exv10w1



 






EXHIBIT
10.1




AMENDMENT NO. 1 TO




EQUITY COMMITMENT AGREEMENT




February 23, 2006




Berkshire Hathaway Inc.

1440 Kiewit Plaza

Omaha, Nebraska 68131




Ladies and Gentlemen:




     Reference is hereby made to the Equity Commitment Agreement, dated as of January 30, 2006 (the
“Equity Commitment Agreement”), by and between you and USG Corporation. All capitalized
terms used but not defined herein have the meanings given to them in the Equity Commitment
Agreement.



     1. Amendment of Section 2(b). Section 2(b) of the Equity Commitment Agreement is
hereby amended and restated in its entirety to read as follows:



     “(b) On the basis of the representations and warranties herein contained, but subject to
the Agreement Order (as defined herein) becoming a Final Agreement Order (as defined herein), the
Company will pay to the Investor a commitment fee of $67 million (the “Commitment Fee”).
Such Commitment Fee will be paid in U.S. dollars on the Business Day after the Agreement Order
becomes a Final Agreement Order. The Commitment Extension Fee (as defined herein), if any, will be
paid by the Company as provided in Section 10(b)(ii). Payment of the Commitment Fee and the
Commitment Extension Fee, if any, will be made by wire transfer of federal (same day) funds to the
account specified by the Investor to the Company at least 24 hours in advance. The Commitment Fee
and the Commitment Extension Fee, if any, will be nonrefundable when paid. Simultaneously with the
Agreement Order becoming a Final Agreement Order, and thereafter on demand, the Company will
reimburse or pay, as the case may be, the standard fees and out-of-pocket expenses of one law firm
retained by the Investor for purposes of the transactions contemplated hereby and incurred since
January 1, 2006 within 10 days of presentation of an invoice approved by the Investor, without
Bankruptcy Court review or further Bankruptcy Court order. The filing fee required by the HSR Act
(as defined herein) shall be paid by the Company on behalf of the Investor when filings under the
HSR Act are made. These obligations are in addition to, and do not limit, the Company’s
obligations under Section 8.”




 










 






     2. Amendment of Section 10(b)(ii). Section 10(b)(ii) of the Equity Commitment
Agreement is hereby amended and restated in its entirety to read as follows:



     “(ii) On or after September 30, 2006; provided that if the Company notifies the
Investor in writing by 3:00 p.m. New York City time on September 23, 2006 that it wishes to extend
such date until November 14, 2006, then the Investor may not terminate pursuant to this paragraph
(b)(ii) until November 14, 2006, provided that, as a condition to the effectiveness of such
extension, the Company has paid to the Investor not later than 3:00 p.m. New York City time on
September 30, 2006 a fee (the “Commitment Extension Fee”) in the amount of $6.7 million,
which amount will be paid to the Investor by the Company by wire transfer of immediately available
funds;”



     3. GOVERNING LAW; VENUE. THIS AMENDMENT NO. 1 WILL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY APPLICABLE
CONFLICT OF LAWS PRINCIPLES. EACH PARTY TO THIS AMENDMENT NO. 1 IRREVOCABLY SUBMITS TO THE
JURISDICTION OF, AND VENUE IN, THE DISTRICT COURTS OF THE UNITED STATES SITTING IN THE STATE OF
DELAWARE OR COURTS OF THE STATE OF DELAWARE AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS.



     4. Counterparts. This Amendment No. 1 may be executed in any number of counterparts,
all of which will be considered one and the same agreement and will become effective when
counterparts have been signed by each of the parties and delivered to the other party (including
via facsimile or other electronic transmission), it being understood that each party need not sign
the same counterpart.



     5. Headings. The headings in this Amendment No. 1 are for reference purposes only
and will not in any way affect the meaning or interpretation of this Amendment No. 1.



     6. Effect; Ratification. Except as specifically amended hereby, the Equity Commitment
Agreement is and shall continue to be in full force and effect and is hereby in all respects
ratified and confirmed.




 - 2 -









 








     If the foregoing is in accordance with your understanding, please sign and return to us a
counterpart hereof, and upon the acceptance hereof by you, this Amendment No. 1 and such acceptance
hereof will constitute a binding agreement between you and the Company.



	 	 	 	 	 
	 	Very truly yours,





USG CORPORATION

 	 
	 	By:  	/s/ Richard H. Fleming
 	 
	 	 	Name:  	Richard H. Fleming 	 
	 	 	Title:  	EVP & CFO 	 
	 


Accepted as of the date hereof:



BERKSHIRE HATHAWAY INC.




	 	 	 	 	 
	By:

	 	/s/ Thomas B. Walper	 	 
	 

	 	 

Name: Thomas B. Walper
	 	 
	 

	 	Title: Attorney	 	 







 - 3 -