EXHIBIT 10(z)
SECOND AMENDMENT TO
REVOLVING CREDIT AND GUARANTY AGREEMENT
This SECOND AMENDMENT TO REVOLVING CREDIT AND GUARANTY
AGREEMENT dated as of August 24, 2001 (the "SECOND AMENDMENT"), is entered into
by and among USG CORPORATION, a Delaware corporation, and each of its
subsidiaries party to the Agreement (as defined below), as borrowers (each,
individually, a "BORROWER" and collectively, the "BORROWERS"), USG FOREIGN
INVESTMENTS, LTD., a Delaware corporation, as guarantor (the "GUARANTOR"), THE
CHASE MANHATTAN BANK, a New York banking corporation, and each of the other
commercial banks, finance companies, insurance companies or other financial
institutions or funds from time to time party to the Agreement (as defined
below) (the "LENDERS"), and THE CHASE MANHATTAN BANK, as administrative agent
(the "ADMINISTRATIVE AGENT").
WITNESSETH:
WHEREAS, the Borrowers, the Guarantor, the Lenders and the
Administrative Agent are parties to that certain Revolving Credit and Guaranty
Agreement dated as of June 25, 2001, as amended (the "AGREEMENT"), pursuant to
which the Lenders have made available to the Borrowers a revolving credit and
letter of credit facility in an aggregate principal amount not to exceed
$350,000,000; and
WHEREAS, the Borrowers and the Guarantor have requested that
the Lenders make certain modifications to the Agreement; and
WHEREAS, the Borrowers, the Guarantor and the Lenders desire
to amend and supplement the Agreement to reflect the modifications requested by
the Borrowers and the Guarantor;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Definitions. Capitalized terms used and not
otherwise defined in this Second Amendment are used as defined in the Agreement.
Section 2. Amendments to Agreement. Subject to the conditions
set forth in Section 4 hereof, the Agreement is hereby amended as follows:
2.1 Section 3.6 of the Agreement is hereby amended by amending
the first sentence thereof in its entirety to read as follows:
There are no Liens of any nature whatsoever on any assets of
any of the Borrowers, the Guarantor or their Domestic
Subsidiaries other than (i) Permitted Liens, (ii) Liens
securing Intercompany Indebtedness reflected on Schedule 6.10,
and
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(iii) Liens in favor of the Administrative Agent and the
Lenders, it being understood that Schedule 3.6 may be
supplemented within ninety (90) days after the Closing Date or
during such longer period as the Administrative Agent may
determine is necessary to permit the completion of lien
searches in the following Minnesota counties: Xxxxxxx County,
Hennepin County, Carlton County, St. Louis County, Anoka
County and Dakota County, it being further understood that no
such supplement to any schedule shall cause the Indebtedness
secured by Permitted Liens to exceed $10,000,000.
2.2 Section 7.1(m) of the Agreement is hereby amended in its
entirety to read as follows:
(m) the Borrowers or the Guarantor shall make any Pre-Petition
Payment other than Pre-Petition Payments authorized by the
Bankruptcy Court in respect of: (i) accrued payroll and
related expenses, employee benefits, workers' compensation,
trust fund taxes, customer obligations and insurance company
and related administrator obligations as of the Filing Date,
all to be reasonably acceptable to the Administrative Agent;
(ii) reclamation claims, materialmen's liens, freight charges
and pre-petition claims of Critical Vendors in an aggregate
amount not to exceed $50,000,000 (payments to Critical Vendors
shall be limited to not more than $35,000,000 of the
$50,000,000 amount); (iii) the assumption of executory
contracts and unexpired leases; or (iv) those Pre-Petition
real property tax and personal property tax claims, in an
aggregate amount not to exceed $15,000,000, and specifically
authorized by the Bankruptcy Court pursuant to that certain
Motion of Debtors and Debtors in Possession for an Order
Authorizing (A) Payment of Certain Prepetition Real and
Personal Property Taxes and (B) Compromise and Settlement of
Related Claims filed by the Borrowers with the Bankruptcy
Court on August 30, 2001; or
2.3 Section 10.19 of the Agreement is hereby amended by
inserting immediately after the words "sixty (60) days after the Closing Date",
the following parenthetical phrase: "(ninety (90) days after the Closing Date or
such longer period as the Administrative Agent may determine is necessary to
permit the completion of lien searches in those Minnesota counties listed in
Section 3.6(iii))".
2.4 Schedule 3.6 to the Agreement is hereby replaced in its
entirety by Schedule 3.6 attached hereto.
Section 3. Effectiveness. The effectiveness of this Second
Amendment is conditioned upon the Administrative Agent's receipt of executed
counterparts of this Second Amendment which, when taken together, bear the
signatures of the Borrowers and the Required Lenders (or, in the case of any
party as to which an executed counterpart shall not have been received, the
Administrative Agent shall have received telegraphic, telex or other written
confirmation from such party of execution of a counterpart hereof by such
party). The "EFFECTIVE DATE" shall mean the first Business Day on which the
foregoing condition is fully satisfied.
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Section 4. Representations and Warranties. Each Borrower
represents and warrants to the Lenders that:
4.1 After giving effect to the amendments contained herein and
taking into account all prior written waivers and amendments in respect of the
Agreement, the representations and warranties of the Borrowers contained in
Section 3 of the Agreement are true and correct in all material respects on and
as of the date hereof as if such representations and warranties had been made on
and as of the date hereof (except to the extent that any such representations
and warranties specifically relate to an earlier date); and
4.2 After giving effect to the amendments contained herein and
taking into account all prior written waivers and amendments in respect of the
Agreement, (i) each Borrower is in compliance with all the terms and provisions
set forth in the Agreement, and (ii) no Event of Default has occurred and is
continuing (other than as specifically waived herein) or would result from the
execution, delivery and performance of this Second Amendment.
Section 5. Full Force and Effect. Except as specifically
amended hereby, all of the terms and conditions of the Agreement shall remain in
full force and effect, and the same are hereby ratified and confirmed. No
reference to this Second Amendment need be made in any instrument or document at
any time referring to the Agreement, a reference to the Agreement in any such
instrument or document to be deemed a reference to the Agreement as amended
hereby.
Section 6. Counterparts. This Second Amendment may be executed
in any number of counterparts, each of which shall constitute an original, but
all of which taken together shall constitute one and the same agreement.
Section 7. Headings. The various headings of this Second
Amendment are inserted for convenience only and shall not affect the meaning or
interpretation of this Second Amendment or any provisions hereof.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed as of the day and the year first written.
BORROWERS:
USG CORPORATION
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
UNITED STATES GYPSUM COMPANY
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
and Assistant Treasurer
USG INTERIORS, INC.
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
and Assistant Treasurer
L&W SUPPLY CORPORATION
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
and Assistant Treasurer
USG INTERIORS INTERNATIONAL, INC.
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
LA MIRADA PRODUCTS CO., INC.
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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BEADEX MANUFACTURING, LLC
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
B-R PIPELINE COMPANY
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
USG INDUSTRIES, INC.
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
USG PIPELINE COMPANY
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
STOCKING SPECIALISTS, INC.
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
GUARANTOR:
USG FOREIGN INVESTMENTS, LTD.
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
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LENDERS:
THE CHASE MANHATTAN BANK,
Individually and as Administrative Agent
By:
----------------------------------
Name:
Title:
CIT BUSINESS CREDIT
By:
----------------------------------
Name:
Title:
GMAC COMMERCIAL CREDIT LLC
By:
----------------------------------
Name:
Title:
FLEET CAPITAL CORPORATION
By:
----------------------------------
Name:
Title:
FOOTHILL CAPITAL CORPORATION
By:
----------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
COMMERCIAL FINANCE
By:
----------------------------------
Name:
Title:
CONGRESS FINANCIAL CORPORATION
By:
----------------------------------
Name:
Title:
000
XXXX XX XXXXXXXX
By:
----------------------------------
Name:
Title:
BANK OF AMERICA, N. A.
By:
----------------------------------
Name:
Title:
GUARANTY BUSINESS CREDIT CORPORATION
By:
----------------------------------
Name:
Title:
TRANSAMERICA BUSINESS
CAPITAL CORPORATION
By:
----------------------------------
Name:
Title:
LASALLE BUSINESS CREDIT, INC.
By:
----------------------------------
Name:
Title:
AMSOUTH BANK
By:
----------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LTD.
By:
----------------------------------
Name:
Title:
218
DEBIS FINANCIAL SERVICES, INC.
By:
----------------------------------
Name:
Title:
PROVIDENT FINANCIAL CORP.
By:
----------------------------------
Name:
Title:
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Schedule 3.6 to the Revolving Credit and Guaranty Agreement
LIENS
DEBTOR CREDITOR DESCRIPTION OF PROPERTY JURISDICTION DATE OF FILING
------------------- ---------------------- ----------------------- ------------------ --------------
USG Interiors, Inc. State of Indiana - tax $3,445.84 Xxxxxx County-Ind. 12/16/94
USG Interiors, Inc. State of Indiana - tax $5,445.95 Xxxxxx County-Ind. 04/25/96
USG Interiors, Inc. State of Indiana - tax $1,814.12 Xxxxxx County-Ind. 08/26/96
USG Interiors, Inc. State of Indiana - tax $2,133.16 Xxxxxx County-Ind. 08/26/96
USG Interiors, Inc. State of Indiana - tax $4,638.31 Xxxxxx County-Ind. 08/26/96
USG Interiors, Inc. State of Indiana - tax $1,225.27 Xxxxxx County-Ind. 06/10/97
USG Interiors, Inc. State of Indiana - tax $1,485.16 Xxxxxx County-Ind. 06/10/97
USG Interiors, Inc. State of Indiana - tax $1,483.77 Xxxxxx County-Ind. 06/10/97
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