Termination, Replacement and Restatement Agreement among Fortune Brands, Inc., Lenders, JPMorgan Chase Bank, and Citibank, N.A. (June 25, 2002)

Summary

This agreement, dated June 25, 2002, is between Fortune Brands, Inc., a group of financial institutions (Lenders), JPMorgan Chase Bank as Administrative Agent, and Citibank, N.A. as Syndication Agent. It terminates a previous 364-Day Revolving Credit Agreement and replaces it with a new, nearly identical credit agreement, with updated terms and dates. The agreement outlines the conditions for the new credit facility, the obligations of the parties, and confirms that Fortune Brands meets all necessary legal and financial requirements. The new agreement becomes effective on July 11, 2002, subject to certain conditions being met.

EX-10.A1 3 c71057exv10wa1.txt TERMINATION, REPLACEMENT AND RESTATEMENT AGREEMENT EXHIBIT 10a1 TERMINATION, REPLACEMENT AND RESTATEMENT AGREEMENT dated as of June 25, 2002, among FORTUNE BRANDS, INC., a Delaware corporation (the "Company"), the financial institutions listed in Annex I hereto under the captions "Continuing Lenders" (the "Continuing Lenders") and "Additional Lenders" (the "Additional Lenders", and together with the Continuing Lenders, the "Lenders"), JPMORGAN CHASE BANK, as successor to The Chase Manhattan Bank, a New York banking corporation, as administrative agent (in such capacity, the "Administrative Agent") for the Lenders, and CITIBANK, N.A., as Syndication Agent. Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the New Credit Agreement (as defined below). WHEREAS, the Company, the Continuing Lenders, certain other lenders and the Administrative Agent are parties to the 364-Day Revolving Credit Agreement dated as of July 12, 2001 (the "Original Credit Agreement"); WHEREAS, the Original Credit Agreement is to be terminated as provided herein; and WHEREAS, the Continuing Lenders and the Additional Lenders are willing, subject to the terms and conditions of this Agreement, to replace the Original Credit Agreement with a new credit agreement as provided herein. NOW, THEREFORE, in consideration of the mutual agreements contained in this Agreement and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto hereby agree as follows: SECTION 1. Replacement and Restatement. Subject to the conditions set forth in Section 3 hereof: (a) the Original Credit Agreement, including all schedules and exhibits thereto, is hereby terminated, subject to applicable provisions set forth therein as to the survival of certain rights and obligations, and simultaneously replaced by a new credit agreement (the "New Credit Agreement") identical in form and substance to the Original Credit Agreement except as expressly set forth below. 2 (b) The heading of the New Credit Agreement shall read as follows: "364-DAY REVOLVING CREDIT AGREEMENT dated as of July 11, 2002, among FORTUNE BRANDS, INC., a Delaware corporation, the LENDERS party hereto, JPMORGAN CHASE BANK, as Administrative Agent, and CITIBANK, N.A., as Syndication Agent." and all references to the "Effective Date" in the New Credit Agreement shall be deemed to refer to July 11, 2002. (c) The definition of "Administrative Agent" in Section 1.01 of the New Credit Agreement shall read as follows: "Administrative Agent" means JPMorgan Chase Bank, in its capacity as administrative agent for the Lenders hereunder. (d) The definition of "Maturity Date" in Section 1.01 of the New Credit Agreement shall read as follows: "Maturity Date" means the Termination Date, or, if the Company exercises its option under Section 2.21, July 10, 2004. (e) The definition of "Prime Rate" in Section 1.01 of the New Credit Agreement shall read as follows: "Prime Rate" means the rate in interest per annum publicly announced from time to time by JPMorgan Chase Bank as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective. (f) The definition of "Termination Date" in Section 1.01 of the New Credit Agreement shall read as follows: "Termination Date" means July 10, 2003. (g) Section 2.10 of the New Credit Agreement shall have a new paragraph (e) at the end thereof, which shall read as follows: 3 (e) For each day after the Termination Date that there is any Total Revolving Exposure as a result of the Company exercising its option under Section 2.21, the Company agrees to pay to the Administrative Agent for the account of each Lender a term-out fee, which shall accrue at a rate per annum equal to 0.25% on the amount of the Revolving Credit Exposure of such Lender on such day. Accrued term-out fees shall be payable in arrears on the last day of March, June, September and December of the period following the Termination Date until the date that the Total Revolving Exposure is fully repaid, at which time any such accrued fees remaining unpaid shall be due. All term-out fees shall be payable in Dollars and shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). (h) Section 3.04 of the New Credit Agreement shall read as follows: SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Company has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 2001, reported on by PricewaterhouseCoopers, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended March 31, 2002, as filed by the Company with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company and its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the case of the statements referred to in clause (ii) above. (b) Since December 31, 2001, there has been no material adverse change in the business, assets, operations or financial condition of the Company and its Subsidiaries, taken as a whole. 4 (i) The references to "July 12, 2001" in Exhibit A, Exhibit B and Exhibit D of the Original Credit Agreement shall be changed to references to "July 11, 2002" in the New Credit Agreement. (j) Schedule 2.01 to the New Credit Agreement shall be in the form of Schedule 2.01 to this Agreement. (k) Schedule 3.06 to the New Credit Agreement shall be in the form of Schedule 3.06 to this Agreement. SECTION 2. Representations and Warranties. The Company represents and warrants to each of the Lenders that: (a) This Agreement and the New Credit Agreement have been duly authorized and, in the case of this Agreement, executed and delivered by it and each constitutes its legal, valid and binding obligations enforceable in accordance with their terms. (b) The representations and warranties set forth in Article III of the New Credit Agreement, after giving effect to this Agreement, are true and correct on the date hereof with the same effect as if made on the date hereof. (c) Before and after giving effect to this Agreement, no Default has occurred and is continuing. SECTION 3. Conditions to Effectiveness. This Agreement shall become effective as of July 11, 2002 (the "Effective Date") upon the occurrence of the following conditions precedent: (a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement. (b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of Chadbourne & Parke LLP, counsel for the Company, substantially in the form of Exhibit B to the Original Credit Agreement but referring to this 5 Agreement and the New Credit Agreement and covering such other matters relating to the Company, this Agreement, the New Credit Agreement or the Transactions as the Required Lenders shall reasonably request. The Company hereby requests such counsel to deliver such opinions. (c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Company, the authorization of the Transactions and any other legal matters relating to the Company, this Agreement, the New Credit Agreement or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel. (d) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by the President, a Vice President or a Financial Officer of the Company, confirming compliance with the conditions set forth in paragraphs (b) and (c) of Section 2. (e) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Effective Date, including the fees set forth in Section 4 and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder. (f) The commitments under the Original Credit Agreement shall have been terminated and all principal, interest and other amounts outstanding thereunder (including all fees accrued thereunder to the Effective Date) shall have been paid in full. SECTION 4. Fees. The Company agrees to pay to each Lender a fee in an amount equal to 0.02% of such Lender's Revolving Commitment (whether used or unused), in each case as of the Effective Date; provided that the Company shall have no liability for any such fee if this Agreement does not become effective pursuant to Section 3. SECTION 5. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF. 6 SECTION 6. Original Credit Agreement. Until the occurrence of the Effective Date as provided in Section 3 hereof, the Original Credit Agreement shall continue in full force and effect in accordance with the provisions thereof and the rights and obligations of the parties thereto shall not be affected hereby, all Revolving Commitments and Revolving Loans thereunder shall continue as set forth therein and all fees and interest accruing under the Original Credit Agreement shall continue to accrue at the rates provided for therein. SECTION 7. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute but one contract. SECTION 8. Expenses. The Company agrees to reimburse the Administrative Agent for its out-of-pocket expenses in connection with this Agreement including the reasonable fees, charges and disbursements of Cravath, Swaine & Moore, counsel for the Administrative Agent. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first written above. FORTUNE BRANDS, INC., by -------------------------------- Name: Title: JPMORGAN CHASE BANK, individually and as Administrative Agent, by -------------------------------- Name: Title: SIGNATURE PAGE TO THE TERMINATION, REPLACEMENT AND RESTATEMENT AGREEMENT DATED AS OF JUNE 25, 2002, AMONG FORTUNE BRANDS, INC., THE LENDERS, JPMORGAN CHASE BANK, as administrative agent, and CITIBANK, N.A., as syndication agent, Name of Institution --------------- by -------------------------------- Name: Title: ANNEX I Continuing Lenders JPMorgan Chase Bank Citibank, N.A. Fleet National Bank Barclays Bank PLC Credit Suisse First Boston Mizuho Corporate Bank, Ltd. The Bank of New York The Northern Trust Company US Bank National Association The Bank One, NA (Main Office Chicago) The Bank of Tokyo-Mitsubishi, Ltd., Chicago Branch HSBC Bank plc ABN AMRO Bank N.V. Westpac Banking Corporation Additional Lenders