EXHIBIT 4.2
-----------
▇▇▇▇▇▇ RUBBERMAID INC.
_____________________________
AMENDED AND RESTATED
364-DAY CREDIT AGREEMENT
$650,000,000
Dated as of June 13, 2003
______________________________
JPMORGAN CHASE BANK,
as Administrative Agent
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Sole Lead Arranger and Sole Bookrunner
BANK ONE, NA,
BANK OF AMERICA, N.A.,
BNP PARIBAS
and BARCLAYS BANK PLC,
as Co-Syndication Agents
CITIBANK, N.A.,
as Documentation Agent
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT (this
"AGREEMENT") dated as of June 13, 2003, between ▇▇▇▇▇▇ RUBBERMAID
INC., a corporation duly organized and validly existing under the laws
of the State of Delaware (the "COMPANY"); each of the lenders
signatory hereto (individually, a "LENDER" and, collectively, the
"LENDERS"); and JPMORGAN CHASE BANK, as Administrative Agent (the
"ADMINISTRATIVE AGENT").
The Company, the lenders party thereto including certain of
the Lenders (the "EXISTING LENDERS") and the Administrative Agent are
parties to a 364-Day Credit Agreement dated as of June 14, 2002 (as in
effect immediately prior to the effectiveness of this Agreement, the
"EXISTING CREDIT AGREEMENT"), providing for, subject to the terms and
conditions thereof, extensions of credit (by the making of loans) by
the Lenders to the Borrowers (as defined therein) in an aggregate
principal amount not exceeding $650,000,000. The parties hereto wish
to (a) amend the Existing Credit Agreement in certain respects, to
provide for, among other things, (i) the extension of the Commitment
Termination Date (as defined in the Existing Credit Agreement), (ii)
the Existing Lenders that are not listed as "Lenders" on the signature
pages hereof to cease being parties to the Existing Credit Agreement
as amended and restated hereby (the "RETIRING LENDERS") and (iii)
certain financial institutions to become party as "Lenders" to the
Existing Credit Agreement as amended and restated hereby (the "NEW
LENDERS"), and (b) to restate the Existing Credit Agreement as so
amended (the Existing Credit Agreement as so amended and restated, the
"CREDIT AGREEMENT"). Accordingly, the parties hereto agree to amend
the Existing Credit Agreement as set forth in Section 2 hereof and to
restate the Existing Credit Agreement to read in its entirety as set
forth in the Existing Credit Agreement (which Existing Credit
Agreement is incorporated herein by this reference), as amended by the
amendments set forth in Section 2 hereof:
Section 1. DEFINITIONS. Except as otherwise defined
herein, terms defined in the Existing Credit Agreement are used herein
as defined therein.
Section 2. AMENDMENTS. Subject to the satisfaction of the
conditions precedent specified in Section 4 hereof, the Existing
Credit Agreement is hereby amended as set forth below:
2.01. References in the Existing Credit Agreement to
"this Agreement" (and indirect references such as "hereunder",
"hereby", herein" and "hereof") shall be deemed to be references to
this Agreement.
2.02. Section 1.01 of the Existing Credit Agreement
shall be amended as follows:
A. The definition of ""APPLICABLE FACILITY FEE RATE",
"APPLICABLE UTILIZATION FEE RATE" "APPLICABLE MARGIN" and "APPLICABLE
2
TERM LOAN PREMIUM"" shall be replaced with the following definition
(which shall be inserted in the appropriate alphabetical location):
"ADDITIONAL MARGIN", "APPLICABLE FACILITY FEE RATE",
"APPLICABLE MARGIN" and "APPLICABLE TERM LOAN PREMIUM" 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 Committed
Loan:
Rating Rating Rating Rating Rating
Group Group Group Group Group
I II III IV V
------ ------ ------ ------ ------
Applicable
Facility Fee Rate 0.05% 0.08% 0.10% 0.125% 0.175%
Applicable Margin
for Committed
LIBOR Loans 0.20% 0.32% 0.40% 0.50% 0.70%
Applicable
Margin for Base
Rate Loans 0% 0% 0% 0% 0%
Additional Margin
(greater than 50%) 0.05% 0.10% 0.125% 0.125% 0.25%
Applicable Term
Loan Premium 0.25% 0.25% 0.25% 0.25% 0.25%
Any change in the Additional Margin, the Applicable Facility
Fee Rate, the Applicable Margin or the Applicable Term Loan
Premium by reason of a change in the ▇▇▇▇▇'▇ Rating, the Standard
& Poor's Rating or the Fitch 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.
The Additional Margin shall be payable only for each day on
which the aggregate principal amount of outstanding Loans
(including the Term Loans but excluding the Competitive Loans)
equals or exceeds 50% of the aggregate outstanding Commitments
(or at any time following the conversion of Committed Loans to
Term Loans pursuant to Section 2.01(b) or the termination of the
Commitments for any other reason, the aggregate Commitments in
effect immediately prior to such conversion or termination, as
the case may be).
B. Section 1.01 of the Existing Credit Agreement shall be
further amended by adding the following new definitions (to the extent
not already included in said Section 1.01) and inserting the same in
the appropriate alphabetical locations and by amending in their
3
entirety the following definitions (to the extent already included in
said Section 1.01), as follows:
"APPROVED FUND" means any Person (other than a natural
person) that is engaged in making, purchasing, holding or
investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or
managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a
Lender.
"COMMITMENT TERMINATION DATE" shall mean June 11, 2004;
PROVIDED that, if such date is not a Business Day, the Commitment
Termination Date shall be the next preceding Business Day.
"DISPOSITION PERIOD" shall mean, for any Disposition, a
period of twelve months ending on the date of such Disposition.
"OTHER CREDIT AGREEMENT" shall mean the Five-Year Credit
Agreement dated as of June 14, 2002, between the Borrowers, the
banks party thereto and JPMCB, as Administrative Agent.
2.03. Each reference in the Existing Credit Agreement to
the words "Applicable Utilization Fee Rate" shall be replaced
with the words "Additional Margin".
2.04. Section 2.06(b) of the Existing Credit Agreement
shall be deleted in its entirety and replaced with the words "(b)
[Intentionally Omitted]".
2.05. Clauses (i) and (ii) of Section 3.02(a) of the
Existing Credit Agreement shall be amended in their entirety to read
as follows:
"(i) during such period as such Loan is a Base Rate Loan,
the Base Rate (as in effect from time to time) plus the sum
of (A) Additional Margin (if any) plus (B) (in the case of
Term Loans) the Applicable Term Loan Premium;
(ii) during such period as such Loan is a Committed LIBOR
Loan, for each Interest Period relating thereto, the
Adjusted LIBO Rate for such Loan for such Interest Period
plus the sum of (A) the Applicable Margin plus (B) the
Additional Margin (if any) plus (C) (in the case of Term
Loans) the Applicable Term Loan Premium;".
2.06. Section 7.02 of the Existing Credit Agreement
shall be amended by replacing (i) in clause (a) thereof, (1) the date
"December 31, 2001" with the date "December 31, 2002", and (2) the
reference to "▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP" with the words "Ernst & Young LLP",
(ii) in clause (b) thereof, the date "March 31, 2002" with the date
4
"March 31, 2003" and (iii) in clause (c) thereof, the date "December
31, 2001" with the date "December 31, 2002".
2.07. Section 12.04 of the Existing Credit Agreement shall
be amended by deleting in the proviso thereof the words ", unless by
an instrument signed by all of the Lenders or by the Administrative
Agent acting with the consent of all of the Lenders" and inserting in
lieu thereof the following words: ", unless by an instrument signed by
each Lender affected thereby or by the Administrative Agent acting
with the consent of each Lender affected thereby".
2.08. Section 12.05 of the Existing Credit Agreement shall
be amended as follows:
A. Section 12.05(b)(ii) thereof shall amended by (i)
inserting the word "and" immediately following the semi-colon, at the
end of clause (C) in the first paragraph thereof, (ii) deleting the
semi-colon and the word "and", and replacing the same with a period,
at the end of clause (D) in the first paragraph thereof, (iii)
deleting in its entirety clause (E) of the first paragraph thereof and
(iv) deleting in its entirety the second paragraph thereof.
B. Section 12.05(e) thereof shall be amended by inserting,
immediately prior to the period at the end thereof, the following
words: "subject, however, to the provisions of Section 12.13(b)".
2.09. Section 12.06 of the Existing Credit Agreement shall
be amended by (i) deleting the reference to "Section 10.05" and (ii)
replacing the same with the words "Sections 10.05 and 12.13".
2.10. Section 12 of the Existing Credit Agreement shall be
amended by inserting a new Section 12.13 at the end thereof to read as
follows:
"12.13. TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY.
(a) TREATMENT OF CERTAIN INFORMATION. The Company
acknowledges that from time to time financial advisory,
investment banking and other services may be offered or provided
to the Company or one or more of its Subsidiaries (in connection
with this Agreement or otherwise) by any Lender or by one or more
Subsidiaries or Affiliates of such Lender and the Company hereby
authorizes each Lender to share any information delivered to such
Lender by the Company and its Subsidiaries pursuant to this
Agreement, or in connection with the decision of such Lender to
enter into this Agreement, to any such Subsidiary or Affiliate,
it being understood that any such Subsidiary or Affiliate
receiving such information shall be bound by the provisions of
paragraph (b) of this Section 12.13 as if it were a Lender
hereunder. Such authorization (and the related obligations under
Section 12.13(b)) shall survive the repayment of the Loans, the
5
expiration or termination of the Commitments or the termination
of this Agreement or any provision hereof.
(b) CONFIDENTIALITY. The Administrative Agent and each of
the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be
disclosed (i) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and
other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information
confidential), (ii) to the extent requested by any Governmental
Authority, (iii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iv) to
any other party to this Agreement, (v) in connection with the
exercise of any remedies hereunder or under any other Credit
Document or any suit, action or proceeding relating to this
Agreement or any other Credit Document or the enforcement of
rights hereunder or thereunder, (vi) subject to an agreement
containing provisions substantially the same as those of this
paragraph, (x) to any assignee of or participant in, or any
prospective assignee of or participant in, any of its rights or
obligations under this Agreement or (y) any actual or prospective
counterparty (or its advisors) to any swap or derivative
transaction relating to the Company and its obligations,
(vii) with the prior written consent of the Company or (viii) to
the extent such Information (A) becomes publicly available other
than as a result of a breach of this paragraph or (B) becomes
available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than an Obligor. For
the purposes of this paragraph, "INFORMATION" means all
information received from any Obligor relating to the Company and
its Subsidiaries, other than any such information that is
available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by an Obligor; PROVIDED
that, in the case of information received from an Obligor after
the Effective Date, such information is clearly identified at the
time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this
Section 12.13 shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree
of care to maintain the confidentiality of such Information as
such Person would accord to its own confidential information.
Notwithstanding the foregoing, the Administrative Agent, the
Lenders and the Obligors (and each of their respective employees,
representatives or other agents) may disclose to any and all
persons, without limitation of any kind, the U.S. tax treatment
and U.S. tax structure of the transactions contemplated by this
Agreement and all materials of any kind (including opinions or
other tax analyses) that are provided to such person relating to
such tax treatment or tax structure, other than any information
6
for which nondisclosure is reasonably necessary in order to
comply with applicable securities laws, and except that, with
respect to any document or similar item that in either case
contains information concerning the U.S. tax treatment or U.S.
tax structure of such transactions as well as other information,
this paragraph shall only apply to such portions of the document
or similar item that relate to such tax treatment or tax
structure."
2.11. Annex I to the Existing Credit Agreement shall be
deleted in its entirety and replaced with Annex I hereto, and each
reference in the Existing Credit Agreement to "Annex I" (including any
indirect references thereto) shall be deemed to be references to
Annex I to this Agreement.
Section 3. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to the Lenders that (i) both immediately prior
to this Agreement becoming effective and after giving effect thereto,
no Default has occurred and is continuing and (ii) the representations
and warranties made by the Company and each Designated Borrower, as
applicable, in the Credit Agreement (after giving effect to this
Agreement) and each other Credit Document shall be true and complete
on and as of the Effective Date (as defined below) 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) as if each reference
therein to "this Agreement" (or words of similar import) or in such
other Credit Documents to "the Credit Agreement" (or words of similar
import) included reference to the Credit Agreement.
Section 4. CONDITIONS PRECEDENT. The amendment and
restatement set forth herein (including the amendments set forth in
Section 2 hereof) shall become effective on the date (the "EFFECTIVE
DATE") on which the Administrative Agent shall have received the
following, each of which shall be satisfactory to the Administrative
Agent (and, to the extent specified below, to each Lender) in form and
substance:
(a) EXECUTION OF THIS AGREEMENT. One or more counterparts
of this Agreement executed by the Company, the Administrative
Agent, each of the Existing Lenders (other than the Retiring
Lenders) and each of the New Lenders (and by its execution and
delivery thereof, each New Lender agrees that, as of the
Effective Date, it shall become a "Lender" for all purposes of
this Credit Agreement having a Commitment in the amount set forth
opposite such New Lender's name in Annex I hereto) (or written
evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this
Agreement).
7
(b) OPINIONS. Opinions, each dated the Effective Date, of
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, special Illinois counsel to the Company,
and of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Vice-President - General Counsel to
the Company, each in form and substance satisfactory to the
Administrative Agent (and the Company hereby instructs each such
counsel to deliver such opinion to the Lenders and the
Administrative Agent).
(c) FEES AND EXPENSES. Evidence satisfactory to the
Administrative Agent that the Borrowers shall have paid in full
(i) all unpaid principal and interest on any outstanding Loan
under the Existing Credit Agreement, (ii) all fees, expenses and
any other amounts due and payable in connection with such Loans
accrued to the Effective Date to the Administrative Agent and the
Lenders under the Existing Credit Agreement and (iii) all fees
and other amounts due and payable by the Company on or prior to
the Effective Date in connection with this Agreement.
(d) RETIRING LENDER CONSENTS. An instrument signed by each
Retiring Lender pursuant to which such Retiring Lender shall
cease to be a "Lender" under the Existing Credit Agreement as
amended and restated hereby in form and substance satisfactory to
the Administrative Agent.
(e) OTHER DOCUMENTS. Such certificates or other documents
as the Administrative Agent or any Lender or special New York
counsel to JPMCB may reasonably request.
Section 5. MISCELLANEOUS. This Agreement may be executed
in any number of counterparts, all of which taken together shall
constitute one and the same agreement and any of the parties hereto
may execute this Agreement by signing any such counterpart. This
Agreement shall be governed by, and construed in accordance with the
law of the State of New York.
8
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year
first above written.
▇▇▇▇▇▇ RUBBERMAID INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President - Treasurer
Address for Notices:
▇▇▇▇▇▇ Rubbermaid Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice-President-Treasurer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
9
ADMINISTRATIVE AGENT
--------------------
JPMORGAN CHASE BANK,
as Administrative Agent
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Address for Notices:
JPMorgan Chase Bank
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ / Floor: 10
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
10
LENDERS
-------
JPMORGAN CHASE BANK
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
11
BANK ONE, NA
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
12
BANK OF AMERICA, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Horos
Title: Vice President
13
BNP PARIBAS
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
14
BARCLAYS BANK PLC
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Associate Director
15
CITIBANK, N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
16
COMMERZBANK AKTIENGESELLSCHAFT
NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
By /s/ ▇▇▇▇▇▇ ▇. Warning
-------------------------------
Name: ▇▇▇▇▇▇ ▇. Warning
Title: Assistant Vice President
17
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Deputy General Manager
18
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK
By /s/ Jaap L. Tonckens
-------------------------------
Name: Jaap L. Tonckens
Title: Vice President
19
BANCA DI ROMA - CHICAGO BRANCH
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
By /s/ Enrico Verdoscia
-------------------------------
Name: Enrico Verdoscia
Title: Senior Vice President
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By /s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
21
BANCO BILBAO VIZCAYA ARGENTARIA S.A.
NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
22
ING BANK N.V.
By /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
23
THE NORTHERN TRUST COMPANY
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
24
BANK HAPOALIM B.M.
By /s/ ▇▇▇▇ ▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
25
NATIONAL AUSTRALIA BANK LIMITED
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director - Diversified
Industries
26
DANSKE BANK
By /s/ ▇▇▇▇ ▇'▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇'▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
27
NORDEA BANK FINLAND PLC
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: First Vice President
28
FIFTH THIRD BANK
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
29
