EXHIBIT 10(aa)
THIRD AMENDMENT TO
REVOLVING CREDIT AND GUARANTY AGREEMENT
This THIRD AMENDMENT TO REVOLVING CREDIT AND GUARANTY
AGREEMENT dated as of December 10, 2001 (the "THIRD 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"),
JPMORGAN CHASE BANK, formerly known as 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 JPMORGAN CHASE
BANK, formerly known as The Chase Manhattan Bank, as administrative agent (the
"ADMINISTRATIVE AGENT") for the Lenders.
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 Third 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 The definition of Permitted Liens set forth in Section 1.1
of the Agreement is hereby amended by inserting in clause "(ix)" thereof the
words "foreign currency," prior to the words "natural gas" in both places where
such words appear.
2.2 Section 6.3 of the Agreement is hereby amended by (a)
deleting the word "and" immediately preceding clause "(v)" thereof and (b)
adding a new clause "(vi)" thereto to read as follows: "and (vi) obligations in
respect of currency swap agreements, currency future or option contracts and
other similar
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agreements designed to hedge against fluctuations in foreign currency exchange
rates, in each case entered into in the ordinary course of the Borrowers'
business and not for speculative purposes."
2.3 Section 6.10 of the Agreement is hereby amended in its
entirety to read as follows:
SECTION 6.10 Investments, Loans and Advances.
Purchase, hold or acquire any capital stock, evidences of
indebtedness or other securities of, make or permit to exist
any loans or advances to, or make or permit to exist any
investment in, any other Person (all of the foregoing,
"INVESTMENTS"), except for (i) Permitted Investments, (ii)
Intercompany Indebtedness owing from a Borrower to another
Borrower incurred in the ordinary course of business
consistent with past practice, (iii) existing Intercompany
Indebtedness, including, without limitation, Intercompany
Indebtedness listed on Schedule 6.10 (which describes all
obligations for borrowed money which constitute Intercompany
Indebtedness as of the date hereof), (iv) capital
contributions (plus any related transaction costs) advanced
from USG Interiors, Inc. to Belgium Holdings SA in an amount
not in excess of, in the aggregate, $20,000,000 or such lesser
amount as may be necessary to permit the Borrowers to
consummate the reorganization transactions described in the
Borrowers' Motion of Debtors and Debtors in Possession For
Authority to Enter Into Intercompany Transactions Related to
Their Belgium Operations filed with the Bankruptcy Court on
November 15, 2001, and (v) additional Intercompany
Indebtedness owed by Foreign Subsidiaries of the Borrowers, or
guaranties of the obligations of Foreign Subsidiaries of the
Borrowers, in an aggregate amount (calculated as the sum of
the amount of such additional Intercompany Indebtedness and
the amount of the guarantied obligations) not to exceed
$100,000,000 less any amounts advanced pursuant to clause (iv)
above.
Section 3. Calculation of Investment Amount. Concurrent with
the delivery of the compliance certificate under Section 5.1(c) of the Agreement
for the fiscal year ended December 31, 2001, the Borrowers shall deliver to the
Administrative Agent and each of the Lenders a certificate of a Financial
Officer of each of the Borrowers and the Guarantor certifying the date and
amount (in Dollars) of the capital contribution (plus any related transaction
costs) made pursuant to Section 6.10(iv) of the Agreement. Such amount shall be
calculated at the exchange rate obtained by the Borrowers in effecting the
foregoing capital contribution.
Section 4. Effectiveness. The effectiveness of this Third
Amendment is conditioned upon (i) the Administrative Agent's receipt of executed
counterparts of this Third 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)
and (ii) the Borrowers' payment of all fees to the Administrative Agent for the
respective accounts of the Lenders, as agreed between the Borrowers and the
Administrative Agent in connection with this Third Amendment. The "EFFECTIVE
DATE" shall mean the first Business Day on which the foregoing conditions are
fully satisfied.
Section 5. Representations and Warranties. Each Borrower
represents and warrants to the Lenders that:
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5.1 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
5.2 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 Third Amendment.
Section 6. 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 Third 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 7. Counterparts. This Third 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 8. Headings. The various headings of this Third
Amendment are inserted for convenience only and shall not affect the meaning or
interpretation of this Third Amendment or any provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Third
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:
JPMORGAN CHASE 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:
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CONGRESS FINANCIAL CORPORATION
By:
------------------------------------
Name:
Title:
BANK OF SCOTLAND
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:
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THE INDUSTRIAL BANK OF JAPAN, LTD.
By:
------------------------------------
Name:
Title:
DEBIS FINANCIAL SERVICES, INC.
By:
------------------------------------
Name:
Title:
PROVIDENT FINANCIAL CORP.
By:
------------------------------------
Name:
Title:
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