<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 15, 1999
REGISTRATION NO. 333-76765
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
PRE-EFFECTIVE AMENDMENT NO. 1
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
<TABLE>
<CAPTION>
<S> <C>
OWENS CORNING OWENS CORNING
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) CAPITAL II
OWENS CORNING
CAPITAL IV
(EXACT NAME OF REGISTRANT AS SPECIFIED
IN ITS CERTIFICATE OF TRUST)
DELAWARE DELAWARE
(STATE OR OTHER JURISDICTION OF (STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION) INCORPORATION OR ORGANIZATION)
34-4323452 31-6560375
52-6995023
(I.R.S EMPLOYER (I.R.S. EMPLOYER
IDENTIFICATION NO.) IDENTIFICATION NO.)
ONE OWENS CORNING PARKWAY C/O OWENS CORNING
TOLEDO, OHIO 43659 ONE OWENS CORNING PARKWAY
(419) 248-8000 TOLEDO, OHIO 43659
(419) 248-8000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF PRINCIPAL EXECUTIVE OFFICES) INCLUDING AREA CODE, OF PRINCIPAL EXECUTIVE OFFICES)
</TABLE>
--------------
MAURA J. ABELN, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
OWENS CORNING
ONE OWENS CORNING PARKWAY
TOLEDO, OHIO 43659
(419) 248-8000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE OF REGISTRANT)
--------------
Please send copies of all communications to:
DANIELLE CARBONE, ESQ.
SHEARMAN & STERLING
599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
(212) 848-4000
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<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
TITLE OF EACH CLASS OF AMOUNT TO PROPOSED PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED MAXIMUM AGGREGATE REGISTRATION FEE
AGGREGATE OFFERING OFFERING PRICE(2)
PRICE PER UNIT(1)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities of Owens Corning (2)..............
- ---------------------------------------------------------
Preferred Stock of Owens Corning, no par value....
- ---------------------------------------------------------
Common Stock of Owens Corning, $.10 par value (3)(4)
- ---------------------------------------------------------
Warrants of Owens Corning (5).....................
- ---------------------------------------------------------
Stock Purchase Contracts of Owens Corning (6).....
- ---------------------------------------------------------
Stock Purchase Units of Owens Corning (7).........
- ---------------------------------------------------------
Junior Subordinated Deferrable Interest Debentures of
Owens Corning.....................................
- ---------------------------------------------------------
Preferred Securities of Owens Corning Capital II..
- ---------------------------------------------------------
Preferred Securities of Owens Corning Capital IV..
- ---------------------------------------------------------
Guarantees by Owens Corning with respect to Preferred
Securities of Owens Corning Capital II and Owens Corning $125,100(11)
Capital IV (8).................................... $450,000,000(9) 100% $450,000,000(9)(10)
- ---------------------------------------------------------
Total.............................................
===================================================================================================================================
===================================================================================================================================
</TABLE>
(1) Estimated for the sole purpose of computing the registration fee pursuant
to Rule 457(o).
(2) Also includes such indeterminate principal amount of Debt Securities
issuable upon exercise of Warrants or upon conversion of or exchange for
any other securities registered hereunder.
(3) Also includes such indeterminate number of shares of Common Stock as may be
issued upon exercise of Warrants or upon conversion of or exchange for
Preferred Stock that provide for conversion into or exchange for Common
Stock.
(4) Includes preferred stock purchase rights. Prior to the occurrence of
certain events, such rights will not be exercisable or evidenced separately
from the Common Stock.
(5) Warrants may be sold separately or with any of the other securities
registered hereunder.
(6) Represents contracts to purchase Preferred Stock or Common Stock.
(7) Represents ownership of Stock Purchase Contracts and Debt Securities,
Preferred Securities or debt obligations of third parties, including U.S.
Treasury securities.
(8) This Registration Statement is deemed to include the obligations of Owens
Corning under the Junior Subordinated Deferrable Interest Debentures, the
related Subordinated Indenture, the Trust Agreements, the Preferred
Securities, the Guarantees and the Expense Agreements as described in the
Registration Statement.
(9) Such amount represents the aggregate principal amount of Debt Securities
and Junior Subordinated Deferrable Interest Debentures issued at their
principal amount, the aggregate issue price (rather than the principal
amount) of any Debt Securities and Junior Subordinated Deferrable Interest
Debentures issued at an original issue discount, the aggregate liquidation
preference of any Preferred Stock, the aggregate amount used when computing
the registration fee pursuant to Rule 457(c) for any Common Stock, the
aggregate issue price of any Warrants, the aggregate exercise price of any
securities issuable upon the exercise of Warrants and the initial public
offering price of any Preferred Securities. Any securities registered
hereunder may be sold separately or as units with other securities
registered hereunder.
<PAGE> 3
(10) No separate consideration will be received for the Common Stock, if any,
issuable upon conversion of or in exchange for Preferred Stock. No separate
consideration will be received for any Junior Subordinated Deferrable
Interest Debentures if issued to evidence a loan by Owens Corning Capital
II or Owens Corning Capital IV, or for any related Guarantee or Expense
Agreement.
(11) The registration fee was previously paid on April 21, 1999.
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after this Registration Statement becomes effective depending upon market
conditions and other factors.
-------------
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box:[ ]
If any of the securities being registered on this Form are being offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering:[ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
Pursuant to the provisions of Rule 429 under the Securities Act of 1933, the
Prospectus contained in this Registration Statement also relates to $50,000,000
of unsold Debt Securities of Owens Corning covered by the Registration Statement
on Form S-3 (Registration No. 333-47961) of Owens Corning that are being carried
forward in connection with this Registration Statement. Such Registration
Statement is accordingly amended to reflect the information contained herein. In
the event that any of such previously registered securities are offered prior to
the effective date of this Registration Statement, the amount of such securities
will not be included in any Prospectus hereunder. The amount of securities being
registered under this Registration Statement, together with the remaining
securities registered under Registration Statement No. 333-47961, represents the
maximum amount of securities which are expected to be offered for sale.
-------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT BECOMES EFFECTIVE
ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
<PAGE> 4
Subject to Completion, Dated June 15, 1999.
PROSPECTUS
$500,000,000
OWENS CORNING
Debt Securities,
Preferred Stock, Common Stock, Warrants,
Stock Purchase Contracts, Stock Purchase Units and
Junior Subordinated Deferrable Interest Debentures
OWENS CORNING CAPITAL II
OWENS CORNING CAPITAL IV
Preferred Securities
Fully and unconditionally guaranteed, as described herein, by
OWENS CORNING
--------------------
This prospectus provides you with a general description of the securities we
may offer. Each time we sell any of the securities described in this prospectus,
we will provide the specific terms of the securities in a supplement to this
prospectus.
You should read this prospectus and the relevant prospectus supplement
carefully before you invest in any of our securities listed above.
--------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
We may sell the securities to or through underwriters, through dealers or
agents or directly to purchasers. We will describe the plan of distribution for
any particular series of securities in the applicable prospectus supplement.
---------------------
The date of this prospectus is _____________, 1999.
INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT
SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL
THESE SECURITIES AND WE ARE NOT SOLICITING AN OFFER TO BUY ANY SECURITIES IN ANY
STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE> 5
WHERE YOU CAN FIND ADDITIONAL INFORMATION
Owens Corning files annual, quarterly and special reports and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms at 450 Fifth Street, N.W., Washington, D.C. 20549
and in New York, New York and Chicago, Illinois. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Our SEC
filings are also available to the public from the SEC's web site at
http://www.sec.gov. Our common stock is listed on the New York Stock Exchange
under the symbol "OWC" and information about us is also available at the New
York Stock Exchange.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents that are considered part of this prospectus. Later
information that we file with the SEC will automatically update and supersede
this information. We incorporate by reference the documents listed below and any
future filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 by Owens Corning (1) after the date of the
filing of this registration statement and prior to its effectiveness and (2)
until our offering of securities has been completed.
- Annual Report on Form 10-K for the year ended December 31, 1998 and our
Quarterly Report on Form 10-Q for the quarter ended March 31, 1999;
- Report on Form 8-K filed on February 8, 1999 reporting the notice of
date of 1999 Annual Meeting of Stockholders; and
- Report on Form 8-K filed on April 15, 1999 reporting first quarter
results and update on National Settlement Program.
You may obtain a copy of these filings at no cost, by writing or telephoning
us at the following address: Owens Corning World Headquarters, Toledo, Ohio
43659, Attention: Secretary's Office (telephone: (419) 248-8000).
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. This prospectus is an
offer to sell or to buy only the securities referred to in this prospectus, and
only under circumstances and in jurisdictions where it is lawful to do so. The
information contained in this prospectus or any prospectus supplement is current
only as of the date on the front page of those documents. Also, you should not
assume that there has been no change in the affairs of Owens Corning since the
date of this prospectus or any applicable prospectus supplement.
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<PAGE> 6
Owens Corning Capital II and Owens Corning Capital IV (the "trusts") will
not be subject to the reporting requirements of the Exchange Act. If the trusts
issue preferred securities under this prospectus, we will seek an exemption from
the reporting requirements of the Exchange Act for the trusts and will propose
to include their summary financial information in a footnote to our consolidated
financial statements.
We do not believe that separate financial statements for the trusts are
valuable in this prospectus or in separate Exchange Act filings because:
- all of the voting securities of the trusts will be owned by Owens
Corning, a reporting company under the Exchange Act, and
- the trusts are special purpose entities with no operating history or
independent operations and they are not engaged, nor do they propose to
engage, in any activity other than purchasing our junior subordinated
debt securities and issuing preferred securities and common securities.
3
<PAGE> 7
OWENS CORNING
We are a world leader in providing consumer and industrial customers with
building materials systems and composites systems. The building materials are
used in residential remodeling and repair, commercial improvement, new
residential and commercial construction, and other related markets. Composite
materials are used in end-use markets such as building construction, automotive,
telecommunications, marine, aerospace, energy, appliance, packaging and
electronics. In 1998, our Building Materials segment accounted for 78% of our
total sales, and our Composite Materials segment accounted for 22% of total
sales.
BUILDING MATERIALS
Our Building Materials business segment sells a variety of building and home
improvement products in three major categories: (1) glass fiber, foam and
mineral wool insulation, (2) roofing materials, and (3) exterior products for
the home, such as vinyl and metal siding and accessories, vinyl windows and
patio doors, rainware (gutters and downspouts), cast stone building products and
housewrap. The Owens Corning name, our trademarked color PINK and licensed Pink
Panther(TM) icon and our FIBERGLAS(R) trademark enjoy strong brand recognition
with consumers in the building materials market.
COMPOSITE MATERIALS
We are the world's leading producer of glass fiber materials used in
composites. Composites are fabricated material systems made up of two or more
components (e.g., plastic resin and glass fiber) used in various applications to
replace traditional materials, such as aluminum, wood and steel. The global
composites industry has expanded to include thousands of end-use applications.
The primary end-use markets that we serve are transportation, building
construction, electrical/electronics, consumer recreational and infrastructure.
In the construction market, the major end-use application for glass fiber is
asphalt roofing shingles.
Our principal executive offices are located at Owens Corning World
Headquarters, Toledo, Ohio 43659, and our telephone number is (419) 248-8000.
Unless the context indicates otherwise, references in this prospectus to "we" or
"Owens Corning" include Owens Corning and its consolidated subsidiaries.
4
<PAGE> 8
THE ISSUERS
Owens Corning Capital II and Owens Corning Capital IV are Delaware statutory
business trusts sponsored by Owens Corning (each a "trust" and, collectively,
the "trusts"). We formed Owens Corning Capital II by executing a declaration of
trust and filing a certificate of trust with the Delaware Secretary of State on
April 2, 1997. We formed Owens Corning Capital IV by executing a declaration of
trust and filing a certificate of trust with the Delaware Secretary of State on
June 1, 1999. Wilmington Trust Company also executed each declaration of trust
as Delaware trustee. We will amend and restate each trust's declaration of trust
in substantially the form filed as an exhibit to this registration statement and
file it with the SEC as an exhibit hereto. Each declaration of trust, as amended
and restated, is referred to in this prospectus as a "Declaration of Trust". We
will qualify each Declaration of Trust as an indenture under the Trust Indenture
Act of 1939 ("TIA").
As presently set forth in their respective Declarations of Trust, each trust
exists for the exclusive purposes of:
- issuing and selling its common securities and preferred
securities;
- using the proceeds from the sale of the common securities and
the preferred securities to acquire either (1) junior
subordinated deferrable interest debentures issued by Owens
Corning, in the case of Owens Corning Capital II or (2) debt
securities issued by Owens Corning, in the case of Owens
Corning Capital IV; and
- engaging in only those other activities necessary, convenient
or incidental to the activities described above.
Upon an offering of securities we may amend and restate the Declaration of
Trust of Owens Corning Capital II to provide that that trust exists for the
purpose of acquiring debt securities issued by Owens Corning other than, or in
addition to, junior subordinated deferrable interest debentures. Such other debt
securities, if any, will be described in a prospectus supplement and may also
include debt securities that are senior or senior subordinated.
Accordingly, unless otherwise provided in an amended and restated
Declaration of Trust, the sole assets of Owens Corning Capital II will be the
junior subordinated deferrable interest debentures and the corresponding
payments made by Owens Corning under the junior subordinated deferrable interest
debentures. The sole assets of Owens Corning Capital IV will be the debt
securities and the corresponding payments made by Owens Corning under the debt
securities.
5
<PAGE> 9
In addition, we have entered into an expense agreement with each trust.
Under each agreement, we will reimburse the respective trust for any expenses
incurred by the trust in connection with the offering of its preferred
securities. For a description of these expense agreements, see "Description of
Guarantees--Expense Agreements".
We will own all of the common securities of each trust. The common
securities of each trust will rank equally with the preferred securities of the
trust and payments on the common and preferred securities will be made on a pro
rata basis, except upon the occurrence and continuance of certain events of
default under the applicable Declaration of Trust, as described in this
prospectus under "Description of the Preferred Securities--Priority Over Common
Securities". We will acquire common securities in an aggregate liquidation
amount equal to not less than 3% of the total capital of each trust.
Unless otherwise specified in the applicable prospectus supplement, each
trust has a term of approximately 55 years but may terminate earlier as provided
in the applicable Declaration of Trust. Each trust's business is conducted by
its trustees, who are appointed by us as holder of the trust's common
securities. Wilmington Trust Company is the property trustee ("Property
Trustee") and Delaware Trustee ("Delaware Trustee") for each trust. Each trust
also has two individual trustees (the "Administrative Trustees"), who are
employees, officers or affiliates of Owens Corning. The Property Trustee, the
Delaware Trustee and the Administrative Trustees are collectively referred to in
this prospectus as the "Issuer Trustees". Wilmington Trust Company, as Property
Trustee, will act as sole indenture trustee under each Declaration of Trust for
purposes of compliance with the TIA. Wilmington Trust Company will also act as
trustee under each guarantee and the Subordinated Indenture.
The holder of a trust's common securities, or, upon the occurrence and
continuation of an event of default with respect to the junior subordinated
deferrable interest debentures held by a trust, the holders of a majority of the
liquidation preference of preferred securities of the trust, will be entitled to
appoint, remove or replace the Property Trustee and/or the Delaware Trustee of
the relevant trust. However, only the holder of common securities of a trust can
appoint, remove or replace the Administrative Trustees of the relevant trust.
The duties and obligations of each Issuer Trustee are governed by the applicable
Declaration of Trust. We will pay all ongoing costs, expenses and liabilities of
each trust. The principal executive office of each trust is located at Owens
Corning World Headquarters, Toledo, Ohio 43659, and the telephone number is
(419) 248-8000.
6
<PAGE> 10
USE OF PROCEEDS
Except as may be otherwise described in a prospectus supplement, the net
proceeds from the sale of the securities under this prospectus will be added to
our general funds and will be used for working capital and other general
corporate purposes including, without limitation, capital expenditures,
investments in or loans to subsidiaries, repurchases or redemptions of our
outstanding debt securities or other reductions of our outstanding borrowings,
possible future business acquisitions, the satisfaction of other obligations or
for any other purposes as may be specified in the applicable prospectus
supplement.
PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may
sell in one or more offerings up to a total dollar amount of $50 million of
unsecured debt securities plus any combination of the following securities up to
a total dollar amount of $450 million (or the equivalent of such amounts if any
of the securities are denominated in a currency other than U.S. dollars): (1)
unsecured debt securities ("Debt Securities"), (2) preferred stock with no par
value ("Preferred Stock"), (3) common stock, $0.10 par value per share ("Common
Stock"), (4) warrants to purchase our securities, as designated by us at the
time of such offering ("Warrants"), (5) stock purchase contracts to purchase
Preferred Stock or Common Stock ("Stock Purchase Contracts"), (6) stock purchase
units, each representing ownership of a Stock Purchase Contract and Debt
Securities, preferred securities of a trust ("Preferred Securities") or debt
obligations of third parties, including U.S. Treasury securities, securing the
holder's obligation to purchase Preferred Stock or Common Stock under a Stock
Purchase Contract (the "Stock Purchase Units") and (7) junior subordinated
deferrable interest debentures (the "Junior Subordinated Debentures"). In
addition, each of the trusts may also separately offer, under this shelf
registration statement, their preferred securities, representing preferred
undivided beneficial interests in the assets of the respective trust, which
securities would be part of the $450 million aggregate amount of securities
registered under this shelf registration statement.
We refer to the Debt Securities, the Preferred Stock, the Common Stock, the
Warrants, the Stock Purchase Contracts, the Stock Purchase Units, the Junior
Subordinated Debentures and the preferred securities as the "Securities".
7
<PAGE> 11
PROSPECTUS SUPPLEMENT
This prospectus provides you with a general description of each of the
Securities. Each time we or a trust sells Securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add to, update or change
information contained in this prospectus and, accordingly, to the extent
inconsistent, such information shall be superseded by the information in the
prospectus supplement. You should read both this prospectus and any prospectus
supplement together with additional information described under the heading
"Where You Can Find Additional Information" on page 2 of this prospectus.
BOOK-ENTRY SECURITIES
LEGAL OWNERSHIP
"Street Name" and Other Indirect Holders
In general, we will not recognize investors who hold Securities in accounts
at banks or brokers as the legal holders of Securities. This is called holding
in "street name". Instead, we will recognize only the bank or broker or the
financial institution that the investor uses to hold its Securities and in whose
name the Securities are registered. These intermediary banks, brokers and other
financial institutions pass along distributions, dividends, principal, interest
and other payments on the Securities pursuant to either their customer
agreements or legal requirements. If you hold your Securities in "street name",
you should ask your institution:
- How does it handle Securities payments and notices?
- Does it impose fees or charges?
- How would it handle voting if ever required?
- Whether and how you can instruct it to send you Securities registered
in your own name so you can be a registered holder as described below?
- How would it pursue rights under the Securities if there were a default
or other event triggering the need for holders to act to protect their
interests?
8
<PAGE> 12
Registered Holders
We, and any third parties employed by us or acting on your behalf (such as
trustees, depositories and transfer agents), are obligated only to persons who
are registered as holders of Securities. As noted above, we do not have
obligations to you if you hold in "street name" or other indirect means, either
because you choose to hold Securities in that manner or because the Securities
are issued in the form of Global Securities as described below. For example,
once we make a payment to the registered holder, we have no further
responsibility for the payment even if that holder is legally required to pass
the payment to you as a "street name" customer but does not do so.
What is a Global Security?
A Global Security is a special type of Security held indirectly by
investors. If we issue Securities in the form of a Global Security, the ultimate
beneficial owners can only be indirect holders. We do this by requiring that the
Global Security be registered in the name of a financial institution we select
and by requiring that the Securities included in the Global Security not be
transferred to the name of any other direct holder unless the special
circumstances described below occur. The financial institution that acts as the
sole direct holder of the Global Security is called the "Depositary". Any person
wishing to own a Security issued in the form of a Global Security must do so
indirectly by virtue of an account with a broker, bank or other financial
institution that in turn has an account with the Depositary (a "Participant").
The prospectus supplement will indicate whether your series of Securities will
be issued only in the form of Global Securities.
Special Investor Considerations for Global Securities. As an indirect
holder, your rights relating to a Global Security will be governed by the
account rules of your financial institution and of the Depositary, as well as
general laws relating to securities transfers. We would not recognize you as a
registered holder of Securities and would deal only with the Depositary that
holds the Global Security.
You should be aware that if Securities are issued only in the form of Global
Securities:
- You cannot get Securities registered in your own name.
- You cannot receive physical certificates for your interest in the
Securities.
- You will be a "street name" holder and must look to your own bank or
broker for payments on the Securities and protection of your legal
rights relating to the Securities.
See "'Street Name' and Other Indirect Holders".
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<PAGE> 13
- You may not be able to sell interests in the Securities to some
insurance companies and other institutions that are required by law to
hold their Securities in the form of physical certificates.
- The Depositary's policies will govern payments, transfers, exchanges
and other matters relating to your interest in the Global Security.
Neither we nor anyone other than the Depositary have any responsibility
for any aspect of the Depositary's actions or for its records of
ownership interests in the Global Security. We also do not supervise
the Depositary in any way.
Special Situations when Global Security will be Terminated. In a few special
situations, the Global Security will terminate and interests in it will be
exchanged for physical certificates representing the Securities. After that
exchange, the choice of whether to hold Securities directly or in "street name"
will be up to you. You must consult your bank or broker to find out how to have
your interests in Securities transferred to your name, so that you will be the
registered holder. The rights of "street name" investors and registered holders
in the Securities have been previously described in the subsections entitled
"'Street Name' and Other Indirect Holders" and "Registered Holders".
The special situations for termination of a Global Security are:
- when the Depositary notifies us that it is unwilling, unable or no
longer qualified to continue as Depositary;
- when we elect to terminate the Global Security; or
- when an event of default on the Securities has occurred and has not
been cured.
The prospectus supplement may also list additional situations for terminating a
Global Security that would apply to the particular series of Securities covered
by the prospectus supplement. When a Global Security terminates, only the
depositary is responsible for selecting the institutions that will be the
initial registered holders.
DESCRIPTION OF DEBT SECURITIES
We will issue the Debt Securities in one or more distinct series. This
section summarizes terms of the Debt Securities that are common to all series.
Most of the financial terms and other specific terms of any series of Debt
Securities that we offer will be described in a prospectus
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<PAGE> 14
supplement to be attached to the front of this prospectus. Since the terms of
specific Debt Securities may differ from the general information we have
provided below, you should rely on information in the prospectus supplement
rather than different information below.
As required by Federal law for all bonds and notes of companies that are
publicly offered, the Debt Securities are governed by a document called an
indenture. An indenture is a contract between us and a financial institution
acting as trustee on your behalf. The trustee has two main roles. First, the
trustee can enforce your rights against us if we default on our obligations
under the Indenture. There are some limitations on the extent to which the
trustee acts on your behalf, described below under "Events of Default--Remedies
if an Event of Default Occurs". Second, the trustee performs certain
administrative duties for us.
Debt Securities will be issued under an indenture dated as of May 5, 1997,
as supplemented from time to time (the "Indenture"), between Owens Corning and
The Bank of New York, as trustee (the "Trustee"). The Indenture contains the
full legal text of the matters described in this section. The Indenture is
included as an exhibit to the registration statement that we have filed with the
SEC. See "Where You Can Find More Information" on page 2 for information on how
to obtain a copy of the Indenture. The Indenture is subject to and governed by
the TIA.
Because this section is a summary, it does not describe every aspect of the
Debt Securities. This summary is subject to and qualified in its entirety by
reference to all the provisions of the Indenture, including definitions of
certain terms used in the Indenture. For example, in this section we use
capitalized words to signify terms that have been specifically defined in the
Indenture. Some of the definitions are repeated in this prospectus, but for the
rest you will need to read the Indenture. We also include references in
parentheses to certain sections of the Indenture or TIA. Whenever we refer to
particular sections or defined terms of the Indenture in this prospectus or in
the prospectus supplement, such sections or defined terms are incorporated by
reference in this prospectus or in the prospectus supplement.
TERMS OF THE DEBT SECURITIES
The Debt Securities will be unsecured and unsubordinated obligations of
Owens Corning and will rank equally with all of our other unsecured and
unsubordinated indebtedness.
The Indenture provides that any Debt Securities proposed to be sold pursuant
to this prospectus and any prospectus supplement ("Offered Debt Securities") and
any Debt Securities issuable upon the exercise of Warrants or upon conversion or
exchange of other Securities we may offer ("Underlying Debt Securities"), as
well as other unsecured Debt Securities of Owens Corning, may be issued under
the Indenture in one or more series.
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With respect to the Offered Debt Securities and any Underlying Debt
Securities, you should read the prospectus supplement for the following terms:
(1) The title of the Debt Securities.
(2) Any limit on the total principal amount of Debt Securities of the
series.
(3) The Person or entity to whom any interest on the Debt Securities
will be payable if other than the person or entity in whose name the Debt
Security is registered.
(4) The date or dates (or how such date or dates will be determined)
on which the principal and any premium on the Debt Securities will be
payable.
(5) The rate or rates at which the Debt Securities will bear interest,
if any, or how such rate or rates will be determined, the interest payment
dates and any record dates for the payment of interest.
(6) If not the principal amount of the Debt Securities, the portion of
the principal amount payable upon acceleration of the maturity of the Debt
Securities or how this portion will be determined.
(7) The place or places where the principal of and any premium and
interest on the Debt Securities will be payable.
(8) Any optional redemption provisions.
(9) Any sinking fund or other provisions that would obligate us to
repurchase or otherwise redeem the Debt Securities.
(10) The form of the Debt Securities, including whether the Debt
Securities are to be issuable as permanent or temporary Global Securities.
(11) If other than denominations of $1,000, the denominations in which
the Debt Securities will be issued.
(12) If other than U.S. dollars, the currency, currencies or currency
units in which payment of the principal of and any premium and interest on
the Debt Securities will be payable.
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(13) Whether the amount of payments of principal of or any premium or
interest on the Debt Securities will be determined with reference to an
index, formula or other method and how such amounts will be determined.
(14) The applicability of the provisions of Article Thirteen of the
Indenture described under "Defeasance and Covenant Defeasance".
(15) Any other terms of the Debt Securities.
The Indenture will not limit the amount of Debt Securities that may be
issued as authorized from time to time by Owens Corning. Securities issued under
the Indenture, when a single Trustee is acting for all debt securities issued
under the Indenture, are referred to as the "Indenture Securities". The
Indenture also provides that there may be more than one Trustee under the
Indenture, each with respect to one or more different series of Indenture
Securities. See "--Resignation of Trustee". At a time when two or more Trustees
are acting under the Indenture, each with respect to only certain series, the
term "Indenture Securities" means the one or more series of Debt Securities with
respect to which each respective Trustee is acting. In the event that there is
more than one Trustee under the Indenture, the powers and trust obligations of
each Trustee described in this prospectus will extend only to the one or more
series of Indenture Securities for which it is Trustee. If two or more Trustees
are acting under the Indenture, then the Indenture Securities for which each
Trustee is acting would be treated as if issued under separate indentures.
The Indenture does not contain any provisions that give you protection in
the event we issue a large amount of debt or we are acquired by another entity.
You should carefully review the prospectus supplement for information with
respect to any deletions from, modifications of or additions to the events of
default or covenants of Owens Corning that are described below, including any
addition of a covenant or other provision providing event risk or similar
protection.
We have the ability to issue Indenture Securities with terms different from
those of Indenture Securities previously issued and, without the consent of the
holders of the Indenture Securities, to reopen a previous issue of a series of
Indenture Securities and issue additional Indenture Securities of that series,
unless the reopening was restricted when the series was created.
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CONVERSION AND EXCHANGE
If any Debt Securities are convertible into or exchangeable for other
securities, the prospectus supplement will explain terms and conditions of such
conversion or exchange, including the conversion price or exchange ratio (or the
calculation method), the conversion or exchange period (or how such period will
be determined), if conversion or exchange will be mandatory or at your option or
our option, provisions for adjustment of the conversion price or the exchange
ratio and provisions affecting conversion or exchange in the event of the
redemption of the Debt Securities. These terms may also include provisions under
which the number or amount of other securities to be received by the holders of
the Debt Securities upon conversion or exchange would be calculated according to
the market price of such other securities as of a time stated in the prospectus
supplement.
ADDITIONAL MECHANICS
Form, Exchange and Transfer
Any Debt Securities will be issuable:
- as registered certificated securities without coupons,
- unless otherwise specified in a prospectus supplement in denominations
that are multiples of $1,000, and
- in global form. See "Book-Entry Securities".
You may have your registered Debt Securities separated into more registered
Debt Securities of smaller denominations or combined into fewer registered Debt
Securities of larger denominations, as long as the total principal amount is not
changed.
You may transfer registered Debt Securities of a series and you may exchange
registered Debt Securities of a series at the office of the Trustee. The Trustee
will act as Owens Corning's agent for registering certificated Debt Securities
in the names of holders and transferring certificated Debt Securities. For this
purpose, the Trustee will keep a register in which we will provide for the
registration and transfer of Debt Securities. We may change this appointment to
another entity or perform the function ourselves. The entity performing the role
of maintaining the list of registered holders is called the "Security
Registrar". The Security Registrar also will perform transfers.
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You will not be required to pay a service charge to transfer or exchange
Debt Securities, but you may be required to pay for any tax or other
governmental charge associated with the exchange or transfer. The transfer or
exchange will only be made if the Security Registrar is satisfied with your
proof of ownership.
If we have designated additional transfer agents, they will be named in the
accompanying prospectus supplement. We may cancel the designation of any
particular transfer agent or approve a change in the office through which any
transfer agent acts.
If the Debt Securities are redeemable and we redeem less than all of the
Debt Securities of a particular series, we may block the transfer or exchange of
Debt Securities during the period beginning 15 days before the day we mail the
notice of redemption and ending on the day of that mailing. We may also refuse
to register transfers or exchanges of Debt Securities selected for redemption,
except that we will continue to permit transfers and exchanges of the unredeemed
portion of any Debt Security being partially redeemed.
If the Offered Debt Securities are redeemable, the procedures for redemption
will be described in the accompanying prospectus supplement.
PAYMENT AND PAYING AGENTS
We will pay interest to you, if you are listed in the Trustee's records as
the owner of your Debt Security at the close of business on a particular day in
advance of each due date for interest on your Debt Security even if you no
longer own the Debt Security, on the interest due date. That particular day,
usually about two weeks in advance of the interest due date, is called the
"Regular Record Date" and is defined in the prospectus supplement, while persons
who are listed in the Trustee's records as the owners of Debt Securities at the
close of business on a particular day are referred to as "Holders". Persons
buying and selling Debt Securities must agree among themselves the appropriate
purchase price by taking into account that we will pay all the interest for an
interest period to the Holders on the Record Date. The most common manner is to
adjust the sales price of the Debt Securities to prorate interest fairly between
buyer and seller based on their respective ownership periods within the
particular interest period. This prorated interest amount is called "accrued
interest".
We will deposit interest, principal and any other money due on the Debt
Securities with the paying agent specified in the prospectus supplement. The
paying agent will pay the principal of or any premium or interest on the Debt
Securities on our behalf. If the paying agent is not the Trustee, we will cause
the paying agent to agree in writing that it will (1) comply with applicable
provisions of the Trust Indenture Act, and (2) if the Trustee requests in
writing, upon any
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continuing default in any payment on the Debt Securities of your series, pay to
the Trustee all sums held by it for payment of that series.
EVENTS OF DEFAULT
You will have special rights if an Event of Default occurs in respect of the
Debt Securities of your series and is not cured, as described later in this
subsection.
What Is An Event of Default?
The term "Event of Default" in respect of the Debt Securities of any series
means any one of the following events:
- We do not pay the principal of or any premium on a Debt Security of the
series on its due date.
- We do not pay interest on a Debt Security of the series within 30 days
of its due date.
- We do not deposit any sinking fund payment in respect of Debt
Securities of the series on its due date.
- We remain in breach of a covenant or warranty in respect of Debt
Securities of the series for 60 days after we receive a written notice
of default stating we are in breach. The notice must be sent by either
the Trustee or Holders of 25% of the principal amount of Debt
Securities of the series.
- An event of default occurs with respect to any other indebtedness of
Owens Corning or any of its Restricted Subsidiaries resulting in more
than $25,000,000 of such indebtedness being accelerated and declared
due and payable prior to the date it would otherwise be due and payable
and such event of default continues for 30 days after we receive a
written notice of default. The notice must be sent by either the
Trustee or Holders of 25% of the principal amount of outstanding Debt
Securities.
- We file for bankruptcy or certain other events of bankruptcy,
insolvency or reorganization occur.
- Any other Event of Default described in the prospectus supplement
occurs in respect of Debt Securities of the series.
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An Event of Default for a particular series of Debt Securities does not
necessarily constitute an Event of Default for any other series of Debt
Securities issued under the Indenture.
Remedies If an Event of Default Occurs.
If an Event of Default has occurred and has not been cured, the Trustee or
the Holders of 25% in principal amount of the Debt Securities of the affected
series may declare the entire principal amount of all the Debt Securities of
that series to be due and immediately payable. This is called a declaration of
acceleration of maturity. Under certain circumstances, a declaration of
acceleration of maturity may be canceled by the Holders of at least a majority
in principal amount of the Debt Securities of the affected series.
Except in cases of default, where the Trustee has some special duties, the
Trustee is not required to take any action under the Indenture at the request of
any Holders unless the Holders offer the Trustee reasonable protection from
expenses and liability (called an "indemnity"). If reasonable indemnity is
offered, the Holders of a majority in principal amount of the outstanding Debt
Securities of the relevant series may direct the time, method and place of
conducting any lawsuit or other formal legal action seeking any remedy available
to the Trustee. The Trustee may refuse to follow those directions in certain
circumstances. No delay or omission in exercising any right or remedy will be
treated as a waiver of such right, remedy or Event of Default.
Before you are allowed to bypass the Trustee and bring your own lawsuit or
other formal legal action or take other steps to enforce your rights or protect
your interests relating to the Debt Securities, the following must occur:
- You must give the Trustee written notice that an Event of Default has
occurred and remains uncured.
- The Holders of 25% in principal amount of all outstanding Debt
Securities of the relevant series must make a written request that the
Trustee take action because of the default and must offer reasonable
indemnity to the Trustee against the cost and other liabilities of
taking that action.
- The Trustee must not have instituted suit for 60 days after receipt of
the above notice and offer of indemnity.
- The Holders of a majority in principal amount of the Debt Securities
must not have given the Trustee a direction inconsistent with the above
notice during the 60-day period.
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However, notwithstanding the foregoing limitations, you are entitled to
bring a lawsuit for the payment of money due on your Debt Securities at any time
on or after the due date.
Holders of a majority in principal amount of the Debt Securities of the
affected series may waive any past defaults, except a default (1) in payment of
principal or any premium or interest or (2) in respect of a covenant that cannot
be modified or amended without the consent of each Holder.
Each year, we will furnish to the Trustee a written statement of certain of
our officers certifying that to their knowledge we are in compliance with the
terms of the Indenture and the Debt Securities, or else specifying any default.
MERGER OR CONSOLIDATION
Under the terms of the Indenture, we are generally permitted to consolidate
or merge with another firm. We are also permitted to sell all or substantially
all of our assets to another firm. However, we may not take any of these actions
unless all the following conditions are met:
- We are the surviving company or where we merge out of existence or sell
our assets, the other firm must be a U.S. company and must agree to be
legally responsible for the Debt Securities under a supplemental
indenture.
- The merger or sale of assets must not cause a default on the Debt
Securities and we must not already be in default (unless the merger or
sale would cure the default). For purposes of this no-default test, a
default would include an Event of Default that has occurred and not
been cured, as described under "--Events of Default--What is an Event
of Default?" A default for this purpose would also include any event
that would be an Event of Default if the requirements for giving us
default notice or our default having to exist for a specific period of
time were disregarded.
- No merger or sale of assets may be made if it would cause any U.S.
property or assets of Owens Corning or of the surviving entity, or the
stock or Debt of any subsidiary, to become subject to any mortgage,
lien or other encumbrance. This condition does not apply if such
mortgage, lien or other encumbrance could be created pursuant to
Section 1008 of the Indenture (see "--Restrictive Covenants Applicable
to Owens Corning--Limitation on Liens" below) without equally and
ratably securing the Indenture Securities or if such Indenture
Securities are secured equally and ratably with or prior to the debt
secured by such mortgage, lien or other encumbrance.
- We deliver certain certificates and documents to the Trustee if
required by the Indenture.
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- We satisfy any other requirements specified in the prospectus
supplement.
MODIFICATION OR WAIVER
Changes Not Requiring Consent.
There are changes that can be made to your Debt Securities without your
specific approval. These changes are:
- to evidence the succession of another company to Owens Corning's
obligations under the Debt Securities and Indenture;
- to add covenants under the Indenture for the benefit of the Holders of
any series of Debt Securities or to surrender a power given to Owens
Corning by the Indenture;
- to add any additional Events of Default;
- to add or change any provisions necessary to facilitate the issuance of
Debt Securities in bearer form or as book-entry securities;
- to add or change any provisions affecting only Debt Securities not yet
issued;
- to secure the Debt Securities;
- to establish the form or terms of any Debt Securities of any series;
- to evidence or provide for successor Trustees or to add or change any
provisions necessary to provide for the appointment of separate
Trustees for specific series of Debt Securities;
- to permit payment in respect of Debt Securities in bearer form to the
extent permitted by law; or
- to cure any ambiguity or to correct or supplement any mistaken or
inconsistent provisions or any other provisions with respect to which
questions have arisen under the Indenture; provided that any such
action (other than with respect to a mistaken provision) does not
adversely affect the interests of the Holders of any series of Debt
Securities in any material respect.
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Changes Requiring a Majority Vote.
The Holders of at least a majority in aggregate principal amount of
outstanding Debt Securities of any series may, on behalf of all Holders of such
series:
- waive compliance by Owens Corning with certain restrictive provisions
of the Indenture or
- waive any past default under the Indenture, except a default in the
payment of principal, premium or interest or in respect of a covenant
or provision of the Indenture that cannot be modified or amended
without the consent of the Holders of each affected outstanding Debt
Security of such series.
Unless otherwise provided below, with the consent of the Holders of
outstanding Debt Securities owning a majority of the principal amount of the
particular series affected, a supplemental indenture may be entered into
changing or eliminating any provisions in the Indenture and the outstanding Debt
Securities.
Changes Requiring Vote of All Holders
However, all Holders of each Debt Security affected must consent to the
following changes:
- any change in the stated maturity of the principal or any installment
of principal or interest on any Debt Security;
- a reduction in the principal amount of, or premium, if any, or interest
on any Debt Security (including the amount payable for an original
issue discount Debt Security upon acceleration of maturity);
- a change in the place or currency of payment of principal, or premium,
if any, or interest on any Debt Security;
- an impairment of the right of any Holder to bring an action for
enforcement of any payment on a Debt Security on or after the stated
maturity (or on or after a redemption date); or
- a reduction in the percentage in principal amount of outstanding Debt
Securities of any series, the consent of whose Holders is required to
modify or amend the Indenture, to waive compliance with certain
provisions of the Indenture or to waive an Event of Default.
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Further Details Concerning Voting
When taking a vote, we will use the following rules to decide how much
principal amount to attribute to a Debt Security:
- For original issue discount securities, we will use the principal
amount that would be due and payable on the voting date if the maturity
of the Debt Securities were accelerated to that date because of a
default.
- For Debt Securities whose principal amount is not known (for example,
because it is based on an index), we will use a special rule for that
Debt Security described in the prospectus supplement.
- For Debt Securities denominated in one or more foreign currencies or
currency units, we will use the U.S. dollar equivalent.
Debt Securities will not be considered outstanding, and therefore not
eligible to vote, if we have deposited or set aside in trust money for their
payment or redemption. Debt Securities will also not be eligible to vote if they
have been fully defeased as described later under "--Defeasance--Full
Defeasance".
We will generally be entitled to set any day as a record date for the
purpose of determining the Holders of outstanding Debt Securities that are
entitled to vote or take other action under the Indenture. If we set a record
date for a vote or other action to be taken by Holders of a particular series,
that vote or action may be taken only by persons who are Holders of outstanding
Debt Securities of that series on the record date.
DEFEASANCE
The following discussion of full defeasance and covenant defeasance will be
applicable to your series of Debt Securities only if we choose to have them
apply to that series. In that event, we will specify the choice in the
prospectus supplement.
Full Defeasance.
If there is a change in federal tax law, as described below, we can legally
release ourselves from all payment and other obligations on the Debt Securities
(called "full defeasance") if we put in place the following other arrangements
for you to be repaid:
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- We must deposit in trust for your benefit and the benefit of all other
direct Holders of the Debt Securities a combination of money and U.S.
government or U.S. government agency notes or bonds that will generate
enough cash to make interest, principal and any other payments on the
Debt Securities on their various due dates.
- We must deliver to the Trustee a legal opinion confirming that there
has been a change in current federal tax law or an IRS ruling that lets
us make the above deposit without causing you to be taxed on the Debt
Securities any differently than if we did not make the above deposit.
Under current federal tax law, the deposit and our legal release from
the Debt Securities would be treated as though we paid you your share
of the cash and notes or bonds at the time such cash and notes or bonds
are deposited in trust in exchange for your Debt Securities and you
would recognize gain or loss on the Debt Securities at the time of the
deposit.
If we ever did accomplish full defeasance, as described above, you would have to
rely solely on the trust deposit for repayment of the Debt Securities. You could
not look to us for repayment in the unlikely event of any shortfall. Conversely,
the trust deposit would most likely be protected from claims of our lenders and
other creditors if we ever become bankrupt or insolvent.
Covenant Defeasance
Under current federal tax law, we can make the same type of deposit
described above and be released from some of the restrictive covenants in the
Indenture. This is called "covenant defeasance". In that event, you would lose
the protection of those restrictive covenants but would gain the protection of
having money and U.S. government debt securities set aside in trust to repay the
Debt Securities. In order to achieve covenant defeasance, we must do the
following:
- We must deposit in trust for your benefit and the benefit of all other
direct Holders of the Debt Securities a combination of money and U.S.
government or U.S. government agency notes or bonds that will generate
enough cash to make interest, principal and any other payments on the
Debt Securities on their various due dates.
- We must deliver to the Trustee a legal opinion of our counsel
confirming that under current federal income tax law we may make the
above deposit without causing you to be taxed on the Debt Securities
any differently than if we did not make the deposit and just repaid the
Debt Securities ourselves.
If we accomplish covenant defeasance, you can still look to us for repayment
of the Debt Securities if there were a shortfall in the trust deposit or the
Trustee is prevented from making payment. In fact, if one of the remaining
Events of Default occurred (such as our bankruptcy)
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and the Debt Securities become immediately due and payable, there may be such a
shortfall. Depending on the event causing the default, you may not be able to
obtain payment of the shortfall.
BOOK-ENTRY DEBT SECURITIES
The Debt Securities will be issued in the form of one or more Global
Securities. See "Book-Entry Securities" for additional information about your
limited rights as the beneficial owner of a Global Security.
RESIGNATION OF TRUSTEE
Each Trustee may resign or be removed with respect to one or more series of
Indenture Securities, and a successor Trustee may be appointed to act with
respect to such series. In the event that two or more persons are acting as
Trustee with respect to different series of Indenture Securities under the
Indenture, each such Trustee will be a Trustee of a trust separate and apart
from the trust administered by any other such Trustee, and any action described
herein to be taken by the "Trustee" may then be taken by each such Trustee with
respect to, and only with respect to, the one or more series of Indenture
Securities for which it is Trustee.
RESTRICTIVE COVENANTS APPLICABLE TO OWENS CORNING
Limitation on Liens
We will not, and we will not permit any Subsidiary (defined below) to,
incur, issue, assume or guarantee any (1) notes, (2) bonds, (3) debentures or
(4) other similar evidences of indebtedness for money borrowed ((1)-(4) are
collectively referred to as "Debt"), secured by pledge of, or mortgage or other
lien (each a "Mortgage" or "Mortgages") on, (a) any Principal Property (as
defined below) owned by us or any Restricted Subsidiary (defined below), or (b)
any shares of stock or Debt of any Restricted Subsidiary. However we may incur,
issue, assume or guarantee new Debt secured by a Mortgage if we effectively
provide that our outstanding Debt Securities (together with, if we so determine,
any of our other Debt or a subsidiary's Debt then existing or thereafter created
which is not subordinate to the Debt Securities) shall be secured equally and
ratably with (or prior to) the secured Debt, so long as the secured Debt shall
be so secured.
If, after giving effect to any new secured Debt, the aggregate amount of all
of our secured Debt, plus all of the Attributable Debt (as defined below) of
Owens Corning and its Restricted Subsidiaries in respect of sale and leaseback
transactions (defined in the next covenant), and otherwise prohibited by the
Indenture, would not exceed 10% of our Consolidated Net Tangible
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Assets (defined below), then the restrictions described above will not be
applicable to this new secured Debt.
In addition, this covenant will not apply to, and there shall be excluded
from secured Debt in any computation under this covenant, 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 Owens Corning or any Restricted Subsidiary;
(3) Mortgages in favor of the United States of America, or any of its
agencies, departments or other instrumentalities, 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:
(a) existing at the time of their acquisition (including
acquisition through merger or consolidation), or
(b) to secure the payment of all or any part of their purchase
price or construction cost, or
(c) to secure any Debt incurred prior to, at the time of, or
within 120 days after, the acquisition of such property or shares or
Debt or the completion of any such construction for the purpose of
financing all or any part of the purchase price or construction cost
thereof; and
(5) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Mortgage referred
to in clauses (1) to (4) above, inclusive; provided that (a) 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 (b) the Debt
secured by such Mortgage at such time is not increased.
"Attributable Debt" means the total net amount of rent required to be paid
by a person under a lease during the remaining term of the lease, discounted
from the respective due dates of the lease payments to the calculation date at a
rate of 12% per year compounded semi-annually. The net amount of rent payable by
this person under the lease will exclude amounts required to be paid for
maintenance and repairs, insurance, taxes, assessments, water rates and similar
charges.
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In the case of any lease which is terminable by the lessee upon the payment of a
penalty, the net rent amount will include the amount of the penalty, but exclude
rental payments owed subsequent to the first date upon which the lease may be
terminated.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
after deducting:
(a) all current liabilities (excluding Funded Debt), and
(b) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expenses and other like intangibles,
as such amounts are set forth in our most recent consolidated balance sheet and
computed in accordance with generally accepted accounting principles.
"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 of
determination of this amount, or having a maturity of less than 12 months, but
by its terms being renewable or extendable beyond 12 months from this
calculation date at the option of the borrower.
"Principal Property" means any building, structure or other facility,
together with the land on which it is erected and the fixtures comprising a part
of such property, used primarily for manufacturing, processing or warehousing
and located in the United States that has a gross book value (without deduction
of any depreciation reserves) on the date on which such determination is made in
excess of 1% of Consolidated Net Tangible Assets. However, for purposes of this
calculation, portions of the building or facility that are (1) pollution control
facilities financed by a state or local government or (2) deemed by our board of
directors to be immaterial to the business of Owens Corning and its Subsidiaries
as an entirety, will not be included.
A "Restricted Subsidiary" is any subsidiary of Owens Corning that owns any
Principal Property.
A "Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by Owens Corning or by one or
more Subsidiaries. For purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
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Limitation on Sales and Leasebacks
A sale and leaseback transaction, for purposes of this prospectus, is an
arrangement with any bank, insurance company or other lender or investor, or to
which any such lender or investor is a party, through which Owens Corning or any
Restricted Subsidiary leases any Principal Property owned or previously owned by
Owens Corning or such Restricted Subsidiary which we have sold or plan to sell
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 the Principal Property.
The Principal Property that is the subject of the sale and leaseback transaction
must be sold more than 120 days after we acquired it or after the completion of
construction and commencement of full operation of the Principal Property. In
addition, the term of the lease must be in excess of three years, including
renewals of the lease. Any similar arrangement with Owens Corning or a
Restricted Subsidiary is not considered a sale and leaseback transaction.
We will not, and we will not permit any Restricted Subsidiary to, enter into
any sale and leaseback transaction unless either:
(1) Owens Corning or such Restricted Subsidiary could create Debt
secured by a Mortgage pursuant to the Limitations on Liens covenant,
described above, 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 our outstanding Debt
Securities, or
(2) Owens Corning, within 120 days after Owens Corning or a Restricted
Subsidiary effects the sale or transfer of the Principal Property, applies
an amount equal to the greater of:
(a) the net proceeds of the sale of the Principal Property sold and
leased back pursuant to such arrangement or
(b) 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 officers or directors of Owens
Corning: the Chairman of the Board, its President, any Vice President,
its Treasurer and its Controller)
to the retirement of Funded Debt of Owens Corning. However, the amount to be
applied to the retirement of Owens Corning's Funded Debt shall be reduced
by:
(x) the principal amount of any Debt Securities delivered
within 120 days after such sale to the Trustee for retirement and
cancellation and
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(y) the principal amount of Funded Debt, other than Debt
Securities, voluntarily retired by Owens Corning 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.
CERTAIN CONSIDERATIONS RELATING TO FOREIGN CURRENCIES
Debt Securities denominated or payable in foreign currencies may entail
significant risks. These risks include, without limitation, the possibility of
significant fluctuations in the foreign currency markets, the imposition or
modification of foreign exchange controls and potential illiquidity in the
secondary market. These risks will vary depending upon the currency or
currencies involved and will be more fully described in the applicable
prospectus supplement.
DESCRIPTION OF CAPITAL STOCK
Our Certificate of Incorporation currently authorizes us to issue two
classes of stock: (1) 100 million shares of Common Stock, par value $0.10 per
share, and (2) 8 million shares of Preferred Stock with no par value. At
February 23, 1999, there were 54,351,085 shares of Common Stock outstanding.
This section summarizes the terms of our Common Stock and Preferred Stock.
The terms of these securities are subject to, and qualified by reference to the
General Corporation Law of Delaware, our Certificate of Incorporation (including
the Certificate of Designation of our Series A Participating Preferred Stock and
the Certificate of Increase of Designation of Series A Participating Preferred
Stock) and the 1996 Rights Agreement. Each of these documents, except for the
General Corporation Law of Delaware, is included as an exhibit to the
registration statement of which this prospectus forms a part.
COMMON STOCK
Each outstanding share of Common Stock is entitled to one vote. The Common
Stock does not have cumulative voting rights for the election of directors,
which means that shareholders receive only one vote per share irrespective of
the number of directors to be elected. Therefore, if a shareholder owns 100
shares, and two directors are to be elected, the shareholder can vote a maximum
of 100 shares for any single candidate. Cumulative voting would allow a
shareholder to cast 200 votes for one candidate. The absence of cumulative
voting allows holders of over 50% of our Common Stock to elect 100% of our
directors.
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Subject to the limitations contained in our debt instruments and after we
provide for the payment of dividends on any series of outstanding Preferred
Stock, holders of Common Stock are entitled to receive any dividends declared by
our board of directors.
The Common Stock has no conversion rights and is not redeemable. No holder
of Common Stock has any preemptive right to subscribe for any stock or other
securities of Owens Corning that may be issued.
In the event of the dissolution, liquidation or winding up of Owens Corning,
or upon any distribution of our assets, holders of Common Stock will be entitled
to receive a pro rata portion of all of the assets available for distribution to
stockholders, subject to any preferential right which may be accorded to any
series of Preferred Stock which might be issued.
The Common Stock is listed on the New York Stock Exchange under the trading
symbol "OWC". The outstanding shares of Common Stock are validly issued, fully
paid and non-assessable.
PREFERRED STOCK
The specific terms of any Preferred Stock proposed to be sold pursuant to
this prospectus and any prospectus supplement will be described in the
prospectus supplement. If so indicated in the prospectus supplement, the terms
of the offered Preferred Stock may differ from the terms set forth below.
Terms of Preferred Stock
Unless otherwise specified in the prospectus supplement relating to the
offered Preferred Stock, each series of Preferred Stock will rank equally as to
dividends and distribution of assets upon liquidation and in all other respects
with all other Preferred Stock.
You should read the prospectus supplement relating to the Preferred Stock
offered thereby for specific terms, including:
(1) The title and stated value of the Preferred Stock.
(2) The number of shares of the Preferred Stock offered, the
liquidation preference per share and the offering price of the Preferred
Stock.
(3) The dividend rate(s), period(s) and/or payment date(s) or method(s)
of calculating dividends applicable to the Preferred Stock.
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(4) The date from which dividends on the Preferred Stock will
accumulate, if applicable.
(5) The liquidation rights of the Preferred Stock.
(6) The procedures for any auction and remarketing, if any, of the
Preferred Stock.
(7) The sinking fund provisions, if any, for the Preferred Stock.
(8) The redemption provisions, if applicable, of the Preferred Stock.
(9) Whether the Preferred Stock will be convertible into or
exchangeable for other securities and, if so, the terms and conditions of
conversion or exchange, including the conversion price or exchange ratio and
the conversion or exchange period (or the method of determining the same).
(10) Whether the Preferred Stock will have voting rights and the terms
of the Preferred Stock, if any.
(11) Whether the Preferred Stock will be listed on any securities
exchange.
(12) Whether the Preferred Stock will be issued with any other
securities.
(13) Any other specific terms, preferences or rights of, or limitations
or restrictions on, the Preferred Stock.
Subject to our Certificate of Incorporation and to any limitations contained
in outstanding Preferred Stock, we may issue additional series of Preferred
Stock, at any time or from time to time, with such powers, preferences and
relative, participating, optional or other special rights and qualifications,
limitations or restrictions, as our board of directors or any of its duly
authorized committees may determine, all without further action of the
stockholders, including holders of any of our then outstanding Preferred Stock.
We may also include provisions in any series of Preferred Stock, such as
extraordinary voting, dividend, redemption or conversion rights, which could
discourage an unsolicited tender offer or takeover proposal.
If applicable, the prospectus supplement will also set forth information
concerning any other Securities offered thereby and a discussion of the material
federal income tax considerations relevant thereto.
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Series A Preferred Stock
Out of the authorized Preferred Stock, we have designated 750,000 shares of
Series A Participating Preferred Stock ("Series A Preferred Stock"), the terms
of which are summarized below. Each outstanding share of Common Stock includes a
right, which expires December 30, 2006, to purchase one one-hundredth of a share
of Series A Preferred Stock, which Rights are listed on the New York Stock
Exchange and the terms of which are summarized below under "--1996 Preferred
Share Purchase Rights".
DIVIDENDS
Holders of shares of Series A Preferred Stock are entitled to received
dividends when, as and if declared in cash on January 1, April 1, July 1 and
October 1 of each year. The annual rate of the dividends is (1) $10.00 per share
or (2) 100 times the aggregate per share amount of dividends or other
distributions on the Common Stock (excluding dividends payable in Common Stock)
since the last dividend payment date for the Series A Preferred Stock. Accrued
but unpaid dividends accumulate but do not accrue interest.
With respect to dividends and distributions, the Series A Preferred Stock
ranks:
- senior to the Common Stock; and
- junior to any series of Preferred Stock unless our Restated Certificate
of Incorporation or a certificate of designation with respect to a
subsequent series of our Preferred Stock expressly provides that it
ranks senior to the Series A Preferred Stock for dividends and the
distribution of assets on liquidation, dissolution or winding-up.
If dividends or distributions payable on the Series A Preferred Stock are in
arrears, we (1) may not pay dividends or distributions on the Common Stock or
any other capital stock that ranks junior to the Series A Preferred Stock and
(2) may not declare or pay dividends or other distributions on any stock that
ranks equally with the Series A Preferred Stock except for dividends shared
ratably among the holders of the Series A Preferred Stock and all such equally
ranking stock.
LIQUIDATION RIGHTS
If we liquidate, dissolve or wind-up, holders of Series A Preferred Stock
will receive the higher of (1) $100.00 per share, plus accrued and unpaid
dividends to the payment date, or (2) 100 times the aggregate per share amount
to be distributed to holders of shares of Common Stock, before any payment is
made to the holders of Common Stock (or any other stock that
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ranks junior to the Series A Preferred Stock). If the liquidation amount payable
to holders of Series A Preferred Stock and any other stock that ranks equally
with the Series A Preferred Stock is not paid in full, these holders will share
in any distribution pro rata based on the liquidation value per share.
CONSOLIDATION AND MERGER RIGHTS
If we consolidate, merge or combine with another entity or enter into any
other transaction in which our Common Stock is exchanged for other stock or
securities, cash and/or any other property, each share of Series A Preferred
Stock will simultaneously be exchanged for an amount equal to 100 times the
aggregate amount of stock or securities, cash and/or other property for which
each share of Common Stock is exchanged.
LIMITATION ON SHARE REPURCHASE
If dividends or distributions payable on the Series A Preferred Stock are in
arrears, the Company may not redeem, purchase, or otherwise acquire for
consideration (1) any stock of the Company that ranks equally with the Series A
Preferred Stock, except in exchange for shares of any stock of the Company
ranking junior to the Series A Preferred Stock or (2) any shares of Series A
Preferred Stock or any stock of the Company that ranks equally with the Series A
Preferred Stock, except through a purchase offer made in writing or by
publication to all holders of such shares on terms that our board of directors
determines will result in fair and equitable treatment among the respective
series or classes of shares.
VOTING RIGHTS
Each share of Series A Preferred Stock entitles the holder to 100 votes on
all matters submitted to a vote of our stockholders. Holders of Series A
Preferred Stock, Common Stock and any other capital stock of Owens Corning will
vote together as one class.
If, at the time of our annual stockholders' meeting for the election of
directors, we are in default on at least six quarterly dividend payments on the
Series A Preferred Stock, the number of directors on our board will be increased
by two and the holders of Series A Preferred Stock, voting separately as a
class, will be entitled to elect those two additional directors. This right will
continue at each subsequent annual meeting until all dividends in arrears have
been paid or declared and set apart for payment. Upon termination of these
voting rights, the terms of the two additional directors will terminate
immediately and the number of directors on our board will be reduced by two.
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OTHER FEATURES
The shares of Series A Preferred Stock are not redeemable and may be issued
in fractions of a share (in one one-hundredth of a share and multiples of one
one-hundredth).
1996 PREFERRED SHARE PURCHASE RIGHTS
Under a Rights Agreement, dated as of December 12, 1996, between Owens
Corning and The Chase Manhattan Bank, as rights agent, each outstanding share of
our Common Stock is coupled with a right to purchase one one-hundredth of a
share of Series A Preferred Stock for $190.
The rights detach from the Common Stock and become exercisable ten business
days after a person or group acquires, or announces a tender offer for, 15% or
more of our outstanding Common Stock. We can redeem the rights for one cent per
right at any time prior to public announcement or notice to us of such an
acquisition or tender offer. After the announcement of the acquisition or tender
offer, but before the person or group acquires 50% or more of the outstanding
Common Stock, our board of directors may exchange one share of Common Stock for
each outstanding right, except for rights held by the acquiring person or group.
If we are subsequently acquired in a merger or other business combination, the
right will entitle the holder to receive, upon exercise, that number of shares
of the acquiror's common stock having a market value of two times the exercise
price of the right. If we are the surviving corporation and our Common Stock is
changed or exchanged, the right will entitle the holder, upon exercise, to
receive that number of shares of Common Stock having a market value of two times
the exercise price of the right.
One right will attach to each newly issued share of Common Stock until the
rights detach from the Common Stock or until the rights are terminated or
redeemed. The rights will expire on December 30, 2006.
ANTI-TAKEOVER PROVISIONS OF DELAWARE LAW AND CERTIFICATE OF INCORPORATION
We are subject to the provisions of Section 203 of the General Corporation
Law of Delaware. Section 203 prohibits a publicly held Delaware corporation from
engaging in a "business combination" with an "interested stockholder" for three
years after the date of the transaction in which the person becomes an
interested stockholder, unless the combination is approved by the corporation's
board and shareholders in a prescribed manner. An "interested stockholder" is a
person who, together with affiliates and associates, owns 15% or more of the
corporation's voting stock.
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In addition to Section 203 of the General Corporation Law of Delaware and
the Preferred Share Purchase Rights, our charter contains several provisions
that may discourage certain transactions involving an actual or threatened
change of control of Owens Corning. For example, our Certificate of
Incorporation requires certain business combinations involving Owens Corning and
a holder of 10% or more of its voting securities to be approved by at least
662/3% of all shares having voting rights.
The provisions of the Delaware General Corporation Law and our Certificate
of Incorporation described above and the Rights Agreement effectively encourage
persons seeking control of Owens Corning to consult first with our board of
directors to negotiate the terms of any proposed business combination or offer.
They may, however, also have the effect of discouraging a third party from
attempting to acquire control of Owens Corning. Since these provisions are
designed to discourage accumulations of large blocks of stock by third parties
who wish to gain control of Owens Corning, they may also reduce the temporary
market price fluctuations caused by such accumulations.
Transfer Agent and Registrar
Our transfer agent and registrar for the Common Stock is ChaseMellon
Shareholder Services, located in New York, New York.
DESCRIPTION OF WARRANTS
We may issue Warrants, including Warrants to purchase Debt Securities,
Preferred Stock, Common Stock or other of our securities. Warrants may be issued
independently or together with any of our securities and may be attached to or
separate from our securities. The Warrants are to be issued under warrant
agreements to be entered into between Owens Corning and a bank or trust company,
as warrant agent.
The specific terms of the Warrants and the related warrant agreement will be
described in the prospectus supplement relating to the Warrants being offered. A
copy of the form of warrant agreement has been filed as an exhibit to the
registration statement of which this prospectus forms a part. The terms of the
Warrants described below and that will be described in the applicable prospectus
supplement are not complete and are qualified by reference to the warrant
agreement and warrant certificate relating to such Warrants.
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TERMS OF DEBT WARRANTS
The applicable prospectus supplement will describe the terms of Warrants to
purchase Debt Securities ("Debt Warrants"), warrant agreements relating to the
Debt Warrants and warrant certificates representing the Debt Warrants, including
the following:
(1) The title and aggregate number of Debt Warrants.
(2) The title, rank, aggregate principal amount and terms of the
underlying Debt Securities purchasable upon exercise of the Debt Warrants.
(3) The principal amount of underlying Debt Securities that may be
purchased upon exercise of each Debt Warrant and the price or the manner of
determining the price at which such principal amount may be purchased upon
such exercise.
(4) The procedures and conditions relating to the exercise of the Debt
Warrants and the expiration date of the Debt Warrants.
(5) Any optional redemption terms.
(6) Whether certificates evidencing the Debt Warrants ("Debt Warrant
Certificates") will be issued in registered form and, if so, where they may
be transferred and exchanged.
(7) Whether the Debt Warrants are to be issued with any Debt
Securities or any other securities.
(8) The date, if any, on and after which the Debt Warrants and
underlying Debt Securities will be separately transferable.
(9) If applicable, a discussion of material U.S. federal income tax
considerations.
(10) Any other terms of the Debt Warrants.
(11) The terms of our securities purchasable upon exercise of the Debt
Warrants.
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TERMS OF OTHER WARRANTS
We may also issue Warrants other than Debt Warrants. The applicable
prospectus supplement will describe the following terms of any other Warrants,
including:
(1) The title and aggregate number of the Warrants.
(2) The title and terms of the underlying securities purchasable upon
exercise of the Warrants. These underlying securities may include our
Preferred Stock or Common Stock.
(3) The price or prices at which the Warrants will be issued.
(4) The procedures and conditions relating to the exercise of the
Warrants and the expiration date of the Warrants.
(5) Whether certificates evidencing the Warrants will be issued in
registered form, and, if so, where they may be transferred and exchanged.
(6) The date, if any, on and after which the Warrants and the
underlying securities will be separately transferable.
(7) If applicable, a discussion of material U.S. federal income tax
considerations.
(8) Any other terms of the Warrants.
(9) The terms of our securities purchasable upon exercise of the
Warrants.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder to purchase for cash or other
consideration such amount of underlying securities at the exercise price set
forth in, or calculable from, the prospectus supplement relating to the
Warrants. After the close of business on the expiration date, unexercised
Warrants will become void.
Upon receipt of payment and the Warrant certificate properly completed and
duly executed at the corporate trust office of the Warrant agent or any other
office indicated by the applicable prospectus supplement, we will, as soon as
practicable, forward the securities purchased upon exercise. If less than all
the Warrants represented by such Warrant certificate are exercised, a new
Warrant certificate will be issued for the remaining Warrants.
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MODIFICATIONS
Unless otherwise specified in the applicable prospectus supplement, we and
the Warrant Agent may amend each Warrant Agreement and the terms of the Warrants
and the Warrant certificates without the consent of the holders in order to cure
any ambiguity, or correct or supplement any defective or inconsistent provision.
We are also permitted to make any other change which does not adversely affect
the interests of the holders of the Warrants in any material respect.
NO RIGHTS AS HOLDERS OF UNDERLYING SECURITIES
Before the Warrants are exercised, holders of Warrants are not entitled to
payments of principal of, premium, if any, interest, or dividends on the related
underlying securities or to exercise any other rights whatsoever as holders of
the underlying securities.
DESCRIPTION OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
We may issue Stock Purchase Contracts, including contracts obligating
holders to purchase from us, and obligating us to sell to the holders, a
specified number of shares of Common Stock or Preferred Stock at a future date
or dates. The cost of each share of Preferred Stock or Common Stock may be fixed
at the time the Stock Purchase Contract is issued or may be determined by
reference to a specific formula set forth in the Stock Purchase Contracts.
The Stock Purchase Contracts may be issued separately or as part of a unit
("Stock Purchase Units"). Each Stock Purchase Unit will consist of a Stock
Purchase Contract and Debt Securities, Preferred Stock, preferred securities,
Junior Subordinated Debentures or debt obligations of third parties, including
U.S. Treasury securities, securing the holders' obligations to purchase the
Preferred Stock or the Common Stock under the Stock Purchase Contracts.
The Stock Purchase Contracts may require us to make periodic payments to
holders of Stock Purchase Units or vice versa, and such payments may be
unsecured or funded in advance on some basis to insure payment. Provisions in
the Stock Purchase Contracts may require holders to secure their obligations
under the contracts in a specified manner.
The applicable prospectus supplement will describe the terms of any Stock
Purchase Contracts or Stock Purchase Units. The description in the prospectus
supplement will not be complete and will be qualified by reference to the Stock
Purchase Contracts, and if applicable, collateral
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arrangements and depositary arrangements relating to such Stock Purchase
Contracts or Stock Purchase Units.
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES
Unless otherwise specified in the Prospectus Supplement, we may issue Junior
Subordinated Debentures in one or more series under a Junior Subordinated
Indenture (the "Subordinated Indenture") between Owens Corning and Wilmington
Trust Company, as trustee (the "Debenture Trustee"). If Junior Subordinated
Debentures are issued, this Subordinated Indenture will be supplemented or
amended for each new series of Junior Subordinated Debentures. As with the Debt
Securities, this section contains a summary of some of the terms and provisions
of the Junior Subordinated Debentures and the Subordinated Indenture. As stated
above, upon an offering of securities we may amend and restate the Declaration
of Trust of Owens Corning Capital II to provide that the trust exists for the
purpose of acquiring debt securities issued by Owens Corning other than, or in
addition to, Junior Subordinated Debentures. Such other debt securities, if any,
will be described in a prospectus supplement and may also include debt
securities that are senior or senior subordinated. This summary of the Junior
Subordinated Debentures is subject to and qualified in its entirety by reference
to the provisions of the Subordinated Indenture, including definitions of
certain terms used in the Subordinated Indenture. The form of the Subordinated
Indenture is filed as an exhibit to the registration statement of which this
prospectus forms a part. Whenever we refer to a particular defined term from the
Subordinated Indenture in this prospectus or in the prospectus supplement, such
defined term is incorporated by reference in this prospectus or in the
prospectus supplement.
TERMS OF JUNIOR SUBORDINATED DEBENTURES
Each series of Junior Subordinated Debentures will be an unsecured
obligation of Owens Corning and will rank equally with our outstanding
Convertible Subordinated Debentures due 2025 and with all other series of Junior
Subordinated Debentures, and junior in right of payment to all of our Senior
Debt.
Except as otherwise provided in the applicable Prospectus Supplement, the
Subordinated Indenture does not limit our incurrence or issuance of other
secured or unsecured debt, whether under the Subordinated Indenture, any other
indenture that we may enter into in the future or otherwise.
With respect to each series of Junior Subordinated Debentures, you should
read the applicable prospectus supplement for the following terms:
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(1) The title of the Junior Subordinated Debentures.
(2) Any limit on the total principal amount of Junior Subordinated
Debentures of the series.
(3) The date or dates, or how such date or dates will be determined or
extended, when the principal of the Junior Subordinated Debentures will be
payable.
(4) The rate or rates at which the Junior Subordinated Debentures will
bear interest, if any, or how such rate or rates will be determined, the
interest payment dates and any record dates for such payments.
(5) The place or places where the principal of (and premium if any)
and interest on the Junior Subordinated Debentures will be payable.
(6) Any optional redemption provisions.
(7) Any sinking fund or other provisions that would obligate Owens
Corning to repurchase or otherwise redeem the Junior Subordinated
Debentures.
(8) The form of the Junior Subordinated Debentures, including whether
the Junior Subordinated Debentures are to be issuable in permanent or
temporary global form.
(9) If other than U.S. dollars, the currency, currencies or any
currency units in which payment of principal of (and premium, if any) and
interest on the Junior Subordinated Debentures will be payable.
(10) Any changes or additions to the events of default or covenants.
(11) If not the entire principal amount of the Junior Subordinated
Debentures, the portion of the principal amount payable upon acceleration of
the maturity of the Junior Subordinated Debentures or how such portion will
be determined.
(12) If other than denominations of $25, the denominations in which the
offered Junior Subordinated Debentures will be issued.
(13) Whether the amount of payments of principal of and premium, if
any, on the Junior Subordinated Debentures will be determined with reference
to an index, formula or other method and how such amounts will be
determined.
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(14) The terms and conditions relating to the issuance of a temporary
global security representing all of the Junior Subordinated Debentures of
such series and exchange for definitive Junior Subordinated Debentures.
(15) The terms and conditions of any obligation or right of Owens
Corning or a holder to convert or exchange Junior Subordinated Debentures
into preferred securities or other securities.
(16) The appointment of any paying agent or agents.
(17) The relative degree, if any, to which such series of Junior
Subordinated Debentures will be senior to or subordinated to other series of
Junior Subordinated Debentures or other indebtedness of Owens Corning in
right of payment.
(18) Any other terms of such Junior Subordinated Debentures.
Junior Subordinated Debentures may be sold at a substantial discount below
their stated principal amount, bearing no interest or interest at a rate which
at the time of issuance is below market rates. Certain material U.S. federal
income tax consequences and special considerations applicable to any such Junior
Subordinated Debentures will be described in the applicable prospectus
supplement.
If the purchase price of any of the Junior Subordinated Debentures is
payable in one or more foreign currencies or currency units or if any Junior
Subordinated Debentures are denominated in one or more foreign currencies or
currency units or if the principal of, premium, if any, or interest, if any, on
any Junior Subordinated Debentures is payable in one or more foreign currencies
or currency units, the restrictions, elections, certain material U.S. federal
income tax considerations, specific terms and other information with respect to
such issue of Junior Subordinated Debentures and such foreign currency or
currency units will be set forth in the applicable prospectus supplement.
If any index is used to determine the amount of payments of principal of,
premium, if any, or interest, if any, on any series of Junior Subordinated
Debentures, certain material U.S. federal income tax, accounting and other
considerations applicable thereto will be described in the applicable prospectus
supplement.
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BOOK-ENTRY JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures will be issued in the form of one or more
Global Securities. See "Book-Entry Securities" for additional information about
your limited rights as the beneficial owner of a Global Security.
DENOMINATIONS, REGISTRATION AND TRANSFER
Unless otherwise specified in a prospectus supplement, Junior Subordinated
Debentures will be issuable:
- as registered certificated securities without coupons,
- in denominations that are multiples of $25, and
- as Global Securities. See "Book-Entry Securities".
You may have your registered Junior Subordinated Debentures separated into
more registered Junior Subordinated Debentures of smaller denominations or
combined into fewer registered Junior Subordinated Debentures of larger
denominations, as long as they are of the same series, were issued on the same
date and have the same maturity date and interest rate and the total principal
amount is not changed.
In order to exchange Junior Subordinated Debentures, as described above,
they must be presented at the office of the Securities Registrar or a transfer
agent designated by Owens Corning for such purpose in the applicable prospectus
supplement. We will appoint the Debenture Trustee as Securities Registrar under
the Subordinated Indenture. If we have designated transfer agents, in addition
to the Securities Registrar, with respect to a series of Junior Subordinated
Debentures, we may rescind the appointment of such transfer agents or approve a
change in the location through which a transfer agent acts provided we maintain
a transfer agent in each previously designated place of payment for such series.
We may also designate additional transfer agents with respect to any series of
Junior Subordinated Debentures.
In the event of any redemption of Junior Subordinated Debentures, Owens
Corning and the Debenture Trustee will not be required to:
- issue, register the transfer of or exchange Junior Subordinated
Debentures of any series from a date 15 business days before the day we
select the Junior Subordinated Debentures to be redeemed and ending at
the close of business on the day of mailing of the relevant notice of
redemption; or
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- transfer or exchange any Junior Subordinated Debentures that have been
selected for redemption, except for any portion of the Junior
Subordinated Debentures being redeemed in part that are not to be
redeemed.
OPTION TO DEFER INTEREST PAYMENTS
If provided in the applicable prospectus supplement, we will have the right
at any time and from time to time during the term of any series of Junior
Subordinated Debentures to defer the payment of interest for the number of
consecutive interest payment periods specified in the applicable prospectus
supplement (each, an "Extension Period"). This right of deferral will be subject
to the terms, conditions and covenants, if any, specified in the prospectus
supplement and any Extension Period may not extend beyond the stated maturity of
the Junior Subordinated Debentures. Any material U.S. federal income tax
consequences and special considerations applicable to any Junior Subordinated
Debentures subject to an Extension Period will be described in the applicable
prospectus supplement. See "Description of the Preferred
Securities--Distributions" for additional information regarding Extension
Periods and their effect on the Preferred Securities.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement, payments
of principal, premium and interest on Junior Subordinated Debentures will be
made at the office of the Debenture Trustee in The City of New York or at the
office of a paying agent we designate. We also have the option of making
interest payments to holders of Junior Subordinated Debentures (1) by check to
the address of the person or entity listed in the Securities Register, except in
the case of global Junior Subordinated Debentures or (2) by transfer to an
account maintained by such person or entity. Interest on Junior Subordinated
Debentures will be paid to the registered holder of such Junior Subordinated
Debentures on the record date for the interest payment, except as otherwise
provided in the applicable prospectus supplement. We may designate additional
paying agents or rescind the designation of any paying agent at any time.
We will deposit interest, principal and any other amount due on the Junior
Subordinated Debentures with the paying agent specified in the prospectus
supplement. Any amounts unclaimed after two years from the date such amounts
become due and payable will be returned to Owens Corning, and the holder of the
related Junior Subordinated Debentures can only look, as a general unsecured
creditor, to Owens Corning for payment.
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REDEMPTION
Unless otherwise indicated in the applicable prospectus supplement, Junior
Subordinated Debentures will not be subject to any sinking fund.
Unless otherwise indicated in the applicable prospectus supplement, we may,
at our option, redeem the Junior Subordinated Debentures of any series in whole
at any time or in part from time to time, at the redemption price provided in
the applicable prospectus supplement plus accrued and unpaid interest to the
date fixed for redemption. Junior Subordinated Debentures in denominations
larger than $25 may be redeemed in part but only in integral multiples of $25.
If the Junior Subordinated Debentures of any series are redeemable only on or
after a specified date or upon the satisfaction of additional conditions, the
applicable prospectus supplement will specify such date or describe such
conditions.
Except as otherwise specified in the applicable prospectus supplement, if a
Tax Event (as defined below) in respect of a series of Junior Subordinated
Debentures or an Investment Company Event (as defined below) in respect of a
trust shall occur and be continuing, we may, at our option, redeem that series
of Junior Subordinated Debentures in whole (but not in part) within 90 days of
the occurrence of such Tax Event or Investment Company Event, at a redemption
price equal to 100% of the principal amount of such Junior Subordinated
Debentures then outstanding plus accrued and unpaid interest to the date fixed
for redemption.
"Tax Event" means the receipt by us of an opinion of counsel experienced in
such matters to the effect that, as a result of:
- any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or
therein affecting taxation,
- any amendment to or change in an interpretation or application of such
laws or regulations by any legislative body, court, governmental agency
or regulatory authority, or
- any interpretation or pronouncement that provides for a position with
respect to such laws or regulations that differs from the generally
accepted position on the date the applicable series of Junior
Subordinated Debentures is issued, which amendment, clarification or
change is effective or which interpretation or pronouncement is
announced on or after the date of issuance of the applicable series of
Junior Subordinated Debentures under the Subordinated Indenture,
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there is more than an insubstantial risk that interest payable by us on such
series of Junior Subordinated Debentures is not, or within 90 days of the date
thereof, will not be deductible, in whole or in part, for U.S. federal income
tax purposes.
"Investment Company Event" means with respect to any trust, the occurrence
of a change in law or regulation or a change in interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority to the effect that the trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act of 1940, which change becomes effective on or after the date of
original issuance of the trust's preferred securities.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of Junior Subordinated
Debentures to be redeemed at such holder's registered address. Unless we default
in the payment of the redemption price, on and after the redemption date
interest shall cease to accrue on the Junior Subordinated Debentures or portions
of the Junior Subordinated Debentures called for redemption.
In the recent past, there have been various legislative proposals which, if
enacted, would have prohibited an issuer from deducting interest payments or
original issue discount under certain circumstances. We cannot assure you that
legislation affecting our ability to deduct interest paid on the Junior
Subordinated Debentures as indebtedness for U.S. federal income tax purposes,
including legislation similar to the proposals described above, will not be
enacted in the future or that any such legislation would not be effective
retroactively. In the event tax law changes are enacted and apply retroactively
to the Junior Subordinated Debentures, such changes could give rise to a Tax
Event, which would permit us to cause a redemption of the Junior Subordinated
Debentures, or, in the case of Junior Subordinated Debentures held by a trust,
such changes could give rise to a Tax Event or Investment Company Event, which
would permit us to cause a redemption of the related preferred securities and
common securities, as described more fully under "Description of the Preferred
Securities--Redemption".
RESTRICTIONS ON CERTAIN PAYMENTS BY OWENS CORNING
We will covenant in the Subordinated Indenture that:
- if any event of which we have actual knowledge has occurred and is
continuing
- that with notice or the lapse of time, or both, would
constitute a Debenture Event of Default with respect to the
Junior Subordinated Debentures of a series and
- in respect of which we have not taken reasonable steps to
cure,
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- if the Junior Subordinated Debentures of a series are held by a trust
which has issued a series of related preferred securities and we are in
default with respect to our payment of any obligations under the
Guarantee relating to the preferred securities, or
- if we have given notice of an Extension Period with respect to the
Junior Subordinated Debentures of a series and have not rescinded such
notice, or such Extension Period, or any extension of such Extension
Period is continuing,
then we will not and we will not permit any of our subsidiaries to:
- declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of our
capital stock (other than as a result of a reclassification of such
capital stock or the exchange or conversion of one class or series of
capital stock for another class or series),
- make any payment of principal, interest or premium, if any, on, or
repay or repurchase or redeem, any debt securities of Owens Corning
(including other Junior Subordinated Debentures) that rank equally with
or junior in interest to the Junior Subordinated Debentures or make any
guarantee payments with respect to such debt securities, or
- make any guarantee payments with respect to any guarantee by Owens
Corning of the debt securities of any subsidiary if such guarantee
ranks equally with or junior in interest to the Junior Subordinated
Debentures.
However, we may continue to:
- pay any dividends or distributions in Common Stock,
- redeem or purchase any rights pursuant to any stockholder protection
rights plan, including our 1996 Rights Agreement or any successor to
such agreement, and declare a dividend of such rights or the issuance
of stock under such plans,
- make any payment under any Guarantee of preferred securities by Owens
Corning; and
- allow our subsidiaries to make guarantee payments to us.
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MODIFICATION OR WAIVER
There are three types of changes we can make to the Subordinated Indenture
and the Junior Subordinated Debentures.
Changes Requiring Your Approval. The first type of change cannot be made to
your Junior Subordinated Debentures without your specific approval. They are:
- a change in the stated maturity of the Junior Subordinated Debentures,
a reduction in the principal amount of the Junior Subordinated
Debentures, or a reduction in the rate or extension of the time of
payment of interest on the Junior Subordinated Debentures (except for
any permitted deferral in connection with an Extension Period), and
- a reduction in the percentage of principal amount of the outstanding
Junior Subordinated Debentures, the holders of which are required to
consent to any modification of the Subordinated Indenture.
Changes Not Requiring Approval. The second type of change does not require
any vote of the holders of the Junior Subordinated Debentures. This type of
change is limited to (1) curing ambiguities, defects or inconsistencies as long
as such changes do not adversely affect the interests of the holders of the
Junior Subordinated Debentures or the related preferred securities in any
material respect, (2) qualifying, or maintaining the qualification of, the
Subordinated Indenture under the TIA and (3) executing any supplemental
Subordinated Indenture for the purpose of creating any new series of Junior
Subordinated Debentures.
Changes Requiring a Majority Vote. Changes to the Subordinated Indenture and
the Junior Subordinated Debentures other than those described above require the
consent of holders owning a majority of the principal amount of the outstanding
Junior Subordinated Debentures of each particular series affected.
Consent of the Related Preferred Security Holders. As long as the related
preferred securities are outstanding, no modification to the Subordinated
Indenture may be made that adversely affects the holders of preferred securities
in any material respect, no termination of the Subordinated Indenture may occur,
and no waiver of any event of default or compliance with any covenant under the
Subordinated Indenture may be effective, without the prior consent of the
holders of a majority of the aggregate liquidation preference of such preferred
securities (unless and until the principal and all accrued and unpaid interest
on the corresponding Junior Subordinated Debentures has been paid in full or
provided for in accordance with the Subordinated Indenture). See "Description of
the Preferred Securities - Enforcement Rights."
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EVENTS OF DEFAULT
The registered holder of Junior Subordinated Debentures will have special
rights if an Event of Default under the Subordinated Indenture occurs and is not
cured, as described later in this subsection.
What is an Event of Default? The term "Event of Default" under the
Subordinated Indenture with respect to any series of Junior Subordinated
Debentures means any of the following events:
- We do not pay interest on the Junior Subordinated Debentures of the
series within 30 days of its due date (except a permitted deferral
during an Extension Period will not be a default).
- We do not pay the principal or premium, if any, on the Junior
Subordinated Debentures of the series when due, whether at maturity,
upon redemption, by declaration or otherwise (except when the maturity
date has been extended as permitted by the Subordinated Indenture).
- We remain in breach of any other covenant contained in the Subordinated
Indenture in any material respect for 90 days after we receive a notice
of default stating we are in breach. The notice must be sent by either
the Debenture Trustee or the holders of at least 25% in aggregate
principal amount of the outstanding Junior Subordinated Debentures of
the series.
- We file for bankruptcy or certain other events in bankruptcy,
insolvency or reorganization occur.
Remedies if an Event of Default Occurs. If an Event of Default in respect of
a series of the Junior Subordinated Debentures has occurred and is continuing,
either the Debenture Trustee or the holders of not less than 25% in aggregate
principal amount of the outstanding Junior Subordinated Debentures of the series
may declare the principal of all Junior Subordinated Debentures of the series to
be due and payable immediately. If the preferred securities of a trust are
outstanding and the Debenture Trustee or those holders of Junior Subordinated
Debentures fail to exercise this right, the holders of at least 25% in aggregate
liquidation amount of the related outstanding preferred securities may exercise
the right. The holders of a majority in aggregate principal amount of the
outstanding Junior Subordinated Debentures of the series may also cancel any
declaration of acceleration and waive the default if the default has been cured
and a sum sufficient to pay all matured installments of interest and principal
of the series due otherwise than by acceleration has been deposited with the
Debenture Trustee. If the holders of Junior Subordinated Debentures of the
series do not exercise this right, the holders of a majority
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in aggregate liquidation amount of the related outstanding preferred securities
may exercise the right.
The holders of a majority in aggregate principal amount of the outstanding
Junior Subordinated Debentures of any series may, on behalf of the holders of
all Junior Subordinated Debentures of the series, waive any past default under
the Subordinated Indenture with respect to the series other than:
- a default in the payment of principal or interest, unless the default
has been cured and a sum sufficient to pay all matured installments of
interest and principal due otherwise than by acceleration has been
deposited with the Debenture Trustee, or
- a default in respect of a covenant that under the Subordinated
Indenture cannot be modified or amended without the consent of the
holder of each outstanding Junior Subordinated Debenture affected.
If the holders of Junior Subordinated Debentures do not exercise this right, the
holders of a majority in aggregate liquidation amount of the related outstanding
preferred securities may do so.
The holders of a majority in aggregate principal amount of outstanding
Junior Subordinated Debentures affected by an Event of Default will have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Debenture Trustee. This right, as well as the rights of
the holders of Junior Subordinated Debentures with regard to acceleration,
cancellation and waiver described above, will be subject to the enforcement
rights of the holders of related preferred securities when the preferred
securities are outstanding. See "Description of the Preferred
Securities--Enforcement Rights". We will be obligated to provide the Debenture
Trustee (and, if the related preferred securities are outstanding, the Property
Trustee) annually a certificate as to whether or not we are in compliance with
the provisions of the Subordinated Indenture applicable to us.
In addition, if an Event of Default occurs and is continuing with respect to
Junior Subordinated Debentures held by a trust, the Property Trustee may declare
the principal of, and interest on, such Junior Subordinated Debentures to be
immediately due and payable. The Property Trustee may also enforce its rights as
a creditor with respect to such Junior Subordinated Debentures.
If an Event of Default with respect to a series of Junior Subordinated
Debentures has occurred and is continuing and such event is attributable to our
failure to pay interest or principal on such Junior Subordinated Debentures on
the date such interest or principal is otherwise payable, a
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holder of the related preferred securities may institute a legal proceeding
directly against us for enforcement of payment to such holder of the principal
of or interest on such Junior Subordinated Debentures having a principal amount
equal to the aggregate liquidation amount of the related preferred securities of
such holder ( a "Direct Action"). We may not amend the Subordinated Indenture to
remove the foregoing right to bring a Direct Action without the prior written
consent of the holders of all of the related preferred securities. If the right
to bring a Direct Action is removed, the applicable trust may become subject to
the reporting obligations under the Exchange Act. We will have the right under
the Subordinated Indenture to set off any payment made to such holder of
preferred securities by us in connection with a Direct Action. The holders of
preferred securities will not be able to exercise directly any other remedy
available to the holders of the Junior Subordinated Debentures unless there
shall have been an Event of Default under the applicable Declaration of Trust.
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
Under the terms of the Subordinated Indenture, we are generally permitted to
consolidate or merge with another firm. We are also permitted to sell all or
substantially all of our assets to another firm. However, we may not take any of
these actions unless all the following conditions are met:
- If we merge out of existence or transfer our assets, the entity into
which we merge or sell our assets must be a corporation organized under
the laws of the United States, any U.S. state or the District of
Columbia and it must expressly assume our obligations in respect of the
Junior Subordinated Debentures and the Subordinated Indenture.
- Immediately after the merger or transfer of assets, no default under
the Junior Subordinated Debentures and no event which, after notice or
lapse of time, or both, would become an Event of Default, has occurred.
- If Junior Subordinated Debentures are held by a trust, the applicable
Declaration of Trust and Guarantee permit the transaction, and such
transaction does not give rise to any breach or violation of such
Declaration of Trust or Guarantee.
The general provisions of the Subordinated Indenture do not afford holders
of the Junior Subordinated Debentures (or related preferred securities)
protection in the event of a highly leveraged or other transaction involving
Owens Corning that may adversely affect the interests of those holders.
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SATISFACTION AND DISCHARGE
The Subordinated Indenture provides that, except as noted below, the
Subordinated Indenture will cease to be of further effect, and we will be deemed
to have satisfied and discharged the Subordinated Indenture, when the following
conditions (among others) have been satisfied:
- All Junior Subordinated Debentures not previously delivered to the
Debenture Trustee for cancellation have become due and payable or will
become due and payable at their stated maturity within one year of the
date of deposit.
- We deposit with the Debenture Trustee, in trust, funds sufficient to
pay the entire indebtedness on those Junior Subordinated Debentures not
previously delivered for cancellation, for the principal and any
premium or interest to the date of the deposit (for Junior Subordinated
Debentures that have become due and payable) or to the stated maturity
or the redemption date, as the case may be (for Junior Subordinated
Debentures that have not become due and payable).
We will remain obligated to pay all other amounts due under the Subordinated
Indenture and to provide the officers' certificates and opinions of counsel
described in the Subordinated Indenture.
CONVERSION AND EXCHANGE
If any Junior Subordinated Debentures are convertible into or exchangeable
for preferred securities or other securities, the prospectus supplement will
explain the terms and conditions of such conversion or exchange, including:
- the conversion price or exchange ratio (or the calculation method),
- the conversion or exchange period (or how such period will be
determined),
- if conversion or exchange will be mandatory or at the option of the
holder or Owens Corning,
- provisions for adjustment of the conversion price or the exchange
ratio, and
- provisions affecting conversion or exchange in the event of the
redemption of the Junior Subordinated Debentures.
The terms may also include provisions under which the number or amount of other
securities to be received by the holders of such Junior Subordinated Debentures
upon conversion or exchange
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would be calculated according to the market price of such other securities as of
a time stated in the prospectus supplement.
SUBORDINATION
The payment of principal and any premium or interest on the Junior
Subordinated Debentures is subordinated in right of payment to the prior payment
in full of all of our Senior Debt. This means that in certain circumstances
where we may not be making payments on all of our debt obligations as they come
due, the holders of all of our Senior Debt will be entitled to receive payment
in full of all amounts that are due or will become due on the Senior Debt before
the registered holders of the Junior Subordinated Debentures will be entitled to
receive any payment or distribution on the Junior Subordinated Debentures. These
circumstances include the following:
- We make a payment or distribute assets to creditors upon any
liquidation, dissolution, winding up or reorganization of Owens
Corning, or as part of an assignment or marshalling of our assets for
the benefit of our creditors.
- We file for bankruptcy or certain other events in bankruptcy,
insolvency or similar proceedings occur.
- We make any assignment for the benefit of creditors.
- We are subject to any other marshalling of our assets.
In addition, we are generally not permitted to make payments of principal
and any premium or interest on the Junior Subordinated Debentures if we default
in our obligation to make payments on Senior Debt and do not cure such default.
After payment in full of all amounts owed on Senior Debt, the holders of
Junior Subordinated Debentures, together with the holders of any equally ranking
obligations, will be paid from the remaining assets of Owens Corning the amounts
owed on the Junior Subordinated Debentures and those other obligations before
any payment or other distribution will be made on any capital stock or any
junior ranking obligations of Owens Corning.
If any holder of Junior Subordinated Debentures receives any payment or
distribution on his securities before all the Senior Debt has been paid in full,
the holder must receive the payment or distribution in trust for the benefit of,
and must pay over or deliver and transfer the same to, the holders of the Senior
Debt at the time outstanding to the extent necessary to pay all the Senior Debt
in full.
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"Senior Debt" means all indebtedness incurred, assumed or guaranteed,
directly or indirectly, by us, either before, on, or after the date of the
Subordinated Indenture without any limitation as to the amount or terms thereof,
and whether such indebtedness (including, but not limited to, interest on any
such indebtedness) arises or accrues before or after the commencement of any
bankruptcy, insolvency or receivership proceedings,
(1) which arises for borrowed money, securities sold, funds provided,
assets or services purchased or any other transaction whether or not in the
ordinary course of business and which is evidenced by a promissory note,
bond, debenture, writing or other instrument of indebtedness or reflected on
our accounting records as a payable but expressly excluding:
(A) amounts owed for compensation to employees,
(B) obligations owing under judgments arising out of obligations
that are not indebtedness for borrowed money (other than any
such obligations arising from obligations which are otherwise
Senior Debt),
(C) any indebtedness which by the terms of the instrument creating
or evidencing the same is not superior in right of payment to
or is junior in right of payment to the Junior Subordinated
Debentures,
(D) any liability for federal, state, local or other taxes owed or
owing by us,
(E) any liability in respect of any employee benefit plan
(including, without limitation, any liability to the Pension
Benefit Guaranty Corporation or any successor thereto),
(F) indebtedness or obligations to our subsidiary,
(G) our 6 1/2% Convertible Subordinated Debentures due 2025, and
(H) indebtedness to trade creditors or monetary obligations to
trade creditors incurred or assumed by us or any of our
subsidiaries in the ordinary course of business;
(2) for principal of and interest on all loans and other extensions of
credit under the Credit Agreement dated November 2,1993, among Owens
Corning, Credit Suisse, as agent, and the other lenders listed on Annex A of
the Credit Agreement, as in effect and as amended, renewed, extended or
supplemented from time to time, and any document, instrument or agreement
executed and delivered in connection therewith and all fees, expenses,
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reimbursements, indemnities, premiums and other amounts payable under the
Credit Agreement;
(3) for principal of (and premium, if any) and interest on our 5 3/8%
Swiss Franc Bonds due November 26, 2000 and our 7 1/4% DM Bonds of 1985/2000
and all fees, expenses, reimbursements, indemnities, premiums and other
amounts payable thereunder;
(4) for any amount payable with respect to any lease, conditional sale
or installment sale agreement or other financing instrument or agreement
which in accordance with generally accepted accounting principles is, at the
date of the Subordinated Indenture or at the time the lease, conditional
sale or installment sale agreement or other financing instrument or
agreement is entered into, assumed or guaranteed, directly or indirectly, by
us, required to be reflected as a liability on the face of our balance
sheet;
(5) for all principal of and interest on all loans and other extensions
of credit under any lines of credit, credit agreements or promissory notes
from a bank or other financial institution (including, without limitation,
any letters of credit, bankers' acceptances, performance bonds and other
credit facilities under such borrowing arrangements), and all fees,
expenses, reimbursements, indemnities, premiums and other amounts payable
under such borrowing arrangements;
(6) for any amounts payable in respect of any interest rate exchange
agreement, ceiling rate agreement, currency exchange agreement or similar
agreement; and
(7) for renewals, deferrals, amendments, modifications, supplements,
extensions or refundings of any of the indebtedness described in clauses (1)
through (6), inclusive, or evidences of indebtedness issued in exchange for
such Senior Debt.
Senior Debt shall continue to constitute Senior Debt for all purposes of the
Junior Subordinated Debentures, and the provisions of Article XIII of the
Subordinated Indenture shall continue to apply to such Senior Debt,
notwithstanding the fact that such Senior Debt or any claim in respect thereof
shall be disallowed, avoided or subordinated pursuant to the provisions of the
United States Bankruptcy Code of 1978, as amended, or other applicable law.
The Subordinated Indenture places no limitation on the amount of additional
Senior Debt that we may incur in the future. We expect to incur substantial
amounts of additional Senior Debt from time to time.
The Subordinated Indenture provides that the above subordination provisions,
insofar as they relate to a particular issue of Junior Subordinated Debentures,
may be changed prior to such
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issuance. Any such change would be described in the prospectus supplement
relating to such Junior Subordinated Debentures.
NOTICES
Copies of notices to holders of Junior Subordinated Debentures under the
Subordinated Indenture will be given to holders of the preferred securities in
accordance with provisions similar to those described in "Description of the
Preferred Securities--Notices" and to the Property Trustee. If in the future the
Junior Subordinated Debentures have been distributed in exchange for the
preferred securities, notices to holders of preferred securities will be given
to those holders in accordance with the provisions for notices to the holders of
the preferred securities referred to above.
GOVERNING LAW
The Subordinated Indenture and the Junior Subordinated Debentures will be
governed by and construed in accordance with the laws of the State of New York.
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DESCRIPTION OF THE PREFERRED SECURITIES
The following is a general description of the preferred securities. For more
specific details, see the attached prospectus supplement. To the extent anything
in the prospectus supplement is inconsistent with the following, you should rely
on the information in the prospectus supplement.
This section summarizes the main provisions of the preferred securities and
the Declaration of Trust for Owens Corning Capital II, but it does not describe
all the provisions. Consequently, this summary is qualified by reference to the
full text of the applicable Declaration of Trust. As stated above, upon an
offering of Securities we may amend and restate the Declaration of Trust of
Owens Corning Capital II to provide that the trust exists for the purpose of
acquiring debt securities issued by Owens Corning other than, or in addition to,
Junior Subordinated Debentures. Such other debt securities, if any, will be
described in a prospectus supplement and may also include debt securities that
are either senior or senior subordinated. Upon an offering of preferred
securities by Owens Corning Capital IV, the terms of which will be similar to
the preferred stock described below, we will describe such preferred stock and
the Declaration of Trust of Owens Corning Capital IV in the prospectus
supplement. We have filed a form of Declaration of Trust as an exhibit to our
registration statement of which this prospectus forms a part.
This section uses terms that are defined in the Declaration of Trust for
each trust and the Subordinated Indenture. Unless we define those terms in this
prospectus, we intend them to have the meanings given them in the applicable
Declaration of Trust or the Subordinated Indenture, as the case may be.
GENERAL
The trust will issue preferred securities and common securities under its
Declaration of Trust. The preferred securities and the common securities will
rank equally with one another, and all payments will be made on the preferred
securities and the common securities pro rata, except as described in
"--Priority over Common Securities".
Unless otherwise described in a prospectus supplement, we will issue Junior
Subordinated Debentures under the Subordinated Indenture as described in
"Description of the Junior Subordinated Debentures" and the Property Trustee
will hold legal title to the Junior Subordinated Debentures in trust for the
benefit of the holders of the preferred securities and the common securities. We
will also provide guarantees under the Guarantee Agreements as described in
"Description of Guarantees". Under the Guarantees, we will guarantee, on a
subordinated basis, the payment of distributions and other amounts payable on
the preferred securities, but only to the extent that the trust does not have
funds on hand available to make those payments.
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DISTRIBUTIONS
Distributions will accumulate on the preferred securities from their
original issue date at an annual rate provided in the applicable prospectus
supplement. The amount of distributions payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months.
The trust will have no funds to distribute in respect of its preferred
securities other than the payments it receives from us in respect of the Junior
Subordinated Debentures. Consequently, if we defer or for any other reason fail
to make interest payments on the Junior Subordinated Debentures, the trusts will
not have funds available to pay distributions on the preferred securities.
Extension Periods
As long as no Event of Default under the Subordinated Indenture has occurred
and is continuing, we have the right under the Subordinated Indenture to defer
the payment of interest on the Junior Subordinated Debentures at any time. We
may do so for a period specified in the related prospectus supplement (each, an
"Extension Period"), provided that no Extension Period may extend beyond the
stated maturity of the Junior Subordinated Debentures. However, during an
Extension Period, interest will continue to accrue and, to the extent permitted
by applicable law, additional interest will accrue on each deferred interest
payment at an annual rate specified in the prospectus supplement. Before an
Extension Period ends, we may extend it further, subject to the limit described
above. When an Extension Period ends and we have paid all interest then accrued
and unpaid on the Junior Subordinated Debentures, we may begin a new Extension
Period, provided no Event of Default under the Subordinated Indenture has
occurred and is continuing. There is no limit on the number of Extension Periods
that we may begin.
If we elect to defer interest payments on the Junior Subordinated
Debentures, the trust will defer the payment of distributions on the preferred
securities during the related Extension Period. However, during an Extension
Period, distributions will continue to accumulate on the liquidation amount of
the preferred securities and, to the extent permitted by applicable law, those
deferred distributions will accumulate additional distributions at an annual
rate specified in the prospectus supplement. The term "distribution", wherever
we use it in this section, includes any of these additional distributions.
During an Extension Period, holders of preferred securities may be required to
accrue interest income for U.S. federal income tax purposes.
Any distributions that would otherwise become due and payable during an
Extension Period will not become due and payable until the day after the
Extension Period ends. If any preferred securities become subject to redemption
on a redemption date that would otherwise occur during an Extension Period, that
Extension Period will end automatically on the next preceding day.
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We must give the Property Trustee and the holders of preferred securities
notice of our election to begin or extend an Extension Period. The notice must
be given at least one business day before the earlier of the following:
- the record date for the distribution date on which distributions would
have been payable but for the election, and
- the date, if any, on which notice of that record date must be given to
the New York Stock Exchange (or any other national securities exchange
or organization on which the preferred securities are then listed)
under the rules of that exchange or other organization.
We must notify the holders in the manner described below in "--Notices".
Extension Period Restrictions
The Subordinated Indenture provides that, during any Extension Period,
neither Owens Corning nor any of its subsidiaries may:
- declare or pay any dividend, liquidation payment or other distribution
on, or redeem, purchase or otherwise acquire, any capital stock of
Owens Corning (other than as a result of a reclassification of such
capital stock or the exchange or conversion of one class or series of
capital stock for another class or series), or
- pay any principal, interest or other amount in respect of, or redeem,
purchase or otherwise acquire, any debt securities (including
guarantees of such indebtedness) of Owens Corning that rank, in right
of payment in all respects, equally with or junior to the Junior
Subordinated Debentures,
except as described below.
The Subordinated Indenture restriction described above provides for significant
exceptions. We may continue to:
- pay any dividends or distributions in Common Stock;
- redeem or purchase any rights pursuant to any stockholder protection
rights plan, including our 1996 Rights Agreement or any successor to
such agreement, and declare a dividend of such rights or the issuance
of stock under such plans;
- make any payment under any guarantee of preferred securities by Owens
Corning; and
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- receive guarantee payments from our subsidiaries.
MANDATORY REDEMPTION
Preferred securities will remain outstanding until the trust
redeems them or distributes the related Junior Subordinated Debentures in
exchange for the preferred securities. Any redemption of preferred securities
must occur as described below. Any exchange distribution must occur as described
below in "--Exchange of Preferred Securities for Junior Subordinated
Debentures".
Redemption of Preferred Securities and Common Securities
If we repay or redeem Junior Subordinated Debentures at any time, whether at
their stated maturity, upon acceleration after an Event of Default under the
Subordinated Indenture or upon optional redemption, the trust will be
obligated to redeem a Like Amount of related preferred securities and common
securities on the redemption date at the redemption price specified in the
prospectus supplement. In this context, "Like Amount" means preferred securities
and common securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Junior Subordinated Debentures to be
contemporaneously repaid or redeemed.
Repayment and Redemption of Junior Subordinated Debentures
The Junior Subordinated Debentures will mature on the date set forth in the
applicable prospectus supplement. We will also be entitled to redeem the Junior
Subordinated Debentures before their stated maturity, as follows:
- in whole at any time or in part from time to time, or
- in whole at any time within 90 days after the occurrence of a Tax Event
or an Investment Company Event, or
- as may be otherwise specified in the applicable prospectus supplement.
See "Description of the Junior Subordinated Debentures--Redemption" for the
definitions of "Tax Event" and "Investment Company Event".
The Subordinated Indenture provides that if a Tax Event has occurred and is
continuing and we do not elect to redeem the Junior Subordinated Debentures, we
may be required to pay certain Additional Sums on the Junior Subordinated
Debentures. The Subordinated Indenture provisions
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regarding repayment and redemption of the Junior Subordinated Debentures are
addressed in "Description of the Junior Subordinated Debentures--Redemption".
Redemption Procedures
The Property Trustee will give notice of any redemption of preferred
securities to the holders of preferred securities not less than 30 nor more than
60 days before the redemption date, unless the redemption results from
acceleration of the maturity of Junior Subordinated Debentures and the Property
Trustee cannot reasonably give this notice during this period. In that case, the
Property Trustee will give the notice as soon as practicable. In all cases, the
Property Trustee will give the notice of redemption in the manner described
below under "--Notices".
Payment of the redemption price for any preferred securities will be made
against surrender of the certificates representing those preferred securities
(or, in the case of any preferred securities held in book-entry form, in
accordance with the applicable procedures of the Depositary). However, any
distributions that are payable on a distribution date that falls on or before
the redemption date will be payable to the persons who are the holders of those
preferred securities on the record date for the distribution date.
If the Property Trustee gives a notice of redemption, it will irrevocably
deposit with the Depositary (in the case of any book-entry preferred securities)
or the Paying Agent (in the case of any non-book-entry preferred securities), on
the redemption date, funds sufficient to pay the redemption price for all
preferred securities to be redeemed on that date (to the extent the funds are
available to the Property Trustee). Upon the date of such deposit, all rights of
the holders of the preferred securities called for redemption will cease, except
the right of those holders to receive the redemption price (but without
additional interest on that amount), and those preferred securities will cease
to be outstanding. If payment of the redemption price for any preferred
securities called for redemption is improperly withheld or refused and not paid
either by the trust or by Owens Corning under the Guarantee (or if
notice of redemption is not given as required), distributions on those preferred
securities will continue to accumulate to the date the redemption price is
actually paid.
If less than all the preferred securities and common securities are to be
redeemed on a redemption date, the aggregate liquidation amount of preferred
securities and common securities to be redeemed will be allocated pro rata
between the outstanding preferred securities and the outstanding common
securities, based upon their respective aggregate liquidation amounts. Not more
than 60 days prior to the redemption date, the Property Trustee will select the
preferred securities to be redeemed from among the outstanding preferred
securities not previously called for redemption. The Property Trustee may use
any method of selection that it deems to be fair
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and appropriate, including any method that involves the redemption of a portion
of the aggregate liquidation amount of any particular holder's preferred
securities.
Other Purchases of Preferred Securities
Subject to applicable law (including U.S. federal securities laws), we may
purchase outstanding preferred securities by tender, in the open market or by
private agreement. These purchases may occur at any time and from time to time
other than during an Extension Period.
EXCHANGE OF PREFERRED SECURITIES FOR JUNIOR SUBORDINATED DEBENTURES
Owens Corning will have the right at any time, in its sole discretion, to
elect to dissolve the trust. Upon such an election, and after liabilities of
creditors of the trust have been satisfied as provided by applicable law, the
Property Trustee will cause a Like Amount of Junior Subordinated Debentures to
be distributed in exchange for all the outstanding preferred securities and
common securities, in liquidation of the trust. In this context, "Like Amount"
means Junior Subordinated Debentures having an aggregate principal amount equal
to the aggregate liquidation amount of all outstanding preferred securities and
common securities. The exchange distribution will be made to the persons who are
the holders of record of the outstanding preferred securities and common
securities on the record date before the date fixed for the distribution by the
Property Trustee (the "Exchange Date"). See "--Liquidation Distribution upon
Dissolution".
Exchange Procedures
The Property Trustee will notify holders of preferred securities of any
exchange 30 to 60 days before the Exchange Date, in the manner described below
under "--Notices". On the Exchange Date, the following will occur:
- The preferred securities will cease to be outstanding.
- The Depositary or its nominee will receive certificates representing
Junior Subordinated Debentures to be distributed in exchange for all
preferred securities held in book-entry form, with those Junior
Subordinated Debentures also being in book-entry form.
- Any certificates representing preferred securities that are not held in
book-entry form will be deemed to represent a Like Amount of Junior
Subordinated Debentures, bearing accrued and unpaid interest in an
amount equal to the accumulated and unpaid distributions on those
preferred securities, until those certificates are presented to the
Paying Agent for exchange or transfer.
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- All rights of the holders of preferred securities will cease, except
for the right of holders of preferred securities in non-book-entry form
to receive certificates representing Junior Subordinated Debentures in
non-book-entry form, upon surrender of the certificates representing
their preferred securities, as described above.
Certain Tax Consequences
Under current U.S. federal income tax law and interpretations, and assuming,
as we expect, that the trust will not be classified as an association taxable as
a corporation, holders of the preferred securities would not be taxed if the
Junior Subordinated Debentures were distributed in exchange for preferred
securities. However, if a Tax Event were to occur and the trust became taxable
on income received or accrued on the Junior Subordinated Debentures held by such
trusts, both the trust and the holders of the preferred securities could be
taxed on the distribution of Junior Subordinated Debentures in exchange for
preferred securities.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
Under its Declaration of Trust, the trust will automatically dissolve upon
the occurrence of any of the following events, whichever occurs first:
- the expiration of its term of 55 years;
- certain events of bankruptcy, dissolution or liquidation of a holder of
common securities;
- upon the election by Owens Corning to terminate the trust, as described
above under "--Exchange of Preferred Securities for Junior Subordinated
Debentures";
- redemption of all the preferred securities and common securities as
described above under "--Mandatory Redemption--Redemption of Preferred
Securities and Common Securities"; or
- the entry of an order for the dissolution of the trust by a court of
competent jurisdiction.
If the trust dissolves while its preferred securities are outstanding, the
Property Trustee will liquidate the trust as quickly as possible. The Property
Trustee will do so by distributing a Like Amount of Junior Subordinated
Debentures to the holders of the preferred securities and common securities in
exchange for their securities, as described above under "--Exchange of Preferred
Securities for Junior Subordinated Debt Securities". However, the Property
Trustee will do so only after satisfying liabilities to creditors of the trust
as provided by applicable law and only if the Property Trustee determines that
an exchange distribution of this kind is practical.
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If the Property Trustee determines that an exchange distribution is not
practical, each holder of outstanding preferred securities will be entitled to
receive out of the assets of the trust available for distribution to holders,
after satisfaction of liabilities to creditors of the trust as provided by
applicable law, an amount equal to the Liquidation Distribution. The
"Liquidation Distribution" for any preferred securities will equal the aggregate
liquidation amount of those preferred securities plus all accrued and unpaid
distributions on them to the date of payment. If the Liquidation Distribution
for all outstanding preferred securities can be paid only in part because the
trust has insufficient assets available to pay it in full, the amounts payable
by the trust on the preferred securities will be paid pro rata, based on their
respective aggregate liquidation amounts.
On any liquidation of the trust, the holders of the common securities of the
trust will be entitled to receive distributions pro rata with the holders of the
preferred securities of such trust, unless a Trust Event of Default (as defined
below) has occurred and is continuing. In that case, the preferred securities
will have priority in right of payment over the common securities, as described
below under "--Priority over Common Securities".
PRIORITY OVER COMMON SECURITIES
Payment of distributions and the redemption price will be made in respect of
the preferred securities and the common securities pro rata, based on the
respective aggregate liquidation amounts of the two classes, except as follows.
If a Trust Event of Default (see the next subsection) has occurred and is
continuing, the trust will not pay any distribution or redemption price, or make
any Liquidation Distribution, in respect of its common securities on any day
unless any of the following have occurred:
- In the case of any distribution to be paid, all accumulated and unpaid
distributions on all outstanding preferred securities for all
distribution periods ending on or before the payment day have been paid
(or duly provided for) in cash.
- In the case of any redemption price to be paid, the redemption price on
all outstanding preferred securities called on or before the payment
day for redemption has been paid (or duly provided for) in cash.
- In the case of a Liquidation Distribution to be made, the Liquidation
Distribution on all outstanding preferred securities has been made (or
duly provided for).
Whenever any distribution or redemption price is due and payable in respect of
the preferred securities, the Property Trustee will apply all available funds to
the payment of those amounts in full in cash before making any payment in
respect of the common securities. The trust will not
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make any payment or other distribution in respect of its common securities
(including on account of any purchase or other acquisition) while its preferred
securities are outstanding, other than distributions, the redemption price and
the Liquidation Distribution on the terms set forth in the Declaration of Trust.
If a Trust Event of Default occurs, the holders of the common securities
will be deemed to have waived all rights to act with respect to the Trust Event
of Default until all Trust Events of Default have been cured, waived or
otherwise eliminated. Until that time, the Property Trustee will act solely on
behalf of the holders of the preferred securities and not on behalf of the
holders of the common securities, and only the holders of the preferred
securities will have the right to direct the Property Trustee to act on their
behalf.
Notwithstanding the foregoing, the holders of common securities may act with
respect to a Trust Event of Default that results solely from a default in the
payment of any amount due and payable on the common securities, or from a
default or breach under any covenant in the applicable Declaration of Trust made
solely for the benefit of the holders of common securities (a "Common Securities
Default"), subject to the following conditions. The action of the common
securities holders must not adversely affect the interests of the holders of
preferred securities and no Trust Event of Default (and no event or condition
that after the passage of time or giving of notice would result in a Trust Event
of Default) that is not a Common Securities Default may have occurred and be
continuing.
TRUST EVENTS OF DEFAULT
Any one of the following events will be a "Trust Event of Default" under
the Declaration of Trust. This will be the case regardless of the reason why
the event occurs, whether it is voluntary or involuntary, and whether or not it
results from operation of law, from any judgment, decree or order of any court
or from any order, rule or regulation of any administrative or governmental
body:
- the occurrence of an Event of Default under the Subordinated Indenture
(see "Description of the Junior Subordinated Debentures--Events of
Default");
- the default by the Property Trustee in the payment of any distribution
when it becomes due and payable and continuation of the default for 30
days;
- the default by the Property Trustee in the payment of any redemption
price when it becomes due and payable;
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- a material default or breach under any covenant or warranty of the
Issuer Trustees in a Declaration of Trust, and continuation of the
default or breach for 90 days after a notice of such default has been
given to such Issuer Trustees, which may be given only by the holders
of at least 25% in aggregate liquidation amount of the applicable
outstanding preferred securities, as provided under the Declaration of
Trust; or
- the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee if a successor Property Trustee has not
been appointed within 60 days.
Within five business days after learning about a Trust Event of Default, the
Property Trustee will notify the holders of the trust's outstanding preferred
securities and common securities, the Administrative Trustees and Owens Corning
unless the Trust Event of Default has been cured or waived. Owens Corning, as
Depositor, and the Administrative Trustees are obligated to file annually with
the Property Trustee a certificate as to whether or not they are in compliance
with all the conditions and covenants applicable to them under the applicable
Declaration of Trust.
ENFORCEMENT RIGHTS
If an Event of Default under the Subordinated Indenture occurs and is
continuing as to a series of Junior Subordinated Debentures, the Property
Trustee, as the holder of such Junior Subordinated Debentures, will have the
right to declare the principal of and premium and interest, if any, on the
Junior Subordinated Debentures, and any other amounts payable under the
Subordinated Indenture, due and payable and to enforce its other rights as a
creditor with respect to such Junior Subordinated Debentures.
This means, however, that as a holder of the related preferred securities,
you must rely on the Property Trustee to enforce its rights against Owens
Corning, subject to the following provisions.
Right to Direct Property Trustee's Actions
The holders of a majority in aggregate liquidation amount of outstanding
preferred securities of the trust will have the right to direct the time, method
and place of conducting any proceeding for any remedy available to, or
exercising any trust or power conferred on, the Property Trustee under the
Declaration of Trust, including the right to direct the Property Trustee to
exercise the remedies available to it as the holder of Junior Subordinated
Debentures. Accordingly, without the prior approval of the holders of a majority
in aggregate liquidation amount of the outstanding preferred securities of the
trust (or, in the case of any action that under the Subordinated Indenture may
be taken only with the prior consent of each affected
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holder of Junior Subordinated Debentures, without the prior consent of each
holder of outstanding preferred securities) the Property Trustee will not:
- direct the time, method or place of conducting any proceeding for any
remedy available to, or executing any trust or power conferred on, the
Debenture Trustee with respect to the Junior Subordinated Debentures.
- waive any past default that may be waived under the Subordinated
Indenture;
- exercise any right to rescind or annul a declaration that the aggregate
principal amount of the Junior Subordinated Debentures be due and
payable;
- consent to any amendment, modification or termination of the
Subordinated Indenture or the Junior Subordinated Debentures, if the
consent of any holder of such Junior Subordinated Debentures is
required under the Subordinated Indenture; or
- revoke any action previously authorized or approved by the holders of
the preferred securities except by, or with the subsequent
authorization or approval of, the holders of the preferred securities.
Before taking any of the actions described above, the Property Trustee must also
obtain an opinion of counsel, experienced in the following matters, to the
effect that the action will not cause the trust to be classified as an
association taxable as a corporation, or as other than a grantor trust, or cause
the Junior Subordinated Debentures to be treated as other than indebtedness of
Owens Corning, for U.S. federal income tax purposes. The Property Trustee will
notify the holders of preferred securities of any notice of default with respect
to the Junior Subordinated Debentures, in the manner described below under
"--Notices".
Any required approval of holders of preferred securities may be given by
written consent or at a meeting convened for that purpose. The Property Trustee
must cause a notice of any matter upon which holders of preferred securities are
to act by written consent, or of any meeting at which holders of preferred
securities are entitled to vote, to be given to the holders of preferred
securities in the manner described below under "--Notices".
Right of Direct Action
If an Event of Default under the Subordinated Indenture has occurred and is
continuing and is attributable to the failure of Owens Corning to pay any
interest or principal on Junior Subordinated Debentures when due and payable, a
holder of related preferred securities may begin a legal proceeding directly
against Owens Corning for enforcement of payment, to that
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holder, of the interest (including any Additional Sums) or principal due and
payable on Junior Subordinated Debentures having a principal amount equal to the
aggregate liquidation amount of that holder's preferred securities (a "Direct
Action"). We may not amend the Subordinated Indenture to remove the right of any
holder of outstanding preferred securities to bring a Direct Action without the
prior written consent of that holder. We will have the right under the
Subordinated Indenture to set off any payment made to a holder of preferred
securities in connection with a Direct Action. Except for the right to bring a
Direct Action, holders of preferred securities will not have the right to
exercise directly against Owens Corning any remedy available to a holder of
Junior Subordinated Debentures.
Right to Accelerate Junior Subordinated Debentures
The holders of certain minimum percentages of the outstanding preferred
securities will be entitled to exercise certain rights of the holders of the
Junior Subordinated Debentures under the Subordinated Indenture, if the holders
of Junior Subordinated Debentures do not do so. These rights include the right
to accelerate the maturity of the Junior Subordinated Debentures when an Event
of Default under the Subordinated Indenture has occurred and is continuing, to
cancel a declaration of acceleration of the Junior Subordinated Debentures and
to waive certain defaults under the Subordinated Indenture. See "Description of
the Junior Subordinated Debentures--Events of Default".
MERGERS, CONSOLIDATIONS, AMALGAMATIONS AND REPLACEMENTS OF THE TRUST
At the request of Owens Corning and without the consent of any holder of
preferred securities or any Issuer Trustee, the trust may merge with or into, or
consolidate or amalgamate with, or be replaced by, or convey, transfer or lease
its properties and assets substantially as an entirety to, another person (each,
a "Trust Successor Transaction"), but only if that other person is a trust
organized as such under the laws of any state in the United States and only if
all the following requirements are met:
- The successor entity (if not the trust) either expressly assumes all
the obligations of the trust with respect to the applicable preferred
securities or substitutes for the preferred securities other securities
having substantially the same terms as the preferred securities,
provided that the successor securities rank at least as high as the
preferred securities rank with regard to the priority in right of
payment of all distributions and other amounts payable upon
liquidation, redemption and otherwise.
- The successor entity (if not the trust) has a purpose identical to that
of the trust.
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- A trustee of the successor entity (if not the trust) possessing the
same powers and duties as the Property Trustee is appointed to hold the
Junior Subordinated Debentures.
- The successor securities (if any) are listed, or will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the preferred securities are then listed.
- The Trust Successor Transaction does not cause the preferred securities
(or any successor securities) of the trust to be downgraded by any
nationally recognized statistical rating organization that assigns
ratings to the preferred securities.
- The Trust Successor Transaction does not adversely affect the material
rights, preferences and privileges of the holders of the preferred
securities (or any successor securities) of the trust in any material
respect.
- Prior to the Trust Successor Transaction, Owens Corning and the trust
have received an opinion from independent counsel to Owens Corning and
the trust, experienced in the following matters, to the effect that (1)
the Trust Successor Transaction will not adversely affect the rights,
preferences and privileges of the holders of the preferred securities
(or any successor securities) of the trust in any material respect and
(2) upon completion of the Trust Successor Transaction, the trust or
the successor entity, as applicable, will not be required to register
as an investment company under the Investment Company Act.
- Owens Corning (or any permitted successor), together with its permitted
assignees, holds all the common securities of the trust or all
comparable securities of the successor entity, as applicable, and
guarantees the obligations of the successor entity (if not the trust)
in respect of the preferred securities (or any successor securities) of
the trust at least to the extent provided by the Guarantees.
Notwithstanding the foregoing, a trust may not engage in a Trust Successor
Transaction that would cause the trust or the successor entity, as applicable,
to be classified as an association taxable as a corporation or as other than a
grantor trust, or would cause the Junior Subordinated Debentures or any
successor securities to be treated as other than indebtedness of Owens Corning,
for U.S. federal income tax purposes, unless it first obtains the consent of all
holders of its outstanding preferred securities. Except as permitted under the
provisions described above, the trust may not engage in any Trust Successor
Transaction.
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VOTING RIGHTS; AMENDMENT OF A DECLARATION OF TRUST
Except as provided below and under "Description of Guarantees--Amendments,
Assignment and Succession", and as otherwise required by law and the
Declaration of Trust, the holders of preferred securities will have no voting
rights.
The holders of the trust's common securities and the Property Trustee,
without the consent of the holders of the trust's preferred securities, may
amend the applicable Declaration of Trust from time to time to do any of the
following:
- cure any ambiguity, or correct or supplement any provision that may be
inconsistent with any other provision, in the Declaration of Trust;
- make any provision with respect to matters or questions arising under
the Declaration of Trust that is not inconsistent with the other
provisions of the Declaration of Trust; and
- modify, eliminate or add to any provisions of the Declaration of Trust
to any extent that may be necessary to ensure that the trust will not
be taxable as a corporation or be classified as other than a grantor
trust, or to ensure that the Junior Subordinated Debentures are treated
as indebtedness of Owens Corning, for U.S. federal income tax purposes,
or to ensure that the trust will not be required to register as an
"investment company" under the Investment Company Act;
but only if the amendment does not adversely affect the interests of any holder
of preferred securities in any material respect and does not become effective
until notice of the amendment is given to the holders of preferred securities.
Owens Corning and the Issuer Trustees may also amend a Declaration of Trust
if:
- the holders of at least a majority in aggregate liquidation amount of
the outstanding preferred securities and common securities of the trust
consent to such amendment, and
- the Issuer Trustees receive an opinion of counsel to the effect that
the amendment or the exercise of any power granted to the Issuer
Trustees in accordance with the amendment will not result in the trust
being taxable as a corporation or being classified as other than a
grantor trust, or being required to register as an "investment company"
under the Investment Company Act or the Junior Subordinated Debentures
being treated as other than indebtedness of Owens Corning, for U.S.
federal income tax purposes.
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Notwithstanding the foregoing, each holder of preferred securities and common
securities of the trust must consent to an amendment of the Declaration of Trust
of the trust that:
- changes the amount or timing of any distribution or other payment, or
otherwise adversely affects the amount or timing of any distribution or
other payment required to be made as of a specified date, in respect of
that holder's preferred securities and common securities, or
- restricts the right of that holder to institute suit for the
enforcement of any payment on those preferred securities and common
securities on or after the date on which it becomes due and payable.
For the purpose of any vote or consent of holders of preferred securities,
any preferred securities owned by Owens Corning, any Issuer Trustee or any
affiliate of Owens Corning or any Issuer Trustee will be treated as if they were
not outstanding.
NOTICES
Notices to be given to holders of preferred securities held in book-entry
form will be given only to the Depositary in accordance with its applicable
procedures. Notices to be given to holders of preferred securities not held in
book-entry form may be given by mail to the respective addresses of the holders
as they appear in the Security register. Neither the failure to give any notice
to a particular holder, nor any defect in a notice given to a particular holder,
will affect the sufficiency of any notice given to another holder.
PAYMENT AND PAYING AGENCY
Payments in respect of any preferred securities held in book-entry form will
be made only to the Depositary or its nominee in accordance with its applicable
procedures. Payments in respect of any preferred securities not held in
book-entry form will be made at the offices of any Paying Agent. However, at the
option of Owens Corning, distributions payable on non-book-entry preferred
securities may be paid by check mailed to the persons entitled to receive them,
at their addresses appearing on the Security register on the relevant record
date.
The Property Trustee will initially serve as the Paying Agent. From time to
time, the Property Trustee may select one or more firms to act as the Paying
Agent or as co-Paying Agents. Each Paying Agent must be a bank or trust company
acceptable to the Administrative Trustees. A Paying Agent will be permitted to
resign as Paying Agent upon 30 days' written notice to the Property Trustee and
Owens Corning. In the event there is no Paying Agent, the Property Trustee will
appoint a firm to act as Paying Agent.
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If any distribution, redemption price or other amount is payable in respect
of the preferred securities on a day that is not a business day, the payment may
be made on the next succeeding business day unless that business day is in a
different calendar year, in which case the payment may be made on the next
preceding business day. Each payment made on the next succeeding or preceding
business day as described above may be made with the same force and effect as if
made on the day on which the payment is originally payable.
Any moneys deposited with the Property Trustee or any Paying Agent, or then
held in trust by Owens Corning or the trust, for the payment of any amount due
and payable on any preferred securities, and remaining unclaimed for two years
after the amount has become due and payable, will, at the request of Owens
Corning, be repaid to Owens Corning. Thereafter, the holders of those preferred
securities will look, as a general unsecured creditor, only to Owens Corning
for payment on the preferred securities.
REGISTRAR AND TRANSFER AGENT
The Property Trustee will act as registrar and transfer agent for the
preferred securities. The Property Trustee will exchange and register transfers
of preferred securities without charge by or on behalf of the trust, but will
require payment of any tax or other governmental charge that may be imposed in
connection with the exchange or transfer. If any preferred securities have been
called for redemption, the Property Trustee may refuse to register any transfer
of those preferred securities during a period beginning 15 days before the
redemption date.
BOOK-ENTRY PREFERRED SECURITIES
The preferred securities of the trust will be issued in the form of one or
more Global Securities. See "Book-Entry Securities" for additional information
about your limited rights as the beneficial owner of a Global Security.
REGARDING THE ISSUER TRUSTEES
Removal of Issuer Trustees
Unless an Event of Default under the Subordinated Indenture has occurred and
is continuing, any Issuer Trustee may be removed at any time by Owens Corning.
If an Event of Default with respect to any Junior Subordinated Debentures held
by the trust has occurred and is continuing, the Property Trustee and the
Delaware Trustee may be removed at such time by the holders of a majority in
liquidation amount of the outstanding related preferred securities of the trust.
In no event will the holders of preferred securities have the right to vote to
appoint, remove or replace the Administrative Trustees, which voting rights are
vested exclusively in Owens Corning as the
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holder of the common securities. No resignation or removal of an Issuer Trustee
and no appointment of a successor trustee will be effective until the acceptance
of appointment by the successor trustee in accordance with the provisions of the
applicable Declaration of Trust.
Co-trustees and Separate Property Trustee
Unless an Event of Default with respect to the preferred securities of the
trust shall have occurred and be continuing, Owens Corning will have the power
to appoint one or more persons as a co-trustee of the trust's property, to act
jointly with the Property Trustee, for the purpose of complying with the TIA or
with any other local law applicable to the trust's property. Such co-trustee
could also act as a separate trustee of such property. Owens Corning will have
the power to vest in such co-trustee any property, title, right or power deemed
necessary or desirable subject only to the limitations of the Declaration of
Trust. If an Event of Default with respect to any Junior Subordinated
Debentures has occurred or is continuing, the Property Trustee alone will have
the power to appoint a co-trustee.
MERGER, CONSOLIDATION, ETC.
If an Issuer Trustee merges, consolidates with or converts into, another
person, or another person succeeds to all or substantially all the corporate
trust business of that Issuer Trustee, that other person will be the successor
of that Issuer Trustee under the Declaration of Trust, but only if that other
person is qualified and eligible to be an Issuer Trustee.
DUTIES OF PROPERTY TRUSTEE
The Property Trustee undertakes to perform only those duties that are
specifically set forth in a Declaration of Trust, unless a Trust Event of
Default is continuing. In that event, the Property Trustee must exercise the
same degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, the Property
Trustee will have no obligation to exercise any of the powers vested in it by
the Declaration of Trust at the request of any holder of preferred securities
unless it is offered reasonable indemnity against the costs, expenses and
liabilities that it might incur as a result. If no Trust Event of Default is
continuing and the Property Trustee must decide between alternative causes of
action or construe ambiguous provisions in the Declaration of Trust, or is
unsure of the application of any provision of the Declaration of Trust, and the
matter is not one on which the holders of preferred securities and common
securities are entitled under the Declaration of Trust to vote, then the
Property Trustee may take any action that it deems to be advisable and in the
best interests of the holders of the preferred securities and common securities
and will have no liability except for its own bad faith, negligence or willful
misconduct.
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MISCELLANEOUS
The Declaration of Trust authorizes and directs the Administrative Trustees
and the Property Trustee to conduct the affairs of and to operate the trust so
that (1) the trust will not be required to register as an "investment company"
under the Investment Company Act or be classified as an association taxable as a
corporation or as other than a grantor trust for U.S. federal income tax
purposes and (2) the Junior Subordinated Debentures will be treated as
indebtedness of Owens Corning for U.S. federal income tax purposes. The
Declaration of Trust authorizes the Property Trustee and the holders of their
common securities to take any action, not inconsistent with applicable law, the
certificate of trust of the trust or the Declaration of Trust, that they (or
any successor entity) determine in their discretion to be necessary or
desirable for these purposes, as long as the action does not adversely affect
the interests of the holders of their preferred securities in any material
respect. Holders of preferred securities will have no preemptive or similar
rights.
GOVERNING LAW
The Declaration of Trust and the preferred securities and common securities
provide that they are to be governed by and construed in accordance with the
laws of Delaware.
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DESCRIPTION OF GUARANTEES
This section summarizes the main provisions of the Guarantee of the
preferred securities of Owens Corning Capital II but it does not describe all
the provisions. Consequently, this summary is qualified by reference to the
full text of the Guarantee. Upon an offering of preferred securities by Owens
Corning Capital IV, the applicable Guarantee, the terms of which will be
similar to the Guarantee described below, will be described in the prospectus
supplement. We have filed a form of the Guarantee as an exhibit to the
registration statement of which this prospectus forms a part.
This section uses terms that are defined in the Guarantees. Unless we define
those terms in this section, we intend them to have the meanings given them in
the Guarantees.
GENERAL
We will execute the Guarantee when the preferred securities of a trust are
issued. The guarantee will be qualified as an indenture under the TIA. The
Guarantee Trustee will hold the Guarantee for the benefit of the holders of the
preferred securities.
Under the Guarantee, we will irrevocably agree to pay in full, on a
subordinated basis and to the extent described below, to the holders of the
related preferred securities, the guarantee payments as and when due, regardless
of any defense, right of set-off or counterclaim that the trust may have or
assert other than the defense of payment. The following payments in respect of
any preferred securities, to the extent not paid by or on behalf of the trust,
are guarantee payments:
- any accumulated and unpaid distributions required to be paid on the
preferred securities, to the extent that the trust has funds legally
and immediately available to pay them;
- any redemption price, including accumulated and unpaid distributions to
the date of redemption, required to be paid on the preferred
securities, to the extent that the trust has funds legally and
immediately available to pay it; and
- upon a voluntary or involuntary termination, winding-up or liquidation
of the trust (unless the related Junior Subordinated Debentures are
distributed to holders of the preferred securities in exchange for
those securities), the lesser of (1) the payments made on liquidation
for the preferred securities and (2) the amount of assets of the trust
remaining available for distribution to holders of its preferred
securities after satisfaction of liabilities to creditors of the trust
as required by applicable law.
We may satisfy our obligation to make a guarantee payment by paying the required
amounts directly to the holders of the preferred securities or by causing the
trust to pay such amounts to the holders.
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We will be required to make payments under the Guarantee only to the extent
that the trust has funds sufficient to make payments in respect of its
obligations under the related preferred securities. If and to the extent we do
not make payments on the Junior Subordinated Debentures, the trust will not
have funds available to make payments on the preferred securities. However,
through the Guarantee, the Declaration of Trust, the Junior Subordinated
Debentures, the Subordinated Indenture and the related Expense Agreement, taken
together, we have fully, irrevocably and unconditionally guaranteed the trust's
obligations under the preferred securities. See "Relationship Among Preferred
Securities, Junior Subordinated Debentures and the Guarantees".
STATUS OF THE GUARANTEES
The Guarantee will be a general unsecured obligation of Owens Corning, that
will rank:
- Subordinate and junior in right of payment to all liabilities of Owens
Corning, including all Senior Debt and the Junior Subordinated
Debentures but excluding those liabilities of Owens Corning that rank
equally or subordinate by their terms,
- equally with each other Guarantee, the guarantee by Owens Corning of
certain payments required to be made in respect of the Junior
Subordinated Debentures, with the most senior preferred stock or
preference stock issued by Owens Corning now or in the future and with
any guarantee entered into by Owens Corning, now or in the future, with
respect to preferred stock or preference stock of any affiliate of
Owens Corning, and
- senior to Common Stock and any other class or series of capital stock
issued by Owens Corning or any of its affiliates which by its express
terms ranks junior to such Guarantee in the payment of dividends and
amounts on liquidation, dissolution and winding-up.
On the bankruptcy, liquidation or winding-up of Owens Corning, its obligations
under the Guarantee will rank junior to all its other liabilities. Therefore,
funds may not be available for payment under the Guarantee.
The Guarantee will be held for the benefit of the holders of the related
preferred securities. The Guarantee will not be discharged except by payment of
the guarantee payments in full to the extent not paid by the trust or upon
distribution to the holders of the preferred securities of Junior Subordinated
Debentures. The Guarantee does not place any limitation on the amount of
additional Senior Debt that may be incurred by Owens Corning. We expect from
time to time to incur additional indebtedness constituting Senior Debt.
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AMENDMENTS, ASSIGNMENT AND SUCCESSION
The Guarantee may not be amended without the prior approval of the holders
of a majority in the aggregate liquidation amount of the related outstanding
preferred securities, other than in ways that do not adversely affect the
rights of holders of the preferred securities in any material respect (in which
case no approval will be required). The manner of obtaining any such approval
will be similar to the manner in which any approval to amend the Declaration of
Trust may be obtained. See "Description of the Preferred Securities--Voting
Rights; Amendment of the Declaration of Trust".
We may not assign our obligations under the Guarantee without obtaining the
approval of the holders required to amend that agreement. However, any permitted
successor to Owens Corning's obligations under the Subordinated Indenture will
also succeed to its obligations under the Guarantee. See "Description of the
Junior Subordinated Debentures--Consolidation, Merger, Sale of Assets and Other
Transactions". The Guarantee will bind Owens Corning's successors, assigns,
receivers, trustees and representatives and will inure to the benefit of the
holders of the applicable outstanding preferred securities.
EVENTS OF DEFAULT
An event of default under the Guarantee will occur if we fail to make any
guarantee payment when obligated to do so, or if we fail to perform any other
obligation and the default remains unremedied for 30 days. The holders of a
majority in aggregate liquidation amount of the related outstanding preferred
securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee or
to direct the exercise of any trust or power conferred upon the Guarantee
Trustee under the applicable Guarantee.
The Guarantee will guarantee payment and not collection. This means that
any holder of outstanding preferred securities may begin a legal proceeding
directly against Owens Corning to enforce its rights under the Guarantee without
first beginning a legal proceeding against the applicable trust, the Guarantee
Trustee or any other party.
If the Guarantee Trustee fails to enforce the Guarantee, any record holder
of preferred securities to which the Guarantee relates may institute a legal
proceeding directly against Owens Corning to enforce the Guarantee Trustee's
rights under the Guarantee without first instituting a legal proceeding against
the applicable trust, the Guarantee Trustee or any other person or entity.
Notwithstanding the foregoing, if Owens Corning has failed to make a guarantee
payment under the Guarantee, a record holder of preferred securities to which
such Guarantee relates may directly institute a proceeding against Owens
Corning for enforcement of
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the Guarantee for such payment to the record holder of the preferred securities
to which the Guarantee relates of the principal of or interest on the
applicable Junior Subordinated Debentures on or after the respective due dates
specified in the Junior Subordinated Debentures, and the amount of the payment
will be based on the holder's pro rata share of the amount due and owing on all
of the preferred securities to which the Guarantee relates. Owens Corning has
waived any right or remedy to require that any action be brought first against
the trust or any other person or entity before proceeding directly against
Owens Corning. The record holder in the case of the issuance of one or more
global preferred securities certificates will be The Depositary Trust Company
acting at the direction of the beneficial owners of the preferred securities.
Owens Corning, as guarantor, will be obligated to file annually with the
Guarantee Trustee a certificate as to its compliance with all the conditions and
covenants applicable to it under the Guarantee.
REGARDING THE GUARANTEE TRUSTEE
The Guarantee Trustee undertakes to perform only those duties that are
specifically set forth in the Guarantee, except that, if Owens Corning were to
default under the Guarantee, it must exercise the same degree of care and skill
as a prudent person would exercise or use in the conduct of his or her own
affairs. Subject to this provision, the Guarantee Trustee is under no
obligation to exercise any of the powers vested in it by the Guarantee at the
request of any holder of preferred securities unless it is offered reasonable
indemnity against the costs, expenses and liabilities that it might incur as a
result.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force or effect when:
- the guarantee payments have been paid in full by Owens Corning, the
trust or both; or
- the related Junior Subordinated Debentures are distributed to the
holders of the applicable preferred securities in exchange for their
securities.
Until that time, the Guarantees will remain in full force and effect. In
addition, the Guarantee will continue to be effective or will be reinstated, as
the case may be, if at any time any holder of related preferred securities must
restore payment of any sums paid to it under the preferred securities or the
Guarantee.
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GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the laws
of the State of New York.
EXPENSE AGREEMENTS
Pursuant to the Expense Agreement entered into by Owens Corning under the
Declaration of Trust (each, an "Expense Agreement"), we will irrevocably and
unconditionally guarantee to each person or entity to whom a trust becomes
indebted or liable, the full payment of any costs, expenses or liabilities of
such trust, other than obligations of the trust to pay to the holders of any
preferred securities or other similar interests in the trust the amounts due
such holders pursuant to the terms of the preferred securities or such other
similar interests, as the case may be.
RELATIONSHIP AMONG PREFERRED SECURITIES, JUNIOR SUBORDINATED
DEBENTURES, GUARANTEES AND EXPENSE AGREEMENTS
FULL AND UNCONDITIONAL GUARANTEES
Taken together, our obligations under the Declaration of Trust of Owens
Corning Capital II, the Junior Subordinated Debentures, the Subordinated
Indenture, the Guarantees and the Expense Agreements provide a full, irrevocable
and unconditional guarantee of Owens Corning Capital II's obligations under the
related preferred securities. No single document standing alone or operating in
conjunction with fewer than all the other documents provides this guarantee. It
is only the combined operation of these documents that has the effect of
providing a full, irrevocable and unconditional guarantee of the trust's
obligations under the preferred securities. Upon an offering of securities by
Owens Corning Capital IV the relationship among the preferred securities, the
Debt Securities, the Guarantee, the Indenture, the Expense Agreement and the
Declaration of Trust of Owens Corning Capital IV will be described in the
prospectus supplement.
If and to the extent that we do not make payments on the Junior Subordinated
Debentures, the trust will not have funds available for payments on the
preferred securities. The Guarantee will not apply to payment of any amounts
due on the preferred securities when the trust does not have available funds to
pay those amounts. In that event, the remedy of a holder of preferred securities
is to exercise its right of direct action--that is, to begin a legal proceeding
directly against Owens Corning for enforcement of Owens Corning's obligations
under the Junior Subordinated Debentures having a principal amount equal to the
liquidation amount of the preferred securities held by the holder.
If we make payment on the Junior Subordinated Debentures and the trust has
funds available to make payments on the preferred securities but fails to do so,
a holder of preferred securities may
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begin a legal proceeding against Owens Corning to enforce Owens Corning's
obligations under the related Guarantee to make these payments. In the event
that the trust receives payments on the Junior Subordinated Debentures, but
these funds are unavailable for payment on the preferred securities because of
claims made by creditors of the trust, Owens Corning would be obligated under
the related Expense Agreement to pay those claims.
The obligations of Owens Corning under the Junior Subordinated Debentures
are junior in right of payment to all Senior Debt of Owens Corning. They are
subordinated in the manner described in "Description of the Junior Subordinated
Debentures--Subordination". The obligations of Owens Corning under the
Guarantees and the Expense Agreements are subordinated in right of payment to
all liabilities of Owens Corning (other than similar guarantees and expense
agreements), including liabilities to trade creditors, and will rank equally
with the most senior class of preferred stock that Owens Corning may issue.
SUFFICIENCY OF PAYMENTS
As long as payments are made when due on the related Junior Subordinated
Debentures, those payments should be sufficient to fund distributions and other
amounts payable on the preferred securities, primarily because:
- The aggregate principal amount of the related Junior Subordinated
Debentures will equal the aggregate liquidation amount of the preferred
securities and the common securities.
- The interest rate, interest payment dates and other payment dates for
the related Junior Subordinated Debentures will match the distribution
rate, distribution dates and other payment dates for the preferred
securities.
- The Expense Agreement provides that we will pay any and all costs,
expenses and liabilities of the applicable trust, other than the
trust's obligations under the preferred securities and common
securities.
- The Declaration of Trust provides that the trust will not engage in
any activity that is not consistent with the limited purposes of the
trust.
Notwithstanding anything to the contrary in the Subordinated Indenture, we
have the right to set off any payment we make under the Guarantee in respect of
the preferred securities against any payment we would otherwise be required to
make under the Subordinated Indenture in respect of the related Junior
Subordinated Debentures.
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ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES
A holder of preferred securities may begin a legal proceeding directly
against Owens Corning to enforce its right of direct action under the
Subordinated Indenture without first beginning a legal proceeding against the
trust, the Property Trustee or any other party. A holder of preferred securities
may also begin a legal proceeding directly against Owens Corning to enforce its
rights under the Guarantee without first instituting a legal proceeding against
the Guarantee Trustee, the trust or any other party.
A default or event of default under any Senior Debt of Owens Corning would
not be a default with respect to the preferred securities or the Junior
Subordinated Debentures. However, in the event of a payment default under, or
acceleration of, any Senior Debt of Owens Corning, the subordination provisions
of the Subordinated Indenture, the Guarantees and the Expense Agreements provide
that no payments may be made in respect of the Junior Subordinated Debentures,
the Guarantees or the Expense Agreements until the Senior Debt has been paid in
full or any payment default under that debt has been cured or waived. See
"Description of the Junior Subordinated Debentures--Subordination".
LIMITED PURPOSE OF TRUST
The preferred securities evidence a preferred undivided beneficial interest
in the assets of the trust, and the trust exist solely to issue and
sell the preferred securities and common securities, invest the sale proceeds in
Junior Subordinated Debentures (or, if so provided in an amended and restated
declaration of trust, other debt securities) and engage only in such other
activities as may be necessary or incidental to those activities. A principal
difference between the rights of a holder of preferred securities against the
trust and those of a holder of Junior Subordinated Debentures against Owens
Corning is that a holder of Junior Subordinated Debentures is entitled to
receive from Owens Corning all amounts payable on the preferred securities,
while a holder of preferred securities is entitled to receive from the related
trust (or from Owens Corning under the Guarantee) amounts payable on the
Junior Subordinated Debentures only if and to the extent the trust has funds
available to pay those amounts.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary dissolution of the trust, the holders of
related preferred securities will be entitled to receive a Like Amount of
related Junior Subordinated Debentures in exchange for their preferred
securities, subject to prior satisfaction of liabilities to creditors of the
trust as required by applicable law. If the Property Trustee determines that a
distribution of Junior Subordinated Debentures is not practical, the holders of
the preferred securities will be entitled to receive the Liquidation
Distribution out of the assets held by the trust after satisfaction
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of those liabilities. See "Description of the Preferred Securities--Liquidation
Distribution upon Dissolution".
Upon any voluntary or involuntary liquidation or bankruptcy of Owens
Corning, the Property Trustee, as registered holder of Junior Subordinated
Debentures, would be a subordinated creditor of Owens Corning, junior in right
of payment to all Senior Debt as set forth in the Subordinated Indenture.
However, the Property Trustee would be entitled to receive payment in full of
all amounts payable with respect to the Junior Subordinated Debentures before
any holders of Owens Corning capital stock receive payments or distributions.
In the light of the effective guarantee provided by the combined operation
of the documents described above and the subordinated status of the obligations
they evidence, the positions of a holder of preferred securities and a holder of
Junior Subordinated Debentures, relative to other creditors and to stockholders
of Owens Corning, in the event of liquidation or bankruptcy of Owens Corning,
should be substantially the same.
PLAN OF DISTRIBUTION
We may sell any of the Securities in any one or more of the following ways
from time to time: (1) through agents; (2) to or through underwriters; (3)
through dealers; and (4) directly by Owens Corning or, in the case of preferred
securities, by the trusts to purchasers.
The Prospectus Supplement with respect to the Securities will set forth the
terms of the offering of the Securities, including the name or names of any
underwriters, dealers or agents; the purchase price of the Securities and the
proceeds to us and/or a trust from such sale; any underwriting discounts and
commissions or agency fees and other items constituting underwriters' or agents'
compensation; any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers and any securities exchange on which
such Securities may be listed.
We (directly or through agents) may sell, and the underwriters may resell,
the Securities in one or more transactions, including negotiated transactions,
at a fixed public offering price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
We may sell Common Stock in one or more transactions on the New York Stock
Exchange or in negotiated transactions or a combination of such methods of sale,
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
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Offers to purchase Securities may be solicited by agents designated by us
from time to time. Any such agent involved in the offer or sale of the
Securities in respect of which this prospectus is delivered will be named, and
any commissions payable by us and/or a trust to such agent will be set forth in
the applicable prospectus supplement. Unless otherwise indicated in such
prospectus supplement, any such agent will be acting on a reasonable best
efforts basis for the period of its appointment. Any such agent may be deemed to
be an underwriter, as that term is defined in the Securities Act, of the
Securities so offered and sold.
If Securities are sold by means of an underwritten offering, Owens Corning
and/or the applicable trust will execute an underwriting agreement with an
underwriter or underwriters at the time an agreement for such sale is reached,
and the names of the specific managing underwriter or underwriters, as well as
any other underwriters, and the terms of the transaction, including commissions,
discounts and any other compensation of the underwriters and dealers, if any,
will be set forth in the applicable prospectus supplement which will be used by
the underwriters to make resales of the Securities in respect of which this
prospectus is delivered to the public. If underwriters are utilized in the sale
of the Securities, the Securities will be acquired by the underwriters for their
own account and may be resold from time to time in one or more transactions,
including negotiated transactions, at fixed public offering prices or at varying
prices determined by the underwriter at the time of sale. Securities may be
offered to the public either through underwriting syndicates represented by
managing underwriters or directly by the managing underwriters. If any
underwriter or underwriters are utilized in the sale of the Securities, unless
otherwise indicated in the prospectus supplement, the underwriting agreement
will provide that the obligations of the underwriters are subject to certain
conditions precedent and that the underwriters with respect to a sale of
Securities will be obligated to purchase all such Securities of a series if any
are purchased.
If a dealer is utilized in the sales of the Securities, Owens Corning and/or
the applicable trust will sell such Securities to the dealer as principal. The
dealer may then resell such Securities to the public at varying prices to be
determined by such dealer at the time of resale. Any such dealer may be deemed
to be an underwriter, as such term is defined in the Securities Act, of the
Securities so offered and sold. The name of the dealer and the terms of the
transaction will be set forth in the prospectus supplement relating to such
sale.
Offers to purchase Securities may be solicited directly by us and/or the
applicable trust and such sale may be made by us and/or the applicable trust
directly to institutional investors or others, who may be deemed to be
underwriters within the meaning of the Securities Act with respect to any resale
thereof. The terms of any such sales will be described in the prospectus
supplement relating thereto.
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Agents, underwriters and dealers may be entitled under relevant agreements
to indemnification or contribution by us and/or the applicable trust against
certain liabilities, including liabilities under the Securities Act.
Agents, underwriters and dealers may be customers of, engage in transactions
with, or perform services for, Owens Corning and its subsidiaries in the
ordinary course of business.
Owens Corning or a trust, as applicable, may grant to the underwriters
options to purchase additional Securities, to cover over-allotments, if any, at
the initial public offering price (with additional underwriting commissions or
discounts) specified in the applicable prospectus supplement. The terms of any
over-allotment option granted by Owens Corning or a trust will be described in
the applicable prospectus supplement.
Securities may also be offered and sold, if so indicated in the applicable
prospectus supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or otherwise,
by one or more remarketing firms acting as principals for their own accounts or
as agents for us and/or the applicable trust. Any remarketing firm will be
identified and the terms of its agreement, if any, with its compensation will be
described in the applicable prospectus supplement. Remarketing firms may be
deemed to be underwriters, as such term is defined in the Securities Act, in
connection with the Securities that are remarketed. Remarketing firms may be
entitled under agreements which may be entered into with us and/or the
applicable trust against certain civil liabilities, including liabilities under
the Securities Act, and may be customers of, engage in transactions with or
perform services for Owens Corning and its subsidiaries in the ordinary course
of business.
If so indicated in the applicable prospectus supplement, Owens Corning
and/or the applicable trust may authorize agents, underwriters or dealers to
solicit offers by certain types of institutions to purchase Securities from
Owens Corning and/or the applicable trust at the public offering prices set
forth in the applicable prospectus supplement pursuant to delayed delivery
contracts ("Contracts") providing for payment and delivery on a specified date
or dates in the future. A commission indicated in the applicable prospectus
supplement will be paid to underwriters, dealers and agents soliciting purchases
of Securities pursuant to Contracts accepted by us and/or the applicable trust.
If so indicated in the applicable prospectus supplement, in connection with
the offering of any Securities issued by any trust, convertible or exchangeable
into common securities, Owens Corning may be offered the opportunity to purchase
such Securities concurrently with a public offering at the public offering price
less any applicable underwriting discounts and commissions.
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LEGAL OPINIONS
The validity of the Securities will be passed upon for Owens Corning and the
trusts by Shearman & Sterling, New York, New York. Certain matters of Delaware
law with respect to the validity of the preferred securities will be passed upon
for the trusts by Morris, Nichols, Arsht & Tunnell, special Delaware counsel to
Owens Corning. The validity of the Securities will be passed upon for the
underwriters, dealers or agents, if any, by counsel to be named in the
applicable prospectus supplement.
EXPERTS
The financial statements and schedules incorporated in this Prospectus by
reference to the Annual Report of Owens Corning on Form 10-K for the year ended
December 31, 1998 have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and are
incorporated in this Prospectus by reference in reliance upon the authority of
such firm as experts in giving such reports.
The consolidated financial statements of Owens Corning included in any
subsequent Annual Report of Owens Corning on Form 10-K and incorporated by
reference in this Prospectus will have been examined by the independent public
accountants whose report thereon appears in such Annual Report. Such
consolidated financial statements of Owens Corning shall be deemed to be
incorporated herein from the date of filing the applicable report on Form 10-K
in reliance on the reports of such independent public accountants, given on the
authority of such firm as experts in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses (other than underwriting
discounts and commissions) expected to be incurred in connection with the
issuance and distribution of the securities being registered. Except for the
Securities and Exchange Commission filing fee, all amounts shown are estimates:
Registration Fee............................................ $ 125,100
Rating Agency Fees.......................................... 300,000
Accountants' Fees and Expenses.............................. 6,000
Counsel's Fees and Expenses................................. 85,000
Printing and Engraving Expenses............................. 5,000
Transfer Agent and Registrar................................ 10,000
Fees and Expenses of Trustees............................... 17,500
Miscellaneous............................................... 6,400
----------
Total....................................................... $ 540,000
==========
* To be filed by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
A. Reference is made to Section 102(b)(7) of the General Corporation
Law of the State of Delaware as to the limitation of personal liability of
directors and officers and to Section 145 of the General Corporation Law of the
State of Delaware as to indemnification by the Company of its directors and
officers. Delaware law provides that a corporation may eliminate or limit the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director: (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders;
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) for wilful or negligent payments
of unlawful dividends or unlawful stock repurchases or redemptions; or (iv) for
any transaction
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from which the director derived an improper personal benefit. Delaware law also
provides that a corporation may indemnify its directors, officers, employees or
agents against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by them in
connection with any action, suit or proceeding brought by third parties to which
they may be made parties by reason of their being or having been directors,
officers, employees or agents, and shall so indemnify directors and officers
only if they acted in good faith and in a manner they reasonably believed to be
in or not opposed to the best interests of the corporation, and with respect to
any criminal action or proceeding, had no reasonable cause to believe their
conduct was unlawful.
B. Article FOURTEENTH of our Certificate of Incorporation, as amended,
provides as follows with respect to the indemnification of our directors and
officers and the limitation of personal liability of its directors and officers:
FOURTEENTH: The corporation shall indemnify to the full extent
authorized or permitted by law any person made, or threatened to be made, a
party to any action or proceeding (whether civil or criminal or otherwise) by
reason of the fact that he, his testator or intestate, is or was a director or
officer of the corporation or by reason of the fact that such director or
officer, at the request of the corporation, is or was serving any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, in any capacity. Nothing contained herein shall affect any rights to
indemnification to which employees other than directors and officers may be
entitled by law. No director of the corporation shall be personally liable to
the corporation or its stockholders for monetary damages for any breach of
fiduciary duty by such a director as a director. Notwithstanding the foregoing
sentence, a director shall be liable to the extent provided by applicable law
(i) for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the Delaware General Corporation Law, or (iv) for any transaction from
which such director derived an improper personal benefit. No amendment to or
repeal of this Article FOURTEENTH shall apply to or have any effect on the
liability or alleged liability of any director of the corporation for or with
respect to any acts or omissions of such director occurring prior to such
amendment.
C. Article IX of our By-Laws provides as follows with respect to the
indemnification of our directors and officers and of certain other persons:
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ARTICLE IX
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation shall, to the fullest extent permitted by applicable
law from time to time in effect (but, in the case of any amendment of such law,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than such law permitted the Corporation to
provide prior to such amendment), indemnify any and all persons who may serve or
who have served at any time as directors or officers of the Corporation, or who
at the request of the Corporation may serve or at any time have served as
directors, officers, employees or agents of another corporation (including
subsidiaries of the Corporation) or of any partnership, joint venture, trust or
other enterprise, and any directors or officers of the Corporation who at the
request of the Corporation may serve or at any time have served as agents or
fiduciaries of an employee benefit plan of the Corporation or any of its
subsidiaries, from and against any and all of the expenses, liabilities or other
matters referred to in or covered by law whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent. The Corporation may also indemnify any and all other persons whom it
shall have power to indemnify under any applicable law from time to time in
effect to the extent permitted by such law. The indemnification provided by this
Article IX shall not be deemed exclusive of any other rights to which any person
may be entitled under any provision of the Certificate of Incorporation, other
By-Law, agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office, and shall be contract rights and continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
If a claim under this Article IX is not paid in full by the Corporation
within sixty days after a written claim has been received by the Corporation,
except in the case of a claim for an advancement of expenses, in which case the
applicable period shall be twenty days, the director or officer may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the director or officer shall be entitled to be paid
also the expense of prosecuting or defending such suit. In (i) any suit brought
by the director or officer to enforce a right to indemnification hereunder (but
not in a suit brought by the director or officer to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) any suit by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the Corporation shall be entitled to recover such expenses upon a
final adjudication that, the director or officer has not met any applicable
standard for indemnification set forth in the Delaware General Corporation Law.
Neither the failure of the Corporation (including its Board of Directors, its
independent legal counsel, or its stockholders) to have made a
II-3
<PAGE> 89
determination prior to the commencement of such suit that indemnification of the
director or officer is proper in the circumstances because the director or
officer has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the Corporation
(including its Board, its independent legal counsel, or its stockholders) that
the director or officer has not met such applicable standard of conduct, shall
create a presumption that the director or officer has not met the applicable
standard of conduct or, in the case of such a suit brought by the director or
officer, be a defense to such suit. In any suit brought by the director or
officer to enforce a right to indemnification or to an advancement of expenses
hereunder, or by the Corporation to recover an advancement of expenses pursuant
to the terms of an undertaking, the burden of proving that the director or
officer is not entitled to be indemnified, or to such advancement of expenses,
under this Article IX or otherwise shall be on the Corporation.
The indemnification provided in this Article IX shall inure to each
person referred to herein, whether or not the person is serving in any of the
enumerated capacities at the time such expenses (including attorneys' fees),
judgments, fines or amounts paid in settlement are imposed or incurred, and
whether or not the claim asserted against him is based on matters which antedate
the adoption of this Article IX. None of the provisions of this Article IX shall
be construed as a limitation upon the right of the Corporation to exercise its
general power to enter into a contract or understanding of indemnity with a
director, officer, employee, agent or any other person in any proper case not
provided for herein. Each person who shall act or have acted as a director or
officer of the Corporation shall be deemed to be doing so in reliance upon such
right of indemnification.
For purposes of this Article IX, the term "Corporation" shall include
constituent corporations referred to in subsection (h) of Section 145 of the
General Corporation Law of the State of Delaware (or any similar provision of
applicable law at the time in effect).
D. We have entered into an Indemnity Agreement with each member of our
Board of Directors. Each Indemnity Agreement provides, among other things, that
in the event the director was, is or becomes a party, witness or other
participant in a Claim (as defined in the Indemnity Agreement) by reason of (or
arising in part out of) an Indemnifiable Event (as defined in the Indemnity
Agreement), we are required to indemnify the director to the fullest extent
authorized by our By-Laws as in effect on the date of the Indemnification
Agreement notwithstanding any subsequent amendment, repeal or modification of
such By-Laws, against any and all expenses, judgments, fines, penalties and
amounts paid in settlement of such Claim. The Indemnity Agreement requires that
we advance to the director all expenses relating to Claims and contains an
undertaking by the director to reimburse us for any such advances that are
subsequently determined in a final judicial determination to have been
impermissible under applicable law.
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<PAGE> 90
E. Our directors and officers are covered by insurance policies,
maintained by us at our expense, insuring the directors and officers against
certain liabilities which might be incurred by them in such capacities,
including liabilities arising under the Securities Act of 1933.
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<PAGE> 91
ITEM 16. EXHIBITS.
The following Exhibits are filed as part of this Registration Statement:
EXHIBIT NO. EXHIBIT
----------- -------
1.1 Form of Underwriting Agreement for the Debt Securities.*
1.2 Form of Underwriting Agreement for the Preferred Stock.*
1.3 Form of Underwriting Agreement for the Common Stock.*
1.4 Form of Underwriting Agreement for the Junior Subordinated Debentures.*
1.5 Form of Underwriting Agreement for the Preferred Securities.*
1.6 Form of Underwriting Agreement for the Stock Purchase Contracts.*
4.1 Form of Indenture dated as of May 5, 1997, between Owens Corning and
The Bank of New York (incorporated by reference to Exhibit 4.5.1 to our
registration statement on Form S-3 (File No. 333-47961) dated March 13,
1998.)**
4.2 Form of Junior Subordinated Indenture between Owens Corning and
Wilmington Trust Company, as Trustee (incorporated by reference to
Exhibit 4.12.1 to the registration statement of Owens Corning, Owens
Corning Capital II and Owens Corning Capital III on Form S-3 (File No.
333-24501) dated April 3, 1997).**
4.3.1 Specimen Certificate of our Common Stock (incorporated by reference to
Exhibit 99 to our Annual Report on Form 10-K (File No. 1-3660) for the
fiscal year ended December 31, 1996).**
4.3.2 Form of Debt Securities.*
4.3.3 Form of Warrants.*
4.3.4 Form of Stock Purchase Contract.*
4.3.5 Form of Pledge Agreement.*
4.4 Form of Warrant Agreement.*
4.5. Form of Stock Purchase Contract Agreement.*
4.6.1 Certificate of Trust of Owens Corning Capital II (incorporated by
reference to Exhibit 4.8.1 to the registration statement on Form S-3
(Reg. No. 333-24501) of Owens Corning, Owens Corning Capital II and
Owens Corning Capital III, dated April 13, 1997).**
4.6.2 Declaration of Trust of Owens Corning Capital II (incorporated by
reference to Exhibit 4.8.2 to the registration statement of Owens
Corning, Owens Corning Capital II and Owens Corning Capital III on Form
S-3 (File No. 333-24501) dated April 3, 1997).**
4.6.3 Form of Amended and Restated Trust Agreement for Owens Corning Capital
II (incorporated by reference to Exhibit 4.10.1 to the registration
statement of Owens Corning, Owens Corning Capital II and Owens Corning
Capital III on Form S-3 (File No. 333-24501) dated April 3, 1997).**
4.6.4 Certificate of Trust of Owens Corning Capital IV.
II-6
<PAGE> 92
EXHIBIT NO. EXHIBIT
----------- -------
4.6.5 Declaration of Trust of Owens Corning Capital IV.
4.6.6 Form of Amended and Restated Trust Agreement for Owens Corning Capital
IV.
4.7.1 Form of Preferred Security Certificate for Owens Corning Capital II
(included as Exhibit A-1 to the Amended and Restated Trust Agreement
for Owens Corning Capital II (Exhibit 4.6.3)).**
4.7.2 Form of Preferred Security Certificate for Owens Corning Capital IV
(included as Exhibit A-1 to the Amended and Restated Trust Agreement
for Owens Corning Capital IV (Exhibit 4.6.6)).*
4.8.1 Form of Guarantee Agreement in respect of Owens Corning Capital II
(incorporated by reference to Exhibit 4.10.3 to Owens Corning's
registration statement on Form S-3 (Reg. No. 333-24501) of Owens
Corning, Owens Corning Capital II and Owens Corning Capital III, dated
April 13, 1997).**
4.8.2 Form of Guarantee Agreement in respect of Owens Corning Capital IV.*
5.1.1 Opinion of Shearman & Sterling as to the legality of the Securities
(other than the Preferred Securities of the trusts) being registered.
5.1.2 Opinion of Morris, Nichols, Arsht & Tunnell, special Delaware counsel,
relating to the legality of the Preferred Securities of Owens Corning
Capital II and Owens Corning Capital III.
10.1 Rights Agreement dated as of December 12, 1996, between Owens Corning
and The Chase Manhattan Bank of New York (incorporated by reference to
Exhibit (1) to Owens Corning's registration statement on Form 8-A (File
No. 1-3660) dated December 19, 1996).**
12.1 Computation of Ratio of Earnings to Fixed Charges and Ratio of Earnings
to Fixed Charges and Preferred Stock Dividends.
23.1 Consent of Arthur Andersen LLP, independent public accountants.
23.2 Consent of Shearman & Sterling (included in Exhibit 5.1.1).
23.3 Consent of Morris, Nichols, Arsht & Tunnell, special Delaware counsel
(included in Exhibit 5.1.2).
24 Powers of Attorney (included in signature pages).**
25.1 Form T-1 Statement of Eligibility of The Bank of New York, as Trustee
under the Indenture.**
25.2 Form T-1 Statement of Eligibility of Wilmington Trust Company, as
Institutional Trustee under the Amended and Restated Trust Agreement of
Owens Corning Capital II.**
25.3 Form T-1 Statement of Eligibility of Wilmington Trust Company, as
Institutional Trustee under the Amended and Restated Trust Agreement of
Owens Corning Capital IV.
25.4 Form T-1 Statement of Eligibility of Wilmington Trust Company, as
Guarantee Trustee under the Guarantee for Owens Corning Capital II.**
II-7
<PAGE> 93
EXHIBIT NO. EXHIBIT
----------- -------
25.5 Form T-1 Statement of Eligibility of Wilmington Trust Company, as
Guarantee Trustee under the Guarantee for Owens Corning Capital IV.
25.6 Form T-1 Statement of Eligibility of Wilmington Trust Company, as
Trustee under the Junior Subordinated Indenture.**
- ------------
* To be filed by Owens-Corning as an exhibit to a report on Form 8-K pursuant
to Item 601 and incorporated by reference herein.
** Previously filed.
ITEM 17. UNDERTAKINGS.
(A) RULE 415 OFFERING.
The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or its most
recent post-effective amendment) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to the Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
II-8
<PAGE> 94
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) of this section
do not apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Company
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(B) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE.
The undersigned Registrants hereby further undertake that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Company's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(C) POLICY REGARDING INDEMNIFICATION.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrants pursuant to the foregoing provisions, or otherwise, the
Registrants have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by any Registrant of expenses
incurred or paid by a director, officer or controlling person of a Registrant in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, such Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-9
<PAGE> 95
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Owens
Corning certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Registration
Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Toledo, State of Ohio, on June 14, 1999.
OWENS CORNING
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Chairman of the Board, Chief June 15, 1999
----------------------------- Executive Officer and Director
(GLEN H. HINER) (principal executive officer)
* Senior Vice President and Chief June 15, 1999
----------------------------- Financial Officer (principal
(J. THURSTON ROACH) financial officer)
* Vice President and Controller June 15, 1999
-----------------------------
(STEVEN J. STROBEL)
* Director June 15, 1999
-----------------------------
(CURTIS H. BARNETTE)
* Director June 15, 1999
-----------------------------
(NORMAN P. BLAKE JR.)
Director June 15, 1999
-----------------------------
(GASTON CAPERTON)
Director June 15, 1999
-----------------------------
(LEONARD S. COLEMAN, JR.)
Director June 15, 1999
-----------------------------
(WILLIAM W. COLVILLE)
* Director June 15, 1999
-----------------------------
(LANDON HILLIARD)
</TABLE>
II-10
<PAGE> 96
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Director June 15, 1999
-----------------------------
(JON M. HUNTSMAN, JR.)
* Director June 15, 1999
-----------------------------
(ANN IVERSON)
* Director June 15, 1999
-----------------------------
(W. WALKER LEWIS)
* Director June 15, 1999
-----------------------------
(FURMAN C. MOSELEY, JR.)
* Director June 15, 1999
-----------------------------
(W. ANN REYNOLDS)
* BY: /S/ MICHAEL I. MILLER
---------------------------------
MICHAEL I. MILLER
ATTORNEY-IN-FACT
</TABLE>
II-11
<PAGE> 97
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, Owens Corning
Capital II certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Toledo, State of Ohio, on June 15, 1999.
OWENS CORNING CAPITAL II
By: OWENS CORNING, as Depositor
By: /s/ Michael I. Miller
---------------------
Name: Michael I. Miller
Title: Vice President and Treasurer
<PAGE> 98
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, Owens
Corning Capital IV certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Toledo, State of Ohio, on June 15, 1999.
OWENS CORNING CAPITAL IV
By: OWENS CORNING, as Depositor
By: /s/ Michael I. Miller
---------------------
Name: Michael I. Miller
Title: Vice President and Treasurer
<PAGE> 99
INDEX TO EXHIBITS
The following Exhibits are filed as part of this registration
statement:
EXHIBIT NO. EXHIBIT
----------- -------
4.6.4 Certificate of Trust of Owens Corning Capital IV.
4.6.5 Declaration of Trust of Owens Corning Capital IV.
4.6.6 Form of Amended and Restated Trust Agreement for Owens Corning
Capital IV.
5.1.1 Opinion of Shearman & Sterling as to the legality of the
Securities (other than the Preferred Securities of the trusts)
being registered.
5.1.2 Opinion of Morris, Nichols, Arsht & Tunnell, special Delaware
counsel, relating to the legality of the Preferred Securities
of Owens Corning Capital II and Owens Corning Capital IV.
12.1 Computation of Ratio of Earnings to Fixed Charges and Ratio of
Earnings to Fixed Charges and Preferred Stock Dividends.
23.1 Consent of Arthur Andersen, LLP, independent public
accountants.
23.2 Consent of Shearman & Sterling (included in Exhibit 5.1.1).
23.3 Consent of Morris, Nichols, Arsht & Tunnell, special Delaware
counsel (included in Exhibit 5.1.2).
25.3 Form T-1 Statement of Eligibility of Wilmington Trust Company,
as Institutional Trustee under the Amended and Restated Trust
Agreement of Owens Corning Capital IV.
25.5 Form T-1 Statement of Eligibility of Wilmington Trust Company,
as Guarantee Trustee under the Guarantee for Owens Corning
Capital IV.
<PAGE> 1
EXHIBIT 4.6.4
CERTIFICATE OF TRUST
OF
OWENS CORNING CAPITAL IV
This Certificate of Trust is being duly executed as of June 1, 1999 for the
purpose of organizing a business trust pursuant to the Delaware Business Trust
Act, 12 DEL. C. Sections 3801 et. seq. (the "Act").
The undersigned hereby certify as follows:
1. NAME. The name of the business trust is Owens Corning Capital IV (the
"Trust").
2. DELAWARE TRUSTEE. The name and business address of the Delaware resident
trustee of the Trust meeting the requirements of Section 3807 of the Act are as
follows:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
3. EFFECTIVE. This Certificate of Trust shall be effective immediately upon
filing in the Office of the Secretary of State of the State of Delaware.
4. COUNTERPARTS. This Certificate of Trust may be executed in one or more
counterparts.
-1-
<PAGE> 2
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have duly executed this Certificate of Trust as of the day and year first
above written.
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ Norma P. Closs
-----------------------------
Name: Norma P. Closs
Title: Vice President
/s/ C. Jackson Snyder
-----------------------------
C. Jackson Snyder, as Trustee
/s/ Christine Harper
-----------------------------
Christine Harper, as Trustee
-2-
<PAGE> 1
Exhibit 4.6.5
DECLARATION OF TRUST
--------------------
DECLARATION OF TRUST, dated as of June 1, 1999, between Owens Corning,
a Delaware corporation, as Sponsor, Wilmington Trust Company, a Delaware banking
corporation, as Delaware Trustee, and C. Jackson Snyder and Christine Harper, as
Regular Trustees (collectively with the Delaware Trustee, the "Trustees"). The
Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "Owens
Corning Capital IV", in which name the Trustees, or the Sponsor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such amount
in trust from the Sponsor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate in
trust for the Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code. 12 DEL. C. Sections 3801 et seq. (the "Business Trust Act"),
and that this document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust in the office of the Secretary of State of the State of Delaware in the
form attached hereto. The Trust is hereby established by the Sponsor and the
Trustees for the purposes of (i) issuing preferred securities ("Preferred
Securities") representing undivided beneficial interests in the assets of the
Trust in exchange for cash and investing the proceeds thereof in debt securities
of the Sponsor, (ii) issuing and selling common securities ("Common Securities"
and, together with the Preferred Securities, "Trust Securities") representing
undivided beneficial interests in the assets of the Trust to the Sponsor in
exchange for cash and investing the proceeds thereof in additional debt
securities of the Sponsor and (iii) engaging in such other activities as are
necessary, convenient or incidental thereto.
3. Concurrent with the first issuance of any Trust Securities by the
Trust, the Sponsor and the Trustees intend to enter into an amended and restated
Declaration of Trust, satisfactory to each such party and substantially in the
form to be included as an exhibit to the 1933 Act Registration Statement
referred to below at the time such registration statement becomes effective
under the Securities Act of 1933, as amended (the "Securities Act"), to provide
for the contemplated operation of the Trust created hereby and the issuance of
the Preferred Securities and the Common Securities referred to therein. Prior to
the execution and delivery of such amended and restated Declaration of Trust,
the Trustees shall not have any duty or obligation hereunder or with respect to
the trust estate, except as otherwise required by applicable law or as may be
necessary to obtain, prior to such execution and delivery, any licenses,
consents or approvals required by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, (i) to prepare and file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) a Registration Statement on
<PAGE> 2
Form S-3 (the "1933 Act Registration Statement"), including any pre-effective
or post-effective amendments to such Registration Statement, relating to the
registration of the Preferred Securities under the Securities Act and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including any pre-effective or post-effective amendments thereto) relating to
the registration of the Preferred Securities under Section 12(b) of the
Securities Exchange Act of 1934, as amended; (ii) to prepare and file with the
New York Stock Exchange and execute a listing application and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred Securities to be listed
on the New York Stock Exchange; (iii) to prepare and file and execute, in each
case on behalf of the Trust, such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents as shall be necessary or desirable to register the
Preferred Securities under the securities or "blue sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable; and (iv) to negotiate the terms of, and execute on behalf of the
Trust, an underwriting agreement among the Trust, the Sponsor and any
underwriter, dealer or agent relating to the Preferred Securities, substantially
in the form to be included as an exhibit to, or incorporated by reference in,
the 1933 Act Registration Statement. It is hereby acknowledged and agreed that
in connection with any execution, filing or document referred to in clauses
(i)-(iii) above, (A) any Regular Trustee (or his attorneys-in-fact and agents or
the Sponsor as permitted herein) is authorized on behalf of the Trust to file
and execute such document on behalf of the Trust and (B) the Delaware Trustee
shall not be required to join in any such filing or execute on behalf of the
Trust any such document unless required by the rules and regulations of the
Commission or the New York Stock Exchange or state securities or blue sky laws,
and in such case only to the extent so required. In connection with all of the
foregoing, the Sponsor and each Regular Trustee, solely in its capacity as
Trustee of the Trust, hereby constitutes and appoints Maura J. Abeln, Michael I.
Miller and Rodney Nowland, and each of them, his, her or its, as the case may
be, true and lawful attorneys-in-fact, and agents, with full power of
substitution and resubstitution, for the Sponsor or such Trustee and in the
Sponsor's or such Trustee's name, place and stead in any and all capacities, to
sign and file (i) the 1933 Act Registration Statement and the 1934 Act
Registration Statement and any and all amendments (including post-effective
amendments) or supplements thereto, with all exhibits thereto, and other
documents in connection therewith, and (ii) a registration statement and any and
all amendments thereto filed pursuant to Rule 462(b) under the Securities Act
with the Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as the Sponsor or
such Trustee might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their or his or her
substitute or substitutes, shall do or cause to be done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided, however, that the number of Trustees shall in
no event be less than three (3); and provided, further, however, that to the
extent required by the Business Trust Act, one Trustee shall either be a natural
person who is a
-2-
<PAGE> 3
resident of the State of Delaware or, if not a natural person, an entity that
has its principal place of business in the State of Delaware and meets any other
requirements imposed by applicable law. Subject to the foregoing, the Sponsor is
entitled to appoint or remove without cause any Trustee at any time. Any Trustee
may resign upon thirty days prior notice to the Sponsor; provided, however, that
the Delaware Trustee may resign immediately upon notice to the Sponsor if the
Delaware Trustee is required to join in any filing or execute on behalf of the
Trust any document pursuant to the provisions of paragraph 4 hereof and, upon
giving such notice, the Delaware Trustee shall not be required to join in any
such filing or execute on behalf of the Trust any such document; provided,
further, however, that no resignation of the Delaware Trustee shall be effective
until a successor Delaware Trustee has been appointed and has accepted such
appointment by instrument executed by such successor Delaware Trustee and
delivered to the Trust, the Sponsor and the resigning Delaware Trustee.
7. To the fullest extent permitted by applicable law, the Sponsor
agrees to indemnify (i) the Delaware Trustee, (ii) any affiliate of the Delaware
Trustee, and (iii) any officers, directors, shareholders, members, partners,
employees, representatives, nominees, custodians or agents of the Delaware
Trustee (each of the persons or entities in (i) through (iii) being referred to
as an "Indemnified Person") for, and to hold each Indemnified Person harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The obligation
to indemnify as set forth in this paragraph 7 shall survive the termination of
this Declaration.
8. The Trust may terminate without issuing any Trust Securities at the
election of the Sponsor.
9. This Declaration shall be governed by the laws of the State of
Delaware, without regard to conflict of laws principles.
-3-
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year first above
written.
OWENS CORNING, as Sponsor
By: /s/ Michael I. Miller
------------------------------------
Name: Michael I. Miller
Title: Vice President and Treasurer
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ Norma P. Closs
------------------------------------
Name: Norma P. Closs
Title: Vice President
/s/ C. Jackson Snyder
------------------------------------
C. Jackson Snyder, as Trustee
/s/ Christine Harper
------------------------------------
Christine Harper, as Trustee
-4-
<PAGE> 1
Exhibit 4.6.6
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AMENDED AND RESTATED
TRUST AGREEMENT
among
OWENS CORNING, as Depositor,
WILMINGTON TRUST COMPANY,
as Property Trustee,
WILMINGTON TRUST COMPANY,
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of ___________ __, 1999
OWENS CORNING CAPITAL IV
================================================================================
<PAGE> 2
OWENS CORNING CAPITAL IV
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture
Act Section Tab
- ----------- ---
310(a)(1) .........................................................8.7
(a)(2) .........................................................8.7
(a)(3) .........................................................8.9
(a)(4) ...............................................2.7(a)(ii)(E)
(b) ............................................................8.8
311(a) .................................................Not Applicable
(b) .................................................Not Applicable
312(a) .................................................Not Applicable
(b) .................................................Not Applicable
(c) ............................................................5.7
313(a) ....................................................8.14(a),(b)
(a)(4) .....................................................8.14(b)
(b) .................................................Not Applicable
(c) ...........................................................10.8
(d) ........................................................8.14(c)
314(a) ...........................................................8.15
(b) .................................................Not Applicable
(c)(1) ........................................................8.16
(c)(2) ........................................................8.16
(c)(3) ..............................................Not Applicable
(d) .................................................Not Applicable
(e) ......................................................1.1, 8.16
315(a) .................................................8.1(a), 8.3(a)
(b) ......................................................8.2, 10.8
(c) .........................................................8.1(a)
(d) .......................................................8.1, 8.3
(e) .................................................Not Applicable
316(a)(1)(A) ...........................................Not Applicable
(a)(1)(B) .....................................................5.13
(a)(2) ..............................................Not Applicable
(b) ...........................................................5.14
(c) ............................................................6.7
317(a)(1) ..............................................Not Applicable
(a)(2) ........................................................8.13
(b) ............................................................5.9
318(a) ..........................................................10.10
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to
be a part of the Trust Agreement.
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TABLE OF CONTENTS
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ARTICLE I
DEFINED TERMS
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SECTION 1.1. Definitions ...........................................................1
ARTICLE II
CONTINUATION OF THE TRUST
SECTION 2.1. Name .................................................................11
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business ..........11
SECTION 2.3. Initial Contribution of Trust Property; Organizational Expenses ......11
SECTION 2.4. Issuance of the Preferred Securities .................................11
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase
of Debentures ...............................................12
SECTION 2.6. Declaration of Trust .................................................12
SECTION 2.7. Authorization to Enter into Certain Transactions .....................13
SECTION 2.8. Assets of Trust ......................................................16
SECTION 2.9. Title to Trust Property ..............................................16
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account ......................................................17
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions ........................................................17
SECTION 4.2. Redemption ...........................................................18
SECTION 4.3. Repayment at Option of Holders .......................................20
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SECTION 4.4. Subordination of Common Securities ...................................21
SECTION 4.5. Payment Procedures ...................................................22
SECTION 4.6. Tax Returns and Reports ..............................................22
SECTION 4.7. Payment of Taxes, Duties, Etc., of the Trust .........................23
SECTION 4.8. Payments Under Indenture or Pursuant to Direct Actions ...............23
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership ....................................................23
SECTION 5.2. The Trust Securities Certificates ....................................23
SECTION 5.3. Execution and Delivery of Trust Securities Certificates ..............23
SECTION 5.4. Registration of Transfer and Exchange of Preferred Securities
Certificates ................................................24
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates ................................................24
SECTION 5.6. Persons Deemed Securityholders .......................................25
SECTION 5.7. Access to List of Securityholders' Names and Addresses ...............25
SECTION 5.8. Maintenance of Office or Agency ......................................25
SECTION 5.9. Appointment of Paying Agent ..........................................25
SECTION 5.10. Ownership of Common Securities by Depositor ..........................26
SECTION 5.11. Book-Entry Preferred Securities Certificates; Common
Securities Certificate ......................................26
SECTION 5.12. Notices to Clearing Agency ...........................................27
SECTION 5.13. Definitive Preferred Securities Certificates .........................27
SECTION 5.14. Rights of Securityholders ............................................28
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights .........................................30
SECTION 6.2. Notice of Meetings ...................................................31
SECTION 6.3. Meetings of Preferred Securityholders ................................31
SECTION 6.4. Voting Rights ........................................................31
SECTION 6.5. Proxies, Etc. ........................................................31
SECTION 6.6. Securityholder Action by Written Consent .............................32
SECTION 6.7. Record Date for Voting and Other Purposes ............................32
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SECTION 6.8. Acts of Securityholders ..............................................32
SECTION 6.9. Inspection of Records ................................................33
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and the
Delaware Trustee ............................................33
SECTION 7.2. Representations and Warranties of Depositor ..........................35
ARTICLE VIII
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities ..................................35
SECTION 8.2. Certain Notices ......................................................37
SECTION 8.3. Certain Rights of Property Trustee ...................................37
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities ...............39
SECTION 8.5. May Hold Securities ..................................................39
SECTION 8.6. Compensation; Indemnity; Fees ........................................39
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Trustees .........40
SECTION 8.8. Conflicting Interests ................................................41
SECTION 8.9. Co-Trustees and Separate Trustee .....................................41
SECTION 8.10. Resignation and Removal; Appointment of Successor ....................43
SECTION 8.11. Acceptance of Appointment by Successor ...............................44
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business ..........45
SECTION 8.13. Preferential Collection of Claims Against Depositor or Trust .........45
SECTION 8.14. Reports by Property Trustee ..........................................46
SECTION 8.15. Reports to the Property Trustee ......................................46
SECTION 8.16. Evidence of Compliance with Conditions Precedent .....................46
SECTION 8.17. Number of Trustees ...................................................47
SECTION 8.18. Delegation of Power ..................................................47
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ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination Upon Expiration Date .....................................48
SECTION 9.2. Early Termination ....................................................48
SECTION 9.3. Termination ..........................................................48
SECTION 9.4. Liquidation ..........................................................48
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of
the Trust ...................................................50
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders ..............................51
SECTION 10.2. Amendment ............................................................51
SECTION 10.3. Separability .........................................................52
SECTION 10.4. Governing Law ........................................................52
SECTION 10.5. Payments Due on Non-Business Day .....................................52
SECTION 10.6. Successors ...........................................................52
SECTION 10.7. Headings .............................................................53
SECTION 10.8. Reports, Notices and Demands .........................................53
SECTION 10.9. Agreement Not to Petition ............................................53
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act ...............54
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee and
Indenture ...................................................54
EXHIBIT A Certificate of Trust of Owens Corning Capital IV
EXHIBIT B Form of Letter to The Depository Trust Company
EXHIBIT C Form of Common Stock Certificate
EXHIBIT D Agreement as to Expenses and Liabilities
EXHIBIT E Form of Preferred Stock Certificate
</TABLE>
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<PAGE> 7
AMENDED AND RESTATED TRUST AGREEMENT, dated as of __________
__, 1999, among (i) Owens Corning, a Delaware corporation (including any
successors or assigns, the "Depositor"), (ii) Wilmington Trust Company, a
banking corporation duly organized and existing under the laws of the State of
Delaware, as property trustee, (in each such capacity, the "Property Trustee"
and, in its separate corporate capacity and not in its capacity as Property
Trustee, the "Bank"), (iii) Wilmington Trust Company, a banking corporation duly
organized and existing under the laws of the State of Delaware, as Delaware
trustee (the "Delaware Trustee"), (iv) C. Jackson Snyder, an individual, and
Christine Harper, an individual, each of whose address is c/o Owens Corning,
Owens Corning World Headquarters, Toledo, Ohio 43659 (each an "Administrative
Trustee" and collectively the "Administrative Trustees") (the Property Trustee,
the Delaware Trustee and the Administrative Trustees referred to collectively as
the "Trustees") and (v) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, the Property Trustee and the Delaware
Trustee have heretofore duly declared and established a business trust pursuant
to the Delaware Business Trust Act by the entering into that certain Trust
Agreement, dated as of June 1, 1999 (the "Original Trust Agreement"), and by the
execution and filing by the Property Trustee and the Delaware Trustee with the
Secretary of State of the State of Delaware of the Certificate of Trust, filed
on June 1, 1999, attached as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the issuance of the Common Securities by
the Trust to the Depositor, (ii) the issuance and sale of the Preferred
Securities by the Trust pursuant to the Underwriting Agreement, (iii) the
acquisition by the Trust from the Depositor of all of the right, title and
interest in the Debentures and (iv) the appointment of the Administrative
Trustees;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Securityholders, hereby amends and
restates the Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. DEFINITIONS . For all purposes of this Trust
Agreement, except as otherwise expressly provided, however or unless the context
otherwise requires:
<PAGE> 8
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and
not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of
a given Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Indenture) paid by the Depositor on Debentures
having an aggregate principal amount equal to such given Liquidation Amount for
such period.
"Additional Sums" has the meaning specified in Section 10.6 of
the Indenture.
"Administrative Trustee" means each of the Persons identified
as an "Administrative Trustee" in the preamble to this Trustee Agreement solely
in such Person's capacity as Administrative Trustee of the Trust formed and
continued hereunder and not in such Person's individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar
2
<PAGE> 9
law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of such Person or of any
substantial part of its property or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing
of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or similar official) of such Person or
of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due
and its willingness to be adjudicated a bankrupt, or the taking of
corporate action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Book-Entry Preferred Securities Certificates" means a
beneficial interest in the Preferred Securities Certificates, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.11.
"Business Day" means a day other than (a) a Saturday or
Sunday, (b) a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed, or (c) a day
on which the Property Trustee's Corporate Trust Office or the Corporate Trust
Office of the Debenture Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among
the Trust, the Depositor and The Depository Trust Company, as the initial
Clearing Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates, substantially in the form attached as Exhibit B, as the same may
be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended. The Depository Trust Company will be the initial Clearing
Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" means the First Time of Delivery, which date is
also the date of execution and delivery of this Trust Agreement.
3
<PAGE> 10
"Collateral Agent" shall mean ___________________, as
collateral agent under the Pledge Agreement, dated the date hereof, among the
Depositor, the collateral agent, _____________, as purchase contract agent and
the holders from time to time of the Depositor's ___% Automatic Convertible
Exchange Securities.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount of $___________ and having
the rights provided, however therefor in this Trust Agreement, including the
right to receive Distributions and a Liquidation Distribution as provided,
however herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means (i) when used with respect to
the Property Trustee, the principal office of the Property Trustee located in
Wilmington, Delaware, and (ii) when used with respect to the Debenture Trustee,
the principal office of the Debenture Trustee located in Wilmington, Delaware.
"Debenture Event of Default" means an "Event of Default" as
defined in the Indenture.
"Debenture Redemption Date" means, with respect to any
Debentures to be redeemed under the Indenture, the date fixed for redemption
under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the
Indenture.
"Debenture Trustee" means Wilmington Trust Company, a banking
corporation duly organized under the laws of the State of Delaware, and any
successor thereto.
"Debentures" means the aggregate principal amount of the
Depositor's _____% Junior Subordinated Deferrable Interest Debentures, Series _,
issued pursuant to the Indenture.
"Definitive Preferred Securities Certificates" means either or
both (as the context requires) of (a) Preferred Securities Certificates issued
as Book-Entry Preferred Securities Certificates as provided, however in Section
5.11(a) and (b) Preferred Securities Certificates issued in certificated, fully
registered form upon original issuance thereof or as provided, however in
Section 5.13.
4
<PAGE> 11
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. (Section) 3801, et seq., as it may be amended from
time to time.
"Delaware Trustee" means the Person identified as the
"Delaware Trustee" in the preamble to this Trust Agreement solely in its
capacity as Delaware Trustee of the Trust formed and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any successor trustee appointed as herein provided, however.
"Depositor" has the meaning specified in the preamble to this
Trust Agreement.
"Direct Action" has the meaning specified in Section 5.14.
"Distribution Date" has the meaning specified in Section
4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided, however in Section 4.1.
"Early Termination Event" has the meaning specified in Section
9.2.
"Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such
default for a period of 30 days; or
(c) default by the Property Trustee in the payment of any
Redemption Price of any Trust Security when it becomes due and payable;
or
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this Trust
Agreement (other than a covenant or warranty a default in the
performance or breach of which is dealt with in clause (b) or (c)
above) and continuation of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to
the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate liquidation preference of the Outstanding Preferred
Securities a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee and the failure by the Depositor to appoint a
successor Property Trustee within 60 days thereof.
5
<PAGE> 12
"Exchange Act" means the Securities Exchange Act of 1934, and
any successor statute thereto, in each case as amended from time to time.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Depositor and the Trust, substantially in the form
attached as Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"First Time of Delivery" has the meaning specified in the
Underwriting Agreement.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and Wilmington Trust Company, as trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the holders of the Preferred Securities, as amended from time to
time.
"Indemnified Person" has the meaning specified in Section 8.6.
"Indenture" means the Junior Subordinated Indenture, dated as
of _________ __, 1997, between the Depositor and the Debenture Trustee, as
trustee, as amended or supplemented from time to time.
"Investment Company Event" means the occurrence of a change in
law or regulation or a change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law") to the effect that the Trust is or will
be considered an "investment company" that is required to be registered under
the Investment Company Act of 1940, as amended (the "Investment Company Act"),
which Change in 1940 Act Law becomes effective on or after the date hereof.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of Debentures to be contemporaneously redeemed in
accordance with the Indenture, allocated to the Common Securities and to the
Preferred Securities based upon the relative Liquidation Amounts of such classes
of Trust Securities and the proceeds of which will be used to pay the Redemption
Price of such Trust Securities, and (b) with respect to a distribution of
Debentures to Holders of Trust Securities in connection with a dissolution or
liquidation of the Trust, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities of the Holder to whom such Debentures
are distributed.
6
<PAGE> 13
"Liquidation Amount" means the stated amount of $___ per Trust
Security.
"Liquidation Date" means the date on which Debentures are to
be distributed to Holders of Trust Securities in connection with a termination
and liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as
amended.
"Officers' Certificate" means a certificate signed by the
Chairman and Chief Executive Officer, President or a Vice President, and by the
Treasurer, an Associate Treasurer, an Assistant Treasurer, the Controller, the
Secretary or an Assistant Secretary, of the Depositor, and delivered to the
appropriate Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided, however for in this
Trust Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Property Trustee or the Depositor, but not an
employee of any thereof, and who shall be reasonably acceptable to the Property
Trustee.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used with respect to Trust Securities,
means, as of the date of determination, all Trust Securities theretofore
executed and delivered under this Trust Agreement, except:
7
<PAGE> 14
(a) Trust Securities theretofore cancelled by the Property
Trustee or delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Trust Securities;
provided, however that, if such Trust Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Trust
Agreement; and
(c) Trust Securities which have been paid or in exchange for
or in lieu of which other Preferred Securities have been executed and
delivered pursuant to Sections 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities that such Trustee knows to be so owned shall
be so disregarded and (b) the foregoing shall not apply at any time when all of
the outstanding Preferred Securities are owned by the Depositor, one or more of
the Trustees and/or any such Affiliate. Preferred Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a
Book-Entry Preferred Securities Certificate as reflected in the records of the
Clearing Agency or, if a Clearing Agency Participant is not the Owner, then as
reflected in the records of a Person maintaining an account with such Clearing
Agency (directly or indirectly, in accordance with the rules of such Clearing
Agency).
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee with the Bank in its
trust department for the benefit of the Securityholders in which all amounts
paid in respect of the Debentures will be held and from which the Property
Trustee, through the Paying Agent, shall make payments to the Securityholders in
accordance with Sections 4.1 and 4.2.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount of $__ and having the
rights provided, however therefor in this Trust Agreement, including the right
to receive Distributions and a Liquidation Distribution as provided, however
herein.
8
<PAGE> 15
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in the form attached
as Exhibit E.
"Property Trustee" means the Person identified as the
"Property Trustee" in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust heretofore formed and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor property trustee appointed as herein provided,
however.
"Purchase Contract Settlement Date" means _____________, ____.
"Put Option" shall have the meaning specified in Section 4.3.
"Put Option Exercise Date" shall have the meaning specified in
Section 4.3.
"Put Option Exercise Price" shall have the meaning specified
in Section 4.3.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided, however that each Debenture Redemption Date and the stated
maturity of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security,
the Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures, allocated on a pro rata basis (based on Liquidation Amounts) among
the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section
8.10.
"Second Time of Delivery" has the meaning specified in the
Underwriting Agreement.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Trust Securities is registered in the Securities Register; any
such Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act.
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"Tax Event" means the receipt by the Trust of an Opinion of
Counsel experienced in such matters to the effect that, as a result of (i) any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting taxation, (ii) any
amendment to or change in an interpretation or application of such laws or
regulations by any legislative body, court, governmental agency or regulatory
authority or (iii) any interpretation or pronouncement that provides for a
position with respect to such laws or regulations that differs from the
generally accepted position on the date the Preferred Securities are issued,
which amendment or change is effective or which interpretation or pronouncement
or decision is announced on or after the date of issuance of the Preferred
Securities under this Trust Agreement, there is more than an insubstantial risk
that (x) the Trust is, or will be within 90 days of the date of such Opinion of
Counsel, subject to U.S. Federal income tax with respect to income received or
accrued on the Debentures, (y) interest payable by the Depositor on the
Debentures is not, or within 90 days of the date of such Opinion of Counsel,
will not be, deductible by the Depositor, in whole or in part, for U.S. Federal
income tax purposes or (z) the Trust is, or will be within 90 days after the
date of such Opinion of Counsel, subject to more than a de minimis amount of
other taxes, duties, or other governmental charges.
"Time of Delivery" means, collectively, the First Time of
Delivery and the Second Time of Delivery.
"Trust" means the Delaware business trust created and
continued hereby and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in accordance
with the applicable provisions hereof, including (i) all exhibits hereto and
(ii) for all purposes of this Trust Agreement and any such modification,
amendment or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Trust Agreement and any such
modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) the rights of
the Property Trustee under the Guarantee, (c) any cash on deposit in, or owing
to, the Payment Account and (d) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being held or deemed to
be held by the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
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"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the
Delaware Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Pricing Agreement, dated as
of ___________ __, 1999 among the Trust, the Depositor and the underwriters
named therein incorporating the Underwriting Agreement dated _________ __, 1999.
ARTICLE II
CONTINUATION OF THE TRUST
SECTION 2.1. NAME . The Trust continued hereby shall be known
as "Owens Corning Capital IV," as such name may be modified from time to time by
the Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.
SECTION 2.2. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE
OF BUSINESS . The address of the Delaware Trustee in the State of Delaware is
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890,
Attention: Corporate Trust Administration, or such other address in the State of
Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of the Trust
is c/o Owens Corning, Owens Corning World Headquarters, Toledo, Ohio 43659.
SECTION 2.3. INITIAL CONTRIBUTION OF TRUST PROPERTY;
ORGANIZATIONAL EXPENSES . The Property Trustee acknowledges receipt in trust
from the Depositor in connection with the Original Trust Agreement of the sum of
$10, which constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
SECTION 2.4. ISSUANCE OF THE PREFERRED SECURITIES . On
________ __, 1999 the Depositor, on behalf of the Trust and pursuant to the
Original Trust Agreement, executed and delivered the Underwriting Agreement.
Contemporaneously with the execution and delivery of this Trust Agreement, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Underwriters named in the Underwriting Agreement
Preferred Securities Certificates, registered in the name of the nominee of the
initial Clearing Agency, in an aggregate amount of ___________ Preferred
Securities having an aggregate Liquidation Amount of $___________, against
receipt of such aggregate purchase price of such Preferred Securities of
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$___________, which amount the Administrative Trustee shall promptly deliver to
the Property Trustee. If there is a Second Time of Delivery, an Administrative
Trustee, on behalf of the Trust, shall execute in accordance with Section 5.2
and deliver to the Underwriters named in the Underwriting Agreement Preferred
Securities Certificates, registered in the name of the nominee of the initial
Clearing Agency, in an aggregate amount of up to __________ Preferred Securities
having an aggregate Liquidation Amount of up to $___________, against receipt of
the aggregate purchase price of such Preferred Securities equal to the
Liquidation Amount thereof, which amount such Administrative Trustee shall
promptly deliver to the Property Trustee.
SECTION 2.5. ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION
AND PURCHASE OF DEBENTURES . Contemporaneously with the execution and delivery
of this Trust Agreement, an Administrative Trustee, on behalf of the Trust,
shall execute in accordance with Section 5.2 and deliver to the Depositor Common
Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of _______ Common Securities having an aggregate Liquidation
Amount of $____________ against payment by the Depositor of such amount, which
amount such Administrative Trustee shall promptly deliver to the Property
Trustee. Contemporaneously therewith, an Administrative Trustee, on behalf of
the Trust, shall subscribe to and purchase from the Depositor Debentures,
registered in the name of the Trust and having an aggregate principal amount
equal to $_________, and, in satisfaction of the purchase price for such
Debentures, the Property Trustee, on behalf of the Trust, shall deliver to the
Depositor the sum of $_________ (being the sum of the amounts delivered to the
Property Trustee pursuant to (i) the second sentence of Section 2.4 and (ii) the
first sentence of this Section 2.5). If there is a Second Time of Delivery, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of up to _______
Common Securities having an aggregate Liquidation Amount of up to $__________
against payment by the Depositor of such amount, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Debentures, registered in the
name of the Trust and having an aggregate principal amount of up to
$___________, and, in satisfaction of the purchase price for such Debentures,
the Property Trustee, on behalf of the Trust, shall deliver to the Depositor the
amount received from one of the Administrative Trustees pursuant to the last
sentence of Section 2.4 (being the sum of the amounts delivered to the Property
Trustee pursuant to (i) the third sentence of Section 2.4 and (ii) the third
sentence of this Section 2.5).
SECTION 2.6. DECLARATION OF TRUST . The exclusive purposes and
functions of the Trust are (a) to issue and sell Trust Securities and use the
proceeds from such sale to acquire the Debentures, and (b) to engage in those
activities necessary or incidental thereto. The Depositor hereby appoints the
Trustees as trustees of the Trust, to have all the rights, powers and duties to
the extent set forth herein, and the Trustees hereby accept such appointment.
The Property Trustee hereby declares that it will hold the Trust Property in
trust upon and subject to the conditions set forth herein for the benefit of the
Trust and the Securityholders. The Administrative Trustees shall have all
rights, powers and duties set forth herein and in accordance with applicable law
with respect
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to accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
SECTION 2.7. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS
. (a) The Trustees shall conduct the affairs of the Trust in accordance with the
terms of this Trust Agreement. Subject to the limitations set forth in paragraph
(b) of this Section, and in accordance with the following provisions (i) and
(ii), the Trustees shall have the authority to enter into all transactions and
agreements determined by the Trustees to be appropriate in exercising the
authority, express or implied, otherwise granted to the Trustees under this
Trust Agreement, and to perform all acts in furtherance thereof, including
without limitation, the following:
(i) As among the Trustees, each Administrative Trustee shall
have the power and authority to act on behalf of the Trust with respect
to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Expense
Agreement and the Certificate Depository Agreement and such
other agreements as may be necessary or desirable in
connection with the purposes and function of the Trust;
(C) assisting in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and
under state securities or blue sky laws, and the qualification
of this Trust Agreement as a trust indenture under the Trust
Indenture Act;
(D) assisting in the listing of the Preferred
Securities upon such securities exchange or exchanges as shall
be determined by the Depositor and the registration of the
Preferred Securities under the Securities Exchange Act of
1934, as amended, and the preparation and filing of all
periodic and other reports and other documents pursuant to the
foregoing;
(E) the sending of notices (other than notices of
default) and other information regarding the Trust Securities
and the Debentures to the Securityholders in accordance with
this Trust Agreement;
(F) the appointment of a Paying Agent, authenticating
agent and Securities Registrar in accordance with this Trust
Agreement;
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(G) execution of the Trust Securities in accordance
with this Trust Agreement;
(H) registering transfer of the Trust Securities in
accordance with this Trust Agreement;
(I) to the extent provided, however in this Trust
Agreement, the winding up of the affairs of and liquidation of
the Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of the
State of Delaware;
(J) unless otherwise determined by the Depositor, the
Property Trustee or the Administrative Trustees, or as
otherwise required by the Delaware Business Trust Act or the
Trust Indenture Act, to execute on behalf of the Trust (either
acting alone or together with any or all of the Administrative
Trustees) any documents that the Administrative Trustees have
the power to execute pursuant to this Trust Agreement; and
(K) the taking of any action incidental to the
foregoing as the Trustees may from time to time determine is
necessary or advisable to give effect to the terms of this
Trust Agreement for the benefit of the Securityholders
(without consideration of the effect of any such action on any
particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any
other payments made in respect of the Debentures in the
Payment Account;
(D) the distribution through the Paying Agent of
amounts owed to the Securityholders in respect of the Trust
Securities;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Debentures
to the Securityholders in accordance with this Trust
Agreement;
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(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided, however in this Trust
Agreement, the winding up of the affairs of and liquidation of
the Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of the
State of Delaware;
(I) after an Event of Default (other than under
paragraph (b), (c), (d) or (e) of the definition of such term
if such Event of Default is by or with respect to the Property
Trustee) the taking of any action incidental to the foregoing
as the Property Trustee may from time to time determine is
necessary or advisable to give effect to the terms of this
Trust Agreement and protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration
of the effect of any such action on any particular
Securityholder); and
(J) except as otherwise provided, however in this
Section 2.7(a)(ii), the Property Trustee shall have none of
the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided, however herein
or contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise
dispose of any of the Trust Property or interests therein, including to
Securityholders, except as expressly provided, however herein, (iii) take any
action that would cause the Trust to fail or cease to qualify as a "grantor
trust" for U.S. Federal income tax purposes, (iv) incur any indebtedness for
borrowed money or issue any other debt or (v) take or consent to any action that
would result in the placement of a Lien on any of the Trust Property. The
Administrative Trustees shall defend all claims and demands of all Persons at
any time claiming any Lien on any of the Trust Property adverse to the interest
of the Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on the appropriate form in relation to the Preferred
Securities, including any amendments thereto;
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(ii) the determination of the States in which to take
appropriate action to qualify or register for sale all or part of the
Preferred Securities and the determination of any and all such acts,
other than actions which must be taken by or on behalf of the Trust,
and the advice to the Trustees of actions they must take on behalf of
the Trust, and the preparation for execution and filing of any
documents to be executed and filed by the Trust or on behalf of the
Trust, as the Depositor deems necessary or advisable in order to comply
with the applicable laws of any such States;
(iii) the preparation for filing by the Trust and execution on
behalf of the Trust of an application to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Preferred Securities;
(iv) the preparation for filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) or 12(g) of the Exchange Act, including
any amendments thereto;
(v) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the
Preferred Securities; and
(vi) the taking of any other actions necessary or desirable to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the 1940 Act, or fail to be
classified as a grantor trust for U.S. Federal income tax purposes and so that
the Debentures will be treated as indebtedness of the Depositor for U.S. Federal
income tax purposes. In this connection, the Depositor and the Administrative
Trustees are authorized to take any action, not inconsistent with applicable
law, the Certificate of Trust or this Trust Agreement, that each of the
Depositor and any Administrative Trustee determines in its discretion to be
necessary or desirable for such purposes, as long as such action does not
adversely affect in any material respect the interests of the holders of the
Preferred Securities.
SECTION 2.8. ASSETS OF TRUST . The assets of the Trust shall
consist of the Trust Property.
SECTION 2.9. TITLE TO TRUST PROPERTY . Legal title to all
Trust Property shall be vested at all times in the Property Trustee (in its
capacity as such) and shall be held and administered by the Property Trustee for
the benefit of the Trust and the Securityholders in accordance with this Trust
Agreement.
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ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. PAYMENT ACCOUNT . (a) On or prior to the Closing
Date, the Property Trustee shall establish the Payment Account. The Property
Trustee and any agent of the Property Trustee shall have exclusive control and
sole right of withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in accordance with
this Trust Agreement. All monies and other property deposited or held from time
to time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders and for
distribution as herein provided, however, including (and subject to) any
priority of payments provided, however for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. DISTRIBUTIONS . (a) The Trust Securities
represent undivided beneficial interests in the Trust Property, and
Distributions (including of Additional Amounts) will be made on the Trust
Securities at the rate and on the dates that payments of interest (including of
Additional Interest, as defined in the Indenture) are made on the Debentures.
Accordingly:
1. (i) Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds
of the Trust available for the payment of Distributions.
Distributions shall accrue from ________ __, 1999, and, except
in the event (and to the extent) that the Depositor exercises
its right to defer the payment of interest on the Debentures
pursuant to the Indenture, shall be payable [quarterly]
[semi-annually] in arrears on
_________________________________ of each year, commencing on
_________ __, ____. If any date on which a Distribution is
otherwise payable on the Trust Securities is not a Business
Day, then the payment of such Distribution shall be made on
the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay)
except that, if such Business Day is in the next succeeding
calendar year, payment of such Distribution shall be made on
the immediately preceding Business Day, in each case with the
same force and effect as if made on such date (each date on
which distributions are payable in accordance with this
Section 4.1(a), a "Distribution Date").
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(ii) Assuming payments of interest on the Debentures are made
when due (and before giving effect to Additional Amounts, if
applicable), Distributions on the Trust Securities shall be payable at
a rate of ____% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions for any period less than a full
period shall be computed on the basis of a 360-day year of twelve
30-day months. Distributions payable for each full Distribution period
will be computed by dividing the rate per annum by [four] [two]. The
amount of Distributions payable for any period shall include the
Additional Amounts, if any.
(iii) Distributions on the Trust Securities shall be made by
the Property Trustee from the Payment Account and shall be payable on
each Distribution Date only to the extent that the Trust has funds then
on hand and available in the Payment Account for the payment of such
Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities at the close of business on the
relevant record date, which shall be the __________ next preceding the relevant
Distribution Date; provided, however, that in the event that the Preferred
Securities do not remain in book-entry-only form, the relevant record date shall
be the ___________ next preceding the relevant Distribution Date.
SECTION 4.2. REDEMPTION . (a) On each Debenture Redemption
Date and on the stated maturity of the Debentures, the Trust will be required to
redeem a Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date to each Holder of Trust Securities to
be redeemed, at such Holder's address appearing in the Security Register. All
notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price, or if the Redemption Price cannot
be calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided, however pursuant to the
Indenture together with a statement that it is an estimate and that the
actual Redemption Price will be calculated on the third Business Day
prior to the Redemption Date (and if an estimate is provided, however,
a further notice shall be sent of the actual Redemption Price on the
date that notice of such actual Redemption Price is received pursuant
to the Indenture);
(iii) the CUSIP number;
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(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon will cease to accumulate on and after said
date, except as provided, however in Section 4.2(d) below; and
(vi) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust Securities
shall be made and the Redemption Price shall be payable on each Redemption Date
only to the extent that the Trust has funds then on hand and available in the
Payment Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York City time, on
the Redemption Date, subject to Section 4.2(c), the Property Trustee will, with
respect to Book-Entry Preferred Securities, irrevocably deposit with the
Clearing Agency for such Book-Entry Preferred Securities funds sufficient to pay
the applicable Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the Holders thereof.
With respect to Preferred Securities that are not Book-Entry Preferred
Securities, the Property Trustee, subject to Section 4.2(c), will irrevocably
deposit with the Paying Agent funds sufficient to pay the applicable Redemption
Price and will give the Paying Agent irrevocable instructions and authority to
pay the Redemption Price to the Holders thereof upon surrender of their
Preferred Securities Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust Securities called for
redemption shall be payable to the Holders of such Trust Securities as they
appear on the Securities Register for the Trust Securities on the relevant
record dates for the related Distribution Dates. If notice of redemption shall
have been given and funds deposited as required, then upon the date of such
deposit, all rights of Securityholders holding Trust Securities so called for
redemption will cease, except the right of such Securityholders to receive the
Redemption Price and any Distribution payable on or prior to the Redemption
Date, but without interest, and such Securities will cease to be outstanding. In
the event that any date on which any Redemption Price is payable is not a
Business Day, then payment of the Redemption Price payable on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay), except that, if such Business
Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case, with the same force and effect
as if made on such date. In the event that payment of the Redemption Price in
respect of any Trust Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor pursuant to the
Guarantee, Distributions on such Trust Securities will
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continue to accumulate, at the then applicable rate, from the Redemption Date
originally established by the Trust for such Trust Securities to the date such
Redemption Price is actually paid, in which case the actual payment date will be
the date fixed for redemption for purposes of calculating the Redemption Price.
(e) Subject to Section 4.4(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of Trust Securities to be redeemed shall be
allocated on a pro rata basis (based on Liquidation Amounts) among the Common
Securities and the Preferred Securities. The particular Preferred Securities to
be redeemed shall be selected on a pro rata basis (based upon Liquidation
Amounts) not more than 60 days prior to the Redemption Date by the Property
Trustee from the Outstanding Preferred Securities not previously called for
redemption, by such method (including, without limitation, by lot) as the
Property Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of Preferred Securities, or with respect to
Book-Entry Preferred Securities, in accordance with the Clearing Agency's
customary procedures. The Property Trustee shall promptly notify the Security
Registrar in writing of the Preferred Securities selected for redemption and, in
the case of any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. In the event that less than all of
the Preferred Securities (other than Book-Entry Preferred Securities)
represented by a Preferred Securities Certificate are to be redeemed, upon
surrender of such Preferred Securities Certificate the Administrative Trustee,
or any one of them, shall execute and deliver to the Paying Agent, for further
delivery to the Holder of such Preferred Securities without service charge, a
new Preferred Securities Certificate representing the unredeemed Preferred
Securities evidenced by the Preferred Securities Certificate so surrendered. For
all purposes of this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities shall relate, in
the case of any Preferred Securities redeemed or to be redeemed only in part, to
the portion of the Liquidation Amount of Preferred Securities that has been or
is to be redeemed.
SECTION 4.3. REPAYMENT AT OPTION OF HOLDERS . (a) Each Holder
of Trust Securities, including the Collateral Agent, shall have the right to
require the Trust to repay all or a portion of the Trust Securities owned by or
pledged with such Holder (the "Put Option") on the Business Day immediately
preceding the Purchase Contract Settlement Date (the "Put Option Exercise Date")
at a repayment price of $_____ per Trust Security plus an amount equal to
accrued Distributions thereon to the date of payment [plus -- insert applicable
repayment premium, if any] (the "Put Option Repayment Price").
(b) The Trust will obtain funds to pay the Put Option
Repayment Price of Trust Securities being repaid under the Put Option by
presenting to the Depositor, pursuant to the Trust's right under the Debentures
to require the Depositor to repay all or a portion of the Debentures on the Put
Option Exercise Date, Debentures in an aggregate principal amount equal to the
aggregate stated Liquidation Amount of such Trust Securities for repayment on
the Put Option Exercise Date at the Debenture Repayment Price (as defined in the
Debentures).
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(c) In order for the Trust Securities to be repaid on the Put
Option Exercise Date, the Trust must receive at the Corporate Trust Office of
the Property Trustee, either (i) not less than 10 or more than 30 days prior to
the Put Option Exercise Date, the Trust Securities to be repaid with the form
entitled "Option to Elect Repayment" on the reverse thereof or otherwise
accompanying such Trust Security duly completed. Any such notice received by the
Trust shall be irrevocable. All questions as to the validity, eligibility
(including time of receipt) and acceptance of the Trust Securities for repayment
shall be determined by the Trust, whose determination shall be final and
binding. Notwithstanding the foregoing, so long as the Holder is the Collateral
Agent, such notice to elect repayment may be delivered to the Trust at any time
prior to _______ a.m., New York City time, on the Put Option Exercise Date and
in the form and manner as may be designated by the Collateral Agent.
(d) Payment of the Put Option Repayment Price to Holders of
Trust Securities shall be made at the Corporate Trust Office of the Property
Trustee, provided, however that the Depositor has paid the Property Trustee a
sufficient amount of cash in connection with the related repayment of the
Debenture. Notwithstanding the foregoing, so long as the Holder of any Trust
Securities is the Collateral Agent, the payment of the Put Option Repayment
Price in respect of such Trust Securities held by the Collateral Agent shall be
made no later than 1:00 p.m., New York City time, on the Put Option Exercise
Date by check or wire transfer in immediately available funds at such place and
to such account as may be designated by the Collateral Agent. If the Property
Trustee holds immediately available funds sufficient to pay the Put Option
Repayment Price of such Trust Securities, then, immediately prior to the close
of business on the Put Option Exercise Date, such Trust Securities will cease to
be outstanding and distributions thereon will cease to accrue, whether or not
Trust Securities are delivered to the Property Trustee, and all other rights of
the Holder in respect of the Trust Securities, including the Holder's right to
require the Trust to repay such Trust Securities, shall terminate and lapse
(other than the right to receive the Put Option Repayment Price but without
interest on such Put Option Repayment Price). Neither the Regular Trustees nor
the Trust shall be required to register or cause to be registered the transfer
of any Trust Securities for which repayment has been elected. If payment of the
Put Option Repayment Price in respect of Trust Securities is (i) improperly
withheld or refused and not paid either by the Property Trustee or by the
Depositor as guarantor pursuant to the Guarantee, or (ii) not paid by the
Property Trustee as the result of an Event of Default with respect to the
Debentures presented for repayment as described in paragraph 4.3(b),
Distributions on such Trust Securities will continue to accrue, from the
original Put Option Exercise Date to the actual date of payment, in which case
the actual payment date will be considered the Put Option Exercise Date for
purposes of calculating the Put Option Repayment Price.
SECTION 4.4. SUBORDINATION OF COMMON SECURITIES . (a) Payment
of Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price of, the Trust Securities, as applicable, shall be made, subject
to Section 4.2(e), pro rata among the Common Securities and the Preferred
Securities based on the Liquidation Amount of such Common Securities and Capital
Securities; provided, however, that if on any Distribution Date or Redemption
Date any Event of Default resulting from a Debenture Event of Default shall have
occurred and be continuing, no
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payment of any Distribution (including Additional Amounts, if applicable) on, or
Redemption Price of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all Outstanding Preferred
Securities for all Distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price the full amount of such Redemption
Price on all Outstanding Preferred Securities, shall have been made or provided,
however for, and all funds available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or the Redemption Price of, Preferred
Securities then due and payable.
(b) In the case of the occurrence of any Event of Default
resulting from any Debenture Event of Default, the Holder of Common Securities
will be deemed to have waived any right to act with respect to any such Event of
Default under this Trust Agreement until the effect of all such Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated. Until any such Event of Default under this Trust Agreement
with respect to the Preferred Securities has been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the Holders of
the Preferred Securities and not the Holder of the Common Securities, and only
the Holders of the Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
SECTION 4.5. PAYMENT PROCEDURES . Payments of Distributions
(including Additional Amounts, if applicable) in respect of the Preferred
Securities shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Clearing Agency, such Distributions shall be
made to the Clearing Agency in immediately available funds, which shall credit
the relevant Persons' accounts at such Clearing Agency on the applicable
Distribution Dates. Payments in respect of the Common Securities shall be made
in such manner as shall be mutually agreed between the Property Trustee and the
Holder of the Common Securities.
SECTION 4.6. TAX RETURNS AND REPORTS . The Administrative
Trustees shall prepare (or cause to be prepared), at the Depositor's expense,
and file all U.S. federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. In this regard, the
Administrative Trustees shall (a) prepare and file (or cause to be prepared and
filed) the appropriate Internal Revenue Service Form required to be filed in
respect of the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Securityholder the
appropriate Internal Revenue Service form required to be provided, however on
such form. The Administrative Trustees shall provide the Depositor and the
Property Trustee with a copy of all such returns and reports promptly after such
filing or furnishing. The Trustees shall comply with United States Federal
withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
On or before December 15 of each year during which any Capital
Securities are Outstanding, the Administrative Trustees shall furnish to the
Property Trustee such information as
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may be reasonably requested by the Property Trustee in order that the Property
Trustee may prepare the information which it is required to report for such year
on Internal Revenue Service Forms 1096 and 1099 pursuant to Section 6049 of the
Code. Such information shall include the amount of original issue discount
includable in income for each outstanding Capital Security during such year.
SECTION 4.7. PAYMENT OF TAXES, DUTIES, ETC., OF THE TRUST .
Upon receipt under the Debentures of Additional Sums, the Property Trustee shall
promptly pay any taxes, duties or governmental charges of whatsoever nature
(other than withholding taxes) imposed on the Trust by the United States or any
other taxing authority.
SECTION 4.8. PAYMENTS UNDER INDENTURE OR PURSUANT TO DIRECT
ACTIONS . Any amount payable hereunder to any Holder of Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder or an
Owner with respect to the Holder's Preferred Securities has directly received
pursuant to Section 5.8 of the Indenture or Section 5.15 of this Trust
Agreement.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. INITIAL OWNERSHIP . Upon the formation of the
Trust and the contribution by the Depositor pursuant to Section 2.3 and until
the issuance of the Trust Securities, and at any time during which no Trust
Securities are outstanding, the Depositor shall be the sole beneficial owner of
the Trust.
SECTION 5.2. THE TRUST SECURITIES CERTIFICATES . The Preferred
Securities Certificates shall be issued in minimum denominations of $25
Liquidation Amount and integral multiples of $25 in excess thereof, and the
Common Securities Certificates shall be issued in denominations of $25
Liquidation Amount and integral multiples thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual signature of at
least one Administrative Trustee. Trust Securities Certificates bearing the
manual signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.4.
SECTION 5.3. EXECUTION AND DELIVERY OF TRUST SECURITIES
CERTIFICATES . At each Time of Delivery, the Administrative Trustees shall cause
Trust Securities Certificates, in an aggregate Liquidation Amount as provided,
however in Sections 2.4 and 2.5, to be executed on
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behalf of the Trust and delivered to or upon the written order of the Depositor,
signed by its chairman of the board, its president, any executive vice president
or any vice president, treasurer or assistant treasurer or controller without
further corporate action by the Depositor, in authorized denominations.
SECTION 5.4. REGISTRATION OF TRANSFER AND EXCHANGE OF
PREFERRED SECURITIES CERTIFICATES . The Depositor shall keep or cause to be
kept, at the office or agency maintained pursuant to Section 5.8, a register or
registers for the purpose of registering Trust Securities Certificates and
transfers and exchanges of Preferred Securities Certificates (the "Securities
Register") in which, the registrar designated by the Depositor (the "Securities
Registrar"), subject to such reasonable regulations as it may prescribe, shall
provide for the registration of Preferred Securities Certificates and Common
Securities Certificates (subject to Section 5.10 in the case of the Common
Securities Certificates) and registration of transfers and exchanges of
Preferred Securities Certificates as herein provided, however. The Bank shall be
the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.8, the Administrative Trustees or any one of them shall execute and deliver,
in the name of the designated transferee or transferees, one or more new
Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such Administrative
Trustee or Trustees.
The Securities Registrar shall not be required to register the
transfer of any Preferred Securities that have been called for redemption. At
the option of a Holder, Preferred Securities Certificates may be exchanged for
other Preferred Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender of the Preferred
Securities Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.8.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to an Administrative Trustee
and the Securities Registrar duly executed by the Holder or his attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by an Administrative Trustee in accordance with such Person's
customary practice.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but the Securities
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
SECTION 5.5. MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES . If (a) any mutilated Trust Securities Certificate
shall be surrendered to the Securities Registrar, or if the Securities Registrar
shall receive evidence to its satisfaction of the destruction, loss or theft of
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any Trust Securities Certificate and (b) there shall be delivered to the
Securities Registrar and the Administrative Trustees such security or indemnity
as may be required by them to save each of them harmless, then in the absence of
notice that such Trust Securities Certificate shall have been acquired by a bona
fide purchaser, the Administrative Trustees, or any one of them, on behalf of
the Trust shall execute and make available for delivery, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, the Administrative Trustees or the Securities
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Trust Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an undivided beneficial interest in the assets of the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Trust Securities Certificate shall be found at any time.
SECTION 5.6. PERSONS DEEMED SECURITYHOLDERS . The Trustees or
the Securities Registrar shall treat the Person in whose name any Trust
Securities Certificate shall be registered in the Securities Register as the
owner of such Trust Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and neither the Trustees
nor the Securities Registrar shall be bound by any notice to the contrary.
SECTION 5.7. ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND
ADDRESSES . Each Holder and each Owner shall be deemed to have agreed not to
hold the Depositor, the Property Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 5.8. MAINTENANCE OF OFFICE OR AGENCY . The
Administrative Trustees shall maintain an office or offices or agency or
agencies where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trustees in respect of the Trust Securities Certificates may be served. The
Administrative Trustees initially designate Owens Corning, Owens Corning World
Headquarters, Toledo, Ohio 43659, Attn: _____________, as its principal
corporate trust office for such purposes. The Administrative Trustees shall give
prompt written notice to the Depositor and to the Securityholders of any change
in the location of the Securities Register or any such office or agency.
SECTION 5.9. APPOINTMENT OF PAYING AGENT . The Paying Agent
shall make distributions to Securityholders from the Payment Account and shall
report the amounts of such distributions to the Property Trustee and the
Administrative Trustees. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making the
distributions referred to above. The Administrative Trustees may revoke such
power and remove the Paying Agent if such Trustees determine in their sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Trust Agreement in any material respect. The Paying Agent shall
initially be the Bank, and any co-paying agent chosen by the Bank, and
acceptable to the Administrative Trustees and the Depositor. Any Person acting
as Paying Agent shall be permitted
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to resign as Paying Agent upon 30 days' written notice to the Administrative
Trustees, the Property Trustee and the Depositor. In the event that the Bank
shall no longer be the Paying Agent or a successor Paying Agent shall resign or
its authority to act be revoked, the Administrative Trustees shall appoint a
successor that is acceptable to the Property Trustee and the Depositor to act as
Paying Agent (which shall be a bank or trust company). The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment to
the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall
apply to the Bank also in its role as Paying Agent, for so long as the Bank
shall act as Paying Agent and, to the extent applicable, to any other paying
agent appointed hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
SECTION 5.10. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR . At
each Time of Delivery, the Depositor shall acquire and retain beneficial and
record ownership of the Common Securities. To the fullest extent permitted by
law, other than a transfer in connection with a consolidation or merger of the
Depositor into another corporation, or any conveyance, transfer or lease by the
Depositor of its properties and assets substantially as an entirety to any
Person, pursuant to Section 8.1 of the Indenture, any attempted transfer of the
Common Securities shall be void. The Administrative Trustees shall cause each
Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
SECTION 5.11. BOOK-ENTRY PREFERRED SECURITIES CERTIFICATES;
COMMON SECURITIES CERTIFICATE . (a) The Preferred Securities Certificates, upon
original issuance, may be issued in the form of Definitive Preferred Securities
Certificates in fully registered form or in the form of a typewritten Preferred
Securities Certificate or Certificates representing Book-Entry Preferred
Securities Certificates, to be delivered to The Depository Trust Company, the
initial Clearing Agency, by, or on behalf of, the Trust. Such Book-Entry
Preferred Securities Certificate or Certificates shall initially be registered
on the Securities Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Owner will receive a Definitive Preferred Securities
Certificate representing such Owner's interest in such Preferred Securities,
except as provided, however in Section 5.13. Unless and until Definitive
Preferred Securities Certificates have been issued to Owners pursuant to Section
5.13:
(i) the provisions of this Section 5.11(a) shall be in full
force and effect;
(ii) the Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement relating to the Book-Entry
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Preferred Securities Certificates (including the payment of the
Liquidation Amount of and Distributions on the Preferred Securities
evidenced by Book-Entry Preferred Securities Certificates and the
giving of instructions or directions to Owners of Preferred Securities
evidenced by Book-Entry Preferred Securities Certificates) as the sole
Holder of Preferred Securities evidenced by Book-Entry Preferred
Securities Certificates and shall have no obligations to the Owners
thereof;
(iii) to the extent that the provisions of this Section 5.11
conflict with any other provisions of this Trust Agreement, the
provisions of this Section 5.11 shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred
Securities Certificates shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements
between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless
and until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.13, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit payments on the Preferred Securities to such Clearing
Agency Participants.
(b) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a definitive
Common Securities Certificate.
SECTION 5.12. NOTICES TO CLEARING AGENCY . To the extent that
a notice or other communication to the Owners is required under this Trust
Agreement, unless and until Definitive Preferred Securities Certificates shall
have been issued to Owners, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the Clearing Agency,
and shall have no obligations to the Owners.
SECTION 5.13. DEFINITIVE PREFERRED SECURITIES CERTIFICATES .
If (a) the Depositor advises the Trustees in writing that the Clearing Agency is
no longer willing or able to properly discharge its responsibilities with
respect to the Preferred Securities Certificates, and the Depositor is unable to
locate a qualified successor, (b) the Depositor at its option advises the
Trustees in writing that it elects to terminate the book-entry system through
the Clearing Agency or (c) after the occurrence of a Debenture Event of Default,
Owners of Preferred Securities Certificates representing beneficial interests
aggregating at least a majority of the Liquidation Amount advise the
Administrative Trustees in writing that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interest of the Owners of
Preferred Securities Certificates, then the Administrative Trustee shall notify
the Clearing Agency and the Clearing Agency shall notify all Owners of Preferred
Securities Certificates and the other Trustees of the occurrence of any such
event and of the availability of the Definitive Preferred Securities
Certificates to Owners of such class or classes, as applicable, requesting the
same. Upon surrender to the Administrative Trustees of the typewritten Preferred
Securities Certificate or Certificates representing the Book-Entry Preferred
Securities Certificates by the Clearing Agency, accompanied by registration
instructions,
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the Administrative Trustees, or any one of them, shall execute the Definitive
Preferred Securities Certificates in accordance with the instructions of the
Clearing Agency. Neither the Securities Registrar nor the Trustees shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions. Upon the issuance
of Definitive Preferred Securities Certificates, the Trustees shall recognize
the Holders of the Definitive Preferred Securities Certificates as
Securityholders. The Definitive Preferred Securities Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees or any one of them.
SECTION 5.14. RIGHTS OF SECURITYHOLDERS . (a) The legal title
to the Trust Property is vested exclusively in the Property Trustee (in its
capacity as such) in accordance with Section 2.9, and the Securityholders shall
not have any right or title therein other than the undivided beneficial interest
in the assets of the Trust conferred by their Trust Securities and they shall
have no right to call for any partition or division of property, profits or
rights of the Trust except as described below. The Trust Securities shall be
personal property giving only the rights specifically set forth therein and in
this Trust Agreement. The Trust Securities shall have no preemptive or similar
rights and when issued and delivered to Securityholders against payment of the
purchase price therefor will be fully paid and nonassessable by the Trust. The
Holders of the Trust Securities, in their capacities as such, shall be entitled
to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
(b) For so long as any Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the Debenture Trustee fails
or the holders of not less than 25% in principal amount of the outstanding
Debentures fail to declare the principal of all of the Debentures to be
immediately due and payable, the Holders of at least 25% in Liquidation Amount
of the Preferred Securities then Outstanding shall have such right by a notice
in writing to the Depositor and the Debenture Trustee; and upon any such
declaration such principal amount of and the accrued interest on all of the
Debentures shall become immediately due and payable, provided, however that the
payment of principal and interest on such Debentures shall remain subordinated
to the extent provided, however in the Indenture.
At any time after such a declaration of acceleration with
respect to the Debentures has been made and before a judgment or decree for
payment of the money due has been obtained by the Debenture Trustee as in the
Indenture provided, however, the Holders of a majority (based on Liquidation
Amounts) of the Outstanding Preferred Securities, by written notice to the
Property Trustee, the Depositor and the Debenture Trustee, may rescind and annul
such declaration and its consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
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(A) all overdue installments of interest (including
any Additional Interest (as defined in the Indenture)) on all
of the Debentures,
(B) the principal of (and premium, if any, on) any
Debentures which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Debentures, and
(C) all sums paid or advanced by the Debenture
Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Debenture Trustee
and the Property Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Debentures,
other than the non-payment of the principal of the Debentures which has
become due solely by such acceleration, have been cured or waived as
provided, however in Section 5.13 of the Indenture.
The Holders of a majority (based on Liquidation Amounts) of
the Outstanding Preferred Securities may, on behalf of the Holders of all the
Preferred Securities, waive any past default under the Indenture, except a
default in the payment of principal or interest (unless such default has been
cured and a sum sufficient to pay all matured installments of interest and
principal due otherwise than by acceleration has been deposited with the
Debenture Trustee) or a default in respect of a covenant or provision which
under the Indenture cannot be modified or amended without the consent of the
holder of each outstanding Debenture. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice
declaring such an acceleration, or rescission and annulment thereof, by Holders
of the Preferred Securities all or part of which is represented by Book-Entry
Preferred Securities Certificates, a record date shall be established for
determining Holders of Outstanding Preferred Securities entitled to join in such
notice, which record date shall be at the close of business on the day the
Property Trustee receives such notice. The Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to join in
such notice, whether or not such Holders remain Holders after such record date;
provided, however, that, unless such declaration of acceleration, or rescission
and annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.14(b).
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(c) For so long as any Preferred Securities remain
Outstanding, to the fullest extent permitted by law and subject to the terms of
this Trust Agreement and the Indenture, upon a Debenture Event of Default
specified in Section 5.1(1) or 5.1(2) of the Indenture, any Holder of Preferred
Securities shall have the right to institute a proceeding directly against the
Depositor, pursuant to Section 5.8 of the Indenture, for enforcement of payment
to such Holder of the principal amount of or interest on Debentures having a
principal amount equal to the Liquidation Amount of the Preferred Securities of
such Holder (a "Direct Action"). Except as set forth in Section 5.14(b) and this
Section 5.14(c), the Holders of Preferred Securities shall have no right to
exercise directly any right or remedy available to the holders of, or in respect
of, the Debentures.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. LIMITATIONS ON VOTING RIGHTS . (a) Except as
provided, however in this Section, in Sections 5.14, 8.10 and 10.2 and in the
Indenture and as otherwise required by law, no Holder of Preferred Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on the Debenture Trustee with respect to
such Debentures, (ii) waive any past default which is waivable under Section
5.13 of the Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debentures shall be due and payable or
(iv) consent to any amendment, modification or termination of the Indenture or
the Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of at least a majority (based on
Liquidation Amounts) of all Outstanding Preferred Securities, provided, however,
that where a consent under the Indenture would require the consent of each
Holder of Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior written consent of each Holder of Preferred
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of Preferred Securities, except by a
subsequent vote of the Holders of Preferred Securities. The Property Trustee
shall notify all Holders of the Preferred Securities of any notice of default
received from the Debenture Trustee with respect to the Debentures. In addition
to obtaining the foregoing approvals of the Holders of the Preferred Securities,
prior to taking any of the foregoing actions, the Trustees shall, at the expense
of the Depositor, obtain an Opinion of Counsel experienced in such matters to
the effect that such action shall not cause the Trust to fail to be classified
as a grantor trust for U.S. Federal income tax purposes.
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(c) If any proposed amendment to the Trust Agreement provides
for, or the Trustees otherwise propose to effect, (i) any action that would
adversely affect in any material respect the powers, preferences or special
rights of the Preferred Securities, whether by way of amendment to the Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or termination of
the Trust, other than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Preferred Securities as a class will be entitled to vote
on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a majority (based
on Liquidation Amounts) of the Outstanding Preferred Securities. Notwithstanding
any other provision of this Trust Agreement, no amendment to this Trust
Agreement may be made if, as a result of such amendment, it would cause the
Trust to fail to be classified as a grantor trust for U.S.
Federal income tax purposes.
SECTION 6.2. NOTICE OF MEETINGS . Notice of all meetings of
the Preferred Securityholders, stating the time, place and purpose of the
meeting, shall be given by the Property Trustee pursuant to Section 10.8 to each
Preferred Securityholder of record, at his registered address, at least 15 days
and not more than 90 days before the meeting. At any such meeting, any business
properly before the meeting may be so considered whether or not stated in the
notice of the meeting. Any adjourned meeting may be held as adjourned without
further notice.
SECTION 6.3. MEETINGS OF PREFERRED SECURITYHOLDERS . No annual
meeting of Securityholders is required to be held. The Administrative Trustees,
however, shall call a meeting of Preferred Securityholders to vote on any matter
upon the written request of the Preferred Securityholders of record of 25% of
the Preferred Securities (based upon Liquidation Amounts) and the Administrative
Trustees or the Property Trustee may, at any time in their discretion, call a
meeting of Preferred Securityholders to vote on any matters as to which
Preferred Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the Outstanding
Preferred Securities (based upon Liquidation Amounts), present in person or by
proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by
the Preferred Securityholders of record present, in person or by proxy, holding
more than a majority of the Preferred Securities (based upon Liquidation
Amounts) held by the Preferred Securityholders of record present, either in
person or by proxy, at such meeting shall constitute the action of the Preferred
Securityholders, unless this Trust Agreement requires a greater number of
affirmative votes.
SECTION 6.4. VOTING RIGHTS . Securityholders shall be entitled
to one vote for each $_____ of Liquidation Amount represented by their Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote.
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SECTION 6.5. PROXIES, ETC. At any meeting of Securityholders,
any Securityholder entitled to vote thereat may vote by proxy, provided, however
that no proxy shall be voted at any meeting unless it shall have been placed on
file with the Administrative Trustees, or with such other officer or agent of
the Trust as the Administrative Trustees may direct, for verification prior to
the time at which such vote shall be taken. Pursuant to a resolution of the
Property Trustee, proxies may be solicited in the name of the Property Trustee
or one or more officers of the Property Trustee. Only Securityholders of record
shall be entitled to vote. When Trust Securities are held jointly by several
persons, any one of them may vote at any meeting in person or by proxy in
respect of such Trust Securities, but if more than one of them shall be present
at such meeting in person or by proxy, and such joint owners or their proxies so
present disagree as to any vote to be cast, such vote shall not be received in
respect of such Trust Securities. A proxy purporting to be executed by or on
behalf of a Securityholder shall be deemed valid unless challenged at or prior
to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
SECTION 6.6. SECURITYHOLDER ACTION BY WRITTEN CONSENT . Any
action which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding more than a majority of all Outstanding Trust
Securities (based upon Liquidation Amounts) entitled to vote in respect of such
action (or such larger proportion thereof as shall be required by any express
provision of this Trust Agreement) shall consent to the action in writing.
SECTION 6.7. RECORD DATE FOR VOTING AND OTHER PURPOSES . For
the purposes of determining the Securityholders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided, however for in this Trust Agreement, or for the purpose of
any other action, the Administrative Trustees may from time to time fix a date,
not more than 90 days prior to the date of any meeting of Securityholders or the
payment of a distribution or other action, as the case may be, as a record date
for the determination of the identity of the Securityholders of record for such
purposes.
SECTION 6.8. ACTS OF SECURITYHOLDERS . Any request, demand,
authorization, direction, notice, consent, waiver or other action provided,
however or permitted by this Trust Agreement to be given, made or taken by
Securityholders or Owners may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Securityholders or
Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided, however herein, such action shall become effective
when such instrument or instruments are delivered to an Administrative Trustee.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders or
Owners signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.1) conclusive in favor
of the Trustees, if made in the manner provided, however in this Section.
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The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust Security shall
bind every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustees or the Trust in reliance thereon,
whether or not notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount of
such Trust Security or by one or more duly appointed agents each of which may do
so pursuant to such appointment with regard to all or any part of such
liquidation amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
A Securityholder may institute a legal proceeding directly
against the Depositor under the Guarantee to enforce its rights under the
Guarantee without first instituting a legal proceeding against the Guarantee
Trustee (as defined in the Guarantee), the Trust or any person or entity.
SECTION 6.9. INSPECTION OF RECORDS . Upon reasonable notice to
the Administrative Trustees and the Property Trustee, the records of the Trust
shall be open to inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest as a
Securityholder.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. REPRESENTATIONS AND WARRANTIES OF THE PROPERTY
TRUSTEE AND THE DELAWARE TRUSTEE . The Property Trustee and the Delaware
Trustee, each severally on behalf of and as to itself, hereby represents and
warrants for the benefit of the Depositor and the Securityholders that:
(a) the Property Trustee is a banking corporation, duly
organized, validly existing and in good standing under the laws of the
State of Delaware;
(b) the Property Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under
this Trust Agreement and has taken all necessary action to authorize
the execution, delivery and performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware corporation duly
organized, validly existing and in good standing in the State of
Delaware;
(d) the Delaware Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under
this Trust Agreement and has taken all necessary action to authorize
the execution, delivery and performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed
and delivered by the Property Trustee and the Delaware Trustee and
constitutes the valid and legally binding agreement of each of the
Property Trustee and the Delaware Trustee enforceable against each of
them in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
(f) the execution, delivery and performance of this Trust
Agreement has been duly authorized by all necessary corporate or other
action on the part of the Property Trustee and the Delaware Trustee and
does not require any approval of stockholders of the Property Trustee
and the Delaware Trustee and such execution, delivery and performance
will not (i) violate the Charter or By-laws of the Property Trustee or
the Delaware Trustee, (ii) violate any provision of, or constitute,
with or without notice or lapse of time, a default under, or result in
the creation or imposition of, any Lien on any properties included in
the Trust Property pursuant to the provisions of, any indenture,
mortgage, credit agreement, license or other agreement or instrument to
which the Property Trustee or the Delaware Trustee is a party or by
which it is bound, or (iii) violate any law, governmental rule or
regulation of the United States or the State of Delaware, as the case
may be, governing the banking, trust or
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general powers of the Property Trustee or the Delaware Trustee (as
appropriate in context) or any order, judgment or decree applicable to
the Property Trustee or the Delaware Trustee;
(g) neither the authorization, execution or delivery by the
Property Trustee or the Delaware Trustee of this Trust Agreement nor
the consummation of any of the transactions by the Property Trustee or
the Delaware Trustee (as appropriate in context) contemplated herein or
therein requires the consent or approval of, the giving of notice to,
the registration with or the taking of any other action with respect to
any governmental authority or agency under any existing Federal law
governing the banking, trust or general powers of the Property Trustee
or the Delaware Trustee, as the case may be, under the laws of the
United States or the State of Delaware;
(h) there are no proceedings pending or, to the best of each
of the Property Trustee's and the Delaware Trustee's knowledge,
threatened against or affecting the Property Trustee or the Delaware
Trustee in any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the aggregate,
would materially and adversely affect the Trust or would question the
right, power and authority of the Property Trustee or the Delaware
Trustee, as the case may be, to enter into or perform its obligations
as one of the Trustees under this Trust Agreement.
SECTION 7.2. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR . The
Depositor hereby represents and warrants for the benefit of the Securityholders
that:
(a) the Trust Securities Certificates issued at each Time of
Delivery on behalf of the Trust have been duly authorized and will have
been, duly and validly executed, issued and delivered by the Trustees
pursuant to the terms and provisions of, and in accordance with the
requirements of, this Trust Agreement and the Securityholders will be,
as of each such date, entitled to the benefits of this Trust Agreement;
and
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Trustees on behalf of the Trust) under the
laws of the State of Delaware or any political subdivision thereof in
connection with the execution, delivery and performance by the Property
Trustee or the Delaware Trustee, as the case may be, of this Trust
Agreement.
ARTICLE VIII
THE TRUSTEES
SECTION 8.1. CERTAIN DUTIES AND RESPONSIBILITIES . (a) The
duties and responsibilities of the Trustees shall be as provided, however by
this Trust Agreement and, in the case of the Property Trustee, by the Trust
Indenture Act. Notwithstanding the foregoing, no provision of this Trust
Agreement shall require the Trustees to expend or risk their own funds or
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otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, however, every provision of
this Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of this
Section. Nothing in this Trust Agreement shall be construed to release an
Administrative Trustee from liability for its own gross negligent action, its
own gross negligent failure to act, or its own willful misconduct. To the extent
that, at law or in equity, an Administrative Trustee has duties (including
fiduciary duties) and liabilities relating thereto to the Trust or to the
Securityholders, such Administrative Trustee shall not be liable to the Trust or
to any Securityholder for such Trustee's good faith reliance on the provisions
of this Trust Agreement. The provisions of this Trust Agreement, to the extent
that they restrict the duties and liabilities of the Administrative Trustees
otherwise existing at law or in equity, are agreed by the Depositor and the
Securityholders to replace such other duties and liabilities of the
Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms hereof.
Each Securityholder, by its acceptance of a Trust Security, agrees that it will
look solely to the revenue and proceeds from the Trust Property to the extent
legally available for distribution to it as herein provided, however and that
the Trustees are not personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in respect of any Trust
Security. This Section 8.1(b) does not limit the liability of the Trustees
expressly set forth elsewhere in this Trust Agreement or, in the case of the
Property Trustee, in the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in Liquidation Amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such
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Property in a similar manner as the Property Trustee deals with similar
property for its own account, subject to the protections and
limitations on liability afforded to the Property Trustee under this
Trust Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.1 and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the default or misconduct of
the Administrative Trustees or the Depositor.
SECTION 8.2. CERTAIN NOTICES . Within five Business Days after
the occurrence of any Event of Default actually known to the Property Trustee,
the Property Trustee shall transmit, in the manner and to the extent provided,
however in Section 10.8, notice of such Event of Default to the Securityholders,
the Administrative Trustees and the Depositor, unless such Event of Default
shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Indenture, the Administrative Trustee shall transmit,
in the manner and to the extent provided, however in Section 10.8, notice of
such exercise to the Securityholders and the Property Trustee, unless such
exercise shall have been revoked.
SECTION 8.3. CERTAIN RIGHTS OF PROPERTY TRUSTEE . Subject to
the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement
the Property Trustee is required to decide between alternative courses
of action or (ii) in construing any of the provisions of this Trust
Agreement the Property Trustee finds the same ambiguous or inconsistent
with any other provisions contained herein or (iii) the Property
Trustee is unsure of the application of any provision of this Trust
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Agreement, then, except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of
action to be taken and the Property Trustee shall take such action, or
refrain from taking such action, as the Property Trustee shall be
instructed in writing to take, or to refrain from taking, by the
Depositor; provided, however, that if the Property Trustee does not
receive such instructions of the Depositor within ten Business Days
after it has delivered such notice, or such reasonably shorter period
of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty
to, take or refrain from taking such action not inconsistent with this
Trust Agreement as it shall deem advisable and in the best interests of
the Securityholders, in which event the Property Trustee shall have no
liability except for its own bad faith, negligence or willful
misconduct;
(c) any direction or act of the Depositor or the
Administrative Trustees contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement,
the Property Trustee shall deem it desirable that a matter be
established before undertaking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Depositor or the
Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or reregistration
thereof;
(f) the Property Trustee may consult with counsel (which
counsel may be counsel to the Depositor or any of its Affiliates, and
may include any of its employees) and the advice of such counsel shall
be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon and in accordance with such advice, such counsel may
be counsel to the Depositor or any of its Affiliates, and may include
any of its employees; the Property Trustee shall have the right at any
time to seek instructions concerning the administration of this Trust
Agreement from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the Securityholders
pursuant to this Trust Agreement, unless such Securityholders shall
have offered to the Property Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
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(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to
do so by one or more Securityholders, but the Property Trustee may make
such further inquiry or investigation into such facts or matters as it
may see fit;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, provided, however that the Property
Trustee shall be responsible for its own negligence or recklessness
with respect to selection of any agent or attorney appointed by it
hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the
Holders of the Trust Securities which instructions may only be given by
the Holders of the same proportion in Liquidation Amount of the Trust
Securities as would be entitled to direct the Property Trustee under
the terms of the Trust Securities in respect of such remedy, right or
action, (ii) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions; and
(k) except as otherwise expressly provided, however by this
Trust Agreement, the Property Trustee shall not be under any obligation
to take any action that is discretionary under the provisions of this
Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 8.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES . The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the Trustees do
not assume any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Debentures.
SECTION 8.5. MAY HOLD SECURITIES . Except as provided, however
in the definition of the term "Outstanding" in Article I, any Trustee or any
other agent of any Trustee or the Trust, in its individual or any other
capacity, may become the owner or pledgee of Trust Securities and, subject to
Sections 8.8 and 8.13, may otherwise deal with the Trust with the same rights it
would have if it were not a Trustee or such other agent.
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SECTION 8.6. COMPENSATION; INDEMNITY; FEES . The Depositor
agrees:
(a) to pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided, however herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Trust Agreement (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Trustee, (ii) any Affiliate of any
Trustee, (iii) any officer, director, shareholder, employee,
representative or agent of any Trustee, and (iv) any employee or agent
of the Trust or its Affiliates, (referred to herein as an "Indemnified
Person") from and against any loss, damage, liability, tax, penalty,
expense or claim of any kind or nature whatsoever incurred by such
Indemnified Person by reason of the creation, operation or termination
of the Trust or any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner
such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Trust Agreement,
except that no Indemnified Person shall be entitled to be indemnified
in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of negligence or willful misconduct with respect to
such acts or omissions.
The provisions of this Section 8.6 shall survive the
termination of this Trust Agreement.
No Trustee may claim any lien or charge on any Trust Property
as a result of any amount due pursuant to this Section 8.6.
The Depositor and any Trustee may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Trust, and the
Trust and the Holders of Trust Securities shall have no rights by virtue of this
Trust Agreement in and to such independent ventures or the income or profits
derived therefrom, and the pursuit of any such venture, even if competitive with
the business of the Trust, shall not be deemed wrongful or improper. Neither the
Depositor, nor any Trustee, shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and the
Depositor or any Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Trustee may engage or be
interested in any financial or other transaction with the Depositor or any
Affiliate of
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the Depositor, or may act as depository for, trustee or agent for, or act on any
committee or body of holders of, securities or other obligations of the
Depositor or its Affiliates.
SECTION 8.7. CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY
OF TRUSTEES . (a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each Administrative
Trustee shall be either a natural person who is at least 21 years of age or a
legal entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the State of
Delaware or (ii) a legal entity with its principal place of business in the
State of Delaware and that otherwise meets the requirements of applicable
Delaware law that shall act through one or more persons authorized to bind such
entity.
SECTION 8.8. CONFLICTING INTERESTS . (a) If the Property
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Property Trustee shall either eliminate such interest
or resign, to the extent and in the manner provided, however by, and subject to
the provisions of, the Trust Indenture Act and this Trust Agreement.
(b) The Guarantee Agreement and the Indenture shall be deemed
to be specifically described in this Trust Agreement for the purposes of clause
(i) of the first provision contained in Section 310(b) of the Trust Indenture
Act.
SECTION 8.9. CO-TRUSTEES AND SEPARATE TRUSTEE . Unless an
Event of Default shall have occurred and be continuing, at any time or times,
for the purpose of meeting the legal requirements of the Trust Indenture Act or
of any jurisdiction in which any part of the Trust Property may at the time be
located, the Depositor and the Administrative Trustees, by agreed action of the
majority of such Trustees, shall have power to appoint, and upon the written
request of the Administrative Trustees, the Depositor shall for such purpose
join with the Administrative Trustees in the execution, delivery, and
performance of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to act as
co-trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law
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to act as separate trustee of any such property, in either case with such powers
as may be provided, however in the instrument of appointment, and to vest in
such Person or Persons in the capacity aforesaid, any property, title, right or
power deemed necessary or desirable, subject to the other provisions of this
Section. If the Depositor does not join in such appointment within 15 days after
the receipt by it of a request so to do, or in case a Debenture Event of Default
has occurred and is continuing, the Property Trustee alone shall have power to
make such appointment. Any co-trustee or separate trustee appointed pursuant to
this Section shall either be (i) a natural person who is at least 21 years of
age and a resident of the United States or (ii) a legal entity with its
principal place of business in the United States that shall act through one or
more persons authorized to bind such entity.
Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right, or power, any
and all such instruments shall, on request, be executed, acknowledged and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(a) The Trust Securities shall be executed and delivered and
all rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees specified
hereunder shall be exercised solely by such Trustees and not by such
co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided, however in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the
Property Trustee shall be incompetent or unqualified to perform such
act, in which event such rights, powers, duties and obligations shall
be exercised and performed by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, in case a Debenture Event of
Default has occurred and is continuing, the Property Trustee shall have
power to accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor. Upon the
written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any
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co-trustee or separate trustee so resigned or removed may be appointed
in the manner provided, however in this Section.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee or any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate
trustee.
SECTION 8.10. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR . No resignation or removal of any Trustee (the "Relevant Trustee")
and no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant
Trustee may resign at any time by giving written notice thereof to the
Securityholders. If the instrument of acceptance by the successor Trustee
required by Section 8.11 shall not have been delivered to the Relevant Trustee
within 30 days after the giving of such notice of resignation, the Relevant
Trustee may petition, at the expense of the Trust, any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Holder of the
Common Securities. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority (based on
Liquidation Amounts) of the Outstanding Preferred Securities, delivered to the
Relevant Trustee (in its individual capacity and on behalf of the Trust). An
Administrative Trustee may be removed by the Holder of the Common Securities at
any time.
If any Trustee shall resign, be removed or become incapable of
acting as Trustee, or if a vacancy shall occur in the office of any Trustee for
any cause, at a time when no Debenture Event of Default shall have occurred and
be continuing, the Holder of the Common Securities, by Act of the Holder of the
Common Securities delivered to the retiring Trustee, shall promptly appoint a
successor Trustee or Trustees, and the retiring Trustee shall comply with the
applicable requirements of Section 8.11. If the Property Trustee or the Delaware
Trustee shall resign, be removed or become incapable of continuing to act as the
Property Trustee or the Delaware Trustee, as the case may be, at a time when a
Debenture Event of Default shall have occurred and be continuing, the Holders of
Preferred Securities, by Act of the Securityholders of a majority (based on
Liquidation Amounts) of the Outstanding Preferred Securities delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee
or Trustees, and such successor Trustee
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shall comply with the applicable requirements of Section 8.11. If an
Administrative Trustee shall resign, be removed or become incapable of acting as
Administrative Trustee, at a time when a Debenture Event of Default shall have
occurred and be continuing, the Holder of the Common Securities by Act of the
Common Securityholder delivered to the Administrative Trustee shall promptly
appoint a successor Administrative Trustee or Administrative Trustees and such
successor Administrative Trustee or Trustees shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee shall have been
so appointed by the Holder of the Common Securities or the Holders of Preferred
Securities and accepted appointment in the manner required by Section 8.11, any
Securityholder who has been a Securityholder of Trust Securities for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Relevant
Trustee.
The Property Trustee shall give notice of each resignation and
each removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided, however in Section 10.8 and shall give
notice to the Depositor. Each notice shall include the name of the successor
Relevant Trustee and the address of its Corporate Trust Office if it is the
Property Trustee.
Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee or a Delaware Trustee
who is a natural person dies or becomes, in the opinion of the Depositor,
incompetent or incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by (a) the unanimous act of the remaining
Administrative Trustees if there are at least two of them or (b) otherwise by
the Depositor (with the successor in each case being a Person who satisfies the
eligibility requirement for Administrative Trustees or Delaware Trustee, as the
case may be, set forth in Section 8.7).
SECTION 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR . In case
of the appointment hereunder of a successor Trustee such successor Trustee so
appointed shall execute, acknowledge and deliver to the Trust and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Depositor or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and if the Property Trustee is the resigning Trustee shall duly
assign, transfer and deliver to the successor Trustee all property and money
held by such retiring Property Trustee hereunder.
In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Relevant Trustee with
respect to the Trust Securities shall execute and deliver an amendment hereto
wherein each successor Relevant Trustee shall accept such appointment and which
(a) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust and (b) shall
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add to or change any of the provisions of this Trust Agreement as shall be
necessary to provide for or facilitate the administration of the Trust by more
than one Relevant Trustee, it being understood that nothing herein or in such
amendment shall constitute such Relevant Trustees co-trustees and upon the
execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided, however
therein and each such successor Relevant Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee; but, on request of the Trust or any
successor Relevant Trustee such retiring Relevant Trustee shall duly assign,
transfer and deliver to such successor Relevant Trustee all Trust Property, all
proceeds thereof and money held by such retiring Relevant Trustee hereunder with
respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
SECTION 8.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS . Any corporation into which the Property Trustee or the Delaware
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which such
Relevant Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of such Relevant Trustee, shall
be the successor of such Relevant Trustee hereunder, provided, however such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
SECTION 8.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR OR TRUST . In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Trust or any other obligor
upon the Trust Securities or the property of the Trust or of such other obligor
or their creditors, the Property Trustee (irrespective of whether any
Distributions on the Trust Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Property Trustee shall have made any demand on the Trust for the payment of any
past due Distributions) shall be entitled and empowered, to the fullest extent
permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and
to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Property Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the
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Property Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the
Property Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement adjustment or compensation
affecting the Trust Securities or the rights of any Holder thereof or to
authorize the Property Trustee to vote in respect of the claim of any Holder in
any such proceeding.
SECTION 8.14. REPORTS BY PROPERTY TRUSTEE . (a) Not later than
________ __ of each year commencing with ________ __, 1999, the Property Trustee
shall transmit to all Securityholders in accordance with Section 10.8, and to
the Depositor, a brief report dated as of the immediately preceding December 31
with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if
to the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with
all of its obligations under this Trust Agreement during the
twelve-month period (or, in the case of the initial report, the period
since the Closing Date) ending with such December 31 or, if the
Property Trustee has not complied in any material respect with such
obligations, a description of such noncompliance; and
(iii) any change in the property and funds in its possession
as Property Trustee since the date of its last report and any action
taken by the Property Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its actions
under this Trust Agreement as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided, however pursuant thereto.
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(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each national
stock exchange, the Nasdaq Stock Market or such other interdealer quotation
system or self-regulatory organization upon which the Trust Securities are
listed or traded, with the Commission and with the Depositor.
SECTION 8.15. REPORTS TO THE PROPERTY TRUSTEE . The Depositor
and the Administrative Trustees on behalf of the Trust shall provide to the
Property Trustee such documents, reports and information as required by Section
314 of the Trust Indenture Act (if any) and the compliance certificate required
by Section 314(a) of the Trust Indenture Act in the form, in the manner and at
the times required by Section 314 of the Trust Indenture Act.
SECTION 8.16. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT
. Each of the Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided, however for in this Trust Agreement that
relate to any of the matters set forth in Section 314 (c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
SECTION 8.17. NUMBER OF TRUSTEES . (a) The number of Trustees
shall be four, provided, however that the Holder of all of the Common Securities
by written instrument may increase or decrease the number of Administrative
Trustees. The Property Trustee and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section 8.17(a), or
if the number of Trustees is increased pursuant to Section 8.17(a), a vacancy
shall occur. The vacancy shall be filled with a Trustee appointed in accordance
with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
SECTION 8.18. DELEGATION OF POWER . (a) Any Administrative
Trustee may, by power of attorney consistent with applicable law, delegate to
any other natural person over the age of 21 his or her power for the purpose of
executing any documents contemplated in Section 2.7(a), including any
registration statement or amendment thereto filed with the Commission, or making
any other governmental filing; and
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(b) The Administrative Trustees shall have power to delegate
from time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Trust Agreement, as set
forth herein.
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. TERMINATION UPON EXPIRATION DATE . Unless earlier
terminated, the Trust shall automatically terminate on December 31, 2044 (the
"Expiration Date"), following the distribution of the Trust Property in
accordance with Section 9.4.
SECTION 9.2. EARLY TERMINATION . The first to occur of any of
the following events is an "Early Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from the
Depositor at any time to terminate the Trust and distribute Debentures
to Securityholders in exchange for the Preferred Securities (which
direction is optional and wholly within the discretion of the
Depositor);
(c) the redemption of all of the Preferred Securities in
connection with the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Trust by a
court of competent jurisdiction.
SECTION 9.3. TERMINATION . The respective obligations and
responsibilities of the Trustees and the Trust created and continued hereby
shall terminate upon the latest to occur of the following: (a) the distribution
by the Property Trustee to Securityholders upon the liquidation of the Trust
pursuant to Section 9.4, or upon the redemption of all of the Trust Securities
pursuant to Section 4.2, of all amounts required to be distributed hereunder
upon the final payment of the Trust Securities; (b) the payment of any expenses
owed by the Trust; and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
SECTION 9.4. LIQUIDATION . (a) If an Early Termination Event
specified in clause (a), (b) or (d) of Section 9.2 occurs or upon the Expiration
Date, the Trust shall be liquidated by the
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Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided, however by applicable law, to each Securityholder a Like Amount of
Debentures, subject to Section 9.4(d). Notice of liquidation shall be given by
the Property Trustee by first-class mail, postage prepaid mailed not later than
30 nor more than 60 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities Register. All
notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures or the right to receive a
Liquidation Distribution, as applicable; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Debentures, or if Section 9.4(d) applies receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Property Trustee, either itself acting as exchange agent or
through the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of Debentures
in exchange for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will be
issued to holders of Trust Securities Certificates, upon surrender of such
certificates to the Administrative Trustees or their agent for exchange, (iii)
the Depositor shall use its best efforts to have the Debentures listed on the
New York Stock Exchange or on such other exchange, interdealer quotation system
or self-regulatory organization as the Preferred Securities are then listed,
(iv) any Trust Securities Certificates not so surrendered for exchange will be
deemed to represent a Like Amount of Debentures, accruing interest at the rate
provided, however for in the Debentures from the last Distribution Date on which
a Distribution was made on such Trust Securities Certificates until such
certificates are so surrendered (and until such certificates are so surrendered,
no payments of interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Debentures) and (v) all rights of
Securityholders holding Trust Securities will cease, except the right of such
Securityholders to receive Debentures upon surrender of Trust Securities
Certificates.
(d) In the event that, notwithstanding the other provisions of
this Section 9.4, whether because of an order for dissolution entered by a court
of competent jurisdiction or otherwise, distribution of the Debentures in the
manner provided, however herein is determined by the Property
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Trustee not to be practical, the Trust Property shall be liquidated, and the
Trust shall be dissolved, wound-up or terminated, by the Property Trustee in
such manner as the Property Trustee determines. In such event, on the date of
the dissolution, winding-up or other termination of the Trust, Securityholders
will be entitled to receive out of the assets of the Trust available for
distribution to Securityholders, after satisfaction of liabilities to creditors
of the Trust as provided, however by applicable law, an amount equal to the
Liquidation Amount per Trust Security plus accumulated and unpaid Distributions
thereon to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such dissolution, winding up or termination, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The holder of the Common Securities will be entitled
to receive Liquidation Distributions upon any such dissolution, winding-up or
termination pro rata (determined as aforesaid) with Holders of Preferred
Securities, except that, if a Debenture Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities.
SECTION 9.5. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
REPLACEMENTS OF THE TRUST . The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other body, except
pursuant to this Section 9.5. At the request of the Depositor, with the consent
of the Administrative Trustees and without the consent of the Holders of the
Preferred Securities, the Property Trustee or the Delaware Trustee, the Trust
may merge with or into, consolidate, amalgamate, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to a
trust organized as such under the laws of any State; provided, however, that (i)
such successor entity either (a) expressly assumes all of the obligations of the
Trust with respect to the Preferred Securities or (b) substitutes for the
Preferred Securities other securities having substantially the same terms as the
Preferred Securities (the "Successor Securities") so long as the Successor
Securities rank the same as the Preferred Securities rank in priority with
respect to distributions and payments upon liquidation, redemption and
otherwise, (ii) the Depositor expressly appoints a trustee of such successor
entity possessing the same powers and duties as the Property Trustee as the
holder of the Debentures, (iii) the Successor Securities are listed or traded,
or any Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed or traded, if any, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of the
Preferred Securities (including any Successor Securities) in any material
respect, (vi) such successor entity has a purpose identical to that of the
Trust, (vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Depositor has received an Opinion of Counsel
to the effect that (a) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the holders of the Preferred Securities (including any
Successor Securities) in any material respect, and (b) following such
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merger, consolidation, amalgamation, replacement, conveyance, transfer or lease,
neither the Trust nor such successor entity will be required to register as an
investment company under the 1940 Act and (viii) the Depositor owns all of the
Common Securities of such successor entity and guarantees the obligations of
such successor entity under the Successor Securities at least to the extent
provided, however by the Guarantee. Notwithstanding the foregoing, the Trust
shall not, except with the consent of holders of 100% in Liquidation Amount of
the Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Trust or the successor entity to be classified as other than a grantor trust for
United States Federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. LIMITATION OF RIGHTS OF SECURITYHOLDERS . The
death or incapacity of any person having an interest, beneficial or otherwise,
in Trust Securities shall not operate to terminate this Trust Agreement, nor
entitle the legal representatives or heirs of such person or any Securityholder
for such person, to claim an accounting, take any action or bring any proceeding
in any court for a partition or winding up of the arrangements contemplated
hereby, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
SECTION 10.2. AMENDMENT . (a) This Trust Agreement may be
amended from time to time by the Property Trustee, the Administrative Trustees
and the Depositor, without the consent of any Securityholders, (i) to cure any
ambiguity, correct or supplement any provision herein which may be inconsistent
with any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement, or (ii) to
modify, eliminate or add to any provisions of this Trust Agreement to such
extent as shall be necessary to ensure that the Trust will be classified for
United States Federal income tax purposes as a grantor trust at all times that
any Trust Securities are outstanding or to ensure that the Trust will not be
required to register as an investment company under the 1940 Act; provided,
however, that in the case of clause (i), such action shall not adversely affect
in any material respect the interests of any Securityholder, and any amendments
of this Trust Agreement shall become effective when notice thereof is given to
the Securityholders.
(b) Except as provided, however in Section 10.2(c) hereof, any
provision of this Trust Agreement may be amended by the Trustees and the
Depositor with (i) the consent of Trust Securityholders representing not less
than a majority (based upon Liquidation Amounts) of the Trust Securities then
Outstanding and (ii) receipt by the Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the Trustees
in accordance with such
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amendment will not affect the Trust's status as a grantor trust for United
States Federal income tax purposes or the Trust's exemption from status of an
investment company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the Securityholders
(such consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to this Trust
Agreement which would cause the Trust to fail or cease to qualify for the
exemption from status of an investment company under the 1940 Act or fail or
cease to be classified as a grantor trust for United States Federal income tax
purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement may not be
amended in a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the Depositor a copy
of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Trust Agreement which
affects its own rights, duties or immunities under this Trust Agreement. The
Property Trustee shall be entitled to receive an Opinion of Counsel and an
Officers' Certificate stating that any amendment to this Trust Agreement is in
compliance with this Trust Agreement.
SECTION 10.3. SEPARABILITY . In case any provision in this
Trust Agreement or in the Trust Securities Certificates shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.4. GOVERNING LAW . THIS TRUST AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE
TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE.
SECTION 10.5. PAYMENTS DUE ON NON-BUSINESS DAY . If the date
fixed for any payment on any Trust Security shall be a day that is not a
Business Day, then such payment need not
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be made on such date but may be made on the next succeeding day that is a
Business Day (except as otherwise provided, however in Sections 4.1(a) and
4.2(d)), with the same force and effect as though made on the date fixed for
such payment, and no interest shall accrue thereon for the period after such
date.
SECTION 10.6. SUCCESSORS . This Trust Agreement shall be
binding upon and shall inure to the benefit of any successor to the Depositor,
the Trust or the Relevant Trustee, including any successor by operation of law.
Except in connection with a consolidation, merger or sale involving the
Depositor that is permitted under Article Eight of the Indenture and pursuant to
which the assignee agrees in writing to perform the Depositor's obligations
hereunder, the Depositor shall not assign its obligations hereunder.
SECTION 10.7. HEADINGS . The Article and Section headings are
for convenience only and shall not affect the construction of this Trust
Agreement.
SECTION 10.8. REPORTS, NOTICES AND DEMANDS . Any report,
notice, demand or other communication which by any provision of this Trust
Agreement is required or permitted to be given or served to or upon any
Securityholder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a
Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Depositor, to Owens Corning,
Owens Corning World Headquarters, Toledo, Ohio 43659, Attention:
_____________facsimile no.: (___) ___-____. Any notice to Preferred
Securityholders shall also be given to such owners as have, within two years
preceding the giving of such notice, filed their names and addresses with the
Property Trustee for that purpose. Such notice, demand or other communication to
or upon a Securityholder shall be deemed to have been sufficiently given or
made, for all purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon the Trust, the Property Trustee, the Delaware Trustee or the
Administrative Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (a) with respect to the Property
Trustee to Wilmington Trust Company, Rodney Square North, 1100 North Market
Street, Wilmington, Delaware 19890, facsimile (302) 651-8882, Attention:
Corporate Trust Administration; (b) with respect to the Delaware Trustee, to
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890, facsimile (302) 651-8882, Attention: Corporate Trust
Administration; and (c) with respect to the Administrative Trustees, to them at
the address above for notices to the Depositor, marked "Attention Administrative
Trustees of Owens Corning Capital IV." Such notice, demand or other
communication to or upon the Trust or the Property Trustee shall be deemed to
have been sufficiently given or made only upon actual receipt of the writing by
the Trust or the Property Trustee.
53
<PAGE> 60
SECTION 10.9. AGREEMENT NOT TO PETITION . Each of the Trustees
and the Depositor agree for the benefit of the Securityholders that, until at
least one year and one day after the Trust has been terminated in accordance
with Article IX, they shall not file, or join in the filing of, a petition
against the Trust under any bankruptcy, insolvency, reorganization or other
similar law (including, without limitation, the United States Bankruptcy Code)
(collectively, "Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.9, the Property Trustee
agrees, for the benefit of Securityholders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
SECTION 10.10. TRUST INDENTURE ACT; CONFLICT WITH TRUST
INDENTURE ACT . (a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Trust Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Trust Agreement modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Trust Agreement
as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 10.11. ACCEPTANCE OF TERMS OF TRUST AGREEMENT,
GUARANTEE AND INDENTURE . THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY
INTEREST THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER,
WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF
THIS TRUST AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER
TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF
THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF
THIS
54
<PAGE> 61
TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST
AND SUCH SECURITYHOLDER AND SUCH OTHERS.
OWENS CORNING
By:
-------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Property Trustee
By:
-------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:
-------------------------------------
Name:
Title:
-----------------------------------------
C. Jackson Snyder,
as Administrative Trustee
-----------------------------------------
Christine Harper,
as Administrative Trustee
55
<PAGE> 62
EXHIBIT A
CERTIFICATE OF TRUST
OF
OWENS CORNING CAPITAL IV
THIS CERTIFICATE OF TRUST of Owens Corning Capital IV (the
"Trust"), dated _______ __, 1999, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. (Section) 3801 et seq.).
1. NAME. The name of the business trust being formed hereby is
Owens Corning Capital IV.
2. DELAWARE TRUSTEE. The name and business address of the
trustee of the Trust with a principal place of business in the State of Delaware
are Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890.
3. EFFECTIVE DATE. This Certificate of Trust shall be
effective as of ________ __, 199_.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY,
as Trustee
By:
------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee
By:
------------------------------
Name:
Title:
<PAGE> 63
EXHIBIT B
[Form of Letter to The Depository Trust Company]
<PAGE> 64
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NUMBER C-1 NUMBER OF COMMON SECURITIES
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
OWENS CORNING CAPITAL IV
____% COMMON SECURITIES
(LIQUIDATION AMOUNT $___ PER COMMON SECURITY)
Owens Corning Capital IV, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Owens Corning (the "Holder") is the registered owner of ( ) common securities of
the Trust representing beneficial interests of the Trust and designated the
____% Common Securities (liquidation amount $___ per Common Security) (the
"Common Securities"). In accordance with Section 5.10 of the Trust Agreement (as
defined below) the Common Securities are not transferable and any attempted
transfer hereof shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of ___________, __, as the same may be amended from time to time (the "Trust
Agreement") including the designation of the terms of the Common Securities as
set forth therein. The Trust will furnish a copy of the Trust Agreement to the
Holder without charge upon written request to the Trust at its principal place
of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this ______ day of __________, ____.
OWENS CORNING CAPITAL IV
By:
----------------------------
Name:
Administrative Trustee
<PAGE> 65
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of __________ __, 199_, between Owens
Corning, a Delaware corporation ("Owens Corning"), and Owens Corning Capital IV,
a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive Debentures from Owens Corning and to issue
and sell ____% [Cumulative Quarterly Income Preferred] [Capital] Securities (the
"Preferred Securities") with such powers, preferences and special rights and
restrictions as are set forth in the Amended and Restated Trust Agreement of the
Trust dated as of _______ __, 1999 as the same may be amended from time to time
(the "Trust Agreement");
WHEREAS, Owens Corning will directly or indirectly own all of
the Common Securities of the Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each
holder of the Preferred Securities, which purchase Owens Corning hereby agrees
shall benefit Owens Corning and which purchase Owens Corning acknowledges will
be made in reliance upon the execution and delivery of this Agreement, Owens
Corning and Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. GUARANTEE BY OWENS CORNING. Subject to the terms
and conditions hereof, Owens Corning hereby irrevocably and unconditionally
guarantees to each person or entity to whom the Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries") the full payment, when and as
due, of any and all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any costs, expenses or liabilities of the
Trust, other than obligations of the Trust to pay to holders of any Preferred
Securities or other similar interests in the Trust the amounts due such holders
pursuant to the terms of the Preferred Securities or such other similar
interests, as the case may be. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
SECTION 1.2. TERM OF AGREEMENT. This Agreement shall terminate
and be of no further force and effect upon the later of (a) the date on which
full payment has been made of all amounts payable to all holders of all the
Preferred Securities (whether upon redemption, liquidation, exchange or
otherwise) and (b) the date on which there are no Beneficiaries remaining;
provided, however, that this Agreement shall continue to be effective or shall
be reinstated, as the case may be, if at any time any holder of Preferred
Securities or any Beneficiary must restore payment of any sums paid under the
Preferred Securities, under any Obligation, under the Guarantee Agreement dated
the date hereof by Owens Corning and Wilmington Trust Company, as guarantee
trustee or
<PAGE> 66
under this Agreement for any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
SECTION 1.3. WAIVER OF NOTICE. Owens Corning hereby waives
notice of acceptance of this Agreement and of any Obligation to which it applies
or may apply, and Owens Corning hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 1.4. NO IMPAIRMENT. The obligations, covenants,
agreements and duties of Owens Corning under this Agreement shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the extension of time for the payment by the Trust of all
or any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the
Obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with respect
to the Obligations or any action on the part of the Trust granting
indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Trust or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, Owens Corning with respect to the happening of any of the
foregoing.
SECTION 1.5. ENFORCEMENT. A Beneficiary may enforce this
Agreement directly against Owens Corning and Owens Corning waives any right or
remedy to require that any action be brought against the Trust or any other
person or entity before proceeding against Owens Corning.
SECTION 1.6. SUBROGATION. Owens Corning shall be subrogated to
all (if any) rights of the Trust in respect of any amounts paid to the
Beneficiaries by Owens Corning under this Agreement; provided, however, that
Owens Corning shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any rights which it may acquire by
way of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Agreement.
2
<PAGE> 67
ARTICLE II
SECTION 2.1. BINDING EFFECT. All guarantees and agreements
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of Owens Corning and shall inure to the benefit of
the Beneficiaries.
SECTION 2.2. AMENDMENT. So long as there remains any
Beneficiary or any Preferred Securities of any series are outstanding, this
Agreement shall not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Preferred Securities.
SECTION 2.3. NOTICES. Any notice, request or other
communication required or permitted to be given hereunder shall be given in
writing by delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or upon
receipt of an answer-back, if sent by telex):
Owens Corning Capital IV
c/o Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Facsimile No.: (302) 651-8882
Attention: Corporate Trust Administration
Owens Corning
Owens Corning World Headquarters
Toledo, Ohio 43659
Facsimile No.: (___) ___-____
Attention: _____________
SECTION 2.4. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
3
<PAGE> 68
THIS AGREEMENT is executed as of the day and year first above written.
OWENS CORNING
By:
----------------------------------
Name:
Title:
OWENS CORNING CAPITAL IV
By:
----------------------------------
Name:
Administrative Trustee
4
<PAGE> 69
EXHIBIT E
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE
INSERT--This Preferred Security is a Global Certificate within the meaning of
the Trust Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York) to
Owens Corning Capital IV or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
CERTIFICATE NUMBER P- NUMBER OF PREFERRED SECURITIES _______
CUSIP NO. ________
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
OWENS CORNING CAPITAL IV
____% [CUMULATIVE QUARTERLY INCOME PREFERRED] [CAPITAL] SECURITIES,
SERIES ____
(LIQUIDATION AMOUNT $____ PER SECURITY)
Owens Corning Capital II, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
(the "Holder") is the registered owner of __________ (____) preferred securities
of the Trust representing an undivided beneficial interest in the assets of the
Trust and designated the Owens Corning Capital IV ____% [Cumulative Quarterly
Income Preferred] [Capital] Securities, Series (liquidation amount $___ per
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided, however in Section 5.4 of the Trust
Agreement (as defined
<PAGE> 70
below). The designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust dated as of ______, 1999, as the same may
be amended from time to time (the "Trust Agreement") including the designation
of the terms of Preferred Securities as set forth therein. The Holder is
entitled to the benefits of the Guarantee Agreement entered into by Owens
Corning, a Delaware corporation, and Wilmington Trust Company, as guarantee
trustee, dated as of _________ __, 1999 (the "Guarantee"), to the extent
provided, however therein. The Trust will furnish a copy of the Trust Agreement
and the Guarantee to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this ___ day of __________, ____.
OWENS CORNING CAPITAL IV
By:
-------------------------------
Name:
Administrative Trustee
2
<PAGE> 71
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints _______________________________________________________
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: ________________
Signature: ____________________________________________________________________
(Sign exactly as your name appears on the other side of this
Preferred Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
3
<PAGE> 72
OPTION TO ELECT REPAYMENT
The undersigned registered Holder of this Preferred Security
hereby irrevocably exercises the option to require the Company to repay this
Preferred Security or portion thereof (which is $_____ or an integral multiple
thereof) below designated, in accordance with the terms of Section 4.3 of the
Trust Agreement, and directs that payment be made to the registered Holder
hereof unless a different name has been indicated below. Any amount required to
be paid by the undersigned on account of interest accompanies this Security.
Dated: __________, _____
<TABLE>
<S> <C>
Signature(s) must be guaranteed if payment is Holder's Signature:
to be made other than to and in the name of the
registered Holder. ---------------------------------------------------
- ---------------------------------------------------
Signature Guarantee
Fill in for payment of Repayment Price if to be Portion of Security to be repaid (in integral
made otherwise than to the registered Holder multiples of $_____) if other than the full
principal amount thereof:
---------------------------------------------------
- ---------------------------------------------------
Name
- ---------------------------------------------------
Address
- ---------------------------------------------------
Please print name and address (including zip
code)
SOCIAL SECURITY OR
TAXPAYER IDENTIFICATION NUMBER
- ---------------------------------------------------
</TABLE>
<PAGE> 1
EXHIBIT 5.1.1
SHEARMAN & STERLING
599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
June 15, 1999
Owens Corning
One Owens Corning Parkway
Toledo, Ohio 43659
Ladies and Gentlemen:
We are acting as counsel to Owens Corning, a Delaware
corporation (the "Company"), in connection with the preparation and filing
pursuant to Rule 415 of the Securities Act of 1933, as amended (the "Securities
Act"), by the Company and Owens Corning Capital II and Owens Corning Capital IV,
each a Delaware statutory business trust (together the "Trusts") with the
Securities and Exchange Commission (the "Commission") under the Securities Act,
of a Registration Statement on Form S-3 (No. 333-76765), as it may be amended
(the "Registration Statement"), relating to the proposed public offering from
time to time, together or separately, of the following securities of the Company
with an aggregate initial public offering price of up to $500,000,000: (i) debt
securities (the "Debt Securities"); (ii) shares of preferred stock with no par
value (the "Preferred Stock"); (iii) shares of common stock, par value $0.10 per
share (the "Common Stock"); (iv) junior subordinated deferrable interest
debentures (the "Junior Subordinated Dentures") and (v) guarantees by the
Company of preferred securities of Owens Corning Capital II and Owens Corning
Capital IV (the "Guarantees"). The Debt Securities, Common Stock, Preferred
Stock, Junior Subordinated Debentures and Guarantees are collectively called the
"Securities."
The Debt Securities will be issued in one or more series
pursuant to an indenture dated as of May 7, 1997 (the "Indenture") between the
Company and The Bank of New York, Trustee (the "Trustee"). The Junior
Subordinated Debentures will be issued pursuant to a junior subordinated
indenture dated as of April 3, 1997 (the "Subordinated Indenture") between the
Company and Wilmington Trust Company (the "Debenture Trustee"). The Guarantees
will be issued pursuant to one or more trust guarantee agreements to be entered
into between the Company and the Trustee.
<PAGE> 2
2
We are familiar with the corporate proceedings of the Company
to date with respect to the proposed issuance and sale of the Securities,
including resolutions of the Board of Directors of the Company (the
"Resolutions") authorizing the Indenture, the Subordinated Indenture and the
preparation and filing of the Registration Statement, and we have examined such
corporate records of the Company and such other documents and certificates as we
have deemed necessary as a basis for the opinions hereinafter expressed.
Our opinions set forth below are limited to the laws of the
State of New York, the federal laws of the United States of America and the
General Corporation Law of the State of Delaware, and we do not express any
opinions herein concerning any other laws.
Based upon and subject to the foregoing, and having regard for
such legal considerations we have deemed relevant, we are of the opinion that:
1. The Indenture has been duly authorized, executed and
delivered by the Company pursuant to the authority granted in the Resolutions,
and assuming due authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding instrument of the Company enforceable
against the Company in accordance with its terms.
2. The Debt Securities will constitute valid and legally
binding obligations of the Company entitled to the benefits of the Indenture
when the Board of Directors or a duly authorized committee thereof has taken all
necessary corporate action to approve the issuance of such Debt Securities and
has established and approved the terms thereof and, when such Debt Securities
have been duly executed by the Company, authenticated by the Trustee in
accordance with the Indenture and delivered to and paid for by the purchasers
thereof.
3. The Subordinated Indenture has been duly authorized,
executed and delivered by the Company, and assuming due authorization, execution
and delivery thereof by the Debenture Trustee, will constitute a valid and
legally binding instrument of the Company enforceable against the Company in
accordance with its terms.
4. The Junior Subordinated Debentures will constitute valid
and legally binding obligations of the Company entitled to the benefits of the
Subordinated Indenture when the Board of Directors or a duly authorized
committee thereof has taken all necessary corporate action to approve the
issuance of such Junior Subordinated Debentures and has established and approved
the terms thereof and, when such Junior Subordinated Debentures have been duly
executed by the Company, authenticated by the Debenture Trustee in accordance
with the Subordinated Indenture and delivered to and paid for by the purchasers
thereof.
5. The Preferred Stock will be validly issued, fully paid and
non-assessable when duly authorized by the Board of Directors and, when the
Board of Directors or a duly authorized committee thereof has taken all
necessary corporate action, including the adoption and filing of a
<PAGE> 3
3
Certificate of Designations, to approve the issuance of such Preferred Stock,
the terms of the offering and related matters, and such Preferred Stock has been
delivered to and paid for by the purchasers thereof.
6. The Common Stock (including Common Stock issuable upon
conversion of or exchange for any Debt Security) has been duly authorized and,
when issued and delivered pursuant to the authority granted in the Resolutions
and against payment therefor, will be validly issued, fully paid and
non-assessable.
7. The Guarantees will be legally binding obligations of the
Company when duly authorized by the Board of Directors and, when the Board of
Directors or a duly authorized committee thereof has taken all necessary
corporate action to approve such Guarantees.
The opinions set forth above are subject, as to enforcement,
to (i) bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other similar laws
relating to or affecting the enforcement of creditors' rights generally, (ii)
general equitable principles (regardless of whether enforcement is considered in
a proceeding in equity or at law) and (iii) provisions of law that require that
a judgment for money damages rendered by a court in the United States be
expressed only in United States dollars.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of our name under the heading
"LEGAL OPINIONS" in the Prospectus. In giving this consent we do not thereby
concede that we come within the category of persons whose consent is required by
the Securities Act or the General Rules and Regulations promulgated thereunder.
Very truly yours,
/s/ Shearman & Sterling
<PAGE> 1
EXHIBIT 5.1.2
[Letterhead of Morris, Nichols, Arsht & Tunnell]
June 15, 1999
Owens Corning
Owens Corning Capital II
Owens Corning Capital IV
c/o Owens Corning
Owens Corning World Headquarters
One Owens Corning Parkway
Toledo, Ohio 43659
Re: The Owens Corning Trusts (as defined below)
-------------------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel to Owens Corning Capital II, a
Delaware statutory business trust ("Owens Corning Capital II"), and Owens
Corning Capital IV, a Delaware statutory business trust ("Owens Corning Capital
IV" and, collectively with Owens Corning Capital II, the "Owens Corning
Trusts"), in connection with certain matters of Delaware law relating to the
formation of the Owens Corning Trusts and the proposed issuance of Preferred
Securities thereof to beneficial owners pursuant to and as described in
Registration Statement No. 333-76765 (and the prospectus forming a part thereof)
on Form S-3 filed with the Securities and Exchange Commission on April 21, 1999,
as amended by Pre-Effective Amendment No. 1 thereto (as amended, the
"Registration Statement"). Capitalized terms used herein and not otherwise
herein defined are used as defined in the form of Amended and Restated Trust
Agreement of the Owens Corning Trusts attached as an exhibit to the Registration
Statement (the "Form Governing Instrument").
In rendering this opinion, we have examined copies of the following
documents in the forms provided to us: the Certificate of Trust of Owens Corning
Capital II as filed in the Office of the Secretary of State of the State of
Delaware (the "State Office") on April 2, 1997 (the "Owens Corning Capital II
Certificate"); the Declaration of Trust of Owens Corning Capital II dated as of
April 2, 1997 (the "Owens Corning Capital II Original Governing Instrument");
the Certificate of Trust of Owens Corning Capital IV as filed in the State
Office on June 1, 1999 (collectively with
<PAGE> 2
Owens Corning
Owens Corning Capital II
Owens Corning Capital IV
June 15, 1999
Page 2
the Owens Corning Capital II Certificate, the "Certificates"); the Declaration
of Trust of Owens Corning Capital IV dated as of June 1, 1999 (collectively with
the Owens Corning Capital II Original Governing Instrument, the "Original
Governing Instruments"); the Form Governing Instrument; the form of Junior
Subordinated Indenture to be entered into between Owens Corning and Wilmington
Trust Company, as Trustee; the form of Guarantee Agreement to be made by Owens
Corning with respect to each Owens Corning Trust (each, a "Guarantee
Agreement"); the Registration Statement; and a certification of good standing of
each Owens Corning Trust obtained as of a recent date from the State Office. In
such examinations, we have assumed the genuineness of all signatures, the
conformity to original documents of all documents submitted to us as drafts or
copies or forms of documents to be executed and the legal capacity of natural
persons to complete the execution of documents. We have further assumed for
purposes of this opinion: (i) the due formation or organization, valid existence
and good standing of the Owens Corning Trusts and each entity that is a party to
any of the documents reviewed by us under the laws of the jurisdiction of its
respective formation or organization; (ii) the due authorization, execution and
delivery by, or on behalf of, each of the parties thereto of the above-
referenced documents with respect to each Owens Corning Trust; (iii) that Owens
Corning, Wilmington Trust Company and the appropriate Administrative Trustees
will duly authorize, execute and deliver an amended and restated trust agreement
in the form of the Form Governing Instrument (each, a "Governing Instrument")
and all other documents contemplated thereby or by the Registration Statement to
be executed in connection with the formation of each Owens Corning Trust and the
issuance by each Owens Corning Trust of Preferred Securities, in each case prior
to the first issuance of Preferred Securities of such Owens Corning Trust; (iv)
that the Preferred Securities of each Owens Corning Trust will be offered and
sold pursuant to the prospectus forming a part of the Registration Statement and
a prospectus supplement thereto (collectively, the "Prospectus") that will be
consistent with, and accurately describe, the terms of the applicable Governing
Instrument and the applicable Guarantee Agreement relating to each such Owens
Corning Trust and all other relevant documents; (v) that no event has occurred
subsequent to the filing of any Certificate, or will occur prior to the issuance
of all Preferred Securities by each Owens Corning Trust, that would cause a
dissolution or liquidation of any Owens Corning Trust under the applicable
Original Governing Instrument or the applicable Governing Instrument; (vi) that
the activities of each Owens Corning Trust have been and will be conducted in
accordance with its Original Governing Instrument or Governing Instrument, as
applicable, and the Delaware Business Trust Act, 12 DEL. C. Sections 3801 ET.
SEQ. (the "Delaware Act"); (vii) that prior to the first issuance of Preferred
Securities by each Owens Corning Trust, payment of the required consideration
therefor will have been made in accordance with the terms and conditions of the
applicable Governing Instrument and as described in the Prospectus, and that the
Preferred Securities of each Owens Corning Trust are otherwise issued and sold
in accordance with the terms, conditions, requirements and procedures set forth
in the Governing Instrument of such Owens Corning Trust and as described in the
Prospectus; and (viii) that the documents examined
<PAGE> 3
Owens Corning
Owens Corning Capital II
Owens Corning Capital IV
June 15, 1999
Page 3
by us, or contemplated hereby, express the entire understanding of the parties
thereto with respect to the subject matter thereof and have not been, and, prior
to the issuance of all Preferred Securities by each Owens Corning Trust, will
not be, amended, supplemented or otherwise modified, except as herein
referenced. No opinion is expressed with respect to the requirements of, or
compliance with, federal or state securities or blue sky laws. We express no
opinion as to, and assume no responsibility for, the Registration Statement or
any other offering materials relating to the Preferred Securities offered by any
Owens Corning Trust. As to any fact material to our opinion, other than those
assumed, we have relied without independent investigation on the above-
referenced documents and on the accuracy, as of the date hereof, of the matters
therein contained.
Based on the subject to the foregoing, and limited in all respects to
matters of Delaware law, it is our opinion that, upon issuance, the Preferred
Securities of each Owens Corning Trust will constitute validly issued and,
subject to the terms of the applicable Governing Instrument, fully paid and
non-assessable beneficial interests in the assets of such Owens Corning Trust.
We note that, pursuant to the applicable Governing Instrument, the Preferred
Security Holders of each Owens Corning Trust may be obligated to make payments
or provide indemnity or security under the circumstances set forth therein.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "LEGAL
OPINIONS" in the Prospectus forming a part thereof. In giving this consent, we
do not thereby admit that we come within the category of persons whose consent
is required under Section 7 of the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission thereunder. This
opinion speaks only as of the date hereof and is based on our understandings and
assumptions as to present facts, and our review of the above-referenced
documents and the application of Delaware law as the same exist as of the date
hereof, and we undertake no obligation to update or supplement this opinion
after the date hereof for the benefit of any person or entity with respect to
any facts or circumstances that may hereafter come to our attention or any
changes in facts or law that may hereafter occur or take effect. This opinion is
intended solely for the benefit of the addressees hereof in connection with the
matters contemplated hereby and may not be relied on by any other person or
entity or for any other purpose without our prior written consent.
Very truly yours,
MORRIS, NICHOLS, ARSHT & TUNNELL
/s/ Morris, Nichols, Arsht & Tunnell
<PAGE> 1
Exhibit 12.1
OWENS CORNING
STATEMENT RE COMPUTATION OF
RATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
<TABLE>
<CAPTION>
(In millions, except ratio information)
For the three months ended For the year ended
March 31, December 31,
---------------------------------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
EARNINGS:
Income (loss) from continuing
operations before income taxes 76.6 6.0 (960.1) 89.5 (549.0) 348.3 132.7
Interest expense 32.9 37.7 140.4 112.9 78.9 89.3 94.1
Portion of rents representative of
interest factor 10.7 10.6 42.9 40.9 28.7 21.2 17.8
Previously capitalized interest
amortized 1.5 1.2 5.4 3.6 2.5 1.9 1.6
Adjustments for minority interest &
equity affiliate distributions 3.9 -- 3.5 4.1 3.0 2.0 5.3
---------------------------------------------------------------------------------
125.6 55.4 (767.9) 251.0 (435.9) 462.7 251.5
=================================================================================
FIXED CHARGES:
Interest charges 35.5 41.8 158.9 127.4 89.6 96.7 98.9
Portion of rents representative of
interest factor 10.7 10.6 42.9 40.9 28.7 21.2 17.8
Preferred stock dividends for
MIPS/PRIDES 3.3 8.7 26.0 18.4 13.0 8.3 --
---------------------------------------------------------------------------------
49.5 61.0 227.8 186.7 131.3 126.2 116.7
=================================================================================
RATIO OF EARNINGS TO FIXED
CHARGES 2.54x 0.91x (3.37)x 1.34x (3.32)x 3.67x 2.15x
=================================================================================
RATIO OF EARNINGS TO
COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS 2.54x 0.91x (3.37)x 1.34x (3.32)x 3.67x 2.15x
=================================================================================
</TABLE>
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
January 25, 1999, included in Owens Corning's Form 10-K for the year ended
December 31, 1998, and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
/s/ ARTHUR ANDERSEN LLP
Toledo, Ohio
June 9, 1999
<PAGE> 1
EXHIBIT 25.3
Registration No.
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
OWENS CORNING
OWENS CORNING CAPITAL IV
(Exact name of obligor as specified in its charter)
Delaware 34-4323452
Delaware 52-6995023
(State of incorporation) (I.R.S. employer identification no.)
Owens Corning
One Owens Corning Parkway
Toledo, Ohio 43659
(Address of principal executive offices) (Zip Code)
Preferred Securities of Owens Corning Capital IV
(Title of the indenture securities)
================================================================================
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor
is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 28th day
of May, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ James P. Lawler By:/s/ Donald G. MacKelcan
---------------------------- ---------------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
2
<PAGE> 3
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE> 4
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is WILMINGTON
TRUST COMPANY whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains
and operates branch offices in the City of Newark, New Castle
County, Delaware, the Town of Newport, New Castle County, Delaware,
at Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate
branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of
Wilmington, New Castle County, Delaware, and such other branch
offices or places of business as may be authorized from time to time
by the agency or agencies of the government of the State of Delaware
empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this
Corporation are to do any or all of the things herein mentioned as
fully and to the same extent as natural persons might or could do
and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of
law or equity and to make and use a common seal, and alter
the seal at pleasure, to hold, purchase, convey, mortgage or
otherwise deal in real and personal estate and property, and
to appoint such officers and agents as the business of the
Corporation shall require, to make by-laws not inconsistent
with the Constitution or laws of the United States or of
this State, to discount bills,
<PAGE> 5
notes or other evidences of debt, to receive deposits of
money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of
exchange, and generally to use, exercise and enjoy all the
powers, rights, privileges and franchises incident to a
corporation which are proper or necessary for the
transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of
such property, real or personal, against any claim or
claims, adverse to his interest therein, and to prepare and
give certificates of title for any lands or premises in the
State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management of
funds, and the purchase, sale, management and disposal of
property of all descriptions, and to prepare and execute all
papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property
of every sort and kind, from executors, administrators,
guardians, public officers, courts, receivers, assignees,
trustees, and from all fiduciaries, and from all other
persons and individuals, and from all corporations whether
state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two
parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state, municipality,
body politic, corporation, association or person, either
alone or in conjunction with any other person or persons,
corporation or corporations.
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any
trust, office, duty, contract or agreement, either by itself
or in conjunction
2
<PAGE> 6
with any other person, or persons, corporation, or
corporations, or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or decree
to be entered in any court of record within the State of
Delaware or elsewhere, or which may now or hereafter be
required by any law, judge, officer or court in the State of
Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian, bailee, or
in any other trust capacity in the receiving, holding,
managing, and disposing of any and all estates and property,
real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian or bailee
by any persons, corporations, court, officer, or authority,
in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other
trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon it
by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake or
be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without
the State of Delaware, or of the Government of the United
States, or of any state, territory, colony, or possession
thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of interest,
dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages,
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other
property, any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys of
the Corporation upon such securities and in such manner as
it may think fit and proper, and from time to time to vary
or realize such investments; to issue bonds and secure the
same by pledges or deeds of trust or mortgages of or upon
the whole or any part of the property held or owned by the
Corporation, and to sell and pledge such bonds, as and when
the
3
<PAGE> 7
Board of Directors shall determine, and in the promotion of
its said corporate business of investment and to the extent
authorized by law, to lease, purchase, hold, sell, assign,
transfer, pledge, mortgage and convey real and personal
property of any name and nature and any estate or interest
therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to the
same extent as natural persons might or could do, and in any
part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association or
corporation, and to pay for the same in cash, stock of this
Corporation, bonds or otherwise; to hold or in any manner to
dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any
part of any business so acquired, and to exercise all the
powers necessary or convenient in and about the conduct and
management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien,
and to lease, sell, exchange, transfer, or in any manner
whatever dispose of property, real, personal or mixed,
wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw, make,
accept, endorse, discount, execute and issue promissory
notes, drafts, bills of exchange, warrants, bonds,
debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of
its operations and businesses, without restriction to the
same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and in
any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said paragraph)
be nowise limited or restricted by reference to or inference
from the terms of any other clause of this or any other
paragraph in this charter, but that the objects, purposes
and powers specified in each of the clauses of this
paragraph shall be regarded as independent objects, purposes
and powers.
4
<PAGE> 8
FOURTH: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par
value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par
value $1.00 per share (hereinafter referred to as "Common
Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares
of any one series of Preferred Stock shall be alike in every
particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative.
The voting powers and the preferences and relative, participating,
optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding;
and, subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article FOURTH, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or resolutions
adopted prior to the issuance of any shares of a particular series of
Preferred Stock, the voting powers and the designations, preferences
and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares
of Preferred Stock which shall constitute such series, which
number may be increased (except where otherwise provided by
the Board of Directors) or decreased (but not below the
number of shares thereof then outstanding) from time to time
by like action of the Board of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred Stock
of such series shall be paid, the extent of the preference
or relation, if any, of such dividends to the dividends
payable on any other class or classes, or series of the same
or other class of stock and whether such dividends shall be
cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of
such series to convert the same into or exchange the same
for, shares of any other class or classes or of any series
of the same or any other class or classes of stock of the
Corporation and the terms and conditions of such conversion
or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices
and the time or times at which,
5
<PAGE> 9
and the terms and conditions on which, Preferred Stock of
such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of
such series; and
(7) The voting powers, if any, of the holders of such series
of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as a
series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a class,
to elect one or more directors of the Corporation if there
shall have been a default in the payment of dividends on any
one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of
Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any, shall
have been met and after the Corporation shall have complied with all
the requirements, if any, with respect to the setting aside of sums
as sinking funds or redemption or purchase accounts (fixed in
accordance with the provisions of section (b) of this Article
FOURTH), and subject further to any conditions which may be fixed in
accordance with the provisions of section (b) of this Article
FOURTH, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to
time by the Board of Directors.
(2) After distribution in full of the preferential amount,
if any, (fixed in accordance with the provisions of section
(b) of this Article FOURTH), to be distributed to the
holders of Preferred Stock in the event of voluntary or
involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders
of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares
of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b) of
this Article FOURTH, each holder of Common Stock shall have
one vote in respect of each share of Common Stock held on
all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock
or of options, warrants or other rights to purchase shares of any
class or series of stock or of other
6
<PAGE> 10
securities of the Corporation shall have any preemptive right to
purchase or subscribe for any unissued stock of any class or series
or any additional shares of any class or series to be issued by
reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any
such unissued stock, additional authorized issue of shares of any
class or series of stock or securities convertible into or
exchangeable for stock, or carrying any right to purchase stock, may
be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations,
whether such holders or others, and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case,
be as fixed from time to time by the Board of Directors in the
resolution or resolutions adopted pursuant to authority granted in
section (b) of this Article FOURTH and the consent, by class or
series vote or otherwise, of the holders of such of the series of
Preferred Stock as are from time to time outstanding shall not be
required for the issuance by the Board of Directors of any other
series of Preferred Stock whether or not the powers, preferences and
rights of such other series shall be fixed by the Board of Directors
as senior to, or on a parity with, the powers, preferences and
rights of such outstanding series, or any of them; provided,
however, that the Board of Directors may provide in the resolution
or resolutions as to any series of Preferred Stock adopted pursuant
to section (b) of this Article FOURTH that the consent of the
holders of a majority (or such greater proportion as shall be
therein fixed) of the outstanding shares of such series voting
thereon shall be required for the issuance of any or all other
series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series
of Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and
for such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a
majority of the stock of the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and
7
<PAGE> 11
managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more
than twenty-five as fixed from time to time by vote of a majority of
the whole Board, provided, however, that the number of directors
shall not be reduced so as to shorten the term of any director at
the time in office, and provided further, that the number of
directors constituting the whole Board shall be twenty-four until
otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office
for a term expiring at the next succeeding annual meeting, directors
of the second class shall be elected to hold office for a term
expiring at the second succeeding annual meeting and directors of
the third class shall be elected to hold office for a term expiring
at the third succeeding annual meeting. Any vacancies in the Board
of Directors for any reason, and any newly created directorships
resulting from any increase in the directors, may be filled by the
Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen
shall hold office until the next annual election of directors. At
such election, the stockholders shall elect a successor to such
director to hold office until the next election of the class for
which such director shall have been chosen and until his successor
shall be elected and qualified. No decrease in the number of
directors shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the ByLaws of the Corporation),
any director or the entire Board of Directors of the Corporation may
be removed at any time without cause, but only by the affirmative
vote of the holders of two-thirds or more of the outstanding shares
of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class)
cast at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice in
writing, delivered or mailed by first class United States mail,
postage prepaid, to the Secretary of the Corporation not less than
14 days nor more than 50 days prior to any meeting of the
stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is given
to stockholders, such written notice shall be delivered or mailed,
as prescribed, to the Secretary of the Corporation not later than
the close of the seventh day following the day on which notice of
the meeting was mailed to stockholders. Notice of nominations which
are proposed by the Board of Directors shall be given by the
Chairman on behalf of the Board.
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(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each
nominee proposed in such notice, (ii) the principal occupation or
employment of such nominee and (iii) the number of shares of stock
of the Corporation which are beneficially owned by each such
nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may be
taken without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
SIXTH: - The Directors shall choose such officers, agent and
servants as may be provided in the By-Laws as they may from time to
time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority
of the whole Board, may designate any of their number to constitute
an Executive Committee, which Committee, to the extent provided in
said resolution, or in the By-Laws of the Company, shall have and
may exercise all of the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and shall
have power to authorize the seal of the Corporation to be affixed to
all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the
world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation
by a vote of the majority of the entire Board. The stockholders may
make, alter or repeal any By-Law whether or not adopted by them,
provided however, that any such additional By-Laws,
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<PAGE> 13
alterations or repeal may be adopted only by the affirmative vote of
the holders of two-thirds or more of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be
from time to time designated by them.
FIFTEENTH: - (a) (1) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections (b) and
(c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair
market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect,
directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or
convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested
Stockholder, or any Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares
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<PAGE> 14
of capital stock of the Corporation entitled to vote generally in the election
of directors, considered for the purpose of this Article FIFTEENTH as one class
("Voting Shares"). Such affirmative vote shall be required notwithstanding the
fact that no vote may be required, or that some lesser percentage may be
specified, by law or in any agreement with any national securities exchange or
otherwise.
(2) The term "business combination" as used in this
Article FIFTEENTH shall mean any transaction which is
referred to any one or more of clauses (A) through (E) of
paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH
shall not be applicable to any particular business
combination and such business combination shall require only
such affirmative vote as is required by law and any other
provisions of the Charter or Act of Incorporation of By-Laws
if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any
Subsidiary) who or which as of the record date for the determination
of stockholders entitled to notice of and to vote on such business
combination, or immediately prior to the consummation of any such
transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at any
time within two years prior thereto beneficially owned by
any Interested Stockholder, and such assignment or
succession shall have occurred in the course of a
transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own, directly
or indirectly, or
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<PAGE> 15
(B) which such person or any of its Affiliates or Associates
has (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (ii) the right to vote
pursuant to any agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by
any other person with which such first mentioned person or
any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock
of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect in December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall mean
only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty
to determine for the purposes of this Article FIFTEENTH on
the basis of information known to them, (1) the number of
Voting Shares beneficially owned by any person (2) whether a
person is an Affiliate or Associate of another, (3) whether
a person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of
section (c), or (4) whether the assets subject to any
business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or
any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or
Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this Charter
or Act of Incorporation by the By-Laws),
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<PAGE> 16
the affirmative vote of the holders of at least two-thirds of the
outstanding shares of the capital stock of the Corporation entitled
to vote generally in the election of directors (considered for this
purpose as one class) shall be required to amend, alter or repeal
any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH
of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable
to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a Director, except to the extent such
exemption from liability or limitation thereof is not permitted
under the Delaware General Corporation Laws as the same exists or
may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with respect
to any act or omission occurring prior to the time of such
repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE> 18
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the Board
of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10) days before said meeting, at
his last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
<PAGE> 19
Section 6. Special meetings of the Board of Directors may be called
at any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall
be necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board of Directors,
although less than a quorum, shall have the right to elect the successor who
shall hold office for the remainder of the full term of the class of directors
in which the vacancy occurred, and until such director's successor shall have
been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not
more than nine members who shall be selected by the Board of Directors from its
own members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of
the Board of
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Directors when it is not in session to transact all business for and in behalf
of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be held
at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee
shall be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend
all investments that may be made of the funds of the Company, and shall direct
the disposal of the same, in accordance with such rules and regulations as the
Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than three
members of the Trust Committee is constituted immediately prior to such disaster
shall be available for the transaction of its business, such Executive Committee
shall also be empowered to exercise all of the powers reserved to the Trust
Committee under Article III Section 2 hereof. In the event of the
unavailability, at such time, of a minimum of two members of such Executive
Committee, any three available directors shall constitute the Executive
Committee for the full conduct and management of the affairs and business of the
Company in accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose, and
any provisions of these By-Laws (other than this Section) and any resolutions
which are contrary to the provisions of this Section or to the provisions of any
such implementary Resolutions shall be suspended during such a disaster period
until it shall be determined by any interim Executive Committee acting under
this section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the other
provisions of these By-Laws.
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Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more
than thirteen members who shall be selected by the Board of Directors, a
majority of whom shall be members of the Board of Directors and who shall hold
office during the pleasure of the Board.
(B) The Trust Committee shall have general supervision
over the Trust Department and the investment of trust funds, in all matters,
however, being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members or at the call of its chairman. A
majority of its members shall be necessary to constitute a quorum for the
transaction of business.
(D) Minutes of each meeting of the Trust Committee shall
be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five
members who shall be selected by the Board of Directors from its own members,
none of whom shall be an officer of the Company, and shall hold office at the
pleasure of the Board.
(B) The Audit Committee shall have general supervision
over the Audit Division in all matters however subject to the approval of the
Board of Directors; it shall consider all matters brought to its attention by
the officer in charge of the Audit Division, review all reports of examination
of the Company made by any governmental agency or such independent auditor
employed for that purpose, and make such recommendations to the Board of
Directors with respect thereto or with respect to any other matters pertaining
to auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever
the majority of its members shall deem it to be proper for the transaction of
its business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not
more than five (5) members who shall be selected by the Board of Directors from
its own members who are not officers of the Company and who shall hold office
during the pleasure of the Board.
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(B) The Compensation Committee shall in general advise
upon all matters of policy concerning the Company brought to its attention by
the management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called
at any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be
elected by the Board of Directors as an associate director, to serve during the
pleasure of the Board.
(B) An associate director shall be entitled to attend
all directors meetings and participate in the discussion of all matters brought
to the Board, with the exception that he would have no right to vote. An
associate director will be eligible for appointment to Committees of the
Company, with the exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member
of any Committee created under Article III of the By-Laws of this Company, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at
all meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time confer
and direct. He shall also exercise such powers and perform such duties as may
from time to time be agreed upon between himself and the President of the
Company.
Section 2. THE VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors or
the Chairman of the Board may from time to time confer and direct.
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Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of the
Board the President shall have the powers and duties of the Chairman of the
Board.
Section 4. The Chairman of the Board of Directors or the President
as designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and responsible
for all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the Controller and
such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall
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<PAGE> 24
report to and be directly responsible only to the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the Auditor and
such duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank
to all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices, subject
to the direction of the Board of Directors, the Executive Committee, Chairman of
the Board of Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of
the Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of stock
shall be issued only upon giving such security as may be satisfactory to the
Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to
fix in advance a record date for the determination of the stockholders entitled
to notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
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ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words "Wilmington
Trust Company" within the inner circle the words
"Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar
year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
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ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors who
serve as members of committees, other than salaried employees of the Company,
shall be paid such reasonable honoraria or fees for services as members of
committees as the Board of Directors shall from time to time determine and
directors and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time determine and
shall be paid for such special services so performed reasonable compensation as
may be determined by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, PROVIDED, HOWEVER,
that the payment of expenses incurred by a Director officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of
expenses, under this Article X is not paid in full within ninety days after a
written claim therefor has been received by the Corporation the claimant may
file suit to recover the unpaid amount of such claim and, if successful in whole
or in part, shall be entitled to be paid the expense of prosecuting such claim.
In any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification of payment of
expenses under applicable law.
9
<PAGE> 27
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing
provisions of this Article X shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to the
time of such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular or
special meeting of the Board of Directors by a vote of the majority of all the
members of the Board of Directors then in office.
10
<PAGE> 28
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: May 28, 1999 By: /s/ Donald G. Mackelcan
-----------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE> 29
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks
and savings banks with state publication requirements.
It has not been approved by any state banking
authorities. Refer to your appropriate state banking
authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ------------------------------------------ -------------------
Name of Bank
City
in the State of DELAWARE, at the close of business on March 31, 1999.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins..............................196,035
Interest-bearing balances............................................................ 0
Held-to-maturity securities.................................................................. 44,909
Available-for-sale securities..............................................................1,396,028
Federal funds sold and securities purchased under agreements to resell.......................127,340
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 4,176,290
LESS: Allowance for loan and lease losses. . . . . . 68,543
LESS: Allocated transfer risk reserve. . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve...............4,107,747
Assets held in trading accounts....................................................................0
Premises and fixed assets (including capitalized leases).....................................139,843
Other real estate owned....................................................................... 1,055
Investments in unconsolidated subsidiaries and associated companies............................1,225
Customers' liability to this bank on acceptances outstanding.......................................0
Intangible assets............................................................................. 5,265
Other assets................................................................................. 99,073
Total assets...............................................................................6,118,520
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE> 30
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits:
In domestic offices.............................................................4,332,124
Noninterest-bearing . . . . . . . . 959,777
Interest-bearing. . . . . . . . . . 3,372,347
Federal funds purchased and Securities sold under agreements to repurchase....... 432,395
Demand notes issued to the U.S. Treasury...........................................28,906
Trading liabilities (from Schedule RC-D)................................................0
Other borrowed money:.............................................................///////
With original maturity of one year or less............................715,000
With original maturity of more than one year...........................43,000
Bank's liability on acceptances executed and outstanding................................0
Subordinated notes and debentures.......................................................0
Other liabilities (from Schedule RC-G).......................................... 93,311
Total liabilities...............................................................5,644,736
EQUITY CAPITAL
Perpetual preferred stock and related surplus...........................................0
Common Stock..........................................................................500
Surplus (exclude all surplus related to preferred stock)...........................62,118
Undivided profits and capital reserves............................................408,053
Net unrealized holding gains (losses) on available-for-sale securities............. 3,113
Total equity capital..............................................................473,784
Total liabilities, limited-life preferred stock, and equity capital.............6,118,520
</TABLE>
2
<PAGE> 1
Exhibit 25.5
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
OWENS CORNING
(Exact name of obligor as specified in its charter)
Delaware 34-4323452
(State of incorporation) (I.R.S. employer identification no.)
Owens Corning
One Owens Corning Parkway
Toledo, Ohio 43659
(Address of principal executive offices) (Zip Code)
Guarantee by Owens Corning with respect to
Preferred Securities of Owens Corning Capital IV
(Title of the indenture securities)
================================================================================
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor
is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 28th day
of May, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ James P. Lawler By:/s/ Donald G. MacKelcan
-------------------- ---------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
2
<PAGE> 3
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE> 4
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is WILMINGTON
TRUST COMPANY whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains
and operates branch offices in the City of Newark, New Castle
County, Delaware, the Town of Newport, New Castle County, Delaware,
at Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate
branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of
Wilmington, New Castle County, Delaware, and such other branch
offices or places of business as may be authorized from time to time
by the agency or agencies of the government of the State of Delaware
empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this
Corporation are to do any or all of the things herein mentioned as
fully and to the same extent as natural persons might or could do
and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of
law or equity and to make and use a common seal, and alter
the seal at pleasure, to hold, purchase, convey, mortgage or
otherwise deal in real and personal estate and property, and
to appoint such officers and agents as the business of the
Corporation shall require, to make by-laws not inconsistent
with the Constitution or laws of the United States or of
this State, to discount bills,
<PAGE> 5
notes or other evidences of debt, to receive deposits of
money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of
exchange, and generally to use, exercise and enjoy all the
powers, rights, privileges and franchises incident to a
corporation which are proper or necessary for the
transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of
such property, real or personal, against any claim or
claims, adverse to his interest therein, and to prepare and
give certificates of title for any lands or premises in the
State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management of
funds, and the purchase, sale, management and disposal of
property of all descriptions, and to prepare and execute all
papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property
of every sort and kind, from executors, administrators,
guardians, public officers, courts, receivers, assignees,
trustees, and from all fiduciaries, and from all other
persons and individuals, and from all corporations whether
state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two
parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state, municipality,
body politic, corporation, association or person, either
alone or in conjunction with any other person or persons,
corporation or corporations.
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any
trust, office, duty, contract or agreement, either by itself
or in conjunction
2
<PAGE> 6
with any other person, or persons, corporation, or
corporations, or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or decree
to be entered in any court of record within the State of
Delaware or elsewhere, or which may now or hereafter be
required by any law, judge, officer or court in the State of
Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian, bailee, or
in any other trust capacity in the receiving, holding,
managing, and disposing of any and all estates and property,
real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian or bailee
by any persons, corporations, court, officer, or authority,
in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other
trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon it
by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake or
be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without
the State of Delaware, or of the Government of the United
States, or of any state, territory, colony, or possession
thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of interest,
dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages,
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other
property, any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys of
the Corporation upon such securities and in such manner as
it may think fit and proper, and from time to time to vary
or realize such investments; to issue bonds and secure the
same by pledges or deeds of trust or mortgages of or upon
the whole or any part of the property held or owned by the
Corporation, and to sell and pledge such bonds, as and when
the
3
<PAGE> 7
Board of Directors shall determine, and in the promotion of
its said corporate business of investment and to the extent
authorized by law, to lease, purchase, hold, sell, assign,
transfer, pledge, mortgage and convey real and personal
property of any name and nature and any estate or interest
therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to the
same extent as natural persons might or could do, and in any
part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association or
corporation, and to pay for the same in cash, stock of this
Corporation, bonds or otherwise; to hold or in any manner to
dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any
part of any business so acquired, and to exercise all the
powers necessary or convenient in and about the conduct and
management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien,
and to lease, sell, exchange, transfer, or in any manner
whatever dispose of property, real, personal or mixed,
wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw, make,
accept, endorse, discount, execute and issue promissory
notes, drafts, bills of exchange, warrants, bonds,
debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of
its operations and businesses, without restriction to the
same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and in
any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said paragraph)
be nowise limited or restricted by reference to or inference
from the terms of any other clause of this or any other
paragraph in this charter, but that the objects, purposes
and powers specified in each of the clauses of this
paragraph shall be regarded as independent objects, purposes
and powers.
4
<PAGE> 8
FOURTH: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one
million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par
value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par
value $1.00 per share (hereinafter referred to as "Common
Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board
of Directors each of said series to be distinctly designated. All
shares of any one series of Preferred Stock shall be alike in every
particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative.
The voting powers and the preferences and relative, participating,
optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time
outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article FOURTH, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by
resolution or resolutions adopted prior to the issuance of any
shares of a particular series of Preferred Stock, the voting powers
and the designations, preferences and relative, optional and other
special rights, and the qualifications, limitations and restrictions
of such series, including, but without limiting the generality of
the foregoing, the following:
(1) The distinctive designation of, and the number of shares
of Preferred Stock which shall constitute such series, which
number may be increased (except where otherwise provided by
the Board of Directors) or decreased (but not below the
number of shares thereof then outstanding) from time to time
by like action of the Board of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred Stock
of such series shall be paid, the extent of the preference
or relation, if any, of such dividends to the dividends
payable on any other class or classes, or series of the same
or other class of stock and whether such dividends shall be
cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of
such series to convert the same into or exchange the same
for, shares of any other class or classes or of any series
of the same or any other class or classes of stock of the
Corporation and the terms and conditions of such conversion
or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices
and the time or times at which,
5
<PAGE> 9
and the terms and conditions on which, Preferred Stock of
such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of
such series; and
(7) The voting powers, if any, of the holders of such series
of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as a
series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a class,
to elect one or more directors of the Corporation if there
shall have been a default in the payment of dividends on any
one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of
Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any, shall
have been met and after the Corporation shall have complied with all
the requirements, if any, with respect to the setting aside of sums
as sinking funds or redemption or purchase accounts (fixed in
accordance with the provisions of section (b) of this Article
FOURTH), and subject further to any conditions which may be fixed in
accordance with the provisions of section (b) of this Article
FOURTH, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to
time by the Board of Directors.
(2) After distribution in full of the preferential amount,
if any, (fixed in accordance with the provisions of section
(b) of this Article FOURTH), to be distributed to the
holders of Preferred Stock in the event of voluntary or
involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders
of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares
of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b) of
this Article FOURTH, each holder of Common Stock shall have
one vote in respect of each share of Common Stock held on
all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock
or of options, warrants or other rights to purchase shares of any
class or series of stock or of other
6
<PAGE> 10
securities of the Corporation shall have any preemptive right to
purchase or subscribe for any unissued stock of any class or series
or any additional shares of any class or series to be issued by
reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any
such unissued stock, additional authorized issue of shares of any
class or series of stock or securities convertible into or
exchangeable for stock, or carrying any right to purchase stock, may
be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations,
whether such holders or others, and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case,
be as fixed from time to time by the Board of Directors in the
resolution or resolutions adopted pursuant to authority granted in
section (b) of this Article FOURTH and the consent, by class or
series vote or otherwise, of the holders of such of the series of
Preferred Stock as are from time to time outstanding shall not be
required for the issuance by the Board of Directors of any other
series of Preferred Stock whether or not the powers, preferences and
rights of such other series shall be fixed by the Board of Directors
as senior to, or on a parity with, the powers, preferences and
rights of such outstanding series, or any of them; provided,
however, that the Board of Directors may provide in the resolution
or resolutions as to any series of Preferred Stock adopted pursuant
to section (b) of this Article FOURTH that the consent of the
holders of a majority (or such greater proportion as shall be
therein fixed) of the outstanding shares of such series voting
thereon shall be required for the issuance of any or all other
series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series
of Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and
for such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a
majority of the stock of the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and
7
<PAGE> 11
managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more
than twenty-five as fixed from time to time by vote of a majority of
the whole Board, provided, however, that the number of directors
shall not be reduced so as to shorten the term of any director at
the time in office, and provided further, that the number of
directors constituting the whole Board shall be twenty-four until
otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office
for a term expiring at the next succeeding annual meeting, directors
of the second class shall be elected to hold office for a term
expiring at the second succeeding annual meeting and directors of
the third class shall be elected to hold office for a term expiring
at the third succeeding annual meeting. Any vacancies in the Board
of Directors for any reason, and any newly created directorships
resulting from any increase in the directors, may be filled by the
Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen
shall hold office until the next annual election of directors. At
such election, the stockholders shall elect a successor to such
director to hold office until the next election of the class for
which such director shall have been chosen and until his successor
shall be elected and qualified. No decrease in the number of
directors shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the ByLaws of the Corporation),
any director or the entire Board of Directors of the Corporation may
be removed at any time without cause, but only by the affirmative
vote of the holders of two-thirds or more of the outstanding shares
of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class)
cast at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice in
writing, delivered or mailed by first class United States mail,
postage prepaid, to the Secretary of the Corporation not less than
14 days nor more than 50 days prior to any meeting of the
stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is given
to stockholders, such written notice shall be delivered or mailed,
as prescribed, to the Secretary of the Corporation not later than
the close of the seventh day following the day on which notice of
the meeting was mailed to stockholders. Notice of nominations which
are proposed by the Board of Directors shall be given by the
Chairman on behalf of the Board.
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(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each
nominee proposed in such notice, (ii) the principal occupation or
employment of such nominee and (iii) the number of shares of stock
of the Corporation which are beneficially owned by each such
nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may be
taken without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
SIXTH: - The Directors shall choose such officers, agent and
servants as may be provided in the By-Laws as they may from time to
time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority
of the whole Board, may designate any of their number to constitute
an Executive Committee, which Committee, to the extent provided in
said resolution, or in the By-Laws of the Company, shall have and
may exercise all of the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and shall
have power to authorize the seal of the Corporation to be affixed to
all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the
world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation
by a vote of the majority of the entire Board. The stockholders may
make, alter or repeal any By-Law whether or not adopted by them,
provided however, that any such additional By-Laws,
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<PAGE> 13
alterations or repeal may be adopted only by the affirmative vote of
the holders of two-thirds or more of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be
from time to time designated by them.
FIFTEENTH: - (a) (1) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections (b) and
(c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair
market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect,
directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or
convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested
Stockholder, or any Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares
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<PAGE> 14
of capital stock of the Corporation entitled to vote generally in the election
of directors, considered for the purpose of this Article FIFTEENTH as one class
("Voting Shares"). Such affirmative vote shall be required notwithstanding the
fact that no vote may be required, or that some lesser percentage may be
specified, by law or in any agreement with any national securities exchange or
otherwise.
(2) The term "business combination" as used in this
Article FIFTEENTH shall mean any transaction which is
referred to any one or more of clauses (A) through (E) of
paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH
shall not be applicable to any particular business
combination and such business combination shall require only
such affirmative vote as is required by law and any other
provisions of the Charter or Act of Incorporation of By-Laws
if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any
Subsidiary) who or which as of the record date for the determination
of stockholders entitled to notice of and to vote on such business
combination, or immediately prior to the consummation of any such
transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at any
time within two years prior thereto beneficially owned by
any Interested Stockholder, and such assignment or
succession shall have occurred in the course of a
transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own, directly
or indirectly, or
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<PAGE> 15
(B) which such person or any of its Affiliates or Associates
has (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (ii) the right to vote
pursuant to any agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by
any other person with which such first mentioned person or
any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock
of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect in December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall mean
only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty
to determine for the purposes of this Article FIFTEENTH on
the basis of information known to them, (1) the number of
Voting Shares beneficially owned by any person (2) whether a
person is an Affiliate or Associate of another, (3) whether
a person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of
section (c), or (4) whether the assets subject to any
business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or
any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or
Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this Charter
or Act of Incorporation by the By-Laws),
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<PAGE> 16
the affirmative vote of the holders of at least two-thirds of the
outstanding shares of the capital stock of the Corporation entitled
to vote generally in the election of directors (considered for this
purpose as one class) shall be required to amend, alter or repeal
any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH
of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable
to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a Director, except to the extent such
exemption from liability or limitation thereof is not permitted
under the Delaware General Corporation Laws as the same exists or
may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with respect
to any act or omission occurring prior to the time of such
repeal or modification."
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<PAGE> 17
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE> 18
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the Board
of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10) days before said meeting, at
his last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
<PAGE> 19
Section 6. Special meetings of the Board of Directors may be called
at any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall
be necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board of Directors,
although less than a quorum, shall have the right to elect the successor who
shall hold office for the remainder of the full term of the class of directors
in which the vacancy occurred, and until such director's successor shall have
been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not
more than nine members who shall be selected by the Board of Directors from its
own members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of
the Board of
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Directors when it is not in session to transact all business for and in behalf
of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be held
at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee
shall be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend
all investments that may be made of the funds of the Company, and shall direct
the disposal of the same, in accordance with such rules and regulations as the
Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than three
members of the Trust Committee is constituted immediately prior to such disaster
shall be available for the transaction of its business, such Executive Committee
shall also be empowered to exercise all of the powers reserved to the Trust
Committee under Article III Section 2 hereof. In the event of the
unavailability, at such time, of a minimum of two members of such Executive
Committee, any three available directors shall constitute the Executive
Committee for the full conduct and management of the affairs and business of the
Company in accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose, and
any provisions of these By-Laws (other than this Section) and any resolutions
which are contrary to the provisions of this Section or to the provisions of any
such implementary Resolutions shall be suspended during such a disaster period
until it shall be determined by any interim Executive Committee acting under
this section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the other
provisions of these By-Laws.
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Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more
than thirteen members who shall be selected by the Board of Directors, a
majority of whom shall be members of the Board of Directors and who shall hold
office during the pleasure of the Board.
(B) The Trust Committee shall have general supervision
over the Trust Department and the investment of trust funds, in all matters,
however, being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members or at the call of its chairman. A
majority of its members shall be necessary to constitute a quorum for the
transaction of business.
(D) Minutes of each meeting of the Trust Committee shall
be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five
members who shall be selected by the Board of Directors from its own members,
none of whom shall be an officer of the Company, and shall hold office at the
pleasure of the Board.
(B) The Audit Committee shall have general supervision
over the Audit Division in all matters however subject to the approval of the
Board of Directors; it shall consider all matters brought to its attention by
the officer in charge of the Audit Division, review all reports of examination
of the Company made by any governmental agency or such independent auditor
employed for that purpose, and make such recommendations to the Board of
Directors with respect thereto or with respect to any other matters pertaining
to auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever
the majority of its members shall deem it to be proper for the transaction of
its business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not
more than five (5) members who shall be selected by the Board of Directors from
its own members who are not officers of the Company and who shall hold office
during the pleasure of the Board.
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(B) The Compensation Committee shall in general advise
upon all matters of policy concerning the Company brought to its attention by
the management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called
at any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be
elected by the Board of Directors as an associate director, to serve during the
pleasure of the Board.
(B) An associate director shall be entitled to attend
all directors meetings and participate in the discussion of all matters brought
to the Board, with the exception that he would have no right to vote. An
associate director will be eligible for appointment to Committees of the
Company, with the exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of
any Committee created under Article III of the By-Laws of this Company, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at
all meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time confer
and direct. He shall also exercise such powers and perform such duties as may
from time to time be agreed upon between himself and the President of the
Company.
Section 2. THE VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors or
the Chairman of the Board may from time to time confer and direct.
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Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of the
Board the President shall have the powers and duties of the Chairman of the
Board.
Section 4. The Chairman of the Board of Directors or the President
as designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and responsible
for all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the Controller and
such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall
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<PAGE> 24
report to and be directly responsible only to the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the Auditor and
such duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank
to all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices, subject
to the direction of the Board of Directors, the Executive Committee, Chairman of
the Board of Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of
the Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of stock
shall be issued only upon giving such security as may be satisfactory to the
Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to
fix in advance a record date for the determination of the stockholders entitled
to notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
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ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
8
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ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors who
serve as members of committees, other than salaried employees of the Company,
shall be paid such reasonable honoraria or fees for services as members of
committees as the Board of Directors shall from time to time determine and
directors and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time determine and
shall be paid for such special services so performed reasonable compensation as
may be determined by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, PROVIDED, HOWEVER,
that the payment of expenses incurred by a Director officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of
expenses, under this Article X is not paid in full within ninety days after a
written claim therefor has been received by the Corporation the claimant may
file suit to recover the unpaid amount of such claim and, if successful in whole
or in part, shall be entitled to be paid the expense of prosecuting such claim.
In any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification of payment of
expenses under applicable law.
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(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing
provisions of this Article X shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to the
time of such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular or
special meeting of the Board of Directors by a vote of the majority of all the
members of the Board of Directors then in office.
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EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: May 28, 1999 By: /s/ Donald G. MacKelcan
-----------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE> 29
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- --------------------------------------------------- ---------------
Name of Bank
City
in the State of DELAWARE , at the close of business on March 31, 1999.
-------------
ASSETS
<TABLE>
<CAPTION>
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins.............................................196,035
Interest-bearing balances........................................................................... 0
Held-to-maturity securities................................................................................. 44,909
Available-for-sale securities.............................................................................1,396,028
Federal funds sold and securities purchased under agreements to resell......................................127,340
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 4,176,290
LESS: Allowance for loan and lease losses. . . . . . 68,543
LESS: Allocated transfer risk reserve. . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve..............................4,107,747
Assets held in trading accounts...................................................................................0
Premises and fixed assets (including capitalized leases)....................................................139,843
Other real estate owned...................................................................................... 1,055
Investments in unconsolidated subsidiaries and associated companies...........................................1,225
Customers' liability to this bank on acceptances outstanding......................................................0
Intangible assets............................................................................................ 5,265
Other assets................................................................................................ 99,073
Total assets..............................................................................................6,118,520
Continued on next page
</TABLE>
<PAGE> 30
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices.......................................................................................4,332,124
Noninterest-bearing . . . . . . . . . 959,777
Interest-bearing. . . . . . . . . . 3,372,347
Federal funds purchased and Securities sold under agreements to repurchase................................. 432,395
Demand notes issued to the U.S. Treasury.....................................................................28,906
Trading liabilities (from Schedule RC-D)..........................................................................0
Other borrowed money:.......................................................................................///////
With original maturity of one year or less......................................................715,000
With original maturity of more than one year.....................................................43,000
Bank's liability on acceptances executed and outstanding..........................................................0
Subordinated notes and debentures.................................................................................0
Other liabilities (from Schedule RC-G).................................................................... 93,311
Total liabilities.........................................................................................5,644,736
EQUITY CAPITAL
Perpetual preferred stock and related surplus.....................................................................0
Common Stock....................................................................................................500
Surplus (exclude all surplus related to preferred stock).....................................................62,118
Undivided profits and capital reserves......................................................................408,053
Net unrealized holding gains (losses) on available-for-sale securities....................................... 3,113
Total equity capital........................................................................................473,784
Total liabilities, limited-life preferred stock, and equity capital.......................................6,118,520
</TABLE>
2
