EXHIBIT 10.2
NEITHER THIS NOTE (AS DEFINED BELOW) NOR ANY INTEREST HEREIN MAY BE SOLD,
DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT THE
PRIOR WRITTEN CONSENT OF THE MAKER REPRESENTATIVE (AS HEREINAFTER DEFINED),
WHICH CONSENT MAY BE WITHHELD IN THE SOLE DISCRETION OF THE MAKER
REPRESENTATIVE.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
OR APPLICABLE STATE SECURITIES LAWS. WITHOUT IN ANY WAY LIMITING THE TERMS OF
THE FOREGOING PARAGRAPH, NO INTEREST IN THIS NOTE MAY BE SOLD, DISTRIBUTED,
ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (A) THE MAKER
REPRESENTATIVE RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE HOLDER OF THIS NOTE
SATISFACTORY TO THE MAKER REPRESENTATIVE STATING THAT SUCH TRANSACTION IS EXEMPT
FROM REGISTRATION OR (B) THE MAKER REPRESENTATIVE OTHERWISE SATISFIES ITSELF
THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION.
UNDER CERTAIN CIRCUMSTANCES MORE FULLY DESCRIBED IN SECTION 1(C) HEREOF, THE
PAYMENT OF THIS NOTE SHALL BE SUBORDINATE TO THE PRIOR PAYMENT IN FULL AND
SATISFACTION, IN CASH, OF CERTAIN "SENIOR FUNDED INDEBTEDNESS" (AS HEREINAFTER
DEFINED).
CONTINGENT NON-NEGOTIABLE PROMISSORY NOTE
$3,050,000,000.00 June 20, 2006
Chicago, Illinois
FOR VALUE RECEIVED, each of undersigned (collectively, the "Makers" and
each individually a "Maker") hereby jointly and severally promises and agrees to
pay to the United States Gypsum Asbestos Personal Injury Settlement Trust (the
"Holder") the principal amount of THREE BILLION FIFTY MILLION AND NO/100 DOLLARS
($3,050,000,000.00), together with interest on the unpaid principal sum from
(and including) the Trigger Date (as hereinafter defined) (such date being the
"Interest Accrual Commencement Date") until (but excluding) the date upon which
the principal hereof is paid in full, at a fixed per annum rate equal to the 90
day LIBO Rate for U.S. Dollars as of the Trigger Date (as set forth on the
Bloomberg Financial Markets system), plus .40%, as hereinafter provided, in each
case subject to the terms and conditions hereof, including the provisions of
Section 1(b). Interest hereunder shall be calculated on the basis of a 360-day
year consisting of twelve 30-day months. References in this Contingent
Non-Negotiable Promissory Note (this "Note") to the "Plan" mean that certain
Joint Plan of Reorganization of USG Corporation and the other Makers filed with
the United States Bankruptcy Court for the District of Delaware on April 5, 2006
(as amended from time to time), together with the exhibits and schedules
thereto. This Note is the "Contingent Payment Note" referred to in such Plan.
1. Payment Obligations.
(a) Principal and Interest. Subject to Section 1(b) and 1(c), the
principal amount of this Note shall be payable in two installments of
$1,900,000,000 and $1,150,000,000, respectively, payable on the
thirtieth (30th) and the one hundred and eightieth (180th) day,
respectively, after the later of (x) Trigger Date or (y) if the FAIR
Act has been enacted and become law prior to the Trigger Date, the
Final Order Date. Each such payment date is referred to herein as a
"Scheduled Principal Payment Date." Subject to Section 1(b), interest
on the unpaid principal amount of this Note shall begin to accrue on
the Interest Accrual Commencement Date and all accrued and unpaid
interest shall be due and payable on the final Scheduled Principal
Payment Date. Payments of principal and interest shall be made in
lawful money of the United States of America, by (i) check or (ii)
wire transfer of immediately available funds to such bank account of
the Holder as the Holder may designate from time to time by at least
thirty (30) days' prior written notice to the Maker Representative.
Any payment (excluding any prepayment) on or in respect of this Note
shall be applied first to accrued but unpaid interest and then to the
principal balance hereof. The unpaid principal may, at the option of
the Makers, be prepaid, in whole or in part, at any time without
premium or penalty, through the payment of an amount equal to 100% of
the principal amount being prepaid, together with all accrued and
unpaid interest on this Note to (but excluding) the date of the
prepayment. Any such prepayment shall be applied to installments of
principal in such order as the Maker Representative shall elect at the
time of such prepayment. At such time as this Note is paid or prepaid
in full, it shall be surrendered to the Maker Representative (or any
of the other Makers) and cancelled and shall not be reissued. Anything
in this Note to the contrary notwithstanding, any payment that is due
on a date other than a Business Day (as hereinafter defined) shall be
made on the next succeeding Business Day (and such extension of time
shall not be included in the computation of interest). As used in this
Note, the term "Business Day" means any day other than a Saturday, a
Sunday or a day on which commercial banks in Chicago, Illinois are
required or authorized by law to be closed.
(b) Condition Precedent. The obligations (including the payment
obligations) under this Note shall be subject to the condition
precedent (the "Condition Precedent") that the Fairness in Asbestos
Injury Resolution Act of 2005 or any substantially similar legislation
creating a national trust or similar fund (any such legislation,
including the Fairness in Asbestos Injury Resolution Act of 2005,
being referred to herein as the "FAIR Act") has not been enacted and
made law on or before the date occurring ten days (excluding Sundays)
after the final adjournment sine die of the 109th Congress of the
United States of America (the "Trigger Date"); provided, however,
that:
(i) if the FAIR Act is not enacted and made law on or before the
Trigger Date, the obligations under this Note shall vest and the
Makers shall satisfy this Note as set forth in Section 1(a)
above;
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(ii) if the FAIR Act is enacted and made law on or before the Trigger
Date, and is not subject to an action, cause of action, suit or
other proceeding challenging the constitutionality of the FAIR
Act (a "Challenge Proceeding") on or before sixty (60) days after
the Trigger Date, the Condition Precedent shall not be satisfied,
the obligations under this Note shall not vest, this Note will be
fully cancelled and the Pledge Agreement (as hereinafter defined)
shall automatically terminate and the Collateral (as hereinafter
defined), liens and security interests that may be granted under
the Pledge Agreement shall automatically be released and
terminated (at no cost or expense to the Makers); and
(iii) if the FAIR Act is enacted and made law on or before the Trigger
Date, but is subject to a Challenge Proceeding as of sixty (60)
days after the Trigger Date, the Condition Precedent shall not
yet be satisfied and the obligations under this Note shall not
yet vest, subject to the resolution of the Challenge Proceeding
by a Final Order (as defined below) as follows:
(A) if the Challenge Proceeding is resolved by a Final Order
such that the FAIR Act is unconstitutional in its entirety
or as applied to debtors in proceedings under chapter 11
("Chapter 11") of the United States Bankruptcy Code, 11
U.S.C. Section 101, et seq., as amended (the "Bankruptcy
Code"), whose plans of reorganization have not yet been
confirmed and become substantially consummated (i.e.,
debtors that are then similarly situated to the Makers as of
February 1, 2006 (in a Chapter 11 case with a plan of
reorganization that has not yet been confirmed)), so that
such debtors will not be subject to the FAIR Act, then: (1)
the Condition Precedent shall be deemed to be satisfied on
the date of such Final Order (the date of such Final Order,
being the "Final Order Date"); (2) within thirty (30) days
after the Final Order Date, the first installment of
$1,900,000,000 of principal shall be due and payable; and
(3) within one hundred and eighty (180) days after the Final
Order Date, the final installment of $1,150,000,000 of
principal, together with all unpaid interest accrued (at the
rate set forth in, and accrued in accordance with the
provisions of, Section 1(a)) since the Interest Accrual
Commencement Date shall be due and payable, in each case, as
described in Section 1(a); or
(B) if the Challenge Proceeding is resolved by a Final Order in
a manner other than as contemplated by the immediately
preceding clause (A), then the Condition Precedent shall not
be satisfied, the obligations under this Note shall not
vest, this Note will be fully cancelled and the Pledge
Agreement shall automatically terminate and the Collateral,
liens and security interests that may be granted under the
Pledge Agreement shall automatically be released and
terminated (at no cost or expense to the Makers).
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(iv) As used in this Note, a "Final Order" means an order or judgment
of any court of competent jurisdiction that has not been
reversed, stayed, modified or amended, and as to which the time
to appeal or seek certiorari or move for a new trial, reargument
or rehearing has expired, and no appeal or petition for
certiorari or other proceedings for a new trial, reargument or
rehearing has been timely taken, or as to which any appeal that
has been taken or any petition for certiorari that has been filed
timely has been withdrawn or resolved by the highest court to
which the order or judgment was appealed or from which certiorari
was sought or the new trial, reargument or rehearing shall have
been denied or resulted in no modification of such order.
(c) Subordination Terms. Except as set forth in the penultimate sentence
of this Section 1(c), upon any payment or distribution of assets of
any Maker of any kind or character, whether in cash, property or
securities, to creditors upon any total or partial liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of
creditors or marshaling of assets of any Maker or in a bankruptcy,
reorganization, insolvency, receivership or other similar proceeding
relating to any Maker or its assets, whether voluntary or involuntary,
all obligations and liabilities in respect of the Senior Funded
Indebtedness (as defined below) (including interest after the
commencement of any bankruptcy or other like proceeding at the rate
specified in the applicable Senior Funded Indebtedness whether or not
such interest is an allowed claim in any such proceeding) due or to
become due shall first be paid in full in cash before any payment or
distribution of any kind or character is made on account of any
principal, interest or other obligations or liabilities under this
Note. Upon any such dissolution, winding-up, liquidation,
reorganization, receivership or similar proceeding, any payment or
distribution of assets of any Maker of any kind or character, whether
in cash, property or securities, to which the Holder would be
entitled, except for the provisions hereof, shall be paid by the
Makers or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other person making such payment or distribution, or by the
Holder if received by it, directly to the holders of the Senior Funded
Indebtedness or their representatives for application to the payment
of such Senior Funded Indebtedness remaining unpaid until all such
Senior Funded Indebtness has been paid in full in cash. In the event
that, notwithstanding the foregoing (but subject to the following
sentence), any payment or distribution of assets of any Maker of any
kind or character, whether in cash, property or securities, shall be
received by the Holder when such payment or distribution is prohibited
by this Section 1(c), such payment or distribution shall be held in
trust for the benefit of, and shall be paid over or delivered to, the
holders of Senior Funded Indebtedness or their respective
representatives for application to the payment of Senior Funded
Indebtedness remaining unpaid until all such Senior Funded
Indebtedness has been paid in full in cash. Nothing in this Section
1(c) shall be deemed to limit or impair the grant of security by the
Parent (as defined below) to the Holder pursuant to the Pledge
Agreement as more fully described in Section 1(d) below, or the
exercise of the rights or remedies of the Holder with respect to the
collateral (and the receipt and the use of the proceeds thereof)
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granted thereunder. As used in this Note, "Senior Funded Indebtedness"
shall mean (i) the permitted Funded Indebtedness (as defined below)
described in clauses (i) - (vii) of Section 2(b), unless the
instrument creating or evidencing the same or pursuant to which the
same is outstanding expressly provides that such Funded Indebtedness
shall not be senior in right of payment to this Note and (ii) any
other Funded Indebtedness of a Maker approved as being "Senior Funded
Indebtedness" by the Holder hereof.
(d) USG Corporation (the "Parent") is entering into a Pledge Agreement
Regarding Contingent Payment Note on the date hereof (the "Pledge
Agreement") pursuant to which it has agreed under certain
circumstances to secure the payment obligations of the Makers under
this Note. The Pledge Agreement provides that, upon the demand
therefor by the Holder to the Parent following the occurrence and
during the continuance of an Event of Default (as hereinafter defined)
pursuant to Section 3(a)(i), the Parent shall grant to the Holder a
security interest in that number of shares of previously authorized
but unissued common stock (other than treasury stock) of the Parent
that would entitle the Holder to 51% of the aggregate voting power of
all such outstanding common stock on a fully-diluted basis after
giving effect to such pledge (the "Collateral").
2. Certain Covenants. Each Maker hereby covenants and agrees that, from and
after the date of this Note and until such time as this Note has been paid
in full or, pursuant to Section 1(b), has been cancelled:
(a) Prohibition on Dividends and Repurchases. The Parent shall not (1) pay
dividends or make any other distributions on account of its capital
stock, other than dividends or distributions payable solely in capital
stock of the Parent or its subsidiaries (it being acknowledged and
agreed that nothing herein shall be deemed to limit or restrict the
Parent's right to effect the Rights Offering or to perform its
obligations under the Equity Commitment Agreement (each, as defined in
the Plan) or to effect any stock splits, adjustments or similar
transactions) or (2) purchase or redeem any of its capital stock, in
each of the cases of clauses (1) and (2), in an amount in excess of
$150,000,000, in aggregate.
(b) Permitted Funded Indebtedness. The aggregate amount of the Makers'
Funded Indebtedness that is senior to this Note (through any
combination of the granting of security and/or subordination), shall
be limited to: (i) indebtedness incurred in connection with the
Makers' exit from bankruptcy in a maximum principal amount not to
exceed $750,000,000 at any time outstanding, (ii) amounts necessary to
fund any Plan Distributions (as defined in the Plan), after taking
account of available cash, including payments to the Holder (including
payments on this Note and the Non-Contingent Note), payments to
unsecured creditors and payments to holders of Asbestos Property
Damage Claims (as defined in the Plan), (iii) amounts necessary to
fund operations, working capital needs and capital expenditures of the
Makers, (iv) financings of or for letters of credit (including
facilities relating to Funded Indebtedness incurred to provide
collateral for letters of credit and similar instruments, or so-called
"synthetic letter of credit
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facilities"), bonding requirements, bankers' acceptances, bonds,
capital leases, interest rate, currency or commodity swap agreements,
cap agreements or collar agreements (and any other similar agreement
or arrangement designed to protect a person against fluctuations in
interest rates, currency exchange rates or commodity prices) or
similar instruments entered into, issued or obtained in the ordinary
course of the Makers' businesses, (v) other Funded Indebtedness in a
maximum principal amount not to exceed $125,000,000 at any time
outstanding, (vi) payment obligations hereunder and under the
Non-Contingent Note and (vii) replacements, refinancings, renewals or
extensions of any of the foregoing. In determining the principal
amount of any Funded Indebtedness for purposes hereof where such
Funded Indebtedness is limited in recourse to particular assets of the
Makers, the amount of such Funded Indebtedness thereunder shall be
deemed limited to the value of such assets (to the extent less than
the aggregate amount of such Funded Indebtedness).
(c) As used herein, "Funded Indebtedness" means, with respect to any
Maker:
(i) indebtedness of such Maker for borrowed money;
(ii) obligations of such Maker evidenced by debentures, promissory
notes or other similar instruments;
(iii) obligations of such Maker in respect of letters of credit,
bankers' acceptances or other similar instruments, excluding
obligations in respect of trade letters of credit, bankers'
acceptances or other similar instruments issued in respect of
trade payables or similar obligations;
(iv) obligations of such Maker to pay the deferred and unpaid purchase
price of property or services which are recorded as liabilities
in accordance with Generally Accepted Accounting Principles as in
effect from time to time in the United States ("GAAP"), excluding
trade payables, advances on contracts, deferred compensation and
similar liabilities arising in the ordinary course of business of
such Maker;
(v) rent obligations of such Maker as lessee under any lease
arrangement classified as a capital lease on the balance sheet of
such Maker in accordance with GAAP;
(vi) obligations of such Maker under any interest rate, currency or
commodity swap agreement, cap agreement or collar agreement or
other similar arrangement or agreement designed to protect such
Maker against fluctuations in interest rates, currency exchange
rates or commodity prices; and
(vii) guaranties, surety arrangements and similar arrangements of or
with respect to any Funded Indebtedness of any other person or
entity.
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3. Events of Default and Remedies.
(a) Events of Default. So long as this Note has not been paid in full,
each of the following events will constitute an "Event of Default":
(i) any default in the payment of the principal or accrued interest
payable under this Note as and when the same shall become due and
payable;
(ii) any breach of any of the covenants contained in Section 2, and
continuance of such breach for a period of thirty (30) days after
the Maker Representative's receipt of a Default Notice from the
Holder with respect to such breach;
(iii) commencement of an involuntary case or other proceeding against
any Maker seeking (A) liquidation, reorganization or other relief
with respect to it or its debts under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, (B)
the appointment of a receiver, liquidator, custodian or trustee
of any Maker or for all or substantially all the property and
other assets of any Maker or (C) the winding up or liquidation of
the affairs of any Maker, if, in the case of any of (A), (B) or
(C) above, such case or proceeding shall remain unstayed and
undismissed for a period of sixty (60) days; or
(iv) (A) commencement of a voluntary case by any Maker under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, (B) consent by any Maker to the entry of an
order for relief in an involuntary case against such Maker under
any such law, (C) consent by any Maker to the appointment or
taking possession by a receiver, liquidator, custodian or trustee
of such Maker or for all or substantially all its assets or (D) a
general assignment by any Maker for the benefit of its creditors.
(b) Remedies. If an Event of Default specified in Section 3(a)(i) or (ii)
shall occur, then the Holder may, by written notice to the Maker
Representative (a "Default Notice"), so long as the Event of Default
is continuing, declare all unpaid principal and accrued and unpaid
interest under this Note immediately due and payable without further
presentment, demand, protest or further notice, all of which are
hereby expressly waived by the Makers. If any Event of Default
specified in Section 3(a)(iii) or (iv) shall occur, then, without any
notice to the Makers or any other act by the Holder, the entire
principal amount of this Note (together with all accrued interest
thereon) shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby
expressly waived by the Makers. Notwithstanding the foregoing, in the
event that following the occurrence of an Event of Default hereunder
and the acceleration of the payments due hereunder, any such payments
received by the Holder hereof on account of this Note shall be deemed
received and held in trust for the benefit of the Holder and the
Makers until applied as
7
follows: (x) upon and after the satisfaction of the Condition
Precedent and the vesting of the obligations and liabilities hereunder
pursuant to Section 1(b), such amounts may turned over to and be
applied by the Holder to the obligations and liabilities then due and
owing hereunder or (y) upon the occurrence of any event of the type
described in Section 1(b)(ii) or 1(b)(iii)(B) and the cancellation of
this Note, all such amounts shall be deemed the property of, and shall
be promptly thereafter be returned to, the Maker.
4. Waivers; Amendments. Except as set forth in Sections 3(a)(i), 3(a)(ii) and
3(b), to the extent permitted by applicable law, each Maker hereby
expressly waives demand for payment, presentment, notice of dishonor,
notice of intent to demand, notice of acceleration, notice of intent to
accelerate, protest, notice of protest and diligence in collecting and the
bringing of suit against any such Maker with respect to this Note. Each
Maker agrees that the Holder may extend the time for repayment or accept
partial payment an unlimited number of times without discharging or
releasing any of the Makers from their respective obligations (including
the obligations) under this Note. No delay or omission on the part of the
Holder in exercising any power or right in connection herewith shall
operate as a waiver of such right or any other right under this Note, nor
shall any single or partial exercise of any such right or power or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No amendment, modification or waiver of any provision of
this Note, nor any consent to any departure therefrom, shall in any event
be effective unless the same shall be in writing and signed by the person
(or such person's attorney-in-fact) against whom enforcement thereof is to
be sought, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
5. No Recourse Against Individuals. No director, officer, employee, manager,
shareholder, member, partner or representative of any of the Makers (in
each case, in such person's capacity as such) shall have any personal
liability in respect of any obligations (including the payment obligations)
of the Makers under this Note, or for any claim based on, with respect to
or by reason of such obligations or their creation, by reason of his/her or
its status as such. By accepting this Note, the Holder hereby waives and
releases all such liability. Such waiver and release is part of the
consideration for the issue of the Note by the Makers.
6. Joint and Several Liability; Limitations.
(a) Subject to the terms and conditions of this Note, all payment
obligations of the Makers hereunder shall be joint and several.
(b) Notwithstanding any provisions of this Note to the contrary, it is
intended that the joint and several nature of the payment obligations
of the Makers hereunder not constitute a "Fraudulent Conveyance" (as
hereinafter defined). Consequently, the Holder hereby agrees that if
the payment obligations of a Maker would, but for the application of
this sentence, constitute a Fraudulent Conveyance, the payment
obligations of such Maker shall be valid and enforceable only to the
maximum
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extent that would not cause such payment obligations to constitute a
Fraudulent Conveyance, and the payment obligations of such Maker and
this Note shall automatically be deemed to have been amended
accordingly. For purposes hereof, "Fraudulent Conveyance" means a
fraudulent conveyance or fraudulent transfer under the applicable
provisions of any fraudulent conveyance or fraudulent transfer law or
similar law of any state, nation or other governmental unit, as in
effect from time to time, including, without limitation, the
Bankruptcy Code.
(c) The Makers shall not exercise any rights which they may acquire by way
of subrogation to the rights of the Holder or any rights of
contribution or indemnity from any other Maker, in each case,
hereunder until all of the payment obligations of the Makers under
this Note shall have been paid in full.
7. Certain Representations. Each Maker hereby represents, solely as to itself,
that: (a) such Maker is duly incorporated, validly existing and in good
standing under the laws of its organization and has full corporate power
and authority to execute and deliver this Note; (b) such Maker's execution
and delivery of this Note has been duly authorized by all necessary
corporate action on its part; and (c) this Note constitutes a legal, valid
and binding obligation of such Maker, enforceable against such Maker in
accordance with the terms hereof, except as such enforceability may be
limited by: (i) bankruptcy, insolvency, reorganization, fraudulent transfer
or conveyance and other laws of general applicability relating to or
affecting creditors' rights and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
8. Prohibition on Assignment. Neither this Note nor any interest herein may be
sold, distributed, assigned, offered, pledged or otherwise transferred
without the prior written consent of the Maker Representative, which
consent may be withheld in the sole discretion of the Maker Representative.
The Holder understands that none of this Note, the Pledge Agreement or the
Collateral have been registered, and in no event shall the Makers be
required to register any of the foregoing, under the Securities Act of
1933, as amended (the "Securities Act") or any state securities laws. As
such, without limiting the provisions of the first sentence of this Section
8 in any way, any sale, distribution, assignment, offering, pledge or other
transfer of this Note may only be effected in a transaction that is exempt
from registration under the Securities Act and applicable state securities
laws, as evidenced by a legal opinion from legal counsel to the Holder,
which, in each of the case of such legal opinion and legal counsel, are
reasonably acceptable to the Maker Representative.
9. Entire Agreement. This Note, the Pledge Agreement and the Plan constitute
the entire agreement and understanding among the Holder and the Makers with
respect to the subject matter of this Note and supersede all prior
agreements and understandings, oral or written, among or binding upon such
parties with respect to the subject matter of this Note.
9
10. Appointment of Maker Representative; Notices.
(a) Each Maker hereby designates the Parent as its representative, agent
and attorney-in-fact to act as specified herein for and on behalf of
such Maker (in such capacity, the "Maker Representative"). Each Maker
hereby authorizes the Maker Representative to take such actions on its
behalf under the terms of this Note and the Pledge Agreement and to
exercise such powers and perform such duties hereunder and thereunder
as are specified in such agreements or are reasonably incidental
thereto, including the giving and receiving of all notices, consents,
acquittances and agreements and taking all other actions (including in
respect of compliance with covenants), in each case, on behalf of the
Makers under this Note and the Pledge Agreement. The Maker
Representative hereby accepts such appointment. The Holder shall be
entitled to rely on all notices, requests, consents, certifications
and/or authorizations or other similar acts delivered or taken by the
Maker Representative for or on behalf of any Maker pursuant hereto or
the Pledge Agreement without inquiry, as if such notices, requests,
consents, certifications and/or authorizations or other similar acts
were delivered or taken directly by any such Maker. Each agreement,
undertaking, notice or consent made or given on behalf of a Maker by
the Maker Representative shall be deemed for all purposes to have been
made or given by such Maker and shall be binding upon and enforceable
against such Maker to the same extent as it if the same had been made
directly by such Maker.
(b) All notices and communications provided for hereunder shall be in
writing and sent (a) by facsimile if the sender on the same day sends
a confirming copy of such notice by a recognized overnight-delivery
service (charges prepaid), (b) by registered or certified mail with
return receipt requested (postage prepaid) or (c) by a recognized
overnight-delivery service (with charges prepaid). Any such notice
shall be sent:
(i) if to the Holder, at such address as the Holder shall have
specified to the Makers in writing; or
(ii) if to any Maker, to the Maker Representative, c/o USG
Corporation, 125 South Franklin Street, Chicago, Illinois 60606,
Attention: Corporate Secretary, or to such other address as the
Maker Representative may hereafter specify for itself to the
Holder in writing; with a copy to Jones Day, 77 West Wacker
Drive, Chicago, Illinois 60601, Attention: Brad B. Erens, or to
such other address as Jones Day shall have specified to the
Holder in writing.
11. Captions; Interpretation. The captions and section headings appearing
herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Note. Except
where the context otherwise requires, the defined terms used in this Note
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include,"
"includes"
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and "including" shall be deemed to be followed by the phrase "without
limitation." The word "will" shall be construed to have the same meaning
and effect as the word "shall" and both "will" and "shall" are used in the
mandatory and imperative sense. The word "may" means is authorized or
permitted to, while "may not" means is not authorized or permitted to.
Unless the context otherwise requires: (i) any definition of or reference
to any agreement or other document herein shall be construed as referring
to such agreement or other document as from time to time amended, restated,
supplemented or otherwise modified (subject to any restrictions on such
amendments, restatements, supplements or modifications set forth herein or
therein); (ii) any reference herein to the subsidiaries of any entity shall
be construed to include such entity's direct and indirect subsidiaries;
(iii) the words "herein," "hereof," and "hereunder," and words of similar
import, shall be construed to refer to this Agreement in its entirety and
not to any particular provision hereof; and (iv) all references herein to
sections shall be construed to refer to sections of this Note.
12. Severability. If any provision contained in this Note shall for any reason
be held to be invalid, illegal or unenforceable in any respect, that
provision will, to the extent possible, be modified in such manner as to be
valid, legal and enforceable but so as to most nearly retain the intent of
the parties hereto as expressed herein, and if such a modification is not
possible, that provision will be severed from this Note, and in either case
the validity, legality and enforceability of the remaining provisions of
this Note will not in any way be affected or impaired thereby.
13. GOVERNING LAW. THE CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF THIS NOTE
SHALL BE GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF DELAWARE, WITHOUT
GIVING EFFECT TO ANY PRINCIPLES OF CONFLICTS OF LAWS THEREOF THAT WOULD
RESULT IN THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
* * *
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MAKERS:
USG CORPORATION
UNITED STATES GYPSUM COMPANY
USG INTERIORS, INC.
USG INTERIORS INTERNATIONAL, INC.
L&W SUPPLY CORPORATION
BEADEX MANUFACTURING, LLC
B-R PIPELINE COMPANY
LA MIRADA PRODUCTS CO., INC.
USG INDUSTRIES, INC.
USG PIPELINE COMPANY
STOCKING SPECIALISTS, INC.
By: /s/ Richard H. Fleming
-----------------------------------
Name: Richard H. Fleming
Title: In the capacity listed on
Schedule I hereto with respect
to each entity listed above
[Signature Page to Contingent Promissory Note]
Schedule I
Capacities of Richard H. Fleming
MAKER CAPACITY
----- --------
USG CORPORATION EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
UNITED STATES GYPSUM COMPANY VICE PRESIDENT AND ASST. TREASURER
USG INTERIORS, INC. VICE PRESIDENT AND ASST. TREASURER
USG INTERIORS INTERNATIONAL, INC. VICE PRESIDENT
L&W SUPPLY CORPORATION VICE PRESIDENT AND ASST. TREASURER
BEADEX MANUFACTURING, LLC VICE PRESIDENT
B-R PIPELINE COMPANY VICE PRESIDENT
LA MIRADA PRODUCTS CO., INC. VICE PRESIDENT
USG INDUSTRIES, INC. VICE PRESIDENT
USG PIPELINE COMPANY VICE PRESIDENT
STOCKING SPECIALISTS, INC. VICE PRESIDENT
13