EXHIBIT 10a1
TERMINATION, REPLACEMENT AND RESTATEMENT
AGREEMENT dated as of June 25, 2002, among FORTUNE BRANDS, INC.,
a Delaware corporation (the "Company"), the financial
institutions listed in Annex I hereto under the captions
"Continuing Lenders" (the "Continuing Lenders") and "Additional
Lenders" (the "Additional Lenders", and together with the
Continuing Lenders, the "Lenders"), JPMORGAN CHASE BANK, as
successor to The Chase Manhattan Bank, a New York banking
corporation, as administrative agent (in such capacity, the
"Administrative Agent") for the Lenders, and CITIBANK, N.A., as
Syndication Agent. Capitalized terms used and not defined herein
shall have the meanings assigned to such terms in the New Credit
Agreement (as defined below).
WHEREAS, the Company, the Continuing Lenders, certain other lenders and the
Administrative Agent are parties to the 364-Day Revolving Credit Agreement dated
as of July 12, 2001 (the "Original Credit Agreement");
WHEREAS, the Original Credit Agreement is to be terminated as provided
herein; and
WHEREAS, the Continuing Lenders and the Additional Lenders are willing,
subject to the terms and conditions of this Agreement, to replace the Original
Credit Agreement with a new credit agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual agreements contained in this
Agreement and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Replacement and Restatement. Subject to the conditions set forth
in Section 3 hereof:
(a) the Original Credit Agreement, including all schedules and
exhibits thereto, is hereby terminated, subject to applicable provisions
set forth therein as to the survival of certain rights and obligations, and
simultaneously replaced by a new credit agreement (the "New Credit
Agreement") identical in form and substance to the Original Credit
Agreement except as expressly set forth below.
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(b) The heading of the New Credit Agreement shall read as follows:
"364-DAY REVOLVING CREDIT AGREEMENT dated as of July 11,
2002, among FORTUNE BRANDS, INC., a Delaware corporation, the
LENDERS party hereto, JPMORGAN CHASE BANK, as Administrative
Agent, and CITIBANK, N.A., as Syndication Agent."
and all references to the "Effective Date" in the New Credit Agreement
shall be deemed to refer to July 11, 2002.
(c) The definition of "Administrative Agent" in Section 1.01 of the
New Credit Agreement shall read as follows:
"Administrative Agent" means JPMorgan Chase Bank, in its capacity
as administrative agent for the Lenders hereunder.
(d) The definition of "Maturity Date" in Section 1.01 of the New
Credit Agreement shall read as follows:
"Maturity Date" means the Termination Date, or, if the Company
exercises its option under Section 2.21, July 10, 2004.
(e) The definition of "Prime Rate" in Section 1.01 of the New Credit
Agreement shall read as follows:
"Prime Rate" means the rate in interest per annum publicly
announced from time to time by JPMorgan Chase Bank as its prime rate
in effect at its principal office in New York City; each change in the
Prime Rate shall be effective from and including the date such change
is publicly announced as being effective.
(f) The definition of "Termination Date" in Section 1.01 of the New
Credit Agreement shall read as follows:
"Termination Date" means July 10, 2003.
(g) Section 2.10 of the New Credit Agreement shall have a new
paragraph (e) at the end thereof, which shall read as follows:
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(e) For each day after the Termination Date that there is any
Total Revolving Exposure as a result of the Company exercising its
option under Section 2.21, the Company agrees to pay to the
Administrative Agent for the account of each Lender a term-out fee,
which shall accrue at a rate per annum equal to 0.25% on the amount of
the Revolving Credit Exposure of such Lender on such day. Accrued
term-out fees shall be payable in arrears on the last day of March,
June, September and December of the period following the Termination
Date until the date that the Total Revolving Exposure is fully repaid,
at which time any such accrued fees remaining unpaid shall be due. All
term-out fees shall be payable in Dollars and shall be computed on the
basis of a year of 360 days and shall be payable for the actual number
of days elapsed (including the first day but excluding the last day).
(h) Section 3.04 of the New Credit Agreement shall read as follows:
SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) The Company has heretofore furnished to the Lenders its
consolidated balance sheet and statements of income, stockholders
equity and cash flows (i) as of and for the fiscal year ended December
31, 2001, reported on by PricewaterhouseCoopers, independent public
accountants, and (ii) as of and for the fiscal quarter and the portion
of the fiscal year ended March 31, 2002, as filed by the Company with
the Securities and Exchange Commission under the Securities Exchange
Act of 1934, as amended. Such financial statements present fairly, in
all material respects, the financial position and results of
operations and cash flows of the Company and its consolidated
Subsidiaries as of such dates and for such periods in accordance with
GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii)
above.
(b) Since December 31, 2001, there has been no material adverse
change in the business, assets, operations or financial condition of
the Company and its Subsidiaries, taken as a whole.
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(i) The references to "July 12, 2001" in Exhibit A, Exhibit B and
Exhibit D of the Original Credit Agreement shall be changed to
references to "July 11, 2002" in the New Credit Agreement.
(j) Schedule 2.01 to the New Credit Agreement shall be in the
form of Schedule 2.01 to this Agreement.
(k) Schedule 3.06 to the New Credit Agreement shall be in the
form of Schedule 3.06 to this Agreement.
SECTION 2. Representations and Warranties. The Company
represents and warrants to each of the Lenders that:
(a) This Agreement and the New Credit Agreement have been duly
authorized and, in the case of this Agreement, executed and delivered
by it and each constitutes its legal, valid and binding obligations
enforceable in accordance with their terms.
(b) The representations and warranties set forth in Article III
of the New Credit Agreement, after giving effect to this Agreement,
are true and correct on the date hereof with the same effect as if
made on the date hereof.
(c) Before and after giving effect to this Agreement, no Default
has occurred and is continuing.
SECTION 3. Conditions to Effectiveness. This Agreement shall
become effective as of July 11, 2002 (the "Effective Date") upon the occurrence
of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement
signed on behalf of such party or (ii) 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.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of Xxxxxxxxxx & Xxxxx LLP, counsel for
the Company, substantially in the form of Exhibit B to the Original
Credit Agreement but referring to this
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Agreement and the New Credit Agreement and covering such other matters
relating to the Company, this Agreement, the New Credit Agreement or
the Transactions as the Required Lenders shall reasonably request. The
Company hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents
and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good
standing of the Company, the authorization of the Transactions and any
other legal matters relating to the Company, this Agreement, the New
Credit Agreement or the Transactions, all in form and substance
reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, a Vice President
or a Financial Officer of the Company, confirming compliance with the
conditions set forth in paragraphs (b) and (c) of Section 2.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including the fees set forth in Section 4 and, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by the Company hereunder.
(f) The commitments under the Original Credit Agreement shall
have been terminated and all principal, interest and other amounts
outstanding thereunder (including all fees accrued thereunder to the
Effective Date) shall have been paid in full.
SECTION 4. Fees. The Company agrees to pay to each Lender a fee
in an amount equal to 0.02% of such Lender's Revolving Commitment (whether used
or unused), in each case as of the Effective Date; provided that the Company
shall have no liability for any such fee if this Agreement does not become
effective pursuant to Section 3.
SECTION 5. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
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SECTION 6. Original Credit Agreement. Until the occurrence of the
Effective Date as provided in Section 3 hereof, the Original Credit Agreement
shall continue in full force and effect in accordance with the provisions
thereof and the rights and obligations of the parties thereto shall not be
affected hereby, all Revolving Commitments and Revolving Loans thereunder shall
continue as set forth therein and all fees and interest accruing under the
Original Credit Agreement shall continue to accrue at the rates provided for
therein.
SECTION 7. Counterparts. This Agreement 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.
SECTION 8. Expenses. The Company agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Agreement including the reasonable fees, charges and disbursements of Cravath,
Swaine & Xxxxx, counsel for the Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first written above.
FORTUNE BRANDS, INC.,
by
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Name:
Title:
JPMORGAN CHASE BANK, individually
and as Administrative Agent,
by
--------------------------------
Name:
Title:
SIGNATURE PAGE TO THE TERMINATION,
REPLACEMENT AND RESTATEMENT
AGREEMENT DATED AS OF JUNE 25,
2002, AMONG FORTUNE BRANDS, INC.,
THE LENDERS, JPMORGAN CHASE BANK,
as administrative agent, and
CITIBANK, N.A., as syndication
agent,
Name of Institution
---------------
by
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Name:
Title:
ANNEX I
Continuing Lenders
JPMorgan Chase Bank
Citibank, N.A.
Fleet National Bank
Barclays Bank PLC
Credit Suisse First Boston
Mizuho Corporate Bank, Ltd.
The Bank of New York
The Northern Trust Company
US Bank National Association
The Bank One, NA (Main Office Chicago)
The Bank of Tokyo-Mitsubishi, Ltd., Chicago Branch
HSBC Bank plc
ABN AMRO Bank N.V.
Westpac Banking Corporation
Additional Lenders
