Execution Copy
AMENDMENT NO. 1 dated as of February 1, 1996 (this
"Amendment"), among USG Corporation, a Delaware corporation (the
"Borrower"), the financial institutions parties hereto (the
"Lenders" and Chemical Bank, a New York banking corporation, in
its separate capacity as agent for the Lenders (the "Agent").
PRELIMINARY STATEMENTS. (1) The Borrower, the
Lenders, the Issuing Banks and the Agent have entered into the
Credit Agreement dated as of July 27, 1995 (the "Credit
Agreement") and have agreed to amend the Credit Agreement as
hereinafter set forth.
(2) Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to such terms in
the Credit Agreement.
In consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto
hereby agree, on the terms and subject to the conditions set
forth herein, as follows:
SECTION 1. Amendment of the Credit Agreement. The
Credit Agreement is hereby amended as follows:
1.1. Section 1.01 of the Credit Agreement is hereby
amended to insert the following new definitions in appropriate
alphabetical order therein:
"Chemical" shall mean Chemical Bank, a New York banking
corporation, and its successors and assigns.
"Mandatory Borrowing" shall have the meaning given to
such term in Section 2.02A(d).
"Maximum Swingline Amount" shall mean $30,000,000.
"Money Market Rate" shall mean, at any time, a
rate agreed upon between the Borrower and Chemical.
"Money Market Rate Borrowing" shall mean a
Borrowing comprised of Money Market Rate Loans.
"Money Market Rate Loan" shall mean any Swingline Loan
the rate of which is based upon the Money Market Rate.
"Swingline Loan Borrowing" shall mean a group of
Swingline Loans of the same Type made by Chemical on a
single date.
"Swingline Loan Note" shall have the meaning given to
such term in Section 2.05.
"Swingline Loans" shall mean the swingline loans made
by Chemical to the Borrower pursuant to Section 2.02A. Each
Swingline Loan shall be a Money Market Rate Loan or an ABR
Loan.
1.2. Section 1.01 of the Credit Agreement is hereby
further amended to amend and restate the following definitions in
their entirety:
"Borrowing" shall mean a Revolving Loan Borrowing,
a Competitive Bid Borrowing or a Swingline Loan
Borrowing.
"Lender" shall mean, at any time, (i) a financial
institution that is either set forth on the signature pages
hereof or that has become a lender pursuant to Section 9.04
and that, as of such time, remains a party hereto and (ii)
in its individual capacity, Chemical, as maker of the
Swingline Loans.
"Loans" shall mean Competitive Bid Loans, Revolving
Loans and/or Swingline Loans.
"Note" shall mean a Competitive Bid Note, a Revolving
Loan Note or the Swingline Loan Note.
"Outstandings" shall mean, at any given time, the
aggregate outstanding principal balance of Revolving Loans,
Competitive Bid Loans, Swingline Loans and the LC Exposure.
1.3. Section 1.01 of the Credit Agreement is hereby
further amended to insert the following as new clause (c)
contained in the definition of "Interest Period" immediately
preceding the words "and (c)" contained therein and to relabel
current clause (c) contained therein as new clause (d):
"(c) as to any Money Market Rate Loan, the period
commencing on the date of such Money Market Rate Loan,
and ending on a date agreed upon by the Borrower and
Chemical which is at least one and not more than 21
days after the making of such Money Market Rate Loan,"
1.4. Section 1.01 of the Credit Agreement is hereby
further amended to insert the phrase "all Swingline Loans
requested but not yet advanced," immediately following the second
comma contained in the second sentence of the definition of
"Revolving Credit Availability" contained therein.
1.5. Section 1.01 of the Credit Agreement is hereby
further amended to insert the term "the Money Market Rate"
immediately following the term "Alternate Base Rate," contained
in the definition of "Type" contained therein.
1.6. Section 2.01 of the Credit Agreement is hereby
amended to insert the following as new clause (b) thereunder and
to relabel current clause (b) contained therein as new clause
(c):
"(b) Subject to the terms and conditions set forth in
this Agreement, Chemical in its individual capacity, hereby
agrees to make Swingline Loans, in dollars, to the Borrower
from time to time during the period from the Closing Date to
the Business Day immediately preceding the Termination Date,
provided that (i) such Swingline Loan Borrowing shall not
exceed the Revolving Credit Availability at such time and
(ii) the aggregate principal amount of all Swingline Loans
shall not exceed the Maximum Swingline Amount."
1.7. Section 2.02(c) of the Credit Agreement is hereby
amended to insert the parenthetical "(unless such Revolving Loan
Borrowing constitutes a Mandatory Borrowing in which case the
amounts so received shall be applied in accordance with Section
2.02A(d))" immediately preceding the word "or" where it appears
in the first sentence thereof.
1.8. Article II of the Credit Agreement is hereby
amended to insert the following new Section 2.02A immediately
following Section 2.02 contained therein:
"SECTION 2.02A. Swingline Loans. (a) Each Swingline
Loan Borrowing shall be in a minimum principal amount of
$1,000,000 and in multiples of $500,000 in excess thereof or
in an aggregate principal amount equal to the Revolving
Credit Availability, provided that in no case shall any
Money Market Rate Borrowing be in a principal amount of less
than $500,000. Each Swingline Loan Borrowing shall be
comprised entirely of ABR Loans or Money Market Rate Loans,
as the Borrower may request pursuant to Section 2.03A,
provided that on the date of any Mandatory Borrowing
described below, all Swingline Loans giving rise to such
Mandatory Borrowing shall automatically become ABR Loans.
Borrowings of more than one Type may be outstanding at the
same time; provided, however, that the Borrower shall not be
entitled to request any Borrowing which, if made, would
result in an aggregate of more than four separate Borrowings
of Swingline Loans which are Money Market Rate Loans being
outstanding hereunder at any one time. All Swingline Loans
may be repaid and reborrowed from time to time in accordance
with the provisions hereof.
(b) No later than 12:00 noon, New York City time, or
in the event that notice of a Borrowing of Swingline Loans
is given on the proposed date of such Borrowing, no later
than 3:00 p.m., New York City time, on the date specified by
the Borrower for each Swingline Loan Borrowing, Chemical
will credit the amounts of such Swingline Loans to the
general deposit account of the Borrower maintained with
Chemical.
(c) Notwithstanding any other provision of this
Agreement, the Borrower shall not be entitled to request any
Swingline Loan Borrowing if the Interest Period requested
with respect thereto would end after the Maturity Date.
(d) On any Business Day, Chemical may, in its sole
discretion, give notice to the Lenders that its outstanding
Swingline Loans shall be funded with a Revolving Loan
Borrowing (provided that such notice shall be deemed to have
been automatically given upon the occurrence of an Event of
Default under Sections 7.01(g) or Section 7.01(h)), in which
case a Revolving Loan Borrowing constituting ABR Loans (such
Borrowing, a "Mandatory Borrowing") shall be made on the
immediately succeeding Business Day by all Lenders
simultaneously and proportionately to their respective Pro
Rata Shares (determined before giving effect to any
termination of the Commitments pursuant to Section 7.02(a))
in accordance with the terms of Section 2.02 and the
proceeds thereof shall be applied directly by the Agent,
upon its receipt thereof from the respective Lenders, to
Chemical to repay Chemical for such outstanding Swingline
Loans. Each Lender hereby irrevocably agrees to make
Revolving Loans upon one Business Day's notice pursuant to
each Mandatory Borrowing in the amount and in the manner
specified in the preceding sentence and on the date
specified in writing by Chemical notwithstanding (i) the
amount of the Mandatory Borrowing may not comply with the
minimum amount for Borrowings otherwise required hereunder,
(ii) whether any conditions specified in Section 4.01 are
then satisfied, (iii) whether a Potential Event of Default
or an Event of Default then exists, (iv) the date of such
Mandatory Borrowing and (v) any reduction in the Revolving
Credit Commitments after any such Swingline Loans were made.
In the event that any Mandatory Borrowing cannot for any
reason be made on the date otherwise required above
(including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with
respect to the Borrower), each Lender hereby agrees that it
shall forthwith purchase from Chemical such assignments in
the outstanding Swingline Loans as shall be necessary to
cause the Lenders to share in such Swingline Loans ratably
based upon their respective Pro Rata Shares (determined
before giving effect to any termination of the Commitments
pursuant to Section 7.02(a)), provided that all interest
payable on the Swingline Loans shall be for the account of
Chemical until the date the respective assignment is
purchased and, to the extent attributable to the purchased
assignment, shall be payable to the assignee from and after
such date of purchase. Notwithstanding anything to the
contrary in Section 2.01(b), Chemical will not make, and
shall have no obligation to make, a Swingline Loan after it
has received written notice from any Lender or otherwise
becomes aware that a Potential Event of Default or an Event
of Default exists.
(e) Notwithstanding Section 2.08(f), interest on each
Swingline Loan shall be payable on the date the Lenders are
required to make a Mandatory Borrowing under clause (d)
above.
(f) The Borrower shall have the right at any time and
from time to time to prepay Swingline Loans, in whole or in
part, provided, however, that (i) each partial prepayment
shall be in an amount which is an integral multiple of
$500,000 and (ii) all optional prepayments of Swingline
Loans shall be subject to Section 2.18 but otherwise without
premium or penalty. All prepayments of Money Market Rate
Loans under this clause (f) shall be accompanied by accrued
interest on the principal amount being prepaid to the date
of payment."
1.9. Article II of the Credit Agreement is hereby
amended to insert the following new Section 2.03A immediately
following Section 2.03 contained therein:
"SECTION 2.03A. Rate Inquiry; Notice of Borrowings of
Swingline Loans. (a) The Borrower may prior to 1:00 p.m.,
New York City time, on any Business Day, request a quote of
the Money Market Rate which would be applicable for
Swingline Loans, specifying the amount of the proposed Money
Market Rate Loans and the maturity date thereof. Chemical
hereby agrees that it shall promptly provide such quote.
(b) The Borrower shall give Chemical written or
telecopy notice (or telephone notice promptly confirmed in
writing or by telecopy) of a Borrowing consisting of
Swingline Loans, not later than 1:00 p.m., New York City
time, on the Business Day such Swingline Loan is to be made.
Such notice shall be irrevocable (except as expressly set
forth herein) and shall in each case refer to this Agreement
and specify (i) the date of such Borrowing, (ii) the amount
of such Borrowing, (iii) whether the Swingline Loan
Borrowing then being requested is to be a Money Market Rate
Borrowing or an ABR Borrowing, and (iv) any other terms to
be applicable to such Swingline Loan Borrowing.
(c) Mandatory Borrowings shall be made upon the notice
specified in Section 2.02A(d), with the Borrower irrevocably
agreeing, by its incurrence of any Swingline Loan, to the
making of Mandatory Borrowings as set forth in Section
2.02A(d)."
1.10. Section 2.05 of the Credit Agreement is hereby
amended to insert the following as new clause (c) thereunder and
to relabel current clause (c) contained therein as new clause
(d):
"(c) The Borrower shall execute and deliver to
Chemical on or before the date on which the initial
Swingline Loan is made a promissory note substantially in
the form of Exhibit H-3 (the "Swingline Loan Note") to
evidence the aggregate amount of Chemical's Swingline Loans
and with other appropriate insertions. The Swingline Loan
Note shall be stated to mature on the Termination Date and
shall be in a principal amount equal to the Maximum
Swingline Amount."
1.11. Section 2.06(a) of the Credit Agreement is
hereby amended to amend and restate the first sentence contained
therein in its entirety as follows:
"The Borrower agrees to pay the outstanding principal
balance of:
(i) each Revolving Loan on the
Termination Date;
(ii) each Swingline Loan which is an ABR
Loan on the Termination Date and each
Swingline Loan which is a Money Market Rate
Loan on the Interest Payment Date with
respect thereto; and
(iii) each Competitive Bid Loan as
provided in Section 2.04(a).
1.12. Section 2.08(a) of the Credit Agreement is
hereby amended to insert the following phrase "and the Swingline
Loans" immediately following the term "Revolving Loans" where it
appears therein.
1.13. Section 2.08 of the Credit Agreement is hereby
further amended to insert the following as new clause (e)
thereunder and to relabel current clause (e) contained therein as
new clause (f):
"(e) Subject to the provisions of Section 2.09, the
Swingline Loans comprising each Money Market Rate 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 Money Market Rate."
1.14. Section 2.14 of the Credit Agreement is hereby
amended to insert the following phrase immediately following the
term "Revolving Loans" where it appears therein:
"or the Swingline Loans, and in the case where such
payments or prepayments of Revolving Loans or Swingline
Loans are insufficient, Competitive Bid Loans,"
1.15. Section 2.14 of the Credit Agreement is hereby
further amended to insert the phrase "or Money Market Rate Loans"
immediately following the term "Eurodollar Loans" where it
appears therein.
1.16. Section 2.18 of the Credit Agreement is hereby
amended to insert the phrase "or Money Market Rate Loan"
immediately following the term "Eurodollar Loan" in the first
instance where it appears therein.
1.17. Section 2.18 of the Credit Agreement is hereby
further amended to insert the phrase "or Money Market Rate Loan,
as applicable" immediately following the term "Eurodollar Loan"
in the second instance where it appears therein.
1.18. Section 2.18 of the Credit Agreement is hereby
further amended to insert the phrase "or Money Market Rate, as
the case may be," immediately following the term "LIBO Rate"
where it appears therein.
1.19. Section 4.01(a) of the Credit Agreement is
hereby amended and restated in its entirety as follows:
"(a) Notice of Borrowing. The Agent, Chemical and/or,
where applicable, an Issuing Bank shall have received a
notice of such Credit Event as required by Section 2.03,
Section 2.03A, Section 2.04 or Section 2.15(c)."
1.20. The Credit Agreement is hereby amended to attach
Exhibit H-3 hereto as Exhibit H-3 to the Credit Agreement.
SECTION 2. Representations and Warranties. The
Borrower represents and warrants to each of the Lenders and the
Agent that:
(a) This Amendment has been duly authorized, executed
and delivered by it and constitutes its legal, valid and
binding obligation, enforceable in accordance with its terms
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium
or other similar laws affecting creditors' rights generally
and by general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or
in equity).
(b) Before and after giving effect to this Amendment,
the representations and warranties set forth in Article V of
the Credit Agreement are true and correct in all material
respects with the same effect as if made on the date hereof,
except to the extent such representations and warranties
expressly relate to an earlier date.
(c) Before or after giving effect to this Amendment,
no Event of Default or Potential Event of Default has
occurred and is continuing.
SECTION 3. Condition to Effectiveness. The amendments
to the Credit Agreement set forth in this Amendment shall become
effective as of the date first above written when the Agent shall
have received counterparts of this Amendment that, when taken
together, bear the signatures of the Borrower, Chemical and the
Requisite Lenders.
SECTION 4. Credit Agreement. Except as specifically
amended hereby, the Credit Agreement and each Loan Document shall
continue in full force and effect in accordance with the
respective provisions thereof as in existence on the date hereof.
After the date hereof, any reference to the Credit Agreement
shall mean the Credit Agreement as amended hereby.
SECTION 5. Applicable Law. THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
SECTION 6. Counterparts. This Amendment may be
executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall
constitute but one contract.
SECTION 7. Expenses. The Borrower agrees to reimburse
the Agent for its out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and
disbursements of Sidley & Austin, counsel for the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and year
first written above.
USG Corporation
BY --------------------------
Name ------------------------
Title -----------------------
Chemical Bank, individually and
as Agent
By --------------------------
Name ------------------------
Title -----------------------
Bankers Trust Company
By --------------------------
Name ------------------------
Title -----------------------
(Additional signature pages for exhibit 10(q) have been intentionally omitted).
EXHIBIT H-3
to
CREDIT AGREEMENT
Dated as of July 27, 1995
FORM OF
SWINGLINE LOAN NOTE
$30,000,000 February __, 1996
FOR VALUE RECEIVED, the undersigned, USG Corporation, a
Delaware corporation (the "Borrower"), HEREBY UNCONDITIONALLY
PROMISES TO PAY to the order of Chemical Bank (the "Lender") the
principal sum of THIRTY MILLION AND NO/100 DOLLARS ($30,000,000),
or, if less, the aggregate unpaid amount of all of the Swingline
Loans made by the Lender pursuant to the "Credit Agreement" (as
hereinafter defined). Capitalized terms used herein and not
otherwise defined herein are used as defined in the Credit
Agreement.
The principal amount of the indebtedness evidenced
hereby shall be payable in the amounts and on the dates as
determined in accordance with the terms of the Credit Agreement
and, if not sooner paid in full, on the Termination Date. The
Borrower further promises to pay interest on the unpaid principal
amount of each Swingline Loan from the date of such Swingline
Loan, until the principal amount thereof is paid in full, at the
interest rates and payable at the times as determined in
accordance with the terms of the Credit Agreement.
All payments of principal and interest in respect of
this Swingline Loan Note shall be made payable to the Agent in
lawful money of the United States of America in same day funds
for the Lender's account at Chemical Bank, Account No. 323-207316,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Re: Payment
for USG Corporation, or at such other place as shall be
designated in writing by the Agent for such purpose in accordance
with the terms of the Credit Agreement.
All Swingline Loans made by the Lender to the Borrower,
and all repayments of the principal of all Swingline Loans shall
be recorded by the Lender and, prior to any transfer thereof,
endorsed by the Lender on the schedule attached hereto and made a
part hereof; provided, that the failure of the Lender to make any
such recordation or endorsement shall not affect the obligations
of the Borrower hereunder or under the Credit Agreement.
This Swingline Loan Note is the Swingline Loan Note
referred to in, and is entitled to the benefits of, that certain
Credit Agreement dated as of July 27, 1995, as amended by
Amendment No. 1 thereto dated as of February 1, 1996 (as amended,
restated, supplemented or otherwise modified from time to time,
the "Credit Agreement") among the Borrower, certain financial
institutions party thereto as "Lenders" and "Issuing Banks" and
Chemical Bank, as agent (the "Agent"). The Credit Agreement,
among other things, (i) provides for the making of Swingline
Loans by the Lender to the Borrower from time to time and (ii)
contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events.
Borrower hereby waives demand, presentment, protest and
notice of nonpayment and protest.
Whenever in this Swingline Loan Note reference is made
to the Agent, the Lender or the Borrower, such reference shall be
deemed to include, as applicable, a reference to their respective
successors and assigns. The provisions of this Swingline Loan
Note shall be binding upon and shall inure to the benefit of said
successors and assigns. Borrower's successors and assigns shall
include, without limitation, a receiver, trustee or debtor in
possession of or for Borrower.
THIS SWINGLINE LOAN NOTE SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO SHALL BE DETERMINED,
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
USG CORPORATION
By:___________________________
Title:
USG Corporation Swingline Loan Note Schedule
Amount of Unpaid
Amount of Type of Interest Principal Principal Notation
Date Loan Loan Period Repaid Balance Made by
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