BUILDING MATERIALS CORPORATION OF AMERICA
$100,000,000
8 5/8% Senior Notes Due 2006
REGISTRATION RIGHTS AGREEMENT
December 9, 1996
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
Chase Securities Inc.
Salomon Brothers 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 December 9, 1996 (the
"Purchase Agreement"), $100,000,000 aggregate principal amount of its 8 5/8%
Senior Notes due 2006 (the "Notes"). The Notes will be issued pursuant to an
indenture (the "Indenture") between the Company and The Bank of New York, as
trustee (the "Trustee") dated December 9, 1996, 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:
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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") or 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 "Registered 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 "Plan 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 Com-
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mission 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 "Private 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;
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(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 Ex-
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change, 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 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 three 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.
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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
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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
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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
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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 and including the date when the Initial Purchasers, the 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 11(a) of
the Securities Act) an earnings statement satisfying the provisions of Section
11(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
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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
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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. 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
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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
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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) less the Initial Purchasers, any Participating Broker-Dealer and
each person, if any, who controls the Initial Purchasers or such 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 the
Initial Purchasers or such 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
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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, em-
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ployee 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
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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 in-
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demnified 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
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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 60 days after the Issue Date or 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 three years (or such
later date if such three-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 (1) 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 three years
(or such later
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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.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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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.
-21-
(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: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
and Treasurer
Confirmed and accepted as of the date first above written:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
CHASE SECURITIES INC.
SALOMON BROTHERS INC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Managing Director
