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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
________________
USG CORPORATION
______________________________________________________________________________
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 36-3329400
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(State of Incorporation (I.R.S. Employer
of Organization) Identification No.)
125 SOUTH FRANKLIN STREET 60606-4678
CHICAGO, IL ----------
- -------------------------- (Zip Code)
(Address and Telephone Number
of Principal Executive Offices)
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A(c)(1) please check the
following box. [X]
If this Form relates to the registration of a class of debt securities and is to
become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A(c)(2) please check the following box. [ ]
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
$150,000,000 8 1/2% NEW YORK STOCK EXCHANGE
SENIOR NOTES
DUE 2005
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
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For a description of the 8 1/2% Senior Notes due 2005 (the "Notes") being
registered hereby, reference is made to the information contained under the
caption "Description of Notes" in the Prospectus, dated August 3, 1995,
contained in the Registration Statement on Form S-3 (No. 33-60563) filed by USG
Corporation (the "Corporation") pursuant to Rule 424(b) of the Securities Act of
1933. Such information is incorporated by reference.
ITEM 2. EXHIBITS.
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1. Indenture dated as of October 1, 1986 between USG Corporation and
Harris Trust and Savings Bank, Trustee (incorporated by reference to
Exhibit 4(a) of USG Corporation's Registration Statement No. 33-9294
on Form S-3, dated October 7, 1986).
2. Consent Resolution adopted by a Special Committee created by the Board
of Directors of USG Corporation relating to USG Corporation's 8 1/2%
Senior Notes due 2005. (The form of Note is included as Exhibit A
thereto.)
3. Collateral Trust Agreement dated as of July 27, 1995, between USG
Corporation, certain of its subsidiaries and Wilmington Trust Company
and William J. Wade, as Trustee (incorporated by reference to Exhibit
99(b) of Amendment No. 3 to USG Corporation's Registration Statement
No. 33-60563 on Form S-3, dated July 28, 1995).
4. Company Pledge Agreement dated as of July 27, 1995 among USG
Corporation, as Pledgor, and Wilmington Trust Company and William J.
Wade, as Trustee (incorporated by reference to Exhibit 99(c) of
Amendment No. 3 to USG Corporation's Registration Statement
No. 33-60563 on Form S-3, dated July 28, 1995).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
USG Corporation
Date: August 3, 1995
By: Richard H. Fleming
___________________________
Richard H. Fleming
Senior Vice President and
Chief Financial Officer
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EXHIBIT 2
CONSENT IN LIEU OF SPECIAL MEETING
OF A SPECIAL COMMITTEE
CREATED BY THE BOARD OF DIRECTORS OF
USG CORPORATION
The undersigned, being all of the members of a special committee (the
"Special Committee") designated and authorized by the Board of Directors of USG
Corporation, a Delaware corporation (the "Corporation"), in lieu of holding a
special meeting of the Special Committee, hereby take the following actions and
adopt the following resolutions by unanimous written consent pursuant to the
General Corporation Law of the State of Delaware and the By-laws of the
Corporation.
WHEREAS, USG Corporation, a Delaware corporation (the "Corporation")
has entered into an Indenture, dated as of October 1, 1986 (the "Indenture"),
with Harris Trust and Savings Bank (the "Trustee"), providing for the issuance
from time to time of debt securities (the "Securities") in one or more series
under the Indenture; and
WHEREAS, the Corporation desires to create a series of Securities
under the Indenture and to make provision for the form and terms thereof, and to
make provision for and authorize certain other matters and agreements in
connection with the issuance and sale of the Securities; and
WHEREAS, the Board of Directors of the Corporation has established the
Special Committee and has authorized, empowered and directed the Special
Committee to take all actions relating to the issuance of up to $150 million in
principal amount of a separate series of Securities, determine and specify the
form and terms of such series and authorize the terms of issuance and sale of
such series; and
WHEREAS, In connection with the offering (the "Offering") of the
series of Securities to be authorized pursuant to these resolutions, the Special
Committee has reviewed (i) that certain preliminary prospectus (the "Preliminary
Prospectus") which is part of a registration statement (the "Registration
Statement") filed with the Securities & Exchange Commission on July 24, 1995,
and (ii) an underwriting agreement (the "Underwriting Agreement") dated
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as of August 3, 1995, among the Corporation and the underwriters parties
thereto; and
WHEREAS, the capitalized terms used in these resolutions and not
otherwise defined herein shall have the same meaning herein as the meanings
given to such terms in the Indenture;
NOW, THEREFORE, BE IT RESOLVED: That the following resolutions are
adopted by the Special Committee effective as of August 3, 1995.
BE IT FURTHER RESOLVED: That there is hereby approved and established
a series of Securities under the Indenture, whose terms shall be as follows
(certain capitalized terms used in this resolution are defined in paragraph 16
hereof):
(1) SERIES DESIGNATION. The series of Securities established hereby
to be issued pursuant to the Indenture shall be known and designated as the
"8 1/2% Senior Notes due 2005" (the "Senior 2005 Notes").
(2) AGGREGATE PRINCIPAL AMOUNT. The aggregate principal amount of
the Senior 2005 Notes shall be limited to $150,000,000 (except as provided in
Section 2.01(2) of the Indenture).
(3) MATURITY. The stated maturity of the principal of the Senior
2005 Notes shall be August 1, 2005.
(4) PAYMENT OF INTEREST. The Senior 2005 Notes shall bear interest
at the rate of 8.50% per annum from August 8, 1995 or from the most recent
Interest Payment Date (defined below) to which interest has been paid or duly
provided for, as the case may be, payable on each February 1st and August 1st,
commencing February 1, 1996, until the principal amount thereof is paid or made
available for payment. Each February 1st and August 1st shall be an "Interest
Payment Date" for the Senior 2005 Notes. The January 15th or July 15th (whether
or not a Business Day) next preceding an Interest Payment Date shall be the
"Regular Record Date" for the interest payable on such Interest Payment Date.
(5) PLACE OF PAYMENT. Principal (and premium, if any) and interest
is payable, and the transfer of the Senior 2005 Notes is registrable, at the
office or agency of the Corporation maintained for such purpose in the City of
Chicago, State of Illinois, currently the Corporate Trust Office of the Trustee,
Harris Trust and Savings Bank, 311 West Monroe Street, Chicago, Illinois 60690;
provided, however, that payment of interest may be made at the option of the
Corporation by check or draft mailed to the person entitled thereto as such
person's address appears in the security register maintained for such purpose
pursuant to the
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Indenture. No service charge will be made for any transfer or exchange except
the Corporation may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
(6) REDEMPTION. The Senior 2005 Notes are not subject to redemption
by the Corporation prior to maturity.
(7) REGISTERED SECURITIES ONLY. Subject to paragraph 9 hereof, the
Senior 2005 Notes shall be issued as Registered Securities only, in fully
registered form, without coupons.
(8) ADDITIONAL AMOUNTS. The Corporation will not pay any Additional
Amounts on the Senior 2005 Notes held by a person who is not a U.S. Person in
respect of any tax, assessment or governmental charge withheld or deducted.
(9) (a) GLOBAL SECURITY. The Senior 2005 Notes will initially be
issued in the form of one or more Global Securities (as defined below) held in
book-entry form. The Depository Trust Company ("DTC") or its nominees shall be
the Depositary (as defined below) and the sole registered Holder of the Senior
2005 Notes for all purposes under the Indenture. "Global Security" means a
security evidencing all or a part of a series of Securities issued to, and
registered in the name of, the depository for such series (or its nominee) (the
"Depository") in accordance with this paragraph (9).
(b) PAYMENTS. Payment of principal and interest on Senior 2005 Notes
represented by any such Global Security will be made to DTC or its nominee, as
the case may be, as the sole registered owner and the sole Holder of the Senior
2005 Notes represented thereby for all purposes under the Indenture. None of
the Corporation, the Trustee, any agent of the Corporation, or the Underwriters
will have any responsibility or liability for any aspect of DTC's records
relating to or payments made on account of beneficial ownership interests in a
Global Security representing any Senior 2005 Notes or for maintaining,
supervising, or reviewing any of DTC's records relating to such beneficial
ownership interests.
(c) EXCHANGE OF GLOBAL SECURITY. A Global Security may not be
transferred except as a whole by DTC to a nominee of DTC. A Global Security is
exchangeable for certificated Senior 2005 Notes only if (i) DTC notifies the
Corporation that it is unwilling or unable to continue as a Depository for such
Global Security or if at any time DTC ceases to be a clearing agency registered
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), (ii)
the Corporation executes and delivers to the Trustee a notice that such Global
Security shall be so transferable,
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registrable, and exchangeable, and such transfers shall be registrable, or
(iii) there shall have occurred and be continuing an Event of Default or an
event which, with the giving of notice or lapse of time or both, would
constitute an Event of Default with respect to the Senior 2005 Notes represented
by such Global Security. Any Global Security that is exchangeable for
certificated Senior 2005 Notes pursuant to the preceding sentence will be
transferred to, and registered and exchanged for, certificated Senior 2005 Notes
in authorized denominations and registered in such names as the Depository
holding such Global Security may direct. Subject to the foregoing, a Global
Security is not exchangeable, except for a Global Security of like denomination
to be registered in the name of the Depository or its nominee. In the event
that a Global Security becomes exchangeable for certificated Senior 2005 Notes,
(i) certificated Senior 2005 Notes will be issued only in fully registered form
in denominations of $1,000 or integral multiples thereof, (ii) payment of
principal, any repurchase price, and interest on the certificated Senior 2005
Notes will be payable, and the transfer of the certificated Senior 2005 Notes
will be registerable at the office or agency of the Corporation maintained for
such purposes, and (iii) no service charge will be made for any registration of
transfer or exchange of the certificated Senior 2005 Notes, although the
Corporation may require payment of a sum sufficient to cover any tax or
governmental charge imposed in connection therewith.
(f) DEPOSITORY. So long as the Depository for a Global Security, or
its nominee, is the registered owner of such Global Security, such Depository or
such nominee, as the case may be, will be considered the sole owner or Holder of
the Senior 2005 Notes represented by such Global Security for the purposes of
receiving payment of the Senior 2005 Notes, receiving notices, and for all other
purposes hereunder and under the Indenture and the Senior 2005 Notes.
(10) ADDITIONAL COVENANTS. The following additional covenants of the
Corporation shall be added for the benefit of the Senior 2005 Notes and will be
applicable to the Corporation unless and until the Corporation reaches
Investment Grade Status; after the Corporation has reached Investment Grade
Status, and notwithstanding that the Corporation's Debt Rating may later cease
to be rated Investment Grade by either S&P or Moody's or both, the Corporation
will be released from its obligations to comply with each of the restrictive
covenants described below, except for clauses (a), (b), (d) and (e):
(a) LIMITATION ON INDEBTEDNESS.
(A) The Corporation will not, directly or indirectly, Incur any
Indebtedness unless, immediately after the date of
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the Incurrence of such Indebtedness and after giving effect to the
Incurrence of such Indebtedness and the receipt and application of the
proceeds thereof as if such Indebtedness had been Incurred and the proceeds
thereof applied on the first day of the Determination Period, the
Consolidated Interest Coverage Ratio of the Corporation exceeds 2.0 to 1.
(B) Notwithstanding the foregoing, the Corporation may Incur the
following Indebtedness (although any Indebtedness so Incurred shall be
included, to the extent outstanding at the Transaction Date, in any
subsequent determination of the Consolidated Interest Coverage Ratio):
(i) Indebtedness under the Credit Agreement; (ii) Indebtedness outstanding
on the Issue Date; (iii) Indebtedness outstanding under the Senior 2005
Notes; (iv) Indebtedness of the Corporation in respect of Capital Lease
Obligations and Sale and Leaseback Transactions Incurred after the Issue
Date if after giving effect to the Incurrence of such Indebtedness the
aggregate amount of Priority Indebtedness outstanding would not exceed the
Priority Indebtedness Basket; (v) Indebtedness under Interest Rate
Protection Agreements, provided that the obligations under such agreements
are related to payment obligations on Indebtedness otherwise permitted by
the terms of this covenant; (vi) Indebtedness of the Corporation to any
wholly owned Restricted Subsidiary of the Corporation (but only so long as
such debt is held by such wholly owned Restricted Subsidiary); (vii)
Permitted Refinancing Indebtedness; (viii) Indebtedness incurred in
connection with a prepayment of the Senior 2005 Notes pursuant to a Change
of Control, provided that (x) the principal amount of such Indebtedness
does not exceed the principal amount of the Senior 2005 Notes prepaid plus
all interest accrued thereon and all related fees, expenses and redemption
and repurchase premiums related thereto (including any payments made in
connection with procuring any required lender or similar consents);
(y) such Indebtedness has an Average Life equal to or greater than the
remaining Average Life of the Senior 2005 Notes; and (z) such Indebtedness
does not mature prior to the Stated Maturity of the Senior 2005 Notes; and
(ix) Indebtedness not otherwise permitted to be Incurred pursuant to this
clause (B) or clause (A) above in an aggregate principal amount at any one
time outstanding not to exceed $125 million.
(b) LIMITATION ON RESTRICTED SUBSIDIARY INDEBTEDNESS AND PREFERRED
STOCK.
(A) The Corporation will not permit any of its Restricted
Subsidiaries to Incur, directly or indirectly, any Indebtedness or issue
any Preferred Stock, except: (i) Indebtedness outstanding on the Issue
Date;
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(ii) Indebtedness or Preferred Stock issued to and held by the Corporation
or any wholly owned Restricted Subsidiary of the Corporation (but only so
long as such Indebtedness or Preferred Stock is held or owned by the
Corporation or any wholly owned Restricted Subsidiary of the Corporation);
(iii) Indebtedness of a Restricted Subsidiary in respect of Capital Lease
Obligations and Sale and Leaseback Transactions if after giving effect to
the Incurrence of such Indebtedness the aggregate amount of Priority
Indebtedness outstanding would not exceed the Priority Indebtedness Basket;
(iv) Indebtedness under Interest Rate Protection Agreements, provided that
the obligations under such agreements are related to payment obligations on
Indebtedness otherwise permitted by the terms of this covenant;
(v) Indebtedness Incurred as Project Financing by a Foreign Restricted
Subsidiary; (vi) Indebtedness not otherwise permitted to be Incurred or
Preferred Stock not otherwise permitted to be issued pursuant to this
paragraph if after giving effect to the Incurrence of such Indebtedness or
the issuance of such Preferred Stock the aggregate amount of Priority
Indebtedness outstanding would not exceed the Priority Indebtedness Basket;
provided that the aggregate amount of Indebtedness Incurred or Preferred
Stock issued by Domestic Restricted Subsidiaries pursuant to this
clause (vi) shall not exceed $75 million at any one time outstanding; and
(vii) Indebtedness Incurred or Preferred Stock issued in exchange for, or
the proceeds of which are used to Refinance, Indebtedness referred to in
clause (i) of this paragraph (or any successor Indebtedness Incurred
pursuant to and in accordance with this clause (vi) to Refinance such
Indebtedness or successor Indebtedness), to the extent that (A) the
principal amount of such Indebtedness or the liquidation value of such
Preferred Stock so Incurred or issued does not exceed the principal amount
or liquidation value of the Indebtedness or Preferred Stock so exchanged or
Refinanced plus all interest or dividends accrued thereon and all related
fees, expenses and redemption and repurchase premiums (including any
payments made in connection with procuring any required lender or similar
consents), (B) the Indebtedness so Incurred or Preferred Stock so issued
has a Stated Maturity or final redemption date later than the Stated
Maturity or final redemption date (if any) of, and an Average Life that is
longer than that of, the Indebtedness or Preferred Stock being exchanged or
Refinanced and (C) the Indebtedness so Incurred or Preferred Stock so
issued has no greater recourse to the Property of the Corporation or its
Subsidiaries than that of the Indebtedness or Preferred Stock being
exchanged or refinanced.
(B) Any Indebtedness Incurred or Preferred Stock issued pursuant to
the preceding paragraph will be included, to the
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extent outstanding at the Transaction Date, in any subsequent determination
of the Consolidated Interest Coverage Ratio.
(C) The Corporation will not, and will not permit any of its
Restricted Subsidiaries to, take any action or enter into any transaction
or series of transactions that would result in a Person becoming a
Restricted Subsidiary (whether through an acquisition, the redesignation of
an Unrestricted Subsidiary or otherwise) unless, after giving effect to
such action, transaction or series of transactions, on a pro forma basis,
(i) the Corporation could Incur at least $1.00 of additional Indebtedness
pursuant to clause (a)(A) of this paragraph (10) and (ii) such Subsidiary
could then Incur, pursuant to subclauses (ii) through (vi) of clause (A)
above, all Indebtedness as to which it is obligated at such time.
(c) LIMITATIONS ON RESTRICTED PAYMENTS.
(A) The Corporation will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, make any Restricted
Payment if, at the time of and after giving effect to the proposed
Restricted Payment (i) any Default or Event of Default has occurred and is
continuing, (ii) the Corporation could not incur at least $1.00 of
additional Indebtedness under clause (a)(A) of this paragraph (10) or
(iii) the aggregate amount expended or declared for all Restricted Payments
from the Issue Date (the Fair Market Value of the amount so expended or
committed, if other than in cash, to be determined in good faith by the
Board of Directors of the Corporation) exceeds the sum of (A) 50% of the
aggregate Consolidated Net Income of the Corporation (or, if Consolidated
Net Income shall be a deficit, minus 100% of such deficit) commencing on
the last day of the fiscal quarter immediately preceding the Issue Date and
ending on the last day of the fiscal quarter immediately preceding the date
of such Restricted Payment, (B) 100% of the aggregate net proceeds,
including cash and the Fair Market Value of Property other than cash,
received by the Corporation subsequent to the Issue Date from capital
contributions from its stockholders or from the issuance or sale (other
than to a Subsidiary) of Qualified Capital Stock of the Corporation or of
any convertible securities or debt obligations issued on or after the date
of issuance of the Senior 2005 Notes which have been converted into,
exchanged for or satisfied by the issuance of Qualified Capital Stock and
(C) $175.0 million (collectively, the "Restricted Payment Basket").
(B) The foregoing limitations do not prevent the Corporation from
(i) paying a dividend on its Capital Stock within 60 days after declaration
thereof if, on the
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declaration date, the Corporation could have paid such dividend in
compliance with the Indenture; (ii) acquiring shares of its Capital Stock
(1) solely in exchange for other shares of its Capital Stock (other than
Redeemable Stock), (2) to eliminate fractional shares for up to an
aggregate consideration in any fiscal year of the Corporation not to exceed
$10.0 million, (3) pursuant to an order of a court of competent
jurisdiction, or (4) from an employee or director of the Corporation in
connection with repurchase provisions under employee or director stock
option and stock purchase agreements or plans or other agreements to
compensate employees or directors of the Corporation, but in no event may
such acquisition of its shares by the Corporation be for a price greater
than the higher of fair market value and the price at which such securities
were sold to such employee or director by the Corporation; (iii) purchasing
or redeeming Indebtedness which is contractually subordinated to the Senior
2005 Notes in exchange for, or out of the proceeds of, the substantially
concurrent (1) sale or issuance of Capital Stock (other than Redeemable
Stock) of the Corporation, or (2) Incurrence of Indebtedness of the
Corporation that is at least as contractually subordinated in right of
payment to the Senior 2005 Notes as the Indebtedness so refinanced, has a
Stated Maturity later than the Stated Maturity of the Senior 2005 Notes and
an Average Life greater than the remaining Average Life of the Senior 2005
Notes; (iv) the distribution or redemption by the Corporation of any rights
to purchase capital stock of the Corporation or any other Person which
rights are or were issued as part of a shareholder rights plan; provided
that any such redemption will be at a price not to exceed $0.01 per right;
(v) the making of any payment required pursuant to the Corporation's 1988
plan of recapitalization or the Corporation's 1993 plan of reorganization;
provided that such payments shall not exceed $5 million in the aggregate;
and (vi) purchasing or redeeming up to 25% of the stock of any Restricted
Subsidiary to the extent the Restricted Payment Basket is not exceeded.
Further, (x) the foregoing restrictions do not prevent CGC Inc. from paying
ordinary dividends and (y) in the case of a Qualified Receivables
Transaction, the foregoing limitations do not prevent a Receivables
Subsidiary from acquiring equity interests of a trust or other person
established by such Receivables Subsidiary to effect such Qualified
Receivables Transaction.
(C) The payments permitted to be made pursuant to subclauses (ii)(1),
(iii), (iv) and (v) of clause (B) above shall be excluded for purposes of
any future calculations of the aggregate amount expended or declared for
Restricted Payments. The payments permitted to be made pursuant to
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subclauses (i), (ii)(2), (ii)(3), (ii)(4), and (vi) above, and payments of
dividends pursuant to subclause (x) of the last sentence of clause (B)
above made by CGC Inc. (but only to the extent such payments are made to a
Person other than the Corporation or its wholly-owned Restricted
Subsidiaries), shall be included for purposes of any future calculations of
the aggregate amount expended or declared for Restricted Payments.
(d) LIMITATION UPON SECURED INDEBTEDNESS OF THE CORPORATION AND ITS
RESTRICTED SUBSIDIARIES. (A) So long as any of the Senior 2005 Notes are
outstanding, the Corporation will not itself, and will not permit any Restricted
Subsidiary to, Incur any Indebtedness secured by a Lien on any Principal
Operating Property or on any shares of stock or Indebtedness of any Restricted
Subsidiary, without effectively providing that the Senior 2005 Notes (together
with, if the Corporation so determines, any other Senior Indebtedness of the
Corporation or Indebtedness of such Restricted Subsidiary then existing or
thereafter created) shall be secured equally and ratably with (or, at the
Corporation's option, prior to) such secured Indebtedness so long as such
secured Indebtedness shall be so secured, unless, after giving effect thereto,
Priority Indebtedness would not exceed the Priority Indebtedness Basket.
(B) Notwithstanding clause (A) of this paragraph (d), this
restriction does not apply to, and there will be excluded from secured
Indebtedness in any computation of Priority Indebtedness determined by reference
to such restriction, Indebtedness secured by:
(i) Liens on property of, or on any shares of stock or Indebtedness
of, any Person existing at the time such Person becomes a Restricted
Subsidiary;
(ii) Liens in favor of the Corporation or a wholly owned Restricted
Subsidiary;
(iii) Liens in favor of governmental bodies to secure progress,
advance or other payments pursuant to any contract or provision of any
statute;
(iv) (y) if made and continuing in the ordinary course of business,
any Lien as security for the performance of any contract or undertaking not
directly or indirectly in connection with the borrowing of money or the
securing of Indebtedness, or (z) any Lien with any governmental agency
required or permitted to qualify the Corporation or any Restricted
Subsidiary to conduct business, to maintain self-
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insurance or to obtain the benefits of any law pertaining to workmen's
compensation, unemployment insurance, old age pensions, social security or
similar matters;
(v) Liens for taxes, assessments or governmental charges or levies if
such taxes, assessments, governmental charges or levies shall not at the
time be due and payable, or if the same thereafter can be paid without
penalty, or if the same are being contested in good faith by appropriate
proceedings;
(vi) Liens created by or resulting from any litigation or legal
proceeding which at the time is currently being contested in good faith by
appropriate proceedings; or Liens arising out of judgments or awards as to
which the time for prosecuting an appeal or proceeding for review has not
expired;
(vii) Liens on, and limited to, property (including leasehold
estates), shares of stock or Indebtedness existing at the time of
acquisition thereof (including acquisition through merger or consolidation
and not put in place in contemplation of the transaction) or to secure the
payment of all or any part of the purchase price thereof or construction
thereon or to secure any Indebtedness incurred prior to, at the time of, or
within 120 days after the later of the acquisition, the completion of
construction or the commencement of full operation of such property or
within 120 days after the acquisition of such shares or Indebtedness for
the purpose of financing all or any part of the purchase price thereof or
construction thereon;
(viii) Liens on the assets of a Receivables Subsidiary in a Qualified
Receivables Transaction; and
(ix) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Lien referred to
in the foregoing clauses (i) through (viii), inclusive, provided, that (x)
such extension, renewal or replacement Lien shall be limited to all or a
part of the same property, shares of stock or Indebtedness that secured the
Lien extended, renewed or replaced (plus improvements on such property) and
(y) the Indebtedness secured by such Lien at such time is not increased.
(e) LIMITATION UPON SALE AND LEASEBACK TRANSACTIONS.
(A) So long as any of the Senior 2005 Notes are outstanding, except
as hereinafter provided, the Corporation
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will not itself, and will not permit any Restricted Subsidiary to, enter
into any Sale and Leaseback Transaction with respect to any Principal
Operating Property owned by them while the Senior 2005 Notes are
outstanding.
(B) This restriction does not apply to any Sale and Leaseback
Transaction if: (i) the Corporation or such Restricted Subsidiary could
mortgage such Principal Operating Property under the restrictions set forth
under clause (d) of this paragraph (10) in an amount equal to the
Attributable Value with respect to such Sale and Leaseback Transaction
without equally and ratably securing the Indenture Securities; (ii) within
120 days after the sale or transfer is completed, the Corporation or a
Restricted Subsidiary applies to the retirement of Senior Indebtedness of
the Corporation or Indebtedness of a Restricted Subsidiary an amount equal
to the greater of (A) the net proceeds of the sale of the Principal
Operating Property leased or (B) the fair market value of the Principal
Operating Property leased at the time of entering into such arrangement (as
determined in any manner approved by the Board of Directors); or (iii) such
arrangement is between the Corporation and a wholly-owned Restricted
Subsidiary or between Restricted Subsidiaries.
(f) TRANSACTIONS WITH AFFILIATES.
(A) Neither the Corporation nor any Restricted Subsidiary will be
permitted to: (i) sell, lease, transfer, or otherwise dispose of any of its
properties, assets, or securities to; (ii) purchase any property, assets,
or securities from; or (iii) enter into any contract or agreement with, or
for the benefit of, an Affiliate, within the meaning of Rule 405
promulgated by the Commission under the Securities Act, of the Corporation
or a Subsidiary of the Corporation (an "Affiliate Transaction"), other than
Affiliate Transactions (A) in the ordinary course of business with
Affiliates which are directly or indirectly controlled by the Corporation
and are engaged in a similar or complementary line of business, which
Affiliate Transactions do not exceed: (a) $25.0 million in any one
Affiliate Transaction or series of related Affiliate Transactions unless a
majority of the disinterested members of the Board of Directors of the
Corporation determines that such Affiliate Transaction or series of
Affiliate Transactions is on terms not less favorable to the Corporation or
such Restricted Subsidiary than those that would apply to an arms-length
transaction with an unaffiliated party and (b) $100.0 million in any one
Affiliate Transaction or series of related Affiliate Transactions unless
the test set forth in clause (a) has been satisfied and the Board of
Directors of the Corporation shall have been advised by an
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independent financial advisor that, in the opinion of such advisor, such
Affiliate Transaction or series of Affiliate Transactions is fair, from a
financial point of view, to the Corporation or such Restricted Subsidiary;
and (B) with Affiliates other than those described in subclause (A) above,
which in the aggregate do not exceed: (a) $5.0 million in any one Affiliate
Transaction or series of related Affiliate Transactions unless an officer
of the Corporation certifies in writing that such Affiliate Transaction or
series of Affiliate Transactions is on terms not less favorable to the
Corporation or such Restricted Subsidiary than those that would apply to an
arms-length transaction with an unaffiliated party; (b) $25.0 million in
any one Affiliate Transaction or series of related Affiliate Transactions
unless a majority of the disinterested members of the Board of Directors of
the Corporation determines that such Affiliate Transaction or series of
Affiliate Transactions is on terms not less favorable to the Corporation or
such Restricted Subsidiary than those that would apply to an arms-length
transaction with an unaffiliated party and (c) $100.0 million in any one
Affiliate Transaction or series of related Affiliate Transactions unless
the test set forth in clause (b) has been satisfied and the Board of
Directors of the Corporation shall have been advised by an independent
financial advisor that, in the opinion of such advisor, such Affiliate
Transaction or series of Affiliate Transactions is fair, from a financial
point of view, to the Corporation or such Restricted Subsidiary; provided
that (x) transactions between or among the Corporation and/or its wholly
owned Restricted Subsidiaries will not be considered Affiliate Transactions
and (y) transactions between a Receivables Subsidiary and any Person as
part of a Qualified Receivables Transaction will not be considered an
Affiliate Transaction, but only to the extent such transactions are solely
in connection with the Qualified Receivables Transaction. In addition, any
other Affiliate Transactions that are not covered by subclause (A) or (B)
of the preceding sentence by reason of their size shall be on terms not
less favorable to the Corporation or such Restricted Subsidiary than those
that would apply to an arms-length transaction with an unaffiliated party.
(B) The limitations in subclause (A) above do not apply to
(i) transactions with an officer or director of the Corporation or any
Subsidiary of the Corporation entered into in the ordinary course of
business regarding compensation or employee benefit arrangements,
(ii) transactions between the Corporation and its wholly owned Restricted
Subsidiaries or among its wholly owned Restricted Subsidiaries or
(iii) transactions in the ordinary course of business consistent with past
practice between the Corporation and CGC
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Inc., so long as CGC Inc. remains a Restricted Subsidiary.
(g) LIMITATION ON ASSET SALES.
(A) The Corporation will not, and will not permit any Restricted
Subsidiary to, consummate any Asset Sale unless: (i) the Corporation or
such Restricted Subsidiary, as the case may be, receives consideration at
least equal to the Fair Market Value of the Property disposed of and
(ii) at least 70% of the consideration received by the Corporation or such
Restricted Subsidiary for such Property is in the form of cash, cash
equivalents, Indebtedness with respect to which the Corporation and its
remaining Restricted Subsidiaries are no longer liable and trade payables
assumed by the buyer; provided that the Corporation must, within 270 days
of such Asset Sale, at the Corporation's option, (1) reinvest (or cause a
Restricted Subsidiary to reinvest) an amount equal to the Net Cash Proceeds
(or any portion thereof) from such disposition in Additional Assets and/or
(2) apply an amount equal to such Net Cash Proceeds to the repayment of
Senior Indebtedness or Indebtedness of Restricted Subsidiaries and/or
(3) offer to apply an amount equal to such Net Cash Proceeds to the
repayment of the Senior 2005 Notes and repurchase any Senior 2005 Notes
properly tendered in acceptance of such Prepayment Offer on a pro rata
basis at a purchase price at least equal to 100% of their principal amount
plus interest accrued to the date of such repurchase (subject to the rights
of Holders of record on the relevant record date to receive such interest).
In the event the remaining Net Cash Proceeds resulting from any Asset Sale
after giving effect to the purchase of Additional Assets and/or the
repayment of Senior Indebtedness or Indebtedness of Restricted Subsidiaries
are less than $25.0 million, the application of an amount equal to such
remaining Net Cash Proceeds to a pro rata offer to repurchase the Senior
2005 Notes may be deferred until such time as such remaining Net Cash
Proceeds, together with remaining Net Cash Proceeds from any prior or
subsequent Asset Sales not otherwise applied in accordance with this
paragraph, are at least equal to $25.0 million. To the extent that any
portion of the amount of Net Cash Proceeds remains after compliance with
the foregoing and provided that all Holders have been given the opportunity
to tender their Senior 2005 Notes for repurchase as provided in subclause
(3) above, the Corporation or such Restricted Subsidiary may use such
remaining amount for general corporate purposes.
(B) Within five Business Days after 270 days from the date of an
Asset Sale, the Corporation shall, if it chooses (or is obligated) to apply
an amount equal to any remaining Net Cash Proceeds (or any portion thereof)
to fund an offer to
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repurchase the Senior 2005 Notes, send a written Prepayment Offer Notice,
by first-class mail, to the Holders of the Senior 2005 Notes. The
Prepayment Offer Notice will also state (i) that the Corporation is
offering to purchase Senior 2005 Notes pursuant to the provisions of the
Indenture described in clause (g) of this paragraph (10), (ii) that any
Senior 2005 Notes (or any portion thereof) accepted for payment (and duly
paid on the Purchase Date) pursuant to the Prepayment Offer will cease to
accrue interest after the Purchase Date, (iii) the Expiration Date of the
Prepayment Offer, which will be, subject to any contrary requirements of
applicable law, not less than 30 days nor more than 60 days after the date
of such Prepayment Offer, (iv) a Purchase Date (which shall be the
settlement date for the purchase of Senior 2005 Notes and shall be within
three business days after the Expiration Date), (v) the aggregate principal
amount of Senior 2005 Notes to be purchased and the purchase price thereof
and (vi) a description of the procedure which a Holder must follow and any
other information necessary to tender all or any portion of such Holder's
Senior 2005 Notes.
(h) LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES. The Corporation will not be permitted to, and will not
permit any Restricted Subsidiary to, directly or indirectly, create or otherwise
cause or suffer to exist any encumbrance or restriction (other than pursuant to
law or regulation) on the ability of any Restricted Subsidiary to (i) pay any
dividend on, or make any other distribution on account of, its capital stock or
pay any Indebtedness owed to the Corporation or a Restricted Subsidiary,
(ii) make loans or advances to the Corporation or a Restricted Subsidiary, or
(iii) transfer any of its property or assets to the Corporation or any other
Restricted Subsidiary, except for (a) restrictions in agreements existing as of
the date of issuance of the Senior 2005 Notes, (b) restrictions in the
Collateral Trust Agreement, (c) restrictions on Foreign Restricted Subsidiaries
relating to Project Financings, (d) restrictions on Foreign Joint Ventures,
(e) restrictions on Domestic Joint Ventures, but only to the extent that the
amounts invested by the Corporation in the entities subject to such restrictions
do not exceed $25.0 million in the aggregate at any one time, (f) Indebtedness
or other contractual requirements of a Receivables Subsidiary solely in
connection with a Qualified Receivables Transaction, provided that such
restrictions apply only to such Receivables Subsidiary, (g) any encumbrance or
restriction pursuant to an agreement relating to an acquisition of Property, so
long as the encumbrances or restrictions in any such agreement relate solely to
the Property so acquired and were not created in connection with or in
anticipation of such acquisition, (h) any encumbrance or restriction relating to
any Indebtedness of any Restricted Subsidiary at the date on which
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such Restricted Subsidiary was acquired by the Corporation or any Restricted
Subsidiary (other than Indebtedness issued by such Restricted Subsidiary in
connection with or in anticipation of its acquisition), (i) any encumbrance or
restriction pursuant to an agreement effecting a permitted refinancing of
Indebtedness issued pursuant to an agreement referred to in the foregoing
clauses (a), (b), (g) and (h), so long as the encumbrances and restrictions
contained in any such refinancing agreement are no more restrictive than the
encumbrances and restrictions contained in such agreements, (j) customary
provisions restricting subletting or assignment of leases and customary
provisions in other agreements that restrict assignment of such agreements or
rights thereunder, (k) any restriction on the sale or other disposition of
assets or Property securing debt as a result of a lien of the kind set forth in
subclauses (i)-(viii) of clause (d)(B) of this paragraph (10), (l) restrictions
in agreements with Foreign Restricted Subsidiaries taking the form of net worth
maintenance tests and similar financial covenants and (m) agreements for the
purchase of synthetic gypsum entered into in the ordinary course of business
consistent with past practice.
(i) RESTRICTED AND UNRESTRICTED SUBSIDIARIES. The Corporation may
designate a Subsidiary (including a newly formed or newly acquired Subsidiary)
of the Corporation or any of its Restricted Subsidiaries as an Unrestricted
Subsidiary if (i) such Subsidiary does not have any obligations which, if in
Default, would result in a cross default on Indebtedness of the Corporation and
(a) such Subsidiary has total assets of $1,000 or less, or (b) such designation
is effective immediately upon such Person becoming a Subsidiary of either the
Corporation or any of its Restricted Subsidiaries or (ii) such Subsidiary is a
Receivables Subsidiary or a captive insurance company. Unless so designated as
an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the
Corporation or any of its Restricted Subsidiaries shall be classified as a
Restricted Subsidiary thereof. Except as provided in subclause (i)(a) of this
clause (i), no Restricted Subsidiary may be redesignated as an Unrestricted
Subsidiary. An Unrestricted Subsidiary may be redesignated as a Restricted
Subsidiary. The designation of an Unrestricted Subsidiary or removal of such
designation shall be made by the Board of Directors of the Corporation or a
committee thereof pursuant to a certified resolution delivered to the Trustee
and shall be effective as of the date specified in the applicable certified
resolution, which shall not be prior to the date such certified resolution is
delivered to the Trustee.
(11)(a) CHANGE OF CONTROL. Upon the occurrence of a Change of
Control, each Holder shall have the right to require the Corporation to
repurchase such Holder's Senior 2005 Notes, in whole or in part, in integral
multiples of $1,000, pursuant to an offer
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to purchase by the Corporation (the "Change of Control Offer") at a price (the
"Repurchase Price") in cash equal to 100% of the aggregate principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the Change of
Control Payment Date (as defined in clause (b) below.)
(b) NOTICE. Within 30 calendar days subsequent to the date of any
Change of Control, the Corporation will mail a notice to each Holder and to the
Trustee stating, among other things, (i) that a Change of Control has occurred
and a Change of Control Offer is being made, and that, although Holders are not
required to tender their Senior 2005 Notes, all Senior 2005 Notes that are
timely tendered will be accepted for payment, (ii) the Repurchase Price and the
payment date (the "Change of Control Payment Date"), which will be a date
occurring no earlier than 30 days and no later than 60 days after the date on
which such notice is mailed, (iii) that any Senior 2005 Notes (or any portion
thereof) accepted for payment pursuant to the Change of Control Offer (and duly
paid on the Change of Control Payment Date) will cease to accrue interest after
the Change of Control Payment Date, (iv) a description of the transaction or
transactions constituting the Change of Control, and (v) the procedures that
Holders must follow in order to tender their Senior 2005 Notes for payment.
(c) CHANGE OF CONTROL AFTER ACHIEVING INVESTMENT GRADE STATUS. In
the event the Corporation reaches Investment Grade Status, the Change of Control
provisions in clauses (a) and (b) above shall no longer apply, and thereafter if
both a Designated Event with respect to the Corporation and a Rating Decline in
connection therewith shall occur, the Corporation will be obligated to offer to
repurchase in the manner contemplated by clauses (a) and (b) above any or all of
the Senior 2005 Notes at a price in cash equal to 100% of the principal amount
thereof, plus accrued and unpaid interest to the date of repurchase. If the
Corporation effects defeasance of the Senior 2005 Notes under either alternative
contemplated by paragraph 14 of this resolution prior to the date notice of a
Rating Decline in connection with a Designated Event is required, the
Corporation will not be obligated to make a repurchase offer as a result of such
Designated Event and Rating Decline.
(d) ACCRUED INTEREST. Rights to receive accrued interest upon any
repurchase under this paragraph (11) shall be subject to the rights of Holders
of record on the relevant record date to receive such interest.
(12) ADDITIONAL RESTRICTIONS ON MERGER. So long as any Senior 2005
Notes are outstanding, the following additional restrictions on merger shall be
added to those restrictions on merger in the Indenture for the benefit of the
Senior 2005 Notes
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and the Holders thereof: the Corporation will not, except as described below,
consolidate with or merge into any other Person or sell or transfer all or
substantially all of its properties and assets to another Person unless: (i)
immediately before and after giving effect to such transaction or series of
related transactions on a pro forma basis, no Default or Event of Default (and
no event that, after notice or lapse of time, or both, would become an Event of
Default), shall have occurred and be continuing; (ii) immediately after giving
effect to such transaction or series of transactions on a pro forma basis
(including, without limitation, any Indebtedness Incurred or anticipated to be
Incurred in connection with such transaction or series of transactions), the
Corporation (or the surviving entity if the Corporation is not continuing) would
be able to Incur at least $1.00 of additional Indebtedness under clause (a)(A)
of paragraph (10) hereof; and (iii) immediately after giving effect to such
transaction or series of transactions on a pro forma basis (including, without
limitation, any Indebtedness Incurred or anticipated to be Incurred in
connection with such transaction or series of transactions) as if such
transaction had occurred on the first day of the Determination Period, the
Corporation (or the surviving entity if the Corporation is not continuing) shall
have a Consolidated Net Worth equal to or greater than the Consolidated Net
Worth of the Corporation immediately prior to the transaction or series of
transactions. The foregoing restriction will not apply to the merger or
consolidation of a Restricted Subsidiary of the Corporation with or into the
Corporation. In the event the Corporation reaches Investment Grade Status and
notwithstanding that the Corporation's Debt Rating thereafter ceases to be rated
Investment Grade by either S&P or Moody's or both the restrictions contained in
clauses (ii) and (iii) above shall cease to apply.
(13) (a) EVENTS OF DEFAULT. The following additional Events of
Default shall be added for the benefit of the Senior 2005 Notes:
(i) default in the payment of any principal or premium, if any,
on the Senior 2005 Notes when the same becomes due and payable at
maturity or upon repurchase pursuant to a Prepayment Offer as
described in clause (g) of paragraph (10) hereof or pursuant to a
Change of Control or other Designated Event as described in paragraph
(11) hereof;
(ii) default for 60 days after written notice thereof in the
performance of any covenant (other than those covered by subclause
(i) and by Sections 6.01(a) and (b) of the Indenture applicable to the
Senior 2005 Notes), which written notice requires remedy of such
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default and has been given to the Corporation by the Trustee, or to
the Corporation and the Trustee by the Holders of at least twenty-five
percent in aggregate principal amount of the Senior 2005 Notes;
(iii) acceleration of maturity of any Indebtedness of the
Corporation or any Subsidiary in excess of $50 million principal
amount in the aggregate if such acceleration results from a default
under the instruments giving rise to such indebtedness and is not
annulled within 10 days after written notice of such default, which
written notice requires the Corporation to cause such acceleration to
be rescinded or annulled and has been given to the Corporation by the
Trustee, or to the Corporation and the Trustee by the Holders of at
least twenty-five percent in aggregate principal amount of the Senior
2005 Notes; and
(iv) the entry by a court of competent jurisdiction of one or
more judgments or orders against the Corporation or any of its
Restricted Subsidiaries in an uninsured aggregate amount in excess of
$50 million and such judgment or order is not discharged, waived,
stayed or satisfied for a period of 45 consecutive days.
(b) ACCELERATION. In case an Event of Default of the type described
in clause (a) above or in Section 6.01(a), (b) or (c) of the Indenture shall
occur and be continuing with respect to the Senior 2005 Notes, the Trustee or
the Holders of not less than 25% in aggregate principal amount of the Senior
2005 Notes then outstanding by notice to the Corporation may declare the
principal of the Senior 2005 Notes to be due and payable immediately. If an
Event of Default of the type described in Section 6.01 (d) or (e) shall occur
and be continuing, all Senior 2005 Notes shall become due and payable
immediately without any further action or notice.
(c) WAIVER OF DEFAULTS. Any Event of Default with respect to the
Senior 2005 Notes may be waived, and a declaration of acceleration rescinded,
by the holders of a majority in aggregate principal amount of the Senior 2005
Notes except in a case of failure to pay principal or premium, if any, or
interest in respect of the Senior 2005 Notes or failure to honor change of
control provisions.
(14) DEFEASANCE. The provisions of Article Twelve of the Indenture
relating to defeasance of Securities shall be applicable
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to the Senior 2005 Notes, except that Section 12.02 of the Indenture as it
relates to the Senior 2005 Notes shall be replaced by the following provision:
SATISFACTION, DISCHARGE AND DEFEASANCE OF SENIOR 2005 NOTES. At
the Corporation's option, either (a) the Corporation shall be deemed to
have paid and discharged the entire indebtedness on all the Outstanding
Senior 2005 Notes and the Trustee, at the expense of the Corporation, shall
execute proper instruments acknowledging satisfaction and discharge of such
indebtedness, or (b) the Corporation shall cease to be under any obligation
to comply with any term, provision, condition or covenant applicable to the
Senior 2005 Notes set forth in Section 11.01 of the Indenture and in
paragraph 10, 11 and 12 of this resolution authorizing the series of
Senior 2005 Notes and the issuance thereof, when:
(i) with respect to all Outstanding Senior 2005 Notes,
(A) the Corporation shall have deposited or caused to be
deposited with the Trustee as trust funds in trust for such
purpose an amount sufficient to pay and discharge the entire
indebtedness of all Outstanding Senior 2005 Notes for principal
and interest to the stated maturity; or
(B) the Corporation shall have deposited or caused to be
deposited with the Trustee as obligations in trust for such
purpose such amount of direct noncallable obligations of, or
noncallable obligations the payment of principal of and interest
on which is fully guaranteed by, the United States of America, or
to the payment of which obligations or guarantees the full faith
and credit of the United States of America is pledged, maturing
as to principal and interest in such amounts and at such times as
will, together with the income to accrue thereon (but without
reinvesting any proceeds thereof), be sufficient to pay and
discharge the entire indebtedness on all Outstanding Senior 2005
Notes for principal and interest to the stated maturity;
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(ii) the Corporation shall have paid or caused to be paid all
other sums payable with respect to the Outstanding Senior 2005 Notes;
(iii) if the Senior 2005 Notes are then listed on any national
securities exchange, the Corporation shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Corporation's
exercise of its option under this provision would not cause such
Senior 2005 Notes to be delisted;
(iv) no Event of Default or event (including such deposit),
which with notice or lapse of time would become an Event of Default,
with respect to the Senior 2005 Notes shall have occurred and be
continuing on the date of such deposit;
(v) the Corporation shall have delivered to the Trustee an
Opinion of Counsel of nationally recognized tax counsel to the effect
that Holders of the Senior 2005 Notes will not recognize income, gain
or loss for Federal income tax purposes as a result of the
Corporation's exercise of its option under this provision and will be
subject to Federal income tax in the same amount and in the same
manner and at the same times as would have been the case if such
option had not been exercised;
(vi) the Corporation shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Corporation's exercise of
its option under this provision will not cause any violation of the
Investment Company Act of 1940, as amended, on the part of the
Corporation, the trust, the trust funds representing the Corporation's
deposit or the Trustee; and
(vii) the Corporation shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the Corporation's exercise of its
option under this provision have been complied with.
Any deposits with the Trustee referred to above shall be irrevocable
and shall be made under the terms of an escrow trust agreement in form and
substance satisfactory to the Trustee.
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For purposes of this provision, "discharged" means that the
Corporation shall be deemed to have paid and discharged the entire
indebtedness represented by, and obligations under, the Senior 2005 Notes
and to have satisfied all the obligations under the Indenture relating to
the Senior 2005 Notes (and the Trustee, at the expense of the Corporation,
shall execute proper instruments acknowledging the same), except (x) the
rights of Holders of Senior 2005 Notes to receive, from the trust fund
described above, payment of the principal of and interest on such Senior
2005 Notes when such payments are due, (y) the Corporation's obligations
with respect to the Senior 2005 Notes under Sections 2.05, 2.07, 4.02 and
12.03 of the Indenture and (z) the rights, powers, trusts, duties and
immunities of the Trustee hereunder.
(15) CERTAIN MODIFICATIONS. In addition to the restrictions on
modifying the Indenture contained in the Indenture, the provisions of paragraph
(11) and clause (g) of paragraph (10) hereof with respect to the obligations of
the Corporation to offer to repurchase the Senior 2005 Notes may not be modified
or eliminated without the consent of the Holders of not less than two-thirds in
principal amount of the Senior 2005 Notes.
(16) DEFINITIONS. The following definitions shall be applicable to
this Resolution:
"Additional Assets" means any Property (other than cash or cash
equivalents) used in or substantially related to the businesses engaged in by
the Corporation or its Restricted Subsidiaries as of the Issue Date.
"Affiliate" means, as to any Person, any other Person which directly
or indirectly controls, or is under common control with, or is controlled by,
such Person. As used in this definition, "control" (including, with its
correlative meanings, "controlled by" and "under common control with") shall
mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise), provided
that, in any event, (a) any Person which owns directly or indirectly 10% or more
of the securities having ordinary voting power for the election of directors or
other governing body of a company or 10% or more of the partnership or other
ownership interests of any other Person (other than as a limited partner of such
other Person) will be deemed to control such company or other Person and
(b) each Unrestricted Subsidiary shall be deemed to be an Affiliate of the
Corporation and of each other Restricted Subsidiary and Unrestricted Subsidiary.
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Notwithstanding the foregoing, no Person (other than the Corporation or any
Subsidiary of the Corporation) in whom a Receivables Subsidiary makes an
investment solely in connection with a Qualified Receivables Transaction shall
be deemed to be an Affiliate of the Corporation or any of its Subsidiaries with
respect to such investment (but may be deemed an Affiliate with respect to other
transactions, if applicable).
"Asset Sale" means, with respect to any Person, any transfer,
conveyance, sale, lease or other disposition (an "Assignment") by such Person
or any of its Restricted Subsidiaries (including (x) issuances of Capital Stock
by any Restricted Subsidiary of such Person and (y) any consolidation, merger or
other sale of any such Restricted Subsidiary with, into or to another person in
a transaction in which such Restricted Subsidiary ceases to be a Restricted
Subsidiary, but excluding (z) any Sale and Leaseback Transaction) in any single
transaction or series of transactions of (i) shares of Capital Stock (other
than directors' shares of Qualified Capital Stock) or other ownership interests
of a subsidiary of such Person or (ii) any other Property (other than cash or
cash equivalents) of such Person or any of its Restricted Subsidiaries (other
than sales within the ordinary course of business) where the Fair Market Value
of the shares, ownership interests, or other Property being sold, leased, or
otherwise disposed of, in a single transaction or series of transactions,
exceeds $25 million (except in the case of issuances of capital stock described
in clause (x) above, as to which the $25 million threshold will not apply);
provided that the term "Asset Sale" shall not include (a) any Assignment
permitted pursuant to clause (j) of paragraph (10) hereof which constitutes a
disposition of all or substantially all of the Corporation's assets or
properties, (b) any Assignment, consolidation or merger between or among such
Person and its wholly-owned Restricted Subsidiaries and any issuance of Capital
Stock by a Restricted Subsidiary of such Person to such Person or one or more
of its Restricted Subsidiaries, (c) any issuance of Capital Stock by CGC Inc. to
employees or directors pursuant to employee benefit plans or to stockholders
pursuant to dividend reinvestment plans, in each case approved by CGC Inc.'s
board of directors, (d) sales of accounts receivable and related assets of the
type specified in the definition of "Qualified Receivables Transaction" to a
Receivables Subsidiary, (e) transfers of accounts receivable and related assets
of the type specified in the definition of "Qualified Receivables Transaction"
(or a fractional undivided interest therein) by a Receivables Subsidiary in a
Qualified Receivables Transaction, (f) the surrender or waiver of contract
rights or the settlement, release or surrender of contract, tort or other claims
of any kind, (g) the grant of any license of patents, trademarks, registrations
therefor and other similar intellectual property or (h) any Assignment of
Property to any Joint Venture if, at the time such Assignment is
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made, the total of such Assignment and all Assignments previously made to Joint
Ventures and not returned to the Corporation or its Restricted Subsidiaries in
cash or in kind do not in the aggregate exceed 7.5% of the Corporation's
consolidated Property, Plant and Equipment as shown or reflected on the
Corporation's consolidated balance sheet most recently filed under the Exchange
Act. In the case of clauses (d) and (e) above, sales or transfers of accounts
receivable and related assets shall not be excluded from the definition of Asset
Sale to the extent that the Corporation records debt on its consolidated balance
sheet in connection therewith in excess of 90% of the consolidated net book
value of the Corporation's accounts receivable as shown or reflected on its
books.
"Attributable Value" means, as to any particular lease under which any
Person is at the time liable, other than a Capital Lease Obligation, and at any
date as of which the amount thereof is to be determined, the greater of (i) the
Fair Market Value of the property subject to such lease, or (ii) the total net
amount of rent required to be paid by such Person under such lease during the
initial term thereof as determined in accordance with GAAP, discounted from the
last date of such initial term to the date of determination at a rate per annum
equal to the interest rate borne by the Senior 2005 Notes compounded
semi-annually. The net amount of rent required to be paid under any such lease
for any such period shall be the aggregate amount of rent payable by the lessee
with respect to such period after excluding amounts required to be paid on
account of insurance, taxes, assessments, utility, operating and labor costs and
similar charges. In the case of any lease which is terminable by the lessee
upon the payment of a penalty, such net amount shall also include the amount of
such penalty, but no rent shall be considered as required to be paid under such
lease subsequent to the first date upon which it may be so terminated.
"Average Life" means, as of any date, with respect to any debt
security or Redeemable Stock that is Preferred Stock, the quotient obtained by
dividing (i) the sum of the products of (x) the number of years from such date
to the date of each scheduled principal or redemption payment (including any
sinking fund or mandatory redemption payment requirements) of such debt or
equity security multiplied in each case and (y) the amount of such principal or
redemption payment by (ii) the sum of all such principal or redemption payments.
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other Indebtedness
arrangement conveying the right to use) real or personal property of such Person
which is required to be classified and accounted for as a capital lease or a
liability on
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the face of a balance sheet of such Person in accordance with GAAP. The amount
of any such Capital Lease Obligation shall be the capitalized amount thereof,
determined in accordance with GAAP and as set forth or reflected in the
Corporation's financial statements most recently filed under the Exchange Act.
"Capital Stock" in any Person means any and all shares, interests,
participations or other equivalents in the equity interest (however designated)
in such Person and any rights (other than debt securities convertible into an
equity interest), warrants or options to subscribe for or to acquire an equity
interest in such Person.
"Change of Control" means an event or series of events by which
(i)(A) the Corporation consolidates with or merges into any other Person or
conveys, transfers or leases all or substantially all of its assets to any
Person or group of Persons or (B) any Person consolidates with or merges into
the Corporation, in the case of either (A) or (B) pursuant to a transaction or
series of transactions (other than a transaction or series of transactions
between the Corporation and a wholly owned Restricted Subsidiary of the
Corporation if permitted under clause (j) of paragraph (1) hereof) as a result
of which the existing shareholders of the Corporation immediately prior thereto
would hold less than 50% of the combined voting power of the Voting Stock of the
surviving Person, or (ii) any "person" or "group" (each as defined in
Section 13(d)(3) and 13d-5 of the Exchange Act) becomes the "beneficial owner"
(as defined under Rule 13d-3 of the Exchange Act), directly or indirectly, of
more than 50% of the total voting power of all classes of Voting Stock of the
Corporation, or (iii) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors (together
with any new or replacement directors whose election by the Board of Directors
or whose nomination for election by the Corporation's stockholders was approved
by a vote of at least 66 2/3% of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a
majority of the directors then in office; provided that in the event that a
Person or group that is beneficial owner of 50% or less of the Voting Stock of
the Corporation is able to elect a majority of the Board pursuant to an
agreement with another holder or group of holders, a Change of Control will be
deemed to have occurred.
"company" includes corporations, associations, companies and business
trusts.
"Consolidated EBITDA" of any Person means, for any period, the
Consolidated Net Income of such Person, increased (to
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the extent deducted in determining Consolidated Net Income) by the sum of
(i) all income taxes of such Person and its Restricted Subsidiaries paid or
accrued in accordance with GAAP, (ii) the Consolidated Interest Expense of such
Person and its Restricted Subsidiaries for such period, (iii) depletion,
depreciation and amortization expenses of such Person and its Restricted
Subsidiaries for such period, (iv) other non-cash items of such Person and its
Restricted Subsidiaries for such period to the extent such non-cash items
reduced Consolidated Net Income, MINUS non-cash items for such period to the
extent such non-cash items increased the Consolidated Net Income of such Person
and its Restricted Subsidiaries; and (v) items shown as "Other Expense" on the
consolidated statement of earnings of such Person and its Restricted
Subsidiaries for such period, but only to the extent such items reduced
Consolidated Net Income by $3 million or less individually and by $6 million or
less in the aggregate on an annualized basis during such period.
"Consolidated Interest Coverage Ratio" means, as of the Transaction
Date, the ratio of (i) the aggregate amount of Consolidated EBITDA of such
Person, to (ii) the aggregate Consolidated Interest Expense of such Person, in
each case for the Determination Period assuming for the purposes of this
measurement the continuation of market interest rates prevailing on the
Transaction Date and base interest rates in respect of floating interest rate
obligations equal to the base interest rates on such obligations in effect as of
the Transaction Date; PROVIDED that if such Person or any of its Restricted
Subsidiaries is a party to any Interest Rate Protection Agreements which would
have the effect of changing the interest rate on any Indebtedness of such Person
or any of its Subsidiaries for such Determination Period (or a portion thereof),
the resulting rate shall be used for such Determination Period or portion
thereof; and PROVIDED FURTHER that any Consolidated Interest Expense with
respect to debt Incurred or retired by such Person or any of its Restricted
Subsidiaries during the Determination Period shall be calculated as if such debt
was so Incurred or retired on the first day of the Determination Period; and
PROVIDED FURTHER that if the transaction giving rise to the need to calculate
the Consolidated Interest Coverage Ratio would have the effect of increasing or
decreasing EBITDA, EBITDA shall be calculated on a pro forma basis as if such
transaction had occurred on the first day of the Determination Period and if,
during the same Determination Period (x) such Person or any of its Subsidiaries
shall have engaged in any Asset Sale, EBITDA for such period shall be reduced by
an amount equal to the EBITDA (if positive), or increased by an amount equal to
the EBITDA (if negative), directly attributable to the assets which are the
subject of such Asset Sale for such period calculated on a pro forma basis as if
such Asset Sale and any related retirement of Indebtedness had occurred on the
first day of such period or
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(y) such Person or any of its Restricted Subsidiaries shall have acquired any
material assets or Person outside of the ordinary course of business (including
in a pooling of interests transaction), EBITDA shall be calculated on a pro
forma basis as if such acquisition had occurred on the first day of such period.
"Consolidated Interest Expense" means, with respect to any Person for
any period, without duplication (i) the sum of (A) the aggregate amount of cash
and non-cash interest expense (including capitalized interest and the interest
component of any Capital Lease Obligation) of such Person and its Restricted
Subsidiaries for such period as determined on a consolidated basis in accordance
with GAAP in respect of Indebtedness (including, without limitation, (x) any
amortization of debt discount (but excluding non-cash amortization of debt
discount associated with the implementation of the Restructuring), (y) net costs
associated with Interest Rate Protection Agreements (including any amortization
of discounts) and (z) all accrued interest; (B) Preferred Stock dividends of
such Person (and of its Restricted Subsidiaries if paid to a Person other than
such Person or its Restricted Subsidiaries) declared and payable in cash
multiplied by a fraction the numerator of which is one and the denominator of
which is one minus the Corporation's effective tax rate for such period; (C) the
portion of any rental obligation of such Person or its Restricted Subsidiaries
in respect of any Capital Lease Obligation allocable to interest expense in
accordance with GAAP; (D) the portion of any rental obligation of such Person or
its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction
allocable to interest expense (determined as if such were treated as a Capital
Lease Obligation); and (E) to the extent any Indebtedness of any other Person is
Guaranteed by such Person or any of its Restricted Subsidiaries, the aggregate
amount of interest paid, accrued or scheduled to be paid or accrued, by such
other Person during such period attributable to any such Indebtedness, minus
(ii) to the extent included in (i) above, amortization or write-off of deferred
financing costs of such Person and its Restricted Subsidiaries during such
period and any charge related to any premium or penalty paid in connection with
redeeming or retiring any Indebtedness of such Person and its Restricted
Subsidiaries prior to its Stated Maturity; in the case of both (i) and
(ii) above, after elimination of intercompany accounts among such Person and its
Restricted Subsidiaries and as determined in accordance with GAAP and excluding
the amortization of capitalized reorganization debt discount costs associated
with the revaluation of assets and liabilities with respect to the Restructuring
as determined in accordance with GAAP and as set forth or reflected in the
Corporation's financial statements most recently filed under the Exchange Act.
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"Consolidated Net Income" of any Person means, for any period, the
aggregate net income (or net loss) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis determined in accordance
with GAAP; provided that there shall be excluded therefrom, without duplication,
(i) all items classified as extraordinary, (ii) any net loss or net income of
any Person other than such Person and its Restricted Subsidiaries, except to the
extent of the amount of dividends or other distributions actually paid to such
Person or its Restricted Subsidiaries by such other Person during such period,
(iii) gains or losses in respect of Asset Sales by such Person or its Restricted
Subsidiaries, (iv) the net income of any Restricted Subsidiary of such Person to
the extent that the payment of dividends or other distributions to such Person
is restricted by contract or otherwise, except for any dividends or
distributions actually paid by such Restricted Subsidiary to such Person;
provided that the net income of all such Restricted Subsidiaries shall be
excluded from Consolidated Net Income only to the extent it exceeds $2 million
per annum and (v) amortization of excess reorganization value and capitalized
reorganization debt discount costs associated with the revaluation of assets and
liabilities with respect to the Restructuring, in each case as set forth or
reflected in the Corporation's financial statements most recently filed under
the Exchange Act.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (including investments in Unrestricted Subsidiaries, but less applicable
reserves and other properly deductible items) minus (i) all liabilities and
liability items except (a) indebtedness for money borrowed maturing on, or
extendable at the option of the obligor to, a date more than one year from the
date of determination thereof, (b) deferred income taxes and (c) stockholders'
equity and (ii) the asset value as reflected in the balance sheet of all
goodwill, trade names, trademarks, patents, unamortized excess reorganization
value, unamortized debt discount and expense and other like intangibles, in each
case as determined in accordance with GAAP and as set forth or reflected in the
Corporation's consolidated balance sheet most recently filed under the Exchange
Act.
"Consolidated Net Worth" of any Person means the stockholders' equity
of such Person and its Restricted Subsidiaries, as determined on a consolidated
basis in accordance with GAAP, less amounts attributable to Redeemable Stock of
such Person and its Restricted Subsidiaries.
"Credit Agreement" means the bank credit agreement entered into as of
July 27, 1995 between the Corporation, on the one hand, and the banks signatory
thereto on the other, and all related notes, collateral documents, guarantees,
instruments and other agreements executed in connection therewith, as the same
may
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be amended, modified, supplemented, restated or Refinanced from time to time,
under which the Corporation is permitted to borrow up to $500 million.
"Debt Rating" means the actual rating assigned to the Senior 2005
Notes by Moody's or S&P, as the case may be. (The Indenture provides that the
Corporation will use its best efforts to cause both Moody's and S&P to make a
rating of the Senior 2005 Notes publicly available, but in the event that either
Moody's or S&P does not make a rating of the Senior 2005 Notes publicly
available, the Indenture provides that the Corporation shall select any other
nationally recognized securities rating agency to make such a rating. In such
event, the terms "Moody's" and "S&P," as the case may be, mean, for purposes of
this definition, such other nationally recognized securities rating agency.)
"Default" means any event, act or condition the occurrence of which
is, or after notice or the passage of time or both would be, an Event of
Default.
"Designated Event" shall be deemed to have occurred at such time as
(a) a Change of Control occurs or (b) a Designated Restricted Payment Event
occurs.
"Designated Restricted Payment Event" means a (i) declaration or
payment of any dividend on, or the making of any distribution on account of, the
Corporation's capital stock or (ii) purchase, redemption, or acquisition or
retirement for value of any capital stock (including any option, warrant or
right to purchase capital stock) of the Corporation owned beneficially by a
Person other than a wholly owned Restricted Subsidiary of the Corporation, by
the Corporation or any Subsidiary of the Corporation, if the aggregate dividends
and repurchases referred to in clauses (i) and (ii) above for the consecutive
twelve month period ending on the Transaction Date exceeds one half of the
Consolidated Net Income of the Corporation for the eight fiscal quarters
immediately prior to the Transaction Date for which consolidated financial
statements are publicly available.
"Determination Period" means the four consecutive fiscal quarters for
which consolidated financial statements in respect thereof are available
immediately prior to the applicable Transaction Date.
"Domestic Joint Ventures" means Joint Ventures having their primary
business operations inside the United States.
"Domestic Restricted Subsidiary" means a Restricted Subsidiary having
its primary business operations inside the United States.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations promulgated thereunder.
"Fair Market Value" means, with respect to the total consideration
received pursuant to any Asset Sale or any non-cash consideration received by
any Person, the fair market value of such consideration as determined in good
faith by the Board of Directors or a committee thereof.
"Fiscal Year" means, with respect to the Corporation, the twelve
consecutive months ending December 31.
"Foreign Joint Ventures" means Joint Ventures having their primary
business operations outside the United States.
"Foreign Restricted Subsidiary" means a Restricted Subsidiary having
its primary business operations outside the United States.
"Full Rating Category" means (i) with respect to S&P, any of the
following categories: BB, B, CCC, CC, and C, and (ii) with respect to Moody's,
any of the following categories: Ba, B, Caa, Ca, and C. In determining whether
the rating of the Senior 2005 Notes has decreased by the equivalent of one Full
Rating Category, gradation within Full Rating Categories (+ and - for S&P; 1, 2,
and 3 for Moody's) shall be taken into account (e.g., with respect to S&P, a
decline in rating from BB+ to BB-, or from BB to B+, will constitute a decrease
of less than one Full Rating Category.)
"GAAP" or "generally accepted accounting principles," with respect to
any computation required or permitted hereunder shall, except as otherwise
specifically provided, mean such accounting principles as are generally accepted
in the United States of America at the date of such computation.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or other obligation of such
other Person (whether arising by virtue of partnership arrangements, or by
agreement to keep-well or to maintain financial statement conditions or
otherwise) or (ii) entered into for purposes of assuring in any other manner the
obligee of such Indebtedness or other obligation of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
PROVIDED, HOWEVER, that the term "Guarantee" will not include endorsements
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for collection or deposit in the ordinary course of business (and "Guaranteed",
"Guaranteeing" and "Guarantor" shall have meanings correlative to the
foregoing).
"Incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
extend, assume, Guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or obligation on the balance sheet of
such Person (and "Incurrence," "Incurred," and "Incurrable" and "Incurring"
shall have meanings correlative to the foregoing); provided that the recording
by the Corporation of Indebtedness of a Subsidiary as required in the
preparation of consolidated financial statements of the Corporation shall not
constitute an "Incurrence" of such Indebtedness by the Corporation for purposes
of the covenant contained in clause (a) of paragraph (10); and further provided
that a change in GAAP that results in an obligation of a Person that exists at
such time becoming Indebtedness shall not be deemed an Incurrence of such
Indebtedness.
"Indebtedness" means at any time (without duplication), with respect
to any Person, whether recourse is to all or a portion of the assets of such
Person, and whether or not contingent, (i) any obligation of such Person for
borrowed money, (ii) any obligation of such Person evidenced by bonds,
debentures, notes, Guarantees or other similar instruments, (iii) any
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such Person
(other than obligations with respect to letters of credit securing obligations
entered into in the ordinary course of business of such Person to the extent not
drawn on or, if and to the extent drawn on, such drawing is reimbursed promptly
following receipt by such Person of a demand for reimbursement following payment
on the letter of credit), (iv) any obligation of such Person issued or assumed
as the deferred purchase price of Property or services (but excluding trade
accounts payable or accrued liabilities arising in the ordinary course of
business), (v) any Capital Lease Obligation of such Person, (vi) the maximum
fixed redemption or repurchase price of Redeemable Stock of such Person at the
time of determination, (vii) any payment obligation of such Person under
Interest Rate Protection Agreements at the time of determination, (viii) the
Attributable Value of any obligation of such Person to pay rent or other amounts
with respect to any Sale and Leaseback Transaction to which such Person is a
party, and (ix) any obligation of the type referred to in clauses (i) through
(viii) of this paragraph of another Person secured by any Lien on any property
or asset of such Person (whether or not such obligation is assumed by such
Person), the amount of such obligation being deemed to be the lesser of the
value of such
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property or asset or the amount of the obligations so secured. Notwithstanding
the foregoing, the following shall not constitute Indebtedness: (w) obligations
Incurred in connection with currency hedges and energy hedges entered into in
the ordinary course of business and (x) Indebtedness of any Person existing at
the time such Person becomes a Restricted Subsidiary if such Indebtedness is
defeased in accordance with its terms or, in the event that defeasance is not
provided for in the instruments defining such Indebtedness, the Corporation
irrevocably deposits in trust for the Holders of such Indebtedness money or
noncallable obligations issued or fully guaranteed by the United States of
America which through the payment of interest and income thereon and principal
thereof will provide money, in each case in an amount sufficient to pay all the
principal of (and premium on, if any) and interest on such Indebtedness on the
dates such payments are due in accordance with the terms thereof and shall pay
or cause to be paid all other sums payable with respect thereto. The maximum
fixed repurchase price of any Redeemable Stock that does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Redeemable Stock as if such Redeemable Stock were repurchased on any date on
which Indebtedness shall be required to be determined pursuant to this
Indenture; provided, however, that if such Redeemable Stock is not then
permitted to be repurchased, the repurchase price shall be the book value of
such Redeemable Stock. The amount of Indebtedness arising from any Guarantee
shall be limited to the lesser of (y) the amount of Indebtedness underlying such
Guarantee or (z) the limit, if any, on recovery against the Guarantor contained
in such Guarantee. The amount of Indebtedness of any Person at any date shall
be the outstanding balance at such date of all unconditional obligations as
described above and the maximum liability of any contingent obligations as
described above at such date.
"Interest Rate Protection Agreement" means, with respect to any
Person, any interest rate swap agreement, interest rate cap agreement, currency
swap agreement or other financial agreement or arrangement designed to protect
such Person or its Restricted Subsidiaries against fluctuations in interest rate
or currency exchange rates, as in effect from time to time.
"Investment Grade" means a rating of at least BBB- (or the equivalent)
or higher by S&P and Baa3 (or the equivalent) or higher by Moody's.
"Investment Grade Status" shall be deemed to have been reached on the
date that the Debt Rating by both Moody's and S&P is Investment Grade.
"Issue Date" means the first day on which the Senior 2005 Notes are
issued.
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"Joint Ventures" means joint ventures or other risk sharing
arrangements (which may include partnerships or corporations) the purpose of
which is to engage in the same or complementary lines of business as the
Corporation or a Restricted Subsidiary or in businesses consistent with the
fundamental nature of the operating business of the Corporation or a Restricted
Subsidiary.
"Lien" means, with respect to any Property, any mortgage or deed of
trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien (statutory or other), charge, encumbrance, preference, priority
or other security or similar agreement or preferential arrangement of any kind
or nature whatsoever on or with respect to such Property (including without
limitation, any conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Moody's" means Moody's Investors Service or any successor to the
rating agency business thereof.
"Net Cash Proceeds" from any Asset Sale by any Person or its
Restricted Subsidiaries means cash, cash equivalents or readily marketable
securities received, net of (i) all reasonable out-of-pocket expenses of such
Person or such Restricted Subsidiary incurred in connection therewith,
including, without limitation, all legal, title and recording tax expenses,
commissions and other fees and expenses (but excluding any finder's fee or
broker's fee payable to any Affiliate of such Person) and all federal, state,
provincial, foreign and local taxes arising in connection with such Asset Sale
that are paid or required to be accrued as a liability under GAAP by such Person
or its Restricted Subsidiaries, (ii) all payments made by such Person or its
Restricted Subsidiaries on any Indebtedness which is secured by such Properties
in accordance with the terms of any Lien upon or with respect to such Properties
or which must, by the terms of such Lien, or in order to obtain a necessary
consent to such Asset Sale or by applicable law, be repaid out of the proceeds
from such Asset Sale, and (iii) all distributions and other payments made to
minority interest Holders in Restricted Subsidiaries of such Person as a result
of such Asset Sale (except for distributions under this clause (iii) made to
Affiliates of such Person or Restricted Subsidiaries); provided that, in the
event that any consideration for an Asset Sale (which would otherwise constitute
Net Cash Proceeds) is required to be held in escrow pending determination of
whether a purchase price adjustment will be made, such consideration (or any
portion thereof) shall become Net Cash Proceeds only at such time as it is
released to such Person or its Restricted Subsidiaries from escrow, and provided
that any non-cash consideration received in connection with an Asset Sale, which
is within 90 days converted to cash,
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shall be deemed to be Net Cash Proceeds at such time and shall thereafter be
applied in accordance with clause (j) of paragraph (10) hereof.
"Permitted Refinancing Indebtedness" means Indebtedness of the
Corporation, the proceeds of which are used to Refinance outstanding
Indebtedness of the Corporation or any Restricted Subsidiary, provided that
(i) if the Indebtedness being Refinanced is pari passu with or subordinated in
right of payment to the Senior 2005 Notes, then such Indebtedness is pari passu
with or subordinated in right of payment to, as the case may be, the Senior 2005
Notes at least to the same extent as the Indebtedness being Refinanced,
(ii) such Indebtedness is scheduled to mature no earlier than the Indebtedness
being Refinanced and (iii) such Indebtedness has an Average Life at the time
such Indebtedness is Incurred that is equal to or greater than the Average Life
of the Indebtedness being Refinanced, and (iv) such Indebtedness is in an
aggregate principal amount (or, if such Indebtedness is issued at a price less
than the principal amount thereof, has an aggregate original issue price) not in
excess of the aggregate principal amount then outstanding of the Indebtedness
being Refinanced (or if the Indebtedness being Refinanced was issued at a price
less than the principal amount thereof, then not in excess of the amount of
liability in respect thereof determined in accordance with GAAP) plus all
interest accrued thereon and all related fees, expenses, and redemption and
repurchase premiums (including any payments made in connection with procuring
any required lender or similar consents).
"Preferred Stock," as applied to the Capital Stock of any Person,
means Capital Stock of such Person of any class or classes (however designated)
that ranks prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Principal Operating Property" means any manufacturing plant, or
distribution or research facility, and related facilities located in the United
States and owned and operated by the Corporation or any Subsidiary for more than
90 days, other than any facility acquired for the control or abatement of
atmospheric pollutants or contaminants, water pollution, noise, odor or other
pollution.
"Priority Indebtedness" means (without duplication) (a) the Capital
Lease Obligations and Attributable Value of Sale and Leaseback Transactions of
(x) the Corporation Incurred pursuant to clause (a)(B)(iv) of paragraph (10)
hereof or (y) any Restricted Subsidiary of the Corporation Incurred pursuant to
clause (b)(A)(iii) of paragraph (10) hereof, (b) Indebtedness or Preferred
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Stock of any Restricted Subsidiary of the Corporation Incurred pursuant to
clause (b)(A)(vi) of paragraph (10) hereof, (c) Indebtedness of the Corporation
Incurred after the Issue Date which is secured by a Lien of the type covered by
clause (d) of paragraph (10) hereof, but with respect to which the Senior 2005
Notes are not equally and ratably secured and (d) the Attributable Value of any
Sale and Leaseback Transactions referred to in clause (e)(B)(i) of paragraph
(10) hereof to the extent entered into after the Issue Date and not included
under clause (a) above.
"Priority Indebtedness Basket" means the greater of (a) 5% of
Consolidated Net Tangible Assets of the Corporation and (b) $225 million.
"Project Financing" means Indebtedness incurred to finance the
construction, development or acquisition of property or assets, with respect to
which Indebtedness recourse is limited to (x) the property or assets
constituting all or a portion of the project being financed with the proceeds of
such Indebtedness and the funds generated from such project upon the completion
of such project, (y) the entity undertaking such project if such entity exists
for the primary purpose of operating such project, and/or (z) a Restricted or
Unrestricted Subsidiary to the extent it Guarantees such Indebtedness; provided
that Indebtedness associated with any Guarantee made by a Restricted Subsidiary
shall be charged against the Priority Indebtedness Basket (unless to do so would
be duplicative).
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including, without limitation, Capital Stock in any
other Person.
"Qualified Capital Stock" means Capital Stock of the Corporation or
any of its Restricted Subsidiaries that does not by its terms require any
dividends, distributions, mandatory repayment or mandatory redemption prior to
the first anniversary following the Stated Maturity of the Senior 2005 Notes.
"Qualified Receivables Transaction" means any transaction or series of
transactions that may be entered into by the Corporation or any of its
Subsidiaries pursuant to which the Corporation or any of its Subsidiaries may
sell, convey or otherwise transfer to (i) a Receivables Subsidiary (in the case
of a transfer by the Corporation or any of its Subsidiaries) and (ii) any other
person (in the case of a transfer by a Receivables Subsidiary), or may grant a
security interest in, any accounts receivable (whether now existing or arising
in the future) of the Corporation or any of its Subsidiaries, and any assets
related thereto including, without limitation, all collateral securing such
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accounts receivable, all contacts and all guarantees or other obligations in
respect of such accounts receivable, proceeds of such accounts receivable and
other assets which are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization
transactions involving accounts receivable.
"Rating Decline" means the occurrence of the following on or within
90 calendar days after the date of public disclosure of the occurrence of a
Designated Event (which period will be extended, for a period not to exceed
90 calendar days, so long as the Debt Rating is under publicly announced
consideration for possible downgrading by both Moody's and S&P): (i) in the
event the Senior 2005 Notes are rated Investment Grade by Moody's or S&P on the
earlier of the date immediately preceding the date of the public disclosure of
(w) the occurrence of a Designated Event or (x) (if applicable) the intention of
the Corporation to effect a Designated Event, the Debt Rating by both Moody's
and S&P shall be below Investment Grade; or (ii) in the event the Senior 2005
Notes are rated below Investment Grade by both Moody's and S&P on the earlier of
the date immediately preceding the date of the public disclosure of (y) the
occurrence of a Designated Event or (z) (if applicable) the intention of the
Corporation to effect a Designated Event, the Debt Rating by each of Moody's and
S&P shall be decreased by at least one Full Rating Category.
"Receivables Subsidiary" means a wholly owned Subsidiary of the
Corporation which engages in no activities other than in connection with the
financing of accounts receivable and which is designated by or pursuant to the
authority of the Board of Directors of the Corporation (as provided below) as a
Receivables Subsidiary (a) no portion of the Indebtedness or any other
obligations (contingent or otherwise) of which (i) is guaranteed by the
Corporation or any Subsidiary of the Corporation (excluding guarantees of
obligations (other than the principal of, and interest on, Indebtedness)
pursuant to representations, warranties, covenants and indemnities entered into
in the ordinary course of business in connection with a Qualified Receivables
Transaction), (ii) is recourse to or obligates the Corporation or any Subsidiary
of the Corporation in any way other than pursuant to representations,
warranties, covenants and indemnities entered into in connection with a
Qualified Receivables Transaction or (iii) subjects any property or asset of the
Corporation or any Subsidiary of the Corporation, directly or indirectly,
contingently or otherwise, to the satisfaction thereof, other than pursuant to
representations, warranties, covenants and indemnities entered into in the
ordinary course of business in connection with a Qualified Receivables
Transaction and (b) with which neither the Corporation nor any Subsidiary of the
Corporation has any obligation to maintain or preserve such Subsidiary's
financial condition (other
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than restrictions on dividends and distributions by such Subsidiary) or cause
such Subsidiary to achieve certain levels of operating results. Any such
designation shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the resolution of the Board of Directors of the Corporation
giving effect to or authorizing such designation and an officer's certificate
certifying that such designation complied with the foregoing conditions.
"Redeemable Stock" of any Person means any equity security of such
Person that by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or otherwise, is required to be
redeemed or is redeemable at the option of the Holder thereof, in whole or part,
prior to the Stated Maturity of the Senior 2005 Notes, or is exchangeable for
debt at any time, in whole or part, prior to the Stated Maturity of the Senior
2005 Notes.
"Refinance" means, with respect to any Indebtedness, to renew, extend,
refinance, refund, replace or repurchase, or be substituted for, such
Indebtedness and "Refinancing" means the renewal, extension, refinancing,
refunding, replacement or repurchasing of, or substitution for, such
Indebtedness.
"Restricted Payment" means (i) a dividend or other distribution
declared or paid on the Capital Stock of the Corporation or to the Corporation's
stockholders (in their capacity as such), or declared or paid to any Person
other than the Corporation or a Restricted Subsidiary of the Corporation on the
Capital Stock of any Restricted Subsidiary of the Corporation, in each case,
other than dividends, distributions or payments payable or made solely in
Qualified Capital Stock of the Corporation, (ii) a payment made by the
Corporation or any of its Restricted Subsidiaries (other than to the Corporation
or any Restricted Subsidiary of the Corporation) to purchase, redeem, acquire or
retire any Capital Stock of the Corporation or of a Restricted Subsidiary or
(iii) a payment made by the Corporation or any of its Restricted Subsidiaries to
redeem, repurchase, defease (including, but not limited to, in substance or
legal defeasance) or otherwise acquire or retire for value, prior to any
scheduled maturity, scheduled repayment or scheduled sinking fund or mandatory
redemption payment, Indebtedness of the Corporation which is subordinate
(whether pursuant to its terms or by operation of law) in right of payment to
the Senior 2005 Notes and which was scheduled to mature (after giving effect to
any and all options to extend the maturity thereof) on or after the Stated
Maturity of the Senior 2005 Notes.
"Restricted Subsidiary" means (i) prior to the Corporation achieving
Investment Grade Status, any Subsidiary of
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<PAGE>
the Corporation which is not an Unrestricted Subsidiary and (ii) following the
Corporation achieving Investment Grade Status, any Subsidiary of the Corporation
which owns any Principal Operating Property; provided, however, that the
definition of Restricted Subsidiary contained in clause (i) above shall continue
to apply for the purpose of calculating the Consolidated Interest Coverage Ratio
of the Corporation and for the purpose of clause (a)(B)(vi) of paragraph (10)
hereof.
"Restructuring" means the restructuring of the Corporation's debt
through the implementation of a "prepackaged" plan of reorganization under the
federal bankruptcy laws completed on May 6, 1993.
"S&P" means Standard & Poor's Rating Group, a division of McGraw-Hill,
Inc., or any successor to the rating agency business thereof.
"Sale and Leaseback Transaction" means, with respect to any Person,
any direct or indirect arrangement pursuant to which Property is sold or
transferred by such Person or a Restricted Subsidiary of such Person and is
thereafter leased back from the purchaser or transferee thereof by such Person
or one of its Restricted Subsidiaries.
"Senior Indebtedness" means, at any date, any outstanding Indebtedness
of the Corporation that is pari passu in right of payment with the Senior 2005
Notes.
"Stated Maturity" means, when used with respect to any security, the
date specified in such security as the fixed date on which the principal or
redemption price of such security is due and payable and, when used with respect
to any installment of interest on a security, the fixed date on which such
installment of interest is due and payable. The Stated Maturity of a Capital
Lease Obligation shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty.
"Subsidiary" of the Corporation means any corporation at least a
majority of the shares of the Voting Stock (or the equivalent thereof, in the
case of corporations organized outside the United States of America) of which
shall at the time be owned, directly or indirectly, by the Corporation or by one
or more Subsidiaries or by the Corporation and one or more Subsidiaries.
"Transaction Date" means the date of any transaction giving rise to
the need to calculate the Consolidated Interest
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<PAGE>
Coverage Ratio or to determine whether there has been a Designated Event.
"Unrestricted Subsidiary" means (i) USG Funding Corporation and
(ii) any Subsidiary of the Corporation that the Corporation has classified
pursuant to "Restricted and Unrestricted Subsidiaries" as an Unrestricted
Subsidiary and that has not been reclassified as a Restricted Subsidiary.
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only as long as no
senior class of securities has such voting power by reason of any contingency.
BE IT FURTHER RESOLVED: That the form of the Senior 2005 Note
attached hereto as Exhibit A is in all respects approved, and that the execution
and delivery of the Senior 2005 Notes as provided in the Indenture is hereby
authorized, approved and directed, with such changes therein as the officer
executing the same shall approve, such execution to be conclusive evidence of
such approval.
BE IT FURTHER RESOLVED: That the Underwriting Agreement is in all
respects approved, and that the execution and delivery of the Underwriting
Agreement is hereby authorized, approved and directed.
BE IT FURTHER RESOLVED: That the Senior 2005 Notes be issued in
accordance with the Offering as described in the Preliminary Prospectus and at
the times, in the various denominations and for the various consideration to the
Corporation as described in the Underwriting Agreement.
BE IT FURTHER RESOLVED: That the Offering is reasonably necessary or
desirable for the Corporation in the conduct of its business.
BE IT FURTHER RESOLVED: That the Chief Executive Officer, Chief
Financial Officer, President, any Vice President, Secretary, or any Assistant
Secretary be, and they hereby are, authorized and directed to take such actions
and to execute and deliver such instruments and documents and to do such other
things as they or any of them shall deem necessary or advisable to effectuate
the purposes and intent of the foregoing Resolutions.
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<PAGE>
This instrument may be executed in two or more counterparts, each of
which shall be deemed an original and all of which taken together shall
constitute one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this instrument as
of the 3rd day of August, 1995.
/S/Eugene B. Connolly
-----------------------------
Eugene B. Connolly
/S/William C. Foote
------------------------------
William C. Foote
/S/James C. Cotting
------------------------------
James C. Cotting
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<PAGE>
EXHIBIT A
Form of Senior 2005 Note is attached hereto.
<PAGE>
THIS INSTRUMENT MAY BE TRANSFERRED IN WHOLE BUT NOT IN PART BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITARY SELECTED OR APPROVED BY THE CORPORATION OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
- --------------------------------------------------------------------------------
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No. 1 $150,000,000.00
USG CORPORATION
8 1/2% Senior Note due 2005
CUSIP: 903293 AP 3
USG CORPORATION, a Delaware corporation (herein called the
"Corporation," which terms includes any successor corporation under the
Indenture referred to herein), for value received, hereby promises to pay to:
CEDE & CO.
or registered assigns, the principal sum of
*ONE HUNDRED FIFTY MILLION DOLLARS*
on August 1, 2005. This Security bears interest on the outstanding principal
amount hereof at the rate of 8.50% per annum. Such interest is payable
semi-annually in arrears on February 1st and August 1st of each year (each an
"Interest Payment Date"), commencing on February 1, 1996, until the principal
hereof is paid or made available for payment. Payment of principal and interest
will be made in the method and subject to the terms set forth in the provisions
appearing on the reverse hereof, which provisions, in their entirety, will for
all purposes have the same effect as if set forth at this place.
No Security will be deemed Outstanding (as defined in the Indenture)
for purposes of exercising voting rights of a Holder (as defined in the
Indenture) pursuant to the Indenture, unless and until it (or a predecessor
Security representing the same Indebtedness) has been issued in accordance with
the terms of the Indenture.
IN WITNESS WHEREOF, USG Corporation has caused this instrument to be
duly executed.
USG CORPORATION
Dated: August 8, 1995
By:
This is one of the 8 1/2% Senior Notes
due 2005 issued under the within-
mentioned Indenture. Richard H. Fleming
Senior Vice President and
Chief Financial Officer
HARRIS TRUST AND SAVINGS BANK, Attest:
as Trustee
Dean H. Goossen
Corporate Secretary
By:
Authorized Signature
<PAGE>
USG CORPORATION
8 1/2% SENIOR NOTE DUE 2005
INTEREST. USG CORPORATION, a Delaware corporation (the "Corporation"), promises
to pay interest on the outstanding principal amount of this Security at the rate
per annum shown on the face of this Security. The Corporation will pay interest
semi-annually in arrears on February 1st and August 1st of each year, commencing
on February 1, 1996. Interest on the Securities will accrue from their date of
issuance. Interest will be computed on the basis of 360-day year of twelve 30-
day months. The Corporation also promises to pay on demand interest on overdue
principal at the rate of 8.50% per annum and interest on overdue installments of
interest at the same rate to the extent lawful.
METHOD OF PAYMENT. The Corporation will pay interest on the Securities (except
defaulted interest) to the Persons who are registered Holders of Securities at
the close of business on January 15th or July 15th (each the "Regular Record
Date") next preceding the Interest Payment Date, even though Securities are
canceled after the record date and on or before the Interest Payment Date. Any
such interest not so punctually paid or duly provided for, and any interest
payable on such defaulted interest (to the extent lawful), will forthwith cease
to be payable to the Holder on such Regular Record Date and will be payable to
the Person in whose name the Security is registered at the close of business on
a subsequent record date established by notice given by mail or on behalf of the
Corporation to Holders not less than 15 days preceding such subsequent record
date, such record date to be not less than five days preceding the date of
payment of such defaulted interest. Holders must surrender Securities to a
paying agent to collect principal payments. Payment of the principal of and
interest on this Security will be made at the office of the Trustee or at any
office or agency of the Corporation maintained for that purpose, in such coin or
currency of the United States of America which as of the time of payment is
legal tender for payment of public and private debt; provided, however, that at
the option of the Corporation payment of interest may be made by check mailed to
the address of the Person entitled thereto at such Person's registered address
as it appears in the Security Registrar maintained for such purpose pursuant to
the indenture (as defined hereinafter).
PAYING AGENT AND SECURITY REGISTRAR. The Trustee will initially act as paying
agent and Security Registrar. The Corporation may change any paying agent or
Security Registrar without notice to any Holder. The Corporation may act in any
such capacity.
INDENTURE; SERIES OF SECURITIES. This Security is one of a duly authorized
series of securities of the Corporation issued by the Corporation under an
indenture, dated as of October 1, 1986 (the "Indenture"), among the Corporation
and Harris Trust and Savings Bank (the "Trustee," which term includes all
successor trustees under the Indenture.) This Security is one of a series of
Securities designated by resolution of a special committee of the Corporation
dated as of August 3, 1995 (the "Designating Resolution") which are limited in
aggregate principal amount of $150,000,000 (such series being the "Securities").
The terms of the Securities include those stated in the Indenture and the
Designating Resolution and those made part of the Indenture by reference to the
Trust Indenture Act as in effect on the date of the Indenture. The Securities
are subject to all such terms, and Holders are referred to the Indenture, the
Designating Resolution and such Act for a statement of such terms. All terms
used but not otherwise defined herein have the meanings set forth in the
Indenture or the Designating Resolution, as applicable.
DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in registered form
without coupons. The Securities will be in minimum denominations of $1000 or
integral multiples thereof. The Securities are registered and transfer of the
Securities may be effected only by surrender of the old instrument to the
Securities Registrar and issuance of new instruments to the new Holder. The
Security Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes or other
governmental charge that may be imposed in connection therewith. The Security
Registrar need not exchange or register the transfer of any Security or portion
of a Security selected for redemption. Also, it need not exchange or register
the transfer of any Securities for a period of 15 days before a selection of
Securities to be redeemed.
PERSONS DEEMED OWNERS. Subject to the terms of the Indenture, the registered
Holder of a Security may be treated as its owner for all purposes.
NON-CALLABILITY. The Securities may not be called for redemption at the option
of the Corporation under the Indenture prior to maturity.
AMENDMENTS AND WAIVERS. Subject to certain exceptions, the Indenture or the
Securities may be amended with the consent of the Holders of at least a majority
in principal amount of the then outstanding securities of each series under the
Indenture to be affected (voting as one class). Without the consent of any
Holder, the Indenture or the Securities may be amended to, among other things,
cure any ambiguity, defect or inconsistency, provide for assumption of the
obligations of the Corporation or any Guarantor thereunder or make any change
that does not materially adversely affect the rights of any Holder. The
Indenture also contains provisions permitting the Holders of a specified
percentage in aggregate principal amount of the Securities of any series at the
time outstanding on behalf of the Holders of all the Securities of such series
(or of all series then outstanding, as the case may be) to waive certain past
defaults by the Corporation under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
DEFAULTS AND REMEDIES If an Event of Default with respect to the Securities
shall have occurred and be continuing, the principal amount of all the
Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
NO RECOURSE AGAINST OTHERS. No incorporator, stockholder, officer or director,
as such, of the Corporation will have any liability for any obligations of the
Corporation under the Indenture or any Security, or for any indebtedness
evidenced thereby. Each Holder by accepting a Security waives and releases all
such liability.
UNCLAIMED MONEY. If money for the payment of principal of or interest on any
Security remains unclaimed for three years, the Trustee or paying agent will pay
the money back to the Corporation on demand. After that, Holders entitled to
money must look to the Corporation for payment.
DISCHARGE OF INDENTURE. At the option of the Corporation and upon satisfaction
of certain conditions specified in the Indenture, either (a) the Corporation
will be deemed to have paid and discharged its obligations with respect to the
Securities or (b) the Corporation need not comply with certain covenants
contained in the Indenture or otherwise applicable to the Securities, in each
case upon the irrevocable deposit by the Corporation with the Trustee in trust
for the Holders of the Securities an amount of funds or noncallable obligations
issued or fully guaranteed by the United States of America sufficient to pay and
discharge upon the stated maturity thereof the entire indebtedness evidenced by
the Securities, all as more fully provided in the Indenture and the Designating
Resolution.
AUTHENTICATION. This Security will not be valid until authenticated by the
manual signature of the Trustee.
NEW YORK CONTRACT. The Indenture and each Security will be deemed to be a
contract made under the laws of the State of New York, and for all purposes will
be construed in accordance with the laws of such State, without giving effect to
principles of conflict of laws of such State.
ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or
an assignee, such as: TEN COM (=tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and UNIF GIFT MIN ACT (= Uniform Gifts
to Minors Act).
ASSIGNMENT FORM
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To assign this instrument, fill in the form below:
I or we assign and transfer this instrument to
---------------------
---------------------
Insert assignee's soc. sec. or tax I.D. no.
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
________________________________________________________________________________
________________________________________________________________________________
and irrevocably appoint ________________________________________________________
________________________________________________________________________________
agent to transfer this instrument on the books of the Corporation. The agency
may substitute another to act for him.
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Dated: __________________ ________________________________________
________________________________________
NOTICE: The signature to this assignment must correspond with the
name as it appears on the first page of the within instrument in every
particular, without alteration or enlargement or any change whatever and must be
guaranteed by a commercial bank or trust company having its principal office or
a correspondent in the City of New York or by a member of the new York Stock
Exchange.
