exv10w1






Exhibit 10.1




EXECUTION VERSION





     SECOND AMENDMENT AND RESTATEMENT AGREEMENT (this
“ Agreement ”) dated as of January 7, 2009, among USG CORPORATION, a
Delaware corporation (the “ Borrower ”), the LENDERS party hereto
and JPMORGAN CHASE BANK, N.A., as administrative agent under the Amended
and Restated Credit Agreement dated as of July 31, 2007, among the
Borrower, the Lenders party thereto, JPMorgan Chase Bank, N.A., as
administrative agent (the “ Administrative Agent ”), and Goldman
Sachs Credit Partners, L.P., as syndication agent (as amended by Amendment
No. 1 thereto dated as of February 14, 2008, the “ Existing Credit Agreement ”).



          WHEREAS the Borrower has requested, and the undersigned Lenders (such term and each other
capitalized term used but not defined in these recitals having the meaning assigned to such term in
Section 1 hereof) and the Administrative Agent have agreed, upon the terms and subject to the
conditions set forth herein and in the Restated Credit Agreement (as defined below), that (a) the
Existing Credit Agreement will be amended and restated as provided herein and (b) the Subsidiary
Loan Parties (as defined in the Existing Credit Agreement) will be released from their guarantees
under the Guarantee Agreement dated as of November 11, 2008 (as amended, supplemented or otherwise
modified prior to the Restatement Effective Date, the “ Existing Guarantee Agreement ”),
among the Borrower, the Subsidiary Loan Parties and the Administrative Agent.




          NOW, THEREFORE, the Borrower, the undersigned Lenders and the Administrative Agent hereby
agree as follows:




          SECTION 1. Defined Terms . Capitalized terms used but not defined herein shall have
the meanings assigned to such terms in the Restated Credit Agreement referred to below.




          SECTION 2. Restatement Effective Date. (a) The transactions provided for in Sections 3
and 4 hereof shall be consummated at a closing to be held on the Restatement Effective Date at the
offices of Cravath, Swaine & Moore LLP, or at such other time and place as the parties hereto shall
agree upon.




          (b) The “ Restatement Effective Date ” shall be specified by the Borrower, and shall
be a date not later than January 7, 2009, as of which date all the conditions set forth or referred
to in Section 5 hereof shall have been satisfied.




          SECTION 3. Termination of the Existing Guarantee Agreement. By execution and delivery
of this Agreement, each of the undersigned Lenders hereby agrees that upon the satisfaction of the
conditions set forth in Section 5 hereof, all guarantees provided by the Subsidiary Loan Parties
under the Existing Guarantee Agreement shall be released and the Existing Guarantee Agreement shall
be terminated and have no










 



 



2



further force or effect (it being understood and agreed that, as of the Restatement Effective
Date, the Loan Parties shall enter into the Guarantee Agreement (as such term is defined in the
Restated Credit Agreement)).



          SECTION 4. Amendment and Restatement of the Existing Credit Agreement. (a) Effective on the
Restatement Effective Date, the Existing Credit Agreement is hereby amended and restated to read in
its entirety as set forth in Exhibit A hereto (the “ Restated Credit Agreement ”).
From and after the effectiveness of such amendment and restatement, the term “Credit Agreement”
shall mean the Restated Credit Agreement.




          (b) The aggregate principal amount of all Revolving Loans, Swingline Loans and Letters of
Credit outstanding under the Existing Credit Agreement on the Restatement Effective Date shall
continue to be outstanding under the Restated Credit Agreement and from and after such date, the
terms of the Restated Credit Agreement will govern the rights of the Lenders and the Issuing Bank
with respect thereto, including, without limitation, the Applicable Rate applicable to such
outstanding Loans.




          SECTION 5. Conditions. The consummation of the transactions set forth in Sections 3
and 4 of this Agreement shall be subject to the satisfaction of the following conditions precedent:




          (a) Loan Documents. The Administrative Agent (or its counsel) shall have received
(i) from each of the Borrower and the Required Lenders a counterpart of this Agreement signed on
behalf of such party (or written evidence reasonably satisfactory to the Administrative Agent
(which may include telecopy or Adobe pdf file transmission of a signed signature page) that such
party has signed a counterpart of this Agreement), (ii) from each party thereto duly executed
copies of the other Loan Documents (or written evidence reasonably satisfactory to the
Administrative Agent (which may include telecopy or Adobe pdf file transmission of a signed
signature page) that such party has signed a counterpart of such other Loan Documents) and such
other certificates, documents, instruments and agreements as the Administrative Agent shall
reasonably request in connection with the transactions contemplated by this Agreement and the other
Loan Documents, including any promissory notes requested by a Lender pursuant to Section 2.09 of
the Restated Credit Agreement, payable to the order of each such requesting Lender and (iii) a
favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the
Restatement Effective Date) of each of (A) Jones Day, counsel for the Borrower and the other Loan
Parties, substantially in the form of Exhibit B hereto, and (B) local counsel in each
jurisdiction where a Loan Party is organized (other than any such jurisdiction covered by the
opinion given pursuant to the immediately preceding clause (A)), in each case covering such matters
relating to the Loan Parties, the Loan Documents or the Transactions as the Administrative Agent
shall reasonably request.




          (b) Closing Certificates; Certified Certificate of Incorporation; Good Standing
Certificates. The Administrative Agent shall have received (i) a certificate of each Loan
Party, dated the Restatement Effective Date and executed by its Secretary or












 



3



Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors,
members or other body authorizing the execution, delivery and performance of the Loan Documents to
which it is a party, (B) identify by name and title and bear the signatures of the Financial
Officers and any other officers of such Loan Party authorized to sign the Loan Documents to which
it is a party and (C) contain appropriate attachments, including the certificate or articles of
incorporation or organization of each Loan Party certified by the relevant authority of the
jurisdiction of organization of such Loan Party and a true and correct copy of its by-laws or
operating, management or partnership agreement, and (ii) a long-form good standing certificate for
each Loan Party from its jurisdiction of organization (and, to the extent that such long-form good
standing certificate is not dated as of the Restatement Effective Date, a bring-down good standing
certificate dated as of the Restatement Effective Date).







          (c) Field Examination; Inventory Appraisal; No Default Certificate. The Administrative
Agent shall have received (i) a field examination report with respect to the Inventory of the
Collateral Parties (it being understood and agreed that the receipt of the examination of FTI
Consulting, Inc. dated December 5, 2008, with respect to the Inventory of the Collateral Parties
shall satisfy the condition precedent set forth in this clause (i)), (ii) an appraisal reasonably
satisfactory to the Administrative Agent with respect to the Inventory of the Collateral Parties
from an appraiser selected and engaged by the Administrative Agent (it being understood and agreed
that the receipt of the appraisal of AccuVal Associates, Incorporated dated October 31, 2008, with
respect to the Inventory of the Collateral Parties shall satisfy the condition precedent set forth
in this clause (ii)) and (iii) a certificate, signed by the chief financial officer or treasurer of
the Borrower, (A) stating that no Default or Event of Default has occurred and is continuing and
(B) stating that the representations and warranties contained in the Loan Documents are true and
correct in all material respects as of such date, other than those that speak expressly to an
earlier date, in which case such representations and warranties shall be true and correct in all
material respects as of such earlier date.




          (d) Fees. The Administrative Agent shall have received all fees and other amounts
due and payable by any Loan Party on or prior to the Restatement Effective Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses (including reasonable fees,
charges and disbursements of counsel), in each case, required to be reimbursed or paid by any Loan
Party under any Loan Document or any other written agreement relating to any Loan Document entered
into by the Borrower and the Administrative Agent.




          (e) Perfection Certificate; Lien Searches. The Administrative Agent shall have
received (i) a completed Perfection Certificate, dated the Restatement Effective Date, together
with all attachments contemplated thereby, and (ii) the results of a recent lien search in the
jurisdictions requested by the Administrative Agent based on the Perfection Certificate, and such
search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted by
Section 6.02 or discharged on or prior to the Restatement Effective Date pursuant to a pay-off
letter or other documentation reasonably satisfactory to the Administrative Agent.













 



4









          (f) Borrowing Base Certificate. The Administrative Agent shall have received a Borrowing
Base Certificate dated as of the Restatement Effective Date that calculates the Borrowing Base as
of November 30, 2008.




          (g) Filings, Registrations and Recordings. Each document (including any Uniform
Commercial Code financing statement) required by the Collateral Documents or under law or
reasonably requested by the Administrative Agent to be filed, registered or recorded in order to
create in favor of the Administrative Agent, for the benefit of the Secured Parties, a perfected
Lien on the Collateral described therein, prior to and superior in right to any other Person (other
than with respect to Liens expressly permitted by clauses (ii) through (iv), (vi) and (xi) of
Section 6.02 of the Restated Credit Agreement), shall be in proper form for filing, registration or
recordation.




          (h) Compliance with Laws; Consents. The Borrower and the Material Subsidiaries shall
be in compliance, in all material respects, with all applicable foreign and U.S. federal, state and
local laws and regulations, including all applicable Environmental Laws. All necessary material
governmental and material third party approvals in connection with the Loan Documents shall have
been obtained and shall be in effect.




          (i) No Litigation. Other than the Disclosed Matters, there shall be no litigation,
administrative proceeding or governmental investigation that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect.




          (j) “Know Your Customer” Requirements. The Lenders shall have received all
documentation and other information requested by the Administrative Agent and required under
applicable “know your customer” rules and regulations, including all information required to be
delivered pursuant to Section 9.13 of the Restated Credit Agreement.




          (k) Excess Availability. Excess Availability on the Restatement Effective Date shall
be equal to (i) the Borrowing Base as set forth in the Borrowing Base Certificate delivered
pursuant to paragraph (f) of this Section less (ii) the aggregate face amount of the
Existing Letters of Credit immediately prior to the Restatement Effective Date.




          (l) Existing ABL Facility. All commitments under the Credit Agreement dated as of
September 9, 2008 (the “ Existing ABL Credit
Agreement ”), among the Borrower, the
Subsidiaries party thereto, the lenders party thereto and JPMorgan Chase Bank, N.A., as
administrative agent, shall have been terminated, and all loans, interest and other amounts accrued
or owing thereunder shall have been repaid in full and all guarantees and liens granted in respect
thereof shall have been released and the terms and conditions of any such release shall be
satisfactory to the Administrative Agent. The Administrative Agent shall have received a payoff
and release letter with respect to the Existing ABL Credit Agreement in form and substance
reasonably satisfactory to the Administrative Agent.













 



5




          (m) Evidence of Insurance. The Administrative Agent shall have received evidence that the
insurance required by Section 5.06 of the Restated Credit Agreement is in effect.




          SECTION 6. Effectiveness; Counterparts; Amendments. This Agreement shall become
effective when copies hereof that, when taken together, bear the signatures of the Borrower, the
Administrative Agent and the Required Lenders shall have been received by the Administrative Agent.
This Agreement may not be amended nor may any provision hereof be waived except pursuant to a
writing signed by the Borrower, the Administrative Agent and the Required Lenders. This Agreement
may be executed in two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute a single contract. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy or Adobe pdf file transmission shall be effective
as delivery of a manually executed counterpart of this Agreement.




          SECTION 7.  No Novation. This Agreement shall not extinguish the Loans outstanding
under the Existing Credit Agreement. Nothing herein contained shall be construed as a substitution
or novation of the Loans outstanding under the Existing Credit Agreement, which shall remain
outstanding after the Restatement Effective Date as modified hereby. Notwithstanding any provision
of this Agreement, the provisions of Sections 2.15, 2.16, 2.17 and 9.03 of the Existing Credit
Agreement as in effect immediately prior to the Restatement Effective Date will continue to be
effective as to all matters arising out of or in any way related to facts or events existing or
occurring prior to the Restatement Effective Date.




          SECTION 8. Notices. All notices hereunder shall be given in accordance with the
provisions of Section 9.01 of the Restated Credit Agreement.




          SECTION 9. Applicable Law; Waiver of Jury Trial. (A) THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.




          (B) EACH PARTY HERETO HEREBY AGREES AS SET FORTH IN SECTIONS 9.09 AND 9.10 OF THE RESTATED
CREDIT AGREEMENT AS IF SUCH SECTIONS WERE SET FORTH IN FULL HEREIN.




[Remainder of page intentionally left blank]










 



6


          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first written above.




	 	 	 	 	 	 	 

	 	 	USG CORPORATION,	 	 
	 
	 	 	 	 	 	 
	 

	 	by	 	/s/ Karen L. Leets
 

Name: Karen L. Leets
	 	 
	 

	 	 	 	Title: Vice President & Treasurer	 	 












 



7


	 	 	 	 	 	 	 

	 	 	JPMORGAN CHASE BANK, N.A.,

Individually and as Administrative Agent, Swingline Lender
and Issuing Bank,	 	 
	 
	 	 	 	 	 	 
	 

	 	by	 	/s/ Peter S. Predun
 

Name: Peter S. Predun
	 	 
	 

	 	 	 	Title: Executive Director	 	 












 



8


	 	 	 	 	 	 	 

	 	 	SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT
AGREEMENT DATED JANUARY 7, 2009, AMONG USG
CORPORATION, THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT	 	 
	 
	 	 	 	 	 	 
	 	 	Wells Fargo Bank, N.A.	 	 
	 	 	 	 	 
	 	 	Name of Institution	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ James R. Bednark
 

Name: James R. Bednark
	 	 
	 

	 	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 












 



9


	 	 	 	 	 	 	 

	 	 	SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT
AGREEMENT DATED JANUARY 7, 2009, AMONG USG
CORPORATION, THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT	 	 
	 
	 	 	 	 	 	 
	 	 	The Bank of Tokyo-Mitsubishi UFJ, Ltd.	 	 
	 	 	 	 	 
	 	 	Name of Institution	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Victor Pierzchalski
 

Name: Victor Pierzchalski
	 	 
	 

	 	 	 	Title: Authorized Signatory	 	 












 



10


	 	 	 	 	 	 	 

	 	 	SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT
AGREEMENT DATED JANUARY 7, 2009, AMONG USG
CORPORATION, THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT	 	 
	 
	 	 	 	 	 	 
	 	 	Sumitomo Mitsui Banking Corporation	 	 
	 	 	 	 	 
	 	 	Name of Institution	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Yoshihiro Hyakutome
 

Name: Yoshihiro Hyakutome
	 	 
	 

	 	 	 	Title: General Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 












 



11


	 	 	 	 	 	 	 

	 	 	SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT
AGREEMENT DATED JANUARY 7, 2009, AMONG USG
CORPORATION, THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT	 	 
	 
	 	 	 	 	 	 
	 	 	PNC Bank, National Association	 	 
	 	 	 	 	 
	 	 	Name of Institution	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jennifer L. Loew
 

Name: Jennifer L. Loew
	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 












 



12


	 	 	 	 	 	 	 

	 	 	SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT
AGREEMENT DATED JANUARY 7, 2009, AMONG USG
CORPORATION, THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT	 	 
	 
	 	 	 	 	 	 
	 	 	The Bank of Nova Scotia	 	 
	 	 	 	 	 
	 	 	Name of Institution	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Paula Czach
 

Name: Paula Czach
	 	 
	 

	 	 	 	Title: Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 












 



13


	 	 	 	 	 	 	 

	 	 	SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT
AGREEMENT DATED JANUARY 7, 2009, AMONG USG
CORPORATION, THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT	 	 
	 
	 	 	 	 	 	 
	 

	 	Calyon	 	 	 	 
	 	 	 	 	 
	 	 	Name of Institution	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ David Cagle
 

Name: David Cagle
	 	 
	 

	 	 	 	Title: Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Brian Myers
 

Name: Brian Myers
	 	 
	 

	 	 	 	Title: Managing Director	 	 












 



14


	 	 	 	 	 	 	 

	 	 	SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT
AGREEMENT DATED JANUARY 7, 2009, AMONG USG
CORPORATION, THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT	 	 
	 
	 	 	 	 	 	 
	 	 	The Northern Trust Company	 	 
	 	 	 	 	 
	 	 	Name of Institution	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ John E. Burdu
 

Name: John E. Burdu
	 	 
	 

	 	 	 	Title: Senior Vice President	 	 












 



15


	 	 	 	 	 	 	 

	 	 	SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT
AGREEMENT DATED JANUARY 7, 2009, AMONG USG
CORPORATION, THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT	 	 
	 
	 	 	 	 	 	 
	 	 	U.S. Bank, National Assoc.	 	 
	 	 	 	 	 
	 	 	Name of Institution	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ronald Giblin
 

Name: Ronald Giblin
	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 












 



16


	 	 	 	 	 	 	 

	 	 	SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT
AGREEMENT DATED JANUARY 7, 2009, AMONG USG
CORPORATION, THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT	 	 
	 
	 	 	 	 	 	 
	 	 	Fifth Third Bank	 	 
	 	 	 	 	 
	 	 	Name of Institution	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Joseph A. Wernhoff
 

Name: Joseph A. Wernhoff
	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 












 



17


	 	 	 	 	 	 	 

	 	 	SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT
AGREEMENT DATED JANUARY 7, 2009, AMONG USG
CORPORATION, THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT	 	 
	 
	 	 	 	 	 	 
	 	 	Bank of Montreal, Chicago Branch	 	 
	 	 	 	 	 
	 	 	Name of Institution	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ M. Latta
 

Name: M. Latta
	 	 
	 

	 	 	 	Title: Director	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 












 



18


	 	 	 	 	 	 	 

	 	 	SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT
AGREEMENT DATED JANUARY 7, 2009, AMONG USG
CORPORATION, THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT	 	 
	 
	 	 	 	 	 	 
	 	 	Goldman Sachs Credit Partners, L.P.	 	 
	 	 	 	 	 
	 	 	Name of Institution	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Andrew Caditz
 

Name: Andrew Caditz
	 	 
	 

	 	 	 	Title: Authorized Signatory	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 












 



19


	 	 	 	 	 	 	 

	 	 	SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT
AGREEMENT DATED JANUARY 7, 2009, AMONG USG
CORPORATION, THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT	 	 
	 
	 	 	 	 	 	 
	 	 	Morgan Stanley Bank, N.A.	 	 
	 	 	 	 	 
	 	 	Name of Institution	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Charles C. O’Brien
 

Name: Charles C. O’Brien
	 	 
	 

	 	 	 	Title: Chief Credit Officer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 












 



20


	 	 	 	 	 	 	 

	 	 	SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT
AGREEMENT DATED JANUARY 7, 2009, AMONG USG
CORPORATION, THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT	 	 
	 
	 	 	 	 	 	 
	 	 	Citicorp USA, Inc.	 	 
	 	 	 	 	 
	 	 	Name of Institution	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ George F. Van
 

Name: George F. Van
	 	 
	 

	 	 	 	Title: Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 












 



21


	 	 	 	 	 	 	 

	 	 	SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT
AGREEMENT DATED JANUARY 7, 2009, AMONG USG
CORPORATION, THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT	 	 
	 
	 	 	 	 	 	 
	 	 	Bank of America, N.A.	 	 
	 	 	 	 	 
	 	 	Name of Institution	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Monirah Masud
 

Name: Monirah Masud
	 	 
	 

	 	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 












 



22


	 	 	 	 	 	 	 

	 	 	SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT
AGREEMENT DATED JANUARY 7, 2009, AMONG USG
CORPORATION, THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT	 	 
	 
	 	 	 	 	 	 
	 	 	Commerzbank AG, New York and Grand Cayman Branches	 	 
	 	 	 	 	 
	 	 	Name of Institution	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Anthony Giraldi
 

Name: Anthony Giraldi
	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Gerard A. Araw
 

Name: Gerard A. Araw
	 	 
	 

	 	 	 	Title: Assistant Vice President	 	 












 



 


Exhibit A




Credit Agreement









 



 


Exhibit B




Form of Jones Day Opinion



See attached














 





EXHIBIT B




Form of Jones Day Opinion



[Date of Credit Agreement]



JPMorgan Chase Bank, N.A., as

  administrative agent under, and

  the lenders party to, the Credit

  Agreement referred to below




Re: [Borrower]



Ladies and Gentlemen:




          We have acted as special counsel to [_________________] (collectively, the “Delaware
Opinion Parties”), [_______________________] (collectively, the “Excepted Opinion
Parties”, and the Excepted Opinion Parties together with the Delaware Opinion Parties, the
“Opinion Parties”) in connection with (x) the [Credit Agreement] (the “Credit
Agreement”) dated as of [__________], among [Borrowers], the various financial institutions
party thereto as lenders (the “Lenders”) and  JPMorgan Chase Bank, N.A., as
Administrative Agent (the “Administrative Agent”), and (y) the [Additional Credit Documents
to be listed] (each as defined below), each entered into in connection with the Credit Agreement.
As used herein with respect to a reference to any Transaction Document (as defined below),
“Applicable Opinion Party” (or any variation thereof) means the Opinion Party(ies) party to such
Transaction Document.




          This opinion is delivered to you pursuant to Section [__] of the Credit Agreement.
Capitalized terms used herein, but not otherwise defined herein, have the meanings set forth for
such terms in the Credit Agreement. The Uniform Commercial Code, as amended and in effect in the
State of Delaware on the date hereof, is referred to as the “DE UCC”. The Uniform
Commercial Code, as amended and in effect in the State of New York on the date hereof, is referred
to as the “NY UCC”. The Uniform Commercial Code, as amended and in effect in the State of
Illinois on the date hereof, is referred to as the “IL UCC”. The DE UCC, NY UCC and the IL
UCC are collectively referred to as the “UCC”. With your permission, all assumptions and
statements of reliance herein have been made without any independent investigation or verification
on our part except to the extent, if any, otherwise expressly stated, and we express no opinion
with respect to the subject matter or accuracy of the assumptions or items upon which we have
relied.





 









 








[Date of Opinion]

Page 2




          In connection with the opinions expressed herein, we have examined such documents, records and
matters of law as we have deemed necessary for the purposes of this opinion. We have examined,
among other documents, the following:





	 	(a)	 	[Transaction Documents to be listed];
	 
	 	(b)	 	[[State] DACAs to be listed];
	 
	 	(c)	 	[[State] DACAs to be listed]; and
	 
	 	(d)	 	[Organizational Documents to be listed].





          The documents referred to in items (__) through (__), inclusive, above are referred to as the
“Credit Documents”. The documents referred to in items (__) through (__), inclusive, above
are referred to as the “Transaction Documents”. The documents referred to in items (__)
through (__), inclusive, above are referred to as the “[State] Enforceable DACAs”. The
documents referred to in items (__) and (__) above are referred to as the “[State] Enforceable
DACAs”. The documents referred to in items (__) and (__) above are referred to as the
“[State] Perfection DACAs”. The documents referred to in items (__) through (__),
inclusive, above are referred to collectively as the “DACAs”. The documents referred to in
items (__) through (__) above are referred to as the “Organizational Documents”.




          [Assumptions, qualifications and reliances to be agreed upon]




          Based on the foregoing, and subject to the limitations, qualifications and assumptions set
forth in this letter, we are of the opinion that:





	(1)	 	Each Opinion Party is an organization existing and in good standing under the laws of the
jurisdiction of its organization. Each Applicable Delaware Opinion Party has the
organizational power and authority to execute and deliver the Transaction Documents and
perform its obligations thereunder.
	 
	(2)	 	The execution and delivery by each Applicable Opinion Party of the Transaction Documents, the
performance by such Opinion Party of its obligations thereunder and the granting by such
Opinion Party of the security interests provided for in the [Security Document]:






	 	(i)	 	do not violate any agreement, instrument, order, writ, judgment, injunction,
decree, determination, or award binding upon such Opinion Party or its property (this
opinion being limited (x) to those agreements, instruments, orders, writs, judgments,
injunctions, decrees, determinations and awards that have been identified to us in the
[Officer’s Certificate] (collectively, the “Reviewed Agreements”) and (y) in
that we express no opinion with respect to any violation not readily ascertainable from
the face of any such Reviewed Agreement or arising under or based upon any cross
default provision insofar as it relates to a default under an agreement, instrument,
order, writ, judgment, injunction, decree,




 









 











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	 	 	 	determination, or award not so identified to us, or arising under or based upon any
covenant of a financial or numerical nature or requiring computation),
	 
	 	(ii)	 	will not result in or require the creation or imposition of any security
interest or lien upon any of the properties of such Opinion Party pursuant to the
provisions of any agreement binding upon such Opinion Party or its properties other
than security interests or liens created by the Transaction Documents and any other
security interests or liens in favor of the Administrative Agent or the Lenders arising
under any of the Transaction Documents or applicable law (this opinion being limited to
the Reviewed Agreements) and
	 
	 	(iii)	 	do not contravene any provision of any Organizational Document of such Opinion
Party.






	(3)	 	The execution and delivery by each Applicable Delaware Opinion Party of the Transaction
Documents, the performance by such Opinion Party of its obligations thereunder and the
granting by such Opinion Party of the security interests provided for in the [Security
Document]:






	 	(i)	 	have been duly authorized by all necessary organizational action by such
Opinion Party,
	 
	 	(ii)	 	do not require under the Delaware General Corporation Law or the Delaware
Limited Liability Company Act (as amended, collectively, “Applicable Delaware
Law”) any filing or registration by such Opinion Party with, or notice to, or
approval or consent of, any governmental agency or authority, that has not been made or
obtained except:






	 	(A)	 	those required in the ordinary course of business in connection
with the performance by such Opinion Party of its obligations under certain
covenants contained in the Transaction Documents,
	 
	 	(B)	 	to perfect security interests granted by such Opinion Party
under the [Security Document],
	 
	 	(C)	 	pursuant to securities and other laws that may be applicable to
the disposition of any collateral subject thereto, and
	 
	 	(D)	 	other filings under securities laws and filings, registrations,
consents or approvals, in each case, not required to be made or obtained by the
date hereof, and






	 	(iii)	 	do not violate Applicable Delaware Law applicable to such Opinion Party or its
property.






	(4)	 	The execution and delivery by each Applicable Opinion Party of the Credit Documents and the
 [State] Enforceable DACAs, the performance by such Opinion Party of its




 









 











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		 	obligations thereunder and the granting by such Opinion Party of the security interests
provided for in the Security Agreement:






	 	(i)	 	do not require under present law or present regulation of any governmental
agency or authority of the State of [______] or of the United States of America any
filing or registration by such Opinion Party with, or notice to, or approval or consent
of, any governmental agency or authority of the State of [______] or the United States
of America that has not been made or obtained except:






	 	(A)	 	those required in the ordinary course of business in connection
with the performance by such Opinion Party of its obligations under certain
covenants contained in the Credit Documents and the [State] Enforceable
DACAs,
	 
	 	(B)	 	pursuant to securities and other laws that may be applicable to
the disposition of any collateral subject thereto, and
	 
	 	(C)	 	other filings under securities laws and filings, registrations,
consents or approvals, in each case, not required to be made or obtained by the
date hereof, and






	 	(ii)	 	do not violate any present law, or present regulation of any governmental
agency or authority, of the State of [_______] or the United States of America
applicable to such Opinion Party or its property.1






	(5)	 	Each Transaction Document has been duly executed and delivered on behalf of each Applicable
Delaware Opinion Party. Each Credit Document, [State] Enforceable DACA [and
 [State] Enforceable DACA] constitutes a valid and binding obligation of each Applicable Opinion Party,
enforceable against each such Opinion Party in accordance with its terms.
	 
	(6)	 	No Opinion Party is required to register as an “investment company” (under, and as defined
in, the Investment Company Act of 1940, as amended (the “1940 Act”)) and no Opinion
Party is a company controlled by a company required to register as such under the 1940 Act.
	 
	(7)	 	The [Security Document] creates in favor of the Administrative Agent, for the benefit of the
Secured Parties, as security for the Secured Obligations, a security interest in each Opinion
Party’s rights in the Collateral to which Article 9 of the [____] UCC is applicable (the
“Article 9 Collateral”).
	 
	(8)	 	The [Security Document] and the [State] Perfection DACAs together create in favor of the
Administrative Agent, as security for the Secured Obligations, a perfected security interest
in each of the following Applicable Opinion Party’s deposit accounts [list to be provided]
(the “[State] Governed Deposit Accounts”).







 




			
	1	 	Repeat as necessary for DACAs in other states.




 









 










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	(9)	 	Upon the effective filing of the Financing Statements with the Delaware Filing Office, the
Administrative Agent, for the benefit of the Secured Parties, will have a perfected security
interest in that portion of the Article 9 Collateral in which a security interest may be
perfected by filing the Financing Statements against each Delaware Opinion Party with the
Filing Office under the DE UCC.
	 
	(10)	 	The borrowings by the Parent under the Credit Agreement and the application of the proceeds
thereof as provided therein will not result in a violation of Regulation T, U or X of the
Board of Governors of the Federal Reserve System (the “Margin Regulations”).






	 	The opinions set forth above are subject to the following qualifications: 
	
	 
	 	(A)	 	[Qualifications to be agreed upon]
	 
	 	 	 	
	 	The opinions expressed herein are limited to [ Limitations on law to be agreed upon ].
	 
	 	 	 	





          Our opinions as to matters governed by the DE UCC are based solely upon our review of the DE
UCC set forth in the CCH Secured Transactions Guide as of December 9, 2008, without any review or
consideration of any decisions or opinions of courts or other adjudicative bodies or governmental
authorities of the State of Delaware, whether or not reported or summarized in the foregoing
publication.




          The opinions expressed herein are for the benefit of the addressees hereof and their
respective successors and assigns in connection with the transaction referred to herein and may not
be relied on by such Person for any other purpose or in any manner or for any purpose by any other
person or entity.




Very truly yours,




Jones Day