EXHIBIT 10
FIRST AMENDMENT
TO MASTER LETTER OF CREDIT AGREEMENT
This First Amendment to Master Letter of Credit Agreement (this
"Amendment") is dated as of April 29, 2005 by and between USG CORPORATION, a
Delaware corporation ("Applicant"), and LASALLE BANK NATIONAL ASSOCIATION
("Bank").
WITNESSETH:
WHEREAS, Applicant and Bank are parties to that certain Master Letter of
Credit Agreement, dated as of June 11, 2003 (as it has been and may further be
amended, restated, modified or supplemented and in effect from time to time, the
"Agreement");
WHEREAS, Applicant is a debtor and debtor-in-possession in Chapter 11 case
(case no. 01-2094) in the United States Bankruptcy Court (the "Court") for the
District of Delaware;
WHEREAS, Applicant has requested that Bank amend the Agreement in certain
respects, as more fully set forth herein, and Bank is agreeable to such request
subject to the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS. Capitalized terms used in this Amendment and not otherwise
defined herein are used with the meanings given such terms in the Agreement.
2. AMENDMENTS. The Agreement is hereby amended as follows:
(a) By amending and restating Section R-1 as follows:
"R-1 Letter of Credit Commitment.
(a) Prior to April 30, 2008 and provided that no Event of
Default then exists, Bank will issue Letters of Credit with an
aggregate stated amount not in excess of $175,000,000.00 at any
one time (the "Letter of Credit Commitment") in each case
containing such terms and conditions as are reasonably
satisfactory to Bank, provided, however, no Letter of Credit
shall have an expiry date later than the earlier to occur of (a)
one year after the date of issuance thereof, and (b) April 30,
2009."
(b) At Applicant's option, the Letter of Credit Commitment
shall terminate on the effective date of Applicant's chapter 11
plan of reorganization (the "Early Termination Date"). Applicant
may exercise such termination option by issuing written notice to
Bank of Applicant's intent to terminate the Letter of Credit
Commitment at least three business days' before the effective
date of such chapter 11 plan of reorganization. Notwithstanding
anything to the contrary herein, no fees payable under Subsection
R-2(b) hereof shall accrue after the Early Termination Date. All
Required Collateral held by Bank for any Letter of Credit shall
be promptly returned to Applicant promptly after Bank receives
such outstanding Letter of Credit and a signed letter from the
applicable beneficiary, in the form of EXHIBIT A attached hereto
or such other evidence in form reasonably acceptable to Bank,
which evidences such beneficiary's consent to cancel such Letter
of Credit."
(b) By amending and restating Subsections R-2(a) and (b) as follows:
"(a) LC Fee. One-half of one percent (0.5%) of the undrawn
amount of each Letter of Credit (computed for the actual number
of days elapsed on the basis of a year of 360 days), payable in
arrears on the last day of each quarter and on April 30, 2009
(for any period then ending for which such fee shall not have
previously been paid). Notwithstanding anything to the contrary
herein, no fees payable under this Subsection R-2(a) shall accrue
for any Letter of Credit after the date Bank receives such Letter
of Credit and a signed letter from the applicable beneficiary, in
the form of EXHIBIT A attached hereto or such other evidence in
form reasonably acceptable to Bank, which evidences such
beneficiary's consent to cancel such Letter of Credit."
"(b) Non-Use Fee. One-quarter of one percent (0.25%) of the
unused amount of the Letter of Credit Commitment, payable in
arrears on the last day of each quarter and on April 30, 2009
(for any period then ending for which such non-use fee shall not
have previously been paid). For purposes of calculating usage
under this subsection, the Letter of Credit Commitment shall be
deemed used to the extent of the stated face amount of all
Letters of Credit. The non-use fee shall be computed for the
actual number of days elapsed on the basis of a year of 360
days."
(c) By amending and restating Subsection R-3(a) as follows:
"(a) The obligation of Bank to issue any Letters of Credit
is subject to the following:
(i) Applicant pledging cash collateral in a trust
account with Bank (time deposit open account or certificate
of deposit) to Bank for all outstanding Letters of Credit
pursuant to documentation satisfactory to Bank in the amount
of 103% of the face amount of all outstanding Letters of
Credit; provided, however, for cash collateral requirements
in excess of $125,000,000, at Bank's sole discretion, Bank
will permit the pledge of Cash Equivalent Investments (in
lieu of cash) maintained in a trust account with Bank
pursuant to documentation satisfactory to Bank which, when
multiplied by the Bank's advance rates for collateral of
such type (as from time to time determined by the Bank),
will equal or exceed 103% of the face amount of all
outstanding Letters of Credit. As used herein, "Cash
Equivalent Investments" shall mean, at any time, (a) any
evidence of
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debt, maturing not more than one year after such time,
issued by the United States Government, (b) any certificate
of deposit, maturing not more than six months after such
time, that are issued or sold by LaSalle Bank or its holding
company or, upon Bank's sole discretion, by a commercial
banking institution that is a member of the Federal Reserve
System and has combined capital and surplus and undivided
profits of not less than $500,000,000 and rated at least A
by Standard & Poor's Ratings Group or A or A-1 by Moody's
Investors Service, Inc., and (c) any mutual fund that is
regulated by the Investment Company Act of 1940 which
invests solely in the investments described in clauses (a)
or (b) above.
(ii) The representations and warranties of the
Applicant shall be true and correct as of such requested
date as though made on the date thereof.
(iii) No Event of Default or Unmatured Event of Default
shall have then occurred and be continuing or will result
from such issuance.
For the elimination of any doubt, the Bank's obligation to
issue any Letter of Credit is subject to the condition precedent
that the Applicant deliver cash collateral to Bank in the amount
of 103% of the face amount of the proposed Letter of Credit (the
"Required Collateral"). Any commitment the Bank may have to issue
a particular Letter of Credit hereunder is unconditionally
cancelable by the Bank absent the prior delivery by the Applicant
to the Bank of the Required Collateral.
3. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective on
the date on which the Bank shall have receiving all of the following:
(a) This Amendment, which has been duly executed and delivered by
Applicant.
(b) That certain First Amendment to Pledge Agreement dated the date
hereof by and between Applicant and Bank, which has been duly executed and
delivered by Applicant.
(c) a certificate of the Secretary of Applicant stating that there has
been no change in the Certificate of Incorporation or By-Laws of Applicant
since such documents were last delivered to the Bank and that there has
been no change in the officers of Applicant since the last incumbency
certificate for Applicant was delivered to the Bank.
(d) good standing certificates for Applicant from the State of
Illinois and the State of Delaware.
(e) Payment by Applicant of all fees, costs and expenses to the extent
then due and payable.
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(f) a copy of an order from the Court, which approves the Agreement,
as amended by this Amendment and that certain Pledge Agreement dated as of
June 11, 2003 by and between Applicant and Bank, as amended, and no notice
of appeal has been filed.
4. MISCELLANEOUS.
(a) Applicant hereby agrees to pay all of Bank's costs and reasonable
expenses, including, without limitation, reasonable attorneys' fees,
related to this Amendment.
(b) This Amendment may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which shall together
constitute but one and the same document.
(c) This Amendment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
(d) Section captions and headings used in this Amendment are for
convenience only and are not part of and shall not affect the construction
of this Amendment.
(e) This Amendment shall be a contract made under and governed by the
laws of the State of Illinois, without regard to conflict of laws
principles. Whenever possible, each provision of this Amendment shall be
interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Amendment shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Amendment.
(f) From and after the date of execution of this Amendment, any
reference to the Agreement contained in any notice, request, certificate or
other instrument, document or agreement shall be deemed to include this
Amendment unless the context shall otherwise require.
(g) Except as expressly set forth herein, nothing in this Amendment is
intended to or shall be deemed to have amended the Agreement, which is
hereby reaffirmed in all respects. The Agreement, as amended hereby, and
each of the other related agreements remain in full force and effect and
are hereby reaffirmed in all respects.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first set forth above.
USG CORPORATION, a Delaware LASALLE BANK NATIONAL ASSOCIATION,
corporation a national banking association
By: /s/ Karen L. Leets By: /s/ William B. McKinley
--------------------------------- ------------------------------------
Its: Vice President and Treasurer William B. McKinley
First Vice President
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FIRST AMENDMENT
TO PLEDGE AGREEMENT
This First Amendment to Pledge Agreement (this "Amendment") is dated as of
April 29, 2005 by and between USG CORPORATION, a Delaware corporation
(the"Assignor"), and LASALLE BANK NATIONAL ASSOCIATION (the "Bank").
WITNESSETH:
WHEREAS, Assignor and the Bank are parties to that certain Pledge
Agreement, dated as of June 11, 2003 (as it has been and may further be amended,
restated, modified or supplemented and in effect from time to time, the "Pledge
Agreement");
WHEREAS, Assignor has requested that the Bank amend the Pledge Agreement in
certain respects, as more fully set forth herein, and the Bank is agreeable to
such request subject to the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS. Capitalized terms used in this Amendment and not otherwise
defined herein are used with the meanings given such terms in the Pledge
Agreement.
2. AMENDMENT. Section 3(a) of the Pledge Agreement is hereby amended and
restated as follows:
"(a) At all times the assets of the Account shall be held in cash or
Cash Equivalent Investments. As used herein, "Cash Equivalent Investments"
shall mean, at any time, (i) any evidence of debt, maturing not more than
one year after such time, issued by the United States Government, (ii) any
certificate of deposit, maturing not more than six months after such time,
that are issued or sold by LaSalle Bank or its holding company or, upon
Bank's sole discretion, by a commercial banking institution that is a
member of the Federal Reserve System and has combined capital and surplus
and undivided profits of not less than $500,000,000 and rated at least A by
Standard & Poor's Ratings Group or A or A-1 by Moody's Investors Service,
Inc., and (iii) any mutual fund that is regulated by the Investment Company
Act of 1940 which invests solely in the investments described in clauses
(i) or (ii) above."
3. MISCELLANEOUS.
(a) Assignor hereby agrees to pay all of the Bank's costs and
reasonable expenses, including, without limitation, attorneys' fees,
related to this Amendment.
(b) This Amendment may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which shall together
constitute but one and the same document.
(c) This Amendment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
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(d) Section captions and headings used in this Amendment are for
convenience only and are not part of and shall not affect the construction
of this Amendment.
(e) This Amendment shall be a contract made under and governed by the
laws of the State of Illinois, without regard to conflict of laws
principles. Whenever possible, each provision of this Amendment shall be
interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Amendment shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Amendment.
(f) From and after the date of execution of this Amendment, any
reference to the Pledge Agreement contained in any notice, request,
certificate or other instrument, document or agreement shall be deemed to
include this Amendment unless the context shall otherwise require.
(g) Except as expressly set forth herein, nothing in this Amendment is
intended to or shall be deemed to have amended the Pledge Agreement, which
is hereby reaffirmed in all respects. The Pledge Agreement, as amended
hereby, and each of the other related agreements remain in full force and
effect and are hereby reaffirmed in all respects.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first set forth above.
USG CORPORATION, a Delaware LASALLE BANK NATIONAL ASSOCIATION,
corporation a national banking association
By: /s/ Karen L. Leets By: /s/ William B. McKinley
--------------------------------- ------------------------------------
Its: Vice President and Treasurer William B. McKinley
First Vice President
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