EXHIBIT 10.1


 


AMENDMENT NO.
2 TO THE

REVOLVING CREDIT AGREEMENT


 


This AMENDMENT NO. 2 TO THE REVOLVING CREDIT AGREEMENT (this “Amendment”), dated as of September 11,
2009, among Building Materials Corporation of America, BMCA Acquisition Inc.
and ELKCORP (the “Borrowers”) and Deutsche Bank
AG New York Branch, as administrative agent for the Lenders (the “Administrative Agent”) amends that
certain Revolving Credit Agreement dated as of February 22, 2007 (as
amended, modified or supplemented from time to time, the “Credit
Agreement”), among the Borrowers, the Administrative Agent, the
Lenders and the other parties thereto. 
Capitalized terms not otherwise defined in this Amendment have the same
meanings as specified in the Credit Agreement.


 


PRELIMINARY
STATEMENTS:


 


(1)           The Borrowers, the Lenders, the
Issuing Bank and the Administrative Agent are party to the Credit Agreement.


 


(2)           The Borrowers, the Administrative
Agent, the Issuing Bank and the Required Lenders have agreed to amend certain
provisions of the Credit Agreement as hereinafter set forth.


 


NOW,
THEREFORE, in consideration of the premises and the covenants and obligations
contained herein the parties hereto agree as follows:


 


SECTION 1.           Amendments
to Credit Agreement.  The Credit
Agreement is, effective as of the date hereof and subject to the satisfaction
of the conditions precedent set forth in Section 2, hereby amended as
follows:


 


(a)           Section 1.01 is amended by
adding the following definitions in the appropriate alphabetical order:


 


“‘Applicable Percentage’ means, with
respect to any Non-Defaulting Lender at any time, a percentage equal to a
fraction the numerator of which is such Non-Defaulting Lender’s Revolving
Credit Commitment and the denominator of which is the aggregate Revolving
Credit Commitments of all Non-Defaulting Lenders.”


 


“‘Non-Defaulting Lender’ means, at any
time, a Lender that is not a Defaulting Lender at such time.”


 


(b)           The definition of “Letter of Credit Facility”
in Section 1.01 is amended by deleting the word “$150,000,000” and
replacing it with “$300,000,000”.


 


(c)           Section 2.01(c) is amended
by deleting the word “$150,000,000” and replacing it with “$300,000,000”.


 


(d)           Section 2.03(c) is amended
by deleting the reference to “Section 2.04(b)” in the 21st line thereof and replacing it with a reference
to “Section 2.04(d)”.


 

















 


(e)           Section 2.03 is amended by
adding a new clause (f) at the end thereof to read as follows:


 


“(f)          Defaulting Lenders.  Notwithstanding any provision of this
Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the
following provisions shall apply for so long as such Lender is a Defaulting
Lender:


 


(i)            All or any part of the aggregate
Available Amount of all outstanding Letters of Credit at the time a Lender
becomes a Defaulting Lender shall be reallocated pro rata among the
Non-Defaulting Lenders having Unused Revolving Credit Commitments in accordance
with their respective Applicable Percentages, but only to the extent that (x) the
sum of (A) the aggregate principal amount of all Revolving Credit
Advances, Swing Line Advances and Letter of Credit Advances made by such
Non-Defaulting Lenders (in their capacities as Lenders) and outstanding at such
time, (B) such Non-Defaulting Lenders’ Pro Rata Shares of the aggregate
principal amount of all Letter of Credit Advances made by the Issuing Bank
pursuant to Section 2.03(c) and outstanding at such time and the
aggregate principal amount of all Swing Line Advances made by the Swing Line
Bank pursuant to Section 2.01(c) and outstanding at such time, plus (C) such
Defaulting Lender’s Pro Rata Share of such Available Amount, does not exceed
the aggregate amount of all Non-Defaulting Lenders’ Revolving Credit
Commitments and (y) the conditions set forth in Section 3.02 are
satisfied at such time.


 


(ii)           If the reallocation described in
clause (i) above cannot, or can only partially, be effected, no Issuing
Bank shall have any obligation to issue, amend, renew or increase any Letters
of Credit under this Agreement unless the Borrowers shall have (x) provided
cash collateral in an amount equal to such Defaulting Lender’s Pro Rata Share
of the Available Amount (after giving effect to any partial reallocation
pursuant to clause (i) above) in a manner satisfactory to the Issuing Bank
or (y) reduced the aggregate Available Amount of all outstanding Letters
of Credit by an amount equal to the unreallocated portion of the Defaulting
Lender’s Pro Rata Share of such Available Amount.


 


(iii)          If there are no Unused Revolving Credit
Commitments at the time a Lender becomes a Defaulting Lender, then the
Borrowers shall, not later than five Business Days after written notice by the
respective Issuing Bank, either (x) cause the return to the respective
Issuing Bank of Letters of Credit with an aggregate Available Amount not less
than the Defaulting Lender’s Pro Rata Share of the aggregate Available Amount
of all outstanding Letters of Credit or (y) provide cash collateral as
provided in Section 2.03(f)(ii) in an amount not less than the
Defaulting Lender’s Pro Rata Share of the aggregate Available Amount of all
outstanding Letters of Credit or make other arrangements satisfactory to the
Issuing Bank to protect the Issuing Bank against the risk of non-payment by
such Defaulting Lender.


 


(iv)          In the event an Issuing Bank makes an
L/C Disbursement at the time a Lender is a Defaulting Lender and such L/C
Disbursement is not reimbursed by the Borrowers as provided herein, each
Non-Defaulting Lender hereby absolutely and unconditionally agrees to pay such
Non-Defaulting Lender’s Applicable Percentage of 


 


2

















 


such L/C Disbursement made by such Issuing Bank and
not reimbursed by the Borrowers forthwith on the date due provided in Section 2.04(d) by
making available for the account of its Applicable Lending Office to the
Administrative Agent for the account of such Issuing Bank by deposit to the
Administrative Agent’s Account, in same day funds, an amount equal to such
Non-Defaulting Lender’s Applicable Percentage of such L/C Disbursement.  Each Non-Defaulting Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this Section 2.03(f)(iv) in
respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or an Event of Default or the termination of the
Commitments, and that each such payment shall be made without any off-set,
abatement, withholding or reduction whatsoever. 
If and to the extent that any Non-Defaulting Lender shall not have so
made the amount of such L/C Disbursement available to the Administrative Agent,
such Non-Defaulting Lender agrees to pay to the Administrative Agent forthwith
on demand such amount together with interest thereon, for each day from the
date such L/C Disbursement is due pursuant to Section 2.04(d) until
the date such amount is paid to the Administrative Agent, at the Federal Funds
Rate for its account or the account of such Issuing Bank, as applicable.  If such Non-Defaulting Lender shall pay to
the Administrative Agent such amount for the account of such Issuing Bank on
any Business Day, such amount so paid in respect of principal shall constitute
a Letter of Credit Advance made by such Non-Defaulting Lender on such Business
Day for purposes of this Agreement, and the outstanding principal amount of the
respective Letter of Credit Advance made by such Issuing Bank shall be reduced
by such amount on such Business Day.  If
a Lender is no longer deemed a Defaulting Lender as provided in clause (v) below,
then such Lender shall purchase at par participations in any participations
purchased by the Non-Defaulting Lenders as provided in this clause (iv) as
the Administrative Agent deems necessary in order for all Lenders to hold such
participations in accordance with their Pro Rata Shares.


 


(v)           In the event the Administrative
Agent, the Borrowers and the Issuing Banks each agree that a Defaulting Lender
has adequately remedied all matters that caused such Lender to be a Defaulting
Lender, then the Lenders’ participation in the Available Amount of all
outstanding Letters of Credit shall be readjusted to reflect the inclusion of
such Lender’s Revolving Credit Commitment and not later than three Business
Days from the date of such agreement the applicable Issuing Bank shall cause
the return of any cash collateral posted by the Borrowers pursuant to clauses (ii) or
(iii) above to the Borrowers.”


 


(f)            Section 2.08(b)(i) is
amended by inserting the following at the end of the first sentence thereof: “provided, that during any period in which
a Lender is a Defaulting Lender and to the extent that the Available Amount has
been reallocated as provided in Section 2.03(f), such commission shall be
paid to the Administrative Agent for the account of the Non-Defaulting Lenders
based on each Non-Defaulting Lender’s Applicable Percentage of the average
daily aggregate stated amount during such quarter of Letters of Credit
outstanding from time to time at the rate of the Applicable Margin for
Eurodollar Rate Advances.”


 


SECTION 2.           Conditions
of Effectiveness.  This Amendment
shall become effective as of the date first above written when, and only when,
the Administrative Agent shall 


 


3

















 


have received
counterparts of this Amendment executed by the Borrowers, the Required Lenders
and the Issuing Bank or, as to any of the Required Lenders, advice satisfactory
to the Administrative Agent that it has executed this Amendment and the consent
attached hereto executed by each Guarantor.


 


SECTION 3.           Representations
and Warranties of the Borrowers. 
Each Borrower represents and warrants that this Amendment has been duly
executed and delivered by such Borrower, and this Amendment and the Credit
Agreement, as amended hereby, are legal, valid and binding obligations of such
Borrower, enforceable against such Borrower in accordance with their respective
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and by general equitable principles.


 


SECTION 4.           Reference
to and Effect on the Credit Agreement and the Loan Documents.  (a)  On and after the effectiveness of
this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”,
“hereof” or words of like import referring to the Credit Agreement, and each
reference in the Notes and each of the other Loan Documents to “the Credit
Agreement”, “thereunder”, “thereof” or words of like import referring to the
Credit Agreement, shall mean and be a reference to the Credit Agreement, as
amended by this Amendment.


 


(b)           The Credit Agreement, as amended by
this Amendment, and each of the other Loan Documents are and shall continue to
be in full force and effect and are hereby in all respects ratified and
confirmed.


 


(c)           The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of any Lender or the Agent
under the Credit Agreement, nor constitute a waiver of any provision of the
Credit Agreement.


 


SECTION 5.           Costs,
Expenses.  The Borrowers agree,
jointly and severally, to pay on demand all costs and expenses of the
Administrative Agent in connection with the preparation, execution, delivery
and administration, modification and amendment of this Amendment and the other
instruments and documents to be delivered hereunder (including, without
limitation, the reasonable and documented fees and expenses of counsel for the
Administrative Agent) in accordance with the terms of Section 8.04 of the
Credit Agreement.


 


SECTION 6.           Execution
in Counterparts.  This Amendment may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement.  Delivery of an executed
counterpart of a signature page to this Amendment or the consent attached
hereto by telecopier or electronic mail shall be effective as delivery of a
manually executed counterpart of this Amendment or such consent.


 


SECTION 7.           Governing
Law.  This Amendment shall be
governed by, and construed in accordance with, the laws of the State of New
York.


 


[Remainder of Page Intentionally Left Blank]


 


4

















 


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.


 


	
   

  	
  BUILDING MATERIALS
  CORPORATION OF

  
	
   

  	
  AMERICA

  
	
   

  	
  BMCA ACQUISITION INC.

  
	
   

  	
  ELKCORP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/

  	
  John
  M. Maitner

  
	
   

  	
   

  	
  Name:

  	
  John
  M. Maitner

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President - Treasurer

  



 

















 


	
   

  	
  DEUTSCHE BANK AG NEW
  YORK BRANCH,

  
	
   

  	
   

  	
  as Administrative
  Agent, Issuing Bank and as

  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/

  	
  Marguerite Sutton

  
	
   

  	
   

  	
  Name:

  	
  Marguerite Sutton

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/

  	
  Enrique
  Landaeta

  
	
   

  	
   

  	
  Name:

  	
  Enrique
  Landaeta

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 

















 


	
   

  	
  ALLIED IRISH BANKS,
  p.l.c., as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/

  	
  Martin Chin

  
	
   

  	
   

  	
  Name: 

  	
  Martin Chin

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/

  	
  Brent
  Phillips

  
	
   

  	
   

  	
  Name:
  

  	
  Brent
  Phillips

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 

















 


	
   

  	
  CITICORP USA, INC., as
  Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/

  	
  Brendan
  Mackay

  
	
   

  	
   

  	
  Name:
  

  	
  Brendan
  Mackay

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 

















 


	
   

  	
  JPMORGAN CHASE BANK,
  N.A., as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/

  	
  Marie
  C. Duhamel

  
	
   

  	
   

  	
  Name:

  	
  Marie
  C. Duhamel

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 
















 


	
   

  	
  GENERAL ELECTRIC
  CAPITAL 

  
	
   

  	
   

  	
  CORPORATION, as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/

  	
  Brian
  Miner

  
	
   

  	
   

  	
  Name:

  	
  Brian
  Miner

  
	
   

  	
   

  	
  Title:

  	
  Duly
  Authorized Signatory

  



 

















 


	
   

  	
  GE BUSINESS FINANCIAL
  SERVICES INC.

  
	
   

  	
  (f/k/a MERRILL LYNCH
  BUSINESS

  
	
   

  	
   

  	
  FINANCIAL SERVICES
  INC.), as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/

  	
  Brian
  Miner

  
	
   

  	
   

  	
  Name:

  	
  Brian
  Miner

  
	
   

  	
   

  	
  Title:

  	
  Duly
  Authorized Signatory

  



 

















 


	
   

  	
  WACHOVIA BANK, NATIONAL
  

  
	
   

  	
   

  	
  ASSOCIATION., as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/

  	
  Alex
  Lurye

  
	
   

  	
   

  	
  Name:

  	
  Alex
  Lurye

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 

















 


	
   

  	
  UPS CAPITAL
  CORPORATION, as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/

  	
  John
  P. Holloway

  
	
   

  	
   

  	
  Name:

  	
  John
  P. Holloway

  
	
   

  	
   

  	
  Title:

  	
  Director
  of Portfolio Management

  



 

















 


	
   

  	
  UBS LOAN FINANCE LLC,
  as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/

  	
  Marie
  Haddad

  
	
   

  	
   

  	
  Name:

  	
  Marie
  Haddad

  
	
   

  	
   

  	
  Title:

  	
  Associate
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/

  	
  Irja
  R. Otsa

  
	
   

  	
   

  	
  Name:

  	
  Irja
  R. Otsa

  
	
   

  	
   

  	
  Title:

  	
  Associate
  Director

  



 

















 


	
   

  	
  WELLS FARGO FOOTHILL,
  LLC, as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/

  	
  Rohan
  Damani

  
	
   

  	
   

  	
  Name:

  	
  Rohan
  Damani

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 

















 


CONSENT


 


Dated as of September 11,
2009


 


Each
of the undersigned, as a Guarantor under the Guaranty dated February 22,
2007 (as amended, modified or supplemented from time to time, the “Guaranty”)
and as a Grantor under the Security Agreement dated February 22, 2007 (as
amended, modified or supplemented from time to time, the “Security Agreement”),
in each case in favor of the Administrative Agent and for its benefit and the
benefit of the Secured Parties (as defined in the Credit Agreement referred to
in the foregoing Amendment), hereby consents to such Amendment and hereby confirms
and agrees that (a) notwithstanding the effectiveness of such Amendment,
the Guaranty, the Security Agreement and the other Collateral Documents (as
defined in such Credit Agreement) to which it is a party are, and shall
continue to be, in full force and effect and are hereby ratified and confirmed
in all respects, except that, on and after the effectiveness of such Amendment,
each reference in the Guaranty, the Security Agreement and such other
Collateral Documents to the “Credit Agreement”, “thereunder”, “thereof” or
words of like import shall mean and be a reference to the Credit Agreement, as
amended by such Amendment, and (b) the Collateral Documents to which such
Guarantor is a party and all of the Collateral described therein do, and shall
continue to, secure the payment of all of the Secured Obligations (in each
case, as defined therein).


 


BUILDING MATERIALS
CORPORATION OF

AMERICA


BMCA ACQUISITION
INC.


ELKCORP


BMCA FRESNO LLC


BMCA GAINESVILLE
LLC


BMCA INSULATION
PRODUCTS INC.


BMCA QUAKERTOWN INC.


BUILDING MATERIALS
INVESTMENT 

CORPORATION


BUILDING MATERIALS
MANUFACTURING 

CORPORATION


GAF LEATHERBACK
CORP.


GAF MATERIALS
CORPORATION (CANADA)


GAF PREMIUM
PRODUCTS INC.


GAF REAL
PROPERTIES, INC.


GAFTECH
CORPORATION


HBP ACQUISITION
LLC


LL BUILDING PRODUCTS
INC.


PEQUANNOCK VALLEY
CLAIM SERVICE 

COMPANY, INC.


SOUTH PONCA REALTY
CORP.


WIND GAP REAL
PROPERTY ACQUISITION 

CORP.


CHROMIUM
CORPORATION


 

















 


ELK COMPOSITE
BUILDING PRODUCTS, INC.


ELK CORPORATION OF
ALABAMA


ELK CORPORATION OF
AMERICA


ELK CORPORATION OF
ARKANSAS


ELK CORPORATION OF
TEXAS


ELK GROUP, INC.


ELK GROUP, LP


ELK PERFORMANCE
NONWOVEN 

FABRICS, INC.


ELK PREMIUM
BUILDING PRODUCTS, INC.


ELK SLATE
PRODUCTS, INC.


ELK TECHNOLOGIES,
INC.


ELK TECHNOLOGY
GROUP, INC.


ELK VERSASHIELD
BUILDING 

SOLUTIONS, INC.


LUFKIN PATH
FORWARD, INC.


MIDLAND PATH
FORWARD, INC.


RGM PRODUCTS, INC.


RIDGEMATE
MANUFACTURING 

COMPANY, INC.


GAF DECKING
SYSTEMS LLC


 


 


	
   

  	
  By

  	
  /s/

  	
  John
  M. Maitner

  
	
   

  	
   

  	
  Name:

  	
  John
  M. Maitner

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President - Treasurer