-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, D92sGtgfF9HEnfDfufuoI/mLKkbHsuFLf6y9/AVV4mXEyTZ4/Squ3b6msB6klHwm k8C3xK1zArJQnRAvzM6CnQ== 0001047469-07-000319.txt : 20070123 0001047469-07-000319.hdr.sgml : 20070123 20070123081641 ACCESSION NUMBER: 0001047469-07-000319 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20070123 DATE AS OF CHANGE: 20070123 GROUP MEMBERS: BMCA AQUISITION INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ELKCORP CENTRAL INDEX KEY: 0000032017 STANDARD INDUSTRIAL CLASSIFICATION: ASPHALT PAVING & ROOFING MATERIALS [2950] IRS NUMBER: 751217920 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-02742 FILM NUMBER: 07544665 BUSINESS ADDRESS: STREET 1: 14911 QUORUM DRIVE STREET 2: SUITE 600 CITY: DALLAS STATE: TX ZIP: 75254-1491 BUSINESS PHONE: 9728510500 MAIL ADDRESS: STREET 1: 14911 QUORUM DRIVE STREET 2: SUITE 600 CITY: DALLAS STATE: TX ZIP: 75254-1491 FORMER COMPANY: FORMER CONFORMED NAME: ELCOR CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: ELCOR CHEMICAL CORP DATE OF NAME CHANGE: 19761119 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BMCA Acquisition Sub Inc. CENTRAL INDEX KEY: 0001386638 IRS NUMBER: 208186490 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: 1361 ALPS ROAD CITY: WAYNE STATE: NJ ZIP: 07470 BUSINESS PHONE: (973) 628-3000 MAIL ADDRESS: STREET 1: 1361 ALPS ROAD CITY: WAYNE STATE: NJ ZIP: 07470 SC TO-T/A 1 a2175657zscto-ta.htm SC TO-T/A
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549


SCHEDULE TO/A

Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 1)


ElkCorp
(Name of Subject Company (Issuer))

BMCA Acquisition Sub Inc.,
a wholly-owned subsidiary of
BMCA Acquisition Inc.
(Names of Filing Persons—Offerors)

COMMON STOCK, PAR VALUE $1.00 PER SHARE
(Title of Class of Securities)

287456107
(CUSIP Number of Class of Securities)

BMCA Acquisition Sub Inc.
1361 Alps Road
Wayne, NJ 07470
(201) 628-3000
Attention: John F. Rebele
(Name, Address and Telephone Numbers of Person
Authorized to Receive Notices and Communications on Behalf of Filing Persons)

Copies to:

Maurice M. Lefkort, Esq.
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019-6099
(212) 728-8000






CALCULATION OF FILING FEE


Transaction Valuation*   Amount of Filing Fee*

 
$980,758,264.50   $104,941.14

 

*    The amount of the filing fee, in accordance with Rule 0-11 of the Securities Exchange Act of 1934, is calculated by multiplying the transaction valuation by 0.000107. For purposes of calculating the filing fee only, the transaction valuation was determined by multiplying the purchase price of $43.50 per share by the sum of (i) the 20,626,102 shares of common stock, par value $1.00 per share, of ElkCorp (the "Shares"), issued and outstanding as of January 12, 2007, according to the Schedule 14D-9 filed by ElkCorp with the Securities and Exchange Commission (the "Commission") on January 19, 2007 (as amended, the "Schedule 14D-9"); (ii) the stock options granted to purchase 1,338,365 Shares issued and outstanding as of January 12, 2007, according to the Schedule 14D-9; and (iii) the 581,700 Shares subject to outstanding performance share awards as of January 12, 2007, according to the Schedule 14D-9.

ý
Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) of the Exchange Act and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

Amount Previously Paid:
Form or Registration No.:
  $101,322.48
005-02742
  Filing Party:   Building Materials
Corporation of America
        Date Filed:   December 20, 2006, January 3, 2007, January 8, 2007, January 9, 2007 and January 18, 2007

 

 

 

 

Filing Party:

 

BMCA Acquisition Sub Inc.
        Date Filed:   January 18, 2007
o
Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer:

o
Check the appropriate boxes below to designate any transactions to which the statement relates.

ý
third-party tender offer subject to Rule 14d-1.

o
issuer tender offer subject to Rule 13e-4.

o
going-private transaction subject to Rule 13e-3.

ý
amendment to Schedule 13D under Rule 13d-2.


Check the following box if the filing is a final amendment reporting the results of the tender offer: o

(Continued on following pages)



SCHEDULE TO

        This Amendment No. 1 to the Tender Offer Statement on Schedule TO (this "Amended Schedule TO") amends and supplements to the Tender Offer Statement on Schedule TO originally filed with the Securities and Exchange Commission on January 18, 2007, by BMCA Acquisition Sub Inc. (including any successor thereto, the "Purchaser"), a wholly-owned subsidiary of BMCA Acquisition Inc. (the "Parent"), which is a wholly-owned subsidiary of Building Materials Corporation of America ("BMCA"), pursuant to Rule 14d-1 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), in connection with Purchaser's offer to purchase all of the issued and outstanding shares of common stock, par value $1.00 per share (the "Common Stock"), of ElkCorp, a Delaware corporation (the "Company"), and the associated Series A Participating Preferred Stock purchase rights (the "Rights" and, together with the Common Stock, the "Shares") at a price of $42.00 per Share, net to the seller in cash (less applicable withholding taxes and without interest). The terms and conditions of the offer are described in the Offer to Purchase, dated January 18, 2007 (the "Offer to Purchase") and the related Letter of Transmittal (the "Letter of Transmittal"), and the instructions thereto (the offer reflected by such terms and conditions, as they may be amended or supplemented from time to time, constitutes the "Offer"). Capitalized terms used and not otherwise defined in this Amended Schedule TO shall have the same meanings assigned to such terms in the Schedule TO or the Offer to Purchase.

        The information in the Offer to Purchase and the related Letter of Transmittal is incorporated in this Amended Schedule TO by reference to all of the applicable items in the Schedule TO, except that such information is hereby amended and supplemented to the extent specifically provided herein.

Increase of the Offer

        The price per Share to be paid pursuant to the Offer has been increased from $42.00 per Share to $43.50 per Share, net to the seller in cash, without interest. The Offer To Purchase and the related Letter of Transmittal, together with the Notice of Guaranteed Delivery, the Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees, the Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees, the Form of Letter to Participants in the ElkCorp Employee Stock Ownership Plan and the Trustee Direction Form, are each, except as noted below or when a reference to $42.00 per Share is tied to a specific date, hereby amended to delete all references to the Offer Price of $42.00 per Share and to replace them with references to $43.50 per Share.

ITEM 1. SUMMARY TERM SHEET.

Item 1 of the Schedule TO is hereby amended and supplemented as follows:

The Summary Term Sheet of the Offer to Purchase is hereby amended and supplemented as follows:

The second sentence of the first bullet point under the sub-heading "What are we seeking to purchase, at what price, and do I have to pay any brokerage or similar fees to tender?" in the Summary Term Sheet of the Offer to Purchase is hereby amended as follows:


      The proposed price of $43.50 per Share represents an approximate 73% premium over the Company's closing price on November 3, 2006 ($25.18 per Share), the trading day immediately preceding the filing of BMCA's Schedule 13D announcing its beneficial ownership of more than 10% of the outstanding Shares and the Company's announcement of its sale process.

        The first sentence of the first bullet point under the sub-heading "What is the market value of my Shares as of a recent date?" in the Summary Term Sheet of the Offer to Purchase is hereby amended as follows:

      The proposed price of $43.50 per Share represents an approximate 73% premium over the Company's closing price on November 3, 2006 ($25.18 per Share), the trading day immediately preceding the filing of BMCA's Schedule 13D announcing its beneficial ownership of more than 10% of the Shares and the Company's announcement of its sale process.

ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.

Item 5 of the Schedule TO is hereby amended and supplemented as follows:

Section 10—Background of the Offer; Contacts with the Company—of the Offer to Purchase is hereby amended and supplemented as follows:

The following section is hereby added immediately preceding the sub-heading "Transactions With the Company" in Section 10 of the Offer to Purchase:

      On January 18, 2007, the Purchaser commenced an offer to acquire the Shares at a price of $42.00 per Share. Later that same day, affiliates of Carlyle commenced an offer to acquire the Shares at a price of $40.50 per Share.

      On January 22, 2007, the Company announced that it had entered into an amendment to its previously announced merger agreement with affiliates of Carlyle to reflect an increase of the previous offer made by affiliates of Carlyle to $42.00 per Share.

      On January 23, 2007, BMCA issued a press release and filed an amendment to its Schedule TO-T, announcing the increase of its offer from $42.00 per Share to $43.50 per Share.

The complete text of the press release is incorporated by reference into this Amended Schedule TO and a copy is filed herewith as Exhibit (a) (1) (T).

ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.

Item 7 of the Schedule TO is hereby amended and supplemented as follows:

Section 12—Source and Amount of Funds—of the Offer to Purchase is hereby amended and supplemented as follows:

The first sentence of the first paragraph of Section 12 of the Offer to Purchase is hereby amended as follows:

      The Purchaser expects that approximately $1 billion would be required to consummate the Offer and the Proposed Merger and to pay related fees and expenses.

The second sentence of the second paragraph of Section 12 of the Offer to Purchase is hereby amended as follows:

      The Credit Facilities will consist of a $975 million seven-year amortizing term loan facility (the 'Term Loan Facility'), a $600 million five-year revolving credit facility (the 'Revolving Credit Facility') and an up to $325 million one-year bridge credit facility (the 'Bridge Facility').


ITEM 12. EXHIBITS.

Item 12 of the Schedule TO is hereby amended and supplemented as follows:

(a)(1)(T)   Press Release, dated January 23, 2007.

(b)(1)

 

Senior Secured Financing Commitment Letter, between Bear, Stearns & Co. Inc., Bear Stearns Corporate Lending Inc., Deutsche Bank AG New York Branch, Deutsche Bank Securities Inc., JPMorgan Chase Bank, N.A., J.P. Morgan Securities, Inc., BMCA Acquisition Sub Inc., BMCA Acquisition Inc. and Building Materials Corporation of America, dated January 22, 2007.

(b)(2)

 

Bridge Commitment Letter, between Bear Stearns Corporate Lending Inc., Deutsche Bank AG Cayman Islands Branch, JPMorgan Chase Bank, N.A., BMCA Acquisition Sub Inc., BMCA Acquisition Inc. and Building Materials Corporation of America, dated January 22, 2007.


SIGNATURE

        After due inquiry and to the best of their knowledge and belief, the undersigned hereby certify as of January 23, 2007 that the information set forth in this statement is true, complete and correct.

    BMCA Acquisition Sub Inc.

 

 

By:

/s/ Robert B. Tafaro

Name:Robert B. Tafaro
Title:    President and Chief Executive Officer

 

 

BMCA Acquisition Inc.

 

 

By:

/s/ Robert B. Tafaro

Name:Robert B. Tafaro
Title:    President and Chief Executive Officer

EXHIBIT INDEX

EXHIBIT NO.   DESCRIPTION

(a)(1)(A)

 

Offer to Purchase, dated January 18, 2007. *

(a)(1)(B)

 

Letter of Transmittal. *

(a)(1)(C)

 

Notice of Guaranteed Delivery. *

(a)(1)(D)

 

Letter to Brokers, Dealers, Commercial Banks, Trust Companies and other Nominees. *

(a)(1)(E)

 

Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Nominees.*

(a)(1)(F)

 

Form of Letter to Participants in the ElkCorp Employee Stock Ownership Plan. *

(a)(1)(G)

 

Trustee Direction Form. *

(a)(1)(H)

 

Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. *

(a)(1)(I)

 

Press Release, dated January 18, 2007, Announcing the Commencement of the Offer. *

(a)(1)(J)

 

Summary Advertisement, dated January 18, 2007, Appearing in the New York Times. *

(a)(1)(K)

 

Letter from Samuel J. Heyman, general partner of Heyman Investment Associates Limited Partnership, to Mr. Robert B. Tafaro, Chief Executive Officer and President of Building Materials Corporation of America, dated August 28, 2006. *

(a)(1)(L)

 

Press Release, dated December 17, 2006. *

(a)(1)(M)

 

Letter, dated December 17, 2006, from Robert B. Tafaro, President and Chief Executive Officer of Building Materials Corporation of America, to Thomas D. Karol, Chairman of the Board and Chief Executive Officer of ElkCorp. *

(a)(1)(N)

 

Press Release, dated December 18, 2006. *

(a)(1)(O)

 

Letter, dated December 18, 2006, from Robert B. Tafaro, President and Chief Executive Officer of Building Materials Corporation of America, to the Board of Directors of ElkCorp. *

(a)(1)(P)

 

Press Release, dated December 20, 2006. *

(a)(1)(Q)

 

Letter, dated January 5, 2007, from Robert B. Tafaro, President and Chief Executive Officer of Building Materials Corporation of America, to the Special Committee of the Board of Directors of ElkCorp. *
     


(a)(1)(R)

 

Letter, dated January 9, 2007, from Robert B. Tafaro, President and Chief Executive Officer of Building Materials Corporation of America, to the Special Committee of the Board of Directors of ElkCorp. *

(a)(1)(S)

 

Letter, dated January 18, 2007, from Robert B. Tafaro, President and Chief Executive Officer of Building Materials Corporation of America, to the Special Committee of the Board of Directors of ElkCorp. *

(a)(1)(T)

 

Press Release, dated January 23, 2007.

(b)(1)

 

Senior Secured Financing Commitment Letter, between Bear, Stearns & Co. Inc., Bear Stearns Corporate Lending Inc., Deutsche Bank AG New York Branch, Deutsche Bank Securities Inc., JPMorgan Chase Bank, N.A., J.P. Morgan Securities, Inc., BMCA Acquisition Sub Inc., BMCA Acquisition Inc. and Building Materials Corporation of America, dated January 22, 2007.

(b)(2)

 

Bridge Commitment Letter, between Bear Stearns Corporate Lending Inc., Deutsche Bank AG Cayman Islands Branch, JPMorgan Chase Bank, N.A., BMCA Acquisition Sub Inc., BMCA Acquisition Inc. and Building Materials Corporation of America, dated January 22, 2007.

(d)(1)

 

Confidentiality Agreement, dated as of December 29, 2006, by and among the Company, Heyman Investment Associates Limited Partnership and Purchaser. *
*
Previously filed.



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CALCULATION OF FILING FEE
SCHEDULE TO
SIGNATURE
EX-99.(A)(1)(T) 2 a2175657zex-99_a1t.htm EXHIBIT 99(A)(1)(T)
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GRAPHIC

Exhibit (a)(1)(T)

FOR IMMEDIATE RELEASE

For more information, contact Building Materials Corporation of America at 973-317-5960


BMCA ACQUISITION SUB INC. INCREASES CASH
TENDER OFFER FOR ELKCORP TO $43.50 PER SHARE

January 23, 2007—Building Materials Corporation of America ("BMCA"), North America's largest roofing manufacturer, which operates under the name GAF Materials Corporation announced that BMCA Acquisition Sub Inc., an indirect wholly-owned subsidiary of BMCA, today increased its offer to purchase all the outstanding shares of common stock of ElkCorp from $42.00 to $43.50 per share cash consideration. The tender offer is scheduled to expire at 12:00 Midnight, New York City time, on February 14, 2007.

The tender offer materials filed with the SEC will be amended to reflect this higher offer. The complete terms and conditions of the offer are set forth in the Offer to Purchase, copies of which can be obtained by contacting the information agent, D.F. King & Co., Inc. at (888) 628-9011. Bear, Stearns & Co. Inc. is acting as of the dealer manager and The Bank of New York is acting as the depositary. Willkie Farr & Gallagher LLP is acting as legal advisor to BMCA, BMCA Acquisition Inc. and BMCA Acquisition Sub Inc.

#    #    #

BMCA INFORMATION

Building Materials Corporation of America, which operates under the name of GAF Materials Corporation, is an indirect subsidiary of G-I Holdings Inc. With annual sales in 2005 approximating $2.0 billion, BMCA is North America's largest manufacturer of residential and commercial roofing products and specialty building products.

#    #    #

THIS PRESS RELEASE IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE AN OFFER TO BUY OR THE SOLICITATION OF AN OFFER TO SELL SHARES OF ELKCORP COMMON STOCK. THE TENDER OFFER IS BEING MADE ONLY PURSUANT TO THE OFFER TO PURCHASE, LETTER OF TRANSMITTAL AND RELATED MATERIALS THAT BMCA ACQUISITION SUB INC. WILL SHORTLY BE DISTRIBUTING TO ELKCORP'S STOCKHOLDERS AND HAS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. STOCKHOLDERS SHOULD READ CAREFULLY THE OFFER TO PURCHASE, LETTER OF TRANSMITTAL AND RELATED


MATERIALS BECAUSE THEY CONTAIN IMPORTANT INFORMATION, INCLUDING THE VARIOUS TERMS OF, AND CONDITIONS TO, THE TENDER OFFER. STOCKHOLDERS MAY OBTAIN A FREE COPY OF THE TENDER OFFER STATEMENT ON SCHEDULE TO, THE OFFER TO PURCHASE, LETTER OF TRANSMITTAL AND OTHER DOCUMENTS THAT BMCA ACQUISITION SUB INC. HAS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION AT THE COMMISSION'S WEBSITE AT WWW.SEC.GOV. STOCKHOLDERS ARE URGED TO CAREFULLY READ THESE MATERIALS PRIOR TO MAKING ANY DECISION WITH RESPECT TO THE TENDER OFFER.

#    #    #

FORWARD-LOOKING STATEMENTS

This release contains some forward-looking statements as defined by the federal securities laws which are based on our current expectations and assumptions, which are subject to a number of risks and uncertainties that could cause actual results to differ materially from those anticipated, projected or implied. We undertake no obligation to publicly update any forward-looking statements, whether as a result of new information, future events or otherwise.




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BMCA ACQUISITION SUB INC. INCREASES CASH TENDER OFFER FOR ELKCORP TO $43.50 PER SHARE
EX-99.(B)(1) 3 a2175657zex-99_b1.htm EXHIBIT(B)(1)

Exhibit (b)(1)

DEUTSCHE BANK AG
NEW YORK BRANCH
DEUTSCHE BANK
SECURITIES INC.
60 Wall Street
New York, NY 10005
  BEAR STEARNS
CORPORATE LENDING INC.
BEAR STEARNS & CO. INC.
383 Madison Avenue
New York, NY 10179
  JPMORGAN CHASE BANK, N.A.
J.P. MORGAN SECURITIES INC.
270 Park Avenue
New York, NY 10017

January 22, 2007

Building Materials Corporation of America,
BMCA Acquisition Inc. and
BMCA Acquisition Sub Inc.
1361 Alps Road
Wayne, New Jersey 07470

Attention: John Maitner

Re:
Acquisition Financing—Senior Secured Financing Commitment Letter

Ladies and Gentlemen:

        You have informed Deutsche Bank AG New York Branch ("DBNY"), Deutsche Bank Securities Inc. ("DBSI" and, together with DBNY, "DB"), Bear, Stearns & Co. Inc. ("Bear Stearns"), Bear Stearns Corporate Lending Inc. ("BSCL"), JPMorgan Chase Bank, N.A. ("JPMCB") and J.P. Morgan Securities Inc. ("JPMorgan" and together with DB, Bear Stearns, BSCL and JPMCB collectively, the "Committing Parties") that BMCA Acquisition Sub Inc. (the "Purchaser"), a wholly-owned direct subsidiary of BMCA Acquisition Inc. and an indirect wholly-owned subsidiary of Building Materials Corporation of America ("BMCA" and together with the Purchaser and BMCA Acquisition Inc., the "Company") intends to offer to acquire through a tender offer (the "Tender Offer") for up to $43.50 in cash per share all of the outstanding shares (and associated Series A Preference Stock Rights) of common stock, $1.00 par value (the "Company Stock"), of ElkCorp, a Delaware corporation ("Elk"), but in any event not less than sufficient shares of Company Stock to enable the Purchaser—voting without any other shareholders of Elk, (other than Heyman Investment Associates Limited Partnership ("HIA") which has agreed to sell to you at its cost its shares of Elk) to approve a merger of the Purchaser with Elk. As soon as practicable after the closing of the Tender Offer (the "Closing Date"), the Purchaser will consummate a merger with Elk (the "Merger" and together with the Tender Offer, the "Acquisition"). You have also informed the Committing Parties that concurrently with the closing of the Tender Offer you intend to refinance substantially all of the existing indebtedness of BMCA (excluding the 7.75% Notes due 2014 (the "2014 Notes"), which will be equally and ratably secured with the Term Loan Facility (as defined below) and that concurrently with the consummation of the Merger you intend to refinance all of the existing indebtedness of Elk (collectively, the "Refinancing"). We understand that you desire to establish a senior secured credit facility in an aggregate principal amount of $1,575 million (the "Senior Secured Financing") the proceeds of which will be used (together with the funds provided by the financing referred to in the succeeding paragraph) (x) for the purchase price to be paid to effect the Tender Offer, (y) to effect the Refinancing and (z) to pay fees and expenses payable in connection with the Transaction (as defined below).

        The sources of funds needed to effect the Tender Offer, the Merger and the Refinancing, to pay all fees and expenses incurred in connection with the Transaction and to provide for the working capital needs and general corporate requirements of you and your subsidiaries after giving effect to the Tender Offer and the Merger shall be provided solely through (i) a bridge financing or by the issuance

1



by you (either pursuant to private placement or underwritten public sale) of senior secured notes (the "Senior Secured Notes") which shall generate $325 million of gross cash proceeds (calculated before underwriting fees) and (ii) the Senior Secured Financing (with the transactions described in preceding clauses (i) and (ii) being herein collectively referred to as the "Financing Transactions" and, together with the Acquisition and the Refinancing, being herein collectively referred to as the "Transaction").

        We understand that the Senior Secured Financing shall consist of (i) up to an $975 million term loan facility (the "Term Loan Facility") and (ii) a $600 million revolving credit facility (the "Revolving Credit Facility" and, together with the Term Loan Facility, the "Credit Facilities"); it being understood that at or prior to the Merger you may elect to increase the Revolving Credit Facility by up to $100 million provided that the Term Loan Facility is reduced by an equal amount and that not more than $150 million plus such amount, if any, by which the Revolving Credit Facility is so increased (plus seasonal working capital requirements and excluding for this purpose any reductions in availability for outstanding letters of credit) or such greater amount as may be mutually agreed of the proceeds of the Revolving Credit Facility may be utilized to make payments owing to effect the Transaction or to pay any fees and expenses incurred in connection with the Transaction. Any commitments under the Term Loan Facility not required to finance the Transaction will terminate on the date of the consummation of the Merger. A summary of certain of the terms and conditions of the Revolving Credit Facility and Term Loan Facility is set forth in Exhibit A attached hereto (the "Term Sheet").

        Subject to the terms and conditions set forth herein and in the Term Sheet, (a) DBNY is pleased to confirm (i) its several and not joint commitment to provide 50% of each Credit Facility and (ii) its agreement to act as sole administrative agent (in such capacity, the "Administrative Agent") for a syndicate of lenders who will participate in the Senior Secured Financing (together with DBNY, BSCL and JPMCB, the "Lenders"), (b) BSCL is pleased to confirm its several and not joint commitment to provide 35% of each Credit Facility, (c) DBSI is pleased to confirm its agreement to act as a Joint Lead Arranger and Joint Book Running Manager for the Senior Secured Financing, (d) Bear Stearns is pleased to confirm its agreement to act as a Joint Lead Arranger and Joint Book Running Manager for the Senior Secured Financing, (e) JPMCB is pleased to confirm its several and not joint commitment to provide 15% of each Credit Facility, and (f) JPMorgan is pleased to confirm its agreement to act as a Joint Lead Arranger and Joint Book Running Manager for the Senior Secured Financing. One or more other institutions may be designated as "Syndication Agent", "Documentation Agent" or such other titles as may be deemed appropriate or desirable in connection with the syndication of the Senior Secured Financing (each of which shall participate appropriately in the Credit Facilities), DBSI, Bear Stearns and JPMorgan, as Joint Lead Arrangers are referred to herein as the "Lead Arrangers". It being understood and agreed that the DBSI name shall appear immediately to the left of Bear Stearns and that the Bear Stearns name shall appear immediately above or immediately to the left of JPMorgan with respect to the Term Loan Facility and that DBSI name shall appear immediately to the left of JPMorgan and that the JPMorgan name shall appear immediately above or immediately to the left of Bear Stearns name with respect to the Revolving Credit Facility.

        DBNY, BSCL and JPMCB (collectively, the "Initial Lenders") reserve the right, prior to or after execution of the definitive credit documentation for the Senior Secured Financing (the "Operative Documents") to syndicate all or part of their respective commitments hereunder to one or more other Lenders reasonably acceptable to you that will become party to such definitive credit documentation pursuant to a syndication to be managed by the Lead Arrangers in consultation with you. You agree that, upon delivery to the Lead Arrangers of a commitment letter addressed to the Company for all or a portion of the Senior Secured Financing containing terms not less favorable in any material respect to the Company than the terms hereof by a Lender that you have introduced to the Lead Arrangers as a potential Lender, the Initial Lenders shall be proportionally relieved of their respective obligations hereunder based on their relative commitments hereunder to the extent of such Lender's commitments set forth in such commitment letter. Furthermore, all aspects of the syndication of the Senior Secured

2


Financing, including, without limitation, timing, potential syndicate members to be approached, titles, allocations and division of fees, shall be determined by the Lead Arrangers in consultation with you. You agree to actively assist the Lead Arrangers in forming a syndicate acceptable to the Lead Arrangers and you, including by using your commercially reasonable efforts to ensure that the Lead Arrangers' syndication efforts benefit materially from your existing lending relationships, and to provide the Lead Arrangers and the Lenders, upon reasonable request, with all information reasonably deemed necessary by the Lead Arrangers to complete successfully the syndication, including, but not limited to, projections and other information prepared by you or your affiliates or advisors relating to the Transaction. You also agree (i) to make available your senior management and appropriate representatives to participate in information meetings with ratings agencies identified by Lead Arrangers and potential Lenders, in each case at such times and places as the Lead Arrangers may reasonably request, and (ii) at the request of the Lead Arrangers, to assist in the preparation of a version of a confidential information memorandum to be used in connection with the syndication of the Senior Secured Financing, consisting exclusively of information and documentation that is either (i) publicly available with respect to the Borrower, Elk or their respective subsidiaries or (ii) not material with respect to the Borrower and its subsidiaries or any of their respective securities for purposes of United States Federal and state securities laws (all such information and documentation being "Public Information"). Any information and documentation that is not Public Information is referred to herein as "Private Information". You further agree that each document to be disseminated by the Administrative Agent to any Lender in connection with the Credit Facilities will be identified by you as either (i) containing Private Information or (ii) containing solely Public Information. The provisions of the fourth sentence and clause (ii) of the fifth sentence of this paragraph shall remain in full force and effect until the successful syndication of the Senior Secured Financing (as reasonably determined by the Lead Arrangers).

        You represent, warrant and covenant that (i) no written information, other than business and financial projections, budgets, pro forma data and forecasts, that has been or is hereafter furnished by you or on your behalf to the Lead Arrangers, any Lender or any prospective Lender in connection with the Transaction and (ii) no other information given at information meetings for potential syndicate members and supplied or approved by you or on your behalf (such written information and other information being referred to herein collectively as the "Information") taken as a whole contained (or, in the case of Information furnished after the date hereof, will contain), as of the time it was (or hereafter is) furnished, any material misstatement of fact or omitted (or will omit) as of such time to state any material fact necessary to make the statements therein taken as a whole not misleading, in the light of the circumstances under which they were (or hereafter are) made; provided, however, that, with respect to Elk and its subsidiaries, the foregoing representation is limited to your best knowledge. With respect to business and financial projections (including detailed consolidated financial statements for the seven fiscal years ending after the Closing Date), budgets, pro forma data and forecasts, if any (collectively, the "Projections"), that have been or will be prepared by you or on your behalf and has been or is hereafter furnished by you or on your behalf to the Lead Arranger, any Lender or any prospective Lender in connection with Transaction, no representation, warranty or covenant is made other than that the Projections have been (and, in the case of Projections furnished after the date hereof, will be) prepared in good faith based on assumptions believed to be reasonable at the time of preparation thereof (it being understood that such Projections are subject to significant uncertainties and contingencies, many of which are beyond the Company's control, and that no assurance can be given that the Projections will be realized). You agree to supplement the Information and the Projections from time to time until the date of the initial borrowing under the Senior Secured Financing, as appropriate, so that the representations and warranties in the preceding sentence remain correct. You understand that, in syndicating the Senior Secured Financing, the Lead Arranger will use and rely on the Information and the Projections without independent verification thereof.

3



        The Committing Parities' commitments and other agreements hereunder are subject to (a) there not occurring any condition or circumstance which has had, or would reasonably be expected to have, a Material Adverse Effect (as defined below), (b) the accuracy and completeness in all material respects of the representations that the Company makes to Lead Arrangers and the Lenders pursuant to the immediately preceding paragraph, (c) the Company's compliance with the terms of this Commitment Letter (as defined below), and (d) the Lead Arrangers' reasonable satisfaction that prior to the earlier of (i) four months after the date on which the Operative Documents shall become effective and (ii) a Successful Syndication (as defined in the fee letter agreement dated the date hereof among the parties hereto, the "Fee Letter") there shall be no offering, placement or arrangement by you or on your behalf of any debt securities or bank financing (including refinancings and renewals of debt, but excluding the Senior Secured Notes and any ordinary course financing or refinancing of equipment purchases or leases) and (e) the other conditions referred to in the Term Sheet.

        "Material Adverse Effect" means any fact, circumstance, event, change, effect or occurrence since June 30, 2006 that has or would be reasonably likely to have a material adverse effect on the business, results of operation or financial condition of Elk and its subsidiaries, taken as a whole, but, in any case, shall not include facts, circumstances, events, changes, effects or occurrences (a) generally affecting the industries in which Elk and its subsidiaries operate (including general pricing changes), or the economy or the financial or securities markets in the United States or elsewhere in the world (including any regulatory and political conditions or developments, or any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism), except to the extent any fact, circumstance, event, change, effect or occurrence that, relative to other industry participants, disproportionately impacts the assets, properties, business, results of operation or financial condition of Elk and its subsidiaries, taken as a whole, (b) resulting from the announcement of (i) the proposal of the Acquisition or (ii) the Transaction or (c) resulting from any litigation related to the proposed Acquisition or the Transaction and provided that any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of itself, constitute a Material Adverse Effect.

        To induce the Committing Parties to issue this letter (together with the Term Sheet, this "Commitment Letter") and to proceed with the documentation of the Senior Secured Financing, you hereby agree that all fees and expenses (including the reasonable fees and expenses of counsel and consultants) of the Committing Parties and their respective affiliates arising in connection with this Commitment Letter and in connection with the Transaction and other transactions described herein (including in connection with our due diligence and syndication efforts) shall be for your account, whether or not the Transaction is consummated or the Senior Secured Financing is made available or the Operative Documents are executed. You further agree to indemnify and hold harmless the Administrative Agent, each Lead Arranger, and each other agent or co agent (if any) designated by the Committing Parties with respect to the Senior Secured Financing (each, an "Agent"), each Lender (including in any event each Initial Lenders) and their respective affiliates and each director, officer, employee, representative and agent thereof (each, an "Indemnified Person") from and against any and all actions, suits, proceedings (including any investigations or inquiries), claims, losses, damages, liabilities or expenses of any kind or nature whatsoever which may be incurred by or asserted against or involve any Agent, any Lender or any other such Indemnified Person as a result of or arising out of or in any way related to or resulting from the Transaction or this Commitment Letter and, upon demand, to pay and reimburse each Agent, each Lender and each other Indemnified Person for any reasonable legal or other out of pocket expenses paid or incurred in connection with investigating, defending or preparing to defend any such action, suit, proceeding (including any inquiry or investigation) or claim (whether or not any Agent, any Lender or any other such Indemnified Person is a party to any action or proceeding out of which any such expenses arise); provided, however, that you shall not have to indemnify any Indemnified Person against any loss, claim, damage, expense or liability to the extent same resulted from the gross negligence or willful misconduct of the respective Indemnified Person (as determined in a proceeding of a court of competent jurisdiction). Neither the Committing Parties nor

4



any other Indemnified Person shall be responsible or liable to you or any other person or entity for (x) any determination made by it pursuant to this Commitment Letter in the absence of gross negligence or willful misconduct on the part of such person or entity (as determined in a proceeding of a court of competent jurisdiction), (y) any damages arising from the use by others of information or other materials obtained through electronic, telecommunications or other information transmission systems or (z) any indirect, special, incidental, punitive or consequential damages (including, without limitation, any loss of profits, business or anticipated savings) which may be alleged as a result of this Commitment Letter or the financing contemplated hereby.

        Each Lead Arranger reserves the right to employ the services of its affiliates (including, in the case of DB, Deutsche Bank AG) in providing services contemplated by this Commitment Letter and to allocate, in whole or in part, to its affiliates certain fees payable to such Lead Arranger in such manner as such Lead Arranger and its affiliates may agree in their sole discretion. You also agree that the Initial Lenders may at any time and from time to time assign all or any portion of their respective commitments hereunder to one or more of their respective affiliates. You further acknowledge that (i) the Committing Parties may share with any of their respective affiliates, and such affiliates may share with the applicable Committing Party, any information related to the Transaction, you and Elk (and your respective subsidiaries and affiliates), or any of the matters contemplated hereby and (ii) the Committing Parties and their respective affiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which you or Elk may have conflicting interests regarding the transactions described herein and otherwise. Each Committing Party agrees to treat, and cause any such affiliate to treat, all non public information provided to it by you or on your behalf as confidential information in accordance with customary banking industry practices.

        Except as otherwise agreed in writing between us, you agree that this Commitment Letter is for your confidential use only and that, unless the Lead Arrangers have otherwise consented, neither its existence nor the terms hereof will be disclosed by you to any person or entity other than your officers, directors, employees, accountants, attorneys and other advisors, and then only on a "need to know" basis in connection with the transactions contemplated hereby and on a confidential basis. Notwithstanding the foregoing, following your acceptance of the provisions hereof and your return of an executed counterpart of this Commitment Letter and the Fee Letter to us as provided below, (i) you shall be permitted to furnish a copy of this Commitment Letter (but not the Fee Letter) to Elk and its advisors in connection with the proposed Acquisition, (ii) you may make public disclosure of the existence and amount of the commitments hereunder and of the identity of the Administrative Agent and the Lead Arrangers, (iii) you may file a copy of this Commitment Letter (but not the Fee Letter) in any public record in which it is required by law to be filed and (iv) you may make such other public disclosure of the terms and conditions hereof as, and to the extent, you believe in good faith, after consulting with counsel, is required by law or in connection with complying with a court order. If this Commitment Letter is not accepted by you as provided below, please immediately return this Commitment Letter (and any copies hereof) to the undersigned.

        You hereby represent and acknowledge that, to the best of your knowledge, neither the Committing Parties, nor any employees or agents of, or other persons affiliated with, the Committing Parties, have directly or indirectly made or provided any statement (oral or written) to you or to any of your employees or agents, or other persons affiliated with or related to you (or, so far as you are aware, to any other person), as to the potential tax consequences of the Transaction.

        The provisions of the four immediately preceding paragraphs shall survive any termination of this Commitment Letter.

        In order to comply with the USA PATRIOT Act, DB must obtain, verify and record information that sufficiently identifies each entity (or individual) that enters into a business relationship with the

5



Committing Parties. As a result, in addition to your corporate name and address, DB will obtain your corporate tax identification number and certain other information. DB may also request relevant corporate resolutions and other identifying documents.

        This Commitment Letter and the Fee Letter (and your rights and obligations hereunder and thereunder) shall not be assignable by you to any person or entity without the prior written consent of the Committing Parties (and any purported assignment without such consent shall be null and void). This Commitment Letter and the Fee Letter may not be amended or modified, or any provision hereof and thereof waived, except by an instrument in writing signed by you and the Committing Parties. Each of this Commitment Letter and the Fee Letter may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed signature page of this Commitment Letter or the Fee Letter by facsimile (or other electronic) transmission shall be effective as delivery of a manually executed counterpart hereof or thereof, as the case may be. This Commitment Letter and the Fee Letter shall be governed by, and construed in accordance with, the law of the State of New York. This Commitment Letter and the Fee Letter set forth the entire agreement among the parties hereto as to the matters set forth herein. This Commitment Letter and the Fee Letter shall supersede all prior communications, written or oral, with respect to the matters herein. Matters that are not covered or made clear herein, in the Term Sheet or in Fee Letter are subject to mutual agreement of the parties hereto. This Commitment Letter and the Fee Letter are intended to be solely for the benefit of the parties hereto and thereto and are not intended to confer any benefits upon, or create any rights in favor of, any person or entity other than the parties hereto or thereto (and indemnified persons) and may not be relied upon by any person or entity other than you. Neither this Commitment Letter nor the Fee Letter are intended to create a fiduciary relationship among the parties hereto or thereto.

        Each of the parties hereto hereby waives any right to trial by jury with respect to any claim, action, suit or proceeding arising out of or contemplated by this Commitment Letter or the Fee Letter. You hereby submit to the non exclusive jurisdiction of the federal and New York state courts located in the county of New York in connection with any dispute related to this Commitment Letter, the Fee Letter or any matter contemplated hereby or thereby.

        The Committing Parties' commitments and other obligations with respect to the Senior Secured Financing as set forth above will terminate on the first to occur of (i) the date the Operative Documents become effective, (ii) June 30, 2007 or (iii) the date on which you have informed the Lead Arrangers that you have decided not to proceed with the Transaction.

*    *    *

6


        If you are in agreement with the foregoing, please sign and return to DB the enclosed copy of this Commitment Letter, together with a copy of the enclosed Fee Letter, no later than 5:00 p.m., New York time, on January 31, 2007. Unless this Commitment Letter and the Fee Letter are signed and returned by the time and date provided in the immediately preceding sentence, this Commitment Letter shall terminate at such time and date.

    Very truly yours,

 

 

DEUTSCHE BANK AG NEW YORK BRANCH

 

 

By:

 

/s/  
ALBERT FISCHETTI      
Name: Albert Fischetti
Title: Director

 

 

By:

 

/s/  
STEPHEN CAYER      
Name: Stephen Cayer
Title: Director

 

 

DEUTSCHE BANK SECURITIES INC.

 

 

By:

 

/s/  
STEPHEN P. CUNNINGHAM      
Name: Stephen P. Cunningham
Title: Managing Director

 

 

By:

 

/s/  
EDWIN ROLAND      
Name: Edwin Roland
Title: Managing Director

BMCA Senior Secured Financing Commitment Letter


    BEAR, STEARNS & CO. INC.

 

 

By:

 

/s/  
LAWRENCE B. ALLETTO      
Name: Lawrence B. Alletto
Title: Senior Managing Director

 

 

BEAR STEARNS CORPORATE LENDING INC.

 

 

By:

 

/s/  
LAWRENCE B. ALLETTO      
Name: Lawrence B. Alletto
Title: Vice President

BMCA Senior Secured Financing Commitment Letter


    JPMORGAN CHASE BANK, N.A.

 

 

By:

 

/s/  
TERI STREUSAND      
Name: Teri Streusand
Title: Vice President

 

 

J.P. MORGAN SECURITIES INC.

 

 

By:

 

/s/  
JOHN M. MCKENNA      
Name: John M. McKenna
Title: Executive Director

BMCA Senior Secured Financing Commitment Letter


    Agreed to and Accepted this            day of                        , 2007:

 

 

BUILDING MATERIALS CORPORATION OF AMERICA

 

 

By:

 

/s/
JOHN M. MAITNER
Name: John M. Maitner
Title: Vice President and Treasurer

 

 

BMCA ACQUISITION INC.

 

 

By:

 

/s/
JOHN M. MAITNER
Name: John M. Maitner
Title: Vice President and Treasurer

 

 

BMCA ACQUISITION SUB INC.

 

 

By:

 

/s/
JOHN M. MAITNER
Name: John M. Maitner
Title: Vice President and Treasurer

BMCA Senior Secured Financing Commitment Letter


Exhibit A

SUMMARY OF CERTAIN TERMS OF CREDIT FACILITIES

        Unless otherwise defined herein, capitalized terms used herein and defined in the letter agreement to which this Exhibit A is attached (the "Commitment Letter") are used herein as therein defined.

I.    Description of Credit Facilities    

Borrower:   Building Materials Corporation of America ("BMCA"), BMCA Acquisition Inc., BMCA Acquisition Sub Inc. and certain other subsidiaries of BMCA as shall be mutually agreed (collectively the "Borrower").

Total Credit Facilities:

 

$1,575 million.

Credit Facilities:

 

1.

 

Term loan facility in an aggregate principal amount of up to $975 million (the "
Term Loan Facility").

 

 

2.

 

Revolving credit facility in an aggregate principal amount of $600 million (the "
Revolving Credit Facility" and, together with the Term Loan Facility, the "Credit Facilities").

 

 

3.

 

The Borrower may elect at or prior to the Merger to increase the Revolving Credit Facility by up to $100 million provided that the Term Loan Facility is reduced by an equal amount.

        A.    Term Loan Facility    

Use of Proceeds:   The loans made pursuant to the Term Loan Facility (the "Term Loans") may only be incurred in two tranches, with the initial tranche ("Tranche I") on the Closing Date and the second tranche ("Tranche II") on the date of the Merger. The proceeds thereof shall be utilized solely to finance, in part, the Tender Offer, the Merger and the Refinancing and to pay the fees and expenses incurred in connection with the Transaction. The aggregate principal amount of Tranche I shall not be less than 50% of the aggregate principal amount of the Term Loan Facility.

Maturity:

 

The final maturity date of the Term Loan Facility shall be 7 years from the Closing Date (the "
Term Loan Maturity Date").

Amortizations:

 

Annual amortization (payable in 4 equal quarterly installments) of the Term Loans shall be required in an amount equal to one percent of the initial aggregate principal amount of the Term Loans with the remaining aggregate principal amount payable on the Term Loan Maturity Date.

Availability:

 

Tranche I may only be incurred on the Closing Date. Tranche II may only be incurred on the date of the Merger, which will not be later than the later of (x) four months after the Closing Date and (y) June 30, 2007 (such later date being the "
Tranche II Final Funding Date"). No amount of Term Loans once repaid may be reborrowed.
         


Security:

 

All amounts owing under the Term Loan Facility (and all obligations under the related Guaranties) will be secured by (x) a first priority perfected security interest in all stock, other equity interests and promissory notes owned by the Borrower and the Guarantors (which shall include the Company Stock acquired in the Tender Offer and acquired from HIA),
provided, however, that not more than 65% of the total outstanding voting stock of any "controlled foreign corporation" shall be required to be pledged if the pledging thereof would give rise to material adverse tax consequences to the Borrower (as reasonably determined by the Borrower), and all other tangible and intangible assets (including, without limitation, equipment, contract rights, securities, securities accounts, patents, trademarks, other intellectual property and real estate) owned by the Borrower and the Guarantors, subject (in each case) to the same exceptions as provided under the Loan Documents (as such term is defined in the Amended and Restated Credit Agreement dated as of September 28, 2006, among BMCA, Citigroup USA, Inc., as administrative agent, and the other parties thereto (the "Existing Credit Agreement"; such Loan Documents, the "Existing Loan Documents") and additional exceptions as may be mutually agreed, but excluding the collateral for the Revolving Credit Facility and (y) a second priority perfected security interest in the collateral for the Revolving Credit Facility.

 

 

All documentation evidencing the security required pursuant to the immediately preceding paragraph shall be in form and substance the same as provided under the Existing Loan Documents, with the same exceptions as provided by the Existing Loan Documents and such additional exceptions as may be mutually agreed.

 

 

The collateral granted as security for the Term Loan Facility will secure equally and ratably the 2014 Notes and any untendered 8% Notes due 2007 and 2008 of BMCA.

Commitment Fee:

 

A per annum commitment fee in an amount to be determined (it is expected to be 50 basis points or as mutually agreed) on the undrawn portion of the commitment of each Lender under the Term Loan Facility, will commence accruing on the Closing Date and be payable quarterly in arrears and on the date of the Merger.
         

A-2



Covenants:

 

(i) Substantially the same covenants as in the Existing Credit Agreement and (ii) as long as any obligations under the Term Loan Facility shall be outstanding, (x) a maximum total leverage ratio (i.e., funded indebtedness to adjusted EBITDA (to be defined in a manner as may be mutually agreed) on a
pro forma basis after giving effect to the Transaction, (y) a minimum interest coverage ratio (i.e., adjusted EBITDA to all interest and other fees and expenses treated as interest under GAAP) on a pro forma basis after giving effect to the Transaction, and (z) a maximum capital expenditure limitation, in each case of (x), (y) and (z) at levels as may be mutually agreed with at least 25% cushion from the Borrower's projections, and in each case of (i) and (ii) above, such exceptions and baskets as are customary for term loan financings as may be mutually agreed and, where applicable, substantially the same as those in the Existing Credit Agreement and additional exceptions and increased baskets as may be mutually agreed, and except that the operational covenants will not be applicable to Elk and its subsidiaries until the Merger and there will be an affirmative covenant to require that if the Merger does not occur by the Tranche II Final Funding Date, the Borrower shall sell, or cause to be sold, the shares of Elk acquired in the tender offer no later than a date six months following the Tranche II Final Funding Date and with the proceeds thereof to be applied to repay the Term Loans.

        B.    Revolving Credit Facility    

Use of Proceeds:   The proceeds of loans under the Revolving Credit Facility (the "Revolving Loans") shall be utilized for working capital, capital expenditures and general corporate purposes, provided that not more than $150 million plus such amount, if any, by which the Revolving Credit Facility is so increased at or prior to the Merger (plus seasonal working capital requirements and excluding for this purpose any reductions in availability for outstanding letters of credit) or such greater amount as may be mutually agreed of the proceeds of the Revolving Credit Facility may be utilized to pay amounts owing to effect the Acquisition or the Refinancing or to pay any fees and expenses incurred in connection with the Transaction.

Maturity:

 

The final maturity date of the Revolving Credit Facility shall be 5 years from the Closing Date (the "
Revolving Loan Maturity Date").

Availability:

 

Revolving Loans may be borrowed, repaid and reborrowed on and after the Closing Date and prior to the Revolving Loan Maturity Date in accordance with the terms of the Operative Documents (which terms will be substantially the same as the terms of the Existing Credit Agreement).
         

A-3



Letters of Credit:

 

Up to $150 million of the Revolving Credit Facility will be available for the issuance of stand by and trade letters of credit ("
Letters of Credit") to support obligations of the Borrower and its subsidiaries on terms substantially the same as those contained in the Existing Credit Agreement. Maturities for Letters of Credit will not exceed twelve months in the case of standby Letters of Credit or 180 days in the case of trade Letters of Credit, renewable annually thereafter in the case of standby Letters or Credit and, in any event, shall not extend beyond the 30th business day prior to the Revolving Loan Maturity Date unless cash collateralized.

Borrowing Base:

 

Substantially the same as under the Existing Credit Agreement with respect to Eligible Receivables, Eligible Inventory and Eligible Precious Metals (each such term as defined in the Existing Credit Agreement);
provided, however, that any Eligible Receivables, Eligible Inventory and Eligible Precious Metals of Elk and its subsidiaries shall be included in the Borrowing Base only after the Merger and the Lead Arrangers having received a reasonably satisfactory field examination and inventory appraisal with respect to such assets.

Security:

 

All amounts owing under the Revolving Credit Facility and (if applicable) the secured hedging agreements and cash management liabilities (and obligations under the related Guaranties) will be secured by a first priority perfected security interest in all receivables, inventory, platinum and rhodium, deposit accounts and other current assets of the Borrower and the Guarantors and proceeds thereof.

 

 

All documentation evidencing the security required pursuant to the immediately preceding paragraph shall be in substantially the same form and substance as provided under the Existing Loan Documents, with the same exceptions as provided by the Existing Loan Documents and such additional exceptions as may be mutually agreed.

Optional Commitment Reductions:

 

Same as provided in the Existing Credit Agreement.

Cash Dominion:

 

A person to be appointed as the collateral agent for the secured parties will be granted cash dominion only if Available Liquidity (as defined in the Existing Credit Agreement) is below 10% of the Revolving Credit Facility or during the continuance of an Event of Default (to be defined in a manner consistent with such definition in the Existing Credit Agreement).

Commitment Fee:

 

A commitment fee, at a per annum rate of 0.30%, on the daily undrawn portion of the commitments of each Lender under the Revolving Credit Facility, will commence accruing on the Closing Date and will be payable quarterly in arrears, and will be subject to a leverage-based or utilization-based pricing grid.
         

A-4



Letter of Credit Fees:

 

A letter of credit fee equal to the Applicable Margin for Revolving Loans maintained as Eurodollar Loans on the outstanding stated amount of Letters of Credit (the "
Letter of Credit Fee") to be shared proportionately by the Lenders under the Revolving Credit Facility in accordance with their participation in the respective Letter of Credit, and a facing fee of 1/4 of 1% per annum (but in no event less than $500 per annum for each Letter of Credit) (the "Facing Fee") to be paid to the issuer of each Letter of Credit for its own account, in each case calculated on the aggregate stated amount of all Letters of Credit for the stated duration thereof. Letter of Credit Fees and Facing Fees shall be payable quarterly in arrears. In addition, the issuer of a Letter of Credit will be paid its customary administrative charges in connection with Letters of Credit issued by it.

Covenants:

 

Substantially the same covenants as in the Existing Credit Agreement (with substantially the same exceptions and baskets as in the Existing Credit Agreement and additional exceptions and increased baskets as may be mutually agreed), including, without limitation, a minimum interest coverage ratio and a maximum capital expenditure limitation, in each case applicable only if Available Liquidity is below a level as may be mutually agreed, and except that the operational covenants will not be applicable to Elk and its subsidiaries until the Merger.

II.    Terms Applicable to All Credit Facilities    

Administrative Agent:   DBNY (in such capacity, the "Administrative Agent").

Joint Lead Arrangers and Joint Book Running Managers:

 

DBSI, Bear Stearns and JPMorgan (in such capacity, the "
Lead Arrangers").

Lenders:

 

DBNY, BSCL and JPMCB and/or a syndicate of lenders arranged by the Lead Arrangers (the "
Lenders").

Guaranties:

 

Each direct and indirect non-borrower domestic subsidiary of BMCA (each, a "
Guarantor" and, collectively, the "Guarantors") shall be required to provide an unconditional guaranty of all amounts owing under the Senior Secured Financing (the "Guaranties"), provided that Elk (and its subsidiaries) will not be required to be Guarantors until the consummation of the Merger. Such Guaranties shall be in substantially the same form and substance as provided by the Existing Loan Documents.
     

A-5



Intercreditor Agreement:

 

The Administrative Agent for each of the Term Loan Facility and the Revolving Credit Facility will enter into an Intercreditor Agreement to reflect the relative priority of the security interests in the collateral and the related creditor's rights. The intercreditor agreement will contain, among other things, customary agreements between the holders of the obligations under the Revolving Credit Facility, the Term Loan Facility, the 2014 Notes and any untendered 8% Notes due 2007 and 2008 (which will be equally and ratably secured with the 2014 Notes) with respect to (a) the subordination of liens, (b) rights to control the enforcement of remedies with respect to the respective collateral, including standstill periods and release of collateral, (c) the agreement to hold in trust and turn over to the creditors holding a senior lien in the respective collateral any proceeds received from such collateral and (d) agreement not to oppose certain uses of cash collateral or DIP financings.

Incremental Facility:

 

The Borrower shall be entitled, on one or more occasions, to obtain additional commitments to make and incur loans under the Term Loan Facility or the Revolving Credit Facility in an aggregate principal amount of up to $250 million, subject to substantially the same terms and conditions as provided in the Existing Credit Agreement.

Voluntary Prepayments:

 

Substantially the same as in the Existing Credit Agreement.

Mandatory Repayments and
Commitment Reductions:

 

  
Mandatory repayments of Term Loans shall be required from (a) 100% of the proceeds (net of taxes and costs and expenses in connection with the sale) from non-ordinary-course sales of assets which constitute collateral which is subject to a first lien to secure the Term Loans (other than certain assets as may be mutually agreed and subject to reinvestment exceptions as may be mutually agreed), (b) 100% of the net proceeds from issuances of debt (with customary and additional exceptions as may be mutually agreed, including in any event of any refinancing of any bridge financing in respect of the Senior Secured Notes with an issuance of permanent Senior Secured Notes), and (c) 100% of the net proceeds from insurance recovery and condemnation events of the Borrower and its subsidiaries (subject to certain reinvestment rights as may be mutually agreed).
     

A-6



 

 

All mandatory repayments of Term Loans shall apply to reduce future scheduled amortization payments of the Term Loans being repaid pro rata based upon the then remaining amounts of such payments. To the extent the amount of any mandatory repayment which would otherwise be required as provided above exceeds the aggregate principal amount of Term Loans then outstanding, such excess shall apply to repay advances (but not reduce the commitment) under the Revolving Credit Facility. In addition, (i) if at any time the outstandings pursuant to the Revolving Credit Facility (including Letter of Credit outstandings) exceed the lesser of (x) aggregate commitments with respect thereto or (y) the Borrowing Base, prepayments of Revolving Loans (and/or the cash collateralization of Letters of Credit) shall be required in an amount equal to such excess, and (ii) after giving effect to the consummation of the Merger, all unutilized commitments under the Term Loan Facility (if any) shall be terminated in their entirety, and (iv) 100% of proceeds (net of taxes and costs and expenses in connection with the sale) from non-ordinary-course sales of assets which constitute collateral which is subject to a first lien to secure the Revolving Loans shall be applied to repay advances (but not reduce the Commitment) under the Revolving Credit Facility.

Interest Rates:

 

At the Borrower's option, Loans may be maintained from time to time as (x) Base Rate Loans, which shall bear interest at the Base Rate in effect from time to time
plus the Applicable Margin (as defined below) or (y) Eurodollar Loans, which shall bear interest at the Eurodollar Rate (adjusted for maximum reserves) as determined by the Administrative Agent for the respective interest period plus the Applicable Margin; provided, however, that until the earlier to occur of (i) the 60th day following the Closing Date or (ii) the date upon which the Lead Arrangers shall determine in its sole discretion that the primary syndication of the Credit Facilities has been completed, Eurodollar Loans shall not be permitted to be incurred/Eurodollar Loans shall be restricted to a single one month interest period at all times, with the first such interest period to begin not sooner than 3 business days (nor later than 5 business days) after the Closing Date and with any subsequent interest periods to begin on the last day of the prior one month interest period theretofore in effect.

 

 

"Applicable Margin" shall mean a percentage per annum equal to (w) in the case of Term Loans (A) maintained as Base Rate Loans, 1.75%, and (B) maintained as Eurodollar Loans, 2.75%; and (x) in the case of Revolving Loans (A) maintained as Base Rate Loans, 0.50%, and (B) maintained as Eurodollar Loans, 1.50%; provided, however, that the Applicable Margin for Revolving Loans shall be subject to a leverage based pricing grid.

 

 

"Base Rate" shall mean the higher of (x) the rate that the Administrative Agent announces from time to time as its prime lending rate, as in effect from time to time, and (y) 1/2 of 1% in excess of the overnight federal funds rate.
     

A-7



 

 

Interest periods of 1, 2, 3 and 6 months or, to the extent agreed to by all respective Lenders with commitments and/or Loans under a given tranche of the Credit Facilities, 9 or 12 months, shall be available in the case of Eurodollar Loans.

 

 

The Credit Facilities shall include customary protective provisions for such matters as defaulting banks, capital adequacy, increased costs, reserves, funding losses, illegality and withholding taxes. The Borrower shall have the right to replace any Lender that (i) charges a material amount in excess of that being charged by the other respective Lenders with respect to contingencies described in the immediately preceding sentence or (ii) refuses to consent to certain amendments or waivers of the respective Senior Secured Financing which expressly require the consent of such Lender and which have been approved by the respective Required Lenders.

 

 

Interest in respect of Base Rate Loans shall be payable quarterly in arrears on the last business day of each calendar quarter. Interest in respect of Eurodollar Loans shall be payable in arrears at the end of the applicable interest period and every three months in the case of interest periods in excess of three months. Interest will also be payable at the time of repayment of any Loans and at maturity. All interest on Base Rate Loans, Eurodollar Loans and commitment fees and any other fees shall be based on a 360 day year and actual days elapsed (or, in the case of Base Rate Loans determined by reference to the prime lending rate, a 365/366 day year and actual days elapsed).

Default Interest:

 

Overdue principal, interest and other amounts shall bear interest at a rate per annum equal to the greater of (i) the rate which is 2% in excess of the rate otherwise applicable to Base Rate Loans of the respective tranche under the Senior Secured Financing from time to time and (ii) the rate which is 2% in excess of the rate then borne by such borrowings. Such interest shall be payable on demand.

Agent/Lender Fees:

 

The Administrative Agent, the Lead Arrangers and the Lenders shall receive such fees as have been separately agreed upon.
     

A-8



Assignments and Participations:

 

The Borrower may not assign its rights or obligations under the Senior Secured Financing. Any Lender may assign, and may sell participations in, its rights and obligations under the Senior Secured Financing, subject (x) in the case of participations, to customary restrictions on the voting rights of the participants and (y) in the case of assignments, to such limitations as may be established by the Administrative Agent (including (i) a minimum assignment amount as may be mutually agreed (or, if less, the entire amount of such assignor's commitments and outstanding Loans at such time), (ii) an assignment fee in the amount of $3,500 to be paid by the respective assignor or assignee to the Administrative Agent and (iii) the receipt of the consent of the Administrative Agent (not to be unreasonably withheld or delayed)). The Senior Secured Financing shall provide for a mechanism which will allow for each assignee to become a direct signatory to the Senior Secured Financing and will relieve the assigning Lender of its obligations with respect to the assigned portion of its commitment. Except during the continuance of a Default, the consent of the Borrower will be required for an assignment, which consent will not be unreasonably withheld.
     

A-9



Waivers and Amendments:

 

Amendments and waivers of the provisions of the loan documentation will require the approval of Lenders holding commitments and/or outstandings (as appropriate) representing more than 50% of the aggregate commitments and outstandings under the Term Loan Facility or the Revolving Credit Facility, as the case may be (the "
Required Lenders"), except that (a) the consent of each Lender affected thereby will be required with respect to (i) increases in commitment amounts, (ii) reductions of principal, interest or fees and (iii) extensions of final scheduled maturities or times for payment of interest or fees, (b) the consent of all of the Lenders shall be required with respect to releases of all or substantially all of the collateral, and (c) the approval of Lenders holding commitments representing more than 662/3% of the aggregate commitments under the Revolving Credit Facility will be required with respect to any changes to the Borrowing Base (or the definitions therein) which would result in an increase in availability thereunder; provided, however, that if any of the matters described in clause (a) or (b) above is agreed to by the Required Lenders, the Borrower shall have the right to either (x) substitute any non consenting Lender by having its Loans and commitments assigned, at par, to one or more other institutions, subject to the assignment provisions described above, or (y) with the consent of the Required Lenders, terminate the commitment of any non consenting Lender, subject to repayment in full of all obligations of the Borrower owed to such Lender relating to the Loans and participations held by such Lender.

Documentation; Governing Law:

 

The Lenders' commitments for the Senior Secured Financing will be subject to the negotiation, execution and delivery of definitive financing agreements (and related security documentation, guaranties, etc.) consistent with the terms of this Term Sheet, in each case prepared by Shearman & Sterling LLP as counsel to the Administrative Agent, and satisfactory to the Administrative Agent and the Lenders (including, without limitation, as to the terms, conditions, representations, covenants and events of default contained therein); provided, however, that except as expressly provided herein, such definitive financing agreements will be in substantially the same form and substance as the Existing Loan Documents. All documentation shall be governed by the internal law of the State of New York (except security documentation that should be governed by local law).

A-10


Conditions Precedent:    

A.

 

To Tranche I and the Initial Loans under the Revolving Credit Facility

1.

 

Except for the funding of the Credit Facilities, the Tender Offer shall have been consummated (or will be concurrently consummated) in accordance in all material respects with the documentation therefor and all applicable law and will result with the Purchaser owning sufficient shares of Common Stock to enable it, voting without any other shareholders of Elk (other than HIA), to approve the Merger (but in any event not less than a majority of such shares). Elk shall not have in effect any "poison pills" or other shareholder rights which would materially increase the cost of the Tender Offer or materially adversely effect the ability of the Purchaser to consummate the Merger no later than the Tranche II Final Funding Date.

2.

 

The Refinancing with respect to the indebtedness of BMCA shall have been consummated to the reasonable satisfaction of the Lead Arrangers.

3.

 

The Borrower shall have received gross cash proceeds of at least $325 million (calculated before underwriting fees) from the issuance of the Senior Secured Notes (or the bridge loan) and shall have used all such cash proceeds to make payments owing in connection with the Transaction before utilizing any proceeds of Loans for such purpose.

4.

 

After giving effect to the consummation of the Tender Offer, BMCA and its subsidiaries (other than Elk and its subsidiaries) shall have no outstanding indebtedness or material contingent liabilities, except for indebtedness incurred pursuant to the (i) Senior Secured Notes (or the Bridge Loans), (ii) the Senior Secured Financing, (iii) the 2014 Notes, (iv) such other existing indebtedness and contingent liabilities permitted under the Existing Credit Agreement and (v) such additional indebtedness and contingent liabilities as shall be permitted by the Operative Documents (the "
Existing Indebtedness").

5.

 

There not occurring any condition or circumstance which has had, or could reasonably be expected to have a Material Adverse Effect.

6.

 

All costs, fees, expenses (including, without limitation, legal fees and expenses) and other compensation contemplated hereby, payable to the Lead Arrangers and the Lenders or otherwise payable in respect of the Transaction shall have been paid to the extent due.
     

A-11



7.

 

The Guaranties shall have been executed and be in full force and effect and all Security Agreements, documents and instruments required to perfect the Agent's security interest in the Collateral shall have been executed and delivered and, if applicable, be in proper form for filing, and none of the Collateral shall be subject to any other pledges, security interest or mortgages, except for liens permitted under the Operative Documents;
provided, however that with respect to any collateral (other than the pledge and perfection of the security interests in the capital stock of subsidiaries held by the Borrower and the Guarantors and other assets pursuant to which a lien may be perfected by the filing of a financing statement under the Uniform Commercial Code), the security interest in which may not be perfected by the filing of a UCC financing statement, if the perfection of Agent's security interest in such collateral may not be accomplished prior to the Closing Date without undue burden or expense and without the taking of any action that goes beyond commercial reasonableness, then the delivery of documents and instruments for perfection of such security interests shall not constitute a condition precedent to the initial borrowings under the Credit Facilities, if the Borrower agrees to deliver or cause to he delivered such documents and instruments, and take or cause to he taken such other actions as may be required to perfect such security interests within a mutually agreed period of time after the Closing Date.

8.

 

The respective Lenders shall have received (x) customary legal opinions from counsel (including, without limitation, New York counsel) reasonably acceptable to the Administrative Agent and (y) a solvency certificate, in the same form and substance as provided under the Existing Credit Agreement, from the chief financial officer of BMCA.

9.

 

The Senior Secured Financing shall have obtained ratings (of any level) from Standard & Poor's Ratings Services and Moody's Investor's Services, Inc., which ratings shall be in effect on the Closing Date.

B.

 

To Tranche II:

1.

 

Except for the funding of Tranche II, the Merger shall have been consummated (or will be concurrently consummated) in accordance in all material respects with the documentation therefor (including any proxy statement) and all applicable law.

2.

 

After giving effect to the consummation of the Merger, Elk and its subsidiaries shall have no outstanding indebtedness or contingent liabilities except as permitted by the documentation for the Operative Documents.

3.

 

There shall not exist any judgment, order, injunction or other restraint prohibiting or imposing materially adverse conditions upon the Merger or the transactions contemplated by the Operative Documents.

4.

 

All costs, fees, expenses (including, without limitation, legal fees and expenses) and other compensation contemplated hereby, payable to the Lead Arrangers and the Lenders or otherwise payable in respect of the Merger shall have been paid to the extent due.
     

A-12



C.

 

To All Loans and Letters of Credit:

1.

 

All representations and warranties shall be true and correct in all material respects on and as of the date of each borrowing of a Loan and each issuance of a Letter of Credit (although any representations and warranties which expressly relate to a given date or period shall be required to be true and correct in all material respects as of the respective date or for the respective period, as the case may be), before and after giving effect to such borrowing or issuance and to the application of the proceeds therefrom, as though made on and as of such date

2.

 

No Default under the Credit Facilities or event which with the giving of notice or lapse of time or both would be a Default under the Credit Facilities, shall have occurred and be continuing, or would result from any borrowing of a Loan or issuance of a Letter of Credit.

Representations and Warranties:

 

Substantially the same as in the Existing Loan Documents.

Events of Default:

 

Substantially the same as in the Existing Loan Documents.

Indemnification:

 

Substantially the same as in the Existing Loan Documents.

A-13



EX-99.(B)(2) 4 a2175657zex-99_b2.htm EXHIBIT 99(B)(2)
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Exhibit (b)(2)

DEUTSCHE BANK AG
CAYMAN ISLAND
BRANCH
60 Wall Street
New York, NY 10005
  BEAR STEARNS
CORPORATE
LENDING INC.
383 Madison Avenue
New York, NY 10179
  JPMORGAN CHASE
BANK, N.A.
270 Park Avenue
New York, NY 10017

January 22, 2007

Building Materials Corporation of America,
BMCA Acquisition Inc. and
BMCA Acquisition Sub Inc.
1361 Alps Road
Wayne, New Jersey 07470

Attention: John Maitner

Re: Bridge Commitment Letter

Ladies and Gentlemen:

        We understand that BMCA Acquisition Sub Inc. (the "Purchaser"), a direct wholly-owned subsidiary of BMCA Acquisition Inc. and an indirect wholly-owned subsidiary of Building Materials Corporation of America ("BMCA") intends to offer to acquire through a tender offer (the "Tender Offer") for up to $43.50 in cash per share all of the outstanding shares (and associated Series A Participating Preference Stock Rights) of the common stock, $1.00 par value (the "Company Stock"), of ElkCorp, a Delaware corporation ("Elk"), but in any event not less than sufficient shares of Company Stock to enable the Purchaser—voting without any other shareholders of Elk, (other than Heyman Investment Associates Limited Partnership ("HIA") which has agreed to sell to you at its cost its shares of Elk) to approve a merger of the Purchaser with Elk, and that as soon a practicable after the closing of the Tender Offer (the "Closing Date"), the Purchaser will consummate a merger with Elk (the "Merger" and, together with the Tender Offer, the "Acquisition"). We further understand that the funding requirements for the Acquisition (including related fees and expenses) and the refinancing and/or redemption (the "Refinancing") of certain of the outstanding indebtedness of BMCA and Elk, together with ongoing working capital needs, will be met from the proceeds of (i) a term loan facility (the "Term Loan Facility") of up to $975 million to be drawn in two tranches, the first on the Closing Date and the second on the closing of the Merger, (ii) a revolving credit facility (the "Revolving Credit Facility" and, together with the Term Loan Facility, the "Bank Financing") of up to $600 million (of which up to $150 million (plus seasonal working capital requirement and excluding for this purpose any reductions in availability for outstanding letters of credit) or such greater amount as may be mutually agreed with the lenders providing the Bank Financing will be drawn on the Closing Date), and (iii) either the Bridge Loan (as defined below) or the issuance and sale of the Debt Securities (as defined below). The Acquisition, the Refinancing, the Bank Financing, the Bridge Loan and the issuance and sale of the Debt Securities are herein collectively referred to as the "Transaction".1


1
We also understand that, in accordance with the terms of the Bank Financing, you may elect, at or price to the Merger, to increase the Revolving Credit Facility by up to $100 million provided that the Term Loan Facility is reduced by an equal amount.

        In connection with the Transaction, you have engaged one or more investment banks satisfactory to the Lenders (the "Take Out Banks") to sell or place senior secured debt securities (the "Debt Securities").

        You have requested that Deutsche Bank AG Cayman Islands Branch ("DB Cayman"), Bear Stearns Corporate Lending Inc. ("BSCL") and JPMorgan Chase Bank, N.A. ("JPMCB" and together with DB Cayman and BSCL, collectively, the "Lenders") commit to provide funds in the aggregate amount of up to $325 million in the form of a senior secured bridge loan to be made available as described in Section 1 hereof (the "Bridge Loan").

        Bridge Loan. Subject to the terms and conditions hereof and in the Summary Term Sheet attached hereto as Exhibit A (the "Term Sheet" and together with this letter, collectively, the "Bridge Commitment Letter"), (a) DB Cayman is pleased to confirm its several and not joint commitment to provide 50% of the Bridge Loan on the Closing Date, (b) BSCL is pleased to confirm its several and not joint commitment to provide 35% of the Bridge Loan on the Closing Date and (c) JPMCB is pleased to confirm its several and not joint commitment to provide 15% of the Bridge Loan on the Closing Date. The proceeds of the Bridge Loan shall be used solely to finance the Tender Offer, the Refinancing and to pay fees and expenses incurred in connection therewith. The principal terms of the Bridge Loan are summarized in the Term Sheet.

        DB Cayman and BSCL are pleased to confirm that they, or one of their respective affiliates, will act as a Joint Lead Arrangers and Joint Book Running Managers for the Bridge Loan. JPMCB is pleased to confirm that it, or one of its affiliates, will act as a Joint Book Running Manager for the Bridge Loan. It being understood and agreed that the DB Cayman name or its affiliate's name shall appear to the left of BSCL or its affiliates and that the BSCL name or its affiliates name shall appear immediately above or immediately to the left of JPMCB on the offering documents.

        Unless the Lenders' commitments hereunder shall have been terminated pursuant to Section 7, the Lenders shall have the exclusive right to provide the Bridge Loan or other bridge or interim financing required in connection with the Transaction.

        You represent, warrant and covenant that (i) no written information, other than business and financial projections, budgets, pro forma data and forecasts, that has been or is hereafter furnished by you or on your behalf to the Lenders connection with Transaction and (ii) no other information given to the Lenders and supplied or approved by you or on your behalf (such written information and other information being referred to herein collectively as the "Information") taken as a whole contained (or, in the case of Information furnished after the date hereof, will contain), as of the time it was (or hereafter is) furnished, any material misstatement of fact or omitted (or will omit) as of such time to state any material fact necessary to make the statements therein taken as a whole not misleading, in the light of the circumstances under which they were (or hereafter are) made; provided that, with respect to Elk and its subsidiaries, the foregoing representation is limited to your best knowledge. With respect to business and financial projections, budgets, pro forma data and forecasts, if any (collectively, the "Projections"), that have been or will be prepared by you or on your behalf and has been or is hereafter furnished by you or on your behalf to the Lenders in connection with Transaction, no representation, warranty or covenant is made other than that the Projections have been (and, in the case of Projections furnished after the date hereof, will be) prepared in good faith based on assumptions believed to be reasonable at the time of preparation thereof (it being understood that such Projections are subject to significant uncertainties and contingencies, many of which are beyond the Company's control, and that no assurance can be given that the Projections will be realized). You agree to supplement the Information and the Projections from time to time until the date of the initial borrowing under the Senior Secured Financing, as appropriate, so that the representations and warranties in the preceding sentence remain correct. In arranging and syndicating the Bridge Loans, the Lenders will be using and relying on the Information and the Projections.

2



        Financing Documentation. The making of the Bridge Loan will be governed by definitive loan or note purchase and related agreements and other relevant documentation (collectively, the "Financing Documentation") in form and substance reasonably satisfactory to the Lenders and to you. The Financing Documentation shall be prepared by Shearman & Sterling LLP, special counsel to the Lenders and shall contain such covenants, terms and conditions consistent with this Bridge Commitment Letter.

        Conditions. The obligation of each Lender under Section 1 of this Bridge Commitment Letter to provide its portion of the Bridge Loan is subject to fulfillment of the conditions set forth in the commitment letter (including the term sheets attached thereto) relating to the Bank Financing of even date herewith for which Deutsche Bank Securities Inc. ("DBSI"), Bear, Stearns & Co. Inc. ("Bear Stearns") and J.P. Morgan Securities Inc. ("JPMorgan") and/or their respective designated affiliates are acting as a lead arranger (provided that the Lenders shall (separately from the agent(s) in respect of the Bank Financing) have the right to confirm compliance with, and/or to waive compliance with, all such conditions precedent) and the following additional conditions:

            Financing Documentation. BMCA, the Purchaser and BMCA Acquisition Inc. and the Lenders shall have entered into the Financing Documentation relating to the Bridge Loan and the transactions contemplated thereby incorporating the terms and conditions outlined in this Bridge Commitment Letter.

            Bank Financing. BMCA, the Purchaser and BMCA Acquisition Inc. shall have obtained the Bank Financing (collectively with all documents and instruments related thereto or delivered in connection therewith, the "Bank Documents"). The Bank Documents shall be in full force and effect and the parties thereto shall be in compliance with all material agreements thereunder.

            Take Out Banks. You shall have engaged the Take Out Banks to publicly offer or privately place the Debt Securities, the proceeds of which will be used to fund either the Tender Offer and the Refinancing or to prepay in whole or in part the Bridge Loan. You shall have prepared offering memoranda relating to the issuance of the Debt Securities (which offering memoranda shall contain audited, unaudited and pro forma financial statements meeting the requirements (except with respect to Rule 3-10) of Regulation S X under the Securities Act of 1933, as amended, of you and Elk (provided that with respect to Elk and its subsidiaries, such pro forma information shall be based on the publicly available information of Elk and its subsidiaries), as applicable, for the periods required of a registrant on Form S 1) and the Take Out Banks shall have been afforded the opportunity to market such Debt Securities pursuant to such offering memoranda. You shall have used your commercial reasonable efforts to assist the Take Out Banks in marketing the Debt Securities, including, without limitation, having prepared the offering memorandum relating thereto, having made your senior management and other appropriate representatives available (at mutually agreeable times) to participate in meetings with prospective investors and having provided such information and assistance as the Take Out Banks shall have reasonably requested during the course of such marketing process.

        Indemnification and Contribution. You agree to indemnify each Lender, each entity to which such Lender syndicates or assigns any portion of its commitment hereunder pursuant to Section 8 hereof and each of their respective affiliates and their respective officers, directors, employees, agents, representatives and control persons to the extent set forth in Annex I hereto, which annex is incorporated by reference herein and constitutes a part hereof.

        Expenses. In addition to any fees that may be payable to the Lenders hereunder and regardless of whether any of the transactions contemplated by this Bridge Commitment Letter are consummated, if this Bridge Commitment Letter is terminated, the Bridge Loan is made available or the Financing Documentation is executed and delivered, you hereby agree to reimburse the Lenders for all reasonable fees and disbursements of legal counsel, including but not limited to the reasonable fees and disbursements of Shearman & Sterling LLP, the Lenders' special counsel, and all of the Lenders' travel

3



and other reasonable out of pocket expenses incurred in connection with the Transaction or otherwise arising out of the Lenders' commitments hereunder.

        Termination. Each Lender's commitment hereunder to provide the Bridge Loan shall terminate, unless expressly agreed to by such Lender in its sole discretion to be extended to another date, on the earlier of (A) June 30, 2007 if no portion of the Bridge Loan has been funded (other than as a result of failure of such Lender to fulfill their respective obligations hereunder), and (B) the date on which BMCA shall have informed such Lender that it has decided not to proceed with the Transaction. No such termination of such commitment shall affect your obligations under Sections 5 and 6 hereof or this Section 7, which shall survive any such termination.

        Assignment; Syndication. This Bridge Commitment Letter shall not be assignable by any party hereto without the prior written consent of the other parties (other than, in the case of either Lender, to an affiliate of such Lender, it being understood that any such affiliate shall be subject to the restrictions set forth in this Section 8); provided, however, that the Lenders shall have the right, in their sole discretion, to syndicate the Bridge Loan and their respective commitments with respect thereto among banks or other financial institutions pursuant to the Financing Documentation or otherwise and to sell, transfer or assign all or any portion of, or interests or participations in, the Bridge Loan and their respective commitments with respect thereto and any notes issued in connection therewith. You agree to use your commercially reasonable efforts, whether prior to or after the Closing Date, to assist the Lenders in syndicating the Bridge Loan or their commitments with respect thereto, including, without limitation, in connection with (x) the preparation of an information package regarding the Transaction, including the Information and the Projections described in Section 1 hereof, and (y) meetings and other communications with prospective lenders, including making your senior management and other appropriate representatives available (at mutually agreeable times) to participate in such meetings.

        Miscellaneous. THIS BRIDGE COMMITMENT LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, AND ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, ACTION, SUIT OR PROCEEDING ARISING OUT OF OR CONTEMPLATED BY THIS COMMITMENT LETTER IS HEREBY WAIVED. YOU HEREBY SUBMIT TO THE NON EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH ANY DISPUTE RELATED TO THIS COMMITMENT LETTER OR ANY MATTERS CONTEMPLATED HEREBY. This Bridge Commitment Letter embodies the entire agreement and understanding between you and the Lenders. The Bridge Commitment supersedes all prior agreements and understandings relating to the subject matter hereof. This Bridge Commitment Letter may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one instrument.

        Each Lender reserves the right to employ the services of its affiliates (including, in the case of DB Cayman, DBSI and, in the case of BSCL, Bear Stearns and, in the case of JPMCB, JPMorgan) in providing services contemplated by this Bridge Commitment Letter and to allocate, in whole or in part, to its affiliates certain fees payable to such Lender in such manner as such Lender and its affiliates may agree in their sole discretion. You acknowledge that (i) each Lender may share with any of its affiliates (including, in the case of DB Cayman, DBSI and, in the case of BSCL, Bear Stearns and, in the case of JPMCB, JPMorgan) and such affiliates may share with such Lender (in each case, subject to any confidentiality agreements applicable thereto), any information related to you or your affiliates, Elk (including information relating to creditworthiness) or the Transaction, (ii) the Lenders and their affiliates may be providing debt financing, equity capital, financial advisory or other services (including financial advisory services to you, Elk and their respective affiliates) to other companies in respect of which you or Elk may have conflicting interests regarding the transactions described herein and otherwise and (iii) this Bridge Commitment Letter is not intended to create a fiduciary relationship among the parties hereto.

[The remainder of this page left intentionally blank]

4


        This Bridge Commitment Letter is furnished for your benefit, and may not be relied upon by any other person or entity. Except as otherwise agreed in writing between us, you agree that this Bridge Commitment Letter is for your confidential use only and that neither its existence nor the terms hereof will be disclosed by you to any person other than your officers, directors, employees, accountants, attorneys and other advisors, and then only on a "need to know" basis in connection with the transactions contemplated hereby and on a confidential basis. Notwithstanding the foregoing, following your acceptance of the provisions hereof and your return of an executed counterpart of this Bridge Commitment Letter to us as provided below, (i) you shall be permitted to furnish a copy hereof to Elk and its advisors in connection with the proposed Acquisition, (ii) you may make public disclosure of the existence and amount of the commitments hereunder and of the identity of the Lenders, (iii) you may file a copy of this Bridge Commitment Letter in any public record in which it is required by law to be filed and (iv) you may make such other public disclosure of the terms and conditions hereof as, and to the extent, you believe in good faith, after consulting with counsel, is required by law or in connection with complying with a court order. Except as otherwise required by law or unless the Lenders have otherwise consented, you are not authorized prior to your acceptance of this Bridge Commitment Letter as provided below to show or circulate this Bridge Commitment Letter to any other person or entity (other than your legal or financial advisors in connection with your evaluation hereof).

        If you are in agreement with the foregoing, please sign and return to the Lenders the enclosed copy of this Bridge Commitment Letter no later than 5:00 p.m., New York time, on January 31, 2007, whereupon the undertakings of the parties shall become effective to the extent and in the manner provided hereby. This offer shall terminate if not so accepted by you on or prior to that time.

    Very truly yours,

 

 

DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH

 

 

By:

/s/  
ALBERT FISCHETTI      
Name: Albert Fischetti
Title: Director

 

 

By:

/s/  
STEPHEN CAYER      
Name: Stephen Cayer
Title: Director

5


    BEAR STEARNS CORPORATE LENDING INC.

 

 

By:

/s/  
LAWRENCE B. ALLETTO      
Name: Lawrence B. Alletto
Title: Vice President

6


    JPMORGAN CHASE BANK, N.A.

 

 

By:

/s/  
TERI STREUSAND      
Name: Teri Streusand
Title: Vice President

7


Accepted and Agreed to as of the date first above written:

BUILDING MATERIALS CORPORATION OF AMERICA        

By:

 

/s/  
JOHN M. MAITNER      
Name: John M. Maitner
Title: Vice President and Treasurer

 

 

 

 

BMCA ACQUISITION INC.

 

 

 

 

By:

 

/s/  
JOHN M. MAITNER      
Name: John M. Maitner
Title: Vice President and Treasurer

 

 

 

 

BMCA ACQUISITION SUB INC.

 

 

 

 

By:

 

/s/  
JOHN M. MAITNER      
Name: John M. Maitner
Title: Vice President and Treasurer

 

 

 

 

8


EXHIBIT A


Bridge Loan and Term Loan Facility
Summary Term Sheet
b

Borrower:   Building Materials Corporation of America ("BMCA"), BMCA Acquisition Inc. and BMCA Acquisition Sub Inc. (collectively, the "Borrower").

Guarantors:

 

All obligations under the Bridge Loan shall be unconditionally guaranteed on a senior basis by each of BMCA's subsidiaries that guarantee or are borrowers under the Bank Financing (collectively, the "Guarantors").

Lenders:

 

Deutsche Bank AG Cayman Islands Branch, Bear Stearns Corporate Lending Inc. and JPMorgan Chase Bank, N.A.

Administrative Agent:

 

Deutsche Bank AG Cayman Islands Branch (or a designee thereof)

Amount:

 

$325 million senior secured bridge loan (the "Bridge Loan").

Maturity:

 

Any outstanding amount under the Bridge Loan will be required to be repaid in full on the earlier of (a) one year following the initial funding date of the Bridge Loan and (b) the closing date of any permanent financing;
provided, however, that if the Borrower has failed to raise permanent financing before the date set forth in (a) above, the Bridge Loan shall be converted, subject to the conditions outlined under "Conditions to Conversion of the Bridge Loan", to a senior term loan facility (the "Term Loan") with a maturity of eight years after the Closing Date; provided, further, however, that the Borrower shall pay to the Lenders on the Conversion Date (as defined below), a conversion cash fee equal to 1.75% of the principal amount of the Term Loan then outstanding (the "Conversion Fee"), subject to the Conversion Fee Rebate (as defined below).

b
Capitalized terms used herein and not defined herein shall have the meanings provided in the bridge commitment letter to which this summary term sheet is attached.

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The Conversion Fee Rebate shall mean the obligation of the Lenders to rebate the Applicable Percentage of the Conversion Fee to the extent the Term Loan is repaid in full with the proceeds of Debt Securities within the time frames set forth below after the repayment thereof (it being agreed that if the Bridge Loan is partially repaid, such rebates will be reduced pro rata to the portion of the Term Loan so repaid):

 

 

Number of Days


 

Applicable
Percentage

    0-90   75%
    91-150   50%
    151-210   25%
    Thereafter   0%

Commitments, Funding and Other Fees:

 

(i) a cash fee of 0.50% of the total amount committed shall be earned by the Lenders, to be allocated pro rata between the Lenders based on their respective commitments, upon execution of the Bridge Commitment Letter and be due and payable upon the Closing Date (it being understood that no fee is payable under this clause (i) if the Closing Date does not occur); and (ii) on the date of funding of the Bridge Loan (the "Funding Date"), the Borrower shall pay a cash fee (the "Funding Fee") to the Lenders, to be allocated pro rata between the Lenders based on their respective commitments, equal to 1.25% of the aggregate principal amount of the Bridge Loan funded on the Funding Date, subject to the Funding Fee Rebate (as defined below).

 

 

The Funding Fee Rebate shall mean the obligation of the Lenders to rebate the Applicable Percentage of the Funding Fee to the extent the Bridge Loan is repaid in full with the proceeds of Debt Securities within the time frames set forth below after the repayment thereof (it being agreed that if the Bridge Loan is partially repaid, such rebates will be reduced pro rata to the portion of the Bridge Loan so repaid):

2



 

 

Number of Days


 

Applicable
Percentage

    0-30   100%
    31-90   75%
    91-150   50%
    151-210   25%
    Thereafter   0%

Use of Proceeds:

 

To fund in part the Tender Offer and the Refinancing and to pay related fees and expenses.

Interest Rate:

 

The Bridge Loan and the Term Loan, as applicable, shall bear interest, reset monthly, at the rate of the three month LIBOR plus 4.25% per annum (the "Interest Rate") and such spread (the "Spread") over LIBOR shall automatically increase by 0.5% on the three (3) month anniversary of the Closing Date and for each period of three months (or portion thereof) thereafter that the Bridge Loan or the Term Loan, as the case may be, is outstanding;
provided, however, that the interest rate determined in accordance with the foregoing shall not exceed 11.25% per annum (the "Fixed Rate") at any time. At any time on or after the date the Borrower converts the Bridge Loan to the Term Loan (the "Conversion Date"), the Term Loan shall initially bear interest rate per annum equal to the interest rate per annum then in effect with respect to the Bridge Loan.

 

 

Interest on the Bridge Loan and the Term Loan shall be payable on a quarterly basis; provided, however, that at such time as the Term Loan bears interest at the Fixed Rate, interest shall be payable on a semi annual basis.
     

3



Security:

 

All amounts owing in respect of the Bridge Loan and the Term Loan will be secured by a perfected second priority security interest (subject to permitted liens) in all of the assets and property which constitute collateral for the Term Loan Facility and a perfected third priority security interest (subject to permitted liens) in all of the assets and property which constitute collateral for the Revolving Credit Facility. To the extent applicable, the liens securing the Bridge Loan and the Term Loan will be junior and subordinate to the liens securing the Revolving Credit Facility, the Term Loan Facility and BMCA's 7.75% Notes due 2014 (the "2014 Notes") and BMCA's untendered 8% Notes due 2007 and 2008. The priority of the security interests in the collateral and related creditors' rights will be set forth in an intercreditor agreement in form and substance satisfactory to the Borrower, the Administrative Agent under the Revolving Credit Facility, the Administrative Agent under the Term Loan Facility, the Lenders and the trustee under the indenture governing the 2014 Notes (the "2014 Indenture"). The intercreditor agreement will contain, among other things, customary agreements between the holders of the obligations under the Revolving Credit Facility, the Term Loan Facility, the 2014 Notes and the Lenders with respect to (i) the subordination of the liens securing the Bridge Loan, the Term Loan, (ii) the respective rights of the holders of obligations under the Revolving Credit Facility, the Term Loan Facility and the 2014 Notes to control the enforcement of remedies with respect to collateral, subject to a standstill period as may be mutually agreed, and to control the release of collateral, (iii) the agreement of the Lenders to hold in trust and turnover to the holders of the obligations under the Revolving Credit Facility, the Term Loan Facility and the 2014 Notes proceeds received from collateral and (iv) the agreement of the Lenders not to oppose certain uses of cash collateral or DIP financings unless the holders of obligations under the Revolving Credit Facility and under the Term Loan Facility have opposed such uses of cash collateral or DIP financings.

Ranking:

 

The obligations of the Borrower and the Guarantors under the Bridge Loan will be senior obligations of the Borrower and the Guarantors and will rank (i) equal in right of payment to all senior indebtedness of the Borrower or such Guarantor, as the case may be, and (ii) senior to any subordinated indebtedness of the Borrower or such Guarantor, as the case may be.
     

4



Optional Prepayment:

 

The Borrower may prepay the Bridge Loan or the Term Loan, in whole or in part, at any time at a redemption price equal to 100% of the principal amount thereof plus accrued interest thereon;
provided, however, that to the extent the Bridge Loan is refinanced other than with the proceeds of Debt Securities, the Lenders shall be entitled to a redemption fee equal to 1.75% of the principal amount of the Bridge Loan so refinanced; provided, further, that at such time as the Term Loan bears interest at the Fixed Rate, the Term Loan shall be subject to redemption restrictions and premiums typical for high yield debt securities. No such optional prepayment shall be made without the consent of the Lenders, unless all amounts owing are paid in full.

Mandatory Prepayment:

 

Net proceeds of sales of debt securities or equity securities, in a public offering or private placement by the Borrower or any of its subsidiaries, and the net proceeds of asset sales shall be used to prepay the Bridge Loan plus accrued interest and any other amount payable thereunder to the full extent of the net proceeds so received to the extent such net proceeds are not required to retire the Bank Financing or any replacement or refinancing thereof. The Borrower will be required to make an offer to purchase all notes outstanding under the Bridge Loan or the Term Loan, as the case may be, upon the occurrence of a Change of Control (to be defined) in a manner reasonably acceptable to the Lenders and the Borrower.

Participation/Assignment or Syndication:

 

The Lenders may participate out or sell or assign, or syndicate to other lenders, the Bridge Loan or the Term Loan, in whole or in part, at any time, subject to compliance with applicable securities laws.
     

5



Conditions to Conversion of the Bridge Loan:

 

One year after the Funding Date of any portion of the Bridge Loan, unless (A) the Borrower or any significant subsidiary thereof is subject to a bankruptcy or other insolvency proceeding, (B) there exists a payment default (whether or not matured) with respect to the Bridge Loan or the Conversion Fee or (C) there exists a default in the payment when due at final maturity of any indebtedness (excluding the indebtedness under the Bridge Loan) of the Borrower or any of its subsidiaries in excess of an amount as may be mutually agreed upon for any such default or all such defaults, or the maturity of such indebtedness shall have been accelerated, the Bridge Loan shall convert into the Term Loan;
provided, however, that if an event described in clause (B) or (C) is continuing at the scheduled Conversion Date but the applicable grace period, if any, set forth in the events of default provision of the Bridge Loan has not expired, the Conversion Date shall be deferred until the earlier to occur of (i) the cure of such event or (ii) the expiration of any applicable grace period.

Debt Security Exchange:

 

The Lenders may at any time after the Conversion Date require that the Borrower exchange the Term Loan for long term notes which shall bear interest at the Fixed Rate, determined at such time, shall not be prepayable (subject to customary provisions relating to equity claw-back of up to 35%) for three years from the Conversion Date and shall have such other similar terms and conditions as contained in the 2014 Indenture (with such additional carve-outs, exceptions and increased baskets as may be mutually agreed) and shall provide customary registration rights, including, without limitation, a registered exchange offer or, if not permitted by applicable law to effect an exchange offer, demand registrations.

Covenants:

 

The Financing Documentation are expected to contain substantially the same affirmative and negative covenants as those in the 2014 Indenture (with carve-outs as provided in such indenture and with such other carve outs, exceptions and increased baskets as may be mutually agreed). Further, during the term of the Bridge Loan, it is expected that the covenants will be more restrictive than the covenants applicable to the Term Loan and will include additional prohibitive covenants relating to asset sales, certain acquisitions, certain debt incurrences and certain other corporate transactions as are customary for such financings.

Representations and Warranties:

 

Substantially the same as provided in the Term Loan Facility.

Conditions Precedent:

 

As set forth in Section 3 of the Bridge Commitment Letter.
     

6



Events of Default:

 

Substantially the same as provided in the 2014 Indenture, subject to, in certain cases, notice and grace provisions as provided in the 2014 Indenture and additional notice and grace provisions as may be mutually agreed.

Governing Law and Forum:

 

The State of New York.

Indemnification and Expense Reimbursement:

 

Customary for transactions of this type.

7


Annex I

        In connection with the Bridge Commitment Letter to which this Annex I is attached (the "Agreement"):

        You hereby agree to indemnify and hold harmless each Lender and each entity to which such Lender syndicates or assigns any portion of its commitment under the Agreement pursuant to Section 8 of the Agreement and their respective affiliates and their respective directors, officers, partners, employees, agents, representatives and control persons (collectively, the "Indemnified Persons") from and against any losses, claims, damages, liabilities or expenses incurred by them (including reasonable fees and disbursements of counsel) which (i) are related to or arise out of (A) actions taken or omitted to be taken (including any untrue statements made or any statements omitted to be made) by you or (B) actions taken or omitted to be taken by an Indemnified Person with your consent or in conformity with your actions or omissions or (ii) are otherwise related to or arise out of or in connection with, in each case, the proposed transactions giving rise to or contemplated by the Agreement, including modifications or future additions to the Agreement, or execution of letter agreements or other related activities, and to promptly reimburse each Lender and any other Indemnified Person for all expenses (including reasonable fees and disbursements of counsel) as incurred by such Lender or any such Indemnified Person in connection with investigating, preparing or defending any such action or claim, whether or not in connection with pending or threatened litigation in which such Lender or any other Indemnified Person is a party. You will not, however, be responsible for any losses, claims, damages, liabilities or expenses of any Indemnified Person pursuant to clause (ii) of the preceding sentence to the extent the same resulted from the gross negligence, bad faith or willful misconduct of such Indemnified Person (as determined by a proceeding in a court of competent jurisdiction). You also agree that if any indemnification sought by an Indemnified Person pursuant to the Agreement is unavailable or insufficient, for any reason, to hold harmless the Indemnified Persons in respect of any losses, claims, damages or liabilities (or actions in respect thereof), then (whether or not such Lender is the Indemnified Person) you and such Lender, in order to provide for just and equitable contribution, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, liabilities, damages and expenses (or actions in respect thereof) in such proportion as is appropriate to reflect (i) the relative benefits received by you on the one hand and such Lender and the Indemnified Person on the other hand from the actual or proposed transactions giving rise to or contemplated by the Agreement or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, not only such relative benefits but also the relative fault of you on the one hand and such Lender and the Indemnified Person on the other, in connection with the statements or omissions or alleged statements or omissions that resulted in such losses, claims, damages, liabilities or expenses (or actions in respect thereof), as well as any other relevant equitable considerations; provided that in any event the aggregate contribution of such Lender and the other Indemnified Persons to all losses, claims, damages, liabilities and expenses with respect to which contributions are avail able hereunder will not exceed the amount of fees actually received by such Lender from you pursuant to the proposed transactions giving rise to the Agreement. For purposes of determining the relative benefits to you on the one hand, and such Lender on the other, under the proposed transactions giving rise to or contemplated by the Agreement, such benefits shall be deemed to be in the same proportion as (i) the total value paid or proposed to be paid by you pursuant to the transactions, whether or not consummated, for which such Lender is providing services as provided in the Agreement bears to (ii) the fees paid or proposed to be paid by you or on your behalf to such Lender in connection with the proposed transactions giving rise to or contemplated by the Agreement. The relative fault of the parties shall be determined by reference to, among other things, whether the actions taken or omitted to be taken in connection with the proposed transactions contemplated by the Agreement (including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact) relates to information supplied by you on the one hand, or such Lender on the other, the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such

8



action, statement or omission or alleged statement or omission, and any other equitable considerations appropriate in the circumstances. No person found liable for a fraudulent misrepresentation shall be entitled to contribution from any person who is not also found liable for such fraudulent misrepresentation; Your indemnity, reimbursement and contribution obligations under this agreement shall be in addition to any rights that the Lenders or any other Indemnified Person may have at common law or otherwise.

        If any action, suit, proceeding or investigation is commenced, as to which an Indemnified Person proposes to demand indemnification, it shall notify you with reasonable promptness; provided, however, that any failure by such Indemnified Person to notify you shall not relieve you from your obligations hereunder (except to the extent that you are materially prejudiced by such failure to promptly notify).

        No Indemnified Person shall be responsible or liable to you or any other person for consequential, special or punitive damages which may be alleged as a result of the Agreement or the financing contemplated thereby. You hereby consent to personal jurisdiction and service and venue in any court in which any claim which is subject to this agreement is brought against either Lender or any other Indemnified Person. This agreement may not be amended or modified except in writing. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, ACTION, SUIT OR PROCEEDING ARISING OUT OF OR CONTEMPLATED BY THIS AGREEMENT IS HEREBY WAIVED. YOU HEREBY SUBMIT TO THE NON EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH ANY DISPUTE RELATED TO THIS AGREEMENT OR ANY MATTERS CONTEMPLATED HEREBY.

9




QuickLinks

Bridge Loan and Term Loan Facility Summary Term Sheet b
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-----END PRIVACY-ENHANCED MESSAGE-----