EXECUTION COPY
BUILDING MATERIALS CORPORATION OF AMERICA
$155,000,000
8% Senior Notes Due 2008
REGISTRATION RIGHTS AGREEMENT
December 3, 1998
Bear, Xxxxxxx & Co. Inc.
Chase Securities Inc.
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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 November 24, 1998 (the
"Purchase Agreement"), $155,000,000 aggregate principal amount of its 8% Senior
Notes due 2008 (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 3, 1998, 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 90 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 (other than a
registration statement on Form S-8), 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 150
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 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 "Private Exchange") for
the Notes held by such Initial Purchaser, a like principal amount of debt
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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
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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:
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(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
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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)
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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
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.
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(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
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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 Xxxxxx & Xxxxxxx, 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 other wise, 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, in
light of the circumstances under which they were made, 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
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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
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"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, in light of the circumstances under
which they were made, 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).
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(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
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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
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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) 90 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 (other than a registration
statement on Form S-8), 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
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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, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
with a copy to:
Xxxxxx & Xxxxxxx
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000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, 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
0000 Xxxx Xxxx
Xxxxx, Xxx Xxxxxx 00000
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.
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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, XXXXXXX & CO. INC.
By:
-----------------------------
Name:
Title:
CHASE SECURITIES INC.
By:
-----------------------------
Name:
Title:
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