<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) May 1, 1997
-----------------------
Owens Corning
- --------------------------------------------------------------------------------
(Exact name of Registrant as specified in its charter)
Delaware 1-3660 34-4323452
- --------------------------------------------------------------------------------
(State or other (Commission File (I.R.S. Employer
jurisdiction of Number) Identification
incorporation) No.)
Owens Corning World Headquarters, Toledo, Ohio 43659
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (419) 248-8000
--------------------
None
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report.)
<PAGE> 2
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
The following items are filed with reference to the Registration Statement, as
amended, on Form S-3 (Reg. No. 333-24501), of Owens Corning, Owens Corning
Capital II and Owens Corning Capital III:
Exhibit Number by Reference to
Item 601 of Regulation S-K Description
-------------------------- -----------
1.1 Distribution Agreement, dated May 1,
1997, in connection with offers and
sales of medium-term notes of Owens
Corning.
4.5.1 Indenture, dated as of May 5,
1997, between Owens Corning and
The Bank of New York, as Trustee.
4.5.3(a) Form of fixed rate medium-term
note.
4.5.3(b) Form of floating rate medium
term note.
2
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
OWENS CORNING
May 14, 1997 By: /s/ Michael I. Miller
- ---------------------- --------------------------------
(Date) Name: Michael I. Miller
Title: Vice President & Treasurer
3
<PAGE> 4
EXHIBIT INDEX
-------------
Exhibit Description
------- -----------
1.1 Distribution Agreement, dated May 1, 1997, in
connection with offers and sales of medium-term
notes of Owens Corning.
4.5.1 Indenture, dated as of May 5, 1997, between
Owens Corning and The Bank of New York, as
Trustee.
4.5.3(a) Form of fixed rate medium-term note.
4.5.3(b) Form of floating rate medium-term note.
4
<PAGE> 1
EXHIBIT 1.1
OWENS CORNING
$300,000,000
Medium-Term Notes
Distribution Agreement
----------------------
May 1, 1997
Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Chase Securities Inc.,
270 Park Avenue,
New York, New York 10017.
Credit Suisse First Boston Corporation,
11 Madison Avenue,
New York, New York 10010.
Dillon, Read & Co. Inc.,
535 Madison Avenue,
New York, New York 10022.
Ladies and Gentlemen:
Owens Corning, a Delaware corporation (the "Company"), proposes to issue
and sell from time to time its Medium-Term Notes (the "Securities") in an
aggregate amount up to $300,000,000 and agrees with each of you (individually,
an "Agent", and collectively, the "Agents") as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the reservation by
the Company of the right to sell Securities directly on its own behalf, the
Company hereby (i) appoints each Agent as an agent of the Company for the
purpose of soliciting and receiving offers to purchase Securities from the
Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into
<PAGE> 2
a separate agreement (each a "Terms Agreement"), substantially in the form of
Annex I hereto, relating to such sale in accordance with Section 2(b) hereof.
This Distribution Agreement shall not be construed to create either an
obligation on the part of the Company to sell any Securities or an obligation of
any of the Agents to purchase Securities as principal.
The Securities will be issued under an indenture, to be dated as of May 5,
1997 (the "Indenture"), between the Company and The Bank of New York, as Trustee
(the "Trustee"). The Securities shall have the maturity ranges, interest rates,
if any, redemption provisions and other terms set forth in the Prospectus
referred to below as it may be amended or supplemented from time to time. The
Securities will be issued, and the terms and rights thereof established, from
time to time by the Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, each Agent
that:
(a) A registration statement on Form S-3 (File No. 333-24501) (the
"Initial Registration Statement") in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission");
the Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to
such Agent, excluding exhibits to such registration statement, but
including all documents incorporated by reference in the prospectus
included therein, have been declared effective by the Commission in
such form; other than a registration statement, if any, increasing the
size of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which became effective upon filing, and any other
registration statement that may be filed pursuant to Rule 413 under the
Act solely in connection with the issuance of securities described in
the Initial Registration Statement other than the Securities, no other
document with respect to the Initial Registration Statement or
documents incorporated by reference therein has been filed or
transmitted for filing with the Commission (other than the prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act, each in the form heretofore delivered to the
Agents) on or prior to the date hereof; and no stop order suspending
the effectiveness of the Initial Registration Statement has been issued
and no proceeding for that purpose has been initiated or threatened by
the Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Act,
are hereinafter called a "Preliminary Prospectus"; the Initial
Registration Statement and the various parts thereof, including all
exhibits thereto and the documents incorporated by reference in the
prospectus contained in the registration statement at the time the
Initial Registration Statement or such part thereof became effective
but excluding the statement of eligibility of the Trustee on Form T-1,
each as amended at the time the Initial Registration Statement or such
part thereof became effective, are hereinafter collectively called the
"Registration Statement"; the prospectus (including, if applicable, any
prospectus supplement) relating to the Securities, in the form in which
it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, is hereinafter
called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant
2
<PAGE> 3
to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the
Prospectus, including any supplement to the Prospectus that sets forth
only the terms of a particular issue of the Securities (a "Pricing
Supplement"), shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus or Prospectus, as
the case may be, under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and incorporated therein by reference; any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed
to refer to and include the Prospectus as amended or supplemented
(including by the applicable Pricing Supplement filed in accordance
with Section 4(a) hereof) in relation to Securities to be sold pursuant
to this Agreement, in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act and in accordance with Section
4(a) hereof, including any documents incorporated by reference therein
as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, or any further amendment
or supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements
of the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by any Agent expressly for use in the Prospectus as
amended or supplemented relating to a particular issuance of Securities
3
<PAGE> 4
(d) Otherwise than as set forth or contemplated in the Prospectus,
or as advised to you in an officer's certificate delivered to you the
date that this representation is made or deemed to be made, (i) neither
the Company nor any of its subsidiaries has sustained since the date of
the latest audited financial statements included or incorporated by
reference in the Prospectus any material loss to, or material
interference with, their businesses, taken as a whole, from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree; and (ii) since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been any material change in the capital stock or
long-term debt of the Company and its subsidiaries on a consolidated
basis (other than (x) increases not in excess of $50,000,000 in
borrowings outstanding under credit facilities and (y) Securities
issued pursuant to this Agreement) or any material adverse change, or
any development which the Company has reasonable cause to believe will
involve a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, taken as
a whole;
(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(f) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
(g) The Securities have been duly authorized (or, in the case of
Securities having maturities greater than five years, will have been
duly authorized as of the time of their issuance), and, when issued and
delivered against payment therefor as provided in this Agreement and
any Terms Agreement, will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles, and will be entitled to the benefits provided by the
Indenture, which will be substantially in the form filed as an exhibit
to the Registration Statement; the Indenture has been duly authorized
and duly qualified under the Trust Indenture Act and, at the first Time
of Delivery for any Securities, will constitute a valid and legally
binding instrument of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Indenture conforms and the Securities of any
particular issuance of Securities will conform, in each case in all
material respects, to the descriptions thereof contained in the
Prospectus as amended or supplemented to relate to such issuance of
Securities;
(h) The issue and sale of the Securities, the compliance by the
Company with all of
4
<PAGE> 5
the provisions of the Securities, the Indenture, this Agreement and any
Terms Agreement, and the consummation of the transactions herein and
therein contemplated (A) will not, subject to the Company's compliance
with any applicable covenants pertaining to the incurrence of unsecured
indebtedness contained therein, conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument (other than any of the foregoing which involves
obligations not exceeding $5,000,000) to which the Company is a party
or by which the Company is bound or to which any of the property or
assets of the Company is subject, and (B) will not result in any
violation of the provisions of the Certificate of Incorporation, as
amended, or the By-laws of the Company; nor will such actions result in
a violation of the provisions of any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties, the effect of
which violation, individually or in the aggregate, is reasonably likely
to have a material adverse effect on the business, properties,
financial condition or results of operations of the Company and its
subsidiaries taken as a whole; and no consent, approval, authorization,
order, registration or qualification of or with any court or
governmental agency or body is required by the Company for the
solicitation of offers to purchase Securities, the issue and sale of
the Securities or the consummation by the Company of the other
transactions contemplated by this Agreement, any Terms Agreement or the
Indenture, except such as have been, or will have been on or prior to
the Commencement Date (as defined in Section 3 hereof), obtained under
the Act or the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
solicitation by such Agent of offers to purchase Securities from the
Company and with purchases of Securities by such Agent as principal, as
the case may be, in each case in the manner contemplated hereby. As of
the date of each acceptance by the Company of an offer for the purchase
of Securities pursuant to this Agreement (including any commitment by
an Agent to purchase Securities as principal not pursuant to a Terms
Agreement), as of the date of each Terms Agreement and as of the date
of each delivery of Securities hereunder by the Company, the Company,
by such acceptance or delivery, as the case may be, shall be deemed to
represent and warrant to the Agents that, both immediately before and
immediately after giving effect to such acceptance or delivery, the
Company shall be in compliance with the requirements of any applicable
covenants pertaining to its incurrence of unsecured indebtedness
contained in the agreements or instruments referred to in clause (A)
above;
(i) Neither the Company nor any of its subsidiaries is in
violation of its organizational documents or in default in the
performance or observance of any obligation, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound, the result of which
default, individually or in the aggregate, is reasonably likely to have
a material adverse effect on the business, properties, financial
condition or results of operations of the Company and its subsidiaries
taken as a whole;
(j) The statements set forth in the Prospectus under the captions
"Description of
5
<PAGE> 6
Debt Securities" and "Description of the Notes", insofar as they
purport to constitute a summary of the terms of the Securities, and
under the caption "United States Taxation", insofar as they purport to
describe the provisions of the laws and documents referred to therein,
are accurate and fair descriptions or summaries in all material
respects;
(k) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject with respect
to which there is a reasonable likelihood of determination which would
individually or in the aggregate have a material adverse effect on the
consolidated financial position of the Company and its subsidiaries;
and, other than as set forth or contemplated in the Prospectus, to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(l) The Company is not and, after giving effect to each offering
and sale of the Securities, will not be an "investment company" or an
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(m) Immediately after any sale of Securities by the Company
hereunder or under any Terms Agreement, the aggregate amount of
Securities which shall have been issued and sold by the Company
hereunder or under any Terms Agreement and of any securities of the
Company (other than such Securities) that shall have been issued and
sold pursuant to the Registration Statement will not exceed the amount
of securities registered under the Registration Statement and under any
registration statement filed by the Company pursuant to Rule 413 under
the Act solely in connection with the issuance of securities described
in the Registration Statement; and
(n) Arthur Andersen LLP, who have audited certain financial
statements of the Company and its subsidiaries, are, to the best of the
Company's knowledge, independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder.
2. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth,
each of the Agents hereby severally and not jointly agrees, as agent of
the Company, to use its reasonable efforts to solicit and receive
offers to purchase the Securities from the Company upon the terms and
conditions set forth in the Prospectus as amended or supplemented from
time to time. The Company reserves the right to sell Securities through
one or more additional agents or directly to certain investment banking
firms as underwriters for resale to the public on terms substantially
identical to those set forth herein. The Company shall notify the
Agents at least two business days prior to any such sale of Securities
through additional agents or to other investment banking firms or
underwriters. In addition, the Company reserves the right to sell, and
may solicit and accept offers to purchase, Securities directly on its
own behalf in transactions with persons other than broker-dealers, and,
in the case of any such sale not resulting from a solicitation made by
any Agent, no commission will be payable with respect to such sale.
These
6
<PAGE> 7
provisions shall not limit Section 4(f) hereof or any similar provision
included in any Terms Agreement.
Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase Securities and the
payment in each case therefor shall be as set forth in the
Administrative Procedure attached hereto as Annex II as it may be
amended from time to time by written agreement between the Agents and
the Company (the "Administrative Procedure"). The provisions of the
Administrative Procedure shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. Each
Agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by each of them in
the Administrative Procedure. The Company will furnish to the Trustee a
copy of the Administrative Procedure as from time to time in effect.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Securities. As
soon as practicable, but in any event not later than one business day
in New York City, after receipt of notice from the Company, the Agents
will suspend solicitation of offers to purchase Securities from the
Company until such time as the Company has advised the Agents that such
solicitation may be resumed. During such period, the Company shall not
be required to comply with the provisions of Sections 4(h), 4(i), 4(j)
and 4(k). Upon advising the Agents that such solicitation may be
resumed, however, the Company shall simultaneously provide the
documents required to be delivered by Sections 4(h), 4(i), 4(j) and
4(k), and the Agents shall have no obligation to solicit offers to
purchase the Securities until such documents have been received by the
Agents. In addition, any failure by the Company to comply with its
obligations hereunder, including without limitation its obligations to
deliver the documents required by Sections 4(h), 4(i), 4(j) and 4(k),
if any, shall automatically suspend the Agents' obligations hereunder,
until such time as the Company shall have complied with its obligations
hereunder to the Agents' satisfaction, including without limitation its
obligations to solicit offers to purchase the Securities hereunder as
agent or to purchase Securities hereunder as principal.
The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent, in an amount equal to the following
applicable percentage of the principal amount of such Security sold:
7
<PAGE> 8
<TABLE>
<CAPTION>
Commission
(percentage of
aggregate
principal amount
of Securities sold)
-------------------
Range of Maturities
-------------------
<S> <C> <C>
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to 30 years .750%
More than 30 years *
* To be determined at the time of issuance.
</TABLE>
(b) Each sale of Securities to any Agent as principal shall be
made in accordance with the terms of this Agreement and (unless the
Company and such Agent shall otherwise agree) a Terms Agreement which
will provide for the sale of such Securities to, and the purchase
thereof by, such Agent; a Terms Agreement may also specify certain
provisions relating to
8
<PAGE> 9
the reoffering of such Securities by such Agent; the commitment
of any Agent to purchase Securities as principal, whether pursuant to
any Terms Agreement or otherwise, shall be deemed to have been made on
the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set
forth; each Terms Agreement shall specify the principal amount of
Securities to be purchased by any Agent pursuant thereto, the price to
be paid to the Company for such Securities, any provisions relating to
rights of, and default by, underwriters acting together with such
Agent in the reoffering of the Securities and the time and date and
place of delivery of and payment for such Securities; and such Terms
Agreement shall also specify any requirements for opinions of counsel,
accountants' letters and officers' certificates pursuant to Section 4
hereof. Each Agent proposes to offer Securities purchased by it as
principal for sale at prevailing market prices or prices related
thereto at the time of sale, which may be equal to, greater than or
less than the price at which such Securities are purchased by such
Agent from the Company.
For each sale of Securities to an Agent as principal that is not
made pursuant to a Terms Agreement, the procedural details relating to
the issue and delivery of such Securities and payment therefor shall be
as set forth in the Administrative Procedure. For each such sale of
Securities to an Agent as principal that is not made pursuant to a
Terms Agreement, the Company agrees to pay such Agent a commission (or
grant an equivalent discount) as provided in Section 2(a) hereof and in
accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities to be
purchased by an Agent as principal, whether set forth in a Terms
Agreement or in accordance with the Administrative Procedure, is
referred to herein as a "Time of Delivery".
(c) Each Agent agrees, with respect to any Security denominated in
a currency other than U.S. dollars, as agent, directly or indirectly,
not to solicit offers to purchase, and as principal under any Terms
Agreement or otherwise, directly or indirectly, not to offer, sell or
deliver, such Security in, or to residents of, the country issuing such
currency, except as permitted by applicable law.
3. The documents required to be delivered pursuant to Section 6 hereof on
the Commencement Date (as defined below) shall be delivered to the Agents at the
offices of Sullivan & Cromwell, New York, New York, at 11:00 a.m., New York City
time, on the date of this Agreement, which date and time of such delivery may be
postponed by agreement between the Agents and the Company but in no event shall
be later than three business days after the Signing Date (as defined below)
(such time and date being referred to herein as the "Commencement Date"). The
Signing Date shall be no later than the day on or prior to the date on which
solicitation of offers to purchase Securities is commenced or on which any Terms
Agreement is executed.
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (other than by means of incorporation of
documents by reference into the Registration Statement or Prospectus or
in connection with any supplement to the Prospectus relating solely to
any securities to be offered thereunder other than the Securities) (A)
prior
9
<PAGE> 10
to the Commencement Date which shall be disapproved in good faith by
any Agent promptly after reasonable notice thereof or (B) after the
date of any Terms Agreement or other agreement by an Agent to purchase
Securities as principal and prior to the related Time of Delivery which
shall be disapproved in good faith by any Agent party to such Terms
Agreement or so purchasing as principal promptly after reasonable
notice thereof; (ii) to prepare, with respect to any Securities to be
sold through or to such Agent pursuant to this Agreement, a Pricing
Supplement with respect to such Securities in a form previously
approved by such Agent and to file such Pricing Supplement pursuant to
Rule 424(b) under the Act not later than the close of business of the
Commission on the fifth business day after the date on which such
Pricing Supplement is first used; (iii) from the time any solicitation
regarding sale of any Securities is begun until all such Securities
have been sold or such solicitation has ceased, to make no amendment or
supplement to the Registration Statement or Prospectus (other than by
means of incorporation of documents by reference into the Registration
Statement or Prospectus or in connection with any supplement to the
Prospectus relating solely to any securities to be offered thereunder
other than the Securities), other than any Pricing Supplement, at any
time prior to having afforded each Agent a reasonable opportunity to
review and comment thereon; (iv) to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act during any period that and for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Securities, and during such same period to advise such
Agent, promptly after the Company receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or has
become effective or any supplement to the Prospectus or amended
Prospectus relating to the Securities has been filed with the
Commission, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating
to the Securities, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the initiation
of any proceeding for any such purpose, or of any request by the
Commission for the amendment or supplement of the Registration
Statement or Prospectus (other than any supplement to a Prospectus
relating solely to any securities other than the Securities) or for
additional information; and (v) in the event of the issuance of any
such stop order or of any such order preventing or suspending the use
of any such Prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as such Agent
may reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions in the United States as
such Agent may request and to comply with such laws so as to permit the
continuance of sales and dealings therein for as long as may be
necessary to complete the distribution or sale of the Securities;
provided, however, that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) To furnish such Agent with copies of the Registration
Statement and each amendment thereto, with copies of the Prospectus as
each time amended or supplemented, other than any Pricing Supplement
(except as provided in the Administrative Procedure), in
10
<PAGE> 11
the form in which it is filed with the Commission pursuant to Rule 424
under the Act, and with copies of the documents incorporated by
reference therein, all in such quantities as such Agent may reasonably
request from time to time; and, if the delivery of a Prospectus is
required at any time in connection with the offering or sale of the
Securities (including Securities purchased from the Company by such
Agent as principal) and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Act or the
Trust Indenture Act, to notify such Agent and request such Agent, in
its capacity as agent of the Company, to suspend solicitation of offers
to purchase Securities from the Company (and, if so notified, such
Agent shall cease such solicitations as soon as practicable, but in any
event not later than one business day later); and if the Company shall
decide to amend or supplement the Registration Statement or the
Prospectus as then amended or supplemented, to so advise such Agent
promptly by telephone (with confirmation in writing) and to prepare and
cause to be filed with the Commission an amendment or supplement to the
Registration Statement or the Prospectus as then amended or
supplemented that will correct such statement or omission or effect
such compliance; provided, however, that if during such same period
such Agent continues to own Securities purchased from the Company by
such Agent as principal or such Agent is otherwise required to deliver
a prospectus in respect of transactions in the Securities, the Company
shall promptly prepare and file with the Commission such an amendment
or supplement;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) So long as any Securities are outstanding, to furnish to such
Agent promptly upon request copies of all reports or other
communications (financial or other) furnished to stockholders, and
deliver to such Agent promptly upon request (i) as soon as they are
available, copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange on
which any class of securities of the Company is listed; and (ii) such
additional information concerning the business and financial condition
of the Company as such Agent may from time to time reasonably request
(such financial statements to be on a consolidated basis to the extent
the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission);
11
<PAGE> 12
(f) That, from the date of any Terms Agreement with such Agent or
other agreement by such Agent to purchase Securities as principal and
continuing to and including the later of (i) the termination of the
trading restrictions for the Securities purchased thereunder, as
notified to the Company by such Agent and (ii) the related Time of
Delivery, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company which both mature more than 9 months
after such Time of Delivery and are substantially similar to the
Securities, without the prior written consent of such Agent;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase by such Agent as principal
not pursuant to a Terms Agreement), and each execution and delivery by
the Company of a Terms Agreement with such Agent, shall be deemed to be
an affirmation to such Agent that the representations and warranties of
the Company contained in Section 1 of this Agreement are true and
correct as of the date of such acceptance or of such Terms Agreement,
as the case may be, as though made at and as of such date, and an
undertaking that such representations and warranties will be true and
correct as of the settlement date for the Securities relating to such
acceptance or as of the Time of Delivery relating to such sale, as the
case may be, as though made at and as of such date (except that such
representations and warranties shall be deemed to relate to the
Registration Statement and the Prospectus as then amended and
supplemented relating to such Securities);
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement or by a Prospectus supplement relating
solely to any securities to be offered thereunder other than the
Securities), each time a document filed under the Act or the Exchange
Act is incorporated by reference into the Prospectus, and each time the
Company sells Securities to such Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of an opinion
or opinions by Sullivan & Cromwell, counsel to the Agents, as a
condition to the purchase of Securities pursuant to such Terms
Agreement, the Company shall furnish to such counsel such papers and
information as they may reasonably request to enable them to furnish to
such Agent the opinion or opinions referred to in Section 6(b) hereof;
(i) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by (x) the incorporation
of any document by reference except as provided below, (y) a Pricing
Supplement or (z) a Prospectus supplement relating solely to any
securities to be offered thereunder other than the Securities), each
time a report on Form 10-K or Form 10-Q filed by the Company under the
Exchange Act is incorporated by reference into the Prospectus, each
time a report on Form 8-K filed by the Company under the Exchange Act
is incorporated by reference into the Prospectus and such Agent
requests the delivery of opinions under this Section 4(i) and each time
the Company sells Securities to such Agent as principal pursuant to a
Terms Agreement and such Terms Agreement specifies the delivery of
opinions under this Section 4(i) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall furnish
or cause to be furnished forthwith to such Agent the written opinions
of the General Counsel of the Company, and, in the case of the
incorporation by reference into the Prospectus of such a
12
<PAGE> 13
Report on Form 10-K, or otherwise in connection with the events
described above in this Section 4(i) only if the Agent shall request
prior to the applicable date, the written opinion of Debevoise &
Plimpton, counsel for the Company, or other counsel to the Company
satisfactory to such Agent, each dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to such sale, as
the case may be, in form satisfactory to such Agent, to the effect that
such Agent may rely on the opinion of such counsel referred to in
Section 6(c) or Section 6(d) hereof, as the case may be, which was last
furnished to such Agent to the same extent as though it were dated the
date of such letter authorizing reliance (except that the statements in
such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date)
or, in lieu of such opinion, an opinion of substantially the same tenor
as the opinion of such counsel referred to in Section 6(c) or Section
6(d) hereof, as the case may be, but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented
to such date;
(j) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by (x) the incorporation
of any document by reference except as provided below, (y) a Pricing
Supplement or (z) a Prospectus supplement relating solely to any
securities to be offered thereunder other than the Securities), each
time that a report on Form 10-K or Form 10-Q filed by the Company under
the Exchange Act is incorporated by reference into the Prospectus and
each time a report on Form 8-K filed by the Company under the Exchange
Act is incorporated by reference into the Prospectus and such Agent
shall request delivery of a letter of the Company's independent
certified public accountants under this Section 4(j), in any such case
to set forth financial information included in or derived from the
Company's consolidated financial statements or accounting records, and
each time the Company sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement specifies the
delivery of a letter under this Section 4(j) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the Company
shall cause the independent certified public accountants who have
certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement
forthwith to furnish such Agent a letter, dated the date of such
amendment, supplement, incorporation or Time of Delivery relating to
such sale, as the case may be, in form satisfactory to such Agent, of
the same tenor as the letter referred to in Section 6(e) hereof but
modified to relate to the Registration Statement and the Prospectus as
amended or supplemented to the date of such letter, with such changes
as may be necessary to reflect changes in the financial statements and
other information derived from the accounting records of the Company,
to the extent such financial statements and other information are
available as of a date not more than five business days prior to the
date of such letter; provided, however, that, with respect to any
financial information or other matter, such letter may reconfirm as
true and correct at such date as though made at and as of such date,
rather than repeat, statements with respect to such financial
information or other matter made in the letter referred to in Section
6(e) hereof which was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus
shall be amended
13
<PAGE> 14
or supplemented (other than by (x) the incorporation of any document by
reference except as provided below, (y) a Pricing Supplement or (z) a
Prospectus supplement relating solely to any securities to be offered
thereunder other than the Securities), each time a report on Form 10-K
or Form 10-Q filed by the Company under the Exchange Act is
incorporated by reference into the Prospectus, each time a report on
Form 8-K filed by the Company under the Exchange Act is incorporated by
reference into the Prospectus and such Agent shall request delivery of
a certificate under this Section 4(k) and each time the Company sells
Securities to such Agent as principal and the applicable Terms
Agreement specifies the delivery of a certificate under this Section
4(k) as a condition to the purchase of Securities pursuant to such
Terms Agreement, the Company shall furnish or cause to be furnished
forthwith to such Agent a certificate, dated the date of such
supplement, amendment, incorporation or Time of Delivery relating to
such sale, as the case may be, in such form and executed by such
officers of the Company as shall be satisfactory to such Agent, to the
effect that the statements contained in the certificates referred to in
Section 6(j) hereof which was last furnished to such Agent are true and
correct at such date as though made at and as of such date (except that
such statements shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to such date) or, in
lieu of such certificate, certificates of substantially the same tenor
as the certificates referred to in said Section 6(j) but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date; and
(l) To offer to any person who has agreed to purchase Securities
from the Company as the result of an offer to purchase solicited by
such Agent the right to refuse to purchase and pay for such Securities
if, on the related settlement date fixed pursuant to the Administrative
Procedure, any condition set forth in Section 6(a), 6(f), 6(g) or 6(h)
hereof shall not have been satisfied (it being understood that the
judgment of such person with respect to the impracticability or
inadvisability of such purchase of Securities shall be substituted, for
purposes of this Section 4(l), for the respective judgments of an Agent
with respect to certain matters referred to in such Sections 6(f) and
6(h), and that such Agent shall have no duty or obligation whatsoever
to exercise the judgment permitted under such Sections 6(f) and 6(h) on
behalf of any such person).
(m) Prior to the later of (i) such date (a "Board Authorization
Date") as the Board of Directors of the Company or a committee thereof
has duly authorized the issuance and sale of Securities having
maturities in excess of the authorized maturities in effect immediately
preceding such board action (the "Specified Maturities") and (ii) such
date as the Company has delivered to the Agents the Authorization
Opinions and Certificates (as defined below) relating specifically to
the applicable Board Authorization Date and the authorizations in
respect of Securities made on such Board Authorization Date, not to
issue any Securities in any transaction contemplated hereunder with
maturities greater than the Specified Maturities. The Company will
indemnify and hold harmless each Agent against any losses, claims,
damages or liabilities, joint or several, to which such Agent may
become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon the issuance hereunder by the Company
prior to the later of the applicable Board Authorization Date and the
date on which the related
14
<PAGE> 15
Authorization Opinions and Certificates are delivered of Securities
with maturities of greater than the applicable Specified Maturities,
and will reimburse such Agent for any such losses, claims, damages or
liabilities, and any legal or other expenses reasonably incurred by it
in connection with investigating or defending any such action or claim,
promptly as such losses, claims, damages, liabilities or expenses are
incurred. As used herein, the "Authorization Opinions and Certificates"
with respect to any authorization referred to in the first sentence of
this Section 4(m) shall mean the written opinion of Sullivan &
Cromwell, counsel to the Agents, of substantially the same tenor as the
opinion referred to in clause (i) of Section 6(b) insofar as it relates
to the validity of the Securities, the written opinion of Debevoise &
Plimpton, counsel for the Company, or other counsel for the Company
satisfactory to the Agents, of substantially the same tenor as the
opinion referred to in clause (iii) of Section 6(c), and certificates
of officers of the Company, in such form and executed by such officers
of the Company as shall be satisfactory to such Agent, as to such
matters as such Agent may reasonably request.
(n) Not to issue and sell any Securities hereunder if such
issuance and sale would conflict with or result in a breach or
violation of any applicable covenants of the Company in any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument (other than any of the foregoing which involves obligations
not exceeding $5,000,000) to which the Company is a party or by which
the Company is bound or to which any of the property or assets of the
Company is subject, which covenant pertains to the incurrence by the
Company of unsecured indebtedness.
5. The Company covenants and agrees with each Agent that the Company will
pay or cause to be paid the following: (i) the fees, disbursements and expenses
of the Company's counsel and accountants in connection with the registration of
the Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus, the Prospectus and any Pricing Supplements and all other amendments
and supplements thereto and the mailing and delivering of copies thereof to such
Agent; (ii) the fees, disbursements and expenses of one counsel for the Agents
in connection with the establishment of the medium-term notes program
contemplated hereby, any opinions to be rendered by such counsel hereunder and
under any Terms Agreement and in connection with the transactions contemplated
hereunder and under any Terms Agreement; (iii) the cost of printing, producing
or reproducing this Agreement, any Terms Agreement, the Indenture, any Blue Sky
and Legal Investment Memoranda, closing documents (including any compilations
thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Securities; (iv) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 4(b) hereof, including the fees and disbursements of
counsel for the Agents in connection with such qualification and in connection
with the Blue Sky and legal investment surveys; (v) any fees charged by
securities rating services for rating the Securities; (vi) any filing fees
incident to, and the fees and disbursements of counsel for the Agents in
connection with, any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vii) the cost of
preparing the Securities; (viii) the fees and expenses of any Trustee and any
agent of any Trustee and any transfer or paying agent of the Company and the
fees and disbursements of counsel for any Trustee or such agent in connection
with the Indenture and the Securities; (ix) any advertising
15
<PAGE> 16
expenses connected with the solicitation of offers to purchase and the sale of
Securities so long as such advertising expenses have been approved by the
Company; and (x) all other costs and expenses incident to the performance of the
Company's obligations hereunder which are not otherwise specifically provided
for in this Section. Except as provided in Sections 7 and 8 hereof, each Agent
shall pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the Company herein (and, in the case of an obligation of an Agent
under a Terms Agreement, in or incorporated by reference in such Terms
Agreement) are true and correct (i) at and as of the Commencement Date and (ii)
at and as of such Solicitation Time or Time of Delivery, as the case may be
(except that, in the case of this clause (ii), such representations and
warranties shall be deemed to relate to the Registration Statement and the
Prospectus relating to such Securities as amended or supplemented as of such
Solicitation Time, in the case of the solicitation by an Agent, as agent of the
Company, of offers to purchase Securities, or as amended and supplemented as of
the date of the applicable Terms Agreement or other agreement by an Agent to
purchase Securities, in the case of a purchase of Securities by an Agent as
principal), the condition that prior to such Solicitation Time or Time of
Delivery, as the case may be, the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) (i) With respect to any Securities sold at such Solicitation
Time or Time of Delivery, as the case may be, the Prospectus as amended
or supplemented (including the Pricing Supplement) with respect to such
Securities shall have been filed with the Commission pursuant to Rule
424(b) under the Act within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in
accordance with Section 4(a) hereof; (ii) no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceeding for that purpose shall have been initiated or, to the
knowledge of the Company, threatened by the Commission; and (iii) all
requests for additional information on the part of the Commission shall
have been complied with to the reasonable satisfaction of such Agent;
(b) Sullivan & Cromwell, counsel to the Agents, shall have
furnished to such Agent (i) such opinion or opinions, dated the
Commencement Date, with respect to the incorporation of the Company,
the Registration Statement, the Prospectus as amended or supplemented,
the validity of the Securities as well as such other related matters as
such Agent may reasonably request, and (ii) if and to the extent
requested by such Agent prior to the applicable date, with respect to
each applicable date referred to in Section 4(h) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may
be, an opinion or opinions, dated such applicable date, to the effect
that such Agent may rely on the opinion or opinions which were last
furnished to such Agent pursuant to this Section 6(b) to the same
extent as though it or they were dated the date of such letter
authorizing reliance (except that the statements in such last opinion
or opinions shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such
16
<PAGE> 17
date) or, in any case, in lieu of such an opinion or opinions, an
opinion or opinions of substantially the same tenor as the opinion or
opinions referred to in clause (i) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented
to such date; and in each case such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Debevoise & Plimpton, counsel for the Company, or other
counsel for the Company satisfactory to such Agent, shall have
furnished to such Agent their written opinions, dated the Commencement
Date and each applicable date referred to in Section 4(i) hereof that
is on or prior to such Solicitation Time or Time of Delivery, as the
case may be, in form and substance satisfactory to such Agent, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, with corporate power
and authority to own its properties and conduct its business
as described in the Prospectus as amended or supplemented;
(ii) This Agreement and any applicable Terms Agreement
have been duly authorized, executed and delivered by the
Company;
(iii) The Securities have been duly authorized (provided
that prior to the first of any Board Authorization Dates, this
opinion may state that Securities having a maturity of between
nine months and five years from the date of issuance have been
duly authorized, and provided that after any Board
Authorization Date this opinion shall state that Securities
having a maturity of up to the applicable Specified Maturities
have been duly authorized) and, when duly executed,
authenticated, issued and delivered by the Company and, upon
payment therefor by the Agent, will constitute valid and
legally binding obligations of the Company entitled to the
benefits provided by the Indenture; and the Indenture conforms
and the Securities will conform, in each case in all material
respects, to the descriptions thereof in the Prospectus as
amended or supplemented;
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally
binding instrument of the Company, enforceable against the
Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and the Indenture has been duly
qualified under the Trust Indenture Act;
(v) The statements set forth in the Prospectus as amended
or supplemented under the caption "Description of Debt
Securities" and "Description of the Notes", insofar as they
purport to constitute a summary of the terms of the
Securities, and under the caption "United States Taxation",
insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate and fair
descriptions or summaries in all material respects;
17
<PAGE> 18
(vi) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required by or on behalf of the
Company for the solicitation of offers by any Agent to
purchase Securities, the issue and sale of the Securities by
or through any Agent or the consummation by the Company of the
other transactions contemplated by this Agreement (other than
direct sales, or solicitations of offers to purchase, by the
Company), any applicable Terms Agreement or the Indenture,
except such as have been obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the
solicitation by the Agents of offers to purchase Securities
from the Company and with purchases of Securities by an Agent
as principal, as the case may be, in each case in the manner
contemplated hereby;
(vii) The Registration Statement and the Prospectus as
amended and supplemented and any further amendments and
supplements thereto made by the Company prior to the date of
such opinion (other than the financial statements, notes and
schedules thereto included or incorporated by reference
therein, other financial and statistical information included
or incorporated by reference therein and any other document
incorporated by reference therein, as to which such counsel
need express no opinion) comply as to form in all material
respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder;
(viii) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an
"investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act;
Such counsel shall also state that they have conferred with
representatives of the Company, the Company's independent
public accountants, the Agents and others in connection with
the preparation of, and that such counsel have reviewed, the
Registration Statement and the Prospectus as amended and
supplemented (other than the documents incorporated by
reference therein) and any further amendments and supplements
thereto made by the Company prior to the date of such opinion,
and based on the foregoing, although, except with respect to
the information or statements referred to in numbered
paragraph (v) of this Section 6(c) (to the extent set forth in
such paragraph), such counsel are not passing upon and assume
no responsibility for the accuracy and completeness of the
Registration Statement or the Prospectus as amended and
supplemented (or any document incorporated by reference
therein) and any further amendments and supplements thereto
made by the Company prior to the date of such opinion, nothing
has come to the attention of such counsel which caused or
cause such counsel to believe that (A) as of its effective
date, the Registration Statement or any further amendment or
supplement thereto made by the Company prior to the date of
such opinion (other than (x) the financial statements, notes
and schedules thereto included or incorporated by reference
therein, other financial and statistical information included
or incorporated by reference therein and any other document
incorporated by reference therein and (y)
18
<PAGE> 19
the sections of the Prospectus captioned "Incorporation of
Certain Documents by Reference", "The Company", "The Issuers",
"Use of Proceeds", "Condensed Consolidated Capitalization" and
"Selected Consolidated Financial Information" and the section
of the Prospectus supplement captioned "The Company" and any
further supplements or amendments to such sections made by the
Company prior to the date of such opinion, as to which, in
each case referred to in the preceding clauses (x) and (y),
such counsel need express no belief) contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or (B) that, as of the date
of such opinion, the Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the
Company prior to the date of such opinion (other than (x) the
financial statements, notes and schedules thereto included or
incorporated by reference therein, other financial and
statistical information included or incorporated by reference
therein and any other document incorporated by reference
therein and (y) the sections of the Prospectus captioned
"Incorporation of Certain Documents by Reference", "The
Company", "The Issuers", "Use of Proceeds", "Condensed
Consolidated Capitalization" and "Selected Consolidated
Financial Information" and the section of the Prospectus
supplement captioned "The Company" and any further supplements
or amendments to such sections made by the Company prior to
the date of such opinion, as to which, in each case referred
to in the preceding clauses (x) and (y), such counsel need
express no belief) contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances in which
they were made, not misleading.
(d) The General Counsel of the Company shall have furnished to
such Agent his written opinions, dated the Commencement Date and each
applicable date referred to in Section 4(i) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case may be, in
form and substance satisfactory to such Agent, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the State of Delaware, with corporate power and authority to
own its properties and conduct its business as described in
the Prospectus as amended or supplemented;
(ii) The Company has an authorized equity capitalization
as set forth in the Prospectus as amended or supplemented and
all of the issued and outstanding shares of capital stock of
the Company have been duly and validly authorized and issued
and are fully paid and non-assessable;
(iii) To the best of such counsel's knowledge, and other
than as set forth or contemplated in the Prospectus or, if
applicable, in the Prospectus as amended or supplemented as of
the date of any Terms Agreement or as of the date of any
commitment by any Agent to purchase Securities as principal,
there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries
is the subject with respect to which such counsel believes
there is a reasonable likelihood
19
<PAGE> 20
of a determination which would individually or in the
aggregate have a material adverse effect on the consolidated
financial position of the Company and the Company's
subsidiaries; and except as set forth or contemplated in the
Prospectus or, if applicable, in the Prospectus as amended or
supplemented as of the date of any Terms Agreement or as of
the date of any commitment by any Agent to purchase Securities
as principal, and to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(iv) The issue and sale of the Securities, the compliance
by the Company with all of the provisions of the Securities,
the Indenture, this Agreement and any applicable Terms
Agreement and the consummation of the transactions herein and
therein contemplated, to such counsel's knowledge, will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument (other than any of the foregoing which
involve obligations not exceeding $5,000,000) known to such
counsel to which the Company is a party or by which the
Company is bound or to which any of the property or assets of
the Company is subject, nor will such action result in any
violation of the provisions of the Certificate of
Incorporation, as amended, of the Company or the By-laws of
the Company, nor will such action result in any violation of
the provisions of any statute known to such counsel or any
order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the
Company or any of its properties, the effect of which
violation, individually or in the aggregate, is reasonably
likely to have a material adverse effect on the business,
properties, financial condition or results of operations of
the Company (provided that in rendering the opinion provided
in this paragraph (iv), such counsel need express no opinion
with respect to (A) in connection with an opinion delivered
pursuant to any Terms Agreement or in connection with any
other sale of Securities to any Agent as principal, whether
the issuance and sale of Securities other than the specified
principal amount of Securities being sold pursuant to such
Terms Agreement or otherwise to such Agent as principal would
be in compliance with any applicable covenants pertaining to
the incurrence of unsecured indebtedness and (B) in all other
cases, whether the issuance and sale of Securities would be in
compliance with any applicable covenants pertaining to the
incurrence of unsecured indebtedness);
(vi) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements, notes and schedules thereto included or
incorporated by reference therein and other financial and
statistical information included or incorporated by reference
therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission,
as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder; and
20
<PAGE> 21
Such counsel shall also state that he or members of the
Company's law department have conferred with representatives
of the Company, the Company's independent public accountants
and others in connection with the preparation of, and that
such counsel or members of the Company's law department under
the supervision of such counsel have reviewed, the documents
incorporated by reference in the Prospectus and the
Registration Statement and the Prospectus as amended and
supplemented and any further amendments and supplements
thereto made by the Company prior to the date of such opinion,
and based on the foregoing, although such counsel is not
passing upon and assumes no responsibility for the accuracy
and completeness of the documents incorporated by reference in
the Prospectus or the Registration Statement or the Prospectus
as amended and supplemented or any further amendments and
supplements thereto made by the Company prior to the date of
such opinion, nothing has come to the attention of such
counsel which caused or cause such counsel to believe that (A)
any of the documents incorporated by reference in the
Prospectus (other than the financial statements, notes and
schedules thereto included or incorporated by reference
therein and other financial and statistical information
included or incorporated by reference therein, as to which
such counsel need express no belief) contained, when they
became effective or were filed with the Commission, as the
case may be, any untrue statement of a material fact or
omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading, or (B) as of the
effective date of the Registration Statement or any further
amendment or supplement thereto made by the Company prior to
the date of such opinion, the documents incorporated by
reference therein (other than the financial statements, notes
and schedules thereto included or incorporated by reference
therein and other financial and statistical information
included or incorporated by reference therein, as to which
such counsel need express no belief) together with the
sections of the Prospectus captioned "Incorporation of Certain
Documents by Reference", "The Company", "The Issuers", "Use of
Proceeds", "Condensed Consolidated Capitalization" and
"Selected Consolidated Financial Information" and the section
of the Prospectus supplement captioned "The Company" and any
further supplements or amendments to such sections made by the
Company prior to the date of such opinion (other than the
financial statements, notes and schedules thereto included or
incorporated by reference therein and other financial and
statistical information included or incorporated by reference
therein, as to which such counsel need express no belief)
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading or
that, as of the date of such opinion, the documents
incorporated by reference in the Prospectus as amended or
supplemented prior to the date of such opinion (other than the
financial statements, notes and schedules thereto included or
incorporated by reference therein and other financial and
statistical information included or incorporated by reference
therein, as to which such counsel express no belief) together
with the sections of the Prospectus captioned "Incorporation
of Certain Documents by Reference", "The Company", "The
Issuers", "Use of Proceeds",
21
<PAGE> 22
"Condensed Consolidated Capitalization" and "Selected
Consolidated Financial Information" and the section of the
Prospectus supplement captioned "The Company" and any further
supplements or amendments to such sections made by the Company
prior to the date of such opinion (other than the financial
statements, notes and schedules thereto included or
incorporated by reference therein and other financial and
statistical information included or incorporated by reference
therein, as to which such counsel need express no belief)
contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements
therein, in light of the circumstances in which they were
made, not misleading.
(e) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section
4(j) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, the independent certified public
accountants who have certified the financial statements of the Company
and its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to such Agent a letter,
dated the Commencement Date or such applicable date, as the case may
be, in form and substance satisfactory to such Agent, to the effect set
forth in Annex III hereto;
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery and
(ii) since the respective dates as of which information is given in the
Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant
Time of Delivery there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries
(other than (x) increases not in excess of $50,000,000 in borrowings
outstanding under credit facilities and (y) Securities issued pursuant
to this Agreement) or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as
set forth or contemplated in the Prospectus as amended or supplemented
prior to the date of the Pricing Supplement relating to the Securities
to be delivered at the relevant Time of Delivery, the effect of which,
in any such case described in clause (i) or (ii), is in the judgment of
such Agent so material and adverse as to make it impracticable or
inadvisable to proceed with the solicitation by such Agent of offers to
purchase Securities from the Company or the purchase by such Agent of
Securities from the Company as principal, as the case may be, on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery;
22
<PAGE> 23
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(h) On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the Company's securities on the
NYSE; (iii) a general moratorium on commercial banking activities in
New York declared by either Federal or New York State authorities; or
(iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency
or war, if the effect of any such event specified in this clause (iv)
in the judgment of such Agent makes it impracticable or inadvisable to
proceed with the solicitation of offers to purchase Securities or the
purchase of the Securities from the Company as principal pursuant to
the applicable Terms Agreement or otherwise, as the case may be, on the
terms and in the manner contemplated in the Prospectus;
(i) With respect to any Security denominated in a currency other
than the U.S. dollar, more than one currency or a composite currency or
any Security the principal or interest of which is indexed to such
currency, currencies or composite currency, there shall not have
occurred a suspension or material limitation in foreign exchange
trading in such currency, currencies or composite currency by a major
international bank, a general moratorium on commercial banking
activities in the country or countries issuing such currency,
currencies or composite currency, the outbreak or escalation of
hostilities involving, the occurrence of any material adverse change in
the existing financial, political or economic conditions of, or the
declaration of war or a national emergency by, the country or countries
issuing such currency, currencies or composite currency or the
imposition or proposal of exchange controls by any governmental
authority in the country or countries issuing such currency, currencies
or composite currency; and
(j) The Company shall have furnished or caused to be furnished to
such Agent certificates of officers of the Company dated the
Commencement Date and each applicable date referred to in Section 4(k)
hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, in such form and executed by such
officers of the Company as shall be satisfactory to such Agent, as to
the accuracy of the representations and warranties of the Company
herein at and as of the Commencement Date or such applicable date, as
the case may be, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to the Commencement
Date or such applicable date, as the case may be, as to the matters set
forth in subsections (a) and (f) of this Section 6, and as to such
other matters as such Agent may reasonably request.
7. (a) The Company will indemnify and hold harmless each Agent against
any losses, claims, damages or liabilities, joint or several, to which
such Agent may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions
23
<PAGE> 24
in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating
to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse such Agent for
any legal or other expenses reasonably incurred by it in connection
with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating
to the Securities, or any such amendment or supplement, in reliance
upon and in conformity with written information furnished to the
Company by such Agent expressly for use therein.
(b) Each Agent will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
the Registration Statement, the Prospectus, the Prospectus as amended
or supplemented or any other prospectus relating to the Securities, or
any amendment or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus,
the Registration Statement, the Prospectus, the Prospectus as amended
or supplemented or any other prospectus relating to the Securities, or
any such amendment or supplement, in reliance upon and in conformity
with written information furnished to the Company by such Agent
expressly for use therein; and will reimburse the Company for any legal
or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying
24
<PAGE> 25
party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
investigation; PROVIDED, HOWEVER, that no indemnifying party shall be
liable for any settlement effected without its written consent (which
consent shall not be unreasonably withheld). No indemnifying party
shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include
a statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and each Agent on the other from the
offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company
on the one hand and each Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and each Agent on the other shall be deemed
to be in the same proportion as the total net proceeds from the sale of
Securities (before deducting expenses) received by the Company bear to
the total commissions or discounts received by such Agent in respect
thereof. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by
the Company on the one hand or by any Agent on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and each Agent agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if all Agents were treated as one entity for such
purpose) or by any other method of allocation which does not take
account of the equitable considerations
25
<PAGE> 26
referred to above in this subsection (d). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this subsection (d), an Agent shall not be required
to contribute any amount in excess of the amount by which the total
public offering price at which the Securities purchased by or through
it were sold exceeds the amount of any damages which such Agent has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of each of
the Agents under this subsection (d) to contribute are several in
proportion to the respective purchases made by or through it to which
such loss, claim, damage or liability (or action in respect thereof)
relates and are not joint.
(e) The obligations of the Company under this Section 7 and under
Section 4(m) shall be in addition to any liability which the Company
may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Agent within the
meaning of the Act; and the obligations of each Agent under this
Section 7 shall be in addition to any liability which such Agent may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company and to each person, if any,
who controls the Company within the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the Company
and in performing the other obligations of such Agent hereunder (other than in
respect of any purchase by an Agent as principal, pursuant to a Terms Agreement
or otherwise), is acting solely as agent for the Company and not as principal.
Each Agent will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Securities from the
Company was solicited by such Agent and has been accepted by the Company, but
such Agent shall not have any liability to the Company in the event such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Securities to a purchaser whose offer it has accepted, the
Company shall (i) hold each Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii)
notwithstanding such default, pay to the Agent that solicited such offer any
commission to which it would be entitled in connection with such sale.
9. The respective indemnities, agreements, representations, warranties and
other statements by any Agent and the Company set forth in or made pursuant to
this Agreement shall remain in full force and effect regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Agent or any controlling person of any Agent, or the Company, or any
officer or director or any controlling person of the Company, and shall survive
each delivery of and payment for any of the Securities.
10. The provisions of this Agreement relating to the solicitation of offers
to purchase Securities from the Company may be suspended or terminated at any
time by the Company as to
26
<PAGE> 27
any Agent or by any Agent as to such Agent upon the giving of written notice of
such suspension or termination to such Agent or the Company, as the case may be.
In the event of such suspension or termination with respect to any Agent, (x)
this Agreement shall remain in full force and effect with respect to any Agent
as to which such suspension or termination has not occurred, (y) this Agreement
shall remain in full force and effect with respect to the rights and obligations
of any party which have previously accrued or which relate to Securities which
are already issued, agreed to be issued or the subject of a pending offer at the
time of such suspension or termination and (z) in any event, this Agreement
shall remain in full force and effect insofar as the fourth paragraph of Section
2(a), and Sections 4(d), 4(e), 5, 7, 9 and 10 hereof are concerned.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in writing,
and if to Goldman, Sachs & Co. shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to 85 Broad
Street, New York, New York 10004, Facsimile Transmission No. (212) 363-7609,
Attention: Credit Department, and if to Chase Securities Inc. shall be
sufficient in all respects when delivered or sent by facsimile transmission or
registered mail to 270 Park Avenue, 8th Floor, New York, New York 10017,
Facsimile Transmission No. (212) 834-6081, Attention: Medium Term Note Desk, and
if to Credit Suisse First Boston Corporation shall be sufficient in all respects
when delivered or sent by facsimile transmission or registered mail to 11
Madison Avenue, New York, New York 10010, Facsimile Transmission No. (212)
325-8183, Attention: Short and Medium Term Finance, and if to Dillon, Read & Co.
Inc. shall be sufficient in all respects when delivered or sent by facsimile
transmission or registered mail to 535 Madison Avenue, New York, New York 10022,
Facsimile Transmission No. (212) 759-8639, Attention: Syndicate Department, and
if to the Company shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to Owens Corning, Owens Corning World
Headquarters, Toledo, Ohio 43659, Attention: Secretary, (419) 248-1723.
12. This Agreement and any Terms Agreement shall be binding upon, and inure
solely to the benefit of, each Agent and the Company, and to the extent provided
in Sections 7, 8 and 9 hereof, the officers and directors of the Company and any
person who controls any Agent or the Company, and their respective personal
representatives, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any Terms Agreement. No
purchaser of any of the Securities through or from any Agent hereunder shall be
deemed a successor or assign by reason merely of such purchase.
13. Time shall be of the essence in this Agreement and any Terms Agreement.
As used herein, the term "business day" shall mean any day when the Commission's
office in Washington, D.C. is open for business.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement and any Terms Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument.
27
<PAGE> 28
If the foregoing is in accordance with your understanding, please sign and
return to us seven counterparts hereof, whereupon this letter and the acceptance
by each of you thereof shall constitute a binding agreement between the Company
and each of you in accordance with its terms.
Very truly yours,
Owens Corning
By: /s/ Michael I. Miller
------------------------------
Name: Michael I. Miller
Title: Vice President and
Treasurer
Accepted in New York, New York,
as of the date hereof:
/s/ Goldman, Sachs & Co.
- ----------------------------------
(Goldman, Sachs & Co.)
Chase Securities Inc.
By: /s/ Leah Schraudenbrach
- ----------------------------------
Name: Leah Schraudenbrach
Title: Vice President
Credit Suisse First Boston Corporation
By: /s/ Helena Wilner
- ----------------------------------
Name: Helena Wilner
Title: Vice President
Dillon, Read & Co. Inc.
/s/ William S. Brenizer
- ----------------------------------
Name: William S. Brenizer
Title: Managing Director
28
<PAGE> 29
ANNEX I
OWENS CORNING
[TITLE OF SECURITY]
TERMS AGREEMENT
, 19
------------------ --
[Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.]
[Chase Securities Inc.,
270 Park Avenue,
New York, New York 10017.]
[Credit Suisse First Boston Corporation,
11 Madison Avenue,
New York, New York 10010.]
[Dillon, Read & Co. Inc.,
535 Madison Avenue,
New York, New York 10022.]
Ladies and Gentlemen:
Owens Corning (the "Company") proposes, subject to the terms and conditions
stated herein and in the Distribution Agreement, dated May 1, 1997 (the
"Distribution Agreement"), between the Company on the one hand and Goldman,
Sachs & Co., Chase Securities Inc., Credit Suisse First Boston Corporation and
Dillon, Read & Co. Inc. (the "Agents") on the other, to issue and sell to
[Goldman, Sachs & Co.], [Chase Securities Inc.], [Credit Suisse First Boston
Corporation] [and] [Dillon, Read & Co. Inc.] the securities specified in the
Schedule hereto (the "Purchased Securities"). Each of the provisions of the
Distribution Agreement not specifically related to the solicitation by
the Agents, as agents of the Company, of offers to purchase Securities is
incorporated herein by reference in its entirety, and shall be deemed to be part
of this Terms Agreement to the same extent
<PAGE> 30
as if such provisions had been set forth in full herein. Nothing contained
herein or in the Distribution Agreement shall make any party hereto an agent of
the Company or make such party subject to the provisions therein relating to the
solicitation of offers to purchase Securities from the Company, solely by virtue
of its execution of this Terms Agreement. Each of the representations and
warranties set forth therein shall be deemed to have been made at and as of the
date of this Terms Agreement, except that each representation and warranty in
Section 1 of the Distribution Agreement which makes reference to the
Registration Statement or the Prospectus shall be deemed to be a representation
and warranty as of the date of the Distribution Agreement in relation to the
Registration Statement or the Prospectus (as each such term is therein defined),
as the case may be, and also a representation and warranty as of the date of
this Terms Agreement in relation to the Registration Statement as amended or the
Prospectus as amended and supplemented.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to [Goldman, Sachs & Co.], [Chase Securities Inc.], [Credit
Suisse First Boston Corporation] [and] [Dillon, Read & Co. Inc.], and [Goldman,
Sachs & Co.], [Chase Securities Inc.], [Credit Suisse First Boston Corporation]
[and] [Dillon, Read & Co. Inc.], severally and not jointly, agree to purchase
from the Company the Purchased Securities, at the time and place, in the
principal amount and at the purchase price set forth in the Schedule hereto.
2
<PAGE> 31
If the foregoing is in accordance with your understanding, please sign and
return to us [seven] counterparts hereof, and upon acceptance hereof by you this
letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
Owens Corning
By:
--------------------------------
Name:
Title:
Accepted:
- -------------------------------------
(Goldman, Sachs & Co.)
Chase Securities Inc.
By:
-----------------------------------
Name:
Title:
Credit Suisse First Boston Corporation
By:
------------------------------------
Name:
Title:
Dillon, Read & Co. Inc.
By:
------------------------------------
Name:
Title:
3
<PAGE> 32
SCHEDULE TO ANNEX I
Title of Purchased Securities:
[ %] Medium-Term Notes[, SERIES ....]
Aggregate Principal Amount:
[$____________________ or units of other Specified Currency]
[PRICE TO PUBLIC:]
Purchase Price by the Agents
% of the principal amount of the Purchased Securities[, PLUS ACCRUED
INTEREST FROM _______________ TO _______________] [AND ACCRUED AMORTIZATION, IF
ANY, FROM _________________ TO ________________]
Method of and Specified Funds for Payment of Purchase Price:
By wire transfer to a bank account specified by the Company in
immediately available funds.
Indenture:
Indenture, dated as of May ___, 1997, between the Company and the
Bank of New York, as Trustee
Time of Delivery:
Closing Location for Delivery of Securities:
Maturity:
Interest Rate:
[ %]
Interest Payment Dates:
[MONTHS AND DATES]
I-1
<PAGE> 33
Documents to be Delivered:
The following documents referred to in the Distribution Agreement
shall be delivered as a condition to the Closing:
[(1) THE OPINION OR OPINIONS OF COUNSEL TO THE AGENTS REFERRED TO IN
SECTION 4(H).]
[(2) THE OPINIONS OF COUNSEL TO THE COMPANY REFERRED TO IN SECTION
4(I).]
[(3) THE ACCOUNTANTS' LETTER REFERRED TO IN SECTION 4(J).]
[(4) THE OFFICERS' CERTIFICATE REFERRED TO IN SECTION 4(K).]
Other Provisions (including Syndicate Provisions, if applicable):
I-2
<PAGE> 34
ANNEX II
OWENS CORNING
ADMINISTRATIVE PROCEDURE
------------------------
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated May 1, 1997 (the "Distribution Agreement"),
between Owens Corning (the "Company") and Goldman, Sachs & Co., Chase Securities
Inc., Credit Suisse First Boston Corporation and Dillon, Read & Co. Inc.
(together, the "Agents"), to which this Administrative Procedure is attached as
Annex II. Defined terms used herein and not defined herein shall have the
meanings given such terms in the Distribution Agreement, the Prospectus as
amended or supplemented or the Indenture, as applicable.
The procedures to be followed with respect to the settlement of sales of
Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. The terms and settlement details related to a
purchase of Securities by an Agent, as principal, from the Company will be set
forth in a Terms Agreement pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in relation
to a purchase of a Security by a purchaser solicited by such Agent, is referred
to herein as the "Selling Agent" and, in relation to a purchase of a Security by
such Agent as principal other than pursuant to a Terms Agreement, as the
"Purchasing Agent".
The Company will advise each Agent in writing of those persons with whom
such Agent is to communicate regarding offers to purchase Securities and the
related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a global security (a "Global Security") delivered to the
Trustee, as agent for The Depository Trust Company (the "Depositary") and
recorded in the book-entry system maintained by the Depositary (a "Book-Entry
Security") or a certificate issued in definitive form (a "Certificated
Security") delivered to a person designated by an Agent, as set forth in the
applicable Pricing Supplement. An owner of a Book-Entry Security will not be
entitled to receive a certificate representing such a Security, except as
provided in the Indenture.
Book-Entry Securities will be issued in accordance with the Administrative
Procedure set forth in Part I hereof, and Certificated Securities will be issued
in accordance with the Administrative Procedure set forth in Part II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
- -----------------------------------------------------------
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the Trustee
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter of
Representation from the Company and the Trustee to the Depositary, to be dated
May 5, 1997, and a Medium-Term Note Certificate Agreement between the Trustee
and the Depositary, dated as of August 17, 1989 (the "Certificate
II-1
<PAGE> 35
Agreement"), and its obligations as a participant in the Depositary, including
the Depositary's Same-Day Funds Settlement System ("SDFS").
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Company decides to change already posted rates, it
will promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Book-Entry Securities as a
Purchasing Agent. The Company will have the sole right to accept offers to
purchase Book-Entry Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Agent or Purchasing Agent, as the case
may be, of its acceptance or rejection of an offer to purchase Book-Entry
Securities. If the Company accepts an offer to purchase Book-Entry Securities,
it will confirm such acceptance in writing to the Selling Agent or Purchasing
Agent, as the case may be, and the Trustee.
Communication of Sale Information to the Company by Agent and Settlement
Procedures:
A. After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will confirm promptly, but in no event
later than the time set forth under "Settlement Procedure Timetable" below, the
following details of the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Principal Amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate and
initial interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other
than U.S. dollars, the applicable Exchange Rate for such
Specified Currency (it being understood that currently the
Depositary accepts deposits of Global Securities denominated
in U.S. dollars only);
(7) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(8) Issue Price;
II-2
<PAGE> 36
(9) Selling Agent's commission or Purchasing Agent's discount, as
the case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable Book-Entry Security, such of the following as
are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall
decline (but not below par) on each anniversary of
the Redemption Commencement Date;
(12) If a Floating Rate Book-Entry Security, such of the following
as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number of the
registered owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Book-Entry Security or Certificated Security;
(16) Selling Agent or Purchasing Agent; and
(17) Day Count Convention: (i) 30/360; (ii) Actual/360; (iii)
Actual/Actual (and applicable periods).
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by facsimile transmission or other acceptable written
means. The Trustee will assign a CUSIP number to the Global Security from a list
of CUSIP numbers previously delivered to the Trustee by the Company representing
such Book-Entry Security and then advise the Company and the Selling Agent or
Purchasing Agent, as the case may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following settlement
information to the Depositary, and the Depositary shall forward such information
to such Agent and Standard & Poor's
II-3
<PAGE> 37
Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such
Book-Entry Security;
(3) Whether such Global Security will represent any other
Book-Entry Security (to the extent known at such time);
(4) Number of the participant account maintained by the Depositary
on behalf of the Selling Agent or Purchasing Agent, as the
case may be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry Security,
number of days by which such date succeeds the record date for
the Depositary's purposes (which in the case of Floating Rate
Securities which reset weekly shall be the date five calendar
days immediately preceding the applicable Interest Payment
Date and in the case of all other Book-Entry Securities shall
be the Regular Record Date, as defined in the Security) and,
if calculable at that time, the amount of interest payable on
such Interest Payment Date.
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Company representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the Trustee's
participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary to (i) debit such
Book-Entry Security to the Trustee's participant account and credit such
Book-Entry Security to such Agent's participant account and (ii) debit such
Agent's settlement account and credit the Trustee's settlement account for an
amount equal to the price of such Book-Entry Security less such Agent's
commission. The entry of such a deliver order shall constitute a representation
and warranty by the Trustee to the Depositary that (a) the Global Security
representing such Book-Entry Security has been issued and authenticated and (b)
the Trustee is holding such Global Security pursuant to the Certificate
Agreement.
G. Such Agent will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary (i) to debit such
Book-Entry Security to such Agent's participant account and credit such
Book-Entry Security to the participant accounts of the Participants with respect
to such Book-Entry Security and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of such Agent for an amount equal
to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will transfer to the
account of the Company maintained at The Bank of New York, New York, New York,
or such other account as the Company may have previously specified to the
Trustee, funds available for immediate use in the amount transferred to the
Trustee in accordance with Settlement Procedure "F".
II-4
<PAGE> 38
J. Upon request, the Trustee will send to the Company a statement setting
forth the principal amount of Book-Entry Securities outstanding as of that date
under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security to the
purchaser either by transmitting to the Participants with respect to such
Book-Entry Security a confirmation order or orders through the Depositary's
institutional delivery system or by mailing a written confirmation to such
purchaser.
L. The Depositary will, at any time, upon request of the Company or the
Trustee, promptly furnish to the Company or the Trustee a list of the names and
addresses of the participants for whom the Depositary has credited Book-Entry
Securities.
Preparation of Pricing Supplement:
If the Company accepts an offer to purchase a Book-Entry Security, it will
prepare a Pricing Supplement reflecting the terms of such Book-Entry Security
and arrange to have delivered to the Selling Agent or Purchasing Agent, as the
case may be, at least ten copies of such Pricing Supplement, not later than 5:00
p.m., New York City time, on the Business Day following the Trade Date (as
defined below), or if the Company and the purchaser agree to settlement on the
Business Day following the date of acceptance of such offer, not later than
noon, New York City time, on such date. The Company will arrange to have the
Pricing Supplement filed with the Commission not later than the close of
business of the Commission on the second Business Day following the date on
which such Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Book-Entry Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Book-Entry Security.
Date of Settlement:
The receipt by the Company of immediately available funds in payment for a
Book-Entry Security and the authentication and issuance of the Global Security
representing such Book-Entry Security shall constitute "settlement" with respect
to such Book-Entry Security. All orders of Book-Entry Securities solicited by a
Selling Agent or made by a Purchasing Agent and accepted by the Company on a
particular date (the "Trade Date") will be settled on a date (the "Settlement
Date") which is the third Business Day after the Trade Date pursuant to the
"Settlement Procedure Timetable" set forth below, unless the Company and the
purchaser agree to settlement on another Business Day which shall be no earlier
than the next Business Day after the Trade Date.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by a Selling Agent and
accepted by the Company for settlement on the third Business Day after the Trade
Date, Settlement Procedures "A" through "I" set forth above shall be completed
as soon as possible but not later than the respective times (New York City time)
set forth below:
II-5
<PAGE> 39
<TABLE>
<CAPTION>
SETTLEMENT
PROCEDURE Time
- ----------- -----
<S> <C> <C>
A 5:00 p.m. on the Business Day following the Trade Date or 10:00 a.m. on
the Business Day prior to the Settlement Date, whichever is earlier
B 12:00 noon on the second Business Day immediately preceding the Settlement
Date
C 2:00 p.m. on the second Business Day immediately preceding the Settlement
Date
D 9:00 a.m. on the Settlement Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
</TABLE>
If the initial interest rate for a Floating Rate Book-Entry Security has
not been determined at the time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed as soon as such rate has
been determined but no later than 2:00 p.m. on the second Business Day
immediately preceding the Settlement Date. Settlement Procedure "H" is subject
to extension in accordance with any extension of Fedwire closing deadlines and
in the other events specified in the SDFS operating procedures in effect on the
Settlement Date.
If settlement of a Book-Entry Security is rescheduled or canceled, the
Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participation Terminal System, a cancellation message
to such effect by no later than 2:00 p.m. on the Business Day immediately
preceding the scheduled Settlement Date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal System,
as soon as practicable a withdrawal message instructing the Depositary to debit
such Book-Entry Security to the Trustee's participant account, provided that the
Trustee's participant account contains a principal amount of the Global Security
representing such Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with respect to all
the Book-Entry Securities represented by a Global Security, the Trustee will
mark such Global Security "canceled", make appropriate entries in the Trustee's
records and send such canceled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned. If a withdrawal message
is processed with respect to one or more, but not all, of the Book-Entry
Securities represented by a Global Security, the Trustee will exchange such
Global Security for two Global Securities, one of which shall represent such
Book-Entry Security or Securities and shall be canceled immediately after
issuance and the other of which shall represent the remaining Book-Entry
Securities previously represented by the surrendered Global Security and shall
bear the CUSIP number of the surrendered Global Security.
II-6
<PAGE> 40
Other than when the Agent is purchasing as a Purchasing Agent, if the
purchase price for any Book-Entry Security is not timely paid to the
participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in the
Depositary, acting on behalf of such purchaser), such participants and, in turn,
the Agent for such Book-Entry Security may enter deliver orders through the
Depositary's Participant Terminal System debiting such Book-Entry Security to
such participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Company and the Trustee thereof.
Thereafter, the Trustee will (i) immediately notify the Company of such order
and the Company shall transfer to such Agent funds available for immediate use
in an amount equal to the price of such Book-Entry Security which was credited
to the account of the Company maintained at the Trustee in accordance with
Settlement Procedure I, and (ii) deliver the withdrawal message and take the
related actions described in the preceding paragraph. If such failure shall have
occurred for any reason other than default by the applicable Agent to perform
its obligations hereunder or under the Distribution Agreement, the Company will
reimburse such Agent on an equitable basis for the loss of its use of funds
during the period when the funds were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect to a
Book-Entry Security, the Depositary may take any actions in accordance with its
SDFS operating procedures then in effect. In the event of a failure to settle
with respect to one or more, but not all, of the Book-Entry Securities to have
been represented by a Global Security, the Trustee will provide, in accordance
with Settlement Procedure "D", for the authentication and issuance of a Global
Security representing the other Book-Entry Securities to have been represented
by such Global Security and will make appropriate entries in its records. The
Company will, from time to time, furnish the Trustee with a sufficient quantity
of Securities.
Nothing herein shall be deemed to require the Trustee to risk or expend its
funds in connection with any payments to the Issuer, the Agents or DTC or any
holder of Securities, it being understood by all parties that payments made by
the Trustee to the Issuer or Agents, or DTC, or any holder of Securities shall
be made only to the extent that funds are provided to the Trustee for such
purpose.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
- --------------------------------------------------------------
Posting Rates by Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such
II-7
<PAGE> 41
Agent. Each Agent may, in its discretion reasonably exercised, reject any offer
received by it in whole or in part. Each Agent also may make offers to the
Company to purchase Certificated Securities as a Purchasing Agent. The Company
will have the sole right to accept offers to purchase Certificated Securities
and may reject any such offer in whole or in part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to Company by Agent:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will confirm the following details of the
terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal Amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate and
initial interest payment date and day count convention ((i)
30/360; (ii) Actual/360; and (iii) Actual/Actual (and
applicable periods));
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other
than U.S. dollars, the applicable Exchange Rate for such
Specified Currency;
(7) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as
the case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable Certificated Security, such of the following
as are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall
decline (but not below par) on each anniversary of the
Redemption Commencement Date;
(12) If a Floating Rate Certificated Security, such of the
following as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
II-8
<PAGE> 42
<TABLE>
<S> <C> <C>
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates,
(xii) Calculation Agent,
(xiii) Day Count Convention: (A) 30/360; (B) Actual/360; (C)
Actual/Actual (and applicable periods).
(13) Name, address and taxpayer identification number of the registered owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Book-Entry Security or Certificated Security; and
(16) Selling Agent or Purchasing Agent.
</TABLE>
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated Security, it
will prepare a Pricing Supplement reflecting the terms of such Certificated
Security and arrange to have delivered to the Selling Agent or Purchasing Agent,
as the case may be, at least ten copies of such Pricing Supplement, not later
than 5:00 p.m., New York City time, on the Business Day following the Trade
Date, or if the Company and the purchaser agree to settlement on the date of
acceptance of such offer, not later than noon, New York City time, on such date.
The Company will arrange to have the Pricing Supplement filed with the
Commission not later than the close of business of the Commission on the second
Business Day following the date on which such Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Certificated Security
a written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Certificated Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Certificated Security.
Date of Settlement:
All offers of Certificated Securities solicited by a Selling Agent or made
by a Purchasing Agent and accepted by the Company will be settled on a date (the
"Settlement Date") which is the third Business Day after the date of acceptance
of such offer, unless the Company and the purchaser agree to settlement (a) on
another Business Day after the acceptance of such
II-9
<PAGE> 43
offer or (b) with respect to an offer accepted by the Company prior to 10:00
a.m., New York City time, on the date of such acceptance.
II-10
<PAGE> 44
Instruction from Company to Trustee for Preparation of Certificated Securities:
After receiving the Sale Information from the Selling Agent or Purchasing
Agent, as the case may be, the Company will communicate such Sale Information to
the Trustee by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means.
The Company will instruct the Trustee by facsimile transmission or other
acceptable written means to authenticate and deliver the Certificated Securities
no later than 2:15 p.m., New York City time, on the Settlement Date. Such
instruction will be given by the Company prior to 3:00 p.m., New York City time,
on the Business Day immediately preceding the Settlement Date unless the
Settlement Date is the date of acceptance by the Company of the offer to
purchase Certificated Securities in which case such instruction will be given by
the Company by 11:00 a.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee and Receipt of
Payment Therefor:
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser solicited
by a Selling Agent, the Trustee will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Certificated Securities to the Selling Agent for
the benefit of the purchaser of such Certificated Securities against delivery by
the Selling Agent of a receipt therefor. On the Settlement Date the Selling
Agent will deliver payment for such Certificated Securities in immediately
available funds to the Company in an amount equal to the issue price of the
Certificated Securities less the Selling Agent's commission; provided that the
Selling Agent reserves the right to withhold payment for which it has not
received funds from the purchaser. The Company shall not use any proceeds
advanced by a Selling Agent to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing Agent, the
Trustee will, by 2:15 p.m., New York City time, on the Settlement Date, deliver
the Certificated Securities to the Purchasing Agent against delivery of payment
for such Certificated Securities in immediately available funds to the Company
in an amount equal to the issue price of the Certificated Securities less the
Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make payment to the
Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the Trustee and the Company thereof by telephone (confirmed in writing)
or by facsimile transmission or other acceptable written means. The Selling
Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, the
Company will return to the Selling Agent an amount equal to the amount
previously paid to the Company in respect of such Certificated Security. The
Company will reimburse the Selling Agent on an equitable basis for its loss of
the use of funds during the period when they were credited to the account of the
Company.
The Trustee will cancel the Certificated Security in respect of which the
failure occurred, make appropriate entries in its records and deliver the
Certificated Security to the Company.
II-11
<PAGE> 45
Nothing herein shall be deemed to require the Trustee to risk or expend its
own funds in connection with any payment to the Issuer, the Agents or any holder
of Securities, it being understood by all parties that payments made by the
Trustee to the Issuer or the Agents, or any holder of Securities shall be made
only to the extent that funds are provided to the Trustee for such purpose.
II-12
<PAGE> 46
ANNEX III
ACCOUNTANTS' LETTER
-------------------
Pursuant to Sections 4(j) and 6(e), as the case may be, of the Distribution
Agreement, the Company's independent certified public accountants shall furnish
letters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have
been separately furnished to the Agents;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
report on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which have been separately
furnished to the Agents; and on the basis of specified procedures,
including inquiries of officials of the Company who have responsibility
for financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such
five fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
III-1
<PAGE> 47
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302,
402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements
of cash flows included in the Prospectus and/or included or
incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus for them
to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements
included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in Clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with the
basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act
and the published rules and regulations thereunder or the pro
forma adjustments have
III-2
<PAGE> 48
not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or consolidated net
assets or stockholders' equity or other items specified by the
Agents, or any increases in any items specified by the Agents,
in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (E) there
were any decreases in consolidated net sales or consolidated
income from operations or the total or per share amounts of
consolidated net income or other items specified by the Agents,
or any increases in any items specified by the Agents, in each
case as compared with the comparable period of the preceding
year and with any other period of corresponding length specified
by the Agents, except in each case for increases or decreases
which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the Agents
which are derived from the general accounting records of the Company
and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in exhibits
and schedules to, the Registration Statement specified by the Agents or
in documents incorporated by reference in the Prospectus specified by
the Agents, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
All references in this Annex III to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Distribution Agreement as of the Commencement Date referred to in
Section 6(e) thereof and to the Prospectus as amended or supplemented (including
the documents incorporated by reference therein) as of the date of the
amendment, supplement, incorporation or the Time of Delivery relating to the
Terms Agreement requiring the delivery of such letter under Section 4(j)
thereof.
III-3
<PAGE> 1
EXHIBIT 4.5.1
================================================================================
OWENS CORNING
TO
THE BANK OF NEW YORK,
Trustee
-------------------------------
INDENTURE
Dated as of May 5, 1997
Providing for Issuance of
Debt Securities in Series
===============================================================================
<PAGE> 2
OWENS CORNING
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
Section 310(a)(1) ............................. 609
(a)(2) ............................. 609
(a)(3) ............................. Not Applicable
(a)(4) ............................. Not Applicable
(b) ............................. 608
610
Section 311(a) ............................. 613
(b) ............................. 613
Section 312(a) ............................. 701
............................. 702(a)
(b) ............................. 702(b)
(c) ............................. 702(c)
Section 313(a) ............................. 703(a)
(b) ............................. 703(a)
(c) ............................. 703(a)
(d) ............................. 703(b)
Section 314(a) ............................. 704
(a)(4) ............................. 101
1004
(b) ............................. Not Applicable
(c)(1) ............................. 102
(c)(2) ............................. 102
(c)(3) ............................. Not Applicable
(d) ............................. Not Applicable
(e) ............................. 102
Section 315(a) ............................. 601
(b) ............................. 602
(c) ............................. 601
(d) ............................. 601
(e) ............................. 514
Section 316(a) ............................. 101
(a)(1)(A) ............................. 502
512
(a)(1)(B) ............................. 513
(a)(2) ............................. Not Applicable
(b) ............................. 508
(c) ............................. 104(c)
Section 317(a)(1) ............................. 503
(a)(2) ............................. 504
(b) ............................. 1003
Section 318(a) ............................. 107
- --------------------
NOTE: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the Indenture.
-i-
<PAGE> 3
<TABLE>
<CAPTION>
TABLE OF CONTENTS
ARTICLE ONE
Definitions and Other Provisions
of General Application
<S> <C> <C>
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.........................14
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
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
Section 305. Registration, Registration of
Transfer and Exchange........................................30
Section 306. Mutilated, Destroyed, Lost and
Stolen Securities............................................32
Section 307. Payment of Interest; Interest
Rights Preserved.............................................33
Section 308. Persons Deemed Owners........................................34
Section 309. Cancellation.................................................35
Section 310. Computation of Interest......................................35
Section 311. CUSIP Numbers................................................35
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge
of Indenture.................................................36
Section 402. Application of Trust Money...................................37
ARTICLE FIVE
Remedies
Section 501. Events of Default............................................37
Section 502. Acceleration of Maturity;
Rescission and Annulment.....................................39
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee...................................41
Section 504. Trustee May File Proofs of Claim.............................41
Section 505. Trustee May Enforce Claims Without
Possession of Securities.....................................42
Section 506. Application of Money Collected...............................42
Section 507. Limitation on Suits..........................................43
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest.....................................................44
Section 510. Rights and Remedies Cumulative...............................44
Section 511. Delay or Omission Not Waiver.................................44
Section 512. Control by Holders...........................................45
Section 513. Waiver of Past Defaults......................................45
Section 514. Undertaking for Costs........................................45
Section 515. Waiver of Stay or Extension Laws.............................46
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<CAPTION>
ARTICLE SIX
The Trustee
<S> <C> <C>
Section 601. Certain Duties and
Responsibilities..........................................46
Section 602. Notice of Defaults........................................46
Section 603. Certain Rights of Trustee.................................47
Section 604. Not Responsible for Recitals or
Issuance of Securities....................................48
Section 605. May Hold Securities.......................................49
Section 606. Money Held in Trust.......................................49
Section 607. Compensation and Reimbursement............................49
Section 608. Disqualification; Conflicting
Interests.................................................50
Section 609. Corporate Trustee Required;
Eligibility...............................................50
Section 610. Resignation and Removal;
Appointment of Successor..................................51
Section 611. Acceptance of Appointment by
Successor.................................................53
Section 612. Merger, Conversion, Consolidation
or Succession to Business.................................54
Section 613. Preferential Collection of
Claims Against Company....................................55
Section 614. Appointment of Authenticating Agent.......................55
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee
Names and Addresses of Holders............................57
Section 702. Preservation of Information;
Communications to Holders.................................58
Section 703. Reports by Trustee........................................58
Section 704. Reports by Company........................................58
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc.,
Only on Certain Terms.....................................59
Section 802. Successor Substituted.....................................60
Section 803. Officers' Certificate and
Opinion of Counsel........................................60
</TABLE>
-iv-
<PAGE> 6
<TABLE>
<CAPTION>
ARTICLE NINE
Supplemental Indentures
<S> <C> <C>
Section 901. Supplemental Indentures Without
Consent of Holders........................................60
Section 902. Supplemental Indentures with
Consent of Holders........................................62
Section 903. Execution of Supplemental
Indentures................................................63
Section 904. Effect of Supplemental Indentures.........................64
Section 905. Conformity with Trust Indenture
Act.......................................................64
Section 906. Reference in Securities to
Supplemental Indentures...................................64
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium
and Interest..............................................64
Section 1002. Maintenance of Office or Agency...........................64
Section 1003. Money for Securities Payments to
Be Held in Trust..........................................65
Section 1004. Statement by Officers as to
Default...................................................66
Section 1005. Existence.................................................67
Section 1006. Maintenance of Principal
Properties................................................67
Section 1007. Payment of Taxes and Other
Claims....................................................67
Section 1008. Limitation on Liens.......................................69
Section 1009. Limitation on Sales and Leasebacks........................69
Section 1010. Waiver of Certain Covenants...............................70
Section 1011. Calculation of Original Issue
Discount..................................................70
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article..................................70
Section 1102. Election to Redeem: Notice to
Trustee...................................................71
Section 1103. Selection by Trustee of Securities
to Be Redeemed............................................71
</TABLE>
v
<PAGE> 7
<TABLE>
<S> <C> <C>
Section 1104. Notice of Redemption..............................................72
Section 1105. Deposit of Redemption Price.......................................73
Section 1106. Securities Payable on
Redemption Date...................................................73
Section 1107. Securities Redeemed in Part.......................................73
ARTICLE TWELVE
Sinking Funds
Section 1202. Satisfaction of Sinking Fund
Payments with Securities..........................................74
Section 1203. Redemption of Securities for
Sinking Fund......................................................74
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article;
Company's Option to Effect
Defeasance or Covenant Defeasance.................................75
Section 1302. Defeasance and Discharge..........................................75
Section 1303. Covenant Defeasance...............................................76
Section 1304. Conditions to Defeasance or
Covenant Defeasance...............................................77
Section 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions....................................80
Section 1306. Reinstatement.....................................................80
NOTE: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
</TABLE>
-vi-
<PAGE> 8
INDENTURE, dated as of May 5, 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 The Bank of New York, a New York banking
corporation, 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> 9
(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
-2-
<PAGE> 10
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
Depositary for such series or its nominee, and registered in the name of such
Depositary 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
-3-
<PAGE> 11
Funded Debt by reason of being renewable or extendable) and (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
which at the date hereof is 101 Barclay Street, Floor 21 West, New York, New
York 10286.
"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.
"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
Book-Entry Securities, the Person designated as Depositary 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 'Depositary' as used with respect to the Securities
of any series shall mean the Depositary 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.
-4-
<PAGE> 12
"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 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 forms and 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.
-5-
<PAGE> 13
"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.
"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
-6-
<PAGE> 14
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 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 a
Responsible Officer of the Trustee actually 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
-7-
<PAGE> 15
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 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 any vice president, any assistant secretary, any assistant treasurer, any
trust officer or assistant trust officer, 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 any
Principal Property.
-8-
<PAGE> 16
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"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
-9-
<PAGE> 17
not designated by a number or a word or words added before or after the title
"vice president".
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
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
-10-
<PAGE> 18
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 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
-11-
<PAGE> 19
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 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
-12-
<PAGE> 20
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
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.
-13-
<PAGE> 21
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
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
-14-
<PAGE> 22
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 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> 23
Section 202. Form of Face of Security.
-------------------------
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL
REVENUE CODE AND THE REGULATIONS THEREUNDER.]
OWENS CORNING
--------------------------------------------
No. $
--------------------------------- -------------
CUSIP 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
-16-
<PAGE> 24
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].
[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, provided that such Person shall have given the Trustee [appropriate
and timely] written wire instructions.]
[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
-17-
<PAGE> 25
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.......................
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 May 5, 1997 (herein called the
"Indenture"), between the Company and The Bank of New York, 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> 26
Redemption Redemption
Year Price Year Price
- --- ---------- ---- -----------
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,
Redemption Price Redemption Price for
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year Of the Sinking Fund of the Sinking Fund
- ---- ------------------- ----------------------
-19-
<PAGE> 27
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
-20-
<PAGE> 28
amount of principal of the Securities of this series may be declared due and
payable in the manner and with the effect 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
-21-
<PAGE> 29
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 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
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
-22-
<PAGE> 30
a nominee of the Depositary to the Depositary or another nominee of the
Depositary."
Section 205. Form of Trustee's Certificate of
Authentication.
--------------------------------
The Trustee's certificate of authentication shall be in
substantially the following form:
Dated: ______________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York
--------------------
As Trustee
-----------
By...........................
Authorized Signatory
--------------------
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
-23-
<PAGE> 31
(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 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;
-24-
<PAGE> 32
(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 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 Depositary 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 Depositary 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)).
-25-
<PAGE> 33
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'
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. 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.
-26-
<PAGE> 34
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 or
make available for delivery such Securities; PROVIDED, HOWEVER, that, in the
case of Securities of a series that are not to be originally issued at one time,
the Trustee shall authenticate and deliver or make available for delivery such
Securities from time to time in accordance with such other procedures
(including, without limitation, the receipt by the Trustee of oral or electronic
instructions from the Company or its duly authorized agents, promptly confirmed
in writing) acceptable to the Trustee as may be specified by or pursuant to a
Company Order delivered to the Trustee prior to the time of the first
authentication of Securities of such series. 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.
-27-
<PAGE> 35
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, with appropriate modifications to cover such future issuances, are
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 or make available for delivery
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 Depositary
for such Book-Entry Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instruction and (iv) shall bear the legend set forth in Section
204.
Unless otherwise established pursuant to Section 301, each
Depositary 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 Depositary, 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 Depositary is so registered. Each Depositary shall enter
into an agreement with the Trustee governing the respective duties and rights of
such Depositary and the Trustee with regard to Book-Entry Securities.
-28-
<PAGE> 36
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.
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 or make available for delivery, 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 or make available for delivery 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
-29-
<PAGE> 37
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 Trustee shall authenticate and deliver or make
available for delivery, 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 or make available for delivery, 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,
-30-
<PAGE> 38
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 for Securities registered in the
names of Persons other than the Depositary for such Security or its nominee only
if (i)such Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Book-Entry Security or if at any time such
Depositary 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 Depositary 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 Depositary with respect to 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.
-31-
<PAGE> 39
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 or make
available for delivery 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.
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.
-32-
<PAGE> 40
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 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
-33-
<PAGE> 41
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 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.
-34-
<PAGE> 42
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, but the
Trustee shall not be obligated to so destroy such Securities, 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.
Section 311. 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 CUSIP numbers. The Company will promptly
notify the Trustee of any change in the CUSIP numbers.
-35-
<PAGE> 43
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
-36-
<PAGE> 44
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 Company 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):
-37-
<PAGE> 45
(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
-38-
<PAGE> 46
(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
-39-
<PAGE> 47
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
-40-
<PAGE> 48
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
-41-
<PAGE> 49
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;
-42-
<PAGE> 50
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
-43-
<PAGE> 51
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
-44-
<PAGE> 52
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
-45-
<PAGE> 53
may assess costs, including counsel fees and expenses, 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, the Trustee or the Holders of
10% aggregate principal amount of the Outstanding Securities of any series.
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
-46-
<PAGE> 54
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 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 conclusively 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 of its selection 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
-47-
<PAGE> 55
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, 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;
(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;
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture; and
(i) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture.
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.
-48-
<PAGE> 56
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.
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 in writing with the Company.
Section 607. Compensation and Reimbursement.
-------------------------------
The Company agrees
(1) to pay to the Trustee from time to time such compensation
as shall be agreed in writing between the Company and the Trustee 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 each of the Trustee, or any predecessor
Trustee, for, and to hold it harmless against, any and all loss,
liability, damage, claim or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the
-49-
<PAGE> 57
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.
The Trustee shall have a lien prior to the Securities as to
all property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(6) or Section
501(7), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
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 Debentures due 2001 of O.C.
Funding B.V., 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., and an Indenture,
dated as of May 21, 1992, between the Company and the Trustee, relating to the
8-7/8% Debentures due 2002 and the 9-3/8% Debentures due 2012 of the Company.
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
-50-
<PAGE> 58
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, at
the expense of the Company, 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. 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 removal, the Trustee being removed may petition, at
the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 608 after written request therefor by the
-51-
<PAGE> 59
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 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
-52-
<PAGE> 60
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 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
-53-
<PAGE> 61
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; provided,
however, that to the extent that such property and money is not held by the
Trustee in trust for the benefit of the Holders of particular Securities, such
retiring Trustee shall transfer and deliver to such successor Trustee such
property and money upon payment of its charges hereunder.
(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
-54-
<PAGE> 62
consolidation to which the Trustee shall be a party, or any 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
-55-
<PAGE> 63
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 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 Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
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 or in
-56-
<PAGE> 64
lieu of the Trustee's certificate of authentication, an alternative certificate
of authentication in the following form:
Dated: _______________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York,
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.
-57-
<PAGE> 65
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. If required by Section 313(a) of the Trust Indenture Act, the
Trustee shall, within sixty days after each May 1 following the date of the
first issuance deliver to Holders a brief report, dated as of such May 1, which
complies with the provisions of such Section 313(a).
(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 promptly 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;
-58-
<PAGE> 66
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 filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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
-59-
<PAGE> 67
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.
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
-60-
<PAGE> 68
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 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
-61-
<PAGE> 69
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 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
-62-
<PAGE> 70
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 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.
-63-
<PAGE> 71
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.
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 Securi-
- 64 -
<PAGE> 72
ties 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 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 provi-
- 65 -
<PAGE> 73
sions 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.
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, one of the signers of which shall be the principal
executive officer, principal financial officer or principal accounting
-66-
<PAGE> 74
officer of the Company, 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.
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.
--------------------
-67-
<PAGE> 75
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
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
-68-
<PAGE> 76
(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 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,
-69-
<PAGE> 77
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. Notwithstanding 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.
Section 1011. Calculation of Original Issue Discount.
---------------------------------------
If the Trustee is requested or required to send Form 1099 (or
any successor form) to Holders of Original Issue Discount Securities, the
Company shall file with the Trustee promptly at the end of each calendar year
(i) a written notice specifying the amount of original issue discount (including
daily rates and accrual periods) accrued on Outstanding Securities as of the end
of such year and (ii) such other specific information relating to such original
issue discount as may then be relevant under the Internal Revenue Code of 1986,
as amended from time to time.
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
-70-
<PAGE> 78
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 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 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 Registrar, 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.
-71-
<PAGE> 79
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 identify the Securities to be
redeemed (including CUSIP numbers) and shall state:
(1) the Redemption Date,
(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.
-72-
<PAGE> 80
Section 1105. Deposit of Redemption Price.
----------------------------
Prior to 12:00 noon New York City time on 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, 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 or make available for delivery to the
Holder of
-73-
<PAGE> 81
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
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
-74-
<PAGE> 82
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.
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.
-------------------------
-75-
<PAGE> 83
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 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
-76-
<PAGE> 84
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:
(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
-77-
<PAGE> 85
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 Depositary
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 Depositary receipt,
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder
of such Depositary 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 Depositary 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
-78-
<PAGE> 86
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
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.
-79-
<PAGE> 87
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 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
-80-
<PAGE> 88
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.
-81-
<PAGE> 89
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
OWENS CORNING
By /s/ David W. Devonshire
-----------------------------------------
Name:David W. Devonshire
Title: Senior Vice President and
Chief Financial Officer
By /s/ Michael I. Miller
-----------------------------------------
Name: Michael I. Miller
Title: Vice President and Treasurer
THE BANK OF NEW YORK
By /s/ Lucille Firrincieli
-----------------------------------------
Name: Lucille Firrincieli
Title: Assistant Vice President
-82-
<PAGE> 90
STATE OF OHIO )
) ss.:
COUNTY OF LUCAS )
On the 2nd day of May, 1997, before me personally came
David W. Devonshire and Michael I. Miller, to me known, who, being by
me duly sworn, did depose and say that they are Senior Vice President and Chief
Financial Officer, and Vice President and Treasurer, respectively, of Owens
Corning, one of the corporations described in and which executed the foregoing
instrument; and that they signed their names thereto by like authority of the
Board of Directors of said corporation.
/s/ Claudette M. Reis
--------------------------------
Notary Public
-83-
<PAGE> 91
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 2nd day of May, 1997, before me personally came
Lucille Firrincieli, to me known, who, being by me duly sworn, did depose
and say that he is Assistant Vice President of The Bank of New York, one of the
corporations described in and which executed the foregoing instrument; that it
was so affixed by authority of the Board of Directors of said corporation, and
that she/he signed her/his name thereto by like authority of the Board of
Directors of said corporation.
/s/ Marion Papadogonas
--------------------------
Notary Public
-84-
<PAGE> 1
EXHIBIT 4.5.3(a)
[FACE OF NOTE]
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION (THE "DEPOSITARY"), OR A NOMINEE THEREOF. THIS NOTE IS
EXCHANGEABLE FOR NOTES 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, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.(1)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.(2)
<TABLE>
<CAPTION>
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. FXR-
--- --------- ---------
OWENS CORNING
MEDIUM-TERM NOTE
(Fixed Rate)
<S> <C> <C>
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY:
INTEREST PAYMENT DATE(S): RECORD DATE(S): DEFAULT RATE: %
[ ]
[ ]
[ ] Other: [ ] Other:
REDEMPTION COMMENCEMENT INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE
REDUCTION: %
OPTIONAL REPAYMENT [ ] CHECK IF AN ORIGINAL
DATE(S): ISSUE DISCOUNT NOTE
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION: EXCHANGE RATE
<FN>
- --------
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
</TABLE>
<PAGE> 2
<TABLE>
<S> <C> <C>
[ ] U.S. dollars [ ] $100,000 and integral AGENT (if other than The Bank
multiples of $1,000 thereof of New York):
[ ] Other: [ ] Other:
ADDENDUM ATTACHED: OTHER/ADDITIONAL PROVISIONS:
[ ] Yes
[ ] No
</TABLE>
<PAGE> 3
OWENS CORNING, a Delaware corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to , or registered assigns, the
principal sum of , on the Stated Maturity specified above (or any Redemption
Date or Repayment Date, each as defined on the reverse hereof) (each such Stated
Maturity, Redemption Date or Repayment Date being hereinafter referred to as the
"Maturity Date" with respect to the principal repayable on such date) and to pay
interest thereon, at the Interest Rate per annum specified above, until the
principal hereof is paid or duly made available for payment, and (to the extent
that the payment of such interest shall be legally enforceable) at the Default
Rate per annum specified above on any overdue principal, premium and/or
interest. The Company will pay interest in arrears on each Interest Payment
Date, if any, specified above (each, an "Interest Payment Date"), commencing
with the first Interest Payment Date next succeeding the Original Issue Date
specified above, and on the Maturity Date; provided, however, that if the
Original Issue Date occurs between a Record Date (as defined below) and the next
succeeding Interest Payment Date, interest payments will commence on the second
Interest Payment Date next succeeding the Original Issue Date to the registered
holder of this Note (the "Holder") on the Record Date with respect to such
second Interest Payment Date. Interest on this Note will be computed on the
basis of a 360-day year of twelve 30-day months.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Provisions" apply to this Note as specified above, this Note
shall be subject to the terms set forth in such Addendum or such
"Other/Additional Provisions".
Interest on this Note will accrue from and including the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from and including the Original Issue Date if no interest has been paid
or duly provided for) to but excluding the applicable Interest Payment Date or
the Maturity Date, as the case may be (each, an "Interest Period"). The interest
so payable and punctually paid or duly provided for on any Interest Payment Date
will, subject to certain exceptions described herein, be paid to the person in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on the fifteenth day (whether or not a Business Day, as
defined below) immediately preceding such Interest Payment Date (the "Record
Date"); provided, however, that interest payable on the Maturity Date will be
payable to the person to whom the principal hereof and premium, if any, hereon
shall be payable. Any such interest not so punctually paid or duly provided for
("Defaulted Interest") will forthwith cease to be payable to the Holder on any
Record Date, and shall be paid to the person in whose name this Note is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Trustee (as defined on the reverse hereof), notice whereof shall be given to the
Holder of this Note by the Trustee not less than 10 calendar days prior to such
Special Record Date or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which this Note
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided for in the Indenture.
If this is a Global Security representing Book-Entry Notes, payment of
principal, premium, if any, and interest, if any, in respect of this Note will
be made in accordance with the procedures established by the Depositary for such
Global Security. Otherwise, payment of principal, premium, if any, and interest,
if any, in respect of this Note due on the Maturity Date will be made in
immediately available funds upon presentation and surrender of this Note (and,
with respect to any applicable repayment of this Note, a duly completed election
form as contemplated on the reverse hereof) at the Corporate Trust Office (as
defined in the Indenture) of the Trustee, or at such other paying agency in the
Borough of Manhattan, The City of New York, as the Company may determine;
provided, however, that if such payment is to be made in a Specified Currency
other than U.S. dollars as set forth below, such payment will be made by wire
transfer of immediately available funds to an account with a bank located
outside the United States designated by the Holder hereof at least 15 calendar
days prior to the Maturity Date, provided that such bank has appropriate
facilities therefor and that this Note (and, if applicable, a duly completed
repayment election form) is presented and surrendered at the aforementioned
office of the Trustee in time for the Trustee to make such payment in such funds
in accordance with its normal procedures. Payment of interest, if any, due on
any Interest Payment Date other than the Maturity Date will be made at the
office or agency referred to above maintained by the Company for such purpose
or, at the option of the Company, may be made by check mailed to the address of
the person entitled thereto as such address shall appear in the Security
Register maintained at the aforementioned office of the Trustee; provided,
however, that a holder of U.S.$10,000,000 (or, if the Specified Currency
specified above is other than U.S. dollars, the equivalent thereof in such
Specified Currency) or more in aggregate principal amount of Notes (whether
having identical or different terms and provisions) will be entitled to receive
-2-
<PAGE> 4
interest payments, if any, on such Interest Payment Date by wire transfer of
immediately available funds if appropriate wire transfer instructions have been
received in writing by the Trustee not less than 15 calendar days prior to such
Interest Payment Date. Any such wire transfer instructions received by the
Trustee shall remain in effect until revoked by such Holder.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any,
and/or interest, if any, shall be made on the next succeeding Business Day with
the same force and effect as if made on the date such payment was due, and no
interest shall accrue with respect to such payment for the period from and after
such Interest Payment Date or the Maturity Date, as the case may be, to the date
of such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day except a Saturday, Sunday
or a legal holiday in The City of New York on which banking institutions are
authorized or obligated by law or executive order to close; provided, however,
that if the Specified Currency is other than U.S. dollars and any payment is to
be made in the Specified Currency in accordance with the provisions hereof, such
day is also not a day on which banking institutions are authorized or obligated
by law or executive order to close in the Principal Financial Center (as defined
below) of the country issuing the Specified Currency (or, in the case of
European Currency Units ("ECU"), is not a day that appears as an ECU
non-settlement day on the display designated as "ISDE" on the Reuter Monitor
Money Rates Service (or a day so designated by the ECU Banking Association) or,
if ECU non-settlement days do not appear on that page (and are not so
designated), is not a day on which payments in ECU cannot be settled in the
international interbank market). "Principal Financial Center" means the capital
city of the country issuing the Specified Currency in which any payment in
respect of this Note is to be made, except that with respect to U.S. dollars,
Australian dollars, Deutsche marks, Dutch guilders, Italian lire, Swiss francs
and ECUs, the "Principal Financial Center" shall be The City of New York,
Sydney, Frankfurt, Amsterdam, Milan, Zurich and Brussels, respectively.
The Company is obligated to make payment of principal, premium, if any,
and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than U.S. dollars, any such amounts so payable by the Company will be converted
by the Exchange Rate Agent specified above into U.S. dollars for payment to the
Holder of this Note; provided, however, that the Holder of this Note may elect
to receive such amounts in such Specified Currency pursuant to the provisions
set forth below.
If the Specified Currency is other than U.S. dollars and the Holder of
this Note shall not have duly made an election to receive all or a specified
portion of any payment of principal, premium, if any, and/or interest, if any,
in respect of this Note in the Specified Currency, any U.S. dollar amount to be
received by the Holder of this Note will be based on the highest bid quotation
in The City of New York received by the Exchange Rate Agent at approximately
11:00 A.M., New York City time, on the second Business Day preceding the
applicable payment date from three recognized foreign exchange dealers (one of
whom may be the Exchange Rate Agent) selected by the Exchange Rate Agent and
approved by the Company for the purchase by the quoting dealer of the Specified
Currency for U.S. dollars for settlement on such payment date in the aggregate
amount of the Specified Currency payable to all holders of Notes scheduled to
receive U.S. dollar payments and at which the applicable dealer commits to
execute a contract. All currency exchange costs will be borne by the Holder of
this Note by deductions from such payments. If three such bid quotations are not
available, payments on this Note will be made in the Specified Currency.
If the Specified Currency is other than U.S. dollars, the Holder of
this Note may elect to receive all or a specified portion of any payment of
principal, premium, if any, and/or interest, if any, in respect of this Note in
the Specified Currency by submitting a written request for such payment to the
Trustee at its Corporate Trust Office in the Borough of Manhattan, The City of
New York on or prior to the applicable Record Date or at least 15 calendar days
prior to the Maturity Date, as the case may be. Such written request may be
mailed or hand delivered or sent by cable, telex or other form of facsimile
transmission. The Holder of this Note may elect to receive all or a specified
portion of all future payments in the Specified Currency in respect of such
principal, premium, if any, and/or interest, if any, and need not file a
separate election for each payment. Such election will remain in effect until
revoked by written notice to the Trustee, but
-3-
<PAGE> 5
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be, and no such revocation or any new election
may be made with respect to payments hereon with respect to which (i) an Event
of Default has occurred, (ii) the Company has exercised any of its defeasance or
covenant defeasance options or (iii) the Company has given a notice of
redemption.
If the Specified Currency is other than U.S. dollars or a composite
currency and the Holder of this Note shall have duly made an election to receive
all or a specified portion of any payment of principal, premium, if any, and/or
interest, if any, in respect of this Note in the Specified Currency and if the
Specified Currency is not available due to the imposition of exchange controls
or other circumstances beyond the control of the Company or is no longer used by
the government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking community,
then the Company will be entitled to satisfy its obligations to the Holder of
this Note by making such payment in U.S. dollars on the basis of the Market
Exchange Rate (as defined below) on the second business day prior to such
payment date or, if such Market Exchange Rate is not then available, on the
basis of the most recently available Market Exchange Rate or as otherwise
specified on the face hereof; provided, however, that if such Specified Currency
is replaced by a single European currency, the payment of principal of, premium,
if any, or interest on this Note denominated in such currency shall be effected
in the new single European currency in conformity with legally applicable
measures taken pursuant to, or by virtue of the treaty establishing the European
Community, as amended by the treaty on European Unity. The "Market Exchange
Rate" for the Specified Currency means the noon dollar buying rate in The City
of New York for cable transfers for the Specified Currency as certified for
customs purposes by (or if not so certified, as otherwise determined by) the
Federal Reserve Bank of New York. Any payment made in U.S. dollars or a new
single European currency where the required payment is in a Specified Currency
other than U.S. dollars or such single European currency, respectively, will not
constitute an Event of Default (as defined in the Indenture).
If the Specified Currency is a composite currency and the Holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Company, then the Company will be entitled to satisfy its obligations to
the Holder of this Note by making such payment in U.S. dollars. The amount of
each payment in U.S. dollars shall be computed by the Exchange Rate Agent on the
basis of the equivalent of the composite currency in U.S. dollars. The component
currencies of the composite currency for this purpose (collectively, the
"Component Currencies" and each, a "Component Currency") shall be the currency
amounts that were components of the composite currency as of the last day on
which the composite currency was used. The equivalent of the composite currency
in U.S. dollars shall be calculated by aggregating the U.S. dollar equivalents
of the Component Currencies. The U.S. dollar equivalent of each of the Component
Currencies shall be determined by the Exchange Rate Agent on the basis of the
most recently available Market Exchange Rate for each such Component Currency,
or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above, in the Addendum hereto,
which further provisions shall have the same force and effect as if set forth on
the face hereof.
-4-
<PAGE> 6
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
[remainder of this page intentionally left blank]
-5-
<PAGE> 7
IN WITNESS WHEREOF, Owens Corning has caused this Note to be duly
executed.
OWENS CORNING
By
---------------------------------
Title:
By
---------------------------------
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
Dated:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By
-------------------------------
Authorized Signatory
-6-
<PAGE> 8
[REVERSE OF NOTE]
OWENS CORNING
MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Debt Securities (the
"Debt Securities") of the Company issued and to be issued under an Indenture,
dated as of May 5, 1997, as amended, modified or supplemented from time to time
(the "Indenture"), between the Company and The Bank of New York, as Trustee (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 Debt
Securities, and of the terms upon which the Debt Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Debt Securities
designated as "Medium-Term Notes" (the "Notes"). All terms used but not defined
in this Note specified on the face hereof or in an Addendum hereto shall have
the meanings assigned to such terms in the Indenture.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S.$100,000 and integral multiples of U.S.$1,000 in
excess thereof or the minimum Authorized Denomination specified on the face
hereof.
This Note will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated
Maturity.
This Note will be subject to redemption at the option of the Company on
any date on or after the Redemption Commencement Date, if any, specified on the
face hereof, in whole or from time to time in part in increments of U.S.$1,000
or the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S.$100,000 or such minimum Authorized
Denomination), at the Redemption Price (as defined below), together with unpaid
interest accrued hereon to the date fixed for redemption (each, a "Redemption
Date"), on notice given not more than 60 nor less than 30 calendar days prior to
the Redemption Date and in accordance with the provisions of the Indenture. If
this Note is not an Original Issue Discount Note, the "Redemption Price" shall
initially be the Initial Redemption Percentage specified on the face hereof
multiplied by the unpaid principal amount of this Note to be redeemed. The
Initial Redemption Percentage shall decline at each anniversary of the
Redemption Commencement Date by an amount equal to the Annual Redemption
Percentage Reduction, if any, specified on the face hereof until the Redemption
Price is equal to 100% of the unpaid principal amount to be redeemed. If this
Note is an Original Issue Discount Note, the Redemption Price shall be as set
forth below. In the event of redemption of this Note in part only, a new Note of
like tenor for the unredeemed portion hereof and otherwise having the same terms
as this Note shall be issued in the name of the Holder hereof upon the
presentation and surrender hereof.
This Note will be subject to repayment by the Company at the option of
the Holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or from time to time in part in increments of U.S.$1,000
or the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S.$100,000 or such minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal amount
to be repaid, together with unpaid interest accrued hereon to the date fixed for
repayment (each, a "Repayment Date"). For this Note to be repaid, this Note must
be received, together with the form hereon entitled "Option to Elect Repayment"
duly completed, by the Trustee at its Corporate Trust Office in the Borough of
Manhattan, The City of New York (or at such other address of which the Company
shall from time to time designate and notify holders of the Notes) not more than
60 nor less than 30 calendar days prior to the Repayment Date. Exercise of such
repayment option by the Holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the Holder hereof upon the presentation and surrender hereof.
-1-
<PAGE> 9
If this is a Global Security representing Book-Entry Notes, only the
Depositary may exercise the repayment option in respect of this Note.
Accordingly, if this is a Global Security representing Book-Entry Notes and the
beneficial owner desires to have all or any portion of the Book-Entry Note
represented by this Global Security repaid, the beneficial owner must instruct
the participant through which he owns his interest to direct the Depositary to
exercise the repayment option on his behalf by delivering this Note and duly
completed election form to the Trustee as aforesaid.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the Holder of this Note in the event of
redemption, repayment or acceleration of maturity will be equal to the sum of
(i) the Issue Price specified on the face hereof (increased by any accruals of
the Discount, as defined below) and, in the event of any redemption of this Note
(if applicable), multiplied by the Initial Redemption Percentage (as adjusted by
the Annual Redemption Percentage Reduction, if applicable) and (ii) any unpaid
interest on this Note accrued from the Original Issue Date to the Redemption
Date, Repayment Date or date of acceleration of maturity, as the case may be.
The difference between the Issue Price and 100% of the principal amount of this
Note is referred to herein as the "Discount".
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause the yield on the Note to
be constant. The constant yield will be calculated using a 30-day month, 360-day
year convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period), a coupon rate equal
to the initial coupon rate applicable to this Note and an assumption that the
maturity of this Note will not be accelerated. If the period from the Original
Issue Date to the initial Interest Payment Date (the "Initial Period") is
shorter than the compounding period for this Note, a proportionate amount of the
yield for an entire compounding period will be accrued. If the Initial Period is
longer than the compounding period, then such period will be divided into a
regular compounding period and a short period with the short period being
treated as provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
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 Debt Securities at any time by the
Company and the Trustee with the consent of the holders of not less than a
majority of the aggregate principal amount of all Debt Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority of the aggregate principal
amount of the outstanding Debt Securities of any series, on behalf of the
holders of all such Debt Securities, to waive compliance by the Company with
certain provisions of the Indenture. Furthermore, provisions in the Indenture
permit the holders of not less than a majority of the aggregate principal amount
of the outstanding Debt Securities of any series, in certain instances, to
waive, on behalf of all of the holders of Debt Securities of such series,
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and other Notes issued
upon the registration of transfer hereof or in exchange heretofore or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay principal, premium, if any, and interest, if
any, in respect of this Note at the times, places and rate or formula, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Company upon surrender of this Note for registration of transfer
at the office or agency of the Company in any place where the principal hereof
and any premium or interest hereon are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security
-2-
<PAGE> 10
Registrar duly executed by, the Holder hereof or by his attorney duly authorized
in writing, and thereupon one or more new Notes, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the Holder hereof 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 Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The internal laws of the State of New York shall govern the Indenture
and the Notes.
-3-
<PAGE> 11
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - ________ Custodian _______
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
Additional abbreviations may also be used though not in the above list.
----------------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------
| |
- -------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
- ------------------------------------------------------------------------------
this Note and all rights thereunder hereby irrevocably constituting and appointing
____________________________________________________________________, Attorney,
to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated:
--------------------------------- ----------------------------------
Notice: The signature(s) on this
Assignment must correspond with the
name(s) as written upon the face of
this Note in every particular,
without alteration or enlargement
or any change whatsoever.
Signature Guaranty:
----------------------------------------
</TABLE>
-4-
<PAGE> 12
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to _____% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its Corporate
Trust Office in the Borough of Manhattan, The City of New York, currently
located at [_________________], not more than 60 nor less than 30 calendar days
prior to the Repayment Date, this Note with this "Option to Elect Repayment"
form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion thereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than U.S. dollars, the minimum Authorized
Denomination specified on the face hereof)) which the Holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the Holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $
Date: _________
----------------------------------
Notice: The signature(s) on this
Option to Elect Repayment must
correspond with the name(s) as
written upon the face of this Note
in every particular, without
alteration or enlargement or any
change whatsoever.
Signature Guaranty:
-----------------------------------
-5-
<PAGE> 1
EXHIBIT 4.5.3(b)
[FACE OF NOTE]
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION (THE "DEPOSITARY"), OR A NOMINEE THEREOF. THIS NOTE IS
EXCHANGEABLE FOR NOTES 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, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.(1)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.(2)
<TABLE>
<S> <C> <C>
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. FLR-
-- --------- -------
<CAPTION>
OWENS CORNING
MEDIUM-TERM NOTE
(Floating Rate)
<S> <C> <C>
ORIGINAL ISSUE DATE: STATED MATURITY:
INTEREST PAYMENT DATE(S): DEFAULT RATE: % RECORD DATE(S):
REDEMPTION COMMENCEMENT INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE
REDUCTION: %
</TABLE>
- --------
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
-1-
<PAGE> 2
<TABLE>
<CAPTION>
<S> <C> <C>
OPTIONAL REPAYMENT DATES: [ ] CHECK IF AN ORIGINAL
ISSUE DISCOUNT NOTE
Issue Price: %
INTEREST RESET PERIOD: INTEREST DETERMINATION INTEREST RESET DATE(S):
DATE:
INDEX MATURITY: INITIAL INTEREST RATE:
%
SPREAD (plus or minus): SPREAD MULTIPLIER: CALCULATION AGENT:
(if other than The Bank of New
York)
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] Actual/360 for the period
[ ] Floating Rate/Fixed Rate Note from to
Fixed Rate Commencement Date: [ ] Actual/Actual for the period
Fixed Interest Rate: % from to
[ ] Inverse Floating Rate Note [ ] 30/360 for the period
Fixed Interest Rate: % from to
[ ] Other Floating Rate Note
INTEREST RATE BASIS OR BASES:
[ ] CD Rate
[ ] Prime Rate
[ ] Federal Funds Rate
[ ] Commercial Paper Rate
[ ] LIBOR:
Designated LIBOR Page
[ ] Reuters Page: _____
[ ] Telerate Page: _____
Index Currency:
[ ] Treasury Rate
[ ] CMT Rate
[ ] Designated CMT Telerate Page:
[ ] Designated CMT Maturity Index:
[ ] Other:
ADDENDUM ATTACHED:
[ ] Yes
[ ] No
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION: EXCHANGE RATE
[ ] U.S. dollars [ ] $100,000 and integral AGENT (if other than The
multiples of $1,000 thereof Bank of New York):
[ ] Other: [ ] Other:
OTHER/ADDITIONAL PROVISIONS:
</TABLE>
<PAGE> 3
OWENS CORNING, a Delaware corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to , or registered assigns, the
principal sum of , on the Stated Maturity specified above (or any Redemption
Date or Repayment Date, each as defined on the reverse hereof) (each such Stated
Maturity, Redemption Date or Repayment Date being hereinafter referred to as the
"Maturity Date" with respect to the principal repayable on such date) and to pay
interest thereon, at the Interest Rate to be determined in accordance with the
provisions below, depending on the Interest Rate Basis shown above (the
"Floating Interest Rate"), until the principal hereof is paid or duly made
available for payment, and (to the extent that the payment of such interest
shall be legally enforceable) at the Default Rate per annum specified above on
any overdue principal, premium and/or interest. The Company will pay interest in
arrears on each Interest Payment Date, if any, specified above (each, an
"Interest Payment Date"), commencing with the first Interest Payment Date next
succeeding the Original Issue Date specified above, and on the Maturity Date;
provided, however, that if the Original Issue Date occurs between a Record Date
(as defined below) and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date next succeeding the
Original Issue Date to the registered holder of this Note (the "Holder") on the
Record Date with respect to such second Interest Payment Date.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Provisions" apply to this Note as specified above, this Note
shall be subject to the terms set forth in such Addendum or such
"Other/Additional Provisions".
Interest on this Note will accrue from and including the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from and including the Original Issue Date if no interest has been paid
or duly provided for) to but excluding the applicable Interest Payment Date or
the Maturity Date, as the case may be (each, an "Interest Period"). However, in
case the interest rate on this Note is reset daily or weekly, unless otherwise
specified on the face hereof, the interest payments will include interest
accrued only from but excluding the Record Date through which interest has been
paid (or from and including the Original Issue Date, if no interest has been
paid with respect to this Note) through and including the Record Date next
preceding the applicable Interest Payment Date, except that the interest payment
on Maturity will include interest accrued to but excluding such date. Accrued
interest is calculated by multiplying the face amount of this Note by an accrued
interest factor. Such accrued interest factor is computed by adding the interest
factor calculated for each day from the Original Issue Date, or from the last
date to which interest has been paid or duly provided for, to the date for which
accrued interest is being calculated. The interest factor for each day is
computed by dividing the interest rate applicable to such day by 360 in the case
of CD Rate Notes, Commercial Paper Rate Notes, CMT Rate Notes, Federal Funds
Rate Notes, LIBOR Notes or Prime Rate Notes, or by the actual number of days in
the year in the case of Treasury Rate Notes. The interest factor for Notes for
which the interest rate is calculated with reference to two or more Interest
Rate Bases will be calculated in each period in the same manner as if only the
lowest of the applicable Interest Rates Bases applied. If any Interest Payment
Date other than the Maturity Date for this Note falls on a day that is not a
Business Day with respect to this Note, such Interest Payment Date for this Note
will be postponed to the next succeeding Business Day for this Note, except
that, in the case of a LIBOR Note (or a Note for which LIBOR is an applicable
Interest Rate Basis), if such Business Day is in the next succeeding calendar
month, such Interest Payment Date will be the immediately preceding day that is
a Business Day for this Note. If the Maturity Date of this Note falls on a day
that is not a Business Day, the payment of principal, premium, if any, and
interest will be made on the next succeeding Business Day, as if made on the
date such payment was due, and no interest on such payment shall accrue on such
payment for the period from and after Maturity Date to the date of such payment
on the next succeeding Business Day.
The interest so payable and punctually paid or duly provided for on any
Interest Payment Date will, subject to certain exceptions described herein, be
paid to the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined below) immediately preceding such Interest
Payment Date (the "Record Date"); provided, however, that interest payable on
the Maturity Date will be payable to the person to whom the principal hereof and
premium, if any, hereon shall be payable. Any such interest not so punctually
paid or duly provided for ("Defaulted Interest") will forthwith cease to be
payable to the Holder on any Record Date, and shall be paid to the person in
whose name this Note is registered at the close of business on a special record
date (the "Special Record Date") for the payment of such Defaulted Interest to
be fixed by the Trustee (as defined on the reverse hereof), notice whereof shall
be given to the Holder of this Note by the Trustee not less than 10 calendar
days prior to such Special Record Date or may be paid at any time in any other
lawful manner not
-2-
<PAGE> 4
inconsistent with the requirements of any securities exchange on which this Note
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided for in the Indenture.
If this is a Global Security representing Book-Entry Notes, payment of
principal, premium, if any, and interest, if any, in respect of this Note will
be made in accordance with the procedures established by the Depositary for such
Global Security. Otherwise, payment of principal, premium, if any, and interest,
if any, in respect of this Note due on the Maturity Date will be made in
immediately available funds upon presentation and surrender of this Note (and,
with respect to any applicable repayment of this Note, a duly completed election
form as contemplated on the reverse hereof) at the Corporate Trust Office (as
defined in the Indenture) of the Trustee in The City of New York, or at such
other paying agency in the Borough of Manhattan, The City of New York, as the
Company may determine; provided, however, that if such payment is to be made in
a Specified Currency other than U.S. dollars as set forth below, such payment
will be made by wire transfer of immediately available funds to an account with
a bank located outside the United States designated by the Holder hereof at
least 15 calendar days prior to the Maturity Date, provided that such bank has
appropriate facilities therefor and that this Note (and, if applicable, a duly
completed repayment election form) is presented and surrendered at the
aforementioned office of the Trustee in time for the Trustee to make such
payment in such funds in accordance with its normal procedures. Payment of
interest, if any, due on any Interest Payment Date other than the Maturity Date
will be made at the office or agency referred to above maintained by the Company
for such purpose or, at the option of the Company, may be made by check mailed
to the address of the person entitled thereto as such address shall appear in
the Security Register maintained at the aforementioned office of the Trustee;
provided, however, that a holder of U.S.$10,000,000 (or, if the Specified
Currency specified above is other than U.S. dollars, the equivalent thereof in
such Specified Currency) or more in aggregate principal amount of Notes (whether
having identical or different terms and provisions) will be entitled to receive
interest payments, if any, on such Interest Payment Date by wire transfer of
immediately available funds if appropriate wire transfer instructions have been
received in writing by the Trustee not less than 15 calendar days prior to such
Interest Payment Date. Any such wire transfer instructions received by the
Trustee shall remain in effect until revoked by such Holder.
As used herein, "Business Day" means any day except a Saturday, Sunday
or a legal holiday in The City of New York on which banking institutions are
authorized or obligated by law or executive order to close; provided, however,
that if the Specified Currency is other than U.S. dollars and any payment is to
be made in the Specified Currency in accordance with the provisions hereof, such
day is also not a day on which banking institutions are authorized or obligated
by law or executive order to close in the Principal Financial Center (as defined
below) of the country issuing the Specified Currency (or, in the case of
European Currency Units ("ECU"), is not a day that appears as an ECU
non-settlement day on the display designated as "ISDE" on the Reuter Monitor
Money Rates Service (or a day so designated by the ECU Banking Association) or,
if ECU non-settlement days do not appear on that page (and are not so
designated), is not a day on which payments in ECU cannot be settled in the
international interbank market); provided, further, that, if this is a LIBOR
Note, such day is also a London Business Day. "London Business Day" means (i) if
the Index Currency is other than ECU, any day on which dealings in such Index
Currency are transacted in the London interbank market or (ii) if the Index
Currency is ECU, any day that does not appear as an ECU non-settlement day on
the display designated as "ISDE" on the Reuter Monitor Money Rates Service (or a
day so designated by the ECU Banking Association) or, if ECU non-settlement days
do not appear on that page (and are not so designated), is not a day on which
payments in ECU cannot be settled in the international interbank market.
"Principal Financial Center" means the capital city of the country issuing the
Specified Currency in which any payment in respect of this Note is to be paid
or, solely with respect to the calculation of LIBOR, the Index Currency, except
that with respect to U.S. dollars, Australian dollars, Deutsche marks, Dutch
guilders, Italian lire, Swiss francs and ECU, the "Principal Financial Center"
shall be The City of New York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and
Brussels, respectively.
The "Floating Interest Rate" on this Note will be calculated by
reference to the Interest Rate Basis or Bases, as specified on the first page
hereof, (a) plus or minus the Spread, if any, and/or (b) multiplied by the
Spread Multiplier, if any. The Interest Rate Basis may be one or more of: (a)
the CD Rate, (b) the CMT Rate, (c) the Commercial Paper Rate, (d) the Federal
Funds Rate, (e) LIBOR, (f) the Treasury Rate, (g) the Prime Rate or (h) such
other Interest Rate Basis or interest rate formula as is set forth on the first
page hereof. The "Index Maturity" is the period to maturity of the instrument or
obligation with respect to which the related Interest Rate Basis or Bases are
calculated. In addition, this Note may bear interest at the lowest of two or
more Interest Rate Basis or Bases determined in the same manner as the Floating
Interest Rates described above (except the interest rate for such Notes will not
be determined with reference to the
-3-
<PAGE> 5
Treasury Rate). Except as otherwise provided herein, all percentages resulting
from any calculation will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point rounded upwards (e.g., 9.876545% (or .09876545) would be
rounded to 9.87655% (or .0987655)), and all amounts used in or resulting from
such calculation with be rounded to the nearest cent or, in the case of a
foreign currency or composite currency, to the nearest unit (with one-half cent
being rounded upward).
Notwithstanding the foregoing, if this Note is designated above as
having an Addendum attached, this Note shall bear interest in accordance with
the terms described in such Addendum.
Unless otherwise specified on the face hereof, the "Regular Record
Date" with respect to this Note shall be the fifteenth day immediately preceding
the related Interest Payment Date or Dates, whether or not such date shall be a
Business Day, and interest will be payable, in the case of Notes which reset
daily, weekly or monthly, on the third Wednesday of each month or on the third
Wednesday of each March, June, September and December of each year, as specified
on the face hereof; in the case of Notes which reset quarterly, on the third
Wednesday of March, June, September and December of each year; in the case of
Notes which reset semi-annually, on the third Wednesday of the two months of
each year specified on the face hereof; and in the case of Notes which reset
annually, on the third Wednesday of the month specified on the face hereof (each
an "Interest Payment Date"), and in each case, on the Maturity Date.
Except as provided on the face hereof, the rate of interest on this
Note will be reset daily, weekly, monthly, quarterly, semi-annually or annually
or at some other interval (each an "Interest Reset Period"), as specified on the
face hereof. Except as provided on the face hereof, if this Note resets daily,
the Interest Reset Date will be each Business Day; if this Note resets weekly,
the Interest Reset Date will be the Wednesday of each week (with the exception
of weekly reset Treasury Rate Notes, which reset the Tuesday of each week except
as provided below); if this Note resets monthly, the Interest Reset Date will be
the third Wednesday of each month; if this Note resets quarterly, the Interest
Reset Date will be the third Wednesday of each March, June, September and
December of each year; if this Note resets semi-annually, the Interest Reset
Date will be the third Wednesday of each of the two months of each year
specified on the face hereof; and if this Note resets annually, the Interest
Reset Date will be the third Wednesday of the month of each year as specified on
the face hereof. The interest rate in effect on each day that is not an Interest
Reset Date will be the interest rate determined as of the Interest Determination
Date pertaining to the immediately preceding Interest Reset Date and the
interest rate in effect on any day that is an Interest Reset Date will be the
interest rate determined as of the Interest Determination Date pertaining to
such Interest Reset Date; provided, however, that the interest rate in effect
for the period, if any, from the date of issue to the Initial Interest Reset
Date will be the Initial Interest Rate; provided, further, that if this Note is
a Floating Rate/Fixed Rate Note the interest rate in effect for the period
commencing on the Fixed Rate Commencement Date to the Maturity Date shall be the
Fixed Interest Rate specified on the face hereof or, if no interest rate is
specified, the interest rate in effect on the day immediately preceding the
Fixed Rate Commencement Date. If any Interest Reset Date would otherwise be a
day that is not a Business Day, the Interest Reset Date shall be postponed to
the next succeeding day that is a Business Day, except that in the case of a
LIBOR Note or a Note for which LIBOR is an applicable Interest Rate Basis and
such Business Day falls in the next succeeding calendar month, such Interest
Reset Date will be the immediately preceding Business Day. In addition, if the
Treasury Rate is an applicable Interest Rate Basis and the Interest
Determination Date would otherwise fall on an Interest Reset Date, then such
Interest Reset Date will be postponed to the next succeeding Business Day.
The interest rate applicable to the Interest Reset Period commencing on
the date of issue will be the Interest Rate provided on the face hereof. The
interest rate applicable to each succeeding Interest Reset Period commencing on
the related Interest Reset Date will be the rate determined as of the applicable
Interest Determination Date on or prior to the Calculation Date (as defined
below). The Interest Determination Date with respect to the CD Rate, the CMT
Rate, the Commercial Paper Rate, the Federal Funds Rate and the Prime Rate will
be the second Business Day preceding the applicable Interest Reset Date; and the
Interest Determination Date with respect to LIBOR will be the second London
Business Day immediately preceding the applicable Interest Reset Date, unless
the Index Currency (as defined below) is British pounds sterling, in which case
the Interest Determination Date will be the applicable Interest Reset Date. The
Interest Determination Date with respect to the Treasury Rate will be the day in
the week in which the applicable Interest Reset Date falls on which day Treasury
Bills (as defined below) are normally auctioned (Treasury Bills are normally
sold at an auction held on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the following Tuesday,
except that such auction may be held on the preceding Friday); provided,
however, that if an
-4-
<PAGE> 6
auction is held on the Friday of the week preceding the applicable Interest
Reset Date, the Interest Determination Date shall be such preceding Friday. If
the interest rate of this Note is determined with reference to two or more
Interest Rate Bases the Interest Determination Date will be the first Business
Day which is a least two Business Days prior to the applicable Interest Reset
Date on which each Interest Rate Basis shall be determinable. Each Interest Rate
Basis shall be determined and compared as of such date, and the applicable
interest rate shall take effect on the applicable Interest Reset Date.
The Calculation Agent (which shall be The Bank of New York unless
otherwise specified on the face hereof and which may be changed by the Company
from time to time) shall calculate the Floating Interest Rate on this Note on or
before each Calculation Date and, upon request, provide the holders of the Notes
the Floating Interest Rate then in effect and, if different, the interest rate
which will become effective as a result of a determination made for the next
succeeding Interest Reset Date with respect to this Note. The Calculation
Agent's determination of any Floating Interest Rate will be final and binding in
the absence of manifest error. Unless otherwise specified on the face hereof or
in an Addendum hereto, the "Calculation Date", where applicable, pertaining to
any Interest Determination Date will be the earlier of (a) the tenth calendar
day after such Determination Date, or, if any such day is not a Business Day,
the next succeeding Business Day, or (b) the Business Day immediately preceding
the applicable Interest Payment Date or Maturity Date, as the case may be.
Notwithstanding the other provisions herein, the Floating Interest Rate
hereon which may accrue during any interest period shall not be greater than the
Maximum Interest Rate, if any, or less than the Minimum Interest Rate, if any,
shown on the first page hereof and, in addition, the Floating Interest Rate
shall in no event be higher than the maximum rate permitted by New York law, as
the same may be modified by U.S. law of general application.
The interest rate borne by this Note will be determined as follows:
(i) Unless the Interest Category of this Note is specified on the face
hereof as a "Floating Rate/Fixed Rate Note" or an "Inverse Floating Rate Note",
this Note shall be designated as a "Regular Floating Rate Note" and, except as
set forth below or on the face hereof, shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis or Bases (a) plus
or minus the Spread, if any, and/or (b) multiplied by the Spread Multiplier, if
any, in each case as specified on the face hereof. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Note shall be payable
shall be reset as of each Interest Rate Date specified on the face hereof;
provided, however, that the interest rate in effect for the period, if any, from
the Original Issue Date to the Initial Interest Reset Date shall be the Initial
Interest Rate.
(ii) If the Interest Category of this Note is specified on the face
hereof as a "Floating Rate/Fixed Rate Note", then, except as set forth below or
on the face hereof, this Note shall bear interest at the rate determined by
reference to the applicable Interest Rate Basis or Bases (a) plus or minus the
Spread, if any, and/or (b) multiplied by the Spread Multiplier, if any.
Commencing on the Initial Interest Reset Date, the rate at which interest on
this Note shall be payable shall be reset as of each Interest Reset Date;
provided, however, that (y) the interest rate in effect for the period, if any,
from the Original Issue Date to the Initial Interest Reset Date shall be the
Initial Interest Rate and (z) the interest rate in effect for the period
commencing on the Fixed Rate Commencement Date specified on the face hereof to
the Maturity Date shall be the Fixed Interest Rate specified on the face hereof
or, if no such Fixed Interest Rate is specified, the interest rate in effect
hereon on the day immediately preceding the Fixed Rate Commencement Date.
(iii) If the Interest Category of this Note is specified on the face
hereof as an "Inverse Floating Rate Note", then, except as set forth below or on
the face hereof, this Note shall bear interest at the Fixed Interest Rate minus
the rate determined by reference to the applicable Interest Rate Basis or Bases
(a) plus or minus the Spread, if any, and/or (b) multiplied by the Spread
Multiplier, if any; provided, however, that, unless otherwise specified on the
face hereof, the interest rate hereon shall not be less than zero. Commencing on
the Initial Reset Date, the rate at which interest on this Note shall be payable
shall be reset as of each Interest Reset Date; provided, however, that the
interest rate in effect for the period, if any, from the Original Issue Date to
the Initial Interest Reset Date shall be the Initial Interest Rate.
-5-
<PAGE> 7
Determination of CD Rate.
- -------------------------
The "CD Rate" will be determined by the Calculation Agent in accordance
with the following provisions:
"CD Rate" means, with respect to any Interest Determination Date
relating to a CD Rate Note or any Floating Rate Note for which the interest rate
is determined with reference to the CD Rate (a "CD Rate Interest Determination
Date"), the rate on such date for negotiable U.S. dollar certificates of deposit
having the Index Maturity specified on the face hereof as published by the Board
of Governors of the Federal Reserve System in "Statistical Release H.15(519),
Selected Interest Rates", or any successor publication ("H.15(519)"), under the
heading "CDs (Secondary Market)," or, if not so published by 3:00 P.M., New York
City time, on the Calculation Date pertaining to such CD Rate Interest
Determination Date, the CD Rate will be the rate on such CD Rate Interest
Determination Date for negotiable U.S. dollar certificates of deposit of the
specified Index Maturity as published by the Federal Reserve Bank of New York in
its daily statistical release "Composite 3:30 P.M. Quotations for U.S.
Government Securities" or any successor publication ("Composite Quotations")
under the heading "Certificates of Deposit". If such rate is not published in
either H.15(519) or the Composite Quotations by 3:00 P.M., New York City time,
on such related Calculation Date, then the CD Rate on such CD Rate Interest
Determination Date will be calculated by the Calculation Agent and will be the
arithmetic mean of the secondary market offered rates as of 10:00 A.M., New York
City time, on such CD Rate Interest Determination Date, of three leading nonbank
dealers in negotiable U.S. dollar certificates of deposit in The City of New
York selected by the Calculation Agent, after consultation with the Company, for
negotiable U.S. dollar certificates of deposit of major U.S. money market banks
for negotiable certificates of deposit with a remaining maturity closest to the
Index Maturity specified on the face hereof in an amount that is representative
for a single transaction in that market at that time; provided, however, that if
the dealers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the CD Rate determined as of such CD Interest Rate Determination
Date will be the CD Rate in effect on such CD Rate Interest Determination Date.
Determination of CMT Rate.
The "CMT Rate" will be determined by the Calculation Agent in
accordance with the following provisions:
Unless otherwise specified on the face hereof, "CMT Rate" means, with
respect to any Interest Determination Date relating to a Floating Rate Note for
which the interest rate is determined with reference to the CMT Rate (a "CMT
Rate Interest Determination Date"), the rate displayed on the Designated CMT
Telerate Page under the caption "...Treasury Constant Maturities...Federal
Reserve Board Release H.15...Mondays Approximately 3:45 P.M.", under the column
for the Designated CMT Maturity Index for (i) if the Designated CMT Telerate
Page is 7055, the rate on such CMT Rate Interest Determination Date and (ii) if
the Designated CMT Telerate Page is 7052, the week, or the month, as applicable,
ended immediately preceding the week in which the related CMT Rate Interest
Determination Date occurs. If such rate is no longer displayed on the relevant
page or is not displayed by 3:00 P.M., New York City time, on the related
Calculation Date, then the CMT Rate for such CMT Rate Interest Determination
Date will be such treasury constant maturity rate for the Designated CMT
Maturity Index (as defined below) as published in the relevant H.15(519). If
such rate is no longer published or is not published by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate on such CMT Rate
Interest Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other U.S. Treasury rate for the Designated
CMT Maturity Index) for the CMT Rate Interest Determination Date with respect to
such Interest Reset Date as may then be published by either the Board of
Governors of the Federal Reserve System or the United States Department of the
Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 P.M., New York
City time, on the related Calculation Date, then the CMT Rate on the CMT Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City time, on
such CMT Rate Interest Determination Date reported, according to their written
records, by three leading primary U.S. government securities dealers (each, a
"Reference Dealer") in The City of New York selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent, after
consultation with the Company, and eliminating the highest quotation (or, in the
event of equality, one of the highest) and the lowest quotation (or, in the
event of equality, one of the lowest), for the most recently issued direct
noncallable fixed rate obligations of the United States ("Treasury Notes") with
an original maturity of approximately the Designated CMT Maturity Index and a
-6-
<PAGE> 8
remaining term to maturity of not less than such Designated CMT Maturity Index
minus one year. If the Calculation Agent is unable to obtain three such Treasury
Note quotations, the CMT Rate on such CMT Rate Interest Determination Date will
be calculated by the Calculation Agent and will be a yield to maturity based on
the arithmetic mean of the secondary market offer side prices as of
approximately 3:30 P.M., New York City time, on such CMT Rate Interest
Determination Date of three Reference Dealers in The City of New York (from five
such Reference Dealers selected by the Calculation Agent, after consultation
with the Company, and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least $100 million. If three or four (and not five)
of such Reference Dealers are quoting as described above, then the CMT Rate will
be based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided however, that
if fewer than three Reference Dealers so selected by the Calculation Agent are
quoting as mentioned herein, the CMT Rate determined as of such CMT Rate
Interest Determination Date will be the CMT Rate in effect on such CMT Rate
Interest Determination Date. If two Treasury Notes with an original maturity as
described in the second preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the Calculation Agent will
obtain from five Reference Dealers quotations for the Treasury Note with the
shorter remaining term to maturity.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page specified on the face hereof (or any other page as
may replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)). If no such page is specified on
the face hereof, the Designated CMT Telerate Page shall be 7052 for the most
recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the Designated
CMT Maturity Index shall be 2 years.
Determination of Commercial Paper Rate.
- ----------------------------------------
The "Commercial Paper Rate" will be determined by the Calculation Agent
in accordance with the following provisions:
"Commercial Paper Rate" means, with respect to any Interest
Determination Date relating to a Floating Rate Note for which the interest rate
is determined with reference to the Commercial Paper Rate (a "Commercial Paper
Rate Interest Determination Date"), the Money Market Yield (as defined below) on
such date of the rate for commercial paper having the Index Maturity specified
on the first page hereof as published in H.15(519) under the heading "Commercial
Paper". In the event such rate is not published by 3:00 P.M., New York City
time, on the related Calculation Date, then the Commercial Paper Rate on such
Commercial Paper Rate Interest Determination Date shall be the Money Market
Yield of the rate for commercial paper having the Index Maturity specified on
the face hereof as published in Composite Quotations under the heading
"Commercial Paper" (with an Index Maturity of one month or three months being
deemed to be equivalent to the Index Maturity of 30 days or 90 days,
respectively). If such rate is not yet published in either H.15(519) or
Composite Quotations by 3:00 P.M., New York City time, on the related
Calculation Date, then the Commercial Paper Rate on such Commercial Paper Rate
Interest Determination Date shall be calculated by the Calculation Agent and
shall be the Money Market Yield of the arithmetic mean of the offered rates at
approximately 11:00 A.M., New York City time, on such Commercial Paper Rate
Interest Determination Date of three leading dealers of commercial paper in The
City of New York selected by the Calculation Agent, after consultation with the
Company, for commercial paper of the specified Index Maturity placed for an
industrial issuer whose bond rating is "AA," or the equivalent, from a
nationally recognized statistical rating organization; provided, however, that
if the dealers so selected by the Calculation Agent are not quoting as mentioned
in this sentence, the Commercial Paper Rate determined as of such Commercial
Paper Rate Interest Determination Date will be the Commercial Paper Rate in
effect on such Commercial Paper Rate Interest Determination Date.
-7-
<PAGE> 9
"Money Market Yield" shall be the yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = 100 x 360 x D
-----------
360 - (D x M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the period for which interest is being calculated.
Determination of Federal Funds Rate.
The "Federal Funds Rate" will be determined by the Calculation Agent in
accordance with the following provisions:
"Federal Funds Rate" means, with respect to any Interest Determination
Date relating to a Floating Rate Note for which the interest rate is determined
with reference to the Federal Funds Rate (a "Federal Funds Rate Interest
Determination Date"), the rate on that date for U.S. dollar federal funds as
published in H.15(519) under the heading "Federal Funds (Effective)" or, if not
so published by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Federal Funds Rate Interest Determination Date, as published
in Composite Quotations under the heading "Federal Funds/Effective Rate". If
such rate is not published in either H.15(519) or Composite Quotations by 3:00
P.M., New York City time, on the related Calculation Date, then the Federal
Funds Rate on such Federal Funds Rate Interest Determination Date will be
calculated by the Calculation Agent and will be the arithmetic mean of the rates
for the last transaction in overnight U.S. dollar federal funds arranged by
three leading brokers of federal funds transactions in The City of New York
selected by the Calculation Agent, after consultation with the Company, prior to
9:00 A.M., New York City time, on such Federal Funds Rate Interest Determination
Date; provided, however, that if the brokers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Federal Funds Rate
determined as of such Federal Funds Rate Interest Determination Date will be the
Federal Funds Rate then in effect on such Federal Funds Rate Interest
Determination Date.
Determination of LIBOR.
- -----------------------
"LIBOR" will be determined by the Calculation Agent in accordance with
the following provisions:
(i) With respect to any Interest Determination Date relating
to a Floating Rate Note for which the interest rate is determined with reference
to LIBOR (a "LIBOR Interest Determination Date"), LIBOR will be either: (a) if
"LIBOR Reuters" is specified on the face hereof, the arithmetic mean of the
offered rates (unless the Designated LIBOR Page by its terms provides only for a
single rate, in which case such single rate shall be used) for deposits in the
Index Currency having the Index Maturity specified on the face hereof,
commencing on the applicable Interest Reset Date, that appear (or, if only a
single rate is required as aforesaid, appears) on the Designated LIBOR Page as
of 11:00 A.M., London time, on such LIBOR Interest Determination Date, or (b) if
"LIBOR Telerate" is specified on the face page hereof or if neither "LIBOR
Reuters" nor "LIBOR Telerate" is specified on the face hereof as the method for
calculating LIBOR, the rate for deposits in the Index Currency having the Index
Maturity specified on the face hereof, commencing on such Interest Reset Date,
that appears on the Designated LIBOR Page as of 11:00 A.M., London time, on such
LIBOR Interest Determination Date. If fewer than two such offered rates appear,
or if no such rate appears, as applicable, LIBOR in respect on such LIBOR
Interest Determination Date will be determined as if the parties had specified
the rate described in (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on
which fewer than two offered rates appear, or no rate appears, as the case may
be, on the Designated LIBOR Page, as specified in (i) above, the Calculation
Agent will request the principal London offices of each of four major reference
banks in the London interbank market, as selected by the Calculation Agent,
after consultation with the Company, to provide the Calculation Agent with its
offered quotation for deposits in the Index Currency for the period of the Index
Maturity specified on the face hereof, commencing on the applicable Interest
Reset Date, to prime banks in the London interbank market at approximately 11:00
A.M., London time, on such LIBOR Interest Determination Date and in a principal
amount that is representative
-8-
<PAGE> 10
for a single transaction in such Index Currency in such market at such time. If
at least two such quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date will be the arithmetic mean of such quotations. If fewer than
two such quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date will be the arithmetic mean of the rates quoted at
approximately 11:00 A.M., in the applicable Principal Financial Center (as
defined above), on such LIBOR Interest Determination Date by three major banks
in such Principal Financial Center selected by the Calculation Agent, after
consultation with the Company, for loans in the Index Currency to leading
European banks, having the Index Maturity specified on the face hereof and in a
principal amount that is representative for a single transaction in such Index
Currency in such market at such time; provided, however, that if the banks so
selected by the Calculation Agent are not quoting as mentioned in this sentence,
LIBOR determined as of such LIBOR Interest Determination Date will be LIBOR in
effect on such LIBOR Interest Determination Date.
"Index Currency" means the currency or composite currency specified on
the face hereof as to which LIBOR shall be calculated. If no such currency or
composite currency is specified on the face hereof, the Index Currency shall be
U.S. dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on
the face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) for the purpose of displaying the London interbank rates of
major banks for the applicable Index Currency, or (b) if "LIBOR Telerate" is
specified on the face hereof or neither "LIBOR Reuters" nor "LIBOR Telerate" is
specified on the face hereof as the method for calculating LIBOR, the display on
the Dow Jones Telerate Service (or any successor service) for the purpose of
displaying the London interbank rates of major banks for the applicable Index
Currency.
Determination of Prime Rate.
- ----------------------------
The "Prime Rate" will be determined by the Calculation Agent in
accordance with the following provisions:
"Prime Rate" means, with respect to any Interest Determination Date
relating to a Floating Rate Note for which the interest rate is determined with
reference to the Prime Rate (a "Prime Rate Interest Determination Date"), the
rate on such date as such rate is published in H.15(519) under the heading "Bank
Prime Loan". If such rate is not published prior to 3:00 P.M., New York City
time, on the related Calculation Date, then the Prime Rate will be the
arithmetic mean of the rates of interest publicly announced by each bank that
appears on the Reuters Screen USPRIME1 (as defined below) as such bank's prime
rate or base lending rate as in effect for such Prime Rate Interest
Determination Date. If fewer than four such rates appear on the Reuters Screen
USPRIME1 for the Prime Rate Interest Determination Date, then the Prime Rate
will be determined by the Calculation Agent and will be the arithmetic mean of
the prime rates quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such Prime Rate
Interest Determination Date by four major money center banks in The City of New
York selected by the Calculation Agent, after consultation with the Company. If
fewer than four such quotations are so provided, then the Prime Rate shall be
the arithmetic mean of four prime rates quoted on the basis of the actual number
of days in the year divided by a 360-day year as of the close of business on
such Prime Rate Interest Determination Date as furnished in The City of New York
by the major money center banks, if any, that have provided such quotations and
by as many substitute banks or trust companies as necessary in order to obtain
four such prime rate quotations, provided such substitute banks or trust
companies are organized and doing business under the laws of the United States,
or any State thereof, each having total equity capital of at least $500 million
and being subject to supervision or examination by Federal or State authority,
selected by the Calculation Agent, after consultation with the Company, to
provide such rate or rates; provided, however, that if the banks or trust
companies so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Prime Rate determined as of such Prime Rate Interest
Determination Date will be the Prime Rate in effect on such Prime Rate Interest
Determination Date.
"Reuters Screen USPRIME1" means the display designated as page
"USPRIME1" on the Reuter Monitor Money Rates Service (or such other page as may
replace the USPRIME1 page on that service for the purpose of displaying prime
rates or base lending rates of major U.S. banks).
-9-
<PAGE> 11
Determination of Treasury Rate.
- -------------------------------
The "Treasury Rate" will be determined by the Calculation Agent in
accordance with the following provisions:
"Treasury Rate" means, with respect to any Interest Determination Date
relating to a Floating Rate Note for which the interest rate is determined by
reference to the Treasury Rate (a "Treasury Rate Interest Determination Date"),
the rate from the auction held on such Treasury Rate Interest Determination Date
(the "Auction") of direct obligations of the United States ("Treasury Bills")
having the Index Maturity specified on the face hereof, as such rate is
published in H.15(519) under the heading "Treasury Bills-auction average
(investment)" or, if not published by 3:00 P.M., New York City time, on the
related Calculation Date, the auction average rate of such Treasury Bills
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) as otherwise announced by the United
States Department of the Treasury. In the event that the results of the Auction
of Treasury Bills having the Index Maturity specified in the applicable Pricing
Supplement are not reported as provided by 3:00 P.M., New York City time, on the
related Calculation Date, or if no such Auction is held, then the Treasury Rate
will be calculated by the Calculation Agent and will be a yield to maturity
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Treasury Rate Interest Determination Date, of three leading primary U.S.
government securities dealers selected by the Calculation Agent, after
consultation with the Company, for the issue of Treasury Bills with a remaining
maturity closest to the Index Maturity specified in the applicable Pricing
Supplement; provided, however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Treasury
Rate determined as of such Treasury Rate Interest Determination Date will be the
Treasury Rate in effect on such Treasury Rate Interest Determination Date.
The Company is obligated to make payment of principal, premium, if any,
and interest, if any, in respect of this Note in the Specified Currency (or, if
the Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than U.S. dollars, any such amounts so payable by the Company will be converted
by the Exchange Rate Agent specified above into U.S. dollars for payment to the
Holder of this Note; provided, however, that the Holder of this Note may elect
to receive such amounts in such Specified Currency pursuant to the provisions
set forth below.
If the Specified Currency is other than U.S. dollars and the Holder of
this Note shall not have duly made an election to receive all or a specified
portion of any payment of principal, premium, if any, and/or interest, if any,
in respect of this Note in the Specified Currency, any U.S. dollar amount to be
received by the Holder of this Note will be based on the highest bid quotation
in The City of New York received by the Exchange Rate Agent at approximately
11:00 A.M., New York City time, on the second Business Day preceding the
applicable payment date from three recognized foreign exchange dealers (one of
whom may be the Exchange Rate Agent) selected by the Exchange Rate Agent and
approved by the Company for the purchase by the quoting dealer of the Specified
Currency for U.S. dollars for settlement on such payment date in the aggregate
amount of the Specified Currency payable to all holders of Notes scheduled to
receive U.S. dollar payments and at which the applicable dealer commits to
execute a contract. All currency exchange costs will be borne by the Holder of
this Note by deductions from such payments. If three such bid quotations are not
available, payments on this Note will be made in the Specified Currency.
If the Specified Currency is other than U.S. dollars, the Holder of
this Note may elect to receive all or a specified portion of any payment of
principal, premium, if any, and/or interest, if any, in respect of this Note in
the Specified Currency by submitting a written request for such payment to the
Trustee at its Corporate Trust Office in the Borough of Manhattan, The City of
New York on or prior to the applicable Record Date or at least 15 calendar days
prior to the Maturity Date, as the case may be. Such written request may be
mailed or hand delivered or sent by cable, telex or other form of facsimile
transmission. The Holder of this Note may elect to receive all or a specified
portion of all future payments in the Specified Currency in respect of such
principal, premium, if any, and/or interest, if any, and need not file a
separate election for each payment. Such election will remain in effect until
revoked by written notice to the Trustee, but written notice of any such
revocation must be received by the Trustee on or prior to the applicable Record
Date or at least 15 calendar days prior to the Maturity Date, as the case may
be, and no such revocation or any new election may be made
-10-
<PAGE> 12
with respect to payments hereon with respect to which (i) an Event of Default
has occurred, (ii) the Company has exercised any of its defeasance or covenant
defeasance options or (iii) the Company has given a notice of redemption.
If the Specified Currency is other than U.S. dollars or a composite
currency and the Holder of this Note shall have duly made an election to receive
all or a specified portion of any payment of principal, premium, if any, and/or
interest in respect of this Note in the Specified Currency and if the Specified
Currency is not available due to the imposition of exchange controls or other
circumstances beyond the control of the Company or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking community,
the Company will be entitled to satisfy its obligations to the Holder of this
Note by making such payment in U.S. dollars on the basis of the Market Exchange
Rate (as defined below) on the second Business Day prior to such payment or, if
such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate or as otherwise specified on the face
hereof; provided, however, that is such Specified Currency is replaced by a
single European currency, the payment of principal of, premium, if any, or
interest on this Note denominated in such a currency shall be effected in the
new single European currency in conformity with legally applicable measures
taken pursuant to, or by virtue of, the treaty establishing the European
Community, as amended by the treaty on European Unity. The "Market Exchange
Rate" for the Specified Currency means the noon dollar buying rate in The City
of New York for cable transfers for the Specified Currency as certified for
customs purposes by (or if not so certified, as otherwise determined by) the
Federal Reserve Bank of New York. Any payment made in U.S. dollars or a new
single European currency where the required payment is in a Specified Currency
other than U.S. dollars or such single European currency, respectively, will not
constitute an Event of Default (as defined in the Indenture).
If the Specified Currency is a composite currency and the Holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest, if any, in
respect of this Note in the Specified Currency and if such composite currency is
unavailable due to the imposition of exchange controls or other circumstances
beyond the control of the Company, then the Company will be entitled to satisfy
its obligations to the Holder of this Note by making such payment in U.S.
dollars. The amount of each payment in U.S. dollars shall be computed by the
Exchange Rate Agent on the basis of the equivalent of the composite currency in
U.S. dollars. The component currencies of the composite currency for this
purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in U.S. dollars shall be calculated by
aggregating the U.S. dollar equivalents of the Component Currencies. The U.S.
dollar equivalent of each of the Component Currencies shall be determined by the
Exchange Rate Agent on the basis of the most recently available Market Exchange
Rate for each such Component Currency, or as otherwise specified on the face
hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above, in the Addendum hereto,
which further provisions shall have the same force and effect as if set forth on
the face hereof.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
-11-
<PAGE> 13
IN WITNESS WHEREOF, Owens Corning has caused this Note to be duly
executed.
OWENS CORNING
By
--------------------------------
Title:
By
--------------------------------
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
Dated:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By
------------------------------
Authorized Signatory
-12-
<PAGE> 14
[REVERSE OF NOTE]
OWENS CORNING
MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized series of Debt Securities (the
"Debt Securities") of the Company issued and to be issued under an Indenture,
dated as of May 5, 1997, as amended, modified or supplemented from time to time
(the "Indenture"), between the Company and The Bank of New York, as Trustee (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 Debt
Securities, and of the terms upon which the Debt Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Debt Securities
designated as "Medium-Term Notes" (the "Notes"). All terms used but not defined
in this Note specified on the face hereof or in an Addendum hereto shall have
the meanings assigned to such terms in the Indenture.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S.$100,000 and integral multiples of U.S. $1,000 in
excess thereof or the minimum Authorized Denomination specified on the face
hereof.
This Note will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated
Maturity.
This Note will be subject to redemption at the option of the Company on
any date on or after the Redemption Commencement Date, if any, specified on the
face hereof, in whole or from time to time in part in increments of U.S.$100,000
or the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S.$1,000 or such minimum Authorized
Denomination), at the Redemption Price (as defined below), together with unpaid
interest accrued hereon to the date fixed for redemption (each, a "Redemption
Date"), on notice given not more than 60 nor less than 30 calendar days prior to
the Redemption Date and in accordance with the provisions of the Indenture. If
this Note is not an Original Issue Discount Note, the"Redemption Price" shall
initially be the Initial Redemption Percentage specified on the face hereof
multiplied by the unpaid principal amount of this Note to be redeemed. The
Initial Redemption Percentage shall decline at each anniversary of the
Redemption Commencement Date by an amount equal to the Annual Redemption
Percentage Reduction, if any, specified on the face hereof until the Redemption
Price is equal to 100% of the unpaid principal amount to be redeemed. If this
Note is an Original Issue Discount Note, the Redemption Price shall be as set
forth below. In the event of redemption of this Note in part only, a new Note of
like tenor for the unredeemed portion hereof and otherwise having the same terms
as this Note shall be issued in the name of the Holder hereof upon the
presentation and surrender hereof.
This Note will be subject to repayment by the Company at the option of
the Holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or from time to time in part in increments of U.S.$1,000
or the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S.$100,000 or such minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal amount
to be repaid, together with unpaid interest accrued hereon to the date fixed for
repayment (each, a "Repayment Date"). For this Note to be repaid, this Note must
be received, together with the form hereon entitled "Option to Elect Repayment"
duly completed, by the Trustee at its Corporate Trust Office in the Borough of
Manhattan, The City of New York (or at such other address of which the Company
shall from time to time designate and notify holders of the Notes) not more than
60 nor less than 30 calendar days prior to the Repayment Date. Exercise of such
repayment option by the Holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the Holder hereof upon the presentation and surrender hereof.
If this is a Global Security representing Book-Entry Notes, only the
Depositary may exercise the repayment option in respect of this Note.
Accordingly, if this is a Global Security representing Book-Entry Notes and the
beneficial owner desires to have all or any portion of the Book-Entry Note
represented by this Global Security repaid, the beneficial owner must instruct
the participant through which he owns his interest to direct the Depositary to
exercise the repayment option on his behalf by delivering this Note and duly
completed election form to the Trustee as aforesaid.
-1-
<PAGE> 15
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the Holder of this Note in the event of
redemption, repayment or acceleration of maturity will be equal to the sum of
(i) the Issue Price specified on the face hereof (increased by any accruals of
the Discount, as defined below) and, in the event of any redemption of this Note
(if applicable), multiplied by the Initial Redemption Percentage (as adjusted by
the Annual Redemption Percentage Reduction, if applicable) and (ii) any unpaid
interest on this Note accrued from the Original Issue Date to the Redemption
Date, Repayment Date or date of acceleration of maturity, as the case may be.
The difference between the Issue Price and 100% of the principal amount of this
Note is referred to herein as the "Discount".
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause the yield on the Note to
be constant. The constant yield will be calculated using a 30-day month, 360-day
year convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period), a coupon equal to the
initial coupon rate applicable to this Note and an assumption that the maturity
of this Note will not be accelerated. If the period from the Original Issue Date
to the initial Interest Payment Date (the "Initial Period") is shorter than the
compounding period for this Note, a proportionate amount of the yield for an
entire compounding period will be accrued. If the Initial Period is longer than
the compounding period, then such period will be divided into a regular
compounding period and a short period with the short period being treated as
provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
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 Debt Securities at any time by the
Company and the Trustee with the consent of the holders of not less than a
majority of the aggregate principal amount of all Debt Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority of the aggregate principal
amount of the outstanding Debt Securities of any series, on behalf of the
holders of all such Debt Securities, to waive compliance by the Company with
certain provisions of the Indenture. Furthermore, provisions in the Indenture
permit the holders of not less than a majority of the aggregate principal amount
of the outstanding Debt Securities of any series, in certain instances, to
waive, on behalf of all of the holders of Debt Securities of such series,
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and other Notes issued
upon the registration of transfer hereof or in exchange heretofore or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay principal, premium, if any, and interest, if
any, in respect of this Note at the times, places and rate or formula, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Company upon surrender of this Note for registration of transfer
at the office or agency of the Company in any place where the principal hereof
and any premium or interest hereon 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 by his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the Holder hereof surrendering the
same.
-2-
<PAGE> 16
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 Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The internal laws of the State of New York shall govern the Indenture
and the Notes.
-3-
<PAGE> 17
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
Additional abbreviations may also be used though not in the above list.
----------------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------
| |
- -------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
- -------------------------------------------------------------------------------
this Note and all rights thereunder hereby irrevocably constituting and appointing
____________________________________________________________________, Attorney,
to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated:
------------------------ -----------------------------------------
----------------------------------
Notice: The signature(s) on this
Assignment must correspond with the
name(s) as written upon the face of
this Note in every particular,
without alteration or enlargement
or any change whatsoever.
|
Signature Guaranty:
------------------------------------
</TABLE>
-4-
<PAGE> 18
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to _____% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at ___________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its Corporate
Trust Office in the Borough of Manhattan, The City of New York, currently
located at [_____________], not more than 60 nor less than 30 calendar days
prior to the Repayment Date, this Note with this "Option to Elect Repayment"
form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion thereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than U.S. dollars, the minimum Authorized
Denomination specified on the face hereof)) which the Holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the Holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $______
_________________________________
Notice: The signature(s) on this
Option to Elect Repayment must
correspond with the name(s) as
written upon the face of this Note
in every particular, without
alteration or enlargement or any
change whatsoever.
Date: ________________
Signature Guaranty: __________________________________
-5-
