Exhibit (4)
AMENDMENT NO. 3
dated as of January 19, 1996
to
CREDIT AGREEMENT
dated as of November 2, 1993
THIS AMENDMENT NO. 3 (this "Amendment"), dated as of
January 19, 1996, among OWENS CORNING (formerly known as Owens-
Corning Fiberglas Corporation), a Delaware corporation (the
"Borrower"), the banks listed on the signature pages hereof (the
"Banks"), and CREDIT SUISSE, as Agent (the "Agent") (with
capitalized terms used herein and not otherwise defined herein
having the meanings ascribed thereto in the Credit Agreement
hereafter referred to),
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks and the Agent have
entered into a Credit Agreement dated as of November 2, 1993 (the
"Credit Agreement");
WHEREAS, the Borrower has requested, and the Banks and
the Agent have agreed to, the amendments to the Credit Agreement
set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Borrower, the Banks and the
Agent agree as follows:
1. Amendments. Upon and after this Amendment becomes
effective, the Credit Agreement shall be amended as follows:
(a) Section 4.06(e) shall be amended by deleting
"$42,000,000" and inserting in lieu thereof "$82,000,000".
(b) Section 4.06(g) shall be amended by deleting
"$85,000,000" and inserting in lieu thereof "$135,000,000".
(c) Section 4.08 shall be amended by inserting the
following after the end of clause (j) thereof and prior to the
word "and":
", (k) Investments consisting of Debt to which
Section 4.06 does not apply by reason of the provisions
of such Section or Guaranties to which Section 4.10 does
not apply by reason of the provisions of such Section".
(d) Section 4.08 shall be further amended by relettering
the last clause thereof, presently clause (k), as clause (l).
(e) The Credit Agreement shall be further amended by
replacing all references therein to Section 4.08(k) with
references to Section 4.08(l).
(f) Section 4.10(h) shall be amended (i) by deleting
"$40,000,000" and inserting in lieu thereof "$80,000,000" and
(ii) by deleting the following clause appearing at the end of
such Section 4.10(h):
"in each case in accordance with the terms and
provisions of such Notes as in effect on the Amendment
Effective Date of Amendment 1 to the Credit Agreement,"
and inserting in lieu thereof the following:
"in each case in accordance with the terms and
provisions of certain of such Notes as in effect on the
Amendment Effective Date of Amendment No. 1 to this
Agreement and other of such Notes as issued after the
Effective Date of Amendment No. 3 to this Agreement in
order to further consummate the Jackson Transaction, as
applicable,"
(g) Section 4.10 shall be further amended by inserting
the following after clause (h) thereof and prior to the word
"and":
"(i) Guaranties of (i) obligations of Affiliated
Entities to manufacture and deliver goods in the ordinary
course of business, or (ii) obligations of Affiliated
Entities that are product warranties given in the
ordinary course of business with respect to such goods,
or are in the nature of, and not exceeding in general
scope, product warranties that would otherwise be given
in the ordinary course of business with respect to such
goods, (j) Guaranties of up to $25,000,000 in aggregate
outstanding principal amount of the India Project Debt,"
(h) Section 4.10 shall be further amended by re-
lettering the last clause thereof, presently clause (i), as
clause (k).
(i) The Credit Agreement shall be further amended by
replacing all references therein to Section 4.10(i) with
references to Section 4.10(k).
(j) Section 4.10(k) (as relettered in accordance with
this Amendment) shall be amended by deleting "$75,000,000" and
inserting in lieu thereof "$100,000,000".
(k) Section 10.01 shall be amended to add the following
new definition in the appropriate alphabetical location:
"'Affiliated Entity' means a Subsidiary, an
Affiliate, or a Person that uses technology supplied by,
or whose operations are supervised by, the Borrower or
its Subsidiaries or Affiliates".
(l) Section 10.01 shall be further amended by amending
the definition of "Commitment Fee Rate" to read in its
entirety as follows:
"'Commitment Fee Rate' means (a) if the S&P Rating
is not lower than BBB+ and the Moody's Rating is not
lower than Baa1, 0.125%, (b) if the S&P Rating is lower
than BBB+ or the Moody's Rating is lower than Baa1, but
the S&P Rating is not lower than BBB and the Moody's
Rating is not lower than Baa2, 0.150%, (c) if the S&P
Rating is lower than BBB or the Moody's Rating is lower
than Baa2, but the S&P Rating is not lower than BBB- and
the Moody's Rating is not lower than Baa3, 0.200%, (d) if
the S&P Rating is lower than BBB- or the Moody's Rating
is lower than Baa3, but the S&P Rating is not lower than
BB+ and the Moody's Rating is not lower than Ba1, 0.350%
and (e) if the S&P Rating is lower than BB+ or the
Moody's Rating is lower than Ba1, 0.500%."
(m) Section 10.01 shall be further amended by adding the
following definitions in the appropriate alphabetical
location:
"'India Joint Venture' means the entity or entities
established in India by the Borrower and its joint
venture partners to construct, own and operate a facility
for the manufacture of glass fiber reinforcement products
and of which the Borrower, directly or indirectly, owns
at least 49% of the outstanding equity."
"'India Project Debt' means Debt consisting of
construction or term Debt incurred by the India Joint
Venture in connection with the development, construction,
and placement in service of a glass fiber reinforcement
plant to be located in India."
(n) Section 10.01 shall be further amended by amending
the definition of "Letter of Credit Fee Rate" to read in its
entirety as follows:
"'Letter of Credit Fee Rate' means the sum of (a)
(i) if the S&P Rating is not lower than BBB+ and the
Moody's Rating is not lower than Baa1, 0.375%, (ii) if
the S&P Rating is lower than BBB+ or the Moody's Rating
is lower than Baa1, but the S&P Rating is not lower than
BBB and the Moody's Rating is not lower than Baa2,
0.450%, (iii) if the S&P Rating is lower than BBB or the
Moody's Rating is lower than Baa2, but the S&P Rating is
not lower than BBB- and the Moody's Rating is not lower
than Baa3, 0.500%, (iv) if the S&P Rating is lower than
BBB- or the Moody's Rating is lower than Baa3, but the
S&P Rating is not lower than BB+ and the Moody's Rating
is not lower than Ba1, 0.875% or (v) if the S&P Rating is
lower than BB+ or the Moody's Rating is lower than Ba1,
1.250%, plus (b) the applicable Utilization Fee."
(o) Section 10.01 shall be further amended by amending
the definition of "LIBOR Margin" to read in its entirety as
follows:
"'LIBOR Margin' means the sum of (a) (i) if the S&P
Rating is not lower than BBB+ and the Moody's Rating is
not lower than Baa1, 0.375%, (ii) if the S&P Rating is
lower than BBB+ or the Moody's Rating is lower than Baa1,
but the S&P Rating is not lower than BBB and the Moody's
Rating is not lower than Baa2, 0.450%, (iii) if the S&P
Rating is lower than BBB or the Moody's Rating is lower
than Baa2, but the S&P Rating is not lower than BBB- and
the Moody's Rating is not lower than Baa3, 0.500%, (iv)
if the S&P Rating is lower than BBB- or the Moody's
Rating is lower than Baa3, but the S&P Rating is not
lower than BB+ and the Moody's Rating is not lower than
Ba1, 0.875% or (v) if the S&P Rating is lower than BB+ or
the Moody's Rating is lower than Ba1, 1.250%, plus (b)
the applicable Utilization Fee."
(p) Section 10.01 shall be further amended (i) by
amending clause (j) of the definition of "Permitted Lien" to
read in its entirety as follows:
"(j) a Lien on accounts receivable (and proceeds
thereof) constituting the interest of, or securing the
obligations of the Borrower or any Subsidiary to, a
purchaser of such accounts receivable or undivided
interests therein;"
(ii) by inserting after clause (s) of the definition of
"Permitted Lien" and prior to the word "and" a new clause (t)
to read in its entirety as follows:
"(t) a Lien constituting a pledge, for purposes of
securing the India Project Debt, of the stock or other
equity interests owned by the Borrower, a Subsidiary or
an Affiliate in (i) the India Joint Venture and/or (ii)
any entity established for the sole purpose of owning all
or any portion of the India Joint Venture;"
and (iii) by re-lettering the last clause of such definition,
currently clause (t), as clause (u).
(q) The Credit Agreement shall be further amended by
replacing all references therein to clause (t) of the
definition of "Permitted Lien" with references to clause (u)
of such definition.
(r) Section 10.01 shall be further amended by deleting
"October 31, 1997" from the definition of "Termination Date"
and inserting in lieu thereof "February 1, 1999".
(s) Section 10.01 shall be further amended by amending
the definition of "Utilization Fee" to read in its entirety as
follows:
"'Utilization Fee' means, at any time, (a) if the
aggregate principal amount of Loans and Letter of Credit
Participations outstanding exceeds 50% of the aggregate
amount of Commitments at such time, (i) if the S&P Rating
is greater than or equal to BBB- and the Moody's Rating
is greater than or equal to Baa3, 0%, (ii) if the S&P
rating is lower than BBB- or the Moody's Rating is lower
than Baa3, but the S&P Rating is not lower than BB+ and
the Moody's Rating is not lower than Ba1, 0.125% and
(iii) if the S&P Rating is lower than BB+ or the Moody's
Rating is lower than Ba1, 0.25% or (b) if the aggregate
principal amount of Loans and Letter of Credit
Participations outstanding does not exceed 50% of the
aggregate amount of Commitments at such time, 0%."
(t) Section 10.02 shall be amended by inserting the
following at the end thereof:
"Without limiting the generality of the foregoing,
for purposes of establishing compliance with the
financial covenants set forth in Article 4 hereof, if the
Borrower or a Subsidiary makes a borrowing the proceeds
of which are intended to be used for the repayment, on
the same day, of another borrowing, the Borrower shall
not be deemed to be not in compliance with a financial
covenant solely by reason of the fact that for some
period of time during such day both borrowings are
outstanding, so long as the Borrower or such Subsidiary
has irrevocably directed such repayment on such day, and
such repayment actually occurs on such day."
2. Effective Date. This Amendment shall become
effective as of the date first above written upon the date (the
"Effective Date") that the Agent shall have received (a) executed
counterparts to this Amendment from the Borrower, the Agent and the
Banks, (b) a certificate of the Secretary or an Assistant Secretary
of the Borrower, dated the Effective Date, substantially in the
form of Annex A hereto, to which shall be attached copies of the
resolutions and by-laws referred to in such certificate, (c) a copy
of the certificate of incorporation of the Borrower, certified as
of a recent date by the Secretary of State or other appropriate
official of the Borrower's jurisdiction of incorporation, (d) a
good standing certificate with respect to the Borrower, issued as
of a recent date by the Secretary of State or other appropriate
official of the jurisdiction of the Borrower's incorporation,
together with a telegram from such Secretary of State or other
official, updating the information in such certificate; and (e) an
opinion of the General Counsel of the Borrower, dated the Effective
Date, in the form of Annex B hereto.
3. Representations and Warranties. The Borrower
represents and warrants to the Agent and the Banks as follows:
(a) Power; Authorization. The Borrower has the
corporate power, and has taken all necessary corporate action
to authorize it, to execute, deliver and perform in accordance
with its terms this Amendment and to perform in accordance
with its terms the Credit Agreement as amended by this
Amendment. This Amendment has been duly executed and
delivered by the Borrower and is, and the Credit Agreement as
amended by this Amendment is, a legal, valid and binding
obligation of the Borrower enforceable in accordance with its
terms.
(b) Required Approvals; Compliance with Law, etc. The
execution, delivery and performance in accordance with its
terms of this Amendment, and the performance in accordance
with its terms of the Credit Agreement as amended by this
Amendment, do not and will not (i) require any Governmental
Approval or any consent or approval of the stockholders of the
Borrower or of any Subsidiary other than consents and
approvals that have been obtained and are listed on Schedule
3.02 to the Credit Agreement, (ii) violate or conflict with,
result in a breach of, or constitute a default under, (A) any
Contract to which the Borrower or any Subsidiary is a party or
by which any of them or any of their respective properties may
be bound or (B) any Applicable Law or (iii) result in or
require the creation of any Lien upon any assets of the
Borrower or any Consolidated Subsidiary except for Liens, if
any, in favor of the Agent and the Banks arising under
Sections 1.12 and 8.06 of the Credit Agreement.
4. Survival. Each of the foregoing representations and
warranties shall be made at and as of the Effective Date. Each of
the representations and warranties made under the Credit Agreement
as amended by this Amendment (and including those made herein)
shall survive to the extent provided in the Credit Agreement and
not be waived by the execution and delivery of this Amendment, or
any investigation by the Agent or the Banks or any of them.
5. Governing Law. This Amendment shall be construed in
accordance with and governed by the law of the State of New York
(without giving effect to its choice of laws principles).
6. Counterparts. This Amendment may be signed in any
number of counterparts, each of which shall be deemed to be an
original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
7. Reference to Agreement. From and after the Effective
Date, each reference in the Credit Agreement to "this Agreement",
"hereof", "hereunder" or words of like import, and all references
to the Credit Agreement in any and all agreements, instruments,
documents, notes, certificates and other writings of every kind and
nature shall be deemed to mean the Credit Agreement as modified and
amended by this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective
authorized officers as of the date first above written.
OWENS CORNING (formerly known as
Owens-Corning Fiberglas
Corporation)
By /s/ Michael I. Miller
Name: Michael I. Miller
Title: Vice President & Treasurer
By /s/ C. Jackson Snyder
Name: C. Jackson Snyder
Title: Assistant Treasurer
CREDIT SUISSE, as Agent and as a
Bank
By /s/ Christopher J. Eldin /s/ Thomas G. Muoio
Name: Christopher J. Eldin Thomas G. Muoio
Title: Member of Senior Mgmt./ Associate
ABN AMRO BANK, N.V.,
BY ABN AMRO NORTH AMERICA, INC., AS
AGENT
By /s/ J. M. Janovsky
Name: J. M. Janovsky
Title: Group Vice President
By /s/ Kathryn C. Toth
Name: Kathryn C. Toth
Title: Vice President
THE BANK OF NEW YORK
By /s/ Douglas Ober
Name: Douglas Ober
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ F. C. H. Ashby
Name: F. C. H. Ashby
Title: Senior Manager Loan Operations
BARCLAYS BANK PLC
By /s/ Kevin Heraty
Name: Kevin Heraty
Title: Director
CHEMICAL BANK
By /s/ Timothy J. Storms
Name: Timothy J. Storms
Title: Managing Director
CITIBANK, N.A.
By /s/ Marjorie Futornick
Name: Marjorie Futornick
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Robert L. Jackson
Name: Robert L. Jackson
Title: Authorized Agent
THE FUJI BANK, LIMITED
By /s/ Peter L. Chinnici
Name: Peter L. Chinnici
Title: Joint General Manager
MELLON BANK, N.A.
By /s/ Mark F. Johnston
Name: Mark F. Johnston
Title: Assistant Vice President
THE MITSUBISHI BANK, LTD.
(CHICAGO BRANCH)
By /s/ Noboru Kobayashi
Name: Noboru Kobayashi
Title: Joint General Manager
THE NORTHERN TRUST COMPANY
By /s/ S. Biff Bowman
Name: S. Biff Bowman
Title: Vice President
ROYAL BANK OF CANADA
By /s/ Shelley Browne
Name: Shelley Browne
Title: Senior Manager
THE TORONTO-DOMINION BANK
By /s/ Frederic B. Hawley
Name:
Title:
SUNTRUST BANK, ATLANTA (formerly
Trust Company Bank)
By /s/ Christina T. LaVoy
Name: Christina T. LaVoy
Title: Banking Officer
By /s/ Charles J. Johnson
Name: Charles J. Johnson
Title: Vice President
KREDIETBANK, N.V.
By /s/ Robert Snauffer
Name: Robert Snauffer
Title: Vice President