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EXECUTION COPY
BUILDING MATERIALS CORPORATION OF AMERICA
$150,000,000
7 3/4% Senior Notes Due 2005
REGISTRATION RIGHTS AGREEMENT
-----------------------------
July 17, 1998
Bear, Xxxxxxx & Co. Inc.
BNY Capital Markets, 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 July 14,
1998 (the "Purchase Agreement"), $150,000,000 aggregate principal amount of
its 7 3/4% Senior Notes due 2005 (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 July 17, 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 60 days after the date of original issuance of the Notes
(the "Issue Date") and the date of filing of a registration statement in
respect of an initial public offering of common stock of the Company (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
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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 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
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principal amount of debt securities of the Company identical in all material
respects to the Notes (the "Private Exchange Notes"). The Private Exchange Notes
shall bear the same CUSIP number as the Exchange Notes.
In connection with the Registered Exchange Offer, the
Company shall:
(a) mail to each Holder a copy of the prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less
than 20 business days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law);
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City
of New York;
(d) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last business
day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all applicable
laws.
As soon as practicable after the close of the Registered
Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(i) accept for exchange all the Notes tendered and not
validly withdrawn pursuant to the Registered Exchange Offer and the
Private Exchange;
(ii) deliver to the Trustee for cancellation all the Notes
so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly
to each Holder of the Notes, Exchange Notes or Private Exchange
Notes, as the case may be, equal in principal amount to the Notes of
such Holder so accepted for exchange.
The Exchange Notes and the Private Exchange Notes may be
issued under (i) the Indenture or (ii) an indenture substantially similar to
the Indenture, which in either event will provide that the Exchange Notes will
not be subject to the transfer restrictions set forth in the Indenture and
that the Exchange Notes, the Private Exchange Notes and the Notes will vote
and consent together on all matters as one class and that none of the Exchange
Notes, the Private Exchange Notes or the Notes will have the right to vote or
consent as a separate class on any matter.
2. Shelf Registration. If, (i) because of any change in law
or in currently prevailing interpretations of the staff of the Commission, the
Company is not permitted to effect a Registered Exchange Offer, as
contemplated by Section 1 hereof,
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(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
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Exchange Offer contemplated by Section 1 hereof, the following provisions
shall apply:
(a) The Company shall furnish to the Initial Purchasers,
prior to the filing thereof with the Commission, a copy of the
Registration Statement and each amendment thereof and each
supplement, if any, to the prospectus included therein and shall
obtain the consent of the Initial Purchasers to any such filing,
which shall not be unreasonably withheld.
(b) The Company shall give written notice to the Initial
Purchasers, the Holders of the Notes and any Participating
Broker-Dealer from whom the Company has received prior written notice
that it will be a Participating Broker-Dealer in the Registered
Exchange Offer:
(i) when the Registration Statement or any
amendment thereto has been filed with the Commission and
when the Registration Statement or any posteffective
amendment thereto has become effective;
(ii) of any request by the Commission for
amendments or supplements to the Registration Statement or
the prospectus included therein or for additional
information, provided that the request and the contents of
the request need only be disclosed to the Initial Purchasers
and one counsel appointed by and on behalf of the Holders of
the Notes as described in Section 4;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Company or its legal
counsel of any notification with respect to the suspension
of the qualification of the Notes or, if applicable, the
Private Exchange Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such
purpose; and
(v) of the happening of any event that requires the
Company to make changes in the Registration Statement or the
prospectus in order to make the statements therein not
misleading (which notice shall be accompanied by an
instruction to suspend the use of the prospectus until the
requisite changes have been made).
(c) The Company shall use its best efforts to prevent the
issuance or obtain the withdrawal of any order suspending the
effectiveness of the Registration Statement at the earliest possible
time.
(d) The Company shall furnish to each Holder of the Notes
or, if applicable, the Private Exchange Notes included within the
coverage of the Shelf Registration, without charge, at least one copy
of the Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the
Holder so requests in writing, all exhibits (including those,
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if any, incorporated by reference).
(e) The Company shall deliver to the Initial Purchasers and
to any other Holder who so requests, without charge, at least one
copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Initial Purchasers or any such Holder
requests, all exhibits (including those incorporated by reference).
(f) The Company shall deliver to each Holder of the Notes
or, if applicable, the Private Exchange Notes included within the
coverage of the Shelf Registration, without charge, as many copies of
the prospectus (including each preliminary prospectus) included in
the Shelf Registration Statement and any amendment or supplement
thereto as such person may reasonably request. The Company consents,
subject to the provisions of this Agreement, to the use of the
prospectus or any amendment or supplement thereto by each of the
selling Holders of the Notes or, if applicable, the Private Exchange
Notes in connection with the offering and sale of the Notes or, if
applicable, the Private Exchange Notes covered by the prospectus, or
any amendment or supplement thereto, included in the Shelf
Registration Statement.
(g) The Company shall deliver to the Initial Purchasers, any
Participating Broker-Dealer and such other persons required to
deliver a prospectus following the Registered Exchange Offer, without
charge, as many copies of the final prospectus included in the
Exchange Offer Registration Statement and any amendment or supplement
thereto as such persons may reasonably request. The Company consents,
subject to the provisions of this Agreement, to the use of the
prospectus or any amendment or supplement thereto by the Initial
Purchasers, if necessary, any Participating Broker-Dealer and such
other persons required to deliver a prospectus following the
Registered Exchange Offer in connection with the offering and sale of
the Exchange Notes covered by the prospectus, or any amendment or
supplement thereto, included in such Exchange Offer Registration
Statement.
(h) Prior to any public offering of the Notes or, if
applicable, the Private Exchange Notes, pursuant to the Shelf
Registration, the Company shall register or qualify or cooperate with
the Holders of the Notes or, if applicable, the Private Exchange
Notes, included therein and their respective counsel in connection
with the registration or qualification of the Notes or, if
applicable, the Private Exchange Notes, for offer and sale under the
securities or blue sky laws of such jurisdictions as any Holder of
the Notes or the Private Exchange Notes reasonably requests in
writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions of the
Notes covered by the Shelf Registration; provided that the Company
shall not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any
action which would subject it to general service of process or to
taxation in any jurisdiction where it is not then so subject.
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(i) The Company shall cooperate with the Holders of the
Notes or, if applicable, the Private Exchange Notes to facilitate the
timely preparation and delivery of certificates representing the
Notes or, if applicable, the Private Exchange Notes to be sold in the
Shelf Registration free of any restrictive legends and in such
denominations and registered in such names as the Holders may request
a reasonable period of time prior to sales of the Notes or, if
applicable, the Private Exchange Notes pursuant to the Shelf
Registration.
(j) Upon the occurrence of any event contemplated by Section
3(b)(v) above, the Company shall promptly prepare a post-effective
amendment to the Registration Statement or a supplement to the
related prospectus or file any other required document so that, as
thereafter delivered to Holders of the Notes, the Exchange Notes or,
if applicable, the Private Exchange Notes, as the case may be, the
prospectus will not contain an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading. If the Company notifies the Initial Purchasers, the
Holders of the Notes and any known Participating Broker-Dealer in
accordance with Section 3(b)(v) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been
made, then the Initial Purchasers, the Holders of the Notes and any
such Participating Broker-Dealers shall suspend use of such
prospectus, and the period of effectiveness of the Shelf Registration
Statement provided for in Section 2(b) above and the Exchange Offer
Registration Statement provided for in Section 1 above shall each be
extended by the number of days from and including the date of the
giving of such notice to Holders of the Notes and any known
Participating Broker-Dealer shall have received such amended or
supplemented prospectus pursuant to this Section 3(j).
(k) Not later than the effective date of the applicable
Registration Statement, the Company will provide a CUSIP number for
the Notes or Exchange Notes, as the case may be, and provide the
applicable trustee with printed certificates for the Notes or
Exchange Notes, as the case may be, in a form eligible for deposit
with The Depository Trust Company.
(l) The Company will comply with all rules and regulations
of the Commission to the extent and so long as they are applicable to
the Registered Exchange Offer or the Shelf Registration and will make
generally available to its securities holders (or otherwise provide
in accordance with Section II(a) of the Securities Act) an earnings
statement satisfying the provisions of Section II(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
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Offer) to be qualified under the Trust Indenture Act of 1939, as
amended.
(n) The Company may require each Holder of the Notes to be
sold pursuant to the Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of
the Notes as the Company may from time to time reasonably require for
inclusion in the Shelf Registration Statement.
(o) The Company shall enter into such customary agreements
(including if requested an underwriting agreement in customary form)
and take all such other action, if any, as any Holder of the Notes
shall reasonably request in order to facilitate the disposition of
the Notes pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Company shall
(i) make reasonably available for inspection by the Holders of the
Notes, any underwriter participating in any disposition pursuant to
the Shelf Registration Statement and any attorney, accountant or
other agent retained by the Holders of the Notes or any such
underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and (ii) cause the
Company's officers, directors and employees to supply all relevant
information reasonably requested by the Holders of the Notes or any
such underwriter, attorney, accountant or agent in connection with
the Shelf Registration Statement; provided that the foregoing
inspection and information gathering shall be coordinated on behalf
of the Initial Purchasers by the Initial Purchasers and on behalf of
the other parties, by one counsel designated by and on behalf of such
other parties as described in Section 4.
(q) In the case of the Registered Exchange Offer, the
Company shall (i) make reasonably available for inspection by the
Initial Purchasers, any known Participating Broker-Dealer and any
attorney, accountant or other agent retained by the Initial
Purchasers or such Participating Broker-Dealer all relevant financial
and other records, pertinent corporate documents and properties of
the Company and (ii) cause the Company's officers, directors and
employees to supply all relevant information reasonably requested by
the Initial Purchasers, such Participating Broker-Dealer or any such
attorney, accountant or agent in connection with the Exchange Offer
Registration Statement; provided that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial
Purchasers by the Initial Purchasers and on behalf of the other
parties, by one counsel designated by and on behalf of such other
parties as described in Section 4.
(r) In the case of any Shelf Registration, the Company, if
requested by any Holder of the Notes or, if applicable, the Private
Exchange Notes, shall cause its counsel to deliver an opinion
relating to the Notes or, if applicable, the Private Exchange Notes
in customary form, cause its officers to execute and deliver all
customary documents and certificates requested by any underwriters
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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 otherwise,
insofar as such losses, claims, damages, liabilities or actions arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained in a Registration Statement or prospectus or in any
amendment or supplement thereto, or arise out of, or are based upon, the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, 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
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appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action in respect thereof; provided, however, that the
Company shall not be liable in any such case to the extent that such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of such Holder specifically for inclusion therein; provided,
further, that (A) the Company shall not be obligated to indemnify or hold
harmless any Indemnified Party in respect of any loss, claim, damage,
liability or action to the extent that any such loss, claim, damage, liability
or action arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in a preliminary Registration
Statement or preliminary prospectus if the applicable Holder or Initial
Purchaser failed to deliver a copy of a final prospectus or an amended or
supplemented Registration Statement or prospectus that was made available by
the Company to such Indemnified Party prior to the applicable sale to the
person or persons asserting the claim which is the basis of indemnification
and such final prospectus or amended or supplemented Registration Statement or
prospectus cured such defect and (B) this indemnity agreement will be in
addition to any liability which the Company may otherwise have to such
Indemnified Party. The Company will not settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder
(whether or not such Indemnified Party or any person who controls such
Indemnified Party within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act is a party to such claim, action, suit or
proceeding) without the prior written consent of such Indemnified Party, which
consent shall not be unreasonably withheld, unless such settlement, compromise
or consent includes an unconditional release of such Indemnified Party and
each such controlling person from all liability arising out of such claim,
action, suit or proceeding. No Indemnified Party will settle or compromise or
consent to the entry of any judgment in any pending or threatened claim,
action, suit or proceeding in respect of which indemnification may be sought
without the prior written consent of the Company (which consent will not be
unreasonably withheld). The Company shall also indemnify underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution (as described in such Registration
Statement), their officers and directors and each person who controls such
persons (within the meaning of Section 15 of the Securibes Act or Section 20
of the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders of the Notes if requested by such Holders.
(b) The Company agrees to indemnify and hold harmless each
Initial Purchaser, any Participating Broker-Dealer and each person, if any,
who controls an Initial Purchaser or a Participating Broker-Dealer within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
and each director, officer, employee or agent of an Initial Purchaser or a
Participating Broker-Dealer and each director, officer, employee or agent of
each such controlling person (the Initial Purchasers, any Participating
Broker-Dealer, such controlling persons and each such director, officer,
employee and agent of the Initial Purchasers, such Participating Broker-Dealer
or such controlling person are referred to collectively as the "Exchange Offer
Indemnified Parties") from and against any losses, claims, damages or
liabilities,
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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 Securiities Act or Section 20 of the Exchange Act is a party
to such claim, action, suit or proceeding) without the prior written consent
of such Exchange Offer Indemnified Party, which consent shall not be
unreasonably withheld, unless such settlement, compromise or consent includes
an unconditional release of such Exchange Offer Indemnified Party and each
such controlling person from all liability arising out of such claim, action,
suit or proceeding. No Exchange Offer Indemnified Party will settle or
compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification may be sought without the prior written consent of the Company
(which consent will not be unreasonably withheld).
(c) Each Holder of the Notes or, if applicable, the Private
Exchange Notes, severally and not jointly, will indemnify and hold harmless
the Company, each director, officer, employee or agent of the Company
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and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act and each
director, officer, employee or agent of such controlling person from and
against any losses, claims, damages or liabilities or any actions in respect
thereof, to which the Company or any such director, officer, employee, agent
or controlling person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in a Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to a Shelf Registration, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact necessary to make the statements therein not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such Holder
specifically for inclusion therein; and, subject to the limitation set forth
immediately preceding this clause, shall reimburse, as incurred, such
indemnified persons for any legal or other expenses reasonably incurred by the
Company or any such director, officer, employee, agent or controlling person
in connection with the investigating or defending or preparing to defend
against or appearing as a third-party witness in connection with any loss,
claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability which such Holder may otherwise
have to the Company or any such directors, officers, employees, agents or
controlling persons.
(d) Promptly after receipt by an indemnified party under
this Section 5 of notice of the commencement of any action or proceeding
(including a governmental investigation), such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 5, notify the indemnifying party of the commencement thereof; but
the omission so to notify the indemnifying party (i) will not relieve it from
any liability under paragraph (a), (b) or (c) above unless and to the extent
it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights or defenses and
(ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a), (b) or (c) above. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnifying
party shall not have the right to direct the defense of such action on behalf
of such indemnified party or parties and such indemnified party or parties
shall have the right to select separate counsel to defend such action on
behalf of such indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by such indemnified party of counsel appointed to
defend such action, which approval shall not be unreasonably withheld, the
indemnifying party will not be liable to such indemnified party under this
Section 5 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate
Page 13
counsel (in addition to local counsel) in any one action or separate but
substantially similar actions in the same jurisdiction arising out of the same
general allegations or circumstances) or (ii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense
of the indemnifying party.
(e) In circumstances in which the indemnity agreement
provided for in the preceding paragraphs of this Section 5 is unavailable or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) (other than by
reason of exceptions provided in such Section 5), each indemnifying party, in
order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof), in such
proportion as is appropriate to reflect (i) the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
the other from the offering of the Notes or (ii) if the allocation provided by
the foregoing clause (i) is not permitted by applicable law, not only such
relative benefits but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof). The relative fault of the parties shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such Holder
or such other indemnified person, as the case may be, on the other, the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances. The Company and each
indemnified party agrees that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (e).
Notwithstanding any other provision of this Section 5(e), the Holders of the
Notes or, if applicable, the Private Exchange Notes shall not be required to
contribute any amount in excess of the amount by which the net proceeds
received by such Holders from the sale of the Notes or, if applicable, the
Private Exchange Notes pursuant to a Registration Statement exceeds the amount
of damages which such Holders have otherwise been required to pay in respect
of the same or a similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (e), each
director, officer, employee and agent of any indemnified party and each
person, if any, who controls such indemnified party within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such indemnified party and each director
and officer of the Company, and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Company.
(f) The agreements contained in this Section 5 shall survive
the sale
Page 14
of the Notes, the Exchange Notes or, if applicable, the Private Exchange Notes
pursuant to a Registration Statement and shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances.
(a) Additional interest at a rate of 0.5% per annum of the
principal amount of the Notes (the "Additional Interest") shall be assessed as
follows:
(i) if the Exchange Offer Registration Statement is not
filed with the Commission by the earlier of (x) 60 days after the
Issue Date and (y) the date of filing of a registration statement in
respect of an initial public offering of common stock of the Company
(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 (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 (ii) above, or (3) upon the exchange of
Exchange Notes for all the Notes validly tendered in accordance with the terms
of the Registered Exchange Offer, or upon the effectiveness of the Shelf
Registration Statement which has ceased to remain effective prior to two years
(or such later date if extended pursuant to Section 3(j) above or such shorter
period as is provided in Section 2(b)) from the date of original issuance of
the Notes in the case of (iii) above, Additional Interest on the Notes as a
result of such clause (i), (ii) or (iii) shall immediately cease to accrue.
(b) Any amount of Additional Interest due pursuant to
clauses (i), (ii) or (iii) of Section 6(a) above will be payable in cash
semiannually in arrears on each
Page 15
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
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
Page 16
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) Severabilily. 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.
Page 17
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:
BNY CAPITAL MARKETS, INC.
By:
Name:
Title:
