exv10w2







Exhibit 10.2



CONFIDENTIAL TREATMENT REQUESTED BY USG CORPORATION — CONFIDENTIAL PORTIONS OF THIS DOCUMENT
HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION




EXHIBIT A TO

SECOND AMENDMENT AND

RESTATEMENT AGREEMENT




 









SECOND AMENDED AND RESTATED

CREDIT AGREEMENT




dated as of January 7, 2009,




among




USG CORPORATION,

as Borrower,




The Lenders Party Hereto,




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent,




and




GOLDMAN SACHS CREDIT PARTNERS, L.P.,

as Syndication Agent




 






J.P. MORGAN SECURITIES INC.,

as Sole Bookrunner and Lead Arranger




 




[CS&M Ref.: 6701-778]










 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I
	 
	Definitions
	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Classification of Loans and Borrowings
	 	 	26	 
	SECTION 1.03. Terms Generally
	 	 	26	 
	SECTION 1.04. Accounting Terms; GAAP
	 	 	26	 
	SECTION 1.05. Pro Forma Calculations
	 	 	26	 
	 
	ARTICLE II
	 
	The Credits
	 
	SECTION 2.01. Revolving Commitments
	 	 	27	 
	SECTION 2.02. Loans and Borrowings
	 	 	27	 
	SECTION 2.03. Requests for Borrowings
	 	 	28	 
	SECTION 2.04. Swingline Loans and Overadvances
	 	 	28	 
	SECTION 2.05. Letters of Credit
	 	 	30	 
	SECTION 2.06. Funding of Borrowings
	 	 	34	 
	SECTION 2.07. Interest Elections
	 	 	34	 
	SECTION 2.08. Termination and Reduction of Revolving Commitments
	 	 	35	 
	SECTION 2.09. Repayment of Loans; Evidence of Debt
	 	 	36	 
	SECTION 2.10. Prepayment of Loans
	 	 	37	 
	SECTION 2.11. Fees
	 	 	37	 
	SECTION 2.12. Interest
	 	 	38	 
	SECTION 2.13. Alternate Rate of Interest
	 	 	39	 
	SECTION 2.14. Increased Costs
	 	 	39	 
	SECTION 2.15. Break Funding Payments
	 	 	40	 
	SECTION 2.16. Taxes
	 	 	41	 
	SECTION 2.17. Payments Generally; Allocation of Proceeds; Sharing of Setoffs
	 	 	43	 
	SECTION 2.18. Mitigation Obligations; Replacement of Lenders
	 	 	45	 
	SECTION 2.19. Revolving Commitment Increases
	 	 	46	 
	SECTION 2.20. Defaulting Lenders
	 	 	47	 
	 
	ARTICLE III
	 
	Representations and Warranties
	 
	SECTION 3.01. Organization; Powers
	 	 	47	 
	SECTION 3.02. Authorization; Enforceability
	 	 	47	 
	SECTION 3.03. Governmental Approvals; No Conflicts
	 	 	48	 
	SECTION 3.04. Financial Condition; No Material Adverse Change
	 	 	48	 
	SECTION 3.05. Properties
	 	 	48	 
	SECTION 3.06. Litigation and Environmental Matters
	 	 	49	 
	SECTION 3.07. Compliance with Laws and Agreements
	 	 	49	 
	SECTION 3.08. Investment Company Status
	 	 	49	 






i









 






	 	 	 	 	 
	 	 	Page
	SECTION 3.09. Taxes
	 	 	49	 
	SECTION 3.10. ERISA
	 	 	49	 
	SECTION 3.11. Disclosure
	 	 	49	 
	SECTION 3.12. Insurance
	 	 	50	 
	SECTION 3.13. Security Interest in Collateral
	 	 	50	 
	SECTION 3.14. Labor Matters
	 	 	50	 
	 
	ARTICLE IV
	 
	Conditions
	 
	SECTION 4.01. [Intentionally Omitted]
	 	 	50	 
	SECTION 4.02. Each Credit Event
	 	 	50	 
	 
	ARTICLE V
	 
	Affirmative Covenants
	 
	SECTION 5.01. Financial Statements; Borrowing Base and Other Information
	 	 	51	 
	SECTION 5.02. Notices of Material Events
	 	 	53	 
	SECTION 5.03. Existence; Conduct of Business
	 	 	53	 
	SECTION 5.04. Payment of Taxes
	 	 	53	 
	SECTION 5.05. Maintenance of Properties
	 	 	54	 
	SECTION 5.06. Insurance
	 	 	54	 
	SECTION 5.07. Books and Records; Inspection Rights; Field Examinations; Inventory Appraisals
	 	 	54	 
	SECTION 5.08. Compliance with Laws
	 	 	55	 
	SECTION 5.09. Use of Proceeds and Letters of Credit
	 	 	55	 
	SECTION 5.10. Further Assurances
	 	 	55	 
	SECTION 5.11. Control Agreements; Collateral Access Agreements
	 	 	56	 
	 
	ARTICLE VI
	 
	Negative Covenants
	 
	SECTION 6.01. Indebtedness
	 	 	56	 
	SECTION 6.02. Liens
	 	 	58	 
	SECTION 6.03. Fundamental Changes
	 	 	59	 
	SECTION 6.04. Investments
	 	 	60	 
	SECTION 6.05. Sale and Leaseback Transactions
	 	 	61	 
	SECTION 6.06. Swap Agreements
	 	 	61	 
	SECTION 6.07. Restricted Payments
	 	 	61	 
	SECTION 6.08. Transactions with Affiliates
	 	 	62	 
	SECTION 6.09. Restrictive Agreements
	 	 	62	 
	SECTION 6.10. Amendment of Material Documents
	 	 	63	 
	SECTION 6.11. Changes in Fiscal Periods
	 	 	63	 
	SECTION 6.12. Fixed Charge Coverage Ratio
	 	 	63	 






ii









 






	 	 	 	 	 
	 	 	Page
	ARTICLE VII
	 
	Events of Default
	 
	ARTICLE VIII
	 
	The Administrative Agent
	 
	ARTICLE IX
	 
	Miscellaneous
	 
	SECTION 9.01. Notices
	 	 	68	 
	SECTION 9.02. Waivers; Amendments
	 	 	69	 
	SECTION 9.03. Expenses; Indemnity; Damage Waiver
	 	 	71	 
	SECTION 9.04. Successors and Assigns
	 	 	72	 
	SECTION 9.05. Survival
	 	 	75	 
	SECTION 9.06. Counterparts; Integration; Effectiveness
	 	 	75	 
	SECTION 9.07. Severability
	 	 	75	 
	SECTION 9.08. Right of Setoff
	 	 	76	 
	SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	76	 
	SECTION 9.10. WAIVER OF JURY TRIAL
	 	 	76	 
	SECTION 9.11. Headings
	 	 	77	 
	SECTION 9.12. Confidentiality
	 	 	77	 
	SECTION 9.13. USA PATRIOT Act
	 	 	78	 
	SECTION 9.14. Disclosure
	 	 	78	 
	SECTION 9.15. Appointment for Perfection
	 	 	78	 
	SECTION 9.16. Interest Rate Limitation
	 	 	78	 
	SECTION 9.17. Existing Credit Agreement; Effectiveness of Amendment and Restatement
	 	 	78	 






SCHEDULES:




	 	 	 	 	 

	Schedule 1.01(a)

	 	—
	 	Existing Letters of Credit
	Schedule 1.01(b)

	 	—
	 	Investment Objective and Guidelines
	Schedule 1.01(c)

	 	—
	 	Borrowing Base Supplemental Documentation
	Schedule 2.01

	 	—
	 	Commitments
	Schedule 3.06

	 	—
	 	Disclosed Matters
	Schedule 3.12

	 	—
	 	Insurance
	Schedule 6.01

	 	—
	 	Existing Indebtedness
	Schedule 6.02

	 	—
	 	Existing Liens
	Schedule 6.04

	 	—
	 	Existing Investments
	Schedule 6.09

	 	—
	 	Existing Restrictions






iii









 






	 	 	 	 	 

	EXHIBITS:
	 	 	 	 






	 	 	 	 	 

	Exhibit A

	 	—
	 	Form of Assignment and Assumption
	Exhibit B

	 	—
	 	Form of Borrowing Base Certificate
	Exhibit C

	 	—
	 	Form of Borrowing Request
	Exhibit D

	 	—
	 	Form of Interest Election Request
	Exhibit E

	 	—
	 	Form of Compliance Certificate
	Exhibit F

	 	—
	 	Form of Administrative Questionnaire
	Exhibit G

	 	—
	 	Form of Perfection Certificate
	Exhibit H

	 	—
	 	Form of Revolving Note







iv











 






     SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of
January 7, 2009 (this “Agreement”), among USG CORPORATION, a
Delaware corporation, the LENDERS party hereto, JPMORGAN CHASE BANK,
N.A., as Administrative Agent, and GOLDMAN SACHS CREDIT PARTNERS,
L.P., as Syndication Agent.



          Subject to satisfaction of the conditions set forth in the Amendment and Restatement Agreement
dated as of January 7, 2009 (the “Amendment and Restatement Agreement”), among the
Borrower, the Required Lenders (as defined in the Existing Credit Agreement referred to below) and
the Administrative Agent, the Amended and Restated Credit Agreement dated as of July 31, 2007,
among the Borrower, the Lenders party thereto, the Administrative Agent and Goldman Sachs Credit
Partners, L.P., as syndication agent (as amended by Amendment No. 1 dated as of February 14, 2008,
the “Existing Credit Agreement”), is amended and restated in its entirety to read as
provided herein.




ARTICLE I




Definitions



          SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:




          “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.




          “Account” has the meaning assigned to such term in the Security Agreement.




          “Account Debtor” means any Person obligated on an Account.




          “Act” has the meaning assigned to such term in Section 9.13.




          “Adjusted Eligible Accounts” means, at any time, the Eligible Accounts at such time
minus the Dilution Reserve at such time.




          “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (except in the case of the determination of the Adjusted LIBO
Rate for purposes of clause (c) of the definition of the term “Alternate Base Rate”, rounded
upwards, if necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.




          “Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as
administrative agent for the Lenders hereunder, and its successors in such capacity as provided in
Article VIII.




          “Administrative Questionnaire” means an administrative questionnaire, substantially in
the form of Exhibit F or any other form approved by the Administrative Agent.




          “Affiliate” means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified; provided, however, that for purposes of (a)
Section 9.04(b)(i), the term




 









 







“Affiliate” shall also include any person that directly, or indirectly
through one or more intermediaries, owns 10% or more of any class of Equity Interests of the Person
specified or that is an officer or director of the Person specified and (b) the definition of the
term “Eligible Accounts”, an “Affiliate” of the Collateral Parties shall not be deemed to include
(i) Berkshire (or any of its Affiliates, other than the Borrower or any of the Subsidiaries), (ii)
Gebr. Knauf Verwaltungsgesellschaft KG (or any of its Affiliates, other than the Borrower or any of
the Subsidiaries) and (iii) with respect to Accounts in an amount less than $100,000 per person at
any time outstanding arising in the ordinary course of business of the Collateral Parties, any
officer, director or employee of any Loan Party. For purposes of the foregoing, the parties hereto
acknowledge that, as of the Restatement Effective Date, neither Berkshire nor Gebr. Knauf
Verwaltungsgesellschaft KG is an Affiliate of the Borrower or any of the Subsidiaries, except as
provided in clause (a) of the immediately-preceding proviso as a result of such entity’s ownership
of Equity Interests of the Borrower.




          “Affiliated Account Debtor” means, with respect to any Account Debtor and solely to
the extent that any Loan Party has knowledge of such ownership, another Person (a) that directly,
or indirectly through one or more intermediaries, owns 25% or more of the voting Equity Interests
of such Account Debtor or (b) of which 25% or more of the voting Equity Interests of such Person is
directly, or indirectly through one or more intermediaries, owned by such Account Debtor or by any
Person described in clause (a) of this definition.




          “Agreement” has the meaning assigned to such term in the preamble to this Agreement.




          “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1% and (c) the Adjusted LIBO Rate announced on such day (or if such day is
not a Business Day, the immediately preceding Business Day) for a one-month interest period
beginning two Business Days after such day plus 1%, provided that, for the
avoidance of doubt, the LIBO Rate used to determined the Adjusted LIBO Rate announced on any day
(as referenced in the immediately preceding clause (c)) shall be based on the rate appearing on the
Reuters “LIBOR01” screen displaying British Bankers’ Association Settlement Rates (or on any
successor or substitute screen provided by Reuters, or any successor to or substitute for such
service, providing rate quotations comparable to those currently provided on such screen, as
determined by the Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00
a.m., London time, on such day (or, if such day is not a Business Day in connection with a
Eurocurrency Loan, on the immediately preceding Business Day) for a one-month interest period
beginning two Business Days after such day. Any change in the Alternate Base Rate due to a change
in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective
from and including the effective date of such change in the Prime Rate, the Federal Funds Effective
Rate or the Adjusted LIBO Rate, respectively.




          “Amendment and Restatement Agreement” has the meaning assigned to such term in the
preamble hereto.




          “Applicable Percentage” means, at any time with respect to any Revolving Lender, the
percentage of the aggregate Revolving Commitments represented by such Lender’s Revolving Commitment
at such time. If the Revolving Commitments have terminated or expired, the Applicable Percentages
shall be determined based upon the Revolving Commitments most recently in effect, giving effect to
any assignments of Revolving Loans, LC Exposures and Swingline Exposure that occur after such
termination or expiration.




          “Applicable Rate” means, for any day with respect to any ABR Loan or Eurodollar Loan,
3.00% per annum.





2









 








          “Approved Fund” has the meaning assigned to such term in Section 9.04(b).




          “Arranger” means J.P. Morgan Securities Inc.




          “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form
approved by the Administrative Agent.




          “Augmenting Lender” has the meaning assigned to such term in Section 2.19(a).




          “Available Finished Good Inventory” means, at any time, the lesser of (a) 60% of an
amount equal to (x) the Eligible Finished Goods Inventory (valued at the lower of cost (determined
on a first-in, first-out basis) or market value) at such time less (y) Inventory Reserves
applicable thereto and (b) 85% of the product of (i) the Net Orderly Liquidation Value percentage
identified in the most recent Inventory appraisal provided to the Administrative Agent in
accordance with the terms hereof multiplied by (ii) an amount equal to (x) the Eligible
Finished Goods Inventory (valued at the lower of cost (determined on a first-in, first-out basis)
or market value) at such time less (y) any Inventory Reserves applicable thereto.




          “Available Raw Materials Inventory” means, at any time, the lesser of (a) 60% of an
amount equal to (x) the Eligible Raw Materials Inventory (valued at the lower of cost (determined
on a first-in, first-out basis) or market value) at such time less (y) Inventory Reserves
applicable thereto and (b) 85% of the product of (i) the Net Orderly Liquidation Value percentage
identified in the most recent Inventory appraisal provided to the Administrative Agent in
accordance with the terms hereof multiplied by (ii) an amount equal to (x) the Eligible Raw
Materials Inventory (valued at the lower of cost (determined on a first-in, first-out basis) or
market value) at such time less (y) any Inventory Reserves applicable thereto.




          “Available WIP Inventory” means, at any time, the lesser of (a) 60% of an amount equal
to (x) the Eligible WIP Inventory (valued at the lower of cost (determined on a first-in, first-out
basis) or market value) at such time less (y) Inventory Reserves applicable thereto and (b)
85% of the product of (i) the Net Orderly Liquidation Value percentage identified in the most
recent Inventory appraisal provided to the Administrative Agent in accordance with the terms hereof
multiplied by (ii) an amount equal to (x) the Eligible WIP Inventory (valued at the lower
of cost (determined on a first-in, first-out basis) or market value) at such time less (y)
any Inventory Reserves applicable thereto.




          “Availability Period” means the period from and including the Business Day immediately
following the Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Revolving Commitments.




          “Banking Services” means each and any of the following bank services provided to any
Loan Party by any Lender or any of its Affiliates: (a) commercial credit cards and cardless
e-payables services, (b) stored value cards and (c) treasury management services (including
controlled disbursement, automated clearinghouse transactions, return items, overdrafts and
interstate depository network services).




          “Banking Services Obligations” of the Loan Parties means any and all obligations
(including obligations existing as of the Restatement Effective Date) of the Loan Parties, whether
absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions therefor), in
connection with Banking Services.





3









 








          “Berkshire” means Berkshire Hathaway Inc., a Delaware corporation.




          “Board” means the Board of Governors of the Federal Reserve System of the U.S.




          “Borrower” means USG Corporation, a Delaware corporation.




          “Borrowing” means (a) Revolving Loans of the same Type, made, converted or continued
on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect, (b) a Swingline Loan and (c) an Overadvance.




          “Borrowing Base” means, at any time, an amount equal to the sum of (a) 85% of the
Adjusted Eligible Accounts at such time plus (b) the sum of (i) Available Finished Goods
Inventory, (ii) Available Raw Materials Inventory and (iii) Available WIP Inventory, in each case
at such time, less (c) without duplication of other Reserves included in the foregoing
components of the Borrowing Base, the amount of any other Reserves established by the
Administrative Agent in its Permitted Discretion at such time. The Administrative Agent may, in
its Permitted Discretion and based on new information or a change in circumstances, adjust
Reserves, with any such change to be effective three Business Days after delivery of notice thereof
to the Borrower and the Lenders. Subject to the immediately preceding sentence, the Borrowing Base
at any time shall be determined by reference to the Borrowing Base Certificate most recently
delivered to the Administrative Agent pursuant to Section 5.01(e) (or, in the case of the initial
Borrowing Base Certificate delivered in connection with this Agreement, pursuant to Section 5(f) of
the Amendment and Restatement Agreement), subject to adjustments made by the Administrative Agent
in its Permitted Discretion to address any events or conditions relating to any of the Collateral
occurring on or after the date with respect to which such Borrowing Base Certificate relates.




          “Borrowing Base Certificate” means a certificate, signed and certified as accurate and
complete by a Financial Officer, in substantially the form of Exhibit B or another form
which is reasonably acceptable to each of the Administrative Agent and the Borrower.




          “Borrowing Base Supplemental Documentation” means the documentation listed on
Schedule 1.01(c).




          “Borrowing Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.03.




          “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed,
provided that, when used in connection with a Eurodollar Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.




          “Capital Expenditures” means, for any period, without duplication, any expenditure for
any purchase or other acquisition of any asset that would be classified as a capital expenditure in
the financial statements of the Borrower and the Subsidiaries for such period, prepared in
accordance with GAAP.





          “Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.



4









 









          “Cash Dominion Period” means any period in which full cash dominion is in effect
pursuant to Section 7.03 of the Security Agreement (which, for purposes of clarity, shall be during
any of (a) each period beginning on the date on which Excess Availability shall have been less than
the Threshold Amount for five consecutive Business Days and ending on the first date thereafter on
which Excess Availability shall have been equal to or greater than the Threshold Amount for 30
consecutive calendar days and (b) the continuation of any Event of Default). As contemplated by
Section 7.03 of the Security Agreement, the Cash Dominion Period, if any, that commences during the
second Cash Dominion Termination Period (as such term is defined in the Security Agreement), or
after the acceleration of the Loans and/or the termination of the Commitments in accordance with
Article VII, shall be deemed to continue until such time as the Security Agreement is terminated in
accordance with the terms thereof.




          “Cdn$” refers to lawful money of Canada.




          “Change in Control” means (a) the ownership, directly or indirectly, beneficially or
of record, by any Person or group (in each case, within the meaning of the Securities Exchange Act
and the rules of the SEC thereunder as in effect on the Effective Date) other than the Restricted
Group (or any of them) of Equity Securities representing more than 25% of the aggregate ordinary
voting power represented by Voting Securities of the Borrower (determined on a Fully Diluted Basis)
or (b) the ownership, directly or indirectly, beneficially or of record, by the Restricted Group
(or any of them) of Equity Securities representing more than 40% of the aggregate ordinary voting
power represented by the Voting Securities of the Borrower (determined on a Fully Diluted Basis).




          “Change in Law” means (a) the adoption of any law, rule or regulation after the
Effective Date, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the Effective Date or (c) compliance by any
Lender or the Issuing Bank (or, for purposes of Section 2.14(b), by any lending office of such
Lender or by such Lender’s or the Issuing Bank’s holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any Governmental Authority made
or issued after the Effective Date.




          “CLO” has the meaning assigned to such term in Section 9.04(b).




          “Code” means the Internal Revenue Code of 1986, as amended from time to time.




          “Collateral” has the meaning assigned to such term in the Security Agreement.




          “Collateral Access Agreement” has the meaning assigned to such term in the Security
Agreement.




          “Collateral Documents” means, collectively, the Security Agreement, the Deposit
Account Control Agreements, the Collateral Access Agreements and each other security agreement or
other instrument or document executed and delivered pursuant to Section 5.10 to secure any of the
Secured Obligations.




          “Collateral Parties” means, collectively, the Loan Parties (other than any Subsidiary
that is not a wholly-owned Subsidiary).




          “Collection Account” has the meaning assigned to such term in the Security Agreement.




          “Commitment” means (a) with respect to any Revolving Lender, such Lender’s Revolving
Commitment and (b) with respect to the Swingline Lender, its Swingline Commitment.





5









 








          “Commitment Increase Amendment” has the meaning assigned to such term in
Section 2.19(b).




          “Consolidated Cash Interest Expense” means, for any period, the sum, without
duplication, of (a) the total net consolidated interest expense of the Borrower and the
Subsidiaries for such period (as shown on a consolidated income statement of the Borrower for such
period) plus (b) all cash dividends paid or payable during such period in respect of
Disqualified Equity Interests of the Borrower or any Subsidiary (but expressly excluding any such
dividends paid or payable to the Borrower or any Subsidiary).




          “Consolidated EBITDA” means, for any period, Consolidated Net Income for such period
before interest, taxes, depreciation, amortization and other non-cash adjustments (other than
adjustments relating to minority interest expense) to Consolidated Net Income for such period,
provided that Consolidated EBITDA shall be decreased by the amount of any cash expenditures
in such period relating to non-cash adjustments added back to Consolidated EBITDA in any prior
period.




          “Consolidated Net Income” means, for any period, the net income or loss of the
Borrower and the Subsidiaries for such period determined on a consolidated basis in accordance with
GAAP, excluding any extraordinary gains or losses of the Borrower and the Subsidiaries for such
period.




          “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies, or the dismissal or appointment of the
management, of a Person, whether through the ability to exercise voting power, by contract or
otherwise. “Controlling” and “Controlled” have meanings correlative thereto.




          “Convertible Securities” means securities of the Borrower that are convertible or
exchangeable (whether presently convertible or exchangeable or not) into Voting Securities.




          “Default” means any event or condition that constitutes an Event of Default or that
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.




          “Defaulting Lender” means any Revolving Lender, as determined by the Administrative
Agent, that has (a) failed to fund any portion of its Loans or participations in Letters of Credit,
Swingline Loans or Overadvances within three Business Days of the date required to be funded by it
hereunder, (b) notified the Borrower, the Administrative Agent, the Issuing Bank or the Swingline
Lender in writing that it does not intend to comply with any of its funding obligations under this
Agreement or has made a public statement to the effect that it does not intend to comply with its
funding obligations under this Agreement or generally under other agreements in which it commits to
extend credit, (c) failed, within three Business Days after request by the Administrative Agent, to
confirm that it will comply with the terms of this Agreement relating to its obligations to fund
prospective Loans and participations in then outstanding Letters of Credit, Swingline Loans and
Overadvances, (d) otherwise failed to pay over to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within three Business Days of the date when due,
unless the subject of a good faith dispute, or (e) (i) become or is insolvent or has a parent
company that has become or is insolvent or (ii) become the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken
any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such
proceeding or appointment or has a parent company that has become the subject of a bankruptcy or
insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it,
or has taken any action in furtherance of, or indicating its consent to, approval of or
acquiescence in any such proceeding or appointment.





6









 








          “Deposit Account Control Agreement” has the meaning assigned to such term in the
Security Agreement.




          “Dilution Factors” means, without duplication of any reduction to the balance of any
Account, with respect to any period, the aggregate amount of all deductions, credit memos, returns,
adjustments, allowances, bad debt write-offs and other non-cash credits (including all volume
discounts, trade discounts and rebates) that are recorded to reduce Accounts of the Collateral
Parties in a manner consistent with current and historical accounting practices of the Collateral
Parties.




          “Dilution Ratio” means, at any time, the amount (expressed as a percentage),
calculated in connection with the delivery of the Borrowing Base Certificate for the calendar month
most recently ended, equal to (a) the aggregate amount of the applicable Dilution Factors in
respect of the Accounts of the Collateral Parties for the twelve-calendar-month period ended as of
the last day of such calendar month divided by (b) total gross invoices of the Collateral
Parties for such twelve-calendar-month period.




          “Dilution Reserve” means, at any time, the product of (a) the excess of (i) the
applicable Dilution Ratio at such time over (ii) 5.00%, multiplied by (b) the
aggregate amount of Eligible Accounts at such time.




          “Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.06 or in any SEC Filing.




          “Disqualified Equity Interests” means Equity Interests that (a) mature or are
mandatorily redeemable or subject to mandatory repurchase or redemption or repurchase at the option
of the holders thereof (including those Equity Interests that may be required to be redeemed upon
the failure to maintain or achieve any financial performance standards), in each case in whole or
in part and whether upon the occurrence of any event, pursuant to a sinking fund obligation on a
fixed date or otherwise, prior to the date that is 180 days after the Maturity Date (other than
(i) upon payment in full of the Obligations, reduction of the LC Exposure to zero and termination
of the Commitments or (ii) upon a “change in control”, provided that any payment required
pursuant to this clause (ii) is contractually subordinated in right of payment to the Obligations
on terms reasonably satisfactory to the Administrative Agent and such requirement is applicable
only in circumstances that are market on the date of issuance of such Equity Interests) or (b) are
convertible or exchangeable, automatically or at the option of any holder thereof, into any
Indebtedness or Equity Interests or other assets, in each case, other than Qualified Equity
Interests prior to the date that is 180 days after the Maturity Date (other than (i) upon payment
in full of the Obligations, reduction of the LC Exposure to zero and termination of the Commitments
or (ii) upon a “change in control”, provided that any conversion or exchange required pursuant to
this clause (ii) is contractually subordinated in right of payment to the Obligations on terms
reasonably satisfactory to the Administrative Agent and such requirement is applicable only in
circumstances that are market on the date of issuance of such Equity Interests).




          “dollars” or “$” refers to lawful money of the U.S.




          “Domestic Material Subsidiary” means any Material Subsidiary that is organized under
the laws of the U.S., any State thereof or the District of Columbia.




          “Domestic Subsidiary” means any Subsidiary that is organized under the laws of the
U.S., any State thereof or the District of Columbia.




          “Effective Date” means August 2, 2006.




7









 








          “Eligible Accounts” means, at any time, the Accounts of the Collateral Parties, but
excluding any Account:





     (a) that is not subject to a first-priority perfected security interest in favor of the
Administrative Agent;




     (b) that is subject to any Lien other than (i) a Lien in favor of the Administrative
Agent and (ii) a Lien permitted under clauses (i) through (iv), (vi) or (xi) of Section 6.02
that does not have priority over the Lien in favor of the Administrative Agent;




     (c) with respect to which the scheduled due date is more than 60 days after the
original invoice date, is unpaid more than 90 days after the date of the original invoice
therefor or more than 30 days after the original due date, or which has been written off the
books of the applicable Collateral Party or otherwise designated as uncollectible (in
determining the aggregate unpaid amount owing from each Account Debtor with respect to
Accounts that are unpaid either more than 90 days after the date of the original invoice
therefor or more than 30 days after the original due date, such aggregate amount shall not
be reduced to give effect to any credits extended by, or amounts owing from, the Collateral
Parties to such Account Debtor);




     (d) that is owing by an Account Debtor for which more than 50% of the Accounts owing
from such Account Debtor and its Affiliated Account Debtors are ineligible under clause (c)
of this definition;




     (e) that is owing by an Account Debtor to the extent the aggregate amount of Accounts
owing from such Account Debtor and its Affiliated Account Debtors to all Collateral Parties
exceeds (i) if the corporate credit rating of such Account Debtor is BBB- or higher by S&P
and the corporate family rating of such Account Debtor is Baa3 or higher by Moody’s, 20% of
the aggregate amount of all Eligible Accounts at such time or (ii) if the corporate credit
rating and the corporate family rating of such Account Debtor are otherwise (or if such
Account Debtor does not have a corporate credit rating or a corporate family rating from S&P
and Moody’s, respectively), 15% of the aggregate amount of all Eligible Accounts at such
time;




     (f) with respect to which any covenant, representation, or warranty contained in any
Loan Document has been breached or is not true;




     (g) that (i) does not arise from the sale of goods or performance of services in the
applicable Collateral Party’s ordinary course of business, (ii) is not evidenced by an
invoice or other documentation reasonably satisfactory to the Administrative Agent that has
been sent to the Account Debtor, (iii) represents a progress billing, (iv) is contingent
upon any Collateral Party’s completion of any further performance, (v) represents a sale on
a bill-and-hold, guaranteed sale, sale-and-return, sale on approval, consignment,
cash-on-delivery or any other repurchase or return basis or (vi) relates to payments of
interest;




     (h) for which the goods giving rise to such Account have not been shipped or delivered
to the Account Debtor (or its designee) or for which the services giving rise to such
Account have not been performed by any Collateral Party or if such Account was invoiced more
than once, provided that any Account for which the invoice has been corrected due to
billing errors and resent to the applicable Account Debtor shall not be deemed to have been
invoiced more than once for purposes of this clause (h);




     (i) with respect to which any check or other instrument of payment therefor has been
returned uncollected for any reason;



8









 






     (j) that is owed by an Account Debtor that has (i) applied for, suffered, or consented
to the appointment of any receiver, custodian, trustee or liquidator of its assets, (ii) had
possession of all or a material part of its property taken by any receiver, custodian,
trustee or liquidator, (iii) filed, or had filed against it, any request or petition for
liquidation, reorganization, arrangement, adjustment of debts, adjudication as bankrupt,
winding-up or voluntary or involuntary case under any state or federal bankruptcy laws, (iv)
admitted in writing its inability, or is generally unable to, pay its debts as they become
due, (v) become insolvent or (vi) ceased operation of its business;




     (k) that is owed by any Account Debtor that has sold all or substantially all of its
assets (it being understood, for purposes of clarity, that any Account that is transferred
to the purchaser of all or substantially all of an Account Debtor’s assets in connection
with any such sale shall be an Account owed by such purchaser and shall not be deemed to be
ineligible as a result of the application of this clause (k));




     (l) that is owed by an Account Debtor that (i) does not maintain its chief executive
office in the U.S. (including any State thereof, the District of Columbia and, at the
Administrative Agent’s discretion following a request therefor by the Borrower (and
following the completion of, and the Administrative Agent’s satisfaction with, due diligence
deemed to be necessary by the Administrative Agent), any territory thereof (including Puerto
Rico, the U.S. Virgin Islands and Guam)), (ii) is not otherwise a resident of the U.S.
(including any State thereof, the District of Columbia and, at the Administrative Agent’s
discretion following a request therefor by the Borrower (and following the completion of,
and the Administrative Agent’s satisfaction with, due diligence deemed to be necessary by
the Administrative Agent), any territory thereof (including Puerto Rico, the U.S. Virgin
Islands and Guam)) for purposes of establishing jurisdiction in the U.S. over such Account
Debtor and (iii) is not organized under the applicable law of (A) the U.S. or any State or
territory thereof (including Puerto Rico, the U.S. Virgin Islands and Guam) or the District
of Columbia or (B) Canada or any province thereof, in each case unless such Account is
backed by a letter of credit, bankers acceptance or other credit support that is acceptable
to the Administrative Agent and that is in the possession of, has been assigned to and is
drawable directly by the Administrative Agent;




     (m) that is owed in any currency other than dollars;




     (n) that is owed by (i) the government (or any department, agency, public corporation,
or instrumentality thereof) of any country other than the U.S. unless such Account is backed
by a letter of credit, bankers acceptance or other credit support that is acceptable to the
Administrative Agent and that is in the possession of, has been assigned to and is drawable
directly by the Administrative Agent, or (ii) the government of the U.S., or any department,
agency, public corporation, or instrumentality thereof, unless the Federal Assignment of
Claims Act of 1940, as amended (31 U.S.C. § 3727 et seq. and 41 U.S.C. § 15
et seq.), and any other steps necessary to perfect the Lien of the
Administrative Agent in such Account, have been complied with to the Administrative Agent’s
reasonable satisfaction;




     (o) that is owed by (i) any Affiliate of any Collateral Party or (ii) to the extent not
otherwise constituting an Affiliate of any Collateral Party, any employee, officer, director
or agent of any Collateral Party (other than, in the case of this clause (ii), any Account
in an amount less than $100,000 per person at any time outstanding arising in the ordinary
course of business of the Collateral Parties);




     (p) that is owed by an Account Debtor to which (or to whose Affiliated Account Debtor)
any Collateral Party is indebted, but only to the extent of such indebtedness or is subject



9









 






to any security, deposit, progress payment, retainage or other similar advance made by or
for the benefit of an Account Debtor, in each case to the extent thereof;




     (q) that is subject to any counterclaim, deduction, defense, setoff or dispute but only
to the extent of any such counterclaim, deduction, defense, setoff or dispute;




     (r) that is evidenced by any promissory note, chattel paper, or instrument;




     (s) that is owed by an Account Debtor located in any jurisdiction which requires filing
of a “Notice of Business Activities Report” or other similar report in order to permit the
applicable Collateral Party to seek judicial enforcement in such jurisdiction of payment of
such Account, unless such Collateral Party has filed such report or qualified to do business
in such jurisdiction, provided that any Account that would be an Eligible Account
but for a failure to file such report or qualify to do business in the applicable
jurisdiction shall be deemed to be an Eligible Account if such failure to file or qualify
may be retroactively cured by the payment of a nominal amount;




     (t) with respect to which the applicable Collateral Party has made any agreement with
the Account Debtor for any reduction thereof, other than discounts and adjustments given in
the ordinary course of business, or any Account which was partially paid and such Collateral
Party created a new receivable for the unpaid portion of such Account;




     (u) that does not comply in all material respects with the requirements of all
applicable laws and regulations, whether Federal, state or local, including without
limitation the Federal Consumer Credit Protection Act, the Federal Truth in Lending Act and
Regulation Z of the Board;




     (v) that 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 or
purports that any Person other than a Collateral Party has an ownership interest in such
goods, or which indicates any party other than a Collateral Party as payee or remittance
party;




     (w) that was created on cash on delivery terms; or




     (x) that the Administrative Agent determines in its Permitted Discretion may not be
collectible from the Account Debtor for any reason.



          In determining the amount of an Eligible Account, the face amount of an Account may, in the
Administrative Agent’s Permitted Discretion, 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 such Collateral Party may be obligated to rebate to an
Account Debtor pursuant to the terms of any agreement or understanding (written or oral)) and (ii)
the aggregate amount of all cash received in respect of such Account but not yet applied by such
Collateral Party to reduce the amount of such Account.




          “Eligible Finished Goods Inventory” means Eligible Inventory consisting of finished
goods available for sale (as determined in a manner acceptable to the Administrative Agent in its
Permitted Discretion and consistent with past practices).




          “Eligible Inventory” means, at any time, the Inventory of the Collateral Parties, but
excluding any Inventory:





10









 









     (a) that is not subject to a first priority perfected Lien in favor of the
Administrative Agent;




     (b) that is subject to any Lien other than (i) a Lien in favor of the Administrative
Agent and (ii) any Lien permitted under clauses (i) through (iv), (vi) or (xi) of Section
6.02 that does not have priority over the Lien in favor of the Administrative Agent;




     (c) with respect to which any covenant, representation, or warranty contained in any
Loan Document has been breached or is not true and which does not conform to all standards
imposed by any applicable Governmental Authority;




     (d) in which any Person other than any Collateral Party shall (i) have any direct or
indirect ownership, interest or title to such Inventory or (ii) be indicated on any
purchase order or invoice with respect to such Inventory as having or purporting to have an
interest therein;




     (e) that constitutes spare or replacement parts (other than those held for sale in
the ordinary course of business), packaging and shipping material, manufacturing supplies,
samples, prototypes, displays or display items, goods that are returned or marked for
return, repossessed goods, defective or damaged goods, goods held on consignment (other
than those on consignment with customers and subject to a Collateral Access Agreement) or
goods that are not of a type held for sale in the ordinary course of business;




     (f) that is not located in the U.S. or is in transit with a common carrier from
vendors and suppliers;




     (g) that is located in any location leased by a Collateral Party unless (i) the
lessor has delivered to the Administrative Agent a Collateral Access Agreement and such
other documentation as the Administrative Agent may reasonably request or (ii) a Rent
Reserve has been established by the Administrative Agent with respect to such Inventory,
provided that any Inventory located at any such location where Inventory on-hand
has a book value of less than $100,000 shall not constitute Eligible Inventory;




     (h) that is located in any third party warehouse or other storage facility or is in
the possession of a bailee (other than a third party processor) and is not evidenced by a
document (other than bills of lading to the extent permitted by clause (f) above), unless
(i) such warehouseman or bailee has delivered to the Administrative Agent a Collateral
Access Agreement and such other documentation as the Administrative Agent may reasonably
request or (ii) a Rent Reserve has been established by the Administrative Agent with
respect to such Inventory, provided that any Inventory located at any such location
where Inventory on-hand has a book value of less than $100,000 shall not constitute
Eligible Inventory;




     (i) that is being processed offsite at a third party location or outside processor
unless (i) such bailee has delivered to the Administrative Agent a Collateral Access
Agreement and such other documentation as the Administrative Agent may reasonably request
or (ii) a Rent Reserve has been established by the Administrative Agent with respect to
such Inventory, provided that any Inventory located at any such location where
Inventory on-hand has a book value of less than $100,000 shall not constitute Eligible
Inventory;




     (j) that is a discontinued product or component thereof;



11









 






     (k) that is the subject of a consignment by such Collateral Party as consignor;




     (l) that is not reflected in a current perpetual inventory report of the applicable
Collateral Party;




     (m) for which reclamation rights have been asserted by the seller;




     (n) that consists of detonators, explosives or any similar device; or




     (o) that the Administrative Agent determines in its Permitted Discretion is
unacceptable.



          In determining the value of the Inventory (on a cost basis) at any time, there shall be
deducted (x) the aggregate amount of restocking and delivery fees associated with such Inventory
and (y) that portion of the cost of such Inventory attributable to intercompany profits among the
applicable Collateral Party and its Affiliates.




          “Eligible Raw Material Inventory” means Eligible Inventory consisting of raw materials
(as determined in a manner acceptable to the Administrative Agent in its Permitted Discretion and
consistent with past practices).




          “Eligible WIP Inventory” means Eligible Inventory consisting of work-in-process
related to manufacturing of Inventory sold by any Collateral Party in the ordinary course of its
business (as determined in a manner acceptable to the Administrative Agent in its Permitted
Discretion and consistent with past practices).




          “Environmental Laws” means all treaties, laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by or with any Governmental Authority, relating in any way to the environment, the
preservation or reclamation of natural resources, the generation, management, use, presence,
Release or threatened Release of, or exposure to, any Hazardous Material or to health and safety
matters.




          “Environmental Liability” means liabilities, obligations, claims, actions, suits,
judgments, or orders under or relating to any Environmental Law for any damages, injunctive relief,
losses, fines, penalties, fees, expenses (including reasonable fees and expenses of attorneys and
consultants) or costs, whether contingent or otherwise, including those arising from or relating to
(a) any actual or alleged violation of any Environmental Law or permit, license or approval issued
thereunder, (b) the generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened
Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the foregoing.




          “Equity Commitment Agreement” means the Equity Commitment Agreement between the
Borrower and Berkshire dated January 30, 2006, as amended by Amendment No. 1 thereto dated February
23, 2006.




          “Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person.




          “Equity Securities” means, collectively, Voting Securities, Convertible Securities and
Rights to Purchase Voting Securities.





12









 








          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time.




          “ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.




          “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) any failure by any Plan to satisfy the minimum funding standard
(within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan,
whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate
any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that
a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning
of Title IV of ERISA.




          “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.




          “Event of Default” has the meaning assigned to such term in Article VII.




          “Excess Availability” means, at any time, an amount equal to (a) the lesser of (i) the
aggregate Revolving Commitments of all Revolving Lenders and (ii) the Borrowing Base, in each case
at such time, minus (b) the aggregate Revolving Exposure of all Revolving Lenders at such
time.




          “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by
the U.S., or by the jurisdiction under the laws of which such recipient is organized or in which
its principal office is located or, in the case of any Lender, in which its applicable lending
office is located, (b) any branch profits taxes imposed by the U.S. or any similar tax imposed by
any other jurisdiction described in clause (a) above and (c) in the case of a Foreign Lender (other
than an assignee pursuant to a request by the Borrower under Section 2.18(b)), any U.S. withholding
tax that (i) is in effect and would apply to amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party to this Agreement (or designates a new lending office), except
to the extent that such Foreign Lender (or its assignor, if any, or, in the case of an SPV, its
Granting Lender) was entitled, at the time of designation of a new lending office (or assignment or
grant, as applicable), to receive additional amounts from the Borrower with respect to any
withholding Tax pursuant to Section 2.16(a), or (ii) is attributable to such Foreign Lender’s
failure to comply with Section 2.16(f).




          “Existing Credit Agreement” has the meaning assigned to such term in the preamble
hereto.





13









 








          “Existing Letters of Credit” means the letters of credit previously issued for the
account of the Borrower or any Subsidiary pursuant to the Existing Credit Agreement and listed on
Schedule 1.01(a).




          “Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.




          “Financial Officer” means the chief financial officer, principal accounting officer,
treasurer, assistant treasurer or controller of the Borrower.




          “Fixed Charges” means, with reference to any period, without duplication, (a) the sum
of (i) Consolidated Cash Interest Expense for such period and (ii) any interest accrued and paid in
cash during such period in respect of Indebtedness of the Borrower or any Subsidiary that is
required to be capitalized rather than included in total net consolidated interest expense for such
period in accordance with GAAP, plus (b) principal payments scheduled to be made by the
Borrower or any Subsidiary on Indebtedness during such period (regardless of whether such payment
is actually made in such period, but giving effect to any reductions thereof resulting from any
prepayment thereof in any earlier period), plus (c) prepayments of principal made by the
Borrower or any Subsidiary on Indebtedness during such period that reduce the scheduled principal
payments in respect of such Indebtedness required to be paid in any subsequent period, plus
(d) expense for Taxes paid in cash during such period, plus (e) Restricted Payments paid in
cash during such period by the Borrower or any Subsidiary (other than any such Restricted Payments
paid to the Borrower or any Subsidiary), plus (f) cash contributions during such period to
any Plan, plus (g) Capital Lease Obligation payments made during such period, all
calculated for the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP.




          “Fixed Charge Coverage Ratio” means the ratio, determined as of the end of each fiscal
quarter of the Borrower for the most-recently ended four fiscal quarters, of (a) Consolidated
EBITDA for such four-fiscal-quarter period plus the aggregate amount of Transaction Costs
incurred or accrued during such four-fiscal-quarter period minus the unfinanced portion of
Capital Expenditures for such four-fiscal-quarter period to (b) Fixed Charges for such
four-fiscal-quarter period, all calculated for the Borrower and the Subsidiaries on a consolidated
basis in accordance with GAAP.




          “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the U.S., each
State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.




          “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.




          “Fully Diluted Basis” means, with respect to the determination of whether a Change in
Control has occurred, the Voting Securities that would be outstanding after giving effect to the
conversion or exchange of all outstanding Convertible Securities and the exercise of all
outstanding Rights to Purchase Voting Securities, in each case, whether or not presently
convertible, exchangeable or exercisable.




          “GAAP” means generally accepted accounting principles in the U.S.





14









 








          “Governmental Authority” means the government of the U.S., any other nation or any
political subdivision thereof, whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central Bank) having
jurisdiction over the Borrower, any Subsidiary or any Lender as the context may require.




          “Granting Lender” has the meaning assigned to such term in Section 9.04(e).




          “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation,
provided that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.




          “Guarantee Agreement” means the Guarantee Agreement, dated as of the date hereof,
among the Loan Parties and the Administrative Agent, for the benefit of the Secured Parties.




          “Hazardous Materials” means (a) any petroleum products or byproducts and all other
hydrocarbons, radon gas, asbestos or asbestos-containing materials, urea formaldehyde foam
insulation, polychlorinated biphenyls, chlorofluorocarbons and all other ozone-depleting
substances; or (b) any chemical, material, substance or waste that is prohibited, limited or
regulated by or pursuant to any Environmental Law.




          “Incur” means create, incur, assume, Guarantee or otherwise become responsible for,
and “Incurred” and “Incurrence” shall have correlative meanings.




          “Indebtedness” of any Person means, without duplication and excluding trade accounts
payable incurred in the ordinary course of business, (a) all obligations of such Person for
borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such
Person upon which interest charges are customarily paid, (d) all obligations of such Person under
conditional sale or other title retention agreements relating to property acquired by such Person,
(e) all obligations of such Person in respect of the deferred purchase price of property or
services, (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has been assumed;
provided, however, that so long as such Person is not obligated under such
Indebtedness other than with respect to such Lien, such Indebtedness shall be considered to be
Indebtedness of such Person only to the extent of the lesser of the value of (i) any limit in value
of the Lien or (ii) the value of the property that is subject to any such Lien, (g) all Guarantees
by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all
obligations, contingent or otherwise, of such Person as an account party in respect of letters of
credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in
respect of bankers’ acceptances and (k) all Disqualified Equity Interests. The Indebtedness of
any Person shall include the Indebtedness of any other entity (including any partnership in which
such Person is a general partner) to the extent such





15









 







Person is liable therefor as a result of such
Person’s ownership interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor. Notwithstanding the
foregoing, in connection with any acquisition, the term “Indebtedness” shall not include contingent
post-closing purchase price adjustments, non-compete payments or earn-outs to which the seller in
such acquisition may become entitled.




          “Indemnified Taxes” means Taxes other than Excluded Taxes.




          “Interest Election Request” means a request by the Borrower to convert or continue a
Revolving Borrowing in accordance with Section 2.07.




          “Interest Payment Date” means (a) with respect to any ABR Loan (including a Swingline
Loan), the last day of each March, June, September and December and the Maturity Date and (b) with
respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of
which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of
more than three months’ duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months’ duration after the first day of such Interest Period.




          “Interest Period” means with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter (or nine or twelve months
thereafter if, at the time of the relevant Borrowing, all Lenders participating therein agree to
make an interest period of such duration available), as the Borrower may elect, provided
that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (b) any Interest Period that commences on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the
date on which such Borrowing is made and thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.




          “Inventory” has the meaning assigned to such term in the Security Agreement.




          “Inventory Reserves” shall mean, without duplication of any other applicable Reserves
or eligibility exclusions, reserves against Inventory equal to the sum of the following:





     (a) a reserve for shrink, or discrepancies that arise pertaining to Inventory
quantities on hand between a Collateral Party’s perpetual accounting system, and physical
counts of the Inventory which will be based on the applicable Collateral Party’s historical
practice and experience and in an amount acceptable to the Administrative Agent in its
Permitted Discretion;




     (b) a reserve determined by the Borrower in accordance with GAAP and satisfactory to
the Administrative Agent in its Permitted Discretion for Inventory that is discontinued,
obsolete, slow-moving, unmerchantable, defective or unfit for sale;




     (c) the lower of the cost or market reserve for any differences between the
applicable Collateral Party’s actual cost to produce such Inventory and the selling price
of such Inventory to third parties;



16









 






     (d) a reserve whereby capitalized favorable variances under the standard cost method
of accounting shall be deducted from Eligible Inventory and unfavorable variances
thereunder shall not be added to Eligible Inventory;




     (e) a reserve for vendor rebates owed to a Collateral Party; and




     (f) any other reserve as deemed appropriate by the Administrative Agent in its
Permitted Discretion from time to time.



          “Issuing Bank” means, as the context may require, (a) (i) JPMCB and (ii) any other
consenting Revolving Lender, in each case satisfactory to the Borrower and the Administrative
Agent, in each case in its capacity as the issuer of Letters of Credit hereunder, and its
successors in such capacity as provided in Section 2.05(i), and (b) with respect to each Existing
Letter of Credit, the Lender that issued such Existing Letter of Credit. The Issuing Bank may, in
its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank reasonably acceptable to the Borrower, in which case the term “Issuing Bank” shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate.




          “JPMCB” means JPMorgan Chase Bank, N.A., a national banking association, in its
individual capacity, and its successors.




          “LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of
Credit.




          “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time and (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of
any Revolving Lender at any time shall be its Applicable Percentage of the aggregate LC Exposure at
such time.




          “Lenders” means the Persons listed on Schedule 2.01 and any other Person that
shall have become a party hereto pursuant to Section 2.19 or Section 9.04, other than any such
Person that ceases to be a party hereto pursuant to Section 9.04. Unless the context otherwise
requires, the term “Lenders” includes the Swingline Lender.




          “Letter of Credit” means any letter of credit issued pursuant to this Agreement
(including each Existing Letter of Credit).




          “LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on the Reuters “LIBOR01” screen displaying British Bankers’ Association Interest
Settlement Rates (or on any successor or substitute screen provided by Reuters, or any successor to
or substitute for such service, providing rate quotations comparable to those currently provided on
such screen, as determined by the Administrative Agent from time to time for purposes of providing
quotations of interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits with a maturity comparable to such Interest Period. In the
event that such rate is not available at such time for any reason, then the “LIBO Rate”
with respect to such Eurodollar Borrowing for such Interest Period shall be the rate at which
dollar deposits of an amount comparable to the amount of such Eurodollar Borrowing and for a
maturity comparable to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.





17









 








          “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.




          “Loan Documents” means this Agreement, any promissory notes issued pursuant to this
Agreement, the Amendment and Restatement Agreement, the Collateral Documents, the Guarantee
Agreement and all other agreements, instruments, documents and certificates identified in Section 5
of the Amendment and Restatement Agreement executed and delivered to, or in favor of, the
Administrative Agent, the Issuing Bank or any Lender and including all other pledges, powers of
attorney, consents, assignments, contracts, notices, and all other written matter whether
heretofore, now or hereafter executed by or on behalf of any Loan Party, or any employee of any
Loan Party, and delivered to the Administrative Agent, the Issuing Bank or any Lender in connection
with this Agreement or the transactions contemplated hereby. Any reference in this Agreement or
any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules
thereto, and all amendments, restatements, supplements or other modifications thereto, and shall
refer to this Agreement or such Loan Document as the same may be in effect at any and all times
such reference becomes operative.




          “Loan Party” means (a) the Borrower, (b) each Domestic Material Subsidiary, other than
any Domestic Material Subsidiary that is not required to become a Loan Party in accordance with
Section 5.10(a), and (c) each other Domestic Subsidiary designated by the Borrower, on or after the
Restatement Effective Date, in writing to the Administrative Agent to be a “Loan Party” hereunder
to the extent that the requirements of Section 5.10 have been satisfied with respect to such
Domestic Subsidiary as if such Domestic Subsidiary were a Domestic Material Subsidiary (it being
understood that any such Subsidiary so designated shall be deemed to be a Material Subsidiary for
purposes of the Loan Documents).




          “Loans” means the loans made by the Administrative Agent or the Lenders to the
Borrower pursuant to this Agreement, including Swingline Loans and Overadvances, as well as any
loans made by the Lenders to the Borrower that are outstanding under the Existing Credit Agreement
on the Restatement Effective Date (which loans shall remain outstanding hereunder on the terms set
forth herein).




          “Material Adverse Effect” means a material adverse effect on (a) the business, assets
or condition, financial or otherwise, of the Borrower and the Subsidiaries, taken as a whole, (b)
the ability of any Loan Party to perform its material obligations under any Loan Document or (c)
the material rights of or benefits available to the Lenders under any Loan Document.




          “Material Indebtedness” means Indebtedness (other than the Loans and the Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the
Borrower and the Subsidiaries in an aggregate principal amount exceeding $50,000,000. For purposes
of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or
any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to
pay if such Swap Agreement were terminated at such time.




          “Material Subsidiary” means, at any time, (a) United States Gypsum Company, a Delaware
corporation, (b) USG Interiors, Inc., a Delaware corporation, (c) L&W Supply Corporation, a
Delaware corporation, (d) California Wholesale Material Supply, LLC, a Delaware limited liability
company, (e) Otsego Paper, Inc., a Delaware corporation, (f) USG Foreign Investments, Ltd., a
Delaware corporation, (g) Livonia Building Materials, LLC, a Michigan limited liability company,
(h) River City




18









 







Materials, Inc., an Arkansas corporation, and (i) each other Subsidiary that is, on
or after the Restatement Effective Date, determined to be a “significant subsidiary” (as such term
is defined in Regulation S-X) of the Borrower as and when required to be determined in accordance
with the periodic and current reporting requirements under the Securities Exchange Act as well as
Regulation S-X (it being understood that the determination as to whether any Subsidiary is a
“significant subsidiary” shall be made at least annually in connection with the preparation of the
annual financial statements of the Borrower).




          “Maturity Date” means August 2, 2012, or any earlier date on which the Revolving
Commitments are reduced to zero or are otherwise terminated pursuant to the terms hereof.




          “Moody’s” means Moody’s Investors Service, Inc.




          “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.




          “Net Orderly Liquidation Value” means, with respect to Inventory of any Person, the
orderly liquidation value thereof as determined in a manner acceptable to the Administrative Agent
by an appraiser acceptable to the Administrative Agent in its Permitted Discretion (including
pursuant to an appraisal requested by the Borrower in accordance with Section 5.07(c)), net of all
costs of liquidation thereof.




          “Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(c).




          “Obligations” means (a) the due and punctual payment by the Borrower of (i) the
principal of and interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in
such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) each payment required to be made by the Borrower
under this Agreement in respect of any Letter of Credit, when and as due, including payments in
respect of reimbursement of disbursements, interest thereon and obligations to provide cash
collateral, and (iii) all other monetary obligations of the Borrower to any of the Secured Parties
under any Loan Document, including obligations to pay fees, expense reimbursement obligations and
indemnification obligations, whether primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable in such
proceeding), (b) the due and punctual performance of all other obligations of the Borrower under or
pursuant to any Loan Document and (c) the due and punctual payment and performance of all the
obligations of each other Loan Party under or pursuant to each Loan Document.




          “Other Taxes” means any and all present or future recording, stamp, documentary,
excise, transfer, sales, property or similar taxes, charges or levies arising from any payment made
under any Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, any Loan Document.




          “Overadvance” has the meaning assigned to such term in Section 2.04(d).




          “Participant” has the meaning assigned to such term in Section 9.04(c)(i).




          “Participant Register” has the meaning assigned to such term in Section 9.04(c)(ii).




          “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.





19









 








          “Perfection Certificate” means a certificate, dated as of the Restatement Effective
Date, delivered by the Borrower on behalf of the Collateral Parties and in the form of Exhibit
G.




          “Permitted Discretion” means a determination made in good faith and in the exercise of
reasonable (from the perspective of a secured asset-based lender) business judgment.




          “Permitted Encumbrances” means:





     (a) Liens imposed by law for taxes, assessments or other governmental charges that are
not yet due or are being contested in compliance with Section 5.04;




     (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlords’ and
other like Liens imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days or are being contested in compliance
with Section 5.04;




     (c) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or regulations;




     (d) pledges and deposits to secure the performance of bids, trade contracts, leases,
tenders, statutory obligations, surety stay, customs and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of business;




     (e) judgment liens in respect of judgments that do not constitute an Event of Default
under clause (k) of Article VII;




     (f) easements, zoning restrictions, rights-of-way, covenants and similar encumbrances
on real property that do not secure any monetary obligations and do not materially detract
from the value of the affected property or materially interfere with the ordinary conduct of
business of the Borrower or any Subsidiary;




     (g) Liens created by sale contracts documenting unconsummated asset dispositions
permitted pursuant to this Agreement, provided that such liens attach only to assets
subject to such sales contracts;




     (h) Liens consisting of the interest of the lessee under any lease or sublease granted
to others by the Borrower or its Subsidiaries in its ordinary course of business,
provided that such liens attach only to the assets subject to such lease or
sublease;




     (i) customary rights of setoff, revocation, refund or chargeback under deposit
agreements or under the UCC of banks or other financial institutions where the Borrower or
any Subsidiary maintains deposits in the ordinary course of business;




     (j) Liens arising from the granting of a license to any Person in the ordinary course
of business of the Borrower or any Subsidiary, provided that such liens attach only
to the assets subject to such license and the granting of such license is permitted
hereunder;




     (k) Liens attaching to cash earnest money deposits made by the Borrower or any
Subsidiary in connection with any letter of intent or purchase agreement permitted under
Section 6.04;




     (l) Liens arising by operation of law or contract on insurance policies and the
proceeds thereof to secure premiums thereunder;




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     (m) Liens incurred with respect to rights of agents for collection for the
Borrower and the Subsidiaries under assignments of chattel paper, accounts, instruments or
general intangibles for purposes of collection in the ordinary course of business; and




     (n) Liens in favor of customs and revenues authorities that secure payment of customs
duties in connection with the importation of goods, provided that such Liens attach
solely to such goods being so imported and in respect of which such duties are owing,


provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.




          “Permitted Investments” means any investment permitted pursuant to the Borrower’s
Statement of Investment Objective and Guidelines in effect on the Restatement Effective Date as set
forth on Schedule 1.01(b), as the same may be amended from time to time in a manner not
adverse to the Lenders unless otherwise consented to in writing by the Administrative Agent (such
consent not to be unreasonably withheld).




          “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.




          “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.




          “Poison Pill” means the Existing Shareholder Rights Plan, the Reorganization Rights
Plan (in each case, as defined in the Equity Commitment Agreement) or any subsequent plan,
agreement, rights, securities or instruments that are commonly referred to as a “poison pill”
because they have the effect of diluting or otherwise discriminating against a particular
“acquiring person” (or any similar term) by reason of such person’s ownership of a particular
amount of Voting Securities.




          “Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMCB as its prime rate in effect at its principal office in New York City; each change in the
Prime Rate shall be effective from and including the date such change is publicly announced as
being effective.




          “Pro Forma Basis” means, with respect to the determination of Consolidated EBITDA as
of any date, that such calculation shall give pro forma effect to all acquisitions, all issuances,
incurrences or assumptions of Indebtedness (with any such Indebtedness being deemed to be amortized
over the applicable testing period in accordance with its terms) and all sales, transfers or other
dispositions of any material assets outside the ordinary course of business that have occurred
during the four consecutive fiscal quarter period of the Borrower most-recently ended on or prior
to such date as if they occurred on the first day of such four consecutive fiscal quarter period
(including cost savings to the extent such cost savings would be permitted to be reflected in pro
forma financial information complying with the requirements of GAAP and Article XI of Regulation
S-X, as interpreted by the Staff of the SEC, and as certified by a Financial Officer).




          “Qualified Equity Interests” means Equity Interests of the Borrower other than
Disqualified Equity Interests.




          “Register” has the meaning assigned to such term in Section 9.04(b)(iv).




          “Regulation S-X” means Regulation S-X as promulgated by the SEC.







21









 








          “Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.




          “Release” means any release, spill, emission, leaking, dumping, injection, pouring,
deposit, disposal, discharge, dispersal, leaching or migration into or through the environment
(including ambient air, surface water, groundwater, land surface or subsurface strata) or within or
upon any building, structure, facility or fixture.




          “Rent Reserve” means, with respect to any warehouse, distribution center or other
location not owned by a Collateral Party where Inventory on-hand having a book value of at least
$100,000 is located and with respect to which no Collateral Access Agreement is in effect, a
reserve equal to (a) three months’ rent in the case of leased facilities and (b) three months of
fees in the case of third-party warehouses and outside processors.




          “Report” means reports prepared by the Administrative Agent or another Person showing
the results of appraisals, field examinations or audits with respect to the Inventory of the
Collateral Parties or the books and records relating to the Accounts of the Collateral Parties from
information furnished by or on behalf of the Collateral Parties, after the Administrative Agent has
exercised its rights of inspection, field examination or appraisal pursuant to this Agreement,
which Reports may be distributed to the Lenders by the Administrative Agent.




          “Required Lenders” means, at any time, Lenders having Revolving Exposure and unused
Revolving Commitments representing more than 50% of the aggregate Revolving Exposure and unused
Revolving Commitments at such time.




          “Requirement of Law” means, with respect to any Person, (a) the charter, articles or
certificate of organization or incorporation and bylaws or other organizational or governing
documents of such Person and (b) any statute, law, treaty, rule, regulation, order, decree, writ,
injunction or determination of any arbitrator or court or other Governmental Authority (including
Environmental Laws), in each case applicable to or binding upon such Person or any of its property
or to which such Person or any of its property is subject.




          “Reserves” means Rent Reserves and any other reserves that the Administrative Agent
deems necessary, in its Permitted Discretion, to maintain with respect to the Collateral or any
Collateral Party, provided that such reserves have been established upon not less than
three Business Days’ notice to the Borrower.




          “Restatement Effective Date” has the meaning assigned to such term in the Amendment
and Restatement Agreement.




          “Restatement Transactions” means the execution and delivery of the Amendment and
Restatement Agreement by each Person party thereto and the satisfaction of the conditions to the
effectiveness thereof.




          “Restricted Collateral Party” means each of L&W Supply Corporation, a Delaware
corporation, United States Gypsum Company, a Delaware corporation, USG Interiors, Inc., a Delaware
corporation, and California Wholesale Material Supply, LLC, a Delaware limited liability company.




          “Restricted Group” means, collectively, (a) Berkshire, (b) any Controlled Affiliate of
Berkshire and (c) any group (that would be deemed to be a “person” by Section 13(d)(3) of the
Securities Exchange Act with respect to the securities of the Borrower) of which Berkshire or any
Person directly or






22









 







indirectly Controlling, Controlled by or under common Control with Berkshire is a member. For
purposes of this definition, “Affiliate” and “Control” have the respective meanings given to such
terms under Rule 405 under the Securities Act of 1933, as amended (and “Controlled” and
“Controlling” shall have correlative meanings), provided that no Person shall be deemed to
Control another Person solely by his or her status as a director of such other Person.




          “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the Borrower or any
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancelation or termination of any Equity Interests in the Borrower or any Subsidiary or any option,
warrant or other right to acquire any such Equity Interests in the Borrower or any Subsidiary, or
any other payment (including any payment under any equity Swap Agreement) that has a substantially
similar effect to any of the foregoing.




          “Revolving Borrowing” means a Borrowing comprised of Revolving Loans.




          “Revolving Commitment” means, with respect to each Lender, the commitment, if any, of
such Lender to make Revolving Loans and to acquire participations in Letters of Credit, Swingline
Loans and Overadvances hereunder, expressed as an amount representing the maximum possible
aggregate amount of such Lender’s Revolving Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.08, Section 2.18(b) or Section 9.02(c), (b) reduced
or increased from time to time pursuant to assignments by or to such Lender, respectively, pursuant
to Section 9.04 and (c) increased from time to time pursuant to Revolving Commitment Increases made
pursuant to Section 2.19. The initial amount of each Lender’s Revolving Commitment is set forth on
the Schedule 2.01, or in the Assignment and Assumption or Commitment Increase Amendment
pursuant to which such Lender shall have assumed its Revolving Commitment, as the case may be. The
initial aggregate amount of the Lenders’ Revolving Commitments on the Restatement Effective Date is
$500,000,000.




          “Revolving Commitment Increase” has the meaning assigned to such term in Section
2.19(b).




          “Revolving Exposure” means, with respect to any Lender at any time, (a) the sum of the
outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline
Exposure at such time plus (b) an amount equal to its Applicable Percentage, if any, of the
aggregate principal amount of Overadvances at such time.




          “Revolving Lender” means a Lender with a Revolving Commitment or, if the Revolving
Commitments have terminated or expired, a Lender with Revolving Exposure.




          “Revolving Loan” means a Loan made pursuant to Section 2.01.




          “Rights to Purchase Voting Securities” means options, warrants and rights issued by
the Borrower (whether presently exercisable or not) to purchase Voting Securities or Convertible
Securities, excluding any rights issued under any Poison Pill.




          “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw Hill
Companies, Inc.




          “SEC” means the Securities and Exchange Commission or any Governmental Authority
succeeding to any of its principal functions.







23









 








          “SEC Filing” has the meaning assigned to such term in Section 3.11.




          “Secured Obligations” means all Obligations, together with (a) Banking Services
Obligations and (b) Swap Obligations owing to one or more Lenders or their respective Affiliates,
provided that, except with respect to Swap Obligations owing to one or more of the Lenders
or their respective Affiliates as of the Restatement Effective Date, not later than the date that
is ten calendar days after the date that any transaction relating to such Swap Obligation is
executed (or amended, supplemented or otherwise modified to designate such Swap Obligations as
Secured Obligations), the Lender (or the applicable Affiliate) party thereto (other than JPMCB)
shall have delivered written notice to the Administrative Agent that such a transaction has been
entered into (or has been amended, supplemented or otherwise modified, as the case may be) and that
it constitutes a Secured Obligation entitled to the benefits of the Collateral Documents.
Notwithstanding the foregoing, for purposes of clause (b) of this defined term, the amount of Swap
Obligations owing to one or more of the Lenders or their respective Affiliates at any time shall be
deemed to be reduced by the aggregate amount of cash collateral provided in respect of such Swap
Obligations at such time pursuant to cash collateralization terms agreed to by the applicable
counterparties to such Swap Obligations.




          “Secured Parties” means (a) the Lenders, (b) the Administrative Agent, (c) the Issuing
Bank, (d) each counterparty to any Swap Agreement with a Loan Party the obligations under which
constitute Secured Obligations, (e) each provider of Banking Services which constitute Secured
Obligations, (f) the beneficiaries of each indemnification obligation undertaken by any Loan Party
under any Loan Document and (g) the successors and assigns of each of the foregoing.




          “Securities Exchange Act” means the Securities Exchange Act of 1934, as amended.




          “Security Agreement” means that certain Pledge and Security Agreement, dated as of the
date hereof, among the Collateral Parties and the Administrative Agent, for the benefit of the
Secured Parties.




          “SPV” has the meaning assigned to such term in Section 9.04(e).




          “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding
and to be subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender under such Regulation D
or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.




          “subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP, as well as any other
corporation, limited liability company, partnership, association or other entity of which
securities or other ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or, in the case of a partnership, more than 50% of the general
partnership interests are, as of such date, owned, controlled or held.







24









 








          “Subsidiary” means any direct or indirect subsidiary of the Borrower.




          “Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions, provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a
Swap Agreement.




          “Swap Obligations” of a Loan Party means any and all obligations (including
obligations existing as of the Restatement Effective Date) of such Loan Party, whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions therefor), under (a) any and all
Swap Agreements and (b) any and all cancelations, buy backs, reversals, terminations or assignments
of any Swap Agreement transaction.




          “Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall
be its Applicable Percentage of the Swingline Exposure at such time.




          “Swingline Lender” means JPMorgan Chase Bank, N.A., in its capacity as lender of
Swingline Loans hereunder.




          “Swingline Loan” means a Loan made pursuant to Section 2.04.




          “Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.




          “Threshold Amount” means, at any time, an amount equal to the greater of (a)
$75,000,000 and (b) 20% of the aggregate Revolving Commitments at such time.




          “Transaction Costs” means all fees, costs and expenses incurred or payable by the
Borrower or any Subsidiary in connection with the Transactions, including fees payable on the
Restatement Effective Date pursuant to fee letters between the Administrative Agent and the
Borrower.




          “Transactions” means (a) the execution, delivery and performance by the Loan Parties
of this Agreement and the other Loan Documents to which they are party, the borrowing of Loans, the
use of the proceeds thereof and the issuance of Letters of Credit hereunder (including the
Restatement Transactions) and (b) the payment of the Transaction Costs.




          “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.




          “UCC” means the Uniform Commercial Code as in effect from time to time in the State of
New York or any other state the laws of which are required to be applied in connection with the
issue of perfection of security interests.




          “U.S.” means the United States of America.







25









 








          “Vessel Loan Agreement” means the US$90,000,000 Secured Loan Agreement dated October
21, 2008, among Gypsum Transportation Limited, the lenders from time to time party thereto and DVB
Bank SE, as agent and security trustee.




          “Voting Securities” means the common stock and any other securities of the Borrower of
any kind or class having power generally to vote for the election of directors of the Borrower.




          “wholly-owned Subsidiary” means, with respect to any Person at any date, a subsidiary
of such Person of which securities or other ownership interests representing 100% of the Equity
Interests (other than directors’ qualifying shares) are, as of such date, owned, controlled or held
by such Person or one or more wholly-owned Subsidiaries of such Person or by such Person and one or
more wholly-owned Subsidiaries of such Person. Unless otherwise specified, “wholly-owned
Subsidiary” means a wholly-owned Subsidiary of the Borrower.




          “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.




          SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Type (e.g., a “Eurodollar Loan”).
Borrowings also may be classified and referred to by Type (e.g., a “Eurodollar Borrowing”).




          SECTION 1.03. Terms Generally. The definitions of terms herein 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” 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”. Unless the
context requires otherwise, (a) any definition of or reference to any agreement, instrument or
other document herein (other than the Existing Credit Agreement) shall be construed as referring to
such agreement, instrument or other document as from time to time amended, amended and restated,
supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein), (b) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (c) 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, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.




          SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time, provided that, if the Borrower notifies the Administrative Agent that the
Borrower requests an amendment to any provision (including any definition) hereof to eliminate the
effect of any change occurring after the Effective Date in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the Borrower that the
Required Lenders request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the application thereof,
then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.




          SECTION 1.05. Pro Forma Calculations. With respect to any period during which any
acquisition, sale, transfer or other disposition of any material assets outside the ordinary course
of






26









 







business occurs, for purposes of determining Consolidated EBITDA, calculations with respect to
such period shall be made on a Pro Forma Basis.




ARTICLE II




The Credits



          SECTION 2.01. Revolving Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees to make Revolving Loans to the Borrower from time to time during the
Availability Period in an aggregate principal amount that will not result in (a) such Lender’s
Revolving Exposure exceeding such Lender’s Revolving Commitment or (b) the aggregate Revolving
Exposures exceeding the lesser of (x) the aggregate Revolving Commitments and (y) the Borrowing
Base, in each case at such time, subject to the Administrative Agent’s authority, in its sole
discretion, to make Overadvances pursuant to the terms of Section 2.04. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay
and reborrow Revolving Loans. All Loans shall be made in dollars. All Revolving Loans, Swingline
Loans and Letters of Credit outstanding under the Existing Credit Agreement on the Restatement
Effective Date shall remain outstanding hereunder on the terms set forth herein.




          SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than a Swingline Loan or
Overadvance) shall be made as part of a Borrowing consisting of Loans of the same Type made by the
Lenders ratably in accordance with their respective Revolving Commitments. Any Overadvance and any
Swingline Loan shall be made in accordance with the procedures set forth in Section 2.04. The
failure of any Lender to make any Loan required to be made by it hereunder shall not relieve any
other Lender of its obligations hereunder, provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender’s failure to make Loans as
required.




          (b) Subject to Section 2.13, each Revolving Borrowing shall be comprised entirely of ABR
Loans or Eurodollar Loans as the Borrower may request in accordance herewith. Each Swingline Loan
and Overadvance shall be an ABR Loan. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such Loan,
provided that any exercise of such option shall not affect the obligation of the Borrower
to repay such Loan in accordance with the terms of this Agreement.




          (c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than
$5,000,000. At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000 and not less than $1,000,000. Each
Swingline Loan shall be in an amount that is not less than $500,000. Borrowings of more than one
Type may be outstanding at the same time, provided that there shall not at any time be
more than a total of ten Eurodollar Borrowings outstanding. Notwithstanding anything to the
contrary in this Section 2.02(c), an ABR Revolving Borrowing or a Swingline Loan may be in an
aggregate amount that is equal to the entire unused balance of the aggregate Revolving Commitments
or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e).




          (d) Notwithstanding any other provision of this Agreement, the Borrower shall not be
entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period
requested with respect thereto would end after the Maturity Date.







27









 








          SECTION 2.03. Requests for Borrowings. To request a Revolving Borrowing, the
Borrower shall notify the Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the
date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00 a.m.,
New York City time, one Business Day before the date of the proposed Borrowing, provided
that any such notice of an ABR Revolving Borrowing to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e) may be given not later than 10:00 a.m., New York
City time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy or Adobe pdf file to the
Administrative Agent of a written Borrowing Request substantially in the form of Exhibit C
signed by the Borrower. Each such telephonic and written Borrowing Request shall specify the
following information:





     (i) the aggregate amount of such Borrowing;




     (ii) the date of such Borrowing, which shall be a Business Day;




     (iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;




     (iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the term
“Interest Period”;




     (v) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.06; and




     (vi) that as of such date the conditions set forth in Sections 4.02(a) and (b) are
satisfied.


If no election as to the Type of Revolving Borrowing is specified, then the requested Revolving
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any
requested Eurodollar Revolving Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.




          SECTION 2.04. Swingline Loans and Overadvances. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower
from time to time during the Availability Period, in an aggregate principal amount at any time
outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline
Loans exceeding $40,000,000 or (ii) the aggregate Revolving Exposures exceeding the lesser of (x)
the aggregate Revolving Commitments and (y) the Borrowing Base, in each case at such time,
provided that the Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.




          (b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy or by Adobe pdf file), not later than 12:00 noon, New
York City time, on the day of such proposed Swingline Loan. Each such notice shall be irrevocable
and shall specify the requested date (which shall be a Business Day) and amount of the requested
Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available
to the Borrower by means of a credit to the general deposit account of the Borrower maintained with
the Swingline Lender (or (i) in the case of a Swingline Loan made to finance the reimbursement of
an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank or, to the
extent that the Revolving Lenders






28









 







have made payments pursuant to Section 2.05(e) to reimburse the Issuing Bank, to such Lenders
and the Issuing Bank as their interests may appear and (ii) in the case of a Swingline Loan made to
finance the repayment of another Loan or fees or expenses as provided by Section 2.17(c), by
remittance to the Administrative Agent to be distributed to the Lenders as their interests may
appear) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.




          (c) The Swingline Lender may by written notice given to the Administrative Agent not later
than 12:00 noon, New York City time, on any Business Day require the Revolving Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will give notice
thereof to each Revolving Lender, specifying in such notice such Lender’s Applicable Percentage of
such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such
Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Revolving Commitments, and that
each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans
made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment
obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the
Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative
Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to
this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender
from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after
receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall
have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests
may appear, provided that any such payment so remitted shall be repaid to the Swingline
Lender or the Administrative Agent, as the case may be, if and to the extent such payment is
required to be refunded to the Borrower for any reason. The purchase of participations in a
Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the
payment thereof.




          (d) Any provision of this Agreement to the contrary notwithstanding, at the request of the
Borrower, the Administrative Agent may in its sole discretion (but with absolutely no obligation)
make Loans to the Borrower, on behalf of the Revolving Lenders, in amounts that exceed the Excess
Availability immediately prior to the making of such Loans (any such excess Loans are herein
referred to collectively as “Overadvances”), provided that no Overadvance shall
result in a Default due to the Borrower’s failure to comply with Section 2.01 for so long as such
Overadvance remains outstanding in accordance with the terms of this paragraph, but solely with
respect to the amount of such Overadvance. In addition, Overadvances may be made even if the
conditions precedent set forth in Section 4.02 have not been satisfied. All Overadvances shall be
ABR Borrowings. The authority of the Administrative Agent to make Overadvances is limited to an
aggregate amount not to exceed $25,000,000 at any time, no Overadvance may remain outstanding for
more than 30 days and no Overadvance shall cause any Lender’s Revolving Exposure to exceed its
Revolving Commitment, provided that the Required Lenders may at any time revoke the
Administrative Agent’s authorization to make Overadvances. Any such






29









 







revocation must be in writing and shall become effective prospectively upon the Administrative
Agent’s receipt thereof.




          (e) Upon the making of an Overadvance by the Administrative Agent, each Revolving Lender
shall be deemed, without further action by any party hereto, to have unconditionally and
irrevocably purchased from the Administrative Agent without recourse or warranty, an undivided
interest and participation in such Overadvance in proportion to its Applicable Percentage of the
Revolving Commitment. The Administrative Agent may, at any time, require the Revolving Lenders to
fund their participations in any Overadvance. From and after the date, if any, on which any
Revolving Lender is required to fund its participation in any Overadvance purchased hereunder, the
Administrative Agent shall promptly distribute to such Lender, such Lender’s Applicable Percentage
of all payments of principal and interest and all proceeds of Collateral received by the
Administrative Agent in respect of such Overadvance.




          SECTION 2.05. Letters of Credit. (a) General. As of the Restatement
Effective Date, each Existing Letter of Credit, automatically and without any action on the part of
any Person, has been deemed to be a Letter of Credit issued hereunder for all purposes of this
Agreement and the other Loan Documents. Subject to the terms and conditions set forth herein, the
Borrower may request the issuance of Letters of Credit for its own account (or for the account of
any Subsidiary so long as the Borrower and such Subsidiary are co-applicants), in a form reasonably
acceptable to the Administrative Agent and the Issuing Bank, at any time and from time to time
during the Availability Period. In the event of any inconsistency between the terms and conditions
of this Agreement and the terms and conditions of any form of letter of credit application or other
agreement submitted by the Borrower to, or entered into by the Borrower with, the Issuing Bank
relating to any Letter of Credit, the terms and conditions of this Agreement shall control.




          (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To
request the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by the Issuing Bank) to
the Issuing Bank (except that the Issuing Bank in respect of Existing Letters of Credit shall not
issue additional Letters of Credit and, unless agreed by it, shall not be required to amend, renew
or extend an Existing Letter of Credit) and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a
Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day),
the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of
this Section), the amount of such Letter of Credit, the name and address of the beneficiary
thereof and such other information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit. If requested by the Issuing Bank, the Borrower also shall submit a letter of
credit application on the Issuing Bank’s standard form in connection with any request for a Letter
of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment, renewal or
extension, (i) the LC Exposure shall not exceed $250,000,000 and (ii) the aggregate Revolving
Exposures shall not exceed the lesser of (x) the aggregate Revolving Commitments and (y) the
Borrowing Base, in each case at such time.




          (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date that is one year after the date of the issuance of such
Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal
or extension) and (ii) the date that is five Business Days prior to the Maturity Date;
provided, however, that a Letter of Credit may, upon the request of the Borrower
and with the consent of the Issuing Bank, include a





30









 







provision whereby such Letter of Credit shall be renewed automatically for additional
consecutive periods of one year or less (but not beyond the date that is five Business Days prior
to the Maturity Date) unless the Issuing Bank, in its discretion, notifies the beneficiary thereof
at least 30 days prior to the then-applicable expiration date that such Letter of Credit will not
be renewed.




          (d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Revolving Lender, and each
Revolving Lender hereby acquires from the Issuing Bank, a participation in such Letter of Credit
equal to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under
such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving
Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the
account of the Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by
the Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to the Borrower for any
reason. Each Revolving Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Commitments, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever.




          (e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of
a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than 3:00 p.m., New York
City time, on the date that such LC Disbursement is made, if the Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by the Borrower prior to such time on such date, then not later than
(i) 3:00 p.m., New York City time, on the Business Day that the Borrower receives such notice, if
such notice is received prior to 10:00 a.m., New York City time, on the day of receipt, or (ii)
12:00 noon, New York City time, on the Business Day immediately following the day that the
Borrower receives such notice, if such notice is not received prior to 10:00 a.m., New York City
time, on the day of receipt, provided that, if such LC Disbursement is not less than
$250,000, the Borrower may, subject to the conditions to borrowing set forth herein (other than
the minimum borrowing amount requirements set forth in Section 2.02(c)), request in accordance
with Section 2.03 or 2.04 that such payment be financed with an ABR Revolving Borrowing or
Swingline Loan in an equivalent amount and, to the extent so financed, the Borrower’s obligation
to make such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing or
Swingline Loan. If the Borrower fails to make such payment when due, the Administrative Agent
shall notify each Revolving Lender of the applicable LC Disbursement, the payment then due from
the Borrower in respect thereof and such Lender’s Applicable Percentage thereof. Promptly
following receipt of such notice, each Revolving Lender shall pay to the Administrative Agent its
Applicable Percentage of the payment then due from the Borrower, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply,
mutatis mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from the
Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment from the
Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the
Issuing Bank or, to the extent that Revolving Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their
interests may appear. Any payment made by a Revolving Lender pursuant to this paragraph to
reimburse the Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans
or a Swingline Loan as contemplated above) shall not






31









 







constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.




          (f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements
as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor the
Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or
failure to make any payment thereunder (irrespective of any of the circumstances referred to in
the preceding sentence), or any error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the Issuing Bank,
provided that the foregoing shall not be construed to excuse the Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to consequential or
punitive damages, claims in respect of which are hereby waived by the Borrower to the extent
permitted by applicable law) suffered by the Borrower that are caused by the Issuing Bank’s
failure to exercise care when determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the
absence of gross negligence or wilful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have
exercised care in each such determination. In furtherance of the foregoing and without limiting
the generality thereof (and except as otherwise required by applicable law), the parties agree
that, with respect to documents presented that appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance with the terms of
such Letter of Credit, and any such acceptance or refusal shall be deemed not to constitute gross
negligence or wilful misconduct.




          (g) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Bank has made
or will make an LC Disbursement thereunder, provided that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Bank
and the Revolving Lenders with respect to any such LC Disbursement in accordance with paragraph
(e) of this Section.




          (h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement
is made, the unpaid amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans, provided that,
if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then






32









 







Section 2.12(d) shall apply. Interest accrued pursuant to this paragraph shall be for the account of
the Issuing Bank, except that interest accrued on and after the date of payment by any Revolving
Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be for the
account of such Lender to the extent of such payment.




          (i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at any time
by written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and
the successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such
replacement of the Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant
to Section 2.11(d). From and after the effective date of any such replacement, (i) the successor
Issuing Bank shall have all the rights and obligations of the Issuing Bank under this Agreement
with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term
“Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to
such successor and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement
with respect to Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.




          (j) Cash Collateralization. If any Event of Default shall occur and be continuing,
on or after the Business Day on which the Borrower receives notice from the Administrative Agent
or the Required Lenders that the maturity of the Loans has been accelerated and the Revolving
Commitments have been terminated, Revolving Lenders with LC Exposure representing greater than 50%
of the LC Exposure may demand the deposit of cash collateral pursuant to this paragraph, and the
Borrower shall deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash equal to the LC
Exposure as of such date plus any accrued and unpaid interest thereon, provided that the
obligation to deposit such cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Borrower described in paragraph (h) or (i)
of Article VII. The Borrower also shall deposit cash collateral pursuant to this paragraph as and
to the extent required by Section 2.10(b). Each such deposit shall be held by the Administrative
Agent as collateral for the payment and performance of the obligations of the Borrower under this
Agreement. The Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the option and sole discretion of
the Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear
interest. Interest or profits, if any, on such investments shall accumulate in such account.
Moneys in such account shall be applied by the Administrative Agent to reimburse the Issuing Bank
for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall
be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure
at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of
Revolving Lenders with LC Exposure representing greater than 50% of the LC Exposure), be applied
to satisfy other obligations of the Borrower under this Agreement. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of an Event of
Default and acceleration of the maturity of the Loans, as described above, such amount (to the
extent not applied as aforesaid) shall be returned to the Borrower within three Business Days
after all Events of Default have been cured or waived. If the Borrower is required to provide an
amount of cash collateral hereunder pursuant to Section 2.10(b), such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower as and to the extent that, after giving
effect to such return, the Borrower would remain in compliance with Section 2.10(b) and no Default
shall have occurred and be continuing.







33









 








          SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of immediately available funds
by 12:00 noon, New York City time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders, provided that Swingline Loans
shall be made as provided in Section 2.04. The Administrative Agent will make such Loans available
to the Borrower by promptly, and in no event later than 3:00 p.m., New York City time, crediting
the amounts so received, in like funds, to an account of the Borrower maintained with the
Administrative Agent in New York City and designated by the Borrower in the applicable Borrowing
Request, provided that ABR Revolving Loans made to finance the reimbursement of (i) an LC
Disbursement as provided in Section 2.05(e) shall be remitted by the Administrative Agent to the
Issuing Bank or, to the extent that the Revolving Lenders have made payments pursuant to Section
2.05(e) to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their interests
may appear or (ii) an Overadvance shall be retained by the Administrative Agent or, to the extent
that the Revolving Lenders have made payments pursuant to Section 2.04(e) to reimburse the
Administrative Agent in respect of any such Overadvance, remitted by the Administrative Agent to
such Revolving Lenders as their interests may appear.




          (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption and in its sole discretion, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount
with interest thereon, for each day from and including the date such amount is made available to
the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case
of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in
the case of the Borrower, the interest rate applicable to such Loan. If such Lender pays such
amount to the Administrative Agent, then such amount (less interest) shall constitute such Lender’s
Loan included in such Borrowing.




          SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing initially shall be
of the Type specified in the applicable Borrowing Request or designated by Section 2.03 and, in the
case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such
Borrowing Request or designated by Section 2.03. Thereafter, the Borrower may elect to convert
such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected Borrowing, in which case
each such portion shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.
This Section shall not apply to Swingline Borrowings or Overadvances, which may not be converted or
continued.




          (b) To make an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing Request would be
required under Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type
resulting from such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy or by Adobe pdf file to the Administrative Agent of a written Interest
Election Request substantially in the form of Exhibit D signed by the Borrower.







34









 








          (c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:





     (i) the Borrowing to which such Interest Election Request applies and, if
different options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);




     (ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;




     (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and




     (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period
to be applicable thereto after giving effect to such election, which shall be a
period contemplated by the definition of the term “Interest Period”.


If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.




          (d) Promptly following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender’s portion of each resulting
Borrowing.




          (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the request of the Required
Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless
repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.




          SECTION 2.08. Termination and Reduction of Revolving Commitments. (a) Unless
previously terminated, the Revolving Commitments shall terminate on the Maturity Date.




          (b) The Borrower may at any time terminate, or from time to time reduce, in either case,
without premium or penalty (other than, with respect to Eurodollar Borrowings, payments that may
become due under Section 2.15), the Revolving Commitments, provided that (i) each reduction
of the Revolving Commitments shall be in an amount that is an integral multiple of $1,000,000 and
not less than $5,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving
Commitments if, after giving effect to any concurrent prepayment of the Revolving Loans in
accordance with Section 2.10, the aggregate Revolving Exposure (excluding, in the case of any
termination of the Revolving Commitments, the portion of the Revolving Exposure attributable to
outstanding Letters of Credit if and to the extent that the Borrower has made arrangements
satisfactory to the Administrative Agent and the Issuing Bank with respect to such Letters of
Credit) would exceed the aggregate Revolving Commitments.




          (c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Revolving Commitments under paragraph (b) of this Section at least three Business Days prior to
the effective date of such termination or reduction, specifying such election and the effective
date thereof. Promptly following receipt of any such notice, the Administrative Agent shall advise
the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this
Section shall be






35









 







irrevocable, provided that a notice of termination or reduction of Revolving
Commitments delivered by the Borrower may state that such notice is conditioned upon the
effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other
Indebtedness or any other event, in which case such notice may be revoked by the Borrower (by
notice to the Administrative Agent on or prior to the specified effective date) if such condition
is not satisfied. Any termination or reduction of the Revolving Commitments shall be permanent.
Each reduction of the Revolving Commitments shall be made ratably among the Lenders in accordance
with their respective Revolving Commitments.




          SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Revolving Loan of such Lender on the Maturity Date, (ii) to
the Swingline Lender the then unpaid principal amount of each Swingline Loan on the Maturity Date,
provided that on each date that a Revolving Borrowing is made, the Borrower shall repay all
Swingline Loans that were outstanding on the date such Borrowing was requested, and (iii) to the
Administrative Agent the then unpaid principal amount of each Overadvance on the earliest of (x)
the Maturity Date, (y) the day that is 30 days after the making of such Overadvance and (z) demand
by the Administrative Agent.




          (b) On each Business Day during any Cash Dominion Period, the Administrative Agent shall
apply all immediately available funds credited to the Collection Account, first to prepay
any Overadvances that may be outstanding, pro rata, second to prepay any
Swingline Loans and to reimburse any LC Disbursements that may be outstanding, pro
rata, and third to prepay any Revolving Loans that may be outstanding and, if no
such Loans are outstanding, to cash collateralize outstanding Letters of Credit on terms
reasonably acceptable to the Administrative Agent and the Issuing Bank, it being understood that
any prepayments of Revolving Loans shall be applied in accordance with the penultimate sentence of
Section 2.17(b).




          (c) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.




          (d) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Type thereof and the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable from the Borrower
to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender’s share thereof.




          (e) The entries made in the accounts maintained pursuant to paragraph (c) or (d) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein, provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in any manner affect
the obligation of the Borrower to repay the Loans and pay interest thereon in accordance with the
terms of this Agreement.




          (f) Any Lender may request that Revolving Loans made by it be evidenced by a promissory
note. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory
note, substantially in the form of Exhibit H, payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns). Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if such promissory note is a registered note,
to such payee and its registered assigns).







36









 








          SECTION 2.10. Prepayment of Loans. (a) The Borrower shall have the right at any
time and from time to time to prepay without premium or penalty (other than, with respect to
Eurodollar Borrowings, payments that may become due under Section 2.15) any Borrowing in whole or
in part, subject to the requirements of this Section.




          (b) Except for Overadvances permitted under Section 2.04, in the event and on such occasion
that the aggregate Revolving Exposure exceeds the lesser of (x) the aggregate Revolving Commitments
and (y) the Borrowing Base, in each case as of the applicable date of determination, the Borrower
shall prepay Revolving Borrowings and/or Swingline Borrowings (or, if no such Borrowings are
outstanding, deposit cash collateral in an account with the Administrative Agent to be retained
pursuant to Section 2.05(j) for so long as such condition exists) in an aggregate amount equal to
such excess.




          (c) Prior to any optional prepayment or mandatory prepayment of Borrowings hereunder, the
Borrower shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in
the notice of such prepayment pursuant to paragraph (d) of this Section.




          (d) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy or by Adobe pdf file) of
any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of prepayment, (ii) in the case
of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later
than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or
portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed
calculation of the amount of such prepayment, provided that a notice of optional prepayment
may state that such notice is conditioned upon the effectiveness of other credit facilities or the
receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case
such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on
or prior to the specified date) if such condition is not satisfied. Promptly following receipt of
any such notice (other than a notice relating solely to Swingline Loans) the Administrative Agent
shall advise the Lenders of the contents thereof. Each partial prepayment of any Revolving
Borrowing shall be in an amount that would be permitted in the case of an advance of a Revolving
Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the
required amount of a mandatory prepayment. Each prepayment of a Revolving Borrowing shall be
applied ratably to the Revolving Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.12.




          SECTION 2.11. Fees. (a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a facility fee, which shall accrue at the rate of 0.75% per annum (or,
for that portion of any facility fee accruing prior to the Restatement Effective Date, at the rate
per annum specified in Section 2.12(a) of the Existing Credit Agreement) on the Revolving
Commitment of such Lender during the period from and including the Effective Date to but excluding
the date on which the Revolving Commitments terminate. Accrued facility fees shall be payable in
arrears on the third Business Day following the last day of each March, June, September and
December of each year and on the date on which the Revolving Commitments terminate, commencing on
the first such date to occur after the Effective Date. All facility fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).




          (b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each
Revolving Lender a participation fee with respect to its participations in Letters of Credit, which
shall






37









 







accrue at the same Applicable Rate used to determine the interest rate applicable to
Eurodollar Revolving Loans (or, for that portion of any participation fee accruing prior to the
Restatement Effective Date, at the rate specified in Section 2.12(d)(i) of the Existing Credit
Agreement) on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and including the Effective
Date to but excluding the later of the date on which such Lender’s Revolving Commitment terminates
and the date on which such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a
fronting fee, which shall accrue at a rate equal to 0.25% per annum (or, for that portion of any
fronting fee accruing prior to the Restatement Effective Date, at the rate per annum specified in
Section 2.12(d)(ii) of the Existing Credit Agreement) on the average daily amount of the LC
Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the
period from and including the Effective Date to but excluding the later of the date of termination
of the Revolving Commitments and the date on which there ceases to be any LC Exposure, as well as
the Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Participation fees and fronting fees
accrued through and including the last day of March, June, September and December of each year
shall be payable on the third Business Day following such last day, commencing on the first such
date to occur after the Effective Date, provided that all such fees shall be payable on the
date on which the Revolving Commitments terminate and any such fees accruing after the date on
which the Revolving Commitments terminate shall be payable on demand. Any other fees payable to
the Issuing Bank pursuant to this paragraph shall be payable within 10 days after demand. All
participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but excluding the last
day).




          (c) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon in writing between the Borrower and the
Administrative Agent.




          (d) All fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for
distribution, in the case of commitment fees and participation fees, to the Lenders entitled
thereto. Fees paid shall not be refundable under any circumstances.




          (e) For purposes of clarification, (i) any fee required to be paid under this Section 2.11
for a payment period ending prior to the Restatement Effective Date shall be deemed to have been
paid for purposes of this Section 2.11 to the extent that such fee was paid under, and in
accordance with the terms of, the Existing Credit Agreement and (ii) any fee required to be paid
under this Section 2.11 for any portion of a payment period that occurs prior to the Restatement
Effective Date shall, solely with respect to such portion of such payment period, be determined in
the manner and in accordance with the terms set forth in Section 2.12 of the Existing Credit
Agreement.




          SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing (including each
Swingline Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.




          (b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.




          (c) Each Overadvance shall bear interest at the Alternate Base Rate plus the
Applicable Rate plus 2.00%.




          (d) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment,






38









 







at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2.00%
plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of
this Section or (ii) in the case of any other amount, 2.00% plus the rate applicable to ABR
Revolving Loans as provided in paragraph (a) of this Section.




          (e) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and upon termination of the Revolving Commitments, provided that (i) interest
accrued pursuant to paragraph (c) or (d) of this Section shall be payable on demand, (ii) in the
event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan
prior to the end of the Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued
interest on such Loan shall be payable on the effective date of such conversion.




          (f) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be conclusive absent manifest
error.




          (g) For purposes of clarification, (i) any interest required to be paid under this Section
2.12 for a payment period ending prior to the Restatement Effective Date shall be deemed to have
been paid for purposes of this Section 2.12 to the extent that such interest was paid under, and
in accordance with the terms of, the Existing Credit Agreement and (ii) any interest required to
be paid under this Section 2.12 for any portion of a payment period that occurs prior to the
Restatement Effective Date shall, solely with respect to such portion of such payment period, be
determined in the manner and in accordance with the terms set forth in Section 2.13 of the
Existing Credit Agreement.




          SECTION 2.13. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurodollar Borrowing:





     (a) the Administrative Agent determines (which determination shall be conclusive
absent manifest error) that adequate and reasonable means do not exist for ascertaining the
Adjusted LIBO Rate for such Interest Period; or




     (b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
Rate for such Interest Period will not adequately and fairly reflect the cost to such
Lenders of making or maintaining their Loans included in such Borrowing for such Interest
Period;


then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy or by Adobe pdf file as promptly as practicable thereafter and, until the
Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to
such notice no longer exist, (i) any Interest Election Request that requests the conversion of any
Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and
(ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an
ABR Borrowing, provided that following the first day that such condition shall cease to
exist, such Borrowings may be made as or converted to Eurodollar Borrowings at the request of and
in accordance with the elections of the Borrower.








39









 






          SECTION 2.14. Increased Costs. (a) If any Change in Law shall:






     (i) impose, modify or deem applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender or the Issuing Bank (except
any such reserve requirement reflected in the Adjusted LIBO Rate); or




     (ii) impose on any Lender or the Issuing Bank or the London interbank market
any other condition, cost or expense affecting this Agreement or Eurodollar Loans
made by such Lender or any Letter of Credit or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining
any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or
the Issuing Bank hereunder (whether of principal, interest or otherwise), then, upon the request of
such Lender or the Issuing Bank, as applicable, the Borrower will pay to such Lender or the Issuing
Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.




          (b) If any Lender or the Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such Lender’s or the
Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company,
if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level below
that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company
could have achieved but for such Change in Law (taking into consideration such Lender’s or the
Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company
with respect to capital adequacy), then from time to time the Borrower will pay to such Lender or
the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such
reduction suffered.




          (c) A certificate of a Lender or the Issuing Bank setting forth in reasonable detail
calculations of the amount or amounts necessary to compensate such Lender or the Issuing Bank or
its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section
shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender or the Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.




          (d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s
right to demand such compensation, provided that the Borrower shall not be required to
compensate a Lender or the Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than 270 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s or the Issuing Bank’s intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 270-day period referred to above shall be extended to include
the period of retroactive effect thereof.




          SECTION 2.15. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Eurodollar Loan (or to convert any ABR Loan into a Eurodollar Loan)
on the date specified in any notice






40









 







delivered pursuant hereto (regardless of whether such notice may be revoked under Section
2.10(d) and is revoked in accordance therewith) or (d) the assignment of any Eurodollar Loan other
than on the last day of the Interest Period applicable thereto as a result of a request by the
Borrower to replace a Lender pursuant to Section 2.18(b) or Section 9.02(c), then, in any such
event, the Borrower shall compensate each Lender for the loss, cost and reasonable expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of
(i) the amount of interest that would have accrued on the principal amount of such Loan had such
event not occurred, at the LIBO Rate (without consideration of the Applicable Rate) that would have
been applicable to such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue,
for the period that would have been the Interest Period for such Loan), over (ii) the amount of
interest that would accrue on such principal amount for such period at the interest rate that such
Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar market (without consideration of
the Applicable Rate). A certificate of any Lender setting forth any amount or amounts that such
Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall
be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after the Borrower’s receipt thereof.




          SECTION 2.16. Taxes. (a) Any and all payments by or on account of any obligation of
the Borrower under any Loan Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes, provided that if the Borrower shall be required to deduct
any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant Governmental Authority in accordance with
applicable law.




          (b) Without limiting the provisions of paragraph (a) above, the Borrower shall timely pay
any Other Taxes to the relevant Governmental Authority in accordance with applicable law.




          (c) The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes paid by the Administrative Agent, such Lender or the Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of the Borrower under any
Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable
to amounts payable under this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as
to the amount of such payment or liability delivered to the Borrower by a Lender or the Issuing
Bank, or by the Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.




          (d) Each Lender shall indemnify the Administrative Agent within 10 days after demand
therefor, for the full amount of any Excluded Taxes attributable to such Lender that are payable
by the Administrative Agent, and reasonable expenses arising therefrom or with respect thereto,
whether or not such Excluded Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to
any Lender by the Administrative Agent shall be conclusive absent manifest error.







41









 








          (e) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority pursuant to Section 2.16(a), the Borrower shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence
of such payment reasonably satisfactory to the Administrative Agent.




          (f) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by the Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable law as will permit such payments to be made
without withholding or at a reduced rate. In addition, any Lender, if requested by the Borrower
or the Administrative Agent, shall deliver such other documentation prescribed by applicable law
or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or
the Administrative Agent to determine whether or not such Lender is subject to backup withholding
or information reporting requirements.




          Without limiting the generality of the foregoing, in the event that the Borrower is resident
for tax purposes in the U.S., any Foreign Lender shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the Borrower or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is applicable:





     (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the U.S. is a party,




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under section 881(c) of the Code, (x) a certificate to the
effect that such Foreign Lender is not (A) a “bank” within the meaning of section
881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the
meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign
corporation” described in section 881(c)(3)(C) of the Code and (y) duly completed
copies of Internal Revenue Service Form W-8BEN, or




     (iv) any other form prescribed by applicable law as a basis for claiming
exemption from or a reduction in U.S. Federal withholding Tax duly completed
together with such supplementary documentation as may be prescribed by applicable
law to permit the Borrower to determine the withholding or deduction required to be
made.



          Each Lender agrees that if any form or certification previously delivered by such Lender
pursuant to this paragraph (f) expires or becomes obsolete or inaccurate in any material respect,
such Lender shall update such form or certification or promptly notify the Borrower and the
Administrative Agent in writing of such Lender’s legal inability to do so.




          (g) If the Administrative Agent, a Lender or the Issuing Bank determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section 2.16, it shall pay to the Borrower an amount equal to such refund. This
paragraph shall not be





42









 







construed to require the Administrative Agent, any Lender or the Issuing Bank to make
available its Tax returns (or any other information relating to its taxes that it deems
confidential) to the Borrower or any other Person.




          SECTION 2.17. Payments Generally; Allocation of Proceeds; Sharing of Setoffs.
(a) The Borrower shall make each payment required to be made by it under any Loan Document
(whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable
under Section 2.14, 2.15, 2.16 or 9.03, or otherwise) at or prior to the time expressly required
hereunder or under such other Loan Document for such payment (or, if no such time is expressly
required, prior to 12:00 noon, New York City time), on the date when due, in immediately available
funds, without setoff or counterclaim. Any amounts received after such time on any date may, in
the discretion of the Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments shall be made to the
Administrative Agent at its offices at 270 Park Avenue, New York, New York or at such other address
that the Administrative Agent shall advise the Borrower in writing, except payments to be made
directly to the Issuing Bank or Swingline Lender as expressly provided herein and except that
payments pursuant to Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to the Persons
entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons
specified therein. The Administrative Agent shall distribute any such payments received by it for
the account of any other Person to the appropriate recipient promptly following receipt thereof.
If any payment under any Loan Document shall be due on a day that is not a Business Day, the date
for payment shall be extended to the next succeeding Business Day and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of such extension. All
payments under each Loan Document shall be made in dollars.




          (b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then
due hereunder, ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment of principal and
unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then due to such
parties. Notwithstanding the immediately preceding sentence, any proceeds of Collateral received
by the Administrative Agent (i) not constituting either (A) a specific payment of principal,
interest, fees, reimbursement of LC Disbursements or other sum payable under the Loan Documents
(which shall be applied as specified by the Borrower in accordance with the terms hereof), (B) a
mandatory prepayment (which shall be applied in accordance with Section 2.10) or (C) amounts to be
applied from the Collection Account during any Cash Dominion Period (which shall be applied in
accordance with Section 2.09(b)) or (ii) after an Event of Default has occurred and is continuing
and the Administrative Agent so elects or the Required Lenders so direct, shall be applied (in
each case ratably as interests may appear) first, to pay any fees, indemnities, or expense
reimbursements then due to the Administrative Agent from the Loan Parties (other than in
connection with Banking Services Obligations or Swap Obligations), second, to pay any fees
or expense reimbursements then due to the Lenders from the Loan Parties (other than in connection
with Banking Services Obligations or Swap Obligations), third, to pay interest due in
respect of the Overadvances, fourth, to pay the principal of the Overadvances,
fifth, to pay interest then due and payable on the Loans (other than the Overadvances),
sixth, to prepay principal on the Loans (other than the Overadvances) and unreimbursed LC
Disbursements, seventh, to pay an amount to the Administrative Agent equal to 105% of the
aggregate undrawn face amount of all outstanding Letters of Credit to be held as cash collateral
for such Obligations, eighth, to the payment of any other Secured Obligation (other than
Banking Services Obligations and Swap Obligations) due to the Administrative Agent or any Lender
by the Loan Parties, and ninth, to pay any amounts owing with respect to Banking Services
Obligations and Swap Obligations that are Secured Obligations. Notwithstanding anything to the
contrary contained in this






43









 







Agreement, unless so directed by the Borrower, or unless an Event of Default has occurred and
is continuing, neither the Administrative Agent nor any Lender shall apply any payment that it
receives to a Eurodollar Loan, except (x) on the expiration date of the Interest Period applicable
to any such Eurodollar Loan or (y) in the event, and only to the extent, that there are no
outstanding ABR Loans and, in any such event, the Borrower shall pay the break funding payment
required in accordance with Section 2.15. The Administrative Agent and the Lenders shall have the
continuing and exclusive right to apply and reverse and reapply any and all such proceeds and
payments to any portion of the Secured Obligations in accordance with the terms of this Agreement.




          (c) At the election of the Administrative Agent, all payments of principal, interest, fees,
premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and
expenses pursuant to Section 9.03) and other sums payable under the Loan Documents that are not
paid when due in accordance with the Loan Documents (after giving effect to any applicable grace
period(s)) may be paid from the proceeds of Borrowings made hereunder whether made following a
request by the Borrower pursuant to Section 2.03 or a deemed request as provided in this Section
or may be deducted from any deposit account of the Borrower maintained with the Administrative
Agent. The Borrower hereby irrevocably authorizes (i) the Administrative Agent to make a
Borrowing in the name of the Borrower for the purpose of paying each payment of principal,
interest and fees payable by the Borrower as it becomes due hereunder or any other amount due
under the Loan Documents and agrees that all such amounts charged shall constitute Loans
(including Swingline Loans and Overadvances, as the case may be) and that all such Borrowings
shall be deemed to have been requested pursuant to Sections 2.03 or 2.04, as applicable, and (ii)
the Administrative Agent to charge any deposit account of the Borrower maintained with the
Administrative Agent for each payment of principal, interest and fees payable by such Borrower as
it becomes due hereunder or any other amount due under the Loan Documents.




          (d) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans or
participations in LC Disbursements, Swingline Loans or Overadvances resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its Revolving Loans and
participations in LC Disbursements, Swingline Loans and Overadvances and accrued interest thereon
than the proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the Revolving Loans and
participations in LC Disbursements, Swingline Loans and Overadvances of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably
in accordance with the aggregate amount of principal of and accrued interest on their respective
Revolving Loans and participations in LC Disbursements, Swingline Loans and Overadvances,
provided that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the provisions of this
paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to the Borrower or
any Subsidiary or other Affiliate thereof (as to which the provisions of this paragraph shall
apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.




          (e) Unless the Administrative Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Administrative Agent for the account of the Lenders
or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative
Agent






44









 







may assume that the Borrower has made such payment on such date in accordance herewith and
may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the
Issuing Bank, as the case may be, the amount due. In such event, if the Borrower has not in fact
made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such
Lender or the Issuing Bank with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the Administrative Agent, at
the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.




          (f) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(c) or (e), 2.05 (d) or (e), 2.06(a) or (b), 2.17(e) or 9.03(c), then the
Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Administrative Agent for the account of such Lender to
satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are
fully paid.




          SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.14, or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.16, then such Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.14 or
2.16, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not be inconsistent with its internal policies or otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment.




          (b) If any Lender requests compensation under Section 2.14, or if the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.16, or if any Lender becomes a Defaulting Lender, then the Borrower
may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance with and subject to
the restrictions contained in Section 9.04), all its interests, rights and obligations under this
Agreement to an assignee acceptable to the Borrower that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment), provided that (i)
the Borrower shall have received the prior written consent of the Administrative Agent (and, if a
Revolving Commitment is being assigned, the Issuing Bank and the Swingline Lender), which consent
shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount
equal to the outstanding principal of its Loans and funded participations in LC Disbursements,
Swingline Loans and Overadvances, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts), (iii) the Borrower or such
assignee shall have paid to the Administrative Agent the processing and recordation fee specified
in Section 9.04(b) and (iv) in the case of any such assignment resulting from a claim for
compensation under Section 2.14 or payments required to be made pursuant to Section 2.16, such
assignment will result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise (including as a result of any action taken by such Lender under paragraph
(a) above), the circumstances entitling the Borrower to require such assignment and delegation
cease to apply.







45









 








          SECTION 2.19. Revolving Commitment Increases. (a) The Borrower may from time to
time (and more than one time), by written notice to the Administrative Agent (which shall promptly
deliver a copy to each of the Lenders), request that the aggregate Revolving Commitments be
increased by an amount not less than $15,000,000 for any such increase, except to the extent
necessary to utilize the remaining unused amount of increase permitted under this Section 2.19(a),
provided that after giving effect to any such increase the sum of the total Revolving
Commitments shall not exceed $600,000,000. Such notice shall set forth the amount of the requested
increase in the Revolving Commitments and the date on which such increase is requested to become
effective (which shall be not less than ten Business Days or more than 60 days after the date of
such notice), and shall offer each Lender (provided that such Lender shall be reasonably
satisfactory to the Administrative Agent) the opportunity to increase its Revolving Commitment by
such Lender’s Applicable Percentage of the proposed increased amount. Each Lender shall, by notice
to the Borrower and the Administrative Agent given not more than ten days after the date of the
Borrower’s notice, either agree to increase its applicable Revolving Commitment by all or a portion
of the offered amount or decline to increase its applicable Commitment (and any Lender that does
not deliver such a notice within such period of ten days shall be deemed to have declined to
increase its Commitment). In the event that, on the tenth day after the Borrower shall have
delivered a notice pursuant to the first sentence of this paragraph, the Lenders shall have
declined to increase their Revolving Commitments or have agreed pursuant to the preceding sentence
to increase their Revolving Commitments by an aggregate amount less than the increase in the total
Revolving Commitments requested by the Borrower, the Borrower may arrange for one or more banks or
other financial institutions (any such bank or other financial institution, together with any
existing Lender that agrees to increase its applicable Revolving Commitment pursuant to the
immediately preceding sentence, being called an “Augmenting Lender”) to provide Revolving
Commitments or increase their existing Revolving Commitments in an aggregate amount equal to the
unsubscribed amount, provided that each Augmenting Lender shall be subject to the approval
of the Administrative Agent (which approval shall not be unreasonably withheld) and shall not be
subject to the approval of any other Lenders, and the Borrower and each Augmenting Lender shall
execute all such documentation as the Administrative Agent shall reasonably specify to evidence the
Revolving Commitment of such Augmenting Lender and/or its status as a Lender hereunder. Any
increase in the aggregate Revolving Commitments may be made in an amount that is less than the
increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to
arrange for, Augmenting Lenders.




          (b) Each of the parties hereto hereby agrees that, upon the effectiveness of any increase in
the aggregate Revolving Commitments pursuant to this Section 2.19 (the “Revolving Commitment
Increase”), this Agreement may be amended (such amendment, a “Commitment Increase
Amendment”) without the consent of any Lenders to the extent (but only to the extent)
necessary to reflect the existence and terms of the Revolving Commitment Increase evidenced
thereby as provided for in Section 9.02(b). Upon each Revolving Commitment Increase pursuant to
this Section, (i) each Lender immediately prior to such increase will automatically and without
further act be deemed to have assigned to each Augmenting Lender providing a portion of such
Revolving Commitment Increase, and each such Augmenting Lender will automatically and without
further act be deemed to have assumed, a portion of such Lender’s participations hereunder in
outstanding Letters of Credit, Swingline Loans and Overadvances such that, after giving effect to
such Revolving Commitment Increase and each such deemed assignment and assumption of
participations, the percentage of the aggregate outstanding (A) participations hereunder in
Letters of Credit, (B) participations hereunder in Swingline Loans and (C) participations
hereunder in Overadvances held by each Lender (including each such Augmenting Lender) will equal
such Lender’s Applicable Percentage and (ii) if, on the date of such Revolving Commitment
Increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the
effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional
Revolving Loans made hereunder (reflecting such Revolving Commitment Increase), which prepayment
shall be accompanied by accrued interest on the Revolving Loans being prepaid and any







46









 







costs incurred by any Lender in accordance with Section 2.15. The Administrative Agent and
the Lenders hereby agree that the minimum borrowing, pro rata borrowing and
pro rata payment requirements contained elsewhere in this Agreement shall not
apply to the transactions effected pursuant to the immediately preceding sentence.




          (c) Increases and new Revolving Commitments created pursuant to this Section 2.19 shall
become effective on the date specified in the notice delivered by the Borrower pursuant to the
first sentence of paragraph (a) above or on such other date as agreed upon by the Borrower, the
Administrative Agent and the applicable Augmenting Lenders.




          (d) Notwithstanding the foregoing, no increase in the Revolving Commitments (or in any
Commitment of any Lender) or addition of an Augmenting Lender shall become effective under this
Section unless on the date of such increase, the conditions set forth in paragraphs (a) and (b) of
Section 4.02 shall be satisfied as of such date (as though the effectiveness of such increase were
a Borrowing) and the Administrative Agent shall have received a certificate to that effect dated
such date and executed by a Financial Officer.




          SECTION 2.20. Defaulting Lenders. Notwithstanding any provision of this Agreement to
the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions
shall apply for so long as such Lender is a Defaulting Lender:




          (a) if any Swingline Exposure or LC Exposure exists, or any Overadvance is outstanding, at
the time a Revolving Lender is a Defaulting Lender, the Borrower shall within one Business Day
following notice by the Administrative Agent (i) prepay such Swingline Exposure or, if agreed by
the Swingline Lender, cash collateralize the Swingline Exposure of the Defaulting Lender on terms
satisfactory to the Swingline Lender, (ii) cash collateralize such Defaulting Lender’s LC Exposure
in accordance with the procedures set forth in Section 2.05(j) for so long as such LC Exposure is
outstanding and (iii) prepay such Overadvance or, if agreed by the Administrative Agent, cash
collateralize that portion of such Overadvance attributable to such Defaulting Lender’s
participation interest therein on terms satisfactory to the Administrative Agent; and




          (b) the Administrative Agent shall not be required to fund any Overadvance, the Swingline
Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required
to issue, amend or increase any Letter of Credit unless it is satisfied that cash collateral will
be provided by the Borrower in accordance with Section 2.20(a).




ARTICLE III




Representations and Warranties



          The Borrower represents and warrants to the Lenders that:




          SECTION 3.01. Organization; Powers. The Borrower and each of the Material
Subsidiaries is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to carry on its business as
now conducted and as proposed to be conducted, to execute, deliver and perform its obligations
under each Loan Document to which it is a party and to effect the Transactions and, except where
the failure to do so, individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.




          SECTION 3.02. Authorization; Enforceability. The Transactions to be entered into by
each Loan Party have been duly authorized by all necessary corporate or other action and, if
required,






47









 







action by the holders of such Loan Party’s Equity Interests. This Agreement has been duly
executed and delivered by the Borrower and constitutes, and each other Loan Document to which any
Loan Party is to be a party, when executed and delivered by such Loan Party, will constitute, a
legal, valid and binding obligation of the Borrower or such Loan Party (as the case may be),
enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding in equity or at law.




          SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except (i) filings with any Governmental Authority necessary to perfect
Liens created under the Loan Documents and (ii) such as have been obtained or made and are in full
force and effect, except such consents, approvals, registrations or filings, the failure of which
to have been obtained, received or made will not materially impair the effectiveness of the
Transactions or materially adversely affect the operations of the Borrower and the Subsidiaries,
taken as a whole, (b) will not violate any material Requirement of Law applicable to the Borrower
or any Material Subsidiary, (c) will not violate or result in a material default under any material
indenture, agreement or other instrument binding upon the Borrower or any Material Subsidiary or
their respective assets, or give rise to a right thereunder to require any material payment to be
made by the Borrower or any Material Subsidiary or give rise to a right of, or result in,
termination, cancelation or acceleration of any material obligation thereunder, and (d) will not
result in the creation or imposition of any Lien (other than a Lien permitted under Section 6.02)
on any asset of the Borrower or any Material Subsidiary.




          SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Borrower has
heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of
income, stockholders’ equity and cash flows (i) as of and for the fiscal year ended December 31,
2007, reported on by Deloitte & Touche LLP, independent public accountants, and (ii) as of and for
the fiscal quarters and the portions of the fiscal year ended March 31, 2008, June 30, 2008, and
September 30, 2008 (and comparable period for the prior fiscal year). Such financial statements
present fairly, in all material respects, the financial position and results of operations and cash
flows of the Borrower and the Subsidiaries as of such dates and for such periods in accordance with
GAAP consistently applied, subject to year end audit adjustments and the absence of footnotes in
the case of the statements referred to in clause (ii) above.




          (b) On and as of the Restatement Effective Date, no event, change or condition has occurred
that has had, or could reasonably be expected to have, a material adverse effect on the business,
operations, properties, assets, condition (financial or otherwise), liabilities (including
contingent liabilities) or prospects of the Borrower and the Subsidiaries, taken as a whole, since
December 31, 2007, provided that it is understood that the Lenders are satisfied with (and
no such material adverse effect shall be deemed to have occurred with respect to) the results of
operations and financial conditions set forth in the financial statements for the period ended
September 30, 2008, as set forth in the Borrower’s 10-Q filed with the SEC on October 28, 2008, and
the projected “Base Case” and “Downside Case” for fiscal year 2008 as set forth in the Lender
Discussion — Amendment Proposal dated December 17, 2008, delivered by the Borrower to the
Administrative Agent and the Lenders.




          SECTION 3.05. Properties. (a) The Borrower and each of the Material Subsidiaries
has good title to, or valid leasehold interests in, all its real and personal property, except for
any defects that, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect.




          (b) The Borrower and each of the Material Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property material to its
business, and






48









 







the use thereof by the Borrower and the Material Subsidiaries does not infringe upon the
rights of any other Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.




          SECTION 3.06. Litigation and Environmental Matters. (a) There are no actions, suits
or proceedings by or before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower or any Material Subsidiary, threatened against or affecting the Borrower
or any Material Subsidiary (i) as to which there is a reasonable likelihood of an adverse
determination and that, if adversely determined, could reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect (other than the Disclosed Matters) or (ii)
that involve any of the Loan Documents or the Transactions.




          (b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any Material Subsidiary (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability.




          SECTION 3.07. Compliance with Laws and Agreements. The Borrower and each of the
Material Subsidiaries is in compliance with (a) all Requirements of Law applicable to it or its
property and (b) all indentures, agreements and other instruments binding upon it or its property,
except, in each of the cases of (a) and (b) above, where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect.




          SECTION 3.08. Investment Company Status. Neither the Borrower nor any Subsidiary is
an “investment company” as defined in, or subject to regulation under, the Investment Company Act
of 1940.




          SECTION 3.09. Taxes. The Borrower and each of the Subsidiaries (a) has timely filed
or caused to be filed all Tax returns and reports required to have been filed, except to the extent
that failure to do so could not reasonably be expected to result in a Material Adverse Effect, and
(b) has paid or caused to be paid all Taxes required to have been paid by it, except any Taxes that
are being contested in good faith by appropriate proceedings, provided that the Borrower or
such Subsidiary, as the case may be, has set aside on its books adequate reserves therefor and the
failure to pay such Taxes would not reasonably be expected to result in a Material Adverse Effect.




          SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect.




          SECTION 3.11. Disclosure. None of (i) the Borrower’s Quarterly Reports on Form 10-Q
for the periods ended March 31, 2008, June 30, 2008, and September 30, 2008, its Annual Report on
Form 10-K for the fiscal year ended December 31, 2007 (collectively, the “SEC Filings”),
and the other filings of the Borrower made with the SEC in 2008 and 2009 (but prior to the
Restatement Effective Date) nor (ii) any of the other reports, financial statements, certificates
or other information furnished by or on behalf of the Borrower to the Administrative Agent or any
Lender pursuant to any Loan Document or delivered thereunder (as modified or supplemented by other
information furnished by or on behalf of the Borrower to the Administrative Agent in connection
herewith), as of the date such disclosures are delivered, contains any material misstatement of
fact or omits to state any material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading,






49









 







provided that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based upon assumptions believed by
it to be reasonable at the time delivered (unless otherwise updated subsequent thereto, in which
case such information was prepared in good faith based upon assumptions believed by it to be
reasonable at the time updated).




          SECTION 3.12. Insurance. Schedule 3.12 sets forth a description of all
insurance maintained by or on behalf of the Loan Parties and the Material Subsidiaries as of the
Restatement Effective Date. As of the Restatement Effective Date, all premiums due in respect of
such insurance have been paid.




          SECTION 3.13. Security Interest in Collateral. The provisions of this Agreement and
the other Loan Documents create legal and valid Liens on all the Collateral in favor of the
Administrative Agent, for the benefit of the Secured Parties, and, for so long as UCC financing
statements or Deposit Account Control Agreements, as the case may be, with respect to such
Collateral have not been terminated by the Administrative Agent (or otherwise amended by the
Administrative Agent in a manner that adversely affects the Lien in favor of the Secured Parties
thereby perfected), such Liens constitute perfected and continuing Liens on the Collateral,
securing the Secured Obligations, enforceable against the applicable Loan Party and all third
parties, and having priority over all other Liens on the Collateral except in the case of Liens
permitted under clauses (ii) through (iv), (vi) and (xi) of Section 6.02, to the extent any such
Liens would have priority over the Liens in favor of the Administrative Agent pursuant to any
applicable law.




          SECTION 3.14. Labor Matters. As of the Restatement Effective Date, there are no
material strikes, lockouts or slowdowns or any other material labor disputes against the Borrower
or any Material Subsidiary pending or, to the knowledge of the Borrower or any Material Subsidiary,
threatened or planned.




ARTICLE IV




Conditions



          SECTION 4.01. [Intentionally Omitted]




          SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing (other than a deemed Borrowing under Section 2.17(c) and an Overadvance
made under Section 2.04), and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to the receipt by the Administrative Agent of the request therefor in accordance
herewith and to the satisfaction of the following conditions:





     (a) Other than the representation and warranty set forth in Section 3.04(b), the
representations and warranties of the Loan Parties set forth in the Loan Documents that are
qualified by materiality shall be true and correct and the representations and warranties
that are not so qualified shall be true and correct in all material respects on and as of
the date of such Borrowing or the date of issuance, amendment, renewal or extension of such
Letter of Credit, as the case may be, except to the extent such representations and
warranties expressly relate to an earlier date (in which case such representations and
warranties shall be true and correct as of such earlier date).




     (b) At the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as the case may be, no
Default shall have occurred and be continuing.



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Each Borrowing (provided that a conversion or a continuation of a Borrowing shall not
constitute a “Borrowing” for purposes of this Section) and each issuance, amendment, renewal or
extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and (b) of this Section.




ARTICLE V




Affirmative Covenants



          Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees, expenses and other amounts (other than contingent amounts not yet due)
payable under any Loan Document shall have been paid in full and all Letters of Credit shall have
expired or been terminated (or cash collateralized in an amount equal to 105% of the aggregate
undrawn amount of all outstanding Letters of Credit) and all LC Disbursements shall have been
reimbursed, the Borrower covenants and agrees with the Lenders that:




          SECTION 5.01. Financial Statements; Borrowing Base and Other Information. The
Borrower will furnish to the Administrative Agent for prompt delivery to each Lender:





     (a) within 90 days after the end of each fiscal year of the Borrower, the Borrower’s
audited consolidated balance sheet and audited consolidated statements of operations,
stockholders’ equity and cash flows as of the end of and for such year, and related notes
thereto, setting forth in each case in comparative form the figures for the previous fiscal
year, all reported on by Deloitte & Touche LLP or other independent public accountants of
recognized national standing (without a “going concern” or like qualification or exception
and without any qualification or exception as to the scope of such audit) to the effect that
such consolidated financial statements present fairly in all material respects the financial
condition and results of operations of the Borrower and the Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied;




     (b) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower, the Borrower’s unaudited consolidated balance sheet and
unaudited consolidated statements of operations, stockholders’ equity and cash flows as of
the end of and for such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal
year, all certified by a Financial Officer as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and the Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes;




     (c) concurrently with any delivery or deemed delivery of financial statements under
paragraph (a) or (b) above, a certificate of a Financial Officer substantially in the form
of Exhibit E (i) certifying as to whether a Default has occurred and, if a Default
has occurred, specifying the details thereof and any action taken or proposed to be taken
with respect thereto, (ii) setting forth reasonably detailed calculations of the financial
covenant (and the components thereof) contained in Section 6.12 and (iii) stating whether
any change in GAAP or in the application thereof has occurred since the later of the date of
the Borrower’s most recent audited financial statements referred to in Section 3.04 and the
date of the prior certificate delivered pursuant to this paragraph (c) indicating such a
change and, if any such change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;




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     (d) not later than 90 days subsequent to the commencement of each fiscal year of
the Borrower, a detailed consolidated budget for such fiscal year (including a projected
consolidated balance sheet and consolidated statements of projected operations,
comprehensive income and cash flows as of the end of and for such fiscal year and setting
forth the assumptions used for purposes of preparing such budget) and, promptly when
available, any significant revisions of such budget;




     (e) as soon as available but in any event within 13 Business Days of the end of each
calendar month, as of the last day of the preceding calendar month, a Borrowing Base
Certificate and supporting information in connection therewith, together with any additional
reports with respect to the Borrowing Base as the Administrative Agent may reasonably
request. Notwithstanding any provision of this Agreement to the contrary, subsequent to
each date on which Excess Availability is less than the Threshold Amount (or if a Borrowing
or the issuance of a Letter of Credit would cause Excess Availability to fall below the
Threshold Amount), the Borrower shall not be permitted to make any additional Borrowings or
such Borrowing or request the issuance of additional Letters of Credit or such Letter of
Credit, as the case may be (provided that a conversion or a continuation of a
Borrowing shall not constitute a “Borrowing” for purposes of this sentence), unless the
Borrower shall have delivered to the Administrative Agent a Borrowing Base Certificate as of
a date no earlier than three Business Days prior to the date of such Borrowing or the
issuance of such Letter of Credit; provided, however, the Borrower shall not
be required to deliver a Borrowing Base Certificate pursuant to the second sentence of this
paragraph if Excess Availability shall have exceeded the Threshold Amount for a period of
five consecutive Business Days prior to the date of such Borrowing or the issuance of such
Letter of Credit;




     (f) concurrently with the delivery of each Borrowing Base Certificate, and at such
other times as may be reasonably requested by the Administrative Agent, all Borrowing Base
Supplemental Documentation for the month (or such shorter period as contemplated by clause
(e) of this Section) then ended;




     (g) promptly as reasonably practicable after the request therefor, such additional
information concerning the Accounts and Inventory of the Collateral Parties or adjustments
thereto as may be reasonably requested by the Administrative Agent from time to time;




     (h) promptly after the same become publicly available, copies of all periodic and
other reports, proxy statements and other materials filed by the Borrower or any Subsidiary
with the SEC or with any national securities exchange, or distributed by the Borrower to the
holders of its Equity Interests generally, as the case may be;




     (i) promptly upon obtaining knowledge of any such event, circumstance or change, a
written notice of any event, circumstance or change that has occurred since the delivery of
the most recent Borrowing Base Certificate in accordance with the terms of this Agreement
that would materially reduce the aggregate amount of the Eligible Accounts or the Eligible
Inventory or result in a material portion of the Eligible Accounts ceasing to be Eligible
Accounts or a material portion of the Eligible Inventory ceasing to be Eligible Inventory;
and




     (j) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Borrower or any Subsidiary, or
compliance with the terms of any Loan Document, as the Administrative Agent (on behalf of
any Lender) may reasonably request.



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Information required to be delivered pursuant to Sections 5.01(a), (b) and (h) shall be deemed to
have been delivered on the date on which the Borrower provides notice to the Administrative Agent
that such information has been posted on the SEC website on the Internet at www.sec.gov, or through
a link on the Borrower’s website at www.usg.com, or at another website identified in such notice
and accessible by the Lenders without charge, provided that such notice may be included in
a certificate delivered pursuant to Section 5.01(c).




          SECTION 5.02. Notices of Material Events. The Borrower will furnish to the
Administrative Agent (for prompt distribution to each Lender through the Administrative Agent)
written notice promptly, but in any event within five Business Days of, when any of the Chief
Executive Officer, the President or the General Counsel of the Borrower or any Financial Officer
obtains actual knowledge of the following:




     (a) the occurrence of any Default;




     (b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or, to the knowledge of a Financial Officer or
another executive officer of the Borrower or any Subsidiary, affecting the Borrower or any
Affiliate thereof that has a reasonable likelihood of being adversely determined, and, if
adversely determined, could reasonably be expected to result in a Material Adverse Effect;




     (c) any Lien (other than Liens permitted by clauses (i) through (iv), (vi) or (xi) of
Section 6.02) or claim made or asserted against any of the Collateral;




     (d) the occurrence of any ERISA Event or any fact or circumstance that gives rise to a
reasonable expectation that any ERISA Event will occur that, in either case, alone or
together with any other ERISA Events that have occurred or are reasonably expected to occur,
could reasonably be expected to result in a Material Adverse Effect;




     (e) any change in the Borrower’s corporate credit rating by S&P or Moody’s, or any
notice from either such agency indicating its intent to effect such a change or to place the
credit facilities on a “CreditWatch” or “WatchList” or any similar list, in each case with
negative implications, or its cessation of, or its intent to cease, issuing a corporate
credit rating for the Borrower; and




     (f) any other development (including notice of any Environmental Liability) that
results in, or could reasonably be expected to result in, a Material Adverse Effect.


Each notice delivered under this Section shall be accompanied by a written statement of a Financial
Officer or other executive officer of the Borrower setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken with respect
thereto.




          SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will cause each
Subsidiary to, do or cause to be done all things necessary to obtain, preserve, renew and keep in
full force and effect its legal existence and, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect, the rights, licenses, permits,
privileges, franchises, patents, copyrights, trademarks and trade names material to the conduct of
its business, provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.03.



          SECTION 5.04. Payment of Taxes. The Borrower will, and will cause each Subsidiary
to, pay its liabilities for Taxes, the amounts of which are material to the Borrower and its
Subsidiaries taken as a whole, before such liabilities shall become delinquent or in default,
except where (a) the



53









 




validity or amount thereof is being contested in good faith by appropriate proceedings, (b)
the Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto
in accordance with GAAP, (c) such contest effectively suspends collection of the contested
obligation and the enforcement of any Lien securing such obligation and (d) the failure to make
payment pending such contest could not reasonably be expected to result in a Material Adverse
Effect.




          SECTION 5.05. Maintenance of Properties. The Borrower will, and will cause each
Subsidiary to, keep and maintain all property used in the conduct of its business in good working
order and condition, ordinary wear and tear excepted, except for properties, the failure of which
to maintain, could not reasonably be expected to result in a Material Adverse Effect.



          SECTION 5.06. Insurance. (a) The Borrower will, and will cause each Material
Subsidiary to, maintain, with financially sound and reputable insurance companies, (i) insurance in
such amounts (with no greater risk retention) and against such risks as is (A) customarily
maintained by companies of established repute engaged in the same or similar businesses operating
in the same or similar locations and (B) considered adequate by the Borrower and (ii) all other
insurance as may be required by law, provided that self-insurance through any captive
insurance Subsidiary or through deductibles or copayments shall not be deemed a violation of this
covenant to the extent that companies engaged in similar businesses similarly self-insure. The
Borrower will furnish to the Lenders, upon the reasonable request of the Administrative Agent,
information in reasonable detail as to the insurance so maintained.



          (b) All insurance policies required under paragraph (a) of this Section 5.06, to the extent
such insurance policies insure any portion of the Collateral, shall name the Administrative Agent
(for the benefit of the Secured Parties) as an additional insured or as loss payee, as applicable,
and shall contain loss payable clauses or mortgagee clauses, through endorsements in form and
substance reasonably satisfactory to the Administrative Agent, that provide that (i) all proceeds
thereunder with respect to any Collateral shall be payable to the Administrative Agent and (ii)
such policy and loss payable or mortgagee clauses may be canceled, amended or terminated only upon
at least 30 days’ prior written notice given to the Administrative Agent.



          (c) If the Borrower or any Material Subsidiary shall fail to obtain any insurance as
required by paragraph (a) of this Section 5.06, the Administrative Agent may obtain such insurance
at the Borrower’s expense. By purchasing such insurance, the Administrative Agent shall not be
deemed to have waived any Default arising from the Borrower’s or such Material Subsidiary’s
failure to maintain such insurance.



          SECTION 5.07. Books and Records; Inspection Rights; Field Examinations; Inventory
Appraisals. (a) The Borrower will, and will cause each Subsidiary to, keep proper books of
record and account in which entries that are full, true and correct in all material respects are
made of all material dealings and transactions in relation to its business and activities. The
Borrower will, and will cause each Loan Party to, permit any representatives designated by the
Administrative Agent (who may be accompanied by a representative of any Lender at such Lender’s
expense), upon reasonable prior notice and during normal workings hours, periodically (but no more
frequently than annually, except if an Event of Default shall be continuing), to visit and inspect
its properties, to examine and make extracts from its books and records, and to discuss its
affairs, finances and condition with its officers and independent accountants.



          (b) The Administrative Agent shall be entitled to conduct, at its reasonable discretion, on
reasonable prior notice and during normal working hours, periodic field examinations of the books
and records relating to the Accounts of the Collateral Parties and the Inventory of the Collateral
Parties, in each case to ensure the adequacy of the Collateral that constitutes the Borrowing Base
and the related



54









 







reporting and control systems; provided, however, that so long as no Event of
Default has occurred and is continuing, (x) if no Loans are then outstanding hereunder, the
Administrative Agent shall be limited in any twelve-calendar-month period to one such field
examination and (y) if any Loans are then outstanding hereunder, then the Administrative Agent
shall be entitled to two such field examinations during any twelve-calendar-month period.



          (c) At any time that the Administrative Agent requests, each of the Collateral Parties will
provide the Administrative Agent with appraisals or updates thereof of its Inventory from an
appraiser selected and engaged by the Administrative Agent, and prepared on a basis satisfactory
to the Administrative Agent, and such appraisals or updates, as the case may be, will include
information required by applicable law and regulations; provided, however, that
(unless the Borrower otherwise requests in writing to the Administrative Agent that additional
appraisals of Inventory be conducted in the relevant twelve-calendar-month period) so long as no
Event of Default has occurred and is continuing (x) if no Loans are then outstanding hereunder,
the Administrative Agent shall be limited in any twelve-calendar-month period to one such
appraisal and (y) if any Loans are then outstanding hereunder, then the Administrative Agent shall
be entitled to two such appraisals during any twelve-calendar-month period. Each such appraisal
shall be at the sole expense of the Collateral Parties.



          (d) The Borrower acknowledges that the Administrative Agent, after exercising its rights of
inspection, field examination or appraisal pursuant to this Section 5.07, may prepare and
distribute to the Lenders certain Reports pertaining to the Loan Parties’ assets for internal use
by the Administrative Agent and the Lenders.



          SECTION 5.08. Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply with all Requirements of Law with respect to it or its property, except where
non-compliance could not reasonably be expected to result in a Material Adverse Effect or where the
necessity of compliance therewith is contested in good faith by appropriate proceedings.



          SECTION 5.09. Use of Proceeds and Letters of Credit. The proceeds of the Loans will
be used only to finance general working capital needs and for other general corporate purposes
(including acquisitions), in each case of the Borrower and the Subsidiaries. No part of the
proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations T, U and X. Letters of
Credit will be used only for general corporate purposes.



          SECTION 5.10. Further Assurances. (a) The Borrower shall cause (i) (A) each
Domestic Material Subsidiary formed or acquired on or after the date of this Agreement in
compliance with the terms of this Agreement and (B) each Subsidiary that otherwise qualifies as a
Domestic Material Subsidiary on or after the date of this Agreement, in each case, to become a Loan
Party by executing a supplement to the Guarantee Agreement in the form attached to the Guarantee
Agreement and (ii) (A) each Domestic Material Subsidiary that is a wholly-owned Subsidiary and
formed or acquired on or after the date of this Agreement in compliance with the terms of this
Agreement and (B) each Subsidiary that otherwise qualifies as a Domestic Material Subsidiary that
is a wholly-owned Subsidiary on or after the date of this Agreement, in each case, to become a
Collateral Party by executing a supplement to the Security Agreement in the form attached to the
Security Agreement, provided that the terms of this Section 5.10(a) shall not be required
to be satisfied with respect to any Subsidiary (x) that is subject to any legal or any contractual
restriction (to the extent such restriction does not violate any of the terms of any Loan Document)
preventing or prohibiting it from satisfying such requirement or (y) with respect to which the
Administrative Agent determines that the cost of satisfaction of such requirement with respect
thereto exceeds the value afforded thereby (and any such Subsidiary that does not so satisfy the
terms of this Section 5.10(a) shall not become a Loan Party and/or a Collateral Party hereunder).



55









 





          (b) Subject to the limitations set forth in the Security Agreement, the Borrower will, and
will cause each Loan Party to, execute any and all further documents, financing statements,
agreements and instruments, and take all such further actions (including the filing and recording
of financing statements and other documents), that may be required under any applicable law, or
that the Administrative Agent or the Required Lenders may reasonably request, to carry out the
terms and conditions of this Agreement and the other Loan Documents, and to ensure perfection and
priority of the Liens created or intended to be created by the Collateral Documents, all at the
expense of the Loan Parties. The Borrower also agrees to provide to the Administrative Agent, from
time to time upon request, evidence reasonably satisfactory to the Administrative Agent as to the
perfection and priority of the Liens created or intended to be created by the Collateral Documents.



          SECTION 5.11. Control Agreements; Collateral Access Agreements. (a) The Borrower
will, and will cause each applicable Collateral Party to, (a) enter into the Deposit Account
Control Agreements required to be provided pursuant to Section 7.01 of the Security Agreement and
(b) open the Collection Account with the Administrative Agent, in each case no later than the date
that is 60 days (or such longer period as the Administrative Agent, in its sole discretion, may
agree) after the Restatement Effective Date. In connection with the foregoing, the Borrower shall
deliver to the Administrative Agent a favorable written opinion (addressed to the Administrative
Agent and the Lenders and dated as of the date on which the obligations set forth in this Section
5.11 have been satisfied) of Jones Day, counsel for the Borrower and the Domestic Material
Subsidiaries, in form and substance reasonably satisfactory to the Administrative Agent and
covering such customary matters relating to such Deposit Account Control Agreements governed by the
laws of, or (solely with respect to the opinion relating to perfection of a security interest)
entered into by a depositary bank whose jurisdiction (for purposes of Section 9-304 of the UCC and
as designated in the applicable Deposit Account Control Agreement) is in a State in which, Jones
Day is then licensed to practice.



          (b) The Borrower will, and will cause each applicable Collateral Party to, use its
commercially reasonable efforts to enter into Collateral Access Agreements required to be provided
pursuant to Section 4.05 of the Security Agreement no later than the date that is 90 days (or such
longer period as the Administrative Agent, in its sole discretion, may agree) after the
Restatement Effective Date.



ARTICLE VI




Negative Covenants



          Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees, expenses and other amounts payable (other than contingent amounts not yet
due) under any Loan Document have been paid in full and all Letters of Credit have expired or been
terminated (or cash collateralized in an amount equal to 105% of the aggregate undrawn amount of
all outstanding Letters of Credit) and all LC Disbursements shall have been reimbursed, the
Borrower covenants and agrees with the Lenders that:



          SECTION 6.01. Indebtedness. (a) Neither the Borrower nor any of the Subsidiaries
shall directly or indirectly create, incur, assume or otherwise become or remain directly or
indirectly liable with respect to any Indebtedness, the incurrence of which would cause the
Borrower to violate the financial covenant set forth in Section 6.12 (giving effect to such
incurrence of Indebtedness on a pro forma basis as if such incurrence (and the application of any
proceeds therefrom, including the repayment of any Indebtedness with the proceeds of the
Indebtedness being so incurred) occurred on the first day of the applicable four fiscal quarter
period ended immediately prior to such incurrence) to the extent such Section is in effect as of
the date of such determination (or would be in effect after giving effect to such



56









 




incurrence of Indebtedness). It is understood and agreed that any Indebtedness incurred under
Section 6.01(a) of the Existing Credit Agreement, to the extent such Indebtedness was, at the time
of such incurrence, permitted to be so incurred thereunder, shall be deemed to have been incurred
under, and in compliance with, this Section 6.01(a) as of the Restatement Effective Date.




          (b) Neither the Borrower nor any of its Subsidiaries shall at any time permit the sum,
without duplication, of (i) all Indebtedness of the Borrower and the Subsidiaries secured by Liens
plus (ii) all Indebtedness of the Subsidiaries (including Subsidiaries acquired after the
Effective Date) to exceed $500,000,000 at any time outstanding.



          (c) Notwithstanding anything to the contrary in paragraph (b) of this Section 6.01, the
following Indebtedness of the Borrower and the Subsidiaries (including Subsidiaries acquired after
the Effective Date) shall not be prohibited by Section 6.01(b) and shall not be included in
calculating the levels of Indebtedness permitted under Section 6.01(b) regardless of whether such
Indebtedness is secured as permitted by Section 6.02:




     (i) (x) Indebtedness created under the Loan Documents and (y) other
Indebtedness existing on the Effective Date and set forth in Schedule 6.01
and extensions, renewals and replacements of any such Indebtedness, provided
that such extending, renewal or replacement Indebtedness (A) shall not be
Indebtedness of an obligor that was not an obligor with respect to the original
Indebtedness being extended, renewed or replaced (other than in the case of
Guarantees otherwise permitted by clause (iii) of this Section 6.01(c)), (B) shall
not be in a principal amount that exceeds the principal amount of the Indebtedness
being extended, renewed or replaced (plus any accrued but unpaid interest
and redemption premium thereon), (C) shall not have an earlier maturity date or
shorter weighted average life to maturity than the Indebtedness being extended,
renewed or replaced and (D) shall be subordinated to the Obligations to the same
extent as the Indebtedness being extended, renewed or replaced, if applicable;




     (ii) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to
the Borrower or any other Subsidiary, provided that (A) Indebtedness of any
Subsidiary (other than a Loan Party) owing to any Loan Party shall be subject to
Section 6.04 and (B) Indebtedness of the Borrower to any Subsidiary or of any other
Loan Party to any other Subsidiary (other than a Loan Party) shall be subordinated
to the Obligations on terms reasonably satisfactory to the Administrative Agent;




     (iii) Guarantees by the Borrower of Indebtedness of any Subsidiary, and by any
Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided
that (A) the Indebtedness so Guaranteed shall not be prohibited by this Section
(other than clause (c)(ii)) and (B) Guarantees by any Loan Party of Indebtedness of
any Subsidiary (other than a Loan Party) shall be subject to Section 6.04;




     (iv) (A) Indebtedness of the Borrower or any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets, including
Capital Lease Obligations and any Indebtedness that is assumed by the Borrower or
any Subsidiary or that remains Indebtedness of an acquired entity in connection with
the acquisition of any such assets or secured by a Lien on any such assets prior to
the acquisition thereof, provided that such Indebtedness is incurred prior to or
within 90 days after such acquisition or the completion of such construction or
improvement, and (B) extensions, renewals and replacements of any such Indebtedness
so long as the outstanding principal amount of such extensions, renewals and
replacements does not exceed the principal of the Indebtedness being extended,
renewed or replaced (plus any



57









 






accrued but unpaid interest and premium thereon), provided that the
aggregate principal amount of Indebtedness permitted by this clause (iv) incurred
after the Effective Date shall not exceed $100,000,000 at any time outstanding;




     (v) Indebtedness in respect of Swap Agreements permitted by Section 6.06; and




     (vi) Indebtedness in respect of any financing or capital lease financing
relating to the Borrower’s or the Subsidiaries’ sea vessels in an amount not to
exceed $75,000,000 at any time outstanding.



          SECTION 6.02. Liens. The Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof, except:




     (i) Liens created pursuant to any Loan Document;




     (ii) Permitted Encumbrances;




     (iii) any Lien on any property or asset of the Borrower or any Subsidiary
existing on the Effective Date and set forth in Schedule 6.02,
provided that (A) such Lien shall not apply to any other property or asset
of the Borrower or any Subsidiary (other than assets financed by the same financing
source pursuant to the same financing scheme in the ordinary course of business) and
(B) such Lien shall secure only those obligations that it secured on the Effective
Date and extensions, renewals and replacements thereof so long as the principal
amount of such extensions, renewals and replacements does not exceed the principal
amount of the obligations being extended, renewed or replaced (plus any
accrued but unpaid interest and premium thereon);




     (iv) any Lien existing on any property or asset prior to the acquisition
thereof by the Borrower or any Subsidiary or existing on any property or asset of
any Person that becomes a Subsidiary after the Effective Date prior to the time such
Person becomes a Subsidiary, provided that (A) such Lien is not created in
contemplation of or in connection with such acquisition or such Person becoming a
Subsidiary, as the case may be, (B) such Lien shall not apply to any other property
or asset of the Borrower or any Subsidiary (other than assets financed by the same
financing source pursuant to the same financing scheme in the ordinary course of
business) and (C) such Lien shall secure only those obligations that it secures on
the date of such acquisition or the date such Person becomes a Subsidiary, as the
case may be, and extensions, renewals and replacements thereof so long as the
principal amount of such extensions, renewals and replacements does not exceed the
principal amount of the obligations being extended, renewed or replaced
(plus any accrued but unpaid interest and premium thereon);




     (v) Liens on fixed or capital assets acquired, constructed or improved
(including any such assets made the subject of a Capital Lease Obligation incurred)
by the Borrower or any Subsidiary after the Effective Date, provided that
(A) such Liens secure Indebtedness incurred to finance such acquisition,
construction or improvement and permitted by clause (iv)(A) of Section 6.01(c) or to
extend, renew or replace such Indebtedness and permitted by clause (iv)(B) of
Section 6.01(c), (B) such Liens and the Indebtedness secured thereby are incurred
prior to or within 90 days after such acquisition or the completion of such
construction or improvement (provided that this clause (B) shall not apply
to any Indebtedness permitted by clause (iv)(B) of Section 6.01(c) or any Lien








58









 












securing such Indebtedness), (C) the Indebtedness secured thereby does not
exceed the lesser of the cost of acquiring, constructing or improving such fixed or
capital asset or, in the case of Indebtedness permitted by clause (iv)(A) of Section
6.01(c), its fair market value at the time such security interest attaches, and in
any event, the aggregate principal amount of such Indebtedness does not exceed
$100,000,000 at any time outstanding and (D) such Liens shall not apply to any other
property or assets of the Borrower or any Subsidiary (except assets financed by the
same financing source pursuant to the same financing scheme in the ordinary course
of business);




     (vi) Liens of a collecting bank arising in the ordinary course of business
under Section 4-208 of the Uniform Commercial Code in effect in the relevant
jurisdiction covering only the items being collected upon;




     (vii) Liens granted by a Subsidiary in respect of Indebtedness permitted by
Section 6.01;




     (viii) Liens securing obligations under Swap Agreements (and related netting
agreements) entered into after the Effective Date and permitted under Section 6.06
in an amount not to exceed $150,000,000 on a marked-to-market basis at any time
outstanding;




     (ix) Liens existing or deemed to exist securing the ship financing Indebtedness
described in Section 6.01(c)(vi) in an amount not to exceed $75,000,000,
provided that such Liens shall apply only to those assets and rights of the
type pledged under the Vessel Loan Agreement and the collateral documents entered
into in connection therewith (as the Vessel Loan Agreement and such other documents
are in effect on the Restatement Effective Date) and shall not apply to any other
property or asset of the Borrower or any Subsidiary;




     (x) Liens not otherwise permitted by this Section to the extent that the
aggregate outstanding principal amount of the obligations secured thereby does not
at any time exceed $100,000,000; and




     (xi) Liens created by sales contracts documenting unconsummated asset
dispositions permitted hereby, provided that such Liens attach only to those
assets that are the subject of the applicable sales contract.


Notwithstanding the foregoing, none of the Liens permitted pursuant to this Section 6.02 may at any
time attach to any Collateral, other than those permitted under clauses (i) through (iv), (vi) and
(xi) of this Section 6.02.




          SECTION 6.03. Fundamental Changes. (a) The Borrower will not, and will not permit
any Material Subsidiary to, merge into or consolidate with any other Person, or permit any other
Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have occurred and be
continuing (i) any Person may merge into the Borrower in a transaction in which the Borrower is the
surviving corporation and (ii) any Person (other than the Borrower) may merge into any Subsidiary
in a transaction in which the surviving entity is a Subsidiary and (if any party to such merger is
a Restricted Collateral Party, a Collateral Party or a Loan Party) is a Restricted Collateral
Party, a Collateral Party or a Loan Party, as the case may be, provided that any such
merger involving a Person that is not a wholly-owned Subsidiary immediately prior to such merger
shall not be permitted unless also permitted by Section 6.04.



59









 





          (b) The Borrower will not, and will not permit any Material Subsidiary to, engage to any
material extent in any business other than businesses of the type conducted by the Borrower and
the Subsidiaries on the Effective Date and businesses reasonably related thereto.



          (c) The Borrower will not, and will not permit any other Loan Party, to sell, transfer,
lease or otherwise dispose of all or substantially all its assets, provided that this
clause (c) shall not prohibit any such sale, transfer, lease or other disposition (i) by any
Collateral Party to any other Collateral Party, (ii) by any wholly-owned Subsidiary (other than a
Collateral Party) to the Borrower or any other wholly-owned Subsidiary or (iii) of assets the
aggregate fair value of which, determined as of the date of such sale, transfer, lease or other
disposition and when combined with the aggregate fair value of all assets sold, transferred,
leased or otherwise disposed of pursuant to this clause (iii) (in each case, determined as of the
date of the sale, transfer, lease or other disposition of the applicable assets), does not exceed
15% of the consolidated assets of the Loan Parties as determined on such date. Notwithstanding
the foregoing, (A) no Restricted Collateral Party may issue any Equity Interests (other than to
the Borrower or to another wholly-owned Subsidiary), (B) neither the Borrower nor any other
Subsidiary may sell, transfer or otherwise dispose of any Equity Interests of any Restricted
Collateral Party (other than to the Borrower or to any wholly-owned Subsidiary) except in a
transaction pursuant to clause (iii) of this paragraph (c) in which 100% of the Equity Interests
of such Restricted Collateral Party are sold, transferred or otherwise disposed of and (C) neither
the Borrower nor any Restricted Collateral Party may sell, transfer, lease or otherwise dispose of
all or substantially all its assets (other than to the Borrower or to another Restricted
Collateral Party) except in a transaction pursuant to clause (iii) of this paragraph (c).



          SECTION 6.04. Investments. The Borrower will not, and will not permit any Loan Party
to, purchase or acquire (including pursuant to any merger with such Person) any Equity Interests in
or evidences of Indebtedness or other securities (including any option, warrant or other right to
acquire any of the foregoing) of, make any loans or advances to, or Guarantee any Indebtedness of,
any other Person (other than a Loan Party), or purchase or otherwise acquire (in one transaction or
a series of transactions) any assets of any other Person constituting a business unit, or incur an
obligation (contingent or otherwise) to do any of the foregoing (each, an “Investment”), at
any time when (x) the Excess Availability is less than the Threshold Amount at such time or (y) a
Default or Event of Default has occurred and is continuing, provided that, without limiting
the foregoing, so long as no Default or Event of Default shall have occurred and is continuing, the
Borrower may make Investments in an aggregate amount (each such Investment being valued at the
amount determined therefor at the date made net of any return of capital or sale proceeds actually
received in cash (which shall not exceed the cost of such Investment) in respect of such
Investment) not to exceed $150,000,000 at any time outstanding; provided further that the
Borrower shall not, nor shall it permit any Loan Party to, make an Investment that would otherwise
be permitted by this Section if, in the Borrower’s reasonable business judgment (taking into
account, among other things, the likelihood that the Borrower or any other Loan Party would be
required to make a cash payment in respect of such Investment as well as alternate sources of cash
(other than proceeds from Borrowings hereunder) that are reasonably likely to be available for the
funding of such Investment at the time a cash payment in respect of such Investment would become
due), such Investment (when taken together with each other Investment made pursuant to this Section
6.04, excluding clauses (a) through (j) of this Section 6.04) would result in Excess Availability
being less than $50,000,000 (after giving effect to any cash payments, and any Borrowings
hereunder, made (or to be made) in connection with such Investments). Notwithstanding the
foregoing, the following Investments shall be deemed not to be covered or restricted by this
Section:




     (a) Investments existing on the Restatement Effective Date and set forth on
Schedule 6.04 and Permitted Investments;



60









 






     (b) payroll, travel and similar advances to cover matters that are expected at the
time of such advances ultimately to be treated as expenses of the Borrower or any Subsidiary
for accounting purposes and that are made in the ordinary course of business;




     (c) Investments received in connection with the bankruptcy or reorganization of, or
settlement of delinquent accounts and disputes with, customers and suppliers, in each case
in the ordinary course of business;




     (d) Investments in the form of Swap Agreements permitted by Section 6.06;




     (e) Investments of any Person existing at the time such Person becomes a Subsidiary or
consolidates or merges with the Borrower or any Subsidiary so long as such Investments were
not made in contemplation of such Person becoming a Subsidiary or of such consolidation or
merger;




     (f) Investments resulting from pledges or deposits described in clause (c) or (d) of
the definition of the term “Permitted Encumbrance”;




     (g) Investments received in connection with the disposition of any asset permitted by
Section 6.03(c);




     (h) receivables or other trade payables owing to the Borrower or a Subsidiary if
created or acquired in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms, provided that such trade terms may include such
concessionary trade terms as the Borrower or any Subsidiary deems reasonable under the
circumstances;




     (i) Investments in or to any Loan Party; and




     (j) Investments to the extent funded with the proceeds of any substantially concurrent
issuance of Qualified Equity Interests to the extent that such issuance does not result in a
Change in Control.



          SECTION 6.05. Sale and Leaseback Transactions. Neither the Borrower nor any of the
Subsidiaries shall become liable, directly or by way of a Guarantee, with respect to any lease,
whether or not such lease results in a Capital Lease Obligation, of any property (whether real or
personal or mixed) whether now owned or hereafter acquired, that the Borrower or any Subsidiary has
sold or transferred or is to sell or transfer to any other Person after the Effective Date (a
“Sale and Leaseback Transaction”), provided that the Borrower or a Subsidiary may
enter into a Sale and Leaseback Transaction if (a) at the time of such Sale and Leaseback
Transaction, no Event of Default is continuing, (b) the proceeds from the sale of the subject
property shall be at least equal to 80% of its fair market value and (c) if such Sale and Leaseback
Transaction results in a Capital Lease Obligation, such Capital Lease Obligation is not prohibited
by Section 6.01 and any Lien made the subject of such Capital Lease Obligation is not prohibited by
Section 6.02.



          SECTION 6.06. Swap Agreements. The Borrower will not, and will not permit any
Subsidiary to, enter into any Swap Agreement for speculative purposes.



          SECTION 6.07. Restricted Payments. (a) The Borrower will not, and will not permit
any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted
Payment, or incur any obligation (contingent or otherwise) to do so, if (i) a Default has occurred
and is continuing or would result therefrom or (ii) such Restricted Payment is not at the time
permitted by a Requirement of Law or any agreement or instrument applicable to the Borrower or such
Subsidiary, provided that this paragraph (a) shall not restrict dividends or similar
distributions payable solely in



61









 




Qualified Equity Interests or made by Subsidiaries to wholly-owned Subsidiaries or to the
Borrower (it being understood that this proviso shall not permit any such dividend or similar
distribution (A) from a Domestic Subsidiary to a Foreign Subsidiary or (B) in the case of any such
dividend or distribution comprised of Collateral, from a Collateral Party to an entity that is not
a Collateral Party).




          (b) Notwithstanding anything in Section 6.07(a) to the contrary, the aggregate amount of
Restricted Payments permitted to be made (or with respect to which obligations (contingent or
otherwise) to do so are permitted to be incurred) by the Borrower and the Subsidiaries pursuant to
this Section 6.07 (excluding any Restricted Payments made (or with respect to which obligations
(contingent or otherwise) to do so have been entered into) by the Borrower or any Subsidiary at
any time when (x) Excess Availability at such time is equal to or greater than the Threshold
Amount, (y) the Fixed Charge Coverage Ratio at such time, determined for the period of four
consecutive fiscal quarters most recently ended at or prior to such time, is equal to or greater
than 1.10 to 1.00 and (z) no Default or Event of Default has occurred and is continuing) shall not
exceed (i) $25,000,000 in any calendar year and (ii) $50,000,000 in the aggregate for the term of
this Agreement, provided that this paragraph (b) shall not restrict dividends or similar
distributions payable solely in Qualified Equity Interests or made by Subsidiaries to wholly-owned
Subsidiaries or to the Borrower (it being understood that this proviso shall not permit any such
dividend or similar distribution (A) from a Domestic Subsidiary to a Foreign Subsidiary or (B) in
the case of any such dividend or distribution comprised of Collateral, from a Collateral Party to
an entity that is not a Collateral Party).



          SECTION 6.08. Transactions with Affiliates. The Borrower shall not, and shall not
suffer or permit any Material Subsidiary to, enter into any transaction with any Affiliate (other
than the Borrower or a wholly-owned Subsidiary) of the Borrower, except transactions (a) entered
into in good faith and (b) at prices and on terms and conditions not less favorable to the Borrower
or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties.



          SECTION 6.09. Restrictive Agreements. The Borrower will not, and will not permit any
Material Subsidiary to, directly or indirectly, enter into, incur or permit to exist any agreement
or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the
Borrower or any Material Subsidiary to create, incur or permit to exist any Lien upon any of its
property or assets or (b) the ability of any Material Subsidiary to pay dividends or other
distributions with respect to any of its Equity Interests or to make or repay loans or advances to
the Borrower or any other Subsidiary or to Guarantee Indebtedness of the Borrower or any other
Subsidiary, provided that (i) the foregoing shall not apply to restrictions and conditions
imposed by (A) law or (B) any Loan Document, (ii) the foregoing shall not apply to restrictions or
conditions existing on the Effective Date and identified on Schedule 6.09 (but shall apply
to any extension or renewal of, or any amendment, modification or replacement expanding the scope
of, any such restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a Subsidiary or any
assets pending such sale, provided that such restrictions and conditions apply only to the
Subsidiary or assets that is or are to be sold and such sale is permitted hereunder, (iv) paragraph
(a) of the foregoing shall not apply to restrictions or conditions imposed by any agreement
relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness, (v) paragraph (a) of the foregoing
shall not apply to customary provisions in leases and other contracts restricting the assignment
thereof, (vi) paragraph (a) of the foregoing shall not apply to any existing or future joint
venture agreement that restricts the ability of any party to such agreement to create, incur or
permit a Lien on the equity interests in the joint venture, provided that the Borrower and
any Material Subsidiary party to such agreement collectively own no more than 81 percent of the
equity interests in such joint venture and (vii) paragraph (a) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement if the terms of such agreement expressly permit
the creation, incurrence and existence of Liens to secure Indebtedness or other Secured Obligations
under this



62









 




Agreement and extensions, renewals and replacements of any such Indebtedness or other Secured
Obligations.




          SECTION 6.10. Amendment of Material Documents. The Borrower will not, and will not
permit any Subsidiary to, amend, modify, waive, terminate or release its certificate of
incorporation, by-laws or other organizational documents, if the effect of such amendment,
modification, waiver, termination or release is materially adverse to the Borrower and the
Subsidiaries, taken as a whole, or the Lenders.



          SECTION 6.11. Changes in Fiscal Periods. Without the prior consent of the
Administrative Agent, the Borrower will neither (a) permit its fiscal year or the fiscal year of
any Subsidiary to end on a day other than December 31, nor (b) change its method of determining
fiscal quarters.



          SECTION 6.12. Fixed Charge Coverage Ratio. If, at any time, Excess Availability is
less than the greater of (a) $50,000,000 and (b) 15% of the aggregate Revolving Commitments at such
time, then the Borrower will not permit the Fixed Charge Coverage Ratio at such time, determined
for the period of four consecutive fiscal quarters most recently ended at or prior to such time, to
be less than 1.10 to 1.00.



ARTICLE VII




Events of Default



          If any of the following events (any such event, an “Event of Default”) shall occur:




     (a) the Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;




     (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in paragraph (a) of this Article) payable under any
Loan Document, when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five Business Days;




     (c) any representation or warranty made or deemed made by or on behalf of the Borrower
or any Material Subsidiary in or in connection with the Existing Credit Agreement (to the
extent made prior to the Restatement Effective Date and not waived), any Loan Document or
any amendment or modification thereof or waiver thereunder, or in any report, certificate,
financial statement or other document furnished pursuant to or in connection with any Loan
Document or any amendment or modification thereof or waiver thereunder that is qualified by
materiality shall prove to have been incorrect or any representation or warranty that is not
so qualified shall prove to have been incorrect in any material respect when made or deemed
made;




     (d) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02, 5.03 (with respect to the existence of the Borrower) or 5.09 or
in Article VI of this Agreement or any Collateral Party shall fail to observe or perform any
covenant, condition or agreement contained in Section 4.01(j) or Article VII, in each case
of the Security Agreement; provided, however, that, without limiting the
effect of any other Default or Event of Default under this Article VII, any Default arising
under Section 5.02 (or any Default arising under a failure of the conditions set forth in
Section 4.02 arising solely as a result of a



63









 






failure to comply with Section 5.02) shall be deemed to be cured upon the giving of
such notice by the Borrower;




     (e) the Borrower or any other Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in any Loan Document (other than those specified
in paragraph (a), (b) or (d) of this Article), and, except as otherwise provided in such
Loan Document, such failure shall continue unremedied for a period of 30 days after notice
thereof from any Lender or the Administrative Agent to the Borrower;




     (f) the Borrower or any Subsidiary shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material Indebtedness,
when and as the same shall become due and payable after the expiration of any applicable
grace periods;




     (g) any event or condition occurs (including the triggering of any change in control
or similar event with respect to the Borrower) (i) that results in any Material Indebtedness
becoming due prior to its scheduled maturity or that enables or permits (with all applicable
grace periods having expired, provided that, during the applicable grace period, no
additional consideration is paid or additional rights are granted in respect of such
Material Indebtedness) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become due or to require
the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity or (ii) the effect of which event or condition is to cause, or to permit the holder
or holders of any Material Indebtedness (or a trustee or agent on behalf of such holder or
holders) to require, with the giving of notice if required, any Material Indebtedness to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), prior to its stated
maturity, provided that this paragraph (g) shall not apply to secured Indebtedness
that becomes due as a result of the sale, transfer or other disposition (including as a
result of a casualty or condemnation event) of the property or assets securing such
Indebtedness (to the extent such sale, transfer or other disposition is not prohibited under
this Agreement);




     (h) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or
any Material Subsidiary or their debts, or of a substantial part of their assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Material Subsidiary or for a
substantial part of their assets, and, in any such case, such proceeding or petition shall
continue undismissed or unstayed for 60 days or an order or decree approving or ordering any
of the foregoing shall be entered;




     (i) the Borrower or any Material Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other relief under
any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in paragraph (h) of this Article,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or
for a substantial part of their assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the purpose of effecting
any of the foregoing;




     (j) the Borrower or any Material Subsidiary shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;



64









 






     (k) one or more judgments for the payment of money in an aggregate amount in excess of
$50,000,000 shall be rendered against the Borrower, any Material Subsidiary or any
combination thereof (provided that in determining whether the foregoing threshold is
satisfied, there shall be excluded any portion of such judgments that is fully covered by a
third party insurance company rated not less that “B++” by A.M. Best (less any applicable
deductible) and as to which the insurer has not disputed, in writing, its responsibility to
cover such judgment) and the same shall remain unpaid or undischarged for a period of 30
consecutive days during which execution shall not be effectively stayed, or any action shall
be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or
any Material Subsidiary to enforce any such judgment;




     (l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders,
when taken together with all other ERISA Events that have occurred, could reasonably be
expected to have a Material Adverse Effect;




     (m) any Loan Document shall for any reason be asserted by the Borrower not to be a
legal, valid and binding obligation of the Borrower;




     (n) a Change in Control shall occur;




     (o) the Guarantee Agreement shall fail to remain in full force or effect or any action
shall be taken by any Loan Party to discontinue or to assert the invalidity or
unenforceability of the Guarantee Agreement, or any Loan Party shall deny that it has any
further liability under the Guarantee Agreement to which it is a party, or shall give notice
to such effect; or




     (p) any Collateral Document shall for any reason fail to create a valid and perfected
first priority security interest in any Collateral purported to be covered thereby, except
as permitted by the terms of any Collateral Document, or any Collateral Document shall fail
to remain in full force or effect or any action shall be taken to discontinue or to assert
the invalidity or unenforceability of any Collateral Document,


then, and in every such event (other than an event with respect to the Borrower described in
paragraph (h) or (i) of this Article), and at any time thereafter during the continuance of such
event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to
the Borrower, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become
due and payable immediately, without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower; and in case of any event with respect to the Borrower
described in paragraph (h) or (i) of this Article, the Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower.







65









 








ARTICLE VIII




The Administrative Agent



          Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on its behalf, including
execution of the other Loan Documents, and to exercise such powers as are delegated to the
Administrative Agent by the terms of the Loan Documents, together with such actions and powers as
are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the
Administrative Agent, the Lenders and the Issuing Bank, and the Borrower shall not have rights as a
third party beneficiary of any of such provisions.



          The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.



          The Administrative Agent shall not have any duties or obligations except those expressly set
forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary or believed by the Administrative Agent in good
faith to be necessary under the circumstances as provided in Section 2.05(j) or Section 9.02), and
(c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have
any duty to disclose, and shall not be liable for the failure to disclose, any information relating
to the Borrower or any Subsidiary that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not
be liable for any action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 2.05(j) or Section 9.02 or believed by the Administrative
Agent in good faith to be necessary) or in the absence of its own gross negligence or wilful
misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender,
and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with any Loan Document,
(ii) the contents of any certificate, report or other document delivered thereunder or in
connection therewith, (iii) the performance or observance of any of the covenants, agreements or
other terms or conditions set forth in any Loan Document or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the
existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or
elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.



          The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Adobe pdf file, Internet or intranet website posting or
other distribution) believed by it to be genuine and to have been signed or sent or otherwise
authenticated by the proper Person. The Administrative Agent also may rely upon any statement made
to it orally or by



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telephone and believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be
counsel for the Loan Parties), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.




          The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by the Administrative Agent, provided
that the Administrative Agent shall remain liable for the performance of such obligations and
duties. The Administrative Agent and any such sub-agent may perform any and all its duties and
exercise its rights and powers by or through their respective Related Parties, provided
that the Administrative Agent shall remain liable for the performance of such obligations and
duties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent.



          In determining compliance with any condition hereunder to the making of a Loan, or the
issuance, amendment, renewal or extension of a Letter of Credit, that by its terms must be
fulfilled to the satisfaction of a Lender or the Issuing Bank, the Administrative Agent may presume
that such condition is satisfactory to such Lender or the Issuing Bank unless the Administrative
Agent shall have received notice to the contrary from such Lender or the Issuing Bank prior to the
making of such Loan or the issuance, amendment, renewal or extension of such Letter of Credit.



          Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time upon notice to the Lenders, the
Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the
right, with the consent of the Borrower in the absence of a continuing Event of Default, to appoint
a successor. If no successor shall have been so appointed by the Borrower and the Required Lenders
and shall have accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent that shall be a commercial
bank with an office in New York, New York, or an Affiliate of any such commercial bank, in either
case, acceptable to the Borrower in the absence of a continuing Event of Default (such acceptance
not to be unreasonably withheld or delayed). Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from all its duties and obligations under the
Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the
same as those payable to its predecessor unless otherwise agreed in writing between the Borrower
and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this
Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.



          Each Lender and the Issuing Bank acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender and the Issuing Bank also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon any Loan Document or any related agreement or any document furnished thereunder.



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          Notwithstanding anything herein to the contrary, none of the agents listed on the cover page
hereof shall have any powers, duties or responsibilities under any Loan Document, except in its
capacity, as applicable, as the Administrative Agent, a Lender or the Issuing Bank hereunder.



          Each Lender hereby agrees that (a) it has requested a copy of each Report prepared by or on
behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or
warranty, express or implied, as to the completeness or accuracy of any Report or any of the
information contained therein or any inaccuracy or omission contained in or relating to a Report
and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not
comprehensive audits or examinations, and that any Person performing any field examination will
inspect only specific information regarding the Loan Parties and will rely significantly upon the
Loan Parties’ books and records, as well as on representations of the Loan Parties’ personnel and
that the Administrative Agent undertakes no obligation to update, correct or supplement the
Reports; (d) it will keep all Reports confidential and strictly for its internal use, not share the
Report with any Loan Party or any other Person except as otherwise permitted pursuant to this
Agreement; and (e) without limiting the generality of any other indemnification provision contained
in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative
Agent and any such other Person preparing a Report harmless from and against, the claims, actions,
proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees)
incurred by such Person as the direct or indirect result of disclosure of any such Report to a
third party by such indemnifying Lender in violation of the terms hereof.



ARTICLE IX




Miscellaneous



          SECTION 9.01. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy or Adobe pdf file, as follows:



               (i) if to the Borrower or any Loan Party, to the Borrower at:


550 West Adams Street

Chicago, IL 60661

Attention: Vice President and Treasurer

Telecopy No.: (312) 672-3883



with a copy to:



Corporate Secretary

Telecopy No.: (312) 672-7748;




               (ii) if to the Administrative Agent, the Issuing Bank or the Swingline Lender, to:


JPMorgan Chase Bank, N.A.

1111 Fannin, 10th Floor

Houston, Texas 77002

Attention: Marshella B. Williams

Telecopy No.: (713) 427-6307

email: Marshella.B.Williams@chase.com




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with a copy to:





JPMorgan Chase Bank, N.A.

270 Park Avenue,

New York, NY 10017

Attention: Peter Predun

Telecopy No.: (212) 270-5100

email: peter.predun@jpmorgan.com; and





     (iii) if to any other Lender, to it at its address (or telecopy number) set
forth in its Administrative Questionnaire.


All such notices and other communications (i) sent by hand or overnight courier service, or mailed
by certified or registered mail, shall be deemed to have been given when received or (ii) sent by
telecopy or by Adobe pdf file shall be deemed to have been given when sent, provided that
if not given during normal business hours for the recipient, shall be deemed to have been given at
the opening of business on the next Business Day for the recipient.




          (b) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. Notices and other communications
to the Lenders and the Issuing Bank hereunder may also be delivered or furnished by electronic
communication (including e-mail, Adobe pdf file and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing shall not
apply to notices to any Lender or the Issuing Bank pursuant to Article II if such Lender or the
Issuing Bank, as applicable, has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication. The Administrative Agent or the
Borrower (on behalf of the Loan Parties) may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices or
communications. All notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date of receipt.



          SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent, the Issuing Bank or any Lender in exercising any right or power under any Loan Document
shall operate as a waiver thereof, 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. The rights and
remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of any Loan Document or consent to any departure by any
Loan Party therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or the issuance, amendment, renewal or extension of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default at the time.
No notice to or demand on the Borrower or any other Loan Party in any case shall entitle the
Borrower or any other Loan Party to any other or further notice or demand in similar or other
circumstances.



          (b) Except as provided in Section 2.19 with respect to any Revolving Commitment Increase,
neither any Loan Document nor any provision thereof may be waived, amended or modified except, in
the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the
Borrower and the Required Lenders or, in the case of any other Loan Document, pursuant to an



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agreement or agreements in writing entered into by the Administrative Agent and the
applicable Loan Parties, in each case with the consent of the Required Lenders, provided
that no such agreement shall (i) increase the Commitment of any Lender without the written consent
of such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate
of interest thereon, or reduce or forgive any fees payable hereunder, without the written consent
of each Lender affected thereby, (iii) postpone the maturity of any Loan, or the required date of
reimbursement of any LC Disbursement, or any date for the payment of any interest or fees payable
hereunder, or reduce or forgive the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.17(b) or (d) or any other provision of this Agreement in a
manner that would alter the pro rata sharing of payments required thereby, without
the written consent of each Lender adversely affected thereby, (v) change any of the provisions of
this Section or the percentage set forth in the definition of “Required Lenders” or any other
provision of any Loan Document specifying the number or percentage of Lenders required to waive,
amend or modify any rights thereunder or make any determination or grant any consent thereunder,
without the written consent of each Lender (it being understood that, with the consent of the
Required Lenders, additional extensions of credit pursuant to this Agreement may be included in
the determination of the Required Lenders on substantially the same basis as the Revolving
Commitments on the Restatement Effective Date), (vi) modify the protections afforded to an SPV
pursuant to the provisions of Section 9.04(e) without the written consent of such SPV, (vii)
release any material Loan Party from its Guarantee under the Guarantee Agreement (except as
expressly provided in the Guarantee Agreement), or limit its liability in respect of such
Guarantee, without the written consent of each Lender, (viii) release all or substantially all the
Collateral from the Liens of the Collateral Documents, without the written consent of each Lender
or (ix) change any of the provisions of the definitions of “Eligible Accounts”, “Eligible
Inventory” or “Borrowing Base” (including the advance rates referenced therein and any defined
term used therein relevant to the determination of the Borrowing Base), without the written
consent of Lenders having Revolving Exposure and unused Revolving Commitments, if any,
representing more than 75% of the sum of the total Revolving Exposure and unused Revolving
Commitments at such time; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent, the Issuing Bank or the
Swingline Lender without the prior written consent of the Administrative Agent, the Issuing Bank
or the Swingline Lender, as the case may be.



          (c) In connection with any proposed amendment, modification, waiver or termination (a
“Proposed Change”) requiring the consent of all Lenders or all affected Lenders, if the
consent of the Required Lenders to such Proposed Change is obtained, but the consent to such
Proposed Change of other Lenders whose consent is required is not obtained (any such Lender whose
consent is not obtained as described in paragraph (b) of this Section being referred to as a
“Non-Consenting Lender”), then, so long as the Lender that is acting as Administrative
Agent is not a Non-Consenting Lender, the Borrower may, at its sole expense and effort, upon notice
to such Non-Consenting Lender and the Administrative Agent, require such Non-Consenting Lender to
assign and delegate, without recourse (in accordance with and subject to the restrictions contained
in Section 9.04), all its interests, rights and obligations under this Agreement to an assignee
that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that (i) the Borrower shall have received the prior written consent
of the Administrative Agent, the Issuing Bank and the Swingline Lender, which consent shall not
unreasonably be withheld or delayed, (ii) such Non-Consenting Lender shall have received payment of
an amount equal to the outstanding principal of its Loans and participations in LC Disbursements,
Swingline Loans and Overadvances, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Loan Parties (in the case of all other amounts) and (iii) the Loan
Parties or such assignee shall have paid to the Administrative Agent the processing and recordation
fee specified in Section 9.04(b).



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          SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i)
all reasonable out-of-pocket expenses (including reasonable expenses incurred in connection with
due diligence) incurred by the Administrative Agent and its Affiliates, including the reasonable
fees, charges and disbursements of counsel for the Administrative Agent, in connection with the
syndication of the credit facilities provided for herein, the preparation and administration of the
Loan Documents or any amendments, modifications or waivers of the provisions thereof (whether or
not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all
reasonable out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or any
Lender, including the fees, charges and disbursements of any counsel for the Administrative Agent,
the Issuing Bank or any Lender, in connection with the enforcement or protection of its rights in
connection with the Loan Documents, including its rights under this Section, or in connection with
the Loans made or Letters of Credit issued hereunder, including all such reasonable out-of-pocket
expenses incurred during any workout or restructuring (and related negotiations) in respect of
such Loans or Letters of Credit.



          (b) The Borrower shall indemnify the Administrative Agent, the Issuing Bank and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all out-of-pocket
losses, claims, damages, liabilities and related reasonable expenses, including the reasonable
fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee by any third party or by the Borrower or any Subsidiary arising out of, in
connection with, or as a result of (i) the execution or delivery of any Loan Document or any other
agreement or instrument contemplated thereby, the performance by the parties to the Loan Documents
of their respective obligations thereunder or the consummation of the Transactions or any other
transactions contemplated thereby, (ii) any Loan or Letter of Credit or the use of the proceeds
therefrom (including any refusal by the Issuing Bank to honor a demand for payment under a Letter
of Credit if the documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous
Materials on, at, to or from any property currently or formerly owned or operated by the Borrower
or any Subsidiary, or any other Environmental Liability related in any way to the Borrower or any
Subsidiary or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower or any Subsidiary and regardless of whether any
Indemnitee is a party thereto, provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses are determined by a court of competent jurisdiction by final, non-appealable judgment to
have resulted from the gross negligence or wilful misconduct of such Indemnitee.



          (c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this
Section and without limiting the Borrower’s obligation to do so, each Lender severally agrees to
pay to the Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may be,
such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent, the Issuing Bank or the
Swingline Lender in its capacity as such. The obligations of the Lenders under this paragraph (c)
are subject to the last sentence of Section 2.02(a) (which shall apply mutatis mutandis to the
Lenders’ obligations under this paragraph (c)).



          (d) To the fullest extent permitted by applicable law, the Borrower shall not assert, and
hereby waives, any claim against any Indemnitee, on any theory of liability, for special,
indirect,



71









 







consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, any Loan Document or any agreement or instrument contemplated
thereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.



          (e) All amounts due under this Section shall be payable not later than three Business Days
after written demand therefor setting forth the basis for such claim in reasonable detail.



          SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of
Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this Agreement.



          (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at the time owing to it)
with the prior written consent (such consent not to be unreasonably withheld or delayed) of (A)
the Borrower, provided that no consent of the Borrower shall be required for an assignment
to a Lender, an Affiliate of a Lender, an Approved Fund (as defined below) or, if an Event of
Default has occurred and is continuing, any other assignee; (B) the Administrative Agent; and (C)
the Issuing Bank.




     (ii) Assignments shall be subject to the following additional conditions: (A) except in
the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the
entire remaining amount of the assigning Lender’s Commitment or Loans, the amount of the
Commitment or Loans of the assigning Lender subject to each such assignment (determined as
of the trade date specified in the Assignment and Assumption with respect to such assignment
or, if no date is so specified, as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000
unless each of the Borrower and the Administrative Agent otherwise consent (such consent not
to be unreasonably withheld or delayed), provided that no such consent of the
Borrower shall be required if an Event of Default has occurred and is continuing; (B) each
partial assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement; (C) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee of $3,500, provided that
assignments made pursuant to Section 2.18(b) or Section 9.02(c) shall not require the
signature of the assigning Lender to become effective; and (D) the assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent any Tax forms required by Section
2.16(f) and an Administrative Questionnaire in which the assignee designates one or more
credit contacts to whom all syndicate-level information (which may contain material
non-public information about the Loan Parties and their Related Parties or their respective
securities) will be made available and who may receive such information in accordance with
the assignee’s compliance procedures and applicable laws, including Federal and state
securities laws.



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          For purposes of paragraph (b) of this Section, the term “Approved Fund” and “CLO” have the
following meanings:



          “Approved Fund” means (a) a CLO and (b) with respect to any Lender that is a fund that
invests in bank loans and similar extensions of credit, any other fund that invests in bank 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.



          “CLO” means an entity (whether a corporation, partnership, trust or otherwise) that is
engaged in making, purchasing, holding or otherwise investing in bank 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.




     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the
assignee thereunder shall be a party hereto and, to the extent of the interest assigned by
such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned
by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 9.03) and
to any fees payable hereunder that have accrued for such Lender’s account but have not yet
been paid Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 9.04 shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (c) of this Section.




     (iv) The Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices a copy of each Assignment and Assumption delivered to
it and a register for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent, the Issuing Bank
and the Lenders shall treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the Borrower, the
Issuing Bank and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.




     (v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire and
any Tax forms required by Section 2.16(f) (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of this Section
and any written consent to such assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Assumption and record the information
contained therein in the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this paragraph.




     (vi) The words “execution”, “signed”, “signature” and words of like import in any
Assignment and Assumption shall be deemed to include electronic signatures or the keeping of
records in electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based recordkeeping
system,



73









 






as the case may be, to the extent and as provided for in any applicable law, including
the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act or any other similar state laws based on the Uniform
Electronic Transactions Act.



          (c) (i) Any Lender may, without the consent of the Borrower, the Administrative Agent, the
Issuing Bank or the Swingline Lender, sell participations to one or more banks or other entities
(a “Participant”) in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to it),
provided that (A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrower, the Administrative Agent, the Issuing Bank and the other
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement.




     (ii) Any agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce the Loan Documents
and to approve any amendment, modification or waiver of any provision of the Loan
Documents, provided that such agreement or instrument may provide that such Lender
will not, without the consent of the Participant, agree to any amendment, modification or
waiver described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (c)(iii) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 (subject to the
requirements and limitations therein) to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section,
provided that such Participant shall be subject to Section 2.18 as though it were a
Lender. To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided that such Participant
shall be subject to Section 2.17(d) as though it were a Lender.




     (iii) A Participant shall not be entitled to receive any greater payment under Section
2.14, 2.15 or 2.16 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Borrower’s prior written consent. A Participant that
would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.16 unless the Borrower is notified of the participation sold to such Participant
and such Participant complies with Section 2.16(f) as though it were a Lender.



          (d) Any Lender may at any time, without the consent of the Borrower or the Administrative
Agent, pledge or assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest, provided that no such pledge or assignment of a
security interest shall release a Lender from any of its obligations hereunder or substitute any
such pledgee or assignee for such Lender as a party hereto.



          (e) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle (an “SPV”), identified as such
in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower,
the option to provide to the Borrower all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to the Borrower pursuant to this Agreement, provided that
(i) nothing herein shall constitute a commitment by any SPV to make any Loan and (ii) if an SPV
elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the
Granting Lender shall be obligated to make



74









 







such Loan pursuant to the terms hereof. The making of a Loan by an SPV hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made
by such Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for any
indemnity or similar payment obligation under this Agreement (all liability for which is hereby
assumed by and shall remain with the Granting Lender). In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPV, such party will not institute against,
or join any other person in instituting against, such SPV any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the U.S. or any State
thereof. In addition, notwithstanding anything to the contrary contained in this Section 9.04,
any SPV may (i) with notice to, but without the prior written consent of, the Borrower and the
Administrative Agent and without paying any processing fee therefor, assign all or a portion of
its interests in any Loans to the Granting Lender or to any financial institutions (consented to
by the Borrower and Administrative Agent) providing liquidity or credit support to or for the
account of such SPV to support the funding or maintenance of Loans and (ii) disclose on a
confidential basis any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to
such SPV.



          SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Borrower and the Loan Parties in the Loan Documents and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement or any other Loan Document
shall be considered to have been relied upon by the other parties hereto and shall survive the
execution and delivery of the Loan Documents and the making of any Loans and the issuance of any
Letters of Credit, regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent, the Issuing Bank or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at the time any credit
is extended hereunder, and shall continue in full force and effect as long as the principal of or
any accrued interest on any Loan or any fee or any other Obligation (as distinguished from the
Secured Obligations) under this Agreement is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Revolving Commitments have not expired or terminated. The
provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive and remain in full
force and effect regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments
or the termination of this Agreement or any provision hereof.



          SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement, the other Loan Documents and any separate letter agreements with respect
to fees payable to the Administrative Agent or the syndication of the Loans and Commitments
constitute the entire contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective
when it shall have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery of an executed counterpart of
a signature page of this Agreement by telecopy or by Adobe pdf file shall be effective as delivery
of a manually executed counterpart of this Agreement.



          SECTION 9.07. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the




75











 




remaining provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.




          SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender, the Issuing Bank and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional or final, in
whatever currency) at any time held and other obligations (in whatever currency) at any time owing
by such Lender, the Issuing Bank or any such Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter existing under
this Agreement held by such Lender or the Issuing Bank, irrespective of whether or not such Lender
or the Issuing Bank shall have made any demand under this Agreement and although such obligations
may be unmatured or are owed to a branch or office of such Lender or the Issuing Bank different
from the branch or office holding such deposit or obligated on such Indebtedness. The applicable
Lender and the Issuing Bank shall notify the Borrower and the Administrative Agent of such setoff
and application, provided that any failure to give or any delay in giving such notice shall
not affect the validity of any such setoff and application under this Section. The rights of each
Lender, the Issuing Bank and their respective Affiliates under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Lender, the Issuing Bank and
their respective Affiliates may have.




          SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the law of the State of New York.




          (b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in
New York County and of the U.S. District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to any
Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.




          (c) Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to any Loan Document
in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such court.




          (d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in any Loan Document will affect the right of any
party to this Agreement to serve process in any other manner permitted by law.




          SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,


76









 







THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.




          SECTION 9.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.




          SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Issuing Bank
and the Lenders agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates’ directors, officers,
employees and agents, including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with
the exercise of any remedies hereunder or any suit, action or proceeding relating to any Loan
Document or the enforcement of rights thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any Swap Agreement relating to
the Loan Parties and their obligations under the Loan Documents, (g) with the consent of the
Borrower or (h) to the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the Administrative Agent, the
Issuing Bank or any Lender on a nonconfidential basis from a source other than a Loan Party. For
the purposes of this Section, “Information” means all information received from a Loan
Party and/or its Related Parties or representatives relating to any Loan Party, its Subsidiaries or
their respective businesses, other than any such information that is available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis prior to disclosure
by any Loan Party and/or its Related Parties or representatives, provided that, in the case
of information received from the Borrower and/or its Related Parties or any Subsidiary after the
Effective Date, such information is clearly identified at the time of delivery as confidential.
Any Person required to maintain the confidentiality of Information as provided in this Section
shall be considered to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such Person would accord
to its own confidential information.




          (b) Each Lender acknowledges that information as defined in Section 9.12(a) furnished to it
pursuant to this Agreement may include material non-public Information concerning the Loan Parties
and their Related Parties or their respective securities, and confirms that it has developed
compliance procedures regarding the use of material non-public Information and that it will handle
such material non-public Information in accordance with those procedures, applicable law, including
Federal and state securities laws, and the terms hereof.




          (c) All information, including waivers and amendments, furnished by the Loan Parties, their
Related Parties or representatives or the Administrative Agent pursuant to, or in the course of
administering, this Agreement will be syndicate-level information, which may contain material
non-public Information about the Loan Parties and their Related Parties or their respective
securities and its securities. Accordingly, each Lender represents to the Borrower (on behalf of
the Loan Parties) and the Administrative Agent that it has identified in its Administrative
Questionnaire a credit contact who may
receive Information that may contain material non-public Information in accordance with its
compliance procedures, applicable law and the terms hereof.





77









 








          SECTION 9.13. USA PATRIOT Act. Each Lender that is subject to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”) hereby notifies the Borrower that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies the Loan Parties, which
information includes the names and addresses of the Loan Parties and other information that will
allow such Lender to identify the Borrower in accordance with the Act.




          SECTION 9.14. Disclosure. The Borrower and each Lender hereby acknowledges and
agrees that the Administrative Agent and/or its Affiliates from time to time may hold investments
in, make other loans to or have other relationships with any of the Loan Parties and their
respective Affiliates.




          SECTION 9.15. Appointment for Perfection. Each Lender hereby appoints each other
Lender as its agent for the purpose of perfecting Liens, for the benefit of the Administrative
Agent and the Lenders, in assets which, in accordance with Article 9 of the UCC or any other
applicable law, can be perfected only by possession. Should any Lender (other than the Lender
serving hereunder as the Administrative Agent) obtain possession of any such Collateral, such
Lender shall notify the Administrative Agent thereof, and, promptly upon the Administrative Agent’s
request therefor shall deliver such Collateral to the Administrative Agent or otherwise deal with
such Collateral in accordance with the Administrative Agent’s instructions.




          SECTION 9.16. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan or participation in any LC
Disbursement, together with all fees, charges and other amounts that are treated as interest on
such Loan or LC Disbursement or participation therein under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) that may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan or LC
Disbursement or participation therein in accordance with applicable law, the rate of interest
payable in respect of such Loan or LC Disbursement or participation therein hereunder, together
with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the
extent lawful, the interest and Charges that would have been payable in respect of such Loan or LC
Disbursement or participation therein but were not payable as a result of the operation of this
Section shall be cumulated and the interest and Charges payable to such Lender in respect of other
Loans or LC Disbursements or participation therein or periods shall be increased (but not above the
Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal
Funds Effective Rate to the date of repayment, shall have been received by such Lender.




          SECTION 9.17. Existing Credit Agreement; Effectiveness of Amendment and Restatement.
Until this Agreement becomes effective in accordance with the terms of the Amendment and
Restatement Agreement, the Existing Credit Agreement shall remain in full force and effect and
shall not be affected hereby. After the Restatement Effective Date, all obligations of the
Borrower under the Existing Credit Agreement shall become obligations of the Borrower hereunder and
the provisions of the Existing Credit Agreement shall be superseded by the provisions hereof.





78











 





SCHEDULE 1.01(a)




Existing Letters of Credit



	 	 	 	 	 	 	 
	ID NUMBER	 	BENEFICIARY	 	PURPOSE	 	AMOUNT
	***
	 	 	 	 	 	 
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***






 




			
	*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION***





 









 






	 	 	 	 	 	 	 
	ID NUMBER	 	BENEFICIARY	 	PURPOSE	 	AMOUNT
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***
	***
	 	 	 	 	 	***
	 
	***
	 	 	 	 	 	 
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***
	***
	 	***	 	***	 	***
	***
	 	 	 	 	 	***
	 
	TOTAL LCS
	 	 	 	 	 	***








 




			
	*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION***




 









 










SCHEDULE 1.01(b)




USG CORPORATION

STATEMENT OF INVESTMENT OBJECTIVE AND GUIDELINES



INVESTMENT OBJECTIVE:



The investment objective of the Portfolio is to seek to maximize total return (or after-tax
total return adjusted
for Federal taxes) to the extent consistent with the preservation of capital, maintenance of
liquidity and the
investment guidelines set forth below:




INVESTMENT GUIDELINES:



1. Eligible Investments:





a. Obligations issued or guaranteed by the U.S. Government, its agencies and
custodial receipts with
respect thereto for collateral purposes.




b. Obligations of domestic or foreign commercial banks (or branches thereof where
deposits with
branches are general obligations of the parent bank) and bank holding companies, including,
but not
limited to, commercial paper, bankers’ acceptances, certificates of deposit, time deposits,
notes and
bonds.




c. Obligations of domestic or foreign corporations, including, but not limited to,
commercial paper, notes,
bonds and debentures.




d. Obligations issued by any state or political subdivision of the U.S. (including
the District of Columbia and
any possession of the United States).




e. Mortgage and other asset backed securities.




f. U.S. dollar denominated money market funds.




g. Overnight sweep accounts.




h. Repurchase agreements with counterparties listed in (1) or (2) below
collateralized fully by investments
described in paragraph a. above which have a market value, including accrued interest, of at
least 102%
of the amount invested in the repurchase agreement.




1) Banks in the credit facility which are approved for investment at the time of
purchase; and




2) Broker-dealers which are approved as repurchase agreement counterparties by the
Treasurer and
CFO of USG.




i. In the case of any investment under a. through h. above:




1) All investments shall be denominated in U.S. dollars; and




2) Investments may include fixed and floating rate instruments.


2. Credit Quality:





a. With respect to commercial paper and other short-term obligations, money market
funds, investments
and reinvestments shall be limited to obligations rated (or issued by an issuer that has been
rated) at the
time of purchase in one of the two highest rating categories (within which there may be
sub-categories
or gradations indicating relative standing) by one or more nationally recognized statistical
rating organizations
(“NRSRSOs”).




b. With respect to bonds and other long-term obligations, investment and reinvestment shall
be limited to
obligations rated at the time of purchase in one of the two highest rating categories (within
which there



 









 






may be subcategories or gradations indicating relative standing) by the NRSROs.


3. Diversification:





a. Except for obligations issued or guaranteed by the U.S. government, its agencies or
instrumentalities,
money market funds, and repurchase agreements collateralized fully by such obligations, a
maximum of
10% of the value of the total assets of the Portfolio may be invested in securities of any
one issuer.




b. A maximum of 20% of the value of the total assets of the Portfolio may be invested in
repurchase
agreements with one counterparty.




c. A maximum of 30% may be invested in any single money market fund, except when:




	 	•	 	USG’s investable cash is below $50,000,000, or
	 
	 	•	 	USG has 3 or fewer approved money market funds






d. Compliance with the diversification requirements of these guidelines shall be determined
on the basis of
values immediately after the acquisition of any security.



4. Maturity/Liquidity:



All securities held in the Portfolio must have a duration of less than two years. At no time
will the portfolio
weighted average duration exceed 180 days.




5. Review and Performance:



For purposes of evaluating performance, the relevant standards will be the iMoneyNet taxable
money market
fund average.





 











 





Schedule 1.01 ( c )

to Credit Agreement




USG Corporation

Schedule of Borrowing Base Supplemtal Documents

Documents to be Submitted to the Administrative Agent




The following information is to be submitted, pursuant to Section 5.01 of the Credit Agreement, for USG Corporation as noted below:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Semi-Annually	 	 
	 	 	 	 	Monthly Reporting: Due	 	(per the terms of	 	Weekly Reporting:
	 	 	 	 	within Fifteen (15)	 	the Credit	 	Due within Three (3)
	 	 	Reporting Frequency	 	Business Days	 	Agreement)	 	Business Days
	 	 	Borrowing Base Certificate in the form of Exhibit .
	 	X	 	 	 	X
	 	 	 
	 	 	 	 	 	 
	 	 	Accounts Receivable Supporting Documents:
	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 
	1.	 	Accounts receivable summary aging aged by invoice date or due date, as
applicable, by operating division in an electronic format suitable to the
Administrative Agent
	 	X	 	 	 	X
	 	 	 
	 	 	 	 	 	 
	2.	 	Accounts receivable rollforward by operating division in a format suitable to
the Administrative Agent
	 	X	 	 	 	
	 	 	 
	 	 	 	 	 	 
	3.	 	Top 10 accounts receivable balances aged per the most recent summary aging by
operating division
	 	X	 	 	 	
	 	 	 
	 	 	 	 	 	 
	4.	 	Reconciliation of A/R aging report to the general ledger and financial
statements by operating division
	 	X	 	 	 	
	 	 	 
	 	 	 	 	 	 
	5.	 	Top 10 Sales Concentration for Prior Twelve months by operating division
	 	X	 	 	 	
	 	 	 
	 	 	 	 	 	 
	6.	 	Supporting documentation (system generated extract report where applicable) for
the A/R ineligibles/ reserves reported on the Borrowing Base Certificate by
operating division
	 	X	 	 	 	X
	 	 	 
	 	 	 	 	 	 
	7.	 	U.S. updated customer list by operating division
	 		 	X	 	 
	 	 	 
	 	 	 	 	 	 
	 	 	Inventory Supporting Documents:
	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 
	1.	 	An inventory perpetual report and schedules detailing each operating division’s
inventory, in a form satisfactory to the Administrative Agent, (i) by
summarized locations, (ii) by department, (iii) by volume on hand and (iv)
other schedules as reasonably requested
	 	X	 	 	 	
	 	 	 
	 	 	 	 	 	 
	2	 	Gross margin and turnover by product segment by operating division
	 	X	 	 	 	 
	 	 	 
	 	 	 	 	 	 
	3	 	Reconciliation of perpetual inventory reports to the general ledger and
financial statements by operating division
	 	X	 	 	 	 
	 	 	 
	 	 	 	 	 	 
	4	 	Schedule of monthly rent or unpaid fees related to leased or unowned locations
(eg: outside processors, third party warehouses or other locations for which
landlord waivers or bailee letters have not been received)
	 	X	 	 	 	 
	 	 	 
	 	 	 	 	 	 
	5	 	Inventory value stated at cost by location for each operating division
	 	X	 	 	 	 
	 	 	 
	 	 	 	 	 	 
	6	 	Supporting documentation (system generated extract report where applicable) for
the inventory ineligibles/ reserves reported on the Borrowing Base Certificate
by operating division
	 	X	 	 	 	X
	 	 	 
	 	 	 	 	 	 
	 	 	Other Supporting Documents:
	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 
	1.	 	Accounts payable summary aging by vendor and by operating division in a format
suitable to the Administrative Agent
	 	X	 	 	 	
	 	 	 
	 	 	 	 	 	 
	2.	 	Top 10 accounts payable vendor balances by aging category and operating division
	 	X	 	 	 	
	 	 	 
	 	 	 	 	 	 
	3.	 	Year-to-date top 10 purchases concentration by vendor and operating division
	 	X	 	 	 	
	 	 	 
	 	 	 	 	 	 
	4.	 	Reconciliation of A/P aging to general ledger and financial statements per
operating division
	 	X	 	 	 	
	 	 	 
	 	 	 	 	 	 
	5.	 	Cash and Cash Equivalents Balance
	 		 	 	 	X






Submit to: 



JPMorgan Chase Bank, N.A.

CBC Structuring & Portfolio Group

Attn: Asita H. Mamlatdarna

270 Park Avenue, 44th Floor

New York, NY 10017

Phone: (212) 270 — 0287

Fax: (646) 534 — 2288

E-Mail: asita.h.mamlatdarna@jpmchase.com




 









 





Schedule 2.01




	 	 	 	 	 
	Institution	 	Commitment	 
	Bank of America, N.A.
	 	$	97,826,086.95	 
	JPMorgan Chase Bank, N.A.
	 	 	55,217,391.29	 
	Citigroup USA, Inc.
	 	 	48,913,043.48	 
	Goldman Sachs Credit Partners, L.P.
	 	 	35,117,056.85	 
	The Royal Bank of Scotland PLC
	 	 	32,608,695.65	 
	Bank of Montreal, Chicago Branch
	 	 	21,739,130.44	 
	Calyon
	 	 	21,739,130.44	 
	Fifth Third Bank
	 	 	21,739,130.44	 
	The Northern Trust Company
	 	 	21,739,130.44	 
	Sumitomo Mitsui Banking Corporation
	 	 	21,739,130.44	 
	Wells Fargo Bank, N.A.
	 	 	21,739,130.44	 
	Mizuho Corporate Bank, Ltd.
	 	 	19,230,769.23	 
	Bank of Tokyo — Mitsubishi UFJ, Ltd.
	 	 	10,869,565.22	 
	Morgan Stanley Bank, N.A.
	 	 	10,869,565.22	 
	PNC Bank, National Association
	 	 	10,869,565.22	 
	Union Bank of California
	 	 	10,869,565.22	 
	U.S. Bank National Association
	 	 	10,869,565.22	 
	Natexis Banques Populaires
	 	 	8,913,043.47	 
	The Bank of Nova Scotia
	 	 	8,695,652.17	 
	Commerzbank AG
	 	 	8,695,652.17	 
	 
	 	 	 
	 
	 	 	 	 
	Total
	 	$	500,000,000.00	 
	 
	 	 	 






 









 






Schedule 3.06

Disclosed Matters




The inclusion of the following information in this Schedule 3.06 shall not constitute an admission
of liability with respect to any such matter or that any such matter will have, or could reasonably
be expected to have, a Material Adverse Effect.




We are named as defendants in litigation arising from our operations, including claims and
lawsuits arising from the operation of our vehicles, product warranties, personal injury and
commercial disputes. We have also been notified by state and federal environmental protection
agencies of possible involvement as one of numerous “potentially responsible parties” in a number
of so-called “Superfund” sites in the United States. As a potentially responsible party, we may be
responsible to pay for some part of the cleanup of hazardous waste at these sites. In most of these
sites, our involvement is expected to be minimal. In addition, we are involved in environmental
cleanups of other property that we own or owned. We believe that appropriate reserves have been
established for our potential liability in connection with these matters, taking into account the
probability of liability, whether our exposure can be reasonably estimated and, if so, our estimate
of our liability on the range of our liability. However, we continue to review our accruals as
additional information becomes available.




We do not expect the environmental or any other litigation matters involving USG to have a material
adverse effect upon our results of operations, financial position or cash flows.






 









 








Schedule 3.12

Insurance




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Expiration	 	 	 	 	 	 	 	 	 	 	 	 	 	Annual	 	 
	Date*	 	Insured	 	Coverage	 	Company	 	Broker	 	Limit	 	Deductible/SIR	 	Premium (US)	 	Policy Number
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & US Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & Foreign
Subsidiaries
except Canada
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	US Gypsum
	 	***	 	***	 	***	 	***	 	***	 	***	 	 
	***	 	USG & US Gypsum
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & GTL
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & CGC
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & GTL
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG (Including
Domestic and
Canadian
Subsidiaries)
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	C&G RR (Interiors)
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	Chicago, Central
and Pacific RR
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All US
Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	All Foreign
Subsidiaries
except Canada &
South America
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Domestic and
Canadian Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***







*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION***




 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Expiration	 	 	 	 	 	 	 	 	 	 	 	 	 	Annual	 	 
	Date*	 	Insured	 	Coverage	 	Company	 	Broker	 	Limit	 	Deductible/SIR	 	Premium (US)	 	Policy Number
	***	 	USG & US Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG, GTL & CGC
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG, GTL and USG
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & CGC
	 	***	 	***	 	***	 	 	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	Interiors
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
(Master Policy)
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG — Europe
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG — Malaysia
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG — Australia/NZ
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG — Mexico
	 	***	 	***	 	***	 	***	 	***	 	***	 	***







*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION***




 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Expiration	 	 	 	 	 	 	 	 	 	 	 	 	 	Annual	 	 
	Date*	 	Insured	 	Coverage	 	Company	 	Broker	 	Limit	 	Deductible/SIR	 	Premium (US)	 	Policy Number
	***	 	USG — U.S. Only
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG — Russia
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	 	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	 	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	 	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	 	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	 	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	 	 	***	 	***
	***	 	L & W
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	US Gypsum
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	US Gypsum
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	Interiors
	 	***	 	***	 	***	 	***	 	***	 	***	 	***






*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION***




 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Expiration	 	 	 	 	 	 	 	 	 	 	 	 	 	Annual	 	 
	Date*	 	Insured	 	Coverage	 	Company	 	Broker	 	Limit	 	Deductible/SIR	 	Premium (US)	 	Policy Number
	***	 	USG & All Subsidiaries
	 	***	 	***	 	***	 	***	 	***	 	***	 	***
	***	 	Beadex
	 	***	 	***	 	***	 	***	 	***	 	***	 	 
	***	 	CGC
	 	***	 	***	 	***	 	***	 	***	 	***	 	***








 




			
	•	 	All Policies are 1 year term with the exception of *** and ***. Premiums shown for the *** policies noted are full term premiums.
	 
	•	 	All Policies include Brokerage Fee and or Commission





*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION***





 











 





Schedule 6.01




Existing Indebtedness



	 	 	 	 	 	 	 
	Obligor(s)	 	Description of Indebtedness	 	Amount	 
	USG Corporation
	 	Industrial Revenue Bonds	 	 	 	 
	 
	 
	 	     Ohio Air Quality Development Authority	 	$	45,000,000	 
	 
	 	     Ohio Air Quality Development Authority	 	$	44,400,000	 
	 
	 	     Ohio Air Quality Development Authority	 	$	9,000,000	 
	 
	 	     City of East Chicago, Indiana	 	$	10,000,000	 
	 
	 	     City of East Chicago, Indiana	 	$	10,000,000	 
	 
	 	     Pennsylvania Economic Development Financing Authority	 	$	110,000,000	 
	 
	 	     Oregon Economic & Community Development Commission	 	$	11,000,000	 
	 
	CGC, Inc.
	 	Windsor & Hantsport Railroad Guaranty	CAN 	$ 	7,000,000	 
	 
	USG Deutschland GmbH
	 	Secured Credit Line Agreement with Commerzbank	 	€	8,600,000	 
	 
	 
	 	Indebtedness of the following Joint Venture entities has been guaranteed by indirect subsidiaries of USG Corporation	 	 	 	 
	 
	USG Middle East Ltd. (Saudi Arabia)
	 	Loans of Saudi-French Bank and Saudi Industrial Development Fund, guaranteed in proportion to
equity ownership (i.e. 45%) but limited to value of investment in USG Manufacturing Worldwide Ltd.	 	$	8,900,000	 
	 
	MRC Duracrete Ltd. (Japan)
	 	Loans of related party (MRC Finance Co., Ltd.) limited to total investment	<	$	 100,000	 






 









 






Schedule 6.02




Existing Liens




	1.	 	Mortgage on the land and buildings comprising the Viersen, Germany plant owned by USG
Deutschland GmbH securing obligation




 









 











Schedule 6.04




Existing Investments




	1.	 	Beltship Management Ltd., a joint venture — 50% owned by Gypsum
Transportation, Limited
	 
	2.	 	USG Middle East, Ltd., a joint venture — 45% owned by USG Manufacturing Worldwide,
Ltd.
	 
	3.	 	Donn South Africa (PTY) Ltd., a joint venture — 33% owned by USG Interiors
International, Inc.
	 
	4.	 	Knauf/USG Systems GmbH & Co. KG, a joint venture — 50% owned by USG
Ventures-Europe GmbH.
	 
	5.	 	Knauf-USG Verwaltungs GmbH, a joint venture — 50% owned by USG Ventures-Europe
GmbH.
	 
	6.	 	Knauf USG Building Systems ABEE, LLC — 99% owned by Knauf/USG Systems GmbH & Co.
KG.
	 
	7.	 	MRC Duracrete Co., Ltd. — 10% owned by Gypsum Engineering Company.
	 
	8.	 	STAR-USG Building Materials Co., Ltd. — 50% owned by USG China Lux S.ar.l.




 









 











Schedule 6.09




Existing Restrictions



The equity ownership of the Borrower or a Subsidiary in the following joint
venture entities is subject to provisions which either (1) provide the other parties
to the joint ventures with rights of first refusal or buy/sell rights with respect
to such equity ownership, or (2) prohibit using such equity ownership as security
for indebtedness:





	1.	 	Knauf/USG Systems GmbH & Co. KG and Knauf-USG Verwaltungs GmbH, its general
partner
	 
	2.	 	USG Middle East, Ltd. (Saudi Arabia)
	 
	3.	 	Donn South Africa (PTY) Ltd. (South Africa)
	 
	4.	 	MRC Duracrete Co., Ltd. (Japan)
	 
	5.	 	Beltship Management Limited (Bermuda)




 









 






EXHIBIT A




[FORM OF]




ASSIGNMENT AND ASSUMPTION


          This Assignment and Assumption (the “Assignment and Assumption”) is dated as of
the Effective Date set forth below and is entered into by and between [Insert name of Assignor]
(the “Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms
used but not defined herein shall have the meanings given to them in the Credit Agreement
identified below (as amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard
Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated
herein by reference and made a part of this Assignment and Assumption as if set forth herein in
full.


          For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including guarantees and swingline loans
included in such facilities) and (ii) to the extent permitted to be assigned under applicable law,
all claims, suits, causes of action and any other right of the Assignor (in its capacity as a
Lender) against any Person, whether known or unknown, arising under or in connection with the
Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan
transactions governed thereby or in any way based on or related to any of the foregoing, including
contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or
in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the
rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to
herein collectively as the “Assigned Interest”). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.



	 	 	 	 	 	 	 

	1.

	 	Assignor:	 	 
	 	 
	 

	 	 	 	 

	 	 
	2.

	 	Assignee:
	 	 	 	 
	 	 	 	 	[and is an Affiliate/Approved Fund of [identify Lender]1] 
	 
	 	 	 	 	 	 
	3.	 	Borrower:	 	USG Corporation, a Delaware corporation
	 
	 	 	 	 	 	 
	4.	 	Administrative Agent: JPMorgan Chase Bank, N.A.








 




			
	1	 	Select as applicable.





Exhibit A



 









 





	 	 	 	 	 	 	 

	5.	 	Credit Agreement:	 	The $500,000,000 Second Amended and
Restated Credit Agreement dated as of
January [ ], 2009, among USG
Corporation, a Delaware corporation,
the Lenders from time to time party
thereto, JPMorgan Chase Bank, N.A.,
as Administrative Agent, and [ ],
as Syndication Agent
	 
	 	 	 	 	 	 
	6.	 	 	 	Assigned Interest:






	 	 	 	 	 	 	 	 	 
	Aggregate Amount of	 	Amount of	 	 	 	 	 
	Commitment/Loans for all 	 	Commitment/Loans	 	 	Percentage Assigned of	 
	Lenders	 	Assigned	 	 	Commitment/Loans2	 
	$
	 	$	 	 	 	 	%	 






Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]




The Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire
in which the Assignee designates one or more credit contacts to whom all syndicate-level
information (which may contain material non-public information about the Parent Borrower, the Loan
Parties and their Related Parties or their respective securities) will be made available and who
may receive such information in accordance with the Assignee’s compliance procedures and applicable
laws, including U.S. Federal and State securities laws.




The terms set forth in this Assignment and Assumption are hereby agreed to:




	 	 	 	 	 
	 	ASSIGNOR



[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 	ASSIGNEE




[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 





 




			
	2	 	Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.





Exhibit A



2









 






	 	 	 	 	 
	Consented to and Accepted:




JPMORGAN CHASE BANK, N.A.,
 as Administrative Agent

 	 
	By  	 	 
	 	Title: 	 
	 	 	 
	[Consented to:




USG CORPORATION

 	 
	By  	 	 
	 	Title:]3 	 
	 	 	 





 




			
	3	 	To the extent required pursuant to Section 9.04(b)(i) of the Credit Agreement.




Exhibit A



3









 





ANNEX 1




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION





     1. Representations and Warranties.


          1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and
clear of any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or
in connection with the Credit Agreement or any other Loan Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents
or any collateral thereunder, (iii) the financial condition of the Borrower, any of their
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or
(iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or
any other Person of any of their respective obligations under any Loan Document.


          1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby and to
become a Lender under the Credit Agreement, (ii) it satisfies the requirements, if any,
specified in the Credit Agreement that are required to be satisfied by it in order to
acquire the Assigned Interest and become a Lender, (iii) from and after the Effective Date,
it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to
the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv)
it has received a copy of the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 5.01 thereof, as applicable, and such
other documents and information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Assumption and to purchase the Assigned
Interest on the basis of which it has made such analysis and decision independently and
without reliance on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached to this Assignment and Assumption is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed
by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the
Administrative Agent, the Assignor 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 Loan Documents, and (ii) it will perform
in accordance with their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender.



Exhibit A



 









 




          2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective
Date and to the Assignee for amounts which have accrued from and after the Effective Date.


          3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.



Exhibit A



3









 





EXHIBIT B




FORM OF

BORROWING BASE CERTIFICATE




Exhibit B




 











 





Exhibit B

Page 1 of 3




USG Corporation

Borrowing Base Certificate

For the period ended ______________ (in $000’s)




	 	 	 	 	 	 	 	 	 	 	 

	A.	 	Available Accounts Receivable (page 2 of 3 )
	 	$	—	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 
	B.	 	Available Raw Materials (page 3 of 3 )
	 	$	—	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 
	C.	 	Available Work-In-Process (page 3 of 3)
	 	$	—	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 
	D.	 	Available Finished Goods (page 3 of 3 )
	 	$	—	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 
	E.	 	Less Reserves:
	 	 	 	 	 	 	 	 
	 	 	Rent Reserve and Reserves for Bailee’s Charges
	 	 	—	 	 	 	 	 
	 	 	Other Reserves (per terms of Credit Agreement)
	 	 	—	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 
	F.	 	Borrowing Base (lines A+B+C+D-E)
	 	 	 	 	 	$	—	 
	 	 	 
	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 
	G.	 	Lower of:
	 	 	 	 	 	 	 	 
	 	 	(i) Borrowing Base
	 	$	—	 	 	 	 	 
	 	 	(ii) Revolving Commitment
	 	$	—	 	 	$	—	 
	 	 	 
	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 
	H.	 	Revolving Exposure:
	 	 	 	 	 	 	 	 
	 	 	Aggregate principal amount of Loans outstanding:
	 	 	 	 	 	 	 	 
	 	 	LC Exposure Outstanding
	 	 	 	 	 	 	 	 
	 	 	Swingline Exposure Outstanding
	 	 	 	 	 	 	 	 
	 	 	Total Revolving Exposure
	 	 	 	 	 	$	—	 
	 	 	 
	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 
	I.	 	Excess Availability (lines G-H)
	 	 	 	 	 	$	—	 
	 	 	 
	 	 	 	 	 	 	 





Officer’s
Certification:



Pursuant to the Second Amended and Restated Credit Agreement dated as of January 7, 2009, the
undersigned Financial Officer of USG Corporation certifies that the information provided in this
certificate to JPMorgan Chase Bank, N.A. as Collateral Agent, is true and correct based on the
accounting records of USG Corporation.



USG Corporation




	 	 	 

	 

	 	 
	Name

	 	         Date
	Title
	 	 






 









 





Exhibit B

Page 2 of 3




USG Corporation

Borrowing Base Certificate

For the period ended ______________ (in $000’s)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Gypsum	 	 	Interiors	 	 	L&W	 	 	Consolidated	 
	Net Aging Balance
	 	$	—	 	 	$	—	 	 	$	—	 	 	$	—	 
	Addback: General Accrual Reserves included in Aging
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Total Aging Balance (including Accrual Reserves)
	 	$	—	 	 	$	—	 	 	$	—	 	 	$	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Less ineligibles:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Affiliate Receivables
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Concentration Limit 15% (20% if investment rated)
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Defaulted Receivables
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Deductions
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Foreign Obligors
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Payment Terms Greater than 60 Days
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Rebate Accrual Amount
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Credits Greater than 30 days past due, 90 days past invoice
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Cross-Aged Receivables (50%)
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Obligors with Cash in Advance terms
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Accrued Sales & Use Taxes
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Unbilled receivables
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	A/R Reconciliation Items
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Notes Receivable
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Receivables Subject to Offset or Claim
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	A/R not Denominated / Payable in USD
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Government Receivables
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Bankrupt Obligors
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Bill and hold receivables
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Progress billing receivables
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Other (per terms of Credit Agreement)
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Total ineligibles:
	 	$	—	 	 	$	—	 	 	$	—	 	 	$	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Eligible Accounts Receivable before dilution reserve
	 	$	—	 	 	$	—	 	 	$	—	 	 	$	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dilution Percentage (>5%)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dilution Reserve $
	 	$	—	 	 	$	—	 	 	$	—	 	 	$	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Adjusted Eligible Accounts Receivable:
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	—	 
	Advance rate
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	85.0	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Available Accounts Receivable
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






 









 






Exhibit B

Page 3 of 3




USG Corporation

Borrowing Base Certificate

For the period ended ______________ (in $000’s)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Gypsum	 	 	Interiors	 	 	L&W	 	 	Consolidated	 
	Raw Materials Inventory
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Raw Materials Per Perpetual
	 	$	—	 	 	$	—	 	 	$	—	 	 	$	—	 
	Less Ineligibles and Inventory Reserves:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Spare parts, packaging, supplies
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Damaged, defective, return to vendor, discontinued, nonsalable
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Inventory locations <$100,000 (b)
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Subject to consignment
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Detonators & Explosives
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Items without assigned product class
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Intercompany profits included in inventory
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Re-stocking and delivery fees included in inventory
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Testing prototypes display items
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Shrink reserve (a)
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Slow moving and obsolete reserve
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Lower of cost or market reserve
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Capitalized favorable variances
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Vendor rebate reserve
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Other (per terms of the Credit Agreement)
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Total Ineligible
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Eligible Raw Materials
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Lesser of:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(i) Advance Rate
	 	 	60.0	%	 	 	60.0	%	 	 	60.0	%	 	 	 	 
	NOLV %
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(ii) 85% of Net Orderly Liquidation Rate
	 	 	0.0	%	 	 	0.0	%	 	 	0.0	%	 	 	 	 
	 	 	       
	Available Raw Materials
	 	$	—	 	 	$	—	 	 	$	—	 	 	$	—	 
	 	 	       
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Work In Process Inventory
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Work In Process Per Perpetual
	 	$	—	 	 	$	—	 	 	$	—	 	 	$	—	 
	Less Ineligibles and Inventory Reserves:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Spare parts, packaging, supplies
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Damaged, defective, return to vendor, discontinued, nonsalable
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Inventory locations <$100,000 (b)
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Detonators & Explosives
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Items without assigned product class
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Intercompany profits included in inventory
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Re-stocking and delivery fees included in inventory
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Testing prototypes display items
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Shrink reserve (a)
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Slow moving and obsolete reserve
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Lower of cost or market reserve
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Capitalized favorable variances
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Vendor rebate reserve
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Other (per terms of the Credit Agreement)
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Total Ineligibles
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Eligible Work In Process Inventory
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Lesser of:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(i) Advance Rate
	 	 	60.0	%	 	 	60.0	%	 	 	60.0	%	 	 	 	 
	NOLV %
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(ii) 85% of Net Orderly Liquidation Rate
	 	 	0.0	%	 	 	0.0	%	 	 	0.0	%	 	 	 	 
	 	 	       
	Available Work In Process Inventory
	 	$	—	 	 	$	—	 	 	$	—	 	 	$	—	 
	 	 	       
	 
	Finished Goods Inventory
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Finished Goods Per Perpetual
	 	$	—	 	 	$	—	 	 	$	—	 	 	$	—	 
	Less Ineligibles and Inventory Reserves:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Spare parts, packaging, supplies
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Damaged, defective, return to vendor, discontinued, nonsalable
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Inventory locations <$100,000 (b)
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Subject to consignment
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Detonators & Explosives
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Items without assigned product class
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Intercompany profits included in inventory
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Re-stocking and delivery fees included in inventory
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Testing prototypes display items
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Shrink reserve (a)
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Slow moving and obsolete reserve
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Lower of cost or market reserve
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Capitalized favorable variances
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Vendor rebate reserve
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Other (per terms of the Credit Agreement)
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Total Ineligibles
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Eligible Finished Goods
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Lesser of:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Advance Rate
	 	 	60.0	%	 	 	60.0	%	 	 	60.0	%	 	 	 	 
	NOLV %
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	85% of Net Orderly Liquidation Rate
	 	 	0.0	%	 	 	0.0	%	 	 	0.0	%	 	 	 	 
	 	 	       
	Available Finished Goods Inventory
	 	$	—	 	 	$	—	 	 	$	—	 	 	$	—	 
	 	 	       







 




			
	(a)	 	Shrink reserve will represent % of physical inventory discrepancy observed from most recent field exam.
	 
	(b)	 	Provided that the aggregate value of RM, WIP, and FG stated at cost is less than $100,000 at a location.






 











 






EXHIBIT C




[FORM OF]




BORROWING REQUEST




[Date]          




JPMorgan Chase Bank, N.A.,

    as Administrative Agent

     for the Lenders referred to below

Loan and Agency Services Group

1111 Fannin, 10th Floor

Houston, Texas 77002




Attention: Marshella B. Williams

Telecopy No.: (713) 427-6307



Ladies and Gentlemen:




          The undersigned Borrower refers to the Second Amended and Restated Credit Agreement dated as
of January [    ], 2009, as amended, supplemented or otherwise modified from time to time, (the
“Credit Agreement”), among USG Corporation, a Delaware corporation, the Lenders from time
to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as administrative agent
(in such capacity, the “Administrative Agent”), and [     ], as syndication agent.
Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement. The undersigned Borrower hereby gives you notice pursuant to
Section 2.03 of the Credit Agreement that it requests a Borrowing under the Credit Agreement and in
that connection sets forth below the terms on which such Borrowing is requested to be made:




	 	 	 	 	 	 	 	 	 

	 

	 	 	1.	 	 	Aggregate Amount of Borrowing4:
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	2.	 	 	Date of Borrowing5:
	 	 








 




			
	4	 	In the case of a Eurodollar Borrowing, not less
than $5,000,000 and in an integral multiple of $1,000,000. In the case of an
ABR Borrowing, not less than $1,000,000 and in an integral multiple of
$1,000,000.
	 
	5	 	This date must be (a) a Business Day and (b)(i)
in the case of a Eurodollar Borrowing, a date not earlier than three Business
Days after telephonic notice of the related Borrowing Request or (ii) in the
case of an ABR Borrowing, a date not earlier than one Business Day after
telephonic notice of the related Borrowing Request, in each case delivered
before 11:00 a.m., New York City time.





Exhibit C




 









 






EXHIBIT C




[FORM OF]




BORROWING REQUEST




[Date]          




JPMorgan Chase Bank, N.A.,

    as Administrative Agent

     for the Lenders referred to below

Loan and Agency Services Group

1111 Fannin, 10th Floor

Houston, Texas 77002




Attention: Marshella B. Williams

Telecopy No.: (713) 427-6307



Ladies and Gentlemen:




          The undersigned Borrower refers to the Second Amended and Restated Credit Agreement dated as
of January [    ], 2009, as amended, supplemented or otherwise modified from time to time, (the
“Credit Agreement”), among USG Corporation, a Delaware corporation, the Lenders from time
to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as administrative agent
(in such capacity, the “Administrative Agent”), and [     ], as syndication agent.
Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement. The undersigned Borrower hereby gives you notice pursuant to
Section 2.03 of the Credit Agreement that it requests a Borrowing under the Credit Agreement and in
that connection sets forth below the terms on which such Borrowing is requested to be made:




	 	 	 	 	 	 	 	 	 

	 

	 	 	1.	 	 	Aggregate Amount of Borrowing4:
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	2.	 	 	Date of Borrowing5:
	 	 








 




			
	4	 	In the case of a Eurodollar Borrowing, not less
than $5,000,000 and in an integral multiple of $1,000,000. In the case of an
ABR Borrowing, not less than $1,000,000 and in an integral multiple of
$1,000,000.
	 
	5	 	This date must be (a) a Business Day and (b)(i)
in the case of a Eurodollar Borrowing, a date not earlier than three Business
Days after telephonic notice of the related Borrowing Request or (ii) in the
case of an ABR Borrowing, a date not earlier than one Business Day after
telephonic notice of the related Borrowing Request, in each case delivered
before 11:00 a.m., New York City time.





Exhibit C




 









 






EXHIBIT C




[FORM OF]




BORROWING REQUEST




[Date]          




JPMorgan Chase Bank, N.A.,

    as Administrative Agent

     for the Lenders referred to below

Loan and Agency Services Group

1111 Fannin, 10th Floor

Houston, Texas 77002




Attention: Marshella B. Williams

Telecopy No.: (713) 427-6307



Ladies and Gentlemen:




          The undersigned Borrower refers to the Second Amended and Restated Credit Agreement dated as
of January [    ], 2009, as amended, supplemented or otherwise modified from time to time, (the
“Credit Agreement”), among USG Corporation, a Delaware corporation, the Lenders from time
to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as administrative agent
(in such capacity, the “Administrative Agent”), and [     ], as syndication agent.
Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement. The undersigned Borrower hereby gives you notice pursuant to
Section 2.03 of the Credit Agreement that it requests a Borrowing under the Credit Agreement and in
that connection sets forth below the terms on which such Borrowing is requested to be made:




	 	 	 	 	 	 	 	 	 

	 

	 	 	1.	 	 	Aggregate Amount of Borrowing4:
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	2.	 	 	Date of Borrowing5:
	 	 








 




			
	4	 	In the case of a Eurodollar Borrowing, not less
than $5,000,000 and in an integral multiple of $1,000,000. In the case of an
ABR Borrowing, not less than $1,000,000 and in an integral multiple of
$1,000,000.
	 
	5	 	This date must be (a) a Business Day and (b)(i)
in the case of a Eurodollar Borrowing, a date not earlier than three Business
Days after telephonic notice of the related Borrowing Request or (ii) in the
case of an ABR Borrowing, a date not earlier than one Business Day after
telephonic notice of the related Borrowing Request, in each case delivered
before 11:00 a.m., New York City time.





Exhibit C




 









 








	 	 	 	 	 	 	 	 	 

	 

	 	 	3.	 	 	Type of Borrowing6:
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	4.	 	 	Interest Period7:
	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	5.	 	 	Location and number of the undersigned Borrower’s account to
which funds
	 

	 	 	 	 	 	are to be disbursed:
	 	 






[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]






 




			
	6	 	Eurodollar Borrowing or ABR Borrowing.
	 
	7	 	Applicable only to a Eurodollar Borrowing, and
subject to the definition of “Interest Period”.





Exhibit C




2









 








          The undersigned Borrower hereby represents and warrants to the Administrative Agent and the
Lenders that, on the date of this Borrowing Request and on the date of the related Borrowing, the
conditions to lending specified in Section 4.02 of the Credit Agreement are and shall be satisfied.




	 	 	 	 	 
	 	Very truly yours,



USG CORPORATION,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Exhibit C





3









 








EXHIBIT D




[FORM OF]




INTEREST ELECTION REQUEST




[Date]          




JPMorgan Chase Bank, N.A.,

    as Administrative Agent

    for the Lenders referred to below

Loan and Agency Services Group

1111 Fannin, 10th Floor

Houston, Texas 77002




Attention: Marshella B. Williams

Telecopy No.: (713) 427-6307



Ladies and Gentlemen:




          The undersigned Borrower refers to the Second Amended and Restated Credit Agreement dated as
of January [     ], 2009, as amended, supplemented or otherwise modified from time to time, (the
“Credit Agreement”), among USG Corporation, a Delaware corporation, the Lenders from time
to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as administrative agent
(in such capacity, the “Administrative Agent”), and [     ], as syndication agent.
Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement. This notice constitutes a notice of conversion or notice of
continuation, as applicable, under Section 2.07 of the Credit Agreement, and the undersigned
Borrower hereby irrevocably notifies the Administrative Agent of the following information with
respect to the conversion or continuation requested hereby:




	 	 	 	 	 	 	 

	 

	 	 	1.	 	 	Borrowing to which this request applies8:

 
	 
	 

	 	 	2.	 	 	Principal amount of Borrowing to be
converted/continued9:

 
	 
	 

	 	 	3.	 	 	Effective date of election10:

 








 




			
	8	 	Specify last day of current Interest Period.
	 
	9	 	If different options are being elected with respect
to different portions of the Borrowing, indicate the portions thereof to be
allocated to each resulting Borrowing.
	 
	10	 	This date must be (a) a Business Day and (b)(i) in
the case of a resulting Eurodollar Borrowing, a date not earlier than three
Business Days after telephonic notice of the related Interest Election Request
or (ii) in the case of a resulting ABR Borrowing, a date not earlier than one
Business Day after telephonic notice of the related Interest Election Request,
in each case delivered before 11:00 a.m., New York City time.





Exhibit D




 









 








	 	 	 	 	 	 	 

	 

	 	 	4.	 	 	Type of resulting Borrowing(s)11:

 
	 
	 	 	 	 	 	 
	 

	 	 	5.	 	 	Interest Period of resulting Borrowing(s)12:

 






	 	 	 	 	 
	 	Very truly yours,



USG CORPORATION,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	11	 	Eurodollar Borrowing or ABR Borrowing. If
different options are being elected with respect to different portions of the
Borrowing, specify type for each resulting Borrowing.
	 
	12	 	Applicable only if the resulting Borrowing is to be
a Eurodollar Borrowing, and subject to the definition of “Interest Period”.
Must comply with the definition of “Interest Period” and end not later than the
Maturity Date. If different options are being elected with respect to
different portions of the Borrowing, specify for each resulting Borrowing.





Exhibit D




2









 








EXHIBIT E




[FORM OF]




COMPLIANCE CERTIFICATE




[For the fiscal Quarter ending]

[For the fiscal Year ending]




          The undersigned, duly authorized, qualified and acting Financial Officer of USG
Corporation, a corporation organized under the laws of Delaware (“USG”), hereby certifies
that:




          (a) This certificate (“Certificate”) is furnished pursuant to Section 5.01(c) of the
Second Amended and Restated Credit Agreement dated as of January [     ], 2009 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among USG, a
Delaware corporation, the Lenders from time to time party thereto (the “Lenders”), JPMorgan
Chase Bank, N.A., as administrative agent, and [     ], as syndication agent. Capitalized terms
used herein have the meanings attributed thereto in the Credit Agreement unless otherwise defined
herein.




          (b) As of the date hereof, no Default has occurred [except as follows:].




          (c) No change in GAAP or in the application of GAAP, in either case, that would be required to
be disclosed to the Securities and Exchange Commission, has occurred that has affected the
financial statements accompanying this Certificate since the later of December 31, 2007, and the
date of the prior certificate delivered under Section 5.01(c) of the Credit Agreement, except for
those changes disclosed in the report of USG on Form 10-Q or 10-K, as applicable, for the period
ending ___________, attached hereto as Exhibit A (the “Current Report”)[.] [except as
follows:]




          (d) The financial statements referred to in Section 5.01[(a)][(b)] of the Credit Agreement
which are delivered concurrently with the delivery of this Compliance Certificate, together with
the footnotes and supplemental information related thereto disclosed in the Current Report, fairly
present in all material respects the financial condition and results of operations of USG and its
Subsidiaries on a consolidated basis for the fiscal [year][quarter] then ended [(subject to normal
year-end audit adjustments and the absence of footnote disclosure)]. Such financial statements
have been prepared in accordance with GAAP applied consistently throughout the period involved.




          (e) The covenant listed and calculated below is based on the financial statements referred to
in Section 5.01[(a)][(b)] of the Credit Agreement which are delivered concurrently with the
delivery of this Certificate, together with the financial statements previously delivered pursuant
to Section 5.01(a) or (b) that are necessary to determine compliance with such covenant under the
Credit Agreement.




Exhibit E




 









 








          Fixed Charge Coverage Ratio (Section 6.12)




          The ratio of




	 	 	 	 	 	 	 	 	 

	 	 	 	 	(i) Consolidated
EBITDA (plus the aggregate amount of Transaction Costs incurred or accrued,
minus the unfinanced portion of Capital Expenditures) for the period of four consecutive
fiscal quarters most recently ended at or prior to the date of this certificate (the
“Measurement Period”)
	 	$	___________	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	To
	 	 	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	(ii) Fixed Charges for the Measurement Period
	 	$	___________	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	Ratio:
	 	 	___________	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	must not exceed:
	 	 	1.10 to 1.00	 
	 	 	 	 	 
	 	 	 




Please refer to Schedule 1 for a detailed calculation of the amounts set forth above.




Exhibit E




2









 








          IN WITNESS WHEREOF, I have hereto set my name.



Dated:




	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	[Financial Officer of USG] 	 
	 



Exhibit E




3









 








Schedule 1 to

Compliance Certificate



Format to be agreed between JPMorgan and USG.

















 





EXHIBIT F








[FORM OF]




ADMINISTRATIVE QUESTIONNAIRE


USG CORPORATION



	 	 	 	 	 	 	 

	Agent Address:

	 	JPMorgan Chase Bank, N.A.
	 	Return form to:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	JPMorgan Loan Services
	 	Telephone:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	1111 Fannin Street, 10th Fl.
	 	Facsimile:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Houston, TX 77002
	 	E-mail:	 	 
	 

	 	 	 	 	 	 






	 	 	It is very important that all of the requested information be completed
accurately and that this questionnaire be returned promptly. If your institution is
sub-allocating its allocation, please fill out an administrative questionnaire for
each legal entity.





Legal Name of Lender to appear in Documentation:




 




	 	 	 

	Signature Block Information: 
	 	 
	 

	 	 





	 	 	 	 	 	 	 	 	 

	 

	 	•
	 	Signing Credit Agreement
	 	Yes
	 	No
	 
	 	 	 	 	 	 	 	 
	 

	 	•
	 	Coming in via Assignment
	 	Yes
	 	No





Type of Lender:



Bank | Asset Manager | Broker/Dealer | CLO/CDO | Finance Company | Hedge Fund | Insurance | Mutual
Fund | Pension Fund | Other Regulated Investment Fund | Special Purpose Vehicle | Other-please
specify) |




	 	 	 

	Lender Parent: 
	 	 
	 

	 	 





	 	 	 
	Domestic Address	 	Eurodollar Address
	 
	 	 
	 
	 

	 	 
	 
	 
	 	 
	 

	 	 
	 
	 	 
	 
	 

	 	 





Exhibit F



 









 









Contacts/Notification Methods: Borrowings, Paydowns, Interest, Fees, etc.



Syndicate-level information (which may contain material non-public information
about the Borrower and its related parties or their respective securities) will
be made available to the Credit Contact(s). The Credit Contacts identified
must be able to receive such information in accordance with his/her
institution’s compliance procedures and applicable laws, including Federal and
state securities laws.




	 	 	 	 	 
	 	 	Primary Credit Contact	 	Secondary Credit Contact
	 
	Name:
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	Company:
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	Title
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	Address:
	 	 	 	 
	 

	 	 
	 	 
	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	Telephone:
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	Facsimile:
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	Email Address:
	 	 	 	 
	 

	 	 
	 	 





	 	 	 	 	 
	 	 	Primary Operations Contact	 	Secondary Operations Contact
	 
	Name:
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	Company:
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	Title
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	Address:
	 	 	 	 
	 

	 	 
	 	 
	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	Telephone:
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	Facsimile:
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	Email Address:
	 	 	 	 
	 

	 	 
	 	 





	 	 	 	 	 
	 	 	Bid Contact	 	 
	Name:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Company:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Title

	 	 

	 	 
	 
	 	 	 	 
	Address:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Telephone:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Facsimile:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Email Address:
	 	 	 	 
	 

	 	 

	 	 






Exhibit F



2









 









Lender’s Domestic Wire Instructions




	 	 	 

	Bank Name:
	 	 
	 

	 	 
	 
	 	 
	ABA/Routing No.:
	 	 
	 

	 	 
	 
	 	 
	Account Name:
	 	 
	 

	 	 
	 
	 	 
	Account No.:
	 	 
	 

	 	 
	 
	 	 
	FFC Account Name:
	 	 
	 

	 	 
	 
	 	 
	FFC Account No.:
	 	 
	 

	 	 
	 
	 	 
	Attention:
	 	 
	 

	 	 
	 
	 	 
	Reference:
	 	 
	 

	 	 





Agent’s Wire Instructions




	 	 	 

	Bank Name:
	 	 
	 

	 	 
	 
	 	 
	ABA/Routing No.:
	 	 
	 

	 	 
	 
	 	 
	Account Name:
	 	 
	 

	 	 
	 
	 	 
	Account No.:
	 	 
	 

	 	 
	 
	 	 
	FFC Account Name:
	 	 
	 

	 	 
	 
	 	 
	FFC Account No.:
	 	 
	 

	 	 
	 
	 	 
	Attention:
	 	 
	 

	 	 
	 
	 	 
	Reference:
	 	 
	 

	 	 





Exhibit F



3









 





Tax Documents



NON-U.S. LENDER INSTITUTIONS:




I. Corporations:



If your institution is incorporated outside of the United States for U.S. federal income tax
purposes, and is the beneficial owner of the interest and other income it receives, you
must complete one of the following three tax forms, as applicable to your institution: a.) Form
W-8BEN (Certificate of Foreign Status of Beneficial Owner), b.) Form W-8ECI (Income Effectively
Connected to a U.S. Trade or Business), or c.) Form W-8EXP (Certificate of Foreign Government or
Governmental Agency).



A U.S. taxpayer identification number is required for any institution submitting Form W-8ECI. It
is also required on Form W-8BEN for certain institutions claiming the benefits of a tax treaty with
the U.S. Please refer to the instructions when completing the form applicable to your institution.
In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed
forms. An original tax form must be submitted.




II. Flow-Through Entities:



If your institution is organized outside the U.S., and is classified for U.S. federal income tax
purposes as either a Partnership, Trust, Qualified or Non-Qualified Intermediary, or other non-U.S.
flow-through entity, an original Form W-8IMY (Certificate of Foreign Intermediary, Foreign
Flow-Through Entity, or Certain U.S. Branches for United States Tax Withholding) must be completed
by the intermediary together with a withholding statement. Flow-through entities other than
Qualified Intermediaries are required to include tax forms for each of the underlying beneficial
owners.



Please refer to the instructions when completing this form. In addition, please be advised that
U.S. tax regulations do not permit the acceptance of faxed forms. Original tax form(s) must be
submitted.




U.S. LENDER INSTITUTIONS:



If your institution is incorporated or organized within the United States, you must
complete and return Form W-9 (Request for Taxpayer Identification Number and Certification).
Please be advised that we request that you submit an original Form W-9.



Pursuant to the language contained in the tax section of the Credit Agreement, the applicable tax
form for your institution must be completed and returned prior to the first payment of income.
Failure to provide the proper tax form when requested may subject your institution to U.S. tax
withholding.




Exhibit F



4









 





Exhibit G




Perfection Certificate



See Attached



Exhibit G




 











 





PERFECTION CERTIFICATE




          Reference is made to the Second Amended and Restated Credit Agreement dated as of January 7,
2009 (as amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among USG Corporation, a Delaware corporation (the “Borrower”), the
Lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent (in
such capacity, the “Administrative Agent”), and Goldman Sachs Credit Partners L.P., as
Syndication Agent. Capitalized terms used but not defined herein have the meanings assigned in the
Credit Agreement or the Security Agreement referred to therein, as applicable. For purposes of
this Perfection Certificate (this “Certificate”), “Grantors” shall mean the
Borrower and each Loan Party that is a wholly-owned Subsidiary.




          The undersigned, a Financial Officer of the Borrower, hereby certifies to the Administrative
Agent and each other Secured Party as follows:



1. Names. (a) The exact legal name of each Grantor, as such name appears in its
respective certificate of formation, is as follows:




USG Corporation




United States Gypsum Company




USG Interiors, Inc.




L & W Supply Corporation




California Wholesale Material Supply, LLC




Livonia Building Materials, LLC




River City Materials, Inc.




USG Foreign Investments, Ltd.




Otsego Paper, Inc.



(b) Set forth below is each other legal name each Grantor has had in the past two years,
together with the date of the relevant change:



USG Corporation – None



United States Gypsum Company – None



USG Interiors, Inc. – None



L & W Supply Corporation – None



California Wholesale Material Supply, LLC – None







 









 







Livonia Building Materials, LLC – None



River City Materials, Inc. – None



USG Foreign Investments, Ltd. – None



Otsego Paper, Inc. – None



(c) Except as set forth in Schedule 1 hereto, no Grantor has changed its identity or
corporate structure in any way within the past two years. Changes in identity or corporate
structure would include mergers, consolidations and acquisitions, as well as any change in the
form, nature or jurisdiction of organization. If any such change has occurred, include in
Schedule 1 the information required by Sections 1 and 2 of this certificate as to each acquiree or
constituent party to a merger or consolidation.



(d) The following is a list of all other names (including trade names or similar appellations)
used by each Grantor or any of its divisions or other business units in connection with the conduct
of its business or the ownership of its properties at any time during the past two years:




	 	 	 
	 	 	States
	 	 	(where applicable)
	USG Corporation
	 	 
	 
	 	 
	None
	 	 
	 
	 	 
	United States Gypsum Company
	 	 
	 
	 	 
	None
	 	 
	 
	 	 
	USG Interiors, Inc.
	 	 
	 
	 	 
	None
	 	 
	 
	 	 
	L & W Supply Corporation
	 	 
	Alabama Drywall
	 	AL
	Acoustical Drywall & Supply
	 	KY
	Alltex Interior Supply Building Specialties
	 	TX
	AMS/Building Specialties
	 	TX
	Arch City Drywall Supply
	 	MO
	Architectural Stone Products
	 	UT,
	Arrowhead Drywall Supply
	 	MO, KS
	Barnett Drywall Supply
	 	TX
	Builders Supply
	 	WI
	 
	 	PA, CO, TX, MD,

	 
	 	NJ, WA, OK, GA,

	Building Specialties
	 	WY, NY, OH,

	 
	 	VA,MS, ID, MO,

	 
	 	OR, DE, CT






2









 






	 	 	 
	 	 	States
	 	 	(where applicable)
	C&A Drywall Supply
	 	OH
	Cal-Wal Gypsum Supply
	 	CA
	Capitol Drywall Supply
	 	UT, NV, OH
	Casa Grande
	 	AZ
	Cascade Gypsum & Building Supply
	 	OR
	Ceiling & Building Specialties
	 	IL
	Cen-Cal Wallboard Supply
	 	CA
	Chesapeake Drywall
	 	MD
	C-K Supply
	 	NC, SC, TN, GA
	Dekalb Supply
	 	IL
	Desert Building Materials
	 	AZ
	Drywall Supply
	 	TX
	E-C Drywall Supply
	 	WI
	E-Foam
	 	NV
	Gem State Acoustical & Drywall
	 	ID
	Great Lakes Gypsum Supply
	 	MI
	Gypsum Drywall Supply
	 	CA
	Gypsum Services
	 	NY, PA
	Indianapolis Drywall Supply
	 	IN
	Kennell/Arrowhead Co.
	 	MO
	M&S Drywall Supply
	 	MN
	Plainfield Supply
	 	IL
	Ponderosa Wholesale
	 	NV
	River City Materials
	 	TN, MS, AR
	Rose City Building Materials
	 	OR
	Roselle Building Materials
	 	IL
	Scharpfs Twinoaks Builders Supply
	 	OR
	Seacoast Supply
	 	FL, LA, GA, AL
	Sierra Building Materials
	 	CA
	South County Gypsum & Roofing
	 	IN
	State Line Drywall
	 	IL
	Thunderbird Building Materials
	 	AZ
	Toledo Drywall Supply
	 	OH
	Wabash Valley Supply
	 	IN
	Wausau Brick & Gypsum
	 	WI
	Wisconsin Drywall
	 	WI
	Zechman Supply
	 	IL
	Livonia Holdings, Inc.
	 	MI, OH
	Livingston Building Materials, LLC
	 	MI
	Frames, Doors & Hardware, Inc.
	 	MI
	Oakland Building Materials Co.
	 	MI
	Ceilings & Walls, Inc.
	 	MI
	Progressive Building Materials, Inc.
	 	MI
	East Side Building Materials Co.
	 	MI
	Acoustical Services, Inc.
	 	MI
	Specialty Distributors, Inc.
	 	MI
	Jackson Building Materials Co.
	 	MI
	Preferred Building Materials Co., Inc.
	 	MI
	Great Lakes Gypsum & Supply
	 	MI, OH






3









 






	 	 	 
	 	 	States
	 	 	(where applicable)
	California Wholesale Material Supply
	 	 
	 
	 	 
	 
	 	NM, CA, TX, AZ, 

	 
	 	UT,NV,ID, CO,
	Calply
	 	OK
	Capitol Building Materials
	 	UT, NV
	Gem State Acoustical & Drywall Supply
	 	ID
	Coyote Building Materials
	 	AZ
	Desert Building Materials
	 	AZ
	Thunderbird Building Materials
	 	AZ
	Sierra Building Materials
	 	CA
	Architectural Stone Products
	 	UT, NV
	Gypsum Drywall Supply
	 	CA
	Cal-Wal Gypsum Supply
	 	CA
	Heartland Building Materials
	 	CA
	Cen-Cal Wallboard Supply
	 	CA
	Ponderosa Wholesale
	 	NV
	Building Specialties
	 	TX
	 
	 	 
	Livonia Building Materials, LLC
	 	 
	Livonia Newco, LLC
	 	MI
	Livonia Building Materials Co.
	 	MI
	Great Lakes Gypsum & Supply
	 	MI
	 
	 	 
	River City Materials, Inc.
	 	AR, TN
	None
	 	 
	 
	 	 
	USG Foreign Investments, Ltd.
	 	 
	None
	 	 
	 
	 	 
	Otsego Paper, Inc.
	 	MI
	None
	 	 





(e) Set forth below is the Organizational Identification Number, if any, issued by the
jurisdiction of formation of each Grantor that is a registered organization:




	 	 	 
	Grantor:	 	Organizational Identification Number:
	USG Corporation

	 	File No. 2046782
	 
	 	 
	United States Gypsum Company

	 	File No. 0636722
	 
	 	 
	USG Interiors, Inc.

	 	File No. 2048399
	 
	 	 
	L & W Supply Corporation

	 	File No. 0771121






4









 






	 	 	 
	Grantor:	 	Organizational Identification Number:
	California Wholesale Material Supply, LLC

	 	File No. 448177
	 
	 	 
	Livonia Building Materials, LLC

	 	D0453H
	 
	 	 
	River City Materials, Inc.

	 	File No. 43973
	 
	 	 
	USG Foreign Investments, Ltd.

	 	File No. 0904059
	 
	 	 
	Otsego Paper, Inc.

	 	File No. 4123529







5











 





(f) Set forth below is the Federal Taxpayer Identification Number of each
Grantor:1




	 	 	 
	Grantor:	 	FEIN:
	USG Corporation
	 	***
	 	 	 
	United States Gypsum Company
	 	***
	 	 	 
	USG Interiors, Inc.
	 	***
	 	 	 
	L & W Supply Corporation
	 	***
	 	 	 
	California Wholesale Material Supply, LLC
	 	***
	 	 	 
	Livonia Building Materials, LLC
	 	***
	 	 	 
	River City Materials, Inc.
	 	***
	 	 	 
	USG Foreign Investments, Ltd.
	 	***
	 	 	 
	Otsego Paper, Inc.
	 	***









	 		
	2.	 	Current Locations. (a) The chief executive office of each Grantor is located at
the address set forth opposite its name below:





	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	USG Corporation
	 	550 West Adams Street	 	Cook	 	Illinois
	 
	 	Chicago, IL 60661	 	 	 	 
	 
	 	 	 	 	 	 
	United States
	 	550 West Adams Street	 	Cook	 	Illinois
	Gypsum Company
	 	Chicago, IL 60661	 	 	 	 
	 
	 	 	 	 	 	 
	USG Interiors, Inc.
	 	550 West Adams Street	 	Cook	 	Illinois
	 
	 	Chicago, IL 60661	 	 	 	 
	 
	 	 	 	 	 	 
	L & W Supply
	 	550 West Adams Street	 	Cook	 	Illinois
	Corporation
	 	Chicago, IL 60661	 	 	 	 
	 
	 	 	 	 	 	 
	California
	 	8535 E. Florence	 	Los Angeles	 	California
	Wholesale Material
	 	Avenue Downey, CA 90240	 	 	 	 
	Supply, LLC
	 	 	 	 	 	 








 




			
	1	 	Necessary only for Grantors organized under
the laws of North Dakota or South Dakota.





*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE
COMMISSION***






6









 











	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	Livonia Building
	 	550 West Adams Street	 	Cook	 	Illinois
	Materials, LLC
	 	Chicago, IL 60661	 	 	 	 
	 
	 	 	 	 	 	 
	River City
	 	925 Bond Street,	 	Pulaski	 	Arkansas
	Materials, Inc.
	 	Little Rock, AR 72202	 	 	 	 
	 
	 	 	 	 	 	 
	USG Foreign
	 	550 West Adams Street	 	Cook	 	Illinois
	Investments, Ltd.
	 	Chicago, IL 60661	 	 	 	 
	 
	 	 	 	 	 	 
	Otsego Paper, Inc.
	 	320 N. Farmer St	 	Allegan	 	Michigan
	 
	 	Otsego, MI 49078-1150	 	 	 	 







	 		
	(b) Set forth below opposite the name of each Grantor are all locations where such Grantor
maintains any books or records relating to any Accounts:





	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	USG Corporation

	 	No Accounts

N/A
	 	N/A
	 	N/A
	 
	 	 	 	 	 	 
	United States 

Gypsum Company

	 	550 West Adams Street

Chicago, IL 60661
	 	Cook
	 	Illinois
	 
	 	 	 	 	 	 
	USG Interiors, Inc.

	 	550 West Adams Street

Chicago, IL 60661
	 	Cook
	 	Illinois
	 
	 	 	 	 	 	 
	L & W Supply 

Corporation

	 	303 W. Irving Park Rd.


Roselle, IL 60172
	 	Du Page
	 	Illinois
	 
	 	 	 	 	 	 
	 

	 	12450 Beard Ave., S.


Burnsville, MN 55337
	 	Dakota
	 	Minnesota
	 
	 	 	 	 	 	 
	 

	 	2646 Byington Solway Rd.


Knoxville, TN 37931
	 	Knox
	 	Tennessee
	 
	 	 	 	 	 	 
	 

	 	2639 Lombardy Lane

Dallas, TX 75220
	 	Dallas
	 	Texas
	 
	 	 	 	 	 	 
	 

	 	6545 Burlington North

Drive

Houston, TX 77092
	 	Harris
	 	Texas
	 
	 	 	 	 	 	 
	 

	 	3018 Shader Rd. 


Orlando, FL 32808
	 	Orange
	 	Florida
	 
	 	 	 	 	 	 
	 

	 	21195 Boca Rio Road

Boca Raton, FL 33433
	 	Palm Beach
	 	Florida
	 
	 	 	 	 	 	 
	 

	 	126 Route 94

Blairstown, NJ 07825
	 	Warren
	 	New Jersey
	 
	 	 	 	 	 	 
	 

	 	9714 Pulaski Highway

Baltimore, MD 21220
	 	Baltimore
	 	Maryland
	 
	 	 	 	 	 	 
	 

	 	4311 Dorchester Rd.
	 	Charleston
	 	South Carolina
	 

	 	Charleston, SC 29405	 	 	 	 






7









 







	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	 

	 	1303 Hightower Trail

Atlanta, GA 30350
	 	Fulton
	 	Georgia
	 
	 	 	 	 	 	 
	 

	 	8200 Henderson Rd.


Charlotte, NC 28269
	 	Mecklenburg
	 	North Carolina
	 
	 	 	 	 	 	 
	 

	 	7220 SW Bonita Rd. 


Tigard, OR 97224
	 	Washington
	 	Oregon
	 
	 	 	 	 	 	 
	 

	 	17608 E. 24th Drive 


Aurora, CO 80011
	 	Adams
	 	Colorado
	 
	 	 	 	 	 	 
	 

	 	33900 Concord

Livonia, MI 48150
	 	Wayne
	 	Michigan
	 
	 	 	 	 	 	 
	California 

Wholesale Material 

Supply, LLC

	 	8535 E. Florence Ave. 


Downey, CA 90240
	 	Los Angeles

	 	California

	 	 	 	 	 	 
	 	2180 N Glassell St. 


Orange, CA 92865
	 	Orange

	 	California

	 
	 	 	 	 	 	 
	 

	 	1300 S. River Road 


West Sacramento, CA 95961
	 	Yuba
	 	California 
	 
	 	 	 	 	 	 
	 

	 	657 W 8th Ave. 


Midvale, UT 84047
	 	Salt Lake	 	Utah
	 
	 	 	 	 	 	 
	Livonia Building 

Materials, LLC

	 	33900 Concord

Livonia, MI 48150
	 	Wayne
	 	Michigan
	 
	 	 	 	 	 	 
	River City


Materials, Inc.

	 	2646 Byington Solway Rd.


Knoxville, TN 37931
	 	Knox
	 	Tennessee
	 
	 	 	 	 	 	 
	USG Foreign

Investments, Ltd.

	 	No Accounts

N/A
	 	N/A
	 	N/A
	 
	 	 	 	 	 	 
	Otsego Paper, Inc.

	 	No Accounts

N/A
	 	N/A
	 	N/A








 




			
	(c) Set forth below opposite the name of each Grantor are all locations where such Grantor
maintains any Collateral other than that referred to in Section 2(b):





	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	USG Corporation
	 	None	 	 	 	 
	 
	 	 	 	 	 	 
	United States
	 	1550 Gypsum Road Tawas 

City, MI 48763-9467	 	Iosco	 	Michigan
	Gypsum Company
	 		 	 	 	
	 
	 	 	 	 	 	 
	 
	 	4859 New Peachtree Rd	 	DeKalb	 	Georgia
	 
	 	Chamblee, GA	 	 	 	 
	 
	 	30341-3120	 	 	 	 






8









 






	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	 
	 	2148 American Industrial Way	 	DeKalb	 	Georgia
	 
	 	Chamblee, GA 30341	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1115 Armour Road	 	Clay	 	Missouri
	 
	 	North Kansas City, 

MO 64116-3783	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	81 N. State	 	Sevier	 	Utah
	 
	 	Sigurd, UT 84657-0160	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	6825 Evergreen Avenue 

Jacksonville, FL 32208-4996	 	Duval	 	Florida
	 
	 	 	 	 	 	 
	 
	 	1414 Lindrose St.	 	Duval	 	Florida
	 
	 	Jacksonville, FL 32206	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Highway 51 A	 	Blaine	 	Oklahoma
	 
	 	Southard, OK 73770-0100	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	70 E Main Street	 	Rockland	 	New York
	 
	 	Stony Point, NY 10980-1629	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	29073 Dike Road	 	Columbia	 	Oregon,
	 
	 	Rainier, OR 97048-0037	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	401 Van Ness Avenue 

Torrance, CA 90501-1422	 	Los Angeles	 	California
	 
	 	 	 	 	 	 
	 
	 	9306 Sorensen Avenue 

Santa Fe Springs, CA 90670-2688	 	Los Angeles	 	California
	 
	 	 	 	 	 	 
	 
	 	3810 W. Evan Hewes Highway	 	Imperial	 	California
	 
	 	El Centro, CA 92244-2450	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	14370 Gannet St	 	Los Angeles	 	California
	 
	 	La Mirada, CA 90638-5221	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	37887 Shinn St	 	Alameda	 	California
	 
	 	Fremont, CA 94536-4047	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1201 Mayo Shell Rd	 	Harris	 	Texas
	 
	 	Galena Park, TX 77547-0525	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	255 Regal Row	 	Dallas	 	Texas
	 
	 	Dallas, TX 75247-5201	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Route 650

Shoals, IN 47581-1377	 	Martin	 	Indiana






9









 






	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	 
	 	1255 Raritan Rd	 	Union	 	New Jersey
	 
	 	Clark, NJ 07066-1257	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1001 Buchanan St	 	Norfolk City	 	Virginia
	 
	 	Norfolk, VA 23523-1254	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	5701 Lewis Rd	 	Orleans	 	Louisiana
	 
	 	New Orleans, LA 70126-2500	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2110 Paragon Ave	 	Webster	 	Iowa
	 
	 	Fort Dodge, IA 50501-8404	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	13425 210th St	 	Des Moines	 	Iowa
	 
	 	Mediapolis, IA 52637-0219	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	300 Markley St	 	Middlesex	 	New Jersey
	 
	 	Port Reading, NJ 07064-1819	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Highway 447	 	Washoe	 	Nevada
	 
	 	Empire, NV 89405-0130	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	722 Altapass	 	Mitchell	 	North Carolina
	 
	 	Hwy Spruce Pine, NC 28777-8927	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	301 Riley Rd	 	Lake	 	Indiana
	 
	 	East Chicago, IN 46312-1697	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	401 C St NW	 	King	 	Washington
	 
	 	Auburn, WA 98001-3908	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2898 Birch Dr	 	Hancock	 	West Virginia
	 
	 	Weirton, WV 26062-5142	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	5061 N 51st Ave,	 	Maricopa	 	Arizona
	 
	 	Glendale, AZ 85301-7602	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Lake Street	 	Ottawa	 	Ohio
	 
	 	Gypsum, OH 43433-0121	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	60 PPL Road	 	Montour	 	Pennsylvania
	 
	 	Danville, PA 17821	 	 	 	
	 
	 	 	 	 	 	 
	 
	 	1 Woodlawn Rd	 	Beaver	 	Pennsylvania
	 
	 	Aliquippa, PA 15001-5413	 	 	 	 
	 
	 	 	 	 	 	 
	USG Interiors, Inc.
	 	35 Arch Street	 	Carlton	 	Minnesota
	 
	 	Cloquet, MN 55720-1570	 	 	 	 







10












 





	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	 

	 	27384 Highway 61 Blvd
	 	Goodhue
	 	Minnesota
	 

	 	Red Wing, MN	 	 	 	 
	 

	 	55066-5525	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	208 Adeline St
	 	Walworth
	 	Wisconsin
	 

	 	Walworth, WI	 	 	 	 
	 

	 	53184-9532	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	1000 Crocker Rd
	 	Cuyahoga
	 	Ohio
	 

	 	Westlake, OH	 	 	 	 
	 

	 	44145-1031	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	2575 Loomis Rd
	 	San Joaquin
	 	California
	 

	 	Stockton, CA	 	 	 	 
	 

	 	95205-8045	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	1000 Donn Dr
	 	Bartow
	 	Georgia
	 

	 	Cartersville, GA	 	 	 	 
	 

	 	30120-2668	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	850 N Broadway St
	 	Washington
	 	Mississippi
	 

	 	Greenville, MS	 	 	 	 
	 

	 	38701-2305	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	5500 Quarantine Rd
	 	Anne Arundel
	 	Maryland
	 

	 	Baltimore, MD	 	 	 	 
	 

	 	21226-1621	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	4500 Ardine St
	 	Los Angeles
	 	California
	 

	 	South Gate, CA 90280	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	100 D J Nootens Dr
	 	Jackson
	 	Alabama
	 

	 	Bridgeport, AL	 	 	 	 
	 

	 	35740-7054	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	200 Terminal St
	 	Suffolk
	 	Massachusetts
	 

	 	Charlestown, MA	 	 	 	 
	 

	 	02129-1981	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	1 USG Rd
	 	Nolan
	 	Texas
	 

	 	Sweetwater, TX	 	 	 	 
	 

	 	79556-2880	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	2 Division St
	 	Wayne County
	 	Michigan
	 

	 	River Rouge, MI	 	 	 	 
	 

	 	48218-1352	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	2750 Maple Ave
	 	Genesee
	 	New York
	 

	 	Oakfield, NY	 	 	 	 
	 

	 	14125-9722	 	 	 	 






11









 






	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	L & W Supply
	 	1032 11th Court,	 	Jefferson	 	Alabama
	Corporation
	 	West Birmingham, AL 35231	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	801 Second Avenue SE	 	Morgan	 	Alabama
	 
	 	Decatur, AL 35602	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4930 University Square	 	Madison	 	Alabama
	 
	 	Huntsville, AL 35816	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	661 Western Drive	 	Mobile	 	Alabama
	 
	 	Mobile, AL 36607	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	17655 Ashley Drive	 	Bay	 	Florida
	 
	 	Panama City, FL 32413	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	206 W. Herman Street	 	Escambia	 	Florida
	 
	 	Pensacola, FL	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	3960 Woodville Highway	 	Leon	 	Florida
	 
	 	Tallahassee, FL 32301	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	New BTS	 	Leon	 	Florida
	 
	 	Tallahassee, FL	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1303 Hightower Trail	 	DeKalb	 	Georgia
	 
	 	Atlanta, GA 30350	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	23 Sand Hill Shady Grove	 	Carroll	 	Georgia
	 
	 	Carrollton, GA 30116	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	111 Kelli Clark Court	 	Bartow	 	Georgia
	 
	 	Cartersville, GA 30121	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	5155 Cash Industrial Pk.	 	Forsyth	 	Georgia
	 
	 	Cumming, GA 30040	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2394 Weaver Way	 	DeKalb	 	Georgia
	 
	 	Doraville, GA 30340	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	434 Old Evans Road	 	Columbia	 	Georgia
	 
	 	Evans, GA 30809	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	101 Jonesboro Road	 	Henry	 	Georgia
	 
	 	McDonough, GA 30253	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	130 Amlajack Way	 	Coweta	 	Georgia
	 
	 	Newnan, GA 30265	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	3 Patton Road	 	Chatham	 	Georgia
	 
	 	Savannah,  GA 31405	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4755 N Church Lane, SE	 	Cobb	 	Georgia
	 
	 	Smyrna, GA 30080	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	970 Patrick Industrial Ct.	 	Cobb	 	Georgia
	 
	 	Winder, GA C	 	 	 	 






12









 






	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	 
	 	7842 Georgia Hwy 140	 	Cherokee County	 	Georgia
	 
	 	Woodstock, GA 30588	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	120 Tavistock Road	 	Buncombe	 	North Carolina
	 
	 	Arden, NC 28704	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	8200 Henderson Road	 	Mecklenburg	 	North Carolina
	 
	 	Charlotte, NC 28269	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	647 Michael Wylie Drive	 	Mecklenburg	 	North Carolina
	 
	 	Charlotte, NC 28217	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	7712 Boeing Drive	 	Guilford	 	North Carolina
	 
	 	Greensboro, NC 27409	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	3540 Diamond Drive	 	Pitt	 	North Carolina
	 
	 	Greenville, NC 27834	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4525 First Avenue, S.W.	 	Burke	 	North Carolina
	 
	 	Hickory, NC 28637	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	3931 Smith Farm Road	 	Mecklenburg	 	North Carolina
	 
	 	Matthews, NC 28105	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	5000 Trademark Drive	 	Wake	 	North Carolina
	 
	 	Raleigh, NC 27610	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4205 Emerson Street	 	New Hanover	 	North Carolina
	 
	 	Wilmington, NC 28403	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	382 Buck Island Rd.	 	Beaufort	 	South Carolina
	 
	 	Bluffton, SC 29910	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4311 Dorchester Road	 	Charleston	 	South Carolina
	 
	 	Charleston, SC 29405	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4311 Dorchester Road	 	Charleston	 	South Carolina
	 
	 	Charleston, SC 29405	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4311 Dorchester Road	 	Charleston	 	South Carolina
	 
	 	Charleston, SC 29405	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	738 Mauney Drive	 	Greenville	 	South Carolina
	 
	 	Columbia, SC 29211	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Old Stage Road	 	Horry	 	South Carolina
	 
	 	Simpsonville, SC 29681	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	3014 Drywall Drive	 	Polk	 	South Carolina
	 
	 	Myrtle Beach, SC 29577	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	408 Dixie Highway	 	Palm Beach	 	Florida
	 
	 	Auburndale, FL 33823	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	21195 Boca Rio Road	 	Lee	 	Florida
	 
	 	Boca Raton, FL 33433	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	24263 Production Circle	 	Manatee	 	Florida
	 
	 	Bonita Springs, FL 34135	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2510 Manatee Ave. East	 	Charlotte	 	Florida
	 
	 	Bradenton, FL 34208	 	 	 	 






13









 






	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	 
	 	3045 South McCall Rd.	 	Charlotte	 	Florida
	 
	 	Englewood, FL 34224	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	3045 South McCall Road	 	Charlotte	 	Florida
	 
	 	Englewood, FL 34224	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2912 Warehouse Road	 	Lee	 	Florida
	 
	 	Ft. Myers, FL 33916	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1751 N. Nova Rd.	 	Volusia	 	Florida
	 
	 	Holly Hill, FL	 	 	 	 
	 
	 	32117-1903	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	9410 Eden Avenue	 	Pasco	 	Florida
	 
	 	Hudson, FL 34667	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2919 Dawn Road	 	Duval	 	 
	 
	 	Jacksonville, FL 32207	 	 	 	Florida
	 
	 	 	 	 	 	 
	 
	 	2853 Dawn Road	 	Duval	 	Florida
	 
	 	Jacksonville, FL 32207	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	700 Commerce Way W.	 	Palm Beach	 	Florida
	 
	 	Jupiter, FL 33458	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2655 Irlo Bronson	 	Osceola	 	Florida
	 
	 	Kissimmee, FL  34744	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	7611 N.W. 74th Avenue	 	Miami-Dade	 	Florida
	 
	 	Medley, FL  33166	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	3181 Skyway Circle	 	Brevard	 	Florida
	 
	 	Melbourne, FL 32935	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	6190 Shirley Street	 	Collier	 	Florida
	 
	 	Naples, FL 34109	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1425 S.W. 15TH Ave.	 	Marion	 	Florida
	 
	 	Ocala, FL 34474	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	3018 Shader Rd.	 	Orange	 	Florida
	 
	 	Orlando, FL 32808	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1771 S.W. Biltmore St.	 	Saint Lucie	 	Florida
	 
	 	Port St. Lucie, FL 34984	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	250 Carmalita St.	 	Charlotte	 	Florida
	 
	 	Punta Gorda, FL 33951	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	3515 Heid Rd.	 	Highlands	 	Florida
	 
	 	Sebring, FL 33872	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2210 Dobbs Rd.	 	Saint Johns	 	Florida
	 
	 	St. Augustine, FL 32086	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2817 N. 36th Street	 	Hillsborough	 	Florida
	 
	 	Tampa, FL 33605-3127	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	3615 21st Avenue East	 	Hillsborough	 	Florida
	 
	 	Tampa, FL 33605	 	 	 	 







14












 





	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	 
	 	1971 Commerce Ave.	 	Indian River	 	Florida
	 
	 	Vero Beach, FL 32960	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4811 Dyer Blvd.	 	Palm Beach	 	Florida
	 
	 	W. Palm B., FL 33407	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1871 East Kings Ave.	 	Camden	 	Georgia
	 
	 	Kingsland, GA 31548	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	114 N. Main Street	 	Washtenaw	 	Michigan
	 
	 	Chelsea, MI 48118	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2318 Cass Road	 	Grand Traverse	 	Michigan
	 
	 	Traverse City, MI 49684	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	3470 Roger B. Chaffee	 	Kent	 	Michigan
	 
	 	Wyoming, MI 49548	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	330 Baker St.	 	Ingham	 	Michigan
	 
	 	Lansing, MI 48910	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	596 E. Highland Road	 	Summit	 	Ohio
	 
	 	Macedonia, OH  44056	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	6287 Lear Nagle Rd.	 	Lorain	 	Ohio
	 
	 	N. Ridgeville, OH 44039	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	26675 Eckel Road	 	Wood	 	Ohio
	 
	 	Perrysburg, OH 43552	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	26470 Southpoint	 	Wood	 	Ohio
	 
	 	Perrysburg, OH 43551	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	15660 S. Keeler Terrace	 	Johnson	 	Kansas
	 
	 	Olathe, KS  66062	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	117 South Smothers	 	Pulaski	 	Arkansas
	 
	 	N. Little Rock, AR 72114	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	3915 Business Park Dr.	 	Jefferson	 	Kentucky
	 
	 	Louisville, KY 40213	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4961 River Road	 	Jefferson	 	Louisiana
	 
	 	Jefferson, LA 70121	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	390 N. Valley Dell Drive	 	Saint Louis	 	Missouiri
	 
	 	Fenton, MO 63026	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	207 N. Ranson Road	 	Jackson	 	Missouri
	 
	 	Greenwood, MO 64034	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1002 S. Moffett	 	Jasper	 	Missouri
	 
	 	Joplin, MO 64802	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	5030 Waukomis Drive	 	Platte	 	Missouri
	 
	 	Northmoor, MO 64151	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2650 N. Westgate Ave.	 	Greene	 	Missouri
	 
	 	Springfield, MO 65803	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	12346 Intraplex Parkway	 	Harrison	 	Mississippi
	 
	 	Gulfport, MS 39503	 	 	 	 






15









 






	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	 
	 	300 West Monument St.	 	Hinds	 	Mississippi
	 
	 	Jackson, MS 39203	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1279 Road 681	 	Lee	 	Mississippi
	 
	 	Tupelo, MS 38801	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1150 McKinley Ave.	 	Franklin	 	Ohio
	 
	 	Columbus, OH  43222	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	3393 Needmore Road Dayton,	 	Montgomery	 	Ohio
	 
	 	OH  45414	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	11906 Tramway Drive	 	Hamilton	 	Ohio
	 
	 	Sharonville, OH  45241	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	11481 Gulfstream Drive	 	Shelby	 	Trnnessee
	 
	 	Arlington, TN 38002”	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4275 Shallowford Road	 	Hamilton	 	Tennessee
	 
	 	Chattanooga, TN  37422	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	75 United Drive	 	Madison	 	Tennessee
	 
	 	Jackson, TN 38305	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	8 Wesley Street	 	Washington	 	Tennessee
	 
	 	Johnson City, TN  37602	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2646 Byington Solway Rd	 	Knox	 	Tennessee
	 
	 	Knoxville, TN  37931	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	285 Main Street	 	Lake	 	Illinois
	 
	 	Antioch, IL 60002	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2017 West Hubbard St.	 	Cook	 	Illinois
	 
	 	Chicago, IL	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	430 N. Damen Ave.	 	Cook	 	Illinois
	 
	 	Chicago, IL 60622	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	275 Harvestore Drive	 	DeKalb	 	Illinois
	 
	 	DeKalb, IL 60115	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	235 Industrial Drive	 	Kane	 	Illinois
	 
	 	Hampshire, IL 60140	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	8845 West 192nd St.	 	Will	 	Illinois
	 
	 	Mokena, IL 60448	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	221 W. Jefferson Ave.	 	DuPage	 	Illinois
	 
	 	Naperville, IL 60540	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	303 W. Irving Park Road	 	DuPage	 	Illinois
	 
	 	Roselle, IL 60172	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	303 W. Irving Park Rd.	 	DuPage	 	Illinois
	 
	 	Roselle, IL 60172 	 	 	 	 
	 
	 	(Railroad land lease)	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	201 Messner Drive	 	Cook	 	Illinois
	 
	 	Wheeling, IL 60090	 	 	 	 






16









 






	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	 
	 	11130 Delaware Parkway	 	Lake	 	Indiana
	 
	 	Crown Point, IN 46307	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1050 S. Emerson Ave.	 	Marion	 	Indiana
	 
	 	Indianapolis, IN  46203	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2119 S. 3rd Street	 	Vigo	 	Indiana
	 
	 	Terre Haute, IN 47802	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	13586 Thrush St. NW	 	Anoka	 	Minnesota
	 
	 	Andover, MN 55304	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	12450 Beard Ave., South	 	Dakota	 	Minnesota
	 
	 	Burnsville, MN  55337	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	3603 Hogarth St.	 	Eau Claire	 	Wisconsin
	 
	 	Eau Claire, WI 54703	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	215 N. Henry Street	 	Brown	 	Wisconsin
	 
	 	Green Bay, WI 54308	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2155 W. Nordale Drive	 	Outagamie	 	Wisconsin
	 
	 	Appleton, WI 54912	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4701 McFarland Ct.	 	Dane	 	Wisconsin
	 
	 	McFarland, WI 53558	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4786 McFarland Ct.	 	Dane	 	Wisconsin
	 
	 	McFarland, WI 53558	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4949 N. 119th Street	 	Milwaukee	 	Wisconsin
	 
	 	Milwaukee, WI 53225	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	739 Washington St.	 	Marathon	 	Wisconsin
	 
	 	Wausau, WI 54403	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	12595 E. 61st Street	 	Tulsa	 	Oklahoma
	 
	 	Broken Arrow, OK 74012	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1500 Exchange Ave.	 	Oklahoma	 	Oklahoma
	 
	 	Oklahoma City, OK 73108	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	503 Industrial Blvd.	 	Travis	 	Texas
	 
	 	Austin, TX 78760	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2802 Flintrock Trace	 	Travis	 	Texas
	 
	 	Austin, TX  78738	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	7420 Wespark Drive	 	Jefferson	 	Texas
	 
	 	Beaumont, TX 77705	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	420 Industrial Blvd.	 	Brazos	 	Texas
	 
	 	Bryan, TX 77803	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2302 Pollex	 	Nueces	 	Texas
	 
	 	Corpus Christi, TX 78415	 	 	 	 






17









 






	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	 
	 	2639 Lombardy Lane Dallas,	 	Dallas	 	Texas
	 
	 	TX  75220	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1401 Meacham Blvd.	 	Tarrant	 	Texas
	 
	 	Ft. Worth, TX 76106	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	10750 John W. Eliot Road	 	Collin	 	Texas
	 
	 	Frisco, TX 75034	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	3302 Spur 54	 	Cameron	 	Texas
	 
	 	Harlingen, TX 78550	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	6545 Burlington N. Drive	 	Harris	 	Texas
	 
	 	Houston, TX  77092	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1010 Rankin Rd.	 	Harris	 	Texas
	 
	 	Houston, TX 77073	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1415 E. Broadway	 	Brazoria	 	Texas
	 
	 	Pearland, TX 77581	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	6124 Reading Road	 	Fort Bend	 	Texas
	 
	 	Rosenberg, TX 77471	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2100 Mannix	 	Bexar	 	Texas
	 
	 	San Antonio, TX 78217	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	New BTS,	 	Guadalupe	 	Texas
	 
	 	Schertz , TX	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	6696 Doniphan	 	El Paso	 	Texas
	 
	 	Canutillo, TX 79835	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	905 Hawkins Blvd.	 	El Paso	 	Texas
	 
	 	El Paso, TX 79915	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1203 N. Schultz, Bldg. #2	 	Pinal	 	Arizona
	 
	 	Casa Grande, AZ 85222	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2808 N. 27th Ave.	 	Maricopa	 	Arizona
	 
	 	Phoenix, AZ 85009	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2850 N. Enterprise Pkwy	 	Yavapai	 	Arizona
	 
	 	Prescott Valley, AZ 86314	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4119 E. Anderson Street	 	Cochise	 	Arizona
	 
	 	Sierra Vista, AZ 85650	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2310 Gardner Lane	 	Pima	 	Arizona
	 
	 	Tucson, AZ  85705	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	549 Commerce Circle	 	Clark	 	Nevada
	 
	 	Mesquite, NV  89027	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1818 Losee Road	 	Clark	 	Nevada
	 
	 	N. Las Vegas, NV 89030	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	17608 E. 24th Drive	 	Adams	 	Colorado
	 
	 	Aurora, CO 80011	 	 	 	 






18









 






	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	 
	 	2820 N. Prospect	 	El Paso	 	Colorado
	 
	 	Colo. Springs, CO 80907	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1401 Academy Court	 	Larimer	 	Colorado
	 
	 	Ft. Collins, CO 80521	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1249 Boeing Street	 	Ada	 	Idaho
	 
	 	Boise, ID 83705	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4132 Haroldsen Drive	 	Bonneville	 	Idaho
	 
	 	Idaho Falls, ID  83401	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	318 E. Karcher Rd.	 	Canyon	 	Idaho
	 
	 	Nampa, ID 83687	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	408 E. Karcher Rd.	 	Canyon	 	Idaho
	 
	 	Nampa, ID 83687	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	483 Eastland Drive South	 	Twin Falls	 	Idaho
	 
	 	Twin Falls, ID 83301	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	689 SE Glenwood Drive	 	Deschutes	 	Oregon
	 
	 	Bend, OR 97702	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	3919 West 1st Ave.	 	Lane	 	Oregon
	 
	 	Eugene, OR 97402	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	21375 NW Cherry Lane	 	Washington	 	Oregon
	 
	 	Hillsboro, OR 97124	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	365 Ehrman Way	 	Jackson	 	Oregon
	 
	 	Medford, OR	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	100 SE 111th Ave.	 	Multnomah	 	Oregon
	 
	 	Portland, OR 97266	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	7220 SW Bonita Road	 	Washington	 	Oregon
	 
	 	Tigard, OR 97224	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	485 N. Main St.	 	Davis	 	Utah
	 
	 	Layton, UT 84041	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	255 North 1000 W.	 	Cache	 	Utah
	 
	 	Logan, UT 84341	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	657 W. 8th Ave.	 	Salt Lake	 	Utah
	 
	 	Midvale, UT 84047	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	3125 Grant Ave.	 	Weber	 	Utah
	 
	 	Ogden, UT 84401	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	48 N. 1330 W.	 	Utah	 	Utah
	 
	 	Orem, UT 84057	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1364 West State Road	 	Utah	 	Utah
	 
	 	Pleasant Grove, UT 84062	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	9192 South 300 West	 	Salt Lake	 	Utah
	 
	 	Sandy, UT  84070	 	 	 	 






19









 






	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	 
	 	708 N. 3050, Suite A	 	Washington	 	Utah
	 
	 	St. George, UT 84770	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4058 South River Rd., #4	 	Washington	 	Utah
	 
	 	St. George, UT 84770	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	376 East 400 South #4	 	Utah	 	Utah
	 
	 	Springville, UT 84663	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	3663 Chico Way NW	 	Kitsap	 	Utah
	 
	 	Bremerton, WA 98310	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	15102 Smokey Point	 	Snohomish	 	Washington
	 
	 	Marysville, WA 98271	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	14980 NE 90th St.	 	King	 	Washington
	 
	 	Redmond, WA 98052	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	East 6819 Mission	 	Spokane	 	Washington
	 
	 	Spokane, WA 99212	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	7416 E. Broadway Ave.	 	Spokane	 	Washington
	 
	 	Spokane Valley, WA 99212	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4400 A Industry Drive E.	 	Pierce	 	Washington
	 
	 	Tacoma, WA 98421	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2508 East Fox Farm Rd.	 	Laramie	 	Washington
	 
	 	Cheyenne, WY 82007	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1087/1099 Doris	 	Oakland	 	Michigan
	 
	 	Auburn Hills, MI 48326	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1055 Doris	 	Oakland	 	Michigan
	 
	 	Auburn Hills, MI 48326	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	28187 Kehrig Drive	 	Macomb	 	Michigan
	 
	 	Chesterfield, MI 48047	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	28377 Kehrig Drive	 	Macomb	 	Michigan
	 
	 	Chesterfield, MI 48047	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	2632 Lippencott	 	Genesee	 	Michigan
	 
	 	Flint, MI 48507	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4100 Lambert Drive	 	Livingston	 	Michigan
	 
	 	Howell, MI 48855	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	118 Rosehill #A	 	Jackson	 	Michigan
	 
	 	Jackson, MI 49202	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	118 Rosehill #D	 	Jackson	 	Michigan
	 
	 	Jackson, MI 49202	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	120 Rosehill	 	Jackson	 	Michigan
	 
	 	Jackson, MI 49202	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	33026 Capitol	 	Wayne	 	Michigan
	 
	 	Livonia, MI 48150	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	12770 Farmington	 	Wayne	 	Michigan
	 
	 	Livonia, MI 48150	 	 	 	 






20









 






	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	 
	 	615 Harbor	 	Monroe	 	Michigan
	 
	 	Monroe, MI 48162	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4315 Corporate Drive	 	Isabella	 	Michigan
	 
	 	Mt. Pleasant, MI 48858	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4180 Dove Road	 	Saint Clair	 	Michigan
	 
	 	Port Huron, MI 48060	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	3725 East Washington	 	Saginaw	 	Michigan
	 
	 	Saginaw, MI 48601	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	1255 W. Michigan Ave.	 	Washtenaw	 	Michigan
	 
	 	Ypsilanti, MI 48197	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	10559 Geiser Road	 	Lucas	 	Ohio
	 
	 	Holland, OH 43528	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	33000 Capitol	 	Wayne	 	Michigan
	 
	 	Livonia, MI 48150	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	33900 Concord	 	Wayne	 	Michigan
	 
	 	Livonia, MI 48150	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	195 Sackett Point Rd.	 	New Haven	 	Connecticut
	 
	 	North Haven, CT 06473	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	573 Bellevue Road	 	New Castle	 	Delaware
	 
	 	Newark, DE 19713	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	20 Railroad Ave.	 	Sussex	 	Delaware
	 
	 	Selbyville, DE 19975	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	9714 Pulaski Highway	 	Baltimore	 	Maryland
	 
	 	Baltimore, MD 21220	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	West 4661 Hollins Ferry Road	 	Baltimore	 	Maryland
	 
	 	Baltimore, MD 21227	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	3 Washington Street	 	Dorchester	 	Maryland
	 
	 	Cambridge, MD 21613	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	16608 Huntersgreen	 	Washington	 	Maryland
	 
	 	Hagerstown, MD 21740	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	28895 Three Notch Rd.	 	Saint Mary’s	 	Maryland
	 
	 	Mechanicsville, MD	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	301 Serendipity Drive	 	Anne Arundel	 	Maryland
	 
	 	Millersville, MD 21108	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	8830 Orchard Tree Lane	 	 	 	 
	 
	 	Towson, MD 21286	 	Baltimore	 	Maryland







21












 





	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	 
	 	193 Fairfield Rd.	 	 	 	 
	 
	 	Fairfield, NJ 07004	 	Essex	 	New Jersey
	 
	 	 	 	 	 	 
	 
	 	163 Garfield Ave.	 	 	 	 
	 
	 	Kearney, NJ 07032	 	Hudson	 	New Jersey
	 
	 	 	 	 	 	 
	 
	 	172-174 Garfield Ave.	 	 	 	 
	 
	 	Kearney, NJ 07032	 	Hudson	 	New Jersey
	 
	 	 	 	 	 	 
	 
	 	39 Colonial Drive	 	 	 	 
	 
	 	Piscataway, NJ 08854	 	Middlesex	 	New Jersey
	 
	 	 	 	 	 	 
	 
	 	14 Central Blvd.	 	 	 	 
	 
	 	S. Hackensack, NJ 07606	 	Bergen	 	New Jersey
	 
	 	 	 	 	 	 
	 
	 	1351 Route 37 West	 	 	 	 
	 
	 	Toms River, NJ 08755	 	Ocean	 	New Jersey
	 
	 	 	 	 	 	 
	 
	 	315 N. Clinton Ave.	 	 	 	 
	 
	 	Trenton, NJ 08638	 	Mercer	 	New Jersey
	 
	 	 	 	 	 	 
	 
	 	675 Duke Road.	 	 	 	 
	 
	 	Buffalo, NY  14225	 	Erie	 	New York
	 
	 	 	 	 	 	 
	 
	 	36A Green Mountain Dr.	 	 	 	 
	 
	 	Cohoes, NY 12047	 	Albany	 	New York
	 
	 	 	 	 	 	 
	 
	 	500 Beach Rd.	 	 	 	 
	 
	 	W. Haverstraw, NY 10993	 	Rockland	 	New York
	 
	 	 	 	 	 	 
	 
	 	657 Route 17K	 	 	 	 
	 
	 	Montgomery, NY 12549	 	Orange	 	New  York
	 
	 	 	 	 	 	 
	 
	 	7330 Townline Road	 	 	 	 
	 
	 	N. Tonawanda, NY 14120	 	Niagara	 	New  York
	 
	 	 	 	 	 	 
	 
	 	200 Pixley Rd.	 	 	 	 
	 
	 	Rochester, NY 14624	 	Monroe	 	New York
	 
	 	 	 	 	 	 
	 
	 	1635 Airport Road Suite 7	 	 	 	 
	 
	 	Allentown, PA 18103	 	Lehigh	 	Pennsylvania
	 
	 	 	 	 	 	 
	 
	 	2011 West 12th Street	 	 	 	 
	 
	 	Erie, PA 16505	 	Erie	 	Pennsylvania






22









 






	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	 
	 	111 Titus Ave.	 	 	 	 
	 
	 	Warrington, PA 18976	 	Bucks	 	Pennsylvania
	 
	 	 	 	 	 	 
	 
	 	556 Dettor Road	 	 	 	 
	 
	 	Charlottesville, VA 22903	 	Charlottesville	 	Virginia
	 
	 	 	 	 	 	 
	 
	 	10951 Pierson Drive	 	 	 	 
	 
	 	Fredericksburg, VA 22408	 	Spotsylvania	 	Virginia
	 
	 	 	 	 	 	 
	 
	 	401 E. Street	 	 	 	 
	 
	 	Hampton, VA 23661	 	Hampton City	 	Virginia
	 
	 	 	 	 	 	 
	 
	 	11460 Balls Ford Road	 	 	 	 
	 
	 	Manassas, VA 20109	 	Prince William	 	Virginia
	 
	 	 	 	 	 	 
	 
	 	5600 E. Virginia Beach	 	 	 	 
	 
	 	Norfolk, VA 23502	 	Norfolk City	 	Virginia
	 
	 	 	 	 	 	 
	 
	 	2001 Magnolia St.	 	 	 	 
	 
	 	Richmond, VA 23223	 	Richmond City	 	Virginia
	 
	 	 	 	 	 	 
	 
	 	1639 Eastern Ave., NE	 	 	 	 
	 
	 	Roanoke, VA 24012	 	Roanoke City	 	Virginia
	 
	 	 	 	 	 	 
	 
	 	4551 John Tyler Highway	 	 	 	 
	 
	 	Williamsburg, VA 23185	 	James City	 	Virginia
	 
	 	 	 	 	 	 
	 
	 	126 Route 94	 	 	 	 
	 
	 	Blairstown, NJ 07825	 	Warren	 	New Jersey
	 
	 	 	 	 	 	 
	 
	 	128 Route 94	 	 	 	 
	 
	 	Blairstown, NJ 07825	 	Warren	 	New Jersey
	 
	 	 	 	 	 	 
	 
	 	2180 N Glassell St.	 	 	 	 
	 
	 	Orange, CA 92865	 	Orange	 	California
	 
	 	 	 	 	 	 
	 
	 	1300 S. River Road	 	 	 	 
	 
	 	West Sacramento, CA 95961	 	Yuba	 	California
	 
	 	 	 	 	 	 
	California
	 	5812 Trade Center Drive	 	Travis	 	Texas
	Wholesale Material
Supply, LLC
	 	Austin, TX 78744  	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	16820 Calply Drive	 	Travis	 	Texas
	 
	 	Pflugerville, TX 78660 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	17100 I.H. 10 West	 	Bexar	 	Texas
	 
	 	San Antonio, TX 78257 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	4900 Calvert Street	 	Dallas	 	Texas
	 

	 	Dallas, TX 75247	 	 	 	 







23












 





	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	 

	 	2929 S. 38th Street
	 	Maricopa
	 	Arizona
	 

	 	Phoenix, AZ 85040	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	302 S. 30th Street
	 	Maricopa
	 	Arizona
	 

	 	Phoenix, AZ 85034	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	2450 N. Flowing Wells
	 	Pima
	 	Arizona
	 

	 	Tucson, AZ 85705	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	5131 Edith Blvd., NE
	 	Bernalillo
	 	New Mexico
	 

	 	Albuquerque, NM 87107	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	7490 Commercial Way
	 	Clark
	 	Nevada
	 

	 	Henderson, NV 89015	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	4450 McGuire Street
	 	Clark
	 	Nevada
	 

	 	Las Vegas, NV	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	4611 Mitchell Street
	 	Clark
	 	Nevada
	 

	 	N. Las Vegas, NV 89081	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	4330 Production Court
	 	Clark
	 	Nevada
	 

	 	N. Las Vegas, NV 89115	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	1442 West Center Street
	 	Utah
	 	Utah
	 

	 	Orem, UT 84057	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	9255 S. 255 West
	 	Salt Lake County
	 	Utah
	 

	 	Sandy, UT 84070	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	1400 E. Cerritos Ave.
	 	Orange County
	 	California
	 

	 	Anaheim, CA 92805	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	5601 Aldrin Court
	 	Kertn
	 	California
	 

	 	Bakersfield, CA 93313	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	7901 Deering Ave.
	 	Los Angeles
	 	California
	 

	 	Canoga Park, CA 91304	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	8531 E. Florence Ave.
	 	Los Angeles
	 	California
	 

	 	Downey, CA	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	31625 Hayman Street
	 	Alameda
	 	California
	 

	 	Hayward, CA 94544	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	42-805 Madio Street
	 	Riverside
	 	California
	 

	 	Indio, CA 92201	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	2511 E. 115th Place
	 	Los Angeles
	 	California
	 

	 	Los Angles, CA 90059	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	1860 S. Milliken Ave. #E
	 	San Bernardino
	 	California
	 

	 	Ontario, CA 95407	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	7330 S. Crider Ave.
	 	Los Angeles
	 	California
	 

	 	Pico Rivera, CA 90660	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	251 East 4th Street
	 	San Joaquin
	 	California
	 

	 	Ripon, CA 95366	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	616 S. Iowa Street
	 	San Bernardino
	 	California
	 

	 	Redlands, CA	 	 	 	 







24









 






	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	 

	 	7750 Convoy Court
	 	San Diego
	 	California
	 

	 	San Diego, CA 92111	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	3600 Third Street
	 	San Francisco
	 	California
	 

	 	San Francisco, CA 94124	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	914 W. Boone Street
	 	Santa Barbara
	 	California
	 

	 	Santa Maria, CA 93458	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	3420 Dutton Ave.
	 	Sonoma
	 	California
	 

	 	Santa Rosa, CA 95407	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	1540 S. River Road
	 	Yolo
	 	California
	 

	 	W. Sacramento, CA 95691	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	333 Glendale Ave.
	 	Washoe
	 	Nevada
	 

	 	Sparks, NV 89431	 	 	 	 
	 
	 	 	 	 	 	 
	Livonia Building

	 	33900 Concord
	 	Wayne
	 	Michigan
	Materials, LLC

	 	Livonia, MI 48150	 	 	 	 
	 
	 	 	 	 	 	 
	River City

	 	825 Bond Street
	 	Pulaski
	 	Arkansas
	Materials, Inc.

	 	Little Rock, AR 72202	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	1504 N. 35th Street
	 	Benton
	 	Arkansas
	 

	 	Rogers, AR 72756	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	1755 Airways Blvd.
	 	Shelby
	 	Tennessee
	 

	 	Memphis, TN 38114	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	300 W. Monument
	 	Hinds
	 	Mississippi
	 

	 	Jackson, MS 39203	 	 	 	 
	 
	 	 	 	 	 	 
	USG Foreign
Investments, Ltd.

	 	None	 	 	 	 
	 
	 	 	 	 	 	 
	Otsego Paper, Inc.

	 	320 N. Farmer St
	 	Allegan
	 	Michigan
	 

	 	Otsego, MI 49078-1150	 	 	 	 








 




			
	(d) The jurisdiction of formation of each Grantor that is a registered organization is set
forth opposite its name below:





	 	 	 
	Grantor:	 	Jurisdiction:
	USG Corporation
	 	Delaware
	 	 	 
	United States Gypsum Company
	 	Delaware






25









 






	 	 	 
	Grantor:	 	Jurisdiction:
	USG Interiors, Inc.
	 	Delaware
	 	 	 
	L & W Supply Corporation
	 	Delaware
	 	 	 
	California Wholesale Material Supply, LLC
	 	Delaware
	 	 	 
	Livonia Building Materials, LLC
	 	Michigan
	 	 	 
	River City Materials, Inc.
	 	Arkansas
	 	 	 
	USG Foreign Investments, Ltd.
	 	Delaware
	 	 	 
	Otsego Paper, Inc.
	 	Delaware








 




			
	(e) Set forth below opposite the name of each Grantor are all the places of business of such
Grantor not identified in paragraph (a), (b), (c) or (d) above:





	 	 	 	 	 	 	 
	Grantor	 	Mailing Address	 	County	 	State
	USG Corporation

	 	None	 	 	 	 
	 
	 	 	 	 	 	 
	United States Gypsum Company

	 	None
	 	 	 	 
	 
	 	 	 	 	 	 
	USG Interiors, Inc.

	 	None	 	 	 	 
	 
	 	 	 	 	 	 
	L & W Supply Corporation

	 	None	 	 	 	 
	 
	 	 	 	 	 	 
	California

Wholesale Material 

Supply, LLC

	 	None	 	 	 	 
	 
	 	 	 	 	 	 
	Livonia Building Materials, LLC

	 	None	 	 	 	 
	 
	 	 	 	 	 	 
	River City Materials, Inc.

	 	None
	 	 	 	 
	 
	 	 	 	 	 	 
	USG Foreign Investments, Ltd.

	 	None	 	 	 	 
	 
	 	 	 	 	 	 
	Otsego Paper, Inc.

	 	None	 	 	 	 







26












 






(f) Set forth below opposite the name of each Grantor are the names and addresses of all
Persons other than such Grantor that have possession of any of the Collateral of such Grantor:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	Grantor	 	Collateral Possessor	 	Mailing Address	 	County	 	State
	USG Corporation

	 	Precision Components
	 	1820 South 35th Ave

Phoenix, AZ 85009
	 	Maricopa
	 	Arizona
	 
	 	 	 	 	 	 	 	 
	 

	 	Texas Star Warehouse & Distribution, Inc.
	 	5200 East Grand 

Avenue, Ste 400

Dallas, TX 75223-2216
	 	Dallas
	 	Texas
	 
	 	 	 	 	 	 	 	 
	 

	 	Osterkamp Trucking Inc.
	 	1350 E. Philadelphia

Pomona, CA 91769
	 	Los Angeles
	 	California
	 
	 	 	 	 	 	 	 	 
	 

	 	TriPak, Inc.
	 	13615 Pioneer Way

E. Puyallup, WA
	 	Pierce
	 	Washington
	 
	 	 	 	 	 	 	 	 
	 

	 	TriPak, Inc.
	 	1209 St. Paul Ave 

Tacoma, WA
	 	Pierce
	 	Washington
	 
	 	 	 	 	 	 	 	 
	 

	 	American Warehouse Company, Inc.
	 	4900 Dahlia St

Denver, CO 80216
	 	Denver
	 	Colorado
	 
	 	 	 	 	 	 	 	 
	 

	 	Lewis C. Howard Inc.
	 	760 East Vine Street

Kalamazoo, MI 49001
	 	Kalamazoo
	 	Michigan
	 
	 	 	 	 	 	 	 	 
	 

	 	Oregon Metal Slitters. Inc.
	 	7227 N. Leadbetter Rd. Portland, OR 97015
	 	Clackamas
	 	Oregon
	 
	 	 	 	 	 	 	 	 
	 

	 	255 Blair Road LLC
	 	255 Blair Road

Avenel, NJ 07001
	 	Middlesex
	 	New Jersey
	 
	 	 	 	 	 	 	 	 
	 

	 	11111 Santa Monica Boulevard, Ste 950

Los Angeles, CA 90025
	 	National Industrial Portfolio Borrower, LLC
	 	Los Angeles
	 	California
	 
	 	 	 	 	 	 	 	 
	 

	 	Hilltop
	 	1555 1/2 Harvard Ave.

Cleveland, OH 44105
	 	Cuyahoga
	 	Ohio
	 
	 	 	 	 	 	 	 	 
	 

	 	Coil Slitting International
	 	624 Hamilton Road

Weirton, WV 26062
	 	Hancock
	 	West Virginia
	 
	 	 	 	 	 	 	 	 
	 

	 	Feroleto Steel Company Inc
	 	Half Moon Industrial Park Weirton, WV 26062
	 	Hancock
	 	West Virginia
	 
	 	 	 	 	 	 	 	 
	 

	 	Wymore Transfer Co.
	 	12651 SE Capps Rd

Clackamas, OR 97015
	 	Clackamas
	 	Oregon






27









 








	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	Grantor	 	Collateral Possessor	 	Mailing Address	 	County	 	State
	 

	 	ALL METALS SERVICE & WAREHOUSING, INC.
	 	100 All Metals Drive

Cartersville, GA 30120
	 	Bartow
	 	Georgia
	 
	 	 	 	 	 	 	 	 
	 

	 	COLONA TRANSFER L.P.
	 	1755 Pennsylvania Ave

Monaca, PA 15061
	 	Beaver
	 	Pennslyvania
	 
	 	 	 	 	 	 	 	 
	 

	 	LANDFILL SERVICES

(NORTHERN

STATES POWER RED WING STEAM PLANT)
	 	801 East Fifth Street

Red Wing, MN 55066
	 	Goodhue
	 	Minnesota
	 
	 	 	 	 	 	 	 	 
	 

	 	San Joanquin Steel Inc
	 	2012 Sanguinetti Lane

Stockton, CA 95025
	 	San Joaquin
	 	California
	 
	 	 	 	 	 	 	 	 
	 

	 	Metal Coaters of California, Inc
	 	9123 Center Ave

Rancho Cucanmonga, 

CA 91730
	 	San Bernardino
	 	California
	United States Gypsum Company

	 	None	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	USG Interiors, Inc.

	 	None	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	L & W Supply Corporation

	 	None	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	California Wholesale Material 

Supply, LLC

	 	None	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Livonia Building Materials, LLC

	 	None	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	River City Materials, Inc.

	 	None	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	USG Foreign Investments, Ltd.

	 	None	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Otsego Paper, Inc.

	 	None	 	 	 	 	 	 






28









 




3. Unusual Transactions. All Accounts have been originated by the Grantors in the
ordinary course of business.



4. File Search Reports. File search reports have been obtained from each Uniform
Commercial Code filing office identified with respect to such Grantor in Section 2 hereof, and such
search reports reflect no liens against any of the Collateral other than those permitted under the
Credit Agreement.



5. UCC Filings. Financing statements in substantially the form of Schedule 5 hereto have
been prepared for filing in the proper Uniform Commercial Code filing office in the jurisdiction in
which each Grantor is located.



6. Schedule of Filings. Attached hereto as Schedule 6 is a schedule setting forth, with
respect to the filings described in Section 5 above, each filing and the filing office in which
such filing is to be made.



7. Deposit Accounts. Attached hereto as Schedule 7 is a true and correct list of
Collateral Deposit Accounts maintained by each Grantor, including the name and address of the
depositary institution, the type of account and the account number.




29









 





     IN WITNESS WHEREOF, the undersigned have duly executed this Certificate on this ___ day of
January, 2009.



	 	 	 	 	 
	 	USG CORPORATION,

 	 
	 	by  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	Financial Officer 	 








30









 









Schedule 1





     Changes in identity or corporate structure of Grantors within the past two years.


California Wholesale Material Supply, LLC




     Merger with: California Wholesale Material Supply, Inc. December 31, 2007



          1.  (a) Exact Legal Name of prior entity: California Wholesale Material Supply, Inc.




               (b) Prior Legal Names — None



               (c) Corporate Changes — N/A



               (d) Other Names — None



               (e) Organizational Identification Number — not known



               (f) FEIN — N/A



          2.  (a) Most Recent Location




	 	 	 	 	 	 	 

	California

	 	8535 E. Florence Avenue
	 	Los Angeles
	 	California
	Wholesale Material 

Supply, Inc.

	 	Downey, CA 90240	 	 	 	 






               (b) Location of books and records for prior 2 years




	 	 	 	 	 	 	 

	California

	 	8535 E. Florence Avenue
	 	Los Angeles
	 	California
	
Wholesale Material 

Supply, Inc.

	 	Downey, CA 90240	 	 	 	 






               (c) Location of other collateral for prior 2 years




	 	 	 	 	 	 	 

	California
 Wholesale Material
 Supply, Inc.

	 	See California Wholesale Material

Supply, LLC list above
	 	 
	 	 






               (d) Jurisdiction of formation — California




               (e) Other business locations for prior 2 years




	 	 	 	 	 	 	 

	California
 Wholesale Material
 Supply, Inc.

	 	None
	 	 
	 	 






               (f) Location of collateral in possession of another party for prior 2 years




	 	 	 	 	 	 	 

	California
 Wholesale Material
 Supply, Inc.

	 	None
	 	 
	 	 





L & W Supply Corporation




     Merger with: Livonia Holdings, Inc. January 1, 2009



 









 





1. (a) Exact Legal Name of prior entity: Livonia Holdings, Inc.




               (b) Prior Legal Names — None



               (c) Corporate Changes — N/A



               (d) Other Names



	 	 	 	 	 
	Livonia
Holdings, Inc.	 	MI, OH	 
	Livingston Building Materials, LLC
	 	MI
	Frames, Doors & Hardware, Inc.
	 	MI
	Oakland Building Materials Co.
	 	MI
	Ceilings & Walls, Inc.
	 	MI
	Progressive Building Materials, Inc.
	 	MI
	East Side Building Materials Co.
	 	MI
	Acoustical Services, Inc.
	 	MI
	Specialty Distributors, Inc.
	 	MI
	Jackson Building Materials Co.
	 	MI
	Preferred Building Materials Co., Inc.
	 	MI






               (e) Organizational Identification Number — 4125260



               (f) FEIN
— ***



          2. (a) Most Recent Location




	 	 	 	 	 	 	 

	Livonia Holdings, Inc.

	 	550 West Adams Street

Chicago, IL 60661
	 	Cook
	 	Illinois






              (b) Location of books and records for prior 2 years




	 	 	 	 	 	 	 

	Livonia Holdings, Inc.

	 	33900 Concord

Livonia, MI 48150
	 	Wayne
	 	Michigan






              (c) Location of other collateral for prior 2 years




	 	 	 	 	 	 	 

	Livonia Holdings, Inc.

	 	1087/1099Doris

Auburn Hills, MI 48326
	 	Oakland
	 	Michigan
	 
	 	 	 	 	 	 
	 

	 	1055 Doris

Auburn Hills, MI 48326
	 	Oakland
	 	Michigan
	 
	 	 	 	 	 	 
	 

	 	28187 Kehrig Drive

Chesterfield, MI 48047
	 	Macomb
	 	Michigan
	 
	 	 	 	 	 	 
	 

	 	28377 Kehrig Drive

Chesterfield, MI 48047
	 	Macomb
	 	Michigan
	 
	 	 	 	 	 	 
	 

	 	2632 Lippencott

Flint, MI 48507
	 	Genesee
	 	Michigan
	 
	 	 	 	 	 	 
	 

	 	4100 Lambert Drive

Howell, MI 48855
	 	Livingston
	 	Michigan
	 
	 	 	 	 	 	 
	 

	 	118 Rosehill #A

Jackson, MI 49202
	 	Jackson
	 	Michigan





*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION***





32









 






	 	 	 	 	 	 	 

	 

	 	118 Rosehill #D

Jackson, MI 49202
	 	Jackson
	 	Michigan
	 
	 	 	 	 	 	 
	 

	 	120 Rosehill

Jackson, MI 49202
	 	Jackson
	 	Michigan
	 
	 	 	 	 	 	 
	 

	 	33026 Capitol

Livonia, MI 48150
	 	Wayne
	 	Michigan
	 
	 	 	 	 	 	 
	 

	 	12770 Farmington

Livonia, MI 48150
	 	Wayne
	 	Michigan
	 
	 	 	 	 	 	 
	 

	 	615 Harbor

Monroe, MI 48162
	 	Monroe
	 	Michigan
	 
	 	 	 	 	 	 
	 

	 	4315 Corporate Drive

Mt. Pleasant, MI 48858
	 	Isabella
	 	Michigan
	 
	 	 	 	 	 	 
	 

	 	4180 Dove Road

Port Huron, MI 48060
	 	Saint Clair
	 	Michigan
	 
	 	 	 	 	 	 
	 

	 	3725 East Washington

Saginaw, MI 48601
	 	Saginaw
	 	Michigan
	 
	 	 	 	 	 	 
	 

	 	1255 W. Michigan Ave.

Ypsilanti, MI 48197
	 	Washtenaw
	 	Michigan
	 
	 	 	 	 	 	 
	 

	 	10559 Geiser Road

Holland, OH 43528
	 	Lucas
	 	Ohio
	 
	 	 	 	 	 	 
	 

	 	33000 Capitol

Livonia, MI 48150
	 	Wayne
	 	Michigan
	 
	 	 	 	 	 	 
	 

	 	33900 Concord

Livonia, MI 48150
	 	Wayne
	 	Michigan






          (d) Jurisdiction of formation — Delaware




          (e) Other business locations for prior 2 years




	 	 	 	 	 	 	 

	Livonia Holdings, Inc.

	 	None
	 	 
	 	 






          (f) Location of collateral in possession of another party for prior 2 years




	 	 	 	 	 	 	 

	Livonia Holdings, Inc.

	 	None
	 	 
	 	 





Livonia Holdings, Inc.




     Merger with: Livonia Operating, Inc. December 31, 2008



          1. (a) Exact Legal Name of prior entity: Livonia Operating, Inc.




               (b) Prior Legal Names — None



               (c) Corporate Changes — N/A



33









 





               (d) Other Names — None



               (e) Organizational Identification Number — 4125261



               (f) FEIN — N/A



          2. (a) Most Recent Location




	 	 	 	 	 	 	 

	Livonia Operating, Inc.

	 	550 West Adams Street

Chicago, IL 60661
	 	Cook
	 	Illinois






          (b) Location of books and records for prior 2 years




	 	 	 	 	 	 	 

	Livonia Operating, Inc.

	 	550 West Adams Street

Chicago, IL 60661
	 	Cook
	 	Illinois






          (c) Location of other collateral for prior 2 years




	 	 	 	 	 	 	 

	Livonia Operating, Inc.

	 	None
	 	 
	 	 






          (d) Jurisdiction of formation — Delaware




          (e) Other business locations for prior 2 years




	 	 	 	 	 

	Livonia Operating, Inc.

	 	None	 	 






          (f) Location of collateral in possession of another party for prior 2 years




	 	 	 	 	 

	Livonia Operating, Inc.

	 	None	 	 







34









 





Schedule 5

UCC Financing Statements




 









 





Schedule 6

Filing Locations




	 	 	 
	Grantor:	 	Jurisdiction of Filing Office:
	USG Corporation
	 	Delaware
	 	 	 
	United States Gypsum Company
	 	Delaware
	 	 	 
	USG Interiors, Inc.
	 	Delaware
	 	 	 
	L & W Supply Corporation
	 	Delaware
	 	 	 
	California Wholesale Material Supply, LLC
	 	Delaware
	 	 	 
	Livonia Building Materials, LLC
	 	Michigan
	 	 	 
	River City Materials, Inc.
	 	Arkansas
	 	 	 
	USG Foreign Investments, Ltd.
	 	Delaware
	 	 	 
	Otsego Paper, Inc.
	 	Delaware







 











 





Schedule 7

Collateral Deposit Accounts maintained by each Grantor, including the name and address of the

depositary institution, the type of account and the account number




	 	 	 	 	 	 	 	 	 
	 	 	Name and Address of	 	Type of Account	 	 	 	 
	 	 	Depositary	 	(all accounts are	 	 	 	Related Lockbox
	Name of Grantor	 	Institution	 	checking accounts)	 	Account Number	 	number, if any
	US Gypsum Company
	 	***	 	 	 	***	 	***
	 	***	 	 	 	***	 	***
	 
	 	 	 	 	 	***	 	 
	USG Interiors, Inc.
	 	***	 	 	 	***	 	***
	 	***	 	 	 	***	 	***
	 
	 	 	 	 	 	***	 	 
	L & W
Supply 
Corporation
	 	***	 	 	 	***	 	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	***	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 





 




			
	*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION***




 









 






	 	 	 	 	 	 	 	 	 
	 	 	Name and Address of	 	Type of Account	 	 	 	 
	 	 	Depositary	 	(all accounts are	 	 	 	Related Lockbox
	Name of Grantor	 	Institution	 	checking accounts)	 	Account Number	 	number, if any
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	***
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	***	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	***	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	***	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	***
	 
	 	***	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 






 




			
	*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION***




3









 






	 	 	 	 	 	 	 	 	 
	 	 	Name and Address of	 	Type of Account	 	 	 	 
	 	 	Depositary	 	(all accounts are	 	 	 	Related Lockbox
	Name of Grantor	 	Institution	 	checking accounts)	 	Account Number	 	number, if any
	 
	 	 	 	 	 	***	 	 
	 
	 	***	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	***	 	 	 	***	 	***
	 
	 	 	 	 	 	***	 	***
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	***
	California
	 	***	 	 	 	***	 	 
	Wholesale Material
Supply, LLC
	 	***	 	 	 	***	 	 
	 	 	 	 	 	***	 	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	***	 	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	***	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	***
	 
	 	 	 	 	 	***	 	 
	River City
	 	***	 	 	 	***	 	 
	Materials, Inc.
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	***	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	 
	 	 	 	 	 	***	 	 
	L & W Supply
	 	***	 	 	 	***	 	 
	Corporation
(formerly held by
Livonia Holdings,
Inc., a Delaware
corporation which
merged into L & W
Supply Corporation)
	 	 	 	 	 	***

***
***
***
***
***

***
***
***
	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 






 




			
	*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION***




4









 






	 	 	 	 	 	 	 	 	 
	 	 	Name and Address of	 	Type of Account	 	 	 	 
	 	 	Depositary	 	(all accounts are	 	 	 	Related Lockbox
	Name of Grantor	 	Institution	 	checking accounts)	 	Account Number	 	number, if any
	Livonia Building
	 	***	 	 	 	***	 	 
	Materials, LLC
	 	 	 	 	 	 	 	 
	 
	Otsego Paper, Inc.
	 	***	 	 	 	 	 	 








 




			
	*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION***




5









 










EXHIBIT H




[FORM OF]




REVOLVING NOTE




			
	$[Amount]
	 	New York, New York






          FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby unconditionally promises
to pay to the order of [LENDER NAME] or its registered assigns (the “Lender”), at the
offices of JPMorgan Chase Bank, N.A. (“Administrative Agent”) at 270 Park Avenue, New York,
NY 10017 or such other place as Administrative Agent shall have specified, in dollars and in
immediately available funds, in accordance with Section 2.09(f) of the Credit Agreement (as defined
below) on the Maturity Date (capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement), the principal amount of [ Amount in
-words ] dollars and 0/100 ($[Amount ]) or, if less, the then unpaid principal amount of all
Revolving Loans made by the Lender to the Borrower pursuant to the Credit Agreement.




          The Borrower further unconditionally promises to pay interest on the unpaid principal amount
of each Revolving Loan made by the Lender to the Borrower in like money at said office until paid
at the rate or rates per annum, from the dates and payable on the dates set forth in the Credit
Agreement.




          This revolving note (this “Note”) is one of the promissory notes referred to in
Section 2.09(f) of the Second Amendment and Restated Credit Agreement dated as of January [ ],
2009 (as amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among USG Corporation, a Delaware corporation, the Lenders from time to time party
thereto (the “Lenders”), JPMorgan Chase Bank, N.A.,
as Administrative Agent, and [      ],
as Syndication Agent, and is entitled to the benefits thereof and of the other Loan Documents.




          In case an Event of Default shall occur and be continuing, the principal of and accrued
interest on this Note may be declared to be due and payable in the manner and with the effect
provided in the Credit Agreement.




          The Borrower hereby waives presentment, demand, protest or notice of any kind in connection
with this Note.




Exhibit H





 









 








          THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW
YORK.




	 	 	 	 	 
	 	USG CORPORATION



 	 
	 
	 	by 	 
	 	 	Name: 	 
	 	 	Title: 	 




Exhibit H




2