Looking for an agreement? Search from over 1 million agreements now.

$400,000,000 Term Loan Credit Agreement

This is an actual contract by Newell Rubbermaid.
Browse the agreement preview below and buy the entire agreement for $35
Search This Document
Exhibit 10.2

NEWELL RUBBERMAID INC.


CREDIT AGREEMENT

Dated as of September 19, 2008


$400,000,000


BANK OF AMERICA, N.A.

as Administrative Agent

and

JP MORGAN CHASE BANK, N.A.,

as Syndication Agent

BANC OF AMERICA SECURITIES LLC

and

J.P. MORGAN SECURITIES INC.,

as Joint Lead Arrangers and Joint Bookrunners

TABLE OF CONTENTS

Page

SECTION 1 DEFINITIONS AND ACCOUNTING MATTERS 1

1.01 Certain Defined Terms 1

1.02 Accounting Terms and Determinations 14

1.03 Types of Loans 14

1.04 Terms Generally 14

SECTION 2 TERM LOAN 15

2.01 Term Loan 15

2.02 Borrowing of the Term Loan 15

2.03 Fees 16

2.04 Several Obligations; Remedies Independent 16

2.05 Evidence of Debt 16

2.06 Prepayments; Conversions and Continuations 16

SECTION 3 PAYMENTS OF PRINCIPAL AND INTEREST 18

3.01 Repayment of Loans 18

3.02 Interest 18

SECTION 4 PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC. 19

4.01 Payments 19

4.02 Pro Rata Treatment 20

4.03 Computations 20

4.04 Non-Receipt of Funds by the Administrative Agent 21

4.05 Set-off; Sharing of Payments 21

SECTION 5 YIELD PROTECTION AND ILLEGALITY 22

5.01 Additional Costs 22

5.02 Limitation on Types of Loans 23

5.03 Illegality 24

5.04 Base Rate Loans Pursuant to Sections 5.01 and 5.03 24

5.05 Compensation 24

5.06 Taxes 25

5.07 Replacement of Lenders 26

SECTION 6 CONDITIONS PRECEDENT 27

6.01 Effective Date 27

6.02 Credit Extension 28

SECTION 7 REPRESENTATIONS AND WARRANTIES 28

7.01 Corporate Existence 28

7.02 Financial Condition 29

7.03 Litigation 29

7.04 No Breach 30

7.05 Corporate Action 30

7.06 Approvals 30

7.07 Use of Credit 30

7.08 ERISA 30

7.09 Investment Company Act 30

7.10 Credit Agreements 31

7.11 Hazardous Materials 31


i

7.12 Taxes 31

7.13 True and Complete Disclosure 31

7.14 Subsidiaries 32

7.15 Compliance with Law. 32

SECTION 8 COVENANTS OF THE BORROWER 32

8.01 Financial Statements 32

8.02 Litigation 35

8.03 Corporate Existence, Etc. 35

8.04 Insurance 35

8.05 Use of Proceeds 35

8.06 Indebtedness 36

8.07 Fundamental Changes 36

8.08 Liens 37

8.09 Lines of Businesses 38

8.10 Total Indebtedness to Total Capital 38

8.11 Interest Coverage Ratio 38

8.12 Transactions with Affiliates 39

SECTION 9 EVENTS OF DEFAULT 39

SECTION 10 THE ADMINISTRATIVE AGENT 42

10.01 Appointment, Powers and Immunities 42

10.02 Reliance by Administrative Agent 42

10.03 Defaults 43

10.04 Rights as a Lender 43

10.05 Indemnification 43

10.06 Non-Reliance on Administrative Agent and Other Lenders 43

10.07 Failure to Act 44

10.08 Resignation or Removal of Administrative Agent 44

10.09 Lead Arrangers and Other Agents 44

10.10 Exculpatory Provisions 44

10.11 Administrative Agent May File Proofs of Claim 45

SECTION 11 MISCELLANEOUS 46

11.01 Waiver 46

11.02 Notices 46

11.03 Expenses, Etc 47

11.04 Amendments, Etc 48

11.05 Assignments and Participations 48

11.06 Survival 51

11.07 Captions 51

11.08 Counterparts; Effectiveness 51

11.09 Governing Law; Jurisdiction; Service of Process; Waiver of Jury Trial; Etc 51

11.10 Successors and Assigns 52

11.11 USA PATRIOT Act 52

11.12 No Advisory or Fiduciary Relationship 52


ii

Annex I - Commitments

Schedule I - List of Indebtedness

Schedule II - List of Certain Liens

EXHIBIT A - Form of Loan Notice

EXHIBIT B - Form of Assignment and Assumption


iii

CREDIT AGREEMENT dated as of September 19, 2008, between NEWELL RUBBERMAID INC., a corporation duly organized and validly existing under the laws of the State of Delaware (together with its successors, the " Borrower" ); each of the lenders which is a signatory hereto (together with its successors and permitted assigns, individually, a " Lender" and, collectively, the " Lenders" ); and BANK OF AMERICA, N.A., as administrative agent for the Lenders (in such capacity, together with its successors in such capacity, the " Administrative Agent" ).

The Borrower has requested that the Lenders make a term loan to the Borrower in an aggregate principal amount not exceeding $400,000,000 on the Effective Date. The Lenders are prepared to make such term loan upon the terms and conditions hereof, and, accordingly, the parties agree as follows:

SECTION 1

DEFINITIONS AND ACCOUNTING MATTERS

1.01 Certain Defined Terms . As used herein, the following terms shall have the following meanings (all terms defined in this Section 1 or in other provisions of this Agreement in the singular to have the same meanings when used in the plural and vice versa):

" Additional Costs" has the meaning provided in Section 5.01 .

" Adjusted LIBO Rate" shall mean, for any LIBO Rate Loan for any Interest Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/16 of 1%) determined by the Administrative Agent to be equal to the LIBO Rate for the Interest Period for such Loan divided by 1 minus the Reserve Requirement for such Loan for such Interest Period.

" Administrative Agent" means Bank of America in its capacity as administrative agent under any of the Credit Documents.

" Administrative Agent Fee Letter" means the letter agreement dated August 26, 2008 among the Borrower, Bank of America and BAS.

" Administrative Agent' s Account" shall mean, such account as the Administrative Agent shall designate in a notice to the Borrower and the Lenders.

" Advance Period" has the meaning provided in Section 4.04 .

" Administrative Questionnaire" shall mean an Administrative Questionnaire in the form supplied by the Administrative Agent.

" Affected Loans" has the meaning provided in Section 5.04 .

" Affected Type" has the meaning provided in Section 5.04 .


1

" Affiliate" shall mean, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

" Agent Parties" has the meaning provided in Section 11.02 .

" Applicable Lending Office" shall mean for each Lender and for each Type of Loan the lending office of such Lender (or of an Affiliate of such Lender) designated for such Type of Loan in the Administrative Questionnaire submitted by such Lender or such other office of such Lender (or of an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and the Borrower.

" 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 the relevant Type of Loan:

Rating
Group I Rating
Group II Rating
Group III Rating
Group IV Rating
Group V Rating
Group VI

Applicable Margin for LIBO Rate Loans 0.75 % 1.00 % 1.375 % 1.75 % 2.00 % 2.50 %

Applicable Margin for Base Rate Loans 0 % 0 % 0.375 % 0.75 % 1.00 % 1.50 %

Any change in 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.

" Applicable Percentage" shall mean, with respect to any Lender at any time, with respect to such Lender' s portion of the outstanding Term Loan at any time, the percentage of the outstanding principal amount of the Term Loan held by such Lender at such time. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Annex I or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

" Approved Fund" shall mean 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.

" Assignment and Assumption" shall mean an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 11.05 ), and accepted by the Administrative Agent, in the form of Exhibit B or any other form approved by the Administrative Agent.


2

" Bank of America" shall mean Bank of America, N.A. and its successors.

" BAS" means Banc of America Securities LLC, in its capacity as joint lead arranger and joint bookrunner.

" Bankruptcy Code" means the United States Bankruptcy Code of 1978, as amended from time to time.

" Base Rate" shall mean, with respect to any Base Rate Loan, for any day, the higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% and (b) the Prime Rate for such day.

" Base Rate Loans" shall mean Loans which bear interest based upon the Base Rate.

" Borrower" has the meaning specified in the introductory paragraph hereto.

" Borrower Materials" has the meaning provided in Section 8.01 .

" Business Day" shall mean any day (a) that is not a Saturday, Sunday or other day on which commercial banks are authorized or required to close in New York City and (b) if such day relates to the giving of notices in connection with a borrowing of, a payment or prepayment of principal of or interest on, Conversion of or into, or an Interest Period for, a LIBO Rate Loan or a notice by the Borrower with respect to any such borrowing, payment, prepayment, Conversion or Interest Period, also on which dealings in deposits are carried out in the London interbank market.

" Capital Lease Obligations" shall mean, as to any Person, the obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real and/or personal property which obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP (including Statement of Financial Accounting Standards No. 13 of the Financial Accounting Standards Board) and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP (including such Statement No. 13).

" Code" shall mean the Internal Revenue Code of 1986, as amended from time to time.

" Commitment" shall mean, as to each Lender, the obligation of such Lender to make its portion of the Term Loan to the Borrower pursuant to Section 2.01 , in the principal amount set opposite such Lender' s name on Annex I hereto under the caption " Commitment" . The aggregate principal amount of the Commitments of all of the Lenders as in effect on the Closing Date is FOUR HUNDRED MILLION DOLLARS ($400,000,000).

" Commitment Letter" means the letter agreement dated August 26, 2008 from Bank of America, BAS, JPMCB and JPMorgan and accepted and agreed to by the Borrower.

" Consolidated EBITDA" shall mean, for any period, Consolidated Net Income for such period plus , without duplication and to the extent deducted in determining such Consolidated Net


3

Income for such period, the sum of (a) income tax expense, (b) interest expense, amortization or writeoff of debt discount and debt issuance costs and commissions, discounts and other fees and charges associated with Indebtedness (including the Loans), (c) depreciation and amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill) and organization costs and (e) any extraordinary, unusual or non-recurring charges or losses, and minus , to the extent included in determining such Consolidated Net Income for such period, the sum of (a) interest income, (b) any extraordinary, unusual or non-recurring income or gains (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, gains on the sales of assets outside of the ordinary course of business) and (c) any other non-cash income, all as determined on a consolidated basis.

" Consolidated Interest Expense" shall mean, for any period and without duplication, total interest expense (including that attributable to Capital Lease Obligations) of the Borrower and its Subsidiaries for such period with respect to all outstanding Indebtedness of the Borrower and its Subsidiaries accrued or capitalized during such period (whether or not actually paid during such period) (including all commissions, discounts and other fees and charges owed with respect to standby letters of credit and bankers' acceptance financing and net costs under Swap Agreements in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP), but excluding any interest expense for such period relating to quarterly or monthly income preferred securities, quarterly income capital securities or other similar securities.

" Consolidated Net Income" shall mean, for any period, the consolidated net income (or loss) of the Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with the Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary of the Borrower) in which the Borrower or any of its Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Borrower or such Subsidiary in the form of dividends or similar distributions and (c) the undistributed earnings of any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any security issued by the Borrower or any of its Subsidiaries or of any agreement, instrument or other undertaking to which the Borrower or any of its Subsidiaries is a party or by which any of them or their respective property is bound (other than under any Credit Document) or Requirement of Law applicable to such Subsidiary.

" Continue" , " Continuation" and " Continued" shall refer to a continuation pursuant to Section 2.06(c) of a LIBO Rate Loan from one Interest Period to the next Interest Period.

" Control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. " Controlling" and " Controlled" have meanings correlative thereto.

" Controlling Stock Disposition" has the meaning provided in Section 8.07 .


4

" Convert" , " Conversion" and " Converted" shall refer to a conversion pursuant to Section 2.06(c) of one Type of Loans into the other Type of Loans, which may be accompanied by a transfer by a Lender (at its sole discretion) of a Loan from one Applicable Lending Office to another).

" Credit Documents" shall mean this Agreement and the Notes, if any.

" Credit Extension" shall mean the making of the Term Loan hereunder.

" Default" shall mean an Event of Default or an event which with notice or lapse of time or both would become an Event of Default.

" Disposition" shall have the meaning assigned to that term in Section 8.07(vi) .

" Disposition Period" shall mean, for any Disposition, a period of twelve months ending on the date of such Disposition.

" Dollars" and " $" shall mean lawful money of the United States of America.

" Effective Date" shall mean the date hereof.

" Environmental Affiliate" shall mean, as to any Person, any other Person whose liability (contingent or otherwise) for any Environmental Claim such Person may have retained, assumed or otherwise become liable (contingently or otherwise), whether by contract, operation of law or otherwise; provided that each Subsidiary of such Person, and each former Subsidiary or division of such Person transferred to another Person, shall in any event be an " Environmental Affiliate" of such Person.

" Environmental Claim" shall mean, with respect to any Person, any notice, claim, demand or other communication (whether written or oral) by any other Person alleging or asserting liability of such Person for investigatory costs, cleanup costs, governmental response costs, damages to natural resources or other Property, personal injuries, fines or penalties arising out of, based on or resulting from (a) the presence, or release into the environment, of any hazardous material at any location, whether or not owned by such Person, or (b) circumstances forming the basis of any violation, or alleged violation, of any Environmental Law.

" Environmental Laws" shall mean any and all Federal, state, local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions relating to the environment or to emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals or industrial, toxic or hazardous substances or wastes into the environment, including, without limitation, ambient air, surface water, ground water or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, chemicals or industrial, toxic or hazardous substances or wastes.


5

" ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time.

" ERISA Affiliate" shall mean any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

" Event of Default" shall have the meaning assigned to that term in Section 9.

" Federal Funds Rate" shall mean, for any day, the weighted average (rounded upwards, if necessary, to the nearest 1/100th of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided that (i) if the day for which such rate is to be determined is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (ii) if such rate is not so published for any day, the Federal Funds Rate for such day shall be the average (rounded upwards, if necessary, to the next 1/100 th of 1%) of the quotations for such day for transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

" Fee Letter" means the letter agreement dated August 26, 2008 among the Borrower, Bank of America, BAS, JPMCB and JPMorgan.

" Fitch" shall mean Fitch Investors Services, Inc. or any successor thereto.

" Fitch Rating" shall mean, as of any date, the rating most recently published by Fitch relating to the unsecured, long-term, senior debt securities of the Borrower.

" GAAP" shall mean generally accepted accounting principles applied on a basis consistent with those which, in accordance with the last sentence of Section 1.02(a) , are to be used in making the calculations for purposes of determining compliance with the provisions of this Agreement.

" Governmental Authority" shall mean any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange and any self-regulatory organization.

" Guarantee" of any Person shall mean any guarantee, endorsement, contingent agreement to purchase or to furnish funds for the payment or maintenance of, or any other contingent liability on or with respect to, the Indebtedness, other obligations, net worth, working capital or earnings of any other Person (including, without limitation, the liability of such Person in respect of the Indebtedness of any partnership of which such Person is a general partner), or the


6

guarantee by such Person of the payment of dividends or other distributions upon the stock of any other Person, or the agreement by such Person to purchase, sell or lease (as lessee or lessor) property, products, materials, supplies or services primarily for the purpose of enabling any other Person to make payment of its obligations or to assure a creditor against loss, and the verb " Guarantee" shall have a correlative meaning, provided that the term " Guarantee" shall not include endorsements for collection or deposits in the ordinary course of business.

" Indebtedness" shall mean, as to any Person at any date (without duplication): (i) indebtedness created, issued, incurred or assumed by such Person for borrowed money or evidenced by bonds, debentures, notes or similar instruments; (ii) all obligations of such Person to pay the deferred purchase price of property or services, excluding, however, trade accounts payable (other than for borrowed money) arising in, and accrued expenses incurred in, the ordinary course of business of such Person so long as such trade accounts payable are paid within 120 days of the date the respective goods are delivered or the services are rendered; (iii) all Indebtedness of others secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; (iv) all Indebtedness of others Guaranteed by such Person; (v) all Capital Lease Obligations; (vi) reimbursement obligations of such Person (whether contingent or otherwise) in respect of bankers acceptances, surety or other bonds and similar instruments (other than commercial, standby or performance letters of credit); (vii) unpaid reimbursement obligations of such Person (other than contingent obligations) in respect of commercial, standby or performance letters of credit; and (viii) debt securities or obligations (including preferred debt securities) issued in connection with Permitted Securitizations included as indebtedness in accordance with GAAP on a consolidated balance sheet of such Person.

" Interest Coverage Ratio" shall mean, as at any date of determination thereof, the ratio of (a) Consolidated EBITDA for the period of four consecutive fiscal quarters ending on or most recently ended prior to such date to (b) Consolidated Interest Expense for such period.

" Interest Period" shall mean, with respect to any LIBO Rate Loan, each period commencing on the date such LIBO Rate Loan is made or Converted from a Loan of another Type or the last day of the next preceding Interest Period for such Loan and ending on the numerically corresponding day in the first, second, third or sixth calendar month thereafter, as the Borrower may select as provided in Section 2.02 , except that each Interest Period that commences on the last Business Day of a calendar month (or on any day for which there is no numerically corresponding day in the appropriate subsequent calendar month) shall end on the last Business Day of the appropriate subsequent calendar month. Notwithstanding the foregoing: (i) if any Interest Period would otherwise commence before and end after the Maturity Date, such Interest Period shall not be available hereunder; (ii) each Interest Period which would otherwise end on a day which is not a Business Day shall end on the next succeeding Business Day (or, in the case of an Interest Period for any LIBO Rate Loans, if such next succeeding Business Day falls in the next succeeding calendar month, on the next preceding Business Day); and (iii) notwithstanding clause (i) above, no Interest Period for any LIBO Rate Loans shall have a duration of less than one month and, if the Interest Period for any such Loans would otherwise be a shorter period, such Loans shall not be available hereunder.

" JPMCB" shall mean JPMorgan Chase Bank, N.A.


7

" JPMorgan" shall mean J.P. Morgan Securities Inc., in its capacity as a joint lead arranger and joint bookrunner.

" Jurisdiction" shall mean, with respect to the Borrower, the country or countries (including any political subdivision or taxing authority thereof or therein) under whose laws the Borrower is organized or where the Borrower is domiciled, resident or licensed or otherwise qualified to do business or where any significant part of the Property of the Borrower is located.

" LIBO Rate" shall mean, for any Interest Period for any LIBO Rate Loan, the rate for deposits with a maturity comparable to such Interest Period commencing on the first day of such Interest Period equal to the British Bankers Association LIBOR Rate (" BBA LIBOR" ), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, on the Quotation Date. If such rate is not available at such time for any reason, then the " LIBO Rate" for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the LIBO Rate Loan being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of America' s London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.

" LIBO Rate Loans" shall mean Loans the interest rates on which are determined on the basis of Adjusted LIBO Rates.

" Lien" shall mean, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset. For the purposes of this Agreement, the Borrower or any Subsidiary shall be deemed to own subject to a Lien any asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such asset.

" Loans" means an extension of credit by a Lender to the Borrower under Article II in the form of a portion of the Term Loan.

" Loan Notice" means a notice of (a) a borrowing of the Term Loan pursuant to Section 2.02(a) , (b) a conversion of Loans from one type to the other pursuant to Section 2.06 (c) a continuation of LIBO Rate Loans pursuant to Section 2.06(c) , which, if in writing, shall be substantially in the form of Exhibit A .

" Majority Lenders" shall mean, at any time, Lenders holding in the aggregate more than 50% of the outstanding Term Loan at such time.

" Mandatory Cost" shall mean, with respect to any Lender, the cost, if any, imputed to such Lender of compliance with the cash ratio and special deposit requirements of the Bank of England and/or the banking supervision or other costs imposed by the Financi
-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |