<PAGE> 1
As filed with the Securities and Exchange Commission on April 3, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------------
<TABLE>
<CAPTION>
<S> <C>
OWENS CORNING CAPITAL II
OWENS CORNING OWENS CORNING CAPITAL III
(Exact name of Registrant as specified in its charter) (Exact name of Registrants as specified in Trust
Agreements)
DELAWARE DELAWARE
(State or other jurisdiction of incorporation (State or other jurisdiction of incorporation or organization of each
or organization) Registrant)
34-4323452 Applied For
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification Nos.)
C/O OWENS CORNING
OWENS CORNING WORLD HEADQUARTERS OWENS CORNING WORLD HEADQUARTERS
TOLEDO, OHIO 43659 TOLEDO, OHIO 43659
(419) 248-8000 (419) 248-8000
(Address, including zip code, and telephone number, including (Address, including zip code, and telephone number, including
area code, of principal executive offices) area code, of each Registrant's principal executive offices)
</TABLE>
---------------------------
CHRISTIAN L. CAMPBELL, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
OWENS CORNING
OWENS CORNING WORLD HEADQUARTERS
TOLEDO, OHIO 43659
(419) 248-8000
(Name, address, including zip code, and telephone number, including area code,
of agent for service of each Registrant)
---------------------------
Please send copies of all communications to:
RALPH ARDITI, ESQ.
DEBEVOISE & PLIMPTON
875 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 909-6000
---------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective depending upon
market conditions and other factors.
---------------------------
If the only securities being registered on this Form are to be offered pursuant
to dividend or interest reinvestment plans, please check the following box: |_|
If any of the securities being registered on this Form are being offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: |X|
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================
<S> <C> <C> <C> <C>
PROPOSED MAXI-
AMOUNT TO BE MUM AGGREGATE MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED OFFERING PRICE PER OFFERING PRICE(1) REGISTRATION FEE
REGISTERED UNIT(1)
===================================================================================================================
Debt Securities of Owens Corning(2)...
======================================
Preferred Stock of Owens Corning, no
par value.............................
======================================
Common Stock of Owens Corning, $.10
par value(3)(4).......................
======================================
Warrants of Owens Corning(5)..........
======================================
Stock Purchase Contracts of Owens
Corning(6)............................
======================================
Stock Purchase Units of Owens
Corning(7)............................
======================================
Junior Subordinated Deferrable Interes
Debentures of Owens Corning...........
======================================
Preferred Securities of Owens Corning
Capital II............................
======================================
Preferred Securities of Owens Corning
Capital III...........................
======================================
Guarantees by Owens Corning with
respect to Preferred Securities of Owe
Corning Capital II and Owens Corning
Capital III(8)........................
======================================
Total................................. $300,000,000(9) 100% $300,000,000(9)(10) $90,909
===================================================================================================================
<FN>
(1) Estimated for the sole purpose of computing the registration fee pursuant
to Rule 457(o).
(2) Also includes such indeterminate principal amount of Debt Securities
issuable upon exercise of Warrants or upon conversion of or exchange for
any other securities registered hereunder.
(3) Also includes such indeterminate number of shares of Common Stock as may be
issued upon exercise of Warrants on upon conversion of or exchange for
Preferred Stock that provide for conversion into or exchange for Common
Stock.
(4) Includes preferred stock purchase rights. Prior to the occurrence of
certain events, such rights will not be exercisable or evidenced
separately from the Common Stock.
(5) Warrants may be sold separately or with any of the other securities
registered hereunder.
(6) Represents contracts to purchase Preferred Stock or Common Stock.
(7) Represents ownership of Stock Purchase Contracts and Debt Securities,
Preferred Securities or debt obligations of third parties, including U.S.
Treasury securities.
(8) This Registration Statement is deemed to include the obligations of Owens
Corning under the Junior Subordinated Deferrable Interest Debentures, the
related Subordinated Indenture, the Trust Agreements, the Preferred
Securities, the Guarantees and the Expense Agreements as described in the
Registration Statement.
(9) Such amount represents the aggregate principal amount of Debt Securities
and Junior Subordinated Deferrable Interest Debentures issued at their
principal amount, the aggregate issue price (rather than the principal
amount) of any Debt Securities and Junior Subordinated Deferrable Interest
Debentures issued at an original issue discount, the aggregate liquidation
preference of any Preferred Stock, the aggregate amount used when computing
the registration fee pursuant to Rule 457(c) for any Common Stock, the
aggregate issue price of any Warrants, the aggregate exercise price of any
securities issuable upon the exercise of Warrants and the initial public
offering price of any Preferred Securities. Any securities registered
hereunder may be sold separately or as units with other securities
registered hereunder.
(10) No separate consideration will be received for the Common Stock, if
any, issuable upon conversion of or in exchange for Preferred Stock. No
separate consideration will be received for any Junior Subordinated
Deferrable Interest Debentures if issued to evidence a loan by Owens
Corning Capital II or Owens Corning Capital III, or for any related
Guarantee or Expense Agreement.
</TABLE>
---------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
<PAGE> 3
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State or other jurisdiction in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the securities
laws of any such State or jurisdiction.
PROSPECTUS
SUBJECT TO COMPLETION, DATED , 1997
U.S.$300,000,000
OWENS CORNING
DEBT SECURITIES,
PREFERRED STOCK, COMMON STOCK, WARRANTS,
STOCK PURCHASE CONTRACTS, STOCK PURCHASE UNITS AND
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
OWENS CORNING CAPITAL II
OWENS CORNING CAPITAL III
PREFERRED SECURITIES
GUARANTEED AS SET FORTH HEREIN BY
OWENS CORNING
---------------------------
Owens Corning (the "Company") may from time to time offer together or
separately (i) its unsecured debt securities (the "Debt Securities"), (ii)
shares of its preferred stock, no par value per share (the "Preferred Stock"),
(iii) shares of its common stock, $0.10 par value per share (the "Common
Stock"), (iv) warrants to purchase securities of the Company as shall be
designated by the Company at the time of the offering (the "Warrants"), (v)
Stock Purchase Contracts to purchase Preferred Stock or Common Stock (the "Stock
Purchase Contracts"), (vi) Stock Purchase Units, each representing ownership of
a Stock Purchase Contract and Debt Securities, Preferred Securities (as defined
below) or debt obligations of third parties, including U.S. Treasury securities,
securing the holder's obligation to purchase Preferred Stock or Common Stock
under the Stock Purchase Contract (the "Stock Purchase Units"), and (vii) its
junior subordinated deferrable interest debentures (the "Junior Subordinated
Debentures"). Owens Corning Capital II and Owens Corning Capital III, each a
statutory business trust formed under the laws of the State of Delaware (each,
an "Issuer", and, collectively, the "Issuers"), may severally offer, from time
to time, their respective preferred securities (the "Preferred Securities"),
representing preferred undivided beneficial interests in the assets of such
Issuer. The Debt Securities, Preferred Stock, Common Stock, Warrants, Stock
Purchase Contracts, Stock Purchase Units, Junior Subordinated Debentures and
Preferred Securities are collectively called the "Securities".
The Securities offered pursuant to this Prospectus may be issued in one
or more series or issuances and will be limited to U.S.$300,000,000 aggregate
public offering price (or, in the case of Debt Securities and Junior
Subordinated Debentures, its equivalent (based on the applicable exchange rate
at the time of issue) if issued with principal amounts denominated in one or
more foreign currencies, or such greater amount if issued at an original issue
discount, as shall result in aggregate proceeds of U.S.$300,000,000). Certain
specific terms of the particular Securities in respect of which this Prospectus
is being delivered are set forth in the accompanying Prospectus Supplement (the
"Prospectus Supplement"), including, where applicable, (i) in the case of Debt
Securities, the specific designation, aggregate principal amount, the
denomination, the maturity, the premium, if any, the interest rate (which may be
fixed, floating or adjustable rate), if any, the method of calculating payment
of interest, if any, the place or places where principal of, premium, if any,
and interest, if any, on such Debt Securities will be payable, the currency in
which principal of, premium, if any, and interest, if any, on such Debt
Securities will be payable, any terms of redemption at the option of the Company
or of the holder, any sinking fund provisions, the initial public offering price
and other specific terms, (ii) in the case of Preferred Stock, the specific
designation, the stated value and liquidation preference per share, the
aggregate number of shares offered, any dividend rights (including the method of
calculating payment of dividends), the place or places where dividends will be
payable, any redemption, voting and other rights, any terms for conversion or
exchange into Common Stock or property, the initial public offering price and
other specific terms, (iii) in the case of Warrants, the duration, purchase
price, exercise price and detachability of such Warrants and a description of
the securities for which each Warrant is exercisable, (iv) in the case of Common
Stock, the aggregate number of shares offered, the initial public offering
price, the methods of distribution and other special terms, (v) in the case of
Stock Purchase Contracts, the designation and number of shares of Preferred
Stock or Common Stock issuable thereunder, the purchase price of the Preferred
Stock or Common Stock, the date or dates on which the Preferred Stock or Common
Stock is required to be purchased by the holders of the Stock Purchase
Contracts, any periodic payments required to be made by the Company to the
holders of the Stock Purchase Contracts or vice versa, and the terms of the
offering and sale thereof, (vi) in the case of Stock Purchase Units, the
specific terms of the
<PAGE> 4
Stock Purchase Contracts and any Debt Securities, Preferred Securities or debt
obligations of third parties securing the holder's obligation to purchase the
Preferred Stock or Common Stock under the Stock Purchase Contracts, and the
terms of the offering and sale thereof, (vii) in the case of Junior Subordinated
Debentures, the specific designation, aggregate principal amount, denominations,
maturity, interest payment dates, interest rate (which may be fixed or variable)
or method of calculating interest, if any, applicable Extension Period (as
defined below) or interest deferral terms, if any, place or places where
principal, premium, if any, and interest, if any, will be payable, any terms of
redemption, any sinking fund provisions, terms for any conversion or exchange
into other securities, initial offering or purchase price, methods of
distribution and any other special terms, and (viii) in the case of Preferred
Securities, the identity of the Issuer, specific title, aggregate amount, stated
liquidation preference, number of securities, the rate of payment of periodic
cash distributions ("Distributions") or method of calculating such rate,
applicable Extension Period or Distribution deferral terms, if any, place or
places where Distributions will be payable, any terms of redemption, initial
offering or purchase price, methods of distribution and any other special terms.
If so specified in the applicable Prospectus Supplement, the Securities offered
thereby may be issued in whole or in part in the form of one or more temporary
or permanent global securities ("Global Securities").
Unless otherwise specified in a Prospectus Supplement, the Debt
Securities, when issued, will be unsecured and will rank equally with all other
unsecured and unsubordinated indebtedness of the Company. The Junior
Subordinated Debentures will be unsecured and subordinate and junior in right of
payment to Senior Debt (as defined in "Description of Junior Subordinated
Debentures - Subordination") of the Company. If provided in an accompanying
Prospectus Supplement, the Company will have the right to defer payments of
interest on any series of Junior Subordinated Debentures by extending the
interest payment period thereon at any time or from time to time for such number
of consecutive interest payment periods (which shall not extend beyond the
maturity of the Junior Subordinated Debentures) with respect to each deferral
period as may be specified in such Prospectus Supplement (each, an "Extension
Period"). See "Description of Junior Subordinated Debentures - Option to Defer
Interest Payments".
The Company will be the owner of the common securities (the "Common
Securities", and, together with the Preferred Securities, the "Trust
Securities") of each Issuer. The payment of Distributions with respect to the
Preferred Securities of each Issuer and payments on liquidation or redemption
with respect to such Preferred Securities, in each case out of funds held by
such Issuer, will be irrevocably guaranteed by the Company to the extent
described herein (each, a "Guarantee"). See "Description of Guarantees". The
obligations of the Company under each Guarantee will be subordinate and junior
in right of payment to all Senior Debt of the Company. Concurrently with the
issuance by an Issuer of its Preferred Securities, such Issuer will invest the
proceeds thereof and any contributions made in respect of its Common Securities
in a corresponding series of the Junior Subordinated Debentures (the
"Corresponding Junior Subordinated Debentures") with terms corresponding to the
terms of that Issuer's Preferred Securities. The Corresponding Junior
Subordinated Debentures will be the sole assets of each Issuer, and payments
under the Corresponding Junior Subordinated Debentures and the related Expense
Agreement (as defined herein) will be the only revenue of each Issuer. Upon the
occurrence of certain events as are described herein and in the accompanying
Prospectus Supplement, the Company may redeem the Corresponding Junior
Subordinated Debentures and cause the redemption of the related Trust
Securities. In addition, the Company may terminate either or both Issuers at any
time and cause the Corresponding Junior Subordinated Debentures to be
distributed to the holders of such Issuer's Preferred Securities in liquidation
of their interest in such Issuer. See "Description of Preferred Securities -
Redemption--Distribution of Corresponding Junior Subordinated Debentures" and
"--Liquidation Distribution Upon Termination".
Holders of the Preferred Securities will be entitled to receive
preferential cumulative cash Distributions accruing from the date of original
issuance and payable periodically as specified in an accompanying Prospectus
Supplement. If provided in an accompanying Prospectus Supplement, the Company
will have the right to defer payments of interest on any series of Corresponding
Junior Subordinated Debentures by extending the interest payment period thereon
at any time or from time to time for one or more Extension Periods (which shall
not extend beyond the maturity of the Corresponding Junior Subordinated
Debentures). If interest payments are so deferred, Distributions on the
corresponding series of Preferred Securities will also be deferred and the
Company will not be permitted, subject to certain exceptions set forth herein,
to declare or pay any cash distributions with respect to the Company's capital
stock or debt securities that rank pari passu with or junior to the
Corresponding Junior Subordinated Debentures. During an Extension Period,
Distributions will continue to accumulate (and the Preferred
2
<PAGE> 5
Securities will accumulate additional Distributions thereon at the rate per
annum if and as specified in the related Prospectus Supplement). See
"Description of Preferred Securities - Distributions".
Taken together, the Company's obligations under each series of
Corresponding Junior Subordinated Debentures, the Subordinated Indenture (as
defined herein), the related Trust Agreement (as defined herein), the related
Expense Agreement and the related Guarantee, in the aggregate, have the effect
of providing a full, irrevocable and unconditional guarantee of payments of
Distributions and other amounts due on the related series of Preferred
Securities. See "Relationship Among the Preferred Securities, the Corresponding
Junior Subordinated Debentures and the Guarantees".
The Common Stock is listed on the New York Stock Exchange and the
Toronto Stock Exchange under the trading symbol "OWC". Any Common Stock sold
pursuant to a Prospectus Supplement will be listed on such exchanges, subject to
official notice of issuance. The Prospectus Supplement will state whether any
other Securities offered thereby will be listed on any national securities
exchange. If such Securities are not listed on any national securities exchange,
there can be no assurance that there will be a secondary market for any such
Securities.
---------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
---------------------------
The Company may sell the Securities to or through underwriters, through
dealers or agents, directly to purchasers or through a combination of such
methods. See "Plan of Distribution". The accompanying Prospectus Supplement sets
forth the names of any underwriters, dealers or agents, if any, involved in the
sale of the Securities in respect of which this Prospectus is being delivered
and any applicable fee, commission or discount arrangements with them.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
---------------------------
THE DATE OF THIS PROSPECTUS IS _______, 1997.
3
<PAGE> 6
No dealer, salesperson or other person has been authorized to give any
information or make any representations, other than those contained or
incorporated by reference in this Prospectus and the applicable Prospectus
Supplement, and if given or made such information or representations must not be
relied upon as having been authorized by the Company or either Issuer or any
agent, underwriter or dealer. This Prospectus and the applicable Prospectus
Supplement do not constitute an offer of any securities other than those to
which they relate, or an offer to sell or a solicitation of an offer to buy
those to which they relate in any jurisdiction to any person to whom it is
unlawful to make such offer or solicitation in such jurisdiction. The delivery
of this Prospectus and/or the applicable Prospectus Supplement at any time does
not imply that the information herein or therein is correct as of any time
subsequent to its date.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities of the Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the regional
offices of the Commission located at 7 World Trade Center, 13th Floor, Suite
1300, New York, New York 10048 and Suite 1400, Citicorp Center, 14th Floor, 500
West Madison Street, Chicago, Illinois 60661. Copies of such material can also
be obtained at prescribed rates by writing to the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. The Commission
also maintains a site on the world wide web at http://www.sec.gov that contains
reports, proxy and information statements and other information filed
electronically by the Company. In addition, such reports, proxy statements and
other information may be inspected at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005, upon which the Common Stock
is traded.
This Prospectus constitutes a part of a registration statement on Form
S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Company and the Issuers with the Commission under the
Securities Act of 1933, as amended (the "Securities Act"). This Prospectus and
any accompanying Prospectus Supplement do not contain all of the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information with respect to the Company, the Issuers and the Securities offered
hereby, reference is made to the Registration Statement and the exhibits and the
financial statements, notes and schedules filed as a part thereof or
incorporated by reference therein, which may be inspected at the public
reference facilities of the Commission, at the addresses set forth above.
Statements made in this Prospectus and any Prospectus Supplement concerning the
contents of any documents referred to herein are not necessarily complete, and
in each instance are qualified in all respects by reference to the copy of such
document filed as an exhibit to the Registration Statement or otherwise filed
with the Commission.
No separate financial statements of either Issuer have been included
herein. The Company and the Issuers do not consider that such financial
statements would be material to holders of the Preferred Securities because each
Issuer is a newly formed special purpose entity, has no operating history or
independent operations and is not engaged in and does not propose to engage in
any activity other than its holding as trust assets the Corresponding Junior
Subordinated Debentures and the issuance of its Trust Securities. See "The
Issuers", "Description of Junior Subordinated Debentures -- Corresponding Junior
Subordinated Debentures", "Description of Preferred Securities" and "Description
of Guarantees".
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission
pursuant to the Exchange Act are incorporated herein by reference:
4
<PAGE> 7
(1) The Company's Annual Report on Form 10-K (File No. 1-3660) for the
year ended December 31, 1996, filed on March 20,1997 (the "1996
Form 10-K").
(2) Description of the Common Stock contained in the Company's Registration
Statement on Form 8-A, filed on _______________, 1986.
(3) Description of the Company's 1996 Preferred Share Purchase Rights
associated with the Common Stock contained in the Company's
Registration Statement on Form 8-A, filed on December 19, 1996.
All documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof and prior to the termination of the offering of the Securities shall
hereby be deemed to be incorporated by reference into this Prospectus and to be
a part of this Prospectus from the date of filing of such documents. Any
statement contained herein, or in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent that
any statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein or in any
accompanying Prospectus Supplement modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of the Registration Statement or
this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents described above and incorporated by reference
herein (not including the exhibits to such documents, unless such exhibits are
specifically incorporated by reference in such documents). Written or telephone
requests should be directed to: Owens Corning, Owens Corning World Headquarters,
Toledo, Ohio 43659, Attention: Secretary's Office (telephone: (419) 248-8000).
5
<PAGE> 8
THE COMPANY
Owens Corning, a global company incorporated in Delaware in 1938,
serves consumers and industrial customers with high-performance glass composites
and building materials systems. These products are used in industries such as
home improvement, new construction, transportation, marine, aerospace, energy,
appliance, packaging and electronics. Many of these products are marketed under
the trademark FIBERGLAS(R). The Company operates in two industry segments -
Building Materials and Composite Materials - divided into ten businesses. The
Company also has affiliate companies in a number of countries.
The following table summarizes selected information concerning the
Company's industry segments. For further information, see Note 1 of the Notes to
Consolidated Financial Statements of the Company as of December 31, 1996,
incorporated herein by reference.
<TABLE>
<CAPTION>
Year Ended
December 31,
-----------------------
1996(a) 1995
------- --------
(in millions)
<S> <C> <C>
NET SALES:
Building Materials ............................. $2,687 $2,404
Composite Materials ............................ 1,145 1,208
------- -------
Consolidated Net Sales ......................... $3,832 $3,612
======= =======
INCOME (LOSS) FROM OPERATIONS:
Building Materials ............................. $ 219 $ 237
Composite Materials ............................ 222 225
General Corporate Expense ...................... (945) (50)
------- -------
Total Income (Loss) from Operations ............ $ (504) $ 412
======= =======
</TABLE>
(a) Income from operations for the year ended December 31, 1996 includes a net
pretax charge of $875 million for asbestos litigation claims that may be
received after 1999 and probable additional insurance recovery; charges
totaling $42 million, including valuation adjustments associated with prior
divestitures, major product line productivity initiatives and a
contribution to the Owens-Corning Foundation; a pretax charge of $43
million for restructuring and other actions; and a pretax gain of $37
million from the sale of the Company's ownership interest in its former
Japanese affiliate, Asahi Fiber Glass Co. Ltd. The impact of these special
items was to reduce income from operations for Building Materials by $50
million and for Composite Materials by $12 million, and to increase general
corporate expense by $861 million.
The Company's principal executive offices are located at Owens Corning
World Headquarters, Toledo, Ohio 43659, and its telephone number is (419)
248-8000. Unless the context indicates otherwise, references in this Prospectus
to the "Company" include Owens Corning and its consolidated subsidiaries.
THE ISSUERS
Each Issuer is a statutory business trust formed under Delaware law
pursuant to (i) a declaration of trust executed by the Company, as sponsor of
such Issuer, and the Delaware Trustee (as defined herein) of such Issuer and
(ii) the filing of a certificate of trust with the Delaware Secretary of State.
Each declaration of trust will be amended and restated in its entirety (each, as
so amended and restated, a "Trust Agreement") substantially in the form filed as
an exhibit to the Registration Statement of which this Prospectus forms a part.
Each Trust Agreement will be qualified as an indenture under the Trust Indenture
6
<PAGE> 9
Act of 1939, as amended (the "Trust Indenture Act"). Each Issuer exists for the
exclusive purposes of (i) issuing and selling its Trust Securities, (ii) using
the proceeds from the sale of such Trust Securities to acquire Corresponding
Junior Subordinated Debentures issued by the Company and (iii) engaging in only
those other activities necessary, convenient or incidental thereto. Accordingly,
the Corresponding Junior Subordinated Debentures will be the sole assets of each
Issuer, and payments under the Corresponding Junior Subordinated Debentures and
the related Expense Agreement will be the sole revenue of each Issuer.
All of the Common Securities of each Issuer will be owned by the
Company. The Common Securities of an Issuer will rank pari passu, and payments
will be made thereon pro rata, with the Preferred Securities of such Issuer,
except that upon the occurrence and continuance of an event of default under a
Trust Agreement resulting from a Debenture Event of Default (as defined herein),
the rights of the Company as holder of the Common Securities to payment in
respect of Distributions and payments upon liquidation, redemption or otherwise
will be subordinated to the rights of the holders of the Preferred Securities of
such Issuer. See "Description of Preferred Securities -- Subordination of Common
Securities". The Company will acquire Common Securities in an aggregate
liquidation amount equal to not less than 3% of the total capital of each
Issuer.
Unless otherwise specified in the applicable Prospectus Supplement,
each Issuer has a term of approximately 55 years, but may terminate earlier as
provided in the applicable Trust Agreement. Each Issuer's business and affairs
are conducted by its trustees, each appointed by the Company as holder of the
Common Securities: Wilmington Trust Company as the Property Trustee (the
"Property Trustee") and as the Delaware Trustee (the "Delaware Trustee"), and
two individual trustees (the "Administrative Trustees") who are employees or
officers of or affiliated with the Company (collectively, the "Issuer
Trustees"). Wilmington Trust Company, as Property Trustee, will act as sole
indenture trustee under each Trust Agreement for purposes of compliance with the
Trust Indenture Act. Wilmington Trust Company will also act as trustee under
each Guarantee and the Subordinated Indenture. See "Description of Guarantees"
and "Description of Junior Subordinated Debentures". The holder of the Common
Securities of an Issuer, or the holders of a majority in liquidation preference
of the Preferred Securities of such Issuer if a Debenture Event of Default with
respect to the related Corresponding Junior Subordinated Debentures has occurred
and is continuing, will be entitled to appoint, remove or replace the Property
Trustee and/or the Delaware Trustee of such Issuer. In no event will the holders
of the Preferred Securities have the right to vote to appoint, remove or replace
the Administrative Trustees; such voting rights are vested exclusively in the
holder of the Common Securities. The duties and obligations of each Issuer
Trustee are governed by the applicable Trust Agreement. The Company will pay all
fees and expenses related to each Issuer and the offering of its Preferred
Securities and will pay, directly or indirectly, all ongoing costs, expenses and
liabilities of each Issuer. The principal executive office of each Issuer is
located at Owens Corning World Headquarters, Toledo, Ohio 43659, and the
telephone number is (419) 248-8000.
USE OF PROCEEDS
Except as set forth in a Prospectus Supplement, the Company intends to
use the net proceeds from the sale of the Securities (including Corresponding
Junior Subordinated Debentures issued to the Issuers in connection with the
investment by the Issuers of all of the proceeds from the sale of Preferred
Securities) for general corporate purposes, including, without limitation,
working capital, capital expenditures, investments in or loans to subsidiaries,
repurchases or redemptions of the Company's outstanding debt securities or other
reductions of the Company's outstanding borrowings, possible future business
acquisitions, the satisfaction of other obligations or for such other purposes
as may be specified in the applicable Prospectus Supplement.
7
<PAGE> 10
CONDENSED CONSOLIDATED CAPITALIZATION
The following table summarizes the capitalization of the Company and its
consolidated subsidiaries at December 31, 1996. For further information, see
Notes 2, 3, 4, 5, 16 and 17 of Notes to Consolidated Financial Statements of the
Company as of December 31, 1996, incorporated herein by reference.
<TABLE>
<CAPTION>
At December 31, 1996
(in Millions)
---------------------------
<S> <C>
Short-term debt, including current portion of long-term debt .................. $116
----
Long-term debt:
Senior .................................................................... 838
Less: Current portion .................................................. (20)
----
Total long-term debt ...................................................... 818
----
Company obligated convertible security of subsidiary
holding solely parent debentures ("MIPS") ................................. 194
----
Stockholders' equity:
Preferred Stock, no par value; 8 million shares authorized; none issued ... -
Common Stock, $.10 par value; 100 million shares authorized;
52,110,880 shares issued and outstanding(a) ............................ 606
Deficit ................................................................... (1,072)
Foreign currency translation adjustments .................................. (1)
Other ..................................................................... (17)
----
Total stockholders' equity ................................................ (484)
----
Total capitalization .......................................................... $644
====
- ---------------------
<FN>
(a) Does not include shares of Common Stock issuable or which may be issued
pursuant to various stock compensation plans of the Company (see Note
16 of Notes to Consolidated Financial Statements of the Company as of
December 31, 1996, incorporated herein by reference).
</TABLE>
8
<PAGE> 11
SELECTED CONSOLIDATED FINANCIAL INFORMATION
The following table sets forth selected consolidated financial
information of the Company for each of the five fiscal years in the period ended
December 31, 1996, which has been derived from the annual consolidated financial
statements of the Company audited by Arthur Andersen LLP, independent public
accountants. This table should be read in conjunction with those statements, all
of which have been previously filed with the Commission. The following table is
qualified in its entirety by, and should be read in conjunction with,
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" appearing in the 1996 Form 10-K, incorporated herein by reference,
and the consolidated financial information and related notes of the Company
included in the documents incorporated herein by reference. See "Incorporation
of Certain Documents by Reference".
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------------------------------------
1996(a) 1995(b) 1994(c) 1993(d) 1992(e)
---------------------------------------------------------------
(IN MILLIONS OF DOLLARS, EXCEPT PER SHARE DATA AND WHERE NOTED)
---------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Net sales............................... $3,832 $3,612 $3,351 $2,944 $2,878
Gross margin............................ 998 942 815 678 644
Income (loss) from operations........... (504) 412 226 236 213
Cost of borrowed funds.................. 77 87 94 89 110
Net income (loss)....................... (284) 231 159 131 73
Net income (loss) per share (primary)... (5.50) 4.64 3.61 3.00 1.70
Net income (loss) per share
(fully diluted) (5.50) 4.40 3.35 2.81 1.67
Weighted average number of shares
outstanding (in thousands of shares)
(primary).......................... 51,722 49,711 44,209 43,593 43,013
CASH FLOW DATA:
Net cash flow from operations........... 335 285 233 253 192
Capital expenditures.................... 325 276 258 178 144
BALANCE SHEET DATA:
Total assets............................ 3,913 3,261 3,274 3,013 3,162
Total debt.............................. 934 893 1,212 1,004 1,099
Stockholders' equity (deficit).......... (484) (212) (680) (869) (1,008)
RATIO OF EARNINGS TO FIXED CHARGES(f).......... -- 3.67x 2.15x 2.42x 1.88x
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND -- 3.67x 2.15x 2.42x 1.88x
PREFERRED STOCK DIVIDENDS(f)...................
</TABLE>
(a) In 1996 the net loss of $284 million, or $5.50 per share, includes a net
after-tax charge of $542 million, or $10.49 per share, for asbestos
litigation claims that may be received after 1999 and probable additional
insurance recovery; after-tax special charges totaling $27 million, or
$.52 per share, including valuation adjustments associated with prior
divestitures, major product line productivity initiatives and a
contribution to the Owens-Corning Foundation; an after-tax charge of $26
million, or $.50 per share, for restructuring and other actions; a $27
million, or $.52 per share, reduction of tax reserves due to favorable
legislation; and an after-tax gain of $27 million, or $.52 per share,
from the sale of the Company's ownership interest in its former Japanese
affiliate, Asahi Fiber Glass Co. Ltd.
Pursuant to generally accepted accounting principles, common stock
equivalents and convertible securities have been excluded from the
calculations of earnings per share in 1996, due to their anti-dilutive
effect. Consequently, primary and fully diluted earnings per share are
equal for 1996.
(b) Net income for 1995 of $231 million, or $4.64 per share ($4.40 per share
fully diluted), included a one time gain of $8 million or $.16 per share
($.15 per share fully diluted), which was the result of a tax loss
carryback.
9
<PAGE> 12
(c) Net income for 1994 of $159 million, or $3.61 per share ($3.35 per
share fully diluted), included the following offsetting special items: an
after-tax gain of $123 million, or $2.78 per share ($2.45 per share fully
diluted), reflecting a change to the capital method of accounting for the
rebuilding of glass melting facilities; an after-tax charge of $85
million, or $1.92 per share ($1.69 per share fully diluted), for
productivity initiatives and other actions; a non-cash, after-tax charge
of $10 million, or $.23 per share ($.20 per share fully diluted), to
reflect adoption of Statement of Financial Accounting Standards ("SFAS")
No. 106, "Employers' Accounting for Postretirement Benefits Other Than
Pensions" for the Company's non-U.S. plans; and a non-cash, after-tax
charge of $28 million, or $.63 per share ($.56 per share fully diluted),
to reflect adoption of SFAS No. 112, "Employers' Accounting for
Postemployment Benefits".
(d) Net income for 1993 of $131 million, or $3.00 per share ($2.81 per share
fully diluted), included a credit of $26 million, or $.60 per share ($.53
per share fully diluted), for the cumulative effect of adopting the new
accounting standard for income taxes; a one-time gain of $14 million, or
$.33 per share ($.29 per share fully diluted), reflecting a tax benefit
resulting from a revaluation of deferred taxes necessitated by the new
federal tax law; an $8 million pre-tax charge, or $.11 per share ($.10
per share fully diluted), for the writedown of the Company's hydrocarbon
ventures; and a $23 million charge, or $.53 per share ($.47 per share
fully diluted), for the restructuring of the Company's European
operations.
(e) Net income for 1992 was $73 million, or $1.70 per share ($1.67 per share
fully diluted), and included a pre-tax reorganization charge of $16
million, or $.25 per share ($.22 per share fully diluted).
(f) For purposes of the calculation of these ratios, earnings represent net
income before fixed charges, provision for taxes on income, undistributed
earnings of equity basis investments, extraordinary losses from early
retirement of debt and the cumulative effect of accounting changes. Fixed
charges include interest expense and the portion (one-third) of rental
expenses deemed to be representative of interest. Preferred stock
dividends represent only the distributions on the MIPS securities. The
Company's earnings in 1996 were insufficient to cover fixed charges by
approximately $600 million.
10
<PAGE> 13
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures are to be issued in one or
more series under a Junior Subordinated Indenture, as supplemented or amended
from time to time (as so supplemented or amended, the "Subordinated Indenture"),
between the Company and Wilmington Trust Company, as trustee (the "Debenture
Trustee"). This summary of certain terms and provisions of the Junior
Subordinated Debentures and the Subordinated Indenture does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
the Subordinated Indenture, the form of which is filed as an exhibit to the
Registration Statement of which this Prospectus forms a part, and to the Trust
Indenture Act. Whenever particular defined terms of the Subordinated Indenture
are referred to in this Section or in a Prospectus Supplement, such defined
terms are incorporated herein or therein by reference.
GENERAL
Each series of Junior Subordinated Debentures will rank pari
passu with the Company's Convertible Subordinated Debentures due 2025 (the
"Convertible Subordinated Debentures") and with all other series of Junior
Subordinated Debentures, and will be unsecured and subordinate and junior in
right of payment to the extent and in the manner set forth in the Subordinated
Indenture to all Senior Debt (as defined below) of the Company. See "--
Subordination". Except as otherwise provided in the applicable Prospectus
Supplement, the Subordinated Indenture does not limit the incurrence or issuance
of other secured or unsecured debt of the Company, whether under the
Subordinated Indenture, any other indenture that the Company may enter into in
the future or otherwise. See "-- Subordination" and the Prospectus Supplement
relating to any offering of Securities.
The Junior Subordinated Debentures will be issuable in one or
more series pursuant to an indenture supplemental to the Subordinated Indenture
or a resolution of the Company's Board of Directors or a committee thereof.
The applicable Prospectus Supplement or Prospectus Supplements
will describe the following terms of the Junior Subordinated Debentures: (i) the
title of the Junior Subordinated Debentures; (ii) any limit upon the aggregate
principal amount of the Junior Subordinated Debentures; (iii) the date or dates
on which the principal of the Junior Subordinated Debentures is payable or the
method of determination thereof; (iv) the rate or rates, if any, at which the
Junior Subordinated Debentures shall bear interest, the Interest Payment Dates
on which any such interest shall be payable, the right, if any, of the Company
to defer or extend an Interest Payment Date, and the Regular Record Date for any
interest payable on any Interest Payment Date or the method by which any of the
foregoing shall be determined; (v) the place or places where, subject to the
terms of the Subordinated Indenture as described below under "-- Payment and
Paying Agents", the principal of and premium, if any, and interest, if any, on
the Junior Subordinated Debentures will be payable and where, subject to the
terms of the Subordinated Indenture as described below under "-- Denominations,
Registration and Transfer", the Junior Subordinated Debentures may be presented
for registration of transfer or exchange and the place or places where notices
and demands to or upon the Company in respect of the Junior Subordinated
Debentures and the Subordinated Indenture may be made ("Place of Payment"); (vi)
any period or periods within, or date or dates on which, the price or prices at
which and the terms and conditions upon which Junior Subordinated Debentures may
be redeemed, in whole or in part, at the option of the Company or a holder
thereof; (vii) the obligation or the right, if any, of the Company or a holder
thereof to redeem, purchase or repay the Junior Subordinated Debentures and the
period or periods within which, the price or prices at which, the currency or
currencies (including currency unit or units) in which and the other terms and
conditions upon which the Junior Subordinated Debentures shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation; (viii)
the denominations in which any Junior Subordinated Debentures shall be issuable
if other than denominations of $25 and any integral multiple thereof; (ix) if
other than in U.S. Dollars, the currency or currencies (including currency unit
or units) in which the principal of (and premium, if any) and interest, if any,
on the Junior Subordinated Debentures shall be payable, or in which the Junior
Subordinated Debentures shall be denominated; (x) any additions, modifications
or deletions in the Events of Default or
11
<PAGE> 14
covenants of the Company specified in the Subordinated Indenture with respect to
the Junior Subordinated Debentures; (xi) if other than the principal amount
thereof, the portion of the principal amount of Junior Subordinated Debentures
that shall be payable upon declaration of acceleration of the maturity thereof;
(xii) any additions or changes to the Subordinated Indenture with respect to a
series of Junior Subordinated Debentures as shall be necessary to permit or
facilitate the issuance of such series in bearer form, registrable or not
registrable as to principal, and with or without interest coupons; (xiii) any
index or indices used to determine the amount of payments of principal of and
premium, if any, on the Junior Subordinated Debentures and the manner in which
such amounts will be determined; (xiv) the terms and conditions relating to the
issuance of a temporary Global Security representing all of the Junior
Subordinated Debentures of such series and exchange of such temporary Global
Security for definitive Junior Subordinated Debentures of such series; (xv)
subject to the terms described under "-- Global Junior Subordinated Debentures",
whether the Junior Subordinated Debentures of the series shall be issued in
whole or in part in the form of one or more Global Securities and, in such case,
the Subordinated Depositary for such Global Securities, which Subordinated
Depositary shall be a clearing agency registered under the Exchange Act; (xvi)
the appointment of any paying agent or agents; (xvii) the terms and conditions
of any obligation or right of the Company or a holder to convert or exchange
Junior Subordinated Debentures into Preferred Securities or other securities;
(xviii) the relative degree, if any, to which such Junior Subordinated
Debentures of the series shall be senior to or be subordinated to other series
of such Junior Subordinated Debentures or other indebtedness of the Company in
right of payment, whether such other series of Junior Subordinated Debentures or
other indebtedness are outstanding or not; and (xix) any other terms of the
Junior Subordinated Debentures not inconsistent with the provisions of the
Subordinated Indenture.
Junior Subordinated Debentures may be sold at a substantial
discount below their stated principal amount, bearing no interest or interest at
a rate which at the time of issuance is below market rates. Certain material
U.S. federal income tax consequences and special considerations applicable to
any such Junior Subordinated Debentures will be described in the applicable
Prospectus Supplement.
If the purchase price of any of the Junior Subordinated
Debentures is payable in one or more foreign currencies or currency units or if
any Junior Subordinated Debentures are denominated in one or more foreign
currencies or currency units or if the principal of, premium, if any, or
interest, if any, on any Junior Subordinated Debentures is payable in one or
more foreign currencies or currency units, the restrictions, elections, certain
material U.S. federal income tax considerations, specific terms and other
information with respect to such issue of Junior Subordinated Debentures and
such foreign currency or currency units will be set forth in the applicable
Prospectus Supplement.
If any index is used to determine the amount of payments of
principal of, premium, if any, or interest on any series of Junior Subordinated
Debentures, certain material U.S. federal income tax, accounting and other
considerations applicable thereto will be described in the applicable Prospectus
Supplement.
DENOMINATIONS, REGISTRATION AND TRANSFER
Unless otherwise specified in the applicable Prospectus
Supplement, the Junior Subordinated Debentures will be issuable only in
registered form without coupons in denominations of $25 and any integral
multiple thereof. Junior Subordinated Debentures of any series will be
exchangeable for other Junior Subordinated Debentures of the same issue and
series, of any authorized denominations, of a like aggregate principal amount,
of the same Original Issue Date and Stated Maturity and bearing the same
interest rate.
Junior Subordinated Debentures may be presented for exchange as
provided above, and may be presented for registration of transfer (with the form
of transfer endorsed thereon, or a satisfactory written instrument of transfer,
duly executed), at the office of the appropriate Securities Registrar or at the
office of any transfer agent designated by the Company for such purpose with
respect to any series of Junior Subordinated Debentures and referred to in the
applicable Prospectus Supplement, without service
12
<PAGE> 15
charge and upon payment of any taxes and other governmental charges as described
in the Subordinated Indenture. The Company will appoint the Debenture Trustee as
Securities Registrar under the Subordinated Indenture. If the applicable
Prospectus Supplement refers to any transfer agents (in addition to the
Securities Registrar) initially designated by the Company with respect to any
series of Junior Subordinated Debentures, the Company may at any time rescind
the designation of any such transfer agent or approve a change in the location
through which any such transfer agent acts, provided that the Company maintains
a transfer agent in each Place of Payment for such series. The Company may at
any time designate additional transfer agents with respect to any series of
Junior Subordinated Debentures.
In the event of any redemption, neither the Company nor the
Debenture Trustee shall be required to (i) issue, register the transfer of or
exchange Junior Subordinated Debentures of any series during a period beginning
at the opening of business 15 days before the day of selection for redemption of
Junior Subordinated Debentures of that series and ending at the close of
business on the day of mailing of the relevant notice of redemption or (ii)
transfer or exchange any Junior Subordinated Debentures so selected for
redemption, except, in the case of any Junior Subordinated Debentures being
redeemed in part, any portion thereof not to be redeemed.
GLOBAL JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures of a series may be issued in
whole or in part in the form of one or more Global Junior Subordinated
Debentures that will be deposited with, or on behalf of, a depositary (the
"Subordinated Depositary") identified in the Prospectus Supplement relating to
such series. Global Junior Subordinated Debentures may be issued only in fully
registered form and in either temporary or permanent form. Unless and until it
is exchanged in whole or in part for the individual Junior Subordinated
Debentures represented thereby, a Global Junior Subordinated Debenture may not
be transferred except as a whole by the Subordinated Depositary for such Global
Junior Subordinated Debenture to a nominee of such Subordinated Depositary or by
a nominee of such Subordinated Depositary to such Subordinated Depositary or
another nominee of such Subordinated Depositary or by the Subordinated
Depositary or any nominee to a successor Subordinated Depositary or any nominee
of such successor.
The specific terms of the depositary arrangement with respect to
a series of Junior Subordinated Debentures will be described in the Prospectus
Supplement relating to such series. The Company anticipates that the following
provisions will generally apply to depositary arrangements.
Upon the issuance of a Global Junior Subordinated Debenture, and
the deposit of such Global Junior Subordinated Debenture with or on behalf of
the Subordinated Depositary, the Subordinated Depositary for such Global Junior
Subordinated Debenture or its nominee will credit on its book-entry registration
and transfer system, the respective principal amounts of the individual Junior
Subordinated Debentures represented by such Global Junior Subordinated Debenture
to the accounts of persons that have accounts with such Subordinated Depositary
("Participants"). Such accounts shall be designated by the dealers, underwriters
or agents with respect to such Junior Subordinated Debentures or by the Company
if such Junior Subordinated Debentures are offered and sold directly by the
Company. Ownership of beneficial interests in a Global Junior Subordinated
Debenture will be limited to Participants or persons that may hold interests
through Participants. Ownership of beneficial interests in such Global Junior
Subordinated Debenture will be shown on, and the transfer of that ownership will
be effected only through, records maintained by the applicable Subordinated
Depositary or its nominee (with respect to interests of Participants) and the
records of Participants (with respect to interests of persons who hold through
Participants). The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a Global Junior Subordinated Debenture.
13
<PAGE> 16
So long as the Subordinated Depositary for a Global Junior
Subordinated Debenture, or its nominee, is the registered owner of such Global
Junior Subordinated Debenture, such Subordinated Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Junior
Subordinated Debentures represented by such Global Junior Subordinated Debenture
for all purposes under the Subordinated Indenture. Except as provided below,
owners of beneficial interests in a Global Junior Subordinated Debenture will
not be entitled to have any of the individual Junior Subordinated Debentures of
the series represented by such Global Junior Subordinated Debenture registered
in their names, will not receive or be entitled to receive physical delivery of
any such Junior Subordinated Debentures of such series in definitive form and
will not be considered the owners or holders thereof under the Subordinated
Indenture.
Payments of principal of (and premium, if any) and interest on
individual Junior Subordinated Debentures represented by a Global Junior
Subordinated Debenture registered in the name of the Subordinated Depositary or
its nominee will be made to the Subordinated Depositary or its nominee, as the
case may be, as the registered owner of the Global Junior Subordinated Debenture
representing such Junior Subordinated Debentures. None of the Company, the
Debenture Trustee, any paying agent, or the Securities Registrar for such Junior
Subordinated Debentures will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership
interest of the Global Junior Subordinated Debenture for such Junior
Subordinated Debentures or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
The Company expects that the Subordinated Depositary for a series
of Junior Subordinated Debentures or its nominee, upon receipt of any payment of
principal, premium or interest in respect of a permanent Global Junior
Subordinated Debenture representing any of such Junior Subordinated Debentures,
immediately will credit Participants' accounts with payments in amounts
proportionate to their respective beneficial interest in the principal amount of
such Global Junior Subordinated Debenture for such Junior Subordinated
Debentures as shown on the records of such Subordinated Depositary or its
nominee. The Company also expects that payments by Participants to owners of
beneficial interests in such Global Junior Subordinated Debenture held through
such Participants will be governed by standing instructions and customary
practices, as is now the case with securities held for the accounts of customers
in bearer form or registered in "street name". Such payments will be the
responsibility of such Participants.
Unless otherwise specified in the applicable Prospectus
Supplement, if the Subordinated Depositary for a series of Junior Subordinated
Debentures is at any time unwilling, unable or ineligible to continue as
depositary and a successor depositary is not appointed by the Company within 90
days, the Company will issue individual Junior Subordinated Debentures of such
series in exchange for the Global Junior Subordinated Debenture representing
such series of Junior Subordinated Debentures. In addition, the Company may at
any time and in its sole discretion, subject to any limitations described in the
Prospectus Supplement relating to such Junior Subordinated Debentures, determine
not to have any Junior Subordinated Debentures of such series represented by one
or more Global Junior Subordinated Debentures and, in such event, will issue
individual Junior Subordinated Debentures of such series in exchange for such
Global Junior Subordinated Debentures. Further, if the Company so specifies with
respect to the Junior Subordinated Debentures of a series, an owner of a
beneficial interest in a Global Junior Subordinated Debenture representing
Junior Subordinated Debentures of such series may, on terms acceptable to the
Company, the Debenture Trustee and the Subordinated Depositary for such Global
Junior Subordinated Debenture, receive individual Junior Subordinated Debentures
of such series in exchange for such beneficial interests, subject to any
limitations described in the Prospectus Supplement relating to such Junior
Subordinated Debentures. In any such instance, an owner of a beneficial interest
in a Global Junior Subordinated Debenture will be entitled to physical delivery
of individual Junior Subordinated Debentures of the series represented by such
Global Junior Subordinated Debenture equal in principal amount to such
beneficial interest and to have such Junior Subordinated Debentures registered
in its name. Individual Junior Subordinated Debentures of such series so issued
will be issued in denominations, unless otherwise specified by the Company, of
$25 and integral multiples thereof.
14
<PAGE> 17
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus
Supplement, payment of principal of (and premium, if any) and any interest on
Junior Subordinated Debentures will be made at the office of the Debenture
Trustee in The City of New York or at the office of such paying agent or paying
agents as the Company may designate from time to time in the applicable
Prospectus Supplement, except that at the option of the Company payment of any
interest may be made (i) except in the case of Global Junior Subordinated
Debentures, by check mailed to the address of the person or entity entitled
thereto as such address shall appear in the Securities Register or (ii) by
transfer to an account maintained by the person or entity entitled thereto as
specified in the Securities Register, provided that proper transfer instructions
have been received by the Regular Record Date. Unless otherwise indicated in the
applicable Prospectus Supplement, payment of any interest on Junior Subordinated
Debentures will be made to the person or entity in whose name such Junior
Subordinated Debenture is registered at the close of business on the Regular
Record Date for such interest, except in the case of Defaulted Interest. The
Company may at any time designate additional paying agents or rescind the
designation of any paying agent; however, the Company will at all times be
required to maintain a paying agent in each Place of Payment for each series of
Junior Subordinated Debentures.
Any moneys deposited with the Debenture Trustee or any paying
agent, or held by the Company in trust, for the payment of the principal of (and
premium, if any) or interest on any Junior Subordinated Debenture and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall, at the request of the Company, be repaid to
the Company or released from such trust, as applicable, and the holder of such
Junior Subordinated Debenture shall thereafter look, as a general unsecured
creditor, only to the Company for payment thereof.
REDEMPTION
Unless otherwise indicated in the applicable Prospectus
Supplement, Junior Subordinated Debentures will not be subject to any sinking
fund.
Unless otherwise indicated in the applicable Prospectus
Supplement, the Company may, at its option, redeem the Junior Subordinated
Debentures of any series in whole at any time or in part from time to time, at
the redemption price set forth in the applicable Prospectus Supplement plus
accrued and unpaid interest to the date fixed for redemption. Junior
Subordinated Debentures in denominations larger than $25 may be redeemed in part
but only in integral multiples of $25. If the Junior Subordinated Debentures of
any series are so redeemable only on or after a specified date or upon the
satisfaction of additional conditions, the applicable Prospectus Supplement will
specify such date or describe such conditions.
Except as otherwise specified in the applicable Prospectus
Supplement, if a Debenture Tax Event (as defined below or in the applicable
Prospectus Supplement) in respect of a series of Junior Subordinated Debentures
or a Special Event (as defined in "Description of Preferred Securities --
Redemption -- Mandatory Redemption" below or in the applicable Prospectus
Supplement) in respect of an Issuer shall occur and be continuing, the Company
may, at its option, redeem such series of Junior Subordinated Debentures or the
related series of Corresponding Junior Subordinated Debentures, as the case may
be, in whole (but not in part) within 90 days of the occurrence of such
Debenture Tax Event or Special Event, at a redemption price equal to 100% of the
principal amount of such Junior Subordinated Debentures or Corresponding Junior
Subordinated Debentures then outstanding plus accrued and unpaid interest to the
date fixed for redemption.
"Debenture Tax Event" means the receipt by the Company of an
opinion of counsel experienced in such matters to the effect that, as a result
of (i) any amendment to, or change (including any announced prospective change)
in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein affecting taxation,
(ii) any amendment to or change in an interpretation or application of such laws
or regulations by any legislative body, court,
15
<PAGE> 18
governmental agency or regulatory authority or (iii) any interpretation or
pronouncement that provides for a position with respect to such laws or
regulations that differs from the generally accepted position on the date the
applicable series of Junior Subordinated Debentures is issued, which amendment
or change is effective or which interpretation or pronouncement is announced on
or after the date of issuance of the applicable series of Junior Subordinated
Debentures under the Subordinated Indenture, there is more than an insubstantial
risk that interest payable by the Company on such series of Junior Subordinated
Debentures is not, or within 90 days of the date thereof, will not be,
deductible, in whole or in part, for U.S. federal income tax purposes.
Notice of any redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each holder of Junior
Subordinated Debentures to be redeemed at such holder's registered address.
Unless the Company defaults in the payment of the redemption price, on and after
the redemption date interest shall cease to accrue on such Junior Subordinated
Debentures or portions thereof called for redemption.
POSSIBLE TAX LAW CHANGES
On February 6, 1997, the Clinton Administration released its
budget proposal for fiscal year 1998. The proposal contains certain tax law
changes that, if enacted, would prohibit an issuer from deducting interest
payments or original issue discount on an instrument that has a maximum weighted
average maturity of more than 40 years. Under the proposal, for purposes of
determining the term of an instrument, any right to extend would be treated as
exercised. The Administration's proposal, if enacted, would also treat a
corporate issuer that files annual financial statements with the Commission as
having characterized an instrument as equity for purposes of section 385(c) of
the Internal Revenue Code of 1986, as amended, if the instrument (i) has a
maximum term exceeding 15 years and (ii) is not shown as indebtedness on the
applicable balance sheet of the issuer or, in the case of indebtedness issued to
a related party that issues a related instrument, such related instrument is not
shown as indebtedness on the applicable consolidated balance sheet. Under
section 385(c), the characterization by the issuer of an instrument as equity is
binding on the issuer and all holders of the instrument unless a holder
discloses on his tax return that he is treating such instrument in a manner
inconsistent with the issuer's characterization. The Administration's proposal
specifies that the changes would be effective for instruments issued on or after
the date of first Congressional committee action.
There can be no assurance that legislation affecting the
Company's ability to deduct interest paid on the Junior Subordinated Debentures
or the characterization of the Junior Subordinated Debentures as indebtedness
for U.S. federal income tax purposes, including legislation similar to the
proposals described above, will not be enacted in the future or that any such
legislation would not be effective retroactively. In the event tax law changes
are enacted and apply retroactively to the Junior Subordinated Debentures, such
changes could give rise to a Debenture Tax Event, which would permit the Company
to cause a redemption of such Junior Subordinated Debentures, as described more
fully under "-- Redemption" or, in the case of Corresponding Junior Subordinated
Debentures, such changes could give rise to a Special Event, which would permit
the Company to cause a redemption of the related Preferred Securities and Common
Securities, as described more fully under "Description of Preferred Securities
- -- Redemption -- Special Event Redemption."
OPTION TO DEFER INTEREST PAYMENTS
If provided in the applicable Prospectus Supplement, the Company
shall have the right at any time and from time to time during the term of any
series of Junior Subordinated Debentures to defer the payment of interest for
such number of consecutive interest payment periods as may be specified in the
applicable Prospectus Supplement (each, an "Extension Period"), subject to the
terms, conditions and covenants, if any, specified in such Prospectus
Supplement, provided that such Extension Period may not extend beyond the Stated
Maturity of the Junior Subordinated Debentures. Certain material U.S. federal
income tax consequences and special considerations applicable to any such Junior
Subordinated Debentures will be described in the applicable Prospectus
Supplement.
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RESTRICTIONS ON CERTAIN PAYMENTS
The Company will covenant, as to each series of Junior
Subordinated Debentures, that it will not, and will not permit any subsidiary of
the Company to, (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of the
Company's capital stock (other than as a result of a reclassification of such
capital stock or the exchange or conversion of one class or series of capital
stock for another class or series) or (ii) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities (including other Junior Subordinated Debentures) that rank pari passu
with or junior in interest to the Junior Subordinated Debentures or make any
guarantee payments with respect to the foregoing (in each case other than (a)
dividends or distributions in common stock of the Company, (b) redemptions or
purchases of any rights pursuant to the 1996 Rights Agreement (as defined
herein), or any successor to such Rights Agreement, and the declaration
thereunder of a dividend of rights in the future, (c) payments under any
Guarantee and (d) guarantee payments to the Company from a subsidiary thereof)
if at such time (x) there shall have occurred any event of which the Company has
actual knowledge (A) that with the giving of notice or the lapse of time, or
both, would constitute a Debenture Event of Default under the Subordinated
Indenture with respect to Junior Subordinated Debentures of such series and (B)
in respect of which the Company shall not have taken reasonable steps to cure,
(y) if such Junior Subordinated Debentures are held by an Issuer of related
Preferred Securities, the Company shall be in default with respect to its
payment of any obligations under the Guarantee relating to such Preferred
Securities or (z) the Company shall have given notice of its selection of an
Extension Period as provided in the Subordinated Indenture with respect to
Junior Subordinated Debentures of such series and shall not have rescinded such
notice, or such Extension Period, or any extension thereof, shall be continuing.
MODIFICATION OF SUBORDINATED INDENTURE
From time to time the Company and the Debenture Trustee may,
without the consent of the holders of any series of Junior Subordinated
Debentures, amend, waive or supplement the Subordinated Indenture for specified
purposes, including, among other things, curing ambiguities, defects or
inconsistencies (provided that any such action does not materially adversely
affect the interest of the holders of any series of Junior Subordinated
Debentures or, in the case of Corresponding Junior Subordinated Debentures, the
holders of the corresponding series of Preferred Securities so long as they
remain outstanding) and qualifying, or maintaining the qualification of, the
Subordinated Indenture under the Trust Indenture Act. The Subordinated Indenture
contains provisions permitting the Company and the Debenture Trustee, with the
consent of the holders of not less than a majority in principal amount of each
outstanding series of Junior Subordinated Debentures affected, to modify the
Subordinated Indenture in a manner affecting the rights of the holders of such
series of the Junior Subordinated Debentures; provided, that no such
modification may, without the consent of the holder of each outstanding Junior
Subordinated Debenture so affected, (i) change the Stated Maturity of any series
of Junior Subordinated Debentures (except as otherwise specified in the
applicable Prospectus Supplement), or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon (except such
extension as may be contemplated in the applicable Prospectus Supplement) or
(ii) reduce the percentage of principal amount of Junior Subordinated Debentures
of any series, the holders of which are required to consent to any such
modification of the Subordinated Indenture, provided that, in the case of
Corresponding Junior Subordinated Debentures, so long as any of the
corresponding series of Preferred Securities remain outstanding, no such
modification may be made that adversely affects the holders of such Preferred
Securities, and no termination of the Subordinated Indenture may occur, and no
waiver of any Debenture Event of Default or compliance with any covenant under
the Subordinated Indenture may be effective, without the prior consent of the
holders of at least a majority of the aggregate liquidation preference of such
Preferred Securities unless and until the principal of the Corresponding Junior
Subordinated Debentures and all accrued and unpaid interest thereon have been
paid in full or provided for in accordance with the Subordinated Indenture.
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In addition, the Company and the Debenture Trustee may execute,
without the consent of any holder of Junior Subordinated Debentures, any
supplemental Subordinated Indenture for the purpose of creating any new series
of Junior Subordinated Debentures.
DEBENTURE EVENTS OF DEFAULT
The Subordinated Indenture provides that any one or more of the
following described events with respect to a series of Junior Subordinated
Debentures that has occurred and is continuing constitutes a "Debenture Event of
Default" with respect to such series of Junior Subordinated Debentures:
(i) failure for 30 days to pay any interest on such series of the
Junior Subordinated Debentures, when due (subject to the deferral of
any due date in the case of an Extension Period); or
(ii) failure to pay any principal or premium, if any, on such
series of Junior Subordinated Debentures when due whether at maturity,
upon redemption, by declaration or otherwise; or
(iii) failure to observe or perform in any material respect
certain other covenants contained in the Subordinated Indenture for 90
days after written notice has been given to the Company from the
Debenture Trustee or the holders of at least 25% in principal amount of
such series of outstanding Junior Subordinated Debentures; or
(iv) certain events in bankruptcy, insolvency or reorganization
of the Company.
The holders of a majority in outstanding principal amount of such
series of Junior Subordinated Debentures have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Debenture Trustee. The Debenture Trustee or the holders of not less than 25% in
aggregate outstanding principal amount of such series of Junior Subordinated
Debentures may declare the principal due and payable immediately upon a
Debenture Event of Default, and, in the case of Corresponding Junior
Subordinated Debentures, should the Debenture Trustee or such holders of such
Corresponding Junior Subordinated Debentures fail to make such declaration, the
holders of at least 25% in aggregate Liquidation Amount (as defined in
"Description of Preferred Securities -- Redemption -- Change of Maturity of
Corresponding Junior Subordinated Debentures" below) of the related Preferred
Securities shall have such right. The holders of a majority in aggregate
outstanding principal amount of such series of Junior Subordinated Debentures
may annul such declaration and waive the default if the default (other than the
non-payment of the principal of such series of Junior Subordinated Debentures
which has become due solely by such acceleration) has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Debenture Trustee. In
the case of Corresponding Junior Subordinated Debentures, should the holders of
such Corresponding Junior Subordinated Debentures fail to so annul such
declaration and waive such default, the holders of a majority in aggregate
Liquidation Amount of the related Preferred Securities shall have such right.
The holders of a majority in outstanding principal amount of the
Junior Subordinated Debentures affected thereby may, on behalf of the holders of
all the Junior Subordinated Debentures, waive any past default, except a default
in the payment of principal or interest (unless such default has been cured and
a sum sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Debenture Trustee) or
a default in respect of a covenant or provision which under the Subordinated
Indenture cannot be modified or amended without the consent of the holder of
each outstanding Junior Subordinated Debenture. In the case of Corresponding
Junior Subordinated Debentures, should the holders of such Corresponding Junior
Subordinated Debentures fail to so waive such a past default, the holders of a
majority in aggregate Liquidation Amount of the related Preferred Securities
shall have such right. The Company is required to file annually with the
Debenture Trustee a certificate as to whether or not the Company is in
compliance with all the conditions and covenants applicable to it under the
Subordinated Indenture.
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In case a Debenture Event of Default shall occur and be
continuing as to a series of Corresponding Junior Subordinated Debentures, the
Property Trustee will have the right to declare the principal of and the
interest on such Corresponding Junior Subordinated Debentures, and any other
amounts payable under the Subordinated Indenture, to be forthwith due and
payable and to enforce its other rights as a creditor with respect to such
Corresponding Junior Subordinated Debentures.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If a Debenture Event of Default with respect to a series of
Junior Subordinated Debentures has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest or principal on such
Junior Subordinated Debentures on the date such interest or principal is
otherwise payable, a holder of the related Preferred Securities may institute a
legal proceeding directly against the Company for enforcement of payment to such
holder of the principal of or interest on such Junior Subordinated Debentures
having a principal amount equal to the aggregate Liquidation Amount of the
related Preferred Securities of such holder (a "Direct Action"). The Company may
not amend the Subordinated Indenture to remove the foregoing right to bring a
Direct Action without the prior written consent of the holders of all of the
related Preferred Securities. If the right to bring a Direct Action is removed,
the applicable Issuer may become subject to the reporting obligations under the
Exchange Act. The Company shall have the right under the Subordinated Indenture
to set-off any payment made to such holder of Preferred Securities by the
Company in connection with a Direct Action. The holders of Preferred Securities
will not be able to exercise directly any other remedy available to the holders
of the Junior Subordinated Debentures unless there shall have been an Event of
Default under the applicable Trust Agreement. See "Description of Preferred
Securities--Events of Default; Notice".
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Subordinated Indenture provides that the Company shall not
consolidate with or merge into any other person or entity or sell, assign,
convey, transfer or lease its properties and assets substantially as an entirety
to any person or entity, and no person or entity shall consolidate with or merge
into the Company or sell, assign, convey, transfer or lease its properties and
assets substantially as an entirety to the Company, unless (i) in case the
Company consolidates with or merges into another person or entity or sells,
assigns, conveys, transfers or leases its properties and assets substantially as
an entirety to any person or entity, the successor person or entity is organized
under the laws of the United States or any state or the District of Columbia,
and such successor person or entity expressly assumes the Company's obligations
on the Junior Subordinated Debentures issued under the Subordinated Indenture;
(ii) immediately after giving effect thereto, no Debenture Event of Default, and
no event which, after notice or lapse of time or both, would become a Debenture
Event of Default, shall have happened and be continuing; and (iii) in the case
of Corresponding Junior Subordinated Debentures, such transaction is permitted
under the related Trust Agreement and Guarantee and does not give rise to any
breach or violation of such Trust Agreement or Guarantee.
The general provisions of the Subordinated Indenture do not
afford holders of the Junior Subordinated Debentures protection in the event of
a highly leveraged or other transaction involving the Company that may adversely
affect holders of the Junior Subordinated Debentures.
SATISFACTION AND DISCHARGE
The Subordinated Indenture provides that when, among other
things, all Junior Subordinated Debentures not previously delivered to the
Debenture Trustee for cancellation (i) have become due and payable or (ii) will
become due and payable at their Stated Maturity within one year, and the Company
deposits or causes to be deposited with the Debenture Trustee, as trust funds in
trust for the purpose, an amount in the currency or currencies in which the
Junior Subordinated Debentures are payable sufficient to pay and discharge the
entire indebtedness on the Junior Subordinated Debentures not previously
delivered to the Debenture Trustee for cancellation, for the principal (and
premium, if any) and interest to the date of the deposit or to the Stated
Maturity, as the case may be, then the Subordinated Indenture will
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cease to be of further effect (except as to the Company's obligations to pay all
other sums due pursuant to the Subordinated Indenture and to provide the
officers' certificates and opinions of counsel described therein), and the
Company will be deemed to have satisfied and discharged the Subordinated
Indenture.
CONVERSION OR EXCHANGE
If and to the extent indicated in the applicable Prospectus
Supplement, the Junior Subordinated Debentures of any series may be convertible
or exchangeable into Preferred Securities or other securities. The specific
terms on which Junior Subordinated Debentures of any series may be so converted
or exchanged will be set forth in the applicable Prospectus Supplement. Such
terms may include provisions for conversion or exchange, either mandatory, at
the option of the holder, or at the option of the Company, in which case the
number of shares of Preferred Securities or other securities to be received by
the holders of Junior Subordinated Debentures would be calculated as of a time
and in the manner stated in the applicable Prospectus Supplement.
SUBORDINATION
In the Subordinated Indenture, the Company has covenanted and
agreed that any Junior Subordinated Debentures issued thereunder will be
subordinate and junior in right of payment to all Senior Debt to the extent
provided in the Subordinated Indenture. In the event of any dissolution,
winding-up, liquidation or reorganization of the Company (whether voluntary or
involuntary and whether in bankruptcy, insolvency or receivership proceedings,
or upon an assignment for the benefit of creditors or any other marshalling of
the assets and liabilities of the Company or otherwise), all Senior Debt will
first be paid in full before any payment or distribution may be made in respect
of the principal of (and premium, if any) or interest, if any, on the Junior
Subordinated Debentures.
The Company may not make any payment with respect to the Junior
Subordinated Debentures if and for so long as (i) any Senior Debt is or becomes
due and payable (whether at maturity, for an installment of principal or
interest, upon acceleration, for mandatory prepayment, or otherwise) and remains
unpaid; (ii) any Senior Debt Default (as defined below) has occurred and has not
been cured or waived in conformity with the terms of the instrument, indenture
or agreement governing such Senior Debt; or (iii) a payment by the Company with
respect to the Junior Subordinated Debentures would, immediately after giving
effect thereto, result in a Senior Debt Default.
A payment with respect to the Junior Subordinated Debentures
shall include, without limitation, payment of principal of, premium, if any, and
interest on the Junior Subordinated Debentures, the purchase of Junior
Subordinated Debentures by the Company and any other payment other than a
payment in stock or any equity securities.
"Senior Debt Default" means the failure to make any payment of
any Senior Debt when due or the happening of an event of default with respect to
any Senior Debt, as defined therein or in the instrument under which the same is
outstanding, which, by its terms, if occurring prior to the stated maturity of
such Senior Debt, permits or with the giving of notice or lapse of time (or
both) would permit any holder thereof, any group of such holders or any trustee
or representative for such holders thereupon to accelerate the maturity thereof
or which results in such acceleration, including, without limitation, a
"Default" under the Credit Agreement, dated as of November 2, 1993, by and among
the Company, the several financial institutions listed on Annex A thereof and
Credit Suisse, as Agent, as in effect and as amended, renewed, extended or
supplemented from time to time, and any document, instrument or agreement
executed and delivered in connection therewith, whether or not such Senior Debt
or instrument has been avoided, disallowed or subordinated.
"Senior Debt" means all indebtedness incurred, assumed or
guaranteed, directly or indirectly, by the Company, either before, on, or after
the date the Junior Subordinated Debentures are issued, without any limitation
as to the amount or terms thereof, and whether such indebtedness (including, but
not limited to, interest on any such indebtedness) arises or accrues before or
after the commencement of
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any bankruptcy, insolvency or receivership proceedings, (i) which arises for
borrowed money, securities sold, funds provided, assets or services purchased or
any other transaction whether or not in the ordinary course of business and
which is evidenced by a promissory note, bond, debenture, writing or other
instrument of indebtedness or reflected on the accounting records of the Company
as a payable (but expressly excluding (A) amounts owed for compensation to
employees, (B) obligations owing under judgments arising out of obligations that
are not indebtedness for borrowed money (other than any such obligations arising
from obligations which are otherwise Senior Debt), (C) any indebtedness which by
the terms of the instrument creating or evidencing the same is not superior in
right of payment to or is junior in right of payment to the Junior Subordinated
Debentures, (D) any liability for federal, state, local or other taxes owed or
owing by the Company, (E) any liability in respect of any employee benefit plan
(including, without limitation, any liability to the Pension Benefit Guaranty
Corporation or any successor thereto), (F) indebtedness or obligations to a
subsidiary of the Company and (G) the Convertible Subordinated Debentures); (ii)
for any amount payable with respect to any lease, conditional sale or
installment sale agreement or other financing instrument or agreement which in
accordance with generally accepted accounting principles is, at the date of the
initial issuance of the Junior Subordinated Debentures or at the time the lease,
conditional sale or installment sale agreement or other financing instrument or
agreement is entered into, assumed or guaranteed, directly or indirectly, by the
Company, required to be reflected as a liability on the face of the balance
sheet of the Company; (iii) for all principal of and interest on all loans and
other extensions of credit under any lines of credit, revolving credit
agreements or promissory notes from a bank or other financial institution
(including, without limitation, any letters of credit, bankers' acceptances,
performance bonds and other credit facilities under such borrowing
arrangements), and all fees, expenses, reimbursements, indemnities, premiums and
other amounts payable under such borrowing arrangements; (iv) for any amounts
payable in respect of any interest rate exchange agreement, ceiling rate
agreement, currency exchange agreement or similar agreement; and (v) for
renewals, deferrals, amendments, modifications, supplements, extensions or
refundings of any of the indebtedness described in clauses (i) through (iv),
inclusive, or evidences of indebtedness issued in exchange for such Senior Debt.
Senior Debt shall continue to constitute Senior Debt for all purposes of the
Junior Subordinated Debentures, and these provisions shall continue to apply to
such Senior Debt, notwithstanding the fact that such Senior Debt or any claim in
respect thereof shall be disallowed, avoided or subordinated pursuant to the
provisions of the United States Bankruptcy Code of 1978, as amended, or other
applicable law.
The Subordinated Indenture places no limitation on the amount of
additional Senior Debt that may be incurred by the Company. The Company expects
from time to time to incur additional indebtedness constituting Senior Debt.
The Subordinated Indenture provides that the foregoing
subordination provisions, insofar as they relate to any particular issue of
Junior Subordinated Debentures, may be changed prior to such issuance. Any such
change would be described in the Prospectus Supplement relating to such Junior
Subordinated Debentures.
GOVERNING LAW
The Subordinated Indenture and the Junior Subordinated Debentures
will be governed by and construed in accordance with the laws of the State of
New York.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee shall have and be subject to all the duties
and responsibilities specified with respect to an indenture trustee under the
Trust Indenture Act. Subject to such provisions, the Debenture Trustee is under
no obligation to exercise any of the powers vested in it by the Subordinated
Indenture at the request of any holder of Junior Subordinated Debentures, unless
offered reasonable indemnity by such holder against the costs, expenses and
liabilities which might be incurred thereby. The Debenture Trustee is not
required to expend or risk its own funds or otherwise incur personal financial
liability in the performance of its duties if the Debenture Trustee reasonably
believes that repayment or adequate indemnity is not reasonably assured to it.
Wilmington Trust Company, the Debenture Trustee, is also
Property Trustee and Delaware Trustee under each Trust Agreement, Guarantee
Trustee under each Guarantee and the Trustee under the Indenture relating to
the Debt Securities. The Company maintains trust and other business
relationships in the ordinary course of business with Wilmington Trust
Company. Pursuant to the provisions of the TIA, upon the occurrence of certain
events, Wilmington Trust Company may be deemed to have a conflicting interest,
by virtue of its acting as the Property Trustee, the Delaware Trustee, the
Debenture Trustee and the Guarantee Trustee, its acting as the Trustee under
the Indenture relating to the Debt Securities and its other business
relationships with the Company, thereby requiring it to resign and be replaced
by a successor trustee under any or all of the Junior Subordinated Indenture,
each Trust Agreement and each Guarantee, or the Indenture relating to the Debt
Securities.
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CORRESPONDING JUNIOR SUBORDINATED DEBENTURES
General
The Corresponding Junior Subordinated Debentures are to be
issued in one or more series of Junior Subordinated Debentures under the
Subordinated Indenture with terms corresponding to the terms of the related
Preferred Securities. Concurrently with the issuance of an Issuer's Preferred
Securities, such Issuer will invest the proceeds thereof and the consideration
paid by the Company for the related Common Securities in a series of
Corresponding Junior Subordinated Debentures issued by the Company to such
Issuer. Each series of Corresponding Junior Subordinated Debentures will be in
the principal amount equal to the aggregate stated Liquidation Amount of the
related Preferred Securities plus the Company's concurrent investment in the
related Common Securities and will rank pari passu with the Convertible
Subordinated Debentures and with all other series of Junior Subordinated
Debentures, if any. The Corresponding Junior Subordinated Debentures will be
unsecured and subordinate and junior in right of payment to the extent and in
the manner set forth in the Subordinated Indenture to all Senior Debt of the
Company. See "-- Subordination" and the Prospectus Supplement relating to any
offering of corresponding Preferred Securities. Holders of Preferred Securities
relating to a series of Corresponding Junior Subordinated Debentures will have
the rights in connection with modifications to the Subordinated Indenture or
upon occurrence of Debenture Events of Default described under "-- Modification
of Indenture", "-- Debenture Events of Default", and "Enforcement of Certain
Rights by Holders of Preferred Securities", April 1, 1997 unless otherwise
provided in the applicable Prospectus Supplement.
Optional Redemption
Unless otherwise specified in the applicable Prospectus
Supplement, if a Special Event in respect of an Issuer shall occur and be
continuing, the Company may, at its option, redeem the Corresponding Junior
Subordinated Debentures at any time within 90 days of the occurrence of such
Special Event, in whole but not in part, subject to the provisions of the
Subordinated Indenture. The redemption price for such Corresponding Junior
Subordinated Debentures shall be equal to 100% of the principal amount of such
Corresponding Junior Subordinated Debentures then outstanding plus accrued and
unpaid interest to the date fixed for redemption. Unless otherwise specified in
the applicable Prospectus Supplement, the Company also may, at its option,
redeem Corresponding Junior Subordinated Debentures in whole at any time or in
part from time to time. See "Description of Junior Subordinated Debentures --
Redemption".
For so long as the applicable Issuer is the holder of all the
outstanding series of Corresponding Junior Subordinated Debentures, the proceeds
of any redemption thereof will be used by such Issuer to redeem the
corresponding Trust Securities in accordance with their terms. The Company may
not redeem a series of Corresponding Junior Subordinated Debentures in part
unless all accrued and unpaid interest has been paid in full on all outstanding
Corresponding Junior Subordinated Debentures of such series for all interest
periods terminating on or prior to the Redemption Date.
Certain Covenants of the Company
The Company will covenant in the Subordinated Indenture, as to
each series of Corresponding Junior Subordinated Debentures, that if and for so
long as (i) the Issuer of the corresponding Trust Securities is the holder of
all such Corresponding Junior Subordinated Debentures, (ii) a Tax Event (as
defined in "Description of Preferred Securities--Redemption--Change of Maturity
of Corresponding Junior Subordinated Debentures" or in the applicable Prospectus
Supplement) in respect of such Issuer has occurred and is continuing and (iii)
the Company has not elected to redeem such corresponding Junior Subordinated
Debentures or to liquidate such Issuer, the Company will pay to such Issuer
Additional Sums (as defined in "Description of Preferred
Securities--Redemption--Change of Maturity of Corresponding Junior Subordinated
Debentures" or in the applicable Prospectus Supplement) in respect of such Trust
Securities. The Company will also covenant, as to each series of Corresponding
Junior Subordinated
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Debentures, (i) to maintain directly or indirectly 100% ownership of the Common
Securities of the Issuer in respect of which such Corresponding Junior
Subordinated Debentures have been issued, provided that certain successors which
are permitted pursuant to the Subordinated Indenture may succeed to the
Company's ownership of the Common Securities, (ii) not to voluntarily terminate,
wind-up or liquidate the applicable Issuer, except (a) in connection with a
distribution of Corresponding Junior Subordinated Debentures to the holders of
such Issuer's Preferred Securities in liquidation of such Issuer, or (b) in
connection with certain mergers, consolidations or amalgamations permitted by
the related Trust Agreement and (iii) to use its reasonable efforts, consistent
with the terms and provisions of the related Trust Agreement, to cause such
Issuer to remain a grantor trust and not to be classified as an association
taxable as a corporation for U.S. federal income tax purposes.
DESCRIPTION OF PREFERRED SECURITIES
Pursuant to the terms of the Trust Agreement for each Issuer, the
Issuer Trustees on behalf of such Issuer will issue the Preferred Securities and
the Common Securities. The Preferred Securities of a particular issue will
represent preferred undivided beneficial interests in the assets of the related
Issuer and the holders thereof will be entitled to a preference in certain
circumstances with respect to Distributions and amounts payable on redemption or
liquidation over the Common Securities of such Issuer, as well as other benefits
as described in the applicable Trust Agreement. This summary of certain
provisions of the Preferred Securities and each Trust Agreement does not purport
to be complete and is subject to, and is qualified in its entirety by reference
to, all the provisions of each Trust Agreement, including the definitions
therein of certain terms, and the Trust Indenture Act. Wherever particular
defined terms of a Trust Agreement are referred to in this Section or in a
Prospectus Supplement, such defined terms are incorporated herein by reference.
The form of Trust Agreement has been filed as an exhibit to the Registration
Statement of which this Prospectus forms a part. Each of the Issuers is a
legally separate entity and the assets of one Issuer are not available to
satisfy the obligations of the other Issuer.
GENERAL
The Preferred Securities of an Issuer will rank pari passu, and
payments will be made thereon pro rata, with the Common Securities of that
Issuer except as described under "-- Subordination of Common Securities". Legal
title to the Corresponding Junior Subordinated Debentures will be held by the
Property Trustee in trust for the benefit of the holders of the related
Preferred Securities and Common Securities. Each Guarantee Agreement executed by
the Company for the benefit of the holders of an Issuer's Preferred Securities
(each, a "Guarantee") will be a guarantee on a subordinated basis with respect
to the related Preferred Securities but will not guarantee payment of
Distributions or amounts payable on redemption or liquidation of such Preferred
Securities when the related Issuer does not have funds on hand available to make
such payments. See "Description of Guarantees".
DISTRIBUTIONS
Each Issuer's Preferred Securities represent preferred undivided
beneficial interests in the assets of such Issuer, and the Distributions on each
Preferred Security will be payable at a rate specified in the Prospectus
Supplement for such Preferred Securities. The amount of Distributions payable
for any period will be computed on the basis of a 360-day year of twelve 30-day
months unless otherwise specified in the applicable Prospectus Supplement.
Distributions that are in arrears will accumulate additional Distributions
thereon at the rate per annum if and as specified in the applicable Prospectus
Supplement ("Additional Amounts"). The term "Distributions" as used herein
includes any Additional Amounts unless otherwise stated.
Distributions on the Preferred Securities will be cumulative,
will accumulate from the date of original issuance and will be payable on such
dates as specified in the applicable Prospectus Supplement. In the event that
any date on which Distributions are payable on the Preferred Securities is not a
Business Day (as defined below), payment of the Distribution payable on such
date will be made on the next
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succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay) except that, if such Business Day is in the next
succeeding calendar year, payment of such Distribution shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date (each date on which Distributions are payable in
accordance with the foregoing, a "Distribution Date"). A "Business Day" shall
mean any day other than a Saturday or a Sunday, or a day on which banking
institutions in The City of New York are authorized or required by law or
executive order to remain closed or a day on which the corporate trust office of
the Property Trustee or the Debenture Trustee is closed for business.
If provided in the applicable Prospectus Supplement, the Company
has the right under the Subordinated Indenture, pursuant to which it will issue
the Corresponding Junior Subordinated Debentures, to defer the payment of
interest at any time and from time to time on any series of the Corresponding
Junior Subordinated Debentures, for a period which will be specified in such
Prospectus Supplement relating to such series (each, an "Extension Period"),
provided that no Extension Period may extend beyond the Stated Maturity of the
Corresponding Junior Subordinated Debentures. As a consequence of any such
deferral, Distributions on the corresponding Preferred Securities would be
deferred (but would continue to accumulate additional Distributions thereon at
the rate per annum if and as specified in the Prospectus Supplement for such
Preferred Securities) by the Issuer of such Preferred Securities during any such
Extension Period. In the event that the Company exercises this right, during
such Extension Period the Company may not, and may not permit any subsidiary of
the Company to, (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the
Company's capital stock (other than as a result of a reclassification of such
capital stock or the exchange or conversion of one class or series of capital
stock for another class or series) or (ii) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities that rank pari passu with or junior in interest to the Corresponding
Junior Subordinated Debentures or make any guarantee payments with respect to
the foregoing (in each case other than (a) dividends or distributions in common
stock of the Company, (b) redemptions or purchases of any rights pursuant to the
1996 Rights Agreement, or any successor to such Rights Agreement, and the
declaration thereunder of a dividend of rights in the future, (c) payments under
any Guarantee and (d) guarantee payments to the Company from a subsidiary
thereof).
It is anticipated that the revenue of each Issuer available for
distribution to holders of its Preferred Securities will be limited to payments
under the Corresponding Junior Subordinated Debentures in which such Issuer will
invest the proceeds from the issuance and sale of its Preferred Securities and
its Common Securities. See "Description of Junior Subordinated Debentures --
Corresponding Junior Subordinated Debentures". If the Company does not make
interest payments on such Corresponding Junior Subordinated Debentures, the
Property Trustee will not have funds available to pay Distributions on the
corresponding Preferred Securities. The payment of Distributions (if and to the
extent an Issuer has funds legally available for the payment of such
Distributions and cash sufficient to make such payments) is guaranteed by the
Company on a limited basis as set forth herein under "Description of
Guarantees".
Distributions on the Preferred Securities will be payable to the
holders thereof as they appear on the register of the applicable Issuer on the
relevant record dates, which, as long as the Preferred Securities remain in
book-entry form, will be one Business Day prior to the relevant Distribution
Date. Subject to any applicable laws and regulations and the provisions of the
applicable Trust Agreement, each such payment will be made as described under
"Book-Entry Issuance". In the event any Preferred Securities are not in
book-entry form, the relevant record date for such Preferred Securities shall be
the date, at least 15 days prior to the relevant Distribution Date, that is
specified in the applicable Prospectus Supplement.
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REDEMPTION
Mandatory Redemption
Upon the repayment or redemption, in whole or in part, of any
Corresponding Junior Subordinated Debentures, whether at maturity or upon
earlier redemption as provided in the Subordinated Indenture, the proceeds from
such repayment or redemption shall be applied by the Property Trustee to redeem
a Like Amount (as defined below) of the related Trust Securities, upon not less
than 30 nor more than 60 days notice, at a redemption price (the "Redemption
Price") equal to the aggregate Liquidation Amount of such Trust Securities plus
accumulated and unpaid Distributions thereon to the date of redemption (the
"Redemption Date") and the related amount of the premium, if any, paid by the
Company upon the concurrent redemption of such Corresponding Junior Subordinated
Debentures. See "Description of Junior Subordinated Debentures -- Corresponding
Junior Subordinated Debentures -- Optional Redemption". If less than all of any
series of Corresponding Junior Subordinated Debentures are to be repaid or
redeemed on a Redemption Date, then the proceeds from such repayment or
redemption shall be allocated to the redemption pro rata of the related
Preferred Securities and the related Common Securities. The amount of premium,
if any, paid by the Company upon the redemption of all or any part of any series
of any Corresponding Junior Subordinated Debentures to be repaid or redeemed on
a Redemption Date shall be allocated to the redemption pro rata of the related
Preferred Securities and the related Common Securities.
The Company will have the right to redeem any series of
Corresponding Junior Subordinated Debentures (i) in whole at any time or in part
from time to time, at the redemption price described under "Description of
Junior Subordinated Debentures -- Redemption", (ii) in whole (but not in part),
within 90 days of the occurrence of a Tax Event or an Investment Company Event
(each as defined below or in the applicable Prospectus Supplement, a "Special
Event"), at the redemption price described under "Description of Junior
Subordinated Debentures -- Corresponding Junior Subordinated Debentures --
Optional Redemption", or (iii) as may be otherwise specified in the applicable
Prospectus Supplement.
Distribution of Corresponding Junior Subordinated Debentures
The Company has the right at any time to terminate an Issuer and,
after satisfaction of the liabilities of creditors of such Issuer as provided by
applicable law, to cause the Corresponding Junior Subordinated Debentures in
respect of the Trust Securities issued by such Issuer to be distributed to the
holders of such Trust Securities in liquidation of such Issuer.
After the liquidation date fixed for any distribution of
Corresponding Junior Subordinated Debentures for any Preferred Securities of an
Issuer (i) such Preferred Securities will no longer be deemed to be outstanding,
(ii) the Depositary (if any) for such Preferred Securities, as the record holder
of such Preferred Securities, will receive a registered global certificate or
certificates representing the Corresponding Junior Subordinated Debentures to be
delivered upon such distribution and (iii) any certificates representing such
Preferred Securities not held by or on behalf of such Depositary will be deemed
to represent the Corresponding Junior Subordinated Debentures having a principal
amount equal to the Liquidation Amount of such Preferred Securities, and bearing
accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on such Preferred Securities, until such certificates are
presented to the Administrative Trustees or their agent for transfer or
reissuance.
There can be no assurance as to the market prices for the
Preferred Securities or the Corresponding Junior Subordinated Debentures that
may be distributed in exchange for Preferred Securities if a dissolution or
liquidation of an Issuer were to occur. Accordingly, the Preferred Securities
that an investor may purchase, or the Corresponding Junior Subordinated
Debentures that the investor may receive on dissolution or liquidation of an
Issuer, may trade at a discount to the price that the investor paid to purchase
the Preferred Securities offered hereby.
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Special Event Redemption
If a Special Event in respect of the Trust Securities of an
Issuer shall occur and be continuing, the Company will have the right to redeem
the Corresponding Junior Subordinated Debentures in whole (but not in part) and
therefore cause a mandatory redemption of such Trust Securities in whole (but
not in part) at the Redemption Price within 90 days following the occurrence of
such Special Event. If a Special Event in respect of the Trust Securities of an
Issuer has occurred and is continuing and the Company does not elect to redeem
the Corresponding Junior Subordinated Debentures and thereby cause a mandatory
redemption of such Trust Securities, or to terminate such Issuer and cause the
Corresponding Junior Subordinated Debentures to be distributed to holders of
such Trust Securities in liquidation of such Issuer, the applicable Preferred
Securities will remain outstanding and, in the event a Tax Event has occurred
and is continuing, unless otherwise specified in the applicable Prospectus
Supplement, Additional Sums, if any, will be payable on the Corresponding Junior
Subordinated Debentures.
Change of Maturity of Corresponding Junior Subordinated Debentures
If provided in the applicable Prospectus Supplement, the Company
shall have the right to extend or shorten the maturity of any series of
Corresponding Junior Subordinated Debentures at the time that the Company
exercises its right to elect to terminate the related Issuer and cause such
Corresponding Junior Subordinated Debentures to be distributed to the holders of
the Preferred Securities and Common Securities of such Issuer in liquidation of
such Issuer, provided that it can extend the maturity only if certain conditions
specified in the applicable Prospectus Supplement are met at the time such
election is made and at the time of such extension.
"Additional Sums" means the additional amounts as may be
necessary in order that the amount of Distributions then due and payable by an
Issuer on the outstanding Preferred Securities and Common Securities of such
Issuer shall not be reduced as a result of any additional taxes, duties and
other governmental charges to which such Issuer has become subject as a result
of a Tax Event (other than withholding taxes).
"Tax Event" means the receipt by an Issuer of an opinion of
counsel experienced in such matters to the effect that, as a result of (i) any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting taxation, (ii) any
amendment to or change in an interpretation or application of such laws or
regulations by any legislative body, court, governmental agency or regulatory
authority or (iii) any interpretation or pronouncement that provides for a
position with respect to such laws or regulations that differs from the
generally accepted position on the date the applicable Preferred Securities are
issued, which amendment or change is effective or which interpretation or
pronouncement is announced on or after the date of issuance of the applicable
Preferred Securities under the Trust Agreement, there is more than an
insubstantial risk that (x) the applicable Issuer is, or will be within 90 days
of the date thereof, subject to U.S. federal income tax with respect to income
received or accrued on the Corresponding Junior Subordinated Debentures, (y)
interest payable by the Company on such Corresponding Junior Subordinated
Debentures is not, or within 90 days of the date thereof, will not be,
deductible, in whole or in part, for U.S. federal income tax purposes, or (z)
such Issuer is, or will be within 90 days of the date thereof, subject to more
than a de minimis amount of other taxes, duties or other governmental charges.
"Investment Company Event" means the occurrence of a change in
law or regulation or a change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law") to the effect that the applicable Issuer
is or will be considered an "investment company" that is required to be
registered under the Investment Company Act of 1940, as amended (the "Investment
Company Act"), which Change in 1940 Act Law becomes effective on or after the
date of original issuance of the applicable Preferred Securities.
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"Like Amount" means (i) with respect to a redemption of any Trust
Securities of an Issuer, Trust Securities of such Issuer having a Liquidation
Amount equal to that portion of the principal amount of Corresponding Junior
Subordinated Debentures to be contemporaneously redeemed in accordance with the
Subordinated Indenture, allocated to the Common Securities and to the Preferred
Securities based upon the relative Liquidation Amounts of such classes of Trust
Securities, and the proceeds of which will be used to pay the Redemption Price
of such Trust Securities, and (ii) with respect to a distribution of
Corresponding Junior Subordinated Debentures to holders of any Trust Securities
of an Issuer in connection with a dissolution or liquidation of such Issuer,
Corresponding Junior Subordinated Debentures having a principal amount equal to
the Liquidation Amount of the Trust Securities of the holder to whom such
Corresponding Junior Subordinated Debentures are distributed. "Liquidation
Amount" means the stated amount of $25 per Preferred Security and Common
Security.
REDEMPTION PROCEDURES
Preferred Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the applicable proceeds from the
contemporaneous redemption of the Corresponding Junior Subordinated Debentures.
Redemptions of Preferred Securities shall be made and the Redemption Price shall
be payable on each Redemption Date only to the extent that the related Issuer
has funds on hand available for the payment of such Redemption Price. See also
"-- Subordination of Common Securities".
If an Issuer gives a notice of redemption in respect of its
Preferred Securities, then, on the Redemption Date, to the extent funds are
available, the Property Trustee will deposit irrevocably with the Depositary for
such Preferred Securities (if such Preferred Securities are issued in the form
of one or more Global Preferred Securities) funds sufficient to pay the
applicable Redemption Price and will give such Depository irrevocable
instructions and authority to pay the Redemption Price to the beneficial owners
of such Preferred Securities. See "-- Global Preferred Securities" and
"Book-Entry Issuance". If such Preferred Securities are not issued in the form
of one or more Global Preferred Securities, such Issuer, to the extent funds are
available, will irrevocably deposit with the paying agent for such Preferred
Securities funds sufficient to pay the applicable Redemption Price and will give
such paying agent irrevocable instructions and authority to pay the Redemption
Price to the holders thereof upon surrender of their certificates evidencing
such Preferred Securities. Notwithstanding the foregoing, Distributions payable
on or prior to the Redemption Date for any Preferred Securities called for
redemption shall be payable to the holders of such Preferred Securities on the
relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then upon the
date of such deposit, all rights of the holders of such Preferred Securities so
called for redemption will cease, except the right of the holders of such
Preferred Securities to receive the Redemption Price, but without interest on
such Redemption Price, and such Preferred Securities will cease to be
outstanding. In the event that any date fixed for redemption of Preferred
Securities is not a Business Day, then payment of the Redemption Price payable
on such date will be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any such delay), except
that, if such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day. In the event that payment of the
Redemption Price in respect of Preferred Securities called for redemption is
improperly withheld or refused and not paid either by the applicable Issuer or
by the Company pursuant to the applicable Guarantee as described under
"Description of Guarantees", Distributions on such Preferred Securities will
continue to accumulate at the then applicable rate, from the Redemption Date
originally established by such Issuer for such Preferred Securities to the date
such Redemption Price is actually paid, in which case the actual payment date
will be the date fixed for redemption for purposes of calculating the Redemption
Price.
Subject to applicable law (including, without limitation, U. S.
federal securities law), the Company or its subsidiaries may at any time and
from time to time purchase outstanding Preferred Securities by tender, in the
open market or by private agreement.
If less than all of the Preferred Securities and Common
Securities issued by an Issuer are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of such Preferred Securities
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<PAGE> 30
and Common Securities to be redeemed shall be allocated pro rata among the
Preferred Securities and Common Securities of such Issuer based on the relative
Liquidation Amounts of such classes of Trust Securities. The particular
Preferred Securities to be redeemed shall be selected on a pro rata basis not
more than 60 days prior to the Redemption Date by the Property Trustee from the
outstanding Preferred Securities not previously called for redemption, by such
method as the Property Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to $25 or an
integral multiple of $25 in excess thereof) of the Liquidation Amount of
Preferred Securities of a denomination larger than $25. The Property Trustee
shall promptly notify the registrar in writing of the Preferred Securities
selected for redemption and, in the case of any Preferred Securities selected
for partial redemption, the Liquidation Amount thereof to be redeemed. For all
purposes of each Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities shall relate, in
the case of any Preferred Securities redeemed or to be redeemed only in part, to
the portion of the aggregate Liquidation Amount of Preferred Securities which
has been or is to be redeemed.
Notice of any redemption will be mailed at least 30 days but not
more than 60 days before the Redemption Date to each holder of Preferred
Securities to be redeemed at its registered address. Unless the Company defaults
in payment of the Redemption Price on the Junior Subordinated Debentures, on and
after the Redemption Date interest will cease to accrue on the Junior
Subordinated Debentures or portions thereof (and Distributions will cease to
accumulate on the Preferred Securities or portions thereof) called for
redemption.
POSSIBLE TAX LAW CHANGES
On February 6, 1997, the Clinton Administration released its
budget proposal, containing certain tax law changes, for fiscal year 1998. See
"Description of Junior Subordinated Debentures -- Possible Tax Law Changes".
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, each Issuer's Preferred Securities
and Common Securities, as applicable, shall be made pro rata based on the
Liquidation Amount of such Preferred Securities and Common Securities; provided,
however, that if on any Distribution Date or Redemption Date a Debenture Event
of Default shall have occurred and be continuing, no payment of any Distribution
(including Additional Amounts, if applicable) on, or Redemption Price of, any of
such Issuer's Common Securities, and no other payment on account of the
redemption, liquidation or other acquisition of such Common Securities, shall be
made unless payment in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all of such Issuer's
outstanding Preferred Securities for all Distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full amount
of such Redemption Price on all of such Issuer's outstanding Preferred
Securities then called for redemption, shall have been made or provided for, and
all funds available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions (including Additional Amounts, if
applicable) on, or Redemption Price of, such Issuer's Preferred Securities then
due and payable.
In the case of any Event of Default under a Trust Agreement
resulting from a Debenture Event of Default, the Company as holder of the
applicable Issuer's Common Securities will be deemed to have waived any right to
act with respect to any such Event of Default under such Trust Agreement until
the effect of all such Events of Default with respect to the applicable
Preferred Securities have been cured, waived or otherwise eliminated. Until any
such Events of Default under such Trust Agreement have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
holders of such Preferred Securities and not on behalf of the Company as holder
of such Issuer's Common Securities, and only the holders of such Preferred
Securities will have the right to direct the Property Trustee to act on their
behalf.
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LIQUIDATION DISTRIBUTION UPON TERMINATION
Pursuant to each Trust Agreement, the applicable Issuer shall
automatically terminate upon expiration of its term and shall be terminated by
the Company on the first to occur of: (i) the occurrence of certain events of
bankruptcy, dissolution or liquidation of the Company; (ii) the distribution of
a Like Amount of the Corresponding Junior Subordinated Debentures to the holders
of its Trust Securities in the event the Company as Depositor has given written
direction to the Property Trustee to terminate such Issuer (which direction is
optional and wholly within the discretion of the Company as Depositor); (iii)
the redemption of all of such Issuer's Preferred Securities; and (iv) an order
for the dissolution of such Issuer shall have been entered by a court of
competent jurisdiction.
If an early termination occurs as described in clause (i), (ii)
or (iv) above, the applicable Issuer shall be liquidated by the Issuer Trustees
as expeditiously as the Issuer Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of such Issuer as
provided by applicable law, to the holders of the applicable Trust Securities a
Like Amount of the Corresponding Junior Subordinated Debentures, unless such
distribution is determined by the Property Trustee not to be practical, in which
event such holders will be entitled to receive out of the assets of such Issuer
available for distribution to holders, after satisfaction of liabilities to
creditors of such Issuer as provided by applicable law, an amount equal to, in
the case of holders of Preferred Securities, the aggregate of the Liquidation
Amount plus accrued and unpaid Distributions thereon to the date of payment
(such amount being the "Liquidation Distribution"). If such Liquidation
Distribution can be paid only in part because such Issuer has insufficient
assets available to pay in full the aggregate Liquidation Distribution, then the
amounts payable directly by such Issuer on its Preferred Securities shall be
paid on a pro rata basis. The holder(s) of such Issuer's Common Securities will
be entitled to receive distributions upon any such liquidation pro rata with the
holders of its Preferred Securities, except that if a Debenture Event of Default
has occurred and is continuing, the Preferred Securities shall have a priority
over the Common Securities. A supplemental Subordinated Indenture may provide
that if an early termination occurs as described in clause (iv) above, the
Corresponding Junior Subordinated Debentures may be subject to optional
redemption in whole (but not in part).
EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an "Event of Default"
under each Trust Agreement (an "Event of Default") with respect to the Preferred
Securities issued thereunder (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) the occurrence of a Debenture Event of Default under the
Subordinated Indenture (see "Description of Junior Subordinated
Debentures -- Debenture Events of Default"); or
(ii) default by the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such
default for a period of 30 days; or
(iii) default by the Property Trustee in the payment of any
Redemption Price of any Trust Security when it becomes due and
payable; or
(iv) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Issuer Trustees in such
Trust Agreement (other than a covenant or warranty a default in the
performance of which or the breach of which is dealt with in clause
(ii) or (iii) above), and continuation of such default or breach for a
period of 90 days after written notice has been given to the defaulting
Issuer Trustee or Trustees by the holders of at least 25% in aggregate
Liquidation Amount of the outstanding Preferred Securities, which
notice shall specify such default or breach and require it to be
remedied and shall state that such notice is a "Notice of Default"
under such Trust Agreement; or
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(v) the occurrence of certain events of bankruptcy or insolvency
with respect to the Property Trustee and the failure by the Company to
appoint a successor Property Trustee within 60 days thereof.
Within five Business Days after the occurrence of any Event of
Default actually known to the Property Trustee, the Property Trustee shall
transmit notice of such Event of Default to the holders of the applicable
Issuer's Preferred Securities, the Administrative Trustees and the Company, as
Depositor, unless such Event of Default shall have been cured or waived. The
Company, as Depositor, and the Administrative Trustees are required to file
annually with the Property Trustee a certificate as to whether or not they are
in compliance with all the conditions and covenants applicable to them under the
applicable Trust Agreement.
If a Debenture Event of Default has occurred and is continuing,
the Preferred Securities of an Issuer shall have a preference over the Common
Securities of such Issuer upon termination of such Issuer as described above.
See "-- Liquidation Distribution Upon Termination." The existence of an Event of
Default does not entitle the holders of Preferred Securities to accelerate the
maturity thereof.
REMOVAL OF ISSUER TRUSTEES
Unless a Debenture Event of Default shall have occurred and be
continuing, any Issuer Trustee may be removed at any time by the holder of the
Common Securities. If a Debenture Event of Default with respect to any series of
Corresponding Junior Subordinated Debentures has occurred and is continuing, the
Property Trustee and the Delaware Trustee may be removed at such time by the
holders of a majority in Liquidation Amount of the outstanding Preferred
Securities of the relevant Issuer. In no event will the holders of the Preferred
Securities of an Issuer have the right to vote to appoint, remove or replace the
Administrative Trustees, which voting rights are vested exclusively in the
Company as the holder of the Common Securities of such Issuer. No resignation or
removal of an Issuer Trustee and no appointment of a successor trustee shall be
effective until the acceptance of appointment by the successor trustee in
accordance with the provisions of the applicable Trust Agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an Event of Default with respect to the Preferred
Securities of an Issuer shall have occurred and be continuing, at any time or
times, for the purpose of meeting the legal requirements of the Trust Indenture
Act or of any jurisdiction in which any part of the Trust Property may at the
time be located, the Company, as the holder of the Common Securities of such
Issuer, and the Administrative Trustees shall have power to appoint one or more
persons either to act as a co-trustee, jointly with the Property Trustee, of all
or any part of such Trust Property, or to act as separate trustee of any such
property, in either case with such powers as may be provided in the instrument
of appointment, and to vest in such person or persons in such capacity any
property, title, right or power deemed necessary or desirable, subject to the
provisions of the applicable Trust Agreement. In case a Debenture Event of
Default has occurred and is continuing, the Property Trustee alone shall have
power to make such appointment.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any entity into which the Property Trustee, the Delaware Trustee
or any Administrative Trustee that is not a natural person may be merged or
converted or with which it may be consolidated, or any entity resulting from any
merger, conversion or consolidation to which such Trustee shall be a party, or
any entity succeeding to all or substantially all the corporate trust business
of such Trustee, shall be the successor of such Trustee under the Trust
Agreements, provided such entity shall be otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE ISSUERS
An Issuer may not merge with or into, consolidate, amalgamate, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body,
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except as described below. An Issuer may, at the request of the Company, with
the consent of the Administrative Trustees and without the consent of the
holders of its Preferred Securities, merge with or into, consolidate,
amalgamate, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to a trust organized as such under the laws
of any State; provided, that (i) such successor entity either (a) expressly
assumes all of the obligations of such Issuer with respect to its Preferred
Securities or (b) substitutes for such Preferred Securities other securities
having substantially the same terms as such Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank the same in priority as
such Preferred Securities with respect to distributions and payments upon
liquidation, redemption and otherwise, (ii) the Company expressly appoints a
trustee of such successor entity possessing the same powers and duties as the
Property Trustee as the holder of the related Corresponding Junior Subordinated
Debentures, (iii) the Successor Securities are listed, or any Successor
Securities will be listed upon notification of issuance, on any national
securities exchange or other organization on which such Preferred Securities are
then listed, (iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause such Preferred Securities
(including any Successor Securities) to be downgraded by any nationally
recognized statistical rating organization, (v) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of such Preferred
Securities (including any Successor Securities) in any material respect, (vi)
such successor entity has a purpose identical to that of such Issuer, (vii)
prior to such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease the Company has received an opinion from independent counsel
to such Issuer experienced in such matters to the effect that (a) such merger,
consolidation, amalgamation, replacement conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of such
Preferred Securities (including any Successor Securities) in any material
respect, and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease neither such Issuer nor such
successor entity will be required to register as an investment company under the
Investment Company Act and (viii) the Company or any permitted successor or
assignee owns all of the Common Securities of such successor entity and
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the applicable Guarantee.
Notwithstanding the foregoing, an Issuer shall not, except with the consent of
holders of 100% in Liquidation Amount of its Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to any other entity or
permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger, replacement, conveyance,
transfer or lease would cause such Issuer or the successor entity to be
classified as other than a grantor trust for U.S. federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF TRUST AGREEMENTS
Except as provided below and under "Description of Guarantees --
Amendments and Assignment" and as otherwise required by law and each Trust
Agreement, the holders of the Preferred Securities will have no voting rights.
A Trust Agreement may be amended from time to time by the Company
and the Issuer Trustees, without the consent of the holders of the applicable
Preferred Securities (i) to cure any ambiguity, correct or supplement any
provisions in such Trust Agreement which may be inconsistent with any other
provision, or to make any other provisions with respect to matters or questions
arising under such Trust Agreement, which shall not be inconsistent with the
other provisions of such Trust Agreement, or (ii) to modify, eliminate or add to
any provisions of such Trust Agreement to such extent as shall be necessary to
ensure that the applicable Issuer will be classified for U.S. federal income tax
purposes as a grantor trust at all times that any Trust Securities of such
Issuer are outstanding or to ensure that such Issuer will not be required to
register as an "investment company" under the Investment Company Act; provided,
however, that in the case of clause (i), such action shall not adversely affect
in any material respect the interests of any holder of Trust Securities of such
Issuer, and any amendments of such Trust Agreement shall become effective when
notice thereof is given to the holders of Trust Securities of such Issuer. A
Trust Agreement may be amended by the Issuer Trustees and the Company with (i)
the consent of holders
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representing not less than a majority (based upon Liquidation Amounts) of the
outstanding Trust Securities of the applicable Issuer and (ii) receipt by the
Issuer Trustees of an opinion of counsel to the effect that such amendment or
the exercise of any power granted to the Issuer Trustees in accordance with such
amendment will not affect the Issuer's status as a grantor trust for U.S.
federal income tax purposes or such Issuer's exemption from status of an
"investment company" under the Investment Company Act, provided that without the
consent of each holder of Trust Securities of such Issuer, such Trust Agreement
may not be amended to (i) change the amount or timing of any Distribution on the
Trust Securities of such Issuer or otherwise adversely affect the amount of any
Distribution required to be made in respect of such Trust Securities as of a
specified date or (ii) restrict the right of a holder of Trust Securities to
institute suit for the enforcement of any such payment on or after such date.
So long as any Corresponding Junior Subordinated Debentures are
held by the Property Trustee, the Issuer Trustees shall not (i) direct the time,
method and place of conducting any proceeding for any remedy available to the
Debenture Trustee, or executing any trust or power conferred on the Property
Trustee with respect to such Corresponding Junior Subordinated Debentures, (ii)
waive any past default that is waiveable under Section 5.13 of the Subordinated
Indenture, (iii) exercise any right to rescind or annul a declaration that the
principal of all the Junior Subordinated Debentures shall be due and payable or
(iv) consent to any amendment, modification or termination of the Subordinated
Indenture or such Corresponding Junior Subordinated Debentures, where such
consent shall be required, without, in each case, obtaining the prior approval
of the holders of a majority in aggregate Liquidation Amount of all outstanding
Preferred Securities of the applicable Issuer; provided, however, that where a
consent under the Subordinated Indenture would require the consent of each
holder of Corresponding Junior Subordinated Debentures affected thereby, no such
consent shall be given by the Property Trustee without the prior consent of each
holder of the related Preferred Securities. The Issuer Trustees shall not revoke
any action previously authorized or approved by a vote of the related Preferred
Securities except by subsequent vote of the holders of the Preferred Securities.
The Property Trustee shall notify all holders of the related Preferred
Securities of any notice of default with respect to the Corresponding Junior
Subordinated Debentures. In addition to obtaining the foregoing approvals of the
holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Issuer Trustees shall obtain an opinion of counsel experienced in
such matters to the effect that such action shall not cause the applicable
Issuer to fail to be classified as a grantor trust for U.S. federal income tax
purposes.
Any required approval of holders of Preferred Securities may be
given at a meeting of holders of Preferred Securities convened for such purpose
or pursuant to written consent. The Property Trustee will cause a notice of any
meeting at which holders of Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such holders is to be taken, to
be given to each holder of record of Preferred Securities in the manner set
forth in the applicable Trust Agreement.
No vote or consent of the holders of Preferred Securities will be
required for an Issuer to redeem and cancel its Preferred Securities in
accordance with the applicable Trust Agreement.
Notwithstanding that holders of Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Company, the Issuer Trustees or any
affiliate of the Company or any Issuer Trustees, shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
GLOBAL PREFERRED SECURITIES
The Preferred Securities of an Issuer may be issued in whole or
in part in the form of one or more Global Preferred Securities that will be
deposited with, or on behalf of, the Depositary identified in the Prospectus
Supplement relating to such Preferred Securities. Unless otherwise indicated in
the applicable Prospectus Supplement for such Preferred Securities, the
Depositary will be The Depository Trust Company ("DTC"). Global Preferred
Securities may be issued only in fully registered form and in either temporary
or permanent form. Unless and until it is exchanged in whole or in part for the
individual Preferred Securities represented thereby, a Global Preferred Security
may not be transferred except as a
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whole by the Depositary for such Global Preferred Security to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any nominee to a successor
Depositary or any nominee of such successor.
While the specific terms of the depositary arrangement with
respect to the Preferred Securities of an Issuer (if other than as described
under "Book-Entry Issuance") will be described in the Prospectus Supplement
relating to such Preferred Securities, the Company anticipates that the
following provisions will generally apply to depositary arrangements.
Upon the issuance of a Global Preferred Security, and the deposit
of such Global Preferred Security with or on behalf of the applicable
Depositary, the Depositary for such Global Preferred Security or its nominee
will credit, on its book-entry registration and transfer system, the respective
aggregate Liquidation Amounts of the individual Preferred Securities represented
by such Global Preferred Securities to the accounts of Participants. Such
accounts shall be designated by the dealers, underwriters or agents with respect
to such Preferred Securities or by the Company if such Preferred Securities are
offered and sold directly by the Company. Ownership of beneficial interests in a
Global Preferred Security will be limited to Participants or persons that may
hold interests through Participants. Ownership of beneficial interests in such
Global Preferred Security will be shown on, and the transfer of that ownership
will be effected only through, records maintained by the applicable Depositary
or its nominee (with respect to interests of Participants) and the records of
Participants (with respect to interests of persons who hold through
Participants). The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a Global Preferred Security.
So long as the Depositary for a Global Preferred Security, or its
nominee, is the registered owner of such Global Preferred Security, such
Depositary or such nominee, as the case may be, will be considered the sole
owner or holder of the Preferred Securities represented by such Global Preferred
Security for all purposes under the applicable Trust Agreement. Except as
provided below, owners of beneficial interests in a Global Preferred Security
will not be entitled to have any of the individual Preferred Securities
represented by such Global Preferred Security registered in their names, will
not receive or be entitled to receive physical delivery of any such Preferred
Securities in definitive form and will not be considered the owners or holders
thereof under the applicable Trust Agreement.
Payments of Liquidation Amount, premium or Distributions in
respect of individual Preferred Securities represented by a Global Preferred
Security registered in the name of a Depositary or its nominee will be made to
such Depositary or its nominee, as the case may be, as the registered owner of
the Global Preferred Security representing such Preferred Securities. None of
the Company, the Property Trustee, any paying agent or the registrar for such
Preferred Securities will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of the Global Preferred Security representing such Preferred
Securities or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
The Company expects that the Depositary for the Preferred
Securities of an Issuer, or its nominee, upon receipt of any payment of
Liquidation Amount, premium or Distributions in respect of a Global Preferred
Security representing any of such Preferred Securities, immediately will credit
Participants' accounts with payments in amounts proportionate to their
respective beneficial interest in the aggregate Liquidation Amount of such
Global Preferred Security for such Preferred Securities as shown on the records
of such Depositary or its nominee. The Company also expects that payments by
Participants to owners of beneficial interests in such Global Preferred Security
held through such Participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name". Such payments will be
the responsibility of such Participants.
Unless otherwise specified in the applicable Prospectus
Supplement, if a Depositary for the Preferred Securities of an Issuer is at any
time unwilling, unable or ineligible to continue as a depositary
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and a successor depositary is not appointed by the Company within 90 days, the
applicable Issuer will issue individual Preferred Securities of such Issuer in
exchange for the Global Preferred Security representing such Preferred
Securities. In addition, the Company may at any time and in its sole discretion,
subject to any limitations described in the Prospectus Supplement relating to
such Preferred Securities, determine not to have any Preferred Securities of an
Issuer represented by one or more Global Preferred Securities and, in such
event, the applicable Issuer will issue individual Preferred Securities in
exchange for the Global Preferred Security or Securities representing such
Preferred Securities. Further, if the Company so specifies with respect to the
Preferred Securities of an Issuer, an owner of a beneficial interest in a Global
Preferred Security representing such Preferred Securities may, on terms
acceptable to the Company, the Property Trustee and the Depositary for such
Global Preferred Security, receive individual Preferred Securities in exchange
for such beneficial interests, subject to any limitations described in the
Prospectus Supplement relating to such Preferred Securities. In any such
instance, an owner of a beneficial interest in a Global Preferred Security will
be entitled to physical delivery of individual Preferred Securities represented
by such Global Preferred Security equal in Liquidation Amount to such beneficial
interest and to have such Preferred Securities registered in its name.
Individual Preferred Securities so issued will be issued in denominations,
unless otherwise specified by the Company, of $25 and integral multiples
thereof.
PAYMENT AND PAYING AGENCY
Payments in respect of the Preferred Securities shall be made to
the applicable Depositary, which shall credit the relevant accounts at such
Depositary on the applicable Distribution Dates or, if any Issuer's Preferred
Securities are not held by a Depositary, such payments shall be made by check
mailed to the address of the holder entitled thereto as such address shall
appear on the Register. Unless otherwise specified in the applicable Prospectus
Supplement, the paying agent for the Preferred Securities shall initially be the
Property Trustee and any co-paying agent chosen by the Property Trustee and
acceptable to the Administrative Trustees and the Company. The paying agent
shall be permitted to resign as paying agent upon 30 days' written notice to the
Property Trustees and the Company. In the event that the Property Trustee shall
no longer be the paying agent, the Administrative Trustees shall appoint a
successor to act as paying agent (which shall be a bank or trust company
acceptable to the Administrative Trustees and the Company).
REGISTRAR AND TRANSFER AGENT
Unless otherwise specified in the applicable Prospectus
Supplement, the Property Trustee will act as registrar and transfer agent for
the Preferred Securities.
Registration of transfers of Preferred Securities will be
effected without charge by or on behalf of each Issuer, but upon payment of any
tax or other governmental charges that may be imposed in connection with any
transfer or exchange. The Issuers will not be required to register or cause to
be registered the transfer of their Preferred Securities after such Preferred
Securities have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and
continuance of an Event of Default, undertakes to perform only such duties as
are specifically set forth in the Trust Agreements and, after such Event of
Default, must exercise the same degree of care and skill as a prudent person
would exercise or use in the conduct of his or her own affairs. Subject to this
provision, the Property Trustee is under no obligation to exercise any of the
powers vested in it by the Trust Agreements at the request of any holder of
Preferred Securities unless it is offered reasonable indemnity against the
costs, expenses and liabilities that might be incurred thereby. If no Event of
Default has occurred and is continuing and the Property Trustee is required to
decide between alternative causes of action, construe ambiguous provisions in a
Trust Agreement or is unsure of the application of any provision of a Trust
Agreement, and the matter is not one on which holders of Preferred Securities
are entitled under such Trust Agreement to vote, then
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the Property Trustee shall take such action as is directed by the Company and if
not so directed, shall take such action as it deems advisable and in the best
interests of the holders of the applicable Trust Securities and will have no
liability except for its own bad faith, negligence or willful misconduct.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to
conduct the affairs of and to operate the Issuers in such a way that no Issuer
will be deemed to be an "investment company" required to be registered under the
Investment Company Act or fail to be classified as a grantor trust for U.S.
federal income tax purposes and so that the Corresponding Junior Subordinated
Debentures will be treated as indebtedness of the Company for U.S. federal
income tax purposes. In this connection, the Company and the Administrative
Trustees are authorized to take any action, not inconsistent with applicable
law, the certificate of trust of either Issuer or either Trust Agreement, that
the Company and the Administrative Trustees determine in their discretion to be
necessary or desirable for such purposes, as long as such action does not
materially adversely affect the interests of the holders of the related
Preferred Securities.
Holders of the Preferred Securities have no preemptive or similar
rights.
Neither Issuer may borrow money or issue debt or mortgage or
pledge any of its assets.
DESCRIPTION OF GUARANTEES
A Guarantee will be executed and delivered by the Company
concurrently with the issuance by the applicable Issuer of its Preferred
Securities for the benefit of the holders from time to time of such Preferred
Securities. Wilmington Trust Company will act as indenture trustee ("Guarantee
Trustee") under each Guarantee for the purposes of compliance with the Trust
Indenture Act and each Guarantee will be qualified as an indenture under the
Trust Indenture Act. This summary of certain provisions of the Guarantees does
not purport to be complete and is subject to, and qualified in its entirety by
reference to, all of the provisions of the applicable Guarantee Agreement,
including the definitions therein of certain terms, and the Trust Indenture Act.
The form of Guarantee has been filed as an exhibit to the Registration Statement
of which this Prospectus forms a part. References in this summary to Preferred
Securities means that Issuer's Preferred Securities to which a Guarantee
relates. The Guarantee Trustee will hold each Guarantee for the benefit of the
holders of the related Issuer's Preferred Securities.
GENERAL
The Company will irrevocably agree to pay in full on a
subordinated basis, to the extent set forth herein, the Guarantee Payments (as
defined below) to the holders of the Preferred Securities, as and when due,
regardless of any defense, right of set-off or counterclaim that the applicable
Issuer may have or assert other than the defense of payment. The following
payments with respect to the Preferred Securities, to the extent not paid by or
on behalf of the related Issuer (the "Guarantee Payments"), will be subject to
the applicable Guarantee: (i) any accumulated and unpaid Distributions required
to be paid on such Preferred Securities, to the extent that the applicable
Issuer has funds on hand available therefor, (ii) the Redemption Price with
respect to any Preferred Securities called for redemption to the extent that the
applicable Issuer has funds on hand available therefor, or (iii) upon a
voluntary or involuntary dissolution, winding up or liquidation of such Issuer
(unless the Corresponding Junior Subordinated Debentures are distributed to
holders of such Preferred Securities), the lesser of (a) the Liquidation
Distribution and (b) the amount of assets of such Issuer remaining available for
distribution to holders of Preferred Securities. The Company's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Company to the holders of the applicable Preferred Securities or
by causing the applicable Issuer to pay such amounts to such holders.
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Each Guarantee will be an irrevocable guarantee on a subordinated
basis of the related Issuer's obligations under the Preferred Securities, but
will apply only to the extent that such Issuer has funds sufficient to make such
payments, and is not a guarantee of collection.
If the Company does not make interest payments on the
Corresponding Junior Subordinated Debentures held by an Issuer, it is expected
that such Issuer will not pay Distributions on the Preferred Securities and will
not have funds legally available therefor. Each Guarantee will rank subordinate
and junior in right of payment to all Senior Debt. See "-- Status of the
Guarantees". Except as otherwise provided in the applicable Prospectus
Supplement, the Guarantees do not limit the incurrence or issuance of other
secured or unsecured debt of the Company, including Senior Debt, whether under
the Subordinated Indenture, any other indenture that the Company may enter into
in the future or otherwise. See the Prospectus Supplement relating to any
offering of Preferred Securities.
Through the related Guarantee, the applicable Trust Agreement,
the Junior Subordinated Debentures, the Subordinated Indenture and the related
Expense Agreement, taken together, the Company has, in effect, fully,
irrevocably and unconditionally guaranteed all of the applicable Issuer's
obligations under the Preferred Securities. No single document standing alone or
operating in conjunction with fewer than all of the other documents constitutes
such guarantee. It is only the combined operation of these documents that has
the effect of providing a full, irrevocable and unconditional guarantee of the
applicable Issuer's obligations under the Preferred Securities. See
"Relationship Among the Preferred Securities, the Junior Subordinated Debentures
and the Guarantees".
STATUS OF THE GUARANTEES
Each Guarantee will constitute an unsecured obligation of the
Company that will rank (i) subordinate and junior in right of payment to all
liabilities of the Company, including all Senior Debt and the Junior
Subordinated Debentures, and (ii) pari passu (i.e. on a parity) with the other
Guarantee, with the guarantee by the Company of certain payments required to be
made in respect of the Convertible Subordinated Debentures, with the most senior
preferred or preference stock now or hereafter issued by the Company and with
any guarantee now or hereafter entered into by the Company in respect of any
preferred or preference stock of any affiliate of the Company and (iii) senior
to Common Stock and any other class or series of capital stock issued by the
Company or any of its affiliates which by its express terms ranks junior to such
Guarantee in the payment of dividends and amounts on liquidation, dissolution,
and winding-up. On the bankruptcy, liquidation or winding-up of the Company, its
obligations under each Guarantee will rank junior to all its other liabilities
and, therefore, funds may not be available for payment under the Guarantees.
Each Guarantee will constitute a guarantee of payment and not of
collection (i.e., the guaranteed party may institute a legal proceeding directly
against the Company to enforce its rights under the applicable Guarantee without
first instituting a legal proceeding against any other person or entity). Each
Guarantee will be held for the benefit of the holders of the related Preferred
Securities. Each Guarantee will not be discharged except by payment of the
Guarantee Payments in full to the extent not paid by the applicable Issuer or
upon distribution to the holders of the Preferred Securities of the
Corresponding Junior Subordinated Debentures. Neither of the Guarantees places a
limitation on the amount of additional Senior Debt that may be incurred by the
Company. The Company expects from time to time to incur additional indebtedness
constituting Senior Debt.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially
adversely affect the rights of holders of the related Preferred Securities (in
which case no vote will be required), neither Guarantee may be amended without
the prior approval of the holders of not less than a majority of the aggregate
Liquidation Amount of the related Preferred Securities then outstanding. The
manner of obtaining any such approval will be as set forth under "Description of
Preferred Securities -- Voting Rights; Amendment of Trust Agreements". All
guarantees and agreements contained in each Guarantee shall bind the successors,
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assigns, receivers, trustees and representatives of the Company and shall inure
to the benefit of the holders of the related Preferred Securities then
outstanding.
EVENTS OF DEFAULT
An event of default under a Guarantee will occur upon the failure
of the Company to perform any of its payment or other obligations thereunder.
The holders of not less than a majority in aggregate Liquidation Amount of the
related Preferred Securities have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Guarantee Trustee
in respect of such Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under such Guarantee.
Any holder of Preferred Securities may institute a legal
proceeding directly against the Company to enforce its rights under such
Guarantee without first instituting a legal proceeding against the Issuer, the
Guarantee Trustee or any other person or entity.
The Company, as guarantor, is required to file annually with the
Guarantee Trustee a certificate as to whether or not the Company is in
compliance with all the conditions and covenants applicable to it under each
Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and
continuance of a default by the Company in performance of a Guarantee,
undertakes to perform only such duties as are specifically set forth in the
applicable Guarantee and, after default with respect to a Guarantee, must
exercise the same degree of care and skill as a prudent person would exercise or
use in the conduct of his or her own affairs. Subject to this provision, the
Guarantee Trustee is under no obligation to exercise any of the powers vested in
it by a Guarantee at the request of any holder of the related Preferred
Securities unless it is offered reasonable indemnity against the costs, expenses
and liabilities that might be incurred thereby.
TERMINATION OF THE GUARANTEES
A Guarantee will terminate and be of no further force and effect
upon full payment of the Redemption Price of the related Preferred Securities,
upon full payment of the amounts payable upon liquidation of the related Issuer
or upon distribution of Corresponding Junior Subordinated Debentures to the
holders of the related Preferred Securities. A Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any holder
of the related Preferred Securities must restore payment of any sums paid under
such Preferred Securities or such Guarantee.
GOVERNING LAW
Each Guarantee will be governed by and construed in accordance
with the laws of the State of New York.
THE EXPENSE AGREEMENTS
Pursuant to the Expense Agreement entered into by the Company
under each Trust Agreement (each, an "Expense Agreement"), the Company will
irrevocably and unconditionally guarantee to each person or entity to whom the
applicable Issuer becomes indebted or liable, the full payment of any costs,
expenses or liabilities of such Issuer, other than obligations of such Issuer to
pay to the holders of any Preferred Securities or other similar interests in
such Issuer the amounts due such holders pursuant to the terms of the Preferred
Securities or such other similar interests, as the case may be.
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RELATIONSHIP AMONG THE PREFERRED SECURITIES,
THE CORRESPONDING JUNIOR SUBORDINATED DEBENTURES AND THE GUARANTEES
As long as payments of interest and other payments are made when
due on each series of Corresponding Junior Subordinated Debentures, such
payments will be sufficient to cover Distributions and other payments due on the
corresponding Preferred Securities, primarily because (i) the aggregate
principal amount of each series of Corresponding Junior Subordinated Debentures
will be equal to the sum of the aggregate stated Liquidation Amount of the
corresponding Preferred Securities and corresponding Common Securities; (ii) the
interest rate and interest and other payment dates on each series of
Corresponding Junior Subordinated Debentures will match the Distribution rate
and Distribution and other payment dates for the corresponding Preferred
Securities; (iii) the Company shall pay all and any costs, expenses and
liabilities of the applicable Issuer except such Issuer's obligations to holders
of its Preferred Securities under such Preferred Securities; and (iv) each Trust
Agreement further provides that the applicable Issuer will not engage in any
activity that is not consistent with the limited purposes of such Issuer.
Payments of Distributions and other amounts due on the Preferred
Securities (to the extent the applicable Issuer has funds available for the
payment of such Distributions) are irrevocably guaranteed by the Company as and
to the extent set forth under "Description of Guarantees". Taken together, the
Company's obligations under a series of Junior Subordinated Debentures, the
Subordinated Indenture, the related Trust Agreement, the related Expense
Agreement and the related Guarantee have the effect of providing a full,
irrevocable and unconditional guarantee of payments of Distributions and other
amounts due on the related Preferred Securities. No single document standing
alone or operating in conjunction with fewer than all of the other documents
constitutes such guarantee. It is only the combined operation of these documents
that has the effect of providing a full, irrevocable and unconditional guarantee
of the applicable Issuer's obligations under the related Preferred Securities.
If and to the extent that the Company does not make payments on any series of
Corresponding Junior Subordinated Debentures, the applicable Issuer will not pay
Distributions or other amounts due on its Preferred Securities. The Guarantees
do not cover payment of Distributions when the related Issuer does not have
sufficient funds to pay such Distributions. In such event, the remedy of a
holder of a series of Preferred Securities is to institute a legal proceeding
directly against the Company for enforcement of payment of such Distributions to
such holder.
Notwithstanding anything to the contrary in the Subordinated
Indenture, the Company has the right to set-off any payment it is otherwise
required to make thereunder with and to the extent the Company has theretofore
made, or is concurrently on the date of such payment making, a payment under the
related Guarantee.
A holder of any related Preferred Security may institute a legal
proceeding directly against the Company to enforce its rights under the related
Guarantee without first instituting a legal proceeding against the Guarantee
Trustee, the related Issuer or any other person or entity.
Each Issuer's Preferred Securities evidence preferred undivided
beneficial interests in the assets of such Issuer, and each Issuer exists for
the sole purpose of issuing its Preferred Securities and Common Securities and
investing the proceeds thereof in Corresponding Junior Subordinated Debentures.
A principal difference between the rights of a holder of a Preferred Security
and a holder of a Corresponding Junior Subordinated Debenture is that a holder
of a Corresponding Junior Subordinated Debenture will accrue, and (subject to
the permissible extension of the interest period) is entitled to receive,
interest on the principal amount of Corresponding Junior Subordinated Debentures
held, while a holder of Preferred Securities is only entitled to receive
Distributions if and to the extent the applicable Issuer has funds available for
the payment of such Distributions.
Upon any voluntary or involuntary termination, winding-up or
liquidation of an Issuer involving the liquidation of the Corresponding Junior
Subordinated Debentures, the holders of Preferred Securities of such Issuer will
be entitled to receive, out of assets held by such Issuer, the Liquidation
Distribution in cash. See "Description of Preferred Securities -- Liquidation
Distribution Upon Termination". Upon any voluntary or involuntary liquidation or
bankruptcy of the Company, the Property Trustee, as holder of the
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Corresponding Junior Subordinated Debentures, would be a subordinated creditor
of the Company, subordinated in right of payment to all Senior Debt, but
entitled to receive payment in full of principal and interest, before any
stockholders of the Company receive payments or distributions. Since the Company
is the guarantor under each Guarantee and has agreed to pay for all costs,
expenses and liabilities of each Issuer (other than such Issuer's obligations to
the holders of its Preferred Securities), the positions of a holder of such
Preferred Securities and a holder of such Corresponding Junior Subordinated
Debentures relative to other creditors and to stockholders of the Company in the
event of liquidation or bankruptcy of the Company would be substantially the
same.
A default or event of default under any Senior Debt would not
constitute a default or Debenture Event of Default under the Subordinated
Indenture. However, in the event of payment defaults under, or acceleration of,
Senior Debt, the subordination provisions of the Subordinated Indenture provide
that no payments may be made in respect of the Corresponding Junior Subordinated
Debentures until such Senior Debt has been paid in full or any payment default
thereunder has been cured or waived. Failure to make required payments on any
series of Corresponding Junior Subordinated Debentures would constitute a
Debenture Event of Default under the Subordinated Indenture.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an Indenture (as
amended or supplemented from time to time, the "Indenture") between the Company
and ____________________, as Trustee (the "Trustee"), a copy of which is filed
as an exhibit to the Registration Statement. The statements herein relating to
the Debt Securities and the following summaries of certain provisions of the
Indenture do not purport to be complete and are subject to, and are qualified in
their entirety by reference to, all the provisions of the Indenture, including
the definitions therein of certain terms, and the Trust Indenture Act. Wherever
particular sections or defined terms of the Indenture are referred to in this
Section or in a Prospectus Supplement, such sections or defined terms are
incorporated herein or therein by reference.
The following sets forth certain general terms and provisions of
the Debt Securities offered hereby. The particular terms of the Debt Securities
offered by any Prospectus Supplement (the "Offered Debt Securities") will be
described in the Prospectus Supplement relating to such Offered Debt Securities
(the "Applicable Prospectus Supplement").
CERTAIN DEFINITIONS
"Attributable Debt" will be defined to mean the total net amount
of rent (discounted at the rate of 12% per annum compounded semiannually)
required to be paid under a lease during the remaining term of such lease.
"Consolidated Net Tangible Assets" will be defined as the
aggregate amount of assets after deducting therefrom (a) all current liabilities
(excluding any thereof constituting Funded Debt by reason of being renewable or
extendable) and (b) all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangibles, all as set forth on the
most recent balance sheet of the Company and its consolidated subsidiaries and
computed in accordance with generally accepted accounting principles.
"Debt" will be defined as notes, bonds, debentures or other
similar evidences of indebtedness for money borrowed.
"Funded Debt" will be defined as all indebtedness for money
borrowed, or evidenced by a bond, debenture, note or similar instrument or
agreement whether or not for money borrowed, having a maturity of more than 12
months from the date as of which the amount thereof is to be determined or
having a maturity of less than 12 months but by its terms being renewable or
extendable beyond 12 months from such date at the option of the borrower.
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"Mortgage" will be defined as any pledge, mortgage or other lien.
"Principal Property" will be defined as any facility (together
with the land upon which it is erected and fixtures comprising a part thereof)
used primarily for manufacturing, processing or warehousing, located in the
United States, and having a gross book value as of the date of determination
thereof in excess of 1% of Consolidated Net Tangible Assets, other than any such
facility or portion thereof (i) which is financed by means of industrial revenue
bonds or (ii) which, in the opinion of the Board of Directors of the Company,
is not of material importance to the total business conducted by the Company and
its Subsidiaries as an entirety.
"Restricted Subsidiary" will be defined as a Subsidiary of the
Company which owns or leases any Principal Property.
"Subsidiary" will be defined as a corporation at least a majority
of the outstanding voting stock of which is owned, directly or indirectly, by
the Company and/or one or more Subsidiaries of the Company.
GENERAL
The Indenture does not limit the amount of Debt Securities that
may be issued thereunder and Debt Securities may be issued thereunder from time
to time in one or more series. The Debt Securities will be unsecured and
unsubordinated obligations of the Company and will rank equally and ratably with
other unsecured and unsubordinated obligations of the Company.
Unless otherwise indicated in the Applicable Prospectus
Supplement, principal of, premium, if any, and interest on the Debt Securities
will be payable, and the transfer of Debt Securities will be registrable, at the
office or agency to be maintained by the Company in The City of New York and at
any other office or agency maintained by the Company for such purpose. (Sections
301, 305 and 1002) The Debt Securities will be issued only in fully registered
form without coupons and, unless otherwise indicated in the Applicable
Prospectus Supplement, in denominations of $1,000 or integral multiples thereof.
(Section 302) No service charge will be made for any registration of transfer or
exchange of the Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith. (Section 305)
The Applicable Prospectus Supplement will describe the terms of
the Offered Debt Securities, including: (1) the title of the Offered Debt
Securities; (2) any limit on the aggregate principal amount of the Offered Debt
Securities; (3) the person or entity to whom any interest on the Offered Debt
Securities shall be payable, if other than the person or entity in whose name
that Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, (4) the date or dates
on which the principal of and premium, if any, on the Offered Debt Securities is
payable or the method of determination thereof; (5) the rate or rates at which
the Offered Debt Securities shall bear interest, if any, the date or dates from
which any such interest shall accrue or the method by which such date or dates
shall be determined, the Interest Payment Dates on which any such interest shall
be payable and the Regular Record Date for interest payable on any Interest
Payment Date; (6) the place or places where the principal of, premium, if any,
and interest on the Offered Debt Securities shall be payable; (7) the period or
periods within which, the price or prices at which, the currency or currencies
(including currency units) in which and the other terms and conditions upon
which the Offered Debt Securities may be redeemed, in whole or in part, at the
option of the Company, (8) the obligation, if any, of the Company to redeem or
purchase the Offered Debt Securities pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof and the period or periods within
which, the price or prices at which and the other terms and conditions upon
which the Offered Debt Securities shall be redeemed or purchased, in whole or in
part, pursuant to such obligation; (9) if other than denominations of $1,000 and
any integral multiple thereof, the denominations in which the Offered Debt
Securities shall be issuable; (10) the currency, currencies or currency units in
which payment of the principal of and any premium and interest on any Offered
Debt Securities shall be payable if other than the currency of the United States
of America;
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(11) if the amount of payments of principal of or any premium or interest on any
Offered Debt Securities may be determined with reference to an index, formula or
other method, the index, formula or other method by which such amounts shall be
determined; (12) if the principal of or any premium or interest on any Offered
Debt Securities is to be payable, at the election of the Company or a holder
thereof, in one or more currencies or currency units other than that or those in
which the Debt Securities are stated to be payable, the currency, currencies or
currency units in which payment of the principal of and any premium and interest
on the Offered Debt Securities as to which such election is made shall be
payable, and the periods within which and the other terms and conditions upon
which such election is to be made; (13) if other than the principal amount
thereof, the portion of the principal amount of the Offered Debt Securities
which shall be payable upon declaration of acceleration of the maturity thereof
or the method by which such portion may be determined; (14) the applicability of
the provisions described under "-- Defeasance of Offered Debt Securities or
Certain Covenants in Certain Circumstances"; (15) if the Offered Debt Securities
will be issuable only in the form of a Book Entry Security as described under
"-- Book Entry Debt Securities", the Depositary or its nominee with respect to
the Offered Debt Securities and the circumstances under which the Book Entry
Security may be registered for transfer or exchange or authenticated and
delivered in the name of a person or entity other than the Depositary or its
nominee; and (16) any other terms of the Offered Debt Securities. (Section 301)
Debt Securities may be sold at a substantial discount below their
stated principal amount, bearing no interest or interest at a rate which at the
time of issuance is below market rates. Material U.S. federal income tax
consequences and special considerations applicable to any such Debt Securities
will be described in the Applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is payable in
one or more foreign currencies or currency units, if any Debt Securities are
denominated in one or more foreign currencies or currency units or if the
principal of, premium, if any, or interest, if any, on any Debt Securities is
payable in one or more foreign currencies or currency units, the restrictions,
elections, material U.S. federal income tax considerations and other information
with respect to such issue of Debt Securities and such foreign currency or
currency units will be set forth in the Applicable Prospectus Supplement.
If any index is used to determine the amount of payments of
principal of, premium, if any, or interest, if any, on any series of Debt
Securities, material U.S. federal income tax, accounting and other
considerations applicable thereto will be described in the Applicable Prospectus
Supplement.
BOOK ENTRY DEBT SECURITIES
The following description of Book Entry Securities will apply to
any series of Debt Securities except as otherwise provided in the Prospectus
Supplement relating thereto.
The Debt Securities of a series may be issued in the form of one
or more Book Entry Securities that will be deposited with or on behalf of a
Depositary, which will be a clearing agent registered under the Exchange Act.
Book Entry Securities will be registered in the name of the Depositary or a
nominee of the Depositary, will be deposited with such Depositary or nominee or
a custodian therefor and will bear a legend regarding the restrictions on
exchanges and registration of transfer thereof and any such other matters as may
be provided for pursuant to the Indenture. Unless and until it is exchanged in
whole or in part for Debt Securities in definitive certificated form, a Book
Entry Security may not be transferred or exchanged except as a whole by the
Depositary for such Book Entry Security to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary, or except in the
circumstances described in the Applicable Prospectus Supplement.
(Section 305)
Upon the issuance of any Book Entry Security, and the deposit of
such Book Entry Security with or on behalf of the Depositary for such Book Entry
Security, the Depositary will credit on its book-entry registration and transfer
system the respective principal amounts of the Debt Securities represented
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by such Book Entry Security to the accounts of institutions ("Participants")
that have accounts with the Depositary. The accounts to be credited will be
designated by the underwriters or agents engaging in the distribution of such
Debt Securities or by the Company, if such Debt Securities are offered and sold
directly by the Company. Ownership of beneficial interests in a Book Entry
Security will be limited to Participants or persons that may hold interests
through Participants. Ownership of beneficial interests in a Book Entry Security
will be shown on, and the transfer of that ownership will be effected only
through, records maintained by the Depositary for such Book Entry Security or by
its nominee. Ownership of beneficial interests in such Book Entry Security by
persons who hold through Participants will be shown on, and the transfer of such
beneficial interests within such Participants will be effected only through,
records maintained by such Participants. The laws of some jurisdictions require
that certain purchasers of securities take physical delivery of such securities
in definitive form. Such laws may impair the ability to transfer beneficial
interests in such a Book Entry Security.
So long as the Depositary for a Book Entry Security, or its
nominee, is the owner of such Book Entry Security, such Depositary or such
nominee, as the case may be, will be considered the sole owner or holder of the
Debt Security represented by such Book Entry Security for all purposes under the
Indenture. Accordingly, each person owning a beneficial interest in such Book
Entry Security must rely on the procedures of the Depositary and, if such person
is not a Participant, on the procedures of the Participant through which such
person owns its interest, to exercise any rights of a holder under such
Indenture. The Company understands that under existing industry practices, if it
requests any action of holders or if an owner of a beneficial interest in a Book
Entry Security desires to give or take any instruction or action which a holder
is entitled to give or take under the Indenture, the Depositary would authorize
the Participants holding the relevant beneficial interests to give or take such
instruction or action, and such Participants would authorize beneficial owners
owning through such Participants to give or take such instruction or action or
would otherwise act upon the instructions of beneficial owners holding through
them.
Unless otherwise specified in the Applicable Prospectus
Supplement, payments with respect to principal, premium, if any, and interest,
if any, on the Debt Securities represented by a Book Entry Security registered
in the name of the Depositary or its nominee will be made to such Depositary or
its nominee, as the case may be, as the registered owner of such Book Entry
Security. The Company expects that the Depositary for any Debt Securities
represented by a Book Entry Security, upon receipt of any payment of principal
or interest in respect of such Book Entry Security, will credit immediately
Participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the Book Entry Security as shown on the
records of the Depositary. The Company also expects that payments by
Participants to owners of beneficial interests in such Book Entry Security held
through such Participants will be governed by standing instructions and
customary practices, as is now the case with securities in bearer form held for
the accounts of customers or registered in "street name", and will be the
responsibility of such Participants. None of the Company, the Trustee or any
agent of the Company or the Trustee shall have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial interests in any Book Entry Security, or for maintaining, supervising
or reviewing any records relating to such beneficial interests.
A Book Entry Security shall be exchangeable for Debt Securities
in certificated registered form, of like tenor and of an equal aggregate
principal amount, only if (a) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such Book Entry Security or if
at any time the Depositary ceases to be a clearing agency registered under the
Exchange Act, (b) the Company in its sole discretion determines that such Book
Entry Security shall be exchangeable for Debt Securities in certificated
registered form or (c) there shall have occurred and be continuing an Event of
Default with respect to the Debt Securities. Any Book Entry Security that is
exchangeable pursuant to the preceding sentence shall be exchangeable for Debt
Securities registered in the name or names of such person or persons as the
Depositary shall instruct the Trustee. It is expected that such instructions may
be based upon directions received by the Depositary from its participants with
respect to ownership of beneficial interests in such Book Entry Security.
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CERTAIN COVENANTS OF THE COMPANY
Restrictions on Secured Debt
If subsequent to the date of the initial issuance of the Debt
Securities of any series, the Company or any Subsidiary shall incur, issue,
assume or guarantee any Debt secured by a Mortgage on any Principal Property
owned by the Company or any Restricted Subsidiary or on any shares of stock or
Debt of any Restricted Subsidiary, the Company will secure, or cause such
Subsidiary to secure, such Debt Securities equally and ratably with (or prior
to) such secured Debt, unless after giving effect thereto the aggregate amount
of all such Debt so secured together with all Attributable Debt in respect of
sale and leaseback transactions involving Principal Properties owned by the
Company or a Restricted Subsidiary and otherwise prohibited by the Indenture
would not exceed 10% of the Consolidated Net Tangible Assets. This restriction
will not apply to, and therefore the following shall be excluded in computing
secured Debt for the purpose of such restriction: Debt secured by (a) Mortgages
on property of, or on any shares of stock or Debt of, any corporation existing
at the time such corporation becomes a Restricted Subsidiary, (b) Mortgages in
favor of the Company or any Restricted Subsidiary, (c) Mortgages in favor of the
United States of America, or any agency, department or other instrumentality
thereof, to secure progress, advance or other payments pursuant to any contract
or provision of any statute, (d) Mortgages on property, shares of stock or Debt
existing at the time of acquisition thereof (including acquisition through
merger or consolidation) and purchase money Mortgages and construction cost
Mortgages (including those incurred within 120 days following the purchase or
completion of the property in question) and (e) any extension, renewal or
replacement of any Mortgage referred to in the foregoing clauses (a) through (d)
inclusive. The Indenture will not restrict the incurring of unsecured Debt by
the Company or its Subsidiaries.
Restrictions on Sales and Leasebacks
Neither the Company nor any Restricted Subsidiary may enter into
any sale and leaseback transaction involving any Principal Property owned by the
Company or any Restricted Subsidiary, the acquisition of which, or completion of
construction and commencement of full operation of which, has occurred more than
120 days prior to such sale and leaseback transaction, unless (a) the Company or
such Restricted Subsidiary could create Debt secured by a Mortgage on such
property in accordance with the immediately preceding paragraph in an amount
equal to the Attributable Debt with respect to the sale and leaseback
transaction without equally and ratably securing the Outstanding Debt Securities
or (b) the Company, within 120 days after the sale or transfer of such property,
applies to the retirement of its Funded Debt an amount equal to the greater of
(i) the net proceeds of the sale of the Principal Property sold and leased back
pursuant to such arrangement or (ii) the fair market value of the Principal
Property so sold and leased back, subject to credits for certain voluntary
retirements of Funded Debt. This restriction will not apply to any sale and
leaseback transaction (a) between the Company and a Restricted Subsidiary or
between Restricted Subsidiaries or (b) involving a lease for a period of three
years or less.
Unless otherwise indicated in the Applicable Prospectus
Supplement, the Indenture does not contain covenants specifically designed to
protect holders of Debt Securities in the event of a highly leveraged
transaction, restructuring, change in control, merger or similar transaction
involving the Company that may adversely affect holders of Debt Securities.
EVENTS OF DEFAULT
Any one of the following events will constitute an Event of
Default under the Indenture with respect to Debt Securities of any series: (a)
failure to pay any interest on any Debt Security of that series when due,
continued for 30 days; (b) failure to pay principal of or any premium on any
Debt Security of that series when due; (c) failure to deposit any sinking fund
payment, when due, in respect of any Debt Security of that series; (d) failure
to perform, or breach of, any covenant or warranty of the Company in the
Indenture with respect to Debt Securities of that series continued for 60 days
after written notice as provided in the Indenture; (e) certain events of
bankruptcy, insolvency or reorganization of the Company; or (f) any other Event
of Default provided with respect to Debt Securities of that series. (Section
501)
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If any Event of Default with respect to the Debt Securities of
any series at the time outstanding occurs and is continuing, either the Trustee
or the holders of at least 25% in aggregate principal amount of the Outstanding
Debt Securities of that series may declare the principal amount (or, if the Debt
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms thereof) of all the
Debt Securities of that series to be due and payable immediately. At any time
after a declaration of acceleration with respect to Debt Securities of any
series has been made, but before a judgment or decree based on acceleration has
been obtained, the holders of a majority in aggregate principal amount of
Outstanding Debt Securities of that series may, under certain circumstances,
rescind and annul such acceleration. (Section 502)
Reference is made to the Applicable Prospectus Supplement
relating to any series of Offered Debt Securities that are Original Issue
Discount Securities for the particular provisions relating to acceleration of
the Stated Maturity of a portion of the principal amount of such series of
Original Issue Discount Debt Securities upon the occurrence of an Event of
Default and the continuation thereof.
The Indenture provides that, subject to the duty of the Trustee
during default to act with the required standard of care, the Trustee will be
under no obligation to exercise any of its rights or powers under the Indenture
at the request or direction of any of the holders of Debt Securities, unless
such holders shall have offered to the Trustee reasonable indemnity. (Section
603) Subject to such provisions for the indemnification of the Trustee and to
certain other conditions, the holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of any series will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Debt Securities of that series. (Section 512)
No holder of any series of Debt Securities will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless such holder shall have previously given to the Trustee
written notice of a continuing Event of Default and unless the holders of at
least 25% in principal amount of the Outstanding Debt Securities of that series
shall have made written request, and offered reasonable indemnity, to the
Trustee to institute such proceeding as trustee, and the Trustee shall not have
received from the holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of that series a direction inconsistent with such
request and shall have failed to institute such proceeding within 60 days.
(Section 507) However, such limitations do not apply to a suit instituted by a
holder of a Debt Security for enforcement of payment of the principal of and
premium, if any, or interest on such Debt Security on or after the respective
due dates expressed in such Debt Security. (Section 508)
The Company is required to furnish to the Trustee annually a
statement as to the performance by the Company of certain of its obligations
under the Indenture and as to any default in such performance.
(Section 1004)
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the
Company and the Trustee without the consent of the holders of any of the Debt
Securities in order (i) to evidence the succession of another entity to the
Company and the assumption of the covenants and obligations of the Company under
the Debt Securities and the Indenture by such successor to the Company; (ii) to
add to the covenants of the Company for the benefit of the holders of all or any
series of Debt Securities or surrender any right or power conferred on the
Company by the Indenture; (iii) to add additional Events of Default with respect
to any series of Debt Securities; (iv) to add to or change any provisions to
such extent as necessary to facilitate the issuance of Debt Securities in bearer
form or to facilitate the issuance of Book Entry Securities; (v) to add to,
change or eliminate any provision affecting only Debt Securities not yet issued;
(vi) to secure the Debt Securities; (vii) to establish the form or terms of Debt
Securities of any series; (viii) to evidence and provide for successor Trustees
or to add or change any provisions to such extent as necessary to provide for or
facilitate the appointment of a separate Trustee or Trustees for specific series
of Debt Securities; (ix) to permit payment in respect of Debt Securities in
bearer form in the United States to the extent allowed by law; (x) to cure any
ambiguity, to correct or supplement any mistaken or
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inconsistent provisions or to make any other provisions with respect to matters
or questions arising under the Indenture, provided that any such action (other
than in respect of a mistaken provision) does not adversely affect in any
material respect the interests of any holder of Debt Securities of any series
then outstanding. (Section 901)
Modifications and amendments of the Indenture also may be made by
the Company and the Trustee with the consent of the holders of not less than a
majority in aggregate principal amount of the Outstanding Debt Securities of
each series issued under the Indenture and affected by the modification or
amendments; provided, however, that no such modification or amendment may,
without the consent of the Holders of all Debt Securities affected thereby, (i)
change the Stated Maturity of the principal amount of, or any installment of
principal of or interest on, any Debt Security; (ii) reduce the principal amount
of, or the premium, if any, or (except as otherwise provided in the Applicable
Prospectus Supplement) interest on any Debt Security (including in the case of
an Original Issue Discount Security the amount payable upon acceleration of the
maturity thereof); (iii) change the place or currency of payment of principal
of, premium, if any, or interest on any Debt Security; (iv) impair the right to
institute suit for the enforcement of any payment on any Debt Security on or
after the Stated Maturity thereof (or in the case of redemption, on or after the
Redemption Date); or (v) reduce the percentage in principal amount of
Outstanding Debt Securities of any series, the consent of whose holders is
required for modification or amendment of the Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
defaults. (Section 902)
The holders of at least a majority in aggregate principal amount
of the Outstanding Debt Securities of any series may, on behalf of all holders
of Debt Securities of that series, waive compliance by the Company with certain
restrictive provisions of the Indenture. (Section 1010) The holders of not less
than a majority in aggregate principal amount of the Outstanding Debt Securities
of any series may, on behalf of all holders of Debt Securities of that series,
waive any past default under the Indenture, except a default in the payment of
principal, premium or interest or in respect of a covenant or provision of the
Indenture that cannot be modified or amended without the consent of the holder
of each Outstanding Debt Security of such series affected thereby. (Section 513)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge with or into any
other entity or transfer or lease its assets substantially as an entirety to any
entity, unless (i) either the Company is the continuing corporation, or any
successor or purchaser is a corporation, partnership or trust organized under
the laws of the United States of America, any State thereof or the District of
Columbia, and any such successor or purchaser expressly assumes the Company's
obligations on the Debt Securities under a supplemental indenture, (ii)
immediately after giving effect to the transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing, (iii) if properties or assets of
the Company become subject to a Mortgage not permitted by the Indenture, the
Company or such successor entity, as the case may be, takes such steps as shall
be necessary effectively to secure the Debt Securities equally and ratably with
(or prior to) all Debt secured thereby, and (iv) if a supplemental indenture is
to be executed in connection with such consolidation, merger, transfer or lease,
the Company has delivered to the Trustee an Officers' Certificate and an Opinion
of Counsel stating compliance with these provisions. (Section 801)
DEFEASANCE OF OFFERED DEBT SECURITIES OR CERTAIN COVENANTS
IN CERTAIN CIRCUMSTANCES
Defeasance and Discharge
The Indenture provides that the terms of any series of Debt
Securities may provide that the Company, at the Company's option, will be
discharged from any and all obligations in respect of the Debt Securities of
such series (except for certain obligations to register the transfer or exchange
of Debt Securities of such series, to replace stolen, lost or mutilated Debt
Securities of such series, to maintain paying agencies and to hold moneys for
payment in trust) upon the deposit with the Trustee, in trust, of
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money and/or U.S. Government Obligations which, through the payment of interest
and principal thereof in accordance with their terms, will provide money in an
amount sufficient to pay any installment of principal (and premium, if any) and
interest on, and any mandatory sinking fund payments in respect of, the Debt
Securities of such series on the stated maturity of such payments in accordance
with the terms of the Indenture and such Debt Securities. Such discharge may
only occur if, among other things, the Company has delivered to the Trustee an
opinion of counsel to the effect that the Company has received from, or there
has been published by, the United States Internal Revenue Service a ruling, or
there has been a change in tax law, in either case to the effect that such
discharge will not be deemed, or result in, a taxable event with respect to
holders of the Debt Securities of such series. (Sections 1302 and 1304)
Defeasance of Certain Covenants
The Indenture provides that the terms of any series of Debt
Securities may provide the Company with the option to omit to comply with
certain restrictive covenants described in this Prospectus under "-- Certain
Covenants of the Company -- Restrictions on Secured Debt", "-- Certain Covenants
of the Company -- Restrictions on Sales and Leasebacks" and "-- Consolidation,
Merger and Sale of Assets". The Company, in order to exercise such option, will
be required to deposit with the Trustee money and/or U.S. Government Obligations
which, through the payment of interest and principal thereof in accordance with
their terms, will provide money in an amount sufficient to pay principal (and
premium, if any) and interest on, and any mandatory sinking fund payments in
respect of, the Debt Securities of such series on the stated maturity of such
payments in accordance with the terms of the Indenture and such Debt Securities.
The Company will also be required to deliver to the Trustee an opinion of
counsel to the effect that the deposit and related covenant defeasance will not
cause the holders of the Debt Securities of such series to recognize income,
gain or loss for federal income tax purposes. (Sections 1303 and 1304)
In the event the Company exercises this option and the Debt
Securities of such series are declared due and payable because of the occurrence
of any Event of Default, the amount of money and U.S. Government Obligations on
deposit with the Trustee will be sufficient to pay amounts due on the Debt
Securities of such series at the time of their stated maturity but may not be
sufficient to pay amounts due on the Debt Securities of such series at the time
of the acceleration resulting from such Event of Default.
However, the Company shall remain liable for such payments.
The Applicable Prospectus Supplement will state if any defeasance
provision will apply to the Offered Debt Securities.
CONCERNING THE TRUSTEE
Wilmington Trust Company, a Delaware banking corporation, is the
Trustee under the Indenture and is also Property Trustee and Delaware Trustee
under each Trust Agreement, Debenture Trustee under the Junior Subordinated
Indenture and Guarantee Trustee under each Guarantee. The Company maintains
trust and other business relationships in the ordinary course of business with
Wilmington Trust Company. Pursuant to the provisions of the TIA, upon the
occurrence of certain events, Wilmington Trust Company may be deemed to have a
conflicting interest, by virtue of its acting as the Trustee under the
Indenture, its acting as the Property Trustee, the Delaware Trustee, the
Debenture Trustee and the Guarantee Trustee and its other business
relationships with the Company, thereby requiring it to resign and be replaced
by a successor trustee under any or all of the Indenture or the Junior
Subordinated Indenture, each Trust Agreement and each Guarantee.
The Trustee may resign at any time or may be removed by the
holders of at least a majority in aggregate principal amount of the Outstanding
Debt Securities. If the Trustee resigns, is removed or becomes incapable of
acting as Trustee or if a vacancy occurs in the office of the Trustee for any
cause, a successor Trustee shall be appointed in accordance with the provisions
of the Indenture.
DESCRIPTION OF CAPITAL STOCK
The Company's Certificate of Incorporation, as amended (the
"Charter"), currently authorizes the issuance of two classes of stock: (i) 100
million shares of Common Stock, par value $0.10 per share, of which 52,769,579
shares were issued and outstanding as of February 19, 1997 and (ii) 8 million
shares of Preferred Stock, without par value, of which no shares were issued and
outstanding on such date.
The following descriptions of the classes of the Company's
capital stock are summaries, do not purport to be complete, and are subject, in
all respects, to the applicable provisions of the General Corporation Law of
Delaware, the Charter, the Certificate of Designation of Series A Participating
Preferred
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Stock (the "Certificate of Designation"), the Certificate of Increase of
Designation of Series A Participating Preferred Stock (the "Certificate of
Increase") and the 1996 Rights Agreement which, in the case of the Charter, the
Certificate of Designation, the Certificate of Increase and the 1996 Rights
Agreement, are included as Exhibits to the Registration Statement of which this
Prospectus forms a part.
COMMON STOCK
Each holder of Common Stock is entitled to one vote for every
share standing in his or her name on the books of the Company. The Common Stock
does not have cumulative voting rights for the election of directors, which
means that holders of more than 50% of the shares voting for the election of
directors can elect 100% of the directors if they choose to do so, and, in such
event, the holders of the remaining shares voting for the election of directors
will not be able to elect any person or persons to the Board of Directors.
Subject to the limitations contained in the Company's debt
instruments and after provision for the payment of dividends on any series of
Preferred Stock which might be issued and which has a preference with respect to
the payment of dividends, holders of Common Stock are entitled to receive such
dividends as may be declared by the Board of Directors of the Company.
The Common Stock has no conversion rights and is not redeemable.
No holder of Common Stock has any preemptive right to subscribe for any stock or
other securities of the Company which may be issued.
In the event of dissolution, liquidation or winding up of the
Company, or upon any distribution of its assets, the holders of Common Stock are
entitled to receive a pro rata portion of all of the assets available for
distribution to stockholders, subject to any preferential right which may be
accorded to any series of Preferred Stock which might be issued.
The Common Stock is listed on the New York Stock Exchange and the
Toronto Stock Exchange. The outstanding shares of Common Stock are validly
issued, fully paid and non-assessable.
PREFERRED STOCK
The Board of Directors of the Company has the authority, without
further action by stockholders, to determine the principal rights, preferences
and privileges of any unissued Preferred Stock. Provisions may be included in
the shares of Preferred Stock, such as extraordinary voting, dividend,
redemption or conversion rights, which could discourage an unsolicited tender
offer or takeover proposal.
The particular terms of any series of Preferred Stock offered
hereby will be set forth in the Prospectus Supplement relating thereto. The
rights, preferences, privileges and restrictions, including dividend rights,
voting rights, terms of redemption, retirement and sinking fund provisions and
liquidation preferences, if any, of the Preferred Stock of each series will be
fixed or designated pursuant to a certificate of designation adopted by the
Board of Directors of the Company or a duly authorized committee thereof. The
terms, if any, on which shares of any series of Preferred Stock are convertible
or exchangeable into Common Stock will also be set forth in the Prospectus
Supplement relating thereto. Such terms may include provisions for conversion or
exchange, either mandatory, at the option of the holder, or at the option of the
Company, in which case the number of shares of Common Stock to be received by
the holders of Preferred Stock would be calculated as of a time and in the
manner stated in the applicable Prospectus Supplement. The description of the
terms of a particular series of Preferred Stock that will be set forth in the
applicable Prospectus Supplement does not purport to be complete and is
qualified in its entirety by reference to the certificate of designation
relating to such series.
SERIES A PREFERRED STOCK
Out of the authorized Preferred Stock, the Company has designated
750,000 shares of Series A Participating Preferred Stock ("Series A Preferred
Stock"), the terms of which are summarized below.
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Each outstanding share of Common Stock includes a right, which expires December
30, 2006, to purchase one one-hundredth of a share of Series A Preferred Stock
("1996 Preferred Share Purchase Rights"), which Rights are listed on the New
York Stock Exchange and the terms of which are summarized below under "1996
Preferred Share Purchase Rights".
Dividends
Holders of shares of Series A Preferred Stock are entitled to
receive, when, as and if declared by the Board of Directors out of funds legally
available for the purpose, dividends, payable in cash quarterly in arrears on
January 1, April 1, July 1 and October 1 of each year (each, a "Quarterly
Dividend Payment Date"), at an annual rate per share of the greater of (i)
$10.00 or (ii) 100 times the aggregate per share amount of all cash and non-cash
dividends or other distributions (other than dividends payable in Common Stock
or subdivisions of outstanding shares of Common Stock) declared on the Common
Stock since the last Quarterly Dividend Payment Date. Accrued but unpaid
dividends accumulate but do not bear interest.
The Series A Preferred Stock will be junior as to dividends to
any series or class of Preferred Stock (or any similar stock) that ranks senior
as to dividends to the Series A Preferred Stock. The Series A Preferred Stock
has priority as to dividends over the Common Stock and any other series or class
of the Company's stock thereafter issued that ranks junior as to dividends to
the Series A Preferred Stock. If dividends or distributions payable on the
Series A Preferred Stock are in arrears, the Company (i) may not declare or pay
dividends or other distributions on the Common Stock (or any other stock of the
Company that ranks junior to the Series A Preferred Stock) and (ii) is
restricted in its declaration and payment of dividends or other distributions on
any stock of the Company that ranks on a parity with the Series A Preferred
Stock except for dividends paid ratably in accordance with the respective
preferential amounts payable on the Series A Preferred Stock and all such parity
stock.
Liquidation Rights
In the case of the voluntary or involuntary liquidation,
dissolution or winding-up of the Company, holders of shares of Series A
Preferred Stock are entitled to receive the liquidation preference of the higher
of (i) $100.00 per share, plus an amount equal to the accrued and unpaid
dividends to the payment date, or (ii) 100 times the aggregate per share amount
to be distributed to holders of shares of Common Stock, before any payment or
distribution is made to the holders of shares of Common Stock (or any other
stock of the Company that ranks junior to the Series A Preferred Stock). The
holders of shares of Series A Preferred Stock and of any other stock of the
Company that ranks on a parity with the Series A Preferred Stock are entitled to
share ratably, in accordance with the respective preferential amounts payable on
such stock, in any distribution that is not sufficient to pay in full the
aggregate of the amounts payable thereon.
Consolidation and Merger Rights
In case the Company enters into any consolidation, merger,
combination or other transaction in which the shares of Common Stock are changed
into or exchanged for other stock or securities, cash and/or any other property,
each share of Series A Preferred Stock at the same time will be similarly
changed into or exchanged for an amount per share equal to 100 times the
aggregate amount of stock or securities, cash and/or any other property into
which or for which each share of Common Stock is changed or exchanged.
Limitation on Share Repurchase
If dividends or distributions payable on the Series A Preferred
Stock are in arrears, the Company may not redeem, purchase or otherwise acquire
for consideration (i) any stock of the Company that ranks on a parity with the
Series A Preferred Stock, except in exchange for shares of any stock of the
Company ranking junior to the Series A Preferred Stock or (ii) any shares of
Series A Preferred Stock or any stock of the Company that ranks on a parity with
the Series A Preferred Stock, except through a
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purchase offer made in writing or by publication to all holders of such shares
on terms that the Board of Directors of the Company determines will result in
fair and equitable treatment among the respective series or classes of shares.
Voting Rights
Each share of Series A Preferred Stock entitles the holder
thereof to 100 votes on all matters submitted to a vote of the Company's
stockholders, and the holders of the shares of Series A Preferred Stock and the
holders of shares of Common Stock and any other capital stock of the Company
having general voting rights will vote together as one class on all matters
submitted to a vote of the Company's stockholders.
If, at the time of any annual stockholders' meeting for the
election of directors, the equivalent of at least six quarterly dividends
payable on any shares of Series A Preferred Stock are in default, the number of
members of the Company's Board of Directors will be increased by two, and the
holders of the Series A Preferred Stock, voting separately as a class, will be
entitled at such meeting (and each subsequent annual stockholders' meeting) to
elect such two additional directors. Such voting rights will terminate when all
such dividends in arrears have been paid or declared and set apart for payment.
Upon the termination of such voting rights, the terms of office of all directors
so elected will terminate immediately and the number of members of the Company's
Board of Directors will be reduced by two.
Other Features
The shares of Series A Preferred Stock are not redeemable. Unless
otherwise provided in the Company's Restated Certificate of Incorporation or the
designation of a subsequent series of Preferred Stock, the Series A Preferred
Stock will rank junior to all of the Company's other series of Preferred Stock
as to the payment of dividends and the distribution of assets on liquidation,
dissolution or winding-up, and senior to the Common Stock. Series A Preferred
Stock may be issued in fractions of a share (in one one-hundredths (1/100) of a
share and integral multiples thereof).
1996 PREFERRED SHARE PURCHASE RIGHTS
Under a Rights Agreement, dated as of December 12, 1996 (the
"1996 Rights Agreement"), between the Company and The Chase Manhattan Bank, as
Rights Agent, each outstanding share of Common Stock is coupled with a 1996
Preferred Share Purchase Right. Each right entitles the holder to buy from the
Company one one-hundredth of a share of Series A Preferred Stock at a price of
$190.
The 1996 Preferred Share Purchase Rights become exercisable and
detach from the Common Stock ten business days after a person or group acquires,
or announces a tender offer for, 15% or more of the Company's outstanding shares
of Common Stock. The rights will expire on December 30, 2006, unless redeemed
earlier by the Company. The rights are redeemable by the Company at one cent
each at any time prior to public announcement or notice to the Company that an
acquiring person or group has purchased 15% or more of the Company's outstanding
Common Stock (an "Acquisition Event"). At any time after an Acquisition Event
and prior to the acquisition by such person or group of 50% or more of the
outstanding Common Stock, the Board of Directors of the Company may exchange one
share of Common Stock for each right outstanding, other than the rights held by
the acquiring person or group. At any time after an Acquisition Event and the
rights become exercisable, each right, other than rights held by the acquiring
person or group, would entitle its holder to buy Common Stock of the Company
having a market value of twice the exercise price of the right or, if the
Company is subsequently acquired in a merger or other business combination, such
shares of the acquiring or surviving company. Until the 1996 Preferred Share
Purchase Rights detach from the Common Stock (or the earlier termination or
redemption of the 1996 Preferred Share Purchase Rights), an additional 1996
Preferred Share Purchase Right will be issued with every share of newly issued
Common Stock.
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DELAWARE LAW AND CERTAIN CHARTER PROVISIONS
The Company is subject to the provisions of Section 203 of the
General Corporation Law of Delaware. In general, this statute prohibits a
publicly held Delaware corporation from engaging in a "business combination"
with an "interested stockholder" for a period of three years after the date of
the transaction in which the person becomes an interested stockholder, unless
the business combination is approved in a prescribed manner. An "interested
stockholder" is a person who, together with affiliates and associates, owns (or
within the prior three years did own) 15% or more of the corporation's voting
stock.
In addition to Section 203 of the General Corporation Law of
Delaware and the Preferred Share Purchase Rights, the Charter contains several
provisions that may discourage certain transactions involving an actual or
threatened change of control of the Company.
For example, the Charter requires that certain business
combinations and other combinations involving the Company and a holder of 10% or
more of its voting securities be approved by at least 66 2/3% of all shares
having voting rights.
The foregoing provisions of the General Corporation Law of
Delaware and the Charter are intended to encourage persons seeking to acquire
control of the Company to consult first with the Board of Directors to permit
negotiation of the terms of any proposed business combination or offer. They
may, however, also have the effect of discouraging a third party from attempting
to acquire control of the Company. In addition, since these provisions are
designed to discourage accumulations of large blocks of stock by third parties
who wish to gain control of the Company, such provisions may reduce the
temporary market price fluctuations caused by such accumulations.
TRANSFER AGENT AND REGISTRAR
The primary Transfer Agent and Registrar for the Common Stock is
ChaseMellon Shareholder Services, located in New York, New York.
DESCRIPTION OF WARRANTS
The Company may issue Warrants, including Warrants to purchase
Debt Securities ("Debt Warrants"), Preferred Stock, Common Stock or other of its
securities. Warrants may be issued independently or together with any such
securities of the Company and may be attached to or separate from such
securities of the Company. The Warrants are to be issued under warrant
agreements (each a "Warrant Agreement") to be entered into between the Company
and a bank or trust company, as warrant agent (the "Warrant Agent"), all as
shall be set forth in the Prospectus Supplement relating to Warrants being
offered pursuant thereto. The description of the terms of the Warrants that are
set forth below and that will be set forth in the applicable Prospectus
Supplement do not purport to be complete and are qualified in their entirety by
reference to the Warrant Agreement and warrant certificate relating to such
Warrants.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of
Debt Warrants offered thereby, the Warrant Agreement relating to such Debt
Warrants and the warrant certificates representing such Debt Warrants, including
the following: (i) the specific designation of such Debt Warrants; (ii) the Debt
Securities of the Company for which such Debt Warrants are exercisable; (iii)
the aggregate number of such Debt Warrants; (iv) the principal amount of Debt
Securities purchasable upon exercise of each Debt Warrant, and the price or
prices at which such Debt Warrants will be issued; (v) the procedures and
conditions relating to the exercise of such Debt Warrants; (vi) the designation
and terms of any related Debt Securities of the Company with which such Debt
Warrants are issued, and the number of such Debt Warrants issued with each such
Debt Security; (vii) the date, if any, on and after which such Debt Warrants and
the related securities of the Company will be separately transferable; (viii)
the date on which
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the right to exercise such Debt Warrants shall commence, and the date on which
such right shall expire; (ix) the maximum or minimum number of such Debt
Warrants which may be exercised at any time; (x) if applicable, a discussion of
material U.S. federal income tax considerations; (xi) any other terms of such
Debt Warrants and terms, procedures and limitations relating to the exercise of
such Debt Warrants; and (xii) the terms of the securities of the Company
purchasable upon exercise of such Debt Warrants. Prior to the exercise of their
Debt Warrants, holders of Debt Warrants exercisable for Debt Securities will not
have any of the rights of holders of the Debt Securities purchasable upon such
exercise and will not be entitled to payments of principal (or premium, if any)
or interest, if any, on the Debt Securities purchasable upon such exercise.
OTHER WARRANTS
The Company may issue other Warrants. The applicable Prospectus
Supplement will describe the following terms of any such other Warrants in
respect of which this Prospectus is being delivered: (i) the title of such
Warrants; (ii) the securities (which may include Preferred Stock or Common
Stock) for which such Warrants are exercisable; (iii) the price or prices at
which such Warrants will be issued; (iv) if applicable, the designation and
terms of the Preferred Stock or Common Stock with which such Warrants are
issued, and the number of such Warrants issued with each such share of Preferred
Stock or Common Stock; (v) if applicable, the date on and after which such
Warrants and the related Preferred Stock or Common Stock will be separately
transferable; (vi) if applicable, a discussion of material U.S. federal income
tax considerations; and (vii) any other terms of such Warrants, including terms,
procedures and limitations relating to the exchange and exercise of such
Warrants. The applicable Prospectus Supplement will also set forth (a) the
amount of securities called for by such Warrants, and if applicable, the amount
of Warrants outstanding, and (b) information relating to provisions, if any, for
a change in the exercise price or the expiration date of such Warrants and the
kind, frequency and timing of any notice to be given. Prior to the exercise of
their Warrants for shares of Preferred Stock or Common Stock, holders of such
Warrants will not have any rights of holders of the Preferred Stock or Common
Stock purchasable upon such exercise and will not be entitled to dividend
payments, if any, or voting rights of the Preferred Stock or Common Stock
purchasable upon such exercise.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder thereof to purchase for cash
or other consideration such principal amount or such number of securities of the
Company at such exercise price as shall in each case be set forth in, or be
determinable as set forth in, the Prospectus Supplement relating to the Warrants
offered thereby. Warrants may be exercised as set forth in the Prospectus
Supplement relating to the Warrants offered thereby at any time up to the close
of business on the expiration date set forth in such Prospectus Supplement.
After the close of business on the expiration date (or such later expiration
date as may be extended by the Company), unexercised Warrants will become void.
Upon receipt of payment and the Warrant certificate properly
completed and duly executed at the corporate trust office of the Warrant Agent
or any other office indicated in the applicable Prospectus Supplement, the
Company will, as soon as practicable, forward the securities purchasable upon
such exercise. If less than all of the Warrants represented by such Warrant
certificate are exercised, a new Warrant certificate will be issued for the
remaining Warrants.
MODIFICATIONS
Unless otherwise specified in the applicable Prospectus
Supplement, each Warrant Agreement and the terms of the Warrants and the Warrant
certificates may be amended by the Company and the Warrant Agent, without the
consent of the holders, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective or inconsistent provision therein or
in any other manner which the Company may deem necessary or desirable and which
will not adversely affect the interests of the holders of such Warrants in any
material respect.
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DESCRIPTION OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
The Company may issue Stock Purchase Contracts, including
contracts obligating holders to purchase from the Company, and the Company to
sell to the holders, a specified number of shares of Common Stock or Preferred
Stock at a future date or dates. The consideration per share of Preferred Stock
or Common Stock may be fixed at the time the Stock Purchase Contracts are issued
or may be determined by reference to a specific formula set forth in the Stock
Purchase Contracts. The Stock Purchase Contracts may be issued separately or as
a part of units ("Stock Purchase Units") consisting of a Stock Purchase Contract
and Debt Securities, Preferred Securities or debt obligations of third parties,
including U.S. Treasury securities, securing the holders' obligations to
purchase the Preferred Stock or the Common Stock under the Stock Purchase
Contracts. The Stock Purchase Contracts may require the Company to make periodic
payments to the holders of the Stock Purchase Units or vice versa, and such
payments may be unsecured or prefunded on some basis. The Stock Purchase
Contracts may require holders to secure their obligations thereunder in a
specified manner.
The applicable Prospectus Supplement will describe the terms of
any Stock Purchase Contracts or Stock Purchase Units. The description in the
Prospectus Supplement will not purport to be complete and will be qualified in
its entirety by reference to the Stock Purchase Contracts, and, if applicable,
collateral arrangements and depositary arrangements, relating to such Stock
Purchase Contracts or Stock Purchase Units.
BOOK-ENTRY ISSUANCE
Unless otherwise specified in the applicable Prospectus
Supplement, DTC will act as Depositary or Subordinated Depositary, as the case
may be, for Securities issued in the form of Global Securities. Such Securities
will be issued only as fully-registered securities registered in the name of
Cede & Co. (DTC's nominee). One or more fully-registered Global Securities will
be issued for such Securities representing in the aggregate the total number of
such Securities, and will be deposited with or on behalf of DTC.
DTC is a limited purpose trust company organized under the New
York Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code, and a "clearing
agency" registered pursuant to the provisions of Section 17A of the Exchange
Act. DTC holds securities that its Participants deposit with DTC. DTC also
facilitates the settlement among Participants of securities transactions, such
as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations ("Direct Participants"). DTC is
owned by a number of its Direct Participants and by the New York Stock Exchange,
Inc., the American Stock Exchange, Inc. and the National Association of
Securities Dealers, Inc. Access to the DTC system is also available to others
such as securities brokers and dealers, banks and trust companies that clear
through or maintain custodial relationships with Direct Participants, either
directly or indirectly ("Indirect Participants"). The rules applicable to DTC
and its Participants are on file with the Commission.
Purchases of Securities within the DTC system must be made by or
through Direct Participants, which will receive a credit for such Securities on
DTC's records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchases, but Beneficial Owners are expected to receive
written confirmations providing details of the transactions, as well as periodic
statements of their holdings, from the Direct or Indirect Participants through
which the Beneficial Owners purchased Securities. Transfers of ownership
interests in Securities issued in the form of Global Securities are to be
accomplished by entries made on the books of Participants
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acting on behalf of Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in such Securities, except
in the event that use of the book-entry system for such Securities is
discontinued.
DTC has no knowledge of the actual Beneficial Owners of the
Securities issued in the form of Global Securities; DTC's records reflect only
the identity of the Direct Participants to whose accounts such Securities are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. as the registered
holder of Securities issued in the form of Global Securities. If less than all
of a series of such Securities are being redeemed, DTC's current practice is to
determine by lot the amount of the interest of each Direct Participant to be
redeemed.
Although voting with respect to Securities issued in the form of
Global Securities is limited to the holders of record of such Securities, in
those instances in which a vote is required, neither DTC nor Cede & Co. will
itself consent or vote with respect to such Securities. Under its usual
procedures, DTC would mail an omnibus proxy (the "Omnibus Proxy") to the issuer
of such Securities as soon as possible after the record date. The Omnibus Proxy
assigns Cede & Co.'s consenting or voting rights to those Direct Participants to
whose accounts such Securities are credited on the record date (identified in a
listing attached to the Omnibus Proxy).
Payments in respect of Securities issued in the form of Global
Securities will be made by the issuer of such Securities to DTC. DTC's practice
is to credit Direct Participants' accounts on the relevant payment date in
accordance with their respective holdings shown on DTC's records unless DTC has
reason to believe that it will not receive payments on such payment date.
Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices and will be the responsibility of such
Participant and not of DTC, the Property Trustee, either Issuer or the Company,
subject to any statutory or regulatory requirements as may be in effect from
time to time. Payments to DTC are the responsibility of the issuer of the
applicable Securities, disbursement of such payments to Direct Participants is
the responsibility of DTC, and disbursements of such payments to the Beneficial
Owners is the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as Depositary or
Subordinated Depositary, as the case may be, with respect to any Securities at
any time by giving reasonable notice to the issuer of such Securities. In the
event that a successor Depositary or Subordinated Depositary, as the case may
be, is not obtained, individual Security certificates representing such
Securities are required to be printed and delivered. The Company, at its option,
may decide to discontinue use of the system of book-entry transfers through DTC
(or a successor Depositary or Subordinated Depositary, as the case may be).
The information in this section concerning DTC and DTC's
book-entry system has been obtained from sources that the Issuers and the
Company believe to be accurate, but the Issuers and the Company assume no
responsibility for the accuracy thereof. Neither the Issuers nor the Company has
any responsibility for the performance by DTC or its Participants of their
respective obligations as described herein or under the rules and procedures
governing their respective operations.
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PLAN OF DISTRIBUTION
Any of the Securities being offered hereby may be sold in any one
or more of the following ways from time to time: (i) through agents; (ii) to or
through underwriters; (iii) through dealers; and (iv) directly by the Company
or, in the case of Preferred Securities, by the Issuers to purchasers.
The distribution of the Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices.
Sales of Common Stock offered hereby may be effected from time to
time in one or more transactions on the New York Stock Exchange or the Toronto
Stock Exchange or in negotiated transactions or a combination of such methods of
sale, at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at other negotiated prices.
Offers to purchase Securities may be solicited by agents
designated by the Company from time to time. Any such agent involved in the
offer or sale of the Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Company or the Issuers to such
agent will be set forth, in the applicable Prospectus Supplement. Unless
otherwise indicated in such Prospectus Supplement, any such agent will be acting
on a reasonable best efforts basis for the period of its appointment. Any such
agent may be deemed to be an underwriter, as that term is defined in the
Securities Act, of the Securities so offered and sold.
If Securities are sold by means of an underwritten offering, the
Company and, in the case of an offering of Preferred Securities, the applicable
Issuer will execute an underwriting agreement with an underwriter or
underwriters at the time an agreement for such sale is reached, and the names of
the specific managing underwriter or underwriters, as well as any other
underwriters, the respective amounts underwritten and the terms of the
transaction, including commissions, discounts and any other compensation of the
underwriters and dealers, if any, will be set forth in the applicable Prospectus
Supplement which will be used by the underwriters to make resales of the
Securities in respect of which this Prospectus is being delivered to the public.
If underwriters are utilized in the sale of any Securities in respect of which
this Prospectus is being delivered, such Securities will be acquired by the
underwriters for their own account and may be resold from time to time in one or
more transactions, including negotiated transactions, at fixed public offering
prices or at varying prices determined by the underwriters at the time of sale.
Securities may be offered to the public either through underwriting syndicates
represented by managing underwriters or directly by one or more underwriters. If
any underwriter or underwriters are utilized in the sale of Securities, unless
otherwise indicated in the applicable Prospectus Supplement, the underwriting
agreement will provide that the obligations of the underwriters are subject to
certain conditions precedent and that the underwriters with respect to a sale of
such Securities will be obligated to purchase all such Securities if any are
purchased.
The Company or an Issuer, as applicable, may grant to the
underwriters options to purchase additional Securities, to cover
over-allotments, if any, at the initial public offering price (with additional
underwriting commissions or discounts), as may be set forth in the Prospectus
Supplement relating thereto. If the Company or an Issuer, as applicable, grants
any over-allotment option, the terms of such over-allotment option will be set
forth in the Prospectus Supplement for such Securities.
If a dealer is utilized in the sale of the Securities in respect
of which this Prospectus is delivered, the Company or an Issuer, as applicable,
will sell such Securities to the dealer as principal. The dealer may then resell
such Securities to the public at varying prices to be determined by such dealer
at the time of resale. Any such dealer may be deemed to be an underwriter, as
such term is defined in the Securities Act, of the Securities so offered and
sold. The name of the dealer and the terms of the transaction will be set forth
in the Prospectus Supplement relating thereto.
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Offers to purchase Securities may be solicited directly by the
Company or an Issuer, as applicable, and the sale thereof may be made by the
Company or an Issuer directly to institutional investors or others, who may be
deemed to be underwriters within the meaning of the Securities Act with respect
to any resale thereof. The terms of any such sales will be described in the
Prospectus Supplement relating thereto.
Securities may also be offered and sold, if so indicated in the
applicable Prospectus Supplement, in connection with a remarketing upon their
purchase, in accordance with a redemption or repayment pursuant to their terms,
or otherwise, by one or more firms ("remarketing firms"), acting as principals
for their own accounts or as agents for the Company or an Issuer, as applicable.
Any remarketing firm will be identified and the terms of its agreement, if any,
with the Company or such Issuer and its compensation will be described in the
applicable Prospectus Supplement. Remarketing firms may be deemed to be
underwriters, as that term is defined in the Securities Act, in connection with
the Securities remarketed thereby.
If so indicated in the applicable Prospectus Supplement, the
Company or an Issuer, as applicable, may authorize agents and underwriters to
solicit offers by certain institutions to purchase Securities from the Company
or such Issuer at the public offering price set forth in the applicable
Prospectus Supplement pursuant to delayed delivery contracts providing for
payment and delivery on the date or dates stated in the applicable Prospectus
Supplement. Such delayed delivery contracts will be subject to only those
conditions set forth in the applicable Prospectus Supplement. A commission
indicated in the applicable Prospectus Supplement will be paid to underwriters
and agents soliciting purchases of Securities pursuant to delayed delivery
contracts accepted by the Company or such Issuer, as applicable.
Agents, underwriters, dealers and remarketing firms may be
entitled under relevant agreements with the Company or an Issuer, as applicable,
to indemnification by the Company or such Issuer against certain liabilities,
including liabilities under the Securities Act, or to contribution with respect
to payments which such agents, underwriters, dealers and remarketing firms may
be required to make in respect thereof.
Each series of Securities will be a new issue and, other than the
Common Stock, which is listed on the New York Stock Exchange and the Toronto
Stock Exchange, will have no established trading market. The Company may elect
to list any series of Securities on an exchange, and in the case of the Common
Stock, on any additional exchange, but, unless otherwise specified in the
applicable Prospectus Supplement, the Company shall not be obligated to do so.
No assurance can be given as to the liquidity of the trading market for any of
the Securities.
Agents, underwriters, dealers and remarketing firms may be
customers of, engage in transactions with, or perform services for, the Company
and its subsidiaries in the ordinary course of business.
LEGAL OPINIONS
Unless otherwise specified in a Prospectus Supplement relating to
particular Securities, the validity of the Securities offered hereby, other than
Preferred Securities, will be passed upon for the Company by Debevoise &
Plimpton, New York, New York, and the validity of the Preferred Securities
offered hereby will be passed upon for the Company by Morris, Nichols, Arsht &
Tunnell, special Delaware counsel to the Company. The validity of the Securities
offered hereby will be passed upon for the underwriters, dealers or agents, if
any, by counsel to be named in the applicable Prospectus Supplement.
55
<PAGE> 58
EXPERTS
The financial statements and schedules incorporated in this
Prospectus by reference to the 1996 Form 10-K have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their report with
respect thereto, and are incorporated in this Prospectus by reference in
reliance upon the authority of said firm as experts in giving said reports.
The consolidated financial statements of the Company included in
any subsequent Annual Report of the Company on Form 10-K and incorporated by
reference in this Prospectus will have been examined by the independent public
accountants whose report thereon appears in such Annual Report. Such
consolidated financial statements of the Company shall be deemed to be
incorporated herein from the date of filing of the applicable report on Form
10-K in reliance on the reports of such independent public accountants, given on
the authority of such firm as experts in auditing and accounting.
56
<PAGE> 59
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses (other than
underwriting discounts and commissions) expected to be incurred in connection
with the issuance and distribution of the securities being registered. Except
for the Securities and Exchange Commission filing fee, all amounts shown are
estimates:
<TABLE>
<CAPTION>
<S> <C>
Registration Fee.................................................................... $90,909
Rating Agency Fees.................................................................. *
Accountants' Fees and Expenses...................................................... *
Counsel's Fees and Expenses......................................................... *
Blue Sky Fees and Expenses (including counsel's fees)............................... *
Printing and Engraving Expenses..................................................... *
Fees and Expenses of Trustees....................................................... *
New York Stock Exchange Listing Fee ................................................ *
Toronto Stock Exchange Listing Fee.................................................. *
Transfer Agent and Registrar........................................................ *
Miscellaneous....................................................................... *
-------
Total............................................................................... *
=======
</TABLE>
- --------------------
* To be filed by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
A. Reference is made to Section 102(b)(7) of the General Corporation
Law of the State of Delaware as to the limitation of personal liability of
directors and officers and to Section 145 of the General Corporation Law of the
State of Delaware as to indemnification by the Company of its directors and
officers.
B. Article FOURTEENTH of the Company's Certificate of Incorporation, as
amended, provides as follows with respect to the indemnification of the
Company's directors and officers and the limitation of personal liability of its
directors and officers:
FOURTEENTH: The corporation shall indemnify to the full extent
authorized or permitted by law any person made, or threatened to be
made, a party to any action or proceeding (whether civil or criminal or
otherwise) by reason of the fact that he, his testator or intestate, is
or was a director or officer of the corporation or by reason of the
fact that such director or officer, at the request of the corporation,
is or was serving any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, in any capacity.
Nothing contained herein shall affect any rights to indemnification to
which employees other than directors and officers may be entitled by
law. No director of the corporation shall be personally liable to the
corporation or its stockholders for monetary damages for any breach of
fiduciary duty by such a director as a director. Notwithstanding the
foregoing sentence, a director shall be liable to the extent provided
by applicable law (i) for any breach of the director's duty of loyalty
to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct
II-1
<PAGE> 60
or a knowing violation of law, (iii) pursuant to Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from
which such director derived an improper personal benefit. No amendment
to or repeal of this Article FOURTEENTH shall apply to or have any
effect on the liability or alleged liability of any director of the
corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment.
C. Article IX of the Company's By-Laws provides as follows with
respect to the indemnification of the Company's directors and officers and of
certain other persons:
ARTICLE IX
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation shall, to the fullest extent permitted by
applicable law from time to time in effect, (but, in the case of any
amendment of such law, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than such law
permitted the Corporation to provide prior to such amendment) indemnify
any and all persons who may serve or who have served at any time as
directors or officers of the Corporation, or who at the request of the
Corporation may serve or at any time have served as directors,
officers, employees or agents of another corporation (including
subsidiaries of the Corporation) or of any partnership, joint venture,
trust or other enterprise, and any directors or officers of the
Corporation who at the request of the Corporation may serve or at any
time have served as agents or fiduciaries of an employee benefit plan
of the Corporation or any of its subsidiaries, from and against any and
all of the expenses, liabilities or other matters referred to in or
covered by law whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or
agent. The Corporation may also indemnify any and all other persons
whom it shall have power to indemnify under any applicable law from
time to time in effect to the extent permitted by such law. The
indemnification provided by this Article IX shall not be deemed
exclusive of any other rights to which any person may be entitled under
any provision of the Certificate of Incorporation, other By-Law,
agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in an official capacity and as to action
in another capacity while holding such office, and shall be contract
rights and continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
If a claim under this Article IX is not paid in full by the
Corporation within sixty days after a written claim has been received
by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be twenty days, the
director or officer may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in
whole or in part in any such suit, or in a suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms
of an undertaking, the director or officer shall be entitled to be paid
also the expense of prosecuting or defending such suit. In (i) any suit
brought by the director or officer to enforce a right to
indemnification hereunder (but not in a suit brought by the director or
officer to enforce a right to an advancement of expenses) it shall be a
defense that, and (ii) any suit by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the
Corporation shall be entitled to recover such expenses upon a final
adjudication that, the director or officer has not met any applicable
standard for indemnification set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation (including its
Board of Directors, independent legal counsel, or its stockholders) to
have made a determination prior to the commencement of such suit that
indemnification of the director or officer is proper in the
circumstances because the director or officer has met the applicable
standard of conduct set forth in the Delaware General Corporation Law,
nor an actual determination by the Corporation (including its Board,
independent legal counsel, or its
II-2
<PAGE> 61
stockholders) that the director or officer has not met such applicable
standard of conduct, shall create a presumption that the director or
officer has not met the applicable standard of conduct or, in the case
of such a suit brought by the director or officer, be a defense to such
suit. In any suit brought by the director or officer to enforce a right
to indemnification or to an advancement of expenses hereunder, or by
the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the director or
officer is not entitled to be indemnified, or to such advancement of
expenses, under this Article IX or otherwise shall be on the
Corporation.
The indemnification provided in this Article IX shall inure to
each person referred to herein, whether or not the person is serving in
any of the enumerated capacities at the time such expenses (including
attorneys' fees), judgments, fines or amounts paid in settlement are
imposed or incurred, and whether or not the claim asserted against him
is based on matters which antedate the adoption of this Article IX.
None of the provisions of this Article IX shall be construed as a
limitation upon the right of the Corporation to exercise its general
power to enter into a contract or understanding of indemnity with a
director, officer, employee, agent or any other person in any proper
case not provided for herein. Each person who shall act or have acted
as a director or officer of the Corporation shall be deemed to be doing
so in reliance upon such right of indemnification.
For purposes of this Article IX, the term "Corporation" shall
include constituent corporations referred to in subsection (h) of
Section 145 of the General Corporation Law of the State of Delaware (or
any similar provision of applicable law at the time in effect).
D. The Company has entered into an Indemnity Agreement with each member
of the Company's Board of Directors. Each Indemnity Agreement provides, among
other things, that in the event the director was, is or becomes a party, witness
or other participant in a Claim (as defined in the Indemnity Agreement) by
reason of (or arising in part out of) an Indemnifiable Event (as defined in the
Indemnity Agreement), the Company is required to indemnify the director to the
fullest extent authorized by the Company's By-Laws as in effect on the date of
the Indemnification Agreement notwithstanding any subsequent amendment, repeal
or modification of such By-Laws, against any and all expenses, judgments, fines,
penalties and amounts paid in settlement of such Claim. The Indemnity Agreement
requires that the Company advance to the director all expenses relating to
Claims and contains an undertaking by the director to reimburse the Company for
any such advances that are subsequently determined in a final judicial
determination to have been impermissible under applicable law.
E. The directors and officers of the Company are covered by insurance
policies, maintained by the Company at its expense, insuring the directors and
officers against certain liabilities which might be incurred by them in such
capacities, including liabilities arising under the Securities Act of 1933.
ITEM 16. EXHIBITS.
The following Exhibits are filed as part of this Registration
Statement:
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
<S> <C>
1.1 Form of Debt Security Underwriting Agreement. **
1.2 Form of Equity Underwriting Agreement. **
1.3 Form of Underwriting Agreement for Stock Purchase Contracts.**
1.4 Form of Underwriting Agreement for Preferred Securities.**
4.1 Certificate of Incorporation of the Company, as amended
(incorporated by reference to Exhibit 3 to the Company's
Annual Report on Form 10-K (File No. 1-3660) for the fiscal
year ended December 31, 1995).
4.2 By-laws of the Company, as amended (incorporated by reference
to Exhibit 3 to the
</TABLE>
II-3
<PAGE> 62
<TABLE>
<S> <C>
Company's annual report on Form 10-K (File No. 1-3660) for
the fiscal year ended December 31, 1995).
4.3 Specimen Certificate of Common Stock of the Company
(incorporated by reference to Exhibit 99 to the Company's
Annual Report on Form 10-K (File No. 1-3660) for the fiscal
year ended December 31, 1996).
4.4.1 Rights Agreement, dated as of December 12, 1996
(incorporated by reference to Exhibit 1 to the Company's
Registration Statement on Form 8-A (File No. 1-3660), dated
December 19, 1996).
4.4.2 Form of Rights Certificate (attached as Exhibit to the
Rights Agreement incorporated by reference herein as
Exhibit 4.4.1).
4.5.1 Form of Indenture between Owens Corning and _______________, as
Trustee.
4.5.2 Form of Debt Securities.**
4.6.1 Form of Warrants.**
4.6.2 Form of Warrant Agreement.**
4.7.1 Form of Stock Purchase Contract.**
4.7.2 Form of Stock Purchase Unit.**
4.7.3 Form of Pledge Agreement.**
4.7.4 Form of Stock Purchase Contract Agreement.**
4.8.1 Certificate of Trust of Owens Corning Capital II.
4.8.2 Declaration of Trust of Owens Corning Capital II.
4.9.1 Certificate of Trust of Owens Corning Capital III.
4.9.2 Declaration of Trust of Owens Corning Capital III.
4.10.1 Form of Amended and Restated Trust Agreement for Owens Corning
Capital II.
4.10.2 Form of Preferred Security Certificate for Owens Corning
Capital II.**
4.10.3 Form of Guarantee Agreement in respect of Owens Corning
Capital II.
4.11.1 Form of Amended and Restated Trust Agreement for Owens Corning
Capital III.
4.11.2 Form of Preferred Security Certificate for Owens Corning
Capital III.**
4.11.3 Form of Guarantee Agreement in respect of Owens Corning
Capital III.
4.12.1 Form of Junior Subordinated Indenture between Owens Corning and
Wilmington Trust Company, as Trustee.
4.12.2 Form of Junior Subordinated Deferrable Interest Debentures.**
5.1.1 Opinion of Debevoise & Plimpton as to the legality of the
Securities (other than the Preferred Securities) being
registered.*
5.1.2 Opinion of Morris, Nichols, Arsht & Tunnell, special
Delaware counsel, relating to the legality of the Preferred
Securities of Owens Corning Capital II and Owens Corning
Capital III.*
12.1 Computation of Ratio of Earnings to Fixed Charges and Ratio of
Earnings to Fixed Charges and Preferred Stock Dividends.
23.1 Consent of Arthur Andersen LLP, independent public accountants.
23.2 Consent of Debevoise & Plimpton (included in Exhibit 5.1.1).*
23.3 Consent of Morris, Nichols, Arsht & Tunnell, special Delaware
counsel (included in Exhibit 5.1.2).*
24 Powers of Attorney.
25.1 Form T-1 Statement of Eligibility of Trustee under the
Indenture.*
25.2 Form T-1 Statement of Eligibility of Wilmington Trust Company,
as Trustee under the Junior Subordinated Indenture, as
Property Trustee under the Amended and Restated Trust
Agreements of Owens Corning Capital II and Owens Corning
Capital III and as Guarantee Trustee under the Guarantees for
Owens Corning Capital II and Owens Corning Capital III.*
- --------------------
</TABLE>
* To be filed by amendment.
** The form or forms of Underwriting Agreements, Debt Securities, Warrant
Agreement, Warrants, Stock Purchase Contract, Stock Purchase Units,
Pledge Agreement, Stock Purchase Contract Agreement, Preferred Securities
and Junior Subordinated Debentures with respect to each particular
offering of Debt Securities, Warrants, Stock Purchase Contracts, Stock
Purchase Units, Preferred
II-4
<PAGE> 63
Securities or Junior Subordinated Debentures will be filed as an exhibit
to a report on Form 8-K and incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
(A) RULE 415 OFFERING
The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) of this section do
not apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the Company pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(B) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE.
The undersigned Registrants hereby further undertake that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Company's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-5
<PAGE> 64
(C) POLICY REGARDING INDEMNIFICATION.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrants pursuant to the foregoing provisions, or otherwise,
the Registrants have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by any
Registrant of expenses incurred or paid by a director, officer or controlling
person of a Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, such Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(D) REGISTRATION STATEMENTS PERMITTED BY RULE 430A.
The undersigned Registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by any Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
II-6
<PAGE> 65
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Owens
Corning certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Toledo, State of Ohio, on April 3, 1997.
OWENS CORNING
By: /s/ Michael I. Miller
-----------------------
Michael I. Miller
Vice President and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
<S> <C> <C>
SIGNATURES TITLE DATE
* Chairman of the Board, April 3, 1997
- ------------------------------------ Chief Executive Officer and
(Glen H. Hiner) Director (principal executive
officer)
* Senior Vice President and April 3, 1997
- ------------------------------------ Chief Financial Officer
(David W. Devonshire) (principal financial officer)
* Vice President and April 3, 1997
- ------------------------------------ Controller
(Steven J. Strobel)
* Director April 3, 1997
- ------------------------------------
(Norman P. Blake, Jr.)
* Director April 3, 1997
- ------------------------------------
(Leonard S. Coleman, Jr.)
* Director April 3, 1997
- ------------------------------------
(William W. Colville)
* Director April 3, 1997
- ------------------------------------
(John H. Dasburg)
* Director April 3, 1997
- ------------------------------------
(Landon Hilliard)
* Director April 3, 1997
- ------------------------------------
(Sir Trevor Holdsworth)
* Director April 3, 1997
- ------------------------------------
(Jon M. Huntsman, Jr.)
* Director April 3, 1997
- ------------------------------------
(Ann Iverson)
* Director April 3, 1997
- ------------------------------------
(W. Walker Lewis)
* Director April 3, 1997
- ------------------------------------
(Furman C. Moseley, Jr.)
* Director April 3, 1997
- ------------------------------------
(W. Ann Reynolds)
*By: Michael I. Miller
----------------------
Attorney-in-fact
</TABLE>
II-7
<PAGE> 66
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, Owens
Corning Capital II (i) certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and (ii) has duly caused
this Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Toledo, State of Ohio, on
April 3, 1997.
OWENS CORNING CAPITAL II
By OWENS CORNING, as Depositor
By /s/ Michael I. Miller
-----------------------------
Name: Michael I. Miller
Title: Vice President and Treasurer
II-8
<PAGE> 67
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, Owens
Corning Capital III (i) certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and (ii) has duly caused
this Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Toledo, State of Ohio, on
April __, 1997.
OWENS CORNING CAPITAL III
By OWENS CORNING, as Depositor
By /s/ Michael I. Miller
-----------------------------
Name: Michael I. Miller
Title: Vice President and Treasurer
II-9
<PAGE> 68
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBER EXHIBIT NUMBERED-PAGE
- -------------- ------------------------------------------------------------- --------------------
<S> <C> <C>
1.1 Form of Debt Security Underwriting Agreement. **
1.2 Form of Equity Underwriting Agreement. **
1.3 Form of Underwriting Agreement for Stock Purchase Contracts.**
1.4 Form of Underwriting Agreement for Preferred Securities.**
4.1 Certificate of Incorporation of the Company, as amended
(incorporated by reference to Exhibit 3 to the Company's
Annual Report on Form 10-K (File No. 1-3660) for the fiscal
year ended December 31, 1995).
4.2 By-laws of the Company, as amended (incorporated by reference
to Exhibit 3 to the Company's annual report on Form 10-K
(File No. 1-3660) for the fiscal year ended December 31, 1995).
4.3 Specimen Certificate of Common Stock of the Company
(incorporated by reference to Exhibit 99 to the Company's
Annual Report on Form 10-K (File No. 1-3660) for the fiscal
year ended December 31, 1996).
4.4.1 Rights Agreement, dated as of December 12, 1996
(incorporated by reference to Exhibit 1 to the Company's
Registration Statement on Form 8-A (File No. 1-3660), dated
December 19, 1996).
4.4.2 Form of Rights Certificate (attached as Exhibit to the
Rights Agreement incorporated
by reference herein as Exhibit 4.4.1).
4.5.1 Form of Indenture between Owens Corning and _______________, as
Trustee.
4.5.2 Form of Debt Securities.**
4.6.1 Form of Warrants.**
4.6.2 Form of Warrant Agreement.**
4.7.1 Form of Stock Purchase Contract.**
4.7.2 Form of Stock Purchase Unit.**
4.7.3 Form of Pledge Agreement.**
4.7.4 Form of Stock Purchase Contract Agreement.**
4.8.1 Certificate of Trust of Owens Corning Capital II.
4.8.2 Declaration of Trust of Owens Corning Capital II.
4.9.1 Certificate of Trust of Owens Corning Capital III.
4.9.2 Declaration of Trust of Owens Corning Capital III.
4.10.1 Form of Amended and Restated Trust Agreement for Owens Corning
Capital II.
4.10.2 Form of Preferred Security Certificate for Owens Corning
Capital II.**
4.10.3 Form of Guarantee Agreement in respect of Owens Corning
Capital II.
4.11.1 Form of Amended and Restated Trust Agreement for Owens Corning
Capital III.
4.11.2 Form of Preferred Security Certificate for Owens Corning
Capital III.**
4.11.3 Form of Guarantee Agreement in respect of Owens Corning
Capital III.
4.12.1 Form of Junior Subordinated Indenture between Owens Corning and
Wilmington Trust Company, as Trustee.
4.12.2 Form of Junior Subordinated Deferrable Interest Debentures.**
5.1.1 Opinion of Debevoise & Plimpton as to the legality of the
Securities (other than the Preferred Securities) being
registered.*
5.1.2 Opinion of Morris, Nichols, Arsht & Tunnell, special
Delaware counsel, relating to the legality of the Preferred
Securities of Owens Corning Capital II and Owens Corning
Capital III.*
12.1 Computation of Ratio of Earnings to Fixed Charges and Ratio of
Earnings to Fixed Charges and Preferred Stock Dividends.
23.1 Consent of Arthur Andersen LLP, independent public accountants.
23.2 Consent of Debevoise & Plimpton (included in Exhibit 5.1.1).*
23.3 Consent of Morris, Nichols, Arsht & Tunnell, special Delaware
counsel (included in Exhibit 5.1.2).*
24 Powers of Attorney.
25.1 Form T-1 Statement of Eligibility of Trustee under the
Indenture.*
25.2 Form T-1 Statement of Eligibility of Wilmington Trust Company,
as Trustee under the Junior Subordinated Indenture, as
Property Trustee under the Amended and Restated Trust
Agreements of Owens Corning Capital II and Owens Corning
Capital III and as Guarantee Trustee under the Guarantees for
Owens Corning Capital II and Owens Corning Capital III.*
- --------------------
</TABLE>
* To be filed by amendment.
** The form or forms of Underwriting Agreements, Debt Securities, Warrant
Agreement, Warrants, Stock Purchase Contract, Stock Purchase Units,
Pledge Agreement, Stock Purchase Contract Agreement, Preferred Securities
and Junior Subordinated Debentures with respect to each particular
offering of Debt Securities, Warrants, Stock Purchase Contracts, Stock
Purchase Units, Preferred Securities or Junior Subordinated Debentures
will be filed as an exhibit to a report on Form 8-K and incorporated
herein by reference.
<PAGE> 1
Exhibit 4.5.1
Draft of March 26, 1997
================================================================================
OWENS CORNING
TO
-----------------------------
Trustee
----------
INDENTURE
Dated as of _______________, 1997
Providing for Issuance of
Debt Securities in Series
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions...............................................................................1
Section 102. Compliance Certificates and Opinions.....................................................10
Section 103. Form of Documents Delivered to Trustee...................................................10
Section 104. Acts of Holders; Record Dates............................................................11
Section 105. Notices, Etc., to Trustee and Company....................................................12
Section 106. Notice to Holders; Waiver................................................................13
Section 107. Conflict with Trust Indenture Act........................................................13
Section 108. Effect of Headings and Table
of Contents............................................................................14
Section 109. Successors and Assigns...................................................................14
Section 110. Separability Clause......................................................................14
Section 111. Benefits of Indenture....................................................................14
Section 112. Governing Law............................................................................14
Section 113. Legal Holidays...........................................................................14
ARTICLE TWO
Security Forms
Section 201. Forms Generally..........................................................................15
Section 202. Form of Face of Security.................................................................16
Section 203. Form of Reverse of Security..............................................................18
Section 204. Additional Provisions Required in
Book-Entry Security....................................................................22
Section 205. Form of Trustee's Certificate of
Authentication.........................................................................23
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.....................................................23
Section 302. Denominations............................................................................26
Section 303. Execution, Authentication, Delivery
and Dating.............................................................................26
Section 304. Temporary Securities.....................................................................29
Section 305. Registration, Registration of
Transfer and Exchange..................................................................29
</TABLE>
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be deemed to be a part of the Indenture.
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Section 306. Mutilated, Destroyed, Lost and
Stolen Securities......................................................................31
Section 307. Payment of Interest; Interest Rights
Preserved..............................................................................32
Section 308. Persons Deemed Owners....................................................................34
Section 309. Cancellation.............................................................................34
Section 310. Computation of Interest..................................................................34
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture..................................................35
Section 402. Application of Trust Money...............................................................36
ARTICLE FIVE
Remedies
Section 501. Events of Default........................................................................36
Section 502. Acceleration of Maturity; Rescission
and Annulment..........................................................................38
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.............................................................40
Section 504. Trustee May File Proofs of Claim.........................................................40
Section 505. Trustee May Enforce Claims Without
Possession of Securities...............................................................41
Section 506. Application of Money Collected...........................................................41
Section 507. Limitation on Suits......................................................................42
Section 508. Unconditional Right of Holders
to Receive Principal, Premium
and Interest...........................................................................43
Section 509. Restoration of Rights and Remedies.......................................................43
Section 510. Rights and Remedies Cumulative...........................................................43
Section 511. Delay or Omission Not Waiver.............................................................43
Section 512. Control by Holders.......................................................................44
Section 513. Waiver of Past Defaults..................................................................44
Section 514. Undertaking for Costs....................................................................44
Section 515. Waiver of Stay or Extension Laws.........................................................45
</TABLE>
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NOTE: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
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ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities......................................................45
Section 602. Notice of Defaults.......................................................................45
Section 603. Certain Rights of Trustee................................................................46
Section 604. Not Responsible for Recitals or
Issuance of Securities.................................................................47
Section 605. May Hold Securities......................................................................47
Section 606. Money Held in Trust......................................................................48
Section 607. Compensation and Reimbursement...........................................................48
Section 608. Disqualification; Conflicting Interests..................................................48
Section 609. Corporate Trustee Required; Eligibility..................................................49
Section 610. Resignation and Removal;
Appointment of Successor...............................................................49
Section 611. Acceptance of Appointment by
Successor..............................................................................51
Section 612. Merger, Conversion, Consolidation
or Succession to Business..............................................................52
Section 613. Preferential Collection of Claims
Against Company........................................................................53
Section 614. Appointment of Authenticating Agent......................................................53
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee
Names and Addresses of Holders.........................................................55
Section 702. Preservation of Information;
Communications to Holders..............................................................56
Section 703. Reports by Trustee.......................................................................56
Section 704. Reports by Company.......................................................................56
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc.,
Only on Certain Terms..................................................................57
Section 802. Successor Substituted....................................................................58
Section 803. Officers' Certificate and
Opinion of Counsel.....................................................................58
</TABLE>
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be deemed to be a part of the Indenture.
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ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without
Consent of Holders.....................................................................58
Section 902. Supplemental Indentures with Consent
of Holders.............................................................................60
Section 903. Execution of Supplemental Indentures.....................................................61
Section 904. Effect of Supplemental Indentures........................................................61
Section 905. Conformity with Trust Indenture Act......................................................62
Section 906. Reference in Securities to
Supplemental Indentures................................................................62
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium
and Interest...........................................................................62
Section 1002. Maintenance of Office or Agency..........................................................62
Section 1003. Money for Securities Payments to
Be Held in Trust.......................................................................63
Section 1004. Statement by Officers as to Default......................................................64
Section 1005. Existence................................................................................65
Section 1006. Maintenance of Principal Properties......................................................65
Section 1007. Payment of Taxes and Other Claims........................................................65
Section 1008. Limitation on Liens......................................................................65
Section 1009. Limitation on Sales and Leasebacks.......................................................67
Section 1010. Waiver of Certain Covenants..............................................................68
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.................................................................68
Section 1102. Election to Redeem: Notice to Trustee....................................................68
Section 1103. Selection by Trustee of Securities
to Be Redeemed.........................................................................69
Section 1104. Notice of Redemption.....................................................................69
Section 1105. Deposit of Redemption Price..............................................................70
Section 1106. Securities Payable on Redemption Date....................................................70
Section 1107. Securities Redeemed in Part..............................................................71
</TABLE>
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ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.................................................................71
Section 1202. Satisfaction of Sinking Fund Payments
with Securities........................................................................72
Section 1203. Redemption of Securities for
Sinking Fund...........................................................................72
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's
Option to Effect Defeasance or
Covenant Defeasance....................................................................73
Section 1302. Defeasance and Discharge.................................................................73
Section 1303. Covenant Defeasance......................................................................74
Section 1304. Conditions to Defeasance or
Covenant Defeasance....................................................................74
Section 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions.........................................................77
Section 1306. Reinstatement............................................................................78
</TABLE>
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NOTE: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
<PAGE> 7
INDENTURE, dated as of ________________, 1997, between Owens
Corning, a corporation duly organized and existing under the laws of the State
of Delaware (herein called the "Company"), having its principal office at Owens
Corning World Headquarters, Toledo, Ohio, and [insert name of Trustee], a
[________________________] duly organized and existing under the laws of the
[_________________________]as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
------------
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
<PAGE> 8
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or con trolled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, as to any particular lease under
which any Person is at the time liable, at any date as of which the amount
thereof is to be determined, the total net amount of rent required to be paid by
such Person under such lease during the remaining term thereof, discounted from
the respective due dates thereof to such date at the rate of 12% per annum
compounded semi-annually. The net amount of rent required to be paid under any
such lease for any such period shall be the amount of the rent payable by the
lessee with respect to such period, after excluding amounts required to be paid
on account of maintenance and repairs, insurance, taxes, assessments, water
rates and similar charges. In the case of any lease which is terminable by the
lessee upon the payment of a penalty, such net amount shall also include the
amount of such penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so
terminated.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of
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<PAGE> 9
the Trustee to authenticate Securities of one or more series.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means a Security in the form prescribed
in Section 204 evidencing all or part of a series of Securities, issued to the
Depository for such series or its nominee, and registered in the name of such
Depository or such nominee.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment are authorized or
obligated by law or executive order to close.
"Commission" means the Securities and Exchange commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Controller, an Assistant Controller, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount
of assets after deducting therefrom (a) all current liabilities (excluding any
thereof constituting Funded Debt by reason of being renewable or extendable) and
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<PAGE> 10
(b) all goodwill, trade names, trademarks, patents, unamortized debt discount
and expenses and other like intangibles, all as set forth on the most recent
balance sheet of the Company and its consolidated subsidiaries and computed in
accordance with generally accepted accounting principles.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee in the Borough of Manhattan, The City of New York, at
which at any particular time its corporate trust business shall be administered.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Debt" has the meaning specified in Section 1008.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more
Book-Entry Securities, the Person designated as Depository for such series by
the Company pursuant to Section 301, which Person shall be a clearing agency
registered under the Securities Exchange Act of 1934; and if at any time there
is more than one such Person 'Depository' as used with respect to the Securities
of any series shall mean the Depository with respect to the Securities of such
series.
"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means all indebtedness for money borrowed, or
evidenced by a bond, debenture, note or similar instrument or agreement whether
or not for money borrowed, having a maturity of more than 12 months from the
date as of which the amount thereof is to be determined or having a maturity of
less than 12 months but by its terms being renewable or extendable beyond 12
months from such date at the option of the borrower.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such
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<PAGE> 11
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively. The term "Indenture" shall also include the terms of
particular series of Securities established as contemplated by Section 301.
"Indexed Security" means any Security which provides that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an instalment of interest on such
Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an instalment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Mortgage" has the meaning specified in Section 1008.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 1004 shall be the principal executive,
financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
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<PAGE> 12
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, EXCEPT:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; PROVIDED that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefore
satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections
1302 and 1303, with respect to which the Company has effected
defeasance or covenant defeasance as provided in Article Thirteen; and
(iv) Securities which has been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations required by section 313 of the Trust
Indenture Act, (i) the principal amount of an Original Issue Discount Security
that shall be deemed to be Outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof pursuant to Section 502, (ii) the
principal amount of a Security denominated in one or more foreign currencies or
currency units shall be the U.S. dollar equivalent, determined in the manner
provided as contemplated by Section 301 on the date of original issuance of
such Security, of the principal amount (or, in the case
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<PAGE> 13
of an Original Issue Discount Security, the U.S. dollar equivalent on the date
of original issuance of such Security of the amount determined as provided in
(i) above) of such Security, (iii) the principal amount of any Indexed Security
that may be counted in making such determination or calculation and that shall
be deemed to be Outstanding for such purpose shall be equal to the principal
face amount of such Indexed Security at original issuance, unless otherwise
provided with respect to such Security pursuant to Section 301, and (iv)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of and any premium
and interest on the Securities of that series are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any building, structure or other
facility, together with the land upon which it is erected and fixtures
comprising a part thereof, used
-7-
<PAGE> 14
primarily for manufacturing, processing or warehousing and located in the United
States, the gross book value (without deduction of any depreciation reserves) of
which on the date as of which the determination is being made exceeds 1% of
Consolidated Net Tangible Assets, other than any such building, structure or
other facility or portion thereof (i)which is a pollution control or other
facility that was financed by obligations issued by a State or local
governmental unit pursuant to Section 103(b)(4)(F), 103(b)(4)(E) or 103(b)(6) of
the Internal Revenue Code, or any successor provision thereof, or (ii) which, in
the opinion of the Board of Directors of the Company, is not of material
importance to the total business conducted by the Company and its Subsidiaries
as an entirety.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary which owns or
leases any Principal Property.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
-8-
<PAGE> 15
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any security or
any instalment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such instalment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; PROVIDED,
HOWEVER, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in
Section 1304.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
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<PAGE> 16
Section 102. Compliance Certificates and Opinions.
-------------------------------------
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion shall be given in the
form of an Officers' Certificate, if to be given by an officer of the Company,
or an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
---------------------------------------
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Per son, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
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<PAGE> 17
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 104. Acts of Holders; Record Dates.
------------------------------
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a
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<PAGE> 18
signer acting in a capacity other than his individual capacity, such certificate
or affidavit shall also constitute sufficient proof of his authority. The fact
and date of the execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders of Securities of any series entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Holders of Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such series made by any Person
in respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
Section 105. Notices, Etc., to Trustee and Company.
--------------------------------------
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if
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<PAGE> 19
made, given, furnished or filed in writing to or with the Trustee at
its Corporate Trust Office, Attention: Corporate Trust, Trustee
Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
Section 106. Notice to Holders; Waiver.
--------------------------
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
----------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
-13-
<PAGE> 20
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 108. Effect of Headings and Table of Contents.
-----------------------------------------
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
-----------------------
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
--------------------
In case any provision in this Indenture or in the Securities
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.
Section 111. Benefits of Indenture.
----------------------
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 112. Governing Law.
--------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 113. Legal Holidays.
---------------
In any case where any Interest Payment Date, Redemption Date,
Stated Maturity or Maturity of any Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture or
of the Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next
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<PAGE> 21
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date, the Redemption Date, or at the Stated
Maturity or Maturity, PROVIDED that no interest shall accrue for the period from
and after such Interest Payment Date, Redemption Date, Stated Maturity or
Maturity, as the case may be.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
----------------
The Securities of each series shall be in substantially the
form set forth in this Article, or in such other form as shall be established by
or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by, or by
action taken pursuant to, a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
-15-
<PAGE> 22
Section 202. Form of Face of Security.
-------------------------
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL
REVENUE CODE AND THE REGULATIONS THEREUNDER.]
OWENS CORNING
............................................
No. . . . . . . . $. . . . . . .
Owens Corning, a corporation duly organized and existing under
the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ................................., or
registered assigns, the principal sum of ........................... Dollars on
........................... [IF THE SECURITY IS TO BEAR INTEREST PRIOR TO
MATURITY, INSERT --, and to pay interest thereon from ........... or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on ............. and ............ in each year,
commencing ........., at the rate of .......... % per annum, until the principal
hereof is paid or made available for payment [IF APPLICABLE, INSERT -- and (to
the extent that the payment of such interest shall be legally enforceable) at
the rate of .... % per annum on any overdue principal and premium and on any
overdue instalment of interest]. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the .......... or ........
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
-16-
<PAGE> 23
[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO MATURITY, INSERT --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of .... % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of...... % per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [IF
APPLICABLE, INSERT -- any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in............., in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts [IF APPLICABLE, INSERT
- -- ; PROVIDED, HOWEVER, that at the option of the Company payment of interest
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or by wire transfer to an
account maintained by the Person entitled thereto as specified in the Security
Register.]
[IF THE SECURITY IS PAYABLE IN A FOREIGN CURRENCY,
INSERT -- the appropriate provision.]
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
-17-
<PAGE> 24
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
Owens Corning
By.......................
By.......................
Attest:
...........................
Section 203. Form of Reverse of Security.
----------------------------
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of ________________ , 1997 (herein
called the "Indenture"), between the Company and .........., as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof[, limited in aggregate principal amount to
$..........].
[IF APPLICABLE, INSERT -- The Securities of this series are
subject to redemption upon not less than 30 nor more than 60 days' notice by
mail, [IF APPLICABLE, INSERT -- (1) on ........... in any year commencing with
the year...... and ending with the year .......... through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [on or after .......... 19..], as a whole
or in part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed [on or before
................, _%, and if redeemed] during the 12-month period beginning
........ of the years indicated,
-18-
<PAGE> 25
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
- ---- ----- ---- -----
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ..........% of the principal
amount, together in the case of any such redemption [IF APPLICABLE, INSERT --
(whether through operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date, but interest instalments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Regular Record Dates or Special Record Dates referred
to on the face hereof, all as provided in the Indenture.]
[IF APPLICABLE INSERT -- The Securities of this series are
subject to redemption upon not less than 30 nor more than 60 days' notice by
mail, (1) on .......... in any year commencing with the year .... and ending
with the year .... through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after ........], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning .......... of the years indicated,
<TABLE>
<CAPTION>
Redemption Price Redemption Price for
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
- ---- ------------------- -------------------
<S> <C> <C>
</TABLE>
-19-
<PAGE> 26
and thereafter at a Redemption Price equal to ........% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest instalments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates or Special Record Dates referred to on the face hereof, all
as provided in the Indenture.]
Notwithstanding the foregoing, the Company may not, prior to
.........., redeem any Securities of this series as contemplated by [Clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than .......% per annum.]
[The sinking fund for this series provides for the redemption
on ........ in each year beginning with the year ......... and ending with the
year of .......... [not less than $............("mandatory sinking fund") and
not more than] $.........aggregate principal amount of Securities of this
series. Securities of this series acquired or redeemed by the Company otherwise
than through [mandatory] sinking fund payments may be credited against
subsequent [mandatory] sinking fund payments otherwise required to be made [in
the inverse order in which they become due].]
[IF THE SECURITY IS SUBJECT TO REDEMPTION, INSERT -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY,
INSERT -- If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY,
INSERT -- If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series
may be declared due and payable in the manner and with the effect
-20-
<PAGE> 27
provided in the Indenture. Such amount shall be equal to INSERT FORMULA FOR
DETERMINING THE AMOUNT. Upon payment (i)of the amount of principal so declared
due and payable and (ii) of interest on any overdue principal and overdue
interest (in each case to the extent that the payment of such interest shall be
legally enforceable), all of the Company's obligations in respect of the payment
of the principal of and interest, if any, on the Securities of this series shall
terminate.]
[IF THE SECURITY IS AN INDEXED SECURITY, INSERT -
the appropriate provision.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registerable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of and any premium and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and
-21-
<PAGE> 28
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $....... and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to then in the Indenture.
Section 204. Additional Provisions Required in
Book-Entry Security.
---------------------------------
Any Book-Entry Security issued hereunder shall, in addition to
the provisions contained in Sections 202 and 203, bear a legend in substantially
the following form:
"This Security is a Book-Entry Security within the meaning of
the Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Security is exchangeable for
Securities registered in the name of a person other than the Depository or its
nominee only in the limited circumstances described in the Indenture and may not
be transferred except as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository."
-22-
<PAGE> 29
Section 205. Form of Trustee's Certificate of
Authentication.
---------------------------------
The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
--------------------------
As Trustee
----------
By...........................
Authorized Officer
------------------
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
-------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more
series. There shall be established in or pursuant to a Board Resolution and,
subject to Section 303, set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are
deemed
-23-
<PAGE> 30
never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of and premium,
if any, on the Securities of the series is payable or the method of
determination thereof;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method of calculating such rate or
rates of interest, the date or dates from which such interest shall
accrue or the method by which such date or dates shall be determined,
the Interest Payment Dates on which any such interest shall be payable
and the Regular Record Date for any interest payable on any Interest
Payment Date;
(6) the place or places where the principal of and any premium
and interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at
which, the currency or currencies (including currency units) in which
and the other terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
other terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any
Securities of the series shall be payable if other than the currency of
the United States of America and the manner of determining the
equivalent
-24-
<PAGE> 31
thereof in the currency of the United States of America for purposes of
the definition of "Outstanding" in Section 101;
(11) if the amount of payments of principal of or any premium
or interest on any Securities of the series may be determined with
reference to an index, formula or other method, the index, formula or
other method by which such amounts shall be determined;
(12) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units in which payment of
the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the other terms and conditions upon which such
election is to be made;
(13) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the method by which such portion shall be
determined;
(14) the application, if any, of Section 1302 or 1303 to the
Securities of any series;
(15) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Book-Entry Securities and,
in such case, the Depository with respect to such Book-Entry Security
or Securities and the circumstances under which any Book-Entry Security
may be registered for transfer or exchange, or authenticated and
delivered, in the name of a Person other than such Depository or its
nominee, if other than as set forth in Section 305; and
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(5)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to Section
303) set forth, or determined in the manner provided, in the Officers'
-25-
<PAGE> 32
Certificate referred to above or in any such indenture supplemental hereto. All
Securities of any one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the
Holders, for issuances of additional Securities of such series.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the series.
Section 302. Denominations.
--------------
The Securities of each series shall be issuable in registered
form without coupons in such denominations as shall be specified as contemplated
by Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and
Dating.
---------------------------------------
The Securities shall be executed on behalf of the Company by
any two of its Chairman of the Board, its Vice Chairman of the Board, its
President, any of its Vice Presidents, its Treasurer, or any of its Assistant
Treasurers; PROVIDED, HOWEVER, that only one of such two signatures shall be by
an Assistant Treasurer. Its corporate seal shall be reproduced thereon and
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company
-26-
<PAGE> 33
Order for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the time of authentication of each Security of such series if such
documents are
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<PAGE> 34
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
If the Company shall establish pursuant to Section 301 that
the Securities of a series are to be issued in whole or in part in the form of
one or more Book-Entry Securities, then the Company shall execute and the
Trustee shall, in accordance with this Section and the Company Order with
respect to such series, authenticate and deliver one or more Securities in such
form that (i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of the Outstanding Securities of such series to be
represented by such Book-Entry Security or Securities, (ii) shall be registered
in the name of the Depository for such Book-Entry Security or Securities or the
nominee of such Depository, (iii) shall be delivered by the Trustee to such
Depository or pursuant to such Depository's instruction and (iv) shall bear the
legend set forth in Section 204.
Unless otherwise established pursuant to Section 301, each
Depository designated pursuant to Section 301 for a Book-Entry Security must, at
the time of its designation and at all times while it serves as Depository, be a
clearing agency registered under the Securities Exchange Act of 1934 and any
other applicable statute or regulation. The Trustee shall have no responsibility
to determine if the Depository is so registered. Each Depository shall enter
into an agreement with the Trustee governing the respective duties and rights of
such Depository and the Trustee with regard to Book-Entry Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
309, for all purposes of this Indenture such Security shall be deemed never to
have been authenticated and delivered hereunder and shall never be entitled to
the benefits of this Indenture.
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<PAGE> 35
Section 304. Temporary Securities.
---------------------
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such securities may determine,
as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
Section 305. Registration, Registration of
Transfer and Exchange.
-----------------------------
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. The Trustee
is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the
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Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed, by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1103 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
Notwithstanding the foregoing, any Book-Entry Security shall
be exchangeable pursuant to this Section 305
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<PAGE> 37
for Securities registered in the names of Persons other than the Depository for
such Security or its nominee only if (i)such Depository notifies the Company
that it is unwilling or unable to continue as Depository for such Book Entry
Security or if at any time such Depository ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, (ii) the
company executes and delivers to the Trustee a Company Order that such Book
Entry Security shall be so exchangeable or (iii) there shall have occurred and
be continuing an Event of Default with respect to the Securities. Any Book-Entry
Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Securities registered in such names as such Depository shall
direct.
Notwithstanding any other provision in this Indenture, unless
and until it is exchanged in whole or in part for Securities that are not in the
form of a Book-Entry Security, a Book-Entry Security may not be transferred
except as a whole by the Depository with respect to such Book-Entry Security to
a nominee of such Depository or by a nominee of such Depository to such
Depository or another nominee of such Depository.
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities.
-------------------------------------
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
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<PAGE> 38
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights
Preserved.
-------------------------------------
Except as otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency maintained for such
purpose pursuant to Section 1002; PROVIDED, HOWEVER, that at the option of the
Company, interest on Securities of any series that bear interest may be paid (i)
by check mailed to the address of the Person entitled thereto as it shall appear
on the Security Register or (ii) by wire transfer to an account maintained by
the Person entitled thereto as specified in the Security Register.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the
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Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security
of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Securities of such series at his address as
it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon
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registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
Section 308. Persons Deemed Owners.
----------------------
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of and any
premium and (subject to Section 307) any interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 309. Cancellation.
-------------
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee. All Securities so delivered and any Securities surrendered
directly to the Trustee for any such purpose shall be promptly cancelled by the
Trustee and such cancellation shall be noted conspicuously on each such
Security. The Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly cancelled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled an provided in this Section, except as expressly
permitted by this Indenture. Unless the Company directs otherwise by a Company
Order, all cancelled Securities held by the Trustee may be destroyed and, if any
such cancelled Security is destroyed, the Trustee shall furnish to the Company a
certificate with respect to such destruction.
Section 310. Computation of Interest.
------------------------
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
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ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of
Indenture.
-----------------------------
This Indenture shall upon Company Request cease to be of
further effect with respect to Securities of any series (except as to any
surviving rights of registration of transfer, exchange or replacement of such
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to such Securities, when
(1) either
(A) all such Securities theretofore authenticated and
delivered (other than (i) such Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 306 and (ii) such Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount in the currency or currencies or currency unit or units in which such
Securities are payable sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for cancellation,
for principal and
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<PAGE> 42
any premium and interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or Redemption Date,
as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such Securities have been
complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 614 and, if
money shall have been deposited with the Trustee pursuant to subclause (B) of
Clause (1) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
---------------------------
Subject to provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee, but
such money need not be segregated from other funds except to the extent required
by law.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
------------------
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
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<PAGE> 43
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to Securities of
that series (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of
60 days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(5) if an event of default as defined in any mortgage,
indenture or instrument under which there may be issued, or by which
there may be secured or evidenced, any indebtedness for money borrowed
of the Company or any Restricted Subsidiary, whether such indebtedness
now exists or shall hereafter be created, shall happen and shall result
in more than $25,000,000 of such indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise
become due and payable, and such acceleration shall not be rescinded or
annulled, or such indebtedness shall not have been discharged, within a
period of 30 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of
Outstanding Securities a written notice specifying such event of
default and requiring the Company to cause such acceleration to be
rescinded or annulled or to cause such indebtedness to be discharged
and stating that such notice is a "Notice of Default" hereunder; or
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(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(7) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
Section 502. Acceleration of Maturity; Rescission
and Annulment.
-------------------------------------
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of
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<PAGE> 45
not less than 25% in principal amount of the Outstanding Securities of that
series may declare the principal amount (or, if any of the Securities of that
series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount of such Securities as may be specified in the
terms thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or, in the
case of Original Issue Discount Securities or Indexed Securities, such specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
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acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.
-------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
---------------------------------
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the
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<PAGE> 47
Trustee allowed in any such proceeding. In particular, the Trustee shall be
authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 505. Trustee May Enforce Claims Without
Possession of Securities.
----------------------------------
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
-------------------------------
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or any premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
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SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any
premium and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 507. Limitation on Suits.
--------------------
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee before or during such 60-day period by the
Holders of a majority in principal amount of the Outstanding Securities
of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any other
Holders or to enforce any right
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<PAGE> 49
under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all Holders.
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest.
----------------------------------------
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Section 307) any interest on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
-----------------------------------
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
-----------------------------
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of
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<PAGE> 50
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.
Section 512. Control by Holders.
-------------------
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series, PROVIDED that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
------------------------
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
----------------------
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and
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<PAGE> 51
may assess costs against any such party litigant, in the manner and to the
extent provided in the Trust Indenture Act; PROVIDED that neither this Section
nor the Trust Indenture Act shall be deemed to authorize any court to require
such an undertaking or to make such an assessment in any suit instituted by the
Company.
Section 515. Waiver of Stay or Extension Laws.
---------------------------------
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
------------------------------------
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
-------------------
If a default occurs hereunder with respect to Securities of
any series, the Trustee shall give the Holders of Securities of such series
notice of such default as and to the extent provided by the Trust Indenture Act;
PROVIDED, HOWEVER, that in the case of any default of the character
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<PAGE> 52
specified in Section 501(4) or (5) with respect to Securities of such series, no
such notice to Holders shall be given until at least 60 days and 30 days,
respectively, after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
Section 603. Certain Rights of Trustee.
--------------------------
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
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<PAGE> 53
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or
Issuance of Securities.
-------------------------------
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
--------------------
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
Subject to the provisions of Section 608, the Trustee may
become and act as trustee under other indentures under which other securities,
or certificates of interest or participation in other securities, of the Company
are outstanding in the same manner as if it were not Trustee.
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<PAGE> 54
Section 606. Money Held in Trust.
--------------------
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
-------------------------------
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
Section 608. Disqualification; Conflicting
Interests.
-----------------------------
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture. To
the extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under an Indenture, dated as
of May 15, 1991, among O.C. Funding B.V., as issuer, the Company, as guarantor,
and the Trustee, relating to the 10% Guaranteed
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<PAGE> 55
Debentures due 2001 of O.C. Funding B.V., and an Indenture, dated as of August
1, 1991, among Fiberglas Canada Inc., as issuer, the Company, as guarantor, and
the Trustee, relating to the 9.80% Guaranteed Debentures due 1998 of Fiberglas
Canada Inc.
Section 609. Corporate Trustee Required;
Eligibility.
---------------------------
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and an office in New
York, New York at which at any particular time its corporate trust business may
be administered. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of any Federal or state
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal;
Appointment of Successor.
-------------------------
(a) No resignation or removal of the Trustee and appointment
of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
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<PAGE> 56
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be remove or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 611. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to
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<PAGE> 57
the Securities of such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 611, any Holder who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series to all Holders of Securities of such series in the manner provided in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
Section 611. Acceptance of Appointment by
Successor.
----------------------------
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring
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Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 612. Merger, Conversion, Consolidation
or Succession to Business.
---------------------------------
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any
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corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims
Against Company.
---------------------------------
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the securities), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
------------------------------------
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issue and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the
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purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of
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such series may have endorsed thereon, in addition to or in lieu of the
Trustee's certificate of authentication, an alternative certificate of
authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[Name of Trustee},
As Trustee
----------
By........................
As Authenticating Agent
-----------------------
By........................
Authorized Officer
------------------
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee
Names and Addresses of Holders.
-------------------------------
The Company will furnish or cause to be furnished
to the Trustee
(a) semi-annually, not later than January 15 and July 15 in
each year, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders as of the preceding January 1
or July 1, as the case may be, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list in similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
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Section 702. Preservation of Information;
Communications to Holders.
----------------------------
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall be
as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of then shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
Section 703. Reports by Trustee.
-------------------
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
Section 704. Reports by Company.
-------------------
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; PROVIDED that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
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filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only
on Certain Terms.
-----------------------------------------------------
The Company shall not consolidate with or merge with or into
any other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(1) either the Company shall be the continuing corporation, or
the successor Person shall be a corporation, partnership or trust,
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and any premium and interest
on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed
or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, the Person formed by or resulting
or surviving therefrom or which shall have received the properties and
assets of the Company substantially as an entirety would have
outstanding any Debt secured by any Mortgage on any Principal Property,
or on any shares of stock or Debt of any Restricted Subsidiary, which
Debt could not at such time be incurred by such Person under Section
1008 without equally and ratably securing the Securities, the Company,
prior to such consolidation, merger, conveyance, transfer or lease,
will secure the Outstanding Securities, equally and ratably with (or
prior to) the Debt secured by such Mortgage.
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Section 802. Successor Substituted.
----------------------
Upon any consolidation of the Company with, or merger of the
Company with or into, any other Person or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
Section 803. Officers' Certificate and
Opinion of Counsel.
-------------------------
The Trustee, subject to the provisions of Sections 601 and
603, shall receive an Officers' Certificate and an opinion of Counsel as
conclusive evidence that any such consolidation, merger, conveyance, transfer or
lease, and any such assumption, complies with the provisions of this Article
before the Trustee shall execute any supplemental indenture required pursuant to
this Article.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without
Consent of Holders.
-------------------------------
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating
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that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default with respect to
all or any series of Securities; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, Registerable or not
Registerable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form or in the form of Book-Entry Securities; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, PROVIDED
that any such addition, change or elimination (i) shall neither (A)
apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such
provision nor (B) modify the rights of the Holder of any such Security
with respect to such provision or (ii) shall become effective only when
there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(9) if allowed, without penalty under applicable laws and
regulations, to permit payment in the United States (including any of
the States thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction of principal,
premium, if any, or interest, if any, on securities in bearer form or
coupons, if any; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which is mistaken or
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may be inconsistent with any other provision herein or to make any
other provisions with respect to matters or questions arising under
this Indenture, PROVIDED that such action pursuant to this clause (10),
other than with respect to a mistaken provision, shall not adversely
affect the interests of the Holders of Securities of any series in any
material respect.
Section 902. Supplemental Indentures with Consent
of Holders.
------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series adversely affected
by such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; PROVIDED,
HOWEVER, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1010, except to increase any
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percentage set forth in such Sections or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby;
PROVIDED, HOWEVER, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1010, or
the deletion of this proviso, in accordance with the requirements of
Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
-------------------------------------
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustees own rights, duties or immunities under this Indenture or
otherwise.
Section 904. Effect of Supplemental Indentures.
----------------------------------
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
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Section 905. Conformity with Trust Indenture Act.
------------------------------------
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to
Supplemental Indentures.
--------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
-------------------------------------------
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of and
any premium and interest on the Securities of that series in accordance with the
terms of such Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
--------------------------------
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to
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receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any such
other office or agency.
Section 1003. Money for Securities Payments to
Be Held in Trust.
--------------------------------
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, prior to each due date of the principal of or
any premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will (i) comply with
the provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
Section 1004. Statement by Officers as to Default.
------------------------------------
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
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Section 1005. Existence.
----------
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence.
Section 1006. Maintenance of Principal Properties.
------------------------------------
The Company will cause all Principal Properties used or useful
in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
PROVIDED, HOWEVER, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of, or selling, abandoning or
otherwise disposing of, any of such Principal Properties if such discontinuance
or disposal is, in the judgment of the Company, desirable in the conduct of its
business or the business of any Subsidiary.
Section 1007. Payment of Taxes and Other Claims.
----------------------------------
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; PROVIDED,
HOWEVER, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 1008. Limitation on Liens.
--------------------
The Company will not itself, and will not permit any
Subsidiary to, incur, issue, assume or guarantee any notes, bonds, debentures or
other similar evidences of indebtedness for money borrowed (notes, bonds,
debentures or other similar evidences of indebtedness for money borrowed being
hereinafter in this Article called "Debt"), secured by pledge of, or mortgage or
other lien on, any Principal Property owned by the Company or any
Restricted
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Subsidiary, or any shares of stock or Debt of any Restricted Subsidiary
(pledges, mortgages and other liens being hereinafter in this Article called
"Mortgage" or "Mortgages"), without effectively providing that the Outstanding
Securities (together with, if the Company shall so determine, any other Debt of
the Company or such Subsidiary then existing or thereafter created which is not
subordinate to the Securities) shall be secured equally and ratably with (or
prior to) such secured Debt, so long as such secured Debt shall be so secured,
unless, after giving effect thereto, the aggregate amount of all such secured
Debt plus all Attributable Debt of the Company and its Restricted Subsidiaries
in respect of sale and leaseback transactions (as defined in Section 1009) and
otherwise prohibited by this indenture would not exceed 10% of Consolidated Net
Tangible Assets; PROVIDED, HOWEVER, that this Section shall not apply to, and
there shall be excluded from secured Debt in any computation under this
Section, Debt secured by:
(1) Mortgages on property of, or on any shares of stock or
Debt of, any corporation existing at the time such corporation becomes
a Restricted Subsidiary;
(2) Mortgages in favor of the Company or any Restricted
Subsidiary;
(3) Mortgages in favor of the United States of America, or any
agency, department or other instrumentality thereof, to secure
progress, advance or other payments pursuant to any contract or
provision of any statute;
(4) Mortgages on property, shares of stock or Debt existing at
the time of acquisition thereof (including acquisition through merger
or consolidation) or to secure the payment of all or any part of the
purchase price or construction cost thereof or to secure any Debt
incurred prior to, at the time of, or within 120 days after, the
acquisition of such property or shares or Debt or the completion of any
such construction for the purpose of financing all or any part of the
purchase price or construction cost thereof; and
(5) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any
Mortgage referred to in the foregoing clauses (1) to (4), inclusive;
PROVIDED, that (i) such extension, renewal or replacement Mortgage
shall be limited to all or a part of the same property, shares of stock
or Debt that secured the Mortgage
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extended, renewed or replaced (plus improvements on such property) and
(ii) the Debt secured by such Mortgage at such time is not increased.
Section 1009. Limitation on Sales and Leasebacks.
-----------------------------------
The Company will not itself, and it will not permit any
Restricted Subsidiary to, enter into any arrangement with any bank, insurance
company or other lender or investor (not including the Company or any Restricted
Subsidiary) or to which any such lender or investor is a party, providing for
the leasing by the Company or any such Restricted Subsidiary for a period,
including renewals, in excess of three years of any Principal Property owned
by the Company or such Restricted Subsidiary which has been or is to be
sold or transferred, more than 120 days after the acquisition thereof or after
the completion of construction and commencement of full operation thereof, by
the Company or any such Restricted Subsidiary to such lender or investor or to
any person to whom funds have been or are to be advanced by such lender or
investor on the security of such Principal Property (herein referred to as a
"sale and leaseback transaction") unless either:
(1) the Company or such Restricted Subsidiary could create
Debt secured by a Mortgage pursuant to Section 1008 on the Principal
Property to be leased back in an amount equal to the Attributable Debt
with respect to such sale and leaseback transaction without equally and
ratably securing the Outstanding Securities, or
(2) the Company within 120 days after the sale or transfer
shall have been made by the Company or by any such Restricted
Subsidiary, applies an amount equal to the greater of (i) the net
proceeds of the sale of the Principal Property sold and leased back
pursuant to such arrangement or (ii) the fair market value of the
Principal Property so sold and leased back at the time of entering into
such arrangement (as determined by any two of the following: the
Chairman of the Board of the Company, its President, any Vice President
of the Company, its Treasurer and its Controller) to the retirement of
Funded Debt of the Company; PROVIDED, that the amount to be applied to
the retirement of Funded Debt of the Company shall be reduced by (a)
the principal amount of any Securities delivered within 120 days after
such sale to the Trustee for retirement and cancellation and (b) the
principal amount of Funded Debt, other than Securities, voluntarily
retired by the Company within 120 days after such sale. Notwith-
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standing the foregoing, no retirement referred to in this clause (2)
may be effected by payment at maturity or pursuant to any mandatory
prepayment provision.
Section 1010. Waiver of Certain Covenants.
----------------------------
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 1005 to 1009, inclusive,
with respect to the Securities of any series if before or after the time for
such compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
-------------------------
Securities of any series which are redeemable in whole or in
part before their Stated Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated by Section 301 for
securities of any series) in accordance with this Article.
Section 1102. Election to Redeem: Notice to Trustee.
--------------------------------------
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company of less than all the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall
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furnish the Trustee with an Officers' Certificate evidencing compliance with
such restriction.
Section 1103. Selection by Trustee of Securities
to Be Redeemed.
----------------------------------
If less than all the Securities of any series are to be
redeemed (unless all of the Securities of such series and of a specified tenor
are to be redeemed), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less than
all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such securities which has been
or is to be redeemed.
Section 1104. Notice of Redemption.
---------------------
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
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(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security, or portion thereof, to
be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
----------------------------
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in the currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof which are to be redeemed on
that date.
Section 1106. Securities Payable on Redemption Date.
--------------------------------------
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price,
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together with accrued interest to the Redemption Date; PROVIDED, HOWEVER, that,
unless otherwise specified as contemplated by Section 301, installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 1107. Securities Redeemed in Part.
----------------------------
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series and of
like tenor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
-------------------------
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
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reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments
with Securities.
-------------------------------------
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; PROVIDED that such securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
------------------------------------------
Not less than 45 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 1202 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's
Option to Effect Defeasance or
Covenant Defeasance.
-----------------------------------
If pursuant to Section 301 provision is made for either or
both of (a) defeasance of the Securities of a series under Section 1302 or (b)
covenant defeasance of the Securities of a series under Section 1303, then the
provisions of such Section or Sections, as the case may be, together with the
other provisions of this Article Thirteen, with such modifications thereto as
may be specified pursuant to Section 301 with respect to any Securities, shall
be applicable to the Securities of such series, and the Company may at its
option by Board Resolution, at any time, with respect to the Securities of such
series, elect to have either Section 1302 (if applicable) or Section 1303 (if
applicable) applied to the Outstanding Securities of such series upon compliance
with the conditions set forth below in this Article Thirteen.
Section 1302. Defeasance and Discharge.
-------------------------
Upon the Company's exercise of the above option applicable to
this Section, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series on and
after the date the conditions precedent set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series which shall thereafter
be deemed to be "Outstanding" only for the purposes of Section 1305 and the
other Sections of this Indenture referred to in clauses (A) and (B) of this
Section, and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of Outstanding Securities of
such series to receive, solely from the trust fund described in Section 1304 as
more fully set forth in such Section, payments of the principal of (and premium,
if any) and interest on such Securities when such payments are due, (B) the
Company's obligations with respect to such Securities under Sections 305, 306,
1002 and 1003 and such obligations as shall be
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<PAGE> 80
ancillary thereto, (C) the rights, powers, trusts, duties, immunities and other
provisions in respect of the Trustee hereunder and (D) this Article Thirteen.
Subject to compliance with this Article Thirteen, the Company may exercise its
option under this Section 1302 notwithstanding the prior exercise of its option
under Section 1303 with respect to the Securities of such series. Following a
defeasance, payment of such Securities may not be accelerated because of an
Event of Default.
Section 1303. Covenant Defeasance.
--------------------
Upon the Company's exercise of the above option applicable to
this Section, the Company shall be released from its obligations under Sections
801, 1008 and 1009 (and any covenant applicable to such Securities that are
determined pursuant to Section 301 to be subject to this provision) and the
occurrence of an event specified in Section 501(4) (with respect to any of
Sections 801, 1008 or 1009) (and any other Event of Default applicable to such
Securities that are determined pursuant to Section 301 to be subject to this
provision) shall not be deemed to be an Event of Default with respect to the
Outstanding Securities of such series on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and such
Securities shall thereafter be deemed not to be "Outstanding" for the purposes
of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with Sections 801, 1008 and 1009 (and
such other covenant), but shall continue to be deemed "Outstanding" for all
other purposes hereunder. For this purpose, such covenant defeasance means that,
with respect to the Outstanding Securities of such series, the Company may omit
to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or such other covenant whether directly
or indirectly by reason of any reference elsewhere herein to any such Section or
such other covenant or by reason of any reference in any such Section or such
other covenant to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
Section 1304. Conditions to Defeasance or
Covenant Defeasance.
---------------------------
The following shall be the conditions precedent to application
of either Section 1302 or Section 1303 to the Outstanding Securities of or
within such series:
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<PAGE> 81
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (A) money in an amount (in such currency,
currencies or currency units in which such Securities are then
specified as payable at Maturity), or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, money in an amount, or
(C) a combination thereof in an amount, sufficient, without
reinvestment, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of (and premium, if any) and interest on
the Outstanding Securities of such series on the Maturity of such
principal, premium, if any, or interest and (ii) any mandatory sinking
fund payments applicable to such Securities on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and such Securities. Before such a deposit the Company may
make arrangements satisfactory to the Trustee for the redemption of
Securities at a future date or dates in accordance with Article Eleven,
which shall be given effect in applying the foregoing. For this
purpose, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (y) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include
a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to
any such U.S. Government Obligation or a specific payment of principal
of or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt,
provided that (except as required by law) such
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<PAGE> 82
custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(2) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing (A) on
the date of such deposit or (B) insofar as subsections 501(6) and (7)
are concerned, at any time during the period ending on the 91st day
after the date of such deposit or, if longer, ending on the day
following the expiration of the longest preference period applicable to
the Company in respect of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(3) Such defeasance or covenant defeasance shall not (A) cause
the Trustee for the Securities of such series to have a conflicting
interest as defined in Section 608 or for purposes of the Trust
Indenture Act with respect to any securities of the Company or (B)
result in the trust arising from such deposit to Constitute, unless it
is qualified as, a regulated investment company under the Investment
Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other material agreement or instrument to which the Company is a
party or by which it is bound.
(5) In the case of an election under Section 1302, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
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<PAGE> 83
times as would have been the case if such defeasance had not occurred.
(6) In the case of an election under Section 1303, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred.
(7) Such defeasance or covenant defeasance shall be effected
in compliance with any additional terms, conditions or limitations
which may be imposed on the Company in connection therewith pursuant to
Section 301.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1302 or the covenant defeasance under Section 1303 (as
the case may be) have been complied with.
Section 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions.
--------------------------------------
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee -- collectively, for
purposes of this Section 1305, the "Trustee") pursuant to Section 1304 in
respect of the outstanding Securities of such series shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
this Indenture, to the payment, either directly or through any Paying Agent (but
not including the company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the money or U.S.
Government Obligations deposited
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<PAGE> 84
pursuant to Section 1304 or the principal and interest
received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 1304
which in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance.
Section 1306. Reinstatement.
--------------
If the Trustee or the Paying Agent is unable to apply any
money in accordance with Section 1302 or 1303 by reason of any order or judgment
or any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under the
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to this Article Thirteen until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1302 or 1303; PROVIDED, HOWEVER, that if the Company makes any payment of
principal of (and premium, if any) or interest on any such Security following
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the money
held by the Trustee or the Paying Agent.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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<PAGE> 85
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
OWENS CORNING
By.................................
Name:
Title: Senior Vice President
By.................................
Name:
Title: Vice President and Treasurer
Attest:
......................
[Name of Trustee]
By.................................
Name:
Title:
Attest:
......................
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<PAGE> 86
STATE OF OHIO )
) ss.:
COUNTY OF LUCAS )
On the _______day of May, 1997, before me personally came
________________________ and ______________________, to me known, who, being by
me duly sworn, did depose and say that they are _________________________, and
________________________, respectively, of Owens Corning, one of the
corporations described in and which executed the foregoing instrument; that they
know the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that they signed their names thereto by like
authority.
.....................
Notary Public
<PAGE> 87
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _________ day of May, 1997, before me personally came
________________________, to me known, who, being by me duly sworn, did depose
and say that he is _______________________ of _________________________, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
.....................
Notary Public
<PAGE> 1
Exhibit 4.8.1
CERTIFICATE OF TRUST
OF
OWENS CORNING CAPITAL II
This Certificate of Trust is being duly executed as of April 2, 1997
for the purpose of organizing a business trust pursuant to the Delaware
Business Trust Act, 12 DEL. C. Section 3801 ET SEQ. (the "Act").
The undersigned hereby certify as follows:
1. NAME. The name of the business trust is "Owens Corning Capital II"
(the "Trust").
2. DELAWARE TRUSTEE. The name and business address of the Delaware
resident trustee of the Trust meeting the requirements of Section 3807 of the
Act are as follows:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
3. EFFECTIVE. This Certificate of Trust shall be effective
immediately upon filing in the Office of the Secretary of State of the State of
Delaware.
4. COUNTERPARTS. This Certificate of Trust may be executed in one or
more counterparts.
<PAGE> 2
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have duly executed this Certificate of Trust as of the day and year
first above written.
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ Emmett R. Harmon
-------------------------------
Name: Emmett R. Harmon
Title: Vice President
/s/ C. Jackson Snyder, as Trustee
----------------------------------
C. Jackson Snyder, as Trustee
/s/ Christine Harper
----------------------------------
Christine Harper, as Trustee
<PAGE> 1
Exhibit 4.8.2
DECLARATION OF TRUST
--------------------
DECLARATION OF TRUST, dated as of April 2, 1997, between
Owens Corning, a Delaware corporation, as Sponsor, Wilmington Trust Company, a
Delaware banking corporation, as Delaware Trustee, and C. Jackson Snyder and
Christine Harper, as Regular Trustees (collectively with the Delaware Trustee,
the "Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"Owens Corning Capital II", in which name the Trustees, or the Sponsor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets
over to the Trustees the sum of $10. The Trustees hereby acknowledge receipt of
such amount in trust from the Sponsor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Sponsor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. Section 3801 et seq. (the "Business Trust Act"),
and that this document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust in the office of the Secretary of State of the State of Delaware in the
form attached hereto. The Trust is hereby established by the Sponsor and the
Trustees for the purposes of (i) issuing preferred securities ("Preferred
Securities") representing undivided beneficial interests in the assets of the
Trust in exchange for cash and investing the proceeds thereof in junior
subordinated debentures of the Sponsor, (ii) issuing and selling common
securities ("Common Securities" and, together with the Preferred Securities,
"Trust Securities") representing undivided beneficial interests in the assets of
the Trust to the Sponsor in exchange for cash and investing the proceeds thereof
in additional junior subordinated debentures of the Sponsor and (iii) engaging
in such other activities as are necessary, convenient or incidental thereto.
3. Concurrent with the first issuance of any Trust Securities
by the Trust, the Sponsor and the Trustees intend to enter into an amended and
restated Declaration of Trust, satisfactory to each such party and substantially
in the form to be included as an exhibit to the 1933 Act Registration Statement
referred to below at the time such registration statement becomes effective
under the Securities Act of 1933, as amended (the "Securities Act"), to provide
for the contemplated operation of the Trust created hereby and the issuance of
the Preferred Securities and the Common Securities referred to therein. Prior to
the execution and delivery of such amended and restated Declaration of Trust,
the Trustees shall not have any duty or obligation hereunder
- 1 -
<PAGE> 2
or with respect to the trust estate, except as otherwise required by applicable
law or as may be necessary to obtain, prior to such execution and delivery, any
licenses, consents or approvals required by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct
the Sponsor, as the sponsor of the Trust, (i) to prepare and file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) a Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to such Registration Statement, relating to the registration of the
Preferred Securities under the Securities Act and (b) a Registration Statement
on Form 8-A (the "1934 Act Registration Statement") (including any pre-effective
or post-effective amendments thereto) relating to the registration of the
Preferred Securities under Section 12(b) of the Securities Exchange Act of 1934,
as amended; (ii) to prepare and file with the New York Stock Exchange and the
Toronto Stock Exchange and execute, in each case on behalf of the Trust, a
listing application and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause the
Preferred Securities to be listed on the New York Stock Exchange and the Toronto
Stock Exchange; (iii) to prepare and file and execute, in each case on behalf of
the Trust, such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "blue sky" laws of such jurisdictions as the Sponsor, on
behalf of the Trust, may deem necessary or desirable; and (iv) to negotiate the
terms of, and execute on behalf of the Trust, an underwriting agreement among
the Trust, the Sponsor and any underwriter, dealer or agent relating to the
Preferred Securities, substantially in the form to be included as an exhibit to,
or incorporated by reference in, the 1933 Act Registration Statement. It is
hereby acknowledged and agreed that in connection with any execution, filing or
document referred to in clauses (i)-(iii) above, (A) any Regular Trustee (or his
attorneys-in-fact and agents or the Sponsor as permitted herein) is authorized
on behalf of the Trust to file and execute such document on behalf of the Trust
and (B) the Delaware Trustee shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by the rules
and regulations of the Commission or the New York Stock Exchange or the Toronto
Stock Exchange or state securities or blue sky laws, and in such case only to
the extent so required. In connection with all of the foregoing, the Sponsor and
each Regular Trustee, solely in its capacity as Trustee of the Trust, hereby
constitutes and appoints Christian L. Campbell, David W. Devonshire and Michael
I. Miller, and each of them, his, her or its, as the case may be, true and
lawful attorneys-in-fact, and agents, with full power of substitution and
resubstitution, for the Sponsor or such Trustee and in the Sponsor's or such
Trustee's name, place and stead, in any and all capacities, to sign and file (i)
the 1933 Act
- 2 -
<PAGE> 3
Registration Statement and the 1934 Act Registration Statement and any and all
amendments (including post-effective amendments) or supplements thereto, with
all exhibits thereto, and other documents in connection therewith, and (ii) a
registration statement and any and all amendments thereto filed pursuant to Rule
462(b) under the Securities Act with the Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Sponsor or such Trustee might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their or his or her substitute or substitutes, shall do or cause
to be done by virtue hereof.
5. This Declaration of Trust may be executed in one or
more counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor which may increase or
decrease the number of Trustees; provided, however, that the number of Trustees
shall in no event be less than three (3); and provided, further, however, that
to the extent required by the Business Trust Act, one Trustee shall either be a
natural person who is a resident of the State of Delaware or, if not a natural
person, an entity that has its principal place of business in the State of
Delaware and meets any other requirements imposed by applicable law. Subject to
the foregoing, the Sponsor is entitled to appoint or remove without cause any
Trustee at any time. Any Trustee may resign upon thirty days prior notice to the
Sponsor; provided, however, that the Delaware Trustee may resign immediately
upon notice to the Sponsor if the Delaware Trustee is required to join in any
filing or execute on behalf of the Trust any document pursuant to the provisions
of paragraph 4 hereof and, upon giving such notice, the Delaware Trustee shall
not be required to join in any such filing or execute on behalf of the Trust any
such document; provided, further, however, that no resignation of the Delaware
Trustee shall be effective until a successor Delaware Trustee has been appointed
and has accepted such appointment by instrument executed by such successor
Delaware Trustee and delivered to the Trust, the Sponsor and the resigning
Delaware Trustee.
7. To the fullest extent permitted by applicable law, the
Sponsor agrees to indemnify (i) the Delaware Trustee, (ii) any affiliate of the
Delaware Trustee, and (iii) any officers, directors, shareholders, members,
partners, employees, representatives, nominees, custodians or agents of the
Delaware Trustee (each of the persons or entities in (i) through (iii) being
referred to as an "Indemnified Person") for, and to hold each Indemnified Person
harmless against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the acceptance or
administration of the
- 3 -
<PAGE> 4
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this paragraph 7 shall survive the termination of this
Declaration.
8. The Trust may terminate without issuing any Trust
Securities at the election of the Sponsor.
9. This Declaration shall be governed by the laws of
the State of Delaware, without regard to conflict of laws
principles.
- 4 -
<PAGE> 5
IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year first above
written.
OWENS CORNING, as Sponsor
By: /s/ Michael I. Miller
--------------------------------
Name: Michael I. Miller
Title: VP and Treasurer
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ Emmett R. Harmon
-------------------------------
Name: Emmett R. Harmon
Title: Vice President
/s/ C. Jackson Snyder, as Trustee
-----------------------------------
C. Jackson Snyder, as Trustee
/s/ Christine Harper
----------------------------------
Christine Harper, as Trustee
- 5 -
<PAGE> 1
Exhibit 4.9.1
CERTIFICATE OF TRUST
OF
OWENS CORNING CAPITAL III
This Certificate of Trust is being duly executed as of April 2, 1997
for the purpose of organizing a business trust pursuant to the Delaware
Business Trust Act, 12 DEL. C. Section 3801 ET SEQ. (the "Act").
The undersigned hereby certify as follows:
1. NAME. The name of the business trust is "Owens Corning Capital III"
(the "Trust").
2. DELAWARE TRUSTEE. The name and business address of the Delaware
resident trustee of the Trust meeting the requirements of Section 3807 of the
Act are as follows:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
3. EFFECTIVE. This Certificate of Trust shall be effective
immediately upon filing in the Office of the Secretary of State of the State of
Delaware.
4. COUNTERPARTS. This Certificate of Trust may be executed in one or
more counterparts.
<PAGE> 2
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have duly executed this Certificate of Trust as of the day and year
first above written.
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ Emmett R. Harmon
-------------------------------
Name: Emmett R. Harmon
Title: Vice President
/s/ C. Jackson Snyder, as Trustee
----------------------------------
C. Jackson Snyder, as Trustee
/s/ Christine Harper
----------------------------------
Christine Harper, as Trustee
<PAGE> 1
Exhibit 4.9.2
DECLARATION OF TRUST
--------------------
DECLARATION OF TRUST, dated as of April 2, 1997, between
Owens Corning, a Delaware corporation, as Sponsor, Wilmington Trust Company, a
Delaware banking corporation, as Delaware Trustee, and C. Jackson Snyder and
Christine Harper, as Regular Trustees (collectively with the Delaware Trustee,
the "Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"Owens Corning Capital III", in which name the Trustees, or the Sponsor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets
over to the Trustees the sum of $10. The Trustees hereby acknowledge receipt of
such amount in trust from the Sponsor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Sponsor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. Section 3801 et seq. (the "Business Trust Act"),
and that this document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust in the office of the Secretary of State of the State of Delaware in the
form attached hereto. The Trust is hereby established by the Sponsor and the
Trustees for the purposes of (i) issuing preferred securities ("Preferred
Securities") representing undivided beneficial interests in the assets of the
Trust in exchange for cash and investing the proceeds thereof in junior
subordinated debentures of the Sponsor, (ii) issuing and selling common
securities ("Common Securities" and, together with the Preferred Securities,
"Trust Securities") representing undivided beneficial interests in the assets of
the Trust to the Sponsor in exchange for cash and investing the proceeds thereof
in additional junior subordinated debentures of the Sponsor and (iii) engaging
in such other activities as are necessary, convenient or incidental thereto.
3. Concurrent with the first issuance of any Trust Securities
by the Trust, the Sponsor and the Trustees intend to enter into an amended and
restated Declaration of Trust, satisfactory to each such party and substantially
in the form to be included as an exhibit to the 1933 Act Registration Statement
referred to below at the time such registration statement becomes effective
under the Securities Act of 1933, as amended (the "Securities Act"), to provide
for the contemplated operation of the Trust created hereby and the issuance of
the Preferred Securities and the Common Securities referred to therein. Prior to
the execution and delivery of such amended and restated Declaration of
- 1 -
<PAGE> 2
Trust, the Trustees shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain, prior to such execution and delivery, any
licenses, consents or approvals required by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct
the Sponsor, as the sponsor of the Trust, (i) to prepare and file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) a Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to such Registration Statement, relating to the registration of the
Preferred Securities under the Securities Act and (b) a Registration Statement
on Form 8-A (the "1934 Act Registration Statement") (including any pre-effective
or post-effective amendments thereto) relating to the registration of the
Preferred Securities under Section 12(b) of the Securities Exchange Act of 1934,
as amended; (ii) to prepare and file with the New York Stock Exchange and the
Toronto Stock Exchange and execute, in each case on behalf of the Trust, a
listing application and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause the
Preferred Securities to be listed on the New York Stock Exchange and the Toronto
Stock Exchange; (iii) to prepare and file and execute, in each case on behalf of
the Trust, such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "blue sky" laws of such jurisdictions as the Sponsor, on
behalf of the Trust, may deem necessary or desirable; and (iv) to negotiate the
terms of, and execute on behalf of the Trust, an underwriting agreement among
the Trust, the Sponsor and any underwriter, dealer or agent relating to the
Preferred Securities, substantially in the form to be included as an exhibit to,
or incorporated by reference in, the 1933 Act Registration Statement. It is
hereby acknowledged and agreed that in connection with any execution, filing or
document referred to in clauses (i)-(iii) above, (A) any Regular Trustee (or his
attorneys-in-fact and agents or the Sponsor as permitted herein) is authorized
on behalf of the Trust to file and execute such document on behalf of the Trust
and (B) the Delaware Trustee shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by the rules
and regulations of the Commission or the New York Stock Exchange or the Toronto
Stock Exchange or state securities or blue sky laws, and in such case only to
the extent so required. In connection with all of the foregoing, the Sponsor and
each Regular Trustee, solely in its capacity as Trustee of the Trust, hereby
constitutes and appoints Christian L. Campbell, David W. Devonshire and Michael
I. Miller, and each of them, his, her or its, as the case may be, true and
lawful attorneys-in-fact, and agents, with full power of substitution and
resubstitution, for the Sponsor or such Trustee and in the Sponsor's or such
Trustee's name, place and stead, in
- 2 -
<PAGE> 3
any and all capacities, to sign and file (i) the 1933 Act Registration Statement
and the 1934 Act Registration Statement and any and all amendments (including
post-effective amendments) or supplements thereto, with all exhibits thereto,
and other documents in connection therewith, and (ii) a registration statement
and any and all amendments thereto filed pursuant to Rule 462(b) under the
Securities Act with the Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as the Sponsor or such Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their or his or her substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Declaration of Trust may be executed in one or
more counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor which may increase or
decrease the number of Trustees; provided, however, that the number of Trustees
shall in no event be less than three (3); and provided, further, however, that
to the extent required by the Business Trust Act, one Trustee shall either be a
natural person who is a resident of the State of Delaware or, if not a natural
person, an entity that has its principal place of business in the State of
Delaware and meets any other requirements imposed by applicable law. Subject to
the foregoing, the Sponsor is entitled to appoint or remove without cause any
Trustee at any time. Any Trustee may resign upon thirty days prior notice to the
Sponsor; provided, however, that the Delaware Trustee may resign immediately
upon notice to the Sponsor if the Delaware Trustee is required to join in any
filing or execute on behalf of the Trust any document pursuant to the provisions
of paragraph 4 hereof and, upon giving such notice, the Delaware Trustee shall
not be required to join in any such filing or execute on behalf of the Trust any
such document; provided, further, however, that no resignation of the Delaware
Trustee shall be effective until a successor Delaware Trustee has been appointed
and has accepted such appointment by instrument executed by such successor
Delaware Trustee and delivered to the Trust, the Sponsor and the resigning
Delaware Trustee.
7. To the fullest extent permitted by applicable law, the
Sponsor agrees to indemnify (i) the Delaware Trustee, (ii) any affiliate of the
Delaware Trustee, and (iii) any officers, directors, shareholders, members,
partners, employees, representatives, nominees, custodians or agents of the
Delaware Trustee (each of the persons or entities in (i) through (iii) being
referred to as an "Indemnified Person") for, and to hold each Indemnified Person
harmless against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out
- 3 -
<PAGE> 4
of or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this paragraph 7 shall
survive the termination of this Declaration.
8. The Trust may terminate without issuing any Trust
Securities at the election of the Sponsor.
9. This Declaration shall be governed by the laws of
the State of Delaware, without regard to conflict of laws
principles.
- 4 -
<PAGE> 5
IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year first above
written.
OWENS CORNING, as Sponsor
By: /s/ Michael I. Miller
-----------------------------
Name: Michael I. Miller
Title: VP and Treasurer
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ Emmett R. Harmon
-----------------------------
Name: Emmett R. Harmon
Title: Vice President
/s/ C. Jackson Snyder, as Trustee
--------------------------------
C. Jackson Snyder, as Trustee
/s/ Christine Harper
--------------------------------
Christine Harper, as Trustee
- 5 -
<PAGE> 1
Exhibit 4.10.1
Draft of March 31, 1997
================================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
among
OWENS CORNING, as Depositor,
WILMINGTON TRUST COMPANY,
as Property Trustee,
WILMINGTON TRUST COMPANY,
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of ________ __, 1997
OWENS CORNING CAPITAL II
================================================================================
<PAGE> 2
OWENS CORNING CAPITAL II
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Trust Agreement
Act Section Section
- --------------- ------------
<S> <C>
310 (a)(1).................................................................... 8.7
(a)(2).................................................................... 8.7
(a)(3).................................................................... 8.9
(a)(4).................................................................... 2.7(a)(ii)(E)
(b)....................................................................... 8.8
311 (a)....................................................................... Not Applicable
(b)....................................................................... Not Applicable
312 (a)....................................................................... Not Applicable
(b)....................................................................... Not Applicable
(c)....................................................................... 5.7
313 (a)....................................................................... 8.14(a),(b)
(a)(4).................................................................... 8.14(b)
(b)....................................................................... Not Applicable
(c)....................................................................... 10.8
(d)....................................................................... 8.14(c)
314 (a)....................................................................... 8.15
(b)....................................................................... Not Applicable
(c)(1).................................................................... 8.16
(c)(2).................................................................... 8.16
(c)(3).................................................................... Not Applicable
(d)....................................................................... Not Applicable
(e)....................................................................... 1.1, 8.16
315 (a)....................................................................... 8.1(a), 8.3(a)
(b)....................................................................... 8.2, 10.8
(c)....................................................................... 8.1(a)
(d)....................................................................... 8.1, 8.3
(e)....................................................................... Not Applicable
316 (a)(1)(A)................................................................. Not Applicable
(a)(1)(B)................................................................. 5.13
(a)(2).................................................................... Not Applicable
(b)....................................................................... 5.14
(c)....................................................................... 6.7
317 (a)(1).................................................................... Not Applicable
(a)(2).................................................................... 8.13
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C>
(b)....................................................................... 5.9
318 (a)....................................................................... 10.10
</TABLE>
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of the Trust Agreement.
-ii-
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I.
DEFINED TERMS
SECTION 1.1. Definitions................................................................................1
ARTICLE II.
CONTINUATION OF THE TRUST
SECTION 2.1. Name......................................................................................10
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business...............................11
SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses..................................................................................11
SECTION 2.4. Issuance of the Preferred Securities......................................................11
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase
of Debentures.............................................................................11
SECTION 2.6. Declaration of Trust......................................................................12
SECTION 2.7. Authorization to Enter into Certain Transactions..........................................12
SECTION 2.8. Assets of Trust...........................................................................16
SECTION 2.9. Title to Trust Property...................................................................16
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.1. Payment Account...........................................................................16
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.............................................................................17
SECTION 4.2. Redemption................................................................................18
SECTION 4.3. [Repayment at Option of Holders...........................................................20
SECTION 4.4. Subordination of Common Securities........................................................21
SECTION 4.5. Payment Procedures........................................................................21
</TABLE>
i
<PAGE> 5
<TABLE>
<S> <C>
SECTION 4.6. Tax Returns and Reports...................................................................22
SECTION 4.7. Payment of Taxes, Duties, Etc. of the Trust...............................................22
SECTION 4.8. Payments under Indenture or Pursuant to Direct Actions....................................22
ARTICLE V.
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.........................................................................23
SECTION 5.2. The Trust Securities Certificates.........................................................23
SECTION 5.3. Execution and Delivery of Trust Securities Certificates...................................23
SECTION 5.4. Registration of Transfer and Exchange of Preferred
Securities Certificates...................................................................23
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates..............................................................................24
SECTION 5.6. Persons Deemed Securityholders............................................................25
SECTION 5.7. Access to List of Securityholders' Names and Addresses....................................25
SECTION 5.8. Maintenance of Office or Agency...........................................................25
SECTION 5.9. Appointment of Paying Agent...............................................................25
SECTION 5.10. Ownership of Common Securities by Depositor...............................................26
SECTION 5.11. Book-Entry Preferred Securities Certificates; Common
Securities Certificate....................................................................26
SECTION 5.12. Notices to Clearing Agency................................................................27
SECTION 5.13. Definitive Preferred Securities Certificates..............................................27
SECTION 5.14. Rights of Securityholders.................................................................28
ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights..............................................................30
SECTION 6.2. Notice of Meetings........................................................................31
SECTION 6.3. Meetings of Preferred Securityholders.....................................................31
SECTION 6.4. Voting Rights.............................................................................31
SECTION 6.5. Proxies, etc..............................................................................31
SECTION 6.6. Securityholder Action by Written Consent..................................................32
SECTION 6.7. Record Date for Voting and Other Purposes.................................................32
SECTION 6.8. Acts of Securityholders...................................................................32
SECTION 6.9. Inspection of Records.....................................................................33
</TABLE>
ii
<PAGE> 6
<TABLE>
<S> <C>
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property
Trustee and the Delaware..................................................................33
SECTION 7.2. Representations and Warranties of Depositor...............................................35
ARTICLE VIII.
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.......................................................35
SECTION 8.2. Certain Notices...........................................................................37
SECTION 8.3. Certain Rights of Property Trustee........................................................37
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities....................................39
SECTION 8.5. May Hold Securities.......................................................................39
SECTION 8.6. Compensation; Indemnity; Fees.............................................................39
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Trustees..............................40
SECTION 8.8. Conflicting Interests.....................................................................41
SECTION 8.9. Co-Trustees and Separate Trustee..........................................................41
SECTION 8.10. Resignation and Removal; Appointment of Successor.........................................42
SECTION 8.11. Acceptance of Appointment by Successor....................................................44
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business..................................................................................45
SECTION 8.13. Preferential Collection of Claims Against Depositor
or Trust..................................................................................45
SECTION 8.14. Reports by Property Trustee...............................................................46
SECTION 8.15. Reports to the Property Trustee...........................................................46
SECTION 8.16. Evidence of Compliance with Conditions Precedent..........................................46
SECTION 8.17. Number of Trustees........................................................................47
SECTION 8.18. Delegation of Power.......................................................................47
ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination Upon Expiration Date..........................................................47
SECTION 9.2. Early Termination.........................................................................48
SECTION 9.3. Termination...............................................................................48
SECTION 9.4. Liquidation...............................................................................48
</TABLE>
iii
<PAGE> 7
<TABLE>
<S> <C>
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements
of the Trust.............................................................................50
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders..................................................51
SECTION 10.2. Amendment................................................................................51
SECTION 10.3. Separability.............................................................................52
SECTION 10.4. Governing Law............................................................................52
SECTION 10.5. Payments Due on Non-Business Day.........................................................53
SECTION 10.6. Successors...............................................................................53
SECTION 10.7. Headings.................................................................................53
SECTION 10.8. Reports, Notices and Demands.............................................................53
SECTION 10.9. Agreement Not to Petition................................................................54
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act...................................54
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee and Indenture..........................55
</TABLE>
iv
<PAGE> 8
AMENDED AND RESTATED TRUST AGREEMENT, dated as of __________ __,
1997, among (i) Owens Corning, a Delaware corporation (including any successors
or assigns, the "Depositor"), (ii) Wilmington Trust Company, a banking
corporation duly organized and existing under the laws of the State of Delaware,
as property trustee, (in each such capacity, the "Property Trustee" and, in its
separate corporate capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) Wilmington Trust Company, a banking corporation duly organized
and existing under the laws of the State of Delaware, as Delaware trustee (the
"Delaware Trustee"), (iv) _____________, an individual, and ______________, an
individual, each of whose address is c/o Owens Corning, Owens Corning World
Headquarters, Toledo, Ohio 43659 (each an "Administrative Trustee" and
collectively the "Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees referred to collectively as the
"Trustees") and (v) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, the Property Trustee and the Delaware Trustee
have heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into that certain Trust Agreement,
dated as of _______ __, 1997 (the "Original Trust Agreement"), and by the
execution and filing by the Property Trustee and the Delaware Trustee with the
Secretary of State of the State of Delaware of the Certificate of Trust, filed
on ______ __, 1997, attached as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Underwriting Agreement, (iii) the acquisition by the Trust
from the Depositor of all of the right, title and interest in the Debentures and
(iv) the appointment of the Administrative Trustees;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
1
<PAGE> 9
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on Debentures having an
aggregate principal amount equal to such given Liquidation Amount for such
period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrative Trustee" means each of the Persons identified as an
"Administrative Trustee" in the preamble to this Trustee Agreement solely in
such Person's capacity as Administrative Trustee of the Trust formed and
continued hereunder and not in such Person's individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the
2
<PAGE> 10
continuance of any such decree or order unstayed and in effect for a period of
60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Book-Entry Preferred Securities Certificates" means a beneficial
interest in the Preferred Securities Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 5.11.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed, or (c) a day on which the
Property Trustee's Corporate Trust Office or the Corporate Trust Office of the
Debenture Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among the Trust,
the Depositor and The Depository Trust Company, as the initial Clearing Agency,
dated as of the Closing Date, relating to the Trust Securities Certificates,
substantially in the form attached as Exhibit B, as the same may be amended and
supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the First Time of Delivery, which date is also the
date of execution and delivery of this Trust Agreement.
["Collateral Agent" shall mean ___________________, as collateral agent
under the Pledge Agreement, dated the date hereof, among the Depositor, the
collateral agent, _____________, as purchase contract agent and the holders from
time to time of the Depositor's ___% Automatic Convertible Exchange Securities.]
3
<PAGE> 11
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $___________ and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means (i) when used with respect to the
Property Trustee, the principal office of the Property Trustee located in
Wilmington, Delaware, and (ii) when used with respect to the Debenture Trustee,
the principal office of the Debenture Trustee located in Wilmington, Delaware.
"Debenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the Indenture.
"Debenture Trustee" means Wilmington Trust Company, a banking
corporation duly organized under the laws of the State of Delaware, and any
successor thereto.
"Debentures" means the aggregate principal amount of the Depositor's
_____% Junior Subordinated Deferrable Interest Debentures, Series _, issued
pursuant to the Indenture.
"Definitive Preferred Securities Certificates" means either or both (as
the context requires) of (a) Preferred Securities Certificates issued as
Book-Entry Preferred Securities Certificates as provided in Section 5.11(a) and
(b) Preferred Securities Certificates issued in certificated, fully registered
form upon original issuance thereof or as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (Section) 3801, et seq., as it may be amended from
time to time.
"Delaware Trustee" means the Person identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
4
<PAGE> 12
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Direct Action" has the meaning specified in Section 5.14.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Property Trustee in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a period
of 30 days; or
(c) default by the Property Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in the performance or breach of which is dealt
with in clause (b) or (c) above) and continuation of such default or breach for
a period of 60 days after there has been given, by registered or certified mail,
to the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate liquidation preference of the Outstanding Preferred Securities a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor Property Trustee
within 60 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, and any
successor statute thereto, in each case as amended from time to time.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
5
<PAGE> 13
"First Time of Delivery" has the meaning specified in the Underwriting
Agreement.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Depositor and Wilmington Trust Company, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit of the holders
of the Preferred Securities, as amended from time to time.
"Indemnified Person" has the meaning specified in Section 8.6.
"Indenture" means the Junior Subordinated Indenture, dated as of
_________ __, 1997, between the Depositor and the Debenture Trustee, as trustee,
as amended or supplemented from time to time.
"Investment Company Event" means the occurrence of a change in law or
regulation or a change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law") to the effect that the Trust is or will be considered
an "investment company" that is required to be registered under the Investment
Company Act of 1940, as amended (the "Investment Company Act"), which Change in
1940 Act Law becomes effective on or after the date hereof.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of Debentures to be contemporaneously redeemed in
accordance with the Indenture, allocated to the Common Securities and to the
Preferred Securities based upon the relative Liquidation Amounts of such classes
of Trust Securities and the proceeds of which will be used to pay the Redemption
Price of such Trust Securities, and (b) with respect to a distribution of
Debentures to Holders of Trust Securities in connection with a dissolution or
liquidation of the Trust, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities of the Holder to whom such Debentures
are distributed.
"Liquidation Amount" means the stated amount of $___ per Trust
Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a termination and
liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as amended.
6
<PAGE> 14
"Officers' Certificate" means a certificate signed by the Chairman and
Chief Executive Officer, President or a Vice President, and by the Treasurer, an
Associate Treasurer, an Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the appropriate Trustee.
One of the officers signing an Officers' Certificate given pursuant to Section
8.16 shall be the principal executive, financial or accounting officer of the
Depositor. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, but not an
employee of any thereof, and who shall be reasonably acceptable to the Property
Trustee.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore cancelled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Trust Securities; provided that, if such
Trust Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange for or in lieu
of which other Preferred Securities have been executed and delivered pursuant to
Sections 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice,
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consent or waiver hereunder, Preferred Securities owned by the Depositor, any
Trustee or any Affiliate of the Depositor or any Trustee shall be disregarded
and deemed not to be Outstanding, except that (a) in determining whether any
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Preferred Securities
that such Trustee knows to be so owned shall be so disregarded and (b) the
foregoing shall not apply at any time when all of the outstanding Preferred
Securities are owned by the Depositor, one or more of the Trustees and/or any
such Affiliate. Preferred Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Administrative Trustees the pledgee's right so to act with
respect to such Preferred Securities and that the pledgee is not the Depositor
or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee,
through the Paying Agent, shall make payments to the Securityholders in
accordance with Sections 4.1 and 4.2.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $__ and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as Exhibit
E.
"Property Trustee" means the Person identified as the "Property
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Property Trustee of the Trust heretofore formed and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any successor property trustee appointed as herein provided.
["Purchase Contract Settlement Date" means ________________________,
____.]
["Put Option" shall have the meaning specified in Section 4.3.]
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["Put Option Exercise Date" shall have the meaning specified in Section
4.3.]
["Put Option Exercise Price" shall have the meaning specified in
Section 4.3.]
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated maturity
of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures, allocated on a pro rata basis (based on Liquidation Amounts) among
the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Second Time of Delivery" has the meaning specified in the Underwriting
Agreement.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Trust Securities is registered in the Securities Register; any such
Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act.
"Tax Event" means the receipt by the Trust of an Opinion of Counsel
experienced in such matters to the effect that, as a result of (i) any amendment
to, or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, (ii) any amendment to or
change in an interpretation or application of such laws or regulations by any
legislative body, court, governmental agency or regulatory authority or (iii)
any interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the generally accepted position on
the date the Preferred Securities are issued, which amendment or change is
effective or which interpretation or pronouncement or decision is announced on
or after the date of issuance of the Preferred Securities under this Trust
Agreement, there is more than an insubstantial risk that (x) the Trust is, or
will be within 90 days of the date of such Opinion of Counsel, subject to U.S.
Federal income tax with respect to income received or accrued on the Debentures,
(y) interest payable by the Depositor on the Debentures is not, or within 90
days of the date of such Opinion of Counsel, will not be, deductible by the
Depositor, in whole or in part, for U.S. Federal income tax purposes or (z) the
Trust is, or will be within 90 days after the date of such Opinion of Counsel,
subject to more than a de minimis amount of other taxes, duties, or other
governmental charges.
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"Time of Delivery" means, collectively, the First Time of Delivery and
the Second Time of Delivery.
"Trust" means the Delaware business trust created and continued hereby
and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including (i) all exhibits hereto and (ii) for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) the rights of the
Property Trustee under the Guarantee, (c) any cash on deposit in, or owing to,
the Payment Account and (d) all proceeds and rights in respect of the foregoing
and any other property and assets for the time being held or deemed to be held
by the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Pricing Agreement, dated as of
___________ __, 1997, among the Trust, the Depositor and the underwriters named
therein incorporating the Underwriting Agreement dated _________ __, 1997.
ARTICLE II.
CONTINUATION OF THE TRUST
SECTION 2.1. Name.
The Trust continued hereby shall be known as "Owens Corning Capital
II," as such name may be modified from time to time by the Administrative
Trustees following written notice to the Holders of Trust Securities and the
other Trustees, in which name the Trustees may conduct the business of
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the Trust, make and execute contracts and other instruments on behalf of the
Trust and sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in the State of Delaware is Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890, Attention:
Corporate Trust Administration, or such other address in the State of Delaware
as the Delaware Trustee may designate by written notice to the Securityholders
and the Depositor. The principal executive office of the Trust is c/o Owens
Corning, Owens Corning World Headquarters, Toledo, Ohio 43659.
SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses.
The Property Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
SECTION 2.4. Issuance of the Preferred Securities.
On ________ __, 1997 the Depositor, on behalf of the Trust and pursuant
to the Original Trust Agreement, executed and delivered the Underwriting
Agreement. Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Underwriters named in the
Underwriting Agreement Preferred Securities Certificates, registered in the name
of the nominee of the initial Clearing Agency, in an aggregate amount of
___________ Preferred Securities having an aggregate Liquidation Amount of
$___________, against receipt of such aggregate purchase price of such Preferred
Securities of $___________, which amount the Administrative Trustee shall
promptly deliver to the Property Trustee. If there is a Second Time of Delivery,
an Administrative Trustee, on behalf of the Trust, shall execute in accordance
with Section 5.2 and deliver to the Underwriters named in the Underwriting
Agreement Preferred Securities Certificates, registered in the name of the
nominee of the initial Clearing Agency, in an aggregate amount of up to
__________ Preferred Securities having an aggregate Liquidation Amount of up to
$___________, against receipt of the aggregate purchase price of such Preferred
Securities equal to the Liquidation Amount thereof, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription and
Purchase of Debentures.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
_______ Common Securities having an aggregate Liquidation Amount of
$____________ against payment by the Depositor of such amount, which amount such
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Administrative Trustee shall promptly deliver to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Debentures, registered in the
name of the Trust and having an aggregate principal amount equal to $_________,
and, in satisfaction of the purchase price for such Debentures, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of
$_________ (being the sum of the amounts delivered to the Property Trustee
pursuant to (i) the second sentence of Section 2.4 and (ii) the first sentence
of this Section 2.5). If there is a Second Time of Delivery, an Administrative
Trustee, on behalf of the Trust, shall execute in accordance with Section 5.2
and deliver to the Depositor Common Securities Certificates, registered in the
name of the Depositor, in an aggregate amount of up to _______ Common Securities
having an aggregate Liquidation Amount of up to $__________ against payment by
the Depositor of such amount, which amount such Administrative Trustee shall
promptly deliver to the Property Trustee. Contemporaneously therewith, an
Administrative Trustee, on behalf of the Trust, shall subscribe to and purchase
from the Depositor Debentures, registered in the name of the Trust and having an
aggregate principal amount of up to $___________, and, in satisfaction of the
purchase price for such Debentures, the Property Trustee, on behalf of the
Trust, shall deliver to the Depositor the amount received from one of the
Administrative Trustees pursuant to the last sentence of Section 2.4 (being the
sum of the amounts delivered to the Property Trustee pursuant to (i) the third
sentence of Section 2.4 and (ii) the third sentence of this Section 2.5).
SECTION 2.6. Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Trust Securities and use the proceeds from such sale to acquire the
Debentures, and (b) to engage in those activities necessary or incidental
thereto. The Depositor hereby appoints the Trustees as trustees of the Trust, to
have all the rights, powers and duties to the extent set forth herein, and the
Trustees hereby accept such appointment. The Property Trustee hereby declares
that it will hold the Trust Property in trust upon and subject to the conditions
set forth herein for the benefit of the Trust and the Securityholders. The
Administrative Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. The Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Delaware Business Trust Act.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance
with the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section, and in accordance with the following provisions
(i) and (ii), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
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(i) As among the Trustees, each Administrative Trustee shall
have the power and authority to act on behalf of the Trust with respect
to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Expense
Agreement and the Certificate Depository Agreement and such
other agreements as may be necessary or desirable in
connection with the purposes and function of the Trust;
(C) assisting in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and
under state securities or blue sky laws, and the qualification
of this Trust Agreement as a trust indenture under the Trust
Indenture Act;
(D) assisting in the listing of the Preferred
Securities upon such securities exchange or exchanges as shall
be determined by the Depositor and the registration of the
Preferred Securities under the Securities Exchange Act of
1934, as amended, and the preparation and filing of all
periodic and other reports and other documents pursuant to the
foregoing;
(E) the sending of notices (other than notices of
default) and other information regarding the Trust Securities
and the Debentures to the Securityholders in accordance with
this Trust Agreement;
(F) the appointment of a Paying Agent, authenticating
agent and Securities Registrar in accordance with this Trust
Agreement;
(G) execution of the Trust Securities in accordance
with this Trust Agreement;
(H) registering transfer of the Trust Securities in
accordance with this Trust Agreement;
(I) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the Trust
and the preparation, execution and filing of the certificate
of cancellation with the Secretary of State of the State of
Delaware;
(J) unless otherwise determined by the Depositor, the
Property Trustee or the Administrative Trustees, or as
otherwise required by the Delaware Business Trust Act or the
Trust Indenture Act, to execute on behalf of the Trust (either
acting alone or together with any or all of the Administrative
Trustees) any documents that the Administrative Trustees have
the power to execute pursuant to this Trust Agreement; and
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(K) the taking of any action incidental to the
foregoing as the Trustees may from time to time determine is
necessary or advisable to give effect to the terms of this
Trust Agreement for the benefit of the Securityholders
(without consideration of the effect of any such action on any
particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any
other payments made in respect of the Debentures in the
Payment Account;
(D) the distribution through the Paying Agent of
amounts owed to the Securityholders in respect of the Trust
Securities;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Debentures
to the Securityholders in accordance with this Trust
Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the Trust
and the preparation, execution and filing of the certificate
of cancellation with the Secretary of State of the State of
Delaware;
(I) after an Event of Default (other than under
paragraph (b), (c), (d) or (e) of the definition of such term
if such Event of Default is by or with respect to the Property
Trustee) the taking of any action incidental to the foregoing
as the Property Trustee may from time to time determine is
necessary or advisable to give effect to the terms of this
Trust Agreement and protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration
of the effect of any such action on any particular
Securityholder); and
(J) except as otherwise provided in this Section
2.7(a)(ii), the Property Trustee shall have none of the
duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.7(a)(i).
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(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of
any of the Trust Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action that would cause the
Trust to fail or cease to qualify as a "grantor trust" for U.S. Federal income
tax purposes, (iv) incur any indebtedness for borrowed money or issue any other
debt or (v) take or consent to any action that would result in the placement of
a Lien on any of the Trust Property. The Administrative Trustees shall defend
all claims and demands of all Persons at any time claiming any Lien on any of
the Trust Property adverse to the interest of the Trust or the Securityholders
in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on the appropriate form in relation to the Preferred
Securities, including any amendments thereto;
(ii) the determination of the States in which to take
appropriate action to qualify or register for sale all or part of the
Preferred Securities and the determination of any and all such acts,
other than actions which must be taken by or on behalf of the Trust,
and the advice to the Trustees of actions they must take on behalf of
the Trust, and the preparation for execution and filing of any
documents to be executed and filed by the Trust or on behalf of the
Trust, as the Depositor deems necessary or advisable in order to comply
with the applicable laws of any such States;
(iii) the preparation for filing by the Trust and execution on
behalf of the Trust of an application to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Preferred Securities;
(iv) the preparation for filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) or 12(g) of the Exchange Act, including
any amendments thereto;
(v) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the
Preferred Securities; and
(vi) the taking of any other actions necessary or desirable to
carry out any of the foregoing activities.
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(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the 1940 Act, or fail to be classified
as a grantor trust for U.S. Federal income tax purposes and so that the
Debentures will be treated as indebtedness of the Depositor for U.S. Federal
income tax purposes. In this connection, the Depositor and the Administrative
Trustees are authorized to take any action, not inconsistent with applicable
law, the Certificate of Trust or this Trust Agreement, that each of the
Depositor and any Administrative Trustee determines in its discretion to be
necessary or desirable for such purposes, as long as such action does not
adversely affect in any material respect the interests of the holders of the
Preferred Securities.
SECTION 2.8. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
SECTION 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Trust and the Securityholders in
accordance with this Trust Agreement.
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Securityholders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
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ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in
the Trust Property, and Distributions (including of Additional Amounts) will be
made on the Trust Securities at the rate and on the dates that payments of
interest (including of Additional Interest, as defined in the Indenture) are
made on the Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall accrue
from ________ __, 1997, and, except in the event (and to the extent)
that the Depositor exercises its right to defer the payment of interest
on the Debentures pursuant to the Indenture, shall be payable
[quarterly] [semi-annually] in arrears on
___________________________________of each year, commencing on
_________ __, ____. If any date on which a Distribution is otherwise
payable on the Trust Securities is not a Business Day, then the payment
of such Distribution shall be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next
succeeding calendar year, payment of such Distribution shall be made on
the immediately preceding Business Day, in each case with the same
force and effect as if made on such date (each date on which
distributions are payable in accordance with this Section 4.1(a), a
"Distribution Date").
(ii) Assuming payments of interest on the Debentures are made
when due (and before giving effect to Additional Amounts, if
applicable), Distributions on the Trust Securities shall be payable at
a rate of ____% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions for any period less than a full
period shall be computed on the basis of a 360-day year of twelve
30-day months. Distributions payable for each full Distribution period
will be computed by dividing the rate per annum by [four] [two]. The
amount of Distributions payable for any period shall include the
Additional Amounts, if any.
(iii) Distributions on the Trust Securities shall be made by
the Property Trustee from the Payment Account and shall be payable on
each Distribution Date only to the extent that the Trust has funds then
on hand and available in the Payment Account for the payment of such
Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities at the close of business on the
relevant record date, which shall be the __________ next preceding the relevant
Distribution Date; provided, however, that in the event that the Preferred
Securities do not remain in book-entry-only form, the relevant record date shall
be the ___________ next preceding the relevant Distribution Date.
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SECTION 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of the
Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price, or if the Redemption Price cannot
be calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to the Indenture
together with a statement that it is an estimate and that the actual
Redemption Price will be calculated on the third Business Day prior to
the Redemption Date (and if an estimate is provided, a further notice
shall be sent of the actual Redemption Price on the date that notice of
such actual Redemption Price is received pursuant to the Indenture);
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon will cease to accumulate on and after said
date, except as provided in Section 4.2(d) below; and
(vi) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent
that the Trust has funds then on hand and available in the Payment Account for
the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.2(c), the Property Trustee will, with
respect to Book-Entry Preferred Securities, irrevocably deposit with the
Clearing Agency for such Book-Entry Preferred Securities funds sufficient to pay
the applicable Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the Holders thereof.
With respect to Preferred Securities that are not Book-
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Entry Preferred Securities, the Property Trustee, subject to Section 4.2(c),
will irrevocably deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the Holders thereof
upon surrender of their Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited as required, then
upon the date of such deposit, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except the right of such
Securityholders to receive the Redemption Price and any Distribution payable on
or prior to the Redemption Date, but without interest, and such Securities will
cease to be outstanding. In the event that any date on which any Redemption
Price is payable is not a Business Day, then payment of the Redemption Price
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day falls in the next calendar year, such payment
will be made on the immediately preceding Business Day, in each case, with the
same force and effect as if made on such date. In the event that payment of the
Redemption Price in respect of any Trust Securities called for redemption is
improperly withheld or refused and not paid either by the Trust or by the
Depositor pursuant to the Guarantee, Distributions on such Trust Securities will
continue to accumulate, at the then applicable rate, from the Redemption Date
originally established by the Trust for such Trust Securities to the date such
Redemption Price is actually paid, in which case the actual payment date will be
the date fixed for redemption for purposes of calculating the Redemption Price.
(e) Subject to Section 4.4(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected on a pro rata basis (based upon Liquidation Amounts) not more
than 60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption, by such
method (including, without limitation, by lot) as the Property Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions of Preferred Securities, or with respect to Book-Entry Preferred
Securities, in accordance with the Clearing Agency's customary procedures. The
Property Trustee shall promptly notify the Security Registrar in writing of the
Preferred Securities selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation Amount thereof to be
redeemed. In the event that less than all of the Preferred Securities (other
than Book-Entry Preferred Securities) represented by a Preferred Securities
Certificate are to be redeemed, upon surrender of such Preferred Securities
Certificate the Administrative Trustee, or any one of them, shall execute and
deliver to the Paying Agent, for further delivery to the Holder of such
Preferred Securities without service charge, a new Preferred Securities
Certificate representing the unredeemed Preferred Securities evidenced by the
Preferred Securities Certificate so surrendered. For all purposes of this Trust
Agreement, unless the context otherwise requires, all provisions relating to the
redemption of Preferred Securities shall relate, in the case of any Preferred
Securities redeemed or to be redeemed only in part, to the portion of the
Liquidation Amount of Preferred Securities that has been or is to be redeemed.
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SECTION 4.3. [Repayment at Option of Holders.
(a) Each Holder of Trust Securities, including the Collateral Agent,
shall have the right to require the Trust to repay all or a portion of the Trust
Securities owned by or pledged with such Holder (the "Put Option") on the
Business Day immediately preceding the Purchase Contract Settlement Date (the
"Put Option Exercise Date") at a repayment price of $_____ per Trust Security
plus an amount equal to accrued Distributions thereon to the date of payment
[plus -- insert applicable repayment premium, if any] (the "Put Option Repayment
Price").
(b) The Trust will obtain funds to pay the Put Option Repayment Price
of Trust Securities being repaid under the Put Option by presenting to the
Depositor, pursuant to the Trust's right under the Debentures to require the
Depositor to repay all or a portion of the Debentures on the Put Option Exercise
Date, Debentures in an aggregate principal amount equal to the aggregate stated
Liquidation Amount of such Trust Securities for repayment on the Put Option
Exercise Date at the Debenture Repayment Price (as defined in the Debentures).
(c) In order for the Trust Securities to be repaid on the Put Option
Exercise Date, the Trust must receive at the Corporate Trust Office of the
Property Trustee, either (i) not less than 10 or more than 30 days prior to the
Put Option Exercise Date, the Trust Securities to be repaid with the form
entitled "Option to Elect Repayment" on the reverse thereof or otherwise
accompanying such Trust Security duly completed. Any such notice received by the
Trust shall be irrevocable. All questions as to the validity, eligibility
(including time of receipt) and acceptance of the Trust Securities for repayment
shall be determined by the Trust, whose determination shall be final and
binding. Notwithstanding the foregoing, so long as the Holder is the Collateral
Agent, such notice to elect repayment may be delivered to the Trust at any time
prior to _______ a.m., New York City time, on the Put Option Exercise Date and
in the form and manner as may be designated by the Collateral Agent.
(d) Payment of the Put Option Repayment Price to Holders of Trust
Securities shall be made at the Corporate Trust Office of the Property Trustee,
provided that the Depositor has paid the Property Trustee a sufficient amount of
cash in connection with the related repayment of the Debenture. Notwithstanding
the foregoing, so long as the Holder of any Trust Securities is the Collateral
Agent, the payment of the Put Option Repayment Price in respect of such Trust
Securities held by the Collateral Agent shall be made no later than 1:00 p.m.,
New York City time, on the Put Option Exercise Date by check or wire transfer in
immediately available funds at such place and to such account as may be
designated by the Collateral Agent. If the Property Trustee holds immediately
available funds sufficient to pay the Put Option Repayment Price of such Trust
Securities, then, immediately prior to the close of business on the Put Option
Exercise Date, such Trust Securities will cease to be outstanding and
distributions thereon will cease to accrue, whether or not Trust Securities are
delivered to the Property Trustee, and all other rights of the Holder in respect
of the Trust Securities, including the Holder's right to require the Trust to
repay such Trust Securities, shall terminate and lapse (other than the right to
receive the Put Option Repayment Price but without interest on such Put Option
Repayment Price). Neither the Regular Trustees nor the Trust shall be required
to register or cause to be registered the transfer of any Trust Securities for
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which repayment has been elected. If payment of the Put Option Repayment Price
in respect of Trust Securities is (i) improperly withheld or refused and not
paid either by the Property Trustee or by the Depositor as guarantor pursuant to
the Guarantee, or (ii) not paid by the Property Trustee as the result of an
Event of Default with respect to the Debentures presented for repayment as
described in paragraph 4.3(b), Distributions on such Trust Securities will
continue to accrue, from the original Put Option Exercise Date to the actual
date of payment, in which case the actual payment date will be considered the
Put Option Exercise Date for purposes of calculating the Put Option Repayment
Price.]
SECTION 4.4. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made, subject to Section 4.2(e), pro rata among the Common
Securities and the Preferred Securities based on the Liquidation Amount of such
Common Securities and Capital Securities; provided, however, that if on any
Distribution Date or Redemption Date any Event of Default resulting from a
Debenture Event of Default shall have occurred and be continuing, no payment of
any Distribution (including Additional Amounts, if applicable) on, or Redemption
Price of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all Outstanding Preferred
Securities for all Distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price the full amount of such Redemption
Price on all Outstanding Preferred Securities, shall have been made or provided
for, and all funds available to the Property Trustee shall first be applied to
the payment in full in cash of all Distributions (including Additional Amounts,
if applicable) on, or the Redemption Price of, Preferred Securities then due and
payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holder of Common Securities will be
deemed to have waived any right to act with respect to any such Event of Default
under this Trust Agreement until the effect of all such Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Event of Default under this Trust Agreement with
respect to the Preferred Securities has been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the Holders of
the Preferred Securities and not the Holder of the Common Securities, and only
the Holders of the Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
SECTION 4.5. Payment Procedures.
Payments of Distributions (including Additional Amounts, if applicable)
in respect of the Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Securities Register or, if the Preferred Securities are held by a Clearing
Agency, such Distributions shall be made to the Clearing Agency in immediately
available funds, which shall credit the relevant Persons' accounts at such
Clearing Agency on the applicable
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Distribution Dates. Payments in respect of the Common Securities shall be made
in such manner as shall be mutually agreed between the Property Trustee and the
Holder of the Common Securities.
SECTION 4.6. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at
the Depositor's expense, and file all U.S. Federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared and filed) the appropriate Internal Revenue Service
Form required to be filed in respect of the Trust in each taxable year of the
Trust and (b) prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the appropriate Internal Revenue Service form required to be
provided on such form. The Administrative Trustees shall provide the Depositor
and the Property Trustee with a copy of all such returns and reports promptly
after such filing or furnishing. The Trustees shall comply with United States
Federal withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
On or before December 15 of each year during which any Capital
Securities are Outstanding, the Administrative Trustees shall furnish to the
Property Trustee such information as may be reasonably requested by the Property
Trustee in order that the Property Trustee may prepare the information which it
is required to report for such year on Internal Revenue Service Forms 1096 and
1099 pursuant to Section 6049 of the Code. Such information shall include the
amount of original issue discount includable in income for each outstanding
Capital Security during such year.
SECTION 4.7. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Debentures of Additional Sums, the Property
Trustee shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Trust by the
United States or any other taxing authority.
SECTION 4.8. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder or an
Owner with respect to the Holder's Preferred Securities has directly received
pursuant to Section 5.8 of the Indenture or Section 5.15 of this Trust
Agreement.
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ARTICLE V.
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the formation of the Trust and the contribution by the Depositor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
SECTION 5.2. The Trust Securities Certificates.
The Preferred Securities Certificates shall be issued in minimum
denominations of $25 Liquidation Amount and integral multiples of $25 in excess
thereof, and the Common Securities Certificates shall be issued in denominations
of $25 Liquidation Amount and integral multiples thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual signature of at
least one Administrative Trustee. Trust Securities Certificates bearing the
manual signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.4.
SECTION 5.3. Execution and Delivery of Trust Securities Certificates.
At each Time of Delivery, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to or
upon the written order of the Depositor, signed by its chairman of the board,
its president, any executive vice president or any vice president, treasurer or
assistant treasurer or controller without further corporate action by the
Depositor, in authorized denominations.
SECTION 5.4. Registration of Transfer and Exchange of Preferred
Securities Certificates.
The Depositor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.8, a register or registers for the purpose of
registering Trust Securities Certificates and transfers and exchanges of
Preferred Securities Certificates (the "Securities Register") in which, the
registrar designated by the Depositor (the "Securities Registrar"), subject to
such reasonable regulations as it may prescribe, shall provide for the
registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
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Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Bank shall be the initial
Securities Registrar.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.8, the
Administrative Trustees or any one of them shall execute and deliver, in the
name of the designated transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of execution by such Administrative Trustee or
Trustees.
The Securities Registrar shall not be required to register the transfer
of any Preferred Securities that have been called for redemption. At the option
of a Holder, Preferred Securities Certificates may be exchanged for other
Preferred Securities Certificates in authorized denominations of the same class
and of a like aggregate Liquidation Amount upon surrender of the Preferred
Securities Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.8.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrative Trustee and the
Securities Registrar duly executed by the Holder or his attorney duly authorized
in writing. Each Preferred Securities Certificate surrendered for registration
of transfer or exchange shall be cancelled and subsequently disposed of by an
Administrative Trustee in accordance with such Person's customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an undivided beneficial interest in the assets of the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
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SECTION 5.6. Persons Deemed Securityholders.
The Trustees or the Securities Registrar shall treat the Person in
whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the
purpose of receiving Distributions and for all other purposes whatsoever, and
neither the Trustees nor the Securities Registrar shall be bound by any notice
to the contrary.
SECTION 5.7. Access to List of Securityholders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold
the Depositor, the Property Trustee or the Administrative Trustees accountable
by reason of the disclosure of its name and address, regardless of the source
from which such information was derived.
SECTION 5.8. Maintenance of Office or Agency.
The Administrative Trustees shall maintain an office or offices or
agency or agencies where Preferred Securities Certificates may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Trustees in respect of the Trust Securities Certificates may be served.
The Administrative Trustees initially designate Owens Corning, Owens Corning
World Headquarters, Toledo, Ohio 43659, Attn: _____________, as its principal
corporate trust office for such purposes. The Administrative Trustees shall give
prompt written notice to the Depositor and to the Securityholders of any change
in the location of the Securities Register or any such office or agency.
SECTION 5.9. Appointment of Paying Agent.
The Paying Agent shall make distributions to Securityholders from the
Payment Account and shall report the amounts of such distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying Agent
shall initially be the Bank, and any co-paying agent chosen by the Bank, and
acceptable to the Administrative Trustees and the Depositor. Any Person acting
as Paying Agent shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Administrative Trustees, the Property Trustee and the
Depositor. In the event that the Bank shall no longer be the Paying Agent or a
successor Paying Agent shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor that is acceptable to the
Property Trustee and the Depositor to act as Paying Agent (which shall be a bank
or trust company). The Administrative Trustees shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Administrative Trustees to
execute and deliver to the Trustees an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Trustees that as Paying
Agent, such successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Securityholders in trust for the
benefit of the Securityholders entitled thereto
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until such sums shall be paid to such Securityholders. The Paying Agent shall
return all unclaimed funds to the Property Trustee and upon removal of a Paying
Agent such Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply
to the Bank also in its role as Paying Agent, for so long as the Bank shall act
as Paying Agent and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
SECTION 5.10. Ownership of Common Securities by Depositor.
At each Time of Delivery, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities. To the fullest extent
permitted by law, other than a transfer in connection with a consolidation or
merger of the Depositor into another corporation, or any conveyance, transfer or
lease by the Depositor of its properties and assets substantially as an entirety
to any Person, pursuant to Section 8.1 of the Indenture, any attempted transfer
of the Common Securities shall be void. The Administrative Trustees shall cause
each Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
SECTION 5.11. Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities Certificates, upon original issuance, may
be issued in the form of Definitive Preferred Securities Certificates in fully
registered form or in the form of a typewritten Preferred Securities Certificate
or Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Book-Entry Preferred Securities Certificate or
Certificates shall initially be registered on the Securities Register in the
name of Cede & Co., the nominee of the initial Clearing Agency, and no Owner
will receive a Definitive Preferred Securities Certificate representing such
Owner's interest in such Preferred Securities, except as provided in Section
5.13. Unless and until Definitive Preferred Securities Certificates have been
issued to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full
force and effect;
(ii) the Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement relating to the Book-Entry Preferred Securities
Certificates (including the payment of the Liquidation Amount of and
Distributions on the Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates and the giving of instructions or
directions to Owners of Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates) as the sole Holder of Preferred
Securities evidenced by Book-Entry Preferred Securities Certificates
and shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11
conflict with any other provisions of this Trust Agreement, the
provisions of this Section 5.11 shall control; and
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(iv) the rights of the Owners of the Book-Entry Preferred
Securities Certificates shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements
between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless
and until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.13, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit payments on the Preferred Securities to such Clearing
Agency Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Owners is
required under this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners, the Trustees shall
give all such notices and communications specified herein to be given to Owners
to the Clearing Agency, and shall have no obligations to the Owners.
SECTION 5.13. Definitive Preferred Securities Certificates.
If (a) the Depositor advises the Trustees in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Preferred Securities Certificates, and the Depositor is
unable to locate a qualified successor, (b) the Depositor at its option advises
the Trustees in writing that it elects to terminate the book-entry system
through the Clearing Agency or (c) after the occurrence of a Debenture Event of
Default, Owners of Preferred Securities Certificates representing beneficial
interests aggregating at least a majority of the Liquidation Amount advise the
Administrative Trustees in writing that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interest of the Owners of
Preferred Securities Certificates, then the Administrative Trustee shall notify
the Clearing Agency and the Clearing Agency shall notify all Owners of Preferred
Securities Certificates and the other Trustees of the occurrence of any such
event and of the availability of the Definitive Preferred Securities
Certificates to Owners of such class or classes, as applicable, requesting the
same. Upon surrender to the Administrative Trustees of the typewritten Preferred
Securities Certificate or Certificates representing the Book-Entry Preferred
Securities Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees, or any one of them, shall execute the
Definitive Preferred Securities Certificates in accordance with the instructions
of the Clearing Agency. Neither the Securities Registrar nor the Trustees shall
be liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Preferred Securities Certificates, the Trustees shall
recognize the Holders of the Definitive Preferred Securities Certificates as
Securityholders. The Definitive Preferred Securities Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees or any one of them.
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SECTION 5.14. Rights of Securityholders.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights and when issued and delivered to
Securityholders against payment of the purchase price therefor will be fully
paid and nonassessable by the Trust. The Holders of the Trust Securities, in
their capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if,
upon a Debenture Event of Default, the Debenture Trustee fails or the holders of
not less than 25% in principal amount of the outstanding Debentures fail to
declare the principal of all of the Debentures to be immediately due and
payable, the Holders of at least 25% in Liquidation Amount of the Preferred
Securities then Outstanding shall have such right by a notice in writing to the
Depositor and the Debenture Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the Debentures shall
become immediately due and payable, provided that the payment of principal and
interest on such Debentures shall remain subordinated to the extent provided in
the Indenture.
At any time after such a declaration of acceleration with respect to
the Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as in the Indenture
provided, the Holders of a majority (based on Liquidation Amounts) of the
Outstanding Preferred Securities, by written notice to the Property Trustee, the
Depositor and the Debenture Trustee, may rescind and annul such declaration and
its consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(A) all overdue installments of interest (including
any Additional Interest (as defined in the Indenture)) on all
of the Debentures,
(B) the principal of (and premium, if any, on) any
Debentures which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Debentures, and
(C) all sums paid or advanced by the Debenture
Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Debenture Trustee
and the Property Trustee, their agents and counsel; and
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(ii) all Events of Default with respect to the Debentures,
other than the non-payment of the principal of the Debentures which has
become due solely by such acceleration, have been cured or waived as
provided in Section 5.13 of the Indenture.
The Holders of a majority (based on Liquidation Amounts) of the
Outstanding Preferred Securities may, on behalf of the Holders of all the
Preferred Securities, waive any past default under the Indenture, except a
default in the payment of principal or interest (unless such default has been
cured and a sum sufficient to pay all matured installments of interest and
principal due otherwise than by acceleration has been deposited with the
Debenture Trustee) or a default in respect of a covenant or provision which
under the Indenture cannot be modified or amended without the consent of the
holder of each outstanding Debenture. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, by Holders of the
Preferred Securities all or part of which is represented by Book-Entry Preferred
Securities Certificates, a record date shall be established for determining
Holders of Outstanding Preferred Securities entitled to join in such notice,
which record date shall be at the close of business on the day the Property
Trustee receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.14(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Debenture Event of Default specified in Section 5.1(1)
or 5.1(2) of the Indenture, any Holder of Preferred Securities shall have the
right to institute a proceeding directly against the Depositor, pursuant to
Section 5.8 of the Indenture, for enforcement of payment to such Holder of the
principal amount of or interest on Debentures having a principal amount equal to
the Liquidation Amount of the Preferred Securities of such Holder (a "Direct
Action"). Except as set forth in Section 5.14(b) and this Section 5.14(c), the
Holders of Preferred Securities shall have no right to exercise directly any
right or remedy available to the holders of, or in respect of, the Debentures.
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ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.
(a) Except as provided in this Section, in Sections 5.14, 8.10 and 10.2
and in the Indenture and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on the Debenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable under Section 5.13 of
the Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Debentures shall be due and payable or (iv) consent to
any amendment, modification or termination of the Indenture or the Debentures,
where such consent shall be required, without, in each case, obtaining the prior
approval of the Holders of at least a majority (based on Liquidation Amounts) of
all Outstanding Preferred Securities, provided, however, that where a consent
under the Indenture would require the consent of each Holder of Debentures
affected thereby, no such consent shall be given by the Property Trustee without
the prior written consent of each Holder of Preferred Securities. The Trustees
shall not revoke any action previously authorized or approved by a vote of the
Holders of Preferred Securities, except by a subsequent vote of the Holders of
Preferred Securities. The Property Trustee shall notify all Holders of the
Preferred Securities of any notice of default received from the Debenture
Trustee with respect to the Debentures. In addition to obtaining the foregoing
approvals of the Holders of the Preferred Securities, prior to taking any of the
foregoing actions, the Trustees shall, at the expense of the Depositor, obtain
an Opinion of Counsel experienced in such matters to the effect that such action
shall not cause the Trust to fail to be classified as a grantor trust for U.S.
Federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a majority (based on
Liquidation Amounts) of the Outstanding Preferred Securities. Notwithstanding
any other provision of this Trust Agreement, no amendment to this Trust
Agreement may be made if, as a result of such amendment, it would cause the
Trust to fail to be classified as a grantor trust for U.S. Federal income tax
purposes.
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SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Preferred Securityholders, stating the
time, place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.8 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
SECTION 6.3. Meetings of Preferred Securityholders.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Preferred
Securityholders to vote on any matter upon the written request of the Preferred
Securityholders of record of 25% of the Preferred Securities (based upon
Liquidation Amounts) and the Administrative Trustees or the Property Trustee
may, at any time in their discretion, call a meeting of Preferred
Securityholders to vote on any matters as to which Preferred Securityholders are
entitled to vote.
Preferred Securityholders of record of 50% of the Outstanding Preferred
Securities (based upon Liquidation Amounts), present in person or by proxy,
shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding more
than a majority of the Preferred Securities (based upon Liquidation Amounts)
held by the Preferred Securityholders of record present, either in person or by
proxy, at such meeting shall constitute the action of the Preferred
Securityholders, unless this Trust Agreement requires a greater number of
affirmative votes.
SECTION 6.4. Voting Rights.
Securityholders shall be entitled to one vote for each $_____ of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
SECTION 6.5. Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Administrative Trustees, or
with such other officer or agent of the Trust as the Administrative Trustees may
direct, for verification prior to the time at which such vote shall be taken.
Pursuant to a resolution of the Property Trustee, proxies may be solicited in
the name of the Property Trustee or one or more officers of the Property
Trustee. Only Securityholders of record shall be entitled to vote. When Trust
Securities are held jointly by several persons, any one of them may vote at any
meeting in person or by proxy in respect of such Trust Securities, but if more
than
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one of them shall be present at such meeting in person or by proxy, and such
joint owners or their proxies so present disagree as to any vote to be cast,
such vote shall not be received in respect of such Trust Securities. A proxy
purporting to be executed by or on behalf of a Securityholder shall be deemed
valid unless challenged at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger. No proxy shall be valid more than three
years after its date of execution.
SECTION 6.6. Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting if Securityholders holding more than a majority of all
Outstanding Trust Securities (based upon Liquidation Amounts) entitled to vote
in respect of such action (or such larger proportion thereof as shall be
required by any express provision of this Trust Agreement) shall consent to the
action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time fix a date, not
more than 90 days prior to the date of any meeting of Securityholders or the
payment of a distribution or other action, as the case may be, as a record date
for the determination of the identity of the Securityholders of record for such
purposes.
SECTION 6.8. Acts of Securityholders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Trust Agreement to be given, made
or taken by Securityholders or Owners may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Securityholders
or Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders or
Owners signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.1) conclusive in favor
of the Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument
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or writing, or the authority of the Person executing the same, may also be
proved in any other manner which any Trustee receiving the same deems
sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such liquidation amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
A Securityholder may institute a legal proceeding directly against the
Depositor under the Guarantee to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Guarantee Trustee (as defined
in the Guarantee), the Trust or any person or entity.
SECTION 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection by Securityholders
during normal business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf
of and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
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(a) the Property Trustee is a banking corporation, duly organized,
validly existing and in good standing under the laws of the State of Delaware;
(b) the Property Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware corporation duly organized,
validly existing and in good standing in the State of Delaware;
(d) the Delaware Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and constitutes the
valid and legally binding agreement of each of the Property Trustee and the
Delaware Trustee enforceable against each of them in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(f) the execution, delivery and performance of this Trust Agreement has
been duly authorized by all necessary corporate or other action on the part of
the Property Trustee and the Delaware Trustee and does not require any approval
of stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Charter or By-laws
of the Property Trustee or the Delaware Trustee, (ii) violate any provision of,
or constitute, with or without notice or lapse of time, a default under, or
result in the creation or imposition of, any Lien on any properties included in
the Trust Property pursuant to the provisions of, any indenture, mortgage,
credit agreement, license or other agreement or instrument to which the Property
Trustee or the Delaware Trustee is a party or by which it is bound, or (iii)
violate any law, governmental rule or regulation of the United States or the
State of Delaware, as the case may be, governing the banking, trust or general
powers of the Property Trustee or the Delaware Trustee (as appropriate in
context) or any order, judgment or decree applicable to the Property Trustee or
the Delaware Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee or the Delaware Trustee (as
appropriate in context) contemplated herein or therein requires the consent or
approval of, the giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency under any
existing Federal law governing the banking, trust or general powers of the
Property Trustee or the Delaware Trustee, as the case may be, under the laws of
the United States or the State of Delaware;
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(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal which,
individually or in the aggregate, would materially and adversely affect the
Trust or would question the right, power and authority of the Property Trustee
or the Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued at each Time of Delivery
on behalf of the Trust have been duly authorized and will have been, duly and
validly executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement
and the Securityholders will be, as of each such date, entitled to the benefits
of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by
the Trust (or the Trustees on behalf of the Trust) under the laws of the State
of Delaware or any political subdivision thereof in connection with the
execution, delivery and performance by the Property Trustee or the Delaware
Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII.
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section.
Nothing in this Trust Agreement shall be construed to release an Administrative
Trustee from liability for its own gross negligent action, its own gross
negligent failure to act, or its own willful misconduct. To the extent that, at
law or in equity, an Administrative Trustee has duties (including fiduciary
duties) and liabilities relating thereto to the Trust or to the Securityholders,
such Administrative Trustee shall not be liable to the Trust or to any
Securityholder for such Trustee's good faith reliance on the provisions of this
Trust Agreement. The provisions of this Trust Agreement, to the extent that they
restrict the duties and liabilities of the Administrative
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Trustees otherwise existing at law or in equity, are agreed by the Depositor and
the Securityholders to replace such other duties and liabilities of the
Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in Liquidation Amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such Property in a similar
manner as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement and the
Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.1 and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust
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Agreement, nor shall the Property Trustee be liable for the default or
misconduct of the Administrative Trustees or the Depositor.
SECTION 8.2. Certain Notices.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such Event of
Default to the Securityholders, the Administrative Trustees and the Depositor,
unless such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Indenture, the Administrative Trustee shall transmit,
in the manner and to the extent provided in Section 10.8, notice of such
exercise to the Securityholders and the Property Trustee, unless such exercise
shall have been revoked.
SECTION 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action or
(ii) in construing any of the provisions of this Trust Agreement the Property
Trustee finds the same ambiguous or inconsistent with any other provisions
contained herein or (iii) the Property Trustee is unsure of the application of
any provision of this Trust Agreement, then, except as to any matter as to which
the Preferred Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
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(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by
an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Depositor or
the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice, such counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees; the Property Trustee shall
have the right at any time to seek instructions concerning the administration of
this Trust Agreement from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to this Trust Agreement, unless
such Securityholders shall have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Securityholders, but the
Property Trustee may make such further inquiry or investigation into such facts
or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents or attorneys, provided that the Property Trustee shall be responsible for
its own negligence or recklessness with respect to selection of any agent or
attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder the Property
Trustee (i) may request instructions from the Holders of the Trust Securities
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such
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remedy or right or taking such other action until such instructions are
received, and (iii) shall be protected in acting in accordance with such
instructions; and
(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Depositor of the proceeds of the Debentures.
SECTION 8.5. May Hold Securities.
Except as provided in the definition of the term "Outstanding" in
Article I, any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable compensation
for all services rendered by them hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee, (iii) any
officer, director, shareholder, employee,
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representative or agent of any Trustee, and (iv) any employee or agent of the
Trust or its Affiliates, (referred to herein as an "Indemnified Person") from
and against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by such Indemnified Person by reason of the
creation, operation or termination of the Trust or any act or omission performed
or omitted by such Indemnified Person in good faith on behalf of the Trust and
in a manner such Indemnified Person reasonably believed to be within the scope
of authority conferred on such Indemnified Person by this Trust Agreement,
except that no Indemnified Person shall be entitled to be indemnified in respect
of any loss, damage or claim incurred by such Indemnified Person by reason of
negligence or willful misconduct with respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement.
No Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6.
The Depositor and any Trustee may engage in or possess an interest in
other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust and
the Holders of Trust Securities shall have no rights by virtue of this Trust
Agreement in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. Neither the
Depositor, nor any Trustee, shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and the
Depositor or any Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Trustee may engage or be
interested in any financial or other transaction with the Depositor or any
Affiliate of the Depositor, or may act as depository for, trustee or agent for,
or act on any committee or body of holders of, securities or other obligations
of the Depositor or its Affiliates.
SECTION 8.7. Corporate Property Trustee Required; Eligibility of
Trustees.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
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(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
SECTION 8.8. Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
(b) The Guarantee Agreement and the Indenture shall be deemed to be
specifically described in this Trust Agreement for the purposes of clause (i) of
the first provision contained in Section 310(b) of the Trust Indenture Act.
SECTION 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor and the Administrative
Trustees, by agreed action of the majority of such Trustees, shall have power to
appoint, and upon the written request of the Administrative Trustees, the
Depositor shall for such purpose join with the Administrative Trustees in the
execution, delivery, and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Property Trustee
either to act as co-trustee, jointly with the Property Trustee, of all or any
part of such Trust Property, or to the extent required by law to act as separate
trustee of any such property, in either case with such powers as may be provided
in the instrument of appointment, and to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section. If the Depositor
does not join in such appointment within 15 days after the receipt by it of a
request so to do, or in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee alone shall have power to make such
appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall either be (i) a natural person who is at least 21 years of age and
a resident of the United States or (ii) a legal entity with its principal place
of business in the United States that shall act through one or more persons
authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor.
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Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder shall be exercised
solely by such Trustees and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section, and, in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the concurrence of
the Depositor. Upon the written request of the Property Trustee, the Depositor
shall join with the Property Trustee in the execution, delivery and performance
of all instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any other
trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (the "Relevant Trustee") and
no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time by giving written notice thereof to the Securityholders.
If the instrument of acceptance by the
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successor Trustee required by Section 8.11 shall not have been delivered to the
Relevant Trustee within 30 days after the giving of such notice of resignation,
the Relevant Trustee may petition, at the expense of the Trust, any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Holder of the
Common Securities. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority (based on
Liquidation Amounts) of the Outstanding Preferred Securities, delivered to the
Relevant Trustee (in its individual capacity and on behalf of the Trust). An
Administrative Trustee may be removed by the Holder of the Common Securities at
any time.
If any Trustee shall resign, be removed or become incapable of acting
as Trustee, or if a vacancy shall occur in the office of any Trustee for any
cause, at a time when no Debenture Event of Default shall have occurred and be
continuing, the Holder of the Common Securities, by Act of the Holder of the
Common Securities delivered to the retiring Trustee, shall promptly appoint a
successor Trustee or Trustees, and the retiring Trustee shall comply with the
applicable requirements of Section 8.11. If the Property Trustee or the Delaware
Trustee shall resign, be removed or become incapable of continuing to act as the
Property Trustee or the Delaware Trustee, as the case may be, at a time when a
Debenture Event of Default shall have occurred and be continuing, the Holders of
Preferred Securities, by Act of the Securityholders of a majority (based on
Liquidation Amounts) of the Outstanding Preferred Securities delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee
or Trustees, and such successor Trustee shall comply with the applicable
requirements of Section 8.11. If an Administrative Trustee shall resign, be
removed or become incapable of acting as Administrative Trustee, at a time when
a Debenture Event of Default shall have occurred and be continuing, the Holder
of the Common Securities by Act of the Common Securityholder delivered to the
Administrative Trustee shall promptly appoint a successor Administrative Trustee
or Administrative Trustees and such successor Administrative Trustee or Trustees
shall comply with the applicable requirements of Section 8.11. If no successor
Relevant Trustee shall have been so appointed by the Holder of the Common
Securities or the Holders of Preferred Securities and accepted appointment in
the manner required by Section 8.11, any Securityholder who has been a
Securityholder of Trust Securities for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.8 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death,
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incompetence or incapacity may be filled by (a) the unanimous act of the
remaining Administrative Trustees if there are at least two of them or (b)
otherwise by the Depositor (with the successor in each case being a Person who
satisfies the eligibility requirement for Administrative Trustees or Delaware
Trustee, as the case may be, set forth in Section 8.7).
SECTION 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee such
successor Trustee so appointed shall execute, acknowledge and deliver to the
Trust and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Depositor or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and if the Property Trustee is the
resigning Trustee shall duly assign, transfer and deliver to the successor
Trustee all property and money held by such retiring Property Trustee hereunder.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee with respect
to the Trust Securities shall execute and deliver an amendment hereto wherein
each successor Relevant Trustee shall accept such appointment and which (a)
shall contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust and (b) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the Trust by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
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SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Property Trustee or the Delaware Trustee
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which such
Relevant Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of such Relevant Trustee, shall
be the successor of such Relevant Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
SECTION 8.13. Preferential Collection of Claims Against Depositor or
Trust.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Trust Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Trust Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Property Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement adjustment or compensation affecting the
Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
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SECTION 8.14. Reports by Property Trustee.
(a) Not later than ________ __ of each year commencing with ________
__, 1997, the Property Trustee shall transmit to all Securityholders in
accordance with Section 10.8, and to the Depositor, a brief report dated as of
the immediately preceding December 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if
to the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with
all of its obligations under this Trust Agreement during the
twelve-month period (or, in the case of the initial report, the period
since the Closing Date) ending with such December 31 or, if the
Property Trustee has not complied in any material respect with such
obligations, a description of such noncompliance; and
(iii) any change in the property and funds in its possession
as Property Trustee since the date of its last report and any action
taken by the Property Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to Securityholders
such reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with each national stock exchange,
the Nasdaq Stock Market or such other interdealer quotation system or
self-regulatory organization upon which the Trust Securities are listed or
traded, with the Commission and with the Depositor.
SECTION 8.15. Reports to the Property Trustee.
The Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act.
SECTION 8.16. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314 (c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
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SECTION 8.17. Number of Trustees.
(a) The number of Trustees shall be four, provided that the Holder of
all of the Common Securities by written instrument may increase or decrease the
number of Administrative Trustees. The Property Trustee and the Delaware Trustee
may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
SECTION 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.7(a), including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of this Trust Agreement, as set forth herein.
ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination Upon Expiration Date.
Unless earlier terminated, the Trust shall automatically terminate on
December 31, 2042 (the "Expiration Date"), following the distribution of the
Trust Property in accordance with Section 9.4.
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SECTION 9.2. Early Termination.
The first to occur of any of the following events is an "Early
Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from the Depositor at
any time to terminate the Trust and distribute Debentures to Securityholders in
exchange for the Preferred Securities (which direction is optional and wholly
within the discretion of the Depositor);
(c) the redemption of all of the Preferred Securities in connection
with the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
SECTION 9.3. Termination.
The respective obligations and responsibilities of the Trustees and the
Trust created and continued hereby shall terminate upon the latest to occur of
the following: (a) the distribution by the Property Trustee to Securityholders
upon the liquidation of the Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2, of all
amounts required to be distributed hereunder upon the final payment of the Trust
Securities; (b) the payment of any expenses owed by the Trust; and (c) the
discharge of all administrative duties of the Administrative Trustees, including
the performance of any tax reporting obligations with respect to the Trust or
the Securityholders.
SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d)
of Section 9.2 occurs or upon the Expiration Date, the Trust shall be liquidated
by the Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Securityholder a Like Amount of Debentures,
subject to Section 9.4(d). Notice of liquidation shall be given by the Property
Trustee by first-class mail, postage prepaid mailed not later than 30 nor more
than 60 days prior to the Liquidation Date to each Holder of Trust Securities at
such Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures or the right to receive a
Liquidation Distribution, as applicable; and
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(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Debentures, or if Section 9.4(d) applies receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect
the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Property Trustee, either itself acting as exchange agent or
through the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of Debentures
in exchange for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will be
issued to holders of Trust Securities Certificates, upon surrender of such
certificates to the Administrative Trustees or their agent for exchange, (iii)
the Depositor shall use its best efforts to have the Debentures listed on the
New York Stock Exchange or on such other exchange, interdealer quotation system
or self-regulatory organization as the Preferred Securities are then listed,
(iv) any Trust Securities Certificates not so surrendered for exchange will be
deemed to represent a Like Amount of Debentures, accruing interest at the rate
provided for in the Debentures from the last Distribution Date on which a
Distribution was made on such Trust Securities Certificates until such
certificates are so surrendered (and until such certificates are so surrendered,
no payments of interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Debentures) and (v) all rights of
Securityholders holding Trust Securities will cease, except the right of such
Securityholders to receive Debentures upon surrender of Trust Securities
Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 9.4, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debentures in the
manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up or terminated, by the Property Trustee in such manner as the
Property Trustee determines. In such event, on the date of the dissolution,
winding-up or other termination of the Trust, Securityholders will be entitled
to receive out of the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to the Liquidation Amount per Trust
Security plus accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If, upon any such
dissolution, winding up or termination, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust Securities shall be paid
on a pro rata basis (based upon Liquidation Amounts). The holder of the Common
Securities will be entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as aforesaid) with
Holders of Preferred Securities, except that, if a Debenture Event of Default
has occurred and is continuing, the Preferred Securities shall have a priority
over the Common Securities.
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SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of
the Trust.
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except pursuant
to this Section 9.5. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Holders of the Preferred
Securities, the Property Trustee or the Delaware Trustee, the Trust may merge
with or into, consolidate, amalgamate, or be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to a trust
organized as such under the laws of any State; provided, that (i) such successor
entity either (a) expressly assumes all of the obligations of the Trust with
respect to the Preferred Securities or (b) substitutes for the Preferred
Securities other securities having substantially the same terms as the Preferred
Securities (the "Successor Securities") so long as the Successor Securities rank
the same as the Preferred Securities rank in priority with respect to
distributions and payments upon liquidation, redemption and otherwise, (ii) the
Depositor expressly appoints a trustee of such successor entity possessing the
same powers and duties as the Property Trustee as the holder of the Debentures,
(iii) the Successor Securities are listed or traded, or any Successor Securities
will be listed upon notification of issuance, on any national securities
exchange or other organization on which the Preferred Securities are then listed
or traded, if any, (iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred Securities (including
any Successor Securities) to be downgraded by any nationally recognized
statistical rating organization, (v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the Preferred Securities (including
any Successor Securities) in any material respect, (vi) such successor entity
has a purpose identical to that of the Trust, (vii) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Depositor has received an Opinion of Counsel to the effect that (a) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of the
Preferred Securities (including any Successor Securities) in any material
respect, and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an investment company under the 1940 Act
and (viii) the Depositor owns all of the Common Securities of such successor
entity and guarantees the obligations of such successor entity under the
Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
holders of 100% in Liquidation Amount of the Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to any other entity or
permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger, replacement, conveyance,
transfer or lease would cause the Trust or the successor entity to be classified
as other than a grantor trust for United States Federal income tax purposes.
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ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders.
The death or incapacity of any person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or any
Securityholder for such person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
SECTION 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the
Property Trustee, the Administrative Trustees and the Depositor, without the
consent of any Securityholders, (i) to cure any ambiguity, correct or supplement
any provision herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Trust Agreement, which shall not be inconsistent with the other
provisions of this Trust Agreement, or (ii) to modify, eliminate or add to any
provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Trust will be classified for United States Federal income tax
purposes as a grantor trust at all times that any Trust Securities are
outstanding or to ensure that the Trust will not be required to register as an
investment company under the 1940 Act; provided, however, that in the case of
clause (i), such action shall not adversely affect in any material respect the
interests of any Securityholder, and any amendments of this Trust Agreement
shall become effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Trustees and the Depositor with (i) the
consent of Trust Securityholders representing not less than a majority (based
upon Liquidation Amounts) of the Trust Securities then Outstanding and (ii)
receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a grantor trust for
United States Federal income tax purposes or the Trust's exemption from status
of an investment company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the Securityholders
(such consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
paragraph (c) of this Section 10.2 may not be amended.
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(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an investment company under the 1940 Act or fail or cease to be
classified as a grantor trust for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor, this Trust Agreement may not be amended in
a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects its
own rights, duties or immunities under this Trust Agreement. The Property
Trustee shall be entitled to receive an Opinion of Counsel and an Officers'
Certificate stating that any amendment to this Trust Agreement is in compliance
with this Trust Agreement.
SECTION 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates 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.
SECTION 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE.
52
<PAGE> 60
SECTION 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day that is a Business Day (except as
otherwise provided in Sections 4.1(a) and 4.2(d)), with the same force and
effect as though made on the date fixed for such payment, and no interest shall
accrue thereon for the period after such date.
SECTION 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant Trustee,
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article Eight of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
SECTION 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon any Securityholder or the Depositor may be given or served in writing
by deposit thereof, first-class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (a) in the case of
a Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Depositor, to Owens Corning,
Owens Corning World Headquarters, Toledo, Ohio 43659, Attention:
_____________facsimile no.: (___) ___-____. Any notice to Preferred
Securityholders shall also be given to such owners as have, within two years
preceding the giving of such notice, filed their names and addresses with the
Property Trustee for that purpose. Such notice, demand or other communication to
or upon a Securityholder shall be deemed to have been sufficiently given or
made, for all purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee, the Delaware Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is published
by the Trust) as follows: (a) with respect to the Property Trustee to Wilmington
Trust Company, Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890, facsimile (302) 651-8882, Attention: Corporate Trust
Administration; (b) with respect to the Delaware Trustee, to Wilmington Trust
Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware
19890, facsimile (302) 651-8882, Attention: Corporate Trust Administration;
53
<PAGE> 61
and (c) with respect to the Administrative Trustees, to them at the address
above for notices to the Depositor, marked "Attention Administrative Trustees of
Owens Corning Capital II." Such notice, demand or other communication to or upon
the Trust or the Property Trustee shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the Trust or the
Property Trustee.
SECTION 10.9. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Securityholders, that at the expense
of the Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Trust Agreement by any
of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so modified
or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
54
<PAGE> 62
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee and
Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
OWENS CORNING
By:
----------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Property Trustee
By:
----------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:
----------------------------------
Name:
Title:
--------------------------
[INSERT NAME OF ADMINISTRATIVE TRUSTEE],
55
<PAGE> 63
as Administrative Trustee
--------------------------
[INSERT NAME OF ADMINISTRATIVE TRUSTEE],
as Administrative Trustee
56
<PAGE> 64
EXHIBIT A
CERTIFICATE OF TRUST
OF
OWENS CORNING CAPITAL II
THIS CERTIFICATE OF TRUST of Owens Corning Capital II (the "Trust"),
dated _______ __, 1997, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. (Section) 3801 et seq.).
1. Name. The name of the business trust being formed hereby is Owens
Corning Capital II.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890.
3. Effective Date. This Certificate of Trust shall be effective as of
________ __, 199_.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
WILMINGTON TRUST COMPANY,
as Trustee
By:
----------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee
By:
----------------------------
Name:
Title:
<PAGE> 65
EXHIBIT B
[Form of Letter to Depository Trust Company]
<PAGE> 66
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NUMBER
NUMBER OF COMMON SECURITIES
C-1
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
OWENS CORNING CAPITAL II
____% COMMON SECURITIES
(LIQUIDATION AMOUNT $___ PER COMMON SECURITY)
Owens Corning Capital II, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that Owens
Corning (the "Holder") is the registered owner of ( ) common securities of the
Trust representing beneficial interests of the Trust and designated the ____%
Common Securities (liquidation amount $___ per Common Security) (the "Common
Securities"). In accordance with Section 5.10 of the Trust Agreement (as
defined below) the Common Securities are not transferable and any attempted
transfer hereof shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the
terms and provisions of, the Amended and Restated Trust Agreement of the Trust
dated as of , , as the same may be amended from time to time (the
"Trust Agreement") including the designation of the terms of the Common
Securities as set forth therein. The Trust will furnish a copy of the Trust
Agreement to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
<PAGE> 67
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this day of , .
OWENS CORNING CAPITAL II
By:
-----------------------------
Name:
Administrative Trustee
-2-
<PAGE> 68
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of __________ __, 199_, between Owens Corning, a
Delaware corporation ("Owens Corning"), and Owens Corning Capital II, a Delaware
business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Debentures from Owens Corning and to issue and sell
____% [Cumulative Quarterly Income Preferred] [Capital] Securities (the
"Preferred Securities") with such powers, preferences and special rights and
restrictions as are set forth in the Amended and Restated Trust Agreement of the
Trust dated as of _______ __, 1997 as the same may be amended from time to time
(the "Trust Agreement");
WHEREAS, Owens Corning will directly or indirectly own all of the
Common Securities of the Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase Owens Corning hereby agrees shall benefit
Owens Corning and which purchase Owens Corning acknowledges will be made in
reliance upon the execution and delivery of this Agreement, Owens Corning and
Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. Guarantee by Owens Corning.
Subject to the terms and conditions hereof, Owens Corning hereby
irrevocably and unconditionally guarantees to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the "Beneficiaries") the
full payment, when and as due, of any and all Obligations (as hereinafter
defined) to such Beneficiaries. As used herein, "Obligations" means any costs,
expenses or liabilities of the Trust, other than obligations of the Trust to pay
to holders of any Preferred Securities or other similar interests in the Trust
the amounts due such holders pursuant to the terms of the Preferred Securities
or such other similar interests, as the case may be. This Agreement is intended
to be for the benefit of, and to be enforceable by, all such Beneficiaries,
whether or not such Beneficiaries have received notice hereof.
SECTION 1.2. Term of Agreement.
This Agreement shall terminate and be of no further force and effect
upon the later of (a) the date on which full payment has been made of all
amounts payable to all holders of all the Preferred Securities (whether upon
redemption, liquidation, exchange or otherwise) and (b) the date on which there
are no Beneficiaries remaining; provided, however, that this Agreement shall
continue to be
<PAGE> 69
effective or shall be reinstated, as the case may be, if at any time any holder
of Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Preferred Securities, under any Obligation, under the Guarantee
Agreement dated the date hereof by Owens Corning and Wilmington Trust Company,
as guarantee trustee or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
SECTION 1.3. Waiver of Notice.
Owens Corning hereby waives notice of acceptance of this Agreement and
of any Obligation to which it applies or may apply, and Owens Corning hereby
waives presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 1.4. No Impairment.
The obligations, covenants, agreements and duties of Owens Corning
under this Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, Owens Corning with respect to the happening of any of the
foregoing.
SECTION 1.5. Enforcement.
A Beneficiary may enforce this Agreement directly against Owens Corning
and Owens Corning waives any right or remedy to require that any action be
brought against the Trust or any other person or entity before proceeding
against Owens Corning.
-2-
<PAGE> 70
SECTION 1.6. Subrogation.
Owens Corning shall be subrogated to all (if any) rights of the Trust
in respect of any amounts paid to the Beneficiaries by Owens Corning under this
Agreement; provided, however, that Owens Corning shall not (except to the extent
required by mandatory provisions of law) be entitled to enforce or exercise any
rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Agreement, if, at the time of any such payment, any amounts are due and unpaid
under this Agreement.
ARTICLE II
SECTION 2.1. Binding Effect.
All guarantees and agreements contained in this Agreement shall bind
the successors, assigns, receivers, trustees and representatives of Owens
Corning and shall inure to the benefit of the Beneficiaries.
SECTION 2.2. Amendment.
So long as there remains any Beneficiary or any Preferred Securities of
any series are outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the Preferred
Securities.
SECTION 2.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or by registered
or certified mail, addressed as follows (and if so given, shall be deemed given
when mailed or upon receipt of an answer-back, if sent by telex):
Owens Corning Capital II
c/o Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Facsimile No.: (302) 651-8882
Attention: Corporate Trust Administration
Owens Corning
Owens Corning World Headquarters
Toledo, Ohio 43659
Facsimile No.: (___) ___-____
Attention: _____________
-3-
<PAGE> 71
SECTION 2.4. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
THIS AGREEMENT is executed as of the day and year first above written.
OWENS CORNING
By:
-----------------------------
Name:
Title:
OWENS CORNING CAPITAL II
By:
-----------------------------
Name:
Administrative Trustee
-4-
<PAGE> 72
EXHIBIT E
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT--This
Preferred Security is a Global Certificate within the meaning of the Trust
Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York) to Owens Corning
Capital II or its agent for registration of transfer, exchange or payment, and
any Preferred Security issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of The Depository Trust
Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.]
CERTIFICATE NUMBER
NUMBER OF PREFERRED SECURITIES
P-
CUSIP NO.
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
OWENS CORNING CAPITAL II
____% [CUMULATIVE QUARTERLY INCOME PREFERRED] [CAPITAL] SECURITIES,
SERIES
(LIQUIDATION AMOUNT $____ PER SECURITY)
Owens Corning Capital II, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that (the
"Holder") is the registered owner of ( ) preferred securities of
the Trust representing an undivided beneficial interest in the assets of the
Trust and designated the Owens Corning Capital II ____% [Cumulative Quarterly
Income Preferred] [Capital] Securities, Series (liquidation amount $___ per
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.4 of the Trust Agreement (as
defined below). The
<PAGE> 73
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this certificate
and the Preferred Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of , 1997, as the same may be
amended from time to time (the "Trust Agreement") including the designation of
the terms of Preferred Securities as set forth therein. The Holder is entitled
to the benefits of the Guarantee Agreement entered into by Owens Corning, a
Delaware corporation, and Wilmington Trust Company, as guarantee trustee, dated
as of _________ __, 1997, (the "Guarantee"), to the extent provided therein.
The Trust will furnish a copy of the Trust Agreement and the Guarantee to the
Holder without charge upon written request to the Trust at its principal place
of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this day of , .
OWENS CORNING CAPITAL II
By:
---------------------------
Name:
Administrative Trustee
-2-
<PAGE> 74
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: ________________
Signature: __________________________________________________________________
(Sign exactly as your name appears on the other side of this
Preferred Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
-3-
<PAGE> 75
OPTION TO ELECT REPAYMENT
The undersigned registered Holder of this Preferred Security hereby
irrevocably exercises the option to require the Company to repay this Preferred
Security or portion thereof (which is $_____ or an integral multiple thereof)
below designated, in accordance with the terms of Section 4.3 of the Trust
Agreement, and directs that payment be made to the registered Holder hereof
unless a different name has been indicated below. Any amount required to be paid
by the undersigned on account of interest accompanies this Security.
Dated: __________, _____
<TABLE>
<S> <C>
Signature(s) must be guaranteed if Holder's Signature:
payment is to be made other than to and
in the name of the registered Holder.
-----------------------------
- --------------------------------
Signature Guarantee
Portion of Security to be repaid (in
Fill in for payment of Repayment Price if integral multiples of $_____) if other
to be made otherwise than to the than the full principal amount thereof:
registered Holder
-------------------------------
- --------------------------------
Name
- --------------------------------
Address
- --------------------------------
Please print name and address
(including zip code)
SOCIAL SECURITY OR TAXPAYER
IDENTIFICATION NUMBER
- ---------------------------------
</TABLE>
-4-
<PAGE> 1
Exhibit 4.10.3
Draft of March 31, 1997
- --------------------------------------------------------------------------------
GUARANTEE AGREEMENT
BETWEEN
OWENS CORNING
(AS GUARANTOR)
AND
WILMINGTON TRUST COMPANY
(AS TRUSTEE)
DATED AS OF
________ __, 1997
- --------------------------------------------------------------------------------
<PAGE> 2
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
- ------------------- -------------------
<S> <C>
310 (a).........................................................................................4.1(a)
310 (b).........................................................................................4.1(c), 2.8
310 (c).........................................................................................Inapplicable
311 (a).........................................................................................2.2(b)
311 (b).........................................................................................2.2(b)
311 (c).........................................................................................Inapplicable
312 (a).........................................................................................2.2(a)
312 (b).........................................................................................2.2(b)
313.............................................................................................2.3
314 (a).........................................................................................2.4
314 (b).........................................................................................Inapplicable
314 (c).........................................................................................2.5
314 (d).........................................................................................Inapplicable
314 (e).........................................................................................1.1, 2.5, 3.2
314 (f).........................................................................................2.1, 3.2
315 (a).........................................................................................3.1(d)
315 (b).........................................................................................2.7
315 (c).........................................................................................3.1
315 (d).........................................................................................3.1(d)
315 (e).........................................................................................Inapplicable
316 (a).........................................................................................1.1, 2.6, 5.4
316 (b).........................................................................................5.3
316 (c).........................................................................................8.2
317 (a).........................................................................................Inapplicable
317 (b).........................................................................................Inapplicable
318 (a).........................................................................................2.1(b)
318 (b).........................................................................................2.1
318 (c).........................................................................................2.1(a)
<FN>
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
----
<S> <C>
ARTICLE I.
DEFINITIONS
SECTION 1.1. Definitions. .......................................................................1
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application. ..................................................4
SECTION 2.2. List of Holders. ...................................................................4
SECTION 2.3. Reports by the Guarantee Trustee. ..................................................4
SECTION 2.4. Periodic Reports to the Guarantee Trustee. .........................................4
SECTION 2.5. Evidence of Compliance with Conditions Precedent. ..................................5
SECTION 2.6. Events of Default; Waiver. .........................................................5
SECTION 2.7. Event of Default; Notice. ..........................................................5
SECTION 2.8. Conflicting Interests. .............................................................5
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee. ........................................5
SECTION 3.2. Certain Rights of Guarantee Trustee. ...............................................7
SECTION 3.3. Indemnity. .........................................................................8
ARTICLE IV.
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee: Eligibility. ....................................................9
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee Trustee. .....................9
</TABLE>
-i-
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE V.
GUARANTEE
SECTION 5.1. Guarantee. ........................................................................10
SECTION 5.2. Waiver of Notice and Demand. ......................................................10
SECTION 5.3. Obligations Not Affected. .........................................................10
SECTION 5.4. Rights of Holders. ................................................................11
SECTION 5.5. Guarantee of Payment...............................................................11
SECTION 5.6. Subrogation. ......................................................................11
SECTION 5.7. Independent Obligations. ..........................................................12
ARTICLE VI.
COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination. ....................................................................12
SECTION 6.2. Pari Passu Guarantees. ............................................................12
ARTICLE VII.
TERMINATION
SECTION 7.1. Termination. ......................................................................12
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.1. Successors and Assigns. ...........................................................13
SECTION 8.2. Amendments. .......................................................................13
SECTION 8.3. Notices. ..........................................................................13
SECTION 8.4. Benefit. ..........................................................................14
SECTION 8.5. Interpretation. ...................................................................14
SECTION 8.6. Governing Law. ....................................................................15
SECTION 8.7. Counterparts ......................................................................15
</TABLE>
-ii-
<PAGE> 5
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of _______ __, 1997 is executed and
delivered by OWENS CORNING, a Delaware corporation (the "Guarantor") having its
principal office at Owens Corning World Headquarters, Toledo, Ohio 43659, and
WILMINGTON TRUST COMPANY, a banking corporation duly organized and existing
under the laws of the State of Delaware, as trustee (the "Guarantee Trustee"),
for the benefit of the Holders (as defined herein) from time to time of the
Preferred Securities (as defined herein) of Owens Corning Capital II, a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of
________ __, 1997 (the "Trust Agreement"), among the Guarantor, as Depositor,
the Property Trustee and the Delaware Trustee named therein and the Holders from
time to time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing $___________ aggregate Liquidation Amount (as defined in the
Trust Agreement) of its ____% Preferred Securities, Series __, Liquidation
Amount $__ per preferred security) (the "Preferred Securities") representing
preferred undivided beneficial interests in the assets of the Issuer and having
the terms set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities (as defined below), will be used to purchase the Debentures
(as defined in the Trust Agreement) of the Guarantor which will be deposited
with Wilmington Trust Company, as Property Trustee under the Trust Agreement, as
trust assets; and
WHEREAS, as incentive for the Holders to purchase Preferred Securities the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth herein, to pay to the Holders of the Preferred Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders from time to time of the Preferred Securities.
ARTICLE I. DEFINITIONS
SECTION 1.1. Definitions.
As used in this Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings. Capitalized
or otherwise defined terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Trust Agreement as in effect on the date
hereof.
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"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Guarantor shall not be deemed to be an Affiliate of the Issuer. For the purposes
of this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Board of Directors" means either the board of directors of the Guarantor
or any committee of that board duly authorized to act hereunder.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Guarantee Agreement; provided, however, that,
except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default and shall not have cured such
default within 60 days after receipt of such notice.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid or
made by or on behalf of the Issuer: (i) any accumulated and unpaid Distributions
(as defined in the Trust Agreement) required to be paid on the Preferred
Securities, to the extent the Issuer shall have funds on hand available therefor
at such time, (ii) the redemption price (as specified in the Trust Agreement),
(the "Redemption Price"), with respect to any Preferred Securities called for
redemption by the Issuer, to the extent the Issuer shall have funds on hand
available therefor at such time, and (iii) upon a voluntary or involuntary
dissolution, winding-up or liquidation of the Issuer, unless Debentures are
distributed to the Holders, the lesser of (a) the aggregate of the Liquidation
Amount of $__ per Preferred Security plus accumulated and unpaid Distributions
on the Preferred Securities to the date of payment plus any accrued but unpaid
premium and (b) the amount of assets of the Issuer remaining available for
distribution to Holders on liquidation of the Issuer (in either case, the
"Liquidation Distribution").
"Guarantee Trustee" means Wilmington Trust Company, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement, and thereafter means each such
Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books and records of the
Issuer, of any Preferred Securities; provided, however, that in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor
or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as of _________
__, 1997, as supplemented and amended, between the Guarantor and Wilmington
Trust Company, as trustee.
"List of Holders" has the meaning specified in Section 2.2(a).
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"Majority in Liquidation Amount of the Preferred Securities" means, except
as provided by the Trust Indenture Act, a vote by the Holder(s), voting
separately as a class, of more than 50% of the Liquidation Amount of all then
Outstanding (as defined in the Trust Agreement) Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chairman or a Vice Chairman of the Board of Directors of such
Person or the President or a Vice President of such Person, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
such Person, and delivered to the Guarantee Trustee. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each officer, such
condition or covenant has been complied with.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
Senior Vice President, any Vice President, any Assistant Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any
Trust Officer or Assistant Trust Officer or any other officer of the Corporate
Trust Department of the Guarantee Trustee and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Agreement" has the meaning specified in the recitals to this
Guarantee Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
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ARTICLE II. TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.2. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the Guarantee
Trustee (a) semiannually, on or before _______ and _______ of each year, a list,
in such form as the Guarantee Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") as of a date not more than 15 days
prior to the delivery thereof, and (b) at such other times as the Guarantee
Trustee may request in writing, within 30 days after the receipt by the
Guarantor of any such request, a List of Holders as of a date not more than 15
days prior to the time such list is furnished, in each case to the extent such
information is in the possession or control of the Guarantor and is not
identical to a previously supplied list of Holders or has not otherwise been
received by the Guarantee Trustee in its capacity as such. The Guarantee Trustee
may destroy any List of Holders previously given to it on receipt of a new List
of Holders.
(b) The Guarantee Trustee shall comply with its obligations under Section
311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Guarantee Trustee.
Not later than _______ of each year, commencing _______ , 199_, the
Guarantee Trustee shall provide to the Holders such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Securities and
Exchange Commission and the Holders such documents, reports and information, if
any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
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SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
SECTION 2.6. Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Preferred Securities
may, by vote, on behalf of the Holders, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Guarantee Agreement, but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent therefrom.
SECTION 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an
Event of Default, transmit by mail, first class postage prepaid, to the Holders,
notices of all Events of Default known to the Guarantee Trustee, unless such
defaults have been cured before the giving of such notice, provided, that,
except in the case of a default in the payment of a Guarantee Payment, the
Guarantee Trustee shall be protected in withholding such notice if and so long
as the Board of Directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer charged with the administration of this
Guarantee Agreement shall have obtained written notice, of such Event of
Default.
SECTION 2.8. Conflicting Interests.
The Trust Agreement and the Indenture shall be deemed to be specifically
described in this Guarantee Agreement for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for the
benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee
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on acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, upon
acceptance by such Successor Guarantee Trustee of its appointment hereunder, and
such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Guarantee Agreement, and no implied covenants shall be read into this Guarantee
Agreement against the Guarantee Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6), the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to relieve
the Guarantee Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Guarantee
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions that
by any provision hereof or of the Trust Indenture Act are specifically
required to be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made;
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(iii) the Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in
Liquidation Amount of the Preferred Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Guarantee
Agreement or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document reasonably believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting to take any
action hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of such
request from the Guarantee Trustee, shall be promptly delivered by the
Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and
the written advice or opinion of such legal counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or opinion. Such legal
counsel may be legal counsel to the Guarantor or any of its Affiliates and
may be one of its employees. The Guarantee Trustee shall have the right at
any time to seek instructions concerning the administration of this
Guarantee Agreement from any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such Holder
shall have provided to the Guarantee Trustee such adequate security and
indemnity as would satisfy a reasonable person in the position of the
Guarantee Trustee, against
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the costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by the
Guarantee Trustee; provided that, nothing contained in this Section
3.2(a)(v) shall be taken to relieve the Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the rights
and powers vested in it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking any
other action hereunder, the Guarantee Trustee (A) may request instructions
from the Holders, (B) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (C)
shall be protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
SECTION 3.3. Indemnity.
The Guarantor agrees to indemnify the Guarantee Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without negligence or
bad faith on the part of the Guarantee Trustee, arising out of or in connection
with the acceptance or administration of this Guarantee Agreement, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The Guarantee Trustee will not claim or exact any lien or charge on
any Guarantee Payments as a result of any amount due to it under this Guarantee
Agreement.
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ARTICLE IV. GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee: Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least
$50,000,000, and shall be a corporation meeting the requirements of Section
310(a) of the Trust Indenture Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority, then, for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so
act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Guarantee Trustee and delivered to the
Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may
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thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a Successor Guarantee Trustee.
ARTICLE V. GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees, subject to Section
6.1, to pay in full to the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by or on behalf of the Issuer), as and when due,
regardless of any defense, right of set-off or counterclaim which the Issuer may
have or assert other than the defense of payment. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders. The Guarantor shall notify the Guarantee Trustee of any
such payment.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Guarantee Agreement
and of any liability to which it applies or may apply, presentment, demand for
payment, any right to require a proceeding first against the Guarantee Trustee,
Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this Guarantee Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period on
the Debentures as provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
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(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain the
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders not less than a Majority
in Liquidation Amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of this Guarantee Agreement or exercising any
trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding directly against
the Guarantor to enforce its rights under this Guarantee Agreement, without
first instituting a legal proceeding against the Guarantee Trustee, the Issuer
or any other Person.
SECTION 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts theretofore paid
by the Issuer) or upon distribution of Debentures to Holders as provided in the
Trust Agreement.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement and shall have the right to waive
payment by the Issuer pursuant to Section 5.1; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Guarantee Agreement, if, at the time of any
such payment, any amounts are due and unpaid under this Guarantee Agreement.
If any amount shall be paid to the Guarantor in violation of the preceding
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sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
SECTION 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Preferred Securities and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI. COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination.
The obligations of the Guarantor under this Guarantee Agreement will
constitute unsecured obligations of the Guarantor and will rank subordinate and
junior in right of payment to all Senior Debt (as defined in the Indenture) to
the extent and in the manner set forth in the Indenture. The obligations of the
Guarantor under this Guarantee Agreement do not constitute Senior Debt (as
defined in the Indenture).
SECTION 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall rank
pari passu with the obligations of the Guarantor under (i) any similar guarantee
agreements issued by the Guarantor on behalf of the holders of preferred or
capital securities issued by any Owens Trust (as defined in the Indenture), (ii)
the Indenture and the Securities (as defined therein) issued thereunder, and
(iii) any other security, guarantee or other agreement or obligation that is
expressly stated to rank pari passu with the obligations of the Guarantor under
this Guarantee Agreement or with any obligation that ranks pari passu with the
obligations of the Guarantor under this Guarantee Agreement.
ARTICLE VII. TERMINATION
SECTION 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon (i) full payment of the Redemption Price of all Preferred
Securities, (ii) the distribution of Debentures to the Holders in exchange for
all of the Preferred Securities or (iii) full payment of the amounts payable in
accordance with the Trust Agreement upon liquidation of the Issuer.
Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
must repay any sums paid with respect to Preferred Securities or this Guarantee
Agreement.
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ARTICLE VIII. MISCELLANEOUS
SECTION 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article VIII of the
Indenture and pursuant to which the successor or assignee agrees in writing to
perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder.
SECTION 8.2. Amendments.
Except with respect to any changes which do not adversely affect the rights
of the Holders in any material respect (in which case no consent of the Holders
will be required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than a Majority in Liquidation Amount of the
Preferred Securities. The provisions of Article VI of the Trust Agreement
concerning meetings of the Holders shall apply to the giving of such approval.
SECTION 8.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied (confirmed by delivery of the original) or
mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such other
address, facsimile number or to the attention of such other Person as the
Guarantor may give notice to the Holders:
Owens Corning
Owens Corning World Headquarters
Toledo, Ohio 43659
Facsimile No.: ___-___-____
Attention: __________
(b) if given to the Guarantee Trustee or Issuer, in care of the Guarantee
Trustee, at the Issuer's (and the Guarantee Trustee's) address set forth below
or such other address as the Guarantee Trustee on behalf of the Issuer may give
notice to the Holders:
-13-
<PAGE> 18
Owens Capital I
c/o Owens Corning
Owens Corning World Headquarters
Toledo, Ohio 43659
Facsimile No.: ___-___-____
Attention: ______________
and:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Facsimile No.: (302) 651-8882
Attention: Corporate Trust Administration
(c) if given to any Holder, at the address set forth on the books and
records of the Issuer.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and is
not separately transferable from the Preferred Securities.
SECTION 8.5. Interpretation.
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined in
the preamble hereto have the respective meanings assigned to them in Section
1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections are
to Articles and Sections of this Guarantee Agreement unless otherwise specified;
-14-
<PAGE> 19
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include the
masculine, feminine and neuter genders.
SECTION 8.6. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICT OF LAW PRINCIPLES THEREOF.
SECTION 8.7. Counterparts
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
-15-
<PAGE> 20
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
OWENS CORNING
By:
----------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY
as Guarantee Trustee
By:
----------------------------------
Name:
Title:
-16-
<PAGE> 21
STATE OF )
) SS.:
COUNTY OF )
On the _____ day of __________, 1997, before me personally
came ___________________________, to me known, who, being by me duly sworn, did
depose and say that [he -- she] is __________________________________________
of Owens Corning, one of the corporations described in and which executed the
foregoing instrument; that [he -- she] knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that
[he -- she] signed [his -- her] name thereto by like authority.
------------------------------
STATE OF )
) SS.:
COUNTY OF )
On the _____ day of __________, 1997, before me personally
came ___________________________, to me known, who, being by me duly sworn, did
depose and say that [he --she] is ____________________________________________
of Wilmington Trust Company, one of the corporations described in and
which executed the foregoing instrument; that [he -- she] knows the seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that [he -- she] signed [his -- her] name thereto by like
authority.
------------------------------
-17-
<PAGE> 1
Exhibit 4.11.1
Draft of March 31, 1997
================================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
among
OWENS CORNING, as Depositor,
WILMINGTON TRUST COMPANY,
as Property Trustee,
WILMINGTON TRUST COMPANY,
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of ________ __, 1997
OWENS CORNING CAPITAL III
================================================================================
<PAGE> 2
OWENS CORNING CAPITAL III
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Trust Agreement
Act Section Section
- --------------- ------------
<S> <C>
310 (a)(1).................................................................... 8.7
(a)(2).................................................................... 8.7
(a)(3).................................................................... 8.9
(a)(4).................................................................... 2.7(a)(ii)(E)
(b)....................................................................... 8.8
311 (a)....................................................................... Not Applicable
(b)....................................................................... Not Applicable
312 (a)....................................................................... Not Applicable
(b)....................................................................... Not Applicable
(c)....................................................................... 5.7
313 (a)....................................................................... 8.14(a),(b)
(a)(4).................................................................... 8.14(b)
(b)....................................................................... Not Applicable
(c)....................................................................... 10.8
(d)....................................................................... 8.14(c)
314 (a)....................................................................... 8.15
(b)....................................................................... Not Applicable
(c)(1).................................................................... 8.16
(c)(2).................................................................... 8.16
(c)(3).................................................................... Not Applicable
(d)....................................................................... Not Applicable
(e)....................................................................... 1.1, 8.16
315 (a)....................................................................... 8.1(a), 8.3(a)
(b)....................................................................... 8.2, 10.8
(c)....................................................................... 8.1(a)
(d)....................................................................... 8.1, 8.3
(e)....................................................................... Not Applicable
316 (a)(1)(A)................................................................. Not Applicable
(a)(1)(B)................................................................. 5.13
(a)(2).................................................................... Not Applicable
(b)....................................................................... 5.14
(c)....................................................................... 6.7
317 (a)(1).................................................................... Not Applicable
(a)(2).................................................................... 8.13
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
(b)....................................................................... 5.9
318 (a)....................................................................... 10.10
- -----------
<FN>
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of the Trust Agreement.
</TABLE>
-ii-
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE I.
DEFINED TERMS
<S> <C> <C>
SECTION 1.1. Definitions.........................................................................................1
ARTICLE II.
CONTINUATION OF THE TRUST
SECTION 2.1. Name...............................................................................................10
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business........................................11
SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses.........................................................................................11
SECTION 2.4. Issuance of the Preferred Securities...............................................................11
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase
of Debentures....................................................................................11
SECTION 2.6. Declaration of Trust...............................................................................12
SECTION 2.7. Authorization to Enter into Certain Transactions...................................................12
SECTION 2.8. Assets of Trust....................................................................................16
SECTION 2.9. Title to Trust Property............................................................................16
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.1. Payment Account....................................................................................16
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions......................................................................................17
SECTION 4.2. Redemption.........................................................................................18
SECTION 4.3. [Repayment at Option of Holders....................................................................20
SECTION 4.4. Subordination of Common Securities.................................................................21
SECTION 4.5. Payment Procedures.................................................................................21
SECTION 4.6. Tax Returns and Reports............................................................................22
</TABLE>
i
<PAGE> 5
<TABLE>
<S> <C> <C>
SECTION 4.7. Payment of Taxes, Duties, Etc. of the Trust........................................................22
SECTION 4.8. Payments under Indenture or Pursuant to Direct Actions.............................................22
ARTICLE V.
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership..................................................................................23
SECTION 5.2. The Trust Securities Certificates..................................................................23
SECTION 5.3. Execution and Delivery of Trust Securities Certificates............................................23
SECTION 5.4. Registration of Transfer and Exchange of Preferred
Securities Certificates.............................................................23
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates........................................................................24
SECTION 5.6. Persons Deemed Securityholders.....................................................................25
SECTION 5.7. Access to List of Securityholders' Names and Addresses....................................25
SECTION 5.8. Maintenance of Office or Agency...........................................................25
SECTION 5.9. Appointment of Paying Agent...............................................................25
SECTION 5.10. Ownership of Common Securities by Depositor...............................................26
SECTION 5.11. Book-Entry Preferred Securities Certificates; Common
Securities Certificate.............................................................26
SECTION 5.12. Notices to Clearing Agency.........................................................................27
SECTION 5.13. Definitive Preferred Securities Certificates.......................................................27
SECTION 5.14. Rights of Securityholders..........................................................................28
ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.......................................................................30
SECTION 6.2. Notice of Meetings.................................................................................31
SECTION 6.3. Meetings of Preferred Securityholders..............................................................31
SECTION 6.4. Voting Rights......................................................................................31
SECTION 6.5. Proxies, etc.......................................................................................31
SECTION 6.6. Securityholder Action by Written Consent...........................................................32
SECTION 6.7. Record Date for Voting and Other Purposes..........................................................32
SECTION 6.8. Acts of Securityholders............................................................................32
SECTION 6.9. Inspection of Records..............................................................................33
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
</TABLE>
ii
<PAGE> 6
<TABLE>
<S> <C> <C>
SECTION 7.1. Representations and Warranties of the Property
Trustee and the Delaware............................................................33
SECTION 7.2. Representations and Warranties of Depositor...............................................35
ARTICLE VIII.
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities................................................................35
SECTION 8.2. Certain Notices....................................................................................37
SECTION 8.3. Certain Rights of Property Trustee.................................................................37
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities.............................................39
SECTION 8.5. May Hold Securities................................................................................39
SECTION 8.6. Compensation; Indemnity; Fees......................................................................39
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Trustees.......................................40
SECTION 8.8. Conflicting Interests..............................................................................41
SECTION 8.9. Co-Trustees and Separate Trustee...................................................................41
SECTION 8.10. Resignation and Removal; Appointment of Successor..................................................42
SECTION 8.11. Acceptance of Appointment by Successor.............................................................44
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business...........................................................................45
SECTION 8.13. Preferential Collection of Claims Against Depositor
or Trust...........................................................................45
SECTION 8.14. Reports by Property Trustee........................................................................46
SECTION 8.15. Reports to the Property Trustee...........................................................46
SECTION 8.16. Evidence of Compliance with Conditions Precedent..........................................46
SECTION 8.17. Number of Trustees........................................................................47
SECTION 8.18. Delegation of Power................................................................................47
ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination Upon Expiration Date...................................................................47
SECTION 9.2. Early Termination..................................................................................48
SECTION 9.3. Termination........................................................................................48
SECTION 9.4. Liquidation........................................................................................48
</TABLE>
iii
<PAGE> 7
<TABLE>
<S> <C> <C>
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements
of the Trust........................................................................50
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders............................................................51
SECTION 10.2. Amendment.................................................................................51
SECTION 10.3. Separability..............................................................................52
SECTION 10.4. Governing Law.............................................................................52
SECTION 10.5. Payments Due on Non-Business Day..........................................................53
SECTION 10.6. Successors................................................................................53
SECTION 10.7. Headings..................................................................................53
SECTION 10.8. Reports, Notices and Demands..............................................................53
SECTION 10.9. Agreement Not to Petition.................................................................54
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act...................................54
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee and Indenture..........................55
</TABLE>
iv
<PAGE> 8
AMENDED AND RESTATED TRUST AGREEMENT, dated as of __________ __, 1997,
among (i) Owens Corning, a Delaware corporation (including any successors or
assigns, the "Depositor"), (ii) Wilmington Trust Company, a banking corporation
duly organized and existing under the laws of the State of Delaware, as property
trustee, (in each such capacity, the "Property Trustee" and, in its separate
corporate capacity and not in its capacity as Property Trustee, the "Bank"),
(iii) Wilmington Trust Company, a banking corporation duly organized and
existing under the laws of the State of Delaware, as Delaware trustee (the
"Delaware Trustee"), (iv) _____________, an individual, and ______________, an
individual, each of whose address is c/o Owens Corning, Owens Corning World
Headquarters, Toledo, Ohio 43659 (each an "Administrative Trustee" and
collectively the "Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees referred to collectively as the
"Trustees") and (v) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, the Property Trustee and the Delaware Trustee
have heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into that certain Trust Agreement,
dated as of _______ __, 1997 (the "Original Trust Agreement"), and by the
execution and filing by the Property Trustee and the Delaware Trustee with the
Secretary of State of the State of Delaware of the Certificate of Trust, filed
on ______ __, 1997, attached as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Underwriting Agreement, (iii) the acquisition by the Trust
from the Depositor of all of the right, title and interest in the Debentures and
(iv) the appointment of the Administrative Trustees;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
<PAGE> 9
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on Debentures having an
aggregate principal amount equal to such given Liquidation Amount for such
period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrative Trustee" means each of the Persons identified as an
"Administrative Trustee" in the preamble to this Trustee Agreement solely in
such Person's capacity as Administrative Trustee of the Trust formed and
continued hereunder and not in such Person's individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the
2
<PAGE> 10
continuance of any such decree or order unstayed and in effect for a period of
60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Book-Entry Preferred Securities Certificates" means a beneficial
interest in the Preferred Securities Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 5.11.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed, or (c) a day on which the
Property Trustee's Corporate Trust Office or the Corporate Trust Office of the
Debenture Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among the Trust,
the Depositor and The Depository Trust Company, as the initial Clearing Agency,
dated as of the Closing Date, relating to the Trust Securities Certificates,
substantially in the form attached as Exhibit B, as the same may be amended and
supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the First Time of Delivery, which date is also the
date of execution and delivery of this Trust Agreement.
["Collateral Agent" shall mean ___________________, as collateral agent
under the Pledge Agreement, dated the date hereof, among the Depositor, the
collateral agent, _____________, as purchase contract agent and the holders from
time to time of the Depositor's ___% Automatic Convertible Exchange Securities.]
3
<PAGE> 11
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $___________ and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means (i) when used with respect to the
Property Trustee, the principal office of the Property Trustee located in
Wilmington, Delaware, and (ii) when used with respect to the Debenture Trustee,
the principal office of the Debenture Trustee located in Wilmington, Delaware.
"Debenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the Indenture.
"Debenture Trustee" means Wilmington Trust Company, a banking
corporation duly organized under the laws of the State of Delaware, and any
successor thereto.
"Debentures" means the aggregate principal amount of the Depositor's
_____% Junior Subordinated Deferrable Interest Debentures, Series _, issued
pursuant to the Indenture.
"Definitive Preferred Securities Certificates" means either or both (as
the context requires) of (a) Preferred Securities Certificates issued as
Book-Entry Preferred Securities Certificates as provided in Section 5.11(a) and
(b) Preferred Securities Certificates issued in certificated, fully registered
form upon original issuance thereof or as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (ss.) 3801, et seq., as it may be amended from time to
time.
"Delaware Trustee" means the Person identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
4
<PAGE> 12
"Direct Action" has the meaning specified in Section 5.14.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Property Trustee in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a period
of 30 days; or
(c) default by the Property Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in the performance or breach of which is dealt
with in clause (b) or (c) above) and continuation of such default or breach for
a period of 60 days after there has been given, by registered or certified mail,
to the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate liquidation preference of the Outstanding Preferred Securities a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor Property Trustee
within 60 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, and any
successor statute thereto, in each case as amended from time to time.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"First Time of Delivery" has the meaning specified in the Underwriting
Agreement.
5
<PAGE> 13
"Guarantee" means the Guarantee Agreement executed and delivered by the
Depositor and Wilmington Trust Company, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit of the holders
of the Preferred Securities, as amended from time to time.
"Indemnified Person" has the meaning specified in Section 8.6.
"Indenture" means the Junior Subordinated Indenture, dated as of
_________ __, 1997, between the Depositor and the Debenture Trustee, as trustee,
as amended or supplemented from time to time.
"Investment Company Event" means the occurrence of a change in law or
regulation or a change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law") to the effect that the Trust is or will be considered
an "investment company" that is required to be registered under the Investment
Company Act of 1940, as amended (the "Investment Company Act"), which Change in
1940 Act Law becomes effective on or after the date hereof.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of Debentures to be contemporaneously redeemed in
accordance with the Indenture, allocated to the Common Securities and to the
Preferred Securities based upon the relative Liquidation Amounts of such classes
of Trust Securities and the proceeds of which will be used to pay the Redemption
Price of such Trust Securities, and (b) with respect to a distribution of
Debentures to Holders of Trust Securities in connection with a dissolution or
liquidation of the Trust, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities of the Holder to whom such Debentures
are distributed.
"Liquidation Amount" means the stated amount of $___ per Trust
Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a termination and
liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means a certificate signed by the Chairman and
Chief Executive Officer, President or a Vice President, and by the Treasurer, an
Associate Treasurer, an Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to
6
<PAGE> 14
the appropriate Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this Trust
Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, but not an
employee of any thereof, and who shall be reasonably acceptable to the Property
Trustee.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore cancelled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Trust Securities; provided that, if such
Trust Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange for or in lieu
of which other Preferred Securities have been executed and delivered pursuant to
Sections 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be protected in relying
upon any such
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request, demand, authorization, direction, notice, consent or waiver, only
Preferred Securities that such Trustee knows to be so owned shall be so
disregarded and (b) the foregoing shall not apply at any time when all of the
outstanding Preferred Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Preferred Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee,
through the Paying Agent, shall make payments to the Securityholders in
accordance with Sections 4.1 and 4.2.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $__ and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as Exhibit
E.
"Property Trustee" means the Person identified as the "Property
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Property Trustee of the Trust heretofore formed and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any successor property trustee appointed as herein provided.
["Purchase Contract Settlement Date" means ________________________,
____.]
["Put Option" shall have the meaning specified in Section 4.3.]
["Put Option Exercise Date" shall have the meaning specified in Section
4.3.]
["Put Option Exercise Price" shall have the meaning specified in
Section 4.3.]
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"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated maturity
of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures, allocated on a pro rata basis (based on Liquidation Amounts) among
the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Second Time of Delivery" has the meaning specified in the Underwriting
Agreement.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Trust Securities is registered in the Securities Register; any such
Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act.
"Tax Event" means the receipt by the Trust of an Opinion of Counsel
experienced in such matters to the effect that, as a result of (i) any amendment
to, or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, (ii) any amendment to or
change in an interpretation or application of such laws or regulations by any
legislative body, court, governmental agency or regulatory authority or (iii)
any interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the generally accepted position on
the date the Preferred Securities are issued, which amendment or change is
effective or which interpretation or pronouncement or decision is announced on
or after the date of issuance of the Preferred Securities under this Trust
Agreement, there is more than an insubstantial risk that (x) the Trust is, or
will be within 90 days of the date of such Opinion of Counsel, subject to U.S.
Federal income tax with respect to income received or accrued on the Debentures,
(y) interest payable by the Depositor on the Debentures is not, or within 90
days of the date of such Opinion of Counsel, will not be, deductible by the
Depositor, in whole or in part, for U.S. Federal income tax purposes or (z) the
Trust is, or will be within 90 days after the date of such Opinion of Counsel,
subject to more than a de minimis amount of other taxes, duties, or other
governmental charges.
"Time of Delivery" means, collectively, the First Time of Delivery and
the Second Time of Delivery.
"Trust" means the Delaware business trust created and continued hereby
and identified on the cover page to this Trust Agreement.
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<PAGE> 17
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including (i) all exhibits hereto and (ii) for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) the rights of the
Property Trustee under the Guarantee, (c) any cash on deposit in, or owing to,
the Payment Account and (d) all proceeds and rights in respect of the foregoing
and any other property and assets for the time being held or deemed to be held
by the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Pricing Agreement, dated as of
___________ __, 1997, among the Trust, the Depositor and the underwriters named
therein incorporating the Underwriting Agreement dated _________ __, 1997.
ARTICLE II.
CONTINUATION OF THE TRUST
SECTION 2.1. Name.
The Trust continued hereby shall be known as "Owens Corning Capital
III," as such name may be modified from time to time by the Administrative
Trustees following written notice to the Holders of Trust Securities and the
other Trustees, in which name the Trustees may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business.
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The address of the Delaware Trustee in the State of Delaware is Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890, Attention:
Corporate Trust Administration, or such other address in the State of Delaware
as the Delaware Trustee may designate by written notice to the Securityholders
and the Depositor. The principal executive office of the Trust is c/o Owens
Corning, Owens Corning World Headquarters, Toledo, Ohio 43659.
SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses.
The Property Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
SECTION 2.4. Issuance of the Preferred Securities.
On ________ __, 1997 the Depositor, on behalf of the Trust and pursuant
to the Original Trust Agreement, executed and delivered the Underwriting
Agreement. Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Underwriters named in the
Underwriting Agreement Preferred Securities Certificates, registered in the name
of the nominee of the initial Clearing Agency, in an aggregate amount of
___________ Preferred Securities having an aggregate Liquidation Amount of
$___________, against receipt of such aggregate purchase price of such Preferred
Securities of $___________, which amount the Administrative Trustee shall
promptly deliver to the Property Trustee. If there is a Second Time of Delivery,
an Administrative Trustee, on behalf of the Trust, shall execute in accordance
with Section 5.2 and deliver to the Underwriters named in the Underwriting
Agreement Preferred Securities Certificates, registered in the name of the
nominee of the initial Clearing Agency, in an aggregate amount of up to
__________ Preferred Securities having an aggregate Liquidation Amount of up to
$___________, against receipt of the aggregate purchase price of such Preferred
Securities equal to the Liquidation Amount thereof, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription and
Purchase of Debentures.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
_______ Common Securities having an aggregate Liquidation Amount of
$____________ against payment by the Depositor of such amount, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Debentures, registered in the
name of the Trust and having an aggregate principal amount equal to $_________,
and, in satisfaction of the purchase price for such Debentures, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of
$_________ (being the sum of the amounts delivered to the Property Trustee
pursuant to (i) the second sentence of Section 2.4 and (ii)
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the first sentence of this Section 2.5). If there is a Second Time of Delivery,
an Administrative Trustee, on behalf of the Trust, shall execute in accordance
with Section 5.2 and deliver to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of up to _______
Common Securities having an aggregate Liquidation Amount of up to $__________
against payment by the Depositor of such amount, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Debentures, registered in the
name of the Trust and having an aggregate principal amount of up to
$___________, and, in satisfaction of the purchase price for such Debentures,
the Property Trustee, on behalf of the Trust, shall deliver to the Depositor the
amount received from one of the Administrative Trustees pursuant to the last
sentence of Section 2.4 (being the sum of the amounts delivered to the Property
Trustee pursuant to (i) the third sentence of Section 2.4 and (ii) the third
sentence of this Section 2.5).
SECTION 2.6. Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Trust Securities and use the proceeds from such sale to acquire the
Debentures, and (b) to engage in those activities necessary or incidental
thereto. The Depositor hereby appoints the Trustees as trustees of the Trust, to
have all the rights, powers and duties to the extent set forth herein, and the
Trustees hereby accept such appointment. The Property Trustee hereby declares
that it will hold the Trust Property in trust upon and subject to the conditions
set forth herein for the benefit of the Trust and the Securityholders. The
Administrative Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. The Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Delaware Business Trust Act.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance
with the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section, and in accordance with the following provisions
(i) and (ii), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(i) As among the Trustees, each Administrative Trustee shall
have the power and authority to act on behalf of the Trust with respect
to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Expense
Agreement and the Certificate Depository
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Agreement and such other agreements as may be necessary or
desirable in connection with the purposes and function of the
Trust;
(C) assisting in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and
under state securities or blue sky laws, and the qualification
of this Trust Agreement as a trust indenture under the Trust
Indenture Act;
(D) assisting in the listing of the Preferred
Securities upon such securities exchange or exchanges as shall
be determined by the Depositor and the registration of the
Preferred Securities under the Securities Exchange Act of
1934, as amended, and the preparation and filing of all
periodic and other reports and other documents pursuant to the
foregoing;
(E) the sending of notices (other than notices of
default) and other information regarding the Trust Securities
and the Debentures to the Securityholders in accordance with
this Trust Agreement;
(F) the appointment of a Paying Agent, authenticating
agent and Securities Registrar in accordance with this Trust
Agreement;
(G) execution of the Trust Securities in accordance
with this Trust Agreement;
(H) registering transfer of the Trust Securities in
accordance with this Trust Agreement;
(I) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the Trust
and the preparation, execution and filing of the certificate
of cancellation with the Secretary of State of the State of
Delaware;
(J) unless otherwise determined by the Depositor, the
Property Trustee or the Administrative Trustees, or as
otherwise required by the Delaware Business Trust Act or the
Trust Indenture Act, to execute on behalf of the Trust (either
acting alone or together with any or all of the Administrative
Trustees) any documents that the Administrative Trustees have
the power to execute pursuant to this Trust Agreement; and
(K) the taking of any action incidental to the
foregoing as the Trustees may from time to time determine is
necessary or advisable to give effect to the terms of this
Trust Agreement for the benefit of the Securityholders
(without consideration of the effect of any such action on any
particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
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(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any
other payments made in respect of the Debentures in the
Payment Account;
(D) the distribution through the Paying Agent of
amounts owed to the Securityholders in respect of the Trust
Securities;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Debentures
to the Securityholders in accordance with this Trust
Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the Trust
and the preparation, execution and filing of the certificate
of cancellation with the Secretary of State of the State of
Delaware;
(I) after an Event of Default (other than under
paragraph (b), (c), (d) or (e) of the definition of such term
if such Event of Default is by or with respect to the Property
Trustee) the taking of any action incidental to the foregoing
as the Property Trustee may from time to time determine is
necessary or advisable to give effect to the terms of this
Trust Agreement and protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration
of the effect of any such action on any particular
Securityholder); and
(J) except as otherwise provided in this Section
2.7(a)(ii), the Property Trustee shall have none of the
duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of
any of the Trust Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action that would cause the
Trust to fail or cease to qualify as a "grantor trust" for U.S. Federal income
tax purposes, (iv) incur any indebtedness for borrowed money or issue any other
debt or (v) take or consent to any action that would result in the placement of
a Lien on any of the Trust
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Property. The Administrative Trustees shall defend all claims and demands of all
Persons at any time claiming any Lien on any of the Trust Property adverse to
the interest of the Trust or the Securityholders in their capacity as
Securityholders.
(c) In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on the appropriate form in relation to the Preferred
Securities, including any amendments thereto;
(ii) the determination of the States in which to take
appropriate action to qualify or register for sale all or part of the
Preferred Securities and the determination of any and all such acts,
other than actions which must be taken by or on behalf of the Trust,
and the advice to the Trustees of actions they must take on behalf of
the Trust, and the preparation for execution and filing of any
documents to be executed and filed by the Trust or on behalf of the
Trust, as the Depositor deems necessary or advisable in order to comply
with the applicable laws of any such States;
(iii) the preparation for filing by the Trust and execution on
behalf of the Trust of an application to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Preferred Securities;
(iv) the preparation for filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) or 12(g) of the Exchange Act, including
any amendments thereto;
(v) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the
Preferred Securities; and
(vi) the taking of any other actions necessary or desirable to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the 1940 Act, or fail to be classified
as a grantor trust for U.S. Federal income tax purposes and so that the
Debentures will be treated as indebtedness of the Depositor for U.S. Federal
income tax purposes. In this connection, the Depositor and the Administrative
Trustees are authorized to take any action, not inconsistent with applicable
law, the Certificate of Trust or this Trust Agreement, that each of the
Depositor and any Administrative Trustee determines in its discretion to be
necessary or desirable
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for such purposes, as long as such action does not adversely affect in any
material respect the interests of the holders of the Preferred Securities.
SECTION 2.8. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
SECTION 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Trust and the Securityholders in
accordance with this Trust Agreement.
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Securityholders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in
the Trust Property, and Distributions (including of Additional Amounts) will be
made on the Trust Securities at the rate and on the dates that payments of
interest (including of Additional Interest, as defined in the Indenture) are
made on the Debentures. Accordingly:
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(i) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall accrue
from ________ __, 1997, and, except in the event (and to the extent)
that the Depositor exercises its right to defer the payment of interest
on the Debentures pursuant to the Indenture, shall be payable
[quarterly] [semi-annually] in arrears on
___________________________________of each year, commencing on
_________ __, ____. If any date on which a Distribution is otherwise
payable on the Trust Securities is not a Business Day, then the payment
of such Distribution shall be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next
succeeding calendar year, payment of such Distribution shall be made on
the immediately preceding Business Day, in each case with the same
force and effect as if made on such date (each date on which
distributions are payable in accordance with this Section 4.1(a), a
"Distribution Date").
(ii) Assuming payments of interest on the Debentures are made
when due (and before giving effect to Additional Amounts, if
applicable), Distributions on the Trust Securities shall be payable at
a rate of ____% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions for any period less than a full
period shall be computed on the basis of a 360-day year of twelve
30-day months. Distributions payable for each full Distribution period
will be computed by dividing the rate per annum by [four] [two]. The
amount of Distributions payable for any period shall include the
Additional Amounts, if any.
(iii) Distributions on the Trust Securities shall be made by
the Property Trustee from the Payment Account and shall be payable on
each Distribution Date only to the extent that the Trust has funds then
on hand and available in the Payment Account for the payment of such
Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities at the close of business on the
relevant record date, which shall be the __________ next preceding the relevant
Distribution Date; provided, however, that in the event that the Preferred
Securities do not remain in book-entry-only form, the relevant record date shall
be the ___________ next preceding the relevant Distribution Date.
SECTION 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of the
Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
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(i) the Redemption Date;
(ii) the Redemption Price, or if the Redemption Price cannot
be calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to the Indenture
together with a statement that it is an estimate and that the actual
Redemption Price will be calculated on the third Business Day prior to
the Redemption Date (and if an estimate is provided, a further notice
shall be sent of the actual Redemption Price on the date that notice of
such actual Redemption Price is received pursuant to the Indenture);
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon will cease to accumulate on and after said
date, except as provided in Section 4.2(d) below; and
(vi) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent
that the Trust has funds then on hand and available in the Payment Account for
the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.2(c), the Property Trustee will, with
respect to Book-Entry Preferred Securities, irrevocably deposit with the
Clearing Agency for such Book-Entry Preferred Securities funds sufficient to pay
the applicable Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the Holders thereof.
With respect to Preferred Securities that are not Book- Entry Preferred
Securities, the Property Trustee, subject to Section 4.2(c), will irrevocably
deposit with the Paying Agent funds sufficient to pay the applicable Redemption
Price and will give the Paying Agent irrevocable instructions and authority to
pay the Redemption Price to the Holders thereof upon surrender of their
Preferred Securities Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust Securities called for
redemption shall be payable to the Holders of such Trust Securities as they
appear on the Securities Register for the Trust Securities on the relevant
record dates for the related Distribution Dates. If notice of redemption shall
have been given and funds deposited as required, then upon the date of such
deposit, all rights of Securityholders holding Trust Securities so called for
redemption will cease, except the right of such Securityholders to receive the
Redemption Price and any Distribution
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payable on or prior to the Redemption Date, but without interest, and such
Securities will cease to be outstanding. In the event that any date on which any
Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day, in
each case, with the same force and effect as if made on such date. In the event
that payment of the Redemption Price in respect of any Trust Securities called
for redemption is improperly withheld or refused and not paid either by the
Trust or by the Depositor pursuant to the Guarantee, Distributions on such Trust
Securities will continue to accumulate, at the then applicable rate, from the
Redemption Date originally established by the Trust for such Trust Securities to
the date such Redemption Price is actually paid, in which case the actual
payment date will be the date fixed for redemption for purposes of calculating
the Redemption Price.
(e) Subject to Section 4.4(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected on a pro rata basis (based upon Liquidation Amounts) not more
than 60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption, by such
method (including, without limitation, by lot) as the Property Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions of Preferred Securities, or with respect to Book-Entry Preferred
Securities, in accordance with the Clearing Agency's customary procedures. The
Property Trustee shall promptly notify the Security Registrar in writing of the
Preferred Securities selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation Amount thereof to be
redeemed. In the event that less than all of the Preferred Securities (other
than Book-Entry Preferred Securities) represented by a Preferred Securities
Certificate are to be redeemed, upon surrender of such Preferred Securities
Certificate the Administrative Trustee, or any one of them, shall execute and
deliver to the Paying Agent, for further delivery to the Holder of such
Preferred Securities without service charge, a new Preferred Securities
Certificate representing the unredeemed Preferred Securities evidenced by the
Preferred Securities Certificate so surrendered. For all purposes of this Trust
Agreement, unless the context otherwise requires, all provisions relating to the
redemption of Preferred Securities shall relate, in the case of any Preferred
Securities redeemed or to be redeemed only in part, to the portion of the
Liquidation Amount of Preferred Securities that has been or is to be redeemed.
SECTION 4.3. [Repayment at Option of Holders.
(a) Each Holder of Trust Securities, including the Collateral Agent,
shall have the right to require the Trust to repay all or a portion of the Trust
Securities owned by or pledged with such Holder (the "Put Option") on the
Business Day immediately preceding the Purchase Contract Settlement Date (the
"Put Option Exercise Date") at a repayment price of $_____ per Trust Security
plus an amount equal to accrued Distributions thereon to the date of payment
[plus -- insert applicable repayment premium, if any] (the "Put Option Repayment
Price").
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(b) The Trust will obtain funds to pay the Put Option Repayment Price
of Trust Securities being repaid under the Put Option by presenting to the
Depositor, pursuant to the Trust's right under the Debentures to require the
Depositor to repay all or a portion of the Debentures on the Put Option Exercise
Date, Debentures in an aggregate principal amount equal to the aggregate stated
Liquidation Amount of such Trust Securities for repayment on the Put Option
Exercise Date at the Debenture Repayment Price (as defined in the Debentures).
(c) In order for the Trust Securities to be repaid on the Put Option
Exercise Date, the Trust must receive at the Corporate Trust Office of the
Property Trustee, either (i) not less than 10 or more than 30 days prior to the
Put Option Exercise Date, the Trust Securities to be repaid with the form
entitled "Option to Elect Repayment" on the reverse thereof or otherwise
accompanying such Trust Security duly completed. Any such notice received by the
Trust shall be irrevocable. All questions as to the validity, eligibility
(including time of receipt) and acceptance of the Trust Securities for repayment
shall be determined by the Trust, whose determination shall be final and
binding. Notwithstanding the foregoing, so long as the Holder is the Collateral
Agent, such notice to elect repayment may be delivered to the Trust at any time
prior to _______ a.m., New York City time, on the Put Option Exercise Date and
in the form and manner as may be designated by the Collateral Agent.
(d) Payment of the Put Option Repayment Price to Holders of Trust
Securities shall be made at the Corporate Trust Office of the Property Trustee,
provided that the Depositor has paid the Property Trustee a sufficient amount of
cash in connection with the related repayment of the Debenture. Notwithstanding
the foregoing, so long as the Holder of any Trust Securities is the Collateral
Agent, the payment of the Put Option Repayment Price in respect of such Trust
Securities held by the Collateral Agent shall be made no later than 1:00 p.m.,
New York City time, on the Put Option Exercise Date by check or wire transfer in
immediately available funds at such place and to such account as may be
designated by the Collateral Agent. If the Property Trustee holds immediately
available funds sufficient to pay the Put Option Repayment Price of such Trust
Securities, then, immediately prior to the close of business on the Put Option
Exercise Date, such Trust Securities will cease to be outstanding and
distributions thereon will cease to accrue, whether or not Trust Securities are
delivered to the Property Trustee, and all other rights of the Holder in respect
of the Trust Securities, including the Holder's right to require the Trust to
repay such Trust Securities, shall terminate and lapse (other than the right to
receive the Put Option Repayment Price but without interest on such Put Option
Repayment Price). Neither the Regular Trustees nor the Trust shall be required
to register or cause to be registered the transfer of any Trust Securities for
which repayment has been elected. If payment of the Put Option Repayment Price
in respect of Trust Securities is (i) improperly withheld or refused and not
paid either by the Property Trustee or by the Depositor as guarantor pursuant to
the Guarantee, or (ii) not paid by the Property Trustee as the result of an
Event of Default with respect to the Debentures presented for repayment as
described in paragraph 4.3(b), Distributions on such Trust Securities will
continue to accrue, from the original Put Option Exercise Date to the actual
date of payment, in which case the actual payment date will be considered the
Put Option Exercise Date for purposes of calculating the Put Option Repayment
Price.]
SECTION 4.4. Subordination of Common Securities.
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(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made, subject to Section 4.2(e), pro rata among the Common
Securities and the Preferred Securities based on the Liquidation Amount of such
Common Securities and Capital Securities; provided, however, that if on any
Distribution Date or Redemption Date any Event of Default resulting from a
Debenture Event of Default shall have occurred and be continuing, no payment of
any Distribution (including Additional Amounts, if applicable) on, or Redemption
Price of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all Outstanding Preferred
Securities for all Distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price the full amount of such Redemption
Price on all Outstanding Preferred Securities, shall have been made or provided
for, and all funds available to the Property Trustee shall first be applied to
the payment in full in cash of all Distributions (including Additional Amounts,
if applicable) on, or the Redemption Price of, Preferred Securities then due and
payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holder of Common Securities will be
deemed to have waived any right to act with respect to any such Event of Default
under this Trust Agreement until the effect of all such Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Event of Default under this Trust Agreement with
respect to the Preferred Securities has been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the Holders of
the Preferred Securities and not the Holder of the Common Securities, and only
the Holders of the Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
SECTION 4.5. Payment Procedures.
Payments of Distributions (including Additional Amounts, if applicable)
in respect of the Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Securities Register or, if the Preferred Securities are held by a Clearing
Agency, such Distributions shall be made to the Clearing Agency in immediately
available funds, which shall credit the relevant Persons' accounts at such
Clearing Agency on the applicable Distribution Dates. Payments in respect of the
Common Securities shall be made in such manner as shall be mutually agreed
between the Property Trustee and the Holder of the Common Securities.
SECTION 4.6. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at
the Depositor's expense, and file all U.S. Federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared and filed) the appropriate Internal Revenue Service
Form required to be filed in respect of the Trust in each taxable year of the
Trust and (b) prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the appropriate Internal Revenue Service form required to be
provided on such form. The Administrative Trustees shall provide the Depositor
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and the Property Trustee with a copy of all such returns and reports promptly
after such filing or furnishing. The Trustees shall comply with United States
Federal withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
On or before December 15 of each year during which any Capital
Securities are Outstanding, the Administrative Trustees shall furnish to the
Property Trustee such information as may be reasonably requested by the Property
Trustee in order that the Property Trustee may prepare the information which it
is required to report for such year on Internal Revenue Service Forms 1096 and
1099 pursuant to Section 6049 of the Code. Such information shall include the
amount of original issue discount includable in income for each outstanding
Capital Security during such year.
SECTION 4.7. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Debentures of Additional Sums, the Property
Trustee shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Trust by the
United States or any other taxing authority.
SECTION 4.8. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder or an
Owner with respect to the Holder's Preferred Securities has directly received
pursuant to Section 5.8 of the Indenture or Section 5.15 of this Trust
Agreement.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the formation of the Trust and the contribution by the Depositor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
SECTION 5.2. The Trust Securities Certificates.
The Preferred Securities Certificates shall be issued in minimum
denominations of $25 Liquidation Amount and integral multiples of $25 in excess
thereof, and the Common Securities Certificates shall be issued in denominations
of $25 Liquidation Amount and integral multiples thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual signature of at
least one Administrative Trustee. Trust Securities Certificates bearing the
manual signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefits of this
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Trust Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.4.
SECTION 5.3. Execution and Delivery of Trust Securities Certificates.
At each Time of Delivery, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to or
upon the written order of the Depositor, signed by its chairman of the board,
its president, any executive vice president or any vice president, treasurer or
assistant treasurer or controller without further corporate action by the
Depositor, in authorized denominations.
SECTION 5.4. Registration of Transfer and Exchange of Preferred
Securities Certificates.
The Depositor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.8, a register or registers for the purpose of
registering Trust Securities Certificates and transfers and exchanges of
Preferred Securities Certificates (the "Securities Register") in which, the
registrar designated by the Depositor (the "Securities Registrar"), subject to
such reasonable regulations as it may prescribe, shall provide for the
registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Bank shall be the initial
Securities Registrar.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.8, the
Administrative Trustees or any one of them shall execute and deliver, in the
name of the designated transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of execution by such Administrative Trustee or
Trustees.
The Securities Registrar shall not be required to register the transfer
of any Preferred Securities that have been called for redemption. At the option
of a Holder, Preferred Securities Certificates may be exchanged for other
Preferred Securities Certificates in authorized denominations of the same class
and of a like aggregate Liquidation Amount upon surrender of the Preferred
Securities Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.8.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrative Trustee and the
Securities Registrar duly executed by the Holder or his attorney duly authorized
in writing. Each Preferred Securities Certificate surrendered for registration
of transfer
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or exchange shall be cancelled and subsequently disposed of by an Administrative
Trustee in accordance with such Person's customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an undivided beneficial interest in the assets of the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
SECTION 5.6. Persons Deemed Securityholders.
The Trustees or the Securities Registrar shall treat the Person in
whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the
purpose of receiving Distributions and for all other purposes whatsoever, and
neither the Trustees nor the Securities Registrar shall be bound by any notice
to the contrary.
SECTION 5.7. Access to List of Securityholders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold
the Depositor, the Property Trustee or the Administrative Trustees accountable
by reason of the disclosure of its name and address, regardless of the source
from which such information was derived.
SECTION 5.8. Maintenance of Office or Agency.
The Administrative Trustees shall maintain an office or offices or
agency or agencies where Preferred Securities Certificates may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Trustees in respect of the Trust Securities Certificates may
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be served. The Administrative Trustees initially designate Owens Corning, Owens
Corning World Headquarters, Toledo, Ohio 43659, Attn: _____________, as its
principal corporate trust office for such purposes. The Administrative Trustees
shall give prompt written notice to the Depositor and to the Securityholders of
any change in the location of the Securities Register or any such office or
agency.
SECTION 5.9. Appointment of Paying Agent.
The Paying Agent shall make distributions to Securityholders from the
Payment Account and shall report the amounts of such distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying Agent
shall initially be the Bank, and any co-paying agent chosen by the Bank, and
acceptable to the Administrative Trustees and the Depositor. Any Person acting
as Paying Agent shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Administrative Trustees, the Property Trustee and the
Depositor. In the event that the Bank shall no longer be the Paying Agent or a
successor Paying Agent shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor that is acceptable to the
Property Trustee and the Depositor to act as Paying Agent (which shall be a bank
or trust company). The Administrative Trustees shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Administrative Trustees to
execute and deliver to the Trustees an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Trustees that as Paying
Agent, such successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Securityholders in trust for the
benefit of the Securityholders entitled thereto until such sums shall be paid to
such Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The provisions of
Sections 8.1, 8.3 and 8.6 herein shall apply to the Bank also in its role as
Paying Agent, for so long as the Bank shall act as Paying Agent and, to the
extent applicable, to any other paying agent appointed hereunder. Any reference
in this Agreement to the Paying Agent shall include any co-paying agent unless
the context requires otherwise.
SECTION 5.10. Ownership of Common Securities by Depositor.
At each Time of Delivery, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities. To the fullest extent
permitted by law, other than a transfer in connection with a consolidation or
merger of the Depositor into another corporation, or any conveyance, transfer or
lease by the Depositor of its properties and assets substantially as an entirety
to any Person, pursuant to Section 8.1 of the Indenture, any attempted transfer
of the Common Securities shall be void. The Administrative Trustees shall cause
each Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
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SECTION 5.11. Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities Certificates, upon original issuance, may
be issued in the form of Definitive Preferred Securities Certificates in fully
registered form or in the form of a typewritten Preferred Securities Certificate
or Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Book-Entry Preferred Securities Certificate or
Certificates shall initially be registered on the Securities Register in the
name of Cede & Co., the nominee of the initial Clearing Agency, and no Owner
will receive a Definitive Preferred Securities Certificate representing such
Owner's interest in such Preferred Securities, except as provided in Section
5.13. Unless and until Definitive Preferred Securities Certificates have been
issued to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full
force and effect;
(ii) the Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement relating to the Book-Entry Preferred Securities
Certificates (including the payment of the Liquidation Amount of and
Distributions on the Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates and the giving of instructions or
directions to Owners of Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates) as the sole Holder of Preferred
Securities evidenced by Book-Entry Preferred Securities Certificates
and shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11
conflict with any other provisions of this Trust Agreement, the
provisions of this Section 5.11 shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred
Securities Certificates shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements
between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless
and until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.13, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit payments on the Preferred Securities to such Clearing
Agency Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Owners is
required under this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners, the Trustees shall
give all such notices and communications specified herein to be given to Owners
to the Clearing Agency, and shall have no obligations to the Owners.
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SECTION 5.13. Definitive Preferred Securities Certificates.
If (a) the Depositor advises the Trustees in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Preferred Securities Certificates, and the Depositor is
unable to locate a qualified successor, (b) the Depositor at its option advises
the Trustees in writing that it elects to terminate the book-entry system
through the Clearing Agency or (c) after the occurrence of a Debenture Event of
Default, Owners of Preferred Securities Certificates representing beneficial
interests aggregating at least a majority of the Liquidation Amount advise the
Administrative Trustees in writing that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interest of the Owners of
Preferred Securities Certificates, then the Administrative Trustee shall notify
the Clearing Agency and the Clearing Agency shall notify all Owners of Preferred
Securities Certificates and the other Trustees of the occurrence of any such
event and of the availability of the Definitive Preferred Securities
Certificates to Owners of such class or classes, as applicable, requesting the
same. Upon surrender to the Administrative Trustees of the typewritten Preferred
Securities Certificate or Certificates representing the Book-Entry Preferred
Securities Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees, or any one of them, shall execute the
Definitive Preferred Securities Certificates in accordance with the instructions
of the Clearing Agency. Neither the Securities Registrar nor the Trustees shall
be liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Preferred Securities Certificates, the Trustees shall
recognize the Holders of the Definitive Preferred Securities Certificates as
Securityholders. The Definitive Preferred Securities Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees or any one of them.
SECTION 5.14. Rights of Securityholders.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights and when issued and delivered to
Securityholders against payment of the purchase price therefor will be fully
paid and nonassessable by the Trust. The Holders of the Trust Securities, in
their capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if,
upon a Debenture Event of Default, the Debenture Trustee fails or the holders of
not less than 25% in principal amount of the outstanding Debentures fail to
declare the principal of all of the Debentures to be immediately due and
payable, the Holders of at least 25% in Liquidation Amount of the Preferred
Securities then Outstanding shall have such right by a notice in writing to the
Depositor and the Debenture Trustee;
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and upon any such declaration such principal amount of and the accrued interest
on all of the Debentures shall become immediately due and payable, provided that
the payment of principal and interest on such Debentures shall remain
subordinated to the extent provided in the Indenture.
At any time after such a declaration of acceleration with respect to
the Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as in the Indenture
provided, the Holders of a majority (based on Liquidation Amounts) of the
Outstanding Preferred Securities, by written notice to the Property Trustee, the
Depositor and the Debenture Trustee, may rescind and annul such declaration and
its consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(A) all overdue installments of interest (including
any Additional Interest (as defined in the Indenture)) on all
of the Debentures,
(B) the principal of (and premium, if any, on) any
Debentures which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Debentures, and
(C) all sums paid or advanced by the Debenture
Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Debenture Trustee
and the Property Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Debentures,
other than the non-payment of the principal of the Debentures which has
become due solely by such acceleration, have been cured or waived as
provided in Section 5.13 of the Indenture.
The Holders of a majority (based on Liquidation Amounts) of the
Outstanding Preferred Securities may, on behalf of the Holders of all the
Preferred Securities, waive any past default under the Indenture, except a
default in the payment of principal or interest (unless such default has been
cured and a sum sufficient to pay all matured installments of interest and
principal due otherwise than by acceleration has been deposited with the
Debenture Trustee) or a default in respect of a covenant or provision which
under the Indenture cannot be modified or amended without the consent of the
holder of each outstanding Debenture. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, by Holders of the
Preferred Securities all or part of which is represented by Book-Entry Preferred
Securities Certificates, a record date shall be established for determining
Holders of Outstanding Preferred Securities entitled to join in such notice,
which record date shall be at the close of business on the day the Property
Trustee receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
provided,
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that, unless such declaration of acceleration, or rescission and annulment, as
the case may be, shall have become effective by virtue of the requisite
percentage having joined in such notice prior to the day which is 90 days after
such record date, such notice of declaration of acceleration, or rescission and
annulment, as the case may be, shall automatically and without further action by
any Holder be canceled and of no further effect. Nothing in this paragraph shall
prevent a Holder, or a proxy of a Holder, from giving, after expiration of such
90-day period, a new written notice of declaration of acceleration, or
rescission and annulment thereof, as the case may be, that is identical to a
written notice which has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established pursuant to the
provisions of this Section 5.14(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Debenture Event of Default specified in Section 5.1(1)
or 5.1(2) of the Indenture, any Holder of Preferred Securities shall have the
right to institute a proceeding directly against the Depositor, pursuant to
Section 5.8 of the Indenture, for enforcement of payment to such Holder of the
principal amount of or interest on Debentures having a principal amount equal to
the Liquidation Amount of the Preferred Securities of such Holder (a "Direct
Action"). Except as set forth in Section 5.14(b) and this Section 5.14(c), the
Holders of Preferred Securities shall have no right to exercise directly any
right or remedy available to the holders of, or in respect of, the Debentures.
ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.
(a) Except as provided in this Section, in Sections 5.14, 8.10 and 10.2
and in the Indenture and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on the Debenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable under Section 5.13 of
the Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Debentures shall be due and payable or (iv) consent to
any amendment, modification or termination of the Indenture or the Debentures,
where such consent shall be required, without, in each case, obtaining the prior
approval of the Holders of at least a majority (based on Liquidation Amounts) of
all Outstanding Preferred Securities, provided, however, that where a consent
under the Indenture would require the consent of each Holder of Debentures
affected thereby, no such consent shall be given by the Property Trustee without
the prior written consent of each Holder of Preferred
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Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of Preferred Securities, except by a
subsequent vote of the Holders of Preferred Securities. The Property Trustee
shall notify all Holders of the Preferred Securities of any notice of default
received from the Debenture Trustee with respect to the Debentures. In addition
to obtaining the foregoing approvals of the Holders of the Preferred Securities,
prior to taking any of the foregoing actions, the Trustees shall, at the expense
of the Depositor, obtain an Opinion of Counsel experienced in such matters to
the effect that such action shall not cause the Trust to fail to be classified
as a grantor trust for U.S. Federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a majority (based on
Liquidation Amounts) of the Outstanding Preferred Securities. Notwithstanding
any other provision of this Trust Agreement, no amendment to this Trust
Agreement may be made if, as a result of such amendment, it would cause the
Trust to fail to be classified as a grantor trust for U.S. Federal income tax
purposes.
SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Preferred Securityholders, stating the
time, place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.8 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
SECTION 6.3. Meetings of Preferred Securityholders.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Preferred
Securityholders to vote on any matter upon the written request of the Preferred
Securityholders of record of 25% of the Preferred Securities (based upon
Liquidation Amounts) and the Administrative Trustees or the Property Trustee
may, at any time in their discretion, call a meeting of Preferred
Securityholders to vote on any matters as to which Preferred Securityholders are
entitled to vote.
Preferred Securityholders of record of 50% of the Outstanding Preferred
Securities (based upon Liquidation Amounts), present in person or by proxy,
shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding more
than a majority of the Preferred Securities (based
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upon Liquidation Amounts) held by the Preferred Securityholders of record
present, either in person or by proxy, at such meeting shall constitute the
action of the Preferred Securityholders, unless this Trust Agreement requires a
greater number of affirmative votes.
SECTION 6.4. Voting Rights.
Securityholders shall be entitled to one vote for each $_____ of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
SECTION 6.5. Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Administrative Trustees, or
with such other officer or agent of the Trust as the Administrative Trustees may
direct, for verification prior to the time at which such vote shall be taken.
Pursuant to a resolution of the Property Trustee, proxies may be solicited in
the name of the Property Trustee or one or more officers of the Property
Trustee. Only Securityholders of record shall be entitled to vote. When Trust
Securities are held jointly by several persons, any one of them may vote at any
meeting in person or by proxy in respect of such Trust Securities, but if more
than one of them shall be present at such meeting in person or by proxy, and
such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
SECTION 6.6. Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting if Securityholders holding more than a majority of all
Outstanding Trust Securities (based upon Liquidation Amounts) entitled to vote
in respect of such action (or such larger proportion thereof as shall be
required by any express provision of this Trust Agreement) shall consent to the
action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time fix a date, not
more than 90 days prior to the date of any meeting of Securityholders or the
payment of a distribution or other action, as the case may be, as a record date
for the determination of the identity of the Securityholders of record for such
purposes.
SECTION 6.8. Acts of Securityholders.
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Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Trust Agreement to be given, made
or taken by Securityholders or Owners may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Securityholders
or Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders or
Owners signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.1) conclusive in favor
of the Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such liquidation amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
A Securityholder may institute a legal proceeding directly against the
Depositor under the Guarantee to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Guarantee Trustee (as defined
in the Guarantee), the Trust or any person or entity.
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SECTION 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection by Securityholders
during normal business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf
of and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
(a) the Property Trustee is a banking corporation, duly organized,
validly existing and in good standing under the laws of the State of Delaware;
(b) the Property Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware corporation duly organized,
validly existing and in good standing in the State of Delaware;
(d) the Delaware Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and constitutes the
valid and legally binding agreement of each of the Property Trustee and the
Delaware Trustee enforceable against each of them in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(f) the execution, delivery and performance of this Trust Agreement has
been duly authorized by all necessary corporate or other action on the part of
the Property Trustee and the Delaware Trustee and does not require any approval
of stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Charter or By-laws
of the Property Trustee or the Delaware Trustee, (ii) violate any provision of,
or constitute, with or without notice or lapse of time, a default under, or
result in the creation or imposition of, any Lien on any properties included in
the Trust Property pursuant to the provisions of, any indenture,
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mortgage, credit agreement, license or other agreement or instrument to which
the Property Trustee or the Delaware Trustee is a party or by which it is bound,
or (iii) violate any law, governmental rule or regulation of the United States
or the State of Delaware, as the case may be, governing the banking, trust or
general powers of the Property Trustee or the Delaware Trustee (as appropriate
in context) or any order, judgment or decree applicable to the Property Trustee
or the Delaware Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee or the Delaware Trustee (as
appropriate in context) contemplated herein or therein requires the consent or
approval of, the giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency under any
existing Federal law governing the banking, trust or general powers of the
Property Trustee or the Delaware Trustee, as the case may be, under the laws of
the United States or the State of Delaware;
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal which,
individually or in the aggregate, would materially and adversely affect the
Trust or would question the right, power and authority of the Property Trustee
or the Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued at each Time of Delivery
on behalf of the Trust have been duly authorized and will have been, duly and
validly executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement
and the Securityholders will be, as of each such date, entitled to the benefits
of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by
the Trust (or the Trustees on behalf of the Trust) under the laws of the State
of Delaware or any political subdivision thereof in connection with the
execution, delivery and performance by the Property Trustee or the Delaware
Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII.
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. Notwithstanding the
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foregoing, no provision of this Trust Agreement shall require the Trustees to
expend or risk their own funds or otherwise incur any financial liability in the
performance of any of their duties hereunder, or in the exercise of any of their
rights or powers, if they shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this Section. Nothing in this Trust Agreement shall be construed
to release an Administrative Trustee from liability for its own gross negligent
action, its own gross negligent failure to act, or its own willful misconduct.
To the extent that, at law or in equity, an Administrative Trustee has duties
(including fiduciary duties) and liabilities relating thereto to the Trust or to
the Securityholders, such Administrative Trustee shall not be liable to the
Trust or to any Securityholder for such Trustee's good faith reliance on the
provisions of this Trust Agreement. The provisions of this Trust Agreement, to
the extent that they restrict the duties and liabilities of the Administrative
Trustees otherwise existing at law or in equity, are agreed by the Depositor and
the Securityholders to replace such other duties and liabilities of the
Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in Liquidation Amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such Property in a similar
manner as the Property Trustee deals with similar property for its own
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account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement and the
Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.1 and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the default or misconduct of
the Administrative Trustees or the Depositor.
SECTION 8.2. Certain Notices.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such Event of
Default to the Securityholders, the Administrative Trustees and the Depositor,
unless such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Indenture, the Administrative Trustee shall transmit,
in the manner and to the extent provided in Section 10.8, notice of such
exercise to the Securityholders and the Property Trustee, unless such exercise
shall have been revoked.
SECTION 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action or
(ii) in construing any of the provisions of this Trust Agreement the Property
Trustee finds the same ambiguous or inconsistent with any other provisions
contained herein or (iii) the Property Trustee is unsure of the application of
any provision of this Trust Agreement, then, except as to any matter as to which
the Preferred Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and
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the Property Trustee shall take such action, or refrain from taking such action,
as the Property Trustee shall be instructed in writing to take, or to refrain
from taking, by the Depositor; provided, however, that if the Property Trustee
does not receive such instructions of the Depositor within ten Business Days
after it has delivered such notice, or such reasonably shorter period of time
set forth in such notice (which to the extent practicable shall not be less than
two Business Days), it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Trust Agreement as it shall deem
advisable and in the best interests of the Securityholders, in which event the
Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by
an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Depositor or
the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice, such counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees; the Property Trustee shall
have the right at any time to seek instructions concerning the administration of
this Trust Agreement from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to this Trust Agreement, unless
such Securityholders shall have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Securityholders, but the
Property Trustee may make such further inquiry or investigation into such facts
or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents or attorneys, provided that the Property
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Trustee shall be responsible for its own negligence or recklessness with respect
to selection of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder the Property
Trustee (i) may request instructions from the Holders of the Trust Securities
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Depositor of the proceeds of the Debentures.
SECTION 8.5. May Hold Securities.
Except as provided in the definition of the term "Outstanding" in
Article I, any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable compensation
for all services rendered by them hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
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(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee, (iii) any
officer, director, shareholder, employee, representative or agent of any
Trustee, and (iv) any employee or agent of the Trust or its Affiliates,
(referred to herein as an "Indemnified Person") from and against any loss,
damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the creation,
operation or termination of the Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Trust Agreement, except
that no Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of
negligence or willful misconduct with respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement.
No Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6.
The Depositor and any Trustee may engage in or possess an interest in
other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust and
the Holders of Trust Securities shall have no rights by virtue of this Trust
Agreement in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. Neither the
Depositor, nor any Trustee, shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and the
Depositor or any Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Trustee may engage or be
interested in any financial or other transaction with the Depositor or any
Affiliate of the Depositor, or may act as depository for, trustee or agent for,
or act on any committee or body of holders of, securities or other obligations
of the Depositor or its Affiliates.
SECTION 8.7. Corporate Property Trustee Required; Eligibility of
Trustees.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most
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recent report of condition so published. If at any time the Property Trustee
with respect to the Trust Securities shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
SECTION 8.8. Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
(b) The Guarantee Agreement and the Indenture shall be deemed to be
specifically described in this Trust Agreement for the purposes of clause (i) of
the first provision contained in Section 310(b) of the Trust Indenture Act.
SECTION 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor and the Administrative
Trustees, by agreed action of the majority of such Trustees, shall have power to
appoint, and upon the written request of the Administrative Trustees, the
Depositor shall for such purpose join with the Administrative Trustees in the
execution, delivery, and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Property Trustee
either to act as co-trustee, jointly with the Property Trustee, of all or any
part of such Trust Property, or to the extent required by law to act as separate
trustee of any such property, in either case with such powers as may be provided
in the instrument of appointment, and to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section. If the Depositor
does not join in such appointment within 15 days after the receipt by it of a
request so to do, or in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee alone shall have power to make such
appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall either be (i) a natural person who is at least 21 years of age and
a resident of the United States or (ii) a legal entity
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with its principal place of business in the United States that shall act through
one or more persons authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder shall be exercised
solely by such Trustees and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section, and, in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the concurrence of
the Depositor. Upon the written request of the Property Trustee, the Depositor
shall join with the Property Trustee in the execution, delivery and performance
of all instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any other
trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
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SECTION 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (the "Relevant Trustee") and
no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time by giving written notice thereof to the Securityholders.
If the instrument of acceptance by the successor Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 30 days after
the giving of such notice of resignation, the Relevant Trustee may petition, at
the expense of the Trust, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Holder of the
Common Securities. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority (based on
Liquidation Amounts) of the Outstanding Preferred Securities, delivered to the
Relevant Trustee (in its individual capacity and on behalf of the Trust). An
Administrative Trustee may be removed by the Holder of the Common Securities at
any time.
If any Trustee shall resign, be removed or become incapable of acting
as Trustee, or if a vacancy shall occur in the office of any Trustee for any
cause, at a time when no Debenture Event of Default shall have occurred and be
continuing, the Holder of the Common Securities, by Act of the Holder of the
Common Securities delivered to the retiring Trustee, shall promptly appoint a
successor Trustee or Trustees, and the retiring Trustee shall comply with the
applicable requirements of Section 8.11. If the Property Trustee or the Delaware
Trustee shall resign, be removed or become incapable of continuing to act as the
Property Trustee or the Delaware Trustee, as the case may be, at a time when a
Debenture Event of Default shall have occurred and be continuing, the Holders of
Preferred Securities, by Act of the Securityholders of a majority (based on
Liquidation Amounts) of the Outstanding Preferred Securities delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee
or Trustees, and such successor Trustee shall comply with the applicable
requirements of Section 8.11. If an Administrative Trustee shall resign, be
removed or become incapable of acting as Administrative Trustee, at a time when
a Debenture Event of Default shall have occurred and be continuing, the Holder
of the Common Securities by Act of the Common Securityholder delivered to the
Administrative Trustee shall promptly appoint a successor Administrative Trustee
or Administrative Trustees and such successor Administrative Trustee or Trustees
shall comply with the applicable requirements of Section 8.11. If no successor
Relevant Trustee shall have been so appointed by the Holder of the Common
Securities or the Holders of Preferred Securities and accepted appointment in
the manner required by Section 8.11, any Securityholder who has been a
Securityholder of Trust Securities for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
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The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.8 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of the remaining Administrative Trustees
if there are at least two of them or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees or Delaware Trustee, as the case may be, set forth
in Section 8.7).
SECTION 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee such
successor Trustee so appointed shall execute, acknowledge and deliver to the
Trust and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Depositor or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and if the Property Trustee is the
resigning Trustee shall duly assign, transfer and deliver to the successor
Trustee all property and money held by such retiring Property Trustee hereunder.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee with respect
to the Trust Securities shall execute and deliver an amendment hereto wherein
each successor Relevant Trustee shall accept such appointment and which (a)
shall contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust and (b) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the Trust by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant
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Trustee all such rights, powers and trusts referred to in the first or second
preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Property Trustee or the Delaware Trustee
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which such
Relevant Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of such Relevant Trustee, shall
be the successor of such Relevant Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
SECTION 8.13. Preferential Collection of Claims Against Depositor or
Trust.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Trust Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Trust Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Property Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement
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adjustment or compensation affecting the Trust Securities or the rights of any
Holder thereof or to authorize the Property Trustee to vote in respect of the
claim of any Holder in any such proceeding.
SECTION 8.14. Reports by Property Trustee.
(a) Not later than ________ __ of each year commencing with ________
__, 1997, the Property Trustee shall transmit to all Securityholders in
accordance with Section 10.8, and to the Depositor, a brief report dated as of
the immediately preceding December 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if
to the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with
all of its obligations under this Trust Agreement during the
twelve-month period (or, in the case of the initial report, the period
since the Closing Date) ending with such December 31 or, if the
Property Trustee has not complied in any material respect with such
obligations, a description of such noncompliance; and
(iii) any change in the property and funds in its possession
as Property Trustee since the date of its last report and any action
taken by the Property Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to Securityholders
such reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with each national stock exchange,
the Nasdaq Stock Market or such other interdealer quotation system or
self-regulatory organization upon which the Trust Securities are listed or
traded, with the Commission and with the Depositor.
SECTION 8.15. Reports to the Property Trustee.
The Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act.
SECTION 8.16. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314 (c) of the Trust
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Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act shall be given in the
form of an Officers' Certificate.
SECTION 8.17. Number of Trustees.
(a) The number of Trustees shall be four, provided that the Holder of
all of the Common Securities by written instrument may increase or decrease the
number of Administrative Trustees. The Property Trustee and the Delaware Trustee
may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
SECTION 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.7(a), including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of this Trust Agreement, as set forth herein.
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ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination Upon Expiration Date.
Unless earlier terminated, the Trust shall automatically terminate on
December 31, 2042 (the "Expiration Date"), following the distribution of the
Trust Property in accordance with Section 9.4.
SECTION 9.2. Early Termination.
The first to occur of any of the following events is an "Early
Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from the Depositor at
any time to terminate the Trust and distribute Debentures to Securityholders in
exchange for the Preferred Securities (which direction is optional and wholly
within the discretion of the Depositor);
(c) the redemption of all of the Preferred Securities in connection
with the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
SECTION 9.3. Termination.
The respective obligations and responsibilities of the Trustees and the
Trust created and continued hereby shall terminate upon the latest to occur of
the following: (a) the distribution by the Property Trustee to Securityholders
upon the liquidation of the Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2, of all
amounts required to be distributed hereunder upon the final payment of the Trust
Securities; (b) the payment of any expenses owed by the Trust; and (c) the
discharge of all administrative duties of the Administrative Trustees, including
the performance of any tax reporting obligations with respect to the Trust or
the Securityholders.
SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d)
of Section 9.2 occurs or upon the Expiration Date, the Trust shall be liquidated
by the Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Securityholder a Like Amount of Debentures,
subject to Section 9.4(d). Notice of liquidation shall be given by the Property
Trustee by first-class mail, postage prepaid mailed not later than 30 nor more
than 60 days prior to the Liquidation Date to each
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Holder of Trust Securities at such Holder's address appearing in the Securities
Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures or the right to receive a
Liquidation Distribution, as applicable; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Debentures, or if Section 9.4(d) applies receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect
the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Property Trustee, either itself acting as exchange agent or
through the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of Debentures
in exchange for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will be
issued to holders of Trust Securities Certificates, upon surrender of such
certificates to the Administrative Trustees or their agent for exchange, (iii)
the Depositor shall use its best efforts to have the Debentures listed on the
New York Stock Exchange or on such other exchange, interdealer quotation system
or self-regulatory organization as the Preferred Securities are then listed,
(iv) any Trust Securities Certificates not so surrendered for exchange will be
deemed to represent a Like Amount of Debentures, accruing interest at the rate
provided for in the Debentures from the last Distribution Date on which a
Distribution was made on such Trust Securities Certificates until such
certificates are so surrendered (and until such certificates are so surrendered,
no payments of interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Debentures) and (v) all rights of
Securityholders holding Trust Securities will cease, except the right of such
Securityholders to receive Debentures upon surrender of Trust Securities
Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 9.4, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debentures in the
manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up or terminated, by the Property Trustee in such manner as the
Property Trustee determines. In such event, on the date of the dissolution,
winding-up or other termination of the Trust, Securityholders will be entitled
to receive out of the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to the Liquidation Amount per Trust
Security plus accumulated and unpaid Distributions
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thereon to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such dissolution, winding up or termination, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The holder of the Common Securities will be entitled
to receive Liquidation Distributions upon any such dissolution, winding-up or
termination pro rata (determined as aforesaid) with Holders of Preferred
Securities, except that, if a Debenture Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities.
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of
the Trust.
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except pursuant
to this Section 9.5. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Holders of the Preferred
Securities, the Property Trustee or the Delaware Trustee, the Trust may merge
with or into, consolidate, amalgamate, or be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to a trust
organized as such under the laws of any State; provided, that (i) such successor
entity either (a) expressly assumes all of the obligations of the Trust with
respect to the Preferred Securities or (b) substitutes for the Preferred
Securities other securities having substantially the same terms as the Preferred
Securities (the "Successor Securities") so long as the Successor Securities rank
the same as the Preferred Securities rank in priority with respect to
distributions and payments upon liquidation, redemption and otherwise, (ii) the
Depositor expressly appoints a trustee of such successor entity possessing the
same powers and duties as the Property Trustee as the holder of the Debentures,
(iii) the Successor Securities are listed or traded, or any Successor Securities
will be listed upon notification of issuance, on any national securities
exchange or other organization on which the Preferred Securities are then listed
or traded, if any, (iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred Securities (including
any Successor Securities) to be downgraded by any nationally recognized
statistical rating organization, (v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the Preferred Securities (including
any Successor Securities) in any material respect, (vi) such successor entity
has a purpose identical to that of the Trust, (vii) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Depositor has received an Opinion of Counsel to the effect that (a) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of the
Preferred Securities (including any Successor Securities) in any material
respect, and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an investment company under the 1940 Act
and (viii) the Depositor owns all of the Common Securities of such successor
entity and guarantees the obligations of such successor entity under the
Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
holders of 100% in Liquidation Amount of the Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or lease
its properties and assets substantially as
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an entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Trust or the successor entity to be classified as other than a grantor trust for
United States Federal income tax purposes.
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders.
The death or incapacity of any person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or any
Securityholder for such person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
SECTION 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the
Property Trustee, the Administrative Trustees and the Depositor, without the
consent of any Securityholders, (i) to cure any ambiguity, correct or supplement
any provision herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Trust Agreement, which shall not be inconsistent with the other
provisions of this Trust Agreement, or (ii) to modify, eliminate or add to any
provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Trust will be classified for United States Federal income tax
purposes as a grantor trust at all times that any Trust Securities are
outstanding or to ensure that the Trust will not be required to register as an
investment company under the 1940 Act; provided, however, that in the case of
clause (i), such action shall not adversely affect in any material respect the
interests of any Securityholder, and any amendments of this Trust Agreement
shall become effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Trustees and the Depositor with (i) the
consent of Trust Securityholders representing not less than a majority (based
upon Liquidation Amounts) of the Trust Securities then Outstanding and (ii)
receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a grantor trust for
United States Federal income tax purposes or the Trust's exemption from status
of an investment company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution
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required to be made in respect of the Trust Securities as of a specified date or
(ii) restrict the right of a Securityholder to institute suit for the
enforcement of any such payment on or after such date; notwithstanding any other
provision herein, without the unanimous consent of the Securityholders (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an investment company under the 1940 Act or fail or cease to be
classified as a grantor trust for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor, this Trust Agreement may not be amended in
a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects its
own rights, duties or immunities under this Trust Agreement. The Property
Trustee shall be entitled to receive an Opinion of Counsel and an Officers'
Certificate stating that any amendment to this Trust Agreement is in compliance
with this Trust Agreement.
SECTION 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates 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.
SECTION 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE.
51
<PAGE> 59
SECTION 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day that is a Business Day (except as
otherwise provided in Sections 4.1(a) and 4.2(d)), with the same force and
effect as though made on the date fixed for such payment, and no interest shall
accrue thereon for the period after such date.
SECTION 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant Trustee,
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article Eight of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
SECTION 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon any Securityholder or the Depositor may be given or served in writing
by deposit thereof, first-class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (a) in the case of
a Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Depositor, to Owens Corning,
Owens Corning World Headquarters, Toledo, Ohio 43659, Attention:
_____________facsimile no.: (___) ___-____. Any notice to Preferred
Securityholders shall also be given to such owners as have, within two years
preceding the giving of such notice, filed their names and addresses with the
Property Trustee for that purpose. Such notice, demand or other communication to
or upon a Securityholder shall be deemed to have been sufficiently given or
made, for all purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee, the Delaware Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is published
by the Trust) as follows: (a) with respect to the Property Trustee to Wilmington
Trust Company, Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890, facsimile (302) 651-8882, Attention: Corporate Trust
Administration; (b) with respect to the Delaware Trustee, to Wilmington Trust
Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware
19890, facsimile (302) 651-8882, Attention: Corporate Trust Administration; and
(c) with respect to the Administrative Trustees, to them at the address above
for notices to the
52
<PAGE> 60
Depositor, marked "Attention Administrative Trustees of Owens Corning Capital
III." Such notice, demand or other communication to or upon the Trust or the
Property Trustee shall be deemed to have been sufficiently given or made only
upon actual receipt of the writing by the Trust or the Property Trustee.
SECTION 10.9. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Securityholders, that at the expense
of the Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Trust Agreement by any
of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so modified
or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
53
<PAGE> 61
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee and
Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
OWENS CORNING
By:
----------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Property Trustee
By:
----------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:
----------------------------
Name:
Title:
[INSERT NAME OF ADMINISTRATIVE TRUSTEE],
as Administrative Trustee
54
<PAGE> 62
----------------------------
[INSERT NAME OF ADMINISTRATIVE TRUSTEE],
as Administrative Trustee
55
<PAGE> 63
EXHIBIT A
CERTIFICATE OF TRUST
OF
OWENS CORNING CAPITAL III
THIS CERTIFICATE OF TRUST of Owens Corning Capital III (the "Trust"),
dated _______ __, 1997, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. (Section) 3801 et seq.).
1. Name. The name of the business trust being formed hereby is Owens
Corning Capital III.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890.
3. Effective Date. This Certificate of Trust shall be effective as of
________ __, 199_.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
WILMINGTON TRUST COMPANY,
as Trustee
By:
-----------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee
By:
-----------------------------
Name:
Title:
<PAGE> 64
EXHIBIT B
[Form of Letter to Depository Trust Company]
<PAGE> 65
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NUMBER
NUMBER OF COMMON SECURITIES
C-1
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
OWENS CORNING CAPITAL III
____% COMMON SECURITIES
(LIQUIDATION AMOUNT $___ PER COMMON SECURITY)
Owens Corning Capital III, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that Owens Corning
(the "Holder") is the registered owner of ( ) common securities of the
Trust representing beneficial interests of the Trust and designated the ____%
Common Securities (liquidation amount $___ per Common Security) (the "Common
Securities"). In accordance with Section 5.10 of the Trust Agreement (as defined
below) the Common Securities are not transferable and any attempted transfer
hereof shall be void. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities are set
forth in, and this certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust dated as of , , as the
same may be amended from time to time (the "Trust Agreement") including the
designation of the terms of the Common Securities as set forth therein. The
Trust will furnish a copy of the Trust Agreement to the Holder without charge
upon written request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
<PAGE> 66
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this day of , .
OWENS CORNING CAPITAL III
By:
------------------------------
Name:
Administrative Trustee
-2-
<PAGE> 67
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of __________ __, 199_, between Owens Corning, a
Delaware corporation ("Owens Corning"), and Owens Corning Capital III, a
Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Debentures from Owens Corning and to issue and sell
____% [Cumulative Quarterly Income Preferred] [Capital] Securities (the
"Preferred Securities") with such powers, preferences and special rights and
restrictions as are set forth in the Amended and Restated Trust Agreement of the
Trust dated as of _______ __, 1997 as the same may be amended from time to time
(the "Trust Agreement");
WHEREAS, Owens Corning will directly or indirectly own all of the
Common Securities of the Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase Owens Corning hereby agrees shall benefit
Owens Corning and which purchase Owens Corning acknowledges will be made in
reliance upon the execution and delivery of this Agreement, Owens Corning and
Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. Guarantee by Owens Corning.
Subject to the terms and conditions hereof, Owens Corning hereby
irrevocably and unconditionally guarantees to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the "Beneficiaries") the
full payment, when and as due, of any and all Obligations (as hereinafter
defined) to such Beneficiaries. As used herein, "Obligations" means any costs,
expenses or liabilities of the Trust, other than obligations of the Trust to pay
to holders of any Preferred Securities or other similar interests in the Trust
the amounts due such holders pursuant to the terms of the Preferred Securities
or such other similar interests, as the case may be. This Agreement is intended
to be for the benefit of, and to be enforceable by, all such Beneficiaries,
whether or not such Beneficiaries have received notice hereof.
SECTION 1.2. Term of Agreement.
This Agreement shall terminate and be of no further force and effect
upon the later of (a) the date on which full payment has been made of all
amounts payable to all holders of all the Preferred Securities (whether upon
redemption, liquidation, exchange or otherwise) and (b) the date on which there
are no Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at any
time any holder of Preferred Securities
<PAGE> 68
or any Beneficiary must restore payment of any sums paid under the Preferred
Securities, under any Obligation, under the Guarantee Agreement dated the date
hereof by Owens Corning and Wilmington Trust Company, as guarantee trustee or
under this Agreement for any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
SECTION 1.3. Waiver of Notice.
Owens Corning hereby waives notice of acceptance of this Agreement and
of any Obligation to which it applies or may apply, and Owens Corning hereby
waives presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 1.4. No Impairment.
The obligations, covenants, agreements and duties of Owens Corning
under this Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, Owens Corning with respect to the happening of any of the
foregoing.
SECTION 1.5. Enforcement.
A Beneficiary may enforce this Agreement directly against Owens Corning
and Owens Corning waives any right or remedy to require that any action be
brought against the Trust or any other person or entity before proceeding
against Owens Corning.
SECTION 1.6. Subrogation.
Owens Corning shall be subrogated to all (if any) rights of the Trust
in respect of any amounts paid to the Beneficiaries by Owens Corning under this
Agreement; provided, however, that
-2-
<PAGE> 69
Owens Corning shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any rights which it may acquire by
way of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Agreement.
ARTICLE II
SECTION 2.1. Binding Effect.
All guarantees and agreements contained in this Agreement shall bind
the successors, assigns, receivers, trustees and representatives of Owens
Corning and shall inure to the benefit of the Beneficiaries.
SECTION 2.2. Amendment.
So long as there remains any Beneficiary or any Preferred Securities of
any series are outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the Preferred
Securities.
SECTION 2.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or by registered
or certified mail, addressed as follows (and if so given, shall be deemed given
when mailed or upon receipt of an answer-back, if sent by telex):
Owens Corning Capital III
c/o Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Facsimile No.: (302) 651-8882
Attention: Corporate Trust Administration
Owens Corning
Owens Corning World Headquarters
Toledo, Ohio 43659
Facsimile No.: (___) ___-____
Attention: _____________
SECTION 2.4. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
-3-
<PAGE> 70
THIS AGREEMENT is executed as of the day and year first above written.
OWENS CORNING
By:
-------------------------
Name:
Title:
OWENS CORNING CAPITAL III
By:
-------------------------
Name:
Administrative Trustee
-4-
<PAGE> 71
EXHIBIT E
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT--This
Preferred Security is a Global Certificate within the meaning of the Trust
Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York) to Owens Corning
Capital III or its agent for registration of transfer, exchange or payment, and
any Preferred Security issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of The Depository Trust
Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.]
CERTIFICATE NUMBER
NUMBER OF PREFERRED SECURITIES
P-
CUSIP NO.
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
OWENS CORNING CAPITAL III
____% [CUMULATIVE QUARTERLY INCOME PREFERRED] [CAPITAL] SECURITIES,
SERIES
(LIQUIDATION AMOUNT $____ PER SECURITY)
Owens Corning Capital III, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that (the
"Holder") is the registered owner of ( ) preferred securities of the
Trust representing an undivided beneficial interest in the assets of the Trust
and designated the Owens Corning Capital III ____% [Cumulative Quarterly Income
Preferred] [Capital] Securities, Series (liquidation amount $___ per Security)
(the "Preferred Securities"). The Preferred Securities are transferable on the
books and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer as
provided in Section 5.4 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the
<PAGE> 72
Preferred Securities are set forth in, and this certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of , 1997, as the same may be amended from time to time (the
"Trust Agreement") including the designation of the terms of Preferred
Securities as set forth therein. The Holder is entitled to the benefits of the
Guarantee Agreement entered into by Owens Corning, a Delaware corporation, and
Wilmington Trust Company, as guarantee trustee, dated as of _________ __, 1997,
(the "Guarantee"), to the extent provided therein. The Trust will furnish a copy
of the Trust Agreement and the Guarantee to the Holder without charge upon
written request to the Trust at its principal place of business or registered
office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this day of , .
OWENS CORNING CAPITAL III
By:
----------------------------
Name:
Administrative Trustee
-2-
<PAGE> 73
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: ________________
Signature: ___________________________________________________________________
(Sign exactly as your name appears on the other side of this
Preferred Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
-3-
<PAGE> 74
OPTION TO ELECT REPAYMENT
The undersigned registered Holder of this Preferred Security hereby
irrevocably exercises the option to require the Company to repay this Preferred
Security or portion thereof (which is $_____ or an integral multiple thereof)
below designated, in accordance with the terms of Section 4.3 of the Trust
Agreement, and directs that payment be made to the registered Holder hereof
unless a different name has been indicated below. Any amount required to be paid
by the undersigned on account of interest accompanies this Security.
<TABLE>
<S> <C>
Dated: __________, _____
Signature(s) must be guaranteed if Holder's Signature:
payment is to be made other than to and
in the name of the registered Holder.
-----------------------------
- --------------------------------
Signature Guarantee
Portion of Security to be repaid (in
Fill in for payment of Repayment Price integral multiples of $_____) if other
if to be made otherwise than to the than the full principal amount thereof:
registered Holder
-------------------------------
- --------------------------------
Name
- --------------------------------
Address
- --------------------------------
Please print name and address
(including zip code)
SOCIAL SECURITY OR TAXPAYER
IDENTIFICATION NUMBER
- ---------------------------------
</TABLE>
-4-
<PAGE> 1
Exhibit 4.11.3
Draft of March 31, 1997
- --------------------------------------------------------------------------------
GUARANTEE AGREEMENT
BETWEEN
OWENS CORNING
(AS GUARANTOR)
AND
WILMINGTON TRUST COMPANY
(AS TRUSTEE)
DATED AS OF
________ __, 1997
- --------------------------------------------------------------------------------
<PAGE> 2
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
- ------------------- -------------------
<S> <C>
310 (a)..........................................................4.1(a)
310 (b)..........................................................4.1(c), 2.8
310 (c)..........................................................Inapplicable
311 (a)..........................................................2.2(b)
311 (b)..........................................................2.2(b)
311 (c)..........................................................Inapplicable
312 (a)..........................................................2.2(a)
312 (b)..........................................................2.2(b)
313..............................................................2.3
314 (a)..........................................................2.4
314 (b)..........................................................Inapplicable
314 (c)..........................................................2.5
314 (d)..........................................................Inapplicable
314 (e)..........................................................1.1, 2.5, 3.2
314 (f)..........................................................2.1, 3.2
315 (a)..........................................................3.1(d)
315 (b)..........................................................2.7
315 (c)..........................................................3.1
315 (d)..........................................................3.1(d)
315 (e)..........................................................Inapplicable
316 (a)..........................................................1.1, 2.6, 5.4
316 (b)..........................................................5.3
316 (c)..........................................................8.2
317 (a)..........................................................Inapplicable
317 (b)..........................................................Inapplicable
318 (a)..........................................................2.1(b)
318 (b)..........................................................2.1
318 (c)..........................................................2.1(a)
<FN>
- ------------
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
</TABLE>
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
ARTICLE I.
DEFINITIONS
<S> <C> <C>
SECTION 1.1. Definitions.........................................................................1
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application. ..................................................4
SECTION 2.2. List of Holders. ...................................................................4
SECTION 2.3. Reports by the Guarantee Trustee. ..................................................4
SECTION 2.4. Periodic Reports to the Guarantee Trustee. .........................................4
SECTION 2.5. Evidence of Compliance with Conditions Precedent. ..................................5
SECTION 2.6. Events of Default; Waiver. .........................................................5
SECTION 2.7. Event of Default; Notice. ..........................................................5
SECTION 2.8. Conflicting Interests. .............................................................5
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee. ........................................5
SECTION 3.2. Certain Rights of Guarantee Trustee. ...............................................7
SECTION 3.3. Indemnity. .........................................................................8
ARTICLE IV.
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee: Eligibility. ....................................................9
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee Trustee. .....................9
</TABLE>
-i-
<PAGE> 4
<TABLE>
<CAPTION>
ARTICLE V.
GUARANTEE
<S> <C> <C>
SECTION 5.1. Guarantee. ........................................................................10
SECTION 5.2. Waiver of Notice and Demand. ......................................................10
SECTION 5.3. Obligations Not Affected. .........................................................10
SECTION 5.4. Rights of Holders. ................................................................11
SECTION 5.5. Guarantee of Payment...............................................................11
SECTION 5.6. Subrogation. ......................................................................11
SECTION 5.7. Independent Obligations. ..........................................................12
ARTICLE VI.
COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination. ....................................................................12
SECTION 6.2. Pari Passu Guarantees. ............................................................12
ARTICLE VII.
TERMINATION
SECTION 7.1. Termination. ......................................................................12
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.1. Successors and Assigns. ...........................................................13
SECTION 8.2. Amendments. .......................................................................13
SECTION 8.3. Notices. ..........................................................................13
SECTION 8.4. Benefit. ..........................................................................14
SECTION 8.5. Interpretation. ...................................................................14
SECTION 8.6. Governing Law. ....................................................................15
SECTION 8.7. Counterparts ......................................................................15
</TABLE>
-ii-
<PAGE> 5
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of _______ __, 1997 is executed and
delivered by OWENS CORNING, a Delaware corporation (the "Guarantor") having its
principal office at Owens Corning World Headquarters, Toledo, Ohio 43659, and
WILMINGTON TRUST COMPANY, a banking corporation duly organized and existing
under the laws of the State of Delaware, as trustee (the "Guarantee Trustee"),
for the benefit of the Holders (as defined herein) from time to time of the
Preferred Securities (as defined herein) of Owens Corning Capital III, a
Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of
________ __, 1997 (the "Trust Agreement"), among the Guarantor, as Depositor,
the Property Trustee and the Delaware Trustee named therein and the Holders from
time to time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing $___________ aggregate Liquidation Amount (as defined in the
Trust Agreement) of its ____% Preferred Securities, Series __, Liquidation
Amount $__ per preferred security) (the "Preferred Securities") representing
preferred undivided beneficial interests in the assets of the Issuer and having
the terms set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities (as defined below), will be used to purchase the Debentures
(as defined in the Trust Agreement) of the Guarantor which will be deposited
with Wilmington Trust Company, as Property Trustee under the Trust Agreement, as
trust assets; and
WHEREAS, as incentive for the Holders to purchase Preferred Securities the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth herein, to pay to the Holders of the Preferred Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders from time to time of the Preferred Securities.
ARTICLE I. DEFINITIONS
SECTION 1.1. Definitions.
As used in this Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings. Capitalized
or otherwise defined terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Trust Agreement as in effect on the date
hereof.
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"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Guarantor shall not be deemed to be an Affiliate of the Issuer. For the purposes
of this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Board of Directors" means either the board of directors of the Guarantor
or any committee of that board duly authorized to act hereunder.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Guarantee Agreement; provided, however, that,
except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default and shall not have cured such
default within 60 days after receipt of such notice.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid or
made by or on behalf of the Issuer: (i) any accumulated and unpaid Distributions
(as defined in the Trust Agreement) required to be paid on the Preferred
Securities, to the extent the Issuer shall have funds on hand available therefor
at such time, (ii) the redemption price (as specified in the Trust Agreement),
(the "Redemption Price"), with respect to any Preferred Securities called for
redemption by the Issuer, to the extent the Issuer shall have funds on hand
available therefor at such time, and (iii) upon a voluntary or involuntary
dissolution, winding-up or liquidation of the Issuer, unless Debentures are
distributed to the Holders, the lesser of (a) the aggregate of the Liquidation
Amount of $__ per Preferred Security plus accumulated and unpaid Distributions
on the Preferred Securities to the date of payment plus any accrued but unpaid
premium and (b) the amount of assets of the Issuer remaining available for
distribution to Holders on liquidation of the Issuer (in either case, the
"Liquidation Distribution").
"Guarantee Trustee" means Wilmington Trust Company, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement, and thereafter means each such
Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books and records of the
Issuer, of any Preferred Securities; provided, however, that in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor
or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as of _________
__, 1997, as supplemented and amended, between the Guarantor and Wilmington
Trust Company, as trustee.
"List of Holders" has the meaning specified in Section 2.2(a).
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"Majority in Liquidation Amount of the Preferred Securities" means, except
as provided by the Trust Indenture Act, a vote by the Holder(s), voting
separately as a class, of more than 50% of the Liquidation Amount of all then
Outstanding (as defined in the Trust Agreement) Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chairman or a Vice Chairman of the Board of Directors of such
Person or the President or a Vice President of such Person, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
such Person, and delivered to the Guarantee Trustee. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each officer, such
condition or covenant has been complied with.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
Senior Vice President, any Vice President, any Assistant Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any
Trust Officer or Assistant Trust Officer or any other officer of the Corporate
Trust Department of the Guarantee Trustee and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Agreement" has the meaning specified in the recitals to this
Guarantee Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
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ARTICLE II. TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.2. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the Guarantee
Trustee (a) semiannually, on or before _______ and _______ of each year, a list,
in such form as the Guarantee Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") as of a date not more than 15 days
prior to the delivery thereof, and (b) at such other times as the Guarantee
Trustee may request in writing, within 30 days after the receipt by the
Guarantor of any such request, a List of Holders as of a date not more than 15
days prior to the time such list is furnished, in each case to the extent such
information is in the possession or control of the Guarantor and is not
identical to a previously supplied list of Holders or has not otherwise been
received by the Guarantee Trustee in its capacity as such. The Guarantee Trustee
may destroy any List of Holders previously given to it on receipt of a new List
of Holders.
(b) The Guarantee Trustee shall comply with its obligations under Section
311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Guarantee Trustee.
Not later than _______ of each year, commencing _______ , 199_, the
Guarantee Trustee shall provide to the Holders such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Securities and
Exchange Commission and the Holders such documents, reports and information, if
any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
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SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
SECTION 2.6. Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Preferred Securities
may, by vote, on behalf of the Holders, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Guarantee Agreement, but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent therefrom.
SECTION 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an
Event of Default, transmit by mail, first class postage prepaid, to the Holders,
notices of all Events of Default known to the Guarantee Trustee, unless such
defaults have been cured before the giving of such notice, provided, that,
except in the case of a default in the payment of a Guarantee Payment, the
Guarantee Trustee shall be protected in withholding such notice if and so long
as the Board of Directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer charged with the administration of this
Guarantee Agreement shall have obtained written notice, of such Event of
Default.
SECTION 2.8. Conflicting Interests.
The Trust Agreement and the Indenture shall be deemed to be specifically
described in this Guarantee Agreement for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for the
benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee
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on acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, upon
acceptance by such Successor Guarantee Trustee of its appointment hereunder, and
such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Guarantee Agreement, and no implied covenants shall be read into this Guarantee
Agreement against the Guarantee Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6), the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to relieve
the Guarantee Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Guarantee
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions that
by any provision hereof or of the Trust Indenture Act are specifically
required to be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made;
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(iii) the Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in
Liquidation Amount of the Preferred Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Guarantee
Agreement or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document reasonably believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting to take any
action hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of such
request from the Guarantee Trustee, shall be promptly delivered by the
Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and
the written advice or opinion of such legal counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or opinion. Such legal
counsel may be legal counsel to the Guarantor or any of its Affiliates and
may be one of its employees. The Guarantee Trustee shall have the right at
any time to seek instructions concerning the administration of this
Guarantee Agreement from any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such Holder
shall have provided to the Guarantee Trustee such adequate security and
indemnity as would satisfy a reasonable person in the position of the
Guarantee Trustee, against
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the costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by the
Guarantee Trustee; provided that, nothing contained in this Section
3.2(a)(v) shall be taken to relieve the Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the rights
and powers vested in it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking any
other action hereunder, the Guarantee Trustee (A) may request instructions
from the Holders, (B) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (C)
shall be protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
SECTION 3.3. Indemnity.
The Guarantor agrees to indemnify the Guarantee Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without negligence or
bad faith on the part of the Guarantee Trustee, arising out of or in connection
with the acceptance or administration of this Guarantee Agreement, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The Guarantee Trustee will not claim or exact any lien or charge on
any Guarantee Payments as a result of any amount due to it under this Guarantee
Agreement.
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ARTICLE IV. GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee: Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least
$50,000,000, and shall be a corporation meeting the requirements of Section
310(a) of the Trust Indenture Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority, then, for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so
act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee
Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Guarantee Trustee and delivered to the
Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may
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thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a Successor Guarantee Trustee.
ARTICLE V. GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees, subject to Section
6.1, to pay in full to the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by or on behalf of the Issuer), as and when due,
regardless of any defense, right of set-off or counterclaim which the Issuer may
have or assert other than the defense of payment. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders. The Guarantor shall notify the Guarantee Trustee of any
such payment.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Guarantee Agreement
and of any liability to which it applies or may apply, presentment, demand for
payment, any right to require a proceeding first against the Guarantee Trustee,
Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this Guarantee Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period on
the Debentures as provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
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(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain the
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders not less than a Majority
in Liquidation Amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of this Guarantee Agreement or exercising any
trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding directly against
the Guarantor to enforce its rights under this Guarantee Agreement, without
first instituting a legal proceeding against the Guarantee Trustee, the Issuer
or any other Person.
SECTION 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts theretofore paid
by the Issuer) or upon distribution of Debentures to Holders as provided in the
Trust Agreement.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement and shall have the right to waive
payment by the Issuer pursuant to Section 5.1; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Guarantee Agreement, if, at the time of any
such payment, any amounts are due and unpaid under this Guarantee Agreement. If
any amount shall be paid to the Guarantor in violation of the preceding
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sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
SECTION 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Preferred Securities and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI. COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination.
The obligations of the Guarantor under this Guarantee Agreement will
constitute unsecured obligations of the Guarantor and will rank subordinate and
junior in right of payment to all Senior Debt (as defined in the Indenture) to
the extent and in the manner set forth in the Indenture. The obligations of the
Guarantor under this Guarantee Agreement do not constitute Senior Debt (as
defined in the Indenture).
SECTION 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall rank
pari passu with the obligations of the Guarantor under (i) any similar guarantee
agreements issued by the Guarantor on behalf of the holders of preferred or
capital securities issued by any Owens Trust (as defined in the Indenture), (ii)
the Indenture and the Securities (as defined therein) issued thereunder, and
(iii) any other security, guarantee or other agreement or obligation that is
expressly stated to rank pari passu with the obligations of the Guarantor under
this Guarantee Agreement or with any obligation that ranks pari passu with the
obligations of the Guarantor under this Guarantee Agreement.
ARTICLE VII. TERMINATION
SECTION 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon (i) full payment of the Redemption Price of all Preferred
Securities, (ii) the distribution of Debentures to the Holders in exchange for
all of the Preferred Securities or (iii) full payment of the amounts payable in
accordance with the Trust Agreement upon liquidation of the Issuer.
Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
must repay any sums paid with respect to Preferred Securities or this Guarantee
Agreement.
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ARTICLE VIII. MISCELLANEOUS
SECTION 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article VIII of the
Indenture and pursuant to which the successor or assignee agrees in writing to
perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder.
SECTION 8.2. Amendments.
Except with respect to any changes which do not adversely affect the rights
of the Holders in any material respect (in which case no consent of the Holders
will be required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than a Majority in Liquidation Amount of the
Preferred Securities. The provisions of Article VI of the Trust Agreement
concerning meetings of the Holders shall apply to the giving of such approval.
SECTION 8.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied (confirmed by delivery of the original) or
mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such other
address, facsimile number or to the attention of such other Person as the
Guarantor may give notice to the Holders:
Owens Corning
Owens Corning World Headquarters
Toledo, Ohio 43659
Facsimile No.: ___-___-____
Attention: __________
(b) if given to the Guarantee Trustee or Issuer, in care of the Guarantee
Trustee, at the Issuer's (and the Guarantee Trustee's) address set forth below
or such other address as the Guarantee Trustee on behalf of the Issuer may give
notice to the Holders:
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<PAGE> 18
Owens Capital I
c/o Owens Corning
Owens Corning World Headquarters
Toledo, Ohio 43659
Facsimile No.: ___-___-____
Attention: ______________
and:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Facsimile No.: (302) 651-8882
Attention: Corporate Trust Administration
(c) if given to any Holder, at the address set forth on the books and
records of the Issuer.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and is
not separately transferable from the Preferred Securities.
SECTION 8.5. Interpretation.
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined in
the preamble hereto have the respective meanings assigned to them in Section
1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections are
to Articles and Sections of this Guarantee Agreement unless otherwise specified;
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<PAGE> 19
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include the
masculine, feminine and neuter genders.
SECTION 8.6. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICT OF LAW PRINCIPLES THEREOF.
SECTION 8.7. Counterparts
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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<PAGE> 20
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
OWENS CORNING
By:
-------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY
as Guarantee Trustee
By:
-------------------------------
Name:
Title:
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<PAGE> 21
STATE OF )
) SS.:
COUNTY OF )
On the _____ day of __________, 1997, before me personally
came ___________________________, to me known, who, being by me duly sworn, did
depose and say that [he -- she] is
___________________________________________________ of Owens Corning, one of the
corporations described in and which executed the foregoing instrument; that [he
- -- she] knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that [he -- she] signed [his -- her]
name thereto by like authority.
------------------------------
STATE OF )
) SS.:
COUNTY OF )
On the _____ day of __________, 1997, before me personally
came ___________________________, to me known, who, being by me duly sworn, did
depose and say that [he -- she] is
___________________________________________________ of Wilmington Trust Company,
one of the corporations described in and which executed the foregoing
instrument; that [he -- she] knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that [he -- she]
signed [his -- her] name thereto by like authority.
------------------------------
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<PAGE> 1
Exhibit 4.12.1
Draft of March 31, 1997
- --------------------------------------------------------------------------------
OWENS CORNING
TO
WILMINGTON TRUST COMPANY
TRUSTEE
-------------------------------------------
JUNIOR SUBORDINATED INDENTURE
DATED AS OF _______ __, 1997
-------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
OWENS CORNING
Reconciliation and tie between the Trust Indenture Act of 1939 (including
cross-references to provisions of Sections 310 to and including 317 which,
pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended by the
Trust Reform Act of 1990, are a part of and govern the Indenture whether or not
physically contained therein) and the Junior Subordinated Indenture, dated as of
_______ __, 1997.
<TABLE>
<CAPTION>
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
- ----------- -------
<S> <C> <C>
Section 310 (a)(1), (2) and (5)................................................................6.9
(a)(3).............................................................................Not Applicable
(a)(4).............................................................................Not Applicable
(b)................................................................................6.8
...................................................................................6.10
(c)................................................................................Not Applicable
Section 311 (a)................................................................................6.13(a)
(b)................................................................................6.13(b)
(b)(2).............................................................................7.3(a)(2)
...................................................................................7.3(a)(2)
Section 312 (a)................................................................................7.1
...................................................................................7.2(a)
(b)................................................................................7.2(b)
(c)................................................................................7.2(c)
Section 313 (a)................................................................................7.3(a)
(b)................................................................................7.3(b)
(c)................................................................................7.3(a), 7.3(b)
(d)................................................................................7.3(c)
Section 314 (a)(1), (2) and (3)................................................................7.4
(a)(4).............................................................................10.5
(b)................................................................................Not Applicable
(c)(1).............................................................................1.2
(c)(2).............................................................................1.2
(c)(3).............................................................................Not Applicable
(d)................................................................................Not Applicable
(e)................................................................................1.2
(f)................................................................................Not Applicable
Section 315 (a)................................................................................6.1(a)
(b)................................................................................6.2
...................................................................................7.3(a)(6)
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
(c)................................................................................6.1(b)
(d)................................................................................6.1(c)
(d) (1)............................................................................6.1(a)(1)
(d) (2)............................................................................6.1(c)(2)
(d) (3)............................................................................6.1(c)(3)
(e)................................................................................5.14
Section 316 (a)................................................................................1.1
(a) (1)(A).........................................................................5.12
(a) (1)(B).........................................................................5.13
(a) (2)............................................................................Not Applicable
(b)................................................................................5.8
(c)................................................................................1.4(f)
Section 317 (a) (1)............................................................................5.3
(a) (2)............................................................................5.4
(b)................................................................................10.3
Section 318 (a)................................................................................1.7
- ----------
<FN>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Junior
Subordinated Indenture.
</TABLE>
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions. .................................................................................1
SECTION 1.2. Compliance Certificate and Opinions. .........................................................9
SECTION 1.3. Forms of Documents Delivered to Trustee. .....................................................9
SECTION 1.4. Acts of Holders. ............................................................................10
SECTION 1.5. Notices, Etc. to Trustee and Company. .......................................................12
SECTION 1.6. Notice to Holders; Waiver. ..................................................................12
SECTION 1.7. Conflict with Trust Indenture Act. ..........................................................13
SECTION 1.8. Effect of Headings and Table of Contents. ...................................................13
SECTION 1.9. Successors and Assigns. .....................................................................13
SECTION 1.10. Separability Clause. ........................................................................13
SECTION 1.11 Benefits of Indenture. ......................................................................13
SECTION 1.12. Governing Law. ..............................................................................13
SECTION 1.13. Non-Business Days. ..........................................................................13
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally. ............................................................................14
SECTION 2.2. Form of Face of Security. ...................................................................14
SECTION 2.3. Form of Reverse of Security. ................................................................17
SECTION 2.4. Additional Provisions Required in Global Security. ..........................................20
SECTION 2.5. Form of Trustee's Certificate of Authentication. ............................................21
ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms. ............................................................................21
SECTION 3.2. Denominations. ..............................................................................23
SECTION 3.3. Execution, Authentication, Delivery and Dating. .............................................24
SECTION 3.4. Temporary Securities. .......................................................................25
SECTION 3.5. Registration, Transfer and Exchange. ........................................................25
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities. ...........................................27
</TABLE>
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<TABLE>
<S> <C> <C>
SECTION 3.7. Payment of Interest; Interest Rights Preserved. .............................................28
SECTION 3.8. Persons Deemed Owners. ......................................................................29
SECTION 3.9. Cancellation. ...............................................................................29
SECTION 3.10. Computation of Interest. ....................................................................29
SECTION 3.11. Deferrals of Interest Payment Dates. ........................................................30
SECTION 3.12. Right of Set-Off. ...........................................................................31
SECTION 3.13. Agreed Tax Treatment. .......................................................................31
SECTION 3.14. Shortening or Extension of Stated Maturity...................................................31
SECTION 3.15. CUSIP Numbers. ..............................................................................31
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture. ....................................................32
SECTION 4.2. Application of Trust Money. .................................................................33
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default. ..........................................................................33
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment. .........................................34
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee. ............................35
SECTION 5.4. Trustee May File Proofs of Claim. ...........................................................36
SECTION 5.5. Trustee May Enforce Claim Without Possession of Securities. .................................37
SECTION 5.6. Application of Money Collected. .............................................................37
SECTION 5.7. Limitation on Suits. ........................................................................37
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest; Direct Action by Holders of Preferred Securities. .............................38
SECTION 5.9. Restoration of Rights and Remedies. .........................................................38
SECTION 5.10. Rights and Remedies Cumulative. .............................................................39
SECTION 5.11. Delay or Omission Not Waiver. ...............................................................39
SECTION 5.12. Control by Holders. .........................................................................39
SECTION 5.13. Waiver of Past Defaults. ....................................................................39
SECTION 5.14. Undertaking for Costs. ......................................................................40
SECTION 5.15. Waiver of Usury, Stay or Extension Laws. ....................................................40
</TABLE>
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<TABLE>
<S> <C> <C>
ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities. ........................................................41
SECTION 6.2. Notice of Defaults. .........................................................................42
SECTION 6.3. Certain Rights of Trustee. ..................................................................42
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities. .....................................43
SECTION 6.5. May Hold Securities. ........................................................................43
SECTION 6.6. Money Held in Trust. ........................................................................43
SECTION 6.7. Compensation and Reimbursement. .............................................................43
SECTION 6.8. Disqualification; Conflicting Interests. ....................................................44
SECTION 6.9. Corporate Trustee Required; Eligibility. ....................................................44
SECTION 6.10. Resignation and Removal; Appointment of Successor. ..........................................45
SECTION 6.11. Acceptance of Appointment by Successor. .....................................................46
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business. ................................47
SECTION 6.13. Preferential Collection of Claims Against Company. ..........................................48
SECTION 6.14. Appointment of Authenticating Agent. ........................................................48
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders....................................49
SECTION 7.2. Preservation of Information, Communications to Holders. .....................................50
SECTION 7.3. Reports by Trustee. .........................................................................50
SECTION 7.4. Reports by Company. .........................................................................50
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms. .......................................51
SECTION 8.2. Successor Corporation Substituted. ..........................................................51
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures without Consent of Holders. .........................................52
SECTION 9.2. Supplemental Indentures with Consent of Holders. ............................................53
SECTION 9.3. Execution of Supplemental Indentures.........................................................55
</TABLE>
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<TABLE>
<S> <C> <C>
SECTION 9.4. Effect of Supplemental Indentures. ..........................................................55
SECTION 9.5. Conformity with Trust Indenture Act. ........................................................55
SECTION 9.6. Reference in Securities to Supplemental Indentures. .........................................55
ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest. .................................................55
SECTION 10.2. Maintenance of Office or Agency. ............................................................56
SECTION 10.3. Money for Security Payments to be Held in Trust. ............................................56
SECTION 10.4. Statement as to Compliance. .................................................................57
SECTION 10.5. Waiver of Certain Covenants. ................................................................58
SECTION 10.6. Additional Sums. ............................................................................58
SECTION 10.7. Additional Covenants. .......................................................................58
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Applicability of This Article. ..............................................................59
SECTION 11.2. Election to Redeem; Notice to Trustee. ......................................................59
SECTION 11.3. Selection of Securities to be Redeemed. .....................................................60
SECTION 11.4. Notice of Redemption. .......................................................................60
SECTION 11.5. Deposit of Redemption Price. ................................................................61
SECTION 11.6. Payment of Securities Called for Redemption. ................................................61
SECTION 11.7. Right of Redemption of Securities Initially Issued to an Owens Corning Trust. ...............62
ARTICLE XII
SINKING FUNDS
SECTION 12.1. Applicability of Article. ...................................................................62
SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities. ......................................62
SECTION 12.3. Redemption of Securities for Sinking Fund. ..................................................63
</TABLE>
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ARTICLE XIII
SUBORDINATION OF SECURITIES
<TABLE>
<S> <C> <C>
SECTION 13.1. Securities Subordinate to Senior Debt. ......................................................64
SECTION 13.2. Payment Over of Proceeds Upon Dissolution, Etc. .............................................65
SECTION 13.3. Prior Payment to Senior Debt Upon Acceleration of Securities. ...............................66
SECTION 13.4. No Payment When Senior Debt in Default. .....................................................66
SECTION 13.5. Payment Permitted If No Default. ............................................................67
SECTION 13.6. Subrogation to Rights of Holders of Senior Debt. ............................................67
SECTION 13.7. Provisions Solely to Define Relative Rights. ................................................68
SECTION 13.8. Trustee to Effectuate Subordination. ........................................................68
SECTION 13.9. No Waiver of Subordination Provisions. ......................................................68
SECTION 13.10. Notice to Trustee. ..........................................................................69
SECTION 13.11. Reliance on Judicial Order or Certificate of Liquidating Agent. .............................69
SECTION 13.12. Trustee Not Fiduciary for Holders of Senior Debt. ...........................................69
SECTION 13.13. Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights.............................................................................70
SECTION 13.14. Article Applicable to Paying Agents. ........................................................70
SECTION 13.15. Certain Conversions or Exchanges Deemed Payment. ............................................70
</TABLE>
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<PAGE> 9
JUNIOR SUBORDINATED INDENTURE, dated as of _______ __, 1997, between
OWENS CORNING, a Delaware corporation (hereinafter called the "Company") having
its principal office at Owens Corning World Headquarters, Toledo, Ohio 43659,
and WILMINGTON TRUST COMPANY, a banking corporation duly organized and existing
under the laws of the State of Delaware, as Trustee (hereinafter called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured junior
subordinated debt securities in series (hereinafter called the "Securities") of
substantially the tenor hereinafter provided, including, without limitation,
Securities issued to evidence loans made to the Company of the proceeds from the
issuance from time to time by one or more business trusts (each an "Owens
Corning Trust," and, collectively, the "Owens Corning Trusts") of preferred
trust interests in such Trusts (the "Preferred Securities") and common interests
in such Trusts (the "Common Securities" and, collectively with the Preferred
Securities, the "Trust Securities"), and to provide the terms and conditions
upon which the Securities are to be authenticated, issued and delivered.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company, in accordance with their and its terms, have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the
premises and the purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of any series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned to them in
this Article, and include the plural as well as the singular;
(2) All other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
<PAGE> 10
(3) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and the term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles which are generally accepted at the date or time of such computation;
provided, that when two or more principles are so generally accepted, it shall
mean that set of principles consistent with those in use by the Company; and
(4) The words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
"1996 Rights Agreement" means the Rights Agreement, dated December 12,
1996, of the Company.
"Act" when used with respect to any Holder has the meaning specified in
Section 1.4.
"Additional Interest" means the interest, if any, that shall accrue on any
interest on the Securities of any series the payment of which has not been made
on the applicable Interest Payment Date and which shall accrue at the rate per
annum specified or determined as specified in such Security.
"Additional Sums" has the meaning specified in Section 10.6.
"Additional Taxes" means the sum of any additional taxes, duties and other
governmental charges to which an Owens Corning Trust has become subject from
time to time as a result of a Tax Event.
"Administrative Trustee" means, in respect of any Owens Corning Trust, each
Person identified as an "Administrative Trustee" in the related Trust Agreement,
solely in such Person's capacity as Administrative Trustee of such Owens Corning
Trust under such Trust Agreement and not in such Person's individual capacity,
or any successor administrative trustee appointed as therein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, no Owens Corning Trust to
which Securities have been issued shall be deemed to be an Affiliate of the
Company. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Bank Agreement" means the Credit Agreement, dated as of November 2, 1993,
among the Company, the several financial institutions listed on Annex A thereof
and Credit Suisse, as Agent, as such Agreement may have been or may hereafter be
amended, renewed, extended, restated, supple mented or otherwise modified from
time to time, together with all other documents, instruments and agreements
executed in connection therewith.
"Board of Directors" means either the board of directors of the Company or
any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors, or such committee
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<PAGE> 11
of the Board of Directors or officers of the Company to which authority to act
on behalf of the Board of Directors has been delegated, and to be in full force
and effect on the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office of the Trustee, or, with respect to the Securities of a
series initially issued to an Owens Corning Trust, the principal office of the
Property Trustee under the related Trust Agreement, is closed for business.
"Change in 1940 Act Law" has the meaning specified in the definition of
Investment Company Event.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Common Securities" has the meaning specified in the first recital of this
Indenture.
"Common Stock" means the common stock, par value $.10 per share, of the
Company.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" and "Company Order" mean, respectively, the written
request or order signed in the name of the Company by the Chairman of the Board
of Directors, the Vice Chairman of the Board of Directors, its President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered.
"corporation" includes a corporation, association, company, joint-stock
company or business trust.
"Credit Agreement Indebtedness" has the meaning specified in Section 13.7.
"Debt" means, with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, promissory notes or other similar
instruments, including obligations so evidenced that are incurred in connection
with the acquisition of property, assets or businesses; (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person; (iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary
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<PAGE> 12
course of business); (v) every capital lease obligation of such Person; and (vi)
every obligation of the type referred to in clauses (i) through (v) of another
Person and all dividends of another Person the payment of which, in either case,
such Person has guaranteed or is responsible or liable, directly or indirectly,
as obligor or otherwise.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 3.1 with
respect to such series (or any successor thereto).
"Designated Senior Holder" means (i) with respect to the Bank Agreement,
the agent bank or such other Person designated as such thereunder and (ii) with
respect to any other Senior Debt, the Person designated as such in accordance
with the terms of the instrument evidencing such Senior Debt.
"Discount Security" means any security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
"Distributions," with respect to the Trust Securities issued by an Owens
Corning Trust, means amounts payable in respect of such Trust Securities as
provided in the related Trust Agreement and referred to therein as
"Distributions."
"Dollar" means the currency of the United States of America that, as at the
time of payment, is legal tender for the payment of public and private debts.
"Event of Default" unless otherwise specified in the supplemental indenture
creating a series of Securities has the meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.4.
"Extension Period" has the meaning specified in Section 3.11.
"Global Security" means a Security in the form prescribed in Section 2.4
evidencing all or part of a series of Securities, issued to the Depositary or
its nominee for such series, and registered in the name of such Depositary or
its nominee.
"Guarantee Agreement" means the Guarantee Agreement substantially in the
form attached hereto as Annex C, or substantially in such form as may be
specified as contemplated by Section 3.1 with respect to the Securities of any
series, in each case as amended from time to time.
"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to
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<PAGE> 13
the applicable provisions hereof and shall include the terms of each particular
series of Securities established as contemplated by Section 3.1.
"Interest Payment Date" means as to each series of Securities the Stated
Maturity of an installment of interest on such Securities.
"Investment Company Event" means with respect to any Owens Corning Trust
the occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body court, governmental
agency or regulatory authority (a "Change in 1940 Act Law") to the effect that
the applicable Owens Corning Trust is or will be considered an "investment
company" that is required to be registered under the Investment Company Act of
1940, as amended, which Change in 1940 Act Law becomes effective on or after the
date of original issuance of the applicable Preferred Securities.
"Junior Subordinated Payment" has the meaning specified in Section 13.2.
"Maturity" when used with respect to any Security means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Moody's" means Moody's Investors Service, Inc.
"Notice of Cure or Waiver of Senior Debt Default" has the meaning specified
in Section 13.9.
"Notice of Default" means a written notice of the kind specified in Section
5.1(3).
"Notice of Senior Debt Default" has the meaning specified in Section 13.9.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors, a Vice Chairman of the Board of Directors, the President or
a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee.
"Original Issue Date" means the date of issuance specified as such in each
Security.
"Outstanding" means, when used in reference to any Securities, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent in trust for the
Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other Securities
have been authenticated and delivered or which have been paid pursuant to
Section 3.6, unless proof satisfactory to the Trustee
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<PAGE> 14
is presented that any such Securities are held by Holders in whose hands such
Securities are valid, binding and legal obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor. Upon the written request of the
Trustee, the Company shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by the Company
to be owned or held by or for the account of the Company, or any other obligor
on the Securities or any Affiliate of the Company or such obligor, and, subject
to the provisions of Section 6.1, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
"Owens Corning Trust" has the meaning specified in the first recital of
this Indenture.
"Owens Guarantee" means the guarantee by the Company of distributions on
the Preferred Securities of an Owens Corning Trust to the extent provided in the
Guarantee Agreement.
"Paying Agent" means the Trustee or any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means, with respect to the Securities of any series, the
place or places where the principal of (and premium, if any) and interest on the
Securities of such series are payable pursuant to Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any security
authenticated and delivered under Section 3.6 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Preferred Securities" has the meaning specified in the first recital of
this Indenture.
"Proceeding" has the meaning specified in Section 13.2.
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"Property Trustee" means, in respect of any Owens Corning Trust, the
commercial bank or trust company identified as the "Property Trustee" in the
related Trust Agreement, solely in its capacity as Property Trustee of such
Owens Corning Trust under such Trust Agreement and not in its individual
capacity, or its successor in interest in such capacity, or any successor
property trustee appointed as therein provided.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
with respect to the Securities of a series means, unless otherwise provided
pursuant to Section 3.1 with respect to Securities of a series, (i) in the case
of Securities of a series represented by one or more Global Securities, the
Business Day next preceding such Interest Payment Date and (ii) in the case of
Securities of a series not represented by one or more Global Securities, the
date which is fifteen days next preceding such Interest Payment Date (whether or
not a Business Day).
"Responsible Officer" when used with respect to the Trustee means any
officer of the Trustee assigned by the Trustee from time to time to administer
its corporate trust matters.
"S&P" means Standard & Poor's Ratings Services.
"Securities" or "Security" means any debt securities or debt security, as
the case may be, authenticated and delivered under this Indenture.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.5.
"Senior Debt" means all indebtedness incurred, assumed or guaranteed,
directly or indirectly, by the Company, either before, on or after the date
hereof, without any limitation as to the amount or terms thereof, and whether
such indebtedness (including, but not limited to, interest on any such
indebtedness) arises or accrues before or after the commencement of any
bankruptcy, insolvency or receivership proceedings, (1) which arises for
borrowed money, securities sold, funds provided, assets or services purchased or
any other transaction whether or not in the ordinary course of business and
which is evidenced by a promissory note, bond, debenture, writing or other
instrument of indebtedness or reflected on the accounting records of the
Company as a payable (but expressly excluding (A) amounts owed for compensation
to employees, (B) obligations owing under judgments arising out of obligations
that are not indebtedness for borrowed money (other than any such obligations
arising from obligations which are otherwise Senior Debt), (C) any indebtedness
which by the terms of the instrument creating or evidencing the same is not
superior in right of payment to or is junior in right of payment to the
Securities, (D) any liability for federal, state, local or other taxes owed or
owing by the Company, (E) any liability in respect of any employee benefit plan
(including, without limitation, any liability to the Pension Benefit Guaranty
Corporation or any successor thereto), (F) indebtedness or obligations to a
Subsidiary of the Company) and (G) the Company's 6 1/2% Convertible Subordinated
Debentures due 2025; (2) for principal of (and premium, if any) and interest on
the Company's 11-3/4% Senior Subordinated Debentures due 2001, and all fees,
expenses, reimbursements, indemnities and other amounts payable thereunder; (3)
for principal of and interest on all loans and other extensions of credit under
the Bank Agreement and all fees, expenses, reimbursements, indemnities, premiums
and other amounts payable under the Bank Agreement; (4) for principal of (and
premium, if any) and interest on the Company's 9-1/2% Sinking Fund Debentures
due January 1, 2000, the Company's 12% Sinking Fund Debentures due May 1, 2000,
the Company's 5-3/8% Swiss Franc Bonds due November 26, 2000, the Company's
7-1/4% DM Bonds of 1985/2000, and the Company's Extendable Notes due December
15, 2005 and all fees, expenses, reimbursements, indemnities, premiums and other
amounts payable thereunder; (5) for any amount payable with respect to any
lease, conditional sale or installment sale agreement or other financing
instrument or agreement which in accordance with generally accepted accounting
principles is, at the date hereof or at the time the lease, conditional sale or
installment sale agreement or other financing instrument or agreement is entered
into, assumed or guaranteed, directly or indirectly, by the Company, required to
be reflected as a liability on the face of the balance sheet of the Company; (6)
for all principal of and interest on all loans and other extensions of credit
under any lines of credit, revolving credit agreements or promissory notes from
a bank or other financial institution (including, without limitation, any
letters of credit, bankers' acceptances, performance bonds and other credit
facilities under such borrowing arrangements), and all fees, expenses,
reimbursements, indemnities, premiums and other amounts payable under such
borrowing arrangements; (7) for any amounts payable in respect of any interest
rate exchange agreement, ceiling rate agreement, currency exchange agreement or
similar agreement; and (8) for renewals, deferrals, amendments, modifications,
supplements, extensions, or refunding of any of the indebtedness described in
clauses (1) through (7), inclusive, or evidences of indebtedness issued in
exchange for such Senior Debt.
"Senior Debt Default" has the meaning specified in Section 13.3.
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"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Special Event" with respect to any Owens Corning Trust means either a Tax
Event or an Investment Company Event.
"Stated Maturity" when used with respect to any Security or any installment
of principal thereof or interest thereon means the date specified pursuant to
the terms of such Security as the date on which the principal of such Security
or such installment of interest is due and payable, in the case of such
principal, as such date may be shortened or extended as provided pursuant to the
terms of such Security and this Indenture.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For purposes of this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
"Tax Event" means the receipt by an Owens Corning Trust of an Opinion of
Counsel (as defined in the relevant Owens Corning Trust Agreement) experienced
in such matters to the effect that, as a result of (i) any amendment to, or
change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, (ii) any amendment to or
change in an interpretation or application of such laws or regulations by any
legislative body, court, governmental agency or regulatory authority or (iii)
any interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the generally accepted position on
the date the applicable Preferred Securities are issued, which amendment or
change is effective or which interpretation pronouncement or decision is
announced on or after the date of issuance of the Preferred Securities of such
Owens Corning Trust, there is more than an insubstantial risk that (x) such
Owens Corning Trust is, or will be within 90 days of the date of such Opinion of
Counsel, subject to U.S. federal income tax with respect to income received or
accrued on the corresponding series of Securities issued by the Company to such
Owens Corning Trust, (y) interest payable by the Company on such corresponding
series of Securities is not, or within 90 days of the date of such Opinion of
Counsel, will not be, deductible by the Company, in whole or in part, for U.S.
federal income tax purposes or (z) such Owens Corning Trust is, or will be
within 90 days of the date of such Opinion of Counsel, subject to more than a de
minimis amount of other taxes, duties or other governmental charges.
"Trust Agreement" means the Trust Agreement substantially in the form
attached hereto as Annex A, as amended by the form of Amended and Restated Trust
Agreement substantially in the form attached hereto as Annex B, or substantially
in such form as may be specified as contemplated by Section 3.1 with respect to
the Securities of any series, in each case as amended from time to time.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture,
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and thereafter "Trustee" shall mean or include each Person who is then a Trustee
hereunder and, if at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of any series shall mean the Trustee with
respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbb), as amended and as in effect on the date as of this
Indenture, except as provided in Section 9.5.
"Trust Securities" has the meaning specified in the first recital of this
Indenture.
"Vice President" when used with respect to the Company, means any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
SECTION 1.2. Compliance Certificate and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent
(including covenants, compliance with which constitutes a condition precedent),
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent (including covenants compliance with which
constitute a condition precedent), if any, have been complied with, except that
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than the certificates provided
pursuant to Section 10.5) shall include:
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
SECTION 1.3. Forms of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion
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of, only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions, or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given to or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments is or are delivered to the
Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
the certificate of any notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a Person acting in other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any such instrument
or writing, or the authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems sufficient and in accordance
with such reasonable rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the Securities Register.
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(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done
or suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
(f) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date, provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 1.6.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.2, (iii) any request to institute
proceedings referred to in Section 5.7(2) or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date, provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
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Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day, provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 10.6, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 1.5. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, any holder of Preferred Securities or the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
office, or
(2) the Company by the Trustee, any Holder or any holder of Preferred
Securities shall be sufficient for every purpose (except as otherwise provided
in Section 5.1) hereunder if in writing and mailed, first class, postage
prepaid, to the Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at the address of such Holder as it appears in the Securities
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or
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after the event, and such waiver shall be the equivalent of such notice. Waivers
of notice by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon
such waiver.
SECTION 1.7. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture
Act through operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities 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.
SECTION 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors and
assigns, the holders of Senior Debt, the Holders of the Securities and, to the
extent expressly provided in Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and 9.2,
the holders of Preferred Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York without regard to conflict of
laws provisions.
SECTION 1.13. Non-Business Days.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or the Securities) payment of interest or
principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day (and no interest shall accrue for the period
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from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be, until such next succeeding Business Day) except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day (in each case with the same force
and effect as if made on the Interest Payment Date or Redemption Date or at the
Stated Maturity).
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities of each series and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article, or
in such other form or forms as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with applicable tax laws or the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.3 with respect to the authentication and
delivery of such Securities.
The Trustee's certificates of authentication shall be substantially in the
form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods, if required by any securities
exchange on which the Securities may be listed, on a steel engraved border or
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such securities.
SECTION 2.2. Form of Face of Security.
OWENS CORNING
(TITLE OF SECURITY)
No. $
OWENS CORNING, a corporation organized and existing under the laws of
Delaware (hereinafter called the "Company", which term includes any successor
corporation under the
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<PAGE> 23
Indenture hereinafter referred to), for value received, hereby promises to pay
to , or registered assigns, the principal sum of Dollars
[if the Security is a Global Security, then insert, if applicable --, or such
other principal amount as may be set forth in the records of the Securities
Registrar hereinafter referred to in accordance with the Indenture,] on ,
[if applicable, insert --; provided that the Company may
(i) shorten the Stated Maturity of the principal of this Security to a date not
earlier than __________, and (ii) extend the Stated Maturity of the principal of
this Security at any time on one or more occasions, subject to certain
conditions specified in Section 3.14 of the Indenture, but in no event to a date
later than __________]. The Company further promises to pay interest on said
principal sum from , or from the most recent interest payment date
(each such date, an "Interest Payment Date") on which interest has been paid or
duly provided for, [monthly] [quarterly] [semi-annually] [if applicable,
insert--(subject to deferral as set forth herein)] in arrears on [insert
applicable Interest Payment Dates] of each year, commencing ,
, at the rate of % per annum, until the principal hereof shall have
become due and payable, [if applicable, insert--, plus Additional Interest, if
any, at the rate of ___% per annum,] [if applicable, insert--and interest on any
overdue principal, premium, if any, or Additional Sums and (without duplication
and to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest [if applicable, insert -- (including
Additional Interest)] at the rate of % per annum, compounded [monthly]
[quarterly] [semi-annually]]. The amount of interest payable for any period less
than a full interest period shall be computed on the basis of twelve 30-day
months and a 360-day year. The amount of interest payable for any full interest
period shall be computed by dividing the rate per annum by [twelve] [four]
[two]. In the event that any date on which interest is payable on this Security
is not a Business Day, then a payment of the interest payable on such date will
be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay)[, except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case] with the same force and
effect as if made on the date the payment was originally payable. A "Business
Day" shall mean any day other than (i) a Saturday or Sunday, (ii) a day on which
banking institutions in The City of New York are authorized or required by law
or executive order to remain closed or (iii) a day on which the Corporate Trust
Office of the Trustee [if applicable, insert--, or the principal office of the
Property Trustee under the Trust Agreement hereinafter referred to for [Owens
Corning Capital ,]] is closed for business. The interest installment so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest installment, which shall be the
[[insert definition of Regular Record Dates]. Any such interest installment not
so punctually paid or duly provided for shall forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
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<PAGE> 24
[If applicable, insert--So long as no Event of Default has occurred and is
continuing, the Company shall have the right at any time during the term of this
Security to defer payment of interest on this Security, at any time or from time
to time, for up to consecutive [monthly] [quarterly] [semi-annual] interest
payment periods with respect to each deferral period (each an "Extension
Period"), during which Extension Periods the Company shall have the right to
make partial payments of interest on any Interest Payment Date, and at the end
of which the Company shall pay all interest then accrued and unpaid [if
applicable, insert-- (together with Additional Interest thereon to the extent
permitted by applicable law)]; provided, however, that no Extension Period shall
extend beyond the Stated Maturity of the principal of this Security; provided,
further, that during any such Extension Period, the Company shall not, and shall
not permit any Subsidiary of the Company to, (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Company's capital stock (other than as a result of a
reclassification of such capital stock or the exchange or conversion of one
class or series of capital stock for another class or series) or (ii) make any
payment of principal, interest or premium, if any, on or repay, repurchase or
redeem any debt securities of the Company that rank pari passu with or junior in
interest to this Security or make any guarantee payments with respect to the
foregoing (in each case other than (a) dividends or distributions in Common
Stock, (b) redemptions or purchases of any rights pursuant to the 1996 Rights
Agreement, or any successor to such Rights Agreement, and the declaration
thereunder of a dividend of rights in the future, (c) payments under any Owens
Guarantee, and (d) guarantee payments to the Company from a Subsidiary thereof).
Prior to the termination of any such Extension Period, the Company may further
extend the interest payment period, provided that no Extension Period shall
exceed _____ consecutive [months] [quarters] [semi-annual periods] or extend
beyond the Stated Maturity of the principal of this Security. Upon the
termination of any such Extension Period and upon the payment of all accrued and
unpaid interest and any Additional Interest then due, the Company may elect to
begin a new Extension Period, subject to the above requirements. No interest
shall be due and payable during an Extension Period except at the end thereof,
but each installment of interest that would otherwise have been due and payable
during an Extension Period shall bear Additional Interest (to the extent that
the payment of such interest shall be legally enforceable) at the rate of ___%
per annum, compounded [monthly] [quarterly] [semi-annually] and calculated as
set forth in the first paragraph of this Security, from the dates on which
amounts would otherwise have been due and payable until paid or made available
for payment. The Company shall give the Holder of this Security and the Trustee
notice of its election to begin any Extension Period at least one Business Day
prior to the next succeeding Interest Payment Date on which interest on this
Security would be payable but for such deferral [if applicable, insert--or, with
respect to the Securities issued to an Owens Corning Trust, so long as such
Securities are held by such Owens Corning Trust, prior to the earlier of (i) the
date on which Distributions on the Preferred Securities would have been payable
but for such deferral or (ii) the date the Administrative Trustees are required
to give notice to any securities exchange or other applicable self-regulatory
organization or to holders of such Preferred Securities of the record date or
the date such Distributions are payable, but in any event not less than one
Business Day prior to such record date].
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the United States, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
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<PAGE> 25
public and private debts [if applicable, insert--; provided, however, that at
the option of the Company payment of interest may be made (i) by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Securities Register or (ii) by wire transfer in immediately available funds at
such place and to such account as may be designated by the Person entitled
thereto as specified in the Securities Register].
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payments to the prior payment
in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such actions as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Debt, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
OWENS CORNING
By:
------------------------------
[President or Vice President]
Attest:
- -------------------------------------------
[Secretary or Assistant Secretary]
SECTION 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under a Junior Subordinated Indenture, dated as of _______ __, 1997
(herein called the "Indenture"), between the Company and Wilmington Trust
Company, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby
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<PAGE> 26
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Trustee, the Company and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert--, limited in aggregate principal amount
to $ ].
All terms used in this Security that are defined in the Indenture [if
applicable, insert--or in the Amended and Restated Trust Agreement, dated as of
_______ __, 1997, as amended (the "Trust Agreement"), for [Owens Corning Capital
,] among Owens Corning, as Depositor, and the Trustees named therein,
shall have the meanings assigned to them in the Indenture [if applicable,
insert--or the Trust Agreement, as the case may be].
[If applicable, insert--The Company may at any time, at its option, on or
after _________, ____, and subject to the terms and conditions of Article XI of
the Indenture, redeem this Security in whole at any time or in part from time to
time, without premium or penalty, at a redemption price equal to 100% of the
principal amount thereof plus accrued and unpaid interest [if applicable,
insert--including Additional Interest, if any] to the Redemption Date.]
[If applicable, insert--The Company may, at its option, at any time, in
whole (but not in part), upon the occurrence of a Special Event and within 90
days following the occurrence of such Special Event, redeem this Security,
subject to the provisions of Article XI of the Indenture, at a redemption price
equal to 100% of the principal amount thereof plus accrued and unpaid interest,
including Additional Interest, if any, to the Redemption Date.]
In the event of redemption of this Security in part only, a new Security or
Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Company with certain
conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or
indentures for the purpose of modifying in any manner the rights and obligations
of the Company and of the Holders of the Securities, with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of each series to be affected by such supplemental indenture. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
[If the Security is not a Discount Security, insert--As provided in and
subject to the provisions of the Indenture, if an Event of Default with respect
to the Securities of this series at the time
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<PAGE> 27
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of this series may declare the principal amount of all the Securities
of this series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), provided that, in the case of
the Securities of this series issued to an Owens Corning Trust, if upon an Event
of Default, the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Securities of this series fails to declare the principal of
all the Securities of this series to be immediately due and payable, the holders
of at least 25% in aggregate Liquidation Amount of the Preferred Securities of
such Owens Corning Trust then outstanding shall have such right by a notice in
writing to the Company and the Trustee; and upon any such declaration the
principal amount of and the accrued interest [if applicable, insert--(including
any Additional Interest)] on all the Securities of this series shall become
immediately due and payable, provided that the payment of principal and interest
[if applicable, insert--(including any Additional Interest)] on such Securities
shall remain subordinated to the extent provided in Article XIII of the
Indenture.]
[If the Security is a Discount Security, insert--As provided in and subject
to the provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than such portion
of the principal amount as may be specified in the terms of this series may
declare an amount of principal of the Securities of this series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), provided that, in the case of the Securities of this
series issued to an Owens Corning Trust, if upon an Event of Default, the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of this series fails to declare the principal of all the
Securities of this series to be immediately due and payable, the holders of at
least 25% in aggregate Liquidation Amount of the Preferred Securities of such
Owens Corning Trust then outstanding shall have such right by a notice in
writing to the Company and the Trustee. Such amount shall be equal to [insert
formula for determining the amount]. Upon any such declaration, such amount of
the principal of and the accrued interest [if applicable, insert-- (including
any Additional Interest)] on all the Securities of this series shall become
immediately due and payable, provided that the payment of principal and interest
[if applicable, insert-- (including any Additional Interest)] on such Securities
shall remain subordinated to the extent provided in Article XIII of the
Indenture. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and overdue interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and interest, if any, on this Security shall terminate.]
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest [if applicable, insert--(; or including any Additional Interest)] on
this Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Securities Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company maintained under Section 10.2 of the Indenture
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<PAGE> 28
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Securities of this series are issuable only in registered form without
coupons in denominations of $ and any integral multiple [if applicable,
insert--of $______] in excess thereof. As provided in the Indenture and subject
to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of such series
of a different authorized denomination, as requested by the Holder surrendering
the same.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States Federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES THEREOF.
SECTION 2.4. Additional Provisions Required in Global Security.
Any Global Security issued hereunder shall, in addition to the provisions
contained in Sections 2.2 and 2.3, bear a legend in substantially the following
form:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY."
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<PAGE> 29
SECTION 2.5. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within mentioned
Indenture.
Dated:
WILMINGTON TRUST COMPANY
as Trustee
By:
-------------------------------------
Authorized Signatory
ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of a series:
(a) the title of the securities of such series, which shall distinguish the
Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.6 and except for any
Securities which, pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder); provided, however, that the authorized
aggregate principal amount of such series may be increased above such amount by
a Board Resolution to such effect;
(c) the Stated Maturity or Maturities on which the principal of the
Securities of such series is payable or the method of determination thereof;
(d) the rate or rates, if any, at which the Securities of such series shall
bear interest, if any, the rate or rates and extent to which Additional
Interest, if any, shall be payable in respect of any Securities of such series,
the Interest Payment Dates on which such interest shall be payable, the right,
pursuant to Section 3.11 or as otherwise set forth therein, of the Company to
defer or extend an Interest Payment Date, and the Regular Record Date for the
interest payable on any Interest Payment Date or the method by which any of the
foregoing shall be determined;
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<PAGE> 30
(e) the place or places where the principal of (and premium, if any) and
interest on the Securities of such series shall be payable, the place or places
where the Securities of such series may be presented for registration of
transfer or exchange, and the place or places where notices and demands to or
upon the Company in respect of the Securities of such series may be made;
(f) the period or periods within or the date or dates on which, if any, the
price or prices at which and the terms and conditions upon which the Securities
of such series may be redeemed, in whole or in part, at the option of the
Company;
(g) the obligation or the right, if any, of the Company to redeem, repay or
purchase the Securities of such series pursuant to any sinking fund,
amortization or analogous provisions, or at the option of a Holder thereof, and
the period or periods within which, the price or prices at which, the currency
or currencies (including currency unit or units) in which and the other terms
and conditions upon which Securities of the series shall be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation;
(h) the denominations in which any Securities of such series shall be
issuable, if other than denominations of $25 and any integral multiple thereof;
(i) if other than Dollars, the currency or currencies (including currency
unit or units) in which the principal of (and premium, if any) and interest, if
any, on the Securities of the series shall be payable, or in which the
Securities of the series shall be denominated;
(j) the additions, modifications or deletions, if any, in the Events of
Default or covenants of the Company set forth herein with respect to the
Securities of such series;
(k) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof;
(l) the additions or changes, if any, to this Indenture with respect to the
Securities of such series as shall be necessary to permit or facilitate the
issuance of the Securities of such series in bearer form, registrable or not
registrable as to principal, and with or without interest coupons;
(m) any index or indices used to determine the amount of payments of
principal of and premium, if any, on the Securities of such series or the manner
in which such amounts will be determined;
(n) whether the Securities of the series, or any portion thereof, shall
initially be issuable in the form of a temporary Global Security representing
all or such portion of the Securities of such series and provisions for the
exchange of such temporary Global Security for definitive Securities of such
series;
(o) if applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in such case,
the respective Depositaries for such Global Securities, the form of any legend
or legends which shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 2.4 and any circumstances in addition to or in
lieu of
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<PAGE> 31
those set forth in Section 3.5 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer of
such Global Security in whole or in part may be registered, in the name or names
of Persons other than the Depositary for such Global Security or a nominee
thereof;
(p) the appointment of any Paying Agent or Agents for the Securities of
such series;
(q) the terms of any right to convert or exchange Securities of such series
into any other securities or property of the Company, and the additions or
changes, if any, to this Indenture with respect to the Securities of such series
to permit or facilitate such conversion or exchange;
(r) the form or forms of the Trust Agreement, Amended and Restated Trust
Agreement and Guarantee Agreement, if different from the forms attached hereto
as Annexes A, B and C, respectively;
(s) the relative degree, if any, to which the Securities of the series
shall be senior to or be subordinated to other series of Securities in right of
payment, whether such other series of Securities are Outstanding or not; and
(t) any other terms of the Securities of such series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided herein or in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior Debt as
provided in Article XIII.
Unless otherwise provided with respect to the Securities of any series, at
the option of the Company, interest on the Securities of any series that have
interest may be paid (i) by mailing a check to the address of the person
entitled thereto as such address shall appear in the Security Register or (ii)
by wire transfer in immediately available funds at such place and to such
account as may be designated by the person entitled thereto as specified in the
Security Register.
SECTION 3.2. Denominations.
The Securities of each series shall be in registered form without coupons
and shall be issuable in denominations of $25 and any integral multiple thereof,
unless otherwise specified as contemplated by Section 3.1.
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<PAGE> 32
SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced or impressed thereon and
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities. At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities. If the form or terms of
the Securities of the series have been established by or pursuant to one or more
Board Resolutions as permitted by Sections 2.1 and 3.1, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(1) if the form of such Securities has been established by or pursuant to
Board Resolution as permitted by Section 2.1, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or pursuant
to Board Resolution as permitted by Section 3.1, that such terms have been
established in conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each
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<PAGE> 33
Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to be
issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
officers, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder. Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any denomination, substantially of the tenor of the
definitive Securities of such series in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of such series to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary Securities shall
be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for that purpose
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more definitive Securities
of the same series, of any authorized denominations having the same Original
Issue Date and Stated Maturity and having the same terms as such temporary
Securities. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
SECTION 3.5. Registration, Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. Such register is herein sometimes referred to as the
"Securities Register." The Trustee is hereby appointed "Securities Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company designated for that purpose the Company shall execute,
and the Trustee shall authenticate and deliver,
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<PAGE> 34
in the name of the designated transferee or transferees, one or more new
Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated Maturity
and having the same terms.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated Maturity
and having the same terms, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any transfer or exchange of Securities shall be
the valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Every Security presented or surrendered for transfer or exchange shall (if
so required by the Company or the Securities Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Securities.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security
or a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and
no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or
a nominee thereof unless (A) such Depositary (i) has notified the Company
that it is unwilling or unable to continue as Depositary for such Global
Security or (ii) has ceased to be a clearing agency registered under the
Exchange Act at a time when the Depositary is required to be so registered to
act as depositary, in each case unless the Company has approved a successor
Depositary within 90 days, (B) there shall have occurred and be continuing an
Event of Default with respect to such Global Security, (C) the Company in its
sole discretion determines that such Global Security will be so exchangeable
or transferable or (D) there shall exist such circumstances, if any, in
addition to or in lieu of the foregoing as have been specified for this
purpose as contemplated by Section 3.1.
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(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued
in exchange for a Global Security or any portion thereof shall be registered
in such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 3.4, 3.6, 9.6 or
11.6 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section, (a) to issue, transfer or exchange any Security of
any series during a period beginning at the opening of business 15 days before
the day of selection for redemption of Securities pursuant to Article XI and
ending at the close of business on the day of mailing of notice of redemption or
(b) to transfer or exchange any Security so selected for redemption in whole or
in part, except, in the case of any Security to be redeemed in part, any portion
thereof not to be redeemed.
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with such
security or indemnity as may be required by the Company or the Trustee to save
each of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same issue
and series of like tenor and principal amount, having the same Original Issue
Date and Stated Maturity, and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security, and
(ii) such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same issue and
series of like tenor and principal amount, having the same Original Issue Date
and Stated Maturity as such destroyed, lost or stolen Security, and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual
obligation of the Company, whether or not the
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destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7. Payment of Interest; Interest Rights Preserved.
Interest on any Security of any series which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date, shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
in respect of Securities of such series, except that, unless otherwise provided
in the Securities of such series, interest payable on the Stated Maturity of the
principal of a Security shall be paid to the Person to whom principal is paid.
The initial payment of interest on any Security of any series which is issued
between a Regular Record Date and the related Interest Payment Date shall be
payable as provided in such Security or in the Board Resolution pursuant to
Section 3.1 with respect to the related series of Securities.
Any interest on any Security which is payable, but is not timely paid or
duly provided for, on any Interest Payment Date for Securities of such series
(herein called "Defaulted Interest"), shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series in respect of which
interest is in default (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as
in this Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class, postage prepaid, to each Holder of a
Security of such series at the address of such Holder as it appears in the
Securities Register not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the Company,
cause a similar notice to be published at least once in a newspaper, customarily
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published in the English language on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered on such
Special Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of the series in respect of which interest is in default
may be listed and, upon such notice as may be required by such exchange (or by
the Trustee if the Securities are not listed), if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause, such
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 3.8. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Section 3.7) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 3.9. Cancellation.
All Securities surrendered for payment, redemption, transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee, and any such Securities and Securities surrendered directly to the
Trustee for any such purpose shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly canceled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities shall be destroyed by the
Trustee and the Trustee shall deliver to the Company a certificate of such
destruction.
SECTION 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for Securities
of any series, interest on the Securities of each series for any partial period
shall be computed on the basis of a 360-day year of twelve 30-day months and the
actual days elapsed in a partial month in such period and interest
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on the Securities of each series for any full period shall be computed by
dividing the rate per annum by the number of interest periods that together
constitute a full twelve months.
SECTION 3.11. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, so long as no Event of Default has
occurred and is continuing, the Company shall have the right, at any time during
the term of such series, from time to time to defer the payment of interest on
such Securities for such period or periods as may be specified as contemplated
by Section 3.1 (each, an "Extension Period") during which Extension Periods the
Company shall have the right to make partial payments of interest on any
Interest Payment Date. No Extension Period shall end on a date other than an
Interest Payment Date. At the end of any such Extension Period, the Company
shall pay all interest then accrued and unpaid on the Securities (together with
Additional Interest thereon, if any, at the rate specified for the Securities of
such series to the extent permitted by applicable law); provided, however, that
no Extension Period shall extend beyond the Stated Maturity of the principal of
the Securities of such series; provided, further, that during any such Extension
Period, the Company shall not, and shall not permit any Subsidiary to, (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of the Company's capital
stock (other than as a result of a reclassification of such capital stock or the
exchange or conversion of one class or series of capital stock for another class
or series), or (ii) make any payment of principal, interest or premium, if any,
on or repay, repurchase or redeem any debt securities of the Company that rank
pari passu with or junior in interest to the Securities of such series or make
any guarantee payments with respect to the foregoing (in each case other than
(a) dividends or distributions in Common Stock, (b) redemption or purchases of
any rights pursuant to the 1996 Rights Agreement, or any successor to such
Rights Agreement, and the declaration thereunder of a dividend of rights in the
future, (c) payments under any Owens Guarantee, and (d) guarantee payments to
the Company from a Subsidiary thereof). Prior to the termination of any such
Extension Period, the Company may further extend the interest payment period,
provided that no Extension Period shall exceed the period or periods specified
in such Securities or extend beyond the Stated Maturity of the principal of such
Securities. Upon termination of any Extension Period and upon the payment of all
accrued and unpaid interest and any Additional Interest then due on any Interest
Payment Date, the Company may elect to begin a new Extension Period, subject to
the above requirements. No interest shall be due and payable during an Extension
Period, except at the end thereof, but each installment of interest that would
otherwise have been due and payable during an Extension Period shall bear
Additional Interest as and to the extent as may be specified as contemplated by
Section 3.1. The Company shall give the Holders of the Securities of such series
and the Trustee notice of its election to begin any such Extension Period at
least one Business Day prior to the next succeeding Interest Payment Date on
which interest on Securities of such series would be payable but for such
deferral or, with respect to the Securities of a series issued to an Owens
Corning Trust, so long as such Securities are held by such Owens Corning Trust,
prior to the earlier of (i) the next succeeding date on which Distributions on
the Preferred Securities of such Owens Corning Trust would be payable but for
such deferral or (ii) the date the Administrative Trustees of such Owens Corning
Trust are required to give notice to any securities exchange or other applicable
self-regulatory organization or to holders of such Preferred Securities of the
record date or the date
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such Distributions are payable, but in any event not less than one Business Day
prior to such record date.
The Trustee shall promptly give notice of the Company's election to begin
any such Extension Period to the Holders of the Outstanding Securities of such
series.
SECTION 3.12. Right of Set-Off.
With respect to the Securities of a series issued to an Owens Corning
Trust, notwithstanding anything to the contrary in the Indenture, the Company
shall have the right to set-off any payment it is otherwise required to make
thereunder in respect of any such Security to the extent the Company has
theretofore made, or is concurrently on the date of such payment making, a
payment under the Owens Guarantee relating to such Security or under Section 5.8
of the Indenture.
SECTION 3.13. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company and, by its
acceptance of a Security or a beneficial interest therein, the Holder of, and
any Person that acquires a beneficial interest in, such Security agree that for
United States Federal, state and local tax purposes it is intended that such
Security constitute indebtedness.
SECTION 3.14. Shortening or Extension of Stated Maturity.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, the Company shall have the right to (i)
shorten the Stated Maturity of the principal of the Securities of such series at
any time to any date not earlier than the first date on which the Company has
the right to redeem the Securities of such series, and (ii) extend the Stated
Maturity of the principal of the Securities of such series at any time at its
election for one or more periods, but in no event to a date later than the 49th
anniversary of the first Interest Payment Date following the Original Issue Date
of the Securities of such series; provided that, if the Company elects to
exercise its right to extend the Stated Maturity of the principal of the
Securities of such series pursuant to clause (ii), above, at the time such
election is made and at the time of extension (A) the Company is not in
bankruptcy, otherwise insolvent or in liquidation, (B) the Company is not in
default in the payment of any interest or principal on such Securities, (C) in
the case of any series of Securities issued to an Owens Corning Trust, such
Owens Corning Trust is not in arrears on payments of Distributions on the
Preferred Securities issued by such Owens Corning Trust and no deferred
Distributions are accumulated and (D) such Securities are rated not less than
BBB- by S&P or Baa3 by Moody's or the equivalent by any other nationally
recognized statistical rating organization. In the event the Company elects to
shorten or extend the Stated Maturity of the Securities of any series, it shall
give notice to the Trustee, and the Trustee shall give notice of such shortening
or extension to the Holders, no less than 30 and no more than 60 days prior to
the effectiveness thereof.
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SECTION 3.15. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for and as otherwise provided in this
Section 4.1) and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.3) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year of the date of deposit, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of Clause (B) (i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee
as trust funds in trust for such purpose an amount in the
currency or currencies in which the Securities of such series are
payable sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore
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delivered to the Trustee for cancellation, for principal (and
premium, if any) and interest (including any Additional Interest)
to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for the payment of which such money or obligations have been
deposited with or received by the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default.
"Event of Default," wherever used herein with respect to the Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series, including any Additional Interest in respect thereof, when it becomes
due and payable, and continuance of such default for a period of 30 days
(subject to the deferral of any due date in the case of an Extension Period); or
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(2) default in the payment of the principal of (or premium, if any, on) any
Security of that series at its Maturity; or
(3) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Company in this Indenture (other than a covenant or
warranty a default in the performance of which or the breach of which is
elsewhere in this Section specifically dealt with), and continuance of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default
or breach and requiring it to be remedied; or
(4) the entry of a decree or order by a court having jurisdiction in the
premises adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(5) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit for creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due and
its willingness to be adjudicated a bankrupt, or the taking of corporate action
by the Company in furtherance of any such action; or
(6) any other Event of Default provided with respect to Securities of that
series.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all the Securities of
that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), provided that, in the case of
the Securities of a series issued to an Owens Corning Trust, if, upon an Event
of Default, the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series fail to declare the principal of
all the Securities of that series to be immediately due and payable, the holders
of at least 25% in aggregate liquidation amount of the corresponding series of
Preferred Securities then outstanding shall have such right by a notice in
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writing to the Company and the Trustee; and upon any such declaration such
principal amount (or specified portion thereof) of and the accrued interest
(including any Additional Interest) on all the Securities of such series shall
become immediately due and payable. Payment of principal and interest (including
any Additional Interest) on such Securities shall remain subordinated to the
extent provided in Article XIII notwithstanding that such amount shall become
immediately due and payable as herein provided.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay:
(A) all overdue installments of interest (including any Additional
Interest) on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of acceleration
and interest thereon at the rate borne by the Securities, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which has
become due solely by such acceleration, have been cured or waived as provided in
Section 5.13.
In the case of Securities of a series issued to an Owens Corning Trust, the
holders of a majority in aggregate Liquidation Amount (as defined in the Trust
Agreement under which such Owens Corning Trust is formed) of the related series
of Preferred Securities issued by such Owens Corning Trust shall also have the
right to rescind and annul such declaration and its consequences by written
notice to the Company and the Trustee, subject to the satisfaction of the
conditions set forth in Clauses (1) and (2) above of this Section 5.2.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest
(including any Additional Interest) on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or
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(2) default is made in the payment of the principal of (and premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal, including any sinking fund payment or
analogous obligations (and premium, if any) and interest (including any
Additional Interest); and, in addition thereto, all amounts owing the Trustee
under Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors,
(a) the Trustee (irrespective of whether the principal of the Securities of
any series shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal (and premium, if any) or
interest (including any Additional Interest)) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest (including any Additional Interest) owing and
unpaid in respect to the Securities and to file such other papers or documents
as may be necessary or advisable and to take any and all actions as are
authorized under the Trust Indenture Act in order to have the claims of the
Holders and any predecessor to the Trustee under Section 6.7 allowed in any such
judicial proceedings; and
(ii) in particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same in accordance with Section 5.6; and
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(b) any custodian, receiver, assignee, trustee, liquidator, sequestrator
(or other similar official) in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee for distribution in
accordance with Section 5.6, and in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due to it and any predecessor Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 5.5. Trustee May Enforce Claim Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of all the amounts owing the Trustee and any predecessor Trustee
under Section 6.7, its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been recovered.
SECTION 5.6. Application of Money Collected.
Any money or property collected or to be applied by the Trustee with
respect to a series of Securities pursuant to this Article shall be applied in
the following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money or property on account of principal (or premium,
if any) or interest (including any Additional Interest), upon presentation of
the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor
Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts then due and
unpaid upon such series of Securities for principal (and premium, if any) and
interest (including any Additional Interest), in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such series of
Securities for principal (and premium, if any) and interest (including any
Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
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SECTION 5.7. Limitation on Suits.
No Holder of any Securities of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture or for the
appointment of a receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest; Direct Action by Holders of Preferred Securities.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right which is absolute and unconditional to receive
payment of the principal of (and premium, if any) and (subject to Section 3.7)
interest (including any Additional Interest) on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder. In the case of Securities of a series issued to an Owens Corning Trust,
any holder of the corresponding series of Preferred Securities issued by such
Owens Corning Trust shall have the right, upon the occurrence of an Event of
Default described in Section 5.1(1) or 5.1(2), to institute a suit directly
against the Company for enforcement of payment to such holder of principal of
(premium, if any) and (subject to Section 3.7) interest (including any
Additional Interest) on the Securities having a principal amount equal to the
aggregate Liquidation Amount (as defined in the Trust Agreement under which such
Owens Corning Trust is formed) of such Preferred Securities of the corresponding
series held by such holder.
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SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Preferred Securities has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee, such Holder or such holder of
Preferred Securities, then and in every such case the Company, the Trustee, the
Holders and such holder of Preferred Securities shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee, the Holders and the holders of Preferred Securities shall continue as
though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.6, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any Security or any
holder of any Preferred Security to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to
the Holders and the right and remedy given to the holders of Preferred
Securities by Section 5.8 may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee, the Holders or the holders of Preferred
Securities, as the case may be.
SECTION 5.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that:
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee shall have the
right to decline to follow such direction if a Responsible Officer or Officers
of the Trustee shall, in good faith, determine that
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the proceeding so directed would be unjustly prejudicial to the Holders not
joining in any such direction or would involve the Trustee in personal
liability.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series and, in the case of any Securities of a
series issued to an Owens Corning Trust, the holders of Preferred Securities
issued by such Owens Corning Trust may waive any past default hereunder and its
consequences with respect to such series except a default:
(1) in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Any such waiver shall be deemed to be on behalf of the Holders of all the
Securities of such series or, in the case of a waiver by holders of Preferred
Securities issued by such Owens Corning Trust, by all holders of Preferred
Securities issued by such Owens Corning Trust.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest (including any
Additional Interest) on any Security on or after the respective Stated
Maturities expressed in such Security.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully
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do so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
Holders pursuant to Section 5.12 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect
to the Securities of such series.
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(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders of
Securities of such series, as their names and addresses appear in the Securities
Register, notice of such default, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest (including any Additional
Interest) on any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of Securities of such series; and provided, further,
that, in the case of any default of the character specified in Section 5.1(3),
no such notice to Holders of Securities of such series shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
SECTION 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, Security or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
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(d) the Trustee may consult with counsel and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, indenture,
Security or other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of the Securities or the proceeds thereof.
SECTION 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.8 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Securities
Registrar or such other agent.
SECTION 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
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SECTION 6.7. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder in such amounts as the Company and the Trustee
shall agree from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense (including the reasonable compensation and the
expenses and disbursements of its agents and counsel) incurred without
negligence or bad faith, arising out of or in connection with the acceptance or
administration of this trust or the performance of its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. This indemnification shall survive the termination of this
Agreement.
To secure the Company's payment obligations in this Section, the Company
and the Holders agree that the Trustee shall have a lien prior to the Securities
on all money or property held or collected by the Trustee. Such lien shall
survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
SECTION 6.8. Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act. Nothing
herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of said Section 310(b).
SECTION 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of the United
States of America or of any State or Territory or the District of Columbia,
authorized under such laws to exercise
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corporate trust powers and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority, or
(b) a corporation or other Person organized and doing business under the
laws of a foreign government that is permitted to act as Trustee pursuant to a
rule, regulation or order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then,
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article. Neither the Company nor any Person directly or indirectly
controlling, controlled by or under common control with the Company shall serve
as Trustee for the Securities of any series issued hereunder.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and shall fail
to resign after written request therefor by the Company or by any such Holder,
or
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(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company, acting pursuant to the authority of a
Board Resolution, may remove the Trustee with respect to all Securities, or (ii)
subject to Section 5.14, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee with respect to the Securities of
that or those series. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to the Securities of such series and supersede
the successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Security for at least
six months may, subject to Section 5.14, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities of such series as their names and addresses appear in the
Securities Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign,
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transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts, and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all rights, powers and trusts referred to in paragraph
(a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the
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Securities so authenticated, and in case any Securities shall not have been
authenticated, any successor to the Trustee may authenticate such Securities
either in the name of any predecessor Trustee or in the name of such successor
Trustee, and in all cases the certificate of authentication shall have the full
force which it is provided anywhere in the Securities or in this Indenture that
the certificate of the Trustee shall have.
SECTION 6.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.6, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, or of any State or Territory or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving
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such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provision of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 6.7.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities referred to in the within mentioned
Indenture.
Dated:
WILMINGTON TRUST COMPANY
As Trustee
By:
-----------------------------------
As Authenticating Agent
By:
-----------------------------------
Authorized Officer
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ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after _________ and ________ in
each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such _______ and _______, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished,
excluding from any such list names and addresses received by the Trustee in its
capacity as Securities Registrar.
SECTION 7.2. Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided in the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
SECTION 7.3. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act, at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than _______ in each calendar year,
commencing with the first _______ after the first issuance of Securities under
this Indenture.
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(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed and also with the Commission. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
SECTION 7.4. Reports by Company.
The Company shall file with the Trustee and with the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided in the Trust Indenture Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed with
the Trustee within 15 days after the same is required to be filed with the
Commission. Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall continue to file with the Commission and provide the
Trustee with the annual reports and the information, documents and other reports
which are specified in Sections 13 and 15(d) of the Exchange Act. The Company
also shall comply with the other provisions of Trust Indenture Act Section
314(a).
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
sell, assign, convey, transfer or lease its properties and assets substantially
as an entirety to any Person, and no Person shall consolidate with or merge into
the Company or sell, assign, convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(1) in case the Company consolidates with or merges into another Person or
sells, assigns, conveys, transfers or leases its properties and assets
substantially as an entirety to any Person, the successor Person is organized
under the laws of the United States of America or any State or the District of
Columbia, and such successor Person expressly assumes, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of (and premium,
if any) and interest (including any Additional Interest) on all the Securities
and the performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing;
(3) in the case of the Securities of a series issued to an Owens Corning
Trust, such consolidation, merger, sale, assignment, conveyance, transfer or
lease is permitted under the related Trust
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Agreement and Owens Guarantee and does not give rise to any breach or violation
of the related Trust Agreement or Owens Guarantee; and
(4) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, sale,
assignment, conveyance, transfer or lease and any such supplemental indenture
comply with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with; and the Trustee, subject
to Section 6.1, may rely upon such Officers' Certificate and Opinion of Counsel
as conclusive evidence that such transaction complies with this Section 8.1.
SECTION 8.2. Successor Corporation Substituted.
Upon any consolidation or merger by the Company with or into any other
Person, or any sale, assignment, conveyance, transfer or lease by the Company of
its properties and assets substantially as an entirety to any Person in
accordance with Section 8.1, the successor Person formed by such consolidation
or into which the Company is merged or to which such sale, assignment,
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor Person had been named as the Company
herein; and in the event of any such conveyance, transfer or lease the Company
shall be discharged from all obligations and covenants under the Indenture and
the Securities and may be dissolved and liquidated.
Such successor Person may cause to be signed, and may issue either in its
own name or in the name of the Company, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor Person instead
of the Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication pursuant to such provisions and
any Securities which such successor Person thereafter shall cause to be signed
and delivered to the Trustee on its behalf for the purpose pursuant to such
provisions. All the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, assignment, conveyance or
lease, such changes in phraseology and form may be made in the Securities
thereafter to be issued as may be appropriate.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and the
assumption by any such successor of the covenants of the Company herein and in
the Securities contained; or
(2) to convey, transfer, assign, mortgage or pledge any property to or with
the Trustee or to surrender any right or power herein conferred upon the
Company; or
(3) to establish the form or terms of Securities of any series as permitted
by Sections 2.1 or 3.1; or
(4) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(5) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such additional Events of Default are
to be for the benefit of less than all series of Securities, stating that such
additional Events of Default are expressly being included solely for the benefit
of such series); or
(6) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
(7) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this clause (7) shall not
adversely affect the interest of the Holders of Securities of any series in any
material respect or, in the case of the Securities of a series issued to an
Owens Corning Trust and for so long as any of the corresponding series of
Preferred Securities issued by such Owens Corning Trust shall remain
outstanding, the holders of such Preferred Securities; or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of
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this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 6.11(b); or
(9) to comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act.
SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) except to the extent permitted by Section 3.11 or as otherwise
specified as contemplated by Section 2.1 or Section 3.1 with respect to the
deferral of the payment of interest on the Securities of any series, change the
Stated Maturity of the principal of, or any installment of interest (including
any Additional Interest) on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or reduce any premium payable upon the
redemption thereof, or reduce the amount of principal of a Discount Security
that would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or change the place of payment where, or the
coin or currency in which, any Security or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding Securities
of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or Section
10.5, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Security affected thereby; or
(4) modify the provisions in Article XIII of this Indenture with respect to
the subordination of Outstanding Securities of any series in a manner adverse to
the Holders thereof;
provided, further, that, in the case of the Securities of a series issued to an
Owens Corning Trust, so long as any of the corresponding series of Preferred
Securities issued by such Owens Corning Trust remains outstanding, (i) no such
amendment shall be made that adversely affects the holders of such Preferred
Securities in any material respect, and no termination of this Indenture shall
occur, and no waiver of any Event of Default or compliance with any covenant
under this Indenture shall be
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effective, without the prior consent of the holders of at least a majority of
the aggregate Liquidation Amount of such Preferred Securities then outstanding
unless and until the principal (and premium, if any) of the Securities of such
series and all accrued and, subject to Section 3.7, unpaid interest (including
any Additional Interest) thereon have been paid in full and (ii) no amendment
shall be made to Section 5.8 of this Indenture that would impair the rights of
the holders of Preferred Securities provided therein without the prior consent
of the holders of each Preferred Security then outstanding unless and until the
principal (and premium, if any) of the Securities of such series and all accrued
and (subject to Section 3.7) unpaid interest (including any Additional Interest)
thereon have been paid in full.
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities or Preferred Securities,
or which modifies the rights of the Holders of Securities or holders of
Preferred Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities or holders of Preferred Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture, and that
all conditions precedent have been complied with. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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SECTION 9.6. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Company, bear a notation in form approved by the Company as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of such Securities and this Indenture.
SECTION 10.2. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities, an office or agency where Securities of that series may be presented
or surrendered for payment and an office or agency where Securities of that
series may be surrendered for transfer or exchange and where notices and demands
to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company initially appoints the Trustee, acting
through its Corporate Trust Office, as its agent for said purposes. The Company
will give prompt written notice to the Trustee of any change in the location of
any such office or agency. If at any time the Company shall fail to maintain
such office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
of such purposes, and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of
Payment for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation and any change in
the location of any such office or agency.
SECTION 10.3. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on
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any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior
to 10:00 a.m. New York City time on each due date of the principal of or
interest on any Securities, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal and
premium (if any) or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any payment of principal (and
premium, if any) or interest;
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent; and
(4) comply with the provisions of the Trust Indenture Act applicable to it
as a Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall
(unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be paid on Company Request to the Company,
or (if then held by the Company) shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such
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Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 10.4. Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the end of
each calendar year of the Company ending after the date hereof, an Officers'
Certificate covering the preceding calendar year, stating whether or not to the
best knowledge of the signers thereof the Company is in default in the
performance, observance or fulfillment of or compliance with any of the terms,
provisions, covenants and conditions of this Indenture, and if the Company shall
be in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge. For the purpose of this Section 10.4, compliance
shall be determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
SECTION 10.5. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any covenant
or condition provided pursuant to Section 3.1, 9.1(3) or 9.1(4) with respect to
the Securities of any series, if before or after the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company in respect of any such covenant
or condition shall remain in full force and effect.
SECTION 10.6. Additional Sums.
In the case of the Securities of a series issued to an Owens Corning Trust,
so long as no Event of Default has occurred and is continuing and except as
otherwise specified as contemplated by Section 2.1 or Section 3.1, in the event
that (i) an Owens Corning Trust is the Holder of all of the Outstanding
Securities of such series, (ii) a Tax Event in respect of such Owens Corning
Trust shall have occurred and be continuing, (iii) the Company has elected, and
has not revoked such election, and (iv) the Company shall not have (A) redeemed
the Securities of such series pursuant to Section 11.7(b) or (B) terminated such
Owens Corning Trust pursuant to Section 9.2(b) of the related Trust Agreement,
the Company shall pay to such Owens Corning Trust (and its permitted successors
or assigns under the related Trust Agreement) for so long as such Owens Corning
Trust (or its permitted successor or assignee) is the registered holder of any
Securities of such series, such additional amounts as may be necessary in order
that the amount of Distributions (including any Additional Amounts (as defined
in such Trust Agreement)) then due and payable by such Owens Corning Trust on
the related Preferred Securities and Common Securities that at any time remain
outstanding in accordance with the terms thereof shall not be reduced as a
result of any Additional Taxes (the
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"Additional Sums"). Whenever in this Indenture or the Securities there is a
reference in any context to the payment of principal of or interest on the
Securities, such mention shall be deemed to include mention of the payments of
the Additional Sums provided for in this paragraph to the extent that, in such
context, Additional Sums are, were or would be payable in respect thereof
pursuant to the provisions of this paragraph and express mention of the payment
of Additional Sums (if applicable) in any provisions hereof shall not be
construed as excluding Additional Sums in those provisions hereof where such
express mention is not made; provided, however, that the deferral of the payment
of interest pursuant to Section 3.11 or the Securities shall not defer the
payment of any Additional Sums that may be due and payable.
SECTION 10.7. Additional Covenants.
The Company covenants and agrees with each Holder of Securities of each
series that it shall not, and it shall not permit any Subsidiary of the Company
to, (a) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any shares of the
Company's capital stock (other than as a result of a reclassification of such
capital stock or the exchange or conversion of one class or series of capital
stock for another class or series) or (b) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company (including Securities of any other series issued under
this Indenture) that rank pari passu with or junior in interest to the
Securities of such series or make any guarantee payments with respect to the
foregoing (in each case other than (a) dividends or distributions in Common
Stock, (b) redemptions or purchases of any rights pursuant to the 1996 Rights
Agreement, or any successor to such Rights Agreement, and the declaration
thereunder of a dividend of rights in the future, (c) payments under any Owens
Guarantee, and (d) guarantee payments to the Company from a Subsidiary thereof)
if at such time (i) there shall have occurred any event of which the Company has
actual knowledge (A) that with the giving of notice or the lapse of time, or
both, would constitute an Event of Default with respect to the Securities of
such series and (B) in respect of which the Company shall not have taken
reasonable steps to cure, (ii) if the Securities of such series are held by an
Owens Corning Trust, the Company shall be in default with respect to its payment
of any obligations under the Owens Guarantee relating to the Preferred
Securities issued by such Owens Corning Trust or (iii) the Company shall have
given notice of its election to begin an Extension Period with respect to the
Securities of such series as provided herein and shall not have rescinded such
notice, or such Extension Period, or any extension thereof, shall be continuing.
The Company also covenants with each Holder of Securities of a series
issued to an Owens Corning Trust (i) to maintain directly or indirectly 100%
ownership of the Common Securities of such Owens Corning Trust; provided,
however, that any permitted successor of the Company hereunder may succeed to
the Company's ownership of such Common Securities, (ii) not to voluntarily
terminate, wind-up or liquidate such Owens Corning Trust, except (a) in
connection with a distribution of the Securities of such series to the holders
of Preferred Securities in liquidation of such Owens Corning Trust or (b) in
connection with certain mergers, consolidations or amalgamations permitted by
the related Trust Agreement and (iii) to use its reasonable efforts, consistent
with the terms and provisions of such Trust Agreement, to cause such Owens
Corning Trust to remain a
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grantor trust for U.S. Federal income tax purposes.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Applicability of This Article.
Redemption of Securities of any series (whether by operation of a sinking
fund or otherwise) as permitted or required by any form of Security issued
pursuant to this Indenture shall be made in accordance with such form of
Security and this Article; provided, however, that if any provision of any such
form of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern. Except as otherwise set forth
in the form of Security for such series, each Security of such series shall be
subject to partial redemption only in the amount of $25 or integral multiples
thereof.
SECTION 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Securities of any particular series and
having the same terms, the Company shall, not less than 30 nor more than 60 days
prior to the Redemption Date (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such date and of the principal amount of
Securities of that series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities, the Company shall furnish the Trustee
with an Officers' Certificate and an Opinion of Counsel evidencing compliance
with such restriction.
SECTION 11.3. Selection of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected on a pro rata basis not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of any Security of
such series, provided that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor are to be redeemed (unless
such redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding sentence.
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The Trustee shall promptly notify the Company in writing of the Securities
selected for partial redemption and the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed. If the
Company shall so direct, Securities registered in the name of the Company, any
Affiliate or any Subsidiary thereof shall not be included in the Securities
selected for redemption.
SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not later than the thirtieth day, and not earlier than the sixtieth day,
prior to the Redemption Date, to each Holder of Securities to be redeemed, at
the address of such Holder as it appears in the Securities Register.
With respect to Securities of each series to be redeemed, each notice of
redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities of such particular series and
having the same terms are to be redeemed, the identification (and, in the case
of partial redemption, the respective principal amounts) of the particular
Securities to be redeemed;
(d) that on the Redemption Date, the Redemption Price will become due and
payable upon each such Security or portion thereof, and that interest thereon,
if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be surrendered for
payment of the Redemption Price; and
(f) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall not be
irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
SECTION 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on the Redemption Date specified in
the notice of redemption given as provided in Section 11.4, the Company will
deposit with the Trustee or with one
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or more Paying Agents (or if the Company is acting as its own Paying Agent, the
Company will segregate and hold in trust as provided in Section 10.3) an amount
of money sufficient to pay the Redemption Price of, and any accrued interest
(including Additional Interest) on, all the Securities which are to be redeemed
on that date.
SECTION 11.6. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section 11.4, the
Securities or portion of Securities with respect to which such notice has been
given shall become due and payable on the date and at the place or places stated
in such notice at the applicable Redemption Price. On presentation and surrender
of such Securities at a Place of Payment in said notice specified, the said
securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable Redemption Price, together with accrued interest
(including any Additional Interest) to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 3.1, installments of
interest whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.7.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder thereof, at
the expense of the Company, a new Security or Securities of the same series, of
authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the Security so presented and having the same Original Issue Date,
Stated Maturity and terms. If a Global Security is so surrendered, such new
Security will also be a new Global Security.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal of and premium, if any, on such Security
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.7. Right of Redemption of Securities Initially Issued to an
Owens Corning Trust.
In the case of the Securities of a series initially issued to an Owens
Corning Trust, except as otherwise specified as contemplated by Section 3.1, the
Company, at its option, may redeem such Securities (i) on or after the date five
years after the Original Issue Date of such Securities, in whole at any time or
in part from time to time, or (ii) upon the occurrence and during the
continuation of a Tax Event, at any time, in whole (but not in part), upon the
occurrence of a Special Event and within 90 days following the occurrence of
such Special Event in each case at a Redemption Price equal to 100% of the
principal amount thereof plus accrued and unpaid interest, including Additional
Interest, if any, to the Redemption Date.
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ARTICLE XII
SINKING FUNDS
SECTION 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 3.1 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any sinking fund payment in excess of such minimum amount which is
permitted to be made by the terms of such Securities of any series is herein
referred to as an "optional sinking fund payment". If provided for by the terms
of any Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 12.2. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of such Securities.
SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities.
In lieu of making all or any part of a mandatory sinking fund payment with
respect to any Securities of a series in cash, the Company may at its option, at
any time no more than 16 months and no less than 30 days prior to the date on
which such sinking fund payment is due, deliver to the Trustee Securities of
such series (together with the unmatured coupons, if any, appertaining thereto)
theretofore purchased or otherwise acquired by the Company, except Securities of
such series that have been redeemed through the application of mandatory or
optional sinking fund payments pursuant to the terms of the Securities of such
series, accompanied by a Company Order instructing the Trustee to credit such
obligations and stating that the Securities of such series were originally
issued by the Company by way of bona fide sale or other negotiation for value;
provided that the Securities to be so credited have not been previously so
credited. The Securities to be so credited shall be received and credited for
such purpose by the Trustee at the redemption price for such Securities, as
specified in the Securities so to be redeemed, for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.3. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
such Securities pursuant to the terms of such Securities, the portion thereof,
if any, which is to be satisfied by payment of cash in the currency in which the
Securities of such series are payable (except as provided pursuant to Section
3.1) and the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities pursuant to Section 12.2 and will also deliver to the
Trustee any Securities to be so delivered. Such Officers' Certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the
succeeding sinking fund payment date. In the case of the failure
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of the Company to deliver such Officers' Certificate (or, as required by this
Indenture, the Securities and coupons, if any, specified in such Officers'
Certificate), the sinking fund payment due on the succeeding sinking fund
payment date for such series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of the Securities of such series
subject to a mandatory sinking fund payment without the right to deliver or
credit securities as provided in Section 12.2 and without the right to make the
optional sinking fund payment with respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made with respect
to the Securities of any particular series shall be applied by the Trustee (or
by the Company if the Company is acting as its own Paying Agent) on the sinking
fund payment date on which such payment is made (or, if such payment is made
before a sinking fund payment date, on the sinking fund payment date immediately
following the date of such payment) to the redemption of Securities of such
series at the Redemption Price specified in such Securities with respect to the
sinking fund. Any sinking fund moneys not so applied or allocated by the Trustee
(or, if the Company is acting as its own Paying Agent, segregated and held in
trust by the Company as provided in Section 10.3) for such series and together
with such payment (or such amount so segregated) shall be applied in accordance
with the provisions of this Section 12.3. Any and all sinking fund moneys with
respect to the Securities of any particular series held by the Trustee (or if
the Company is acting as its own Paying Agent, segregated and held in trust as
provided in Section 10.3) on the last sinking fund payment date with respect to
Securities of such series and not held for the payment or redemption of
particular Securities of such series shall be applied by the Trustee (or by the
Company if the Company is acting as its own Paying Agent), together with other
moneys, if necessary, to be deposited (or segregated) sufficient for the
purpose, to the payment of the principal of the Securities of such series at
Maturity. The Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 11.3 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Section 11.6. On or before each sinking fund payment
date, the Company shall pay to the Trustee (or, if the Company is acting as its
own Paying Agent, the Company shall segregate and hold in trust as provided in
Section 10.3) in cash a sum in the currency in which Securities of such series
are payable (except as provided pursuant to Section 3.1) equal to the principal
and any interest accrued to the Redemption Date for Securities or portions
thereof to be redeemed on such sinking fund payment date pursuant to this
Section 12.3.
Neither the Trustee nor the Company shall redeem any Securities of a series
with sinking fund moneys or mail any notice of redemption of Securities of such
series by operation of the sinking fund for such series during the continuance
of a default in payment of interest, if any, on any Securities of such series or
of any Event of Default (other than an Event of Default occurring as a
consequence of this paragraph) with respect to the Securities of such series,
except that if the notice of redemption shall have been provided in accordance
with the provisions hereof, the Trustee (or the Company, if the Company is then
acting as its own Paying Agent) shall redeem such Securities if cash sufficient
for that purpose shall be deposited with the Trustee (or segregated by the
Company) for that purpose in accordance with the terms of this Article XII.
Except as aforesaid, any moneys in the sinking fund for such series at the time
when any such default or Event of Default shall occur and any moneys thereafter
paid into such sinking fund shall, during the continuance of such default or
Event of
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for such series at the time when any such default or Event of Default shall
occur and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of the Securities and coupons, if any, of such series; provided,
however, that in case such default or Event of Default shall have been cured or
waived herein, such moneys shall thereafter be applied on the next sinking fund
payment date for the Securities of such series on which such moneys may be
applied pursuant to the provisions of this Section 12.3.
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinate to Senior Debt.
The Company for itself and its successors covenants and
agrees, and each Holder of a Security, by his acceptance thereof, likewise
covenants and agrees, that the indebtedness represented by the Securities and
the payment of the principal of and interest (including any Additional Interest)
on each and all of the Securities are hereby expressly subordinated to the
extent and in the manner hereinafter set forth in this Article to the prior
payment in full of all Senior Debt.
This Article XIII shall constitute a continuing offer and
inducement to all Persons who become holders of, or continue to hold, Senior
Debt. The provisions of this Article XIII are made for the benefit of the
holders of Senior Debt each of whom is an obligee hereunder and is entitled to
enforce such holders' rights hereunder, without any act or notice of acceptance
hereof or reliance hereon. No amendment, modification or discharge of any
provision of this Article XIII shall be effective against any holder of Senior
Debt unless expressly consented to in writing by such holder. The provisions of
this Article XIII apply notwithstanding anything to the contrary contained in
the Securities or this Indenture.
SECTION 13.2. Payment Over of Proceeds Upon
Dissolution, Etc.
In the event of any liquidation, dissolution, winding up or
reorganization of the Company (whether voluntary or involuntary and whether in
insolvency or receivership proceedings, or upon an assignment for the benefit
of creditors or any other marshalling of assets or liabilities of the Company or
otherwise)(each such event, if any, herein sometimes referred to as a
"Proceeding"), the Company and each Holder of a Security, by his acceptance
thereof, covenant and agree that:
(1) all Senior Debt shall first be paid in full, before any
payment or distribution is made upon the principal of or interest on
the Securities;
(2) any payment or distribution of assets of the
Company or from the estate created by the commencement
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of any such Proceeding, whether in cash, property or securities, to
which the Holders of the Securities would be entitled but for the
provisions of this Article (including any payment or distribution which
may be payable or deliverable to Holders of the Securities made in
respect of any other indebtedness of the Company subordinated to the
payment of the Securities, such payment or distribution being
hereinafter referred to as a "Junior Subordinated Payment") shall be
paid or delivered by the Company or any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, directly to the holders of Senior Debt or
their representative or representatives or to the trustee or trustees
under any indenture under which any instruments evidencing any of such
Senior Debt may have been issued, as their respective interests may
appear, to the extent necessary to pay in full all Senior Debt
remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Debt, before any payment or
distribution is made to the Holders of the Securities; and
(3) in the event that any payment or distribution of cash,
property or securities shall be received by the Holder of any Security
in contravention of subsection (1) or (2) of this Section 13.2
(including any Junior Subordinated Payment) before all Senior Debt is
paid in full such payment or distribution shall be held for the benefit
of and paid over to the holders of such Senior Debt or their
representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any Senior Debt
may have been issued, as their respective interests may appear, to the
extent necessary to pay in full all Senior Debt remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders
of Senior Debt.
The Company shall give prompt written notice to the Holders of
the Securities of any dissolution, winding-up, liquidation or reorganization of
the Company or any assignment for the benefit of creditors.
The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the sale, conveyance or lease of all of its properties to
another corporation shall not be deemed a dissolution, winding-up, liquidation
or reorganization for the purposes
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of this Section if such other corporation shall, as a part of such
consolidation, merger, sale, conveyance or lease, expressly assume the due and
punctual payment of the principal of and interest on the Securities, according
to their tenor, and the due and punctual performance of every covenant of the
Securities and this Indenture on the part of the Company to be performed or
observed.
SECTION 13.3. No Payment When Senior Debt in Default.
The Company shall not make any payment with respect to the
Securities if and so long as:
(1) any Senior Debt is or becomes due and payable (whether at
maturity, for an installment of principal or interest, upon
acceleration, for mandatory prepayment, or otherwise) and remains
unpaid; or
(2) any Senior Debt Default (as defined below) has occurred
and has not been cured or waived in conformity with the terms of the
instrument, indenture or agreement governing such Senior Debt; or
(3) a payment by the Company with respect to the Securities
would, immediately after giving effect thereto, result in a Senior Debt
Default.
A payment with respect to the Securities shall include,
without limitation, payment of principal of and interest (including any
Additional Interest) on the Securities, the purchase of the Securities by the
Company and any other payment.
The term "Senior Debt Default" means the failure to make any
payment of any Senior Debt when due or the happening of an event of default with
respect to any Senior Debt, as defined therein or in the instrument under which
the same is outstanding which, by its terms, if occurring prior to the stated
maturity of such Senior Debt, permits or with the giving of notice or lapse of
time (or both) would permit any holder thereof, any group of such holders or any
trustee or representative for such holders thereupon to accelerate the maturity
thereof or results in such acceleration, including, without limitation, a
"Default" under the Bank Agreement, whether or not such Senior Debt or
instrument has been avoided, disallowed or subordinated.
In the event that, notwithstanding the foregoing, any payment
or distribution of cash, property or securities
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shall be received or collected by a Holder in contravention of this Section 13.3
or if and as long as payment with respect to the Securities is prohibited under
this Article, and except as otherwise expressly provided in Section 13.9, such
payment or distribution shall be held for the benefit of and shall be paid over
to the holders of Senior Debt or their representative or representatives or to
the trustee or trustees under any indenture under which any instrument
evidencing Senior Debt may have been issued, as their respective interests may
appear, to the extent necessary to pay in full all Senior Debt then due, after
giving effect to any concurrent payment to the holders of Senior Debt.
SECTION 13.4. Payment Permitted If No Default.
Except as expressly provided in this Article, nothing
contained in this Article or elsewhere in this Indenture or in any of the
Securities shall affect the obligation of the Company to make payments of the
principal of or Interest (including any Additional Interest) on the Securities
at any time in accordance with the provision of the Indenture.
SECTION 13.5. Subrogation to Rights of Holders of Senior
Debt.
Subject to and only after the payment in full of all Senior
Debt at the time outstanding, the Holders of the Securities shall be subrogated
to the rights of the holders of Senior Debt (to the extent of payments or
distributions previously made to such holders of Senior Debt pursuant to the
provisions of Section 13.2 and equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Securities
are subordinated and is entitled to like rights of subrogation) to receive
payments or distributions of assets of the Company applicable to the Senior Debt
until amounts owing on the Securities shall be paid in full. No payments or
distributions to the holders of the Senior Debt of any cash, property or
securities to which the Holders of the Securities would be entitled except for
the provisions of this Article, and no payments over pursuant to the provisions
of this Article to the holders of Senior Debt by Holders of the Securities or
the Trustee, shall, as among the Company, its creditors other than holders of
Senior Debt and the Holders of the Securities, be deemed to be a payment
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by the Company to or for the account of the holders of Senior Debt.
SECTION 13.6. Provisions Solely to Define Relative Rights.
The provisions of this Article are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Debt on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair the obligation of the Company, which is absolute and unconditional to pay
to the Holders of the Securities (subject to the rights of the holders of Senior
Debt) the principal of and interest (including any Additional Interest) on the
Securities as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights of the Holders of the Securities
and creditors of the Company other than the holders of Senior Debt; or (c)
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article, of the holders of Senior Debt to
receive cash, property or securities of the Company received upon the exercise
of any such remedy.
SECTION 13.7. Holders of Senior Debt and Trustee to
Effectuate Subordination.
Each Holder of a Security by its acceptance thereof: (i) if
and so long as payment with respect to the Security is prohibited under this
Article, irrevocably authorizes and empowers (but without imposing any
obligation on, or any duty to the Holder from) each holder of Senior Debt at any
time outstanding and such holder's representatives, to demand, sue for, collect,
receive and receipt for the Holder's payments and distributions in respect of
the Securities (including, without limitation, all payments and distributions
which may be payable or deliverable pursuant to the terms of any indebtedness
subordinated to the Securities) which are required to be paid or delivered to
the holders of Senior Debt as provided in this Article and to file and prove all
claims therefor and take all such other action (including the right to vote,
file and prove claims respecting any indebtedness subordinated to the
Securities) in the name of the Holder, or otherwise, as such holder of Senior
Debt or such holder's representatives, may determine to be necessary or
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appropriate for the enforcement of the provisions of this Article; and (ii)
agrees (a) to execute and deliver to each holder of Senior Debt and such
holder's representatives all such further instruments confirming the
authorization hereinabove set forth, and all such powers of attorney, proofs of
claim, assignments of claim and other instruments, and to take all such other
action as may be requested by such holder of Senior Debt or such holder's
representatives in order to enable such holder to enforce all claims upon or in
respect of the Holder's payments and distributions in respect of the Securities
and (b) so long as there is Credit Agreement Indebtedness (as defined below)
outstanding, not to compromise, release, forgive or otherwise discharge the
obligations of the Company with respect to the Securities without the prior
written consent of the Agent (as defined in the Bank Agreement). "Credit
Agreement Indebtedness" means all indebtedness incurred by the Company for
principal of and interest on all loans and other extensions of credit under the
Bank Agreement and all fees, expenses, reimbursements, indemnities, premiums and
other amounts payable under the Bank Agreement. For purposes of the Securities,
Credit Agreement Indebtedness shall be deemed to be outstanding whenever either
(i) such indebtedness shall not have been paid in full or (ii) the commitments
to and under the Bank Agreement shall not have expired or been terminated.
Each Holder of a Security by his acceptance thereof also
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article.
SECTION 13.8. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt of
the Company to enforce subordination as herein provided shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company or the Holder of any Security or by any act or failure to act, by any
such holder, or by any noncompliance by the Company or the Holder of any
Security with the terms, provisions and covenants of this Indenture, regardless
of any knowledge thereof which any such holder may have or be otherwise charged
with. No provision of any supplemental indenture that affects the superior
position of the holders of Senior Debt shall be effective against the holders of
Senior Debt who have not consented thereto.
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The holders of Senior Debt may extend, renew, modify or amend
the terms of the Senior Debt or any security therefor or guaranty thereof and
release, sell or exchange or enforce such security or guaranty or elect any
right or remedy, or delay in enforcing or release any right or remedy and
otherwise deal freely with the Company all without notice to the Holders of the
Securities and all without affecting the liabilities and obligations of the
Holders of the Securities, even if any right of reimbursement or subrogation or
other right or remedy of the Holders of the Securities is extinguished, affected
or impaired thereby.
SECTION 13.9. Notice to Trustee, Notice to Company.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Securities. Unless and until written notice
shall be received by a Responsible Officer of the Trustee from any holder of
Senior Debt notifying the Trustee of the existence of one or more of the
circumstances which would prohibit the making of any payment with respect to the
Securities under the provisions of Section 13.3 and stating that it is a "Notice
of Senior Debt Default", the Trustee shall be entitled to assume that no such
circumstances exist. From and after the receipt by the Trustee of such notice
the Trustee shall, so long as Credit Agreement Indebtedness shall be outstanding
(but not thereafter), assume that such circumstances continue to exist unless
and until the Trustee receives from the Agent a notice stating that it has
received evidence satisfactory to it that such circumstances have been cured or
waived and stating that it is a "Notice of Cure or Waiver of Senior Debt
Default."
Any funds deposited with or collected by the Trustee in
respect of the Securities shall be subject to the provisions of this Article,
except that, if immediately prior to the date on which by the terms of the
Securities any such funds may become payable for any purpose (including,
without limitation, the payment of either the principal of or the interest
(including Additional Interest) on the Securities), the Trustee shall not have
received with respect to such funds the Notice of Senior Debt Default provided
for in this Section, then the Trustee shall have full power and authority to
receive such funds and to apply the same to the purpose for which they were
received and shall not be affected with respect to such funds by any Notice of
Senior Debt Default to the contrary which may be received by the Trustee on or
after such date.
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Any notice required or permitted to be given to the Trustee by
a holder of Senior Debt or by any Designated Senior Holder shall be in writing
and shall be sufficient for every purpose hereunder if in writing and either (i)
sent via facsimile to the Trustee, the receipt of which shall be confirmed via
telephone, or (ii) mailed, first class postage prepaid, or sent by overnight
carrier, to the Trustee addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other address
furnished in writing to such holder of Senior Debt by the Trustee.
Subject to the provisions of Section 6.1 hereof, the Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt or Designated Senior Holder
(or a trustee, fiduciary or agent therefor) to establish that such notice has
been given by a holder of Senior Debt or Designated Senior Holder or a trustee,
fiduciary or agent therefor. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Debt or Designated Senior Holder to participate in any
payment or distribution pursuant to this Article, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Debt held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
Notwithstanding anything else contained herein, no notice,
request or other communication to or with the Trustee shall be deemed given
unless received by a Responsible Officer at the Trustee's principal corporate
trust office.
The Trustee and any Holder shall promptly advise the Company
of any notice, presentation or demand, as the case may be, received by the
Trustee or such Holder from holders of Senior Debt.
-72-
<PAGE> 81
SECTION 13.10. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in Section 13.2, the Trustee, subject to the provisions of Section
6.1 hereof, and the Holders of the Securities shall be entitled to rely upon a
certificate of the trustee in bankruptcy, receiver, liquidating trustee, agent
or other Person making such payment or distribution, delivered to the Trustee or
to the Holders of Securities, for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of Senior Debt and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 13.11. Trustee and Holders Not Fiduciaries for
Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt and it undertakes to perform or observe only such of
its covenants and obligations as are specifically set forth in this Article, and
no implied covenants or obligations with respect to the Senior Debt shall be
read into this Indenture against the Trustee. The Trustee shall not be liable to
any such holders if it shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other Person cash, property or
securities to which any holders of Senior Debt shall be entitled by virtue of
this Article or otherwise.
The Holder of a Security owes no fiduciary duty to the holders
of Senior Debt and the Holders undertake to perform or to observe only such
covenants and obligations as are specifically set forth in this Indenture and no
implied covenants and obligations with respect to holders of Senior Debt shall
be read into this Indenture against the Holders.
SECTION 13.12. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior Debt which
may at any time be held by it, to the same extent as any other holder of Senior
Debt,
-73-
<PAGE> 82
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.7 hereof.
SECTION 13.13. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Section 13.11 hereof shall not apply to the Company or any
Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 13.14. Payee to Presume Outstanding Credit Agreement
Indebtedness in Absence of Notice.
Unless and until written notice shall be given to the Trustee
by the Company and the Agent notifying the Trustee that Credit Agreement
Indebtedness is no longer outstanding, the Trustee shall assume that Credit
Agreement Indebtedness is outstanding. The Company agrees to give, and to cause
the Agent to give, such notice to the Trustee promptly after the first date on
which no Credit Agreement Indebtedness shall be outstanding.
* * * *
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
OWENS CORNING
By:
------------------------------
Attest:
WILMINGTON TRUST COMPANY
as Trustee
By:
------------------------------
-74-
<PAGE> 1
EXHIBIT 12.1
OWENS CORNING
STATEMENT RE COMPUTATION OF
RATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(In millions, except ratio information)
<TABLE>
YEAR ENDED DECEMBER 31,
-----------------------------------------------
1996 1995 1994 1993 1992
-----------------------------------------------
<S> <C> <C> <C> <C> <C>
EARNINGS:
Income (loss) from continuing operations
before income taxes ..................... (562.0) 340.0 132.7 146.3 103.5
Interest expense .......................... 78.9 89.3 94.1 89.5 110.1
Portion of rents representative of interest
factor .................................. 28.7 21.2 17.8 14.0 12.8
Preferred stock dividends for MIPS ........ 13.0 8.3
Previously capitalized interest amortized . 2.5 1.9 1.6 1.3 1.1
Adjustments for minority interest & equity
affiliate distributions ................. 3.0 2.0 5.3 6.6 3.9
-----------------------------------------------
(435.9) 462.7 251.5 257.7 231.4
===============================================
FIXED CHARGES:
Interest charges on operations ............ 89.6 96.7 98.9 92.5 110.6
Portion of rents representative of
interest factor ......................... 28.7 21.2 17.8 14.0 12.8
Preferred stock dividends for MIPS ........ 13.0 8.3 -- -- --
-----------------------------------------------
131.3 126.2 116.7 106.5 123.4
===============================================
RATIO OF EARNINGS TO FIXED CHARGES ............... -- 3.67x 2.15x 2.42x 1.88x
===============================================
RATIO OF EARNINGS TO COMBINED FIXED .............. -- 3.67x 2.15x 2.42x 1.88x
CHARGES AND PREFERRED STOCK DIVIDENDS
===============================================
</TABLE>
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
January 18, 1997 included in Owens Corning's Form 10-K for the year ended
December 31, 1996, and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Toledo, Ohio
April 2, 1997
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS: That the undersigned hereby constitutes
and appoints David W. Devonshire, Michael I. Miller and Christian L. Campbell
and each of them (with full power to act alone), the undersigned's true and
lawful attorney and agent, with full power of substitution and resubstitution,
in the name and on behalf of the undersigned, to do any and all acts and things
and to execute any and all instruments which said attorneys and agents, or any
of them, may deem necessary or advisable in compliance with the Securities Act
of 1933, as amended (the "Act"), and any rules, regulations and requirements of
the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Act of Debt Securities, Preferred Stock, Common
Stock, Warrants, Stock Purchase Contracts, Stock Purchase Units and Junior
Subordinated Deferrable Interest Debentures of Owens Corning and Guarantees by
Owens Corning with respect to the Preferred Securities of certain statutory
business trusts (collectively, the "Securities"), to be offered from time to
time by Owens Corning (through underwriters or otherwise), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in any and all capacities to
a Registration Statement on Form S-3 to be filed with the Securities and
Exchange Commission in respect of the Securities, to any and all amendments,
including post-effective amendments, or supplements to such Registration
Statement, to any additional Registration Statements to be filed pursuant to
Rule 462(b) under the Act and to any and all instruments or documents filed as
a part of, or in connection with, any Registration Statement referred to above
or amendments or supplements thereto; and the undersigned hereby ratifies and
confirms all that the said attorneys and agents, or any of them, shall do or
cause to be done by virtue hereof.
Signed this 31st day of March, 1997.
/s/ Glen H. Hiner
---------------------------------
Glen H. Hiner
<PAGE> 2
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS: That the undersigned hereby constitutes
and appoints David W. Devonshire, Michael I. Miller and Christian L. Campbell
and each of them (with full power to act alone), the undersigned's true and
lawful attorney and agent, with full power of substitution and resubstitution,
in the name and on behalf of the undersigned, to do any and all acts and things
and to execute any and all instruments which said attorneys and agents, or any
of them, may deem necessary or advisable in compliance with the Securities Act
of 1933, as amended (the "Act"), and any rules, regulations and requirements of
the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Act of Debt Securities, Preferred Stock, Common
Stock, Warrants, Stock Purchase Contracts, Stock Purchase Units and Junior
Subordinated Deferrable Interest Debentures of Owens Corning and Guarantees by
Owens Corning with respect to the Preferred Securities of certain statutory
business trusts (collectively, the "Securities"), to be offered from time to
time by Owens Corning (through underwriters or otherwise), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in any and all capacities to
a Registration Statement on Form S-3 to be filed with the Securities and
Exchange Commission in respect of the Securities, to any and all amendments,
including post-effective amendments, or supplements to such Registration
Statement, to any additional Registration Statements to be filed pursuant to
Rule 462(b) under the Act and to any and all instruments or documents filed as
a part of, or in connection with, any Registration Statement referred to above
or amendments or supplements thereto; and the undersigned hereby ratifies and
confirms all that the said attorneys and agents, or any of them, shall do or
cause to be done by virtue hereof.
Signed this 28th day of March, 1997.
/s/ David W. Devonshire
---------------------------------
David W. Devonshire
<PAGE> 3
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS: That the undersigned hereby constitutes
and appoints David W. Devonshire, Michael I. Miller and Christian L. Campbell
and each of them (with full power to act alone), the undersigned's true and
lawful attorney and agent, with full power of substitution and resubstitution,
in the name and on behalf of the undersigned, to do any and all acts and things
and to execute any and all instruments which said attorneys and agents, or any
of them, may deem necessary or advisable in compliance with the Securities Act
of 1933, as amended (the "Act"), and any rules, regulations and requirements of
the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Act of Debt Securities, Preferred Stock, Common
Stock, Warrants, Stock Purchase Contracts, Stock Purchase Units and Junior
Subordinated Deferrable Interest Debentures of Owens Corning and Guarantees by
Owens Corning with respect to the Preferred Securities of certain statutory
business trusts (collectively, the "Securities"), to be offered from time to
time by Owens Corning (through underwriters or otherwise), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in any and all capacities to
a Registration Statement on Form S-3 to be filed with the Securities and
Exchange Commission in respect of the Securities, to any and all amendments,
including post-effective amendments, or supplements to such Registration
Statement, to any additional Registration Statements to be filed pursuant to
Rule 462(b) under the Act and to any and all instruments or documents filed as
a part of, or in connection with, any Registration Statement referred to above
or amendments or supplements thereto; and the undersigned hereby ratifies and
confirms all that the said attorneys and agents, or any of them, shall do or
cause to be done by virtue hereof.
Signed this 28th day of March, 1997.
/s/ Steven J. Strobel
---------------------------------
Steven J. Strobel
<PAGE> 4
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS: That the undersigned hereby constitutes
and appoints David W. Devonshire, Michael I. Miller and Christian L. Campbell
and each of them (with full power to act alone), the undersigned's true and
lawful attorney and agent, with full power of substitution and resubstitution,
in the name and on behalf of the undersigned, to do any and all acts and things
and to execute any and all instruments which said attorneys and agents, or any
of them, may deem necessary or advisable in compliance with the Securities Act
of 1933, as amended (the "Act"), and any rules, regulations and requirements of
the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Act of Debt Securities, Preferred Stock, Common
Stock, Warrants, Stock Purchase Contracts, Stock Purchase Units and Junior
Subordinated Deferrable Interest Debentures of Owens Corning and Guarantees by
Owens Corning with respect to the Preferred Securities of certain statutory
business trusts (collectively, the "Securities"), to be offered from time to
time by Owens Corning (through underwriters or otherwise), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in any and all capacities to
a Registration Statement on Form S-3 to be filed with the Securities and
Exchange Commission in respect of the Securities, to any and all amendments,
including post-effective amendments, or supplements to such Registration
Statement, to any additional Registration Statements to be filed pursuant to
Rule 462(b) under the Act and to any and all instruments or documents filed as
a part of, or in connection with, any Registration Statement referred to above
or amendments or supplements thereto; and the undersigned hereby ratifies and
confirms all that the said attorneys and agents, or any of them, shall do or
cause to be done by virtue hereof.
Signed this 31st day of March, 1997.
/s/ Norman P. Blake, Jr.
---------------------------------
Norman P. Blake, Jr.
<PAGE> 5
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS: That the undersigned hereby constitutes
and appoints David W. Devonshire, Michael I. Miller and Christian L. Campbell
and each of them (with full power to act alone), the undersigned's true and
lawful attorney and agent, with full power of substitution and resubstitution,
in the name and on behalf of the undersigned, to do any and all acts and things
and to execute any and all instruments which said attorneys and agents, or any
of them, may deem necessary or advisable in compliance with the Securities Act
of 1933, as amended (the "Act"), and any rules, regulations and requirements of
the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Act of Debt Securities, Preferred Stock, Common
Stock, Warrants, Stock Purchase Contracts, Stock Purchase Units and Junior
Subordinated Deferrable Interest Debentures of Owens Corning and Guarantees by
Owens Corning with respect to the Preferred Securities of certain statutory
business trusts (collectively, the "Securities"), to be offered from time to
time by Owens Corning (through underwriters or otherwise), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in any and all capacities to
a Registration Statement on Form S-3 to be filed with the Securities and
Exchange Commission in respect of the Securities, to any and all amendments,
including post-effective amendments, or supplements to such Registration
Statement, to any additional Registration Statements to be filed pursuant to
Rule 462(b) under the Act and to any and all instruments or documents filed as
a part of, or in connection with, any Registration Statement referred to above
or amendments or supplements thereto; and the undersigned hereby ratifies and
confirms all that the said attorneys and agents, or any of them, shall do or
cause to be done by virtue hereof.
Signed this 28th day of March, 1997.
/s/ Leonard S. Coleman, Jr.
---------------------------------
Leonard S. Coleman, Jr.
<PAGE> 6
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS: That the undersigned hereby constitutes
and appoints David W. Devonshire, Michael I. Miller and Christian L. Campbell
and each of them (with full power to act alone), the undersigned's true and
lawful attorney and agent, with full power of substitution and resubstitution,
in the name and on behalf of the undersigned, to do any and all acts and things
and to execute any and all instruments which said attorneys and agents, or any
of them, may deem necessary or advisable in compliance with the Securities Act
of 1933, as amended (the "Act"), and any rules, regulations and requirements of
the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Act of Debt Securities, Preferred Stock, Common
Stock, Warrants, Stock Purchase Contracts, Stock Purchase Units and Junior
Subordinated Deferrable Interest Debentures of Owens Corning and Guarantees by
Owens Corning with respect to the Preferred Securities of certain statutory
business trusts (collectively, the "Securities"), to be offered from time to
time by Owens Corning (through underwriters or otherwise), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in any and all capacities to
a Registration Statement on Form S-3 to be filed with the Securities and
Exchange Commission in respect of the Securities, to any and all amendments,
including post-effective amendments, or supplements to such Registration
Statement, to any additional Registration Statements to be filed pursuant to
Rule 462(b) under the Act and to any and all instruments or documents filed as
a part of, or in connection with, any Registration Statement referred to above
or amendments or supplements thereto; and the undersigned hereby ratifies and
confirms all that the said attorneys and agents, or any of them, shall do or
cause to be done by virtue hereof.
Signed this 28th day of March, 1997.
/s/ William Colville
---------------------------------
William Colville
<PAGE> 7
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS: That the undersigned hereby constitutes
and appoints David W. Devonshire, Michael I. Miller and Christian L. Campbell
and each of them (with full power to act alone), the undersigned's true and
lawful attorney and agent, with full power of substitution and resubstitution,
in the name and on behalf of the undersigned, to do any and all acts and things
and to execute any and all instruments which said attorneys and agents, or any
of them, may deem necessary or advisable in compliance with the Securities Act
of 1933, as amended (the "Act"), and any rules, regulations and requirements of
the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Act of Debt Securities, Preferred Stock, Common
Stock, Warrants, Stock Purchase Contracts, Stock Purchase Units and Junior
Subordinated Deferrable Interest Debentures of Owens Corning and Guarantees by
Owens Corning with respect to the Preferred Securities of certain statutory
business trusts (collectively, the "Securities"), to be offered from time to
time by Owens Corning (through underwriters or otherwise), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in any and all capacities to
a Registration Statement on Form S-3 to be filed with the Securities and
Exchange Commission in respect of the Securities, to any and all amendments,
including post-effective amendments, or supplements to such Registration
Statement, to any additional Registration Statements to be filed pursuant to
Rule 462(b) under the Act and to any and all instruments or documents filed as
a part of, or in connection with, any Registration Statement referred to above
or amendments or supplements thereto; and the undersigned hereby ratifies and
confirms all that the said attorneys and agents, or any of them, shall do or
cause to be done by virtue hereof.
Signed this 28th day of March, 1997.
/s/ John Dasburg
---------------------------------
John Dasburg
<PAGE> 8
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS: That the undersigned hereby constitutes
and appoints David W. Devonshire, Michael I. Miller and Christian L. Campbell
and each of them (with full power to act alone), the undersigned's true and
lawful attorney and agent, with full power of substitution and resubstitution,
in the name and on behalf of the undersigned, to do any and all acts and things
and to execute any and all instruments which said attorneys and agents, or any
of them, may deem necessary or advisable in compliance with the Securities Act
of 1933, as amended (the "Act"), and any rules, regulations and requirements of
the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Act of Debt Securities, Preferred Stock, Common
Stock, Warrants, Stock Purchase Contracts, Stock Purchase Units and Junior
Subordinated Deferrable Interest Debentures of Owens Corning and Guarantees by
Owens Corning with respect to the Preferred Securities of certain statutory
business trusts (collectively, the "Securities"), to be offered from time to
time by Owens Corning (through underwriters or otherwise), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in any and all capacities to
a Registration Statement on Form S-3 to be filed with the Securities and
Exchange Commission in respect of the Securities, to any and all amendments,
including post-effective amendments, or supplements to such Registration
Statement, to any additional Registration Statements to be filed pursuant to
Rule 462(b) under the Act and to any and all instruments or documents filed as
a part of, or in connection with, any Registration Statement referred to above
or amendments or supplements thereto; and the undersigned hereby ratifies and
confirms all that the said attorneys and agents, or any of them, shall do or
cause to be done by virtue hereof.
Signed this 31st day of March, 1997.
/s/ Landon Hilliard
---------------------------------
Landon Hilliard
<PAGE> 9
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS: That the undersigned hereby constitutes
and appoints David W. Devonshire, Michael I. Miller and Christian L. Campbell
and each of them (with full power to act alone), the undersigned's true and
lawful attorney and agent, with full power of substitution and resubstitution,
in the name and on behalf of the undersigned, to do any and all acts and things
and to execute any and all instruments which said attorneys and agents, or any
of them, may deem necessary or advisable in compliance with the Securities Act
of 1933, as amended (the "Act"), and any rules, regulations and requirements of
the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Act of Debt Securities, Preferred Stock, Common
Stock, Warrants, Stock Purchase Contracts, Stock Purchase Units and Junior
Subordinated Deferrable Interest Debentures of Owens Corning and Guarantees by
Owens Corning with respect to the Preferred Securities of certain statutory
business trusts (collectively, the "Securities"), to be offered from time to
time by Owens Corning (through underwriters or otherwise), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in any and all capacities to
a Registration Statement on Form S-3 to be filed with the Securities and
Exchange Commission in respect of the Securities, to any and all amendments,
including post-effective amendments, or supplements to such Registration
Statement, to any additional Registration Statements to be filed pursuant to
Rule 462(b) under the Act and to any and all instruments or documents filed as
a part of, or in connection with, any Registration Statement referred to above
or amendments or supplements thereto; and the undersigned hereby ratifies and
confirms all that the said attorneys and agents, or any of them, shall do or
cause to be done by virtue hereof.
Signed this 31st day of March, 1997.
/s/ Sir Trevor Holdsworth
---------------------------------
Sir Trevor Holdsworth
<PAGE> 10
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS: That the undersigned hereby constitutes
and appoints David W. Devonshire, Michael I. Miller and Christian L. Campbell
and each of them (with full power to act alone), the undersigned's true and
lawful attorney and agent, with full power of substitution and resubstitution,
in the name and on behalf of the undersigned, to do any and all acts and things
and to execute any and all instruments which said attorneys and agents, or any
of them, may deem necessary or advisable in compliance with the Securities Act
of 1933, as amended (the "Act"), and any rules, regulations and requirements of
the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Act of Debt Securities, Preferred Stock, Common
Stock, Warrants, Stock Purchase Contracts, Stock Purchase Units and Junior
Subordinated Deferrable Interest Debentures of Owens Corning and Guarantees by
Owens Corning with respect to the Preferred Securities of certain statutory
business trusts (collectively, the "Securities"), to be offered from time to
time by Owens Corning (through underwriters or otherwise), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in any and all capacities to
a Registration Statement on Form S-3 to be filed with the Securities and
Exchange Commission in respect of the Securities, to any and all amendments,
including post-effective amendments, or supplements to such Registration
Statement, to any additional Registration Statements to be filed pursuant to
Rule 462(b) under the Act and to any and all instruments or documents filed as
a part of, or in connection with, any Registration Statement referred to above
or amendments or supplements thereto; and the undersigned hereby ratifies and
confirms all that the said attorneys and agents, or any of them, shall do or
cause to be done by virtue hereof.
Signed this 31st day of March, 1997.
/s/ Jon M. Huntsman, Jr.
---------------------------------
Jon M. Huntsman, Jr.
<PAGE> 11
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS: That the undersigned hereby constitutes
and appoints David W. Devonshire, Michael I. Miller and Christian L. Campbell
and each of them (with full power to act alone), the undersigned's true and
lawful attorney and agent, with full power of substitution and resubstitution,
in the name and on behalf of the undersigned, to do any and all acts and things
and to execute any and all instruments which said attorneys and agents, or any
of them, may deem necessary or advisable in compliance with the Securities Act
of 1933, as amended (the "Act"), and any rules, regulations and requirements of
the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Act of Debt Securities, Preferred Stock, Common
Stock, Warrants, Stock Purchase Contracts, Stock Purchase Units and Junior
Subordinated Deferrable Interest Debentures of Owens Corning and Guarantees by
Owens Corning with respect to the Preferred Securities of certain statutory
business trusts (collectively, the "Securities"), to be offered from time to
time by Owens Corning (through underwriters or otherwise), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in any and all capacities to
a Registration Statement on Form S-3 to be filed with the Securities and
Exchange Commission in respect of the Securities, to any and all amendments,
including post-effective amendments, or supplements to such Registration
Statement, to any additional Registration Statements to be filed pursuant to
Rule 462(b) under the Act and to any and all instruments or documents filed as
a part of, or in connection with, any Registration Statement referred to above
or amendments or supplements thereto; and the undersigned hereby ratifies and
confirms all that the said attorneys and agents, or any of them, shall do or
cause to be done by virtue hereof.
Signed this 3rd day of April, 1997.
/s/ Ann Iverson
---------------------------------
Ann Iverson
<PAGE> 12
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS: That the undersigned hereby constitutes
and appoints David W. Devonshire, Michael I. Miller and Christian L. Campbell
and each of them (with full power to act alone), the undersigned's true and
lawful attorney and agent, with full power of substitution and resubstitution,
in the name and on behalf of the undersigned, to do any and all acts and things
and to execute any and all instruments which said attorneys and agents, or any
of them, may deem necessary or advisable in compliance with the Securities Act
of 1933, as amended (the "Act"), and any rules, regulations and requirements of
the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Act of Debt Securities, Preferred Stock, Common
Stock, Warrants, Stock Purchase Contracts, Stock Purchase Units and Junior
Subordinated Deferrable Interest Debentures of Owens Corning and Guarantees by
Owens Corning with respect to the Preferred Securities of certain statutory
business trusts (collectively, the "Securities"), to be offered from time to
time by Owens Corning (through underwriters or otherwise), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in any and all capacities to
a Registration Statement on Form S-3 to be filed with the Securities and
Exchange Commission in respect of the Securities, to any and all amendments,
including post-effective amendments, or supplements to such Registration
Statement, to any additional Registration Statements to be filed pursuant to
Rule 462(b) under the Act and to any and all instruments or documents filed as
a part of, or in connection with, any Registration Statement referred to above
or amendments or supplements thereto; and the undersigned hereby ratifies and
confirms all that the said attorneys and agents, or any of them, shall do or
cause to be done by virtue hereof.
Signed this 3rd day of April, 1997.
/s/ W. Walker Lewis
---------------------------------
W. Walker Lewis
<PAGE> 13
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS: That the undersigned hereby constitutes
and appoints David W. Devonshire, Michael I. Miller and Christian L. Campbell
and each of them (with full power to act alone), the undersigned's true and
lawful attorney and agent, with full power of substitution and resubstitution,
in the name and on behalf of the undersigned, to do any and all acts and things
and to execute any and all instruments which said attorneys and agents, or any
of them, may deem necessary or advisable in compliance with the Securities Act
of 1933, as amended (the "Act"), and any rules, regulations and requirements of
the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Act of Debt Securities, Preferred Stock, Common
Stock, Warrants, Stock Purchase Contracts, Stock Purchase Units and Junior
Subordinated Deferrable Interest Debentures of Owens Corning and Guarantees by
Owens Corning with respect to the Preferred Securities of certain statutory
business trusts (collectively, the "Securities"), to be offered from time to
time by Owens Corning (through underwriters or otherwise), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in any and all capacities to
a Registration Statement on Form S-3 to be filed with the Securities and
Exchange Commission in respect of the Securities, to any and all amendments,
including post-effective amendments, or supplements to such Registration
Statement, to any additional Registration Statements to be filed pursuant to
Rule 462(b) under the Act and to any and all instruments or documents filed as
a part of, or in connection with, any Registration Statement referred to above
or amendments or supplements thereto; and the undersigned hereby ratifies and
confirms all that the said attorneys and agents, or any of them, shall do or
cause to be done by virtue hereof.
Signed this 31st day of March, 1997.
/s/ Furman C. Moseley, Jr.
---------------------------------
Furman C. Moseley, Jr.
<PAGE> 14
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS: That the undersigned hereby constitutes
and appoints David W. Devonshire, Michael I. Miller and Christian L. Campbell
and each of them (with full power to act alone), the undersigned's true and
lawful attorney and agent, with full power of substitution and resubstitution,
in the name and on behalf of the undersigned, to do any and all acts and things
and to execute any and all instruments which said attorneys and agents, or any
of them, may deem necessary or advisable in compliance with the Securities Act
of 1933, as amended (the "Act"), and any rules, regulations and requirements of
the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Act of Debt Securities, Preferred Stock, Common
Stock, Warrants, Stock Purchase Contracts, Stock Purchase Units and Junior
Subordinated Deferrable Interest Debentures of Owens Corning and Guarantees by
Owens Corning with respect to the Preferred Securities of certain statutory
business trusts (collectively, the "Securities"), to be offered from time to
time by Owens Corning (through underwriters or otherwise), including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in any and all capacities to
a Registration Statement on Form S-3 to be filed with the Securities and
Exchange Commission in respect of the Securities, to any and all amendments,
including post-effective amendments, or supplements to such Registration
Statement, to any additional Registration Statements to be filed pursuant to
Rule 462(b) under the Act and to any and all instruments or documents filed as
a part of, or in connection with, any Registration Statement referred to above
or amendments or supplements thereto; and the undersigned hereby ratifies and
confirms all that the said attorneys and agents, or any of them, shall do or
cause to be done by virtue hereof.
Signed this 28th day of March, 1997.
/s/ W. Ann Reynolds
---------------------------------
W. Ann Reynolds
