Exhibit 10.3
AMENDMENT NO. 1 TO THE
TERM LOAN AGREEMENT
Dated as of March 15, 2007
AMENDMENT NO. 1 TO THE TERM LOAN AGREEMENT (this "Amendment")
among Building Materials Corporation of America, BMCA Acquisition Inc. and BMCA
Acquisition Sub Inc. (the "Borrowers"), the banks, financial institutions and
other institutional lenders parties as lenders to the Credit Agreement referred
to below (collectively, the "Lenders") and Deutsche Bank AG New York Branch, as
administrative agent (the "Administrative Agent") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrowers, the Lenders and the Administrative Agent
have entered into a Term Loan Agreement dated as of February 22, 2007 (the
"Credit Agreement"). Capitalized terms not otherwise defined in this Amendment
have the same meanings as specified in the Credit Agreement.
(2) The Borrowers, the Required Lenders and the Administrative
Agent have agreed to amend the Credit Agreement as hereinafter set forth.
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) Clause (b) of Preliminary Statement (1) is amended in its
entirety to read as follows:
"(b) entering into a $325,000,000 Bridge Loan Agreement with
Deutsche Bank AG Cayman Islands Branch, as collateral agent
and as administrative agent, and the other financial
institutions party thereto (such Bridge Loan Agreement, as
amended, restated, supplemented or otherwise modified,
replaced or refinanced, including an amendment and restatement
thereof by the Junior Lien Term Loan Agreement, entered into
on or about March 14, 2007, with Deutsche Bank AG New York
Branch, as collateral agent and as administrative agent, the
`Bridge Loan Facility')."
(b) The definition of "Applicable Margin" in Section 1.01 is
amended by deleting the figure "1.50%" therein and replacing it with the figure
"1.75%" and deleting the figure "2.50%" therein and replacing it with the figure
"2.75%".
(c) Clause (h) of the definition of "Eligible Assignee" in
Section 1.01 is amended by deleting the words "of business," therein, and the
last parenthetical in the definition of "Eligible Assignee" in Section 1.01 is
amended by adding the words "or delayed" to the end thereof.
(d) The definition of "Fund" in Section 1.01 is amended by
deleting the last three words thereof.
(e) The definition of "Obligation" in Section 1.01 is amended
by deleting the word "and" before "(b)" and replacing it with "," and adding at
the end of such definition the following: "and (c) the obligation of any Loan
Party in respect of any Secured Hedge Agreement."
(f) The term "Option Shares" in Section 1.01 is amended by
replacing such term with the term "Option Stock".
(g) The last sentence of Section 2.01 is amended by adding the
words "or prepaid" after the word "repaid".
(h) Section 2.02(b) is amended by deleting the words "Term
Loan Borrowings" at the end of the first sentence therein and replacing them
with the words "Interest Periods".
(i) The last sentence of Section 2.04 is amended to add at the
end thereof the following: ", and the Unused Term Loan Commitments shall be
permanently reduced to zero immediately subsequent to the consummation of the
Merger and the payment in full of the Elk Notes".
(j) The proviso at the end of Section 2.05(b) is amended and
restated in its entirety to read as follows:
"; provided, however, that with respect to any payment
referred to in clause (A) or (C) above, the Net Cash Proceeds
from the sale of Collateral or from any Extraordinary Receipt,
as applicable, in which the lenders under the Revolving Credit
Facility have a prior lien shall first be applied to repay
advances, if any, under the Revolving Credit Facility."
(k) Section 2.08(a) is amended by (i) deleting the words
"comprising the same Term Loan Borrowing" and "comprising part of the same Term
Loan Borrowing" in each place they appear therein and (ii) deleting the words
"Term Loan Borrowings" therein and replacing them with the words "Interest
Periods".
(l) Section 2.08(b)(i) is amended by deleting the words
"comprising any Term Loan Borrowing" therein and replacing them with the words
"having the same Interest Period".
(m) Section 2.09(b) is amended to add after the parenthetical
phrase "(or similar contingent obligation)" therein the following: "or the Term
Loan Advances owed to such Lender".
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(n) Section 2.10(f)(v) and (vi) are amended by deleting the
words "Administrative Agent and" each time they appear therein.
(o) Section 5.02(e)(iii) is amended by moving the letter "(x)"
in the first line thereof before the word "any" therein.
(p) Section 5.02(f)(vii)(C) is amended by deleting the word
"contingent" in such Section.
(q) Section 5.02(j) is amended to add after "Surviving Debt"
in subclause (vi) therein the following: "; provided, however, that prepayments
of Debt to G-1 Holdings or BMCA Holdings are subject to the provisions of
subclause (ix) below".
(r) Section 6.01 is amended by deleting the word "BMCA" the
first time it appears in the last proviso in such Section and replacing it with
the following: "any Borrower".
(s) Section 7.05(a) is amended by adding at the end of the
first parenthetical therein the following: "and without limiting the Borrowers'
obligation to do so to the extent required to do so pursuant to Section 8.04".
(t) Section 8.01(a) is amended by adding the words ", either
Intercreditor Agreement" after the word "Guaranty" in the second parenthetical
in such Section.
(u) Section 8.01(a)(ii) is amended by adding at the beginning
of such section the following: "amend the definition of `Required Lenders' or
`Pro Rata Share' or the second sentence of Section 2.10(a) or".
(v) Section 8.01(a)(iv) is amended by adding after the word
"transactions" therein the following: "or modify the priority of the rights of
any Lender or any Agent in the Collateral as provided in either Intercreditor
Agreement".
(w) Section 8.01(a)(vii) is amended by adding the words "or
forgive" after the word "reduce".
(x) Section 8.01(a)(viii) is amended by adding after the word
"hereunder" therein the following: "or modify the definition of `Term Loan
Commitment Termination Date' to extend the period in which the Term Loan
Commitments of the Lenders are available hereunder".
(y) Section 8.01(b) is amended by adding after the word "may,"
in the seventh line thereof the following: "with the Borrowers being responsible
for the payment of any assignment fee,".
(z) Section 8.04(b) is amended by adding the word "trustees,"
after the word "agents," in the third line thereof.
(aa) Section 8.07(a)(ii) is amended by deleting the figure
"$5,000,000" therein and replacing it with the figure "$1,000,000".
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(bb) Section 8.07(a)(iv) is amended by adding after the word
"Affiliates," therein the following: "another Lender or an Approved Fund".
(cc) Section 8.07(a)(v) is amended by adding at the end
thereof the following: "; provided, that only one such fee shall be payable in
connection with concurrent assignments by a Lender to two or more Approved
Funds."
(dd) Section 8.07(j) is amended by (i) adding the words
"without the consent of the Borrowers or the Administrative Agent," in the first
line thereof before the word "any", (ii) adding the words "and similar
extensions of credit" in the second line thereof before the word "may" and (iii)
adding the words "any creditor, including" in the third line thereof before the
words "the trustee".
(ee) Section 8.09(a) is amended by (i) adding the word
"trustees," after the word "directors," therein and (ii) adding at the end
thereof the following: "and to any SPC, any trustee thereof and its legal and
financial advisors, and then only on a confidential basis".
(ff) Schedule 4.01(s) is replaced in its entirety by Annex A
attached hereto.
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 this Amendment executed
by the Borrowers and the Required Lenders or, as to any of the Lenders, advice
satisfactory to the Administrative Agent that such Lender 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
creditor's 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
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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 facsimile 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.
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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
BMCA ACQUISITION INC.
BMCA ACQUISITION SUB INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President & Treasurer
DEUTSCHE BANK AG NEW YORK BRANCH,
as Administrative Agent and as Lender
By /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
JPMORGAN CHASE BANK, N.A.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Signature Page to Amendment No. 1
CONSENT
Dated as of March 15, 2007
Each of the undersigned, as a Guarantor under the Guaranty
dated February 22, 2007 (the "Guaranty") and as a Grantor under the Security
Agreement dated February 22, 2007 (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.
BMCA ACQUISITION SUB INC
BMCA FRESNO LLC
BMCA FRESNO II LLC
BMCA GAINESVILLE LLC
BMCA INSULATION PRODUCTS INC.
BMCA QUAKERTOWN 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.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President & Treasurer
Consent to Amendment No. 1 to
Term Loan Agreement
ANNEX A
SCHEDULE 4.01(s)
INVESTMENTS
City of Michigan, Indiana Economic Development Taxable Revenue Bonds, Series
1999 - $1,932,749.
Three (3) shares of Ridgemark Golf and Country Club - $45,000.
City of Fontana Industrial Development Revenue Bond Series 1985 - $6,325,000.
Loan made by BMCA to BMCA Holdings Corporation on July 1, 2003 in a principal
amount of $37,840,000.
Loan made by BMCA to BMCA Holdings Corporation on December 29, 2003 in a
principal amount of $15,000,000.