8% Senior Notes due 2007
--------------------------------------------------------------------------------
FIRST SUPPLEMENTAL INDENTURE
dated as of January 1, 1999
to
INDENTURE
dated as of October 20, 1997
among
--------------------------------------------------------------------------------
BUILDING MATERIALS CORPORATION OF AMERICA,
as Issuer,
BUILDING MATERIALS MANUFACTURING CORPORATION,
as Co-obligor
and
BUILDING MATERIALS INVESTMENT CORPORATION,
as Guarantor
and
THE BANK OF NEW YORK,
as Trustee
This FIRST SUPPLEMENTAL INDENTURE to the Indenture (as defined below)
(the "First Supplemental Indenture") dated as of January 1, 1999, is made among
BUILDING MATERIALS CORPORATION OF AMERICA, a Delaware corporation (the
"Company"), having its principal office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, BUILDING MATERIALS MANUFACTURING CORPORATION, a Delaware corporation
wholly-owned by the Company (the "Co-obligor"), and BUILDING MATERIALS
INVESTMENT CORPORATION, a Delaware corporation wholly-owned by the Company (the
"Guarantor"), and THE BANK OF NEW YORK, a New York banking corporation, as
trustee (the "Trustee"), and amends the Indenture, dated as of October 20, 1997,
between the Company and the Trustee (as amended from time to time, the
"Indenture").
R E C I T A L S:
A. Pursuant to the Indenture, the Company issued $100,000,000 in
aggregate principal amount at maturity of the Securities (as defined in the
Indenture).
B. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.
C. The Co-obligor has received certain assets from the Company pursuant
to a Reorganization Agreement dated as of December 31, 1998 (the "Reorganization
Agreement"), and as consideration for such assets and for other good and
valuable consideration, the Co- obligor desires to assume the obligations of the
Company under the Indenture and the Securities (without releasing the Company
from such obligations) and, as a result, become a co-obligor of such
obligations.
D. Investment Co. has received certain assets from the Company pursuant
to the Reorganization Agreement, and as consideration for such assets and for
other good and valuable consideration, the Guarantor desires to provide for its
guarantee of the obligations of the Company and the Co-Obligor under the
Indenture and the Securities.
E. Section 9.01(5) of the Indenture provides that the Company and the
Trustee may amend or supplement the Indenture without the Consent of Holders to,
among other things, make any change that would provide any additional benefit or
rights to the Securityholders or that does not adversely affect the rights of
any Securityholder.
NOW, THEREFORE, it is hereby agreed as follows:
2
ARTICLE 1
SECTION 1.01. Joint and Several Liability. The Co-obligor hereby agrees
to assume all of the obligations of the Company under the Indenture and the
Securities (without releasing the Company from such obligations) and the Company
and the Co-obligor hereby agree that each will be jointly and severally liable
for all of such obligations.
ARTICLE 2
SECTION 2.01. References to Company. Each reference to "the Company" in
the Indenture and the Securities is hereby deemed to also refer to the
Co-obligor and the Co- obligor shall have the same rights, and may exercise the
same powers, as the Company under the Indenture and the Securities.
ARTICLE 3
GUARANTEES
SECTION 3.01. Guarantee. Subject to Section 3.07 and after giving
effect to the transactions contemplated in Articles 1 and 2, the Guarantor
hereby unconditionally and irrevocably guarantees to each Holder (a "Guaranty"),
the following obligations: (a) the full and punctual payment of principal,
premium, if any, and interest on the Securities when due, whether at maturity,
by acceleration, by redemption or otherwise, and all other monetary obligations
of the Company and Co-obligor under the Indenture and the Securities and (b) the
full and punctual performance within applicable grace periods of all other
obligations of the Company and Co-obligor under the Indenture (including,
without limitation, the compensation and other payment obligations to the
Trustee thereunder) and the Securities (all the foregoing being hereinafter
collectively called the "Guaranteed Obligations"). The Guarantor further agrees
that the Guaranteed Obligations may be extended or renewed, in whole or in part,
without notice or further assent from the Guarantor and that the Guarantor will
remain bound under the terms hereof notwithstanding any extension or renewal of
any Guaranteed Obligation.
The Guarantor agrees that its Guarantee herein constitutes a guarantee
of payment, performance and compliance when due (and not a guarantee of
collection) and waives any right to require that any resort be had by any Holder
or the Trustee to any security held for payment of the Guaranteed Obligations.
The obligations of the Guarantor hereunder are independent of the
obligations of any other Guarantor, the Company, any Subsidiary thereof or any
other Person, and, subject to Section 1.05, a separate action or actions may be
brought and prosecuted against the Guarantor whether or not action is brought
against any other Guarantor, the Company, any Subsidiary
3
thereof or any other Person and whether or not any other Guarantor, the Company
or any Subsidiary thereof be joined in any such action or actions. Any payment
by the Company or any Subsidiary thereof or other circumstance which operates to
toll any statute of limitations as to the Company or any such Subsidiary shall
operate to toll the statute of limitations as to the Guarantor.
Notwithstanding anything to the contrary contained herein, at law or
otherwise, the obligations of each of the Guarantor and the Co-obligor hereunder
and the rights of the Trustee and each Holder hereunder shall be construed as
equal and pari passu to the obligations of each of the Guarantor and the
Co-obligor under that certain Subsidiary Guaranty, dated as of August 29, 1997,
among the guarantors party thereto and The Bank of New York, as Administrative
Agent (as amended, supplemented or otherwise modified from time to time, the
"Subsidiary Guaranty") and the rights of The Bank of New York, as Administrative
agent, and the Lenders under the Subsidiary Guaranty.
SECTION 3.02 Unconditional Obligations. This Guaranty shall not be
discharged except by complete performance of the Guaranteed Obligations as
contemplated in the Indenture and the Securities. The obligations of the
Guarantor hereunder shall not be affected by (a) the failure of any Holder or
the Trustee to assert any claim or demand or to enforce any right or remedy
against the Company or the Co-obligor or any other Person under the Indenture,
the Securities or any other agreement or otherwise; (b) any extension or renewal
of any agreement referred to in clause (a) of this paragraph; (c) any
rescission, waiver, amendment or modification of any of the terms or provisions
of the Indenture, the Securities or any other agreement; (d) the release of any
security held by any Holder or the Trustee for the Guaranteed Obligations or any
of them; (e) the failure of any Holder or Trustee to exercise any right or
remedy against any other Guarantor of the Guaranteed Obligations or any other
Person; or (f) except as provided in Section 3.08 of this First Supplemental
Indenture, any change in the ownership of such Guarantor. The Guarantor hereby
waives notice of acceptance of this Guaranty and notice of any liability to
which it may apply, and waives promptness, diligence, presentment, demand of
payment, protest, notice of dishonor or any right to require a proceeding or the
taking of other action by the Trustee or any Holder against, and any other
notice to, any other Guarantor, the Company or the Co-obligor.
SECTION 3.03 Continuing Guaranty. This Guaranty is a continuing one and
all liabilities to which it applies or may apply under the terms hereof shall be
conclusively presumed to have been created in reliance hereon. No failure or
delay on the part of any Holder in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein expressly specified are cumulative and not
exclusive of any rights or remedies which any Holder would otherwise have. No
notice to or demand on the
4
Guarantor in any case shall entitle the Guarantor to any other further notice or
demand in similar or other circumstances or constitute a waiver of the rights of
any Holder to any other or further action to any circumstances without notice or
demand. It is not necessary for any Holder to inquire into the capacity or
powers of the Company or any Subsidiary thereof or the officers, directors,
partners or agents acting or purporting to act on its behalf, and any
indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
SECTION 3.04 Subrogation; Acceleration. The Guarantor agrees that it
shall not be entitled to any right of subrogation in respect of any Guaranteed
Obligations until payment in full of all Guaranteed Obligations. The Guarantor
further agrees that, as between it, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may
be accelerated as provided in Article VI of the Indenture for the purposes of
such Guarantor's Guarantee herein, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Guaranteed
Obligations, and (y) in the event of any declaration of acceleration of such
obligations as provided in Article VI of the Indenture, such Guaranteed
Obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantor for the purposes hereof.
SECTION 3.05 Enforcement. The Holders agree that this Guaranty may be
enforced only by the action of the Trustee in accordance with the terms of the
Indenture and that no other Holders shall have any right individually to seek to
enforce this Guaranty. The Holders further agree that this Guaranty may not be
enforced against any director, officer, employee, or stockholder of the
Guarantor (except to the extent such stockholder is also a Guarantor hereunder).
SECTION 3.06 Covenants. The Guarantor agrees that its Guaranteed
Obligations hereunder are senior Indebtedness of such Guarantor and such
Guaranteed Obligations shall not be subordinate to any existing or future
obligations of the Guarantor. The Guarantor further covenants and agrees that on
and after the date hereof the Guarantor will comply (as a Recourse Subsidiary of
the Company), and will cause each of its Subsidiaries to comply, with all of the
applicable provisions, covenants and agreements contained in the Indenture, and
will take, or will refrain from taking, as the case may be, all actions that are
necessary to be taken or not taken so that it is not in violation of any
provision, covenant or agreement contained in the Indenture, and so that no
Default or Event of Default, is caused by the actions of the Guarantor or any of
its Subsidiaries.
The Guarantor hereby agrees to pay all reasonable out-of-pocket costs
and expenses of each Holder in connection with the enforcement of this Guaranty
and of the Trustee in connection with any amendment, waiver or consent relating
hereto (including in each case,
5
without limitation, the reasonable fees and disbursements of counsel employed by
each Holder).
SECTION 3.07 Limitation of Liability. The Guarantor hereby confirms
that it is its intention that this Guaranty not constitute a fraudulent transfer
or conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent
Conveyance Act or any similar Federal, state or foreign law for the relief of
debtors. Accordingly, the Guarantor hereby irrevocably agrees that the
Guaranteed Obligations guaranteed by the Guarantor shall be limited to such
amount as will, after giving effect to such maximum amount and all other
(contingent or otherwise) liabilities of the Guarantor that are relevant under
such laws, and after giving effect to any rights to contribution pursuant to any
agreement providing for an equitable contribution among the Guarantor and any
future guarantors, result in the Guaranteed Obligations of the Guarantor in
respect of such maximum amount not constituting a fraudulent transfer or
conveyance.
SECTION 3.08 Miscellaneous. (a) The Trustee accepts the trusts of the
Indenture, as supplemented by this First Supplemental Indenture, and agrees to
perform the same, but only upon the terms and conditions set forth in the
Indenture, as supplemented by this First Supplemental Indenture, to which the
parties hereto and the Holders from time to time of the Securities agree and,
except as expressly set forth in the Indenture, shall incur no liability or
responsibility in respect thereof.
(b) This First Supplemental Indenture shall be binding upon
the Co-obligor, the Guarantor and their successors and assigns and shall inure
to the benefit of the Holders and their successors and assigns.
(c) Neither this Guaranty nor any provision hereof may be
changed, waived, discharged or terminated except with the written consent of the
Guarantor and with the written consent of the holders of a majority in aggregate
principal amount of the Securities then outstanding.
All notices, requests, demands or other communications pursuant hereto
shall be made in accordance with Section 10.02 of the Indenture.
In the event that all of the capital stock of the Guarantor is sold or
otherwise disposed of or liquidated in compliance with the requirements of the
Indenture and the proceeds of such sale, disposition or liquidation are applied,
to the extent applicable, in accordance with the provisions of the Indenture,
the Guarantor shall upon consummation of such sale or other disposition (except
to the extent that such sale or disposition is to the Company or another
Subsidiary thereof) be released from this Guaranty automatically and without
further action and this Guaranty shall, as to the Guarantor, terminate, and have
no further force or effect. At the
6
request of the Company, the Trustee shall execute and deliver an appropriate
instrument evidencing such release.
ARTICLE 4
MISCELLANEOUS
SECTION 4.01. Confirmation. This First Supplemental Indenture and the
Indenture shall henceforth be read together. Except as expressly set forth
herein, the Indenture shall remain unchanged and is in all respects confirmed
and preserved.
SECTION 4.02. Counterparts. This First Supplemental Indenture may be
executed in counterparts, each of which shall be deemed an original, but all of
which together shall constitute one instrument.
SECTION 4.03. Governing Law. This First Supplemental Indenture shall be
governed by the laws of the State of New York without regard to the principles
of conflicts of laws. The Trustee, the Company, the Co-obligor, the Guarantor
and the Holders agree to submit to the jurisdiction of the courts of the State
of New York in any action or proceeding arising out of or relating to the
Indenture or this First Supplemental Indenture.
7
IN WITNESS WHEREOF, the parties hereto caused this First Supplemental
Indenture to be signed and acknowledged by their respective officers thereunto
duly authorized as of the day and year first-above written.
BUILDING MATERIALS CORPORATION OF
AMERICA, as Issuer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Exec. V.P., General Counsel
and Secretary
BUILDING MATERIALS MANUFACTURING
CORPORATION, as Co-obligor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Exec. V.P., General Counsel
and Secretary
BUILDING MATERIALS INVESTMENT
CORPORATION, as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Exec. V.P., General Counsel
and Secretary
THE BANK OF NEW YORK, as Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
8