Exhibit 10a1
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FIVE-YEAR REVOLVING CREDIT AGREEMENT
dated as of
July 12, 2001
among
FORTUNE BRANDS, INC.,
FORTUNE BRANDS FINANCE UK P.L.C.,
The Lenders Party Hereto
THE CHASE MANHATTAN BANK,
as Administrative Agent
and
CITIBANK, N.A.,
as Syndication Agent
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.,
as Joint Advisors, Joint Lead Arrangers
and Joint Bookrunners
FLEET NATIONAL BANK,
CREDIT SUISSE FIRST BOSTON,
BARCLAYS BANK PLC
and
THE DAI-ICHI KANGYO BANK, LTD.,
as Co-Documentation Agents
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
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SECTION 1.01. Defined Terms................................... 1
SECTION 1.02. Classification of Loans and Borrowings.......... 28
SECTION 1.03. Terms Generally ................................ 28
SECTION 1.04. Accounting Terms; GAAP.......................... 29
ARTICLE II
The Credits
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SECTION 2.01. Commitments..................................... 29
SECTION 2.02. Loans and Borrowings............................ 30
SECTION 2.03. Requests for Revolving Borrowings and U.S.
Borrowings...................................... 31
SECTION 2.04. Competitive Bid and Negotiated Rate
Loan Procedures............................... 33
SECTION 2.05. Swingline Loans................................. 38
SECTION 2.06. Funding of Borrowings........................... 39
SECTION 2.07. Interest Elections.............................. 41
SECTION 2.08. Termination and Reduction of
Commitments..................................... 44
SECTION 2.09. Repayment of Loans; Evidence of Debt............ 45
SECTION 2.10. Prepayment of Loans............................. 47
SECTION 2.11. Fees............................................ 48
SECTION 2.12. Interest........................................ 50
SECTION 2.13. Alternate Rate of Interest...................... 51
SECTION 2.14. Increased Costs................................. 53
SECTION 2.15. Break Funding Payments.......................... 55
SECTION 2.16. Taxes........................................... 56
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs............................. 58
SECTION 2.18. Mitigation Obligations; Replacement of
Lenders......................................... 61
SECTION 2.19. Additional Reserve Costs........................ 63
SECTION 2.20. Redenomination of Certain Designated
Foreign Currencies............................ 64
SECTION 2.21. Assigned Dollar Value........................... 65
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ARTICLE III
Representations and Warranties
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SECTION 3.01. Organization; Powers............................ 66
SECTION 3.02. Authorization; Enforceability................... 66
SECTION 3.03. Governmental Approvals; No Conflicts............ 66
SECTION 3.04. Financial Condition; No Material Adverse
Change.......................................... 67
SECTION 3.05. Properties...................................... 67
SECTION 3.06. Litigation and Environmental Matters............ 68
SECTION 3.07. Compliance with Laws and Agreements............. 68
SECTION 3.08. Investment and Holding Company Status........... 68
SECTION 3.09. Taxes........................................... 68
SECTION 3.10. ERISA........................................... 69
SECTION 3.11. Disclosure...................................... 69
ARTICLE IV
Conditions
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SECTION 4.01. Effective Date.................................. 69
SECTION 4.02. Each Credit Event............................... 71
ARTICLE V
Affirmative Covenants
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SECTION 5.01. Financial Statements and Other
Information..................................... 72
SECTION 5.02. Notices of Material Events...................... 73
SECTION 5.03. Existence; Conduct of Business.................. 73
SECTION 5.04 Payment of Obligations.......................... 74
SECTION 5.05. Maintenance of Properties; Insurance............ 74
SECTION 5.06. Books and Records; Inspection Rights............ 74
SECTION 5.07. Compliance with Laws............................ 74
SECTION 5.08. Use of Proceeds ................................ 75
SECTION 5.09. Litigation Report .............................. 75
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ARTICLE VI
Negative Covenants
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SECTION 6.01. Restrictions on Borrowing by Restricted
Subsidiaries.................................. 75
SECTION 6.02. Restrictions on Secured Debt.................... 76
SECTION 6.03. Restrictions on Sale and Lease Back
Transactions.................................. 79
SECTION 6.04. Fundamental Changes............................. 80
SECTION 6.05. Transactions with Affiliates.................... 82
SECTION 6.06. Interest Coverage Ratio......................... 82
ARTICLE VII
Events of Default.................. 82
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ARTICLE VIII
The Administrative Agent............... 86
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ARTICLE IX
Guarantee...................... 89
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ARTICLE X
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Miscellaneous
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SECTION 10.01. Notices......................................... 92
SECTION 10.02. Waivers; Amendments............................. 93
SECTION 10.03. Expenses; Indemnity; Damage Waiver.............. 95
SECTION 10.04. Successors and Assigns.......................... 97
SECTION 10.05. Survival........................................ 102
SECTION 10.06. Counterparts; Integration;
Effectiveness................................. 102
SECTION 10.07. Severability.................................... 103
SECTION 10.08. Right of Setoff................................. 103
SECTION 10.09. Governing Law; Jurisdiction; Consent
to Service of Process......................... 103
SECTION 10.10. Waiver of Jury Trial............................ 105
SECTION 10.11. Headings........................................ 105
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SECTION 10.12. Confidentiality................................. 105
SECTION 10.13. Interest Rate Limitation........................ 106
SECTION 10.14. Judgment........................................ 107
SECTION 10.15. Termination of Existing Credit Facilities....... 108
SCHEDULES:
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Schedule 2.01 -- Commitments
Schedule 3.06 -- Disclosed Matters
EXHIBITS:
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Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Company's Counsel
Exhibit B-2 -- Form of Opinion of Fortune Brands UK's counsel
Exhibit C B- MLA Cost
Exhibit D -- Form of Revolving Note
FIVE-YEAR REVOLVING CREDIT AGREEMENT dated as of
July 12, 2001, among FORTUNE BRANDS, INC., a Delaware
corporation, FORTUNE BRANDS FINANCE UK P.L.C., a public
limited company organized under the laws of England and
Wales, the LENDERS party hereto, THE CHASE MANHATTAN
BANK, as Administrative Agent, and CITIBANK, N.A., as
Syndication Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, 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. With
respect to any Lender, the term "Affiliate" shall be deemed to include (a) any
entity (whether a corporation, partnership, trust or otherwise) that is engaged
in making,
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purchasing, holding or otherwise investing in bank loans and similar extensions
of credit in the ordinary course of its business and is administered or managed
by such Lender or an Affiliate of such Lender and (b) in the case of any Lender
that is a fund that invests in bank loans and similar extensions of credit, any
other fund that invests in bank loans and similar extensions of credit and is
managed by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Base
CD Rate in effect on such day plus 1% and (c) the Federal Funds Effective Rate
in effect on such day plus 2 of 1%. Any change in the Alternate Base Rate due to
a change in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"Alternative Committed Currency" means British Pounds Sterling
or Euro.
"Alternative Currency" means (a) any Alternative Committed
Currency or (b) any other currency specified by the applicable Borrower in a
Competitive Bid Request relating to a proposed Competitive Borrowing if such
currency is freely transferable and convertible into Dollars in the London
market at the time and for which LIBO Rates may be determined at such time by
reference to the Telerate screen as provided in the definition of "LIBO Rate".
"Alternative Currency Borrowing" means a Borrowing comprised
of Alternative Currency Loans.
"Alternative Currency Equivalent" means, with respect to an
amount in Dollars on any date in relation to a specified Alternative Currency,
the amount of such specified Alternative Currency that may be purchased with
such amount of Dollars at the Spot Exchange Rate with respect to such
Alternative Currency on such date.
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"Alternative Currency Loan" means any Loan denominated in an
Alternative Currency.
"Applicable Currency" has the meaning assigned to such term in
Section 2.12.
"Applicable Rate" means, for any day, with respect to any
Eurocurrency Revolving Loan or Eurocurrency U.S. Loan, or with respect to the
facility fees payable hereunder, as the case may be, the applicable rate per
annum set forth below under the caption "Eurocurrency Spread" or "Facility Fee
Rate", as the case may be, based upon the ratings by ▇▇▇▇▇'▇ and S&P,
respectively, applicable on such date to the Index Debt:
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Eurocurrency Facility Fee
Index Debt Ratings: Ratings Spread Rate
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Category 1 $A+/A1 0.19% 0.060%
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Category 2 $A/A2 0.22% 0.080%
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Category 3 $A-/A3 0.26% 0.090%
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Category 4 $BBB+/Baa1 0.325% 0.125%
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Category 5 $BBB/Baa2 0.50% 0.150%
Category 6 #BBB-/Baa3 0.80% 0.200%
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For purposes of the foregoing, (a) if either ▇▇▇▇▇'▇ or S&P
shall not have in effect a rating for the Index Debt (other than by reason of
the circumstances referred to in the last sentence of this definition), then
such rating agency shall be deemed to have established a rating in Category 6;
(b) if the ratings established or deemed to have been established by ▇▇▇▇▇'▇ and
S&P for the Index Debt shall fall within different Categories, the Applicable
Rate shall be based on the higher of the two ratings unless one of the two
ratings is two or more Categories lower than the other, in which case the
Applicable Rate shall be determined by reference to the Category next below that
of the higher of the two ratings; (c) if the ratings established or deemed to
have been established by ▇▇▇▇▇'▇ and S&P for the Index Debt shall be changed
(other than as a result of a change in the rating system of ▇▇▇▇▇'▇ or S&P),
such change shall be effective as of the date on which it is first announced by
the applicable rating agency; and (d) so long as no Default shall have occurred
and be continuing, the Company may replace either S&P or ▇▇▇▇▇'▇ (but not both)
with Fitch, provided that, in the event of any such replacement, clause (b)
above shall cease to apply and, in lieu of such clause (b), if the ratings
established or deemed to have been established by ▇▇▇▇▇'▇ or S&P (whichever
remains as a rating agency for purposes hereof) or Fitch are not in the same
Category, then the Applicable Margin and the facility fees will be determined
based on the lower rating unless the lower rating is two or more Categories
lower than the rating established or deemed to have been established by the
other rating agency, in which case the Applicable Margin and facility fees shall
be determined by reference to the Category next above that of the lower of the
two ratings. Each change in the Applicable Rate shall apply during the period
commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating
system of ▇▇▇▇▇'▇, S&P or Fitch (whichever are applicable) shall change, or if
either such applicable rating agency shall cease to be in the business of rating
corporate debt obligations, the Borrowers and the Lenders shall negotiate in
good faith to amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the effectiveness
of any such amendment, the Applicable Rate shall be determined by
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reference to the rating most recently in effect prior to such change or
cessation.
"Applicable Revolving Commitment Percentage" means, with
respect to any Revolving Lender, the percentage of the total Revolving
Commitments represented by such Revolving Lender's Revolving Commitment. If the
Revolving Commitments have terminated or expired, the Applicable Revolving
Commitment Percentages shall be determined based upon the Revolving Commitments
most recently in effect, giving effect to any assignments.
"Applicable U.S. Commitment Percentage" means, with respect to
any U.S. Lender, the percentage of the total U.S. Commitments represented by
such U.S. Lender's U.S. Commitment. If the U.S. Commitments have terminated or
expired, the Applicable U.S. Commitment Percentages shall be determined based
upon the U.S. Commitments most recently in effect, giving effect to any
assignments.
"Assessment Rate" means, for any day, the annual assessment
rate in effect on such day that is payable by a member of the Bank Insurance
Fund classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in Dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"Assigned Dollar Value" has the meaning assigned to such term
in Section 2.21.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
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"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Base CD Rate" means the sum of (a) the Three-Month Secondary
CD Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Board Resolution" means a copy of a resolution delivered to
the Administrative Agent and certified by the Secretary or an Assistant
Secretary of the Company as having been duly adopted by the Board of Directors
of the Company, or by the Secretary or an Assistant Secretary of the Company or
the Secretary of the Executive Committee of such Board of Directors as having
been duly adopted by such Executive Committee, or by the Secretary or an
Assistant Secretary of the Company or the Secretary of any other committee of
such Board of Directors duly authorized to act for it hereunder as having been
duly adopted by such other committee.
"Borrowers" means the Company and Fortune Brands UK.
"Borrowing" means (a) Revolving Loans to the same Borrower of
the same Type and in the same currency, made, converted or continued on the same
date and, in the case of Eurocurrency Loans, as to which a single Interest
Period is in effect, (b) U.S. Loans to the Company of the same Type, made,
converted or continued on the same date and, in the case of Eurocurrency Loans,
as to which a single Interest Period is in effect, (c) a Competitive Loan or
group of Competitive Loans to the same Borrower of the same Type and in the same
currency made on the same date and as to which a single Interest Period is in
effect, (d) a Negotiated Rate Loan or (e) a Swingline Loan.
"Borrowing Date" means any Business Day specified in a notice
pursuant to Section 2.02 or 2.04 as a date on
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which the relevant Borrower requests Loans to be made hereunder.
"Borrowing Request" means a request by any Borrower for a
Revolving Borrowing or a U.S. Borrowing in accordance with Section 2.03.
"British Pounds Sterling" means lawful money of the United
Kingdom.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed, except that when used in connection with a Eurocurrency
Loan or an Alternative Currency Loan, "Business Day" also shall exclude any day
on which dealings in foreign currencies and exchange between banks may not be
carried on in London, England or New York, New York or, in the case of an
Alternative Currency Loan denominated in a currency other than British Pounds
Sterling, the place designated by the Administrative Agent from time to time as
the place for payments in such currency.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof),
of shares representing more than 50% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Company; or (b)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Company by Persons who were neither (i) nominated by the board
of directors of the Company nor (ii) appointed by directors so nominated.
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"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender(or,
for purposes of Section 2.14(b) or 2.19, by any lending office of such Lender or
by such Lender's holding company, if any) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans, U.S. Loans, Competitive Loans, Negotiated Rate Loans or
Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means a Revolving Commitment or a U.S.
Commitment, or any combination thereof, as the context requires.
"Company" means Fortune Brands, Inc.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive
Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making
such Competitive Bid.
"Competitive Bid Request" means a request by any Borrower for
Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to a Competitive
Bid as contemplated by Section 2.04.
"Currency Equivalent" means the Dollar Equivalent or the
Alternative Currency Equivalent, as the case may be, of the Applicable Currency.
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"Consolidated EBITDA" means, for any period of four
consecutive fiscal quarters, Consolidated Net Income for such period, excluding,
to the extent included in determining such Consolidated Net Income,
extraordinary items, noncash restructuring charges, noncash nonrecurring
charges, losses from asset impairments and gains or losses resulting from the
sale of assets not in the ordinary course of business, plus, without duplication
and to the extent deducted in determining such Consolidated Net Income, the sum
of (i) Consolidated Interest Expense for such period, (ii) income taxes for such
period, and (iii) depreciation and amortization of intangibles for such period,
all determined on a consolidated basis for each such item in accordance with
GAAP.
"Consolidated Interest Expense" means, for any period, the
gross interest expense of the Company and the Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, for any period, net income
for the Company and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Tangible Assets" means the excess over
current liabilities of all assets as determined by the Company and set forth in
a consolidated balance sheet of the Company and its consolidated Subsidiaries
prepared in accordance with GAAP as of a date within 90 days of the date of such
determination, after deducting goodwill, trademarks, patents, other like
intangibles and the minority interest of others.
"Control" means 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.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
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"Denomination Date" means, in relation to any Alternative
Currency Borrowing, the date that is three Business Days before the date such
Borrowing is made.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 3.06 and the matters
described in any filings made by the Company from time to time with the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended.
"Dollar Equivalent" means, with respect to an amount of any
Alternative Currency on any date, the amount of Dollars that may be purchased
with such amount of the Alternative Currency at the Spot Exchange Rate with
respect to the Alternative Currency on such date.
"Dollars" or "$" refers to lawful money of the United States
of America.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
10.02).
"EMU Legislation" means the legislative measures of the
European Union for the introduction of, changeover to or operation of the Euro
in one or more member states.
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of any Borrower or any of its
subsidiaries directly or indirectly resulting from or based upon (a) violation
of any Environmental Law, (b) the generation, use, handling, transportation,
storage,
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treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with any 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.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by any Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by any Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan other
than under circumstances pursuant to which such Plan could not reasonably be
expected to require any additional funding at any time following such
termination or appointment; (f) the incurrence by any Borrower or any of its
ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by any
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from any Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be,
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insolvent or in reorganization, within the meaning of Title IV of ERISA.
"Euro" or "i" means the single currency of the European Union
as constituted by the Treaty on European Union and as referred to in the EMU
Legislation
"Eurocurrency", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing,
are bearing interest at a rate determined by reference to the Adjusted LIBO Rate
(or, in the case of a Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excluded Taxes" means, with respect to the Administrative
Agent, Chase Manhattan International Limited, any Lender or any other recipient
of any payment to be made by or on account of any obligation of any Borrower
hereunder, (a) income, franchise or similar taxes imposed on (or measured by)
its net income by the United States of America or the United Kingdom or by the
jurisdiction under the laws of which the Administrative Agent, Lender or other
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located, (b) any
branch profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction described in clause (a) above, and (c) in the
case of a Foreign Lender (other than an assignee pursuant to a request by any
Borrower under Section 2.18(b)), any withholding tax that (i) is in effect and
would apply to amounts payable to such Foreign Lender, at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office),
by a Borrower previously designated hereunder, except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrowers with respect to any withholding tax pursuant to
Section 2.16(a), or (ii) is attributable to such Foreign Lender's failure to
comply with Section 2.16(e).
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"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of any Borrower.
"Fitch" shall mean Fitch, Inc.
"Fixed Rate" means, with respect to any Competitive Loan
(other than a Eurocurrency Competitive Loan), the fixed rate of interest per
annum specified by the Lender making such Competitive Loan in its related
Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at
a Fixed Rate.
"Foreign Lender" means, with respect to any Borrower, any
Lender that is organized under the laws of a jurisdiction other than that in
which such Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be
deemed to constitute a single jurisdiction.
"Fortune Brands UK" means Fortune Brands Finance UK p.l.c.
"Funded Debt" of any Person means (i) all indebtedness for
money borrowed which by its terms matures more than 12 months from the creation,
extension or renewal thereof or which is extendible or renewable at the option
of the obligor on such indebtedness to a time more than 12 months after its
creation, extension or renewal and (ii)
14
all guarantees, direct or indirect, of such indebtedness of others or of
dividends; provided that Funded Debt shall not include endorsements of
negotiable instruments for collection, deposit or negotiation and guarantees by
the Company or a Restricted Subsidiary arising in connection with the sale,
discount, guarantee or pledge of notes, chattel mortgages, leases, accounts
receivable, trade acceptances and other paper arising, in the ordinary course of
business, out of installment or conditional sales to or by, or transactions
involving title retention with, distributors, dealers or other customers, of
merchandise, equipment or services. The Company or a Restricted Subsidiary shall
be deemed to have assumed any Funded Debt secured by any mortgage upon any of
its property or assets whether or not it has actually done so.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Granting Lender" has the meaning specified in paragraph (h)
of Section 10.04.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness of the payment
thereof, (c) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable the
15
primary obligor to pay such Indebtedness or other obligation or (d) as an
account party in respect of any letter of credit or letter of guaranty issued to
support such Indebtedness or obligation; provided, that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all Capital Lease
Obligations of such Person and (c) all Guarantees by such Person of Indebtedness
of others described in clause (a) or (b) above. The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness
for borrowed money of the Company that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Information Memorandum" means the Confidential Information
Memorandum dated June 12, 2001, relating to the Borrowers and the Transactions.
"Interest Election Request" means a request by any Borrower to
convert or continue a Revolving Borrowing or a U.S. Borrowing, as applicable, in
accordance with Section 2.07.
16
"Interest Payment Date" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurocurrency Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurocurrency Borrowing with an Interest Period of more than three
months' duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months' duration after the first day of such
Interest Period, (c) with respect to any Fixed Rate Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Fixed Rate Borrowing with an Interest Period of more than 90 days'
duration (unless otherwise specified in the applicable Competitive Bid Request),
each day prior to the last day of such Interest Period that occurs at intervals
of 90 days' duration after the first day of such Interest Period, and any other
dates that are specified in the applicable Competitive Bid Request as Interest
Payment Dates with respect to such Borrowing, (d) with respect to any Swingline
Loan, the day that such Loan is required to be repaid and (e) with respect to
any Negotiated Rate Loan, the last day of the Interest Period applicable to such
Negotiated Rate Loan and any other day during such Interest Period on which
interest therein is payable, as separately agreed between the applicable
Borrower and the applicable Lender.
"Interest Period" means (a) with respect to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the applicable Borrower may elect, (b) with respect to
any Fixed Rate Borrowing, the period (which shall not be less than seven days or
more than 180 days) commencing on the date of such Borrowing and ending on the
date specified in the applicable Competitive Bid Request and (c) with respect to
any Negotiated Rate Borrowing, the period commencing on the date of such
Borrowing and ending on such date as shall be mutually agreed upon between the
applicable Borrower and the applicable Lender; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurocurrency Borrowing only, such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period pertaining to a
Eurocurrency
17
Borrowing that commences on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the last calendar
month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the date of a
Borrowing initially shall be the date on which such Borrowing is made and, in
the case of a Revolving Borrowing or U.S. Borrowing, as applicable, thereafter
shall be the effective date of the most recent conversion or continuation of
such Borrowing.
"Lenders" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lenders.
"LIBO Rate" means, with respect to any Eurocurrency Borrowing
for any Interest Period, the rate per annum determined by reference to the
British Bankers' Association Interest Settlement Rates for deposits with a
maturity comparable to such Interest Period denominated in the currency in which
such Eurocurrency Borrowing is denominated as reflected on the applicable
Telerate Screen (or on any successor or substitute page of the Telerate Service,
providing rate quotations comparable to those currently provided on such
Service, as determined by the Administrative Agent or Chase Manhattan
International Limited, as applicable, from time to time for purposes of
providing quotations of interest rates applicable to deposits of currency in
which such Borrowing is denominated) at approximately 11:00 a.m., London time,
on the Quotation Day for the currency in which such Borrowing is denominated. In
the event that such rate is not available at such time for any reason, then the
"LIBO Rate" with respect to such Eurocurrency Borrowing for such Interest Period
shall be the rate at which dollar deposits of $5,000,000 (or in the case of
Eurocurrency Borrowings denominated in an Alternative Currency, deposits with a
18
Dollar Equivalent of $5,000,000) and for a maturity comparable to such Interest
Period are offered by the principal London office of the Administrative Agent or
Chase Manhattan International Limited, as applicable, in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
on the Quotation Day for the currency in which such Borrowing is denominated
prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset and (b) the interest of a vendor or a lessor
under any conditional sale agreement, capital lease or title retention agreement
(or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset.
"Loan" means any loan made by a Lender to a Borrower pursuant
to this Agreement.
"Local Time" means (a) with respect to any Loan or Borrowing
denominated in Dollars, New York City time and (b) with respect to any Loan or
Borrowing denominated in any Alternative Currency, London time (or such other
time as Chase Manhattan International Limited may designate in respect of the
applicable currency).
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan in
its related Competitive Bid.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations or financial condition of the Company and
the Subsidiaries taken as a whole or (b) the rights of or benefits available to
the Lenders under this Agreement.
"Material Indebtedness" means Indebtedness (other than the
Loans) of any one or more of the Company and its Subsidiaries in an aggregate
principal amount exceeding $50,000,000.
19
"Material Subsidiary" means any Subsidiary that is (a) a
Restricted Subsidiary, (b) Fortune Brands UK or (c) a "significant subsidiary"
of the Company within the meaning of Regulation S-X of the Securities and
Exchange Commission (or any successor provision).
"Maturity Date" means July 12, 2006.
"MLA Cost" means the cost imputed to the Lenders in connection
with a Borrowing denominated in British Pounds Sterling in compliance with the
Mandatory Liquid Asset requirements of the Bank of England during an Interest
Period (or part of an Interest Period), expressed as a rate per annum and
determined in accordance with Exhibit C.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"mortgage" means any mortgage, pledge or security interest.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Negotiated Rate Loan" means a Loan made to a Borrower by a
Lender pursuant to a Negotiated Rate Loan Request in such principal amount, for
such Interest Period and having such interest rate(s) and repayment terms as
shall, in each case, be mutually agreed upon between such Borrower and such
Lender.
"Negotiated Rate Loan Request" means a request by a Borrower
for a Lender to make a Negotiated Rate Loan, which shall be delivered to such
Lender (with a copy to the Administrative Agent) in writing, by facsimile
transmission or by telephone, immediately confirmed in writing, and which shall
specify the amount to be borrowed and the proposed Borrowing Date, currency and
Interest Period.
"Obligations" means (a) the obligation of each Borrower to pay
the principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or
20
allowable in such proceeding) on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, and (b) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of the Company or any other
Borrower under this Agreement.
"Other Taxes" means any and all present or future recording,
stamp, documentary, excise, transfer, sales, property or similar taxes, charges
or levies arising from any payment made hereunder or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which any Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan 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.
"Quotation Day" in respect of the determination of the LIBO
Rate for any Interest Period (a) for any
21
Eurocurrency Borrowing in Dollars or any Alternative Currency (other than
British Pounds Sterling), means the day on which quotations would ordinarily be
given by prime banks in the London interbank market for deposits in the currency
in which such Borrowing is denominated for delivery on the first day of such
Interest Period; provided, that if quotations would ordinarily be given on more
than one date, the Quotation Day for such Interest Period shall be the last of
such dates and (b) for any Eurocurrency Borrowing denominated in British Pounds
Sterling, means the first day of such Interest Period.
"Register" has the meaning set forth in Section 10.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers and employees of
such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having
Revolving Credit Exposures, U.S. Credit Exposures and unused Commitments
representing more than 50% of the sum of the total Revolving Credit Exposures,
U.S. Credit Exposures and unused Commitments at such time; provided that, for
purposes of declaring the Loans to be due and payable pursuant to Article VII,
and for all purposes after the Loans become due and payable pursuant to Article
VII or the Commitments expire or terminate, the outstanding Competitive Loans
and Negotiated Rate Loans of the Lenders shall be included in their respective
Revolving Credit Exposures or U.S. Credit Exposures, as applicable, in
determining the Required Lenders.
"Restricted Subsidiary" means any Subsidiary other than (i)
each Subsidiary organized and existing under laws other than the laws of the
United States or state thereof, (ii) each Subsidiary substantially all of the
physical properties of which are located, or substantially all of the business
of which is carried on, outside of the United States, (iii) each Subsidiary the
primary business of which consists of finance, banking, credit, leasing,
insurance, financial services, or similar operations or any combination thereof,
(iv) each Subsidiary the primary business of which consists of the ownership,
construction,
22
management, operation, sale or leasing of real property or improvements thereon,
similar operations or any combination thereof, (v) each Subsidiary the primary
business of which consists of the exploration for, or the extraction,
production, transporting or marketing of petroleum or gas or other extracted
substances, or similar operations or any combination thereof, (vi) each
Subsidiary the primary business of which consists of the ownership or operation
of one or more transportation businesses or facilities or equipment related
thereto or similar operations or any combination thereof, (vii) each Subsidiary
the primary business of which consists of obtaining funds with which to make
investments outside of the United States, (viii) each Subsidiary substantially
all of the assets of which consist of the ownership directly or indirectly of
the capital stock of one or more Subsidiaries covered by the preceding clauses
(i) through (vii), (ix) each Subsidiary which the Company or any Subsidiary is,
by the terms of the final order of any court of competent jurisdiction from
which no further appeal may be taken, required to dispose of and which shall by
Board Resolution be determined not to be a Restricted Subsidiary, effective as
of the date specified in such resolution and (x) any corporation a majority of
the voting shares of which shall at the time be owned directly or indirectly by
one or more corporations specified in the preceding clauses (i) through (ix);
provided that the Board of Directors may by Board Resolutions declare any such
Subsidiary to be a Restricted Subsidiary, effective as of the date such
resolution is adopted. For purposes of this definition and any provisions of
this Agreement in which the term Restricted Subsidiary appears, the term
"Subsidiary" means, at any date, any corporation of which the Company, or the
Company and one or more Subsidiaries, directly or indirectly own outstanding
shares of capital stock having voting power sufficient to elect, under ordinary
circumstances (not dependent upon the happening of a contingency), a majority of
the directors.
"Revaluation Date" means, with respect to an Alternative
Currency Borrowing, the last day of each Interest Period with respect to such
Borrowing (and if such Interest Period has a duration of more than three months,
each day prior to the last day of such Interest Period that
23
occurs at intervals of three months duration after the first day of such
Interest Period).
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans to the Company and Fortune
Brands UK and to acquire participations in Swingline Loans made to the Company
hereunder, expressed as an amount representing the maximum aggregate amount of
such Lender's Revolving Credit Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.08 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 10.04. The initial amount of each Lender's Revolving Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Revolving Commitment, as applicable. The
initial aggregate amount of the Lenders' Revolving Commitments is $705,000,000.
"Revolving Credit Exposure" means, with respect to any
Revolving Lender at any time, the sum of (a) the outstanding principal amount of
such Revolving Lender's Revolving Loans denominated in Dollars, plus (b) its
Swingline Exposure at such time, plus (c) the Assigned Dollar Value at such time
of the outstanding principal amount of such Lender's Revolving Loans denominated
in Alternative Committed Currencies.
"Revolving Lender" means a Lender that has a Revolving
Commitment.
"Revolving Loan" means a Loan made to the Company or Fortune
Brands UK pursuant to clause (a) of Section 2.01.
"S&P" means Standard & Poor's.
"Secured Debt" means indebtedness for money borrowed if such
indebtedness is secured by a mortgage upon any assets of the Company or a
Restricted Subsidiary, including in such assets, without limitation, shares of
stock or indebtedness of any Restricted Subsidiary owned by the Company or
another Restricted Subsidiary. Indebtedness secured by mortgages on property
existing at the time it is
24
acquired and mortgages securing any part of the purchase price of property
purchased, constructed or improved shall be deemed to be indebtedness for money
borrowed. The Company or a Restricted Subsidiary shall be deemed to have assumed
any indebtedness secured by any mortgage upon any of its property or assets
whether or not it has actually done so.
"Spot Exchange Rate" means, on any day, (a) with respect to
any Alternative Currency in relation to Dollars, the spot rate at which Dollars
are offered on such day for such Alternative Currency which appears on page FX
of the Reuters Screen at approximately 11:00 a.m., London time (and if such spot
rate is not available on the applicable page of the Reuters Screen, such spot
rate as quoted by Chase Manhattan International Limited at approximately 11:00
a.m., London time), and (b) with respect to Dollars in relation to any specified
Alternative Currency, the spot rate at which such specified Alternative Currency
is offered on such day for Dollars which appears on page FXFX of the Reuters
Screen at approximately 11:00 a.m., London time (and if such spot rate is not
available on the applicable page of the Reuters Screen, such spot rate as quoted
by Chase Manhattan International Limited at approximately 11:00 a.m., London
time). For purposes of determining the Spot Exchange Rate in connection with an
Alternative Currency Borrowing, such Spot Exchange Rate shall be determined as
of the Denomination Date for such Borrowing with respect to transactions in the
applicable Alternative Currency that will settle on the date of such Borrowing.
"SPV" has the meaning specified in paragraph (h) of Section
10.04.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject (a) with respect to the Base CD Rate, for new negotiable nonpersonal
time deposits in Dollars of over $100,000 with maturities approximately equal to
three months and (b) with respect to
25
the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date.
"Subsidiary" means any subsidiary of the Company.
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its Applicable Revolving Commitment
Percentage of the total Swingline Exposure at such time.
"Swingline Lenders" means each of The Chase Manhattan Bank and
Citibank, N.A., in its capacity as a lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.05.
"Syndication Agent" means Citibank, N.A., in its capacity as
syndication agent for the Lenders hereunder.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
26
"Three-Month Secondary CD Rate" means, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day is not a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day) or, if such rate is not so reported on such
day or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of deposit
dealers of recognized standing selected by it.
"Total Credit Exposure" means, at any time, the sum of the
Total Revolving Exposure and the Total U.S. Exposure at such time.
"Total Revolving Exposure" means, at any time, the sum of (a)
the total Revolving Credit Exposure of the Revolving Lenders at such time, plus
(b) the outstanding principal amount of Competitive Loans and Negotiated Rate
Loans of the Revolving Lenders at such time that are denominated in Dollars,
plus (c) the Assigned Dollar Value at such time of the outstanding principal
amount of all Competitive Loans and Negotiated Rate Loans of the Revolving
Lenders at such time that are denominated in Alternative Currencies.
"Total U.S. Exposure" means, at any time, the sum of (a) the
total U.S. Credit Exposure of the U.S. Lenders at such time, plus (b) the
outstanding principal amount of Competitive Loans and Negotiated Rate Loans of
the U.S. Lenders at such time.
"Transactions" means the execution, delivery and performance
by the Borrowers of this Agreement, the borrowing of Loans and the use of the
proceeds thereof.
27
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to (a) the Adjusted LIBO Rate, (b)
the Alternate Base Rate, (c) in the case of a Competitive Loan or Borrowing, the
LIBO Rate or a Fixed Rate or (d) in the case of a Negotiated Rate Loan or
Borrowing, the rate negotiated between the applicable Borrower and the
applicable Lender.
"U.S. Commitment" means, with respect to each Lender, the
commitment of such Lender to make U.S. Loans to the Company, expressed as an
amount representing the maximum aggregate amount of such Lender's U.S. Credit
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 10.04. The initial
amount of each Lender's U.S. Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
U.S. Commitment, as applicable. The initial aggregate amount of the Lenders'
U.S. Commitments is $45,000,000.
"U.S. Credit Exposure" means, with respect to any U.S. Lender
at any time, the outstanding principal amount of such U.S. Lender's U.S. Loans.
"U.S. Lender" means a Lender that has a U.S. Commitment.
"U.S. Loan" means a Loan made to the Company pursuant to
clause (b) of Section 2.01.
"Value" means, as to any sale and lease back transaction to
which Section 6.03 applies, the product of (a) the net proceeds from any such
sale (less the amount applied in connection with such sale to the retirement of
outstanding Funded Debt in accordance with Section 6.03(c)) and (b) a fraction,
the numerator of which is the number of full years of the term of the lease
relating to such property (without regard to any options to renew or extend such
term) remaining at the time of the determination of such value and the
denominator of which is the number of full years of such term at the time of
such sale.
28
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class
and Type (e.g., a "Eurocurrency Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing") or by Type
(e.g., a "Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency
Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns (subject to any restrictions on such assignments
set forth herein), (c) the words "herein", "hereof" and "hereunder", and words
of similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e)
the words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
29
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Company
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions
set forth herein, (a) each Revolving Lender agrees to make Revolving Loans in
Dollars or in any Alternative Committed Currency to the Company or Fortune
Brands UK from time to time during the Availability Period in an aggregate
principal amount that will not result in (i) such Revolving Lender's Revolving
Credit Exposure exceeding such Revolving Lender's Revolving Commitment or (ii)
the Total Revolving Exposure exceeding the total Revolving Commitments; and (b)
each U.S. Lender agrees to make U.S. Loans in Dollars to the Company from time
to time during the Availability Period in an aggregate principal amount that
will not result in (i) such U.S. Lender's U.S. Credit Exposure exceeding such
U.S. Lender's U.S. Commitment or (ii) the Total U.S. Exposure exceeding the
total U.S. Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, each Borrower may borrow, prepay and reborrow
Revolving Loans or U.S. Loans, as applicable.
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SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan
shall be made as part of a Borrowing consisting of Revolving Loans made by the
Revolving Lenders ratably in accordance with their respective Revolving
Commitments. Each U.S. Loan shall be made as part of a Borrowing consisting of
U.S. Loans made by the U.S. Lenders ratably in accordance with their respective
U.S. Commitments. Each Competitive Loan and Negotiated Rate Loan shall be made
in accordance with the procedures set forth in Section 2.04. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments and
Competitive Bids of the Lenders are several and no Lender shall be responsible
for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13, (i) each Revolving Borrowing
shall be comprised entirely of ABR Loans or Eurocurrency Loans as the applicable
Borrower may request in accordance herewith (except that a Revolving Borrowing
denominated in an Alternative Committed Currency must be comprised entirely of
Eurocurrency Loans), (ii) each U.S. Borrowing shall be comprised entirely of ABR
Loans or Eurocurrency Loans as the Company may request in accordance herewith,
(iii) each Competitive Borrowing shall be comprised entirely of Eurocurrency
Loans or Fixed Rate Loans as the applicable Borrower may request in accordance
herewith and (iv) each Negotiated Rate Loan shall be denominated in Dollars or
an Alternative Currency as agreed between the applicable Borrower and the
applicable Lender. Each Swingline Loan shall be an ABR Loan. Each Lender at its
option may make any Eurocurrency Loan by causing any domestic or foreign branch
or Affiliate of such Lender to make such Loan; provided that any exercise of
such option shall not (a) affect the obligation of the applicable Borrower to
repay such Loan in accordance with the terms of this Agreement or (b) result in
the Borrower incurring any additional cost or expense (including pursuant to
Section 2.14, 2.16 or 2.19).
(c) At the commencement of each Interest Period for any
Eurocurrency Borrowing, such Borrowing shall be in an aggregate amount that is
an integral multiple of $1,000,000 and not less than $10,000,000. At the time
that each ABR Borrowing is made, such Borrowing shall be in an
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aggregate amount that is an integral multiple of $1,000,000 and not less than
$1,000,000; provided that an ABR Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments of the applicable
Class. Each Competitive Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $1,000,000. Each Negotiated
Rate Borrowing shall be in an aggregate amount that is separately agreed between
the applicable Borrower and the applicable Lender. Each Swingline Loan shall be
in an amount that is an integral multiple of $100,000 and not less than
$500,000. Subject to Section 2.13, Loans made pursuant to any Alternative
Currency Borrowing shall be made in the Alternative Currency specified in the
applicable Borrowing Request or Competitive Bid Request in an aggregate amount
equal to the Alternative Currency Equivalent of the Dollar amount specified in
such Borrowing Request or, in the case of a Competitive Borrowing, the Dollar
amount accepted pursuant to Section 2.04 (in each case as determined by Chase
Manhattan International Limited based upon the applicable Spot Exchange Rate as
of the Denomination Date for such Borrowing (which determination shall be
conclusive absent manifest error)); provided that for purposes of the borrowing
amounts specified above, each Alternative Currency Borrowing shall be deemed to
be in a principal amount equal to its Assigned Dollar Value. Borrowings of more
than one Type and Class may be outstanding at the same time; provided that there
shall not at any time be more than a total of eight Eurocurrency Revolving
Borrowings and Eurocurrency U.S. Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrowers shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings and U.S.
Borrowings. To request a Revolving Borrowing or U.S. Borrowing, the applicable
Borrower shall notify the Administrative Agent and, in the case of Revolving
Borrowings denominated in any Alternative Currency, Chase Manhattan
International Limited, of such request by telephone (a) in the case of a
Eurocurrency Borrowing
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denominated in Dollars, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing, (b) in the case of a
Eurocurrency Borrowing denominated in an Alternative Committed Currency, not
later than 9:00 a.m., New York City time, three Business Days before the date of
the proposed Borrowing or (c) in the case of an ABR Borrowing, not later than
10:30 a.m., New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent (and, in the
case of an Alternative Currency Borrowing, Chase Manhattan International
Limited) of a written Borrowing Request in a form approved by the Administrative
Agent and signed by the applicable Borrower. Each such telephonic and written
Borrowing Request shall specify the following information in compliance with
Section 2.02:
(i) the Borrower in respect of the requested Borrowing and
whether such Borrowing is a Revolving Borrowing or a U.S. Borrowing;
(ii) the aggregate amount (expressed in Dollars) and currency
(which must be Dollars or an Alternative Committed Currency) of the
requested Borrowing;
(iii) the requested Borrowing Date, which shall be a Business
Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;
(v) in the case of a Eurocurrency Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(vi) the location and number of the applicable Borrower's
account to which funds are to be disbursed, which shall comply with
the requirements of Section 2.06.
If no election as to the Type of Revolving Borrowing or U.S. Borrowing is
specified, then the requested Revolving Borrowing or U.S. Borrowing shall be an
ABR Borrowing (if denominated in Dollars) or a Eurocurrency Borrowing (if
33
denominated in an Alternative Committed Currency). If no election as to the
currency of the requested Revolving Borrowing or U.S. Borrowing is specified,
then the requested Revolving Borrowing or U.S. Borrowing shall be denominated in
Dollars. If no Interest Period is specified with respect to any requested
Eurocurrency Revolving Borrowing or Eurocurrency U.S. Borrowing, then the
applicable Borrower shall be deemed to have selected an Interest Period of one
month's duration. If no election as to the identity of the Borrower is
specified, the requested Revolving Borrowing or U.S. Borrowing shall be made by
the Company. Promptly following receipt of a Borrowing Request in accordance
with this Section, the Administrative Agent (in the case of Revolving Borrowings
denominated in Dollars or U.S. Borrowings) or Chase Manhattan International
Limited (in the case of Revolving Borrowings denominated in any Alternative
Currency) shall advise each applicable Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Competitive Bid and Negotiated Rate Loan
Procedures. (a) Subject to the terms and conditions set forth herein, from time
to time during the Availability Period any Borrower may request Competitive Bids
and may (but shall not have any obligation to) accept Competitive Bids and
borrow Competitive Loans denominated in Dollars or any Alternative Currency;
provided that (i) the Total Revolving Exposure at any time shall not exceed the
total Revolving Commitments and (ii) the Total U.S. Exposure at any time shall
not exceed the total U.S. Commitments. To request Competitive Bids, the
applicable Borrower shall notify the Administrative Agent and, in the case of a
Borrowing denominated in any Alternative Currency, Chase Manhattan International
Limited, of such request by telephone, (i) in the case of a Eurocurrency
Borrowing denominated in Dollars, not later than 11:00 a.m., New York City time,
four Business Days before the date of the proposed Borrowing, (ii) in the case
of a Eurocurrency Borrowing denominated in any Alternative Currency, not later
than 9:00 a.m., New York City time, four Business Days before the date of the
proposed Borrowing, and (iii) in the case of a Fixed Rate Borrowing, not later
than 10:00 a.m., New York City time, one Business Day before the date of the
proposed Borrowing; provided
34
that the Borrowers may submit up to (but not more than) two Competitive Bid
Requests on the same day, but a Competitive Bid Request shall not be made within
five Business Days after the date of any previous Competitive Bid Request from
any Borrower, unless any and all such previous Competitive Bid Requests shall
have been withdrawn or all Competitive Bids received in response thereto
rejected. Each such telephonic Competitive Bid Request shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent and, if
applicable, Chase Manhattan International Limited, of a written Competitive Bid
Request in a form approved by the Administrative Agent or Chase Manhattan
International Limited, as applicable, and signed by the applicable Borrower.
Each such telephonic and written Competitive Bid Request shall specify the
following information in compliance with Section 2.02:
(i) the aggregate amount (expressed in Dollars) and currency
of the requested Borrowing;
(ii) the requested Borrowing Date, which shall be a Business
Day;
(iii) whether such Borrowing is to be a Eurocurrency Borrowing
or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period";
(v) the location and number of the applicable Borrower's
account to which funds are to be disbursed, which shall comply with
the requirements of Section 2.06; and
(vi) the identity of the Borrower in respect of such
Borrowing.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent or Chase Manhattan International Limited, as
applicable, shall notify the Lenders of the details thereof by telecopy,
inviting such Lenders to submit Competitive Bids.
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(b) Each Lender may (but shall not have any obligation to)
make one or more Competitive Bids to the applicable Borrower in response to a
Competitive Bid Request. Each Competitive Bid by a Lender must be in a form
approved by the Administrative Agent or Chase Manhattan International Limited,
as applicable, and must be received by the Administrative Agent (and, in the
case of an Alternative Currency Borrowing, Chase Manhattan International
Limited) by telecopy, (i) in the case of a Eurocurrency Competitive Borrowing
denominated in Dollars, not later than 11:00 a.m., New York City time, three
Business Days before the proposed date of such Competitive Borrowing, (ii) in
the case of a Eurocurrency Competitive Borrowing denominated in any Alternative
Currency, not later than 11:00 a.m., New York City time, three Business Days
before the proposed date of such Competitive Borrowing and (iii) in the case of
a Fixed Rate Borrowing, not later than 12:00 noon, New York City time, on the
proposed date of such Competitive Borrowing. Competitive Bids that do not
conform substantially to the form approved by the Administrative Agent may be
rejected by the Administrative Agent and the Administrative Agent shall notify
the applicable Lender as promptly as practicable. Each Competitive Bid shall
specify (i) the principal amount (expressed in Dollars) and currency (which
shall be a minimum of $5,000,000 and an integral multiple of $1,000,000 and
which may equal the entire principal amount of the Competitive Borrowing
requested by the applicable Borrower) of the Competitive Loan or Loans that the
Lender is willing to make, (ii) the Competitive Bid Rate or Rates at which the
Lender is prepared to make such Loan or Loans (expressed as a percentage rate
per annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period applicable to each such Loan and the last day thereof.
(c) The Administrative Agent or Chase Manhattan International
Limited, as applicable, shall promptly notify the applicable Borrower by
telecopy of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, the
applicable Borrower may accept or reject any
36
Competitive Bid. Such Borrower shall notify the Administrative Agent (and, in
the case of an Alternative Currency Borrowing, Chase Manhattan International
Limited) by telephone, confirmed by telecopy in a form approved by the
Administrative Agent or Chase Manhattan International Limited, as applicable,
whether and to what extent it has decided to accept or reject each Competitive
Bid (i) in the case of a Eurocurrency Competitive Borrowing denominated in
Dollars, not later than 12:00 noon, New York City time, three Business Days
before the date of the proposed Competitive Borrowing, (ii) in the case of a
Eurocurrency Competitive Borrowing denominated in an Alternative Currency, not
later than 12:00 noon, New York City time, three Business Days before the date
of the proposed Competitive Borrowing and (iii) in the case of a Fixed Rate
Borrowing, not later than 1:00 p.m., New York City time, on the proposed date of
the Competitive Borrowing; provided that (i) the failure of such Borrower to
give such notice shall be deemed to be a rejection of each Competitive Bid, (ii)
such Borrower shall not accept a Competitive Bid made at a particular
Competitive Bid Rate if such Borrower rejects a Competitive Bid made at a lower
Competitive Bid Rate, (iii) the aggregate amount of the Competitive Bids
accepted by such Borrower shall not exceed the aggregate amount of the requested
Competitive Borrowing specified in the related Competitive Bid Request, (iv) to
the extent necessary to comply with clause (iii) above, such Borrower may accept
Competitive Bids at the same Competitive Bid Rate in part, which acceptance, in
the case of multiple Competitive Bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such Competitive Bid, and
(v) except pursuant to clause (iv) above, no Competitive Bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a minimum principal
amount of $5,000,000 and an integral multiple of $1,000,000; provided further
that if a Competitive Loan must be in an amount less than $5,000,000 because of
the provisions of clause (iv) above, such Competitive Loan may be for a minimum
amount of $1,000,000 or any integral multiple thereof, and in calculating the
pro rata allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by
37
such Borrower. A notice given by such Borrower pursuant to this paragraph shall
be irrevocable.
(e) The Administrative Agent or Chase Manhattan International
Limited, as applicable, shall promptly notify each bidding Lender by telecopy
whether or not its Competitive Bid has been accepted (and, if so, the amount and
Competitive Bid Rate so accepted), and each successful bidder will thereupon
become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such Competitive
Bid directly to the applicable Borrower at least one quarter of an hour earlier
than the time by which the other Lenders are required to submit their
Competitive Bids to the Administrative Agent pursuant to paragraph (b) of this
Section.
(g) Subject to the terms and conditions set forth herein, from
time to time during the Availability Period any Borrower may make Negotiated
Rate Loan Requests to any Lender or Lenders and may (but shall not have any
obligation to) borrow Negotiated Rate Loans denominated in Dollars or any
Alternative Currency; provided that (i) the Total Revolving Exposure at any time
shall not exceed the total Revolving Commitments and (ii) the Total U.S.
Exposure at any time shall not exceed the total U.S. Commitments. If the
applicable Borrower and any Lender agree to the terms of a Negotiated Rate Loan
to be made on a Borrowing Date pursuant to a Negotiated Rate Loan Request, such
Borrower and such Lender shall promptly notify by telephone the Administrative
Agent and, if applicable, Chase Manhattan International Limited of the aggregate
amount (expressed in Dollars) and currency of the Negotiated Rate Loan to be
made on such Borrowing Date, the Borrower with respect thereto and the
respective interest rate, Interest Period and Interest Payment Dates therefor.
Each Lender that agrees to make a Negotiated Rate Loan shall, at such time, on
such Borrowing Date and at such location as shall be mutually agreed upon
between such Borrower and such Lender, make available to such Borrower the
amount of the Negotiated Rate Loan to be made by such Lender, in immediately
available funds.
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SECTION 2.05. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lenders agree to make Swingline Loans
in Dollars ratably (50% by each Swingline Lender) to the Company from time to
time during the Availability Period, in an aggregate principal amount at any
time outstanding that will not result in (i) the aggregate principal amount of
outstanding Swingline Loans exceeding $150,000,000 or (ii) the Total Revolving
Exposure exceeding the total Revolving Commitments; provided that neither
Swingline Lender shall be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. Within the foregoing limits and subject to the terms
and conditions set forth herein, the Company may borrow, prepay and reborrow
Swingline Loans.
(b) To request a Swingline Loan, the Company shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise each Swingline Lender of any such
notice received from the Company. Each Swingline Lender shall make each
Swingline Loan available to the Company by means of an immediately available
credit to the general deposit account of the Company with such Swingline Lender
by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) Either Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion (in such case, ratably from the Swingline
Lenders) of the Swingline Loans outstanding. Such notice shall specify the
aggregate amount of Swingline Loans in which Revolving Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice
thereof to each Revolving Lender, specifying in such notice such Revolving
Lender's Applicable Revolving Commitment Percentage of such Swingline Loan or
Loans. Each Revolving Lender hereby
39
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lenders
ratably (50% to each Swingline Lender), such Revolving Lender's Applicable
Revolving Commitment Percentage of such Swingline Loan or Loans. Each Revolving
Lender acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Revolving Lender shall comply with its obligation
under this paragraph by wire transfer of immediately available funds, in the
same manner as provided in Section 2.06 with respect to Revolving Loans made by
such Revolving Lender (and Section 2.06 shall apply, mutatis mutandis, to the
payment obligations of the Revolving Lenders), and the Administrative Agent
shall promptly pay to the Swingline Lenders ratably (50% to each Swingline
Lender) the amounts so received by it from the Revolving Lenders. The
Administrative Agent shall notify the Company of any participation in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments in
respect of such Swingline Loan shall be made to the Administrative Agent and not
to the Swingline Lenders. Any amounts received by either Swingline Lender from
the Company (or other party on behalf of the Company) in respect of a Swingline
Loan after receipt by such Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent;
any such amounts received by the Administrative Agent shall be promptly remitted
by the Administrative Agent to the Revolving Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lenders, as their
interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Company of any default in the
payment thereof.
SECTION 2.06. Funding of Borrowings. (a) Each Revolving Lender
shall make each Revolving Loan denominated in Dollars (other than any Negotiated
Rate Loan), and each U.S. Lender shall make each U.S. Loan (other than any
Negotiated Rate Loan), to be made by it hereunder on the
40
proposed date thereof by wire transfer of immediately available funds by 2:00
p.m., New York City time (or time of such other city designated by the
Administrative Agent), to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders; provided that
Swingline Loans shall be made as provided in Section 2.05. Each Revolving Lender
shall make each Loan (other than any Negotiated Rate Loan) denominated in an
Alternative Currency to be made by it hereunder on the proposed date thereof by
wire transfer of immediately available funds by 1:00 p.m., London time (or time
of such other city designated by Chase Manhattan International Limited), to the
account of Chase Manhattan International Limited most recently designated by it
for such purpose by notice to the Revolving Lenders. The Administrative Agent or
Chase Manhattan International Limited, as applicable, will make such Loans
available to the applicable Borrower by promptly crediting, before 2:00 p.m.
Local Time, the amounts so received, in like funds, to an account of such
Borrower maintained with (i) the Administrative Agent in New York City, in the
case of Loans denominated in Dollars, and (ii) Chase Manhattan International
Limited in London (or such other city as Chase Manhattan International Limited
may designate in respect of the applicable currency), in the case of Loans
denominated in any Alternative Currency, in each case designated by such
Borrower in the applicable Borrowing Request or Competitive Bid Request. Each
Lender making a Negotiated Rate Loan shall make such Loan on the date, at the
time and to the account of the applicable Borrower separately agreed between
such Lender and such Borrower.
(b) Unless the Administrative Agent (and, in the case of an
Alternative Currency Borrowing, Chase Manhattan International Limited) shall
have received notice from a Lender prior to the proposed date of any Borrowing
(other than any Negotiated Rate Borrowing) that such Lender will not make
available to the Administrative Agent or Chase Manhattan International Limited,
as applicable, such Lender's share of such Borrowing, the Administrative Agent
or Chase Manhattan International Limited, as applicable, may assume that such
Lender has made such share available on such date in accordance with paragraph
(a) of this Section and may, in reliance upon such assumption, make available to
the applicable Borrower a corresponding
41
amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent or Chase Manhattan
International Limited, as applicable, then the applicable Lender and the
applicable Borrower severally agree to pay to the Administrative Agent or Chase
Manhattan International Limited, as applicable, forthwith on demand such
corresponding amount with interest thereon, for each day from and including the
date such amount is made available to such Borrower to but excluding the date of
payment to the Administrative Agent or Chase Manhattan International Limited, as
applicable, at (i) in the case of such Lender, the greater of (A)(1) the Federal
Funds Effective Rate in the case of Loans denominated in Dollars and (2) the
rate reasonably determined by Chase Manhattan International Limited to be the
cost to it of funding such amount, in the case of Loans denominated in any other
currency, and (B) a rate determined by the Administrative Agent or Chase
Manhattan International Limited, as applicable, in accordance with banking
industry rules on interbank compensation or (ii) in the case of such Borrower,
the higher of (A) the interest rate applicable to the Loan in respect of which
such payment is owed or (B) the Administrative Agent's or Chase Manhattan
International Limited's cost of funds, as applicable. If such Lender pays such
amount to the Administrative Agent or Chase Manhattan International Limited, as
applicable, then such amount shall constitute such Lender's Loan included in
such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing
and U.S. Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurocurrency Revolving Borrowing or
Eurocurrency U.S. Borrowing, shall have an initial Interest Period as specified
in such Borrowing Request. Thereafter, the applicable Borrower may elect to
convert such Borrowing to a different Type or to continue such Borrowing and, in
the case of a Eurocurrency Borrowing, may elect Interest Periods therefor, all
as provided in this Section. The applicable Borrower may elect different options
with respect to different portions of the affected Borrowing, in which case each
such portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall
42
be considered a separate Borrowing. This Section shall not apply to Competitive
Borrowings, Swingline Borrowings or Negotiated Rate Borrowings, which may not be
converted or continued.
(b) To make an election pursuant to this Section, the
applicable Borrower shall notify the Administrative Agent (and, in the case of
an Alternative Currency Borrowing, Chase Manhattan International Limited) of
such election by telephone by the time that a Borrowing Request would be
required under Section 2.03 if such Borrower were requesting a Revolving
Borrowing or U.S. Borrowing of the Type resulting from such election to be made
on the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent (and, in the case of an Alternative
Currency Borrowing, Chase Manhattan International Limited) of a written Interest
Election Request in a form approved by the Administrative Agent and signed by
the applicable Borrower. Notwithstanding any other provision of this Section, no
Borrower shall be permitted to (i) change the currency of any Borrowing or (ii)
convert any Alternative Currency Borrowing to an ABR Borrowing.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing (in the case of Loans denominated in Dollars only) or a
Eurocurrency Borrowing; and
43
(iv) if the resulting Borrowing is a Eurocurrency Borrowing,
the Interest Period to be applicable thereto after giving effect to
such election, which shall be a period contemplated by the definition
of the term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the applicable Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent or Chase Manhattan International Limited, as
applicable, shall advise each applicable Lender of the details thereof and of
such Lender's portion of each resulting Borrowing.
(e) If the applicable Borrower fails to deliver a timely
Interest Election Request with respect to a Eurocurrency Revolving Borrowing or
Eurocurrency U.S. Borrowing prior to the end of the Interest Period applicable
thereto, then, unless such Borrowing is repaid as provided herein, at the end of
such Interest Period such Borrowing shall be continued as a Eurocurrency
Revolving Borrowing or Eurocurrency U.S. Borrowing, as applicable, with an
Interest Period of one month's duration. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent or Chase Manhattan International Limited, as applicable, at
the request of Revolving Lenders having Revolving Credit Exposures and unused
Revolving Commitments representing more than 50% of the sum of the total
Revolving Credit Exposures and unused Revolving Commitments at such time or U.S.
Lenders having U.S. Credit Exposures and unused U.S. Commitments representing
more than 50% of the sum of the total U.S. Credit Exposures and unused U.S.
Commitments at such time, as applicable, so notifies the applicable Borrower,
then, so long as an Event of Default is continuing (i) no outstanding Revolving
Borrowing or U.S. Borrowing, as applicable, may be converted to or continued as
a Eurocurrency Borrowing (except as provided in clause (iii) below), (ii) unless
repaid, each Eurocurrency U.S. Borrowing and each Eurocurrency Revolving
Borrowing denominated in Dollars
44
shall be converted to an ABR Borrowing at the end of the Interest Period
applicable thereto and (iii) any Borrowing denominated in any Alternative
Committed Currency shall be continued as a Eurocurrency Revolving Borrowing with
an Interest Period of one month's duration at the end of the Interest Period
applicable thereto.
SECTION 2.08. Termination and Reduction of Commitments. (a)
Unless previously terminated, the Commitments shall terminate on the Maturity
Date.
(b) The Company may at any time terminate, or from time to
time reduce, the Revolving Commitments; provided that (i) each reduction of the
Revolving Commitments shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000 and (ii) the Company shall not terminate
or reduce the Revolving Commitments if, after giving effect to any concurrent
prepayment of the Loans in accordance with Section 2.09, the Total Revolving
Exposure would exceed the total Revolving Commitments. The Company may at any
time terminate, or from time to time reduce, the U.S. Commitments; provided that
(i) each reduction of the U.S. Commitments shall be in an amount that is an
integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the
Company shall not terminate or reduce the U.S. Commitments if, after giving
effect to any concurrent prepayment of the Loans in accordance with Section
2.09, the Total U.S. Exposure would exceed the total U.S. Commitments.
(c) The Company shall notify the Administrative Agent of any
election to terminate or reduce the Revolving Commitments or U.S. Commitments
under paragraph (b) of this Section at least three Business Days prior to the
effective date of such termination or reduction, specifying such election and
the effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the applicable Lenders of the contents
thereof. Each notice delivered by the Company pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Revolving Commitments
or U.S. Commitments delivered by the Company may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked
45
by the Company (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Any termination or
reduction of the Revolving Commitments or U.S. Commitments shall be permanent.
Each reduction of the Revolving Commitments or U.S. Commitments shall be made
ratably among the Revolving Lenders or U.S. Lenders, as applicable, in
accordance with their respective Revolving Commitments or U.S. Commitments, as
applicable.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) Each
Borrower hereby unconditionally promises to pay (i) on the Maturity Date to the
Administrative Agent for the account of each Revolving Lender the then unpaid
principal amount of each Revolving Loan denominated in Dollars owed by such
Borrower, (ii) on the Maturity Date to Chase Manhattan International Limited for
the account of each Revolving Lender the then unpaid principal amount of each
Revolving Loan denominated in an Alternative Currency owed by such Borrower,
(iii) on the Maturity Date to the Administrative Agent for the account of each
U.S. Lender the then unpaid principal amount of each U.S. Loan owed by such
Borrower, (iv) to the Administrative Agent (or, in the case of an Alternative
Currency Borrowing, Chase Manhattan International Limited) for the account of
each Revolving Lender the then unpaid principal amount of each Competitive Loan
owed by such Borrower on the last day of the Interest Period applicable to such
Loan, (v) in the case of the Company, to each Swingline Lender the then unpaid
principal amount of each Swingline Loan on the earlier of the Maturity Date and
the first date after such Swingline Loan is made that is the 15th or last day of
a calendar month and is at least two Business Days after such Swingline Loan is
made; provided that on each date that a Revolving Borrowing or U.S. Borrowing is
made, the Company shall repay all Swingline Loans that were outstanding on the
date such Borrowing was requested and (vi) to the applicable Lender the then
unpaid principal amount of each Negotiated Rate Loan owed by such Borrower on
the earlier of the Maturity Date and the last day of the Interest Period
applicable to such Loan.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each Borrower to
such Lender resulting
46
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent (and, in the case of an
Alternative Currency Borrowing, Chase Manhattan International Limited) shall
maintain accounts in which it shall record (i) the amount of each Loan made
hereunder, the Borrower thereof, the Class and Type thereof and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from each Borrower to each Lender hereunder
and (iii) the amount of any sum received by the Administrative Agent (or, in the
case of an Alternative Currency Borrowing, Chase Manhattan International
Limited) hereunder for the account of the Lenders and each Lender's share
thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender, the Administrative Agent (or, in the case of an
Alternative Currency Borrowing, Chase Manhattan International Limited) to
maintain such accounts or any error therein shall not in any manner affect the
obligation of any Borrower to repay its Loans in accordance with the terms of
this Agreement.
(e) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, the applicable Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and (i) with respect to any Revolving Loan, substantially in the form
of Exhibit D, and (ii) with respect to any Loan that is not a Revolving Loan, in
a form approved by such Borrower and the Administrative Agent, in each case
appropriately completed in conformity with this Agreement. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein
47
(or, if such promissory note is a registered note, to such payee and its
registered assigns).
(f) Each Lender that makes any Negotiated Rate Loan shall
notify the Administrative Agent (and, in the case of an Alternative Currency
Borrowing, Chase Manhattan International Limited) of each such Loan and of each
payment of principal is respect thereof.
SECTION 2.10. Prepayment of Loans. (a) Each Borrower shall
have the right at any time and from time to time to prepay any Borrowing in
whole or in part, subject to prior notice in accordance with paragraph (b) of
this Section; provided that the Borrowers shall not have the right to prepay any
Competitive Loan or Negotiated Rate Loan without the prior consent of the Lender
thereof.
(b) If, on any Revaluation Date, the Total Credit Exposure
exceeds 105% of the total Commitments, then the Company shall, not later than
the third Business Day after the Company receives notice thereof from the
Administrative Agent, prepay, or cause one or more of the other Borrowers to
prepay, without penalty or premium (subject to Section 2.15), one or more
Borrowings in an aggregate amount sufficient to reduce the Total Credit Exposure
to an amount not exceeding the total Commitments; provided that the Borrowers
shall not be required to prepay any Competitive Loans or Negotiated Rate Loans
pursuant to this paragraph.
(c) The Company shall notify the Administrative Agent (and, in
the case of prepayment of a Swingline Loan, the Swingline Lenders) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Revolving Borrowing denominated in Dollars or a
Eurocurrency U.S. Borrowing, not later than 11:00 a.m., New York City time,
three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Revolving Borrowing or ABR U.S. Borrowing, not later than
11:00 a.m., New York City time, one Business Day before the date of prepayment
or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00
noon, New York City time, on the date of prepayment. The Company shall notify
the Administrative Agent and Chase Manhattan International Limited by telephone
(confirmed by telecopy)
48
of any prepayment hereunder of a Eurocurrency Revolving Borrowing denominated in
any Alternative Currency, not later than 11:00 a.m., New York City time, three
Business Days before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; provided that, if a notice of
prepayment is given in connection with a conditional notice of termination of
the Commitments as contemplated by Section 2.08, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with
Section 2.08. Promptly following receipt of any such notice relating to a
Revolving Borrowing, the Administrative Agent or Chase Manhattan International
Limited, as applicable, shall advise the Revolving Lenders of the contents
thereof. Promptly following receipt of any such notice relating to a U.S.
Borrowing, the Administrative Agent shall advise the U.S. Lenders of the
contents thereof. Each partial prepayment of any Revolving Borrowing or U.S.
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Revolving Borrowing or U.S. Borrowing of the same Type as provided
in Section 2.02. Each prepayment of a Revolving Borrowing or U.S. Borrowing
shall be applied ratably to the Loans included in the prepaid Borrowing.
Prepayments shall be accompanied by accrued interest to the extent required by
Section 2.12.
SECTION 2.11. Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of each Revolving Lender and U.S. Lender a
facility fee, which shall accrue at the Applicable Rate on the daily amount of
the Revolving Commitment or U.S. Commitment of such Lender (whether used or
unused) during the period from and including the Effective Date to but excluding
the date on which such Commitment terminates; provided that, if such Lender
continues to have any Revolving Credit Exposure or U.S. Credit Exposure after
its Commitment terminates, then such facility fee shall continue to accrue on
the daily amount of such Lender's Revolving Credit Exposure or U.S. Credit
Exposure from and including the date on which its Commitment terminates to but
excluding the date on which such Lender ceases to have any Revolving Credit
Exposure or U.S. Credit Exposure, as applicable. The Administrative Agent will
give the Company three Business Days' notice of the amount of the facility fee
payable on each payment
49
date. Accrued facility fees shall be payable in arrears on the last day of
March, June, September and December of each year and on the date on which the
Commitments terminate, commencing on the first such date to occur after the date
hereof; provided that any facility fees accruing after the date on which the
Commitments terminate shall be payable on demand. All facility fees in respect
of Revolving Commitments and U.S. Commitments 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).
(b) For each day on which the Total Credit Exposure is in
excess of 50% of the total Commitments as of such day (and for each day after
the day on which the Commitments terminate if the Total Credit Exposure is in
excess of 50% of the total Commitments as in effect as of the day the
Commitments terminate) the Company agrees to pay to the Administrative Agent for
the account of each Revolving Lender and U.S. Lender a utilization fee, which
shall accrue at a rate per annum equal to 0.10% on the amount of the Revolving
Credit Exposure or U.S. Credit Exposure, as applicable, of such Lender on such
day. Accrued utilization fees shall be payable in arrears on the last day of
March, June, September and December of each year and on the date on which the
Commitments terminate, commencing on the first such date to occur after the date
hereof; provided that any utilization fees accruing after the date on which the
Commitments terminate shall be payable on demand. All utilization fees in
respect of the Revolving Commitments and U.S. Commitments 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).
(c) The Company agrees to pay to the Administrative Agent, for
its own account, fees payable in Dollars in the amounts and at the times
separately agreed upon between the Company and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent for distribution, in
the case of
50
facility fees and utilization fees, to the applicable Lenders. Fees paid shall
not be refundable under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR
Borrowing (including each Swingline Loan) shall bear interest at the Alternate
Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall
bear interest (i) in the case of a Eurocurrency Revolving Loan or Eurocurrency
U.S. Loan, at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate, or (ii) in the case of a Eurocurrency
Competitive Borrowing, at the LIBO Rate for the Interest Period in effect for
such Borrowing plus (or minus, as applicable) the Margin applicable to such
Loan; provided that in the case of a Eurocurrency Revolving Loan denominated in
British Pounds Sterling and if the Borrower of such Loan is Fortune Brands UK,
such amount shall be increased by the MLA Cost.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) Each Negotiated Rate Loan shall bear interest at the rate
agreed by the applicable Borrower and the applicable Lender.
(e) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by any Borrower
hereunder (other than with respect to any Negotiated Rate Loan) is not paid when
due, whether at stated maturity, upon acceleration or otherwise, such overdue
amount shall bear interest, after as well as before judgment, at a rate per
annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section. If all or
a portion of the principal amount of any Negotiated Rate Loan shall not be paid
when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall, without limiting any rights of any Lender under this
Agreement, bear interest, after as well as before judgment,
51
at the rate per annum as shall be mutually agreed upon between the applicable
Borrower and the applicable Lender or, in the absence of such agreement, at the
rate determined pursuant to the preceding sentence.
(f) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving Loans
and U.S. Loans, upon termination of the Commitments; provided that (i) interest
accrued pursuant to paragraph (e) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan or ABR U.S. Loan prior to the end of the
Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurocurrency Revolving Loan or Eurocurrency U.S.
Loan prior to the end of the current Interest Period therefor, accrued interest
on such Loan shall be payable on the effective date of such conversion.
(g) All interest hereunder shall be computed on the basis of a
year of 360 days (subject to any agreement to the contrary, in the case of
Negotiated Rate Loans), except that interest on Borrowings denominated in
British Pounds Sterling and interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or, except in the case of
Borrowings denominated in British Pounds Sterling, 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing denominated in
any currency:
(a) the Administrative Agent (in the case of any Revolving
Borrowing denominated in Dollars or any U.S. Borrowing) or Chase
Manhattan International Limited (in the case of any Revolving
Borrowing denominated in
52
any Alternative Currency) determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means
do not exist for ascertaining the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for the currency in which such Eurocurrency
Borrowing is or is to be denominated (the "Applicable Currency") for
such Interest Period; or
(b) the Administrative Agent (and Chase Manhattan
International Limited, in the case of any Revolving Borrowing
denominated in any Alternative Currency) is advised by Revolving
Lenders having Revolving Credit Exposures and unused Revolving
Commitments representing more than 50% of the sum of the total
Revolving Credit Exposures and unused Revolving Commitments at such
time or U.S. Lenders having U.S. Credit Exposures and unused U.S.
Commitments representing more than 50% of the sum of the total U.S.
Credit Exposures and unused U.S. Commitments at such time (or, in
the case of a Eurocurrency Competitive Loan, the Lender that is
required to make such Loan) that the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period for the Applicable
Currency will not adequately and fairly reflect the cost to such
Lenders (or Lender) of making or maintaining their Loans (or its
Loan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing or U.S.
Borrowing to, or continuation of any Revolving Borrowing or U.S. Borrowing
denominated in the Applicable Currency as, a Eurocurrency Borrowing shall be
ineffective, and such Borrowing shall be converted to or continued on the last
day of the Interest Period applicable thereto (A) if such Borrowing is
denominated in Dollars, as an ABR Borrowing, or (B) if such Borrowing is
denominated in an Alternative Committed Currency, as a Borrowing bearing
interest at such rate as the Lenders participating in such Borrowing and the
applicable Borrower may agree adequately reflects the costs
53
to such Lenders of making or maintaining their Loans plus the Applicable Rate
(or, in the absence of such agreement, shall be repaid as of the last day of the
current Interest Period applicable thereto), (ii) if any Borrowing Request
requests a Eurocurrency Revolving Borrowing or Eurocurrency U.S. Borrowing
denominated in the Applicable Currency, such Revolving Borrowing or U.S.
Borrowing shall be made as an ABR Borrowing denominated in Dollars (or such
Borrowing shall not be made if the applicable Borrower revokes (and in such
circumstances, such Borrowing Request may be revoked notwithstanding any other
provision of this Agreement) such Borrowing Request by telephonic notice,
confirmed promptly in writing, not later than one Business Day prior to the
proposed date of such Borrowing) and (iii) any request by a Borrower for a
Eurocurrency Competitive Borrowing denominated in the Applicable Currency shall
be ineffective; provided that if the circumstances giving rise to such notice do
not affect all the Lenders, then requests by a Borrower for Eurocurrency
Competitive Borrowings denominated in the Applicable Currency may be made to
Lenders that are not affected thereby.
SECTION 2.14. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender (except any
such reserve requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurocurrency Loans or
Fixed Rate Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or to reduce the amount of any sum received or receivable by such
Lender hereunder (whether of principal, interest or otherwise), then the Company
will pay to such Lender such additional amount or amounts as
54
will compensate such Lender for such additional costs incurred or reduction
suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made by such Lender to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Company will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) If the cost to any Lender of making or maintaining any
Loan to Fortune Brands UK is increased (or the amount of any sum received or
receivable by any Lender (or its applicable lending office) is reduced) by an
amount deemed in good faith by such Lender to be material, by reason of the fact
that Fortune Brands UK is incorporated in, or conducts business in, a
jurisdiction outside the United States, Fortune Brands UK will pay to such
Lender such additional amount or amounts as will compensate such Lender for such
increased cost or reduction suffered.
(d) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as the case
may be, as specified in paragraph (a), (b) or (c) of this Section shall be
delivered to the Company and shall be conclusive absent manifest error. The
Company or the applicable Borrower shall pay such Lender the amount shown as due
on any such certificate within 10 days after receipt thereof. In requesting any
compensation pursuant to this Section, each Lender will use good faith efforts
to treat the Borrowers in substantially the same manner as such Lender treats
other similarly situated borrowers under similar circumstances.
(e) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such
55
compensation; provided that, in the case of a Change in Law, the Company shall
not be required to compensate a Lender pursuant to this Section for any
increased costs or reductions incurred more than 270 days prior to the date that
such Lender notifies the Company of the Change in Law giving rise to such
increased costs or reductions and of such Lender's intention to claim
compensation therefor; provided further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the 270-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
(f) Notwithstanding the foregoing provisions of this Section,
a Lender shall not be entitled to compensation pursuant to this Section in
respect of any Competitive Loan (i) in the case of paragraph (a) or (b), if the
Change in Law that would otherwise entitle it to such compensation shall have
been publicly announced prior to submission of the Competitive Bid pursuant to
which such Loan was made or (ii) in the case of paragraph (c), in respect of any
costs referred to therein.
SECTION 2.15. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurocurrency Loan, Fixed Rate Loan, or, unless
otherwise agreed to by the applicable Borrower and the applicable Lender with
respect to a Negotiated Rate Loan, a Negotiated Rate Loan other than on the last
day of an Interest Period applicable thereto (including as a result of an Event
of Default), (b) the conversion of any Eurocurrency Loan other than on the last
day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Revolving Loan or U.S. Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.10(b) and is revoked in accordance
therewith), (d) the failure to borrow any Competitive Loan after accepting the
Competitive Bid to make such Loan, or (e) the assignment of any Eurocurrency
Loan, Fixed Rate Loan or, unless otherwise agreed to by the applicable Borrower
and the applicable Lender with respect to a Negotiated Rate Loan, Negotiated
Rate Loan other than on the last day of the Interest Period applicable thereto
as a result of a request by the Company pursuant to Section 2.18, then, in any
such event, the Company or the applicable Borrower shall compensate each Lender
for the loss, cost and expense
56
attributable to such event. In the case of a Eurocurrency Loan, such loss, cost
or expense to any Lender may include an amount reasonably determined by such
Lender to be incurred by reason of the liquidation or reemployment of funds, but
excluding loss of anticipated profits. A certificate of any Lender setting forth
any amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Company and shall be conclusive absent
manifest error. The Company or the applicable Borrower shall pay such Lender the
amount shown as due on any such certificate within 10 days after receipt
thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account
of any obligation of any Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if any
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Agent or Lender (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and (iii)
such Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) The relevant Borrower shall indemnify the Administrative
Agent or relevant Lender, within 10 days after written demand therefor is made
(which demand shall set forth in reasonable detail the basis for the
determination that the Borrower is liable), for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrowers hereunder (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising
57
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to any Borrower by a Lender, or by the Administrative Agent
on its own behalf or on behalf of a Lender, shall be conclusive absent manifest
error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by any Borrower to a Governmental Authority, such Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which any
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to such Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by such Borrower as will permit such payments to be
made without withholding or at a reduced rate, provided that such Foreign Lender
has received written notice from such Borrower advising it of the availability
of such exemption or reduction and supplying all applicable documentation.
(f) If the Administrative Agent or a Lender determines, in its
sole discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by any Borrower or with respect to which any
Borrower has paid additional amounts pursuant to this Section 2.16, it shall pay
over such refund to such Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by such Borrower under this Section 2.16 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such
58
refund); provided, that such Borrower, upon the request of the Administrative
Agent or such Lender, agrees to repay the amount paid over to such Borrower
(plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender in the event
the Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. This Section shall not be construed to require the
Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes which it deems confidential) to any
Borrower or any other Person.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs. (a) Each Borrower shall make each payment required to be made by it
hereunder other than any payments with respect to Negotiated Rate Loans (whether
of principal, interest or fees, or of amounts payable under Section 2.14, 2.15
or 2.16 or 2.19, or otherwise) prior to 12:00 noon, Local Time on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent or Chase Manhattan International Limited, as applicable, be
deemed to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments to be made to the Administrative
Agent shall be made to it at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
except payments to be made directly to the Swingline Lenders as expressly
provided herein, all such payments to be made to Chase Manhattan International
Limited shall be made to it at its offices at ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and payments pursuant to Sections 2.14, 2.15, 2.16, 2.19 and
10.03 shall be made directly to the Persons entitled thereto. The Administrative
Agent or Chase Manhattan International Limited, as applicable, shall distribute
any such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. All payments
(including prepayments) to be made by the Borrowers on account of principal,
interest and fees relating to Negotiated Rate Loans shall be made to the Lender
with respect thereto on such terms, at such address and at such time as shall be
mutually agreed upon between the applicable Borrower and the applicable Lender
in
59
Dollars or the Alternative Currency agreed on the date due. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder of principal or interest in respect of
any Loan (or of any amounts payable under Section 2.15 or, at the request of the
applicable Lender, Section 2.14, 2.16 or 2.19 in respect of any Loan) shall be
made in the currency in which such Loan is denominated; all other payments
hereunder shall be made in Dollars, except as otherwise expressly provided. Any
payment required to be made by the Administrative Agent or Chase Manhattan
International Limited hereunder shall be deemed to have been made by the time
required if the Administrative Agent or Chase Manhattan International Limited,
as applicable, shall, at or before such time, have taken the necessary steps to
make such payment in accordance with the regulations or operating procedures of
the clearing or settlement system used by the Administrative Agent or Chase
Manhattan International Limited, as applicable, to make such payment. Any amount
payable by the Administrative Agent or Chase Manhattan International Limited, as
applicable, to one or more Lenders in the national currency of a member state of
the European Union that has adopted the Euro as its lawful currency shall be
paid in Euro.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent or Chase Manhattan International Limited
to pay fully all amounts of principal, interest and fees then due hereunder
(other than with respect to Negotiated Rate Loans), such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder (other than
with respect to Negotiated Rate Loans), ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due hereunder (other
than with respect to Negotiated Rate Loans), ratably among the parties entitled
thereto in accordance with the amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in
60
respect of any principal of or interest on any of its Revolving Loans, U.S.
Loans or participations in Swingline Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans,
U.S. Loans and participations in Swingline Loans and accrued interest thereon
than the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the
Revolving Loans, U.S. Loans and participations in Swingline Loans of other
Lenders to the extent necessary so that the benefit of all such payments shall
be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Revolving Loans, U.S.
Loans and participations in Swingline Loans; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by any Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
to any assignee or participant, other than to any Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall apply).
Each Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Borrower in the amount
of such participation.
(d) Unless the Administrative Agent or Chase Manhattan
International Limited, as applicable, shall have received notice from the
applicable Borrower prior to the date on which any payment is due to the
Administrative Agent or Chase Manhattan International Limited, as applicable,
for the account of the Lenders hereunder that such Borrower will not make such
payment, the Administrative Agent or Chase Manhattan International Limited, as
applicable, may assume that such Borrower has
61
made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders the amount due. In such event, if
such Borrower has not in fact made such payment, then each of the Lenders
severally agrees to repay to the Administrative Agent or Chase Manhattan
International Limited, as applicable, forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent or Chase Manhattan International Limited, as
applicable, at (i) the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent or Chase Manhattan International Limited,
as applicable, in accordance with banking industry rules on interbank
compensation (in the case of an amount denominated in Dollars) and (ii) the rate
reasonably determined by the Administrative Agent or Chase Manhattan
International Limited, as applicable, to be the cost to it of funding such
amount (in the case of an amount denominated in any other currency).
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.05(c), 2.06(b) or 2.17(d), then the
Administrative Agent or Chase Manhattan International Limited, as applicable,
may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Administrative Agent or Chase Manhattan
International Limited, as applicable, for the account of such Lender to satisfy
such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.14 or 2.19, or if any
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.14, 2.16 or
62
2.19, as the case may be, in the future and (ii) would not subject such Lender
to any unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender. The Company hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment.
(b) If any Lender requests compensation under Section 2.14 or
2.19, or if any Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section
2.16, or if any Lender defaults in its obligation to fund Loans hereunder, then
the Company may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, either (x) so long as no Default has occurred and is
continuing, terminate the Commitment of such Lender and prepay all outstanding
Loans (other than Competitive Loans and Negotiated Rate Loans) of such Lender or
(y) require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in Section 10.04), all its
interests, rights and obligations under this Agreement (other than any
outstanding Competitive Loans and Negotiated Rate Loans held by it) to an
assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) in the case of
an assignment to a Person not then a Lender, the Company shall have received the
prior written consent of the Administrative Agent (and, if a Revolving
Commitment is being assigned, the Swingline Lenders), which consent shall not
unreasonably be withheld, and (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans (other than Competitive
Loans and Negotiated Rate Loans) and participations in Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the applicable Borrower or Borrowers (in the case of all
other amounts). The applicable Borrower shall not be entitled to terminate a
Lender's Commitment and prepay its Loans as provided in clause (x) above, and a
Lender shall not be required to make any such assignment and delegation as
provided in clause (y) above, if, prior thereto, as a result of a waiver by such
Lender or otherwise, the
63
circumstances entitling the Company to effect such termination and prepayment or
to require such assignment and delegation, as the case may be, cease to apply.
SECTION 2.19. Additional Reserve Costs. (a) If and so long as
any Lender is required to make special deposits with the Bank of England, or to
maintain reserve asset ratios or to pay fees (other than deposits or reserves
reflected in the determination of the Adjusted LIBO Rate), in each case in
respect of such Lender's Eurocurrency Loans in any Alternative Currency, such
Lender may require the relevant Borrower to pay, contemporaneously with each
payment of interest on each of such Loans, additional interest on such Loans at
a rate per annum equal to the MLA Cost calculated in accordance with the formula
and in the manner set forth in Exhibit C.
(b) If and so long as any Lender is required to comply with
reserve assets, liquidity, cash margin or other requirements of any monetary or
other authority (other than any such requirements reflected in the determination
of the Adjusted LIBO Rate) (including any such requirement imposed by the
European Central Bank or the European System of Central Banks, but excluding
requirements reflected in the Statutory Reserves or the MLA Cost) in respect of
any of such Lender's Eurocurrency Loans in any Alternative Currency, such Lender
may require the relevant Borrower to pay, contemporaneously with each payment of
interest on each of such Lender's Eurocurrency Loans subject to such
requirements, additional interest on such Loans at a rate per annum specified by
such Lender to be the cost to such Lender of complying with such requirements in
relation to such Loan.
(c) Any additional interest owed pursuant to paragraph (a) or
(b) above shall be determined by the relevant Lender, which determination shall
be conclusive absent manifest error, and notified to the relevant Borrower (with
a copy to the Administrative Agent and, if applicable, Chase Manhattan
International Limited) at least five Business Days before each date on which
interest is payable for the relevant Loan, and such additional interest so
notified to the relevant Borrower by such Lender shall be payable to the
Administrative Agent or Chase Manhattan International Limited, as applicable,
for the account of
64
such Lender on each date on which interest is payable for such Loan.
SECTION 2.20. Redenomination of Certain Designated Foreign
Currencies. (a) Each obligation of any party to this Agreement to make a payment
denominated in the national currency unit of any member state of the European
Union that adopts the Euro as its lawful currency after the date hereof shall be
redenominated into Euro at the time of such adoption (in accordance with the EMU
Legislation). If, in relation to the currency of any such member state, the
basis of accrual of interest expressed in this Agreement in respect of that
currency shall be inconsistent with any convention or practice in the London
Interbank Market for the basis of accrual of interest in respect of the Euro,
such expressed basis shall be replaced by such convention or practice with
effect from the date on which such member state adopts the Euro as its lawful
currency; provided that if any Borrowing in the currency of such member state is
outstanding immediately prior to such date, such replacement shall take effect,
with respect to such Borrowing, at the end of the then current Interest Period.
(b) Without prejudice and in addition to any method of
conversion or rounding prescribed by any EMU Legislation and (i) without
limiting the liability of any Borrower for any amount due under this Agreement
and (ii) without increasing any Commitment of any Lender, all references in this
Agreement to minimum amounts (or integral multiples thereof) denominated in the
national currency unit of any member state of the European Union that adopts the
Euro as its lawful currency after the date hereof shall, immediately upon such
adoption, be replaced by references to such minimum amounts (or integral
multiples thereof) as shall be specified herein with respect to Borrowings
denominated in Euro.
(c) Each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agent (in consultation
with the Company) may from time to time specify to be appropriate to reflect the
adoption of the Euro by any member state of the European Union and any relevant
market conventions or practices relating to the Euro.
65
SECTION 2.21. Assigned Dollar Value. (a) With respect to each
Alternative Currency Borrowing, its "Assigned Dollar Value" shall mean the
following:
(i) the Dollar amount specified in the Borrowing Request
therefor (or (A) in the case of a Competitive Borrowing, the Dollar
amount thereof accepted pursuant to Section 2.04 or (B) in the case
of a Negotiated Rate Borrowing, (x) denominated in Dollars, the
Dollar amount of such Borrowing and (y) denominated in any
Alternative Currency, the Dollar Equivalent thereof as determined by
the Administrative Agent or Chase Manhattan International Limited,
as applicable, based upon the applicable Spot Exchange Rate at or
about the date of such Borrowing, which determination shall be
conclusive absent manifest error) unless and until adjusted pursuant
to the following clause (ii), and
(ii) as of each Revaluation Date with respect to such
Alternative Currency Borrowing, the "Assigned Dollar Value" of such
Borrowing shall be adjusted to be the Dollar Equivalent thereof (as
determined by the Administrative Agent or Chase Manhattan
International Limited, as applicable, based upon the applicable Spot
Exchange Rate as of the date that is three Business Days before such
Revaluation Date (which determination shall be conclusive absent
manifest error))(subject to further adjustment in accordance with
this clause (ii) thereafter).
(b) The Assigned Dollar Value of an Alternative Currency Loan
shall equal the Assigned Dollar Value of the Alternative Currency Borrowing of
which such Loan is a part multiplied by the percentage of such Borrowing
represented by such Loan.
(c) The Administrative Agent or Chase Manhattan International
Limited, as applicable, shall notify the Company of any change in the Assigned
Dollar Value of any Alternative Currency Borrowing promptly following
determination of such change.
66
ARTICLE III
Representations and Warranties
The Company represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Company and
its Subsidiaries is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization and has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, (a) is qualified to do business
in and (b) is in good standing in, every jurisdiction where such qualification
is required.
SECTION 3.02. Authorization; Enforceability. The Transactions
are within each Borrower's corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder action. This Agreement has
been duly executed and delivered by each Borrower and constitutes a legal, valid
and binding obligation of such Borrower, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation binding upon any Borrower or any of its
Material Subsidiaries or the charter, by-laws or other organizational documents
of any Borrower or any of its Subsidiaries or any order of any Governmental
Authority binding upon any Borrower or any of its Subsidiaries, (c) will not
violate or result in a default under any material indenture, agreement or other
instrument binding upon any Borrower or any of its Material Subsidiaries or its
assets, or give rise to a right
67
thereunder to require any payment to be made by any Borrower or any of its
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any material asset of any Borrower or any of its Subsidiaries.
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, 2000, 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, 2001, 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, 2000, 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.
SECTION 3.05. Properties. (a) Each of the Company and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for such defects in title
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
(b) Each of the Company and its Subsidiaries owns, or is
licensed to use, all trademarks, trade names, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Company and its Subsidiaries does not, to the knowledge of the Company, infringe
upon the rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
68
SECTION 3.06. Litigation and Environmental Matters. (a) There
are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that specifically involve this Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect
to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, none of the
Company or any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has incurred any
Environmental Liability, (iii) has received notice of any claim with respect to
any Environmental Liability or (iv) knows of any facts or circumstances that
could reasonably be expected to result in any Environmental Liability.
SECTION 3.07. Compliance with Laws and Agreements. Each of the
Company and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.08. Investment and Holding Company Status. None of
the Company or any of Subsidiaries is (a) an "investment company" registered or
required to be registered under the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Company and its Subsidiaries
has timely filed or caused to be filed all
69
Tax returns and reports required to have been filed and has paid or caused to be
paid all Taxes required to have been paid by it, except (a) any Taxes that are
being contested in good faith by appropriate proceedings and for which the
Company or such Subsidiary, as applicable, has set aside on its books adequate
reserves or (b) to the extent that the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is likely to occur, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. Disclosure. The Information Memorandum furnished
by or on behalf of the Company to the Administrative Agent and Lenders in
connection with the negotiation of this Agreement (as modified or supplemented
by other information so furnished) did not as of the date thereof contain any
material misstatement of fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders
to make Loans hereunder shall not become effective until the date on which each
of the following conditions is satisfied (or waived in accordance with Section
10.02):
(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.
70
(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 each of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
LLP, counsel for the Company, and ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, United Kingdom
counsel for Fortune Brands UK, substantially in the form of Exhibits
B-1 and B-2, respectively, and covering such other matters relating
to the Borrowers, this Agreement or the Transactions as the Required
Lenders shall reasonably request. Each Borrower 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 each of the Borrowers, the
authorization of the Transactions and any other legal matters
relating to any of the Borrowers, this 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 (a) and (b)
of Section 4.02.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the
Borrowers hereunder.
The Administrative Agent shall notify the Borrowers and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 10.02) no later than five Business Days after the date
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hereof (and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender
to make a Loan on the occasion of any Borrowing is subject to the satisfaction
of the following conditions:
(a) The representations and warranties of the Borrowers set
forth in this Agreement (other than, for any Borrowing after the
Effective Date, the representations and warranties set forth in
Sections 3.04(b) and 3.06) shall be true and correct on and as of
the date of such Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
each Borrower on the date thereof as to the matters specified in paragraphs (a)
and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Company covenants and agrees with the Lenders that:
72
SECTION 5.01. Financial Statements and Other Information. The
Company will furnish to the Administrative Agent (with sufficient copies for
each Lender):
(a) within 120 days after the end of each fiscal year of the
Company, its audited consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows as of
the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all
reported on by PricewaterhouseCoopers or other independent public
accountants of recognized national standing to the effect that such
consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the
Company and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year of the Company, its consolidated
balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such fiscal quarter
and the then elapsed portion of the fiscal year, setting forth in
each case in comparative form the figures for the corresponding
period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year, all certified by one of its
Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Company and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer
of the Company (i) certifying as to whether a Default has occurred
and, if a Default has occurred, specifying the details thereof and
any action taken or proposed to be taken with respect thereto, (ii)
setting forth reasonably
73
detailed calculations demonstrating compliance with Section 6.06 and
(iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the audited financial
statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the financial
statements accompanying such certificate; and
(d) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Company or any Subsidiary, or compliance with the
terms of this Agreement, as the Administrative Agent or any Lender
may reasonably request.
The Company may at its option satisfy its obligations under Section 5.01(a) and
5.01(b) by delivering copies of its Form 10-K and Form 10-Q filings (or any
successor forms), respectively, as filed with the Securities and Exchange
Commission for the relevant period; provided that such filings contain the
required information and are certified by a Financial Officer of the Company.
SECTION 5.02. Notices of Material Events. The Company will
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default; and
(b) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Company and its Subsidiaries
in an aggregate amount exceeding $50,000,000.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Company setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Company
will, and will cause each of its Subsidiaries to, do or cause to be done all
things necessary to
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preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises; provided that the
foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.03 or any transfer, disposition or
abandonment of rights, licenses, permits, privileges or franchises that could
not reasonably be expected to have a Material Adverse Effect.
SECTION 5.04. Payment of Obligations. The Company will, and
will cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect,
except where (a) the validity or amount thereof is being contested in good faith
by appropriate proceedings and (b) the Company or such Subsidiary has set aside
on its books adequate reserves with respect thereto in accordance with GAAP.
SECTION 5.05. Maintenance of Properties; Insurance. The
Company will, and will cause each of its Subsidiaries to, (a) keep and maintain
all property in good working order and condition, ordinary wear and tear
excepted, except for any such failure as would not have a Material Adverse
Effect, and (b) maintain, with financially sound and reputable insurance
companies, insurance in such amounts and against such risks as are considered
appropriate by management of the Company.
SECTION 5.06. Books and Records; Inspection Rights. The
Company will, and will cause each of its Subsidiaries to, keep proper books of
record and account that will enable the Company to comply with its obligations
under Section 5.01(a) and (b) of this Agreement. Each Borrower will permit any
representatives designated by the Administrative Agent or any Lender, at the
expense of the Administrative Agent or such Lender, upon reasonable prior
notice, to visit and inspect its properties, and to discuss its affairs,
finances and condition with its officers, all at such reasonable times (during
normal business hours) and as often as reasonably requested.
SECTION 5.07. Compliance with Laws. The Company will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
orders of any
75
Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans will
be used only for general corporate purposes, including support of commercial
paper issued by the Company. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of
Regulation U or X of the Board.
SECTION 5.09. Litigation Report. Promptly, and in any event
within five days, after the Company has filed with the Securities and Exchange
Commission (a) the Company's quarterly report on Form 10-Q (or any successor
form) for any fiscal quarter or (b) a Form 8-K (or any successor form) relating
to legal proceedings, the Company shall furnish to the Administrative Agent
(with sufficient copies for each Lender) a copy of such Form 10-Q (including, if
requested by any Lender, any exhibits thereto relating to information required
by Item 1 ("Legal Proceedings") of Part II of Form 10-Q) or such Form 8-K, as
applicable.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full, the Company covenants and agrees with the Lenders that:
SECTION 6.01. Restrictions on Borrowing by Restricted
Subsidiaries. The Company will not permit any Restricted Subsidiary to issue,
assume, guarantee or incur any Funded Debt except:
(a) Funded Debt owed to the Company or to a Restricted
Subsidiary;
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(b) Funded Debt which is Secured Debt permitted by Section
6.02 without equally and ratably securing the Obligations;
(c) unsecured Funded Debt issued, assumed, guaranteed or
incurred which represents an extension, renewal or refunding of
Secured Debt permitted by the first paragraph of Section 6.02 to the
extent of the principal amount of the Secured Debt so extended,
renewed or refunded;
(d) unsecured Funded Debt in an amount which, if it were
Secured Debt, would be permitted by the second paragraph of Section
6.02 without equally and ratably securing the Obligations;
(e) unsecured Funded Debt assumed by a Restricted Subsidiary
in connection with its merger with, or acquisition of all or a
substantial part of the assets and business of, any Person and which
constitutes existing indebtedness or an existing guarantee of such
Person;
(f) unsecured Funded Debt of a Person existing at the time it
becomes a Restricted Subsidiary;
(g) Funded Debt created in connection with any industrial
revenue bond, pollution control bond or similar financing
arrangement between the Company or any Restricted Subsidiary and the
United States, any State thereof or any municipal government or
other governmental body or agency; and
(h) any extension, renewal or refunding (or successive
extensions, renewals or refundings), in whole or in part, of any
Funded Debt referred to in the foregoing clauses (a) through (g).
SECTION 6.02. Restrictions on Secured Debt. The Company will
not, and will not permit any Restricted Subsidiary to, issue, assume, guarantee
or incur any Secured Debt, without effectively providing that the Obligations
(together with, if the Company shall so determine, any other indebtedness of the
Company or such Restricted Subsidiary then existing or thereafter created
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ranking equally with the Obligations, including guarantees of indebtedness of
others) shall be secured equally and ratably with (or prior to) such Secured
Debt, so long as such Secured Debt shall be so secured, except that this Section
shall not apply to Secured Debt secured by:
(a) mortgages on property of any corporation existing at the
time such corporation becomes a Restricted Subsidiary;
(b) mortgages on property of any Person which is merged with,
or all or a substantial part of whose properties are acquired by,
the Company or any Restricted Subsidiary; provided that any such
mortgage shall have existed prior to such merger or acquisition and
shall not have applied to any property owned by the Company or any
Restricted Subsidiary immediately prior to such merger or
acquisition;
(c) mortgages upon or with respect to any property acquired,
constructed or improved by the Company or any Restricted Subsidiary
after the date hereof which are created, incurred or assumed
contemporaneously with, or within 90 days after, such acquisition,
completion of construction or completion of improvement to secure or
provide for the payment of any part of the purchase price of such
property or the cost of such construction or improvement, or
mortgages upon or with respect to any property existing at the time
of acquisition thereof; provided that any such mortgage shall not
apply to any property theretofore owned by the Company or any
Restricted Subsidiary other than any theretofore unimproved real
property on which the property so constructed, or the improvement,
is located;
(d) mortgages which secure indebtedness owing to the Company
or to a Restricted Subsidiary;
(e) the mortgage of any property of the Company or any
Restricted Subsidiary in favor of the United States, or any State
thereof, or any department, agency or instrumentality of either, to
secure partial, progress, advance or other payments to the
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Company or any Restricted Subsidiary pursuant to the provisions of
any contract or statute;
(f) the mortgage of any property of the Company or any
Restricted Subsidiary created, incurred or assumed in connection
with any industrial revenue bond, pollution control bond or similar
financing arrangement between the Company or any Restricted
Subsidiary and the United States, any state thereof or any municipal
government or other governmental body or agency; or
(g) any extension, renewal or refunding (or successive
extensions, renewals or refundings), in whole or in part, of any
mortgage referred to in the foregoing clauses (a) through (f), or of
any indebtedness secured thereby; provided that such extension,
renewal or refunding mortgage shall be limited to all or any part of
the same property that secured the mortgage extended, renewed or
refunded (plus improvements on such property).
Notwithstanding the foregoing provisions of this Section 6.02,
the Company and any one or more Restricted Subsidiaries may issue, assume,
guarantee or incur Secured Debt, without equally and ratably securing the
Obligations, if after giving effect thereto, the sum of (i) the aggregate amount
of all Secured Debt of the Company and its Restricted Subsidiaries (except
Secured Debt pursuant to clauses (a) through (g) of the first paragraph of this
Section 6.02), (ii) the aggregate Value of sale and lease back transactions to
which Section 6.03 applies and (iii) the aggregate amount of all unsecured
outstanding Funded Debt of all Restricted Subsidiaries permitted under Section
6.01(d)(or any extension, renewal or refunding thereof), does not exceed 10% of
Consolidated Net Tangible Assets.
If the Company shall hereafter be required to secure the
Obligations equally and ratably with (or prior to) any other indebtedness
pursuant to this Section 6.02, (i) the Company will promptly deliver to the
Administrative Agent a certificate of a Financial Officer of the Company stating
that such covenant has been complied with, and an opinion of counsel to the
Company stating that in the
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opinion of such counsel such covenant has been complied with, that any
instruments executed by the Company or any Restricted Subsidiary in the
performance of such covenant comply with the requirements of such covenant and
that all steps necessary to perfect such security have been taken, and (ii) the
Administrative Agent is hereby authorized to enter into such instruments and to
take such action, if any, as it may deem advisable to enable it to enforce the
rights of the Lenders of such Obligations so secured.
SECTION 6.03. Restrictions on Sale and Lease Back
Transactions. The Company will not, and will not permit any Restricted
Subsidiary to, sell or transfer (other than to the Company or to a Restricted
Subsidiary) any property owned by the Company or any Restricted Subsidiary on
the date hereof, which (as determined by a Board Resolution) constitutes a major
facility of the Company and its Restricted Subsidiaries, taken as a whole, with
the intention of the Company or any Restricted Subsidiary taking back a lease of
such property, except a lease for a temporary period (not exceeding five years)
by the end of which it is intended that the use of such property by the lessee
will be discontinued. Notwithstanding the foregoing, the Company or any
Restricted Subsidiary may so sell any such property and lease it back if (a) the
Company promptly gives notice of such sale to the Administrative Agent; (b) the
net proceeds of such sale are at least equal to the fair value (as determined by
Board Resolution) of such property; and (c) the Company shall, and in any such
case the Company covenants that it will, within 120 days after such sale, apply,
or cause such Restricted Subsidiary to apply, not less than an amount equal to
the net proceeds of such sale to the retirement of outstanding Funded Debt of
the Company and/or any Restricted Subsidiary (other than any thereof which is
owed to the Company or any Restricted Subsidiary and other than any thereof
which is subordinate in right of payment to the Obligations); provided that the
amount to be applied to the retirement of Funded Debt of the Company or such
Restricted Subsidiary shall be reduced by
(i) the amount of Secured Debt which the Company or such
Restricted Subsidiary could at that time issue, assume, guarantee or
incur pursuant to the
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second paragraph of Section 6.02 without equally and ratably
securing the Obligations, and
(ii) the principal amount of any debentures, notes or other
instruments evidencing Funded Debt of the Company (which may include
Obligations) or of a Restricted Subsidiary delivered within 120 days
after such sale to the applicable trustee for retirement and
cancellation, other than any debentures, notes or other instruments
retired by payment at maturity or pursuant to any mandatory sinking
fund payment or any mandatory prepayment provision.
SECTION 6.04. Fundamental Changes. (a) The Company shall not
consolidate with or merge into any other Person or convey or transfer its
properties and assets substantially as an entirety to any Person, unless
(i) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company substantially as
an entirety shall be a corporation organized and existing under the
laws of the United States or any State or the District of Columbia
and expressly assume, in form reasonably satisfactory to the
Administrative Agent, the due and punctual payment of the principal
of (and premium, if any) and interest, if any, on all the Loans and
the performance of every covenant of this Agreement on the part of
the Company to be performed or observed;
(ii) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing; and
(iii) the Company shall have delivered to the Administrative
Agent a certificate of a duly authorized officer of the Company and
an opinion of legal counsel to the Company (which shall be
reasonably acceptable to the Administrative Agent), each stating
that such consolidation, merger, conveyance or transfer comply with
this Section 6.04(a) and that all conditions precedent herein
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provided for relating to such transaction have been complied with.
(b) Upon any consolidation or merger, or any conveyance or
transfer of the properties and assets of the Company substantially as an
entirety in accordance with Section 6.04(a), the successor corporation formed by
such consolidation or into which the Company is merged or to which such
conveyance or transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Agreement with the
same effect as if such successor corporation had been named as the Company
herein, and thereafter the predecessor corporation shall be relieved of all
obligations and covenants under this Agreement and any promissory notes issued
hereunder and may be liquidated and dissolved.
(c) The Company shall not permit Fortune Brands UK to
consolidate with or merge into any other Person or convey or transfer its
properties and assets substantially as an entirety to any Person, unless the
Person formed by such consolidation or into which Fortune Brands UK is merged or
the Person which acquires by conveyance or transfer the properties and assets of
Fortune Brands UK substantially as an entirety shall be a wholly-owned
Subsidiary organized and existing under the laws of the United Kingdom or any
political subdivision thereof, and expressly assume, in form reasonably
satisfactory to the Administrative Agent, the due and punctual payment of the
principal of (and premium, if any) and interest, if any, on all the Loans to
Fortune Brands UK and the performance of every covenant of this Agreement on the
part of Fortune Brands UK to be performed or observed.
(d) Upon any consolidation or merger, or any conveyance or
transfer of the properties and assets of Fortune Brands UK substantially as an
entirety in accordance with Section 6.04(c), the successor corporation formed by
such consolidation or into which Fortune Brands UK is merged or to which such
conveyance or transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, Fortune Brands UK under this Agreement with
the same effect as if such successor corporation had been named as Fortune
Brands UK herein, and thereafter the predecessor corporation shall be relieved
of
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all obligations and covenants under this Agreement and any promissory notes
issued hereunder and may be liquidated and dissolved.
SECTION 6.05. Transactions with Affiliates. The Company will
not, and will not permit any of its Restricted Subsidiaries or Fortune Brands UK
to, sell, lease or otherwise transfer any property or assets to, or purchase,
lease or otherwise acquire any property or assets from, or otherwise engage in
any other transactions with, any of its Affiliates, except (a) at prices and on
terms and conditions not materially less favorable to the Company or such
Subsidiary than could be obtained on an arm's-length basis from unrelated third
parties, and (b) transactions between or among the Company and its Subsidiaries.
SECTION 6.06. Interest Coverage Ratio. The Company will not
permit the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest
Expense, each as calculated as at the end of any fiscal quarter ending on or
after the Effective Date for the period of four prior consecutive fiscal
quarters then ended, to be less than 3.50 to 1.00.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall
occur:
(a) any Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or
otherwise;
(b)(i) any Borrower shall fail to pay any interest on any Loan
when and as the same shall become due and payable, and such failure
shall continue unremedied for a period of five Business Days or (ii)
any Borrower shall fail to pay any fee or any other amount (other
than an amount referred to in clause (a) or (b)(i) of this Article)
payable under this Agreement, when and as the same shall become due
and
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payable, and such failure shall continue unremedied for a period of
five Business Days after notice thereof from the Administrative
Agent to the Company (which notice will be given at the request of
any Lender);
(c) any representation or warranty made or deemed made by or
on behalf of the Company or any of its Subsidiaries in this
Agreement or any amendment or modification hereof or waiver
hereunder, or in any report, certificate, financial statement or
other document furnished pursuant to this Agreement or any amendment
or modification hereof or waiver hereunder, shall prove to have been
incorrect in any material respect when made or deemed made;
(d) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect
to any Borrower's existence) or 5.08 or in Article VI;
(e) any Borrower shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement (other
than those specified in clause (a), (b), (c), (d) or (n) of this
Article), and such failure shall continue unremedied for a period of
30 days after notice thereof from the Administrative Agent to the
Company (which notice will be given at the request of any Lender);
(f) the Company or any of its Subsidiaries shall fail to make
any payment (of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall
become due and payable (after giving effect to any period of grace
or notice requirement thereunder);
(g) any Material Indebtedness becomes due prior to its
scheduled maturity or the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf cause
any Material Indebtedness to become due, or require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (g) shall not apply to secured
Indebtedness that becomes
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due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Company or any of
its Material Subsidiaries or its debts, or of a substantial part of
its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect
or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any
of its Material Subsidiaries or for a substantial part of its
assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) the Company or any of its Material Subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state
or foreign bankruptcy, insolvency, receivership or similar law now
or hereafter in effect, (ii) consent to the institution of, or fail
to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any
of its Material Subsidiaries or for a substantial part of its
assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for
the purpose of effecting any of the foregoing;
(j) the Company or any of its Material Subsidiaries shall
admit in writing its inability to pay its debts as they become due;
(k) one or more final judgments for the payment of money in an
aggregate amount in excess of $100,000,000 shall be rendered against
the Company,
85
any of its Material Subsidiaries or any combination thereof and the
same shall remain undischarged for a period of 60 consecutive days
during which execution shall not be effectively stayed, or any
action shall be legally taken by a judgment creditor to attach or
levy upon any assets of the Company or any of its Material
Subsidiaries to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in
a Material Adverse Effect;
(m) a Change in Control shall occur; or
(n) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.09, and such failure
shall continue unremedied for a period of 5 Business Days after
notice thereof from the Administrative Agent to the Company (which
notice will be given at the request of any Lender);
then, and in every such event (other than an event with respect to any Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, at the request of the Required Lenders the
Administrative Agent shall, by notice to the Company, take either or both of the
following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrowers accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrowers; and in case of any
event with respect to any Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrowers accrued hereunder, shall automatically become
due and payable,
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without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrowers.
ARTICLE VIII
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with any Borrower or any of its
subsidiaries or other Affiliate thereof as if it were not the Administrative
Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 10.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to any
Borrower or any of its subsidiaries that is communicated to or obtained by the
bank serving as Agent or any of its Affiliates in any
87
capacity. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 10.02) or in the absence of its own gross
negligence or wilful misconduct. The Administrative Agent shall be deemed not to
have knowledge of any Default unless and until written notice thereof is given
to the Administrative Agent by the applicable Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement, (ii) the contents of any certificate, report or
other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument or document, or
(v) the satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrowers), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The
88
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Company. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Company, to appoint a successor. If no successor shall have been so appointed by
the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which shall be a bank with an office in New
York, New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Company to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Company and
such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 10.03 shall continue in effect for the
benefit of the retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as
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it shall from time to time deem appropriate, continue to make its own decisions
in taking or not taking action under or based upon this Agreement, any related
agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Guarantee
In order to induce the Lenders to extend credit to Fortune
Brands UK hereunder, the Company hereby irrevocably and unconditionally
guarantees, as a primary obligor and not merely as a surety, the Obligations of
Fortune Brands UK. The Company further agrees that the due and punctual payment
of the Obligations of Fortune Brands UK may be extended or renewed, in whole or
in part, without notice to or further assent from it, and that it will remain
bound upon its guarantee hereunder notwithstanding any such extension or renewal
of any Obligation.
The Company waives presentment to, demand of payment from and
protest to Fortune Brands UK of any of the Obligations, and also waives notice
of acceptance of its obligations and notice of protest for nonpayment. The
obligations of the Company hereunder shall not be affected by (a) the failure of
any Lender to assert any claim or demand or to enforce any right or remedy
against Fortune Brands UK under the provisions of this Agreement or otherwise;
(b) any extension or renewal of any of the Obligations; (c) any rescission,
waiver, amendment or modification of, or release from, any of the terms or
provisions of this Agreement or any other agreement; (d) the failure or delay of
any Lender to exercise any right or remedy against any other guarantor of the
Obligations; (e) the failure of any Lender to assert any claim or demand or to
enforce any remedy under any other agreement or instrument; (f) any default,
failure or delay, wilful or otherwise, in the performance of the Obligations; or
(g) any other act, omission or delay to do any other act which may or might in
any manner or to any extent vary the risk of the Company or otherwise operate as
a discharge of the Company as a matter of law or equity or which would impair or
eliminate any right of the Company to subrogation, in each case, other than
payment in full of the Obligations after termination of the Commitments.
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The Company further agrees that its guarantee hereunder
constitutes a promise of payment when due (whether or not any bankruptcy or
similar proceeding shall have stayed the accrual or collection of any of the
Obligations or operated as a discharge thereof) and not merely of collection,
and waives any right to require that any resort be had by any Lender to any
balance of any deposit account or credit on the books of any Lender in favor of
any Borrower or Subsidiary or any other Person.
The obligations of the Company hereunder shall not be subject
to any reduction, limitation, impairment or termination for any reason, and
shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever, by reason of the invalidity, illegality or
unenforceability of the Obligations, any impossibility in the performance of the
Obligations or otherwise, in each case, other than the defense of payment in
full of the Obligations.
The Company further agrees that its obligations hereunder
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by any Lender upon the bankruptcy or reorganization of any
Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Lender may have at law or in equity against the Company by
virtue hereof, upon the failure of Fortune Brands UK to pay any Obligation when
and as the same shall become due, whether at maturity, by acceleration, after
notice of prepayment or otherwise, the Company hereby promises to and will, upon
receipt of written demand by the Administrative Agent, forthwith pay, or cause
to be paid, to the Administrative Agent for distribution to the Lenders in cash
an amount equal the unpaid principal amount of such Obligation. The Company
further agrees that if payment in respect of any Obligation shall be due in a
currency other than Dollars and/or at a place of payment other than New York and
if, by reason of any legal prohibition, disruption of currency or foreign
exchange markets, war or civil disturbance or other event, payment of such
Obligation in such currency or at such
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place of payment shall be impossible or, in the reasonable judgment of any
Lender, not consistent with the protection of its rights or interests, then, at
the election of such Lender, the Company shall make payment of such Obligation
in Dollars (based upon the applicable Spot Exchange Rate in effect on the date
of payment) and/or in New York, and shall indemnify such Lender against any
losses or expenses (including losses or expenses resulting from fluctuations in
exchange rates) that it shall sustain as a result of such alternative payment.
Upon payment in full by the Company of any Obligation of
Fortune Brands UK, each Lender shall, in a reasonable manner, assign to the
Company the amount of such Obligation owed to such Lender and so paid, such
assignment to be pro tanto to the extent to which the Obligation in question was
discharged by the Company, or make such disposition thereof as the Company shall
direct (all without recourse to any Lender and without any representation or
warranty by any Lender). Upon payment by the Company of any sums as provided
above, all rights of the Company against Fortune Brands UK arising as a result
thereof by way of right of subrogation or otherwise shall in all respects be
subordinated and junior in right of payment to the prior indefeasible payment in
full of all the Obligations owed by Fortune Brands UK to the Lenders (it being
understood that, after the discharge of all the Obligations due and payable from
Fortune Brands UK, such rights may be exercised by the Company notwithstanding
that Fortune Brands UK may remain contingently liable for indemnity or other
Obligations).
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ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Company, to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of the Treasurer (Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to Fortune Brands UK, to it in care of the Company as
provided in paragraph (a) above;
(c) if to the Administrative Agent, to The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇▇ (Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to The Chase Manhattan Bank, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇);
(d) if to Chase Manhattan International Limited, to ▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trinity Tower, Attention of
▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. ▇▇-▇▇-▇▇▇▇-▇▇▇▇);
(e) if to a Swingline Lender, (i) in the case of The Chase
Manhattan Bank, to it at Loan and Agency Services Group, One Chase
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of
▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇)) and (ii) in the case of
Citibank, N.A., to it at Citibank Delaware, 2 Pennsway, ▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(f) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
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Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or delay by
the Administrative Agent or any Lender in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by any Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrowers and the Required Lenders or by the
Borrowers and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce the principal amount of
any Loan or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby, (iii)
postpone the scheduled date of payment of the principal amount of any Loan, or
any interest thereon, or any fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration
of any Commitment, without the written consent of each Lender
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affected thereby, (iv) change Section 2.17(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender, (v) change any of the provisions of this Section or the
definition of "Required Lenders" or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender or (vi) release or limit the Company's
obligations under Article IX without the written consent of each Lender;
provided, further that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent or the Swingline Lenders
hereunder without the prior written consent of the Administrative Agent or the
Swingline Lenders, as the case may be. Notwithstanding the foregoing, any
provision of this Agreement may be amended by an agreement in writing entered
into by the Borrowers, the Required Lenders and the Administrative Agent (and,
if their rights or obligations are affected thereby, the Swingline Lenders) if
(i) by the terms of such agreement the Commitment of each Lender not consenting
to the amendment provided for therein shall terminate upon the effectiveness of
such amendment and (ii) at the time such amendment becomes effective, each
Lender not consenting thereto receives payment in full of the principal of and
interest accrued on each Loan made by it and all other amounts owing to it or
accrued for its account under this Agreement. Anything contained in the
foregoing to the contrary notwithstanding, the applicable Borrower and the
applicable Lender with respect to a Negotiated Rate Loan may, from time, to
time, enter into amendments, supplements or modifications for the purpose of
adding any provisions to such Negotiated Rate Loans or changing in any manner
the rights of such Lender and such Borrower thereunder and such Lender may waive
any of the requirements of such Negotiated Rate Loan; provided that such
Borrower and such Lender shall notify the Administrative Agent in writing of any
extensions of the maturity of such Negotiated Rate Loan or reduction of the
principal amount thereof; provided, further, that such Borrower and such Lender
shall not extend the maturity of such Negotiated Rate Loan beyond the Maturity
Date.
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SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The
Company shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates (including Chase Manhattan International
Limited), including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, in connection with the syndication of the credit
facilities provided for herein and the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions hereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated) and (ii) all reasonable out-of-pocket expenses incurred by the
Administrative Agent or any Lender (other than any Lender that defaults in its
obligation to fund Loans hereunder, so long as such default is continuing),
including the reasonable fees, charges and disbursements of any counsel for the
Administrative Agent or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights
under this Section, or in connection with the Loans made hereunder, including
all such reasonable out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans; provided that the
Company shall have no obligation to pay fees, charges or disbursements for more
than (x) one firm of counsel acting for the Administrative Agent in each
applicable jurisdiction and (y) one firm of counsel acting for the Lenders in
each applicable jurisdiction.
(b) The Company shall indemnify the Administrative Agent and
each Lender (other than any Lender that defaults in its obligation to fund Loans
hereunder, so long as such default is continuing), and each Related Party of any
of the foregoing Persons (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and reasonable out-of-pocket expenses, including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of this Agreement or any
agreement or instrument contemplated hereby, the performance by the parties
hereto of their respective obligations hereunder or the consummation of the
Transactions or any other transactions contemplated hereby,
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(ii) any Loan or the use of the proceeds therefrom, (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property owned or
operated by any Borrower or any of its subsidiaries, or any Environmental
Liability related in any way to any Borrower or any of its subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee or the violation of this Agreement by such Indemnitee.
Notwithstanding the foregoing, the Company shall have no obligation to pay fees,
charges or disbursements for more than (x) one firm of counsel acting for the
Administrative Agent and all of its Related Parties in each applicable
jurisdiction and (y) one firm of counsel acting for the Lenders and all of their
Related Parties in each applicable jurisdiction; provided that an Indemnitee
shall have the right to employ additional counsel (including local counsel), and
the Company shall bear the reasonable fees, charges and disbursements of such
additional counsel, if (1) the employment of counsel by such Indemnitee has been
authorized in writing by the Company, (2) such Indemnitee has reasonably
concluded (based upon advice of counsel to such Indemnitee) that there may be
legal defenses available to it that are different from or in addition to those
available to any other Indemnitee or (3) such Indemnitee has reasonably
concluded (based upon advice of counsel to such Indemnitee) that a conflict or
potential conflict exists between such Indemnitee and any other Indemnitee.
(c) To the extent that the Company fails to pay any amount
required to be paid by it to the Administrative Agent or the Swingline Lenders
under paragraph (a) or (b) of this Section, each Lender severally agrees to pay
to the Administrative Agent or the Swingline Lenders, as the case may be, such
Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the
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unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent or either Swingline Lender in its capacity as such. For
purposes of this paragraph, a Lender's "pro rata share" of any amount shall be
determined based on the percentage of the total Commitments represented by such
Lender's Commitment or if the Commitments have terminated or expired, such
percentage shall be determined based upon the Total Credit Exposure.
(d) To the extent permitted by applicable law, none of the
Borrowers shall assert, and each Borrower hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any promissory note issued
pursuant to this Agreement, the Transactions or any Loan or the use of the
proceeds thereof.
(e) All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 10.04. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that
no Borrower may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by any Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment to a Lender or
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an Affiliate of a Lender, the Company and the Administrative Agent (and, in the
case of an assignment of all or a portion of a Revolving Commitment or any
Lender's obligations in respect of its Swingline Exposure, the Swingline
Lenders) must give their prior written consent to such assignment (which consent
shall not be unreasonably withheld); provided that no consent of the Company
shall be required if an Event of Default has occurred and is continuing, (ii)
except in the case of an assignment to a Lender or an Affiliate of a Lender or
an assignment of the entire remaining amount of the assigning Lender's
Commitment, the amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $10,000,000 unless each of the Company and the Administrative Agent
otherwise consent, (iii) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and obligations
under this Agreement, except that this clause (iii) shall not apply to rights in
respect of outstanding Competitive Loans or Negotiated Rate Loans, (iv) the
parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment and Acceptance, together with a processing and recordation fee of
$3,500 to the Administrative Agent, and (v) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; and provided further that any consent of the Borrowers otherwise
required under this paragraph shall not be required if an Event of Default under
clause (h) or (i) of Article VII has occurred and is continuing. Subject to
acceptance and recording thereof pursuant to paragraph (d) of this Section, from
and after the effective date specified in each Assignment and Acceptance the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14, 2.15,
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2.16, 2.19 and 10.03 solely in respect of any period ended on or before the date
of such assignment). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrowers, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive, and the Borrowers, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrowers, and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrowers, the
Administrative Agent or the Swingline Lenders, sell participations to one or
more banks or other entities (a "Participant") in all or a portion of such
Lender's rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans owing to it); provided that (i) such Lender's
obligations
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under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
10.02(b) that affects such Participant. Subject to paragraph (f) of this
Section, each Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.14, 2.15 and 2.16 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.14, 2.16 or 2.19 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with a Borrower's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 2.16
unless the Company is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of the Borrowers, to comply with
Section 2.16(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
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(h) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose funding vehicle
(a "SPV"), identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Company, the option to provide to
either Borrower all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to such Borrower pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPV to
make any Loan and (ii) if an SPV elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof. The making of an Loan
by an SPV hereunder shall utilize the Commitment of the Granting Lender to the
same extent, and as if, such Loan were made by such Granting Lender. Each party
hereto hereby agrees that no SPV shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of any SPV, it
will not institute against, or join any other person in instituting against,
such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section
10.04, any SPV may (i) with notice to, but without the prior written consent of,
the applicable Borrower and the Administrative Agent and without paying any
processing fee therefor, assign all or a portion of its interests in any Loans
to the Granting Lender or to any financial institutions (consented to by the
applicable Borrower and the Administrative Agent) providing liquidity or credit
support to or for the account of such SPV to support the funding or maintenance
of Loans and (ii) disclose on a confidential basis pursuant to a written
confidentiality agreement in form and substance reasonably satisfactory to the
Company any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety,
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guarantee or credit or liquidity enhancement to such SPV. This paragraph (h) may
not be amended without the written consent of any SPV whose rights and
obligations are affected thereby.
SECTION 10.05. Survival. All covenants, agreements,
representations and warranties made by the Borrowers herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.14, 2.15, 2.16, 2.19 and
10.03 and Article VIII shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Commitments or the
termination of this Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
any promissory notes issued pursuant to this Agreement and any separate letter
agreements with respect to fees payable to the Administrative Agent constitute
the entire contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts
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hereof which, when taken together, bear the signatures of each of the other
parties hereto, and thereafter shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other obligations at any time owing by such Lender
to or for the credit or the account of any Borrower against any of and all the
obligations of such Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service
of Process. (a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of
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New York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against any Borrower or its properties in
the courts of any jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 10.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law. Fortune Brands UK hereby
irrevocably appoints C T Corporation System (the "Process Agent"), with an
office on the date hereof at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 13th floor, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, as its agent to receive on behalf of itself and its
property service of copies of the summons and complaint and any other process
which may be served in any such action or proceeding. Such service may be made
by mailing or delivering a copy of such process to Fortune Brands UK in care of
the Process Agent (or any successor thereto, as the case may be) at such Process
Agent's above address (or the address of any successor thereto, as the case may
be), and Fortune Brands UK hereby irrevocably
105
authorizes and directs the Process Agent (and any successor thereto) to accept
such service on its behalf. Fortune Brands UK shall appoint a successor agent
for service of process should the agency of C T Corporation System terminate for
any reason, and further shall at all times maintain an agent for service of
process in New York, New York, so long as there shall be outstanding any
Obligations. Fortune Brands UK shall give notice to the Administrative Agent of
any appointment of successor agents for service of process, and shall obtain
from each successor agent a letter of acceptance of appointment and promptly
deliver the same to the Administrative Agent. As an alternative method of
service, Fortune Brands UK also irrevocably consents to the service of any and
all process in any such action or proceeding by the mailing of copies of such
process to it at its address specified in Section 10.01.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each of the Administrative
Agent and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it
106
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), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) to the extent necessary to prosecute or defend any claim, in connection with
the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (g) with
the consent of any Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent or any Lender on a nonconfidential
basis from a source other than any Borrower. For the purposes of this Section,
"Information" means all information received from any Borrower relating to any
Borrower or its business, other than any such information that is available to
the Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by any Borrower; provided that, in the case of information received
from any Borrower after the date hereof, 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 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.
SECTION 10.13. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest
107
payable in respect of such Loan hereunder, together with all Charges payable in
respect thereof, shall be limited to the Maximum Rate and, to the extent lawful,
the interest and Charges that would have been payable in respect of such Loan
but were not payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received
by such Lender.
SECTION 10.14. Judgment. (a) If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum owing hereunder in one
currency into another currency, each party hereto agrees, to the fullest extent
that it may effectively do so, that the rate of exchange used shall be that at
which in accordance with normal banking procedures in the relevant jurisdiction
the first currency could be purchased with such other currency on the Business
Day immediately preceding the day on which final judgment is given.
(b) The obligations of each Borrower in respect of any sum due
to any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to be
due hereunder (the "Agreement Currency"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 10.14 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
108
SECTION 10.15. Termination of Existing Credit Facilities. The
Company and each Lender which as of the date of this Agreement is a party to, or
which has an Affiliate which is a party to, a bi-lateral credit agreement with
the Company (each an "Existing Credit Agreement"), hereby agrees that, effective
as of the time each of the conditions set forth in Section 4.01 of this
Agreement is satisfied, such Existing Credit Agreement shall automatically (and
without further notice or other action by or to the Company, such Lender, such
Affiliate or any other Person) be terminated; the Commitment (as defined in the
Existing Credit Agreement) under the Existing Credit Agreement shall terminate
in whole; and neither the Company, the Lender or any Affiliate shall have any
further rights or obligations under the Existing Credit Agreement, except for
(i) the Lender's or such Affiliate's right to receive payment in full of all
amounts which as of the termination date are owed to it in respect of
outstanding principal, accrued interest, accrued fees or other amounts payable,
which right shall continue until full payment is made and (ii) rights or
obligations under provisions of the Existing Credit Agreement which by the
express terms thereof survive termination of the Existing Credit Agreement,
which rights and obligations shall continue in accordance with the terms
thereof.
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 above written.
FORTUNE BRANDS, INC.,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President -
Finance and Treasurer
FORTUNE BRANDS FINANCE UK P.L.C.,
by
/s/ J. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------
Name: J. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Director
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
CITIBANK, N.A., individually
and as Syndication Agent,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FLEET NATIONAL BANK,
individually and as Co-
Documentation Agent,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Managing Director
BARCLAYS BANK PLC,
by
/s/ Sydney ▇. ▇▇▇▇▇▇
-------------------------
Name: Sydney ▇. ▇▇▇▇▇▇
Title: Director
CREDIT SUISSE FIRST BOSTON,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
THE DAI-ICHI KANGYO BANK, LTD.,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President &
Group Leader
BANK OF NEW YORK,
by
/s/ ▇▇▇▇ ▇'▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇'▇▇▇▇▇▇
Title: Vice President
THE NORTHERN TRUST COMPANY,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Second Vice President
BANK ONE, NA,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI,
LTD. - CHICAGO BRANCH,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Manager
HSBC BANK PLC,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Global Corporate Manager
ABN AMRO BANK N.V.,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Group Vice President
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
FIRSTAR BANK, N.A.
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
WESTPAC BANKING CORPORATION
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Relationship Manager