EXHIBIT 10.17
AMENDMENT NO. 1
AMENDMENT NO. 1 dated as of June 7, 1996, between: NEWELL CO., a
corporation duly organized and validly existing under the laws of the State
of Delaware (together with its successors, the "COMPANY"); each of the
banks listed on the signature pages hereto under the headings Continuing
Banks (the "CONTINUING BANKS") and New Banks (the "NEW BANKS") (together
with its successors and permitted assigns, individually a "BANK" and,
collectively, the "BANKS"); and THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION) as agent for the Banks (in such capacity together with its
successors in such capacity, the "AGENT").
The Company, the Continuing Banks, certain banks listed on the
signature pages hereto under the heading Non-continuing Banks (the "NON-
CONTINUING BANKS") and the Agent are parties to (1) the Five-Year Credit
Agreement dated as of June 12, 1995 providing for loans to the Company and
certain subsidiaries of the Company in U.S. Dollars and in other currencies
in an aggregate amount not exceeding $550,000,000 at any one time
outstanding (the "FIVE-YEAR CREDIT AGREEMENT") and (2) the 364-Day Credit
Agreement dated as of June 12, 1995 providing for loans to the Company and
certain subsidiaries of the Company in U.S. Dollars and in other currencies
in an aggregate amount not exceeding $200,000,000 at any one time
outstanding (the "364-DAY CREDIT AGREEMENT" and, together with the Five-
Year Credit Agreement, the "CREDIT AGREEMENTS"). As of the Effective Date
(as defined in Section 6 below), there are no outstanding Syndicated Loans
under either of the Credit Agreements.
The Company has requested that the Commitment of each of the
Continuing Banks and Non-Continuing Banks under the 364-Day Credit
Agreement be terminated, that the Commitment of each Continuing Bank under
the Five-Year Credit Agreement be the amount set opposite its name on the
signature pages hereto, that each New Bank undertake a Commitment under the
Five-Year Facility in the amount set opposite its name on the signature
pages hereto, and that certain other revisions be made in the Five-Year
Credit Agreement, all on the terms and conditions hereof.
Accordingly, in consideration of the premises and the mutual
agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined in this
Agreement No. 1, terms defined in the Five-Year Credit Agreement, as
amended by this Amendment No. 1, are used herein as defined therein.
Section 2. TERMINATION OF 364-DAY CREDIT AGREEMENT. Effective
as of the Effective Date, the Commitments of the Continuing Banks and the
Non-continuing Banks under the 364-Day Credit Agreement are hereby
terminated.
Section 3. COMMITMENTS UNDER THE FIVE-YEAR CREDIT AGREEMENT.
Effective as of the Effective Date, each Bank shall be a "Bank" under the
Five-Year Credit Agreement with a Commitment under the Five-Year Credit
Agreement in the amount set opposite such Bank's name on the signature
pages of this Amendment No. 1, none of the Non-continuing Banks shall be a
"Bank" under the Five-Year Credit Agreement, and the definition of the term
Commitment in the Five-Year Credit Agreement shall be amended to read in
its entirety as follows:
"COMMITMENT" shall mean, as to each Bank, the obligation of
such Bank to make Syndicated Loans in an aggregate amount at any
one time outstanding equal to the amount set opposite such Bank's
name on the signature pages of Amendment No. 1 under the caption
"Commitment" (as the same may be reduced pursuant to Section 2.05
hereof). As of the Amendment No. 1 Effective Date, the aggregate
principal amount of the Commitments is $750,000,000.
Section 4. AMENDMENTS. Effective as of the Effective Date, the
Five-Year Credit Agreement shall be amended as follows:
A. Section 1.01 of the Five-Year Credit Agreement shall be
amended (a) by deleting the definition of the term "Other Agreement" and
(b) by adding (to the extent not already included in Section 1.01) or
amending (to the extent already included in Section 1.01) the following
definitions and inserting the same in their appropriate alphabetical
locations, as follows:
"AMENDMENT NO. 1" shall mean Amendment No. 1 dated as of June 7,
1996 between the Company, the Banks and the Agent.
"AMENDMENT NO. 1 EFFECTIVE DATE" shall mean the Effective Date as
defined in Amendment No. 1.
"APPLICABLE FACILITY FEE RATE" and "APPLICABLE MARGIN" shall
mean, during any period when the Rating is at one of the Rating Groups
specified below, the percentage set forth below opposite the reference to
such fee or to the relevant Type of Syndicated Loan:
Rating Rating Rating Rating
Group Group Group Group
Fee or Loan I II III IV
Applicable
Facility Fee 0.060% 0.075% 0.110% 0.1875%
Rate
Applicable
Margin for 0.140% 0.175% 0.240% 0.3625%
LIBOR Loans
Applicable
Margin for 0.0% 0.0% 0.0% 0.0%
Base Rate
Loans
Any change in the Applicable Facility Fee Rate or in the Applicable Margin
by reason of a change in the Moody's Rating or the Standard & Poor's Rating
shall become effective on the date of announcement or publication by the
respective Rating Agency of a change in such Rating or, in the absence of
such announcement or publication, on the effective date of such changed
rating.
"COMMITMENT TERMINATION DATE" shall mean the date five years
after the Amendment No. 1 Effective Date; PROVIDED that, if such date is
not a Business Day, the Commitment Termination Date shall be the next
preceding Business Day.
"CREDIT EXTENSION" shall mean the making of any Loan hereunder.
"MOODY'S" shall mean Moody's Investors Service, Inc. or any
successor thereto.
"MOODY'S RATING" shall mean, as of any date, the rating most
recently published by Moody's relating to the unsecured, long-term, senior
debt securities of the Company then outstanding.
"RATING" shall mean the Moody's Rating or the Standard & Poor's
Rating.
"RATING AGENCY" shall mean Moody's or Standard & Poor's.
"RATING GROUP I" shall mean the Moody's Rating is at or above Aa2
or the Standard & Poor's Rating is at or above AA; "RATING GROUP II" shall
mean (a) the Moody's Rating is at or above A3 or the Standard & Poor's
Rating is at or above A- and (b) Rating Group I is not in effect; "RATING
GROUP III" shall mean (a) the Moody's Rating is at or above Baa2 or the
Standard & Poor's Rating is at or above BBB and (b) neither Rating Group I
nor Rating Group II is in effect; "RATING GROUP IV" shall mean none of
Rating Group I, Rating Group II or Rating Group III is in effect; PROVIDED
that, (A) if the Moody's Rating and the Standard & Poor's Rating fall into
different Rating levels and one of such Ratings is no more than one Rating
level lower than the other of such Ratings, then the applicable Rating
Group shall be based upon the higher of such Ratings and (B) if the Moody's
Rating and the Standard & Poor's Rating fall into different Rating levels
and one of such Ratings is two or more Rating levels lower than the other
of such Ratings, then the applicable Rating Group shall be based upon a
hypothetical Rating that is one lower than the Rating level of the higher
of such Ratings.
"STANDARD & POOR'S" shall mean Standard & Poor's Ratings Group, a
division of McGraw-Hill, Inc., or any successor thereto.
"STANDARD AND POOR'S RATING" shall mean, as of any date, the
rating most recently published by Standard & Poor's relating to the
unsecured, long-term, senior debt securities of the Company then
outstanding.
B. Section 2.04 of the Five-Year Credit Agreement shall be
amended by adding a new paragraph (c) thereto reading as follows:
(c) No Designation Letter may be amended, supplemented or
otherwise modified without the approval of all of the Banks.
C. Section 2.06 of the Five-Year Credit Agreement shall be
amended to read in its entirety as follows:
2.06 FACILITY FEE. The Company shall pay to the Agent for
account of each Bank a facility fee on the daily average amount of such
Bank's Commitment (whether used or unused), for the period from and
including the Amendment No. 1 Effective Date to but not including the
earlier of the date such Commitment is terminated and the Commitment
Termination Date, at a rate per annum equal to the Applicable Facility Fee
Rate. Accrued facility fee shall be payable in arrears on each Quarterly
Date and on the earlier of the date the Commitments are terminated and the
Commitment Termination Date.
D. Clause (vi) of the second sentence of Section 8.06 of the
Five-Year Credit Agreement is hereby deleted.
Section 5. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to the Banks and the Agent that:
(a) this Amendment No. 1 has been duly and validly authorized,
executed and delivered by the Company; the Company has been duly
authorized and empowered by each Approved Borrower to execute and
deliver this Amendment No. 1; and this Amendment No. 1, and the Five-
Year Credit Agreement as amended hereby, constitute the legal, valid
and binding obligation of the Company and each Approved Borrower,
enforceable against the Company and each Approved Borrower in
accordance with its terms, except as such enforceability may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium or
similar laws of general applicability affecting the enforcement of
creditors' rights and (b) the application of general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law); and
(b) on and as of the date hereof (after giving effect to the
transactions contemplated by Sections 2, 3 and 4 hereof), (i) no
Default has occurred and is continuing and (ii) the representations
and warranties made by the Company in Section 7, Part A of the Five-
Year Credit Agreement, and by each Approved Borrower in Section 7,
Part B of the Five-Year Credit Agreement, are true and correct on and
as of the date hereof with the same force and effect as if made on and
as of such date (or if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such
specific date).
It shall be an Event of Default for all purposes of the Five-Year Credit
Agreement, as amended hereby, if any representation, warranty or
certification made by the Company in this Amendment No. 1, or in any
certificate or other writing furnished to any Bank or the Agent pursuant to
this Amendment No. 1, shall prove to have been false or misleading as of
the time made or furnished in any material respect.
Section 6. CONDITIONS PRECEDENT. The termination of the
Commitments of the Continuing Banks and the Non-continuing Banks under the
364-Day Credit Agreement set forth in Section 2 hereof and the amendments
to the Five-Year Credit Agreement set forth in Sections 3 and 4 hereof
shall become effective on the date (the "Effective Date") on which all of
the following conditions shall have been satisfied:
(a) AMENDMENT NO. 1. The Agent shall have received this
Amendment No. 1, duly executed and delivered by each of the parties hereto.
(b) FEES. The Agent shall have received in Dollars in
immediately available funds at an account in New York specified by the
Agent for account of the Continuing Banks and the Non-continuing Banks all
fees payable under each of the Credit Agreements accrued to but not
including the Effective Date.
(c) NON-CONTINUING BANKS. The Agent shall have received the
principal of and interest accrued to the Effective Date on all Money Market
Loans, if any, held by the Non-continuing Banks under each of the Credit
Agreements.
(d) NOTES. The Agent shall have received a Syndicated Note and
a Money Market Note for each New Bank duly executed by each Borrower, as
appropriate.
(e) AUTHORIZATION. The Agent shall have received certified
copies of the charter and by-laws (or equivalent documents) of the Company
and each of the Approved Borrowers (or, in the alternative, a certification
of the Company to the effect that none of such documents has been modified
since delivery thereof pursuant to Section 6.01 and Section 6.02 of the
Five-Year Credit Agreement) and of all corporate authority for the Company
(including without limitation, board of director resolutions and evidence
of the incumbency of officers for the Company) with respect to the
authorization, execution, delivery and performance of this Amendment No. 1
and the Five-Year Credit Agreement as amended hereby and each other
document to be delivered by the Company from time to time in connection
with the Five-Year Credit Agreement as amended hereby (and the Agent and
each Bank may conclusively rely on such certificate until it receives
notice in writing from the Company to the contrary).
(f) OTHER DOCUMENTS. The Agent shall have received such other
documents as the Agent or any Bank may reasonably request.
Section 7. OUTSTANDING LOANS. As of the Effective Date, all
Money Market Loans made by any Continuing Bank and outstanding on the
Effective Date under either of the Credit Agreements will be deemed to be
Money Market Loans of such Continuing Bank outstanding under the Five-Year
Credit Agreement.
Section 8. BASIC DOCUMENTS OTHERWISE UNCHANGED. Except as
herein provided, the Basic Documents shall remain unchanged and in full
force and effect, and each reference to the Five-Year Credit Agreement in
the Five-Year Credit Agreement and the Notes shall be a reference to the
Five-Year Credit Agreement as amended hereby and as the same may be further
amended, supplemented and otherwise modified from time to time.
Section 9. COUNTERPARTS. This Amendment No. 1 may be executed in
any number of counterparts, all of which taken together shall constitute
one and the same amendatory instrument, and any of the parties hereto may
execute this Amendment No. 1 by signing any such counterpart.
Section 10. BINDING EFFECT. This Amendment No. 1 shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
Section 11. GOVERNING LAW. This Amendment No. 1 shall be
governed by, and construed in accordance with, the law of the State of New
York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed and delivered as of the day and year first above
written.
NEWELL CO.
By /S/ C. R. DAVENPORT
Name: C. R. Davenport
Title: Vice President &
Treasurer
THE AGENT
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By /S/ CAROL A. ULMER
Name: Carol A. Ulmer
Title: Vice President
CONTINUING BANKS
COMMITMENT THE CHASE MANHATTAN BANK
$75,000,000 (NATIONAL ASSOCIATION)
By /S/ CAROL A. ULMER
Name: Carol A. Ulmer
Title: Vice President
COMMITMENT ROYAL BANK OF CANADA
$65,000,000
By /S/ PRESTON D. JONES
Name: Preston D. Jones
Title: Senior Manager
Corporate Banking
COMMITMENT BANK OF AMERICA ILLINOIS
$50,000,000
By /S/ M. H. CLAGGETT
Name: M. H. Claggett
Title: Vice President
COMMITMENT CIBC INC.
$50,000,000
By /S/ DAVID MCGOWAN
Name: David McGowan
Title: Director
COMMITMENT CREDIT LYONNAIS CAYMAN ISLAND
$30,000,000 BRANCH
By /S/ MICHEL BUYSSCHAERT
Name: Michel Buysschaert
Title: Authorized Signatory
COMMITMENT MORGAN GUARANTY TRUST COMPANY
$50,000,000 OF NEW YORK
By /S/ DOUGLAS A. CRUIKSHANK
Name: Douglas A. Cruikshank
Title: Vice President
COMMITMENT THE FIRST NATIONAL BANK OF CHICAGO
$55,000,000
By /S/ JUDITH L. CORNWELL
Name: Judith L. Cornwell
Title: Authorized Agent
COMMITMENT THE NORTHERN TRUST COMPANY
$50,000,000
By /S/ LISA M. TAYLOR
Name: Lisa M. Taylor
Title: Commercial Banking Officer
COMMITMENT PNC BANK, NATIONAL ASSOCIATION
$30,000,000
By /S/ RICHARD T. JANDER
Name: Richard T. Jander
Title: Assistant Vice President
COMMITMENT THE SANWA BANK, LIMITED
$30,000,000
By /S/ RICHARD H. AULT
Name: Richard J. Ault
Title: Vice President
COMMITMENT SOCIETE GENERALE
$30,000,000
By /S/ ERIC SIEBERT
Name: Eric Siebert
Title: Corporate Banking Manager
By /S/ SETH ASOFSKY
Name: Seth Asofsky
Title: Vice President
NEW BANKS
COMMITMENT BANCA NAZIONALE DEL LAVORO S.p.A.
$20,000,000 NEW YORK BRANCH
By /S/ GIULIANO VIOLETTA
Name: Giuliano Violetta
Title: First Vice President
By /S/ GIULIO GIOVINE
Name: Giulio Giovine
Title: Vice President
Lending Office for all Loans:
Banca Nazionale Del Lavoro S.p.A.
New York Branch
25 West 51st Street
New York, New York 10019
Address for Notices:
Banca Nazionale Del Lavoro S.p.A.
New York Branch
25 West 51st Street
New York, New York 10019
Attention: Giulio Giovine
Miguel Medida
Telecopier No.: 212-765-2978
Telephone No.: 212-581-0710
COMMITMENT BANQUE NATIONALE DE PARIS
$30,000,000 CHICAGO BRANCH
By /S/ ARNAUD COLLIN DU BOCAGE
Name: Arnaud Collin du Bocage
Title: Executive Vice President
& General Manager
By /S/ EDWARD MCGUIRE
Name: Edward McGuire
Title: Vice President
Lending Office for all Loans:
Banque Nationale De Paris
Chicago Branch
209 South LaSalle Street
Chicago, IL 60604
Address for Notices:
Banque Nationale De Paris
Chicago Branch
209 South LaSalle Street
Chicago, IL 60604
Attention: Chris Howatt
Telecopier No.: 312-977-1380
Telephone No.: 312-977-1383
COMMITMENT THE DAI-ICHI KANGYO BANK, LTD.,
$25,000,000 CHICAGO BRANCH
By /S/ TAKESHI HEMMI
Name: Takeshi Hemmi
Title: Vice President
Lending Office for all Loans:
The Dai-Ichi Kangyo Bank, Ltd.,
Chicago Branch
10 South Wacker Drive
26th Floor
Chicago, IL 60606
Address for Notices:
The Dai-Ichi Kangyo Bank, Ltd.,
Chicago Branch
10 South Wacker Drive
26th Floor
Chicago, IL 60606
Attention: John Sneed
Telecopier No.: 312-876-2011
Telephone No.: 312-715-6362
COMMITMENT MELLON BANK, N.A.
$30,000,000
By /S/ M. JAMES BARRY, III
Name: M. James Barry, III
Title: Vice President
Lending Office for all Loans:
Mellon Bank N.A.
3 Mellon Bank Center
Pittsburgh, PA 15259
Address for Notices:
Mellon Bank
55 West Monroe
Suite 2600
Chicago, IL 60603
Attention: James Barry
Telecopier No.: 312-357-3414
Telephone No.: 312-357-3407
COMMITMENT THE SAKURA BANK, LIMITED
$30,000,000
By /S/ SHUNJI SAKURAI
Name: Shunji Sakurai
Title: Joint General Manager
By __________________________
Name:
Title:
Lending Office for all Loans:
The Sakura Bank Ltd.
227 West Monroe Street
Chicago, IL 60606
Address for Notices:
The Sakura Bank Ltd.
227 West Monroe Street
Chicago, IL 60606
Attention: Richard Wilson
Telecopier No.: 312-332-5345
Telephone No.: 312-580-3270
COMMITMENT THE SUMITOMO BANK, LIMITED
$25,000,000
By /S/ HIROYUKI IWAMI
Name: Hiroyuki Iwami
Title: Joint General Manager
Lending Office for all Loans:
The Sumitomo Bank, Limited
233 South Wacker Drive
Suite 4800
Chicago, IL 60606-6448
Address for Notices:
The Sumitomo Bank, Limited
233 South Wacker Drive
Suite 4800
Chicago, IL 60606-6448
Attention: Chuck Gitles
Telecopier No.: 312-876-6436
Telephone No.: 312-876-6445
COMMITMENT COMMERZBANK AKTIENGESELLSCHAFT,
$25,000,000 CHICAGO BRANCH
By /S/ DR. HELMUT R. TOLLNER
Name: Dr. Helmut R. Tollner
Title: Executive Vice President
By /S/ SCOTT MCINTOSH
Name: Scott McIntosh
Title: Assistant Cashier
Lending Office for all Loans:
Commerzbank Aktiengesellschaft,
Chicago Branch
311 S. Wacker Drive
Chicago, Illinois 60606
Address for Notices:
Commerzbank Aktiengesellschaft,
Chicago Branch
311 S. Wacker Drive
Chicago, Illinois 60606
Attention: Mark Monson
Scott McIntosh
Telecopier No.: 312-435-1486
Telephone No.: 312-408-6910
COMMITMENT THE FUJI BANK, LIMITED
$25,000,000
By /S/ PETER L. CHINNICI
Name: Peter L. Chinnici
Title: Joint General Manager
Lending Office for all Loans:
The Fuji Bank, Limited,
Chicago Branch
225 West Wacker Drive
Suite 2000
Chicago, Illinois 60606
Address for Notices:
The Fuji Bank, Limited,
Chicago Branch
225 West Wacker Drive
Suite 2000
Chicago, Illinois 60606
Attention: Stephen Peca
Telecopier No.: 312-621-0539
Telephone No.: 312-621-9484
COMMITMENT ISTITUTO BANCARIO SAN PAOLO
$25,000,000 DI TORINO SPA
By /S/ WILLIAM DEANGELO
Name: William DeAngelo
Title: First Vice President
By /S/ ETTORE VIAZZO
Name: Ettore Viazzo
Title: Vice President
Lending Office for all Loans:
Istituto Bancario San Paolo
Di Torino SPA
245 Park Avenue
New York, New York 10167
Address for Notices:
Istituto Bancario San Paolo
Di Torino SPA
245 Park Avenue
New York, New York 10167
Attention: David Scarselli
Telecopier No.: 212-599-5303
Telephone No.: 212-692-3172
The following bank acknowledges that, effective as of the Effective Date,
its Commitments under the Credit Agreements are terminated.
NON-CONTINUING BANK
NATIONSBANK, N.A. (CAROLINAS)
By /S/ CARTER E. SMITH
Name: Carter E. Smith
Title: Vice President