warranties expressly
relate to an earlier date.
(b) Tupperware Corporation has the requisite power and authority
to execute, deliver and perform its obligations under this Amendment.
(c) The execution, delivery and performance by Tupperware
Corporation of this Amendment (i) have been duly authorized by all
requisite action and (ii) will not (I) violate (x) any provision of
law, statute, rule or regulation, or of the certificate of
incorporation, by-laws or other constitutive documents of Tupperware
Corporation, (y) any order of any governmental court or governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign or (z) any provision of any indenture, any
agreement for borrowed money, or any other material agreement or
instrument to which Tupperware Corporation is a party or by which
Tupperware Corporation or any of its property is or may be bound,
(II) be in conflict with, result in a breach of or constitute (alone
or with notice or lapse of time or both) a default under any such
indenture, agreement for borrowed money or other material agreement
or instrument or (III) result in the creation or imposition of
any Lien upon or with respect to any property or assets now owned or
hereafter acquired by Tupperware Corporation or any Subsidiary.
(d) This Amendment has been duly executed and delivered by
Tupperware Corporation. Each of this Amendment and the Agreement as
amended hereby constitutes a legal, valid and binding obligation of
Tupperware Corporation, enforceable against Tupperware Corporation in
accordance with its terms, except as enforceability may be limited by
(i) any applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights
generally and (ii) general principals of equity.
(e) No Event of Default or Default has occurred and is continuing.
SECTION 7. Conditions to Effectiveness. This Amendment shall
become effective only upon the satisfaction in full of the following
conditions precedent on or prior to August 8, 1997 (such date, in the event
that each of the conditions has been satisfied on or prior thereto, being
called herein the "Effective Date"):
(a) The Agent shall have received duly executed counterparts
hereof which, when taken together, bear the authorized signatures of
Tupperware Corporation, the Agent and each Lender.
(b) All legal matters incident to this Amendment shall be
satisfactory to the Lenders, the Agent and Cravath, Swaine & Xxxxx,
counsel for the Agent.
(c) The Agent shall have received such other documents,
instruments and certificates as it or its counsel shall reasonably request.
SECTION 8. Agreement. Except as specifically amended hereby,
the Agreement shall continue in full force and effect in accordance with
the provisions thereof as in existence on the date hereof. After the date
hereof, any reference to the Agreement shall mean the Agreement as amended
hereby.
SECTION 9. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 10. Counterparts. This Amendment may be executed in two
or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed by their respective authorized officers as of the day
and year first written above.
TUPPERWARE CORPORATION
By
Name: Xxxx X. Xxxxx
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK, individually
and as Agent
By
Name:
Title:
ABN AMRO BANK N.V., ATLANTA AGENCY
By
Name:
Title:
By
Name:
Title:
BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION, individually and as Co-Agent
By
Name:
Title:
BANKERS TRUST COMPANY
By
Name:
Title:
CITIBANK, N.A., individually and as Co-Agent
By
Name:
Title:
COMMERZBANK AG, ATLANTA AGENCY
By
Name:
Title:
By
Name:
Title:
CREDIT LYONNAIS CHICAGO BRANCH
By
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By
Name:
Title:
THE FUJI BANK AND TRUST COMPANY
By
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By
Name:
Title:
NORTHERN TRUST COMPANY
By
Name:
Title:
ROYAL BANK OF CANADA
By
Name:
Title:
THE SANWA BANK, LIMITED, ATLANTA AGENCY
By
Name:
Title:
THE SUMITOMO BANK, LIMITED, ATLANTA AGENCY
By
Name:
Title:
SCHEDULE 1
INSTITUTION PRE-FIRST AMENDMENT POST-FIRST AMENDMENT
COMMITMENT COMMITMENT
The Chase Manhattan $30,000,000.00 $35,000,000.00
Bank, as a Purchasing
Lender
Bank of America $25,000,000.00 $30,000,000.00
National Trust &
Savings Association, as
a Purchasing Lender
Citibank, N.A., as a $25,000,000.00 $30,000,000.00
Purchasing Lender
Bankers Trust Company, $20,000,000.00 $25,000,000.00
as a Purchasing Lender
Commerzbank AG, Atlanta $20,000,000.00 $25,000,000.00
Agency, as a Purchasing
Lender
The First National Bank $20,000,000.00 $25,000,000.00
of Chicago, as a
Purchasing Lender
Xxxxxx Guaranty Trust $20,000,000.00 $25,000,000.00
Company of New York, as
a Purchasing Lender
Royal Bank of Canada, $20,000,000.00 $25,000,000.00
as a Purchasing Lender
ABN AMRO Bank N.V., $20,000,000.00 $20,000,000.00
Atlanta Agency
The Fuji Bank and Trust $20,000,000.00 $20,000,000.00
Company
Northern Trust Company $20,000,000.00 $20,000,000.00
The Sanwa Bank, $20,000,000.00 $20,000,000.00
Limited, Atlanta Agency
Credit Lyonnais Chicago $20,000,000.00 $0.00
Branch, as a Selling
Lender
The Sumitomo Bank, $20,000,000.00 $0.00
Limited, Atlanta
Agency, as a Selling
Lender
--------------- ---------------
Total $300,000,000.00 $300,000,000.00
=============== ===============
