**EXHIBIT 10.1**

 

**AMENDMENT NO.2 TO THEREVOLVING 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 BankAG New York Branch, as administrative agent for the Lenders (the “***Administrative Agent***”) amends thatcertain Revolving Credit Agreement dated as of February 22, 2007 (asamended, modified or supplemented from time to time, the “***CreditAgreement***”), among the Borrowers, the Administrative Agent, theLenders and the other parties thereto. Capitalized terms not otherwise defined in this Amendment have the samemeanings as specified in the Credit Agreement.

 

**PRELIMINARYSTATEMENTS:**

 

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

 

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

 

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

 

SECTION 1.           Amendmentsto Credit Agreement.  The CreditAgreement is, effective as of the date hereof and subject to the satisfactionof the conditions precedent set forth in Section 2, hereby amended asfollows:

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## (a)           Section 1.01 is amended byadding the following definitions in the appropriate alphabetical order:

 

“‘***Applicable Percentage***’ means, withrespect to any Non-Defaulting Lender at any time, a percentage equal to afraction the numerator of which is such Non-Defaulting Lender’s RevolvingCredit Commitment and the denominator of which is the aggregate RevolvingCredit Commitments of all Non-Defaulting Lenders.”

 

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

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## (b)           The definition of “***Letter of Credit Facilit***y”in Section 1.01 is amended by deleting the word “$150,000,000” andreplacing it with “$300,000,000”.

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

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

 

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

 

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

 

(i)            All or any part of the aggregateAvailable Amount of all outstanding Letters of Credit at the time a Lenderbecomes a Defaulting Lender shall be reallocated pro rata among theNon-Defaulting Lenders having Unused Revolving Credit Commitments in accordancewith their respective Applicable Percentages, but only to the extent that (x) thesum of (A) the aggregate principal amount of all Revolving CreditAdvances, Swing Line Advances and Letter of Credit Advances made by suchNon-Defaulting Lenders (in their capacities as Lenders) and outstanding at suchtime, (B) such Non-Defaulting Lenders’ Pro Rata Shares of the aggregateprincipal amount of all Letter of Credit Advances made by the Issuing Bankpursuant to Section 2.03(c) and outstanding at such time and theaggregate principal amount of all Swing Line Advances made by the Swing LineBank pursuant to Section 2.01(c) and outstanding at such time, plus (C) suchDefaulting Lender’s Pro Rata Share of such Available Amount, does not exceedthe aggregate amount of all Non-Defaulting Lenders’ Revolving CreditCommitments and (y) the conditions set forth in Section 3.02 aresatisfied at such time.

 

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

 

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

 

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

 

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such L/C Disbursement made by such Issuing Bank andnot reimbursed by the Borrowers forthwith on the date due provided in Section 2.04(d) bymaking available for the account of its Applicable Lending Office to theAdministrative Agent for the account of such Issuing Bank by deposit to theAdministrative Agent’s Account, in same day funds, an amount equal to suchNon-Defaulting Lender’s Applicable Percentage of such L/C Disbursement.  Each Non-Defaulting Lender acknowledges andagrees that its obligation to acquire participations pursuant to this Section 2.03(f)(iv) inrespect of Letters of Credit is absolute and unconditional and shall not beaffected by any circumstance whatsoever, including the occurrence andcontinuance of a Default or an Event of Default or the termination of theCommitments, 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 somade the amount of such L/C Disbursement available to the Administrative Agent,such Non-Defaulting Lender agrees to pay to the Administrative Agent forthwithon demand such amount together with interest thereon, for each day from thedate such L/C Disbursement is due pursuant to Section 2.04(d) untilthe date such amount is paid to the Administrative Agent, at the Federal FundsRate for its account or the account of such Issuing Bank, as applicable.  If such Non-Defaulting Lender shall pay tothe Administrative Agent such amount for the account of such Issuing Bank onany Business Day, such amount so paid in respect of principal shall constitutea Letter of Credit Advance made by such Non-Defaulting Lender on such BusinessDay for purposes of this Agreement, and the outstanding principal amount of therespective Letter of Credit Advance made by such Issuing Bank shall be reducedby such amount on such Business Day.  Ifa Lender is no longer deemed a Defaulting Lender as provided in clause (v) below,then such Lender shall purchase at par participations in any participationspurchased by the Non-Defaulting Lenders as provided in this clause (iv) asthe Administrative Agent deems necessary in order for all Lenders to hold suchparticipations in accordance with their Pro Rata Shares.

 

(v)           In the event the AdministrativeAgent, the Borrowers and the Issuing Banks each agree that a Defaulting Lenderhas adequately remedied all matters that caused such Lender to be a DefaultingLender, then the Lenders’ participation in the Available Amount of alloutstanding Letters of Credit shall be readjusted to reflect the inclusion ofsuch Lender’s Revolving Credit Commitment and not later than three BusinessDays from the date of such agreement the applicable Issuing Bank shall causethe 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) isamended by inserting the following at the end of the first sentence thereof: “*provided*, that during any period in whicha Lender is a Defaulting Lender and to the extent that the Available Amount hasbeen reallocated as provided in Section 2.03(f), such commission shall bepaid to the Administrative Agent for the account of the Non-Defaulting Lendersbased on each Non-Defaulting Lender’s Applicable Percentage of the averagedaily aggregate stated amount during such quarter of Letters of Creditoutstanding from time to time at the rate of the Applicable Margin forEurodollar Rate Advances.”

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

 

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have receivedcounterparts of this Amendment executed by the Borrowers, the Required Lendersand the Issuing Bank or, as to any of the Required Lenders, advice satisfactoryto the Administrative Agent that it has executed this Amendment and the consentattached hereto executed by each Guarantor.

 

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

 

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

 

## (b)           The Credit Agreement, as amended bythis Amendment, and each of the other Loan Documents are and shall continue tobe in full force and effect and are hereby in all respects ratified andconfirmed.

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## (c)           The execution, delivery andeffectiveness 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 Agentunder the Credit Agreement, nor constitute a waiver of any provision of theCredit Agreement.

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SECTION 5.           Costs,Expenses.  The Borrowers agree,jointly and severally, to pay on demand all costs and expenses of theAdministrative Agent in connection with the preparation, execution, deliveryand administration, modification and amendment of this Amendment and the otherinstruments and documents to be delivered hereunder (including, withoutlimitation, the reasonable and documented fees and expenses of counsel for theAdministrative Agent) in accordance with the terms of Section 8.04 of theCredit Agreement.

 

SECTION 6.           Executionin Counterparts.  This Amendment maybe executed in any number of counterparts and by different parties hereto inseparate counterparts, each of which when so executed shall be deemed to be anoriginal and all of which taken together shall constitute but one and the sameagreement.  Delivery of an executedcounterpart of a signature page to this Amendment or the consent attachedhereto by telecopier or electronic mail shall be effective as delivery of amanually executed counterpart of this Amendment or such consent.

 

SECTION 7.           GoverningLaw.  This Amendment shall begoverned by, and construed in accordance with, the laws of the State of NewYork.

 

[Remainder of Page Intentionally Left Blank]

 

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

 
|   | BUILDING MATERIALS  CORPORATION OF |
|--------|------------------------------------|
|   | AMERICA                            |
|   | BMCA ACQUISITION INC.              |
|   | ELKCORP                            |
|   |                               |
|   |                               |
|   | By                                 | /s/ | John  M. Maitner |
|   |                               | Name: | John  M. Maitner |
|   |                               | Title: | Vice  President - Treasurer |

 

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|   | 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 |

 

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|   | 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 |

 

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|   | CITICORP USA, INC., as  Lender |
|--------|--------------------------------|
|   |                           |   |   |
|   |                           |   |   |
|   | By                             | /s/ | Brendan  Mackay |
|   |                           | Name: | Brendan  Mackay |
|   |                           | Title: | Vice  President |

 

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|   | JPMORGAN CHASE BANK,  N.A., as Lender |
|--------|---------------------------------------|
|   |                                  |   |   |
|   |                                  |   |   |
|   | By                                    | /s/ | Marie  C. Duhamel |
|   |                                  | Name: | Marie  C. Duhamel |
|   |                                  | Title: | Vice  President |

 

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|   | GENERAL ELECTRIC  CAPITAL |
|--------|---------------------------|
|   |                      | CORPORATION, as Lender |
|   |                      |   |   |
|   |                      |   |   |
|   | By                        | /s/ | Brian  Miner |
|   |                      | Name: | Brian  Miner |
|   |                      | Title: | Duly  Authorized Signatory |

 

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|   | 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 |

 

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|   | WACHOVIA BANK, NATIONAL |
|--------|-------------------------|
|   |                    | ASSOCIATION., as Lender |
|   |                    |   |   |
|   |                    |   |   |
|   | By                      | /s/ | Alex  Lurye |
|   |                    | Name: | Alex  Lurye |
|   |                    | Title: | Vice  President |

 

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|   | UPS CAPITAL  CORPORATION, as Lender |
|--------|-------------------------------------|
|   |                                |   |   |
|   |                                |   |   |
|   | By                                  | /s/ | John  P. Holloway |
|   |                                | Name: | John  P. Holloway |
|   |                                | Title: | Director  of Portfolio Management |

 

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|   | 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 |

 

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|   | WELLS FARGO FOOTHILL,  LLC, as Lender |
|--------|---------------------------------------|
|   |                                  |   |   |
|   |                                  |   |   |
|   | By                                    | /s/ | Rohan  Damani |
|   |                                  | Name: | Rohan  Damani |
|   |                                  | Title: | Vice  President |

 

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CONSENT

 

Dated as of September 11,2009

 

Eachof 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 (asamended, modified or supplemented from time to time, the “Security Agreement”),in each case in favor of the Administrative Agent and for its benefit and thebenefit of the Secured Parties (as defined in the Credit Agreement referred toin the foregoing Amendment), hereby consents to such Amendment and hereby confirmsand agrees that (a) notwithstanding the effectiveness of such Amendment,the Guaranty, the Security Agreement and the other Collateral Documents (asdefined in such Credit Agreement) to which it is a party are, and shallcontinue to be, in full force and effect and are hereby ratified and confirmedin all respects, except that, on and after the effectiveness of such Amendment,each reference in the Guaranty, the Security Agreement and such otherCollateral Documents to the “Credit Agreement”, “thereunder”, “thereof” orwords of like import shall mean and be a reference to the Credit Agreement, asamended by such Amendment, and (b) the Collateral Documents to which suchGuarantor is a party and all of the Collateral described therein do, and shallcontinue to, secure the payment of all of the Secured Obligations (in eachcase, as defined therein).

 

BUILDING MATERIALSCORPORATION OFAMERICA

BMCA ACQUISITIONINC.

ELKCORP

BMCA FRESNO LLC

BMCA GAINESVILLELLC

BMCA INSULATIONPRODUCTS INC.

BMCA QUAKERTOWN INC.

BUILDING MATERIALSINVESTMENT CORPORATION

BUILDING MATERIALSMANUFACTURING CORPORATION

GAF LEATHERBACKCORP.

GAF MATERIALSCORPORATION (CANADA)

GAF PREMIUMPRODUCTS INC.

GAF REALPROPERTIES, INC.

GAFTECHCORPORATION

HBP ACQUISITIONLLC

LL BUILDING PRODUCTSINC.

PEQUANNOCK VALLEYCLAIM SERVICE COMPANY, INC.

SOUTH PONCA REALTYCORP.

WIND GAP REALPROPERTY ACQUISITION CORP.

CHROMIUMCORPORATION

 

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ELK COMPOSITEBUILDING PRODUCTS, INC.

ELK CORPORATION OFALABAMA

ELK CORPORATION OFAMERICA

ELK CORPORATION OFARKANSAS

ELK CORPORATION OFTEXAS

ELK GROUP, INC.

ELK GROUP, LP

ELK PERFORMANCENONWOVEN FABRICS, INC.

ELK PREMIUMBUILDING PRODUCTS, INC.

ELK SLATEPRODUCTS, INC.

ELK TECHNOLOGIES,INC.

ELK TECHNOLOGYGROUP, INC.

ELK VERSASHIELDBUILDING SOLUTIONS, INC.

LUFKIN PATHFORWARD, INC.

MIDLAND PATHFORWARD, INC.

RGM PRODUCTS, INC.

RIDGEMATEMANUFACTURING COMPANY, INC.

GAF DECKINGSYSTEMS LLC

 

 
|   | By     | /s/    | John  M. Maitner            |
|--------|--------|--------|-----------------------------|
|   |   | Name:  | John  M. Maitner            |
|   |   | Title: | Vice  President - Treasurer |

 

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