EXHIBIT 10.1
EXECUTION COPY
SECOND AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
This SECOND AMENDMENT TO THE REGISTRATION RIGHTS AGREEMENT,
dated as of October 5, 2001 (the "Second Amendment"), is made among Building
Materials Corporation of America (the "Company"), Building Materials
Manufacturing Corporation and Building Materials Investment Corporation (the
"Guarantors" and, together with the Company, the "Issuers") and AG Capital
Recovery Partners II, LP (the "Purchaser"). Capitalized terms used herein that
are not defined herein shall have the meanings ascribed thereto in the
Registration Rights Agreement (as defined below).
RECITALS:
WHEREAS, on July 5, 2000, the Company issued and sold to
BNY Capital Markets, Inc. (the "Initial Purchaser") $35,000,000 aggregate
principal amount of its 10.50% Senior Notes due 2003 (the "Notes");
WHEREAS, in connection with the issuance and sale of the
Notes, the Issuers and the Initial Purchaser are parties to the Registration
Rights Agreement, dated July 5, 2000, as amended by the First Amendment to the
Registration Rights Agreement dated as of December 4, 2000 (as so amended, the
"Registration Rights Agreement");
WHEREAS, on June 25, 2001, the Initial Purchaser sold all
of its right, title and interest in and to the Notes to the Purchaser and,
pursuant to the terms of the Registration Rights Agreement, the Purchaser
succeeded to the Initial Purchaser's right, title and interest in and to the
Notes;
WHEREAS, the Issuers and the Purchaser desire by this
Second Amendment to amend certain provisions of the Registration Rights
Agreement;
NOW, THEREFORE, it is hereby agreed as follows:
Section 1. Additional Agreements.
(a) Section 1 of the Registration Rights Agreement shall be
void and of no further effect.
(b) Except as expressly set forth in Section 2(d) of this
Second Amendment, the Purchaser hereby waives and forever foregoes any right to
receive Additional Interest as provided in Section 6 of the Registration Rights
Agreement which has accrued from and after the date of the Second Amendment.
(c) The Issuers are no longer obligated to file, and the
Purchaser hereby waives and forever foregoes any right to demand the filing of,
the Shelf Registration Statement pursuant to the Registration Rights Agreement
and hereby agrees to the filing of a Demand Registration Statement on the terms
described in Section 2 hereof in lieu of such Shelf Registration Statement and
in lieu of completing the Registered Exchange Offer.
Section 2. Amendments to the Registration Rights Agreement.
(a) Section 2 of the Registration Rights Agreement is
hereby amended and restated in its entirety to read as follows:
"2. DEMAND REGISTRATION
(a) At any time after receipt of a written
request (a "Demand Notice") from a Holder (the "Initial
Demanding Holder") requesting that the Issuers effect a
registration (a "Demand Registration") under the Securities
Act covering all or part of the Securities which request
specifies the intended method or methods of disposition
thereof, and subject to Section 2(c) hereof, the Issuers
shall as promptly as reasonably practicable notify all
Holders of record in writing of the receipt of such Demand
Notice and each such Holder may elect (by written notice
sent to the Issuers within 10 Business Days from the date
of such Holder's receipt of the aforementioned Issuers'
notice) to have all or part of such Holder's Securities
included in such registration thereof pursuant to this
Section 2(a), and such Holder shall specify in such notice
the number of Securities that such Holder elects to include
in such registration. Thereupon, the Issuers shall, as
promptly as reasonably practicable and in any event on or
prior to the date that is 45 days after the date of receipt
of a Demand Notice, file with the Commission and thereafter
use its reasonable best efforts to cause to be declared and
remain effective on the terms described herein, a
registration statement (a "Demand Registration Statement")
on an appropriate form under the Securities Act relating to
the offer and sale of the Securities which the Issuers have
been so requested to register by such Holders (the
"Participating Demand Holders"), to the extent required to
permit the disposition (in accordance with the intended
method or methods thereof) of the Securities so registered;
provided, however, that the aggregate value of the
Securities requested to be registered be at least
$17,500,000; and provided, further, that the Issuers shall
be deemed not to have used their reasonable best efforts to
keep the Demand Registration Statement effective during the
requisite period if they voluntarily take any action that
would result in a Participating Demand Holder not being
able to offer and sell the Securities covered thereby
during that period, unless such action is required by
applicable law. The Issuers will use their reasonable best
efforts to keep the Demand Registration Statement
continuously effective through the maturity date of the
Securities or such shorter period when all of the
Securities registered thereunder have been disposed
pursuant thereto in order to permit the prospectus included
therein to be lawfully delivered by the Participating
Demand Holders.
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(b) If, pursuant to Section 3(j) below, the
Initial Demanding Holder requests with respect to a Demand
Registration that the offering of the Securities so
registered be underwritten, and the managing underwriter,
or representative of the managing underwriters if there is
more than one, of such Demand Registration advises any of
the Issuers in writing that, in its opinion, the aggregate
principal amount of Securities to be included in such
offering is greater than the total aggregate principal
amount of Securities which can be sold therein without
having a material adverse effect on the distribution of
such Securities or otherwise having a material adverse
effect on the marketability thereof (the "Maximum Aggregate
Principal Amount of Securities"), then the Issuers shall
include in such Demand Registration the Securities that the
Participating Demand Holders requested to be registered
thereunder only to the extent the aggregate principal
amount of such Securities does not exceed the Maximum
Aggregate Principal Amount of Securities. If such amount
exceeds the Maximum Aggregate Principal Amount of
Securities, the aggregate principal amount of Securities
included in such Demand Registration shall be allocated
among all the Participating Demand Holders on a pro rata
basis. If the amount of Securities in such offering does
not exceed the Maximum Aggregate Principal Amount of
Securities, the Issuers may include in such Demand
Registration any other securities of the Issuers and other
Securities held by other security holders of the Issuers,
on a pro rata basis if necessary, in an amount that,
together with the Securities included in such Demand
Registration, shall not exceed the Maximum Aggregate
Principal Amount of Securities.
(c) The Holders shall be entitled to two (2)
Demand Registrations pursuant to this Section 2.
(d) Notwithstanding anything to the contrary
contained herein, the Issuers shall not be required to
prepare and file (i) more than one (1) Demand Registration
Statement under this Agreement in any twelve-month period;
(ii) any Demand Registration Statement within 90 days
following the date of effectiveness of any registration
statement under the Securities Act of any of the Issuers
(other than a registration statement relating solely to the
sale of securities to participants in a stock option or
similar plan or a registration relating to a corporate
reorganization or other transaction under Rule 145 under
the Securities Act); or (iii) any Demand Registration if
all of the Securities can otherwise be disposed of in a
three month period pursuant to Rule 144 (or any successor
provision thereto) under the Securities Act. In addition,
notwithstanding anything to the contrary contained herein,
the Issuers will not be required to file any Demand
Registration Statement during any of the following periods:
(i) 30 days prior to the anticipated consummation of a
public offering by any of the Issuers of its securities and
90 days subsequent to the consummation of such public
offering where, in the good faith judgment of the managing
underwriter or underwriters thereof, such filing would have
an adverse effect on such offering; (ii) if such filing is
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prohibited by applicable law; or (iii) if the Issuers
promptly certify to the Participating Demand Holders that
the filing of such Demand Registration Statement could
materially adversely affect the business activities or
plans of the Issuers; provided, however, that the Issuers
may not delay the filing of any Demand Registration
Statement pursuant to this clause (iii) for more than an
aggregate of 90 days in any twelve-month period. Upon the
expiration of the period described in this clause (iii),
the Issuers shall give prompt notice to the Participating
Demand Holders and shall promptly file the Demand
Registration Statement requested to be filed pursuant to
Section 2(a).
(e) The Issuers shall cause the Demand
Registration Statement and the related prospectus and any
amendment or supplement thereto, as of the effective date
of the Demand 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."
(b) Section 3 of the Registration Rights Agreement is
hereby amended and restated in its entirety to read as follows:
"3. REGISTRATION PROCEDURES. In connection with any Demand
Registration contemplated by Section 2 hereof, the following
provisions shall apply:
(a) The Issuers shall furnish to the
Participating Demand Holders, prior to the filing thereof
with the Commission, a copy of the Demand Registration
Statement and each amendment thereof and each supplement,
if any, to the prospectus included therein and shall obtain
the consent of the Participating Demand Holders to any
portion of such filing that relates to such Participating
Demand Holder, which consent shall not be unreasonably
withheld.
(b) The Issuers shall give prompt written notice
to the Participating Demand Holders:
(i) when the Demand Registration
Statement or any amendment thereto has been filed
with the Commission and when the Demand
Registration Statement or any post-effective
amendment thereto has become effective;
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(ii) of any request by the Commission
for amendments or supplements to the Demand
Registration Statement or the prospectus included
therein;
(iii) of the issuance by the
Commission of any stop order suspending the
effectiveness of the Demand Registration
Statement or the initiation of any proceedings
for that purpose;
(iv) of the receipt by any Issuer or
its legal counsel of any notification with
respect to the suspension of the qualification of
the Securities 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 Issuers to make changes in the
Demand Registration Statement or the prospectus
in order that the foregoing shall 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 (which
notice shall be accompanied by an instruction to
suspend the use of the prospectus until the
requisite changes have been made).
(c) The Issuers shall use their reasonable best
efforts to prevent the issuance or obtain the withdrawal of
any order suspending the effectiveness of the Demand
Registration Statement at the earliest possible time.
(d) The Issuers shall furnish to the
Participating Demand Holders without charge, at least one
(1) copy of the Demand Registration Statement and any
post-effective amendments thereto, including financial
statements and schedules, and, if any Participating Demand
Holder so requests in writing, all exhibits (including
those, if any, incorporated by reference).
(e) The Issuers shall deliver to each
Participating Demand Holder without charge as many copies
of the prospectus (including each preliminary prospectus)
included in the Demand Registration Statement and any
amendment or supplement thereto as such person may
reasonably request. The Issuers consent, subject to the
provisions of this Agreement, to the use of the prospectus
or any amendment or supplement thereto by each of the
Participating Demand Holders in connection with the
offering and sale of the Securities included in the Demand
Registration Statement.
(f) The Issuers shall use their reasonable best
efforts to register or qualify the Securities covered by
such Demand Registration Statement under such other
securities or blue sky laws of such jurisdictions within
the United States and its possessions the Participating
Demand Holders shall reasonably request (provided, however,
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that no Issuer shall be obligated to qualify as a foreign
corporation to do business under the laws of any
jurisdiction in which it is not then qualified or to file
any general consent to service or process), and do such
other reasonable acts and things as may be required of it
to enable the Participating Demand Holders to consummate
the disposition in such jurisdiction of the Securities
covered by such Demand Registration Statement.
(g) Upon the occurrence of any event contemplated
by Section 3(b)(v) above, the Issuers shall promptly
prepare a post-effective amendment to the Demand
Registration Statement or a supplement to the related
prospectus or file any other required document so that, as
thereafter delivered to the Participating Demand Holders,
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 Issuers notify the Participating Demand Holders 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 Participating Demand
Holders shall suspend use of such prospectus.
(h) Not later than the effective date of the
Demand Registration Statement, the Issuers will provide a
CUSIP number for the Securities and provide the applicable
trustee with certificates for the Securities in a form
eligible for deposit with The Depository Trust Company, if
needed.
(i) The Issuers will comply with all rules and
regulations of the Commission to the extent and so long as
they are applicable to the Demand Registration and will
make generally available to its securities holders (or
otherwise provide in accordance with Section 11(a) of the
Securities Act) an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act, no later
than 45 days after the end of a twelve-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 Demand
Registration Statement, which statement shall cover such
twelve-month period.
(j) The Issuers may require the Participating
Demand Holders to furnish to the Issuers such information
regarding the Participating Demand Holders and the
distribution of the Securities as the Issuers may from time
to time reasonably require for inclusion in the Demand
Registration Statement.
(k) The Issuers shall enter into such customary
agreements (including, if requested, an underwriting
agreement in customary form) and take all such other
action, if any, as the Participating Demand Holders shall
reasonably request in order to facilitate the disposition
of the Securities pursuant to the Demand Registration. If a
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Demand Registration involves an underwritten offering, the
managing or lead underwriter or underwriters shall be
selected by the Initial Demanding Holder with the prior
written consent of the Issuers, which consent shall not be
unreasonably withheld.
(l) The Issuers shall: (i) make reasonably
available for inspection by a representative of the
Participating Demand Holders, a representative of any
underwriters participating in any disposition pursuant to a
Demand Registration Statement and any attorney, accountant
or other agent retained by the Participating Demand Holders
or any such representative of the underwriters all relevant
financial and other records, pertinent corporate documents
and properties of the Issuers, and (ii) cause the Issuers'
officers, directors and employees to supply all relevant
information reasonably requested by such representative of
the Participating Demand Holders or such representative of
the underwriters or any attorney, accountant or agent in
connection with the registration, provided that the
foregoing inspection and information gathering shall be
coordinated on behalf of any such other parties by one
counsel designated by and on behalf of such other parties
and any party receiving such information shall execute
customary confidentiality agreements provided by the
Issuers prior to beginning such inspection.
(m) The Issuers, if requested by the Initial
Demanding Holder, shall cause their counsel to deliver an
opinion relating to the Securities, cause its officers to
execute and deliver all customary documents and
certificates requested by the representative of the
underwriters of the Securities and cause its independent
public accountants to provide to the representative of the
underwriters of the Securities a comfort letter in
customary form.
(n) It shall be a condition precedent to the
obligation of the Issuers to take any action pursuant to
this Agreement in respect of the Securities which are to be
registered that the Participating Demand Holders furnish to
the Issuers such information regarding the Securities held
by the Participating Demand Holders and the intended method
of disposition thereof as the Issuers shall reasonably
request and as shall be required in connection with the
action taken by the Issuers."
(c) Section 4 of the Agreement is hereby amended and
restated in its entirety to read as follows:
"4. REGISTRATION EXPENSES. The Issuers shall bear
all expenses incurred in connection with the performance of
their obligations under Sections 2 and 3 hereof including
the reasonable fees and expenses of one (1) counsel
designated by a majority in principal amount of the
Participating Demand Holders, which counsel shall be
reasonably satisfactory to the Company; provided however
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that in the case of an underwritten offering the
Participating Demand Holders will be responsible for all
fees, expenses and commissions of any underwriters engaged
in connection therewith."
(d) Section 6(a) of the Registration Rights Agreement is
hereby amended and restated in its entirety to read as follows:
"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 Demand Registration Statement is not
declared effective by the Commission on or prior to the date that is
150 days after the receipt by the Issuers of a Demand Notice in
respect of such Demand Registration, then commencing on the 151st day
after the receipt of such Demand Notice, Additional Interest shall be
assessed on the Notes; and
(ii) if a Demand Registration Statement has been
declared effective and it ceases to be effective prior to the earlier
of the maturity date of the Notes or the disposition of all Notes
registered thereunder, then Additional Interest shall be assessed on
the Notes commencing on the day such Demand Registration Statement
ceases to be effective;
provided, however, that (1) upon the effectiveness of the Demand Registration
Statement in the case of (a)(i) above, or (2) upon the effectiveness of the
Demand Registration Statement which has ceased to remain effective prior to the
earlier of the maturity date of the Notes or the disposition of all Notes
registered thereunder, in the case of (a)(ii) above, Additional Interest on the
Notes as a result of such clause (i) or (ii) shall immediately cease to accrue."
(e) Section 6(b) of the Registration Rights Agreement is
hereby amended by deleting the comma and the words "or (iii)" from the second
line thereof and adding the word "or" after the reference to "clause (i)" in the
second line thereof. Section 6(c) of the Registration Rights Agreement is
deleted in its entirety.
(f) Section 7(b) of the Registration Rights Agreement is
hereby amended and restated in its entirety to read as follows:
"Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand
delivery, first-class mail, telecopy, or air courier which guarantees
overnight delivery:
(1) if to any Holder, at its last known address
appearing on the books of the Issuers maintained for such purpose.
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(2) if to any Issuer, at its address as follows:
Building Materials Corporation of America
1361 Alps Road
Wayne, New Jersey 07470
Attention: General Counsel
Telecopy: (973) 628-3196
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 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 Holder shall be
deemed to have been duly given if given as provided in Section 10.02
of the Indenture."
(g) For all purposes of the Registration Rights Agreement,
all references to the "Holders" or a "Holder" therein shall be deemed to be
references to the Purchaser and any subsequent beneficial or record owner or
holder of any Securities.
Section 3. Representations and Warranties.
(a) Representations and Warranties of the Issuers. Each of
the Issuers represents and warrants to the Purchaser, and agrees with the
Purchaser that, as of the date hereof:
(i) Each Issuer has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state of its
incorporation, with corporate power and authority to own, lease and operate its
properties and to conduct its business.
(ii) Each Issuer has the corporate power and authority to
enter into and perform its obligations under this Second Amendment.
(iii) The execution, delivery and performance of this
Second Amendment and the consummation of the transactions contemplated hereby
and thereby have been duly authorized by all necessary corporate action on the
part of each Issuer.
(iv) This Second Amendment, when executed and delivered by
each Issuer, will constitute the legal, valid and binding obligation of each
Issuer, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding in equity or at law).
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(b) Representations and Warranties of the Purchaser. The
Purchaser represents and warrants to the Issuers, and agrees with the Issuers
that, as of the date hereof:
(i) The Purchaser is a limited partnership and it has been
duly formed, organized and is existing in good standing under the laws of the
state of its formation, with all necessary limited partnership power and
authority to own, lease and operate its properties and to conduct its business.
(ii) The Purchaser has the necessary limited partnership
power and authority to enter into and perform its obligations under this Second
Amendment.
(iii) The execution, delivery and performance of this
Second Amendment, and the consummation of the transactions contemplated hereby
and thereby have been duly authorized by all necessary corporate action on the
part of the Purchaser.
(iv) This Second Amendment, when executed and delivered by
the Purchaser, will constitute the legal, valid and binding obligation of the
Purchaser, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding in equity or at law).
(v) The Purchaser has been the beneficial owner of the
Securities since June 25, 2001 and, as of the date hereof, is a Holder (as
defined in the Registration Rights Agreement) of the Securities, free and clear
of any liens, claims or encumbrances of any nature whatsoever.
Section 4. Miscellaneous.
(a) This Second Amendment shall become effective upon its
execution and delivery by the Issuers and the Purchaser.
(b) Except as expressly amended hereby, the Registration
Rights Agreement shall remain in full force and effect. Each subsequent
reference to the Registration Rights Agreement shall be deemed to refer to the
Registration Rights Agreement as amended by this Second Amendment.
(c) This Second Amendment 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.
(d) This Second Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute but one and the same instrument.
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(e) This Second Amendment shall be binding upon the
Issuers, the Purchaser, any subsequent beneficial or record owner or holder of
any Securities and their respective successors and assigns.
(f) The Issuers shall promptly, and in any event no later
than seven (7) days after the written request of the Purchaser, reimburse the
Purchaser for the reasonable fees and expenses of its legal counsel in
connection with the negotiation, execution and delivery of this Second
Amendment; provided, however, that such fees and expenses shall not exceed
$10,000.
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IN WITNESS WHEREOF, the parties have executed this Second
Amendment as of the date first written above.
BUILDING MATERIALS CORPORATION BUILDING MATERIALS MANUFACTURING CORPORATION
By: /s/ Richard A. Weinberg By: /s/ Richard A. Weinberg
-------------------------------------------------------- -------------------------------------------
Name: Richard A. Weinberg Name: Richard A. Weinberg
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Title: Executive Vice President, Title: Executive Vice President,
------------------------ -------------------------
General Counsel and Secretary General Counsel and Secretary
BUILDING MATERIALS INVESTMENT CORPORATION AG CAPITAL RECOVERY PARTNERS II, LP
By: /s/ Richard A. Weinberg By: /s/ Jeffrey H. Aronson
-------------------------------------------------------- -------------------------------------------
Name: Richard A. Weinberg Name: Jeffrey H. Aronson
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Title: Executive Vice President, Title: Authorized Signatory
------------------------ --------------------
General Counsel and Secretary
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