EXHIBIT 4.3
BUILDING MATERIALS CORPORATION OF AMERICA
$100,000,000
8% Senior Notes Due 2007
REGISTRATION RIGHTS AGREEMENT
-----------------------------
October 20, 1997
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
BNY Capital Markets, Inc.
Chase Securities Inc.
c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Building Materials Corporation of America, a Delaware
corporation (the "Company"), proposes to issue and sell to you (the "Initial
Purchasers"), upon the terms set forth in a purchase agreement dated October 15,
1997 (the "Purchase Agreement"), $100,000,000 aggregate principal amount of its
8% Senior Notes due 2007 (the "Notes"). The Notes will be issued pursuant to an
indenture (the AIndenture") between the Company and The Bank of New York, as
trustee (the ATrustee@) dated October 20, 1997, substantially in the form
previously furnished to the Initial Purchasers. As an inducement to the Initial
Purchasers, the Company agrees with the Initial Purchasers, for the benefit of
the holders of the Notes (including, without limitation, the Initial Purchasers,
herein referred to as the "Holders@), as follows:
1. Registered Exchange Offer. The Company shall prepare and,
by the earlier of 60 days after the date of original issuance of the Notes (the
"Issue Date@) and the date of filing of a registration statement in respect of
an initial public offering of common stock of the Company, file with the
Securities and Exchange Commission (the "Commission") a registration statement
(the "Exchange Offer Registration Statement") on an appropriate form under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to a
proposed offer (the ARegistered Exchange Offer") to the Holders of the Notes to
issue and deliver to such Holders, in exchange for the Notes, a like principal
amount of debt securities of the Company identical in all material respects to
the Notes (the "Exchange Notes"), except for the transfer restrictions relating
to the Notes. The Company shall use its best efforts to cause such Exchange
Offer Registration Statement to become effective under the Securities Act within
120 days of the Issue Date. Following the declaration of the effectiveness of
the Exchange Offer Registration Statement, the Company shall promptly commence
the Registered Exchange Offer, it being the objective of such Registered
Exchange Offer to enable each Holder of the Notes electing to exchange the Notes
for Exchange Notes and (assuming that such Holder is not an affiliate of the
Company within the meaning of the Securities Act, acquires the Exchange Notes in
the ordinary course of such Holder's business and has no arrangements with any
person to participate in the distribution of the Exchange Notes) to trade such
Exchange Notes from and after their receipt without any limitations or
restrictions under the Securities Act and the securities laws of the several
states of the United States. In connection with such Registered Exchange Offer,
the Company shall take such further action, including, without limitation,
appropriate filings under state securities laws, as may be necessary to realize
the foregoing objective subject to the proviso of Section 3(h).
The Company shall include within the prospectus contained in
the Exchange Offer Registration Statement a section entitled APlan of
Distribution", reasonably acceptable to the Initial Purchasers, which shall
contain a summary statement of the positions taken or policies made by the staff
of the Commission with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of Exchange
Notes received by such broker-dealer in the Registered Exchange Offer (a
"Participating Broker-Dealer"), whether such positions or policies have been
publicly disseminated by the staff of the Commission or such positions or
policies, in the reasonable judgment of the Initial Purchasers, represent the
prevailing views of the staff of the Commission. Such "Plan of Distribution"
section shall also allow the use of the prospectus by all persons subject to the
prospectus delivery requirements of the Securities Act, including Participating
Broker-Dealers, and include a statement describing the means by which
Participating Broker-Dealers may resell the Exchange Notes.
The Company shall use its best efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
prospectus contained therein, in order to permit such prospectus to be lawfully
delivered by all persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such persons must comply with such
requirements in order to resell the Exchange Notes; provided that such period
shall not exceed 180 days (or such longer period if extended pursuant to Section
3(j) below).
If, upon consummation of the Exchange Offer, an Initial
Purchaser holds Notes acquired by it as part of its initial distribution, the
Company upon the request of such Initial Purchaser shall simultaneously with the
delivery of the Exchange Notes pursuant to the Registered Exchange Offer issue
and deliver to such Initial Purchaser, in exchange (the APrivate Exchange@) for
the Notes held by such Initial Purchaser, a like principal amount of debt
securities of the Company identical in all material respects to the Notes (the
"Private Exchange Notes@). The Private Exchange Notes shall bear the same CUSIP
number as the Exchange Notes.
In connection with the Registered Exchange Offer, the Company
shall:
(a) mail to each Holder a copy of the prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than
20 business days after the date notice thereof is mailed to the Holders
(or longer if required by applicable law);
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of
New York;
(d) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last business day
on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all applicable laws.
As soon as practicable after the close of the Registered
Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(i) accept for exchange all the Notes tendered and not validly
withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(ii) deliver to the Trustee for cancellation all the Notes so
accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly
to each Holder of the Notes, Exchange Notes or Private Exchange Notes,
as the case may be, equal in principal amount to the Notes of such
Holder so accepted for exchange.
The Exchange Notes and the Private Exchange Notes may be
issued under (i) the Indenture or (ii) an indenture substantially similar to the
Indenture, which in either event will provide that the Exchange Notes will not
be subject to the transfer restrictions set forth in the Indenture and that the
Exchange Notes, the Private Exchange Notes and the Notes will vote and consent
together on all matters as one class and that none of the Exchange Notes, the
Private Exchange Notes or the Notes will have the right to vote or consent as a
separate class on any matter.
2. Shelf Registration. If, (i) because of any change in law or
in currently prevailing interpretations of the staff of the Commission, the
Company is not permitted to effect a Registered Exchange Offer, as contemplated
by Section 1 hereof, (ii) for any reason the Registered Exchange Offer is not
completed within 180 days of the Issue Date (the "Completion Deadline@), (iii)
the Initial Purchasers so request with respect to the Notes or the Private
Exchange Notes held by them following consummation of the Registered Exchange
Offer or (iv) any Holder is not eligible to participate in the Registered
Exchange Offer or, in the case of any Holder that participates in the Registered
Exchange Offer or the Private Exchange, such Holder does not receive freely
tradeable Exchange Notes on the date of the exchange, the Company shall, at its
cost, take the following actions:
(a) as promptly as reasonably practicable file with the
Commission and thereafter shall use its best efforts to cause to be
declared effective a registration statement (the "Shelf Registration
Statement" and, together with the Exchange Offer Registration
Statement, a "Registration Statement") on an appropriate form under the
Securities Act relating to the offer and sale of the Notes or, if
applicable, the Private Exchange Notes by the Holders thereof from time
to time in accordance with the methods of distribution set forth in the
Shelf Registration Statement and Rule 415 under the Securities Act
(hereafter, the "Shelf Registration").
(b) use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the prospectus
included therein to be lawfully delivered by the Holders of the Notes
or, if applicable, the Private Exchange Notes for a period of two years
(or for such longer period if extended pursuant to Section 3(j) below)
from the Issue Date or such shorter period that will terminate when all
the Notes or, if applicable, the Private Exchange Notes covered by the
Shelf Registration Statement have been sold pursuant thereto; provided,
that the Company shall be deemed not to have used its best efforts to
keep the Shelf Registration Statement effective during the requisite
period if it voluntarily takes any action that would result in Holders
of the Notes or, if applicable, the Private Exchange Notes covered
thereby not being able to offer and sell the Notes or, if applicable,
the Private Exchange Notes during that period, unless such action is
required by applicable law.
(c) Notwithstanding any other provisions of this Agreement to
the contrary, the Company shall cause the Shelf Registration Statement
and the related prospectus and any amendment or supplement thereto, as
of the effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
3. Registration Procedures. In connection with any Shelf
Registration contemplated by Section 2 hereof and, to the extent applicable, any
Registered Exchange Offer contemplated by Section 1 hereof, the following
provisions shall apply:
(a) The Company shall furnish to the Initial Purchasers, prior
to the filing thereof with the Commission, a copy of the Registration
Statement and each amendment thereof and each supplement, if any, to
the prospectus included therein and shall obtain the consent of the
Initial Purchasers to any such filing, which shall not be unreasonably
withheld.
(b) The Company shall give written notice to the Initial
Purchasers, the Holders of the Notes and any Participating
Broker-Dealer from whom the Company has received prior written notice
that it will be a Participating Broker-Dealer in the Registered
Exchange Offer:
(i) when the Registration Statement or any amendment
thereto has been filed with the Commission and when the
Registration Statement or any posteffective amendment thereto
has become effective;
(ii) of any request by the Commission for amendments
or supplements to the Registration Statement or the prospectus
included therein or for additional information, provided that
the request and the contents of the request need only be
disclosed to the Initial Purchasers and one counsel appointed
by and on behalf of the Holders of the Notes as described in
Section 4;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Company or its legal
counsel of any notification with respect to the suspension of
the qualification of the Notes or, if applicable, the Private
Exchange Notes for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the
Company to make changes in the Registration Statement or the
prospectus in order to make the statements therein not
misleading (which notice shall be accompanied by an
instruction to suspend the use of the prospectus until the
requisite changes have been made).
(c) The Company shall use its best efforts to prevent the
issuance or obtain the withdrawal of any order suspending the
effectiveness of the Registration Statement at the earliest possible
time.
(d) The Company shall furnish to each Holder of the Notes or,
if applicable, the Private Exchange Notes included within the coverage
of the Shelf Registration, without charge, at least one copy of the
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits (including those, if any,
incorporated by reference).
(e) The Company shall deliver to the Initial Purchasers and to
any other Holder who so requests, without charge, at least one copy of
the Exchange Offer Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and,
if the Initial Purchasers or any such Holder requests, all exhibits
(including those incorporated by reference).
(f) The Company shall deliver to each Holder of the Notes or,
if applicable, the Private Exchange Notes included within the coverage
of the Shelf Registration, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in the
Shelf Registration Statement and any amendment or supplement thereto as
such person may reasonably request. The Company consents, subject to
the provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders of the
Notes or, if applicable, the Private Exchange Notes in connection with
the offering and sale of the Notes or, if applicable, the Private
Exchange Notes covered by the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration Statement.
(g) The Company shall deliver to the Initial Purchasers, any
Participating Broker-Dealer and such other persons required to deliver
a prospectus following the Registered Exchange Offer, without charge,
as many copies of the final prospectus included in the Exchange Offer
Registration Statement and any amendment or supplement thereto as such
persons may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by the Initial Purchasers, if
necessary, any Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered Exchange
Offer in connection with the offering and sale of the Exchange Notes
covered by the prospectus, or any amendment or supplement thereto,
included in such Exchange Offer Registration Statement.
(h) Prior to any public offering of the Notes or, if
applicable, the Private Exchange Notes, pursuant to the Shelf
Registration, the Company shall register or qualify or cooperate with
the Holders of the Notes or, if applicable, the Private Exchange Notes,
included therein and their respective counsel in connection with the
registration or qualification of the Notes or, if applicable, the
Private Exchange Notes, for offer and sale under the securities or blue
sky laws of such jurisdictions as any Holder of the Notes or the
Private Exchange Notes reasonably requests in writing and do any and
all other acts or things necessary or advisable to enable the offer and
sale in such jurisdictions of the Notes covered by the Shelf
Registration; provided that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it is not
then so qualified or (ii) take any action which would subject it to
general service of process or to taxation in any jurisdiction where it
is not then so subject.
(i) The Company shall cooperate with the Holders of the Notes
or, if applicable, the Private Exchange Notes to facilitate the timely
preparation and delivery of certificates representing the Notes or, if
applicable, the Private Exchange Notes to be sold in the Shelf
Registration free of any restrictive legends and in such denominations
and registered in such names as the Holders may request a reasonable
period of time prior to sales of the Notes or, if applicable, the
Private Exchange Notes pursuant to the Shelf Registration.
(j) Upon the occurrence of any event contemplated by Section
3(b)(v) above, the Company shall promptly prepare a post-effective
amendment to the Registration Statement or a supplement to the related
prospectus or file any other required document so that, as thereafter
delivered to Holders of the Notes, the Exchange Notes or, if
applicable, the Private Exchange Notes, as the case may be, the
prospectus will not contain an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. If the Company notifies the Initial Purchasers, the Holders
of the Notes and any known Participating Broker-Dealer in accordance
with Section 3(b)(v) above to suspend the use of the prospectus until
the requisite changes to the prospectus have been made, then the
Initial Purchasers, the Holders of the Notes and any such Participating
Broker-Dealers shall suspend use of such prospectus, and the period of
effectiveness of the Shelf Registration Statement provided for in
Section 2(b) above and the Exchange Offer Registration Statement
provided for in Section 1 above shall each be extended by the number of
days from and including the date of the giving of such notice to
Holders of the Notes and any known Participating Broker-Dealer shall
have received such amended or supplemented prospectus pursuant to this
Section 3(j).
(k) Not later than the effective date of the applicable
Registration Statement, the Company will provide a CUSIP number for the
Notes or Exchange Notes, as the case may be, and provide the applicable
trustee with printed certificates for the Notes or Exchange Notes, as
the case may be, in a form eligible for deposit with The Depository
Trust Company.
(l) The Company will comply with all rules and regulations of
the Commission to the extent and so long as they are applicable to the
Registered Exchange Offer or the Shelf Registration and will make
generally available to its securities holders (or otherwise provide in
accordance with Section ll(a) of the Securities Act) an earnings
statement satisfying the provisions of Section ll(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90
days, if such period is a fiscal year) beginning with the first month
of the Company=s first fiscal quarter commencing after the effective
date of the Shelf Registration, which statement shall cover such
12-month period.
(m) The Company shall cause the Indenture (or an indenture
substantially identical to the Indenture in the case of a Registered
Exchange Offer) to be qualified under the Trust Indenture Act of 1939,
as amended.
(n) The Company may require each Holder of the Notes to be
sold pursuant to the Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of
the Notes as the Company may from time to time reasonably require for
inclusion in the Shelf Registration Statement.
(o) The Company shall enter into such customary agreements
(including if requested an underwriting agreement in customary form)
and take all such other action, if any, as any Holder of the Notes
shall reasonably request in order to facilitate the disposition of the
Notes pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Company shall
(i) make reasonably available for inspection by the Holders of the
Notes, any underwriter participating in any disposition pursuant to the
Shelf Registration Statement and any attorney, accountant or other
agent retained by the Holders of the Notes or any such underwriter all
relevant financial and other records, pertinent corporate documents and
properties of the Company and (ii) cause the Company's officers,
directors and employees to supply all relevant information reasonably
requested by the Holders of the Notes or any such underwriter,
attorney, accountant or agent in connection with the Shelf Registration
Statement; provided that the foregoing inspection and information
gathering shall be coordinated on behalf of the Initial Purchasers by
the Initial Purchasers and on behalf of the other parties, by one
counsel designated by and on behalf of such other parties as described
in Section 4.
(q) In the case of the Registered Exchange Offer, the Company
shall (i) make reasonably available for inspection by the Initial
Purchasers, any known Participating Broker-Dealer and any attorney,
accountant or other agent retained by the Initial Purchasers or such
Participating Broker-Dealer all relevant financial and other records,
pertinent corporate documents and properties of the Company and (ii)
cause the Company's officers, directors and employees to supply all
relevant information reasonably requested by the Initial Purchasers,
such Participating Broker-Dealer or any such attorney, accountant or
agent in connection with the Exchange Offer Registration Statement;
provided that the foregoing inspection and information gathering shall
be coordinated on behalf of the Initial Purchasers by the Initial
Purchasers and on behalf of the other parties, by one counsel
designated by and on behalf of such other parties as described in
Section 4.
(r) In the case of any Shelf Registration, the Company, if
requested by any Holder of the Notes or, if applicable, the Private
Exchange Notes, shall cause its counsel to deliver an opinion relating
to the Notes or, if applicable, the Private Exchange Notes in customary
form, cause its officers to execute and deliver all customary documents
and certificates requested by any underwriters of the Notes or, if
applicable, the Private Exchange Notes and cause its independent public
accountants to provide to the selling Holders of the Notes or, if
applicable, the Private Exchange Notes and any underwriter therefor a
comfort letter in customary form.
(s) In the case of the Registered Exchange Offer, if requested
by the Initial Purchasers or any known Participating Broker-Dealer, the
Company shall cause its outside counsel to deliver to the Initial
Purchasers or such Participating Broker-Dealer a signed opinion in the
form set forth in Section 5(c)(A) of the Purchase Agreement with such
changes as are customary in connection with the preparation of a
Registration Statement and shall cause its independent public
accountants to deliver to the Initial Purchasers or such Participating
Broker-Dealer a comfort letter, in customary form, meeting the
requirements as to the substance thereof as set forth in Section 5(f)
of the Purchase Agreement, with appropriate date changes.
4. Registration Expenses. The Company shall bear all expenses
incurred in connection with the performance of its obligations under Sections 1
through 3 hereof (including the reasonable fees and expenses of ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel to the Initial Purchasers, incurred in connection with the
Registered Exchange Offer) and, in the event of a Shelf Registration, shall bear
or reimburse the Holders of the Notes or, if applicable, the Private Exchange
Notes for the reasonable fees and disbursements of one firm of counsel
designated by the Holders of a majority in principal amount of the Notes and, if
applicable, the Private Exchange Notes to act as counsel for the Holders of the
Notes, and, if applicable, the Private Exchange Notes in connection therewith,
which counsel shall be reasonably satisfactory to the Company.
5. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Holder of the Notes or, if applicable, the Private Exchange
Notes and each person, if any, who controls such Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act and each
director, officer, employee or agent of such Holder and each director, officer,
employee or agent of each such controlling person (each Holder, such controlling
persons and each such director, officer, employee and agent are referred to
collectively as the "Indemnified Parties") from and against any losses, claims,
damages or liabilities, joint or several, or any actions in respect thereof
(including, but not limited to, any losses, claims, damages, liabilities or
actions relating to purchases and sales of the Notes or, if applicable, the
Private Exchange Notes), to which each Indemnified Party may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement thereto,
or arise out of, or are based upon, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse, as incurred, the
Indemnified Parties for any legal or other expenses reasonably incurred by them
in connection with investigating or defending or preparing to defend against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action in respect thereof; provided, however, that the
Company shall not be liable in any such case to the extent that such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of such Holder specifically for inclusion therein; provided, further,
that (A) the Company shall not be obligated to indemnify or hold harmless any
Indemnified Party in respect of any loss, claim, damage, liability or action to
the extent that any such loss, claim, damage, liability or action arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in a preliminary Registration Statement or preliminary
prospectus if the applicable Holder or Initial Purchaser failed to deliver a
copy of a final prospectus or an amended or supplemented Registration Statement
or prospectus that was made available by the Company to such Indemnified Party
prior to the applicable sale to the person or persons asserting the claim which
is the basis of indemnification and such final prospectus or amended or
supplemented Registration Statement or prospectus cured such defect and (B) this
indemnity agreement will be in addition to any liability which the Company may
otherwise have to such Indemnified Party. The Company will not settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action, suit or proceeding in respect of which indemnification may be
sought hereunder (whether or not such Indemnified Party or any person who
controls such Indemnified Party within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act is a party to such claim,
action, suit or proceeding) without the prior written consent of such
Indemnified Party, which consent shall not be unreasonably withheld, unless such
settlement, compromise or consent includes an unconditional release of such
Indemnified Party and each such controlling person from all liability arising
out of such claim, action, suit or proceeding. No Indemnified Party will settle
or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought without the prior written consent of the Company (which consent
will not be unreasonably withheld). The Company shall also indemnify
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution (as described in such
Registration Statement), their officers and directors and each person who
controls such persons (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) to the same extent as provided above with
respect to the indemnification of the Holders of the Notes if requested by such
Holders.
(b) The Company agrees to indemnify and hold harmless each
Initial Purchaser, any Participating Broker-Dealer and each person, if any, who
controls an Initial Purchaser or a Participating Broker-Dealer within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
and each director, officer, employee or agent of an Initial Purchaser or a
Participating Broker-Dealer and each director, officer, employee or agent of
each such controlling person (the Initial Purchasers, any Participating
Broker-Dealer, such controlling persons and each such director, officer,
employee and agent of the Initial Purchasers, such Participating Broker-Dealer
or such controlling person are referred to collectively as the "Exchange Offer
Indemnified Parties") from and against any losses, claims, damages or
liabilities, joint or several, or any actions in respect thereof (including, but
not limited to, any losses, claims, damages, liabilities or actions relating to
purchases and sales of Exchange Notes), to which each Exchange Offer Indemnified
Party may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Exchange Offer Registration Statement or
prospectus contained therein or in any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse, as incurred, the Exchange Offer
Indemnified Parties for any legal or other expenses reasonably incurred by them
in connection with investigating or defending or preparing to defend against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action in respect thereof; provided, however, that the
Company shall not be liable in any such case to the extent that such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in any Exchange
Offer Registration Statement or prospectus contained therein or in any amendment
or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Initial Purchaser
or Participating Broker-Dealer specifically for inclusion therein; provided,
further, that (A) the Company shall not be obligated to indemnify or hold
harmless any Exchange Offer Indemnified Party in respect of any loss, claim,
damage, liability or action to the extent that any such loss, claim, damages,
liability or action arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in a preliminary
Registration Statement or preliminary prospectus if the applicable Initial
Purchaser or Participating Broker-Dealer failed to deliver a copy of a final
prospectus or an amended or supplemented Registration Statement or prospectus
that was made available by the Company to such Exchange Offer Indemnified Party
prior to the applicable sale to the person or persons asserting the claim which
is the basis of indemnification and such final prospectus or amended or
supplemented Registration Statement or prospectus cured such defect and (B) this
indemnity agreement will be in addition to any liability which the Company may
otherwise have to such Exchange Offer Indemnified Party. The Company will not
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought hereunder (whether or not such Exchange Offer Indemnified Party or
any person who controls such Exchange Offer Indemnified Party within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act is a party
to such claim, action, suit or proceeding) without the prior written consent of
such Exchange Offer Indemnified Party, which consent shall not be unreasonably
withheld, unless such settlement, compromise or consent includes an
unconditional release of such Exchange Offer Indemnified Party and each such
controlling person from all liability arising out of such claim, action, suit or
proceeding. No Exchange Offer Indemnified Party will settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action,
suit or proceeding in respect of which indemnification may be sought without the
prior written consent of the Company (which consent will not be unreasonably
withheld).
(c) Each Holder of the Notes or, if applicable, the Private
Exchange Notes, severally and not jointly, will indemnify and hold harmless the
Company, each director, officer, employee or agent of the Company and each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and each director, officer,
employee or agent of such controlling person from and against any losses,
claims, damages or liabilities or any actions in respect thereof, to which the
Company or any such director, officer, employee, agent or controlling person may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement or prospectus or in any amendment or
supplement thereto or in any preliminary prospectus relating to a Shelf
Registration, or arise out of or are based upon the omission or alleged omission
to state therein a material fact necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of such Holder specifically for inclusion therein; and, subject to the
limitation set forth immediately preceding this clause, shall reimburse, as
incurred, such indemnified persons for any legal or other expenses reasonably
incurred by the Company or any such director, officer, employee, agent or
controlling person in connection with the investigating or defending or
preparing to defend against or appearing as a third-party witness in connection
with any loss, claim, damage, liability or action in respect thereof. This
indemnity agreement will be in addition to any liability which such Holder may
otherwise have to the Company or any such directors, officers, employees, agents
or controlling persons.
(d) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 5,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party (i) will not relieve it from any liability
under paragraph (a), (b) or (c) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights or defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a), (b)
or (c) above. In case any such action is brought against any indemnified party,
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be one or more
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnifying party shall not have the right to direct the defense of such action
on behalf of such indemnified party or parties and such indemnified party or
parties shall have the right to select separate counsel to defend such action on
behalf of such indemnified party or parties. After notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof
and approval by such indemnified party of counsel appointed to defend such
action, which approval shall not be unreasonably withheld, the indemnifying
party will not be liable to such indemnified party under this Section 5 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances) or (ii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party.
(e) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 5 is unavailable or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) (other than by reason of
exceptions provided in such Section 5), each indemnifying party, in order to
provide for just and equitable contribution, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof), in such proportion as is
appropriate to reflect (i) the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from the
offering of the Notes 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 the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions or
alleged statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof). The relative fault of the parties
shall be determined by reference to, among other things, whether the 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 the Company on the
one hand or such Holder or such other indemnified person, as the case may be, on
the other, the parties= relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances. The Company and each
indemnified party agrees that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (e).
Notwithstanding any other provision of this Section 5(e), the Holders of the
Notes or, if applicable, the Private Exchange Notes shall not be required to
contribute any amount in excess of the amount by which the net proceeds received
by such Holders from the sale of the Notes or, if applicable, the Private
Exchange Notes pursuant to a Registration Statement exceeds the amount of
damages which such Holders have otherwise been required to pay in respect of the
same or a similar claim, and no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (e), each director, officer,
employee and agent of any indemnified party and each person, if any, who
controls such indemnified party within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such indemnified party and each director and officer of the
Company, and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Company.
(f) The agreements contained in this Section 5 shall survive
the sale of the Notes, the Exchange Notes or, if applicable, the Private
Exchange Notes pursuant to a Registration Statement and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances.
(a) Additional interest at a rate of 0.5% per annum of the
principal amount of the Notes (the "Additional Interest@) shall be assessed as
follows:
(i) if the Exchange Offer Registration Statement is not filed
with the Commission by the earlier of (x) 60 days after the Issue Date
and (y) the date of filing of a registration statement in respect of an
initial public offering of common stock of the Company, then,
commencing from and including the earlier of such dates, Additional
Interest shall be assessed on the Notes;
(ii) if the Registered Exchange Offer is not completed and a
Shelf Registration is not declared effective by the Commission by the
Completion Deadline, then, commencing on the Completion Deadline,
Additional Interest shall be assessed on the Notes; and
(iii) if (A) the Company has not exchanged Exchange Notes for
all the Notes validly tendered in accordance with the terms of the
Registered Exchange Offer on or prior to 30 business days after the
date on which the Exchange Offer Registration Statement was declared
effective, or (B) if applicable, the Shelf Registration Statement has
been declared effective and it ceases to be effective prior to two
years (or such later date if such two-year period is extended pursuant
to Section 3(j) above or such shorter period as is provided in Section
2(b)) from the Issue Date, then, Additional Interest shall be assessed
on the Notes, commencing on (x) the 31st business day after such
effective date in the case of (A) above, or (y) the day such Shelf
Registration Statement ceases to be effective in the case of (B) above;
provided, however, that (l) upon the filing of the Exchange Offer Registration
Statement or the Completion Deadline in the case of (i) above, (2) upon
completion of the Registered Exchange Offer or the effectiveness of the Shelf
Registration Statement in the case of (ii) above, or (3) upon the exchange of
Exchange Notes for all the Notes validly tendered in accordance with the terms
of the Registered Exchange Offer, or upon the effectiveness of the Shelf
Registration Statement which has ceased to remain effective prior to two years
(or such later date if extended pursuant to Section 3(j) above or such shorter
period as is provided in Section 2(b)) from the date of original issuance of the
Notes in the case of (iii) above, Additional Interest on the Notes as a result
of such clause (i), (ii) or (iii) shall immediately cease to accrue.
(b) Any amount of Additional Interest due pursuant to clauses
(i), (ii) or (iii) of Section 6(a) above will be payable in cash semiannually in
arrears on each Interest Payment Date (as defined in the Notes), commencing with
the first such Interest Payment Date occurring after any such Additional
Interest commences to accrue. The amount of Additional Interest will be
determined by multiplying the Additional Interest by a fraction, the numerator
of which is the number of days such Additional Interest rate was applicable
during such period, determined on the basis of a 360-day year comprised of
twelve 30-day months, and the denominator of which is 360.
(c) If the Company effects the Registered Exchange Offer, the
Company will be entitled to close the Registered Exchange Offer provided that
the Company has accepted all the Notes theretofore validly tendered in
accordance with the terms of the Registered Exchange Offer.
7. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, except by the Company
and the written consent of Holders of a majority in aggregate principal amount
of the Notes, determined in accordance with the terms of the Indenture.
(b) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, first-class
mail, telex, telecopy, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Notes, in accordance with Section
10.02 of the Indenture, with a copy to the Initial Purchasers as
follows:
c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(2) if to the Initial Purchasers, at the addresses
specified in Section 7(b)(1);
(3) if to the Company, at its address as follows:
Building Materials Corporation of America
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged by recipient's
telecopy operator, if telecopied; and on the day delivered, if sent by overnight
air courier guaranteeing next day delivery. All such notices and communications
to the Holders shall be deemed to have been duly given if given as provided in
Section 10.02 of the Indenture.
(c) Successors and Assigns. This Agreement shall be binding
upon the Company and its successors and assigns.
(d) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any provisions relating to conflicts of laws.
(g) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Initial Purchasers and the Company in accordance with its
terms.
Very truly yours,
BUILDING MATERIALS CORPORATION OF AMERICA
By:
---------------------------------
Name:
Title:
Confirmed and accepted as of the date first above written:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By:
----------------------------------------
Name:
Title:
BNY CAPITAL MARKETS, INC.
By:
----------------------------------------
Name:
Title:
CHASE SECURITIES INC.
By:
----------------------------------------
Name:
Title:
