EXHIBIT 10(y)
FIRST AMENDMENT TO
REVOLVING CREDIT AND GUARANTY AGREEMENT
This FIRST AMENDMENT TO REVOLVING CREDIT AND GUARANTY
AGREEMENT dated as of August 2, 2001 (the "FIRST 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 (the "AGREEMENT"), pursuant to which the
Administrative Agent has 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, the Guarantor and the Lenders desire
to amend and supplement the Agreement to reflect certain modifications to the
Agreement regarding Borrowing Base calculations; and
WHEREAS, subject to the terms and conditions set forth in
Section 10.3 of the Agreement, each Lender is entitled to assign to one or more
Eligible Assignees all or a ratable portion of its interests, rights and
obligations under the Agreement (including, without limitation, all or a portion
of its Commitment and the same portion of the related Loans at the time owing to
it) by executing and delivering an Assignment and Acceptance between such Lender
and such Eligible Assignee substantially in the form of Exhibit D to the
Agreement; and
WHEREAS, pursuant hereto, Chase, the sole Lender party to the
Agreement immediately prior to the effective date of this First Amendment (in
such capacity, the "ORIGINAL LENDER") wishes to assign to each of the financial
institutions (other than itself) that is named on the Commitment Schedule hereto
(such financial institutions other than the Original Lender, collectively the
"NEW LENDERS"), and each of the New Lenders wishes to assume, a portion of the
Original Lender's interests, rights and obligations under the Agreement so that,
after giving effect to this First Amendment, the respective Commitments of the
Original Lender and the New Lenders will be as set forth in such Commitment
Schedule; and
WHEREAS, the Borrowers, the Original Lender, the New Lenders
and the Administrative Agent have determined that the execution and delivery of
this First Amendment to, among other things, effectuate a reallocation of the
Total Commitment among the Original Lender and the New Lenders will be more
expeditious and administratively efficient than the execution
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and delivery of separate Assignments and Acceptances between the Original Lender
and each of the New Lenders; and
WHEREAS, upon the occurrence of the Effective Date (as
hereinafter defined), each of the New Lenders shall become a party to the
Agreement as a Lender and shall have the rights and obligations of a Lender
thereunder, and the respective Commitments of the Original Lender and each New
Lender under the Agreement shall be in the amount set forth opposite its name on
the Commitment Schedule hereto, as such amount may be reduced from time to time
pursuant to the Agreement;
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 First Amendment are used as defined in the Agreement.
Section 2. Amendments to Agreement. Subject to the conditions
set forth in Section 6 hereof, the Agreement is hereby amended as follows:
2.1 Clause "(f)" of the Introductory Statement of the
Agreement is hereby amended by deleting the word "Borrowers" from the
parenthetical phrase thereof and substituting therefor the word "Guarantor".
2.2 Section 1.1 of the Agreement is hereby amended by (A)
adding the following defined terms in proper alphabetical order:
"ACCOUNT DEBTOR" means, with respect to any Account, the
obligor with respect to such Account.
"ADJUSTED ELIGIBLE ACCOUNTS RECEIVABLE" shall mean the product
of Eligible Accounts Receivable, minus the Dilution Reserve,
minus the NSF Check Reserve, and minus the Contra Reserve.
"CONTRA RESERVE" shall mean, at any date, a reserve determined
in the Administrative Agent's sole discretion, based upon the
estimated amount of Accounts wherein the Account Debtor (i) is
a creditor of a Borrower, (ii) has or has asserted or is
reasonably expected to assert a right of set-off against a
Borrower or (iii) has disputed or is reasonably expected to
dispute its liability (whether by chargeback or otherwise) or
made or is reasonably expected to make any claim with respect
to the Account or any other Account of a Borrower which has
not been resolved, in each case, without duplication, to the
extent of the amount owed by such Borrower to the Account
Debtor, the amount of such actual or asserted right of
set-off, or the amount of such dispute or claim, as the case
may be.
"DILUTION FACTORS" shall mean, without duplication, with
respect to any period, the aggregate amount of all deductions,
credit memos, returns, adjustments, allowances,
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bad debt write-offs and other non-cash credits which are
recorded to reduce accounts receivable in a manner consistent
with current and historical accounting practices of the
Borrowers.
"DILUTION RATIO" shall mean, at any date, the amount
(expressed as a percentage) equal to (a) the aggregate amount
of the applicable Dilution Factors for the six (6) most
recently ended fiscal months divided by (b) total gross sales
for the six (6) most recently ended fiscal months.
"DILUTION RESERVE" shall mean, at any date, the applicable
Dilution Ratio multiplied by the Eligible Accounts Receivable
on such date.
"ELIGIBLE ACCOUNTS RECEIVABLE" means, at the time of any
determination thereof, each Account that satisfies the
following criteria at the time of creation and continues to
meet the same at the time of such determination: such Account
(i) has been invoiced to, and represents the bona fide amounts
due to the Borrowers from, the purchaser of goods or services,
in each case originated in the ordinary course of business of
the Borrowers and (ii) is not ineligible for inclusion in the
calculation of the Borrowing Base pursuant to any of clauses
(a) through (o) below or otherwise deemed by the
Administrative Agent in good faith to be ineligible for
inclusion in the calculation of the Borrowing Base as
described below. Without limiting the foregoing, to qualify as
Eligible Accounts Receivable, an Account shall indicate no
person other than a Borrower as payee or remittance party. In
determining the amount to be so included, the face amount of
an Account shall be reduced by, without duplication, to the
extent not reflected in such face amount, (i) the amount of
all accrued and actual discounts, claims, credits or credits
pending, promotional program allowances, price adjustments,
finance charges or other allowances (including any amount that
the Borrowers, as applicable, may be obligated to rebate to a
customer pursuant to the terms of any agreement or
understanding (written or oral)), (ii) the aggregate amount of
all limits and deductions provided for in this definition and
elsewhere in this Agreement and (iii) the aggregate amount of
all cash received in respect of such Account but not yet
applied by the Borrowers to reduce the amount of such Account.
Unless otherwise approved from time to time in writing by the
Administrative Agent (subject to the limitations and
requirements set forth in Section 10.10(a) of the Agreement),
no Account shall be an Eligible Account Receivable if, without
duplication:
(a) the relevant Borrower does not have sole lawful and
absolute title to such Account; or
(b) (i) it is unpaid more than 90 days from the original
date of invoice or 60 days from the original due date
or (ii) it has been written off the books of the
Borrowers or has been otherwise designated on such
books as uncollectible; or
(c) more than 50% in face amount of all Accounts of the
same Account Debtor are ineligible pursuant to clause
(b) above; or
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(d) the Account Debtor is insolvent or the subject of any
bankruptcy case or insolvency proceeding of any kind;
or
(e) the Account is not payable in Dollars or the Account
Debtor is either not organized under the laws of the
United States of America, any State thereof, or the
District of Columbia or is located outside or has its
principal place of business or substantially all of
its assets outside the United States, except to the
extent the Account is supported by an irrevocable
letter of credit satisfactory to the Administrative
Agent (as to form, substance and issuer) and assigned
to and directly drawable by the Administrative Agent;
or
(f) the Account Debtor is the United States of America or
any department, agency or instrumentality thereof,
unless the relevant Borrower duly assigns its rights
to payment of such Account to the Administrative
Agent pursuant to the Assignment of Claims Act of
1940, as amended, which assignment and related
documents and filings shall be in form, and substance
satisfactory to the Administrative Agent; or
(g) the Account is supported by a security deposit (to
the extent received from the applicable Account
Debtor), progress payment, retainage or other similar
advance made by or for the benefit of the applicable
Account Debtor, in each case to the extent thereof;
or
(h) (i) it is not subject to a valid and perfected first
priority Lien in favor of the Administrative Agent
for the benefit of the Secured Parties, subject to no
other Liens other than Liens (if any) permitted by
the Loan Documents or (ii) it does not otherwise
conform in all material respects to the
representations and warranties contained in the Loan
Documents relating to Accounts; or
(i) such Account was invoiced (i) in advance of goods or
services provided, or (ii) twice, or (iii) the
associated income has not been earned; or
(j) such Account arises from the sale of unused natural
gas by the Borrowers (in which event 50% of the
amount of such Account may constitute an Eligible
Account Receivable, subject to satisfaction of the
other clauses of this definition); or
(k) such Account is classified as a suspense account or a
note receivable by the Borrowers in accordance with
the Borrowers' current and historical practices; or
(l) the sale to the Account Debtor is on a xxxx-and-hold,
guaranteed sale, sale-and-return, ship-and-return,
sale on approval or consignment or other similar
basis or made pursuant to any other written agreement
providing for repurchase or return of any merchandise
which has been claimed to be defective or otherwise
unsatisfactory; or
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(m) the Account represents a progress-billing or
otherwise does not represent a completed sale; or
(n) the Account Debtor is an Affiliate of the Borrowers;
or
(o) such Account was not paid in full, and the Borrower
created a new receivable for the unpaid portion of
the Account, without the agreement of the customer,
and other Accounts constituting chargebacks, debit
memos and other adjustments for unauthorized
deductions.
Notwithstanding the foregoing, all Accounts of any single
Account Debtor and its Affiliates which, in the aggregate
exceed (i) 20% in respect of Account Debtors whose securities
are rated Investment Grade by any of Moody's or S&P or (ii) 5%
in respect of all other Account Debtors, of the total amount
of all Eligible Accounts Receivable at the time of any
determination shall be deemed not to be Eligible Accounts
Receivable to the extent of such excess. In determining the
aggregate amount of Accounts from the same Account Debtor that
are unpaid more than 90 days from the date of invoice or more
than 60 days from the due date pursuant to clause (b) above,
there shall be excluded the amount of any net credit balances
relating to Accounts with invoice dates more than 90 days
prior to the date of determination or more than 60 days from
the due date. Furthermore, no Account shall be an Eligible
Account Receivable if it is for goods that have been sold
under a purchase order or pursuant to the terms of a contract
or other agreement or understanding (written or oral) that
indicates that any Person other than a Borrower has or has had
or has purported to have or have had an ownership interest in
such goods.
"ELIGIBLE FINISHED GOODS" shall mean, on any date, Eligible
Inventory composed of Finished Goods on such date as shown on
the Borrowers' perpetual inventory records in accordance with
their current and historical accounting practices, minus
Inventory Reserves.
"ELIGIBLE GROSS COMMODITY RAW MATERIALS" shall mean, on any
date, Eligible Inventory composed of commodity type materials,
as determined by the Administrative Agent, and categorized as
rock, paper or steel on the Borrowers' perpetual inventory
records in accordance with current and historical accounting
practices, and any other commodity type material, as
determined by the Administrative Agent from time to time, in
the Administrative Agent's sole discretion, minus Inventory
Reserves.
"ELIGIBLE INVENTORY" shall mean, on any date, the Inventory
Value of the Borrowers on such date deemed by the
Administrative Agent in good faith to be eligible for
inclusion in the calculation of the Borrowing Base. Without
limiting the foregoing, to qualify as "Eligible Inventory", no
Person other than the Borrowers shall have any direct or
indirect ownership interest or title to such Inventory. Unless
otherwise from time to time approved in writing by the
Administrative Agent (subject to the limitations and
requirements set forth in Section 10.10(a) of
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the Agreement), no Inventory shall be deemed Eligible
Inventory if (and without duplication):
(a) it is not owned solely by the Borrowers or the Borrowers
do not have sole and good, valid and unencumbered title
thereto; or
(b) it is not located in the United States; or
(c) it is not located on property owned or leased by the
Borrowers or in a contract warehouse specified on a schedule
attached to the Security and Pledge Agreement and segregated
or otherwise separately identifiable from goods of all others,
if any, stored on the premises; or
(d) it is not subject to a valid and perfected first priority
Lien in favor of the Administrative Agent, except, with
respect to Inventory stored at sites described in clause (c)
above, for Liens for unpaid rent or normal and customary
warehousing charges, in each case, not yet paid, to the extent
of such unpaid rent or charges; or
(e) it is goods returned or rejected due to quality issues by
the Borrowers' customers or goods in transit to third parties
(other than to warehouse sites described in clause (c) above);
or
(f) it is seconds or thirds or stale or is obsolete or slow
moving or unmerchantable, or does not otherwise conform to the
representations and warranties contained in the Loan
Documents; or
(g) it is located at any operating facility that the Borrowers
plan to close, or at any operating facility that is closed,
within thirty (30) days from the date of determination of the
most recent Borrowing Base, except in the case of Finished
Goods to be sold in the ordinary course of business with a
remaining shelf life of at least 120 days until expiration
date; or
(h) any portion of its value is attributable to capitalized
overhead costs, with the exception of Fixed Overhead and
Depreciation; or
(i) it is comprised of film, pallets, and/or other shipping
materials or supplies, repair parts, fuel, cartons used in
production or other containers, and any other such material
not considered used for sale by the Administrative Agent from
time to time, in the Administrative Agent's sole discretion;
or
(j) the Borrowers classify such item as a sample item on their
perpetual inventory records, or the Borrowers use such item
for display; or
(k) it is a discontinued product or component thereof; or
(l) any portion of the Inventory Value thereof is attributable
to intercompany profit among the Borrowers or their
Affiliates; or
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(m) any Inventory that is damaged or marked for return to
vendor.
"ELIGIBLE OTHER RAW MATERIALS" shall mean, on any date, the
Inventory Value of Raw Materials of the Borrowers on such date
as shown on the Borrowers' perpetual inventory records or
equivalent reporting in accordance with their current and
historical classification of raw materials, excluding Supplies
to the extent deemed Eligible Inventory, minus Inventory
Reserves.
"FINISHED GOODS" shall mean packaged goods to be sold by the
Borrowers in the ordinary course of business.
"FIXED OVERHEAD AND DEPRECIATION" shall mean indirect
manufacturing costs and mobile plant equipment depreciation as
classified by the Borrowers in accordance with their current
and historical accounting practices.
"INVENTORY" shall mean all Raw Materials, Work-in-Process, and
Finished Goods held by the Borrowers in the normal course of
business.
"INVENTORY RESERVES" means the following, each as determined
by the Administrative Agent from time to time:
(a) a reserve for shrink, or discrepancies that arise
pertaining to inventory quantities on hand between the
Borrowers perpetual accounting system, and physical counts of
the inventory; or
(b) a reserve for Finished Goods which are deemed to be
greater than six (6) months old, or that have not turned in
six (6) months; or
(c) a reserve for Finished Goods which are designated to be
returned to the vendor, or are recognized as damaged by the
Borrower; or
(d) a reserve for amounts owing to landlords or warehousemen
for Inventory stored at leased facilities or public warehouses
in the amount of (i) to the extent Borrowers' are able to
determine the Borrowers' average rental expense for such
facility, three (3) times the Borrower's average monthly
rental expense for such facility plus (ii) in all other
events, the Inventory Value of the Inventory stored at such
leased facilities or public warehouses; or
(e) a reserve for Inventory located at contractors' or
vendors' facilities in the amount of the Inventory Value of
such Inventory; or
(f) any other reserve as deemed appropriate by the
Administrative Agent in its sole discretion, from time to
time.
"INVENTORY VALUE" shall mean a dollar amount equal to the
lesser of (i) the actual cost of Inventory determined on a
basis consistent with GAAP and with the
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Borrowers' current and historical accounting practice or (ii)
the market value of such Inventory.
"INVESTMENT GRADE" shall mean either (i) at least Baa3 by
Moody's (or the then equivalent) or (ii) at least BBB- by S&P
(or the then equivalent).
"LENDER AFFILIATE" shall mean, (a) with respect to any Lender,
(i) an Affiliate of such Lender or (ii) any entity (whether a
corporation, partnership, trust or otherwise) that is engaged
in making, purchasing, holding or otherwise investing in loans
and similar extensions of credit in the ordinary course of its
business and is administered or managed by a Lender or an
Affiliate of such Lender and (b) with respect to any Lender
that is a fund which invests in loans and similar extensions
of credit, any other fund that invests in loans and similar
extensions of credit and is managed by the same investment
advisor as such Lender or by an Affiliate of such investment
advisor.
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc. or any
successor to the rating agency business
thereof.
"NSF CHECK RESERVE" shall mean, at any date, a reserve
determined in the Administrative Agent's sole discretion,
based upon estimated amounts of checks, promissory notes,
drafts, trade acceptances or other instruments for the payment
of money which have been received, presented for payment and
returned uncollected for any reason.
"PP&E COMPONENT" shall mean, at the time of any determination,
an amount equal to the lesser of (i) 50% of the liquidation
value in place of certain machinery and equipment owned by the
Borrowers and 25% of the fee simple market value of certain
real estate owned by the Borrowers, all as determined in the
Administrative Agent's sole discretion from time to time, or
(ii) 20% of the Borrowing Base exclusive of the PP&E
Component.
"RAW MATERIALS" shall mean any raw materials or Supplies used
or consumed in the manufacture, packing or shipping of goods
to be sold by the Borrowers in the ordinary course of
business.
"S&P" shall mean Standard & Poor's Rating Services, a division
of The XxXxxx-Xxxx Companies, Inc., or any successor to the
rating agency business thereof.
"SUPPLIES" shall mean film, packaging and/or shipping supplies
or materials not otherwise directly used in the production of
Finished Goods.
"WORK-IN-PROCESS" shall mean goods to be sold by the Borrowers
in the ordinary course of business, which are currently in the
process of being manufactured.
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and; (B) amending the definitions of the following terms in their entirety to
read as follows:
"BORROWING BASE" shall mean, at the time of any determination,
an amount equal to the sum, without duplication, of (a) 85% of
Adjusted Eligible Accounts Receivable of each of the Borrowers
other than L&W Supply Corporation and Stocking Specialists,
Inc., plus (b) 75% of Adjusted Eligible Accounts Receivable of
L&W Supply Corporation and Stocking Specialists, Inc., plus
(c) 60% of Eligible Gross Commodity Raw Materials, plus (d)
15% of Eligible Other Raw Materials, plus (e) 60% of Eligible
Finished Goods of each of the Borrowers other than L&W Supply
Corporation and Stocking Specialists, Inc., plus (f) 50% of
Eligible Finished Goods of L&W Supply Corporation and Stocking
Specialists, Inc., plus (g) the PP&E Component, minus (h) the
Carve-Out. The Borrowing Base at any time shall be determined
by reference to the most recent Borrowing Base Certificate
delivered to the Administrative Agent pursuant to Section 5.8
of the Agreement. Subject to the limitations and requirements
set forth in Section 10.10(a) of the Agreement, standards of
eligibility and reserves and advance rates of the Borrowing
Base may be revised and adjusted from time to time by the
Administrative Agent in its sole discretion, with any changes
in such standards to be effective three (3) days after
delivery of notice thereof to the Borrowers.
"BORROWING BASE CERTIFICATE" shall mean a certificate
substantially in the form of Exhibit E hereto (with such
changes therein as may be required by the Administrative Agent
to reflect the components of and reserves against the
Borrowing Base as provided for hereunder from time to time),
executed and certified as accurate and complete by a Financial
Officer of USG Corporation, which shall include appropriate
exhibits, schedules, supporting documentation, and additional
reports as (i) outlined in Schedule 1 and Schedule 2 to
Exhibit E, (ii) as reasonably requested by the Administrative
Agent, and (iii) as provided for in Section 5.8 of the Credit
Agreement.
and; (C) amending the definition of Permitted Liens by (i) deleting the word
"and" at the end of clause "(vii)" thereof, and (ii) adding at the end of clause
"(viii)" thereof a new clause "(ix)" as follows: "and (ix) Liens consisting of
deposits with or for the benefit of natural gas, secondary fiber (waste paper)
and fuel oil derivatives traders as may be required pursuant to the terms of the
International Swap Dealers Association Master Agreement(s) executed in the
ordinary course of business in connection with the Borrowers' natural gas,
secondary fiber (waste paper) and fuel oil hedging programs and in an aggregate
amount not to exceed at any time $20,000,000."
2.3 Section 2.3(e) of the Agreement is hereby amended by
adding immediately after the words "Section 10.3" in the second sentence thereof
the following: "or Section 10.10(b)".
2.4 Section 2.17 of the Agreement is hereby amended by adding
in clause "(ii)" thereof immediately after the words "immediately available
funds" the following: ", without defense, setoff or counterclaim and free of any
restriction or condition,".
2.5 Section 2.23(b) of the Agreement is hereby amended by
deleting the word "Parent" in the parenthetical phrase thereof and substituting
therefor the word "Guarantor".
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2.6 Section 3.6 of the Agreement is hereby amended by: (i)
deleting the words "Schedule 3.6 and" in clause "(iii)" thereof; and (ii) adding
immediately after the words "Final Order" in clause "(iii)" thereof the
following: "and Schedule 3.6 may be supplemented within sixty (60) days after
the Closing Date, it being further understood that no such supplement to any
schedule shall cause the Permitted Liens to exceed $10,000,000."
2.7 Section 5.8 of the Agreement is hereby amended in its
entirety to read as follows:
BORROWING BASE CERTIFICATE. On or prior to August 3, 2001,
furnish to the Administrative Agent a completed Borrowing Base
Certificate as of June 30, 2001. Upon the end of the Initial
Period, the Borrowers will furnish to the Administrative
Agent, no later than (i) four (4) Business Days after each of
the weeks ended, commencing with the week ending August 17,
2001 (to be delivered no later than August 23, 2001), a
completed Borrowing Base Certificate as of the last day of the
immediately preceding one week period, (ii) nine (9) Business
Days following the immediately preceding fiscal month ended,
commencing with the fiscal month ending August 31, 2001, a
completed Borrowing Base Certificate showing the Borrowing
Base as of the close of business on the last day of such
fiscal month, and (iii) if requested by the Administrative
Agent, at any other time when the Administrative Agent
reasonably believes that the then existing Borrowing Base
Certificate is materially inaccurate, as soon as reasonably
available but in no event later than nine (9) Business Days
after such request, a completed Borrowing Base Certificate
showing the Borrowing Base as of the date so requested, in
each case with supporting documentation and additional reports
with respect to the Borrowing Base as the Administrative Agent
may reasonably request. The components of the Borrowing Base
consisting of property, plant and equipment shall be updated
from time to time upon receipt of periodic valuation updates
received from the Administrative Agent's asset valuation
experts. The components of the Borrowing Base consisting of
inventory shall be updated monthly as of the close of business
on the last day of each fiscal month.
2.8 Section 7.1(m) of the Agreement is hereby amended by: (i)
deleting the word "or" at the end of clause "(i)" thereof; and (ii) adding at
the end of clause "(ii)" thereof a new clause "(iii)" as follows: "or (iii) the
assumption of executory contracts and unexpired leases."
2.9 Section 7.1 of the Agreement is hereby amended by: (i) in
the last paragraph thereof and immediately preceding clause (i) of that
paragraph, at the end of the phrase "with five (5) business days' prior notice"
and before the colon at the end of that phrase, inserting the following
parenthetical: "(the "DEFAULT NOTICE"); and (ii) adding to the end of the
parenthetical phrase of clause (iii) thereof the following parenthetical: ("the
DEFAULT NOTICE PERIOD").
2.10 Section 10.3(b) of the Agreement is hereby amended by
adding in clause "(i)" thereof immediately after the words "in the case of an
assignment to" the following: "any Lender Affiliate or to".
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2.11 Section 10.10(a) of the Agreement is hereby amended by:
(i) deleting the following parenthetical phrase: "(except as contemplated by
Section 2.2(d), as to which no consent shall be required)"; and (ii) in clause
"(B)" thereof (x) deleting the word "or" at the end of clause "(ii)" thereof and
substituting therefor a comma; and (y) adding at the end of clause "(iii)"
thereof new clauses "(iv)" and "(v)" as follows: "(iv) increase the Total
Commitment to an amount in excess of $350,000,000 or (v) increase the advance
ratios used in calculation of the Borrowing Base."
2.12 Section 10.10(b) of the Agreement is hereby amended by
deleting the following parenthetical phrase: "(or the consent described in
clause (B) of the first sentence of Section 10.10(a))."
2.13 Annex A to the Agreement is hereby replaced in its
entirety by Annex A attached hereto.
2.14 The Agreement is hereby amended by adding Exhibit E (Form
of Borrowing Base Certificate) thereto in the form attached hereto.
2.15 The signature pages to the Agreement are hereby amended
to list, in addition to the Original Lender, the New Lenders, as such new
Lenders are listed on the signature pages to this First Amendment.
Section 3. Assignment and Acceptance.
3.1 By its execution and delivery hereof, the Original Lender
hereby irrevocably sells and assigns to each of the New Lenders without recourse
to the Original Lender, and each of the New Lenders hereby irrevocably purchases
and assumes from the Original Lender without recourse to the Original Lender, as
of the Effective Date, an undivided interest (the "Assigned Interest") in and to
all the Original Lender's rights and obligations under the Agreement in a
principal amount as set forth opposite each such New Lender's name on Annex A.
3.2 By its execution and delivery hereof, the Original Lender
(i) makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Agreement or any other of the Loan Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Agreement, any other of the Loan Documents or any other instrument or
document furnished pursuant thereto, other than that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrowers or the performance or observance by the Borrowers of any of
their respective obligations under the Agreement, any of the other Loan
Documents or any other instrument or document furnished pursuant thereto; and
(iii) requests that the Administrative Agent evidence the Assigned Interest by
recording the information contained on Annex A in the Register which reflects
the assignment being made hereby (and after giving effect to any other
assignments which have become effective on the Effective Date).
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3.3 By its execution and delivery hereof, each of the New
Lenders, (i) represents and warrants that it is legally authorized to enter into
this First Amendment and that it is an Eligible Assignee; (ii) confirms that it
has received a copy of the Agreement, together with copies of the most recent
financial statements delivered pursuant to the Agreement, and such other
documents and information as it has deemed appropriate to make its own credit
analysis; (iii) agrees that it will, independently and without reliance upon the
Administrative Agent, the Original 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 the
Agreement; (iv) appoints and authorizes the Administrative Agent to take such
action as Administrative Agent on its behalf and to exercise such powers under
the Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (v) agrees that it will be bound by the
provisions of the Agreement and will perform in accordance with its terms all
the obligations which by the terms of the Agreement are required to be performed
by it as a Lender; (vi) if the New Lender is organized under the laws of a
jurisdiction outside the United States, attaches the forms prescribed by the
Internal Revenue Service of the United States certifying as to the New Lender's
exemption from United States withholding taxes with respect to all payments to
be made to the New Lender under the Agreement or such other documents as are
necessary to indicate that all such payments are subject to such tax at a rate
reduced by an applicable tax treaty; and (vii) has supplied the information
requested on the administrative questionnaire heretofore supplied by the
Administrative Agent.
3.4 By its execution and delivery hereof, each of the New
Lenders (i) agrees that any interest, Commitment Fees and Letter of Credit Fees
that accrued prior to the Effective Date shall not be payable to such New Lender
and authorizes and directs the Administrative Agent to deduct such amounts from
any interest, Commitment Fees or Letter of Credit Fees paid to it after the
Effective Date and to pay such amounts to the Original Lender (it being
understood that interest, Commitment Fees and Letter of Credit Fees respecting
the Commitment of the Original Lender and each New Lender that accrue on or
after the Effective Date shall be payable to each such Lender in accordance with
its Commitment), (ii) agrees that if it receives any amount under the Agreement
that is for the account of the Original Lender, it shall receive the same for
the account of such Original Lender to the extent of the Original Lender's
interest therein and shall promptly pay the same to such other party, (iii)
acknowledges that if such New Lender is organized under the laws of a
jurisdiction outside the United States, such New Lender has heretofore furnished
to the Administrative Agent the forms prescribed by the Internal Revenue Service
of the United States certifying as to such New Lender's exemption from United
States withholding taxes with respect to any payments to be made to such New
Lender under the Agreement (or such other documents as are necessary to indicate
that all such payments are subject to such tax at a rate reduced by an
applicable tax treaty).
3.5 From and after the Effective Date, each New Lender will
pay to the Administrative Agent (for the account of the Original Lender) such
amount as represents such New Lender's pro rata portion of the aggregate
principal amount of the Loans that are outstanding on the Effective Date and
such New Lender's pro rata portion of the aggregate amount of the then
unreimbursed drafts, if any, that were theretofore drawn under Letters of
Credit, and (ii) the Administrative Agent shall pay to each New Lender such fees
as have been previously agreed to between the Administrative Agent and such New
Lender.
196
3.6 From and after the Effective Date, (i) each of the New
Lenders shall be a party to the Agreement and, to the extent provided in this
First Amendment, have the rights and obligations of a Lender thereunder, and
(ii) the Original Lender shall, to the extent provided in this First Amendment,
relinquish its rights and be released from its obligations under the Agreement,
provided that Assignor hereby represents and warrants that the restrictions set
forth in Section 10.3 of the Agreement pertaining to the minimum amount of
assignments have been satisfied.
3.7 The execution of this First Amendment by the Borrowers,
the Administrative Agent and the Fronting Bank is evidence of the consents
required pursuant to Section 10.3(e) of the Agreement. In addition, to the
extent it is not satisfied by virtue of execution and delivery hereof, the
condition contained in clause (iii) of Section 10.3(e) of the Agreement is
hereby waived. Pursuant to Section 2.7(e) of the Agreement, the Borrowers agree
to execute and deliver a promissory note payable to the order of each New Lender
to evidence the assignment and assumption provided for herein.
3.8 By executing and delivering this First Amendment, each New
Lender hereby becomes party to the Agreement as a Lender, with all of the
rights, privileges, obligations and duties of a Lender thereunder. Without
limiting the generality of the foregoing, each New Lender agrees to perform its
duties and obligations under the Agreement in accordance with the terms thereof.
Section 4. Termination of Initial Period. Each of the
Borrowers, the Lenders and the Administrative Agent hereby acknowledge and agree
that the Initial Period terminated on July 31, 2001.
Section 5. Effectiveness. The effectiveness of this First
Amendment is conditioned upon the Administrative Agent's receipt of executed
counterparts of this First Amendment which, when taken together, bear the
signatures of the Borrowers, the Original Lender and each New Lender (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.
Section 6. Representations and Warranties. Each Borrower
represents and warrants to the Lenders that:
6.1 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
6.2 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
197
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 First Amendment.
Section 7. 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 First 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 8. Counterparts. This First 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 9. Headings. The various headings of this First
Amendment are inserted for convenience only and shall not affect the meaning or
interpretation of this First Amendment or any provisions hereof.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
198
IN WITNESS WHEREOF, the parties hereto have caused this First
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
199
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
200
LENDERS:
THE CHASE MANHATTAN BANK,
Individually and as Administrative Agent
By:
-------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
[LENDER NAME]
By:
-------------------------------------
Name:
Title:
[LENDER NAME]
By:
-------------------------------------
Name:
Title:
[LENDER NAME]
By:
-------------------------------------
Name:
Title:
[LENDER NAME]
By:
-------------------------------------
Name:
Title:
[LENDER NAME]
By:
-------------------------------------
Name:
Title:
[LENDER NAME]
By:
-------------------------------------
Name:
Title:
201
[LENDER NAME]
By:
-------------------------------------
Name:
Title:
[LENDER NAME]
By:
-------------------------------------
Name:
Title:
[LENDER NAME]
By:
-------------------------------------
Name:
Title:
202
EXHIBIT E
Page 1 of 4
USG CORPORATION
FORM OF BORROWING BASE CERTIFICATE*
FOR THE PERIOD ENDED _______________________**
A. Available accounts receivable (Exhibit E, page 2 of 4 ) $
----------
B. Available inventory (Exhibit E page 4 of 4) $
----------
C. PP&E Component $
----------
D. Carve-Out $
----------
E. Borrowing Base (lines A + B + C - D) $
-----------
F. COMMITMENT $
----------
G. LESSER OF LINES E OR F $
-----------
H. AGGREGATE PRINCIPAL AMOUNT OF ALL LOANS OUTSTANDING $
----------
I. LETTERS OF CREDIT OUTSTANDING $
----------
J. AGGREGATE OUTSTANDING AMOUNT (LINES H + I) $
-----------
K. FACILITY AVAILABILITY (G - J) $
-----------
OFFICER'S CERTIFICATION:
Pursuant to the
Revolving Credit and Guaranty Agreement dated as of June 25,
2001, as amended (capitalized terms used herein shall have the meaning assigned
to such terms in the Credit Agreement), the undersigned certifies that the
information provided in this certificate to The Chase Manhattan Bank, as
Administrative Agent, is accurate and complete based on the accounting records
of
USG Corporation.
------------------------------------ ----------------
Signature & Title Date
* The Borrowing Base Certificate is to be accompanied by the
documentation outlined in Schedule 1 and 2 to Exhibit E.
** Borrowing Base Certificates for accounts receivable are to be submitted
weekly, 4 Business Days subsequent to the week end. Borrowing Base
Certificates for inventory are to be submitted monthly, 9 Business Days
subsequent to the month end.
203
EXHIBIT E
Page 2 of 4
USG CORPORATION
FORM OF BORROWING BASE CERTIFICATE*
FOR THE PERIOD ENDED _______________________**
US Gypsum USG Interiors L&W Supply Total
-------------- -------------- --------------- ---------------
Gross domestic accounts receivable per aging
-------------- -------------- --------------- ---------------
Less accounts receivable reserves and/or
accruals
-------------- -------------- --------------- ---------------
Add description as appropriate
Net domestic accounts receivable
Less ineligibles:
60 days past due or 90 days old
-------------- -------------- --------------- ---------------
Credit reclass
-------------- -------------- --------------- ---------------
Cross-age (50%)
-------------- -------------- --------------- ---------------
Foreign customers
-------------- -------------- --------------- ---------------
Affiliate
-------------- -------------- --------------- ---------------
Gas account
-------------- -------------- --------------- ---------------
Chargebacks
-------------- -------------- --------------- ---------------
Suspense accounts
-------------- -------------- --------------- ---------------
Prepaid
-------------- -------------- --------------- ---------------
Notes receivable
-------------- -------------- --------------- ---------------
Add back reserves booked to aging
-------------- -------------- --------------- ---------------
Other ineligibles
-------------- -------------- --------------- ---------------
Total ineligibles
-------------- -------------- --------------- ---------------
Eligible Accounts Receivable
-------------- -------------- --------------- ---------------
Less Dilution Reserve:
-------------- -------------- --------------- ---------------
Less NSF Check Reserve:
-------------- -------------- --------------- ---------------
Less Contra Reserve:
-------------- -------------- --------------- ---------------
Adjusted Eligible Accounts Receivable
-------------- -------------- --------------- ---------------
Advance rate 85% 85% 75%
-------------- -------------- --------------- ---------------
Available accounts receivable:
-------------- -------------- --------------- ---------------
* The Borrowing Base Certificate is to be accompanied by the
documentation outlined in Schedule 1 and 2 to Exhibit E.
** Borrowing Base Certificates for accounts receivable are to be submitted
weekly, 4 Business Days subsequent to the week end. Borrowing Base
Certificates for inventory are to be submitted monthly, 9 Business Days
subsequent to the month end.
204
EXHIBIT E
Page 3 of 4
USG CORPORATION
FORM OF MONTHLY BORROWING BASE CERTIFICATE*
FOR THE MONTH ENDED _______________________**
US USG L&W
Gypsum Interiors Supply Total
---------- ------------- ------------------------ --------------------
Eligible Gross Commodity Raw
Materials:
---------- ------------- ------------------------ --------------------
Rock
---------- ------------- ------------------------ --------------------
Paper
---------- ------------- ------------------------ --------------------
Steel
---------- ------------- ------------------------ --------------------
Total Eligible Gross Commodity Raw
Materials
Advance Rate 60% 60%
---------- ------------- ------------------------ --------------------
Available gross commodity raw
materials before Inventory Reserves
---------- ------------- ------------------------ --------------------
Other raw materials
---------- ------------- ------------------------ --------------------
Less ineligibles:
Packing raw materials
---------- ------------- ------------------------ --------------------
Bags
---------- ------------- ------------------------ --------------------
Other containers
---------- ------------- ------------------------ --------------------
Waste paper
---------- ------------- ------------------------ --------------------
Pallets
---------- ------------- ------------------------ --------------------
Fuel
---------- ------------- ------------------------ --------------------
Supplies
---------- ------------- ------------------------ --------------------
Repair parts
---------- ------------- ------------------------ --------------------
Cartons
---------- ------------- ------------------------ --------------------
Inventory at closed facility
---------- ------------- ------------------------ --------------------
Discontinued items
---------- ------------- ------------------------ --------------------
Other ineligibles
---------- ------------- ------------------------ --------------------
Total ineligibles
---------- ------------- ------------------------ --------------------
Eligible Other Raw Materials
---------- ------------- ------------------------ --------------------
Advance rate 15% 15%
---------- ------------- ------------------------ --------------------
Inventory availability, before
Inventory Reserves
---------- ------------- ------------------------ --------------------
* The Borrowing Base Certificate is to be accompanied by the
documentation outlined in Schedule 1 and 2 to Exhibit E.
** Borrowing Base Certificates for accounts receivable are to be submitted
weekly, 4 Business Days subsequent to the week end. Borrowing Base
Certificates for inventory are to be submitted monthly, 9 Business Days
subsequent to the month end.
205
EXHIBIT E
Page 4 of 4
USG CORPORATION
FORM OF MONTHLY BORROWING BASE CERTIFICATE*
FOR THE MONTH ENDED _______________________**
US Gypsum USG Interiors L&W Supply Total
-------------- ---------------- --------------- -----------------
Finished goods $ $ $ $
-------------- ---------------- --------------- -----------------
Less ineligibles:
Outside storage
-------------- ---------------- --------------- -----------------
Public warehouse rent/storage fees
-------------- ---------------- --------------- -----------------
LCM reserve
-------------- ---------------- --------------- -----------------
Pallets
-------------- ---------------- --------------- -----------------
In-transit
-------------- ---------------- --------------- -----------------
Samples
-------------- ---------------- --------------- -----------------
Supplies
-------------- ---------------- --------------- -----------------
Intercompany profit elimination
-------------- ---------------- --------------- -----------------
Damaged/return to vendor
-------------- ---------------- --------------- -----------------
Excess/obsolete reserve
-------------- ---------------- --------------- -----------------
Shrink reserve
-------------- ---------------- --------------- -----------------
Other reserves
-------------- ---------------- --------------- -----------------
Other ineligibles
-------------- ---------------- --------------- -----------------
Total ineligibles and reserves
Eligible Finished Goods
-------------- ---------------- --------------- -----------------
Advance rate 60% 60% 50%
-------------- ---------------- --------------- -----------------
Inventory availability before
Inventory Reserves
-------------- ---------------- --------------- -----------------
Total inventory availability before
Inventory Reserves (gross commodity
raw materials, other raw materials,
finished goods)
-------------- ---------------- --------------- -----------------
Less Inventory Reserves:
Shrink
-------------- ---------------- --------------- -----------------
Finished Goods greater than
six months old
-------------- ---------------- --------------- -----------------
Returns to vendor
-------------- ---------------- --------------- -----------------
Outside locations/contractors
-------------- ---------------- --------------- -----------------
Other
-------------- ---------------- --------------- -----------------
Total available inventory
-------------- ---------------- --------------- -----------------
* The Borrowing Base Certificate is to be accompanied by the
documentation outlined in Schedule 1 and 2 to Exhibit E
** Borrowing Base Certificates for accounts receivable are to be submitted
weekly, 4 Business Days subsequent to the week end. Borrowing Base
Certificates for inventory are to be submitted monthly, 9 Business Days
subsequent to the month end.
206
SCHEDULE 1
TO EXHIBIT E
USG CORPORATION
US GYPSUM AND USG INTERIORS
COLLATERAL MONITORING REPORTING REQUIREMENTS
DOCUMENTS TO BE SUBMITTED TO THE BANK
The following information is to be submitted on a weekly or monthly basis for US
Gypsum and USG Interiors by the 4th business bay subsequent to week end or the
9th Business Day subsequent to month end:
o BORROWING BASE CERTIFICATE IN FORM OF EXHIBIT E
o ACCOUNTS RECEIVABLE (WEEKLY):
1) Rollforward of accounts receivable for each subsidiary, separately
detailing sales, cash receipts, credit memos, discounts, etc.
2) Accounts receivable aging, consolidated and for each subsidiary.
3) Supporting documentation (system generated extract report where applicable)
for the A/R ineligibles as per the Borrowing Base Certificate
o ACCOUNTS RECEIVABLE (MONTHLY):
1) Address and terms of top 10 accounts receivable balances per the most
recent aging.
2) Reconciliations of A/R aging report to the general ledger and financial
statements.
o INVENTORY (MONTHLY):
1) Inventory by component (i.e., commodity raw material, other raw materials,
finished goods), product line, location, and entity.
2) Total page of inventory perpetual reports (last page of 2119).
3) Gross margin by product line for each subsidiary.
4) Reconciliation of perpetual inventory reports to general ledger and
financial statements.
o OTHER (MONTHLY):
1) Total accounts payable balances for each subsidiary.
2) Top five vendor payable balances by plant for a sample of locations to be
determined.
3) Report to be determined to support Inventory Reserves
SUBMIT TO:
JPMorgan
Collateral Agent Services Group
000 Xxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000 (or 6229)
E-mail: Xxxxx.Xxxxxxxxx@xxxxx.xxx
207
SCHEDULE 2
TO EXHIBIT E
USG CORPORATION
L&W SUPPLY
COLLATERAL MONITORING REPORTING REQUIREMENTS
DOCUMENTS TO BE SUBMITTED TO THE BANK
The following information is to be submitted on a weekly or monthly basis by L&W
Supply by the 4th business day subsequent to week end or the 9th Business Day
subsequent to month end:
o BORROWING BASE CERTIFICATE IN FORM OF EXHIBIT E
o ACCOUNTS RECEIVABLE (WEEKLY):
1) Accounts receivable aging total balances
o ACCOUNTS RECEIVABLE (MONTHLY):
1) Rollforward of accounts receivable for a sample of locations to be
determined, separately detailing sales, cash receipts, credit memos,
discounts, etc.
2) Accounts receivable aging consolidated by region.
3) Accounts receivable aging for all locations within one region, to be
determined.
4) Address, terms and aging of the largest customer for each region.
5) Reconciliations of A/R aging report to the general ledger and financial
statements.
6) Supporting documentation (system generated extract report where applicable)
for the A/R ineligibles as per the Borrowing Base Certificate
o INVENTORY (MONTHLY):
1) Inventory balance by product line by region.
2) Total page of inventory perpetual reports for locations in one region, to
be determined.
3) Gross margin by product line for each region.
4) Reconciliation of perpetual inventory reports to general ledger and
financial statements.
o OTHER (MONTHLY):
1) Total accounts payable balances for each subsidiary.
2) Top five accounts payable for a center within the region identified by the
Administrative Agent to fulfill the requirement for Accounts Receivable
(monthly) point 3 above.
3) Report to be determined to support Inventory Reserves.
SUBMIT TO:
See Schedule 1 to Exhibit E
208
ANNEX A TO THE
REVOLVING CREDIT AGREEMENT
COMMITMENT AMOUNTS
DATED AS OF AUGUST 2, 2001
COMMITMENT COMMITMENT
BANK AMOUNT PERCENTAGE
The Chase Manhattan Bank $35,000,000.00 10.0%
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
Tele. (000) 000-0000
Fax: (000) 000-0000
CIT Group/Business Credit Inc. $35,000,000.00 10.0%
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Skaula
Tele. (000) 000-0000
Fax: (000) 000-0000
GMAC Commercial Credit LLC $29,000,000.00 8.285714285714%
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
Tele. (000) 000-0000
Fax: (000) 000-0000
Fleet Capital Corporation $29,000,000.00 8.285714285714%
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx XxXxxxxxx
Tele. (000) 000-0000
Fax: (000) 000-0000
Foothill Capital Corporation $29,000,000.00 8.285714285714%
0000 Xxxxxxxx Xxx.,
Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Tele. (000) 000-0000
Fax: (000) 000-0000
209
ANNEX A TO THE
REVOLVING CREDIT AGREEMENT
COMMITMENT AMOUNTS
(CONTINUED)
DATED AS OF AUGUST 2, 2001
General Electric Capital $29,000,000.00 8.285714285714%
Commercial Finance
000 Xxxxxxxxxxx Xxxxxx, Xxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxx O'Dounell
Tele. (000) 000-0000
Fax: (000) 000-0000
Congress Financial Corporation $29,000,000.00 8.285714285714%
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Tele. (000) 000-0000
Fax: (000) 000-0000
Bank of Scotland $25,000,000.00 7.142857142857%
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Tele. (000) 000-0000
Fax: (000) 000-0000
Bank of America, N.A. $25,000,000.00 7.142857142857%
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxx
Tele. (000) 000-0000
Fax: (000) 000-0000
Guaranty Business Credit $15,000,000.00 4.285714285714%
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxx Xxxxx
Tele. (000) 000-0000
Fax: (000) 000-0000
LaSalle Business Credit, Inc. $15,000,000.00 4.285714285714%
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Tele. (000) 000-0000
Fax: (000) 000-0000
210
ANNEX A TO THE
REVOLVING CREDIT AGREEMENT
COMMITMENT AMOUNTS
(CONTINUED)
DATED AS OF AUGUST 2, 2001
Transamerica Business Capital Corporation $15,000,000.00 4.285714285714%
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxx
Tele. (000) 000-0000
Fax: (000) 000-0000
Amsouth Bank $10,000,000.00 2.857142857143%
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxxxxx
Tele. (000) 000-0000
Fax: (000) 000-0000
The Industrial Bank of Japan $10,000,000.00 2.857142857143%
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
Tele. (000) 000-0000
Fax: (000) 000-0000
Debis Financial Services, Inc. $10,000,000.00 2.857142857143%
0000 Xxxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Tele. (000) 000-0000
Fax: (000) 000-0000
Provident Financial Corp. $10,000,000.00 2.857142857143%
Xxx Xxxx Xxxxxx Xxxxxx, 000X
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Tele. (000) 000-0000
Fax: (000) 000-0000
Total $350,000,000.00 100%
--------------- --------------
211
