exv10w43






EXHIBIT 10.43




DATED 10 NOVEMBER 2009 




GYPSUM TRANSPORTATION LIMITED

(as borrower)




-and-



USG CORPORATION

(as guarantor)




-and-



DVB BANK SE

(as lender)



-and-



DVB BANK SE

(as agent)



-and-



DVB BANK SE

(as security trustee)



 






SECOND SUPPLEMENTAL AGREEMENT TO SECURED

LOAN FACILITY AGREEMENT DATED 21 OCTOBER 2008



 





STEPHENSON HARWOOD

One, St. Paul’s Churchyard

London EC4M 8SH

Tel: +44 (0)20 7329 4422

Fax: +44 (0)20 7329 7100

Ref: 1313/48-01497






 









 








CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 	 	 
	 	 	 	 
	1	 	Interpretation
	 	 	2	 
	 	 	 
	 	 	 	 
	2	 	Condition
	 	 	2	 
	 	 	 
	 	 	 	 
	3	 	Representations and Warranties
	 	 	3	 
	 	 	 
	 	 	 	 
	4	 	Amendments to Loan Agreement
	 	 	3	 
	 	 	 
	 	 	 	 
	5	 	Amendments to Guarantee
	 	 	4	 
	 	 	 
	 	 	 	 
	6	 	Confirmation and Undertaking
	 	 	5	 
	 	 	 
	 	 	 	 
	7	 	Communications, Law and Jurisdiction
	 	 	6	 
	 	 	 
	 	 	 	 
	SCHEDULE 1	 	 	7	 
	 	 	The Lenders
	 	 	7	 
	 	 	 
	 	 	 	 
	SCHEDULE 2	 	 	8	 
	 	 	Effective Date Confirmation
	 	 	8	 
	 	 	 
	 	 	 	 
	SCHEDULE 3	 	 	9	 
	 	 	Form of Compliance Certificate
	 	 	9	 
	 	 	 
	 	 	 	 
	SCHEDULE 4	 	 	10	 
	 	 	Form of Compliance Certificate
	 	 	10	 











 









 








SECOND SUPPLEMENTAL AGREEMENT




Dated: 10 November 2009




BETWEEN:





	(1)	 	GYPSUM TRANSPORTATION LIMITED, a company incorporated according to the law of Bermuda, with
registered office at Clarendon House, 2 Church Street, Hamilton HM11, Bermuda (the
“Borrower”); and







	(2)	 	USG CORPORATION, a company incorporated according to the law of the state of Delaware whose
principal executive office is at 550 West Adams Street, Chicago, Illinois 60661 (the
“Guarantor”); and







	(3)	 	the banks listed in Schedule 1, each acting through its office at the address indicated
against its name in Schedule 1 (together the “Lenders” and each a “Lender”); and







	(4)	 	DVB BANK SE, with its registered office in Frankfurt and acting as agent through its office
at Parklaan 2, 3016BB Rotterdam, The Netherlands (in that capacity the “Agent”); and







	(5)	 	DVB BANK SE, with its registered office in Frankfurt and acting as security trustee through
its office at Parklaan 2, 3016BB Rotterdam, The Netherlands (in that capacity the “Security
Trustee”).





SUPPLEMENTAL TO a secured loan agreement dated 21 October 2008 (the “Original Loan Agreement”) as
amended and supplemented by an amendment no. 1 dated 27 February 2009 (the “First Supplemental
Agreement”, and together with the Original Loan Agreement, the “Loan Agreement”) made between the
Borrower, the Lenders, the Agent and the Security Trustee on the terms and subject to the
conditions of which each of the Lenders agreed to advance to the Borrower its respective Commitment
of an aggregate amount not exceeding the total of (i) the lesser of forty million Dollars
($40,000,000) and fifty per cent of the Market Value of Vessel A (in respect of Tranche A) and (ii)
the lesser of fifty million dollars ($50,000,000) and fifty per cent of the Market Value of Vessel
B (in respect of Tranche B) (together, the “Loan”).



WHEREAS:





	(A)	 	The Lenders, the Borrower and the Guarantor have agreed to vary certain terms of the Loan
Agreement and the Guarantee.





 









 








	(B)	 	The Lenders, the Borrower and the Guarantor have agreed to amend the Loan Agreement and the
Guarantee on the terms and subject to the conditions contained in this Supplemental Agreement.






IT IS AGREED THAT:





	1	 	Interpretation







	 	1.1	 	In this Supplemental Agreement “Effective Date” means the date on which the
Agent confirms to the Borrower and the Guarantor in writing substantially in the form
set out in Schedule 2 that the condition referred to in Clause 2.1 has been satisfied,
which confirmation the Agent shall be under no obligation to give if either a Potential
Event of Default or an Event of Default shall have occurred.

	 
	 	1.2	 	In this Supplemental Agreement “Finance Parties” means the Agent, the Security
Trustee and the Lenders.

	 
	 	1.3	 	In this Supplemental Agreement “Security Parties” means all parties to this
Supplemental Agreement other than the Finance Parties.

	 
	 	1.4	 	All words and expressions defined in the Loan Agreement shall have the same
meaning when used in this Supplemental Agreement unless the context otherwise requires,
and clause 1.2 of the Loan Agreement shall apply to the interpretation of this
Supplemental Agreement as if it were set out in full.







	2	 	Condition







	 	2.1	 	As condition for the agreement of the Finance Parties to amend the Loan
Agreement and the Guarantee and for the effectiveness of Clauses 4 and 5, the Security
Parties shall deliver or cause to be delivered to or to the order of the Agent a
certificate from a duly authorised officer of each of the Security Parties confirming
that none of the documents delivered to the Agent pursuant to clauses 3.1.1 and 3.1.3
of the Loan Agreement have been amended or modified in any way since the date of their
delivery to the Agent, or copies, certified by a duly authorised officer of the
Security Party in question as true, complete, accurate and neither amended nor revoked,
of any which have been amended or modified.







	 	2.2	 	All documents and evidence delivered to the Agent pursuant to this Clause shall:





2









 







	 	2.2.1	 	be in form and substance acceptable to the Agent;

	 
	 	2.2.2	 	be accompanied, if required by the Agent, by translations into
the English language, certified in a manner acceptable to the Agent; and

	 
	 	2.2.3	 	if reasonably required by the Agent, be certified, notarised,
legalised, apostilled or attested in a manner acceptable to the Agent.







	3	 	Representations and Warranties

	 
	 	 	Each of the representations and warranties contained in clause 4, except for clauses 4.1.6
and 4.1.9, of the Loan Agreement and in clause 2, except clauses 2.6, 2.9 and 2.12, of the
Guarantee shall be deemed repeated by the Borrower and the Guarantor respectively at the
date of this Supplemental Agreement and at the Effective Date, by reference to the facts and
circumstances then pertaining, as if references to the Security Documents included this
Supplemental Agreement.

	 
	4	 	Amendments to Loan Agreement







	 	4.1	 	With effect from the Effective Date:







	 	4.1.1	 	the following definitions shall be deleted from clause 1.1 of
the Loan Agreement:

	 
	 	 	 	“Borrowings”

	 
	 	 	 	“Debt Service”

	 
	 	 	 	“EBITDA”

	 
	 	 	 	“Market Adjusted Net Worth”

	 
	 	 	 	“Value Adjusted Equity”

	 
	 	 	 	“Value Adjusted Total Assets”

	 
	 	 	 	“Value Adjusted Total Liabilities”

	 
	 	4.1.2	 	clause 10.2.2 of the Loan Agreement shall be amended with
the words “one hundred and twenty five per centum (125%)” being deleted and
replaced with “one hundred and thirty three and one third per
centum
(1331/3%)”;





3









 








	 	4.1.3	 	clauses 10.3.1, 10.3.2 and 10.3.4 of the Loan Agreement shall
be deleted;







	 	4.1.4	 	the Borrower shall not be required to perform, or enforce the
performance of the other party thereto, any of the provisions of that certain
COA dated as of January 1, 2008, between the Borrower and United States Gypsum
Company; and







	 	4.1.5	 	schedule 5 of the Loan Agreement shall be deleted and replaced
with the form of compliance certificate attached as Schedule 3 to this
Supplemental Agreement.







	 	4.2	 	All other terms and conditions of the Loan Agreement shall remain unaltered and
in full force and effect.







	5	 	Amendments to Guarantee







	 	5.1	 	With effect from the Effective Date:







	 	5.1.1	 	a new definition of “Cash Reserves” shall be added to clause
1.1 of the Guarantee that shall read:







	 	 	 	““Cash Reserves” means the aggregate amount of cash and cash equivalents set
forth on the Guarantor’s consolidated balance sheet in accordance with
generally accepted accounting principles in the United States of
America plus the aggregate amount then available for borrowing under
the committed credit lines of the Guarantor and its consolidated
subsidiaries.”







	 	5.1.2	 	a new definition of “Liquidity” shall be added to clause 1.1
of the Guarantee that shall read:







	 	 	 	““Liquidity” means the sum of Cash Reserves and Marketable Securities.







	 	5.1.3	 	a new definition of “Marketable Securities” shall be added to
clause 1.1 of the Guarantee that shall read:







	 	 	 	““Marketable Securities” means the aggregate amount of marketable securities
set forth on the Guarantor’s consolidated balance sheet in





4









 






	 	 	 	accordance with generally accepted accounting principles in the United
States of America.”







	 	5.1.4	 	a new clause 8.3 shall be added to the Guarantee that shall read:







	 	“8.3	 	 The Guarantor covenants that, throughout the
Facility Period, its Liquidity will be at all times at least one
hundred and seventy five million Dollars ($175,000,000).”







	 	5.1.5	 	a new clause 9.4 shall be added to the Guarantee that shall
read:







	 	“9.4	 	on a semi annual basis, a compliance
certificate substantially in the form of Schedule 1, duly signed by an
officer of the Guarantor, evidencing compliance with the covenant
contained in Clause 8.3.”







	 	5.1.6	 	a schedule 1 shall be added to the Guarantee that shall be in
the form attached as Schedule 4 to this Supplemental Agreement.







	 	5.2	 	All other terms and conditions of the Guarantee shall remain unaltered and in
full force and effect.







	6	 	Confirmation and Undertaking







	 	6.1	 	Each of the Security Parties confirms that all of its respective obligations
under or pursuant to each of the Security Documents to which it is a party remain in
full force and effect, despite the amendments to the Loan Agreement made in the First
Supplemental Agreement and in this Supplemental Agreement, as if all references in any
of the Security Documents to the Loan Agreement were references to the Loan Agreement
as amended and supplemented by the First Supplemental Agreement and this Supplemental
Agreement.







	 	6.2	 	The definition of any term defined in any of the Security Documents shall, to
the extent necessary, be modified to reflect the amendments to the Loan Agreement made
in or pursuant to the First Supplemental Agreement and this Supplemental Agreement.





5









 








	7	 	Communications, Law and Jurisdiction

	 
	 	 	The provisions of clauses 16 and 19 of the Loan Agreement shall apply to this Supplemental
Agreement as if they were set out in full and as if references to the Loan Agreement were
references to this Supplemental Agreement and references to the Borrower were references to
the Security Parties.





6









 







SCHEDULE 1




The Lenders




Names




DVB Bank SE

Parklaan 2

3016BB Rotterdam

The Netherlands




Fax no: +31 10 436 2957

Attn: Doina van Tooren-Rotari




7









 





SCHEDULE 2




Effective Date Confirmation





			

	To:	 
	Gypsum Transportation Limited

Clarendon House

2 Church Street

Hamilton HM11

Bermuda







			

	To:	 
	USG Corporation

550 West Adams Street

Chicago

Illinois 60661





We, DVB Bank SE, refer to the second supplemental agreement dated
                                         2009 (the “Supplemental Agreement”) relating to a secured loan
agreement dated 21 October 2008 as amended and supplemented by amendment no. 1 dated 27 February
2009 and as further amended and supplemented by the Supplemental Agreement (the “Loan Agreement”)
made between Gypsum Transportation Limited as the Borrower, the banks listed in it as the Lenders,
ourselves as the Agent and ourselves as the Security Trustee in respect of a loan to you from the
Lenders of up to $90,000,000.



We hereby confirm that the condition precedent referred to in Clause 2.1 of the Supplemental
Agreement has been satisfied. In accordance with Clauses 1.1, 4 and 5 of the Supplemental
Agreement, the Effective Date is the date of this confirmation and the amendments to the Loan
Agreement and the Guarantee are now effective.




	 	 	 	 	 
	Dated:

	 	2009
	 	 






	 	 	 
	Signed: 
 



	 	 

	For and on behalf of

	 	 

	DVB BANK SE

	 	 







8









 






SCHEDULE 3




Form of Compliance Certificate





	To:	 	DVB Bank SE (as agent and security trustee)






Dear Sirs



We refer to the loan agreement dated 21 October 2008 (as amended and supplemented from time to time
the “Agreement”) made between (inter alia) yourselves and ourselves. Words and expressions defined
in the Agreement shall bear the same meanings when used herein.




We hereby certify, as at [           ], that





	1.	 	Our Cash Reserves are [           ].

	 
	2.	 	The current Valuations of the Vessels show an aggregate value of [           ].





As such, we are in compliance with each of the covenants set out in Clause 10.2.2 and 10.3 of the
Agreement.



We further confirm that the charters or contracts of affreightment under which the Vessels operate,
which are of twelve months duration or more, are as follows:-




[Brief details to be inserted]



Yours faithfully




For and on behalf of

Gypsum Transportation Limited




9









 





SCHEDULE 4




Form of Compliance Certificate





	To: 	 	 DVB Bank SE (as agent and security trustee)






Dear Sirs



We refer to the guarantee dated 21 October 2008 (the “Guarantee”) made between yourselves and
ourselves. Words and expressions defined in the Guarantee shall bear the same meanings when used
herein.



We hereby certify, as at [           ], that





	1.	 	Our Cash Reserves are [           ];







	 	 	Our Marketable Securities are [                               ]; and our







	 	 	Liquidity is therefore [           ].





As such, we are in compliance with the covenant set out in Clause 8.3 of the Guarantee.



Yours faithfully




For and on behalf of

USG Corporation




10









 




IN WITNESS of which the parties to this Supplemental Agreement have executed this Supplemental
Agreement as a deed the day and year first before written.




	 	 	 	 	 	 	 
	SIGNED SEALED and DELIVERED as


	)	 	 	 	 	 

	a DEED by


	)	 	 	 	 	 

	GYPSUM TRANSPORTATION LIMITED


	)	 	 	 	 	 

	acting by Michael Ensminger


	)	 	 	 	 	/s/ Michael Ensminger

	 


	)	 	 	 	 	 

	its duly authorised Attorney


	)	 	 	 	 	 

	 


	)	 	 	 	 	 

	in the presence of: Daniel Gordon


	)	 	 	 	 	/s/ Daniel Gordon

	 	 	 	 	 	 	 
	SIGNED SEALED and DELIVERED as


	)	 	 	 	 	 

	a DEED by


	)	 	 	 	 	 

	USG CORPORATION


	)	 	 	 	 	 

	acting by Karen L. Leets


	)

)	 	 	 	 	/s/ Karen L. Leets

	its duly authorised Vice
President & Treasurer


	)	 	 	 	 	 

	 


	)	 	 	 	 	 

	in the presence of: Ellis A. Regenbogen


	)	 	 	 	 	/s/ Ellis A. Regenbogen

	 

	 	 	 	 
	 	 

	SIGNED SEALED and DELIVERED as

	)	 	 	 	 	 

	a DEED by


	)	 	 	 	 	 

	DVB BANK SE (as a Lender)


	)	 	 	 	 	 

	acting by Doina van Tooren Rotari


	)	 	 	 	 	/s/ Doina van Tooren Rotari

	 


	)	 	 	 	 	 

	its duly authorised


	)	 	 	 	 	 

	 


	)	 	 	 	 	 

	in the presence of: Petro Zynber


	)	 	 	 	 	/s/ Petro Zynber

	 

	 	 	 	 
	 	 

	SIGNED SEALED and DELIVERED as

	)	 	 	 	 	 

	a DEED by


	)	 	 	 	 	 

	DVB BANK SE (as Agent)


	)	 	 	 	 	 

	acting by Doina van Tooren Rotari


	)	 	 	 	 	/s/ Doina van Tooren Rotari

	 


	)	 	 	 	 	 

	its duly authorised


	)	 	 	 	 	 

	 


	)	 	 	 	 	 

	in the presence of: Petro Zynber


	)	 	 	 	 	/s/ Petro Zynber







11









 






	 	 	 	 	 	 	 
	SIGNED SEALED and DELIVERED as


	)	 	 	 	 	 

	a DEED by


	)	 	 	 	 	 

	DVB BANK SE (as Security Trustee)


	)	 	 	 	 	 

	acting by Doina van Tooren Rotari


	)	 	 	 	 	/s/ Doina van Tooren Rotari

	 


	)	 	 	 	 	 

	its duly authorised


	)	 	 	 	 	 

	 


	)	 	 	 	 	 

	in the presence of: Petro Zynber


	)	 	 	 	 	/s/ Petro Zynber








12