February ___, 1997
EXCHANGE AGENT AGREEMENT
The Bank of New York
Corporate Trust Trustee Administration
000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Building Materials Corporation of America, a
Delaware corporation (the "Company"), proposes to make an
offer (the "Exchange Offer") to exchange its 8-5/8% Senior
Notes due 2006 (the "Old Securities") for its Series B 8-5/8%
Senior Notes due 2006 (the "New Securities"). The terms and
conditions of the Exchange Offer as currently contemplated are
set forth in a Prospectus, dated February ___, 1997 (the
"Prospectus"), proposed to be distributed to all of the record
holders of the Old Securities. The Old Securities and the New
Securities are collectively referred to herein as the
"Securities".
The Company hereby appoints The Bank of New York to
act as exchange agent (the "Exchange Agent") in connection
with the Exchange Offer. References hereinafter to "you"
shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by
the Company on or about February ___, 1997. The Letter of
Transmittal accompanying the Prospectus is to be used by hold-
ers of the Old Securities to accept the Exchange Offer, and
contains instructions with respect to the delivery of certifi-
xxxxx for Old Securities tendered.
The Exchange Offer shall expire at 12 Midnight, New
York City time, on ________ ___, 1997 or on such later date or
time to which the Company may extend the Exchange Offer (the
"Expiration Date"). Subject to the terms and conditions set
forth in the Prospectus, the Company expressly reserves the
right to extend the Exchange Offer from time to time and may
extend the Exchange Offer by giving oral (confirmed in writ-
ing) or written notice to you before 9:00 A.M., New York City
time, on the business day following the previously scheduled
Expiration Date.
The Company expressly reserves the right to amend or
terminate the Exchange Offer, and not to accept for exchange
any Old Securities not theretofore accepted for exchange, as
specified in the Prospectus under the caption "The Exchange
Offer -- Expiration Date; Amendments." The Company will give
oral (confirmed in writing) or written notice of any
amendment, termination or nonacceptance to you as promptly as
practicable.
In carrying out your duties as Exchange Agent, you
are to act in accordance with the following instructions:
1. You will perform such duties and only such du-
ties as are specifically set forth in the section of the
Prospectus captioned "The Exchange Offer" or as specifically
set forth herein; provided, however, that in no way will your
general duty to act in good faith be discharged by the forego-
ing.
2. You will establish an account with respect to
the Old Securities at The Depository Trust Company (the
"Book-Entry Transfer Facility") for purposes of the Exchange
Offer within two business days after the date of the
Prospectus, and any financial institution that is a
participant in the Book-Entry Transfer Facility's systems may
make book-entry delivery of the Old Securities by causing the
Book-Entry Transfer Facility to transfer such Old Securities
into your account in accordance with the Book-Entry Transfer
Facility's procedure for such transfer.
3. You are to examine each of the Letters of
Transmittal and certificates for Old Securities (or confirma-
tion of book-entry transfer into your account at the
Book-Entry Transfer Facility) and any other documents deliv-
ered or mailed to you by or for holders of the Old Securities
to ascertain whether: (i) the Letters of Transmittal and any
such other documents are duly executed and properly completed
in accordance with instructions set forth therein; and (ii)
the Old Securities have otherwise been properly tendered. You
shall have no such duty, however, with respect to any such
document which you do not receive, other than as a result of
your own gross negligence or willful misconduct. In each case
where the Letter of Transmittal or any other document has been
improperly completed or executed or any of the certificates
for Old Securities are not in proper form for transfer or some
other irregularity in connection with the acceptance of the
Exchange Offer exists, you will endeavor to inform the
presenters of the need for fulfillment of all requirements and
to take any other action as may be necessary or advisable to
cause such irregularity to be corrected.
4. With the approval of the Chief Executive Of-
ficer, any Senior Vice President, any Executive Vice Presi-
dent, or any Vice President of the Company (such approval, if
given orally, to be confirmed in writing) or any other party
designated by such an officer in writing, you are authorized
to waive any irregularities in connection with any tender of
Old Securities pursuant to the Exchange Offer.
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5. Tenders of Old Securities may be made only as
set forth in the Letter of Transmittal and in the section of
Prospectus captioned "The Exchange Offer -- Procedures for
Tendering" and Old Securities shall be considered properly
tendered to you only when tendered in accordance with the pro-
cedures set forth therein.
Notwithstanding the provisions of this paragraph 5,
Old Securities which the Chief Executive Officer, any Senior
Vice President, any Executive Vice President, or any Vice
President of the Company shall approve as having been properly
tendered shall be considered to be properly tendered (such
approval, if given orally, shall be confirmed in writing).
6. You shall advise the Company with respect to
any Old Securities received subsequent to the Expiration Date
and accept its instructions with respect to disposition of
such Old Securities.
7. You shall accept tenders:
(a) in cases where the Old Securities are regis-
tered in two or more names only if signed by all named hold-
ers;
(b) in cases where the signing person (as indicated
on the Letter of Transmittal) is acting in a fiduciary or a
representative capacity only when proper evidence of his or
her authority so to act is submitted; and
(c) from persons other than the registered holder
of Old Securities provided that customary transfer require-
ments, including any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Securities
where so indicated and as permitted in the Letter of Transmit-
tal and deliver certificates for Old Securities to the trans-
fer agent for split-up and return any untendered Old Securi-
ties to the holder (or such other person as may be designated
in the Letter of Transmittal) as promptly as practicable after
expiration or termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the con-
ditions to the Exchange Offer, the Company will notify you
(such notice if given orally, to be confirmed in writing) of
its acceptance, promptly after the Expiration Date, of all Old
Securities properly tendered and you, on behalf of the Com-
pany, will exchange such Old Securities for New Securities and
cause such Old Securities to be cancelled. Delivery of New
Securities will be made on behalf of the Company by you at the
rate of $1,000 principal amount of New Securities for each
$1,000 principal amount of the corresponding series of Old
Securities tendered promptly after notice (such notice if
given orally, to be confirmed in writing) of acceptance of
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said Old Securities by the Company; provided, however, that in
all cases, Old Securities tendered pursuant to the Exchange
Offer will be exchanged only after timely receipt by you of
certificates for such Old Securities (or confirmation of
book-entry transfer into your account at the Book-Entry Trans-
fer Facility), a properly completed and duly executed Letter
of Transmittal (or a facsimile thereof) with any required
signature guarantees and any other required documents. You
shall issue New Securities only in denominations of $1,000 or
any integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are ir-
revocable, except that, subject to the terms and upon the con-
ditions set forth in the Prospectus and the Letter of Trans-
mittal, Old Securities tendered pursuant to the Exchange Offer
may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange
any Old Securities tendered if any of the conditions set forth
in the Exchange Offer are not met. Notice of any decision by
the Company not to exchange any Old Securities tendered shall
be given (and confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company
does not accept for exchange all or part of the Old Securities
tendered because of an invalid tender, the occurrence of cer-
tain other events set forth in the Prospectus under the cap-
tion "The Exchange Offer -- Conditions" or otherwise, you
shall as soon as practicable after the expiration or termina-
tion of the Exchange Offer return those certificates for unac-
cepted Old Securities (or effect appropriate book-entry trans-
fer), together with any related required documents and the
Letters of Transmittal relating thereto that are in your pos-
session, to the persons who deposited them.
12. All certificates for reissued Old Securities,
unaccepted Old Securities or for New Securities shall be for-
warded by (a) first-class certified mail, return receipt re-
quested under a blanket surety bond protecting you and the
Company from loss or liability arising out of the non-receipt
or non-delivery of such certificates or (b) by registered mail
insured separately for the replacement value of each of such
certificates.
13. You are not authorized to pay or offer to pay
any concessions, commissions or solicitation fees to any bro-
ker, dealer, bank or other persons or to engage or utilize any
person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other
than those specifically set forth herein or in the section of
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Prospectus captioned "The Exchange Offer" or as may be subse-
quently agreed to in writing by you and the Company;
(b) will be regarded as making no representa-
tions and having no responsibilities as to the validity, suf-
ficiency, value or genuineness of any of the certificates or
the Old Securities represented thereby deposited with you pur-
suant to the Exchange Offer, and will not be required to and
will make no representation as to the validity, value or genu-
ineness of the Exchange Offer; provided, however, that in no
way will your general duty to act in good faith be discharged
by the foregoing;
(c) shall not be obligated to take any legal
action hereunder which might in your reasonable judgment in-
volve any expense or liability, unless you shall have been
furnished with reasonable indemnity;
(d) may reasonably rely on and shall be pro-
tected in acting in reliance upon any certificate, instrument,
opinion, notice, letter, telegram or other document or secu-
rity delivered to you and reasonably believed by you to be
genuine and to have been signed by the proper party or par-
ties;
(e) may reasonably act upon any tender, state-
ment, request, comment, agreement or other instrument whatso-
ever not only as to its due execution and validity and ef-
fectiveness of its provisions, but also as to the truth and
accuracy of any information contained therein, which you shall
in good faith believe to be genuine or to have been signed or
represented by a proper person or persons;
(f) may rely on and shall be protected in act-
ing upon written or oral instructions from any officer of the
Company;
(g) may consult with your counsel with respect
to any questions relating to your duties and responsibilities
and the advice or opinion of such counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by you hereunder in
good faith and in accordance with the advice or opinion of
such counsel; and
(h) shall not advise any person tendering Old
Securities pursuant to the Exchange Offer as to the wisdom of
making such tender or as to the market value or decline or ap-
preciation in market value of any Old Securities or New
Securities.
15. You shall take such action as may from time to
time be requested by the Company or its counsel (and such
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other action as you may reasonably deem appropriate) to fur-
nish copies of the Prospectus, Letter of Transmittal and the
Notice of Guaranteed Delivery (as defined in the Prospectus)
or such other forms as may be approved from time to time by
the Company, to all persons requesting such documents and to
accept and comply with telephone requests for information re-
lating to the Exchange Offer, provided that such information
shall relate only to the procedures for accepting (or with-
drawing from) the Exchange Offer. The Company will furnish
you with copies of such documents at your request. All other
requests for information relating to the Exchange Offer shall
be directed to the Company, Attention: Investor Relations.
16. You shall advise by facsimile transmission or
telephone, and promptly thereafter confirm in writing to As-
sistant Treasurer of the Company and such other person or per-
sons as it may request, daily (and more frequently during the
week immediately preceding the Expiration Date and if other-
wise requested) up to and including the Expiration Date, as to
the number of Old Securities which have been tendered pursuant
to the Exchange Offer and the items received by you pursuant
to this Agreement, separately reporting and giving cumulative
totals as to items properly received and items improperly re-
ceived. In addition, you will also inform, and cooperate in
making available to, the Company or any such other person or
persons upon oral request made from time to time prior to the
Expiration Date of such other information as it or he or she
reasonably requests. Such cooperation shall include, without
limitation, the granting by you to the Company and such person
as the Company may request of access to those persons on your
staff who are responsible for receiving tenders, in order to
ensure that immediately prior to the Expiration Date the Com-
pany shall have received information in sufficient detail to
enable it to decide whether to extend the Exchange Offer. You
shall prepare a final list of all persons whose tenders were
accepted, the aggregate principal amount of Old Securities
tendered and the aggregate principal amount of Old Securities
accepted, and deliver said list to the Company. Upon receipt
of said list, the Company will promptly provide you with a
calculation of the principal amount of New Securities to be
issued to each holder.
17. Letters of Transmittal and Notices of Xxxxxx-
xxxx Delivery shall be stamped by you as to the date and the
time of receipt thereof and shall be preserved by you for a
period of time at least equal to the period of time you pre-
serve other records pertaining to the transfer of securities.
You shall dispose of unused Letters of Transmittal and other
surplus materials by returning them to the Company.
18. You hereby expressly waive any lien, encum-
brance or right of set-off whatsoever that you may have with
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respect to funds deposited with you for the payment of trans-
fer taxes by reasons of amounts, if any, borrowed by the Com-
pany, or any of its subsidiaries or affiliates pursuant to any
loan or credit agreement with you or for compensation owed to
you hereunder.
19. For services rendered as Exchange Agent hereun-
der, you shall be entitled to such compensation as set forth
on Schedule I attached hereto.
20. You hereby acknowledge receipt of the
Prospectus and the Letter of Transmittal attached hereto and
further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the
Prospectus and the Letter of Transmittal (as they may be
amended from time to time), on the other hand, shall be
resolved in favor of the latter two documents, except with
respect to the duties, liabilities and indemnification of you
as Exchange Agent, which shall be controlled by this
Agreement.
21. The Company covenants and agrees to indemnify
and hold you harmless in your capacity as Exchange Agent here-
under against any loss, liability, cost or expense, including
reasonable attorneys' fees and expenses, arising out of or in
connection with any act, omission, delay or refusal made by
you in reliance upon any signature, endorsement, assignment,
certificate, order, request, notice, instruction or other in-
strument or document reasonably believed by you to be valid,
genuine and sufficient and in accepting any tender or effect-
ing any transfer of Old Securities reasonably believed by you
in good faith to be authorized, and in delaying or refusing in
good faith to accept any tenders or effect any transfer of Old
Securities; provided, however, that the Company shall not be
liable for indemnification or otherwise for any loss, li-
ability, cost or expense to the extent arising out of your
gross negligence or willful misconduct. In no case shall the
Company be liable under this indemnity with respect to any
claim against you unless the Company shall be notified by you,
by letter or cable or by facsimile confirmed by letter, of the
written assertion of a claim against you or of any other ac-
tion commenced against you, promptly after you shall have re-
ceived any such written assertion or commencement of action.
The Company shall be entitled to participate at its own ex-
pense in the defense of any such claim or other action, and,
if the Company so elects, the Company shall assume the defense
of any suit brought to enforce any such claim. In the event
that the Company shall assume the defense of any such suit,
the Company shall not be liable for the fees and expenses of
any counsel thereafter incurred by you so long as the Company
shall retain counsel reasonably satisfactory to you to defend
such suit.
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22. You shall arrange to comply with all require-
ments under the tax laws of the United States, including those
relating to missing Taxpayer Identification Numbers, and shall
file any appropriate reports with the Internal Revenue
Service. The Company understands that you are required to
deduct 31% on payments to holders who have not supplied their
correct Taxpayer Identification Number or required
certification. Such funds will be turned over to the Internal
Revenue Service in accordance with applicable regulations.
23. You shall deliver or cause to be delivered, in
a timely manner to each governmental authority to which any
transfer taxes are payable in respect of the exchange of Old
Securities, your check in the amount of all transfer taxes so
payable, and the Company shall reimburse you for the amount of
any and all transfer taxes payable in respect of the exchange
of Old Securities; provided, however, that you shall reimburse
the Company for amounts refunded to you in respect of your
payment of any such transfer taxes, at such time as such re-
fund is received by you and, provided further, that if New
Securities and/or substitute Old Securities not exchanged are
to be delivered to, or are to be registered or issued in the
name of, any person other than the registered holder of the
Old Securities tendered in the Exchange Offer, or if tendered
Old Notes are registered in the name of any person other than
the person signing the Letter of Transmittal, or if a transfer
tax is imposed for any reason other than the transfer of Old
Securities to the Company or its order pursuant to the Ex-
change Offer, the amount of any such transfer taxes (whether
imposed on the registered holder or any other persons) will be
payable by the tendering holder and will not be reimbursed to
you by the Company. In no event, however, will the Exchange
Agent be responsible for the payment of any applicable trans-
fer tax imposed for any reason other than the exchange of Old
Securities.
24. This Agreement and your appointment as Exchange
Agent hereunder shall be construed and enforced in accordance
with the laws of the State of New York applicable to agree-
ments made and to be performed entirely within such state, and
without regard to conflicts of law principles, and shall inure
to the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of each of the par-
ties hereto.
25. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original
and all of which taken together shall constitute one and the
same agreement.
26. In case any provision of this Agreement shall
be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
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27. This Agreement shall not be deemed or construed
to be modified, amended, rescinded, cancelled or waived, in
whole or in part, except by a written instrument signed by a
duly authorized representative of the party to be charged.
This Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices,
requests and other communications to any party hereunder shall
be in writing (including facsimile or similar writing) and
shall be given to such party, addressed to it, at its address
or telecopy number set forth below:
If to the Company:
Building Materials Corporation of America
0000 Xxxx Xxxx
Xxxxx, Xxx Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: Senior Vice President - Finance
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Trustee
Administration
29. Unless terminated earlier by the parties
hereto, this Agreement shall terminate after all obligations
of the parties hereunder shall have been fulfilled. Notwith-
standing the foregoing, Paragraphs 19, 21 and 23 shall survive
the termination of this Agreement. Upon any termination of
this Agreement, you shall promptly deliver to the Company any
certificates for Securities, funds or property then held by
you as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective
as of the date hereof.
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Please acknowledge receipt of this Agreement and
confirm the arrangements herein provided by signing and re-
turning the enclosed copy.
BUILDING MATERIALS CORPORATION
OF AMERICA
By:______________________
Name:
Title:
Accepted as the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:_______________________________
Name:
Title:
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Schedule I
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