EXHIBIT 4.1
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AMENDMENT NO. 1
AMENDMENT NO. 1 dated as of June 13, 2003 to the Credit
Agreement referred to below, between NEWELL RUBBERMAID INC. (the
"COMPANY" or the "BORROWER"); each of the lenders party to said Credit
Agreement (individually, a "LENDER" and, collectively, the "LENDERS")
that is a signatory hereto; and JPMORGAN CHASE BANK, as administrative
agent for the Lenders (in such capacity, together with its successors
in such capacity, the "ADMINISTRATIVE AGENT").
The Borrower, the Lenders and the Administrative Agent are
parties to a Five-Year Credit Agreement dated as of June 14, 2002 (as
amended and in effect immediately prior to the effectiveness of this
Amendment No. 1, the "CREDIT AGREEMENT"), providing, subject to the
terms and conditions thereof, for extensions of credit to be made by
the Lenders to the Borrowers (as defined therein). The parties wish
to amend the Credit Agreement in certain respects, and accordingly,
the parties hereto hereby agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined in
this Amendment No. 1, terms defined in the Credit Agreement are used
herein as defined therein.
Section 2. AMENDMENTS. Upon satisfaction of the conditions
set forth in Section 4 of this Amendment No. 1, but effective as of
the date hereof, the Credit Agreement shall be amended as follows:
2.01. CREDIT AGREEMENT REFERENCES. References in the
Credit Agreement to "this Agreement" (and indirect references such as
"hereunder", "hereby", "herein" and "hereof") shall be deemed to be
references to the Credit Agreement as amended hereby.
2.02. CERTAIN DEFINITIONS. Section 1.01 of the Credit
Agreement shall be amended as follows:
A. The definition of ""APPLICABLE FACILITY FEE RATE",
"APPLICABLE UTILIZATION FEE RATE" and "APPLICABLE MARGIN"" shall be
replaced with the following definition (which shall be inserted in the
appropriate alphabetical location):
"ADDITIONAL MARGIN", "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 Committed Loan:
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Rating Rating Rating Rating Rating
Group Group Group Group Group
I II III IV V
------ ------ ------ ------ ------
<s> <c> <c> <c> <c> <c>
Applicable Facility
Fee Rate 0.07% 0.10% 0.125% 0.15% 0.225%
Applicable Margin for Committed
LIBOR Loans 0.18% 0.30% 0.375% 0.475% 0.65%
Applicable Margin for
Base Rate Loans 0% 0% 0% 0% 0%
Additional Margin (= 50%) 0.05% 0.10% 0.125% 0.125% 0.25%
Any change in the Additional Margin, the Applicable Facility
Fee Rate or the Applicable Margin by reason of a change in the
Moody's 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 Credit Agreement shall be further
amended by adding the following new definition and inserting the same
in the appropriate alphabetical location, 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.
2.03. ADDITIONAL MARGIN. Each reference in the Credit
Agreement to the words "Applicable Utilization Fee Rate" shall be
replaced with the words "Additional Margin".
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2.04. FEES. Section 2.06(b) of the Credit Agreement shall
be deleted in its entirety and replaced with the words "(b)
[Intentionally Omitted]".
2.05. INTEREST. Clauses (i) and (ii) of Section 3.02(a) of
the 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
Additional Margin (if any);
(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);".
2.06. ASSIGNMENTS AND PARTICIPATIONS. Section 12.05(e) of
the 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)".
2.07. SURVIVAL. Section 12.06 of the 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".
2.08. CONFIDENTIALITY. Section 12 of the 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
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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
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.
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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
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."
Section 3. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to the Lenders that (i) both immediately prior
to this Amendment No. 1 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 Amendment No. 1) and each other Credit Document shall be true
and complete 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) 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 this Amendment No. 1.
Section 4. CONDITIONS. The amendments to the Credit
Agreement set forth in Section 2 of this Amendment No. 1 shall become
effective, as of the date hereof, upon receipt by the Administrative
Agent of one or more counterparts of this Amendment No. 1 executed by
the Borrower and the Majority Lenders.
Section 5. MISCELLANEOUS. The Borrower shall pay all
reasonable expenses incurred by the Administrative Agent, including
the reasonable fees, charges and disbursements of Milbank, Tweed,
Hadley & McCloy LLP, special New York counsel to the Administrative
Agent, in connection with the preparation, negotiation, execution and
delivery of this Amendment No. 1. Except as herein provided, the
Credit Agreement shall remain unchanged and in full force and effect.
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. This Amendment No. 1
shall be governed by, and construed in accordance with, the law of the
State of New York.
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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 RUBBERMAID INC.
By /s/ Douglas L. Martin
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Name: Douglas L. Martin
Title: Vice President - Treasurer
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LENDERS
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JPMORGAN CHASE BANK
By /s/ Tina L. Ruyter
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Name: Tina L. Ruyter
Title: Vice President
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BANK ONE, NA
By /s/ Sabir Hashmy
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Name: Sabir Hashmy
Title: Director
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BANK OF AMERICA, N.A.
By /s/ Shannon Burks Horos
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Name: Shannon Burks Horos
Title: Vice President
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BNP PARIBAS
By /s/ Rosalie C. Hawley
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Name: Rosalie C. Hawley
Title: Director
By /s/ Christine L. Howatt
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Name: Christine L. Howatt
Title: Director
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BARCLAYS BANK PLC
By /s/ Alison McGuigan
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Name: Alison McGuigan
Title: Associate Director
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COMMERZBANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By /s/ Albert Morrow
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Name: Albert Morrow
Title: Assistant Vice President
By /s/ Graham A. Warning
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Name: Graham A. Warning
Title: Assistant Vice President
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THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By /s/ Shinichiro Munechika
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Name: Shinichiro Munechika
Title: Deputy General Manager
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CITIBANK, N.A.
By /s/ David L. Harris
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Name: David L. Harris
Title: Vice President
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MORGAN STANLEY BANK
By /s/ Jaap L. Tonckens
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Name: Jaap L. Tonckens
Title: Vice President
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THE NORTHERN TRUST COMPANY
By /s/ Craig L. Smith
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Name: Craig L. Smith
Title: Vice President
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ING BANK N.V.
By /s/ Alan Duffy
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Name: Alan Duffy
Title: Director
By /s/ Aidan Neill
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Name: Aidan Neill
Title: Director
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BANCA DI ROMA - CHICAGO BRANCH
By /s/ James Semonchik
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Name: James Semonchik
Title: Vice President
By /s/ Enrico Verdoscia
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Name: Enrico Verdoscia
Title: Senior Vice President
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U.S. BANK NATIONAL ASSOCIATION
By /s/ Janell W. Stanosz
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Name: Janell W. Stanosz
Title: Vice President
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THE BANK OF NEW YORK
By /s/ M. Scott Donaldson
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Name: M. Scott Donaldson
Title: Assistant Vice President
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NORDEA BANK FINLAND PLC
By /s/ Thomas P. Hickey
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Name: Thomas P. Hickey
Title: Vice President
By /s/ Henrik M. Steffensen
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Name: Henrik M. Steffensen
Title: First Vice President
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DANSKE BANK
By /s/ John O'Neill
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Name: John O'Neill
Title: Vice President
By /s/ Peter L. Hargraves
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Name: Peter L. Hargraves
Title: Vice President
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FIFTH THIRD BANK (CHICAGO)
By /s/ Christopher D. Jones
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Name: Christopher D. Jones
Title: Vice President
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BANK HAPOALIM B.M.
By /s/ Marc Bosc
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Name: Marc Bosc
Title: Vice President
By /s/ Lehroy Hackett
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Name: Lehroy Hackett
Title: Vice President