EXECUTION COPY
EXHIBIT 10(b)
CREDIT AGREEMENT
(Five-Year)
Dated as of April 25, 2003
Among
ALCOA INC.,
THE LENDERS NAMED HEREIN,
CITIBANK, N.A., CREDIT SUISSE FIRST BOSTON and UBS AG,
as Syndication Agents,
DEUTSCHE BANK SECURITIES INC. and ABN AMRO BANK, N.V.,
as Documentation Agents, and
JPMORGAN CHASE BANK,
as Administrative Agent,
----------
J.P. MORGAN SECURITIES INC.,
as Sole Lead Arranger and Sole Bookrunner
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS AND CONSTRUCTION.......................................1
SECTION 1.01. Defined Terms................................................1
SECTION 1.02. Terms Generally; Accounting Principles......................12
ARTICLE II THE CREDITS.......................................................13
SECTION 2.01. Commitments.................................................13
SECTION 2.02. Loans.......................................................13
SECTION 2.03. Notice of Borrowings........................................14
SECTION 2.04. Evidence of Debt; Repayment of Loans........................15
SECTION 2.05. Fees........................................................15
SECTION 2.06. Interest on Loans...........................................16
SECTION 2.07. Default Interest............................................16
SECTION 2.08. Alternate Rate of Interest..................................17
SECTION 2.09. Termination and Reduction of Commitments....................17
SECTION 2.10. Refinancings................................................17
SECTION 2.11. Prepayment..................................................18
SECTION 2.12. Reserve Requirements; Change in Circumstances...............18
SECTION 2.13. Change in Legality..........................................20
SECTION 2.14. Indemnity...................................................20
SECTION 2.15. Pro Rata Treatment..........................................21
SECTION 2.16. Sharing of Setoffs..........................................21
SECTION 2.17. Payments....................................................22
SECTION 2.18. Taxes.......................................................22
SECTION 2.19. Assignment of Commitments Under Certain Circumstances.......25
ARTICLE III REPRESENTATIONS AND WARRANTIES....................................25
SECTION 3.01. Organization................................................25
SECTION 3.02. Authorization...............................................25
SECTION 3.03. Enforceability..............................................26
SECTION 3.04. Governmental Approvals......................................26
SECTION 3.05. No Conflict.................................................26
SECTION 3.06. Financial Statements........................................26
SECTION 3.07. No Defaults.................................................26
SECTION 3.08. Litigation..................................................26
SECTION 3.09. No Material Adverse Change..................................27
SECTION 3.10. Employee Benefit Plans......................................27
SECTION 3.11. Title to Properties; Possession Under Leases................28
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act..28
SECTION 3.13. Tax Returns.................................................28
SECTION 3.14. Compliance with Laws and Agreements.........................28
SECTION 3.15. No Material Misstatements...................................29
ii
SECTION 3.16. Federal Reserve Regulations.................................29
SECTION 3.17. No Trusts...................................................29
ARTICLE IV CONDITIONS OF EFFECTIVENESS, LENDING AND DESIGNATION OF
BORROWING SUBSIDIARIES.........................................29
SECTION 4.01. Effective Date..............................................29
SECTION 4.02. All Borrowings..............................................30
SECTION 4.03. Designation of Borrowing Subsidiaries.......................31
ARTICLE V AFFIRMATIVE COVENANTS.............................................32
SECTION 5.01. Financial Statements, Reports, etc..........................32
SECTION 5.02. Pari Passu Ranking..........................................33
SECTION 5.03. Maintenance of Properties...................................33
SECTION 5.04. Obligations and Taxes.......................................33
SECTION 5.05. Insurance...................................................33
SECTION 5.06. Existence; Businesses and Properties........................34
SECTION 5.07. Compliance with Laws........................................34
SECTION 5.08. Litigation and Other Notices................................35
SECTION 5.09. Borrowing Subsidiaries......................................35
ARTICLE VI NEGATIVE COVENANTS...............................................35
SECTION 6.01. Liens........................................................35
ARTICLE VII EVENTS OF DEFAULT.................................................37
ARTICLE VIII GUARANTEE.........................................................41
ARTICLE IX THE ADMINISTRATIVE AGENT..........................................42
ARTICLE X MISCELLANEOUS.....................................................44
SECTION 10.01. Notices.....................................................44
SECTION 10.02. Survival of Agreement.......................................45
SECTION 10.03. Binding Effect..............................................46
SECTION 10.04. Successors and Assigns; Additional Borrowing Subsidiaries...46
SECTION 10.05. Expenses; Indemnity.........................................49
SECTION 10.06. Right of Setoff.............................................50
SECTION 10.07. Applicable Law..............................................50
SECTION 10.08. Waivers; Amendment..........................................50
SECTION 10.09. Interest Rate Limitation....................................51
SECTION 10.10. Entire Agreement............................................51
SECTION 10.11. Waiver of Jury Trial........................................51
SECTION 10.12. Severability................................................52
SECTION 10.13. Counterparts................................................52
SECTION 10.14. Headings....................................................52
SECTION 10.15. Jurisdiction, Consent to Service of Process.................52
SECTION 10.16. Conversion of Currencies....................................53
iii
References
Exhibit A Assignment and Assumption
Exhibit B Administrative Questionnaire
Exhibit C Form of Opinion of Counsel
Exhibit D Designation of Borrowing Subsidiary
Schedule 2.01 Lenders and Commitments
Schedule 3.04 Governmental Approvals
Schedule 3.08 Litigation
Schedule 6.01(a) Existing Liens
iv
FIVE-YEAR REVOLVING CREDIT AGREEMENT dated as of April 25,
2003 (as the same may be amended, modified or supplemented from
time to time, the "Agreement"), among ALCOA INC., a Pennsylvania
corporation ("Alcoa"), the Lenders (such term and each other
capitalized term used but not defined herein having the meaning
ascribed thereto in Article I), and JPMORGAN CHASE BANK, a New
York banking corporation, as Administrative Agent for the
Lenders.
Alcoa and the Borrowing Subsidiaries have requested the Lenders to
extend credit in order to enable Alcoa and the Borrowing Subsidiaries, subject
to the terms and conditions of this Agreement, to borrow on a revolving basis,
at any time and from time to time prior to the Maturity Date, an aggregate
principal amount at any time outstanding not in excess of US$1,000,000,000. The
proceeds of such borrowings are to be used to provide working capital and for
other general corporate purposes, including but not limited to the support of
Alcoa's commercial paper program. The Lenders are willing to extend such credit
to Alcoa and the Borrowing Subsidiaries on the terms and subject to the
conditions set forth herein.
Accordingly, the Borrowers, the Lenders and the Administrative Agent
agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
SECTION 1.01 Defined Terms. As used in this Agreement, the following
terms shall have the meanings set forth below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate determined
by reference to the Alternate Base Rate in accordance with the provisions of
Article II.
"Administrative Agent" shall mean JPMorgan Chase Bank, a New York
banking corporation, in its capacity as administrative agent for the Lenders
hereunder.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit B.
2
"Affiliate" shall mean, when used 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.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) 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
1/2 of 1%. For purposes hereof, "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by the Administrative Agent as its
prime rate in effect at its principal office in New York City; each change in
the Prime Rate shall be effective on the date such change is publicly announced
as being effective. "Base CD Rate" shall mean the sum of (a) the product of (i)
the Three-Month Secondary CD Rate and (ii) Statutory Reserves and (b) the
Assessment Rate. "Three-Month Secondary CD Rate" shall mean, 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 shall not be 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.l5(519) during the week following such day), or, if such rate shall not be 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 shall not be a Business Day, on the
next preceding Business Day) by the Administrative Agent from three New York
City negotiable certificate of deposit dealers of recognized standing selected
by it. "Federal Funds Effective Rate" shall mean, for any day, the weighted
average 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 which is a Business Day, the average
of the quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it. If for any reason the Administrative Agent shall have determined
(which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Base CD Rate or the Federal Funds Effective Rate or both
for any reason, including the inability of the Administrative Agent to obtain
sufficient quotations in accordance with the terms thereof, the Alternate Base
Rate shall be determined without regard to clause (b) or (c), or both, of the
first sentence of this definition, as appropriate, until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate shall be effective on the effective date of such
change in the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate, respectively.
"Applicable Margin" shall mean, with respect to the LIBOR Loans
comprising any Borrowing, the applicable percentage set forth below based upon
the ratings by S&P and Moody's applicable on such date to the Index Debt:
3
Category 1 Percentage
- ---------- ----------
AA-/Aa3
or above .0750%
Category 2
- ----------
A+/A1 .1225%
Category 3
- ----------
A/A2 .1700%
Category 4
- ----------
A-/A3 .4150%
Category 5
- ----------
BBB/Baa2 .6350%
Category 6
- ----------
BBB-/Baa3
or below .8350%
For purposes of the foregoing, (i) if neither Moody's nor S&P shall
have in effect a rating for any Index Debt (other than by reason of the
circumstances referred to in the last sentence of this definition), then both
such rating agencies shall be deemed to have established ratings for such Index
Debt in Category 6; (ii) if only one of Moody's and S&P shall have in effect a
rating for any Index Debt, then the Applicable Margin, to the extent determined
by reference to such Index Debt, shall be determined on the basis of such
rating; (iii) if the ratings established or deemed to have been established by
Moody's or S&P for any Index Debt shall fall within different Categories, the
Applicable Margin shall be based on the Category corresponding to the higher
rating unless the ratings differ by two or more Categories, in which case the
Applicable Margin will be based upon the Category one level above the Category
corresponding to the lower rating; and (iv) if any rating established or deemed
to have been established by Moody's or S&P shall be changed (other than as a
result of a change in the rating system of Moody's or S&P), such change shall be
effective as of the date on which it is first announced by the applicable rating
agency. Each change in the Applicable Margin 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 Moody's or S&P shall change, or if any such rating agency shall cease
to be in the business of rating corporate debt obligations, Alcoa and the
Lenders shall negotiate in good faith to amend the references to specific
ratings in this definition to reflect such changed rating system or the
non-availability of ratings from such rating agency, and pending the
effectiveness of any such amendment, the ratings of such rating agency most
4
recently in effect prior to such change or cessation shall be employed in
determining the Applicable Margin.
"Approved Fund" shall have the meaning assigned to such term in
Section 10.04(b).
"Assessment Rate" shall mean, for any date, the annual rate (rounded
upwards, if necessary, to the next 1/100 of 1%) most recently estimated by the
Administrative Agent as the then current net annual assessment rate that will be
employed in determining amounts payable by the Administrative Agent to the
Federal Deposit Insurance Corporation (or any successor) for such date for
insurance by such Corporation (or such successor) of time deposits made in
dollars at the Administrative Agent's domestic offices.
"Assignment and Assumption" shall mean an assignment and assumption
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit A or such other form as shall be approved by the
Administrative Agent.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Borrowers" shall mean Alcoa and the Borrowing Subsidiaries.
"Borrowing" shall mean any group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
"Borrowing Subsidiaries" shall mean, at any time, the wholly-owned
Subsidiaries of Alcoa that have undertaken the obligations of Borrowing
Subsidiaries pursuant to Section 10.04(e).
"Borrowing Subsidiary Obligations" shall mean, collectively, the due
and punctual payment by any Borrowing Subsidiary of the principal of and
interest on the Loans to it, when and as due, whether at maturity, by
acceleration or otherwise, and the due and punctual payment and performance of
all other obligations of such Borrowing Subsidiary under this Agreement.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or day on which banks in New York City are authorized or
required by law to remain closed); provided, however, that, when used in
connection with any LIBOR Loan, the term "Business Day" shall in each case also
exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.
"CLO" shall have the meaning assigned to such term in Section
10.04(b).
"Code" shall mean the Internal Revenue Code of 1986, as the same may
be amended from time to time.
5
"Commercial Paper" of any person shall mean any note, draft, bill of
exchange or other negotiable instrument issued by such person (other than any
extendable commercial notes issued pursuant to Section 4(2) of the Securities
Act of 1933) that has a maturity at the time of issuance not exceeding thirteen
months, exclusive of days of grace, or any renewal thereof the maturity of which
is likewise limited, pursuant to Section 3(a)(3) or Section 4(2) of the
Securities Act of 1933.
"Commitment" shall mean, with respect to each Lender, the commitment
of such Lender to make Loans hereunder as set forth in Schedule 2.01, as the
same may be terminated, reduced or increased from time to time pursuant to
Section 2.09.
"Consolidated Net Tangible Assets" shall mean at any time, the
aggregate amount of assets (less applicable reserves and other properly
deductible items) of Alcoa and its consolidated Subsidiaries adjusted for
inventories on the basis of cost (before application of the "last-in first-out"
method of determining cost) or current market value, whichever is lower, and
deducting therefrom (a) all current liabilities of such corporation and its
consolidated Subsidiaries except for (i) notes and loans payable, (ii) current
maturities of long-term debt and (iii) current maturities of obligations under
capital leases and (b) all goodwill, trade names, patents, unamortized debt
discount and expenses of such corporation and its consolidated Subsidiaries (to
the extent included in said aggregate amount of assets) and other like
intangibles, all as set forth in the most recent consolidated balance sheet of
Alcoa and its consolidated Subsidiaries, delivered to the Administrative Agent
pursuant to Section 5.01, computed and consolidated in accordance with GAAP.
"Consolidated Net Worth" shall mean at any time, the net worth of
Alcoa and its consolidated Subsidiaries at such time (including minority
interests), computed and consolidated in accordance with GAAP.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of Voting Stock, by contract or otherwise,
and "Controlling" and "Controlled" shall have meanings correlative thereto.
"Default" shall mean any event or condition which upon notice, lapse
of time or both would constitute an Event of Default.
"Designation Date" shall have the meaning assigned to such term in
Section 10.04(e).
"Designation of Borrowing Subsidiary" shall mean a Designation of
Borrowing Subsidiary executed by Alcoa and a wholly-owned Subsidiary in the form
of Exhibit D.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Effective Date" shall mean the date of this Agreement.
6
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that is a member of a group of which any Borrower is a member and
which is treated as a single employer under Section 414 of the Code.
"ERISA Event" shall mean (i) any Reportable Event; (ii) the adoption
of any amendment to a Plan that would require the provision of security pursuant
to Section 401(a)(29) of the Code or Section 307 of ERISA; (iii) 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; (iv)
the filing pursuant to Section 412(d) of the Code or Section 302(d) of ERISA of
an application for a waiver of the minimum funding standard with respect to any
Plan; (v) the incurrence of any liability under Title IV of ERISA with respect
to the termination of any Plan or the withdrawal or partial withdrawal of the
Borrower or any of its ERISA Affiliates from any Plan or Multiemployer Plan;
(vi) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to the intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (vii) the receipt by the
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, insolvent or in reorganization, within the meaning of Title IV
of ERISA; (viii) the occurrence of a "prohibited transaction" with respect to
which the Borrower or any of its subsidiaries is a "disqualified person" (within
the meaning of Section 4975 of the Code) or with respect to which the Borrower
or any such subsidiary could otherwise be liable; (ix) any other similar event
or condition with respect to a Plan or Multiemployer Plan that could result in
liability of the Borrowers and (x) any Foreign Benefit Event.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Exchange Act Report" shall mean the Annual Report of Alcoa on Form
10-K for the year ended December 31, 2002 and Current Report on Form 8-K filed
on April 7, 2003 by Alcoa with the Securities and Exchange Commission pursuant
to the Securities Exchange Act of 1934.
"Facility Fee" shall have the meaning assigned to such term in Section
2.05(a).
"Facility Fee Percentage" shall mean on any date the applicable
percentage set forth below based upon the ratings by S&P and Moody's,
respectively, applicable on such date to the Index Debt:
Category 1 Percentage
- ---------- ----------
AA-/Aa3
or above .0750%
7
Category 2
- ----------
A+/A1 .0775%
Category 3
- ----------
A/A2 .0800%
Category 4
- ----------
A-/A3 .0850%
Category 5
- ----------
BBB/Baa2 .1150%
Category 6
- ----------
BBB-/Baa3
or below .1650%
For purposes of the foregoing, (i) if neither Moody's nor S&P shall
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 both
such rating agencies shall be deemed to have established ratings in Category 6;
(ii) if only one of Moody's and S&P shall have in effect a rating for the Index
Debt, then the Facility Fee Percentage shall be determined on the basis of such
rating; (iii) if the ratings established or deemed to have been established by
Moody's or S&P for any Index Debt shall fall within different Categories, the
Facility Fee Percentage shall be based on the Category corresponding to the
higher rating unless the ratings differ by two or more Categories, in which case
the Facility Fee Percentage will be based upon the Category one level above the
Category corresponding to the lower rating; and (iv) if any rating established
or deemed to have been established by Moody's or S&P shall be changed (other
than as a result of a change in the rating system of Moody's or S&P), such
change shall be effective as of the date on which it is first announced by the
applicable rating agency. Each change in the Facility Fee Percentage 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 Moody's or S&P shall change, or if either of such rating
agencies shall cease to be in the business of rating corporate debt obligations,
Alcoa and the Lenders shall negotiate in good faith to amend the references to
specific ratings in this definition to reflect such changed rating system or the
non-availability of ratings from such rating agency, and pending the
effectiveness of any such amendment, the ratings of such rating agency most
recently in effect prior to such change or cessation shall be employed in
determining the Facility Fee Percentage.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such
corporation.
8
"Foreign Benefit Event" shall mean (a) with respect to any Foreign
Pension Plan, (i) the existence of unfunded liabilities in excess of the amount
permitted under any applicable law, or in excess of the amount that would be
permitted absent a waiver from a Governmental Authority, (ii) the failure to
make the required contributions or payments, under any applicable law, on or
before the due date for such contributions or payments, (iii) the receipt of a
notice by a Governmental Authority relating to the intention to terminate any
such Foreign Pension Plan or to appoint a trustee to administer any such Foreign
Pension Plan, or to the insolvency of any such Foreign Pension Plan and (iv) the
incurrence of any liability of the Borrowers under applicable law on account of
the complete or partial termination of such Foreign Pension Plan or the complete
or partial withdrawal of any participating employer therein and (b) with respect
to any Foreign Plan, (i) the occurrence of any transaction that is prohibited
under any applicable law and could result in the incurrence of any liability by
the Borrowers, or the imposition on the Borrowers of any fine, excise tax or
penalty resulting from any noncompliance with any applicable law and (ii) any
other event or condition that could reasonably be expected to result in
liability of any of the Borrowers.
"Foreign Plan" shall mean any plan or arrangement established or
maintained outside the United States for the benefit of present or former
employees of any of the Borrowers.
"Foreign Pension Plan" shall mean any benefit plan which under
applicable law is required to be funded through a trust or other funding vehicle
other than a trust or funding vehicle maintained exclusively by a Governmental
Authority.
"GAAP" shall mean generally accepted accounting principles, as used
in, and applied on a basis consistent with, the financial statements of Alcoa
referred to in Section 3.06.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantee" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing any Indebtedness of any other person,
whether directly or indirectly, and including any obligation of such person,
direct or indirect, to purchase or pay such Indebtedness or to purchase any
security for the payment of such Indebtedness; provided, however, that the term
"Guarantee" shall not include endorsements for collection or deposit, in either
case in the ordinary course of business.
"Indebtedness" of any person at any time shall mean, without
duplication, (a) all obligations for money borrowed or raised, all obligations
(other than accounts payable and other similar items arising in the ordinary
course of business) for the deferred payment of the purchase price of property,
and all capital lease obligations which, in each case, in accordance with GAAP,
would be included in determining total liabilities as shown on the liability
side of the balance sheet of such person and (b) all Guarantees of such person.
9
"Index Debt" shall mean the senior, unsecured, non-credit enhanced,
long-term Indebtedness for borrowed money of Alcoa.
"Interest Payment Date" shall mean, with respect to any 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 LIBOR Borrowing with an Interest Period of more than
three months' duration, each day that would have been an Interest Payment Date
had successive Interest Periods of three months' duration been applicable to
such Borrowing, and, in addition, the date of any refinancing, continuation or
conversion of such Borrowing with or to a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any LIBOR Borrowing, the period
commencing on the date of such Borrowing or on the last day of the immediately
preceding Interest Period applicable to such Borrowing, as the case may be, and
ending on the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6
months thereafter, as the Borrower to which such Loan is made may elect; and (b)
as to any ABR Borrowing, the period commencing on the date of such Borrowing or
on the last day of the immediately preceding Interest Period applicable to such
Borrowing, as the case may be, and ending on the earliest of (i) the next
succeeding March 31, June 30, September 30 or December 31, (ii) the Maturity
Date and (iii) the date such Borrowing is prepaid in accordance with Section
2.11; provided, however, that 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 LIBOR 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.
"Lenders" shall mean (a) the financial institutions listed on Schedule
2.01 (other than any such financial institution that has ceased to be a party
hereto pursuant to an Assignment and Assumption) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Assumption.
"LIBO Rate" shall mean, with respect to any LIBOR Borrowing for any
Interest Period, an interest rate (rounded upwards, if necessary, to the next
1/16 of 1%) equal to the offered rate for dollar deposits for a period equal to
the Interest Period for such LIBOR Borrowing that appears on the LIBO page on
the Reuters Screen (or any page that can reasonably be considered a replacement
page) at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period. If such rate is not available on the
Reuters Screen, the "LIBO Rate" shall be the rate (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the arithmetic average of the
respective rates per annum at which dollar deposits approximately equal in
principal amount to such LIBOR Borrowing and for a maturity comparable to such
Interest Period are offered in immediately available funds to the London
branches of the Reference Banks in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period. The Administrative Agent shall determine the LIBO Rate and such
determination shall be conclusive absent manifest error.
10
"LIBOR Borrowing" shall mean a Borrowing comprised of LIBOR Loans.
"LIBOR Loan" shall mean any Loan bearing interest at a rate determined
by reference to the LIBO Rate in accordance with the provisions of Article II.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset and
(c) in the case of securities, any purchase option, call or similar right of a
third party with respect to such securities.
"Loans" shall have the meaning assigned to it in Section 2.01. Each
Loan shall be a LIBOR Loan or an ABR Loan.
"Material Adverse Effect" shall mean a materially adverse effect on
the business, assets, operations or financial condition of Alcoa and its
Subsidiaries taken as a whole, or a material impairment of the ability of Alcoa
to perform any of its obligations under this Agreement.
"Maturity Date" shall mean April 25, 2008.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which any Borrower or any ERISA Affiliate (other
than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Section 414 of the Code) is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"1998 Five-Year Credit Agreement" shall mean the Revolving Credit
Agreement (Five-Year) dated as of August 14, 1998, and maturing on August 14,
2003, among Alcoa, Alcoa of Australia Limited, a company incorporated with
limited liability in Australia, the lenders party thereto, JPMorgan Chase Bank
(formerly The Chase Manhattan Bank), as U.S. agent for such lenders, and J.P.
Morgan Securities Australia Limited (formerly Chase Securities Australia
Limited), a company incorporated with limited liability in Australia, as
Australian Agent for such lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"person" shall mean any natural person, corporation organization,
business trust, joint venture, association, company, partnership or government,
or any agency or political subdivision thereof.
"Plan" shall mean any pension plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code which
is maintained for employees of any Borrower or any ERISA Affiliate.
11
"Pro Rata Percentage" of any Lender at any time shall mean the
percentage of the Total Commitment that is represented by such Lender's
Commitment.
"Reference Banks" shall mean JPMorgan Chase Bank, Mellon Bank, N.A.
and Bank of America, N.A.
"Register" shall have the meaning given such term in Section 10.04(b).
"Related Parties" means, with respect to any specified person, such
person's Affiliates and the respective directors, officers, employees, agents
and advisors of such person and such person's Affiliates.
"Reportable Event" shall mean any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate which is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the
Code).
"Required Lenders" shall mean Lenders representing at least 66-2/3% in
principal amount of the outstanding Loans and unused Commitments.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Restricted Subsidiary" shall mean any consolidated Subsidiary of
Alcoa which owns any manufacturing plant or manufacturing facility located in
the United States, except any such plant or facility which, in the opinion of
the Board of Directors of Alcoa, is not of material importance to the business
of Alcoa and its Restricted Subsidiaries, taken as a whole, excluding any such
Subsidiary which (a) is principally engaged in leasing or financing receivables,
(b) is principally engaged in financing Alcoa's operations outside the United
States or (c) principally serves as a partner in a partnership.
"S&P" shall mean Standard & Poor's Ratings Services, a Division of the
McGraw-Hill Companies Inc.
"Statutory Reserves" shall mean 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 and any other banking authority to which the
Administrative Agent is subject for new negotiable nonpersonal time deposits in
dollars of over $100,000 with maturities approximately equal to three months.
Such reserve percentages shall include those imposed pursuant to such Regulation
D of the Board. Statutory Reserves shall be adjusted automatically on and as of
the effective date of any change in any reserve percentage.
12
"Subsidiary" shall mean, with respect to any person (herein referred
to as the "parent"), any corporation, partnership, association or other business
entity of which securities or other ownership interests representing more than
50% of the Voting Stock or more than 50% of the general partnership interests
are, at the time any determination is being made, owned, controlled or held by
the parent or one or more Subsidiaries of the parent or by the parent and one or
more Subsidiaries of the parent.
"Total Commitment" shall mean, at any time, the aggregate amount of
the Commitments, as in effect at such time.
"2001 Five-Year Credit Agreement" shall mean the Amended and Restated
Revolving Credit Agreement (Five-Year) dated as of April 27, 2001, and maturing
on April 28, 2005, among Alcoa, the lenders party thereto, JPMorgan Chase Bank
(formerly The Chase Manhattan Bank), as Administrative Agent, and J.P. Morgan
Securities Inc. (formerly JPMorgan), as lead arranger and bookrunner.
"2003 364-Day Credit Agreement" shall mean the Revolving Credit
Agreement (364-Day) dated as of April 25, 2003 and maturing on April 23, 2004,
among Alcoa, the lenders party thereto, JPMorgan Chase Bank, as Administrative
Agent, and J.P. Morgan Securities Inc., as lead arranger and bookrunner.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, "Rate" shall mean the LIBO
Rate and the Alternate Base Rate.
"Voting Stock" with respect to the stock of any person means stock of
any class or classes (however designated) having ordinary voting power for the
election of the directors of such person, other than stock having such power
only by reason of the occurrence of a contingency.
"Withdrawal Liability" shall mean 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. Terms Generally; Accounting Principles. The definitions
in Section 1.01 shall apply equally to both 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". All references herein to Articles, Sections, Exhibits and Schedules
shall be deemed references to Articles and Sections of, and Exhibits and
Schedules to, this Agreement unless the context shall otherwise require , and
all references herein to the "date hereof" or the "date of this Agreement" shall
be construed as referring to April 25, 2003. 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,
however, that, if Alcoa notifies the Administrative Agent that it requests an
amendment to any
13
provision hereof to eliminate the effect of any change in GAAP on the operation
of such provision (or if the Administrative Agent notifies Alcoa 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 (provided such change in GAAP occurs after the date hereof), then such
provision shall be interpreted on the basis of GAAP in effect immediately before
such change became 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 and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, to make revolving credit loans in dollars
(the "Loans") to Alcoa and the Borrowing Subsidiaries, at any time and from time
to time on or after the Effective Date and until the earlier of the Maturity
Date and the termination of the Commitment of such Lender in accordance with the
terms hereof; provided, however, that (i) after giving effect to any Loan, the
aggregate principal amount of the outstanding Loans shall not exceed the Total
Commitment and (ii) at all times the aggregate principal amount of all
outstanding Loans made by each Lender shall equal its Pro Rata Percentage of the
aggregate principal amount of all outstanding Loans. The Commitment of each
Lender is set forth on Schedule 2.01 to this Agreement. Such Commitment may be
terminated or reduced from time to time pursuant to Section 2.09. Within the
limits set forth in the preceding sentence, the Borrowers may borrow, pay or
prepay and reborrow Loans on or after the Effective Date and prior to the
Maturity Date, subject to the terms, conditions and limitations set forth
herein.
SECTION 2.02. Loans. (a) Each Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their respective applicable Commitments; provided, however, that the failure of
any Lender to make any Loan shall not in itself relieve any other Lender of its
obligation to lend hereunder (it being understood, however, that no Lender shall
be responsible for the failure of any other Lender to make any Loan required to
be made by such other Lender). The Loans comprising each Borrowing shall be in
an aggregate principal amount which is an integral multiple of $1,000,000 and
not less than $10,000,000 (or an aggregate principal amount equal to the
remaining balance of the applicable Commitments, as the case may be).
(b) Each Borrowing shall be comprised entirely of LIBOR Loans or ABR
Loans, as the applicable Borrower may request pursuant to Section 2.03. Each
Lender may at its option fulfill its Commitment with respect to any Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided, however, that any exercise of such option shall not affect the
obligation of the applicable Borrower to repay such Loan in accordance with the
terms of this Agreement. Borrowings of more than one Type may be outstanding at
the same time; provided, however, that no Borrower shall be entitled to request
any Borrowing which, if made,
14
would result in an aggregate of more than five separate LIBOR Loans of any
Lender being made to the Borrowers and outstanding under this Agreement at any
one time. For purposes of the foregoing, Loans having different Interest
Periods, regardless of whether they commence on the same date, shall be
considered separate Loans.
(c) Except as otherwise provided in Section 2.10, each Lender shall
make each Loan that is (A) an ABR Loan or (B) a LIBOR Loan, to be made by it
hereunder on the proposed date thereof by wire transfer of immediately available
funds to the Administrative Agent in New York, New York, not later than 2:00
p.m., New York City time, and the Administrative Agent shall by 4:00 p.m., New
York City time, credit the amounts so received to the general deposit account of
the Borrower to which such Loan is to be made with Mellon Bank, N.A., or such
other account as such Borrower may designate in a written notice to the
Administrative Agent, or, if such Loans are not made on such date because any
condition precedent to a Borrowing herein specified shall not have been met,
return the amounts so received to the respective Lenders. Unless the
Administrative Agent shall have received notice from a Lender prior to the time
of any Borrowing that such Lender will not make available to the Administrative
Agent such Lender's portion of such Borrowing, the Administrative Agent may
assume that such Lender has made such portion available to the Administrative
Agent on the date of such Borrowing in accordance with this paragraph (c) and
the Administrative Agent may, in reliance upon such assumption, make available
to the applicable Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have made such portion available to the
Administrative Agent, such Lender and the applicable Borrower severally agree to
repay to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to such Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of such Borrower, the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in the
case of such Lender, a rate determined by the Administrative Agent to represent
its cost of overnight or short-term funds (which determination shall be
conclusive absent manifest error). If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender's Loan as part of such Borrowing for purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, no Borrower
shall be entitled to request any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.
SECTION 2.03. Notice of Borrowings. In order to request a Borrowing, a
Borrower shall give written or telecopy notice (or telephone notice promptly
confirmed in writing or by telecopy) (a) in the case of an ABR Borrowing, to the
Administrative Agent not later than 12:00 noon, New York City time, on the
Business Day of such proposed Borrowing, (b) in the case of a LIBOR Borrowing,
to the Administrative Agent not later than 10:00 a.m., New York City time, three
Business Days before such proposed Borrowing. Such notice shall be irrevocable
and shall in each case refer to this Agreement, identify the applicable Borrower
and specify (i) whether such Borrowing is to be a LIBOR Borrowing or an ABR
Borrowing; (ii) the date of such Borrowing (which
15
shall be a Business Day) and the amount thereof; and (iii) if such Borrowing is
to be a LIBOR Borrowing, the Interest Period with respect thereto. If no
election as to the Type of Borrowing is specified in any such notice, then the
requested Borrowing shall be an ABR Borrowing. If no Interest Period with
respect to any LIBOR Borrowing is specified in any such notice, then the
Borrower giving the notice of Borrowing shall be deemed to have selected an
Interest Period of one month's duration. If a Borrower shall not have given
notice in accordance with this Section 2.03 of its election to refinance a
Borrowing prior to the end of the Interest Period in effect for such Borrowing,
then the Borrower shall (unless such Borrowing is repaid at the end of such
Interest Period) be deemed to have given notice of an election to refinance such
Borrowing with an ABR Borrowing. The Administrative Agent shall promptly advise
the Lenders of any notice given pursuant to this Section 2.03 and of each
Lender's portion of the requested Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The
outstanding principal balance of each Loan shall be payable on the earlier of
the last day of the Interest Period applicable to such Loan or the Maturity
Date.
(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 from each Loan made by such Lender from time to time, including
the amounts of principal and interest payable and paid such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made to a Borrower hereunder, (ii) the Type
of each such Loan and the Interest Period applicable thereto, (iii) the amount
of any principal or interest due and payable or to become due and payable from
the applicable Borrower to each Lender hereunder and (iv) the amount of any sum
received by the Administrative Agent hereunder from any Borrower and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(b) and (c) above shall be prima facie evidence of the existence and amounts of
the obligations therein recorded; provided, however, that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of any Borrower to repay
the Loans in accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in the
event any Lender shall request a promissory note evidencing the Loans made by it
hereunder to Alcoa or any Borrowing Subsidiary, the Borrower shall deliver such
a note, satisfactory to the Administrative Agent, payable to such Lender and its
registered assigns, and the interests represented by such note shall at all
times (including after any assignment of all or part of such interests pursuant
to Section 10.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) Alcoa will pay to each Lender, through the
Administrative Agent, on the last day of March, June, September and December in
each
16
year, and on the date on which the Commitment of such Lender shall be terminated
as provided herein, a facility fee (the "Facility Fee") at a rate per annum
equal to the Facility Fee Percentage from time to time in effect on the
aggregate amount of the Commitment of such Lender, whether used or unused, from
time to time in effect during the preceding quarter (or shorter period
commencing with the date hereof or ending with the Maturity Date or the date on
which the Commitment of such Lender shall be terminated). All Facility Fees
shall be computed on the basis of the actual number of days elapsed in a year of
360 days. The Facility Fee due to each Lender shall commence to accrue on the
date hereof and shall cease to accrue on the date on which the Commitment of
such Lender shall be terminated as provided herein.
(b) Alcoa agrees to pay to the Administrative Agent, for its own
account, the fees payable in the amounts and at the times separately agreed upon
between Alcoa and the Administrative Agent.
(c) All fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent, for distribution, if and as appropriate,
among the Lenders. Once paid, the fees shall not be refundable except in the
case of an error which results in the payment of fees in excess of those due and
payable as of such date, in which case the Administrative Agent shall cause a
refund in the amount of such excess to be paid to Alcoa.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
Section 2.07, the unpaid principal amount of the Loans comprising each ABR
Borrowing shall bear interest for each day (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may be, when
the Alternate Base Rate is determined by reference to the Prime Rate and over a
year of 360 days at all other times) at a rate per annum equal to the Alternate
Base Rate.
(b) Subject to the provisions of Section 2.07, the unpaid principal
amount of the Loans comprising each LIBOR Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 360
days) at a rate per annum equal to the LIBO Rate for the Interest Period in
effect for such Borrowing plus the Applicable Margin.
(c) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period. The applicable LIBO Rate or
Alternate Base Rate for each Interest Period or day within an Interest Period,
as the case may be, shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.07. Default Interest. If any Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, such Borrower shall on demand from
time to time pay interest, to the extent permitted by law, on such defaulted
amount up to (but not
17
including) the date of actual payment (after as well as before judgment) at a
rate per annum equal to (a) in the case of overdue principal of any Loan, the
rate otherwise applicable to such Loan as provided in Section 2.06 plus 2% per
annum, or (b) in the case of any other amount, the rate applicable to ABR
Borrowings plus 2% per annum.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a LIBOR Loan, the Administrative Agent shall have determined
in good faith that dollar deposits in the principal amounts of the Loans
comprising such Borrowing are not generally available in the London interbank
market or other market in which Lenders ordinarily raise dollars to fund Loans
of the requested Type, or that the rates at which such dollar deposits are being
offered will not adequately and fairly reflect the cost to any Lender of making
or maintaining its LIBOR Loan during such Interest Period, or that reasonable
means do not exist for ascertaining the LIBO Rate, then the Administrative Agent
shall, as soon as practicable thereafter, give written or telecopy notice of
such determination to the relevant Borrower and Lenders. In the event of any
such determination, any request made by a Borrower after the date of such notice
for a LIBOR Borrowing pursuant to Section 2.03 or 2.10 shall, until the
Administrative Agent shall have advised the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, be deemed to be a
request for an ABR Borrowing. Each determination by the Administrative Agent
hereunder shall be conclusive absent manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The
Commitments shall be automatically terminated on the Maturity Date.
(b) Upon at least 10 Business Days' prior irrevocable, written or
telecopy notice to the Administrative Agent, Alcoa may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
Total Commitment; provided, however, that (i) each partial reduction shall be in
an integral multiple of $1,000,000 and in a minimum principal amount of
$10,000,000 and (ii) the Total Commitment shall not be reduced to an amount that
is less than the aggregate principal amount of the outstanding Loans (after
giving effect to any simultaneous prepayment pursuant to Section 2.11).
(c) Each reduction in Commitments hereunder shall be made ratably
among the Lenders in accordance with each such Lender's Pro Rata Percentage of
the Total Commitment. Alcoa shall pay to the Administrative Agent for the
account of the applicable Lenders, on the date of each such termination or
reduction, the Facility Fees on the amount of the Commitments so terminated or
reduced accrued to the date of such termination or reduction.
SECTION 2.10. Refinancings. Any Borrower may refinance all or any part
of any Loan made to it with a Loan of the same or a different Type made pursuant
to the same Commitments, subject to the conditions and limitations set forth in
this Agreement. Any Borrowing or part thereof so refinanced shall be deemed to
have been repaid or prepaid in accordance with Section 2.04 or 2.11, as
applicable, with the
18
proceeds of a new Borrowing; and the proceeds of the new Borrowing, to the
extent they do not exceed the principal amount of the Borrowing being
refinanced, shall not be paid by the applicable Lenders to the Administrative
Agent or by the Administrative Agent to the applicable Borrower pursuant to
Section 2.02(c).
SECTION 2.11. Prepayment. (a) Each Borrower shall have the right at
any time and from time to time to prepay any Borrowing, in whole or in part,
upon at least three Business Days' prior written or telecopy notice (or
telephone notice promptly confirmed by written or telecopy notice) to the
Administrative Agent; provided, however, that each partial prepayment shall be
in an amount which is an integral multiple of $1,000,000 and not less than
$10,000,000.
(b) On the date of any termination or reduction of any Commitments
pursuant to Section 2.09, the Borrowers shall pay or prepay so much of the
Loans, as shall be necessary in order that, after giving effect to such
reduction or termination, the aggregate principal amount of the outstanding
Loans shall not exceed the Total Commitment.
(c) Each notice of prepayment shall specify the prepayment date and
the principal amount of each Loan (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the applicable Borrower to prepay the Loan to which
such notice relates by the amount stated therein on the date stated therein. All
prepayments under this Section 2.11 shall be subject to Section 2.14 but
otherwise without premium or penalty. All prepayments under this Section 2.11
shall be accompanied by accrued interest on the principal amount being prepaid
to the date of payment.
SECTION 2.12. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein other than Section 2.14(c), if after
the date of this Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the
force of law) shall change the basis of taxation of payments to any Lender of
the principal of or interest on any LIBOR Loan made by such Lender or any fees
or other amounts payable hereunder (other than changes in respect of taxes
imposed on the overall net income of such Lender by the jurisdiction in which
such Lender has its principal office or by any political subdivision or taxing
authority therein), or shall 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 such Lender (except any such reserve
requirement which is reflected in the LIBO Rate or the Base CD Rate) or shall
impose on such Lender or the London interbank market or other market in which
Lenders ordinarily raise dollars to fund Loans of the requested Type any other
condition affecting this Agreement or LIBOR Loans made by such Lender, and the
result of any of the foregoing shall be to increase the cost to such Lender of
funding, making or maintaining any LIBOR Loan or to reduce the amount of any sum
received or receivable by such Lender hereunder (whether of principal, interest
or otherwise) by an amount deemed by such Lender to be material, then Alcoa will
pay or cause the other Borrowers to pay to such Lender upon demand such
19
additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.
(b) If any Lender shall have determined that the applicability of any
law, rule, regulation, agreement or guideline adopted after the date of this
Agreement pursuant to the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital Standards", or the adoption after the date
hereof of any other law, rule, regulation, agreement or guideline regarding
capital adequacy, or any change in any of the foregoing or in the interpretation
or administration of any of the foregoing by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or any lending office of such Lender) or
any Lender's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, 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 pursuant hereto to a level below that which such Lender or such Lender's
holding company could have achieved but for such applicability, adoption, change
or compliance (taking into consideration such Lender's policies and the policies
of such Lender's holding company with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time Alcoa shall pay or
cause the other Borrowers to 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) A certificate of each Lender setting forth such amount or amounts
as shall be necessary to compensate such Lender or its holding company as
specified in paragraph (a) or (b) above, as the case may be, together with a
statement of reasons for such demand and showing the calculation for such
amounts shall be delivered to Alcoa and shall be conclusive absent manifest
error. Alcoa shall pay or cause to be paid to each Lender the amount shown as
due on any such certificate delivered by it within 10 days after its receipt of
the same.
(d) Except as provided in this paragraph, failure on the part of any
Lender to demand compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital with respect to any
period shall not constitute a waiver of such Lender's right to demand
compensation with respect to such period or any other period. The protection of
this Section 2.12 shall be available to each Lender regardless of any possible
contention of the invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition which shall have occurred or been
imposed. No Lender shall be entitled to compensation under this Section 2.12 for
any costs incurred or reductions suffered with respect to any date unless it
shall have notified Alcoa that it will demand compensation for such costs or
reductions under paragraph (c) above not more than 60 days after the later of
(i) such date and (ii) the date on which it shall have or reasonably should have
become aware of such costs or reductions. In the event a Borrower shall
reimburse any Lender pursuant to this Section 2.12 for any cost and the Lender
shall subsequently receive a refund in respect thereof, the Lender shall so
20
notify such Borrower and shall pay to such Borrower the portion of such refund
which it shall determine in good faith to be allocable to the cost so
reimbursed.
SECTION 2.13. Change in Legality. (a) Notwithstanding any other
provision herein other than Section 2.14(c), if any change in any law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any LIBOR Loan or to give effect to its
obligations as contemplated hereby with respect to any LIBOR Loan, then, by
written or telecopy notice to Alcoa and the Administrative Agent, such Lender
may:
(i) declare that LIBOR Loans will not thereafter be made by such
Lender hereunder, whereupon any request by a Borrower for a LIBOR
Borrowing shall, as to such Lender only, be deemed a request for an
ABR Loan unless such declaration shall be subsequently withdrawn; and
(ii) require that all outstanding LIBOR Loans made by it be
converted to ABR Loans, in which event all such LIBOR Loans shall
automatically be so converted as of the effective date of such notice
as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under clause (i) or (ii)
above, all payments and prepayments of principal which would otherwise have been
applied to repay the LIBOR Loans that would have been made by such Lender or the
converted LIBOR Loans of such Lender shall instead be applied to repay the Loans
made by such Lender in lieu of, or resulting from the conversion of, such LIBOR
Loans.
(b) For purposes of this Section 2.13, a notice by any Lender shall be
effective as to each LIBOR Loan, if lawful, on the last day of the Interest
Period applicable to such LIBOR Loan; in all other cases such notice shall be
effective on the date of receipt.
SECTION 2.14. Indemnity. Alcoa shall indemnify or cause the other
Borrowers to indemnify each Lender against any loss or expense which such Lender
may sustain or incur as a consequence of (a) any failure to fulfill on the date
of any borrowing hereunder the applicable conditions set forth in Article IV,
(b) any failure by a Borrower to borrow or refinance any Loan hereunder after
irrevocable notice of such borrowing or refinancing has been given pursuant to
Section 2.03, (c) any payment, prepayment or refinancing of a LIBOR Loan
required by any other provision of this Agreement or otherwise made or deemed
made on a date other than the last day of the Interest Period applicable
thereto, other than any loss of profit resulting from any event, circumstance or
condition set forth in Section 2.12 or 2.13, (d) any default in payment or
prepayment of the principal amount of any Loan or any part thereof or interest
accrued thereon, as and when due and payable (at the due date thereof, whether
by scheduled maturity, acceleration, irrevocable notice of prepayment or
otherwise) or (e) the occurrence of any Event of Default, including, in each
such case, any loss or reasonable expense sustained or incurred or to be
sustained or incurred in liquidating or employing deposits from third
21
parties acquired to effect or maintain such Loan or any part thereof as a LIBOR
Loan. Such loss or reasonable expense shall include an amount equal to the
excess, if any, as reasonably determined by such Lender, of (i) its cost of
obtaining the funds for the Loan being paid, prepaid, refinanced or not borrowed
(assumed to be the LIBO Rate applicable thereto) for the period from the date of
such payment, prepayment, refinancing or failure to borrow or refinance to the
last day of the Interest Period for such Loan (or, in the case of a failure to
borrow or refinance the Interest Period for such Loan which would have commenced
on the date of such failure) over (ii) the amount of interest (as reasonably
determined by such Lender) that would be realized by such Lender in reemploying
the funds so paid, prepaid or not borrowed or refinanced for such period or
Interest Period, as the case may be. A certificate of any Lender setting forth
any amount or amounts which such Lender is entitled to receive pursuant to this
Section together with a statement of reasons for such demand and the calculation
of such amount or amounts shall be delivered to Alcoa and shall be conclusive
absent manifest error.
SECTION 2.15. Pro Rata Treatment. Except as required under Section
2.13, each Borrowing, each payment or prepayment of principal of any Borrowing,
each payment of interest on the Loans, each payment of the Facility Fees, each
reduction of Commitments and each conversion or continuation of any Borrowing
with a Borrowing of any Type shall be allocated pro rata among the Lenders in
accordance with their respective applicable Commitments (or, if such Commitments
shall have expired or been terminated, in accordance with the respective
principal amounts of their applicable outstanding Loans). Each Lender agrees
that in computing such Lender's portion of any Borrowing to be made hereunder,
the Administrative Agent may, in its discretion, round each Lender's percentage
of such Borrowing, computed in accordance with Schedule 2.01, to the next higher
or lower whole dollar amount.
SECTION 2.16. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
any Borrower, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Loan or Loans as a result
of which the unpaid principal portion of its Loans shall be proportionately less
than the unpaid principal portion of the Loans of any other Lender, it shall be
deemed simultaneously to have purchased from such other Lender at face value,
and shall promptly pay to such other Lender the purchase price for, a
participation in the Loans of such other Lender, so that the aggregate unpaid
principal amount of the Loans and participations in Loans held by each Lender
shall be in the same proportion to the aggregate unpaid principal amount of all
Loans then outstanding as the principal amount of its Loans prior to such
exercise of banker's lien, setoff or counterclaim or other event was to the
principal amount of all Loans outstanding prior to such exercise of banker's
lien, setoff or counterclaim or other event; provided, however, that, if any
such purchase or purchases or adjustments shall be made pursuant to this Section
and the payment giving rise thereto shall thereafter be recovered, such purchase
or purchases or adjustments shall be rescinded to the extent of such recovery
and the purchase price or prices or adjustment restored without interest. Alcoa
and each other
22
Borrower expressly consent to the foregoing arrangements and agree that any
Lender holding a participation in a Loan deemed to have been so purchased may
exercise any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing by Alcoa or such other Borrower to such
Lender by reason thereof as fully as if such Lender had made a Loan directly to
Alcoa or such Borrower in the amount of such participation.
SECTION 2.17. Payments. (a) Each payment or prepayment by any Borrower
of the principal of or interest on any Loans, any fees payable to the
Administrative Agent or the Lenders or any other amounts due hereunder (other
than amounts referred to in clause (b) below) shall be made, without setoff or
counterclaim, not later than 12:00 (noon), New York City time, on the date when
due in dollars to the Administrative Agent at its offices at 270 Park Avenue,
New York, New York, in immediately available funds.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any fees or other amounts) hereunder shall become due, or otherwise
would occur, on a day that is not a Business Day, such payment may be made on
the next succeeding Business Day, and such extension of time shall in such case
be included in the computation of interest or fees, if applicable.
SECTION 2.18. Taxes. (a) Any and all payments by or on behalf of a
Borrower hereunder shall be made free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding taxes imposed
on the net income of the Administrative Agent or any Lender (or any transferee
or assignee thereof, including a participation holder (any such entity a
"Transferee")) and franchise taxes imposed on the Administrative Agent or any
Lender (or Transferee) in each case by the United States or any jurisdiction
under the laws of which the Administrative Agent or any such Lender (or
Transferee) is organized or any political subdivision thereof (all such
nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities, collectively or individually, "Taxes"). If any Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to the Lenders (or any Transferee) or the Administrative Agent, (i)
the sum payable shall be increased by the amount necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 2.18) such Lender (or Transferee) or the
Administrative Agent (as the case may be) shall receive 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 taxing authority or other Governmental Authority in
accordance with applicable law; provided, however, that no Transferee of any
Lender shall be entitled to receive any greater payment under this paragraph (a)
than such Lender would have been entitled to receive immediately before
assignment, participation or other transfer with respect to the rights assigned,
participated or transferred unless such assignment, participation or transfer
shall have been made (A) prior to the occurrence of an event (including any
change in treaty, law or regulation) giving rise to such greater payment or (B)
at the request of Alcoa.
23
(b) In addition, each Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement (hereinafter referred to as "Other Taxes").
(c) Each Borrower will indemnify each Lender (or Transferee) and the
Administrative Agent for the full amount of Taxes and Other Taxes paid by such
Lender (or Transferee) or the Administrative Agent, as the case may be, and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted by the relevant taxing authority or other Governmental
Authority. Such indemnification shall be made within 30 days after the date any
Lender (or Transferee) or the Administrative Agent, as the case may be, makes
written demand therefor, together with a statement of reasons for such demand
and the calculations of such amount.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by any Borrower in respect of any payment to any Lender (or
Transferee) or the Administrative Agent, such Borrower will furnish to the
Administrative Agent, at its address referred to in Section 10.01, the original
or a certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.18 shall
survive the payment in full of the principal of and interest on all Loans made
hereunder.
(f) Each Lender (or Transferee) represents to Alcoa that, on the date
such Lender (or such Transferee) becomes a party to this Agreement, it is
eligible to receive payments of interest hereunder from Alcoa or any Borrowing
Subsidiary without withholding in respect of United States Federal withholding
tax (except, in the case of a Transferee of any Lender, as a result of the
occurrence of an event (including a change in treaty, law or regulation) after
the date of this Agreement giving rise to withholding to which such Lender would
be subject).
(g) Each Lender (or Transferee, other than a Transferee described in
the exception in Section 2.18(f)) that is organized under the laws of a
jurisdiction outside the United States shall, on or before the date it becomes a
party to this Agreement (or, in the case of a Transferee that is a participation
holder, on or before the date such Transferee becomes a participation holder
hereunder), deliver to Alcoa and the Administrative Agent such certificates,
documents or other evidence, as required by the Code or Treasury Regulations
issued pursuant thereto, including Internal Revenue Service Form W8-BEN, Form
W-8ECI, or any other certificate or statement of exemption required by Treasury
Regulation Section 1.1441-1, 1.1441-4 or 1.1441-6(c) or any subsequent version
thereof or successors thereto, properly completed and duly executed by such
Lender (or Transferee) establishing that payment is (i) not subject to United
States Federal withholding tax under the Code because such payments are
effectively connected with the conduct by such Lender (or Transferee) of a trade
or business in the United States or
24
(ii) totally exempt from United States Federal withholding tax under a provision
of an applicable tax treaty. In addition, each such Lender (or such Transferee)
shall, if legally able to do so, thereafter deliver such certificates, documents
or other evidence from time to time establishing that payments received
hereunder are not subject to such withholding upon receipt of a written request
therefor from Alcoa or the Administrative Agent. Unless Alcoa and the
Administrative Agent have received forms or other documents satisfactory to them
indicating that payments hereunder are not subject to United States Federal
withholding tax, Alcoa or the Administrative Agent shall withhold such taxes
from such payments at the applicable statutory rate, subject to Section 2.18(a).
(h) None of the Borrowers shall be required to pay any additional
amounts to any Lender (or Transferee) in respect of United States Federal
withholding tax pursuant to paragraph (a) above to the extent that the
obligation to pay such additional amounts would not have arisen but for a
failure by such Lender (or Transferee) to deliver the certificates, documents or
other evidence required to be delivered under the preceding paragraph (g) unless
such failure is attributable to (i) a change in applicable law, regulation or
official interpretation thereof or (ii) an amendment or modification to or a
revocation of any applicable tax treaty or a change in official position
regarding the application or interpretation thereof, in each case on or after
the date such Lender (or Transferee) became a party to this Agreement.
(i) Any Lender (or Transferee) claiming any additional amounts payable
pursuant to this Section 2.18 shall use reasonable efforts (consistent with
legal and regulatory restrictions) to file any certificate or document requested
in writing by the relevant Borrower or to change the jurisdiction of its
applicable lending office if the making of such a filing or change would avoid
the need for or reduce the amount of any such additional amounts which may
thereafter accrue and would not, in the sole determination of such Lender (or
Transferee), be otherwise disadvantageous to such Lender (or Transferee).
(j) If a Lender (or Transferee) or the Administrative Agent shall
become aware that it may be entitled to receive a refund in respect of Taxes or
Other Taxes as to which it has been indemnified by a Borrower pursuant to this
Section 2.18, it shall promptly notify Alcoa of the availability of such refund
and shall, within 30 days after receipt of a request by Alcoa, apply for such
refund at Alcoa's expense. If any Lender (or Transferee) or the Administrative
Agent receives a refund in respect of any Taxes or Other Taxes as to which it
has been indemnified by a Borrower pursuant to this Section 2.18, it shall
promptly repay such refund to such Borrower (to the extent of amounts that have
been paid by such Borrower under this Section 2.18 with respect to such refund),
net of all out-of-pocket expenses (including taxes imposed with respect to such
refund) of such Lender (or Transferee) or the Administrative Agent and without
interest; provided, however, that such Borrower, upon the request of such Lender
(or Transferee) or the Administrative Agent, agrees to return such refund (plus
penalties, interest or other charges) to such Lender (or Transferee) or the
Administrative Agent in the event such Lender (or Transferee) or the
Administrative Agent is required to repay such refund.
25
(k) Nothing contained in this Section 2.18 shall require any Lender
(or Transferee) or the Administrative Agent to make available any of its tax
returns (or any other information relating to its taxes which it deems to be
confidential).
(l) No Borrower shall be required to reimburse any Lender (or
Transferee) or the Administrative Agent with respect to any Tax or Other Tax
unless such Lender, Transferee or the Administrative Agent notifies such
Borrower of the amount of such Tax or Other Tax on or before the second
anniversary of the date such Lender, Transferee or the Administrative Agent pays
such Tax or Other Tax.
SECTION 2.19. Assignment of Commitments Under Certain Circumstances.
In the event that any Lender shall have delivered a notice or certificate
pursuant to Section 2.12 or 2.13, or a Borrower shall be required to make
additional payments to any Lender under Section 2.18, Alcoa shall have the
right, at its own expense, upon notice to such Lender and the Administrative
Agent, to require such Lender to transfer and assign without recourse (in
accordance with and subject to the restrictions contained in Section 10.04) all
its interests, rights and obligations under this Agreement to another financial
institution which shall assume such obligations; provided, however, that (i) no
such assignment shall conflict with any law, rule or regulation or order of any
Governmental Authority and (ii) Alcoa or the assignee, as the case may be, shall
pay (or, in the case of Alcoa, cause another Borrower to pay) to the affected
Lender in immediately available funds on the date of such termination or
assignment the principal of and interest accrued to the date of payment on the
Loans made by it hereunder and all other amounts accrued for its account or owed
to it hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to each of the Lenders with
respect to itself as follows (except that the Borrowing Subsidiaries make no
representations or warranties under Section 3.06 or 3.09):
SECTION 3.01. Organization. Such Borrower is a corporation duly
organized, validly existing and, where applicable, in good standing under the
laws of its jurisdiction of incorporation and is duly qualified to do business
as a foreign corporation and, where applicable, is in good standing in all other
jurisdictions in which the ownership of its properties or the nature of its
activities or both makes such qualification necessary, except to the extent that
failure to be so qualified would not result in a Material Adverse Effect.
SECTION 3.02. Authorization. Such Borrower has corporate power and
authority to execute, deliver and carry out the provisions of this Agreement to
which it is a party, to borrow hereunder and to perform its obligations
hereunder and all such action has been duly and validly authorized by all
necessary corporate proceedings on its part.
26
SECTION 3.03. Enforceability. This Agreement has been duly executed
and delivered by such Borrower and constitutes the legal, valid and binding
obligation of such Borrower enforceable in accordance to its terms, except as
limited by bankruptcy, insolvency or other similar laws of general application
affecting the enforcement of creditors' rights or by general principles of
equity limiting the availability of equitable remedies.
SECTION 3.04. Governmental Approvals. No authorization, consent,
approval, license, exemption or other action by, and no registration,
qualification, designation, declaration or filing with, any Governmental
Authority is necessary in connection with such Borrower's execution and delivery
of this Agreement, the consummation by any Borrower of the transactions
contemplated hereby or such Borrower's performance of or compliance with the
terms and conditions hereof, except as set forth on Schedule 3.04.
SECTION 3.05. No Conflict. None of the execution and delivery by such
Borrower of this Agreement, the consummation by such Borrower of the
transactions contemplated hereby or performance by such Borrower of or
compliance by such Borrower with the terms and conditions hereof or thereof will
(a) violate any law, constitution, statute, treaty, regulation, rule, ordinance,
order, injunction, writ, decree or award of any Governmental Authority to which
it is subject, (b) conflict with or result in a breach or default under its
charter or Memorandum and Articles of Association or by-laws, as applicable, (c)
conflict with or result in a breach or default which is material in the context
of this Agreement under any agreement or instrument to which such Borrower is a
party or by which it or any of its properties, whether now owned or hereafter
acquired, may be subject or bound or (d) result in the creation or imposition of
any Lien prohibited by Section 6.01 upon any property or assets, whether now
owned or hereafter acquired, of such Borrower.
SECTION 3.06. Financial Statements. In the case of Alcoa, it has
furnished to the Lenders copies of its consolidated balance sheet as of December
31, 2002, and the related consolidated statements of income and cash flow for
the year then ended, all examined and certified by PricewaterhouseCoopers, LLP.
Such financial statements (including the notes thereto) present fairly the
financial condition of Alcoa and its Subsidiaries as of such dates and the
results of their operations for the periods then ended, all in conformity with
GAAP, subject (in the case of the interim financial statements) to year-end
audit adjustments.
SECTION 3.07. No Defaults. No event has occurred and is continuing and
no condition exists which constitutes a Default or Event of Default hereunder.
Such Borrower is not in violation of (i) any term of its charter or Constitution
or by-laws, as applicable, or (ii) any material agreement or instrument to which
it is a party or by which it or any of its properties may be subject or bound
where such violation is likely to result in a Material Adverse Effect.
SECTION 3.08. Litigation. Except as set forth in the financial
statements referred to in Section 3.06 or any Exchange Act Report or otherwise
disclosed on
27
Schedule 3.08, there is no pending or, to the knowledge of any of its
Responsible Officers, threatened proceeding by or before any Governmental
Authority against it which in the opinion of its counsel is likely to result in
a Material Adverse Effect. Except as set forth in the financial statements
referred to in Section 3.06 or any Exchange Act Report or otherwise disclosed in
Schedule 3.08, there is no pending or, to the knowledge of any of its
Responsible Officers, threatened proceeding by or before any Governmental
Authority against any of its Subsidiaries which in the opinion of its counsel is
likely to result in a Material Adverse Effect.
SECTION 3.09. No Material Adverse Change. As of the date of this
Agreement, there has been no material adverse change in the business, assets,
operations or financial condition of itself and its Subsidiaries, taken as a
whole except, in the case of Alcoa and the Borrowing Subsidiaries, as disclosed
in any Exchange Act Report since December 31, 2002.
SECTION 3.10. Employee Benefit Plans. (a) U.S. Plans. It and each of
its ERISA Affiliates is in compliance in all material respects with the
applicable provisions of ERISA and the regulations and published interpretations
thereunder. No Reportable Event has occurred as to which such Borrower or any
ERISA Affiliate was required to file a report with the PBGC that alone or
together with any other Reportable Event would reasonably be expected to result
in a liability of such Borrower to the PBGC in an aggregate amount in excess of
$25,000,000. The aggregate present value of all benefit liabilities under the
Plans (based on the assumptions used to fund such Plans) did not, as of the last
annual valuation dates applicable thereto, exceed the aggregate value of the
assets of the Plans by more than 10% of Consolidated Net Worth. Neither such
Borrower nor any ERISA Affiliate has incurred any Withdrawal Liability that
would reasonably be expected to result in a Material Adverse Effect. Neither
such Borrower nor any ERISA Affiliate has received any notification that any
Multiemployer Plan is in reorganization or has been terminated within the
meaning of Title IV of ERISA, and no Responsible Officer of any Borrower has
knowledge of any fact which would reasonably be expected to result in the
reorganization or termination of a Multiemployer Plan where such reorganization
or termination has resulted or would reasonably be expected to result, through
increases in the contributions required to be made to such Plan or otherwise, in
a Material Adverse Effect.
(b) Foreign Plans. Each Foreign Plan is in compliance in all material
respects with all requirements of law applicable thereto and the respective
requirements of the governing documents for such plan except to the extent such
non-compliance could not reasonably be expected to result in a Material Adverse
Effect. With respect to each Foreign Pension Plan, none of the Borrowers, their
respective Affiliates or any of their directors, officers, employees or agents
has engaged in a transaction which would subject any of the Borrowers, directly
or indirectly, to a material tax or civil penalty which could reasonably be
expected to result in a Material Adverse Effect. With respect to each Foreign
Pension Plan, none of the Borrowers, their respective Affiliates or any of their
directors, officers, employees or agents has engaged in a transaction which
would subject any of the Borrowers, directly or indirectly, to a material tax or
civil penalty which could reasonably be expected to result in a Material Adverse
Effect. With respect to each
28
Foreign Plan, adequate reserves have been established in the financial
statements furnished to Lenders in respect of any unfunded liabilities in
accordance with applicable law and prudent business practice or, where required,
in accordance with ordinary accounting practices in the jurisdiction in which
such Foreign Plan is maintained. The aggregate unfunded liabilities, after
giving effect to any such reserves for such liabilities, with respect to such
Foreign Plans could not reasonably be expected to result in a Material Adverse
Effect. There are no material actions, suits or claims (other than routine
claims for benefits) pending or threatened against any of the Borrowers or any
of their Affiliates with respect to any Foreign Plan which could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect.
SECTION 3.11. Title to Properties; Possession Under Leases. (a) Such
Borrower and each of its Subsidiaries have good and marketable title to, or
valid leasehold interests in, all its material properties and assets, except for
minor defects in title that do not materially interfere with its ability to
conduct its business as currently conducted or to utilize such properties and
assets for their intended purposes.
(b) Such Borrower and each of its Subsidiaries have complied with all
material obligations under all material leases to which it is a party and all
such leases are in full force and effect. Such Borrower and its Subsidiaries
enjoy peaceful and undisturbed possession under all such material leases.
SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act. None of Alcoa or any Borrowing Subsidiary is an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940.
Alcoa is exempted as, and no Borrowing Subsidiary is, a "holding company" as
defined in, or subject to regulation under, the Public Utility Holding Company
Act of 1935.
SECTION 3.13. Tax Returns. Such Borrower and its Subsidiaries have
filed or caused to be filed all Federal, state, local and foreign tax returns
required to have been filed by it and have paid or caused to be paid all taxes
shown to be due and payable on such returns or on any assessments received by
it, except taxes that are being contested in good faith by appropriate
proceedings and for which adequate reserves are maintained in accordance with
GAAP.
SECTION 3.14. Compliance with Laws and Agreements. (a) Neither such
Borrower nor any of its Subsidiaries is in violation of any law, rule or
regulation, or in default with respect to any judgment, writ, injunction or
decree of any Governmental Authority, where such violation or default would
reasonably be expected to result in a Material Adverse Effect.
(b) Neither such Borrower nor any of its Subsidiaries is in default in
any material manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default would be reasonably likely to
result in a Material Adverse Effect.
29
SECTION 3.15. No Material Misstatements. Except for information not
prepared by Alcoa and expressly disclaimed thereby, no report, financial
statement, exhibit or schedule furnished by or on behalf of such Borrower to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or included herein or delivered pursuant thereto contained or contains
any material misstatement of fact or omitted or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were or are made, not misleading.
SECTION 3.16. Federal Reserve Regulations. The proceeds of any Loan
will be used to provide working capital or for other general corporate purposes,
including but not limited to the support of Alcoa's Commercial Paper program. No
part of the proceeds of any Loan to such Borrower will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, for any
purpose that entails a violation of any of the Regulations of the Board,
including Regulations U and X.
SECTION 3.17. No Trusts. Such Borrower is not entering into this
Agreement in its capacity as trustee of any trust.
ARTICLE IV
CONDITIONS OF EFFECTIVENESS,
LENDING AND DESIGNATION OF BORROWING SUBSIDIARIES
The obligations of the Lenders to make Loans to any Borrower hereunder
are subject to the satisfaction of the conditions set forth in Sections 4.01 and
4.02 below (and, in the case of Loans to any Borrowing Subsidiary, the
satisfaction, as to such Borrowing Subsidiary, of the conditions set forth in
Section 4.03 below):
SECTION 4.01. Effective Date. On the Effective Date:
(a) The Administrative Agent shall have received a written opinion of
Thomas F. Seligson, Counsel of Alcoa, dated the Effective Date and addressed to
the Lenders, to the effect set forth in Exhibit C hereto.
(b) All legal matters incident to this Agreement and the borrowings
hereunder shall be satisfactory to the Lenders and to Cravath, Swaine & Moore
LLP, counsel for the Administrative Agent.
(c) The Administrative Agent shall have received (i) a copy, including
all amendments thereto, of the charter of Alcoa, certified as of a recent date
by the Secretary of State or other appropriate official of its jurisdiction of
incorporation and a certificate as to the good standing of Alcoa as of a recent
date, from such Secretary of State or other official; (ii) a certificate of the
Secretary or Assistant Secretary of Alcoa dated the Effective Date and
certifying (A) that attached thereto is a true and complete copy of the by-laws
of such corporation as in effect on the Effective Date showing all amendments
thereto since the date of the resolutions described in clause (B) below, (B)
that attached thereto is a true and complete copy of resolutions duly adopted by
the Board of Directors
30
of such corporation authorizing the execution, delivery and performance of this
Agreement and the borrowings by such corporation hereunder, and that such
resolutions have not been modified, rescinded or amended and are in full force
and effect, (C) that the charter of Alcoa has not been amended since the date of
the last amendment thereto shown on the certificate of good standing furnished
pursuant to clause (i) above and (D) as to the incumbency and specimen signature
of each officer executing this Agreement or any other document delivered in
connection herewith on behalf of such corporation; (iii) a certificate of
another officer of each such corporation as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the certificate
pursuant to (ii) above; and (iv) such other documents as the Lenders or Cravath,
Swaine & Moore, counsel for the Administrative Agent may reasonably request.
(d) No loans shall be outstanding under the 1998 Five-Year Credit
Agreement and the commitments under such Agreement shall have been terminated.
(e) The Administrative Agent shall have received certificates dated
the Effective Date and signed by a Financial Officer of Alcoa confirming the
satisfaction of the conditions precedent set forth in paragraph (d) of this
Section 4.01 and paragraph (b) and paragraph (c) of Section 4.02.
(f) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including all fees
accrued to the date hereof under the 1998 Five-Year Credit Agreement.
(g) The Administrative Agent shall have received certificates of a
Responsible Officer of Alcoa, each dated the Effective Date and stating that (i)
except as disclosed in the Exchange Act Report or otherwise disclosed in such
certificate, Alcoa and each of its Subsidiaries have complied in all respects
with all Federal, state, local and foreign statutes, ordinances, orders,
judgments, rulings and regulations relating to environmental pollution or to
environmental regulation or control except to the extent any such failure so to
comply would not, alone or together with any other such failure, be reasonably
likely to result in a Material Adverse Effect; (ii) neither Alcoa nor any of its
Subsidiaries has received notice of any failure so to comply which alone or
together with any other such failure would be reasonably likely to result in a
Material Adverse Effect; and (iii) the plants of Alcoa and its Subsidiaries do
not manage any hazardous wastes, toxic pollutants or substances similarly
denominated in violation of any applicable law or regulations promulgated
pursuant thereto including, for operations within the United States, the
Resource Conservation and Recovery Act, the Comprehensive Environmental Response
Compensation and Liability Act, the Hazardous Materials Transportation Act, the
Toxic Substance Control Act, the Clean Air Act, the Clean Water Act or any other
applicable law, where such violation would be reasonably likely to result,
individually or together with any such other violations, in a Material Adverse
Effect.
SECTION 4.02. All Borrowings. On the date of each Borrowing:
(a) Such Borrower shall have provided the notice as required by
Section 2.03.
31
(b) The representations and warranties set forth in Article III hereof
(except, in the case of a refinancing of any Loan that does not increase the
aggregate principal amount of Loans of any Lender outstanding, the
representations set forth in Sections 3.08 and 3.10) shall be true and correct
in all material respects on and as of the date of such Borrowing with the same
effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date.
(c) Each Borrower shall be in compliance in all material respects with
all the terms and provisions set forth herein on its part to be observed or
performed, and at the time of and immediately after such Borrowing no Event of
Default or Default shall have occurred and be continuing.
(d) In the case of any Borrowing which would cause the aggregate
principal amount of outstanding loans under this Agreement, the 2001 Five-Year
Credit Agreement, the 2003 364-Day Credit Agreement and any other Facilities (as
defined in the resolutions duly adopted by the Board of Directors of Alcoa on
November 9, 2001) to exceed $10,000,000,000, such Borrowing shall have been duly
authorized by Alcoa and the Administrative Agent shall have received a true and
complete copy of resolutions duly adopted by the Board of Directors of Alcoa
authorizing such Borrowing.
Each Borrowing by any Borrower shall be deemed to constitute a representation
and warranty by such Borrower and, in the case of a Borrowing Subsidiary, Alcoa
on the date of such Borrowing as to the matters specified in paragraphs (b), (c)
and (d) of this Section 4.02.
SECTION 4.03. Designation of Borrowing Subsidiaries. On each
Designation Date:
(a) The Administrative Agent shall have received (i) a copy of the
charter, including all amendments thereto, of each applicable Borrowing
Subsidiary, certified as of a recent date by the Secretary of State or the
appropriate foreign governmental official of the state or country of its
organization, and a certificate as to the good standing of such Borrowing
Subsidiary as of a recent date from such Secretary of State or appropriate
foreign governmental official, as applicable; (ii) a certificate of the
Secretary or Assistant Secretary of such Borrowing Subsidiary dated the
Designation Date and certifying (A) that attached thereto is a true and
completed copy of the by-laws of such Borrowing Subsidiary as in effect on the
Designation Date showing all amendments thereto since the date of the
resolutions described in clause (B) below, (B) that attached thereto is a true
and complete copy of resolutions duly adopted by the Board of Directors of such
Borrowing Subsidiary authorizing the execution, delivery and performance of this
Agreement and the borrowings hereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect, (C) that the
charter of such Borrowing Subsidiary has not been amended since the date of the
last amendment thereto shown on the certificate of good standing furnished
pursuant to clause (i) above, and (D) as to the incumbency and specimen
signature of each officer executing or any other document delivered in
connection herewith on behalf of such Borrowing Subsidiary; and (iii) a
certificate of another officer as to the incumbency and specimen
32
signature of the Secretary or Assistant Secretary executing the certificate
pursuant to (ii) above.
(b) The Administrative Agent shall have received a Designation of
Borrowing Subsidiary of each applicable Borrowing Subsidiary as provided in
Section 10.04(e).
ARTICLE V
AFFIRMATIVE COVENANTS
So long as this Agreement shall remain in effect or the principal of
or interest on any Loan, any fees or any other expenses or amounts payable in
connection herewith shall be unpaid, unless the Required Lenders shall otherwise
consent in writing:
SECTION 5.01. Financial Statements, Reports, etc. Alcoa shall furnish
to the Administrative Agent the following, with sufficient copies for the
Administrative Agent to provide a copy to each Lender:
(a) within 120 days after the end of each fiscal year, (i) its
consolidated balance sheet and related statements of income and cash flow
audited by independent public accountants of recognized national standing,
accompanied by an opinion of such accountants (which shall not be qualified as
to scope of audit or in any manner calling into question the status of its
business as a going concern) to the effect that such consolidated financial
statements fairly present its financial condition and results of operations and
that of its consolidated Subsidiaries, taken as a whole, in accordance with GAAP
and (ii) the balance sheet and related statements of income of each of its
Subsidiaries which has been designated pursuant to Section 10.04(e) as, and as
long as such Subsidiary remains, a Borrowing Subsidiary, certified by a
Financial Officer of such Subsidiary;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year, its Form 10-Q as prescribed by the Securities and
Exchange Commission (or any successor agency);
(c) concurrently with any delivery of financial statements under (a)
above and promptly at the request of the Administrative Agent (but not more
often than once with respect to any fiscal quarter), a certificate of a
Financial Officer (i) certifying that no Event of Default or Default has
occurred and is continuing or, if such an Event of Default or Default has
occurred and is continuing, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto and (ii)
setting forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating compliance with the covenant contained in
Section 6.03;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by it
(other than registration statements and prospectuses related to offerings to
directors, officers or employees) with the Securities and Exchange Commission or
any Governmental
33
Authority succeeding to any of or all the functions of such Commission, or with
any national securities exchange, or distributed to its shareholders, as the
case may be; and
(e) promptly, from time to time, such other information regarding its
operations, business affairs and financial condition, or compliance with the
terms of this Agreement, as the Administrative Agent or any Lender may
reasonably request.
Alcoa shall be deemed to have fulfilled its obligations under
paragraph (a), (b) or (d) above when the Administrative Agent receives a paper
or an electronic version of the documents required to be delivered pursuant to
paragraph (a), (b) or (d) above, in a format acceptable to the Administrative
Agent; provided that (i) such paper or electronic version must be accompanied by
a certificate delivered pursuant to paragraph (c) above and (ii) the Borrower
shall deliver paper copies of the information referred to in paragraph (d) above
to any Lender which requests such delivery.
SECTION 5.02. Pari Passu Ranking. Each Borrower shall ensure that any
amounts payable by it hereunder will at all times rank at least pari passu with
all other unsecured, unsubordinated Indebtedness of such Borrower except to the
extent any such Indebtedness may be preferred by law.
SECTION 5.03. Maintenance of Properties. Each Borrower shall, and
shall cause its Subsidiaries to, maintain and keep its properties in such
repair, working order and condition, and make or cause to be made all such
needful and proper repairs, renewals and replacements thereto, as in the
judgment of such Borrower are necessary and in the interests of such Borrower;
provided, however, that nothing in this Section 5.03 shall prevent such Borrower
(or any Subsidiary thereof) from selling, abandoning or otherwise disposing of
any of its respective properties or discontinuing a part of its respective
businesses from time to time if, in the judgment of such Borrower, such sale,
abandonment, disposition or discontinuance is advisable.
SECTION 5.04. Obligations and Taxes. Each Borrower shall pay its
Indebtedness and other obligations that, if not paid, would result in a Material
Adverse Effect before the same shall become delinquent or in default, and pay
and discharge all taxes upon or against it, or against its properties, in each
case prior to the date on which penalties attach thereto, unless and to the
extent that any such obligation or tax is being contested in good faith and
adequate reserves with respect thereto are maintained in accordance with GAAP.
SECTION 5.05. Insurance. Each Borrower shall, and shall cause its
consolidated Subsidiaries to, insure and keep insured, in each case with
reputable insurance companies, so much of its respective properties to such an
extent and against such risks, or in lieu thereof, in the case of any Borrower,
maintain or cause to be maintained a system or systems of self-insurance, as is
customary in the case of corporations engaged in the same or similar business or
having similar properties similarly situated.
34
SECTION 5.06. Existence; Businesses and Properties. (a) Each Borrower
shall do or cause to be done all things necessary to preserve, renew and keep in
full force and effect its legal existence in its jurisdiction of incorporation,
except as otherwise expressly permitted under Section 6.02.
(b) Each Borrower shall do or cause to be done all things necessary to
obtain, preserve, renew, extend and keep in full force and effect the rights,
licenses, permits, franchises, authorizations, patents, copyrights, trademarks
and trade names material to the conduct of its business as its Board of
Directors shall determine in its judgment.
SECTION 5.07. Compliance with Laws. (a) Each Borrower shall comply in
all material respects with all applicable laws, rules, regulations and orders of
any Governmental Authority to which it is subject, whether now in effect or
hereafter enacted, such that no failure so to comply will result in the levy of
any penalty or fine which shall have a Material Adverse Effect.
(b) Each Borrower shall comply in all material respects with the
applicable provisions of ERISA and all other related applicable laws and furnish
to the Administrative Agent and each Lender (i) as soon as possible, and in any
event within 30 days after any Responsible Officer of such Borrower or any ERISA
Affiliate either knows or has reason to know that any ERISA Event has occurred
that alone or together with any other ERISA Event would reasonably be expected
to result in liability of such Borrower to the PBGC in an aggregate amount
exceeding $25,000,000, a statement of a Financial Officer setting forth details
as to such ERISA Event and the action proposed to be taken with respect thereto,
together with a copy of the notice, if any, of such ERISA Event given to the
PBGC or other Governmental Authority, (ii) promptly after receipt thereof, a
copy of any notice such Borrower or any ERISA Affiliate may receive from the
PBGC or other Governmental Authority relating to the intention of the PBGC or
other Governmental Authority to terminate any Plan or Plans (other than a Plan
maintained by an ERISA Affiliate which is considered an ERISA Affiliate only
pursuant to subsection (m) or (o) of Section 414 of the Code), or any Foreign
Plan or Foreign Plans, or to appoint a trustee to administer any Plan or Plans,
or any Foreign Plan or Foreign Plans, (iii) within 10 days after the due date
for filing with the PBGC pursuant to Section 412(n) of the Code of a notice of
failure to make a required installment or other payment with respect to a Plan,
a statement of a Financial Officer setting forth details as to such failure and
the action proposed to be taken with respect thereto, together with a copy of
such notice given to the PBGC and (iv) promptly and in any event within 30 days
after receipt thereof by such Borrower or any ERISA Affiliate from the sponsor
of a Multiemployer Plan, a copy of each notice received by such Borrower or
ERISA Affiliate concerning (A) the imposition of Withdrawal Liability in excess
of $25,000,000 or (B) a determination that a Multiemployer Plan is, or is
expected to be, terminated or in reorganization, in each case within the meaning
of Title IV of ERISA, if such termination or reorganization would reasonably be
expected to result, alone or with any other such termination or reorganization,
in increases in excess of $25,000,000 in the contributions required to be made
to the relevant Plan or Plans.
35
SECTION 5.08. Litigation and Other Notices. Each Borrower shall
furnish to the Administrative Agent prompt written notice upon its becoming
aware of any of the following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) proposed to be taken with respect
thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or proceeding,
whether at law or in equity or by or before any Governmental Authority, against
it or any of its Subsidiaries which would reasonably be expected to result in a
Material Adverse Effect; and
(c) any other development that has resulted in, or would reasonably be
expected to result in, a Material Adverse Effect.
SECTION 5.09. Borrowing Subsidiaries. Alcoa shall cause each Borrowing
Subsidiary at all times to be a wholly-owned Subsidiary.
ARTICLE VI
NEGATIVE COVENANTS
Each Borrower covenants and agrees with each Lender that, so long as
this Agreement shall remain in effect or the principal of or interest on any
Loan, any fees or any other expenses or amounts payable in connection herewith
shall be unpaid, unless the Required Lenders shall otherwise consent in writing,
such Borrower will not:
SECTION 6.01. Liens. (a) Create or incur, or permit any Restricted
Subsidiary to create or incur, any Lien on its property or assets (including
stock or other securities of any person, including any of its Subsidiaries) now
or hereafter acquired by it or on any income or revenues or rights in respect
thereof, securing Indebtedness for borrowed money, without ratably securing the
Loans; provided, however, that the foregoing shall not apply to the following:
(i) Liens on property or assets of any corporation existing at the
time such corporation becomes a Restricted Subsidiary;
(ii) Liens existing on any property or asset at or prior to the
acquisition thereof by such Borrower or a Restricted Subsidiary, Liens on
any property or asset securing the payment of all or any part of the
purchase price of such property or asset, Liens on any property or asset
securing any Indebtedness incurred prior to, at the time of or within 180
days after the acquisition of such property or asset for the purpose of
financing all or any part of the purchase price thereof or Liens on any
property or asset securing any Indebtedness incurred for the purpose of
financing all or any part of the cost to such Borrower or Restricted
Subsidiary of improvements thereto;
36
(iii) Liens securing Indebtedness of a Restricted Subsidiary owing to
Alcoa or to another Restricted Subsidiary;
(iv) Liens existing on December 31, 2002, and set forth on Schedule
6.01(a);
(v) Liens on property of a person existing (or, in the case of Alumax
Inc., that shall have existed) at the time such person is merged into or
consolidated with Alcoa or a Restricted Subsidiary or at the time such
person becomes a subsidiary of Alcoa through the direct or indirect
acquisition of capital stock of such person by Alcoa or at the time of a
sale, lease or other disposition of the properties of a person as an
entirety or substantially as an entirety to Alcoa or a Restricted
Subsidiary;
(vi) Liens on any property owned by Alcoa or any Restricted
Subsidiary, in favor of the United States of America or any state thereof,
or any department, agency or instrumentality or political subdivision of
the United States of America or any State thereof, or in favor of any other
country, or any political subdivision thereof, to secure partial, progress,
advance or other payments pursuant to any contract or statute or to secure
any Indebtedness incurred for the purpose of financing all or any part of
the purchase price or the cost of construction of the property subject to
such Liens; and
(vii) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of the Liens referred to in
clauses (i) through (vi) of this Section 6.01(a); provided, however, that
each such extension, renewal or replacement is limited to all or a part of
the property which secured the Lien so extended, renewed or replaced (and
any improvements thereon).
(b) Notwithstanding paragraph (a) of this Section 6.01 and in addition
to the Liens permitted thereunder, each Borrower and any Restricted Subsidiary
may create or incur Liens which would otherwise be subject to the foregoing
restrictions to secure Indebtedness for borrowed money in an aggregate amount
which does not at the time exceed 10% of the Consolidated Net Tangible Assets of
Alcoa and its consolidated Subsidiaries at such time.
SECTION 6.02. Consolidation, Merger, Sale of Assets, etc. Consolidate
or merge with or into any other person or sell, lease or transfer all or
substantially all of its property and assets, or agree to do any of the
foregoing, unless (a) no Default or Event of Default has occurred and is
continuing or would result immediately after giving effect thereto, (b) if such
Borrower is not the surviving corporation or if such Borrower sells, leases or
transfers all or substantially all of its property and assets, the surviving
corporation or person purchasing or being leased the assets agrees to be bound
by the terms and provisions applicable to such Borrower hereunder, and (c)(i) in
the case of Alcoa, immediately after such transaction, individuals who were
directors of Alcoa during the twelve month period prior to such merger, sale or
lease (together with any
37
replacement or additional directors whose election was recommended by or who
were elected by a majority of directors then in office) constitute the Board of
Directors of the surviving corporation or the person purchasing or being leased
the assets and (ii) in the case of a Borrowing Subsidiary, (A) the surviving
corporation or the person purchasing or being leased the assets is a
wholly-owned Subsidiary of Alcoa and (B) if the surviving corporation or such
person is not Alcoa, Alcoa agrees to guarantee pursuant to Article VIII the
obligations of such person under this Agreement.
SECTION 6.03. Financial Undertaking. In the case of Alcoa, permit the
aggregate principal amount of (a) the Indebtedness of Alcoa and its consolidated
Subsidiaries, after eliminating intercompany items, plus (b) all other
liabilities of Alcoa and its consolidated Subsidiaries, after eliminating
intercompany items, in respect of any guarantee or endorsement (except the
endorsement of negotiable instruments for deposit or collection or similar
transactions in the normal course of business) of the Indebtedness of any person
to exceed 150% of Consolidated Net Worth of Alcoa and its consolidated
Subsidiaries.
SECTION 6.04. Change in Business. In the case of Alcoa, make or permit
any substantial change in the general nature of the business carried on by Alcoa
and its consolidated Subsidiaries as at the date hereof, including any such
alteration arising from an acquisition, which would reasonably be expected to
result in a Material Adverse Effect.
ARTICLE VII
EVENTS OF DEFAULT
In case of the happening of any of the following events ("Events of
Default"):
(a) any Borrower shall default in the payment when due of any
principal of any Loan and, if such default shall result from the failure of any
third party payments system used by such Borrower, such default shall continue
for a period of two Business Days;
(b) any Borrower shall fail to pay when due any interest, fee or other
amount payable under this Agreement or Alcoa shall fail to pay any amount due
under Article VIII upon demand therefor, and, in each case, such failure shall
continue for a period of five Business Days;
(c) any representation or warranty made in Section 3.09 shall prove to
have been false or misleading in any material respect as of the time when made
(including by omission of material information necessary to make such
representation or warranty not misleading); or any other representation or
warranty made by a Borrower under this Agreement or any statement made by a
Borrower in any financial statement, certificate, report, exhibit or document
furnished by or on behalf of such Borrower in connection with this Agreement
shall prove to have been false or misleading in any
38
material respect as of the time when made and, if such representation or
warranty is able to be corrected, such representation or warranty is not
corrected within 20 days after such Borrower's knowledge that it was false or
misleading;
(d) any Borrower shall default in the performance or observance of any
covenant contained in Section 5.02, Section 5.06(a), Section 5.08(a) or Article
VI;
(e) any Borrower shall default in the performance or observance of any
covenant or agreement under this Agreement (other than those specified in
paragraphs (a), (b) and (d) above) and such default shall continue for a period
of 10 Business Days, in the case of a default with respect to Section 5.08(b) or
(c), or in any other case a period of 30 days after notice from the
Administrative Agent;
(f) any Borrower shall (i) default in the payment of any principal or
interest beyond any period of grace provided with respect thereto, due in
respect of any Indebtedness in a principal amount in excess of $20,000,000; or
(ii) fail to observe or perform any other term, covenant, condition or agreement
contained in any agreement or instrument evidencing or governing any such
Indebtedness if the effect of any such failure referred to in this paragraph (f)
is to cause such Indebtedness to become due prior to its stated maturity;
(g) a proceeding shall have been instituted or a petition filed in
respect of a Borrower
(i) seeking to have an order for relief entered in respect of such
Borrower, or seeking a declaration or entailing a finding that such
Borrower is insolvent or a similar declaration or finding, or seeking
dissolution, winding-up, revocation or forfeiture of charter or Memorandum
and Articles of Association, liquidation, reorganization, arrangement,
adjustment, composition or other relief with respect to such Borrower, its
assets or its debts under any law relating to bankruptcy, insolvency,
relief of debtors or protection of creditors, termination of legal entities
or any other similar law now or hereafter in effect, or
(ii) seeking appointment of a receiver, trustee, custodian,
liquidator, assignee, sequestrator, administrator or other similar official
for such Borrower or for all or any substantial part of its property,
and such proceeding or petition shall remain undismissed for a period of 90
consecutive days or an order or decree approving any of the foregoing shall be
entered;
(h) any Borrower shall become insolvent, shall become generally unable
to pay its debts as they become due, shall voluntarily suspend transaction of
its business generally or as a whole, shall make a general assignment for the
benefit of creditors, shall institute a proceeding described in clause (g)(i)
above or shall consent to any order or decree described therein, shall institute
a proceeding described in clause (g)(ii) above or shall consent to any such
appointment or to the taking of possession by any such official of all or any
substantial part of its property whether or not any such proceeding is
39
instituted, shall dissolve, wind-up or liquidate itself or any substantial part
of its property or shall take any action in furtherance of any of the foregoing;
(i) any of the following shall have occurred: (i) any person or group
of persons shall have acquired beneficial ownership of a majority in interest of
the outstanding Voting Stock of Alcoa (within the meaning of Section 13(d) or
14(d) of the Securities Exchange Act of 1934 and the applicable rules and
regulations thereunder), (ii) during any period of 25 consecutive months,
commencing before or after the date of this Agreement, individuals who at the
beginning of such 25 month period were directors of Alcoa (together with any
replacement or additional directors whose election was recommended by or who
were elected by a majority of directors then in office) cease to constitute a
majority of the Board of Directors of Alcoa or (iii) any person or group of
related persons shall acquire all or substantially all of the assets of Alcoa;
provided, however, that a change in control of Alcoa shall not be deemed to have
occurred pursuant to clause (iii) of this paragraph (i) if Alcoa shall have
merged or consolidated with or transferred all or substantially all of its
assets to another person in compliance with the provisions of Section 6.02 and
the ratio represented by the total assets of the surviving person, successor or
transferee divided by such person's stockholders' equity, in each case as
determined and as would be shown in a consolidated balance sheet of such person
prepared in accordance with GAAP (the "Leverage Ratio" of such person) is no
greater than the then Leverage Ratio of Alcoa immediately prior to such event;
(j) an ERISA Event or ERISA Events shall have occurred with respect to
any Plan or Plans, or any Foreign Plan or Foreign Plans, that reasonably could
be expected to result in liability of any Borrower to the PBGC or other
Governmental Authority or to a Plan or Foreign Plan in an aggregate amount
exceeding $25,000,000 and, within 30 days after the reporting of any such ERISA
Event to the Administrative Agent or after the receipt by the Administrative
Agent of the statement required pursuant to Section 5.07(b), the Administrative
Agent shall have notified the Borrower in writing that (i) the Required Lenders
have made a determination that, on the basis of such ERISA Event or ERISA Events
or the failure to make a required payment, there are reasonable grounds (A) for
the termination of such Plan or Plans, or such Foreign Plan or Foreign Plans, by
the PBGC or other Governmental Authority, (B) for the appointment either by the
appropriate United States District Court of a trustee to administer such Plan or
Plans or by an applicable court of law outside the United States of a trustee to
administer such Foreign Plan or Foreign Plans or (C) for the imposition of a
lien in favor of a Plan or Foreign Plan and (ii) as a result thereof an Event of
Default exists hereunder; or a trustee shall be appointed by a United States
District Court to administer any such Plan or Plans or by an applicable court of
law outside the United States of a trustee to administer such Foreign Plan or
Foreign Plans; or the PBGC or other Governmental Authority shall institute
proceedings to terminate any Plan or Plans or any Foreign Plan or Foreign Plans;
(k) (i) any Borrower or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability
to such Multiemployer Plan, (ii) such Borrower or such ERISA Affiliate does not
have reasonable grounds for contesting such Withdrawal Liability or is not in
fact contesting such Withdrawal Liability in a timely and appropriate manner and
does not have
40
adequate reserves set aside against such Withdrawal Liability and (iii) the
amount of the Withdrawal Liability specified in such notice, when aggregated
with all other amounts required to be paid to Multiemployer Plans in connection
with Withdrawal Liabilities (determined as of the date or dates of such
notification), exceeds $25,000,000 or requires payments exceeding $25,000,000 in
any calendar year;
(l) any Borrower or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
if solely as a result of such reorganization or termination the aggregate annual
contributions of such Borrower and its ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or have been or are being terminated have
been or will be increased over the amounts required to be contributed to such
Multiemployer Plans for their most recently completed plan years by an amount
exceeding $25,000,000;
(m) one or more judgments for the payment of money in an aggregate
amount in excess of $50,000,000 shall be rendered against any Borrower or any
Subsidiary of any Borrower or any combination thereof and the same shall remain
undischarged for a period of 45 consecutive days during which execution shall
not be effectively stayed (unless an appeal or writ of certiorari is being
diligently prosecuted), or any action shall be legally taken by a judgment
creditor or creditors holding judgments which in the aggregate exceed
$50,000,000 to levy upon assets or properties of any Borrower or any Subsidiary
of a Borrower to enforce any such judgment; or
(n) Any "Event of Default" as defined in the 2001 Five-Year Credit
Agreement or the 2003 364-Day Credit Agreement shall occur and be continuing;
then, and in every such event (other than an event described in paragraph (g) or
(h) above), and at any time thereafter during the continuance of such event, the
Administrative Agent, at the request of the Required Lenders, shall, by written
notice to Alcoa, take either or both of the following actions, at the same or
different times: (i) terminate the Commitments, and (ii) declare the Loans then
outstanding to be forthwith due and payable in whole or in part, whereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued fees and all other liabilities accrued
hereunder, shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by each Borrower, anything contained herein to the contrary
notwithstanding; and in any event described in paragraph (g) or (h) above, the
Commitments of the Lenders shall automatically terminate and the principal of
the Loans then outstanding, together with accrued interest thereon and any
unpaid accrued fees and all other liabilities accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by each
Borrower, anything contained herein to the contrary notwithstanding.
41
ARTICLE VIII
GUARANTEE
Alcoa unconditionally and irrevocably guarantees, as a principal
obligor and not merely as a surety, the due and punctual payment and performance
of all Borrowing Subsidiary Obligations. Alcoa further agrees that the Borrowing
Subsidiary Obligations may be extended or renewed, in whole or in part, without
notice or further assent from it, and that it will remain bound upon the
provisions of this Article VIII notwithstanding any extension or renewal of any
Borrowing Subsidiary Obligation.
Alcoa waives presentation to, demand of payment from and protest to
any Borrowing Subsidiary of any of the Borrowing Subsidiary Obligations, and
also waives notice of acceptance of the guarantee set forth in this Article VIII
and notice of protest for nonpayment. The obligations of Alcoa hereunder shall
not be affected by (a) the failure of the Administrative Agent or any Lender to
assert any claim or demand or to enforce any right or remedy against any
Borrowing Subsidiary under the provisions of this Agreement or any guarantee;
(b) any extension or renewal of any provision of this Agreement or any
guarantee; or (c) any rescission, waiver, amendment or modification of any of
the terms or provisions of this Agreement or any guarantee or any other
agreement.
Alcoa further agrees that the guarantee set forth in this Article VIII
constitutes a guarantee of payment when due and not of collection and waives any
right to require that any resort be had by the Administrative Agent or any
Lender to the balance of any deposit account or credit on the books of the
Administrative Agent or the relevant Lender, as applicable, in favor of any
Borrowing Subsidiary or any other person.
The obligations of Alcoa hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim or waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Borrowing Subsidiary Obligations or otherwise. Without limiting the generality
of the foregoing, the obligations of Alcoa hereunder shall not be discharged or
impaired or otherwise affected by the failure of the Administrative Agent or any
Lender to assert any claim or demand or to enforce any remedy under this
Agreement, by any waiver or modification of any thereof, by any default, failure
or delay, wilful or otherwise, in the performance of the Borrowing Subsidiary
Obligations or by any other act or omission which may or might in any manner or
to any extent vary the risk of Alcoa or would otherwise operate as a discharge
of Alcoa as a matter of law or equity.
Alcoa further agrees that this guarantee shall continue to be
effective or be reinstated, as the case may be, if at any time payment by any
Borrowing Subsidiary to the Administrative Agent or any Lender, or any part
thereof, of principal of or interest on such Borrowing Subsidiary Obligation is
rescinded or must otherwise be restored by the Administrative Agent or any
Lender or any holder of any Borrowing Subsidiary
42
Obligation upon the bankruptcy or reorganization of such Borrowing Subsidiary or
otherwise.
In furtherance of the foregoing and not in limitation of any other
right which the Administrative Agent or any Lender may have at law or in equity
against Alcoa by virtue hereof, upon the failure of any Borrowing Subsidiary to
pay any Borrowing Subsidiary Obligation when and as the same shall become due,
whether at maturity, by acceleration, after notice of prepayment or otherwise,
Alcoa hereby promises to and will, upon receipt of written demand by the
Administrative Agent, promptly pay, or cause to be paid, to such Agent in cash
the amount of such unpaid Borrowing Subsidiary Obligation, and thereupon such
Agent shall assign, in any reasonable manner, the amount of the Borrowing
Subsidiary Obligation paid by Alcoa pursuant to this guarantee to Alcoa, such
assignment to be pro tanto to the extent to which the Borrowing Subsidiary
Obligation in question was discharged by Alcoa, or make such other disposition
thereof as Alcoa shall direct (all without recourse to the Administrative Agent
or any Lender and without any representation or warranty by the Administrative
Agent or Lender).
Upon payment by Alcoa of any sums to the Administrative Agent as
provided above, all rights of Alcoa against the Borrowing Subsidiaries arising
as a result thereof by way of right of subrogation or otherwise shall in all
respects be subordinate and junior in right of payment to the prior indefeasible
payment in full of all the Borrowing Subsidiary Obligations.
ARTICLE IX
THE ADMINISTRATIVE AGENT
In order to expedite the transactions contemplated by this Agreement,
JPMorgan Chase Bank is hereby appointed to act as the Administrative Agent on
behalf of the Lenders. Each of the Lenders and each assignee of any such Lender
hereby irrevocably authorizes the Administrative Agent to take such actions on
behalf of such Lender or assignee and to exercise such powers as are
specifically delegated to such Agent by the terms and provisions hereof,
together with such actions and powers as are reasonably incidental thereto. The
Administrative Agent is hereby expressly authorized by the Lenders, without
hereby limiting any implied authority, (a) to receive on behalf of the Lenders
all payments of principal of and interest on the Loans and all other amounts due
to the Lenders hereunder, and promptly to distribute to each Lender its proper
share of each payment so received; (b) to give notice on behalf of each of the
Lenders to the relevant Borrower of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by any
Borrower pursuant to this Agreement as received by such Agent.
None of the Administrative Agent or any of its directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of
43
them except for its or his own gross negligence or wilful misconduct, or be
responsible for any statement, warranty or representation herein or the contents
of any document delivered in connection herewith, or be required to ascertain or
to make any inquiry concerning the performance or observance by any Borrower of
any of the terms, conditions, covenants or agreements contained herein. The
Administrative Agent shall not be responsible to the Lenders or any assignee
thereof for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or other instruments or agreements. The
Administrative Agent shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant hereto shall be binding on all
the Lenders and each assignee of any such Lender. The Administrative Agent
shall, in the absence of knowledge to the contrary, be entitled to rely on any
instrument or document believed by it in good faith to be genuine and correct
and to have been signed or sent by the proper person or persons. None of the
Administrative Agent or any of its directors, officers, employees or agents
shall have any responsibility to any Borrower on account of the failure of or
delay in performance or breach by any other Lender or any Borrower of any of
their respective obligations hereunder or in connection herewith. The
Administrative Agent may execute any and all duties hereunder by or through
agents or employees and shall be entitled to rely upon the advice of legal
counsel selected by it with respect to all matters arising hereunder and shall
not be liable for any action taken or suffered in good faith by it in accordance
with the advice of such counsel.
The Lenders hereby acknowledge that the Administrative Agent shall not
be under any duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement unless it shall be requested in
writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign at
any time by notifying the Lenders and the Borrowers. Upon any such resignation,
the Required Lenders shall have the right to appoint a successor; provided,
however, that Alcoa has approved such successor (such consent not to be
unreasonably withheld or delayed and not to be required if an Event of Default
exists). 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 Agent
may, on behalf of the Lenders, appoint a successor Administrative Agent, subject
to the prior approval of Alcoa (such consent not to be unreasonably withheld or
delayed and not to be required if an Event of Default exists), which shall be a
bank with an office in New York, New York, having total assets in excess of
$10,000,000,000 or an Affiliate of any such bank. Upon the acceptance of any
appointment as the Administrative Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent and the retiring Agent shall be
discharged from its duties and obligations hereunder. After the Agent's
resignation hereunder the provisions of this Article and Section 10.05 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
44
With respect to the Loans made by it hereunder, the Administrative
Agent in its individual capacity and not as Agent shall have the same rights and
powers as any other Lender and may exercise the same as though it were not an
Administrative Agent, and such Agent and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of business with any
Borrower or any Subsidiary or other Affiliate of Alcoa as if it were not an
Agent.
Each Lender agrees (i) to reimburse the Administrative Agent, on
demand, in the amount of its pro rata share (based on its Commitment hereunder)
of any expenses incurred for the benefit of the Lenders by such Agent, including
counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders, which shall not have been reimbursed by the Borrowers
and (ii) to indemnify and hold harmless the Administrative Agent and any of its
directors, officers, employees, agents or Affiliates, on demand, in the amount
of such pro rata share, from and against any and all liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against it in its capacity as an Administrative
Agent or any of them in any way relating to or arising out of this Agreement or
any action taken or omitted by it or any of them under this Agreement, to the
extent the same shall not have been reimbursed by the Borrowers; provided that
no Lender shall be liable to the Administrative Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or wilful
misconduct of such Agent or any of its directors, officers, employees, agents or
Affiliates.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or 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 other Lender and based on such documents and information
as 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.
Each Lender hereby acknowledges that the syndication and documentation
agents have no liability hereunder as syndication and documentation agents other
than in their capacity as Lenders.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. 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:
45
(a) if to Alcoa or a Borrowing Subsidiary, to Alcoa Inc. at 390 Park
Avenue, New York, New York 10022-4608, Attention of Vice President & Treasurer
(Telecopy No. 212-836-2823);
(b) if to the Administrative Agent, to JPMorgan Chase Bank at 1111
Fannin Street, Houston, Texas 77002, Attention of Bang Tran (Telecopy No.
713-750-2223), with a copy to JPMorgan Chase Bank at 270 Park Avenue, New York,
New York 10017, Attention of James Ramage (Telecopy No. 212-270-5100);
(c) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 2.01 or in the Assignment and Assumption pursuant to which
such Lender shall have become a party 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 if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 10.01 or in accordance with
the latest unrevoked direction from such party to the Administrative Agent and
each Borrower given in accordance with this Section 10.01.
Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or
Alcoa may, in its discretion, agree to accept notices and other communications
to it hereunder by electronic communications pursuant to procedures approved by
it; provided that approval of such procedures may be limited to particular
notices or communications.
Any notice hereunder shall be effective upon receipt. Any notice or
other communication received on a day which is not a Business Day or after
business hours in the place of receipt shall be deemed to be served on the next
following Business Day in such place. Any notice given to Alcoa shall be deemed
to have been duly given to each other Borrower at the same time and in the same
manner.
SECTION 10.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by any Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Lenders and shall survive the making by the Lenders of the Loans, regardless of
any investigation made by the Lenders or on their behalf, 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 been terminated.
46
SECTION 10.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by Alcoa and the Administrative Agent and when
the Administrative Agent shall have received copies hereof which, when taken
together, bear the signatures of each Lender, and thereafter shall be binding
upon and inure to the benefit of the Borrowers, the Administrative Agent and
each Lender and their respective successors and assigns, except that none of the
Borrowers shall have the right to assign its rights hereunder or any interest
herein without the prior consent of all the Lenders.
SECTION 10.04. Successors and Assigns; Additional Borrowing
Subsidiaries. (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 (i) the Borrowers may not assign or
otherwise transfer any of their rights or obligations hereunder (except as
provided in Section 10.04(e)) without the prior written consent of each Lender
(and any attempted assignment or transfer by the Borrowers without such consent
shall be null and void) and (ii) no Lender may assign or otherwise transfer its
rights or obligations hereunder except in accordance with this Section. 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, Participants (to the extent provided in paragraph (c) of this
Section) 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) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, 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); with the prior written
consent (such consent not to be unreasonably withheld) of:
(A) Alcoa, provided that no consent of Alcoa shall be required
for an assignment to a Lender, an Affiliate of a Lender, an Approved
Fund (as defined below) or, if an Event of Default under clause (a),
(b), (g) or (h) of Article VII has occurred and is continuing, any
other assignee; and
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment to an
assignee that is a Lender immediately prior to giving effect to such
assignment.
(ii) Assignments shall be subject to the following conditions:
(A) 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 Assumption with respect to such assignment
is delivered to the Administrative Agent) shall not be less than
$5,000,000 unless each of Alcoa and the Administrative Agent otherwise
consent,
47
provided that no such consent of Alcoa shall be required if an Event
of Default under clause (a), (b), (g) or (h) of Article VII has
occurred and is continuing);
(B) 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;
(C) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500;
(D) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire; and
(E) in the case of an assignment to a CLO (as defined below), the
assigning Lender shall retain the sole right to approve any amendment,
modification or waiver of any provision of this Agreement, provided
that the Assignment and Assumption between such Lender and such CLO
may provide that such Lender will not, without the consent of such
CLO, agree to any amendment, modification or waiver described in the
proviso to Section 10.08(b) that affects such CLO.
For purposes of this Section 10.04(b), the terms "Approved Fund" and
"CLO" have the following meanings:
"Approved Fund" means (a) a CLO and (b) with respect to any Lender
that is a fund which 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.
"CLO" means any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, 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 a Lender or an Affiliate of such
Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, 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 Assumption, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption 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 2.12,
2.14, 2.18 and 10.05). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section
48
10.04 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 (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of
the Borrowers, shall maintain at one of its offices a copy of each
Assignment and Assumption 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 in the absence of manifest error, 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.
(v) Upon its receipt of a duly completed Assignment and Assumption
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 (i) accept
such Assignment and Assumption, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to Alcoa. No
assignment shall be effective for purposes of this Agreement unless it has
been recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of any Borrower and the
Administrative Agent, 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 (A) such Lender's obligations under this Agreement
shall remain unchanged, (B) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (C) 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 proviso to Section 10.08(b) that affects such Participant.
Subject to paragraph (c)(ii) of this Section, Alcoa agrees that each Participant
shall be entitled to the benefits of Sections 2.12 and 2.18 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each Participant
also shall be entitled to the benefits of
49
Section 10.06 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.16 as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.12 or 2.18 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 Alcoa's prior written consent.
(d) 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 the other provisions of this Section 10.04 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.
(e) Unless an Event of Default has occurred and is continuing, Alcoa
at any time and from time to time may designate any wholly-owned Subsidiary to
be a Borrowing Subsidiary upon the completion of the following: (i) each of
Alcoa and such Subsidiary shall have executed and delivered to the
Administrative Agent a Designation of Borrowing Subsidiary and (ii) such
Subsidiary shall have complied with Section 4.03, whereupon (A) such Subsidiary
shall become a party hereto and shall have the rights and obligations of a
Borrowing Subsidiary hereunder and (B) the obligations of such Subsidiary shall
become part of the Borrowing Subsidiary Obligations and the guarantee of Alcoa
pursuant to Article VIII hereof shall apply thereto to the same extent that it
applies to the other Borrowing Subsidiary Obligations, if any (the date on which
any such designation shall occur being called a "Designation Date").
SECTION 10.05. Expenses; Indemnity. (a) Alcoa agrees to pay or cause
one or more other Borrowers to pay all reasonable out-of-pocket expenses
incurred by the Administrative Agent in connection with the preparation of this
Agreement or in connection with any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions hereby
contemplated shall be consummated) or incurred by the Administrative Agent or
any Lender in connection with the enforcement of their rights in connection with
this Agreement or in connection with the Loans made hereunder, including the
reasonable fees, charges and disbursements of Cravath, Swaine & Moore, counsel
for the Administrative Agent, and, in connection with any such enforcement, the
reasonable fees, charges and disbursements of any other counsel for the
Administrative Agent or any Lender. Alcoa further agrees to indemnify or cause
one or more other Borrowers to indemnify the Lenders from and hold them harmless
against any documentary taxes, assessments or charges made by any Governmental
Authority by reason of the execution and delivery of this Agreement.
(b) Alcoa agrees to indemnify or cause one or more other Borrowers to
indemnify the Administrative Agent, each Lender and each of their respective
Affiliates, directors, officers, employees and agents (each such person being
called an "Indemnitee") against, and to hold or cause one or more other
Borrowers to hold each
50
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees, charges and disbursements,
incurred by or asserted against any Indemnitee arising out of, in any way
connected 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 thereto of their respective obligations thereunder or the
consummation of the transactions contemplated thereby, (ii) the use of the
proceeds of the Loans or (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not 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. The Administrative Agent and each Lender agrees
to promptly notify Alcoa of any claims relating to clauses (i), (ii) or (iii) of
the next preceding sentence; provided, however, that any failure to deliver any
such notice shall not relieve Alcoa from its obligations under this paragraph
(b).
(c) The provisions of this Section 10.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement, or any investigation made by or on behalf of the
Administrative Agent or Lender. All amounts due under this Section 10.05 shall
be payable on written demand therefor.
SECTION 10.06. 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 indebtedness at any time owing by such Lender or its
Affiliates to or for the credit or the account of any Borrower against any of
and all the obligations of such Borrower (or, in the case of Alcoa, any of and
all the obligations of any Borrowing Subsidiary) 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 or otherwise 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 10.07. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 10.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent or any Lender in exercising any power or right 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.
51
The rights and remedies of the Administrative Agent and the Lenders hereunder
are cumulative and are not exclusive of any rights or remedies which 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) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on any Borrower in any case shall entitle such
Borrower to any further notice or shall entitle such Borrower or any other
Borrower to notice or demand in similar or other circumstances.
(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; provided, however, that
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan or date fixed for payment of any Facility Fee, or waive
or excuse any such payment or any part thereof, or decrease the rate of interest
on any Loan, without the prior written consent of each Lender affected thereby,
(ii) change or extend the Commitment or decrease the Facility Fees of any Lender
without the prior written consent of such Lender, (iii) amend or modify the
provisions of Section 2.14, the provisions of Article VIII, the provisions of
this Section or the definition of "Required Lenders", without the prior written
consent of each Lender or (iv) amend, modify or otherwise affect the rights or
duties of the Administrative Agent hereunder without the prior written consent
of such Agent. Each Lender and each assignee thereof shall be bound by any
waiver, consent, amendment or modification authorized by this Section.
SECTION 10.09. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the applicable interest rate, together
with all fees and charges which are treated as interest under applicable law
(collectively the "Charges"), as provided for herein or in any other document
executed in connection herewith, or otherwise contracted for, charged, received,
taken or reserved by any Lender, shall exceed the maximum lawful rate (the
"Maximum Rate") which may be contracted for, charged, taken, received or
reserved by such Lender in accordance with applicable law, the rate of interest
payable to such Lender, together with all Charges payable to such Lender, shall
be limited to the Maximum Rate.
SECTION 10.10. Entire Agreement. This Agreement and any fee
arrangements related hereto constitute the entire contract between the parties
relative to the subject matter hereof. Any previous agreement among the parties
with respect to the subject matter hereof is superseded by this Agreement and
the fee arrangements related hereto.
SECTION 10.11. 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 respect of any litigation directly or indirectly arising out
of, under or in connection with this Agreement. 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,
52
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, as applicable, by, among other things, the mutual waivers
and certifications in this Section 10.11.
SECTION 10.12. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 10.13. 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, and shall become
effective as provided in Section 10.03.
SECTION 10.14. 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 are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 10.15. Jurisdiction, Consent to Service of Process. (a) Each
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, 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 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.
(b) 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 New York State or
Federal court. 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.
(c) 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
53
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 10.16. Conversion of Currencies. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum due hereunder
in dollars into another currency, the parties hereto agree, to the fullest
extent that they may legally and effectively do so, that the rate of exchange
used shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase dollars with such other currency in The City
of New York, on the Business Day immediately preceding the day on which final
judgment is given.
(b) The obligation of each Borrower in respect of any sum due to any
Lender hereunder in dollars shall, to the extent permitted by applicable law,
notwithstanding any judgment in a currency other than dollars, be discharged
only to the extent that on the Business Day following receipt of any sum
adjudged to be so due in the judgment currency such Lender may in accordance
with normal banking procedures purchase dollars in the amount originally due to
such Lender with the judgment currency. If the amount of dollars so purchased is
less than the sum originally due to such Lender, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender against the resulting loss.
IN WITNESS WHEREOF, Alcoa, the Administrative Agent and the Lenders have
caused this Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
ALCOA INC.,
by /s/ William B. Plummer
----------------------------------
Name: William B. Plummer
Title: Vice President and Treasurer
JPMORGAN CHASE BANK,
individually and as
Administrative Agent,
by
----------------------------------
Name:
Title:
SIGNATURE PAGE TO THE
ALCOA INC.
FIVE-YEAR REVOLVING CREDIT
AGREEMENT
LENDER:
by:
---------------------------------
Name:
Title:
by:
---------------------------------
Name:
Title:
EXHIBIT A
TO CREDIT AGREEMENT
[FORM OF]
Assignment and Assumption
Reference is made to the Five-Year Revolving Credit Agreement dated as
of April 25, 2003 (as amended from time to time, the "Credit Agreement"), among
Alcoa Inc. ("Alcoa"), a Pennsylvania corporation, certain subsidiaries of Alcoa,
the Lenders, and JPMorgan Chase Bank, as the Administrative Agent for the
Lenders. Terms defined in the Credit Agreement are used herein with the same
meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the Assignment Effective Date set forth on the
reverse hereof, the interests set forth on the reverse hereof (the "Assigned
Interest") in the Assignor's rights and obligations under the Credit Agreement,
including, without limitation, the Commitment of the Assignor on the Assignment
Effective Date and the Loans owing to the Assignor which are outstanding on the
Assignment Effective Date, together with unpaid interest accrued on the assigned
Loans to the Assignment Effective Date and the amount, if any, set forth on the
reverse hereof of the fees accrued to the Assignment Effective Date for the
account of the Assignor. From and after the Assignment Effective Date (i) the
Assignee shall be a party to and be bound by the provisions of the Credit
Agreement and, to the extent of the interests assigned by this Assignment and
Assumption, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent of the interests assigned by this Assignment and
Assumption, relinquish its rights and be released from its obligations under the
Credit Agreement.
2. This Assignment and Assumption is being delivered to the
Administrative Agent together with (i) if the Assignee is a Lender and is
organized under the laws of a jurisdiction outside the United States, the forms
specified in Section 2.18(g) of the Credit Agreement, duly completed and
executed by such Assignee, (ii) if the Assignee is not already a Lender under
the Credit Agreement, an Administrative Questionnaire in the form of Exhibit B
to the Credit Agreement and (iii) a processing and recordation fee of $3,500.
3. This Assignment and Assumption shall be governed by and construed
in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Assignment Effective Date of Assignment:
Percentage Assigned of Applicable
Facility/Commitment(set forth, to at least
8 decimals, as a percentage of the Facility and
Facility/ Principal the aggregate Commitments of all Lenders
Commitment Amount Assigned thereunder)
- ----------------------- --------------- -----------------------------------------------
Commitment $ %
Loan: $ %
Fees Assigned (if any): $ %
The terms set forth above and on the reverse side hereof are hereby
agreed to:
, as Assignor Accepted*/
- ---------------
ALCOA INC.,
by: by:
---------------------------------- ------------------------------------
Name: Name:
Title: Title:
, as Assignee JPMORGAN CHASE BANK
- ---------------
by: by:
---------------------------------- ------------------------------------
Name: Name:
Title: Title:
- ----------
*/ To be completed to the extent consents are required under Section 10.04(b) of
the Credit Agreement.
EXHIBIT B
TO CREDIT AGREEMENT
ADMINISTRATIVE QUESTIONNAIRE
ALCOA INC.
Please accurately complete the following information and return via FAX to the
attention of Bang Tran (713-750-2223) at JPMorgan Chase Bank as soon as
possible.
PHONE NUMBER: FAX NUMBER:
------------- -------------
LEGAL NAME OF LENDER (TO APPEAR ON THE SIGNATURE LINE IN DOCUMENTATION):
- -----------------------------------------------------
GENERAL INFORMATION - DOMESTIC LENDING OFFICE:
Institution Name:
----------------------------
Street Address:
----------------------------
City, State, Zip Code:
----------------------------
GENERAL INFORMATION - LIBOR LENDING OFFICE:
Institution Name:
----------------------------
Street Address:
----------------------------
City, State, Zip Code:
----------------------------
TAX WITHHOLDING:
Non-Resident Alien: Yes* No*
----- ------
*Form 4224 Enclosed
Tax ID Number:
----------------------------
CONTACTS/NOTIFICATION METHODS:
CREDIT CONTACTS:
Primary Contact:
----------------------------
Street Address:
----------------------------
City, State, Zip Code:
----------------------------
Phone Number:
----------------------------
FAX Number:
----------------------------
Backup Contact:
----------------------------
Street Address:
------------------------
City, State, Zip Code:
----------------------------
Phone Number:
----------------------------
FAX Number:
----------------------------
ADMINISTRATIVE CONTACTS - BORROWING, PAYMENTS, INTEREST, ETC...
Contact(s):
----------------------------
Street Address:
----------------------------
City, State, Zip Code:
----------------------------
Phone Number:
----------------------------
FAX Number:
----------------------------
ACCOUNT INFORMATION - Please provide only one set of instructions for all types
of payments:
Name of Bank where funds are to be transferred:
--------------------------------------------------
Routing Transit/ABA number of Bank where funds are to be transferred:
--------------------------------------------------
Name of Account:
----------------------------
Account Number:
----------------------------
Additional Information:
----------------------------
- ----------
It is very important that all of the above information is accurately filled in
and promptly returned. If there is someone other than yourself who should
receive this questionnaire, please notify us of their name and FAX number and we
will FAX them a copy of the questionnaire.
EXHIBIT C
TO CREDIT AGREEMENT
[Letterhead of]
ALCOA
April 25, 2003
JPMorgan Chase Bank, as Agent
and each of the Lenders party to the
Agreement referred to below
270 Park Avenue
New York, NY 10017
Ladies and Gentlemen:
I am Counsel of Alcoa Inc. ("Alcoa") and in such capacity have represented Alcoa
in connection with the Five-Year Revolving Credit Agreement dated as of April
25, 2003 (the "Agreement"), among Alcoa, certain subsidiaries of Alcoa, the
Lenders and JPMorgan Chase Bank, as the Administrative Agent. This opinion is
rendered to you pursuant to Section 4.01(a) of the Agreement. Capitalized terms
used but not defined herein shall have the meanings assigned to them in the
Agreement.
In rendering the opinion expressed below, I have examined, either personally or
indirectly through other counsel, the originals or conformed copies of the
Agreement and such corporate records, agreements and instruments of Alcoa and
its Subsidiaries, certificates of public officials and of officers of Alcoa and
its Subsidiaries, and such other documents and records as I have deemed
appropriate as a basis for the opinions hereinafter expressed.
Based upon the foregoing and subject to the qualifications stated herein, I am
of the opinion that:
1. Alcoa is a corporation duly organized, validly existing and in good standing
under the laws of the Commonwealth of Pennsylvania and is duly qualified to do
business as a foreign corporation and is in good standing in all other
jurisdictions in which the ownership of its properties or the nature of its
activities or both makes such qualification necessary, except to the extent that
failure to be so qualified would not result in a Material Adverse Effect.
2. Alcoa has corporate power and authority to execute, deliver and carry out the
provisions of the Agreement, to borrow under the Agreement and to perform its
obligations thereunder and all such action has been duly and validly authorized
by all necessary corporate proceedings on its part.
3. The Agreement has been duly executed and delivered by Alcoa and constitutes
the legal, valid and binding obligation of Alcoa enforceable against Alcoa in
accordance with its terms, except as limited by bankruptcy, insolvency or other
similar laws of general application affecting the enforcement of creditors'
rights or by general principles of equity limiting the availability of equitable
remedies.
4. No authorization, consent, approval, license, exemption or other action by,
and no registration, qualification, designation, declaration or filing with, any
Governmental Authority is necessary in connection with Alcoa's execution and
delivery of the Agreement, the consummation by Alcoa of the transactions
contemplated therein or Alcoa's performance of or compliance with the terms and
conditions thereof, except as set forth on Schedule 3.04 to the Agreement.
5. The execution and delivery by Alcoa of the Agreement, the consummation by
Alcoa of the transactions contemplated thereby or performance by Alcoa of or
compliance with the terms and conditions thereof will not (a) violate any law,
constitution, statute, treaty, regulation, rule, ordinance, order, injunction,
writ, decree or award of any Governmental Authority to which it is subject, (b)
conflict with or result in a breach or default under its charter or by-laws, (c)
to the best of my knowledge, conflict with or result in a breach or default
which is material in the context of the Agreement under any agreement or
instrument to which Alcoa is a party or by which it or any of its properties,
whether now owned or hereafter acquired, may be subject or bound or (d) result
in the creation or imposition of any Lien prohibited by Section 6.01 of the
Agreement upon any property or assets of Alcoa, whether now owned or hereafter
acquired.
6. Except as set forth in the financial statements referred to in Section 3.06
of the Agreement, any Exchange Act Report or otherwise disclosed on Schedule
3.08 to the Agreement, there is no pending or, to my knowledge, threatened
proceeding by or before any Governmental Authority against Alcoa or any of its
Subsidiaries which in my opinion is likely to result in a Material Adverse
Effect.
7. Alcoa is not an "investment company" as defined in, or subject to regulation
under, the Investment Company Act of 1940, and Alcoa is exempted as a "holding
company" as defined in the Public Utility Holding Company Act of 1935.
I am a member of the bar of the Commonwealth of Pennsylvania and my opinion is
limited to the laws of the Commonwealth of Pennsylvania and the laws of the
United States of America. I express no opinion herein as to whether a court
would apply New York law to any particular subject matter hereof. To the extent
that the laws of the State of New York or, contrary to the agreement of the
parties, the laws of any other State govern the documents referenced herein, you
may rely on my opinion with respect to
such laws to the extent that the laws of such state or states are substantially
the same as the laws of the Commonwealth of Pennsylvania, as to which sameness I
express no opinion.
Very truly yours,
Thomas F. Seligson
19W
EXHIBIT D
TO CREDIT AGREEMENT
[FORM OF]
DESIGNATION OF BORROWING SUBSIDIARY
Reference is made to the Five-Year Revolving Credit Agreement dated as
of April 25, 2003 (as amended from time to time, the "Credit Agreement"), among
Alcoa Inc. ("Alcoa"), a Pennsylvania corporation, certain subsidiaries of Alcoa,
the Lenders and JPMorgan Chase Bank, as the Administrative Agent for the
Lenders. Terms defined in the Credit Agreement are used herein with the same
meanings.
1. Alcoa hereby designates [_________], a [_______] corporation (the
"Subsidiary"), effective as of [_____________], 20[__] (the "Designation Date"),
as a Borrowing Subsidiary under the Credit Agreement. The Subsidiary hereby
makes and agrees to be bound by all the representations, warranties and
agreements set forth in Article III, V and VI of the Credit Agreement. From and
after the Designation Date, the Subsidiary shall become a party to the Credit
Agreement and shall have the rights and obligations of a Borrowing Subsidiary
thereunder. Alcoa agrees that its guarantee pursuant to Article VIII of the
Credit Agreement shall apply to the Borrowings of the Subsidiary.
2. This Designation of Borrowing Subsidiary is being delivered to the
Administrative Agent together with the documents set forth in Section 4.03(a).
3. This Designation of Borrowing Subsidiary shall be governed by and
construed in accordance with the laws of the State of New York.
The terms set forth above are hereby agreed to:
[___________________], as Subsidiary,
by
------------------------------------
Name:
Title:
ALCOA INC.,
by
------------------------------------
Name:
Title:
Accepted:
JPMORGAN CHASE BANK, as the Administrative Agent
by
--------------------------------
Name:
Title:
SCHEDULE 2.01
Contact Person
Name and Address and Telephone
of the Lenders and Telecopy Numbers Commitment (U.S.$)
- ------------------------------------- --------------------- ------------------
JPMorgan Chase Bank James Ramage $ 104,166,667
270 Park Avenue, Tel: 212-270-1373
New York, NY 10017 Fax: 212-270-5100
Citibank, N.A. Ray Dunning 100,000,000
399 Park Avenue, Tel: 212-816-8259
New York, NY 10043 Fax: 212-816-8052
UBS AG, Stamford Branch Denise Conzo 100,000,000
677 Washington Boulevard Tel: 203-719-3815
Stamford, Connecticut 06901 Fax: 203-719-3888
Credit Suisse First Boston Vitaly Butenko 91,666,667
11 Madison Avenue, 20th Fl. Tel: 212-325-8319
New York, NY 10010 Fax: 212-325-1681
Deutsche Bank AG Oliver Schwarz 83,333,333
31 West 52nd Street, 24th Fl. Tel: 212-469-8610
New York, NY 10019 Fax: 212-469-2930
ABN AMRO Bank, N.V. Brendan Korb 83,333,333
500 Park Avenue, Tel: 312-904-1760
New York, NY 10022 Fax: 312-904-6387
Mellon Bank, N.A. Robert Reichenbach 75,000,000
One Mellon Bank Center, Tel: 412-236-0567
Pittsburgh, PA 15258-0001 Fax: 412-236-1914
Morgan Stanley Bank Jaap Tonckens 58,333,333
1585 Broadway Tel: 212-761-1052
New York, 10036 Fax: 212-761-0322
Bank of America, N.A. Dennis Amato 50,000,000
901 Main Street, 67th Fl. Tel: 212-847-6705
Dallas, TX 75202 Fax: 212-847-6721
BNP Paribas Christopher Criswell 50,000,000
787 Seventh Avenue, Tel: 212-841-3404
New York, NY 10019 Fax: 212-841-3049
Australian and New Zealand Peter Gray 47,500,000
Banking Group Ltd. Tel: 212-801-9739
1177 Avenue of the Americas, Fax: 212-556-4839
New York, NY 10036
The Bank of Tokyo-Mitsubishi, Ltd., Mark Marron 33,333,333
New York Branch Tel: 212-782-4337
1251 Avenue of the Americas, Fax: 212-782-6440
New York, NY 10022
Banco Bilbao Vizcaya Argentaria, S.A. Miguel Lara 33,333,333
1345 Avenue of the Americas, Tel: 212-728-1664
New York, NY 10105 Fax: 212-333-2904
2
Contact Person
Name and Address and Telephone
of the Lenders and Telecopy Numbers Commitment (U.S.$)
- ------------------------------------- --------------------- ------------------
Bank One, N.A. Edmond Thompson 33,333,333
153 West 51st St. Tel: 212-373-1106
New York, NY 10019 Fax: 212-373-1388
SANPAOLO IMI S.P.A. Luca Sacchi 28,333,333
245 Park Avenue, 35th Fl. Tel: 212-692-3130
New York, NY 10167 Fax: 212-692-3178
National Australia Bank Limited Craig Manning 16,666,667
200 Park Avenue, 34th Fl. Tel: 212-916-9509
New York, NY 10166 Fax: 212-983-7360
The Bank of New York Ernest Fung 11,666,667
1 Wall Street Tel: 212-635-6805
New York, NY 10286 Fax: 212-635-7978
Total: $1,000,000,000.00
=================
SCHEDULE 3.04
Governmental Approvals
International Capital Form S filed with the Federal Reserve Bank of New York.
SCHEDULE 3.08
Litigation
None.
SCHEDULE 6.01(a)
- ---------------------------------------------------------------------------------------------------------------------------------
TAX TAX EXEMPT Credit
LEASED EXEMPT DEBT (Paid Acc Rec Sec Facility
ENTITY EQUIP MORTGAGES DEBT Off)* Prog (Paid Off)*
- ---------------------------------------------------------------------------------------------------------------------------------
Alcoa Inc.- Consolidated 1,410,400 125,000
- ---------------------------------------------------------------------------------------------------------------------------------
1,524,611
- ---------------------------------------------------------------------------------------------------------------------------------
123,330,833
- ---------------------------------------------------------------------------------------------------------------------------------
Reynolds Metals Company 1,525,253 474,565 181,735,000
- ---------------------------------------------------------------------------------------------------------------------------------
Alcoa Inc. - Consolidated 14,266
- ---------------------------------------------------------------------------------------------------------------------------------
40,265,000
- ---------------------------------------------------------------------------------------------------------------------------------
Alcoa Architectural Products SAS - Cons 8,603,547
- ---------------------------------------------------------------------------------------------------------------------------------
Reynolds Systems Ireland Limited - Cons 172,978
- ---------------------------------------------------------------------------------------------------------------------------------
Automotive Castings - Cons 18,800
- ---------------------------------------------------------------------------------------------------------------------------------
Alcoa Manufacturing(GB)Limited - Consolidated 8,476
- ---------------------------------------------------------------------------------------------------------------------------------
53,993,046
- ---------------------------------------------------------------------------------------------------------------------------------
934,433
- ---------------------------------------------------------------------------------------------------------------------------------
Alcoa Latin America Holding Co.(ALAHC)-Cons 54,500
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
Kawneer U.K. Ltd - Consolidated 70,861 42,630
- ---------------------------------------------------------------------------------------------------------------------------------
Alcoa Building Products (ABP) 70,261
- ---------------------------------------------------------------------------------------------------------------------------------
Eastalco - Consolidation 10,687,006
- ---------------------------------------------------------------------------------------------------------------------------------
Alumax of South Carolina 27,450,000
- ---------------------------------------------------------------------------------------------------------------------------------
Alcoa Extrusions Inc. PA 9,000,000
- ---------------------------------------------------------------------------------------------------------------------------------
Kawneer Co., Inc. 3,624
- ---------------------------------------------------------------------------------------------------------------------------------
1,220
- ---------------------------------------------------------------------------------------------------------------------------------
6,098
- ---------------------------------------------------------------------------------------------------------------------------------
11,809
- ---------------------------------------------------------------------------------------------------------------------------------
1,236
- ---------------------------------------------------------------------------------------------------------------------------------
Baco Consumer Products Limited - Consolidated 29,895
- ---------------------------------------------------------------------------------------------------------------------------------
Huck S.A. 318,312
- ---------------------------------------------------------------------------------------------------------------------------------
Crystal Thermoplastics, Inc. 966,937
- ---------------------------------------------------------------------------------------------------------------------------------
Alcoa Inespal, S.A. 24,536 6,818
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
Alcoa Transformacion S.A. 43,982 1,275
- ---------------------------------------------------------------------------------------------------------------------------------
Alcoa World Alumina LLC 232,115
- ---------------------------------------------------------------------------------------------------------------------------------
Alcoa Chemie GMBH - Consolidated 1,345,130 2,065,032
- ---------------------------------------------------------------------------------------------------------------------------------
Tifton Aluminum Company, Inc. - Consolidated 10,000,000
- ---------------------------------------------------------------------------------------------------------------------------------
Alcoa Shanghai Aluminum Products - Consolidated 6,525,866
- ---------------------------------------------------------------------------------------------------------------------------------
Ivex Packaging Corporation * 34,965,000 302,271,415
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
Alcoa Closure Systems Japan, Ltd. - Consolidated 1,605,319
- ---------------------------------------------------------------------------------------------------------------------------------
Alumax Europe N.V. - Consolidated
- ---------------------------------------------------------------------------------------------------------------------------------
Alcoa Servicios, SA de CV - Consolidated 19,433
- ---------------------------------------------------------------------------------------------------------------------------------
Alcoa Wireless Network Services Inc. 101,214
- ---------------------------------------------------------------------------------------------------------------------------------
Alcoa Inter-America, Inc. 40,000,000
- ---------------------------------------------------------------------------------------------------------------------------------
=================================================================================================================================
TOTAL 61,814,287 19,572,255 403,434,776 34,965,000 40,000,000 302,271,415
=================================================================================================================================
* Lien releases on paid-off debt in process