FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarter Ended September 30, 1999 Commission File Number 1-3610
ALCOA INC.
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 25-0317820
(State of incorporation) (I.R.S. Employer Identification No.)
201 Isabella Street, Pittsburgh, Pennsylvania 15212-5858
(Address of principal executive offices) (Zip Code)
Office of Investor Relations 412-553-3042
Office of the Secretary 412-553-4707
(Registrant's telephone number including area code)
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months,
and (2) has been subject to such filing requirements for the past
90 days.
Yes X No
As of October 18, 1999, 366,406,853 shares of common stock,
par value $1.00, of the Registrant were outstanding.
A07-15911
-1-
PART I - FINANCIAL INFORMATION
<TABLE>
<CAPTION>
Alcoa and subsidiaries
Condensed Consolidated Balance Sheet
(in millions)
(unaudited)
September 30 December 31
ASSETS 1999 1998
------------ -----------
<S> <C> <C>
Current assets:
Cash and cash equivalents (includes cash of $69.9 in
1999 and $131.1 in 1998) $ 211.9 $ 342.2
Short-term investments 85.1 39.4
Receivables from customers, less allowances:
1999-$62.6; 1998-$61.4 2,213.1 2,163.2
Other receivables 192.9 171.0
Inventories (B) 1,583.5 1,880.5
Deferred income taxes 185.6 198.0
Prepaid expenses and other current assets 282.3 230.8
--------- ---------
Total current assets 4,754.4 5,025.1
--------- ---------
Properties, plants and equipment, at cost 18,136.2 18,224.5
Less, accumulated depreciation, depletion and
Amortization 9,157.7 9,091.0
--------- ---------
Net properties, plants and equipment 8,978.5 9,133.5
--------- ---------
Goodwill, net of accumulated amortization of $205.8 in
1999 and $179.3 in 1998 1,333.1 1,414.1
Other assets 1,798.5 1,889.8
--------- ---------
Total assets $16,864.5 $17,462.5
========= =========
LIABILITIES
Current liabilities:
Short-term borrowings $ 611.9 $ 431.0
Accounts payable, trade 1,167.2 1,044.3
Accrued compensation and retirement costs 559.9 553.2
Taxes, including taxes on income 276.1 431.3
Other current liabilities 512.4 627.4
Long-term debt due within one year 48.0 181.1
--------- ---------
Total current liabilities 3,175.5 3,268.3
--------- ---------
Long-term debt, less amount due within one year (C) 2,668.9 2,877.0
Accrued postretirement benefits 1,749.8 1,840.1
Other noncurrent liabilities and deferred credits 1,488.0 1,587.1
Deferred income taxes 418.0 358.1
--------- ---------
Total liabilities 9,500.2 9,930.6
--------- ---------
MINORITY INTERESTS 1,409.0 1,476.0
--------- ---------
CONTINGENT LIABILITIES (D) - -
SHAREHOLDERS' EQUITY
Preferred stock 55.8 55.8
Common stock 394.7 394.7
Additional capital 1,712.3 1,675.9
Retained earnings 5,727.9 5,305.1
Treasury stock, at cost (1,310.0) (1,028.7)
Accumulated other comprehensive loss (E) (625.4) (346.9)
--------- ---------
Total shareholders' equity 5,955.3 6,055.
9 --------- ---------
Total liabilities and shareholders' equity $16,864.5 $17,462.5
========= =========
The accompanying notes are an integral part of the financial statements.
</TABLE>
-2-
<TABLE>
<CAPTION>
Alcoa and subsidiaries
Condensed Statement of Consolidated Income (unaudited)
(in millions, except per share amounts)
Third quarter Nine months
ended ended
September 30 September 30
------------- ------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
REVENUES
Sales $4,052.3 $4,108.9 $12,069.7 $11,141.0
Other income 38.5 47.8 77.7 94.2
------- ------- -------- --------
4,090.8 4,156.7 12,147.4 11,235.2
------- ------- -------- --------
COSTS AND EXPENSES
Cost of goods sold 3,119.7 3,235.8 9,387.7 8,670.7
Selling, general administrative and other
Expenses 202.0 217.8 596.5 531.2
Research and development expenses 33.6 28.8 91.4 81.2
Provision for depreciation, depletion and
amortization 223.8 233.2 663.2 604.1
Interest expense 51.1 59.0 153.2 140.0
------- ------- -------- --------
3,630.2 3,774.6 10,892.0 10,027.2
------- ------- -------- --------
EARNINGS
Income before taxes on income 460.6 382.1 1,255.4 1,208.0
Provision for taxes on income (F) 147.4 115.9 401.7 392.6
------- ------- -------- --------
Income from operations 313.2 266.2 853.7 815.4
Less: Minority interests' share (54.1) (48.5) (133.5) (180.7)
------- ------- -------- --------
NET INCOME $ 259.1 $ 217.7 $ 720.2 $ 634.7
======= ======= ======== ========
EARNINGS PER SHARE (G)
Basic $ .71 $ .61 $ 1.96 $ 1.84
======= ======= ======== ========
Diluted $ .69 $ .61 $ 1.91 $ 1.83
======= ======= ======== ========
Dividends paid per common share $ .20125 $ .1875 $ .60375 $ .5625
======= ======= ======== ========
The accompanying notes are an integral part of the financial statements.
</TABLE>
-3-
<TABLE>
<CAPTION>
Alcoa and subsidiaries
Condensed Statement of Consolidated Cash Flows (unaudited)
(in millions)
Nine months ended
September 30
------------
1999 1998
---- ----
<S> <C> <C>
CASH FROM OPERATIONS
Net income $ 720.2 $ 634.7
Adjustments to reconcile net income to cash from operations:
Depreciation, depletion and amortization 673.7 614.1
Increase (reduction) in deferred income taxes 89.2 (2.5)
Equity income before additional taxes, net of dividends (3.7) (18.0)
Gains from investing activities (12.0) -
Book value of asset disposals 11.3 30.9
Minority interests 133.5 180.7
Other 8.7 16.4
Changes in assets and liabilities, excluding the effects of
acquisitions and divestitures:
(Increase) reduction in receivables (153.8) 8.4
Reduction in inventories 286.7 110.7
Increase in prepaid expenses and other current assets (51.7) (75.2)
Reduction in accounts payable and accrued expenses (124.1) (18.1)
(Reduction) increase in taxes, including taxes on income (65.9) 77.5
Reduction in deferred hedging gains (62.7) (19.4)
Net change in noncurrent assets and liabilities (39.8) (136.3)
-------- --------
CASH FROM OPERATIONS 1,409.6 1,403.9
-------- --------
FINANCING ACTIVITIES
Net changes in short-term borrowings 181.4 322.9
Common stock issued and treasury stock sold 576.9 30.5
Repurchase of common stock (838.1) (293.5)
Dividends paid to shareholders (223.0) (193.2)
Dividends paid and return of capital to minority interests (64.2) (169.9)
Net change in commercial paper - 774.7
Additions to long-term debt 318.1 839.0
Payments on long-term debt (725.9) (1,015.8)
-------- --------
CASH (USED FOR) FROM FINANCING ACTIVITIES (774.8) 294.7
-------- --------
INVESTING ACTIVITIES
Capital expenditures (608.9) (594.7)
Acquisitions, net of cash acquired (52.2) (1,352.7)
Proceeds from the sale of subsidiaries 30.9 7.4
Additions to investments (89.8) (110.9)
Proceeds from the sale of assets 13.7 -
Net change in short-term investments (45.7) 42.3
Changes in minority interests (0.2) 37.8
Other (9.6) (9.0)
-------- --------
CASH USED FOR INVESTING ACTIVITIES (761.8) (1,979.8)
-------- --------
EFFECT OF EXCHANGE RATE CHANGES ON CASH (3.3) 1.5
-------- --------
CHANGES IN CASH
Net change in cash and cash equivalents (130.3) (279.7)
Cash and cash equivalents at beginning of year 342.2 800.8
-------- --------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 211.9 $ 521.1
======== ========
The accompanying notes are an integral part of the financial statements.
</TABLE>
-4-
Notes to Condensed Consolidated Financial Statements
(in millions)
A. Common Stock Split - On January 8, 1999, the board of directors
declared a two-for-one common stock split, which was distributed on
February 25, 1999 to shareholders of record at the close of business
on February 8, 1999. In this report, all per-share amounts and
number of shares have been restated to reflect the stock split.
B. Inventories
<TABLE>
<CAPTION>
September 30 December 31
1999 1998
------------ -----------
<S> <C> <C>
Finished goods $ 378.9 $ 418.2
Work in process 557.0 591.7
Bauxite and alumina 277.0 346.5
Purchased raw materials 225.1 361.1
Operating supplies 145.5 163.0
------ -------
$1,583.5 $1,880.5
======= =======
</TABLE>
Approximately 55% of total inventories at September 30, 1999 were
valued on a LIFO basis. If valued on an average cost basis, total
inventories would have been $722.7 and $702.8 higher at September 30,
1999 and December 31, 1998, respectively.
C. Long-Term Debt - In 1998, Alcoa issued $300 of thirty-year 6.75%
bonds due 2028, $250 of 6.5% term debt due in 2018 and $200 of 6.125%
term debt due in 2005. Also, in 1998, Alcoa issued $1,100 of
commercial paper. Current commercial paper borrowings total
approximately $1,300. The proceeds from these borrowings were used to
fund acquisitions and for general corporate purposes.
D. Contingent Liabilities - Various lawsuits, claims and
proceedings have been or may be instituted or asserted against
Alcoa, including those pertaining to environmental, product
liability and safety and health matters. While the amounts
claimed may be substantial, the ultimate liability cannot now be
determined because of the considerable uncertainties that exist.
Therefore, it is possible that results of operations or liquidity
in a particular period could be materially affected by certain
contingencies. However, based on facts currently available,
management believes that the disposition of matters that are
pending or asserted will not have a materially adverse effect on
the financial position of the company.
Alcoa Aluminio (Aluminio) is currently party to a
hydroelectric construction project in Brazil. Total estimated
construction costs are $600, of which the company's share is 24%.
In the event that other participants in this project fail to
fulfill their financial responsibilities, Aluminio may be liable
for its pro rata share of the deficiency.
Alcoa of Australia (AofA) is party to a number of natural gas
and electricity contracts that expire between 2001 and 2022.
Under these take-or-pay contracts, AofA is obligated to pay for a
minimum amount of natural gas or electricity even if these
commodities are not required for operations. Commitments related
to these contracts total $163 in 1999, $166 in 2000, $162 in 2001,
$158 in 2002, $156 in 2003 and $2,125 thereafter. Expenditures
under these contracts totaled $171 in 1998.
-5-
E. Comprehensive Income
<TABLE>
<CAPTION>
Third quarter Nine months
ended Ended
September 30 September 30
------------- ------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net income $259.1 $217.7 $720.2 $634.7
Other comprehensive income (loss) (179.0) 24.0 (278.5) (22.6)
----- ----- ----- -----
Comprehensive income $ 80.1 $241.7 $441.7 $612.1
===== ===== ===== =====
See footnote L for additional detail regarding the translation
adjustment component of other comprehensive income.
</TABLE>
F. Income Taxes - The income tax provision for the period is based on
the effective tax rate expected to be applicable for the full year.
The 1999 third quarter rate of 32% differs from the statutory rate
primarily because of lower taxes on foreign income.
G. Earnings Per Share - Basic earnings per share (EPS) amounts are
computed by dividing earnings applicable to common shareholders by
the average number of common shares outstanding. Diluted EPS amounts
assume the issuance of common stock for all potentially dilutive
equivalents outstanding. Anti-dilutive outstanding stock options
have been excluded from the diluted EPS calculation. The detail of
basic and diluted EPS follows:
<TABLE>
<CAPTION>
Third quarter Nine months
ended ended
September 30 September 30
------------- ------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net income $259.1 $217.7 $720.2 $634.7
Less: Preferred stock dividends .5 .5 1.5 1.5
----- ----- ----- -----
Income available to common $258.6 $217.2 $718.2 $633.2
stockholders
Weighted average shares outstanding 366.6 357.3 366.9 343.8
Basic EPS $ .71 $ .61 $ 1.96 $ 1.84
===== ===== ===== =====
Effect of dilutive securities:
Add: Shares issuable upon exercise
of outstanding stock options 8.6 1.5 8.6 1.5
Diluted shares outstanding 375.2 358.8 375.5 345.3
Diluted EPS $ .69 $ .61 $ 1.91 $ 1.83
===== ===== ===== =====
</TABLE>
H. Acquisitions - In August 1999, Alcoa and the Reynolds Metals
Company (Reynolds) announced they had reached a definitive agreement
to merge. Under the agreement, Alcoa will acquire all of the
outstanding shares of Reynolds at an exchange rate of 1.06 shares of
Alcoa common stock for each share of Reynolds. The value of the
transaction is approximately $4,800. The combined company will have
annual revenues of $22,500, approximately 120,000 employees and will
operate over 300 locations in 36 countries around the world. The
acquisition is subject to the expiration of antitrust waiting periods
and other customary conditions including approval by stockholders of
Reynolds owning a majority of the Reynolds shares.
In February 1998, Alcoa acquired Inespal, S.A. of Madrid, Spain.
Alcoa paid approximately $150 in cash and assumed $260 of debt and
liabilities in exchange for substantially all of Inespal's
businesses. The acquisition included an alumina refinery, three
aluminum smelters, three aluminum rolling facilities, two extrusion
plants and an administrative center.
-6-
In July 1998, Alcoa completed its acquisition of Alumax Inc.
(Alumax) for a total consideration of approximately $3,800. The
purchase price consisted of cash of approximately $1,500, stock of
approximately $1,300 and assumed debt of approximately $1,000.
Alumax operates a number of manufacturing facilities in 22 states,
Canada, Western Europe and Mexico.
Alcoa's acquisitions have been accounted for using the purchase
method. The purchase price has been allocated to the assets acquired
and liabilities assumed based on their estimated fair market values.
Any excess purchase price over the fair market value of the net
assets acquired has been recorded as goodwill.
The following presents pro forma information assuming that the
acquisition of 100% of Alumax by Alcoa had occurred at the beginning
of 1998. Adjustments that have been included to arrive at the pro
forma totals primarily include those related to acquisition
financing, the amortization of goodwill, the elimination of
transactions between Alcoa and Alumax and additional depreciation
related to the increase in basis that resulted from the transaction.
Tax effects from the pro forma adjustments noted above also have been
included at the 35% statutory rate.
<TABLE>
<CAPTION>
Nine months
Ended
September 30, 1998
------------------
<S> <C>
Sales $12,567.5
Net income 657.8
Basic earnings per share 1.77
Diluted earnings per share 1.76
</TABLE>
The pro forma results are not necessarily indicative of what actually
would have occurred if the transaction had been in effect for the
entire periods presented, are not intended to be a projection of
future results and do not reflect any cost savings that might be
achieved from the combined operations.
I. Recently Issued Accounting Standards - In June 1998, the Financial
Accounting Standards Board (FASB) issued SFAS 133, "Accounting for
Derivative Instruments and Hedging Activities." The standard requires
that entities value all derivative instruments at fair value and record
the instruments on the balance sheet. The standard also significantly
changes the requirements for hedge accounting. In June 1999, the FASB
approved a delay in the effective date of this standard until January
2001. The company believes that the adoption of the standard will have
a material impact on its financial statements. Upon adoption, Alcoa's
aluminum, foreign exchange and interest rate derivative contracts, as
well as certain underlying exposures, will be recorded on the balance
sheet at fair value. Management is currently assessing the details of
the standard and is preparing a plan of implementation.
J. Reclassifications - Certain amounts have been reclassified to
conform to current year presentation.
K. Segment Information - Alcoa is primarily a producer of aluminum
products. Its segments are organized by product on a worldwide basis.
Alcoa's management reporting system evaluates performance based on a
number of factors; however, the primary measure of performance is the
after-tax operating income (ATOI) of each segment. Nonoperating items
such as interest income, interest expense, foreign exchange
gains/losses and minority interest are excluded from segment profit. In
addition, certain expenses such as corporate general administrative
expenses, depreciation and amortization on corporate assets and certain
special items are not included in segment results.
Alcoa's products are used primarily by transportation (including
aerospace, automotive, rail and shipping), packaging, building and
construction, and industrial customers worldwide. Alcoa's reportable
segments include Alumina and chemicals, Primary metals, Flat-rolled
products and Engineered products. Businesses that do not fall into
these categories are listed as Other. The following details sales and
ATOI for each reportable segment for the three-month and nine-month
periods ended September 30, 1999 and 1998.
-7-
<TABLE>
<CAPTION>
Third quarter ended Alumina and Primary Flat-rolled Engineered
September 30, 1999 chemicals metals products products Other Total
<S> <C> <C> <C> <C> <C> <C>
Sales:
Third-party sales $473.9 $ 559.9 $1,273.0 $917.1 $828.4 $4,052.3
Intersegment sales 214.1 686.2 13.6 6.0 - 919.9
----- ------- ------- ----- ----- -------
Total sales $688.0 $1,246.1 $1,286.6 $923.1 $828.4 $4,972.2
===== ======= ======= ===== ===== =======
After-tax operating
Income $ 82.7 $ 167.8 $ 73.5 $ 42.2 $ 50.4 $ 416.6
Third quarter ended
September 30, 1998
Sales:
Third-party sales $398.4 $ 596.0 $1,308.6 $968.0 $832.3 $4,103.3
Intersegment sales 238.2 634.6 16.6 2.5 - 891.9
----- ------- ------- ----- ----- -------
Total sales $636.6 $1,230.6 $1,325.2 $970.5 $832.3 $4,995.2
===== ======= ======= ===== ===== =======
After-tax operating
Income $ 57.3 $ 91.2 $ 76.7 $ 44.8 $ 39.7 $ 309.7
</TABLE>
<TABLE>
<CAPTION>
Nine months ended Alumina and Primary Flat-rolled Engineered
September 30, 1999 chemicals metals products products Other Total
<S> <C> <C> <C> <C> <C> <C>
Sales:
Third-party sales $1,350.0 $1,612.2 $3,800.2 $2,798.7 $2,502.3 $12,063.4
Intersegment sales 665.9 2,024.5 39.1 13.0 - 2,742.5
------- ------- ------- ------- ------- --------
Total sales $2,015.9 $3,636.7 $3,839.3 $2,811.7 $2,502.3 $14,805.9
======= ======= ======= ======= ======= ========
After-tax operating
Income $ 204.2 $ 329.6 $ 210.9 $ 148.1 $ 148.2 $ 1,041.0
Nine months ended
September 30, 1998
Sales:
Third-party sales $1,394.5 $1,475.0 $3,608.4 $2,131.2 $2,522.4 $11,131.5
Intersegment sales 570.0 1,661.9 47.9 7.6 - 2,287.4
------- ------- ------- ------- ------- --------
Total sales $1,964.5 $3,136.9 $3,656.3 $2,138.8 $2,522.4 $13,418.9
======= ======= ======= ======= ======= ========
After-tax operating
income $ 248.7 $ 249.2 $ 239.7 $ 125.4 $ 127.3 $ 990.3
</TABLE>
-8-
The following table reconciles Alcoa's measure of segment profit to
consolidated net income.
<TABLE>
<CAPTION>
Third quarter Nine months
Ended Ended
September 30 September 30
------------- ------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Total after-tax operating income $416.6 $309.7 $1,041.0 $990.3
Elimination of intersegment profit (8.1) (4.0) (27.2) (16.0)
Unallocated amounts (net of tax):
Interest income 7.1 18.7 20.3 56.8
Interest expense (33.3) (38.4) (99.6) (91.1)
Minority interest (54.1) (48.5) (133.5) (180.7)
Mark-to-market gains (losses) 4.6 (2.7) 10.6 (43.6)
Corporate expense (33.5) (39.7) (110.4) (118.2)
Other (1) (40.2) 22.6 19.0 37.2
----- ----- ------ -----
Consolidated net income $259.1 $217.7 $ 720.2 $634.7
===== ===== ======= =====
<FN>
(1) Other is comprised of differences between segment and corporate
taxes, the results of internal hedging contracts between corporate and
the segments, external hedging gains and losses, LIFO charges and
credits and other miscellaneous items.
</TABLE>
L. Foreign Currency - Effective July 1, 1999, the Brazilian Real became
the functional currency for translating the financial statements of
Alcoa's 59%-owned Brazilian subsidiary, Alcoa Aluminio. Economic
factors and circumstances related to Aluminio's operations have changed
significantly since the devaluation of the Real in the 1999 first
quarter. Under SFAS 52, "Foreign Currency Translation," the change in
these facts and circumstances requires a change to Aluminio's
functional currency.
As a result of the change, at July 1, 1999, Alcoa's shareholders'
equity (cumulative translation adjustment) and minority interests were
reduced by $156 and $108, respectively. These amounts were driven
principally by a reduction in fixed assets.
One of the factors affecting the change in Aluminio's functional
currency was Alcoa's recent purchase of approximately $185 of
Aluminio's 7.5% secured export notes. The repurchase of these notes is
consistent with Alcoa's recent policy change regarding the manner in
which large subsidiaries are capitalized and will result in lower
overall financing costs to the company.
-9-
In the opinion of the company, the financial statements and
summarized financial data in this Form 10-Q report include all
adjustments, including those of a normal recurring nature,
necessary to fairly state the results for the periods. This
Form 10-Q report should be read in conjunction with the
company's annual report on Form 10-K for the year ended
December 31, 1998.
The financial information required in this Form 10-Q by Rule
10-01 of Regulation S-X has been subject to a review by
PricewaterhouseCoopers LLP, the company's independent
certified public accountants, as described in their report on
page 11.
-10-
Independent Accountant's Review Report
To the Shareholders and Board of Directors
Alcoa Inc. (Alcoa)
We have reviewed the unaudited condensed consolidated
balance sheet of Alcoa and subsidiaries as of September 30,
1999, the unaudited condensed statements of consolidated income
for the three-month and nine-month periods ended September 30,
1999 and 1998, and the unaudited condensed statement of
consolidated cash flows for the nine-month periods ended
September 30, 1999 and 1998, which are included in Alcoa's Form
10-Q for the period ended September 30, 1999. These financial
statements are the responsibility of Alcoa's management.
We conducted our review in accordance with standards
established by the American Institute of Certified Public
Accountants. A review of interim financial information
consists principally of applying analytical procedures to
financial data and making inquiries of persons responsible for
financial and accounting matters. It is substantially less in
scope than an audit conducted in accordance with generally
accepted auditing standards, the objective of which is the
expression of an opinion regarding the financial statements
taken as a whole. Accordingly, we do not express such an
opinion.
Based on our review, we are not aware of any material
modifications that should be made to the condensed consolidated
financial statements referred to above for them to be in
conformity with generally accepted accounting principles.
We have previously audited, in accordance with generally
accepted auditing standards, the consolidated balance sheet of
Alcoa and subsidiaries as of December 31, 1998, and the related
statements of consolidated income, shareholders' equity, and
cash flows for the year then ended (not presented herein). In
our report dated January 8, 1999, we expressed an unqualified
opinion on those consolidated financial statements. In our
opinion, the information set forth in the accompanying
condensed consolidated balance sheet as of December 31, 1998,
is fairly stated, in all material respects, in relation to the
consolidated balance sheet from which it has been derived.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Pittsburgh, Pennsylvania
October 6, 1999
-11-
Management's Discussion and Analysis of the
Results of Operations and Financial Condition
(dollars in millions, except share amounts and ingot prices; shipments
in thousands of metric tons (mt))
<TABLE>
<CAPTION>
Results of Operations
Principal income and operating data follow.
Third quarter ended Nine months ended
September 30 September 30
------------ ------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Sales $4,052.3 $4,108.9 $12,069.7 $11,141.0
Net income 259.1 217.7 720.2 634.7
Basic earnings per common share .71 .61 1.96 1.84
Diluted earnings per common share .69 .61 1.91 1.83
Shipments of aluminum products 1,100 1,133 3,349 2,777
Shipments of alumina 1,814 1,536 5,314 5,346
Alcoa's average realized ingot price .71 .67 .66 .69
</TABLE>
Earnings Summary
Alcoa reported 1999 third quarter net income of $259.1, a 19% increase
from the 1998 third quarter. The increase was due primarily to
improved cost performance and higher shipments of alumina and
fabricated products. These positive factors were partly offset by
lower prices for flat-rolled and engineered products. For the year-to-
date period, net income rose 13.5% to $720.2. Positive factors that
lead to the increase were higher volumes, which were driven by the
Alumax acquisition, along with cost reductions. Partially offsetting
these factors was the impact of lower prices and higher depreciation
and administrative costs, which resulted from the Alumax acquisition.
Revenues in the 1999 quarter fell 1.4% to $4.1 billion from the 1998
third quarter, and increased 8.3% from the 1998 nine-month period to
$12.1 billion. The decrease in revenues for the 1999 third quarter was
due to lower overall prices, which were partly offset by higher
shipments of alumina and fabricated products. The increase in the 1999
nine-month period from 1998 was the result of higher shipments which
more than offset the impact of lower aluminum prices. Higher volumes
for non-aluminum products also helped to boost revenues.
Annualized return on shareholders' equity was 15.7% for the 1999 year-
to-date period, compared with 17.1% in the 1998 quarter. The decline
is due to higher shareholders' equity in 1999, resulting primarily from
the Alumax acquisition in 1998, partially offset by higher earnings.
-12-
Segment Information
I. Alumina and chemicals
<TABLE>
<CAPTION>
Third quarter ended Nine months ended
September 30 September 30
------------ ------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Third-party alumina shipments 1,814 1,536 5,314 5,346
Third-party sales $473.9 $398.4 $1,350.0 $1,394.5
Intersegment sales 214.1 238.2 665.9 570.0
----- ----- ------- -------
Total sales $688.0 $636.6 $2,015.9 $1,964.5
===== ===== ======= =======
After-tax operating income $ 82.7 $ 57.3 $ 204.2 $ 248.7
</TABLE>
This segment's activities include the mining of bauxite, which is then
refined into alumina. The alumina is sold to internal and external
customers worldwide or is processed into industrial chemical products.
A majority of the third-party sales from this segment are derived from
alumina. Shipments of alumina were up 18% from the 1998 third quarter
due to improved operating performance and an increase in capacity at
the company's Australian refineries, along with higher production at
the St. Croix refinery. This, along with a 23% increase in realized
prices, drove a 45% increase in third-party alumina revenues.
For the nine-month period, alumina revenues rose 2% on a 3% increase in
prices. Third-party shipments fell 1% due to the Alumax acquisition.
Prior to the acquisition, Alumax had purchased alumina from Alcoa.
Accordingly, shipments to Alumax smelters which were recorded as third-
party sales, are now recorded as intersegment. Without the effects of
the Alumax acquisition, third-party alumina shipments would have been
up 12% for the year-to-date period.
After-tax operating income for this segment rose 44% to $82.7 for the
1999 third quarter, and fell 18% to $204.2 for the nine-month period.
The quarter-over-quarter increase is primarily due to higher prices and
shipments and improved cost performance. Year-over-year, lower
internal prices, partly offset by improved cost performance, resulted
in the decline.
In early October, Alcoa World Alumina (AWA) announced that it had
completed expansion of its Wagerup, Australia, alumina refinery. The
expansion resulted in a 9% capacity increase at the facility, bringing
total system capacity within Western Australia to 7.3 million metric
tons per year.
II. Primary metals
<TABLE>
<CAPTION>
Third quarter ended Nine months ended
September 30 September 30
------------ ------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Third-party aluminum shipments 335 390 1,059 951
Third-party sales $ 559.9 $ 596.0 $1,612.2 $1,475.0
Intersegment sales 686.2 634.6 2,024.5 1,661.9
------- ------- ------- -------
Total sales $1,246.1 $1,230.6 $3,636.7 $3,136.9
======= ======= ======= =======
After-tax operating income $ 167.8 $ 91.2 $ 329.6 $ 249.2
</TABLE>
-13-
This segment's primary focus is Alcoa's worldwide smelter system.
Primary metals receives alumina from the alumina and chemicals segment
and produces aluminum ingot to be used by a variety of Alcoa's other
segments, as well as sold to outside customers.
The sale of ingot represents over 90% of this segment's third-party
sales. Third-party ingot revenues fell 10% from the 1998 quarter as a
15% decline in shipments overshadowed a rise in prices. For the year-
to-date period, revenues rose 6% as an 11% increase in shipments,
primarily from acquired companies and Brazil, more than offset a
decline in prices.
Intersegment sales in the 1999 nine-month period rose 22% from 1998 as
the addition of Alumax's fabricating operations resulted in higher
internal demand for metal.
Alcoa's average realized third-party price for ingot rose 6% from the
1998 third quarter to 71 cents per pound, in contrast to the 4%
decline in average realized prices from the 1998 nine-month period.
Average realized prices reflect the decline and subsequent rise in
aluminum prices that has occurred over the last eighteen months.
Primary metals ATOI rose 84% to $167.8 in the 1999 quarter and 32% to
$329.6 in the 1999 year-to-date period. The increases in ATOI are
attributable to higher overall volumes and improved cost performance.
Prices, which rose in the quarter but fell in the year-to-date period,
also impacted ATOI. Contributing to the year-over-year and quarter-
over-quarter increases were improved results from smelting operations
in Brazil and Australia, partly offset by weaker performance in Europe.
Shutdown of the company's smelting operations in Suriname had a minimal
impact on ATOI for the 1999 year-to-date and quarter.
III. Flat-rolled products
<TABLE>
<CAPTION>
Third quarter ended Nine months ended
September 30 September 30
------------ ------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Third-party aluminum shipments 496 483 1,479 1,285
Third-party sales $1,273.0 $1,308.6 $3,800.2 $3,608.4
Intersegment sales 13.6 16.6 39.1 47.9
------- ------- ------- -------
Total sales $1,286.6 $1,325.2 $3,839.3 $3,656.3
======= ======= ======= =======
After-tax operating income $ 73.5 $ 76.7 $ 210.9 $ 239.7
</TABLE>
This segment's principal business is the production and sale of
aluminum sheet, plate and foil. This segment includes rigid container
sheet(RCS), which is used to produce aluminum beverage cans and mill
products used in the transportation and distributor markets.
Approximately one-half of the third-party sales from this segment are
derived from mill products and approximately one-third are from RCS.
Third-party flat-rolled product's sales rose 5% from the 1998 year-to-
date period. The increase was due to a 15% increase in shipments,
which were driven by acquisitions, partly offset by lower prices. For
the 1999 quarter, shipments rose 3% and prices fell 6%, resulting in a
3% decline in third-party revenues.
Third-party sales of RCS were down 8% as shipments were flat and prices
fell over the 1998 nine-month period. For comparison purposes, total
market shipments of aluminum beverage cans for the eight months ended
in August 1999 were 1% lower than the comparable 1998 period. Quarter-
to-quarter, revenues fell 4% as prices slipped 5%.
-14-
Mill product's revenues rose 20% from the 1998 nine-month period as
shipments, driven by acquisitions, increased 42%. For the 1999
quarter, revenues were flat as shipments rose 12%. Realized prices for
mill products in 1999 have declined over 1998 as a result of a lower
value-added mix, due principally to the Alumax acquisition.
ATOI for this segment fell 12% to $210.9 for the 1999 year-to-date
period. The majority of the decline relates to RCS, as lower selling
prices had a negative impact on margins. Mill product's impact on
segment ATOI was nearly unchanged from the 1998 year-to-year period, as
higher volumes, aided by acquisitions, and improved cost performance
offset the impact of lower prices and a less profitable mix. For the
1999 quarter, ATOI fell 4% as cost improvements were overshadowed by
lower RCS prices.
IV. Engineered products
<TABLE>
<CAPTION>
Third quarter ended Nine months ended
September 30 September 30
------------ ------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Third-party aluminum shipments 249 240 756 489
Third-party sales $917.1 $968.0 $2,798.7 $2,131.2
Intersegment sales 6.0 2.5 13.0 7.6
----- ----- ------- -------
Total sales $923.1 $970.5 $2,811.7 $2,138.8
===== ===== ======= =======
After-tax operating income $ 42.2 $ 44.8 $ 148.1 125.4
</TABLE>
This segment includes hard and soft alloy extrusions, aluminum
forgings, and wire, rod and bar. These products serve the
transportation, construction and distributor markets. Revenues from
third-party sales of engineered products fell 5% from the 1998 third
quarter, while rising 31% from the 1998 nine-month period. For the
quarter, higher shipments were more than offset by lower prices. For
the nine-month period, higher volumes, which were aided by the Alumax
acquisition, were partly offset by lower prices.
Approximately 80% of the revenues from this segment are derived from
the sale of extrusions. Third-party sales of soft extrusions were up
60% from the 1998 year on a 77% increase in shipments. The large
increase in shipments was primarily due to the Alumax acquisition,
which nearly doubled Alcoa's existing soft alloy business. For the
quarter, soft alloy revenues fell 4% as shipments rose 5% and prices
fell. Revenues from hard alloy extrusions for the nine-month period
fell 24% as shipments were down 22%. For the quarter, revenues fell
32% on a similar decline in shipments.
Revenues from the sale of forged aluminum wheels increased 30% in the
1999 nine-month period, driven by a 31% increase in shipments. For the
1999 quarter, revenues rose 42% on a 40% increase in shipments.
Segment ATOI increased 18% to $148.1 in the 1999 year-to-date period.
Higher shipments of soft alloy extrusions partly offset by lower hard
alloy margins generated the increase. Lower operating costs also
contributed to the improvement in ATOI. For the quarter, ATOI declined
5% as lower revenues, driven by lower prices, were nearly offset by
improved cost performance.
-15-
V. Other
<TABLE>
<CAPTION>
Third quarter ended Nine months ended
September 30 September 30
------------ ------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Third-party aluminum shipments 20 20 55 52
Third-party sales $828.4 $832.3 $2,502.3 $2,522.4
After-tax operating income $ 50.4 $ 39.7 $ 148.2 $ 127.3
</TABLE>
This segment includes Alcoa Fujikura Ltd. (AFL), which produces
electrical components for the automotive industry as well as
telecommunications products. In addition, Alcoa's aluminum and plastic
closures operations and residential building products operations are
included in this group.
Revenues for this segment were nearly unchanged in the 1998 third
quarter and were down 1% from the 1998 nine-month period. AFL, which
generates approximately half of the revenues reported in this segment,
experienced a 5% increase in revenues from the 1998 quarter and year-to-
date periods as higher volumes were party offset by lower prices.
Revenues from sales of plastic closures and building products also
increased over both the 1998 quarter and nine-month periods. More than
offsetting the above mentioned revenue gains were lower revenues from
Alcoa Aluminio's packaging operations, which were negatively impacted
by the currency devaluation in the 1999 first quarter and economic
conditions in Brazil.
ATOI for this segment in the 1999 third quarter was $50.4, up 27% from
1998. Strong cost control at Alcoa's automotive and building products
businesses contributed to the increase. Year-to-date, ATOI rose 16% as
improved results from these same businesses, along with AFL, were
partly offset by losses from packaging operations in Brazil.
Costs and Other
Cost of Goods Sold - Cost of goods sold fell $116.1, or 3.6%, from the
1998 third quarter. The decrease reflects lower volumes and improved
cost performance. Cost of goods sold as a percentage of sales in the
1999 third quarter was 77.0% versus 78.8% in the 1998 quarter. The
improved ratio in 1999 is primarily due to cost performance and the
impact of higher metal prices on revenues. On a year-to-date basis,
this percentage was unchanged at 77.8%, as lower metal prices were
offset by cost improvements.
Selling and General Administrative Expenses - Selling, general and
administrative (SG&A) expenses were down $15.8, or 7.3%, from the 1998
third quarter and were up $65.3, or 12.3%, on a year-to-date basis.
The decrease quarter-over-quarter was due to the impact of integrating
Alumax and eliminating duplicate overhead functions. Year-over-year
these costs were higher due to the Alumax acquisition, as Alcoa's 1999
results include Alumax for all nine months versus the 1998 nine-month
period that included Alumax for only three months. On a pre-
acquisition basis these costs were down approximately 1%. SG&A as a
percentage of revenue fell to 5.0% in the 1999 third quarter, compared
with 5.3% in the 1998 period. Alcoa's objective is to maintain SG&A
costs below 5.0% of revenues.
Interest Expense - Interest expense totaled $51.1 in the 1999 third
quarter, a decrease of 13.4% over the comparable 1998 period. The
decrease is due to lower debt levels as excess cash has been used to
reduce debt. Year-over-year, interest expense rose $13.2 or 9.4% as
debt levels for the 1999 period were higher than the 1998 period. In
1998, Alcoa issued $300 of thirty-year 6.75% bonds due 2028, $250 of
6.5% term debt due in 2018 and $200 of 6.125% term debt due in 2005.
Alcoa also issued $1,100 of commercial paper. These borrowings were
used primarily to fund acquisitions and for general corporate
purposes.
-16-
Income Taxes - The income tax provision for the period is based on the
effective tax rate expected to be applicable for the full year. The
1999 third quarter rate of 32% differs from the statutory rate
primarily because of lower taxes on foreign income.
Other Income - Other income fell 19.5% to $38.5 in the 1999 third
quarter. The decrease was due to lower interest income and higher
foreign exchange losses, partly offset by mark-to-market gains in 1999
versus losses in 1998 and higher equity income. Year-to-date, other
income fell $16.5 or 17.5% as improved mark-to-market results were more
than offset by lower interest income, higher foreign exchange losses
and lower equity income.
Foreign Currency - Effective July 1, 1999, the Brazilian Real became
the functional currency for translating the financial statements of
Alcoa's 59%-owned Brazilian subsidiary, Alcoa Aluminio. Economic
factors and circumstances related to Aluminio's operations have changed
significantly since the devaluation of the Real in the 1999 first
quarter. Under SFAS 52, Foreign Currency Translation, the change in
these facts and circumstances requires a change to Aluminio's
functional currency.
As a result of the change, at July 1, 1999, Alcoa's shareholders'
equity and minority interests were reduced by $156 and $108,
respectively. These amounts were driven principally by a reduction in
fixed assets.
One of the factors affecting the change in Aluminio's functional
currency was Alcoa's recent purchase of approximately $185 of
Aluminio's 7.5% secured export notes. The repurchase of these notes is
consistent with Alcoa's recent policy change regarding the manner in
which large subsidiaries are capitalized, and will result in lower
overall financing costs to the company.
Minority Interests - Minority interests' share of income from
operations fell 26.1% from the 1998 year-to-date period to $133.5. The
decrease is due primarily to lower earnings from Aluminio, which were
negatively impacted by the Brazilian currency devaluation and resulting
economic events in the 1999 first quarter. In addition, lower earnings
at AWA also contributed to the decline.
Risk Factors
In addition to the risks inherent in its operations, Alcoa is exposed
to financial, market, political and economic risks. The following
discussion, which provides additional detail regarding Alcoa's exposure
to the risks of changing commodity prices, foreign exchange rates and
interest rates, includes forward-looking statements that involve risk
and uncertainties. Actual results could differ materially from those
projected in these forward-looking statements.
Commodity Price Risks - Alcoa is a leading global producer of aluminum
ingot and aluminum fabricated products. As a condition of sale,
customers often require Alcoa to commit to fixed-price contracts that
sometimes extend a number of years into the future. Customers will
likely require Alcoa to enter into similar arrangements in the future.
These contracts expose Alcoa to the risk of fluctuating aluminum prices
between the time the order is accepted and the time the order ships.
-17-
In the U.S., Alcoa is net metal short and is subject to the risk
of higher aluminum prices for the anticipated metal purchases required
to fulfill the long-term customer contracts noted above. To hedge this
risk, Alcoa enters into long positions, principally using futures and
options. Alcoa follows a stable pattern of purchasing metal;
therefore, it is highly likely that anticipated metal requirements will
be met. At September 30, 1999 and 1998, these contracts totaled
approximately 225,000 and 875,000 mt, respectively. These contracts
act to fix the purchase price for these metal purchase requirements,
thereby reducing Alcoa's risk to rising metal prices.
The futures and options contracts noted above are with
creditworthy counterparties and are further supported by cash, treasury
bills or irrevocable letters of credit issued by carefully chosen
banks.
The expiration dates of the options and the delivery dates of the
futures contracts noted above do not always coincide exactly with the
dates on which Alcoa is required to purchase metal to meet its
contractual commitments with customers. Accordingly, some of the
futures and options positions will be rolled forward. This may result
in significant cash inflows if the hedging contracts are "in-the-money"
at the time they are rolled forward. Conversely, there could be
significant cash outflows if metal prices fall below the price of
contracts being rolled forward.
In addition to the above-noted aluminum positions, Alcoa had
35,000 mt and 30,000 mt of futures and options contracts outstanding at
September 30, 1999 and 1998, respectively, that cover long-term, fixed-
price commitments to supply customers with metal from internal sources.
Accounting convention requires that these contracts be marked-to-
market, which resulted in an after-tax credit (charge) to earnings of
$4.6 and $(2.7) at September 30, 1999 and 1998, respectively.
Alcoa also purchases certain other commodities, such as gas and
copper, for its operations and enters into futures contracts to
eliminate volatility in the prices of such products. None of these
contracts are material.
Financial Risk - Alcoa is subject to significant exposure from
fluctuations in foreign currencies. As a matter of company policy,
foreign currency exchange contracts, including forwards and options,
are sometimes used to limit the risk of fluctuating exchange rates. In
addition, Alcoa also attempts to maintain a reasonable balance between
fixed and floating rate debt and uses interest rate swaps and caps to
keep financing costs as low as possible.
Risk Management - All of the aluminum and other commodity contracts, as
well as the various types of financial instruments, are straightforward
and held for purposes other than trading. They are used primarily to
mitigate uncertainty and volatility, and principally cover underlying
exposures.
Alcoa's commodity and derivative activities are subject to the
management, direction and control of the Strategic Risk Management
Committee (SRMC). SRMC is composed of the chief executive officer, the
chief financial officer and other officers and employees that the chief
executive officer may select from time to time. SRMC reports to the
board of directors at each of the Boards scheduled meetings on the
scope of the committee's derivative activities.
Environmental Matters
Alcoa continues to participate in environmental assessments and
cleanups at a number of locations, including at operating
facilities and adjoining properties, at previously owned or
operated facilities and at Superfund and other waste sites. A
liability is recorded for environmental remediation costs or
damages
-18-
when a cleanup program becomes probable and the costs or damages can
be reasonably estimated.
As assessments and cleanups proceed, the liability is
adjusted based on progress in determining the extent of remedial
actions and related costs and damages. The liability can change
substantially due to factors such as the nature and extent of
contamination, changes in remedial requirements and technological
changes. Therefore, it is not possible to determine the outcomes
or to estimate with any degree of accuracy the ranges of potential
costs for certain matters. For example, there are issues related
to the Massena, New York, and Pt. Comfort, Texas sites that allege
natural resource damage or off-site contaminated sediments, where
investigations are ongoing. The following discussion provides
additional details regarding the current status of these two sites.
MASSENA/GRASSE RIVER. Sediments and fish in the Grasse River
adjacent to Alcoa's Massena, New York plant site contain varying
levels of polychlorinated biphenyl (PCB). Alcoa has been
identified by the U.S. Environmental Protection Agency (EPA) as
potentially responsible for this contamination and, since 1989, has
been conducting investigations and studies of the river under order
from the EPA issued under the Comprehensive Environmental Response,
Compensation and Liability Act.
During 1998, Alcoa continued to perform studies and
investigations on the Grasse River. In addition, Alcoa proposed to
submit the report of remedial alternatives to EPA in phases, as
additional information is obtained from these ongoing studies and
investigations. In October 1998, Alcoa submitted the first of
these phased reports, consisting of a summary of results of certain
river and sediment studies performed over the past several years.
Based on these studies, Alcoa has proposed to EPA that pilot scale
tests be performed to assess the feasibility of performing certain
sediment covering techniques. The costs of these pilot scale tests
have been fully reserved. The results of these tests and other
related field pilot studies should permit the development of the
remaining phases of the remedial alternative report. Alcoa is
awaiting EPA approval for these pilot tests.
Based on the above, the costs to complete a remedy related to
this site currently cannot be estimated since they will depend on
the remedial method chosen. Alcoa is also aware of a natural
resource damage claim that may be asserted by certain federal,
state and tribal natural resource trustees at this location.
PT. COMFORT/LAVACA BAY. In 1990, Alcoa began discussions
with certain state and federal natural resource trustees concerning
alleged releases of mercury from its Pt. Comfort, Texas facility
into the adjacent Lavaca Bay. In March 1994, EPA listed the "Alcoa
(Point Comfort)/Lavaca Bay Site" on the National Priorities List
and, shortly thereafter, Alcoa and EPA entered into an
administrative order on consent under which Alcoa is obligated to
conduct certain remedial investigations and feasibility studies.
In accordance with this order, Alcoa recently submitted a draft
remedial investigation and a draft baseline risk assessment to EPA.
Alcoa expects to submit a draft feasibility study during 1999. In
addition, Alcoa recently commenced construction of the EPA-approved
project to fortify an offshore dredge disposal island. The
probable and estimable costs of these actions are fully reserved.
Additional costs to complete a remedy currently cannot be estimated
since these costs will depend on the extent of remediation
required, if any, the remedial method chosen and the time frame to
complete any remediation activity. Since the order with EPA, Alcoa
and the natural resource trustees have continued efforts to
understand natural
-19-
resource injury and ascertain appropriate restoration alternatives.
That process is expected to be completed within the next 12 to
24 months.
Based on the above, it is possible that results of operations
in a particular period could be materially affected by certain of
these matters. However, based on facts currently available,
management believes that the disposition of these matters will not
have a materially adverse effect on the financial position or
liquidity of the company.
Alcoa's remediation reserve balance at the end of the 1999
third quarter was $186.9 (of which $62.8 was classified as a
current liability) and reflects the most probable costs to
remediate identified environmental conditions for which costs can
be reasonably estimated. About 22% of the reserve relates to
Alcoa's Massena, New York plant site, and 13% relates to Alcoa's
Pt. Comfort, Texas plant site. Remediation expenses charged to the
reserve during the 1999 third quarter were $10.8. These include
expenditures currently mandated, as well as those not required by
any regulatory authority or third party.
Included in annual operating expenses are the recurring costs of
managing hazardous substances and environmental programs. These costs
are estimated to be about 2% of cost of goods sold.
Liquidity and Capital Resources
Cash from Operations
Cash from operations during the 1999 year-to-date period totaled
$1,409.6, compared with $1,403.9 in the 1998 period. The increase
reflects higher net income, a decrease in noncurrent assets and
liabilities and an increase in deferred income taxes. Partially
offsetting these items was a reduction in deferred hedging activity and
a decrease in minority interests' share of income.
Financing Activities
Financing activities used $774.8 of cash in the 1999 year-to-date
period, compared with $294.7 of cash generated in the 1998 period. The
primary reason for the difference was Alcoa's issuance of debt in the
1998 period, which was used primarily to fund acquisitions. In the
1999 year-to-date period, Alcoa used $838.1 to repurchase 15,604,534
shares of the Company's common stock, versus $293.5 used in the 1998
period. These repurchases were partially offset by $576.9 and $30.5 in
the 1999 and 1998 periods, respectively, of stock issued for employee
stock option plans. In July 1999, Alcoa announced that the board of
directors had authorized the repurchase of 20 million shares of Alcoa
common stock. This action replaces a similar authorization approved by
the board in January 1999. Approximately 12 million shares were
repurchased under the prior authorization.
Dividends paid to shareholders were $223.0 in the 1999 nine-month
period, an increase of $29.8 over the 1998 period. The increase was
primarily due to Alcoa's variable dividend program, which paid out
60.375 cents in the first half of 1999. This compares with 56.25
cents per share in the 1998 nine-month period.
Investing Activities
Investing activities in 1998 used $1,979.8 of cash, $1,218.0 more than
the 1999 requirement of $761.8. Capital expenditures were the majority
of the 1999 spending, totaling $608.9, up 2.4% from 1998 levels.
Acquisitions represented the bulk of investing activities in the 1998
period. These include Alcoa's purchases of Alumax and Inespal. During
the 1999 period, Alcoa acquired the bright products business of
Pechiney's Rhenalu rolling plant located near Toulouse, France and
Reynolds' aluminum extrusion plant in Irurzun, Spain. Alcoa
-20-
also acquired the remaining 50% interest in its A-CMI partnership from
Hayes Lemmerz. A-CMI was a joint venture between Alcoa and CMI
International formed to produce cast aluminum products for the
automotive industry. A-CMI has operating locations in Kentucky,
Michigan and Lista, Norway. In addition, Alcoa also added $89.8 and
$110.0 to its investments in 1999 and 1998, respectively, primarily to
acquire an interest in the Norweigan metals producer, Elkem.
Year 2000 issue
Alcoa, like other businesses, is facing the Year 2000 issue. The Year
2000 issue arises from the past practice of utilizing two digits (as
opposed to four) to represent the year in some computer programs and
software. If uncorrected, this could result in computational errors as
dates are compared across the century boundary.
As a basic materials supplier, the vast majority of the products
produced and sold by Alcoa are unaffected by Year 2000 issues in use or
operation since they contain no microprocessors. Alcoa is addressing
the Year 2000 issue through a formal program that reports to the
company's chief information and financial officers. Alcoa's methodology
encompasses four phases: Awareness/Inventory; Assessment; Remediation
and Compliance Testing. Ongoing leadership is provided by a Global
Program Office, which is directly linked into Alcoa's business units
and resource units, including the acquired Alumax facilities. The
Global Program Office provides processes and tools to the business
units and monitors progress through systematic reporting and on-site
verification reviews in cooperation with the company's internal
auditors. Progress is reported regularly to the company's senior
executives and to the Audit Committee of Alcoa's board of directors.
Internally, computer and microprocessor based systems such as
mainframe, mini-computer and personal computer systems and the software
they utilize have been assessed. Operational support, process control,
facilities, infrastructure and mechanical systems are being addressed
as well. These systems assist in the control of Alcoa's operations by
performing such functions as maintaining manufacturing parameters,
monitoring environmental conditions and assisting with facilities
management and security. Many of these systems rely on software or
contain embedded electronic components that could be affected by Year
2000 compliance issues. Since many of these systems are common across
operating locations, information sharing and efficiencies have been
realized in the Year 2000 efforts. Priority for any required
remediation efforts has been assigned based on the criticality of the
system or business process affected. As of September 30, 1999, the
remediation phase had been completed for 99% of Alcoa's critical
components with 99% of all critical components having completed
compliance testing. The majority of remaining critical systems are
planned for remediation as part of scheduled maintenance and system
upgrades.
Alcoa relies on numerous third parties for a wide variety of goods and
services, including raw materials, telecommunications and utilities
such as water and electricity. Many of the company's operating
locations would be adversely affected if these supplies and services
were curtailed as a result of a supplier's Year 2000 noncompliance.
Alcoa has surveyed its vendors and suppliers using questionnaires and,
based on the response and significance to the company's operations, is
conducting follow-up activities with critical and important suppliers.
If Alcoa concludes that a third party presents a substantial risk of a
Year 2000 based business disruption, an effort will be made to resolve
the issue. If necessary, a new vendor or supplier will be qualified and
secured. Communication with these third parties regarding Year 2000
issues is a continuing process.
Alcoa and certain of its trading partners utilize electronic data
interchange (EDI) to effect business communications. The company's EDI
system software has been upgraded to support transactions in a Year
2000 compliant format. Migration of EDI
-21-
transactions to this new format will occur as Alcoa and its EDI
trading partners, on a case-by-case basis, modify existing EDI
transaction formats. Some Alcoa customers have indicated that they
will not modify EDI transaction sets but will rely on other techniques
to achieve Year 2000 capability. Alcoa does not expect Year 2000-
related disruptions to occur in these situations.
In order to minimize operational effects, Alcoa is utilizing a
structured contingency planning process throughout the company to
identify and analyze Year 2000 operational risks. This is in addition
to disaster recovery plans that already exist for critical systems
within the company. Each business unit is required to identify planning
units based on key departments or business processes. Risk assessment
workshops are conducted for each planning unit with cross-departmental
participation. The resulting risk scenarios identified in the workshops
are documented and reviewed by operational management, and detailed
contingency plans are developed for scenarios of greatest risk. As of
the end of the third quarter, 80% of Alcoa's contingency plans are
complete. In addition to contingency plans, Alcoa businesses are
refining plans for the Year 2000 transition. These include site
specific preparations to ensure a safe Year 2000 transition and
communication activities to permit global sharing of transition
information within Alcoa.
Alcoa's Year 2000 program utilizes on-site verification of Year 2000
efforts at its various operating locations. Using audit-like
techniques, the Year 2000 Global Program Office and the company's
internal auditors verify that business and resource units have followed
the prescribed processes and methodologies and also sample local Year
2000 readiness. During 1998 and through the third quarter of 1999,
Alcoa has conducted over 170 reviews of US and non US locations and has
found consistent adherence to the Alcoa Year 2000 methodology globally.
Based on internal efforts and formal communications with third parties,
Alcoa does not believe that Year 2000 issues are likely to result in
significant operational problems or will have a material adverse impact
on its consolidated financial position, operations or cash flow. Based
on current information, Alcoa believes that the most likely worst case
scenario to result from a Year 2000 failure by Alcoa, its suppliers, or
customers would be a short-term reduction in manufacturing capability
at one or more of Alcoa's operations and a temporary limitation on
Alcoa's ability to deliver products to customers. Nonetheless, failures
of suppliers, third-party vendors or customers resulting from Year 2000
issues could result in a short-term material adverse effect.
For the 1999 nine-month period, Alcoa incurred approximately $27.4
million of direct costs in connection with its Year 2000 program. These
costs include external consulting costs and the cost of hardware and
software replaced as a result of Year 2000 issues. Total direct costs
for 1999 are estimated to be between $35 and $50.
-22-
PART II - OTHER INFORMATION
Item 1. Legal Proceedings.
As previously reported, in October 1998, Region V of the U.S.
Environmental Protection Agency (EPA) referred various alleged
environmental violations at Alcoa's Lafayette Operations to the civil
division of the U.S. Department of Justice (DOJ). The alleged
violations relate to water permit exceedances as reported on monthly
discharge monitoring reports. Alcoa and the DOJ entered into a tolling
agreement to suspend the statute of limitations related to the alleged
violations in order to facilitate settlement discussions with the DOJ
and EPA. The parties have been unable to reach settlement on this
matter. On June 11, 1999, the DOJ and EPA filed a complaint against
Alcoa in the United States District Court for the Northern District of
Indiana. Alcoa filed a motion to dismiss and a motion to strike certain
parts of the government's complaint requesting sediment remediation on
August 20, 1999.
In March 1999, two search warrants were executed by various
federal and state agencies on the Alcoa Port Allen Works of Discovery
Aluminas, Inc., a subsidiary, in Port Allen, Louisiana. Also in March,
Discovery Aluminas, Inc. was served with a grand jury subpoena that
required the production to a federal grand jury of certain company
records relating to alleged environmental issues involving wastewater
discharges and management of solid or hazardous wastes at the plant.
In April 1999, the Port Allen plant manager was indicted for a single
count of violating the Clean Water Act. In October 1999, a second
grand jury subpoena for documents was issued to Alcoa requesting
information regarding wastewater discharges from a Port Allen plant.
Alcoa intends to provide a complete and timely response to the
subpoena. Alcoa also is engaged in discussions seeking to resolve the
situation.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits
10(n). Amended and Restated Revolving Credit Agreement
(364-Day), dated as of August 13, 1999.
12. Computation of Ratio of Earnings to Fixed Charges
15. Independent Accountants' letter regarding unaudited
financial information
27. Financial Data Schedule
(b) Reports on Form 8-K. Alcoa filed a Form 8-K, dated August 18,
1999, with the Securities and Exchange Commission that announced Alcoa
Inc., RLM Acquisition Corp., a wholly owned subsidiary of Alcoa, and
Reynolds Metal Company had entered into an agreement and plan of
merger, dated as of August 18, 1999, pursuant to which each outstanding
share of common stock, no par value, of Reynolds will be converted into
1.06 shares of common stock, par value $1.00 per share, of Alcoa.
-23-
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
Alcoa Inc.
October 19, 1999 By /s/ RICHARD B. KELSON
- ---------------- ------------------------
Date Richard B. Kelson
Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
October 19, 1999 By /s/ TIMOTHY S. MOCK
- ---------------- ------------------------
Date Timothy S. Mock
Vice President and Controller
(Chief Accounting Officer)
-24-
EXHIBITS
Page
10(n). Amended and Restated Revolving Credit Agreement
(364-Day), dated as of August 13, 1999.
12. Computation of Ratio of Earnings to Fixed Charges 25
15. Independent Accountants' letter regarding 26
unaudited financial information
27. Financial Data Schedule
-25-
EXHIBIT 10(n)
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
(364-Day)
Dated as of August 13, 1999
Among
ALCOA INC.,
THE LENDERS NAMED HEREIN,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Syndication Agent,
CITIBANK, N.A. and ABN AMRO BANK N.V.,
as Documentation Agents,
THE CHASE MANHATTAN BANK,
as Administrative Agent, and
CHASE SECURITIES INC.,
as Lead Arranger and Book Manager
-Cover Page-
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS AND CONSTRUCTION
SECTION 1.01. Defined Terms 1
SECTION 1.02. Terms Generally; Accounting
Principles 16
SECTION 1.03. Certain Date References 17
ARTICLE II. THE CREDITS
SECTION 2.01. Commitments 17
SECTION 2.02. Loans 17
SECTION 2.03. Notice of Borrowings 19
SECTION 2.04. Evidence of Debt; Repayment of
Loans 20
SECTION 2.05. Fees 21
SECTION 2.06. Interest on Loans 22
SECTION 2.07. Default Interest 22
SECTION 2.08. Alternate Rate of Interest 22
SECTION 2.09. Termination and Reduction of
Commitments; Increase of
Commitments 23
SECTION 2.10. Refinancings 24
SECTION 2.11. Prepayment 24
SECTION 2.12. Reserve Requirements; Change in
Circumstances 25
SECTION 2.13. Change in Legality 27
SECTION 2.14. Indemnity 28
SECTION 2.15. Pro Rata Treatment 29
SECTION 2.16. Sharing of Setoffs 29
SECTION 2.17. Payments 30
SECTION 2.18. Taxes 31
SECTION 2.19. Assignment of Commitments Under
Certain Circumstances 35
ARTICLE III. REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization 35
SECTION 3.02. Authorization 36
SECTION 3.03. Enforceability 36
SECTION 3.04. Governmental Approvals 36
SECTION 3.05. No Conflict 36
SECTION 3.06. Financial Statements 36
-Contents 1-
SECTION 3.07. No Defaults 37
SECTION 3.08. Litigation 37
SECTION 3.09. No Material Adverse Change 37
SECTION 3.10. Employee Benefit Plans 38
SECTION 3.11. Title to Properties; Possession
Under Leases 39
SECTION 3.12. Investment Company Act; Public
Utility Holding Company Act 39
SECTION 3.13. Tax Returns 39
SECTION 3.14. Compliance with Laws and Agreements 40
SECTION 3.15. No Material Misstatements 40
SECTION 3.16. Federal Reserve Regulations 40
SECTION 3.17. No Trusts 40
SECTION 3.18. Year 2000 Computer Systems
Compliance 40
ARTICLE IV. CONDITIONS OF EFFECTIVENESS, LENDING AND
DESIGNATION OF BORROWING SUBSIDIARIES
SECTION 4.01. Effective Date 41
SECTION 4.02. All Borrowings 43
SECTION 4.03. Designation of Borrowing
Subsidiaries 44
ARTICLE V. AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Statements, Reports, etc. 45
SECTION 5.02. Pari Passu Ranking 46
SECTION 5.03. Maintenance of Properties 46
SECTION 5.04. Obligations and Taxes 47
SECTION 5.05. Insurance 47
SECTION 5.06. Existence; Businesses and
Properties 47
SECTION 5.07. Compliance with Laws 47
SECTION 5.08. Litigation and Other Notices 49
SECTION 5.09. Borrowing Subsidiaries 49
ARTICLE VI. NEGATIVE COVENANTS
SECTION 6.01. Liens 49
SECTION 6.02. Consolidation, Merger, Sale of
Assets, etc. 51
SECTION 6.03. Financial Undertaking 52
SECTION 6.04. Change in Business 52
ARTICLE VII. EVENTS OF DEFAULT
ARTICLE VIII. GUARANTEE
ARTICLE IX. THE ADMINISTRATIVE AGENT
-Contents 2-
ARTICLE X. MISCELLANEOUS
SECTION 10.01. Notices 62
SECTION 10.02. Survival of Agreement 63
SECTION 10.03. Binding Effect 63
SECTION 10.04. Successors and Assigns; Additional
Borrowing Subsidiaries 64
SECTION 10.05. Expenses; Indemnity 68
SECTION 10.06. Right of Setoff 69
SECTION 10.07. Applicable Law 70
SECTION 10.08. Waivers; Amendment 70
SECTION 10.09. Interest Rate Limitation 71
SECTION 10.10. Entire Agreement 71
SECTION 10.11. Waiver of Jury Trial 71
SECTION 10.12. Severability 72
SECTION 10.13. Counterparts 72
SECTION 10.14. Headings 72
SECTION 10.15. Jurisdiction, Consent to Service
of Process 72
SECTION 10.16. Conversion of Currencies 73
-Contents 3-
References
Exhibit A Assignment and Acceptance
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
-Contents 4-
AMENDMENT AND RESTATEMENT, dated as of
August 13, 1999 of the REVOLVING CREDIT
AGREEMENT (as the same may be amended,
modified or supplemented from time to time,
the "Agreement") dated as of August 14, 1998,
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), THE CHASE MANHATTAN BANK, a New
York banking corporation, as Administrative
Agent for the Lenders, and CHASE SECURITIES
INC., as Lead Arranger and Book Manager.
Alcoa and certain of the Lenders are party to a
Revolving Credit Agreement dated as of August 14, 1998 (the
"Pre-Restatement Credit Agreement"). Alcoa and the
Borrowing Subsidiaries have requested that the Pre-
Restatement Credit Agreement be amended and restated to
eliminate provisions relating to Alcoa of Australia Limited
and to extend credit in order to enable them, 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.
-1-
"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 The Chase
Manhattan 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.
"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,
-2-
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 Eurodollar 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:
Category 1 Percentage
AA-/Aa3 .1350%
or above
Category 2
A+/A1 .1400%
Category 3
A/A2 .1375%
-3-
Category 4
A-/A3 .1450%
Category 5
BBB/Baa2 .2200%
Category 6
BBB-/Baa3 .2700%
or below
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, to the extent determined by reference to
such Index Debt, shall be based on the Category
corresponding to the higher 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 recently in effect prior to such change
or cessation shall be employed in determining the Applicable
Margin.
-4-
"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 Acceptance" shall mean an
assignment and acceptance 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(i).
"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 Eurodollar Loan, the term "Business Day" shall in
-5-
each case also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank
market.
"Code" shall mean the Internal Revenue Code of
1986, as the same may be amended from time to time.
"Commercial Paper" of any person shall mean any
note, draft, bill of exchange or other negotiable instrument
issued by such person that has a maturity at the time of
issuance not exceeding nine months, exclusive of days of
grace, or any renewal thereof the maturity of which is
likewise limited.
"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.
-6-
"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(i).
"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.
"Eligible Transferee" shall mean (i) a commercial
bank having total assets in excess of $10,000,000,000 or the
equivalent thereof in another currency, provided that such
bank or its holding company has issued obligations which are
rated investment grade by any of Moody's, S&P or
International Banking and Credit Analysis and (ii) any other
person which Alcoa agrees may be an Eligible Transferee.
"Engagement Fees" shall have the meaning assigned
to such term in Section 2.05(b).
"Engagement Letter" shall mean the letter
agreement dated as of July 20, 1999, among the
Administrative Agent, Chase Securities Inc. and Alcoa.
"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
-7-
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.
"Eurodollar Borrowing" shall mean a Borrowing
comprised of Eurodollar Loans.
"Eurodollar 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.
"Event of Default" shall have the meaning assigned
to such term in Article VII.
"Exchange Act Report" shall mean, collectively,
the Annual Report of Alcoa on Form 10-K for the year ended
-8-
December 31, 1998, the Quarterly Reports of Alcoa on Form 10-
Q for the quarters ended March 31 and June 30, 1999, the
Current Reports on Form 8-K filed by Alcoa with the
Securities and Exchange Commission from January 1, 1999 to
the date hereof pursuant to the Securities Exchange Act of
1934 and the press release issued by Alcoa on August 11,
1999, with respect to Alcoa's offers to acquire Reynolds
Metals Company.
"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 .0400%
or above
Category 2
A+/A1 .0475%
Category 3
A/A2 .0500%
Category 4
A-/A3 .0550%
Category 5
BBB/Baa2 .0800%
Category 6
BBB-/Baa3 .1300%
or below
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
-9-
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 the Index Debt
shall fall within different Categories, the Facility Fee
Percentage shall be based on the Category corresponding to
the higher 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.
"Fees" shall mean the Facility Fees and the
Engagement Fees.
"Financial Officer" of any corporation shall mean
the chief financial officer, principal accounting officer,
Treasurer or Controller of such corporation.
"Five-Year Credit Agreement" shall mean the
Revolving Credit Agreement (Five-Year) dated as of
August 14, 1998, among Alcoa, Alcoa of Australia Limited, a
company incorporated with limited liability in Australia,
the lenders party thereto, The Chase Manhattan Bank, as U.S.
agent for such lenders, and Chase Securities Australia
Limited, a company incorporated with limited liability in
Australia, as Australian agent for such lenders.
-10-
"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.
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"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.
"Index Debt" shall mean the senior, unsecured, non-
credit enhanced, longBterm 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 Eurodollar 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
Eurodollar 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
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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 Eurodollar 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 Acceptance) and (b) any
financial institution that has become a party hereto
pursuant to an Assignment and Acceptance.
"LIBO Rate" shall mean, with respect to any
Eurodollar 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 Eurodollar 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 approxi
mately equal in principal amount to such Eurodollar
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 inter
bank 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.
"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
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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 Eurodollar Loan or an
ABR Loan.
"Margin Stock" shall have the meaning given such
term under Regulation U of the Board as from time to time in
effect, including all official and interpretations
thereunder or thereof.
"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 August 11, 2000.
"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.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation referred to and defined in ERISA.
"person" shall mean any natural person, corpo
ration 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.
"Pre-Restatement Credit Agreement" shall mean the
Revolving Credit Agreement (364-day) among Alcoa, Alcoa of
Australia Limited, ACN 004 879 298, the Lenders party
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thereto, The Chase Manhattan Bank, as U.S. agent, and Chase
Securities Australia Limited, ACN 008 487 581, as Australian
agent, dated as of August 14, 1998, as in effect prior to
its amendment and restatement hereby.
"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 The Chase Manhattan
Bank, Mellon Bank, N.A. and Bank of America National Trust
and Savings Association.
"Register" shall have the meaning given such term
in Section 10.04(d).
"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.
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"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.
"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.
"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
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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.
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
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.
SECTION 1.03. Certain Date References. All
references herein to "the date hereof" and "the date of this
Agreement" shall be deemed references to the date of this
Amendment and Restatement.
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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, reduced or increased 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
Eurodollar 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
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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, would result in an aggregate of
more than five separate Eurodollar 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 Eurodollar 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 1:00 p.m., New York City time, and the
Administrative Agent shall by 3:00 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 date 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
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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 Eurodollar 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
Eurodollar Borrowing or an ABR Borrowing; (ii) the date of
such Borrowing (which shall be a Business Day) and the
amount thereof; and (iii) if such Borrowing is to be a
Eurodollar 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 Eurodollar 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
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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 applicable 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.
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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 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 provided for in the
Engagement Letter (the "Engagement Fees") at the times
provided therein.
(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
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Eurodollar 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 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
Eurodollar 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 Eurodollar 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
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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 Eurodollar
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; Increase 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.
(d) Subject only to the consent of the
Administrative Agent and each Lender whose Commitment is to
be increased, Alcoa may, upon not less than 30 days' notice
to the Administrative Agent, increase the Total Commitment
by up to an amount equal to (i) $250,000,000 minus (ii) the
aggregate amount of all prior increases in the Commitments
(including increases under the Pre-Restatement Credit
Agreement) and the "Commitments" under and as defined in the
-24-
Five-Year Credit Agreement. Any such increase in the
Commitments shall be effected by the execution and delivery
of such documentation as the Administrative Agent shall
reasonably specify (which documentation, to be effective,
need be executed only by the Borrowers, the Administrative
Agent and each Lender whose Commitment is to be increased),
and shall be subject to the delivery of such evidence of the
applicable Borrowers' corporate authority, legal opinions
and other closing documentation as the Administrative Agent
or its counsel shall reasonably request.
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 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
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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 Eurodollar
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 Eurodollar 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 Eurodollar 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 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
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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
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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 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) Notwith
standing 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 Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan,
then, by written or telecopy notice to Alcoa and the
Administrative Agent, such Lender may:
(i) declare that Eurodollar Loans will not
thereafter be made by such Lender hereunder,
whereupon any request by a Borrower for a
Eurodollar 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 Eurodollar
Loans made by it be converted to ABR Loans, in
which event all such Eurodollar Loans shall
automatically be so converted as of the effective
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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 Eurodollar Loans that would have been made by such
Lender or the converted Eurodollar 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
Eurodollar Loans.
(b) For purposes of this Section 2.13, a notice
by any Lender shall be effective as to each Eurodollar Loan,
if lawful, on the last day of the Interest Period applicable
to such Eurodollar 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 Eurodollar 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 parties
acquired to effect or maintain such Loan or any part thereof
as a Eurodollar 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
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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
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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 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
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
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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.
(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
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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
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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 1001 or Form 4224
and 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 (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 specified in 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
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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.
(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
-35-
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
-36-
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.
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
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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, 1998, and the
related consolidated statements of income and cash flow for
the year then ended, all examined and certified by
PricewaterhouseCoopers, L.L.P. 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 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 or affecting 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 or affecting any of its
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Subsidiaries which in the opinion of its counsel is likely
to result in a Material Adverse Effect.
SECTION 3.09. No Material Adverse Change. Since
December 31, 1998, 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.
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
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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 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.
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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.
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
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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. No
part of the proceeds of any Loan to such Borrower will be
used, whether directly or indirectly, and whether
immediately, incidentally or ultimately, to purchase or
carry Margin Stock or to extend credit to others for the
purpose of purchasing or carrying Margin Stock or to refund
indebtedness originally incurred for such purpose.
SECTION 3.17. No Trusts. Such Borrower is not
entering into this Agreement in its capacity as trustee of
any trust.
SECTION 3.18. Year 2000 Computer Systems
Compliance. Any reprogramming required to permit the proper
functioning, in and following the Year 2000, of (i) the
Borrowers' and their Subsidiaries' material computer systems
and (ii) material equipment containing embedded microchips
and the testing of all such systems and equipment, as so
reprogrammed, are anticipated to be completed in all
material respects by September 30, 1999. The cost to the
Borrowers and their Subsidiaries of such reprogramming and
testing and of the reasonably foreseeable consequences,
following completion of such reprogramming and testing, of
Year 2000 to the Borrowers and their Subsidiaries will not
result in a Default or a Material Adverse Effect.
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):
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SECTION 4.01. Effective Date. On the Effective
Date:
(a) The Administrative Agent shall have received
a written opinion of Denis A. Demblowski, Senior Counsel and
Assistant Secretary 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, 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 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.
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(d) 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 paragraphs (b) and (c)
of Section 4.02.
(e) The Administrative Agent shall have received
all Fees and other amounts due and payable on or prior to
the Effective Date, including all Fees accrued to the date
hereof under the Pre-Restatement Credit Agreement.
(f) The commitments under the Pre-Restatement
Credit Agreement shall have been terminated and no loans
thereunder shall be outstanding.
(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.
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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.
(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, 3.09 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 and the Five-Year Credit Agreement to
exceed $2,000,000,000 minus the aggregate outstanding
principal amount of commercial paper issued by Alcoa or
issued by Subsidiaries and guaranteed by Alcoa (other than
commercial paper being repaid with the proceeds of such
Borrowing), 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.
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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 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(i).
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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(i) 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
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.
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
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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.
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
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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 sub
section (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
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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.
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.
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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;
(iii) Liens securing Indebtedness of a Restricted
Subsidiary owing to Alcoa or to another Restricted
Subsidiary;
(iv) Liens existing at the date of this Agreement
and set forth on Schedule 6.01(a);
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(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
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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 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.
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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 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,
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;
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(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 $10,000,000;
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
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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
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
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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 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
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recently completed plan years by an amount exceeding
$25,000,000; or
(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;
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.
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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
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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 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
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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, The Chase Manhattan 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 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
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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).
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), 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
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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.
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
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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.
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:
(a) if to Alcoa or a Borrowing Subsidiary, to
Alcoa Inc. at 201 Isabella Street, Pittsburgh, PA 15212-
5858, Attention of Vice President & Treasurer (Telecopy No.
412-553-4560);
(b) if to the Administrative Agent, to The Chase
Manhattan Bank at One Chase Plaza, New York, New York 10081,
Attention of Linda Hill (Telecopy No. 212-552-7490), with a
copy to The Chase Manhattan Bank at 270 Park Avenue, New
York, New York 10017, Attention of James Ramage (Telecopy
No. 212-270-4724);
(c) if to a Lender, to it at its address (or
telecopy number) set forth in Schedule 2.01 or in the
Assignment and Acceptance 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
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Administrative Agent and each Borrower given in accordance
with this Section 10.01.
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.
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) Whenever in this Agreement any
of the parties hereto is referred to, such reference shall
be deemed to include the successors and assigns of such
party; and all covenants, promises and agreements by or on
behalf of the Borrowers, the Administrative Agent or the
Lenders that are contained
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in this Agreement shall bind and inure to the benefit of
their respective successors and assigns.
(b) Each Lender may assign to one or more
Eligible Transferees all or a portion of its interests,
rights and obligations under this Agreement (including all
or a portion of its Commitment and the Loans at the time
owing to it); provided, however, that (i) except in the case
of an assignment to a Lender or an Affiliate of such Lender,
Alcoa and the Administrative Agent must give their prior
written consent to such assignment (which consent shall not
be unreasonably withheld), (ii) the amount of the Commitment
of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $10,000,000,
(iii) the parties (other than the Borrowers) to each such
assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a
processing and recordation fee of $2,500 and (iv) the
assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Upon
acceptance and recording pursuant to paragraph (e) of this
Section 10.04, from and after the effective date specified
in each Assignment and Acceptance, which effective date
shall be at least five Business Days after the execution and
recording thereof, (A) the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by
such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement and (B) the
assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the
remaining portion of an 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, as well as
to any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and
Acceptance, the assigning Lender thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each
other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and
beneficial owner of the interest being assigned thereby free
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and clear of any adverse claim and that its Commitment and
the outstanding balances of its Loans, in each case without
giving effect to assignments thereof which have not become
effective, are as set forth in such Assignment and
Acceptance, (ii) except as set forth in (i) above, such
assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with
this Agreement, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this
Agreement, or any other instrument or document furnished
pursuant hereto, or the financial condition of any Borrower
or any Subsidiary of any Borrower or the performance or
observance by any Borrower or any Subsidiary of any Borrower
of any of its obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such
assignee represents and warrants that it is legally
authorized and has obtained any necessary consents to enter
into such Assignment and Acceptance; (iv) such assignee
confirms that it has received a copy of this Agreement,
together with copies of the most recent financial statements
delivered pursuant to Section 5.01 and such other documents
and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment
and Acceptance; (v) such assignee will independently and
without reliance upon the Administrative Agent, such
assigning Lender or any other Lender and based on such
documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (vi) such
assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such
powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such
powers as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with
their terms all the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, on behalf of and
solely for this purpose as an agent for the Borrowers, shall
maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of
the Lenders, and the Commitment of, and principal amounts of
the Loans owing to, each Lender pursuant to the terms hereof
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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 any Borrower and any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed
Assignment and Acceptance executed by an assigning Lender
and an assignee, an Administrative Questionnaire completed
in respect of the assignee (unless the assignee shall
already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) above and, if
required, the written consent of Alcoa and the
Administrative Agent to such assignment, the Administrative
Agent shall (i) accept such Assignment and Acceptance,
(ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Lenders
and Alcoa. No assignment shall be effective unless recorded
in the Register.
(f) Each Lender may without the consent of any
Borrower or the Administrative Agent sell participations to
one or more banks or other entities in all or a portion of
its rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans owing to
it); provided, however, that (i) such Lender's obligations
under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the
participating banks or other entities shall be entitled to
the benefit of the cost protection provisions contained in
Sections 2.12, 2.14 and 2.18 to the same extent as if they
were Lenders and (iv) 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, and
such Lender shall retain the sole right to enforce the
obligations of the Borrowers relating to the Loans and to
approve any amendment, modification or waiver of any
provision of this Agreement (provided that the participating
bank or other entity may be provided with the right to
approve amendments, modifications or waivers affecting it
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with respect to (A) any decrease in the Fees payable
hereunder with respect to Loans in which the participating
bank or other entity has purchased a participation, (B) any
change in the amount of principal of, or decrease in the
rate at which interest is payable on, the Loans in which the
participating bank or other entity has purchased a
participation or (C) any extension of the dates fixed for
scheduled payments of a Fee or of principal of or interest
on the Loans in which the participating bank or other entity
has purchased a participation).
(g) Any Lender or participant may, in connection
with any assignment or participation or proposed assignment
or participation pursuant to this Section 10.04, disclose to
the assignee or participant or proposed assignee or
participant any information relating to any Borrower
furnished to such Lender by or on behalf of such Borrower;
provided, however, that, prior to any such disclosure of
information designated by Alcoa as confidential, each such
assignee or participant or proposed assignee or participant
shall execute an agreement whereby such assignee or
participant shall agree (subject to customary exceptions) to
preserve the confidentiality of such confidential
information. Notwithstanding the foregoing, no Lender or
participant shall disclose any such information to any
person known to it to compete with Alcoa and its
Subsidiaries in any of the principal businesses of Alcoa and
its Subsidiaries taken as a whole, without the prior written
consent of Alcoa.
(h) Any Lender may at any time assign all or any
portion of its rights under this Agreement to a Federal
Reserve Bank; provided that no such assignment shall release
a Lender from any of its obligations hereunder. In order to
facilitate such an assignment to a Federal Reserve Bank,
each Borrower shall, at the request of the assigning Lender,
duly execute and deliver to the assigning Lender a
promissory note or notes evidencing the Loans made to such
Borrower by the assigning Lender hereunder.
(i) None of Borrowers shall assign or delegate
any of its rights or obligations hereunder; provided,
however, that 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
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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 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 fees, charges and
disbursements of Cravath, Swaine & Moore, counsel for the
Administrative Agent, and, in connection with any such
enforcement, the 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,
its Affiliates, each Lender and each of their respective
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 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
-71-
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
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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.
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. 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 this Section or the definition of "Required
Lenders", without the prior written consent of each Lender
-73-
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 the Engagement Letter 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 Engagement Letter. Nothing in this Agreement or the
Engagement Letter, expressed or implied, is intended to
confer upon any party other than the parties hereto and
thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the Engagement
Letter.
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, 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
-74-
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.
-75-
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 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
-76-
and notwithstanding any such judgment, to indemnify such
Lender against the resulting loss.
-77-
IN WITNESS WHEREOF, the Borrowers, 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/Robert G. Wennemer
Name: Robert G. Wennemer
Title: Vice President
and Treasurer
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent,
by /s/James H. Ramage
Name: James H. Ramage
Title: Vice President
-78-
ABN AMRO BANK N.V.,
by /s/J.M. Janovsky
Name: J.M. Janovsky
Title: Group Vice President
by /s/Lou McLinden
Name: Lou McLinden
Title: Vice President
-79-
AUSTRALIAN AND NEW ZEALAND BANKING
GROUP,
by /s/R. Scott McInnis
Name: R. Scott McInnis
Title: Head, Global Structured
Finance & Relationships
Management-Americas
-80-
BANCO BILBAO VIZCAYA,
by /s/John Martini Carreras
Name: John Martini Carreras
Title: Vice President
by /s/Francisco Miguens
Name: Francisco Miguens
Title: Assistant Vice President
-81-
BANK OF AMERICA, N.A.,
by /s/Thomas Blake
Name: Thomas Blake
Title: Managing Director
-82-
BANCO SANTANDER CENTRAL HISPANO
S.A. (NEW YORK BRANCH),
by /s/G.K. Greathouse
Name: G.K. Greathouse
Title: Senior Vice President
by /s/Mesta Anad
Name: Mesta Anad
Title: Assistant Vice President
-83-
BANK OF MONTREAL,
by /s/Ian M. Plester
Name: Ian M. Plester
Title: Director
-84-
BANK ONE, MICHIGAN,
by /s/Glenn A. Currin
Name: Glenn A. Currin
Title: First Vice President
-85-
CITIBANK, N.A.,
by /s/Raymond G. Dunning
Name: Raymond G. Dunning
Title: Managing Director
-86-
COMMERZBANK AG,
by /s/Andrew P. Lusk
Name: Andrew P. Lusk
Title: Assistant Treasurer
by /s/Robert J. Donohue
Name: Robert J. Donohue
Title: Senior Vice President
-87-
CREDIT SUISSE FIRST BOSTON,
by /s/Thomas G. Muoio
Name: Thomas G. Muoio
Title: Vice President
by /s/Jeffrey R. Ulmer
Name: Jeffrey R. Ulmer
Title: Vice President
-88-
DEUTSCHE BANK AG,
by /s/William W. McGinty
Name: William W. McGinty
Title: Director
by /s/Alexander Karow
Name: Alexander Karow
Title: Assistant Vice President
-89-
MELLON BANK, N.A.,
by /s/Robert J. Reichenbach
Name: Robert J. Reichenbach
Title: Assistant Vice President
-90-
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK,
by /s/Robert Bottamedi
Name: Robert Bottamedi
Title: Vice President
-91-
NATIONAL AUSTRALIA BANK LTD.,
by /s/Bill Schmid
Name: Bill Schmid
Title: Vice President
-92-
SAN PAOLO IMI SPA,
by /s/Luca Sacchi
Name: Luca Sacchi
Title: Vice President
by /s/Carlo Persico
Name: Carlo Persico
Title: Deputy General Manager
-93-
EXHIBIT A
TO CREDIT AGREEMENT
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amendment and Restatement
dated as of August 13, 1999 of the Revolving Credit
Agreement (as amended from time to time, the "Credit
Agreement") dated as of August 14, 1998, among Alcoa Inc.
("Alcoa"), a Pennsylvania corporation, certain subsidiaries
of Alcoa, the Lenders, and The Chase Manhattan 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 obliga
tions under the Credit Agreement, including, without limita
tion, the Commitment of the Assignor on the Assignment Effec
tive 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 Assign
ment Effective Date and the amount, if any, set forth on the
reverse hereof of the Fees accrued to the Assignment Effec
tive Date for the account of the Assignor. Each of the
Assignor and the Assignee hereby makes and agrees to be
bound by all the representations, warranties and agreements
set forth in Section 10.04(c) of the Credit Agreement, a
copy of which has been received by each such party. 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 Acceptance, 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 Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
2. This Assignment and Acceptance 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 $2,500.
-A1-
3. This Assignment and Acceptance 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 (may
not be fewer than 5 Business Days after the Date
of Assignment):
<TABLE>
<CAPTION>
Percentage Assigned of Applicable
Facility/Commitment(set forth, to at least
8 decimals, as a percentage of the Facility
Facility/ Principal and the aggregate Commitments of all
Commitment Amount Assigned Lenders thereunder)
---------- --------------- -------------------
<S> <C> <C>
Commitment $ %
Loan: $ %
Fees
Assigned (if $ %
any):
</TABLE>
The terms set forth above and on the reverse side
hereof are hereby agreed to:
Accepted*/
, as Assignor ALCOA INC.,
- ---------------
-A2-
by:
by: -------------------
-------------------
Name: Name:
Title: Title:
, as Assignee THE CHASE MANHATTAN
- --------------- BANK
by:
-------------------
Name: by:
Title: -------------------
Name:
Title:
- -----------------
*/ To be completed to the extent consents are required
under Section 10.04(b) of the Credit Agreement.
-A3-
EXHIBIT B
TO CREDIT AGREEMENT
ADMINISTRATIVE QUESTIONNAIRE
ALCOA INC.
Please accurately complete all the following information and
return via FAX to the attention of Linda Hill at The Chase
Manhattan Bank Agency Services Corporation as soon as
possible.
FAX Number: 212-552-7490
Legal Name to Appear in Documentation:
Credit Contacts:
Primary Contact:
Street Address:
City, State, Postal Code:
Phone Number:
FAX Number:
Backup Contact:
Street Address:
City, State, Postal Code:
Phone Number:
FAX Number:
Tax Withholding Information:
Non Resident Alien: Y N
----- -----
* Enclose Form 4224 or 1001 (if applicable).
Tax ID/File Number:
Administrative Contacts - Borrowings, Paydowns, Interest,
Fees, Etc.
-B1-
Contact:
Street Address:
City, State, Postal Code:
Phone Number:
FAX Number:
Payment Instructions:
Name of Bank where funds are to be transferred:
Routing Transit/ABA number of Bank where funds are to be
transferred:
Name of Account, if applicable:
Account Number:
Additional Information:
-B2-
CONTACTS/NOTIFICATION METHODS
FOR ABR BORROWINGS (IN NEW YORK)
Institution Name::
Street Address:
City, State, Postal Code:
Tax Withholding Information:
Non Resident Alien: Y N
----- -----
* Enclose Form 4224 or 1001 (if applicable).
Tax ID/File Number:
Administrative Contracts - Borrowings, Paydowns, Interest,
Fees, Etc.
Contact:
Street Address:
City, State, Postal Code:
Phone Number:
FAX Number:
Payment Instructions:
Name of Bank where funds are to be transferred:
Routing Transit/ABA number of Bank where funds are to be
transferred:
Name of Account, if applicable:
Account Number:
Additional Information:
-B3-
CONTACTS/NOTIFICATION METHODS
FOR EURODOLLAR BORROWINGS (IN NEW YORK)
Institution Name::
Street Address:
City, State, Postal Code:
Tax Withholding Information:
Non Resident Alien: Y N
----- -----
* Enclose Form 4224 or 1001 (if applicable).
Tax ID/File Number:
Administrative Contacts - Borrowings, Paydowns, Interest,
Fees, Etc.
Contact:
Street Address:
City, State, Postal Code:
Phone Number:
FAX Number:
Payment Instructions:
Name of Bank where funds are to be transferred:
Routing Transit/ABA number of Bank where funds are to be
transferred:
Name of Account, if applicable:
Account Number:
Additional Information:
-B4-
EXHIBIT C
TO CREDIT AGREEMENT
[Letterhead of]
ALCOA
[ ] , 1999
--
The Chase Manhattan 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 Secretary and a Senior Counsel of Alcoa Inc. ("Alcoa")
and in such capacity have represented Alcoa in connection
with the Amendment and Restatement dated as of August 13,
1999 of the Revolving Credit Agreement dated as of August
14, 1998 (the "Agreement"), among Alcoa, certain
subsidiaries of Alcoa, the Lenders and The Chase Manhattan
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 lawyers who report
to me or through other counsel, the originals or conformed
copies of 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
-C1-
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 Government 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 or affecting Alcoa or any of its
Subsidiaries which in my opinion is likely to result in a
Material Adverse Effect.
-C2-
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,
Denis A. Demblowski
-C3-
EXHIBIT D
TO CREDIT AGREEMENT
[FORM OF]
DESIGNATION OF BORROWING SUBSIDIARY
Reference is made to the Amendment and Restatement,
dated as of August 13, 1999 of the Revolving Credit Agree
ment dated as of August 14, 1998 (as amended from time to
time, the "Credit Agreement"), among Alcoa Inc. ("Alcoa"), a
Pennsylvania corporation, certain subsidiaries of Alcoa, the
Lenders and The Chase Manhattan 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 [ ], 19[ ] (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:
-D1-
[ ], as
Subsidiary,
by
-------------------------
Name:
Title:
ALCOA INC.,
by
-------------------------
Name:
Title:
Accepted:
THE CHASE MANHATTAN BANK, as the Administrative Agent
by
-------------------------
Name:
Title:
-D2-
SCHEDULE 2.01
<TABLE>
<CAPTION>
Contact Person
Name and Address and Telephone
of the Lenders and Telecopy Numbers Commitment (U.S.$)
-------------- -------------------- ------------------
<S> <C> <C>
The Chase Manhattan Bank James Ramage $102,500,000.00
270 Park Avenue Tel: 212-270-1373
New York, NY 10017 Fax: 212-270-4724
ABN AMRO Bank, N.V. Jim Janovsky $100,000,000.00
One PPG Place, Tel: 412-566-2269
Suite 2950 Fax: 412-566-2266
Pittsburgh, PA 15222
Citibank, N.A. Ray Dunning $100,000,000.00
399 Park Avenue Tel: 212-559-1034
New York, NY 10043 Fax: 212-832-9857
Morgan Guaranty Trust Henry Harnischfeger $100,000,000.00
Company of New York Tel: 212-648-7360
60 Wall Street Fax: 212-648-5876
New York, NY 10260
Bank of America, N.A. Paul Cole $75,000,000.00
901 Main St., 67th Flr. Tel: 214-209-0942
Dallas, TX 75202 Fax: 214-209-0980
COMMERZBANK AG, Sean Harrigan $75,000,000.00
2 World Financial Center Tel: 212-266-7501
New York, NY 10281-1050 Fax: 212-266-7235
Andrew Lusk
Tel: 212-266-7685
Fax: 212-266-7530
Credit Suisse First Boston Jeffrey Ulmer $75,000,000.00
11 Madison Ave., Tel: 212-325-9054
20th Flr. Fax: 212-325-8319
New York, NY 10010
Mellon Bank, N.A. Richard K. James $75,000,000.00
One Mellon Bank Center Tel: 412-234-5340
Pittsburgh, PA 15258-0001 Fax: 412-234-8888
Australian & New Zealand Steve Christenson $42,500,000.00
Bkg. Group Tel: 212-801-9100
1177 Ave. of the Americas Fax: 212-801-9131
New York, NY 10036
Banco Bilbao Vizcaya John Carreras $42,500,000.00
1345 Avenue of The Americas Tel: 212-728-1653
New York, NY 10105 Fax: 212-333-2904
Bank of Montreal Ian Plester $42,500,000.00
430 Park Avenue Tel: 212-605-1417
New York, NY 10022 Fax: 212-605-1451
Bank One, Michigan William McCaffrey $42,500,000.00
611 Woodward Ave., Tel: 313-225-3444
2nd Flr. Fax: 313-225-9857
Detroit, MI 48226
Philip Medsger
Tel: 313-225-2406
Fax: 313-225-1671
Deutsche Bank AG Christopher Hall $42,500,000.00
31 West 52nd Street, Tel: 212-469-8223
24th Floor Fax: 212-469-8212
New York, NY 10019
National Australia Bank Bill Schmid $42,500,000.00
Ltd. Tel: 212-916-9596
200 Park Ave., 34th Flr. Fax: 212-983-1969
New York, NY 10166
Banco Santander Central Greta Greathouse $21,250,000.00
Hispano Tel: 212-350-3682
45 E. 53rd Street Fax: 212-350-3690
New York, NY 10022
San Paolo IMI SPA Robert Mancuny $21,250,000.00
245 Park Ave., 35th Flr. Tel: 212-692-3130
New York, NY 10167 Fax: 212-599-5303
</TABLE>
SCHEDULE 3.04
Government Approvals
International Capital Form S filed with the Federal Reserve
Bank of New York.
-2S1-
SCHEDULE 3.08
Litigation
None.
-3S1-
SCHEDULE 6.01(a)
Liens
Liens related to the following tax-exempt municipal bond
issues:
<TABLE>
<CAPTION>
<S> <C> <C>
Saline County, Arkansas 1999 4,650,000
St. Lawrence County, New York Series A 1999 9,640,000
Milam County, Texas Series 1999 16,855,000
Indiana Development Finance Authority Series 1999 13,905,000
St. Lawrence County, New York Series A 1998 22,800,000
Yankton, South Dakota Series 1997 9,000,000
Hutchinson, Kansas HUD UDAG Loan 1996 372,924
Berkeley County, South Carolina Series 1996 27,450,000
St. Louis, Missouri Series 1992 5,505,000
Frederick County, Maryland Series 1992 9,880,000
Warrick County, Indiana Series 1992 12,475,000
Blount County, Tennessee Series 1992 2,450,000
Lebanon County, Pennsylvania Series 1992 1,020,000
Lebanon County, Pennsylvania Series 1992 1,000,000
Grayson County, Texas Series 1992 9,000,000
Milam County Texas Series 1995 11,000,000
Calhoun County Navigation District, Texas Series 1995 7,700,000
State of Ohio Series 1996 2,150,000
Chelan County, Washington Series 1995 14,000,000
Vidalia, Louisiana Series 1995 10,000,000
Tifton, Georgia Series 1996 10,000,000
Mobile, Alabama Series 1989 4,000,000
Frederick County, Maryland Series 1978 2,145,000
Saline County, Arkansas Series 1977 915,000
St. Lawrence County, New York Series 1977 915,000
Blount County, Tennessee Series 1977 2,045,000
Franklin, Indiana Series 1973 1,310,000
$212,182,924
TOTAL
Mortgages and Capital Leases:
Alcoa Inc. $39,780,325
Alcoa Building Products, Inc. 8,169
TOTAL $251,971,418
</TABLE>
-4S2-
EXHIBIT 12
<TABLE>
<CAPTION>
Computation of Ratio of Earnings to Fixed Charges
For the nine months ended September 30, 1999
(in millions, except ratio)
1999
----
<S> <C>
Earnings:
Income before taxes on income $ 1,255.4
Minority interests' share of earnings of majority-
owned subsidiaries without fixed charges -
Equity income (38.0)
Fixed charges 192.4
Proportionate share of income of 50%-owned
persons 28.6
Distributed income of less than 50%-owned persons 2.4
Amortization of capitalized interest 12.1
--------
Total earnings $ 1,452.9
Fixed Charges:
Interest expense:
Consolidated $ 153.3
Proportionate share of 50%-owned persons 2.7
--------
156.0
--------
Amount representative of the interest factor in rents:
Consolidated 35.6
Proportionate share of 50%-owned persons .8
--------
36.4
--------
Fixed charges added to earnings 192.4
--------
Interest capitalized:
Consolidated 8.2
Proportionate share of 50%-owned persons -
--------
8.2
--------
Preferred stock dividend requirements of
majority-owned subsidiaries -
--------
Total fixed charges $ 200.6
========
Ratio of earnings to fixed charges 7.2
========
</TABLE>
-26-
EXHIBIT 15
October 6, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: Alcoa Inc.
1. Form S-8 (Registration Nos.33-24846 and 333-00033)
Alcoa Savings Plan for Salaried Employees; Alcoa
Fujikura Ltd. Salaried 401(k) Savings Plan
2. Form S-8 (Registration Nos.33-22346, 33-49109,
33-60305, 333-27903, 333-62663 and 333-79575)
Long Term Stock Incentive Plan; Alumax Inc. Long
Term Incentive and Employee Equity Ownership
Plans; Alcoa Stock Incentive Plan
3. Form S-3 (Registration No. 33-60045) and
Form S-3 (Registration No. 33-64353) and
Form S-3 (Registration No. 333-59381)
Debt Securities and Warrants to Purchase Debt Securities,
Preferred Stock and Common Stock of the Company
and Trust Preferred Securities of Alcoa Trust I
4. Form S-4 (Registration No. 333-58227)
Registration of Alcoa common stock, par value $1.00 per
share
Ladies and gentlemen:
We are aware that our report dated October 6, 1999,
accompanying interim financial information of Alcoa
Inc. and subsidiaries for the three-month and nine-
month periods ended September 30, 1999 and 1998, is
incorporated by reference in the registration
statements referred to above. Pursuant to Rule 436 (c)
under the Securities Act of 1933, this report should
not be considered as part of a registration statement
prepared or certified by us within the meaning of
Sections 7 and 11 of that Act.
Very truly yours,
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
-27-
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> SEP-30-1999
<CASH> 211,900
<SECURITIES> 85,100
<RECEIVABLES> 2,213,100
<ALLOWANCES> 62,600
<INVENTORY> 1,583,500
<CURRENT-ASSETS> 4,754,400
<PP&E> 18,136,200
<DEPRECIATION> 9,157,700
<TOTAL-ASSETS> 16,864,500
<CURRENT-LIABILITIES> 3,175,500
<BONDS> 2,716,900
0
55,800
<COMMON> 394,700
<OTHER-SE> 5,504,800
<TOTAL-LIABILITY-AND-EQUITY> 16,864,500
<SALES> 12,069,700
<TOTAL-REVENUES> 12,147,400
<CGS> 9,387,700
<TOTAL-COSTS> 9,387,700
<OTHER-EXPENSES> 663,200
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 153,200
<INCOME-PRETAX> 1,255,400
<INCOME-TAX> 401,700
<INCOME-CONTINUING> 853,700
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 720,200
<EPS-BASIC> 1.96
<EPS-DILUTED> 1.91
</TABLE>
