11 3/4% Senior Deferred Coupon Notes due 2004
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SECOND SUPPLEMENTAL INDENTURE
dated as of January 1, 1999
to
INDENTURE
dated as of June 30, 1994, as previously amended,
among
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BUILDING MATERIALS CORPORATION OF AMERICA,
as Issuer,
BUILDING MATERIALS MANUFACTURING CORPORATION,
and
BUILDING MATERIALS INVESTMENT CORPORATION,
as Guarantors
and
THE BANK OF NEW YORK,
as Trustee
This SECOND SUPPLEMENTAL INDENTURE to the Indenture (as defined below)
(the "Second 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 ("Manufacturing Co."), and BUILDING MATERIALS
INVESTMENT CORPORATION, a Delaware corporation wholly-owned by the Company
("Investment Co." and together with Manufacturing Co., the "Guarantors"), and
THE BANK OF NEW YORK, a New York banking corporation, as trustee (the
"Trustee"), and amends the Indenture, dated as of June 30, 1994, between the
Company and the Trustee, as previously amended by the First Supplemental
Indenture, dated as of November 30, 1998 (as amended from time to time, the
"Indenture").
R E C I T A L S:
A. Pursuant to the Indenture, the Company issued $310,000,000 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 Company has transferred certain of its Material Assets to the
Guarantors pursuant to a Reorganization Agreement dated as of December 31, 1998.
D. Section 4.17 of the Indenture provides that if the Company transfers
or causes to be transferred, in one or a series of related transactions,
Material Assets to any one or more Subsidiaries of the Company, that the Company
shall cause such transferee Subsidiaries to execute and deliver to the Trustee a
supplemental indenture pursuant to which such transferee Subsidiaries shall
unconditionally guarantee, on a senior basis, all of the Company's obligations
under the Securities.
NOW, THEREFORE, it is hereby agreed as follows:
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ARTICLE 1
GUARANTEES
SECTION 1.01. Guarantee. Subject to Section 1.07, each
Guarantor, jointly and severally, 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 under the Indenture
and the Securities and (b) the full and punctual performance within applicable
grace periods of all other obligations of the Company 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"). Each Guarantor
further agrees that the Guaranteed Obligations may be extended or renewed, in
whole or in part, without notice or further assent from such Guarantor and that
such Guarantor will remain bound under the terms hereof notwithstanding any
extension or renewal of any Guaranteed Obligation.
Each 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 each 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 each Guarantor whether or not action is brought
against any other Guarantor, the Company, any Subsidiary 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 each Guarantor.
Notwithstanding anything to the contrary contained herein, at law or
otherwise, the obligations of each Guarantor hereunder and the rights of the
Trustee and each Holder hereunder shall be construed as equal and pari passu to
the obligations of each such Guarantor 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.
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SECTION 1.02 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 each
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 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 1.08 of this Second Supplemental Indenture, any change in
the ownership of such Guarantor. Each 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 or the Company.
SECTION 1.03 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 any Guarantor in any case shall entitle such 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 1.04 Subrogation; Acceleration. Each 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. Each 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
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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 each Guarantor for the
purposes hereof.
SECTION 1.05 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 any
Guarantor (except to the extent such stockholder is also a Guarantor hereunder).
SECTION 1.06 Covenants. Each 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 such Guarantor. Each Guarantor further covenants and agrees that
on and after the date hereof such 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 such
Guarantor or any of its Subsidiaries.
Each Guarantor hereby jointly and severally 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, without
limitation, the reasonable fees and disbursements of counsel employed by each
Holder).
SECTION 1.07 Limitation of Liability. Each 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, each Guarantor hereby irrevocably agrees that the
Guaranteed Obligations guaranteed by such Guarantor shall be limited to such
amount as will, after giving effect to such maximum amount and all other
(contingent or otherwise) liabilities of such 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 such Guarantor and the
other Guarantors, result in the Guaranteed Obligations of such Guarantor in
respect of such maximum amount not constituting a fraudulent transfer or
conveyance.
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SECTION 1.08 Miscellaneous. (a) The Trustee accepts the trusts of the
Indenture, as supplemented by this Second Supplemental Indenture, and agrees to
perform the same, but only upon the terms and conditions set forth in the
Indenture, as supplemented by this Second 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 Guaranty shall be binding upon each Guarantor and its
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
each Guarantor directly affected thereby 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 one or more Guarantors 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, such 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 each
such Guarantor or Guarantors, terminate, and have no further force or effect. At
the request of the Company, the Trustee shall execute and deliver an appropriate
instrument evidencing such release.
ARTICLE 2
MISCELLANEOUS
SECTION 2.01. Confirmation. This Second 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 2.02. Counterparts. This Second 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 2.03. Governing Law. This Second Supplemental Indenture shall
be governed by the laws of the State of New York without regard to the
principles of conflicts of
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laws. The Trustee, the Company, the Guarantors 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 Second
Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto caused this Second 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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Exec. V.P., General Counsel
and Secretary
BUILDING MATERIALS MANUFACTURING
CORPORATION, as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Exec. V.P., General Counsel
and Secretary
BUILDING MATERIALS INVESTMENT
CORPORATION, as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Exec. V.P., General Counsel
and Secretary
THE BANK OF NEW YORK, as Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
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