STEPHENSON HARWOOD
One, St. Paul’s Churchyard
London EC4M 8SH
Tel: 020 7329 4422
Fax: 020 7329 7100
Ref: 814
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Page
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1
Definitions and Interpretation
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3
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2
Representations and Warranties
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4
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3 Guarantee and Indemnity
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6
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5
Preservation of Guarantor’s Liability
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7
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6
Preservation of Agent’s Rights
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8
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10
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14
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15
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(1)
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USG CORPORATION,
a company incorporated
according to the law of the state of Delaware whose principal
executive office is at 550 West Adams Street, Chicago, Illinois
60661 ( “the Guarantor” );
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(2)
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DVB BANK SE with its registered office in
Frankfurt and acting through its office at Parklaan 2, 3016BB
Rotterdam, The Netherlands acting as agent and security trustee (
“the Agent” ).
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(A)
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Each of the Banks has agreed to
lend to Gypsum Transportation Limited a company incorporated
according to the law of Bermuda ( “the Borrower”
), its Commitment of an aggregate amount not exceeding ninety
million Dollars ($90,000,000) ( “the Loan” ) on
the terms and subject to the conditions set out in a Loan Agreement
dated
2008 made between the Borrower, the Banks and the Agent (
“the Loan Agreement” ).
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(B)
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Pursuant to the Loan Agreement, and
as a condition precedent to the obligations of the Banks to make
the Loan available to the Borrower, the Borrower has, amongst other
things, agreed to procure that the Guarantor execute and deliver
this Guarantee and Indemnity in favour of the Agent.
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THIS DEED WITNESSES
as follows:-
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1
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Definitions and Interpretation
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1.1
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In this Guarantee and
Indemnity:-
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1.1.1
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“the Borrower’s
Security Documents” means those of the Security
Documents to which the Borrower is at any time during the Facility
Period a party;
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1.1.2
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“the Guarantor’s
Liabilities” means all of the liabilities and
obligations of the Guarantor to the Agent under or pursuant to this
Guarantee and Indemnity, whether actual or contingent, including
(without limitation) Interest;
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1.1.3
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“Interest”
means interest at the
Default Rate;
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1.1.4
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“Surety”
means any person (other
than the Borrower or the Guarantor) who has given or who may in the
future give to the Agent any security, guarantee or indemnity for
or in relation to the Indebtedness.
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1.2
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All words and expressions defined
in the Loan Agreement shall have the same meaning when used in this
Guarantee and Indemnity unless the context otherwise requires and
clause 1.2 of the Loan Agreement shall apply to the interpretation
of this Guarantee and Indemnity as if it were set out in
full.
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2
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Representations and Warranties
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The Guarantor
represents and warrants to the Agent at the date of this Guarantee
and Indemnity and, except for clauses 2.2, 2.6, 2.9 and 2.12 (by
reference to the facts and circumstances then pertaining), at each
Interest Payment Date as follows.
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2.1
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The Guarantor is a body corporate
duly constituted and existing and in good standing under the law of
its state of incorporation with perpetual corporate existence and
the power to sue and be sued, to own its assets, to carry on its
business and to enter into this Guarantee and Indemnity.
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2.2
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The Guarantor is not insolvent or
in liquidation or administration or subject to any other insolvency
procedure, and no receiver, administrative receiver, administrator,
liquidator, trustee or analogous officer has been appointed in
respect of the Guarantor or all or any part of its
assets.
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2.3
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This Guarantee and Indemnity when
duly executed and delivered by the Guarantor will constitute the
legal, valid and binding obligations of the Guarantor enforceable
against the Guarantor in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganisation, 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.
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2.4
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All acts, conditions and things
required to be done and satisfied by the Guarantor prior to the
execution and delivery of this Guarantee and Indemnity in order to
constitute this Guarantee and Indemnity the legal, valid and
binding obligations of the Guarantor in accordance with its terms
have been done and, satisfied in compliance with all applicable
laws.
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4
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2.5
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All (if any) consents, licences,
approvals and authorisations of, or registrations with or
declarations to, any governmental authority, bureau or agency which
may be required of the Guarantor in connection with the execution,
delivery, performance, validity or enforceability of this Guarantee
and Indemnity have been obtained or made and remain in full force
and effect and the Guarantor is not aware of any event or
circumstance which could reasonably be expected adversely to affect
the right of the Guarantor to hold and/or obtain renewal of any
such consents, licences, approvals or authorisations.
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2.6
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The Guarantor, subject to not being
in contravention of U.S. laws and excluding general market
conditions, is not aware of any material facts or circumstances
which have not been disclosed to the Agent and which the Guarantor
reasonably believes might, if disclosed as at the date hereof, have
adversely affected the decision of a person considering whether or
not to make loan facilities of the nature contemplated by the Loan
Agreement available to the Borrower.
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2.7
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There is no action, suit,
arbitration or administrative proceeding nor any contemplated
action, suit, arbitration or administrative proceeding pending or
to its knowledge about to be pursued before any court, tribunal or
governmental or other authority which would, or would be likely to,
have a materially adverse effect on the business, assets, financial
condition or creditworthiness of the Guarantor.
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2.8
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The execution, delivery and
performance of this Guarantee and Indemnity will not contravene any
material restriction or any material law binding on the Guarantor
or the constitutional documents of the Guarantor, nor result in the
creation of, nor oblige the Guarantor to create, any Encumbrance
over all or any of its assets.
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2.9
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The Guarantor is not required to
make any deduction or withholding from any payment which it may be
obliged to make to the Agent under or pursuant to this Guarantee
and Indemnity.
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2.10
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It is not necessary to ensure the
legality, validity, enforceability or admissibility in evidence of
this Guarantee and Indemnity that it be filed, recorded or enrolled
with any governmental authority or agency in any country nor
stamped with any stamp or similar transaction tax.
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2.11
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The Guarantor is not in breach of
or in default under any agreement of any sort binding on it or on
all or any part of its assets which would or would be likely to,
have a Material Adverse Effect.
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2.12
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The Guarantor does not have an
established place of business in the United Kingdom.
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3
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Guarantee and Indemnity
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In
consideration of the Banks making the Loan available to the
Borrower, the Guarantor:-
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3.1
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irrevocably and unconditionally
guarantees to the Agent to discharge the Indebtedness due from time
to time on demand, together with Interest on the amount demanded
and due from the date of demand until the date of payment, both
before and after judgement; and
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3.2
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agrees, as a separate and
independent obligation, that, if any of the Indebtedness is not
recoverable from the Guarantor under Clause 3.1 for any reason, the
Guarantor will be liable to the Agent as a principal debtor by way
of indemnity for the same amount as that for which the Guarantor
would have been liable had that Indebtedness been recoverable, and
agrees to discharge its liability under this Clause 3.2 from
time to time on demand together with Interest on the amount
demanded from the date of demand until the date of payment, both
before and after judgement.
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This Guarantee
and Indemnity is a continuing security for the full amount of the
Indebtedness from time to time and shall remain in force
notwithstanding the liquidation of the Borrower or any change in
the constitution of the Borrower or of the Agent or the absorption
of or amalgamation by the Agent or any Bank in or with any other
entity or the acquisition of all or any part of the assets or
undertaking of the Agent or any Bank by any other
entity.
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5
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Preservation of Guarantor’s Liability
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5.1
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The Agent may without the
Guarantor’s consent and without notice to the Guarantor and
without in any way releasing or reducing the Guarantor’s
Liabilities:-
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5.1.1
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amend, novate, supplement or
replace any of the Borrower’s Security Documents;
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5.1.2
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agree with the Borrower to increase
or reduce the amount of the Loan, or vary the terms and conditions
for its repayment or prepayment (including, without limitation, the
rate and/or method of calculation of interest payable on the
Loan);
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5.1.3
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allow to the Borrower or to any
other person any time or other indulgence;
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5.1.4
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renew, vary, release or refrain
from enforcing any of the Borrower’s Security Documents or
any other security, guarantee or indemnity which the Agent may now
or in the future hold from the Borrower or from any other
person;
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5.1.5
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compound with the Borrower or any
other person;
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5.1.6
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enter into, renew, vary or
terminate any other agreement or arrangement with the Borrower or
any other person; or
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5.1.7
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make any concession to the Borrower
or do or omit or neglect to do anything which might, but for this
provision, operate to release or reduce the liability of the
Guarantor under this Guarantee and Indemnity.
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5.2
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The liability of the Guarantor
under this Guarantee and Indemnity shall not be affected
by:-
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5.2.1
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the absence of, or any defective,
excessive or irregular exercise of, any of the powers of the
Borrower or of any Surety;
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5.2.2
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any security given or payment made
to the Agent by the Borrower or any other person being avoided or
reduced under any law (whether English or foreign) relating to
bankruptcy or insolvency or analogous circumstance in force from
time to time;
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5.2.3
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the liquidation, administration,
receivership or insolvency of the Guarantor;
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5.2.4
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any other security, guarantee or
indemnity now or in the future held by the Agent being defective,
void or unenforceable, or the failure of the Agent to take any
security, guarantee or indemnity;
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5.2.5
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any compromise or arrangement under
Part I or Part VII of the Insolvency Act 1986 or section
425 of the Companies Act 1985 or under any (in the opinion of the
Agent) analogous provision of any foreign law;
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5.2.6
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the novation of any of the
Indebtedness;
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5.2.7
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anything which would not have
released or reduced the liability of the Guarantor to the Agent had
the liability of the Guarantor under Clause 3.1 been as a principal
debtor of the Agent and not as a guarantor.
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6
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Preservation of Agent’s Rights
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6.1
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This Guarantee and Indemnity is in
addition to any other security, guarantee or indemnity now or in
the future held by the Agent in respect of the Indebtedness,
whether from the Borrower, the Guarantor or any other person, and
shall not merge with, prejudice or be prejudiced by any such
security, guarantee or indemnity or any contractual or legal
right
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