Exhibit 10.1
EXECUTION COPY
FIFTH AMENDMENT TO THE CREDIT AGREEMENT
Dated as of April 7, 2006
FIFTH AMENDMENT TO THE CREDIT AGREEMENT (this "AMENDMENT") among
BUILDING MATERIALS CORPORATION OF AMERICA, a Delaware corporation (the
"BORROWER"), each guarantor party to the Subsidiary Guaranty referred to below
(the "GUARANTORS"), the undersigned banks, financial institutions and other
institutional lenders party hereto (collectively, the "LENDERS" and each a
"LENDER"), and CITICORP USA, INC., as collateral monitoring agent and
administrative agent for the Lenders (the "ADMINISTRATIVE AGENT").
PRELIMINARY STATEMENTS:
(1) Reference is made to the Credit Agreement, dated as of July 9, 2003
(as amended by the First Amendment to the Credit Agreement, dated as of May 7,
2004; the Second Amendment to the Credit Agreement, dated as of July 12, 2004;
the Third Amendment to the Credit Agreement, dated as of July 19, 2004; and the
Fourth Amendment to the Credit Agreement, dated as of November 5, 2004, and as
otherwise amended, supplemented or otherwise modified through the date hereof,
the "CREDIT AGREEMENT"), among the Borrower, the lenders from time to time party
thereto, the Administrative Agent and Citigroup Global Markets Inc., as lead
arranger. Terms defined in the Credit Agreement and not otherwise defined herein
are used in this Amendment as defined in the Credit Agreement.
(2) The Borrower has requested that the Required Lenders agree to amend
Section 2.01(c) of the Credit Agreement to permit the expiration date of Letters
of Credit to occur after the Termination Date.
(3) The Required Lenders are, on the terms and condtions stated below,
willing to grant the request of the Borrower, and the Borrower, the Issuing Bank
and the Required Lenders have agreed to amend the Credit Agreement as
hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. Section 2.01(c) of 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
by
(a) deleting the phrase "later than the earlier of 30 days before the
Termination Date" in the second sentence thereof and substituting
for such phrase the phrase "later than the date agreed to by the
Issuing Bank and the Borrower in respect of such Letter of Credit".
(b) inserting at the end thereof the following new sentence:
"The Borrower agrees that, on or prior to the fourteenth day before the
Termination Date, the Borrower shall deposit (on terms and conditions
reasonably satisfactory to the Issuing Bank) in a collateral account
designated by the Issuing Bank an amount equal to 103% of the aggregate
Available Amount of all Letters of Credit then outstanding which have an
expiration date later than the Termination Date."
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 have received counterparts of (a) this Amendment
executed by the Borrower, the Issuing Bank and the Required Lenders or, as to
the Issuing Bank or any of the Required Lenders, advice satisfactory to the
Administrative Agent that such Required Lender has executed this Amendment and
(b) the consent attached hereto (the "CONSENT") executed by each Guarantor. The
effectiveness of this Amendment is conditional upon the accuracy of the factual
matters described herein. This amendment is subject to the provisions of Section
8.01 of the Credit Agreement.
SECTION 3. Representations and Warranties of the Borrower. The Borrower
represents and warrants that:
(a) The representations and warranties contained in each Loan Document
are correct in all material respects on and as of the date of this Amendment, as
though made on and as of such date, other than any such representations or
warranties that, by their terms, refer to a specific date, in which case, as of
such specific date.
(b) No Default has occurred and is continuing on the date hereof.
SECTION 4. Reference to and Effect on 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, the Notes and each of the other Loan
Documents, as specifically amended by this Amendment, are and shall continue to
be in full force and effect and are hereby in all respects ratified and
confirmed. Without limiting the generality of the foregoing, the Collateral
Documents and all of the Collateral described therin do and shall continue to
secure the payment of all Obligations of the Loan Parties under the Loan
Documents.
(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 Administrative Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 5. Costs and Expenses. The Borrower agrees to pay on demand all
reasonable out-of-pocket 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 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 by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
[SIGNATURE PAGES TO FOLLOW]
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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
By /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President and Treasurer
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CITICORP USA, INC., as Administrative Agent,
Issuing Bank and Lender
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Director
Asset Based Finance
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DEUTSCHE BANK TRUST COMPANY AMERICAS
By /s/ Xxxxxxxxxx Xxxxxx
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Name: Xxxxxxxxxx Xxxxxx
Title: Director
By /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Vice President
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WACHOVIA BANK, NATIONAL ASSOCIATION
(successor by merger to Congress
Financial Corporation)
By /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Director
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THE CIT GROUP/BUSINESS CREDIT, INC.
By /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Vice President
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JPMORGAN CHASE BANK, N.A.
By /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President
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GMAC COMMERCIAL FINANCE LLC
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: 1st Vice President
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NATIONAL CITY BUSINESS CREDIT, INC.
(formerly National City Commercial
Finance, Inc.)
By /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Senior Associate
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XXXXX FARGO FOOTHILL, INC.
By /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Vice President
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GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
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CONSENT
Dated as of April 7, 2006
Each of the undersigned, as Guarantors under the Subsidiary Guaranty
dated as of July 9, 2003 (the "GUARANTY") in favor 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 is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed in
all respects, except that, on and after the effectiveness of such Amendment,
each reference in the Guaranty 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).
BMCA INSULATION PRODUCTS INC.
BUILDING MATERIALS INVESTMENT CORPORATION
BUILDING MATERIALS MANUFACTURING CORPORATION
DUCTWORK 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.
BMCA QUAKERTOWN INC.
By /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President and Treasurer
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