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OWENS CORNING
FORM S-3ASR
(Automatic shelf registration statement of securities of well-known seasoned issuers)
Filed 06/03/09
Address
Telephone
CIK
Symbol
SIC Code
Industry
Sector
Fiscal Year
ONE OWENS CORNING PARKWAY
TOLEDO, OH 43659
419-248-8000
0001370946
OC
3290 - Abrasive, Asbestos, And Miscellaneous
Personal & Household Prods.
Consumer/Non-Cyclical
12/31
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Table of Contents
As filed with the Securities and Exchange Commission on June 3, 2009
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OWENS CORNING
(Exact name of registrant as specified in charter)
Delaware
43-2109021
(State or other jurisdiction of
incorporation or organization)
(IRS Employer
Identification No.)
One Owens Corning Parkway
Toledo, Ohio 43659
(419) 248-8000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Stephen K. Krull
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)
Copies to:
Larry A. Barden
Lisa J. Reategui
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Telephone: (312) 853-7000
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration
Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the
following box. If any of the securities being registered on this Form are to be 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.

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 this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. 
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange
Act.
Large accelerated filer 
Accelerated filer Non-accelerated filer Smaller reporting company (Do not check if a smaller reporting company)
CALCULATION OF REGISTRATION FEE
Amount to be registered/
Proposed maximum offering
Title of each class of securities to be registered
price per unit/Proposed
maximum aggregate offering
price (1)
Amount of registration fee (2)
Debt Securities
Guarantees (3)
(1)
An indeterminate amount of debt securities to be offered at indeterminate prices is being registered pursuant to this Registration Statement.
(2)
In reliance on and in accordance with Rules 456(b) and 457(r), the registrant is deferring payment of all of the registration fee.
(3)
Guarantees of Owens Corning’s Debt Securities by certain of Owens Corning’s subsidiaries. Pursuant to Rule 457(n) under the Securities
Act of 1933, no separate fee is required for the guarantees.
Table of Contents
Table of Additional Registrants
Exact name of registrant as specified in its charter*
CDC Corporation
Engineered Pipe Systems, Inc.
Eric Company
Falcon Foam Corporation
INTEGREX Ventures LLC
IPM Inc.
Jefferson Holdings, Inc.
Modulo USA LLC
OCCV1, Inc.
OCCV2, LLC
OCV Fabrics US, Inc.
Owens Corning Composite Materials, LLC
Owens Corning Construction Services, LLC
Owens Corning Masonry Products, LLC (f/k/a Owens Corning Cultured Stone, LLC)
OCV Intellectual Capital, LLC (f/k/a Owens-Corning Fiberglas Technology II, LLC)
Owens Corning Foam Insulation, LLC
Owens Corning Franchising, LLC
Owens-Corning Funding Corporation
Owens Corning HOMExperts, Inc.
Owens Corning HT, Inc.
Owens Corning Insulating Systems, LLC
Owens Corning Intellectual Capital, LLC
Owens Corning Overseas Holding, Inc.
Owens Corning Roofing and Asphalt, LLC
Owens Corning Sales, LLC (f/k/a Owens Corning Sales, Inc.)
Owens Corning Science and Technology, LLC
Owens Corning U.S. Holdings, LLC
Palmetto Products, Inc.
Soltech, Inc.
State or other
jurisdiction of
incorporation
or organization
I.R.S. employer
Wisconsin
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Maine
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Kentucky
39-1830456
34-1870323
34-1162113
34-1810126
34-1921499
51-0336727
58-2407011
45-0556704
20-5580634
20-5581329
23-3045916
35-2273537
36-4590392
61-1504835
83-0466000
38-3737830
32-0181362
34-1788139
32-0176636
34-1830879
37-1525228
83-0485853
34-1794022
32-0176634
74-3189734
30-0369347
30-0369361
34-1560647
35-1575937
identification
number
* The address for each of the additional registrants’ principal executive office is One Owens Corning Parkway, Toledo, Ohio 43659, and the
telephone number for each of the additional registrants’ principal executive office is (419) 248-8000.
Table of Contents
PROSPECTUS
OWENS CORNING
Debt Securities
Guarantees
We may offer debt securities and related guarantees from time to time in one or more series. We will provide specific terms of any
offering of these debt securities and related guarantees, together with the terms of the offering, the initial public offering price and our net
proceeds from the sale thereof, in supplements to this prospectus. You should read this prospectus and any prospectus supplement, as well as
the documents incorporated and deemed to be incorporated by reference in this prospectus and any prospectus supplement, carefully before you
invest.
We may sell these debt securities and related guarantees on a continuous or delayed basis directly, through agents, dealers or underwriters
as designated from time to time, or through a combination of these methods. We reserve the sole right to accept, and together with any agents,
dealers and underwriters, reserve the right to reject, in whole or in part, any proposed purchase of debt securities. If any agents, dealers or
underwriters are involved in the sale of any debt securities and related guarantees, the applicable prospectus supplement will set forth any
applicable commissions or discounts. Our net proceeds from the sale of debt securities and related guarantees will be the initial public offering
price of those debt securities less the applicable discount, in the case of an offering made through an underwriter, or the purchase price of those
debt securities less the applicable commission, in the case of an offering through an agent, and, in each case, less other expenses payable by us
in connection with the issuance and distribution of those debt securities and related guarantees.
Our principal executive offices are located at One Owens Corning Parkway, Toledo, Ohio 43659, and our telephone number at that
address is (419) 248-8000. Our website is located at www.owenscorning.com . Information on our website does not constitute part of this
prospectus.
Investing in our securities involves risks. You should carefully consider the information referred to under the heading “ Risk
Factors ” on page 4 of this prospectus.
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.
The date of this prospectus is June 3, 2009.
Table of Contents
TABLE OF CONTENTS
Prospectus
Page
ABOUT THIS PROSPECTUS
WHERE YOU CAN FIND MORE INFORMATION
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
OWENS CORNING
RISK FACTORS
USE OF PROCEEDS
RATIO OF EARNINGS TO FIXED CHARGES
DESCRIPTION OF DEBT SECURITIES
PLAN OF DISTRIBUTION
LEGAL MATTERS
EXPERTS
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ABOUT THIS PROSPECTUS
This prospectus incorporates by reference important business and financial information about us that is not included in or
delivered with this document. This information, other than exhibits to documents that are not specifically incorporated by reference in
this prospectus, is available to you without charge upon written or oral request to: Owens Corning, One Owens Corning Parkway,
Toledo, Ohio 43659, Attention: Corporate Secretary, (419) 248-8000.
This prospectus is part of an automatic shelf registration statement that we filed with the Securities and Exchange Commission, or “SEC,”
as a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act of 1933, or the “Securities Act.” Under the automatic shelf
process, we may, over time, offer and sell the debt securities described in this prospectus or in any applicable prospectus supplement in one or
more offerings. This prospectus only provides you with a general description of the debt securities we may offer. Each time we offer and sell
debt securities, we will provide a prospectus supplement that contains specific information about the terms of those debt securities. The
prospectus supplement may also add, update or change information contained in this prospectus. Before you make any investment decision,
you should read both this prospectus and any prospectus supplement, together with the documents incorporated and deemed to be incorporated
by reference in this prospectus and the additional information described below under the heading “Where You Can Find More Information.”
You should rely only on the information contained in this prospectus and the accompanying prospectus supplement, including the
information incorporated or deemed to be incorporated by reference herein or any free writing prospectus that we prepare and distribute. We
have not authorized anyone to provide you with information different from that contained in or incorporated by reference into this prospectus,
the accompanying prospectus supplement or any such free writing prospectus.
This prospectus does not constitute an offer to sell or a solicitation of an offer to buy by anyone in any jurisdiction in which such offer or
solicitation is not authorized, or in which the person is not qualified to do so or to any person to whom it is unlawful to make such offer or
solicitation. Neither the delivery of this prospectus nor any sale hereunder shall, under any circumstances, create any implication that there has
been no change in our affairs since the date hereof, that the information contained herein is correct as of any time subsequent to its date, or that
any information incorporated or deemed to be incorporated by reference herein is correct as of any time subsequent to its date.
The exhibits to our registration statement contain the full text of certain agreements and other important documents we have summarized
in this prospectus. Since these summaries may not contain all the information that you may find important in deciding whether to purchase the
debt securities we offer, you should review the full text of these documents. The registration statement and the exhibits can be obtained from
the SEC as indicated under the heading “Where You Can Find More Information.”
In this prospectus, unless otherwise expressly set forth or as the context otherwise indicates:
•
The term “Predecessor” refers to Owens Corning Sales, LLC (formerly known as Owens Corning), prior to its emergence from
bankruptcy on October 31, 2006.
•
The terms “Owens Corning,” “the Company,” “we,” “our” and “us” refer to Owens Corning (formerly known as Owens Corning
(Reorganized) Inc.), a Delaware corporation, and its subsidiaries, after Predecessor’s emergence from bankruptcy.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC allows us to “incorporate
by reference” into this prospectus the information we file with the SEC, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and information that
we file later with the SEC will automatically update and supersede this information. SEC rules and regulations also permit us to “furnish”
rather than “file” certain reports and information with the SEC. Any such reports or information which we “furnish” or have “furnished” shall
not be deemed to be incorporated by reference into or otherwise become a part of this prospectus, regardless of when furnished to the SEC. We
incorporate by reference the following documents we have already filed with the SEC (file number 1-33100) and any future filings that we will
make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, or the “Exchange Act” (other than any
portion of such filings that are furnished under applicable SEC rules rather than filed):
•
Annual Report on Form 10-K for the year ended December 31, 2008;
•
Quarterly Report on Form 10-Q for the quarter ended March 31, 2009; and
•
Current Report on Form 8-K filed with the SEC on June 2, 2009.
Our SEC filings are available free of charge through our Internet website at www.owenscorning.com as soon as reasonably practicable
after we electronically file these materials with the SEC. You may access these SEC filings on our website. However, the information on our
Internet site is not part of this prospectus or any accompanying prospectus supplement or other offering materials. You may also request a copy
of our SEC filings at no cost, by writing or telephoning us at:
Owens Corning
One Owens Corning Parkway
Toledo, OH 43659
Attention: Corporate Secretary
Telephone: (419) 248-8000
Our SEC filings are also available at the SEC’s Web site at http://www.sec.gov. You may also read and copy any documents that we file
with the SEC at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549. You can request copies of these documents
by writing to the SEC and paying a fee for the copying cost. Please call the SEC at 1-800-SEC-0330 for more information about the operation
of the public reference room.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
Our disclosure and analysis in this prospectus and the materials we have filed or will file with the SEC (as well as information included in
our other written or oral statements) contain forward-looking statements within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act. Forward-looking statements present our current forecasts and estimates of future events. These statements do
not strictly relate to historical or current results and can be identified by words such as “anticipate,” “believe,” “estimate,” “expect,” “intend,”
“likely,” “may,” “plan,” “project,” “strategy,” “will” and other terms of similar meaning or import in connection with any discussion of future
operating, financial or other performance. These forward-looking statements are subject to risks, uncertainties and other factors that could
cause actual results to differ materially from those projected in the statements. These risks, uncertainties and other factors include, without
limitation:
•
economic and political conditions, including new legislation or other governmental actions;
•
levels of residential and commercial construction activity;
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•
competitive factors;
•
pricing pressures;
•
weather conditions;
•
our level of indebtedness;
•
industry and economic conditions that adversely affect the market and operating conditions of our customers, suppliers or lenders;
•
availability and cost of raw materials;
•
availability and cost of credit;
•
interest rate movements;
•
issues involving implementation of acquisitions, divestitures and joint ventures;
•
our ability to utilize our net operating loss carryforwards;
•
achievement of expected synergies, cost reductions and/or productivity improvements;
•
issues involving implementation of new business systems;
•
foreign exchange fluctuations;
•
the success of research and development activities;
•
difficulties in managing production capacity; and
•
labor disputes.
All forward-looking statements in this prospectus should be considered in the context of the risk and other factors described above and as
detailed from time to time in the Company’s SEC filings. Any forward-looking statements speak only as of the date the statement is made and
we undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or
otherwise. It is not possible to identify all of the risks, uncertainties and other factors that may affect future results. In light of these risks and
uncertainties, the forward-looking events and circumstances discussed in this prospectus may not occur and actual results could differ
materially from those anticipated or implied in the forward-looking statements. Accordingly, users of this prospectus are cautioned not to place
undue reliance on the forward-looking statements.
OWENS CORNING
Owens Corning, a global company incorporated in Delaware, is headquartered in Toledo, Ohio, and is a world leader in composite and
building materials systems, delivering a broad range of high-quality products and services. Since Owens Corning was founded in 1938, the
Company has continued to grow as a market-leading innovator of glass fiber technology. Our products range from glass fiber used to reinforce
composite materials used in transportation, electronics, marine, wind energy and other high-performance markets to insulation, roofing and
manufactured stone veneer used in residential, commercial and industrial applications.
Our business operations fall within two reportable segments, Composites and Building Materials. Composites includes our
Reinforcements and Downstream businesses. Building Materials includes our Insulation, Roofing and Other businesses. Through these lines of
business, we manufacture and sell products worldwide. We maintain leading market positions in many of our major product categories.
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RISK FACTORS
An investment in our debt securities involves significant risks. Before purchasing any debt securities, you should carefully consider and
evaluate all of the information included and incorporated by reference or deemed to be incorporated by reference in this prospectus or the
applicable prospectus supplement, including the risk factors incorporated by reference herein from our Annual Report on Form 10-K for the
year ended December 31, 2008, as updated by annual, quarterly and other reports and documents we file with the SEC after the date of this
prospectus and that are incorporated by reference herein or in the applicable prospectus supplement. Our business, financial position, results of
operations or liquidity could be adversely affected by any of these risks.
USE OF PROCEEDS
Unless otherwise specified in a prospectus supplement accompanying this prospectus, the net proceeds from the sale of debt securities to
which this prospectus relates will be used for general corporate purposes. General corporate purposes may include repayment of debt,
acquisitions, additions to working capital, capital expenditures and investments in our subsidiaries. Net proceeds may be temporarily invested
or applied to repay short-term debt prior to their stated use.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for the periods indicated:
Three
Months
Ended
March 31,
2009
Ratio of Earnings to
Fixed Charges(a)
(a)
(b)
(c)
(d)
Owens Corning
Twelve
Twelve
Months
Months
Ended
Ended
December 31,
December 31,
2008
(b)
2007
1.7
1.1
Two Months
Ended
December 31,
Ended
October 31,
Predecessor
Twelve
Months
Ended
December 31,
2006
2006
2005
Ten Months
(c)
33.6
(d)
Twelve
Months
Ended
December 31,
2004
12.8
For purposes of calculating our ratio of earnings to fixed charges:
• earnings consists of earnings (loss) from continuing operations before taxes plus (i) fixed charges, as defined below, and
(ii) amortization of capitalized interest less capitalized interest;
• fixed charges consists of (i) the portion of rents representative of interest expense, (ii) interest on indebtedness, including
amortization of deferred loan costs, and (iii) capitalized interest; and
• the consolidated ratio of earnings to fixed charges is determined by dividing earnings, as defined above, by fixed charges, as
defined above.
We would have had to generate additional earnings of $45 million in the three months ended March 31, 2009, in order to achieve a
coverage ratio of 1:1.
Due to the losses incurred for adjustments due to bankruptcy proceedings, we would have had to generate additional earnings of $107
million in the two months ended December 31, 2006 in order to achieve a coverage ratio of 1:1.
Due to the losses incurred for adjustments due to bankruptcy proceedings, we would have had to generate additional earnings of $4.506
billion in the twelve months ended December 31, 2005, in order to achieve a coverage ratio of 1:1.
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DESCRIPTION OF DEBT SECURITIES
We will issue the debt securities in one or more series. Debt securities will be issued under the indenture dated as of June 2, 2009, among
us, the Subsidiary Guarantors and Wells Fargo Bank, National Association, as trustee, or any other indenture which we identify in a prospectus
supplement (we refer to the indenture dated as of June 2, 2009, and any such other indenture, as the “indenture”). We have summarized below
the material provisions of the indenture. However, because this summary is not complete, it is subject to and is qualified in its entirety by
reference to the indenture. Definitions of certain terms used in this “Description of Debt Securities” may be found below under “—Certain
Definitions.” In this “Description of Debt Securities,” “we,” “us,” “our” and similar words refer to Owens Corning and not any of its
subsidiaries.
General
The debt securities will be our general obligations and will rank on a parity with our other unsecured and unsubordinated indebtedness.
The debt securities will be effectively subordinated to our senior secured indebtedness to the extent of the value of the collateral securing such
indebtedness.
The debt securities will be fully and unconditionally guaranteed as described below by each of our current and future U.S. subsidiaries
that is a borrower or a guarantor under the Credit Agreement (each a “Subsidiary Guarantor” and, collectively, the “Subsidiary Guarantors”).
Each guarantee of the debt securities will be a general obligation of the Subsidiary Guarantors and will rank on a parity with the other
unsecured and unsubordinated indebtedness of the Subsidiary Guarantors. The guarantees will be effectively subordinated to any secured
indebtedness of the Subsidiary Guarantors, to the extent of the value of the collateral securing such indebtedness.
We may issue the debt securities in one or more series, as authorized from time to time by our Board of Directors, any committee of our
Board of Directors or any duly authorized officer. The indenture does not limit our ability to incur additional indebtedness, nor does it afford
holders of the debt securities protection in the event of a highly leveraged or similar transaction involving our company. However, the
indenture provides that neither we nor any of the Subsidiary Guarantors may subject certain of our property or assets to any mortgage or other
encumbrance unless the debt securities are secured equally and ratably with or prior to that other secured indebtedness. See “Certain
Covenants” below. Reference is made to the applicable prospectus supplement for information with respect to any additions to, or
modifications or deletions of, the events of default or covenants described below.
We will describe in a supplement to this prospectus the particular terms of any debt securities being offered, any modifications of or
additions to the general terms of the debt securities and any U.S. Federal income tax considerations that may be applicable in the case of
offered debt securities. Accordingly, you should read both the prospectus supplement relating to the particular debt securities being offered and
the general description of debt securities set forth in this prospectus before investing.
The applicable prospectus supplement will describe specific terms relating to the series of debt securities being offered. These terms will
include some or all of the following:
•
the title of the series of debt securities;
•
the aggregate principal amount and authorized denominations (if other than $1,000 and integral multiples of $1,000);
•
the initial public offering price;
•
the original issue and stated maturity date or dates;
•
the interest rate or rates (which may be fixed or floating), if any, the method by which the rate or rates will be determined and the
interest payment and regular record dates;
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•
the manner and place of payment of principal and interest, if any;
•
if other than U.S. dollars, the currency or currencies in which payment of the initial public offering price and/or principal and
interest, if any, may be made;
•
whether (and if so, when and at what price) we may be obligated to repurchase the debt securities;
•
whether (and if so, when and at what price) the debt securities can be redeemed by us or the holder;
•
under what circumstances, if any, we will pay additional amounts on the debt securities to non-U.S. holders in respect of taxes;
•
whether the debt securities will be issued in registered or bearer form (with or without coupons) and, if issued in the form of one or
more global securities, the depositary for such securities;
•
where the debt securities can be exchanged or transferred;
•
whether the debt securities may be issued as original issue discount securities, and if so, the amount of discount and the portion of
the principal amount payable upon declaration of acceleration of the maturity thereof;
•
whether (and if so, when and at what rate) the debt securities will be convertible into shares of our common stock;
•
whether there will be a sinking fund;
•
provisions, if any, for the defeasance or discharge of the debt securities;
•
any addition to, or modification or deletion of, any events of default or covenants contained in the indenture relating to the debt
securities; and
•
any other terms of the series.
If we issue original issue discount securities, we will also describe in the applicable prospectus supplement the U.S. Federal income tax
consequences and other special considerations applicable to those securities.
We are not required to issue all of the debt securities of a series at the same time, and debt securities of the same series may vary as to
interest rate, maturity and other provisions. Unless otherwise provided in the applicable prospectus supplement, the aggregate principal amount
of a series may be increased and additional debt securities of such series may be issued.
Denominations, Registration, Transfer and Exchange
Unless otherwise specified in the applicable prospectus supplement, the debt securities of any series will be issued only as registered
securities, in global or certificated form and in denominations of $1,000 and any integral multiple thereof, and will be payable only in U.S.
dollars. For more information regarding debt securities issued in global form, see “—Book-Entry, Delivery and Form” below. Unless otherwise
indicated in the applicable prospectus supplement, any debt securities we issue in bearer form will have coupons attached.
Registered debt securities of any series will be exchangeable for other registered debt securities of the same series in the same aggregate
principal amount and having the same stated maturity date and other terms and conditions. If so provided in the applicable prospectus
supplement, to the extent permitted by law, debt securities of any series issued in bearer form which by their terms are registrable as to
principal and interest may be exchanged, at the option of the holders, for registered debt securities of the same series in the same aggregate
principal amount and having the same stated maturity date and other terms and conditions, upon surrender of those securities at the corporate
trust office of the trustee or at any other office or agency designated by us for the purpose of making any such exchanges. Except in certain
limited circumstances, debt securities issued in bearer form with coupons surrendered for exchange must be surrendered with all unmatured
coupons and any matured coupons in default attached thereto.
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Upon surrender for registration of transfer of any registered debt security of any series at the office or agency maintained for that purpose,
we will execute, and the trustee will authenticate and deliver, in the name of the designated transferee, one or more new registered debt
securities of the same series in the same aggregate principal amount of authorized denominations and having the same stated maturity date and
other terms and conditions. We may not impose any service charge, other than any required tax or other governmental charge, on the transfer or
exchange of debt securities.
We are not required (i) to issue, register the transfer of or exchange debt securities of any series during the period from the opening of
business 15 days before the day a notice of redemption relating to debt securities of that series selected for redemption is sent to the close of
business on the day that notice is sent, or (ii) to register the transfer of or exchange any debt security so selected for redemption, except for the
unredeemed portion of any debt security being redeemed in part.
Payment and Paying Agents
If we issue a series of debt securities only in registered form, we will maintain in each place of payment for those debt securities an office
or agency where the debt securities may be presented or surrendered for payment or for registration of transfer or exchange and where holders
may serve us with notices and demands in respect of the debt securities and the indenture. We may also maintain an office or agency in a place
of payment for that series of debt securities located outside the United States, where any registered debt securities of a series may be
surrendered for registration of transfer or exchange and where holders may serve us with notices and demands in respect of the debt securities
and the indenture.
We will give prompt written notice to the trustee of the location, and any change in the location, of such office or agency. If we fail to
maintain any required office or agency or fail to furnish the trustee with the address of such office or agency, presentations, surrenders, notices
and demands may be made or served at the corporate trust office of the trustee. We have appointed the trustee as our agent to receive all
presentations, surrenders, notices and demands with respect to the applicable series of debt securities.
Certain Covenants
Unless otherwise specified in the applicable prospectus supplement, the following covenants apply to the debt securities:
Limitation on Mortgages and Liens . Neither we nor any of our Subsidiaries may create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable for, any Lien upon any Principal Property or upon the Capital Stock of any Subsidiary without equally and
ratably securing any debt securities then outstanding, unless the aggregate principal amount of all outstanding Indebtedness of Owens Corning
and its Subsidiaries that is secured by Liens (other than Permitted Liens) on any Principal Property or upon the Capital Stock of any Subsidiary
(in each case, now owned or hereafter acquired) plus the amount of all outstanding Attributable Debt incurred pursuant to the first bullet under
the covenant entitled “Limitation on Sales and Leaseback Transactions” would not exceed 10% of Consolidated Net Tangible Assets calculated
as of the date of the creation or incurrence of the Lien. However, this limitation does not apply to certain Permitted Liens as described in the
indenture, including:
•
Liens existing on the date of the indenture;
•
Liens in favor of the Company or any of its Subsidiaries;
•
Liens on property owned by a Person existing at the time such Person is merged with or into or consolidated with the Company or
any of its Subsidiaries, which existed prior to the contemplation of such merger or consolidation;
•
Liens on acquired property existing at the time of the acquisition, which existed prior to the contemplation of such acquisition;
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•
Liens to secure the performance of statutory or regulatory obligations, surety or appeal bonds, performance bonds or other similar
obligations;
•
Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith
by appropriate proceedings; and
•
any extension, renewal or replacement of any Lien otherwise permitted by this section, so long as (1) such extension, renewal or
replacement Lien is limited to the same property that secured the original Lien and (2) the indebtedness secured by the new Lien is
not greater than the indebtedness secured by the original Lien.
Limitation on Sale and Leaseback Transactions . Neither we nor any of our Subsidiaries may sell any Principal Property owned on the
date of the indenture with the intention of taking back a lease of that property for a period of more than three years other than leases between
the Company and any of its Subsidiaries or leases between Subsidiaries, unless:
•
after giving effect thereto, the aggregate amount of all outstanding Attributable Debt with respect to all such transactions, plus the
amount of outstanding indebtedness secured by a Lien (other than a Permitted Lien) upon any Principal Property or upon the
Capital Stock of any Subsidiary (in each case, now owned or hereafter acquired) incurred without equally and ratably securing the
debt securities pursuant to the covenant entitled “Limitation on Liens,” would not exceed 10% of Consolidated Net Tangible Assets
calculated at the time of the transaction; or
•
within 120 days after such sale and leaseback transaction, Owens Corning or such Subsidiary applies an amount equal to the greater
of the net proceeds of such sale and leaseback transaction and the fair market value at the time of the transaction of the Principal
Property so leased to the retirement of Funded Debt of Owens Corning or any of its Subsidiaries.
Covenant to File Reports . We will file with the trustee, within 15 days after we are required to file with the SEC, copies of the annual
reports and of the information, documents, and other reports which we have so filed with the SEC pursuant to Section 13 or Section 15(d) of
the Exchange Act.
Merger or Consolidation
We may not, directly or indirectly: (1) consolidate or merge with or into another person (whether or not Owens Corning is the surviving
corporation) or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of Owens Corning and
its Subsidiaries, taken as a whole, in one or more related transactions, to another Person, unless:
•
either (a) we are the survivor formed by or resulting from such consolidation or merger or (b) the surviving or successor entity is a
corporation or limited liability company organized or existing under the laws of the United States, any State of the United States or
the District of Columbia;
•
the surviving or successor entity (if other than Owens Corning) or the person to which such sale, assignment, transfer, conveyance
or other disposition has been made assumes all the obligations of Owens Corning under the debt securities and the indenture
pursuant to a supplemental indenture reasonably satisfactory to the trustee;
•
immediately after completion of the transaction, no Event of Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default, has occurred and is continuing; and
•
the surviving or successor entity shall have delivered to the trustee an officers’ certificate and opinion of counsel, each stating that
such transaction and any supplemental indenture entered into in connection with such transaction comply with the indenture
provisions and that all conditions precedent in the indenture relating to such transaction have been complied with.
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In addition, Owens Corning may not, directly or indirectly, lease all or substantially all of the properties or assets of Owens Corning and
its Subsidiaries, taken as a whole, in one or more related transactions, to another person. However, this restriction on mergers and
consolidations shall not apply to:
•
a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction; or
•
any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among
the Company and its Subsidiaries.
Additional Subsidiary Guarantees
We will not permit any of our domestic subsidiaries to, directly or indirectly, guarantee any person’s obligations under our Credit
Agreement unless such Subsidiary is a Subsidiary Guarantor or concurrently executes a supplemental indenture and a guarantee.
Events of Default
“Event of Default” means, with respect to a series of debt securities, any of the following events:
•
failure to pay interest on the debt securities of such series, which failure continues for a period of 30 days after payment is due;
•
failure to make any principal or premium payment on the debt securities of such series when due;
•
failure to comply with any covenant or other agreement in the indenture or any term in the debt securities for 60 days after we
receive notice from the trustee or the holders of at least 25% in aggregate principal amount of the debt securities of such series then
outstanding voting as a single class;
•
default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed (or the payment of which is guaranteed by Owens Corning or any of its
Subsidiaries), whether such indebtedness now exists, or is created after the date of the indenture, and which default (i) is caused by
a failure to pay principal of, or interest or premium, if any, on, such indebtedness prior to the expiration of the grace period
provided in such Indebtedness on the date of such default (a “Payment Default”) or (ii) results in the acceleration of such
Indebtedness prior to its express maturity; and, in each case, the principal amount of any such indebtedness, together with the
principal amount of any other such indebtedness under which there has been a Payment Default or the maturity of which has been
so accelerated, aggregates $75.0 million or more;
•
certain events of bankruptcy, insolvency or reorganization of our company;
•
except as permitted by the indenture, any guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for
any reason to be in full force and effect, or any Subsidiary Guarantor, or any person acting on behalf of any Subsidiary Guarantor,
denies or disaffirms its obligations under its guarantee; or
•
any other event of default provided with respect to debt securities of such series pursuant to the indenture.
In the case of an event of default arising from certain events of bankruptcy or insolvency with respect to Owens Corning, any Subsidiary
of Owens Corning that is a Significant Subsidiary or any group of Subsidiaries of Owens Corning that, taken together, would constitute a
Significant Subsidiary, all outstanding debt securities of each series will become due and payable immediately without further action or notice.
If any other event of default occurs and is continuing, the trustee or the holders of at least 25% in aggregate principal amount of the then
outstanding debt securities of a particular series may declare all the debt securities of such series to be due and payable immediately.
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Subject to certain limitations, holders of a majority in aggregate principal amount of the then outstanding debt securities of a particular
series may direct the trustee in its exercise of any trust or power with respect to that series. The trustee may withhold from holders of the debt
securities of any series notice of any continuing default or event of default if it determines that withholding notice is in their interest, except a
default or event of default relating to the payment of principal, interest or premium, on such debt securities, if any.
Subject to the provisions of the indenture relating to the duties of the trustee, in case an event of default occurs and is continuing, the
trustee will be under no obligation to exercise any of the rights or powers under the indenture with respect to any series of debt securities at the
request or direction of any holders of such series of debt securities unless such holders have offered to the trustee reasonable indemnity or
security against any loss, liability or expense. Except to enforce the right to receive payment of principal, premium, if any, or interest, if any,
when due, no holder of a debt security of a particular series may pursue any remedy with respect to the indenture or such series of debt
securities unless:
(1) such holder has previously given the trustee notice that an event of default is continuing;
(2) holders of at least 25% in aggregate principal amount of the then outstanding debt securities of such series have requested the
trustee to pursue the remedy;
(3) such holders have offered the trustee reasonable security or indemnity against any loss, liability or expense;
(4) the trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or
indemnity; and
(5) holders of a majority in aggregate principal amount of the then outstanding debt securities of such series have not given the
trustee a direction inconsistent with such request within such 60-day period.
The holders of a majority in aggregate principal amount of the then outstanding debt securities of a particular series by notice to the
trustee may, on behalf of the holders of all of the debt securities of such series, rescind an acceleration or waive any existing default or event of
default and its consequences under the indenture except a continuing default or event of default in the payment of interest or premium on, or
the principal of, the debt securities of such series.
We are required to deliver to the trustee annually a certificate regarding compliance with the indenture. Upon becoming aware of any
default or event of default, we are required to deliver to the trustee a statement specifying such default or event of default.
Modification or Waiver
We and the trustee may, at any time and from time to time, amend the indenture without the consent of the holders of outstanding debt
securities for any of the following purposes:
•
to effect the assumption of our obligations under the indenture by a successor corporation;
•
to impose additional covenants and events of default for the benefit of the holders of any series of debt securities;
•
to add or change any of the provisions of the indenture relating to the issuance or exchange of debt securities of any series in
registered form, but only if such action does not adversely affect the interests of the holders of outstanding debt securities of such
series or related coupons in any material respect;
•
to change or eliminate any of the provisions of the indenture, but only if the change or elimination becomes effective when there is
no outstanding debt security of any series or related coupon which is entitled to the benefit of such provision and as to which such
modification would apply;
•
to secure the debt securities;
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•
to supplement any of the provisions of the indenture to permit or facilitate the defeasance and discharge of any series of debt
securities, but only if such action does not adversely affect the interests of the holders of outstanding debt securities of any series or
related coupons in any material respect;
•
to establish the form or terms of the debt securities and coupons, if any, of any series as permitted by the indenture;
•
to evidence and provide for the acceptance of appointment by a successor trustee and to add to or change any of the provisions of
the indenture to facilitate the administration of the trusts by more than one trustee;
•
to correct any mistakes or defects in the indenture, but only if such action does not adversely affect the interests of the holders of
outstanding debt securities of any series or related coupons in any material respect;
•
to allow any Guarantor to execute a supplemental indenture and/or a Guarantee with respect to the debt securities of a particular
series; and
•
to comply with requirements of the SEC in order to effect or maintain the qualification of this indenture under the Trust Indenture
Act of 1939.
In addition, we and the trustee may modify the indenture with the consent of the holders of not less than a majority in principal amount of
each series of outstanding debt securities affected by such modification to add, change or eliminate any provision of, or to modify the rights of
holders of debt securities of such series under, the indenture. But we may not take any of the following actions without the consent of each
holder of outstanding debt securities affected thereby:
•
change the stated maturity of the principal of, or any installment of interest on, the debt securities of any series or related coupon,
reduce the principal amount thereof, the interest thereon or any premium payable upon redemption thereof, change the currency or
currencies in which the principal, premium or interest is denominated or payable;
•
reduce the amount of, or impair the right to institute suit for the enforcement of, any payment on the debt securities of any series
following maturity thereof;
•
reduce the percentage in principal amount of outstanding debt securities of any series required for consent to any waiver of defaults
or compliance with certain provisions of the indenture; or
•
modify any provision of the indenture relating to modifications and waivers of defaults and covenants, except to increase any such
percentage or to provide that certain other provisions cannot be modified or waived without the consent of each holder of
outstanding debt securities affected thereby.
A modification with respect to one or more particular series of debt securities and related coupons, if any, will not affect the rights under
the indenture of the holders of debt securities of any other series and related coupons, if any.
The holders of a majority in principal amount of the outstanding debt securities of any series may, on behalf of the holders of all debt
securities of such series, waive any past default under the indenture with respect to the debt securities of such series, except a default (i) in the
payment of principal of, premium, if any, or interest on such series or (ii) in respect of a covenant or provision which, as described above,
cannot be modified or amended without the consent of each holder of debt securities of such series. Upon any such waiver, the default will
cease to exist with respect to the debt securities of such series and any Event of Default arising therefrom will be deemed to have been cured
for every purpose of the debt securities of such series under the indenture, but the waiver will not extend to any subsequent or other default or
impair any right consequent thereon.
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We may elect in any particular instance not to comply with certain covenants set forth in the indenture or the debt securities of any series
(except as otherwise provided in the covenants described above under “—Certain Covenants”) if, before the time for such compliance, the
holders of at least a majority in principal amount of the outstanding debt securities of such series either waive compliance in that instance or
generally waive compliance with those provisions, but the waiver may not extend to or affect any term, provision or condition except to the
extent expressly so waived, and, until the waiver becomes effective, our obligations and the duties of the trustee in respect of any such
provision will remain in full force and effect.
Discharge, Legal Defeasance and Covenant Defeasance
We may be discharged from all of our obligations with respect to the outstanding debt securities of any series (except as otherwise
provided in the indenture) when:
•
either (i) all the debt securities of such series and related coupons, if any, have been delivered to the trustee for cancellation, or
(ii) all the debt securities of such series and related coupons, if any, not delivered to the trustee for cancellation:
•
have become due and payable;
•
will become due and payable at their stated maturity within one year; or
•
are to be called for redemption within one year under arrangements satisfactory to the trustee for the giving of notice by the
trustee;
and we, in the case of clause (ii), have irrevocably deposited or caused to be deposited with the trustee, in trust, an amount in U.S.
dollars sufficient for payment of all principal of, premium, if any, and interest on those debt securities when due or to the date of
deposit, as the case may be; provided , however , in the event a petition for relief under any applicable federal or state bankruptcy,
insolvency or other similar law is filed with respect to our company within 91 days after the deposit and the trustee is required to
return the deposited money to us, our obligations under the indenture with respect to those debt securities will not be deemed
terminated or discharged;
•
we have paid or caused to be paid all other sums payable by us under the indenture;
•
we have delivered to the trustee an officers’ certificate and an opinion of counsel each stating that all conditions precedent relating
to the satisfaction and discharge of the indenture with respect to such series of debt securities have been complied with; and
•
we have delivered to the trustee an opinion of counsel of recognized standing in respect of U.S. federal income tax matters or a
ruling of the Internal Revenue Service to the effect that holders of debt securities of such series will not recognize income, gain or
loss for U.S. federal income tax purposes as a result of such deposit and discharge.
We may elect (i) to be discharged from our obligations with respect to the outstanding debt securities of any series (except as otherwise
specified in the indenture) or (ii) to be released from our obligation to comply with the provisions of the indenture described above under “—
Certain Covenants” and under “—Merger or Consolidation” with respect to the outstanding debt securities of any series (and, if so specified,
any other obligation or restrictive covenant added for the benefit of the holders of such series of debt securities), in either case, if we satisfy
each of the following conditions:
•
we deposit or cause to be deposited irrevocably with the trustee, in trust, specifically pledged as security for, and dedicated solely
to, the benefit of the holders of debt securities of such series money or the equivalent in U.S. government securities, or any
combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification delivered to the trustee, for payment of all principal of, premium, if any, and interest on the outstanding debt
securities of such series when due;
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•
such deposit does not cause the trustee with respect to the debt securities of such series to have a conflicting interest with respect to
the debt securities of such series;
•
such deposit will not result in a breach or violation of, or constitute a default under, the indenture or any other agreement or
instrument to which we are a party or by which we are bound;
•
on the date of such deposit, there is no continuing Event of Default with respect to the debt securities of such series or event
(including such deposit) which, with notice or lapse of time or both, would become an Event of Default with respect to the debt
securities of such series and, with respect to the option under clause (i) above only, no Event of Default with respect to such series
under the provisions of the indenture relating to certain events of bankruptcy or insolvency or event which, with notice or lapse of
time or both, would become an Event of Default with respect to such series under such bankruptcy or insolvency provisions shall
have occurred and be continuing on the 91st day after such date; and
•
we deliver to the trustee an opinion of counsel of recognized standing in respect of U.S. federal income tax matters or a ruling of the
Internal Revenue Service to the effect that the holders of debt securities of such series will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of such deposit, defeasance or discharge.
Notwithstanding the foregoing, if we exercise our option under clause (ii) above and an Event of Default with respect to such series of
debt securities under the provisions of the indenture relating to certain events of bankruptcy or insolvency or event which, with notice or lapse
of time or both, would become an Event of Default with respect to such series of debt securities under such bankruptcy or insolvency
provisions shall have occurred and be continuing on the 91st day after the date of such deposit, our obligation to comply with the provisions of
the indenture described above under “—Certain Covenants” and under “—Merger or Consolidation” with respect to those debt securities will
be reinstated.
The Trustee Under the Indenture
We maintain ordinary banking relationships and, from time to time, obtain credit facilities and lines of credit with a number of banks,
including the trustee, Wells Fargo Bank, National Association.
Book-Entry, Delivery and Form
We may issue the debt securities of a series in whole or in part in global form that we will deposit with, or on behalf of, a depositary
identified in the applicable prospectus supplement. Global securities may be issued in either registered or bearer form and in either temporary
or permanent form. We will make payments of principal of, and premium, if any, and interest on debt securities represented by a global
security to the trustee and then by the trustee to the depositary.
We anticipate that any global securities will be deposited with, or on behalf of, The Depository Trust Company (“DTC”), New York,
New York, and will be registered in the name of DTC’s nominee, and that the following provisions will apply to the depositary arrangements
with respect to any global securities. We will describe additional or differing terms of the depositary arrangements in the prospectus
supplement relating to a particular series of debt securities issued in the form of global securities.
Upon the issuance of a registered global security, the depositary will credit, on its book-entry registration and transfer system, the
participants’ accounts with the respective principal or face amounts of the debt securities beneficially owned by the participants. Any dealers,
underwriters or agents participating in the distribution of the debt securities will designate the accounts to be credited. Ownership of beneficial
interests in a registered global security will be shown on, and the transfer of ownership interests will be effected only through, records
maintained by the depositary, with respect to interests of participants, and on the records of participants, with respect to interests of persons
holding through participants.
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So long as the depositary, or its nominee, is the registered owner of a registered global security, that depositary or its nominee, as the case
may be, will be considered the sole owner or holder of the debt securities represented by the registered global security for all purposes under
the indenture. Except as described below, owners of beneficial interests in a registered global security will not be entitled to have the debt
securities represented by the registered global security registered in their names, will not receive or be entitled to receive physical delivery of
the debt securities in definitive form and will not be considered the owners or holders of the debt securities under the indenture. Accordingly,
each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for that registered global
security and, if that person is not a participant, on the procedures of the participant through which the person owns its interest, to exercise any
rights of a holder under the indenture. The laws of some states may require that some purchasers of securities take physical delivery of those
securities in definitive form. Such laws may impair the ability to transfer beneficial interests in a global security.
To facilitate subsequent transfers, all debt securities deposited by participants with DTC are registered in the name of DTC’s nominee,
Cede & Co. The deposit of the debt securities with DTC and their registration in the name of Cede & Co. effect no change in beneficial
ownership. DTC has no knowledge of the actual beneficial owners of the debt securities. DTC’s records reflect only the identity of the direct
participants to whose accounts such debt securities are credited, which may or may not be the beneficial owners. The participants will remain
responsible for keeping account of their holdings on behalf of their customers.
We will make payments due on any debt securities represented by a global security to Cede & Co., as nominee of DTC, in immediately
available funds. DTC’s practice upon receipt of any payment of principal, premium, interest or other distribution of underlying securities or
other property to holders on that registered global security is to immediately credit participants’ accounts in amounts proportionate to their
respective beneficial interests in that registered global security as shown on the records of the depositary. Payments by participants to owners
of beneficial interests in a registered global security held through participants will be governed by standing customer instructions and
customary practices, as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name,” and
will be the responsibility of those participants. Payment to Cede & Co. is our responsibility. Disbursement of such payments to direct
participants is the responsibility of Cede & Co. Disbursement of such payments to the beneficial owners is the responsibility of direct and
indirect participants.
Neither we nor the trustee nor any other agent of ours or any agent of the trustee will have any responsibility or liability for any aspect of
the records relating to payments made on account of beneficial ownership interests in the registered global security or for maintaining,
supervising or reviewing any records relating to those beneficial ownership interests.
We expect that DTC will take any action permitted to be taken by a holder of securities (including the presentation of securities for
exchange as described below) only at the direction of one or more participants to whose account the DTC interests in a global security are
credited and only in respect of such portion of the aggregate principal amount of the securities as to which such participant or participants has
or have given such direction. However, if there is an Event of Default under the debt securities represented by a global security, DTC will
exchange each global security for definitive securities, which it will distribute to its participants.
If the depositary for any of the debt securities represented by a registered global security is at any time unwilling or unable to continue as
depositary or ceases to be a clearing agency registered under the Exchange Act, and a successor depositary registered as a clearing agency
under the Exchange Act is not appointed by the obligor within 90 days, we will issue debt securities in definitive form in exchange for the
registered global security that had been held by the depositary. Any debt securities issued in definitive form in exchange for a registered global
security will be registered in the name or names that the depositary gives to the trustee or other relevant agent of the obligor or trustee. It is
expected that the depositary’s instructions will be based upon directions received by the depositary from participants with respect to ownership
of beneficial interests in the
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registered global security that had been held by the depositary. In addition, we may at any time determine that the debt securities of any series
shall no longer be represented by a global security and will issue securities in definitive form in exchange for such global security pursuant to
the procedure described above.
DTC is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of
the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform
Commercial Code and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC was created to hold
securities of its participants and to facilitate the clearance and settlement of securities transactions, such as transfers and pledges, among its
participants in such securities through electronic computerized book-entry changes in accounts of the participants, thereby eliminating the need
for physical movement of securities certificates. DTC’s participants include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations, some of whom own DTC. Access to DTC’s book-entry system is also available to others, such as
banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a participant, either directly or
indirectly. The rules applicable to DTC and its participants are on file with the SEC.
The information in this prospectus concerning DTC and DTC’s book-entry system has been obtained from sources that we believe to be
reliable, but we take no responsibility for its accuracy or completeness. We assume no responsibility for the performance by DTC or its
participants of their respective obligations, including obligations that they have under the rules and procedures that govern their operations.
Certain Definitions
We have summarized below certain defined terms as used in the indenture. We refer you to the indenture for the full definition of these
terms.
“Attributable Debt” in respect of a Sale and Leaseback Transaction means, at the time of the determination, the present value of the
obligation of the lessee for net rental payments during the remaining term of the lease included in such Sale and Leaseback Transaction
including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be
calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP.
“Business Day” means, unless otherwise provided with respect to a series of Securities, any day other than a Legal Holiday.
“Capital Lease Obligation” means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that
would at that time be required to be capitalized on a balance sheet prepared in accordance with GAAP.
“Capital Stock” means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership
interests; and
(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person.
but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right
of participation with Capital Stock.
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“Consolidated Net Tangible Assets” means the aggregate amount of assets of the Company and its Subsidiaries (less applicable reserves
and other properly deductible items) after deducting therefrom (a) all current liabilities (excluding any current liabilities constituting Funded
Debt by reason of being extendible or renewable), (b) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense
and other like intangibles and (c) minority equity interests in any Subsidiary of the Company that is not a Wholly-Owned Subsidiary, all as set
forth on or included in the balance sheet of the Company and its Subsidiaries for its most recent completed fiscal quarter for which internal
financial statements are available computed in accordance with GAAP.
“Credit Agreement” means the Credit Agreement executed on October 31, 2006, among the Company, the lending institutions party
thereto and Citibank N.A., as administrative agent, and any related notes, Guarantees, collateral documents, instruments and agreements to be
executed in connection therewith, and in each case, as amended, restated, modified, renewed, refunded, replaced (whether upon termination or
otherwise) or refinanced in whole or in part from time to time.
“Funded Debt” means all Indebtedness, whether or not evidenced by a bond, debenture, note or similar instrument or agreement, of any
Person, for the repayment of borrowed money having a maturity of more than 12 months from the date of its creation or having a maturity of
less than 12 months from the date of its creation but by its terms being renewable or extendible beyond 12 months from such date at the option
of such Person. For the purpose of determining “Funded Debt” of any Person, there will be excluded any particular Indebtedness if, on or prior
to the maturity thereof, there will have been deposited with the proper depository in trust the necessary funds for the payment, redemption or
satisfaction of such Indebtedness.
“GAAP” means, as to a particular Person, such accounting principles as, in the opinion of the independent public accountants regularly
retained by such Person, conform at the time to accounting principles generally accepted in the United States.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business,
direct or indirect, in any manner, including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements
to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise).
“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under:
(1) interest rate agreements, interest rate cap agreements and interest rate collar agreements or other similar agreements or
arrangements;
(2) foreign exchange contracts and currency protection agreements or other similar agreements or arrangements; and
(3) any commodity futures contract, commodity option or other similar agreements or arrangements.
“Indebtedness” means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect
thereof);
(3) in respect of bankers’ acceptances;
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(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an
accrued expense or trade payable; or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance
sheet of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all indebtedness of others
secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent
not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount; and
(2) the principal amount of the Indebtedness, together with any interest on the Indebtedness that is more than 30 days past due, in
the case of any other Indebtedness.
“Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed.
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to
give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
“Permitted Liens” means:
(1) Liens existing on the date of the indenture;
(2) Liens in favor of the Company or any of its Subsidiaries;
(3) Liens on property of a Person existing at the time such Person is merged with or into or consolidated with the Company or any
Subsidiary of the Company; provided that such Liens were in existence prior to the contemplation of such merger or consolidation and do
not extend to any assets other than those of the Person merged into or consolidated with the Company or the Subsidiary;
(4) Liens on property existing at the time of acquisition of the property by the Company or any Subsidiary of the Company,
provided that such Liens were in existence prior to the contemplation of such acquisition;
(5) Liens to secure the performance of statutory or regulatory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business;
(6) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as
is required in conformity with GAAP has been made therefor;
(7) any extension, renewal or replacement of any Lien referred to above; provided that (a) such extension, renewal or replacement
Lien is limited to the same property that secured the original Lien (plus improvements and accessions to such property) and (b) the
Indebtedness secured by the new Lien is not greater than the Indebtedness secured by the Lien that is extended, renewed or replaced; and
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(8) zoning restrictions, easements, rights-of-way, restrictions on the use of property, other similar encumbrances incurred in the
ordinary course of business and minor irregularities of title, which do not materially interfere with the ordinary conduct of the business of
the Company and its Subsidiaries taken as a whole.
“Person” means an individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust,
unincorporated organization, Governmental Authority or other entity of whatever nature.
“Principal Property” means any manufacturing plant, warehouse or other similar facility or any parcel of real estate or group of
contiguous parcels of real estate owned by the Company or any of its Subsidiaries (whether owned on the date of the indenture or thereafter
acquired) that has a gross book value on the date as of which the determination is being made, without deduction of any depreciation reserves,
exceeding 1% of Consolidated Net Tangible Assets.
“Sale and Leaseback Transaction” means any arrangement with any Person providing for the leasing by the Company or any Subsidiary
of the Company of any Principal Property which has been or is to be sold or transferred by the Company or any such Subsidiary to such Person
with the intention of taking back a lease of such property, except for temporary leases for a term (including renewals at the option of the lessee)
of not more than three years and except for leases between the Company and a Subsidiary or between Subsidiaries of the Company.
“Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation
S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date of the indenture.
“Subsidiary” means, with respect to any specified Person:
(1) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’
agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association
or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of
that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).
“Wholly-Owned Subsidiary” means, as to any Person, (i) any corporation 100% of whose capital stock (other than director’s qualifying
shares and/or other nominal amounts of shares required by applicable law to be held by Persons other than such Person) is at the time owned by
such Person and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any partnership, limited liability company, association,
joint venture or other entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at
such time.
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PLAN OF DISTRIBUTION
We may sell debt securities offered by this prospectus in and/or outside the United States:
•
through underwriters or dealers;
•
through agents; or
•
directly to purchasers.
We will describe in a prospectus supplement the particular terms of any offering of debt securities, including the following:
•
the names of any underwriters or agents;
•
the proceeds we will receive from the sale;
•
any discounts and other items constituting underwriters’ or agents’ compensation;
•
any discounts or concessions allowed or reallowed or paid to dealers; and
•
any securities exchanges on which the applicable debt securities may be listed.
If we use underwriters in the sale, such underwriters will acquire the debt securities for their own account. The underwriters may resell
the debt securities in one or more transactions, at a fixed price or prices, which may be changed, or at market prices prevailing at the time of
sale, at prices relating to prevailing market prices or at negotiated prices.
The debt securities may be offered to the public through underwriting syndicates represented by managing underwriters or by
underwriters without a syndicate. The obligations of the underwriters to purchase the debt securities will be subject to certain conditions. The
underwriters will be obligated to purchase all the debt securities of the series offered if any of the debt securities are purchased.
We may sell debt securities through agents or dealers designated by us. Any agent or dealer involved in the offer or sale of the debt
securities for which this prospectus is delivered will be named, and any commissions payable by us to that agent or dealer will be set forth, in
the prospectus supplement. Unless indicated in the prospectus supplement, the agents will agree to use their reasonable efforts to solicit
purchases for the period of their appointment and any dealer will purchase debt securities from us as principal and may resell those debt
securities at varying prices to be determined by the dealer.
We also may sell debt securities directly. In this case, no underwriters or agents would be involved.
Underwriters, dealers and agents that participate in the distribution of the debt securities may be underwriters as defined in the Securities
Act, and any discounts or commissions received by them from us and any profit on the resale of the debt securities by them may be treated as
underwriting discounts and commissions under the Securities Act.
We may have agreements with the underwriters, dealers and agents to indemnify them against certain civil liabilities, including liabilities
under the Securities Act, or to contribute with respect to payments which the underwriters, dealers or agents may be required to make, and to
reimburse them for certain expenses.
Underwriters, dealers and agents may engage in transactions with, or perform services for, us or our subsidiaries in the ordinary course of
their businesses.
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In order to facilitate the offering of the debt securities, any underwriters or agents, as the case may be, involved in the offering of such
securities may engage in transactions that stabilize, maintain or otherwise affect the price of such securities or other securities the prices of
which may be used to determine payments on the securities. Specifically, the underwriters or agents, as the case may be, may overallot in
connection with the offering, creating a short position in such securities for their own account. In addition, to cover overallotments or to
stabilize the price of the securities or of such other securities, the underwriters or agents, as the case may be, may bid for, and purchase, such
securities in the open market. Finally, in any offering of such securities through a syndicate of underwriters, the underwriting syndicate may
reclaim selling concessions allotted to an underwriter or a dealer for distributing such securities in the offering if the syndicate repurchases
previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any of these
activities may stabilize or maintain the market price of the securities above independent market levels. The underwriters or agents, as the case
may be, are not required to engage in these activities, and may end any of these activities at any time.
We may solicit offers to purchase debt securities directly from, and we may sell debt securities directly to, institutional investors or
others. The terms of any of those sales, including the terms of any bidding or auction process, if utilized, will be described in the applicable
prospectus supplement.
Some or all of the debt securities may be new issues of securities with no established trading market. We cannot and will not give any
assurances as to the liquidity of the trading market for any of our securities.
LEGAL MATTERS
The validity of the debt securities and certain other matters will be passed upon for us by Sidley Austin LLP, Chicago, Illinois. Certain
legal matters as to the guarantee given by Soltech, Inc. will be passed upon by Stites & Harbison, PLLC, Louisville, Kentucky, certain legal
matters as to the guarantee given by CDC Corporation will be passed upon by Reinhart Boerner Van Deuren s.c., Milwaukee, Wisconsin and
certain legal matters as to the guarantee given by OCV Fabrics US, Inc. will be passed upon by Pierce Atwood LLP, Portland, Maine.
EXPERTS
The financial statements and financial statement schedule incorporated in this prospectus by reference to Owens Corning’s Current
Report on Form 8-K dated June 1, 2009, and management’s assessment of the effectiveness of internal control over financial reporting (which
is included in Management’s Report on Internal Control over Financial Reporting) incorporated in this prospectus by reference to the Annual
Report on Form 10-K of Owens Corning for the year ended December 31, 2008 have been so incorporated in reliance on the reports, which
contain an explanatory paragraph on the adoption of fresh-start accounting as of November 1, 2006 in connection with the registrant’s
emergence from bankruptcy, of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said
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 estimated expenses (other than underwriting compensation), all of which will be paid by us, to be
incurred in connection with the registration and sale of the securities:
Securities and Exchange Commission registration fee
Rating agency fees
Legal fees and expenses
Accounting fees and expenses
Trustee’s fees and expenses
Printing, distribution and engraving fees
Miscellaneous
Total
$
(*)
445,000
100,000
125,000
10,000
70,000
10,000
$760,000
(*)Deferred in reliance upon Rule 456(b) and 457(r).
Item 15.
Indemnification of Directors and Officers.
The following is a summary of the statutes, charter and bylaw provisions or other arrangements under which the Registrants’ directors
and officers are insured or indemnified against liability in their capacities as such. As the Registrants are constituted in varying jurisdictions,
there are a number of applicable statutes.
Registrants Incorporated Under Delaware Law
Owens Corning, Engineered Pipe Systems, Inc., Eric Company, Falcon Foam Corporation, IPM Inc., Jefferson Holdings, Inc., OCCV1,
Inc., Owens-Corning Funding Corporation, Owens Corning HOMExperts, Inc., Owens Corning HT, Inc., Owens Corning Overseas Holding,
Inc., and Palmetto Products, Inc. are each incorporated under the laws of the state of Delaware. Section 145 of the General Corporation Law of
the State of Delaware (the “DGCL”) provides that a Delaware corporation may indemnify any persons who are, or are threatened to be made,
parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, other than an
action by or in the right of such corporation, by reason of the fact that such person is or was an officer, director, employee or agent of such
corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise.
Section 145 of the DGCL further authorizes a corporation to purchase and maintain insurance on behalf of any indemnified person against any
liability asserted against him or her and incurred by him or her in any indemnified capacity, or arising out of his or her status as such,
regardless of whether the corporation would otherwise have the power to indemnify him or her under the DGCL.
Article X of Owens Corning’s amended and restated certificate of incorporation eliminates the personal liability of Owens Corning’s
directors to the fullest extent permitted by the DGCL. Such section eliminates or limits the personal liability of a director to Owens Corning or
its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of
loyalty to Owens Corning or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit.
Article IX of Owens Corning’s amended and restated bylaws provides that Owens Corning shall indemnify any and all persons who may
serve or who have served at any time as a director or officer of Owens Corning or is or was serving at the request of Owens Corning as a
director, manager, officer, employee or agent of another
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corporation or of a partnership, joint venture, trust or other enterprise, and any directors or officers of Owens Corning who at the request of
Owens Corning may serve or at any time have served as agents or fiduciaries of an employee benefit plan of Owens Corning 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,
manager, officer, employee or agent, to the fullest extent authorized or permitted by applicable law. Owens Corning may also indemnify any
and all other persons whom it shall have power to indemnify under any applicable law, to the extent authorized or permitted by such law.
In addition to the provisions of the amended and restated articles of incorporation and amended and restated bylaws, Owens Corning has
entered into indemnification agreements with all of its directors, to indemnify the directors to the fullest extent permitted by the amended and
restated bylaws.
The bylaws and/or certificates of incorporation of Engineered Pipe Systems, Inc., Eric Company, Falcon Foam Corporation, IPM Inc.,
Jefferson Holdings, Inc., OCCV1, Inc., Owens-Corning Funding Corporation, Owens Corning HOMExperts, Inc., Owens Corning HT, Inc.,
Owens Corning Overseas Holding, Inc., and Palmetto Products, Inc. provide for the indemnification of directors and officers to the fullest
extent permitted by the laws of Delaware.
Registrants Incorporated Under the Delaware Limited Liability Company Act
INTEGREX Ventures LLC, Modulo USA LLC, OCCV2, LLC, Owens Corning Composite Materials, LLC, Owens Corning Construction
Services, LLC, Owens Corning Masonry Products, LLC, OCV Intellectual Capital, LLC, Owens Corning Foam Insulation, LLC, Owens
Corning Franchising, LLC, Owens Corning Insulating Systems, LLC, Owens Corning Intellectual Capital, LLC, Owens Corning Roofing and
Asphalt, LLC, Owens Corning Sales, LLC, Owens Corning Science and Technology, LLC, and Owens Corning U.S. Holdings, LLC are each a
limited liability company formed under the laws of the state of Delaware. Section 18-108 of the Delaware Limited Liability Company Act
provides that, subject to any standards and restrictions, if any, set forth in a company’s limited liability company agreement, a limited liability
company may indemnify and hold harmless any member or manager or other person from and against any and all claims and demands
whatsoever.
Modulo USA LLC, Owens Corning Composite Materials, LLC, Owens Corning Construction Services, LLC, Owens Corning Masonry
Products, LLC, OCV Intellectual Capital, LLC, Owens Corning Foam Insulation, LLC, Owens Corning Franchising, LLC, Owens Corning
Insulating Systems, LLC, Owens Corning Intellectual Capital, LLC, Owens Corning Roofing and Asphalt, LLC, Owens Corning Sales, LLC,
Owens Corning Science and Technology, LLC, and Owens Corning U.S. Holdings, LLC each have operating agreements which provide that
the company will indemnify each person who was or is a party or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the company), by
reason of the fact that he, she or it is or was serving at the request of the company as a director, officer, or manager for any expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him, her or it in connection with such
action, suit or proceeding if he, she or it acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of
the company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his, her or its conduct was unlawful.
OCCV2, LLC has a limited liability agreement which provides that, to the full extent permitted by applicable law, officers of the
company shall be entitled to indemnification from the company for any loss, damage or claim incurred by such officer by reason of any act or
omission performed or omitted by such officer in good faith on behalf of the company and in a manner reasonably believed to be within the
scope of the authority conferred on such officer, except for any loss, damage or claim incurred by such officer by reason of gross negligence or
willful misconduct with respect to such acts or omissions.
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Registrants Incorporated Under Kentucky Law
Soltech, Inc. is incorporated under the laws of the state of Kentucky. Section 271B.8-510 of the Kentucky Business Corporation Act
permits a corporation to indemnify an individual who is a party to a proceeding because he is a director against liability incurred in the
proceeding if: (1) (a) he conducted himself in good faith; (b) he reasonably believed (i) in the case of conduct in his official capacity, that his
conduct was in the best interests of the corporation; and (ii) in all other cases, that his conduct was at least not opposed to the best interests of
the corporation; and (c) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful.
The amended and restated articles of incorporation of Soltech, Inc. provide for the indemnification of directors to the fullest extent
permitted by the laws of Kentucky.
Registrants Incorporated Under Maine Law
OCV Fabrics US, Inc. is incorporated under the laws of the state of Maine. Under Section 853 of the Maine Business Corporation Act, a
corporation shall indemnify a director or officer who is wholly successful on the merits or otherwise in the defense of a proceeding, for all
reasonable expenses incurred in the proceeding, if such person was a party to such proceeding because he or she was a director or officer of the
corporation. In all other cases, the corporation may indemnify a person who is a party to a proceeding because he is a director or officer of the
corporation for any liability incurred in the proceeding if (1) (a) his conduct was in good faith; (b) he reasonably believed (i) in the case of
conduct in his official capacity, that his conduct was in the best interests of the corporation; and (ii) in all other cases, that his conduct was at
least not opposed to the best interests of the corporation; and (c) in the case of any criminal proceeding, he had no reasonable cause to believe
his conduct was unlawful; or (2) he engaged in conduct for which broader indemnification has been made permissible or obligatory under a
provision of the corporation’s articles of incorporation.
OCV Fabrics US, Inc’s bylaws provide for indemnification for any director or officer to the fullest extent permitted by the laws of Maine.
Registrants Incorporated Under Wisconsin Law
CDC Corporation is incorporated under the laws of the state of Wisconsin. Under Section 180.0851 of the Wisconsin Business
Corporation Law, a corporation shall indemnify a director or officer, to the extent such person is successful on the merits or otherwise in the
defense of a proceeding, for all reasonable expenses incurred in the proceeding, if such person was a party to such proceeding because he or she
was a director or officer of the corporation. In all other cases, the corporation shall indemnify a director or officer against liability incurred in a
proceeding to which such person was a party because he or she was a director or officer of the corporation, unless liability was incurred
because he or she breached or failed to perform a duty owed to the Registrant and such breach or failure to perform constitutes: (i) a willful
failure to deal fairly with the corporation or its shareholders in connection with a matter in which the director or officer has a material conflict
of interest; (ii) a violation of criminal law, unless the director or officer had reasonable cause to believe his or her conduct was lawful or no
reasonable cause to believe his or her conduct was unlawful; (iii) a transaction from which the director or officer derived an improper personal
profit; or (iv) willful misconduct. Section 180.0858 of the Wisconsin Business Corporation Law provides that subject to certain limitations, the
mandatory indemnification provisions do not preclude any additional right to indemnification or allowance of expenses that a director or officer
may have under the corporation’s articles of incorporation or bylaws.
Section 180.0859 of the Wisconsin Business Corporation Law provides that it is the public policy of the State of Wisconsin to require or
permit indemnification, allowance of expenses and insurance to the extent required or permitted under Sections 180.0850 to 180.0858 of the
Wisconsin Business Corporation Law for any liability incurred in connection with a proceeding involving a federal or state statute, rule or
regulation regulating the offer, sale or purchase of securities.
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CDC Corporation’s bylaws provide for indemnification for any director or officer to the fullest extent permitted by the laws of
Wisconsin.
Item 16.
Exhibits
The following is a list of all the exhibits filed as part of this registration statement.
1*
3.1
3.2
3.3
3.4
4.1
4.2*
5.1
5.2
5.3
5.4
12
23.1
23.2
23.3
23.4
23.5
24.1
25
Form of Underwriting Agreement.
Articles of Incorporation for OCV Fabrics US, Inc.
Bylaws for OCV Fabrics US, Inc.
Certificate of Formation for Owens Corning Intellectual Capital, LLC
Operating Agreement for Owens Corning Intellectual Capital, LLC
Indenture, dated as of June 2, 2009, between the Registrant, certain of the Registrants subsidiaries and Wells Fargo Bank, National
Association, as trustee.
Form of Debt Security.
Opinion of Sidley Austin LLP.
Opinion of Stites & Harbison, PLLC.
Opinion of Reinhart Boerner Van Deuren s.c.
Opinion of Pierce Atwood LLP.
Statement Regarding Computation of Ratio of Earnings to Fixed Charges.
Consent of PricewaterhouseCoopers LLP.
Consent of Sidley Austin LLP (included in Exhibit 5.1).
Consent of Stites & Harbison, PLLC (included in Exhibit 5.2).
Consent of Reinhart Boerner Van Deuren s.c. (included in Exhibit 5.3).
Consent of Pierce Atwood LLP (included in Exhibit 5.4).
Owens Corning Power of Attorney (set forth on Owens Corning’s signature page to this Registration Statement).
Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the Trustee on Form T-1.
* To be filed by amendment or as an exhibit to a document to be incorporated or deemed to be incorporated by reference in the registration
statement.
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Item 17.
Undertakings
(a) Each undersigned registrant hereby undertakes:
(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 (the “Act”);
(ii)
to reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the
information set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in
the effective registration statement;
(iii)
to include any material information with respect to the plan of distribution not previously disclosed in this registration
statement or any material change to such information in this registration statement;
provided , however , that subparagraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the registration statement is on Form S-3 or
Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of
the registration statement.
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(2) That, for the purpose of determining any liability under the Act, 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.
(4) That, for the purpose of determining liability under the Act to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as
of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by section 10(a) of the Act shall be deemed to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof. Provided , however , that no statement made in a
registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such effective date;
(5) That, for the purpose of determining liability of the registrant under the Act to any purchaser in the initial distribution of the
securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and
will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the
undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for the purpose of determining any liability under the Act, each filing of the
registrant’s annual report pursuant to Sections 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
this 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.
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(c) Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of the
registrant, pursuant to the provisions described under Item 15 or otherwise, the registrant has 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 the registrant of expenses incurred or paid by a director,
officer or controlling person of the 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, the 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
OWENS CORNING
(Registrant)
By:
/ S / M ICHAEL H. T HAMAN
Michael H. Thaman
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Duncan J. Palmer, Stephen K. Krull and Michael C. McMurray, and
each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, to sign, execute and file
with the Securities and Exchange Commission (or any other governmental or regulatory authority), for us and in our names in the capacities
indicated below, this registration statement on Form S-3 (including all amendments, including post-effective amendments, thereto), and any
registration statement filed pursuant to Rule 462(b) of the Securities Act in connection with the securities registered hereunder, together with
all exhibits and any and all documents required to be filed with respect thereto, granting unto said attorneys-in-fact and agents and each of
them, full power and authority to do and to perform each and every act and thing necessary and/or desirable to be done in and about the
premises in order to effectuate the same as fully to all intents and purposes as he himself/she herself might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, may lawfully do or cause to be done by virtue hereof.
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.
Signature
/ S / M ICHAEL H. T HAMAN
Michael H. Thaman
/ S / D UNCAN J. P ALMER
Duncan J. Palmer
/ S / M ARK W. M AYER
Mark W. Mayer
/ S / N ORMAN P. B LAKE , J R .
Title
Date
Chairman of the Board, President and Chief
Executive Officer (Principal Executive Officer)
June 2, 2009
Senior Vice President and Chief Financial Officer
(Principal Financial Officer)
June 2, 2009
Vice President and Chief Accounting Officer
(Principal Accounting Officer)
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
Norman P. Blake, Jr.
/ S / G ASTON C APERTON
Gaston Caperton
II-8
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Signature
/ S / W ILLIAM W. C OLVILLE
Title
Date
Director
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
William W. Colville
/ S / R ALPH F. H AKE
Ralph F. Hake
/ S / F. P HILIP H ANDY
F. Philip Handy
/ S / L ANDON H ILLIARD
Landon Hilliard
/ S / A NN I VERSON
Ann Iverson
/ S / J AMES J. M C M ONAGLE
James J. McMonagle
/ S / W. H OWARD M ORRIS
W. Howard Morris
/ S / J OSEPH F. N EELY
Joseph F. Neely
/ S / W. A NN R EYNOLDS
W. Ann Reynolds
/ S / R OBERT B. S MITH , J R .
Robert B. Smith, Jr.
/ S / D ANIEL K. K. T SEUNG
Daniel K. K. Tseung
II-9
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
CDC CORPORATION
By:
/ S / D AN E IGEL
Dan Eigel
President
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.
Signature
/ S / D AN E IGEL
Dan Eigel
/ S / M ICHAEL H. T HAMAN
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer)
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
Michael H. Thaman
/ S / D AVID R ABUANO
David Rabuano
II-10
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
ENGINEERED PIPE SYSTEMS, INC.
By:
/ S / M ICHAEL C. M C M URRAY
Michael C. McMurray
President
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.
Signature
/ S / M ICHAEL C. M C M URRAY
Michael C. McMurray
/ S / M ICHAEL H. T HAMAN
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
Michael H. Thaman
/s/
J OSEPH J. M IKELONIS
Joseph J. Mikelonis
II-11
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
ERIC COMPANY
By:
/ S / J OSEPH J. M IKELONIS
Joseph J. Mikelonis
President
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.
Signature
/ S / J OSEPH J. M IKELONIS
Joseph J. Mikelonis
/ S / D UNCAN J. P ALMER
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
Duncan J. Palmer
/ S / M ICHAEL C. M C M URRAY
Michael C. McMurray
II-12
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
FALCON FOAM CORPORATION
By:
/ S / M ICHAEL H. T HAMAN
Michael H. Thaman
President
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.
Signature
/ S / M ICHAEL H. T HAMAN
Michael H. Thaman
/ S / J OSEPH J. M IKELONIS
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
Joseph J. Mikelonis
II-13
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
INTEGREX VENTURES LLC
By:
/ S / J OSEPH J. M IKELONIS
Joseph J. Mikelonis
President
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.
Signature
/ S / J OSEPH J. M IKELONIS
Joseph J. Mikelonis
/ S / M ICHAEL H. T HAMAN
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
Michael H. Thaman
/ S / M ICHAEL C. M C M URRAY
Michael C. McMurray
II-14
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
IPM INC.
By:
/ S / M ICHAEL H. T HAMAN
Michael H. Thaman
President
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.
Signature
/ S/
M ICHAEL H. T HAMAN
Michael H. Thaman
/ S / D UNCAN J. P ALMER
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
Duncan J. Palmer
/ S / S TEPHEN K. K RULL
Director
June 2, 2009
Stephen K. Krull
II-15
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
JEFFERSON HOLDINGS, INC.
By:
/ S / M ICHAEL H. T HAMAN
Michael H. Thaman
President
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.
Signature
/ S / M ICHAEL H. T HAMAN
Michael H. Thaman
/ S / M ICHAEL C. M C M URRAY
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
Michael C. McMurray
II-16
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
MODULO USA LLC
By:
/ S / W ILLIAM E. L E B ARON
William E. LeBaron
President
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.
Signature
/ S / W ILLIAM E. L E B ARON
William E. LeBaron
/ S / M ICHAEL H. T HAMAN
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
Michael H. Thaman
/ S / M ICHAEL C. M C M URRAY
Michael C. McMurray
II-17
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
OCCV1, INC.
By:
/ S / M ICHAEL H. T HAMAN
Michael H. Thaman
President
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.
Signature
/ S / M ICHAEL H. T HAMAN
Michael H. Thaman
/ S / M ICHAEL C. M C M URRAY
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
Michael C. McMurray
/ S / J OSEPH J. M IKELONIS
Joseph J. Mikelonis
II-18
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
OCCV2, LLC
By:
/ S / M ICHAEL H. T HAMAN
Michael H. Thaman
President
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.
Signature
/ S / M ICHAEL H. T HAMAN
Michael H. Thaman
/ S / D UNCAN J. P ALMER
Duncan J. Palmer
/ S / S TEPHEN K. K RULL
Stephen K. Krull
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director of IPM Inc., sole member
of the registrant
June 2, 2009
Director of IPM Inc., sole member of the
registrant
June 2, 2009
Director of IPM Inc., sole member of the
registrant
June 2, 2009
II-19
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
OCV FABRICS US, INC.
By:
/ S / S TEVE N OWAK
Steve Nowak
President
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.
Signature
/ S / S TEVE N OWAK
Steve Nowak
/ S / J OHN W. C HRISTY
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
John W. Christy
/ S / G EORGE P ETERS
George Peters
II-20
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
OWENS CORNING COMPOSITE MATERIALS,
LLC
By:
/ S / C HARLES E. D ANA
Charles E. Dana
President
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.
Signature
/ S / C HARLES E. D ANA
Charles E. Dana
/ S / M ICHAEL H. T HAMAN
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
Michael H. Thaman
II-21
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
OWENS CORNING CONSTRUCTION SERVICES,
LLC
By:
/ S / W ILLIAM E. L E B ARON
William E. LeBaron
President
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.
Signature
/ S / W ILLIAM E. L E B ARON
William E. LeBaron
/ S / M ICHAEL H. T HAMAN
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
Michael H. Thaman
II-22
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
OWENS CORNING MASONRY PRODUCTS, LLC
By:
/ S / W ILLIAM E. L E B ARON
William E. LeBaron
President
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.
Signature
/ S / W ILLIAM E. L E B ARON
William E. LeBaron
/ S / M ICHAEL H. T HAMAN
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
Michael H. Thaman
II-23
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
OCV INTELLECTUAL CAPITAL, LLC
By:
/ S / J OHN B. H ILLENBRAND , J R .
John B. Hillenbrand, Jr.
President
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.
Signature
/ S / J OHN B. H ILLENBRAND , J R .
John B. Hillenbrand, Jr.
/ S / M ICHAEL H. T HAMAN
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
Michael H. Thaman
II-24
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
OWENS CORNING FOAM INSULATION, LLC
By:
/ S / J OE O CHOA
Joe Ochoa
President
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.
Signature
/ S / J OE O CHOA
Joe Ochoa
/ S / D AVID R ABUANO
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer)
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
David Rabuano
/ S / M ICHAEL H. T HAMAN
Michael H. Thaman
II-25
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
OWENS CORNING FRANCHISING, LLC
By:
/ S / W ILLIAM E. L E B ARON
William E. LeBaron
President
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.
Signature
/ S / W ILLIAM E. L E B ARON
William E. LeBaron
/ S / J OHN W. C HRISTY
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
John W. Christy
II-26
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
OWENS-CORNING FUNDING CORPORATION
By:
/ S / R OBERT R. K RAKOWIAK
Robert R. Krakowiak
President
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.
Signature
/ S / R OBERT R. K RAKOWIAK
Robert R. Krakowiak
/ S / M ICHAEL H. T HAMAN
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer)
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
Michael H. Thaman
/ S / M ICHAEL C. M C M URRAY
Michael C. McMurray
/ S / J OSEPH J. M IKELONIS
Joseph J. Mikelonis
II-27
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
OWENS CORNING HOMEXPERTS, INC.
By:
/ S / W ILLIAM E. L E B ARON
William E. LeBaron
President
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.
Signature
/ S / W ILLIAM E. L E B ARON
William E. LeBaron
/ S / J OHN W. C HRISTY
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
John W. Christy
II-28
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
OWENS CORNING HT, INC.
By:
/ S / J OSEPH J. M IKELONIS
Joseph J. Mikelonis
President and Assistant Secretary
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.
Signature
/ S / J OSEPH J. M IKELONIS
Joseph J. Mikelonis
/ S / M ICHAEL H. T HAMAN
Title
Date
President and Assistant Secretary (Principal
Executive Officer, Principal Financial Officer and
Principal Accounting Officer)
June 2, 2009
Director
June 2, 2009
Michael H. Thaman
II-29
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
OWENS CORNING INSULATING SYSTEMS, LLC
By:
/ S / K AREL K. C ZANDERNA
Karel K. Czanderna
President
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.
Signature
/ S / K AREL K. C ZANDERNA
Karel K. Czanderna
/ S / M ICHAEL H. T HAMAN
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
Michael H. Thaman
II-30
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
OWENS CORNING INTELLECTUAL
CAPITAL, LLC
By:
/ S / J OHN B. H ILLENBRAND , J R .
John B. Hillenbrand, Jr.
President
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.
Signature
/ S / J OHN B. H ILLENBRAND , J R .
John B. Hillenbrand, Jr.
/ S / M ICHAEL H. T HAMAN
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
Michael H. Thaman
II-31
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
OWENS CORNING OVERSEAS
HOLDING, INC.
By:
/ S / M ICHAEL C. M C M URRAY
Michael C. McMurray
President
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.
Signature
/ S / M ICHAEL C. M C M URRAY
Michael C. McMurray
/ S / M ICHAEL H. T HAMAN
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
Michael H. Thaman
/ S / J OSEPH J. M IKELONIS
Joseph J. Mikelonis
II-32
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
OWENS CORNING ROOFING AND
ASPHALT, LLC
By:
/ S / S HEREE L. B ARGABOS
Sheree L. Bargabos
President
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.
Signature
/ S / S HEREE L. B ARGABOS
Sheree L. Bargabos
/ S / M ICHAEL H. T HAMAN
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
Michael H. Thaman
II-33
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
OWENS CORNING SALES, LLC
By:
/ S / D AVID L. J OHNS
David L. Johns
President
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.
Signature
/ S / D AVID L. J OHNS
David L. Johns
/ S / M ICHAEL H. T HAMAN
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
Michael H. Thaman
II-34
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
OWENS CORNING SCIENCE AND
TECHNOLOGY, LLC
By:
/ S / J OHN B. H ILLENBRAND , J R .
John B. Hillenbrand, Jr.
President
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.
Signature
/ S / J OHN B. H ILLENBRAND , J R .
John B. Hillenbrand, Jr.
/ S / M ICHAEL H. T HAMAN
Title
Date
President (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer) and Director
June 2, 2009
Director
June 2, 2009
Michael H. Thaman
II-35
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
OWENS CORNING U.S. HOLDINGS, LLC
By:
/ S / S TEPHEN K. K RULL
Stephen K. Krull
President and Secretary
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.
Signature
/ S / S TEPHEN K. K RULL
Stephen K. Krull
/ S / M ICHAEL H. T HAMAN
Title
Date
President and Secretary (Principal Executive
Officer, Principal Financial Officer and
Principal Accounting Officer) and Director
June 2, 2009
Director
June 2, 2009
Michael H. Thaman
II-36
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
PALMETTO PRODUCTS, INC.
By:
/ S / J OSEPH J. M IKELONIS
Joseph J. Mikelonis
President and Secretary
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.
Signature
/ S / J OSEPH J. M IKELONIS
Joseph J. Mikelonis
/ S / M ICHAEL H. T HAMAN
Title
Date
President and Secretary (Principal Executive
Officer, Principal Financial Officer and
Principal Accounting Officer) and Director
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
Michael H. Thaman
/ S / M ICHAEL C. M C M URRAY
Michael C. McMurray
II-37
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 2, 2009.
SOLTECH, INC.
By:
/ S / D AN E IGEL
Dan Eigel
President and Secretary
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.
Signature
/ S / D AN E IGEL
Dan Eigel
/ S / M ICHAEL H. T HAMAN
Title
Date
President and Secretary (Principal Executive
Officer, Principal Financial Officer and
Principal Accounting Officer)
June 2, 2009
Director
June 2, 2009
Director
June 2, 2009
Michael H. Thaman
/ S / D AVID R ABUANO
David Rabuano
II-38
Table of Contents
EXHIBIT INDEX
1*
3.1
3.2
3.3
3.4
4.1
4.2*
5.1
5.2
5.3
5.4
12
23.1
23.2
23.3
23.4
23.5
24.1
25
Form of Underwriting Agreement.
Articles of Incorporation for OCV Fabrics US, Inc.
Bylaws for OCV Fabrics US, Inc.
Certificate of Formation for Owens Corning Intellectual Capital, LLC
Operating Agreement for Owens Corning Intellectual Capital, LLC
Indenture, dated as of June 2, 2009, between the Registrant, certain of the Registrants subsidiaries and Wells Fargo Bank, National
Association, as trustee.
Form of Debt Security.
Opinion of Sidley Austin LLP.
Opinion of Stites & Harbison, PLLC.
Opinion of Reinhart Boerner Van Deuren s.c.
Opinion of Pierce Atwood LLP.
Statement Regarding Computation of Ratio of Earnings to Fixed Charges.
Consent of PricewaterhouseCoopers LLP.
Consent of Sidley Austin LLP (included in Exhibit 5.1).
Consent of Stites & Harbison, PLLC (included in Exhibit 5.2).
Consent of Reinhart Boerner Van Deuren s.c. (included in Exhibit 5.3).
Consent of Pierce Atwood LLP (included in Exhibit 5.4).
Owens Corning Power of Attorney (set forth on Owens Corning’s signature page to this Registration Statement).
Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the Trustee on Form T-1.
* To be filed by amendment or as an exhibit to a document to be incorporated or deemed to be incorporated by reference in the registration
statement.
Exhibit 3.1
Filing Fee $50.00
BUSINESS CORPORATION
STATE OF MAINE
ARTICLES OF CORRECTION
File No. 20002027 D Pages 4
Fee Paid $ 50
DCN 2091531600015 CORR
FILED
06/02/2009
/s/ Julie L. Flynn
Deputy Secretary of State
A True Copy When Attested By Signature
OCV Fabrics US, Inc.
(Name of Corporation)
/s/ Julie L. Flynn
Deputy Secretary of State
Pursuant to 13-C MRSA §126, the undersigned corporation executes and delivers the following Articles of Correction:
FIRST:
Name of document requiring correction: Articles of Amendment
(i.e. Articles of Incorporation. Articles of Amendment, etc.)
SECOND:
Date on which document was filed by Secretary of State: January 30, 2008
THIRD:
Said document is an inaccurate record of the corporate action therein referred to, or was defectively executed, attested, sealed,
verified, acknowledged or the electronic transmission of the document was defective.
FOURTH:
The inaccuracy or defect to be corrected is described as follows:
ARTICLE FIRST:
The amendment was duly approved as follows:
“by the board of directors - shareholder approval was not required” was checked.
Paragraph THIRD of EXHIBIT A stated:
“This Amendment to the Articles of Incorporation was duly approved by the Board of Directors on January 17, 2008 and
shareholder approval was not required.”
FIFTH:
The portion of the said document to be corrected is corrected to read in its entirety as follows:
ARTICLE FIRST:
The amendment was duly approved as follows:
“by the shareholders in the manner required by this Act and by the articles of incorporation” should be checked.
Paragraph THIRD of EXHIBIT A should be deleted.
SIXTH:
Articles of correction take effect on the effective date of the document they correct except that, as to persons relying on the
uncorrected document and adversely affected by the correction, articles of correction take effect when flied.
FORM NO. MBCA-17 (1 of 2)
SEVENTH:
(Foreign Corporation Only)
Jurisdiction of incorporation
business in Maine
DATED June 1, 2009
and the date on which the corporation was authorized to transact
.
*By
/s/ Rodney A. Nowland
(signature of any duly authorized person)
Rodney A. Nowland, Assistant Secretary
(type or print name and capacity)
* This document MUST be signed by any duly authorized officer OR the clerk. (13-C MRSA §121.5)
Please remit your payment made payable to the Maine Secretary of State.
SUBMIT COMPLETED FORMS TO:
FORM NO. MBCA-17 (2 of 2) Rev. 8/1/2004
CORPORATE EXAMINING SECTION, SECRETARY OF STATE,
101 STATE HOUSE STATION, AUGUSTA, ME 04333-0101
TEL. (207) 624-7740
Filing Fee $50.00
DOMESTIC
BUSINESS CORPORATION
STATE OF MAINE
ARTICLES OF AMENDMENT
Deputy Secretary of State
A True Copy When Attested By Signature
Saint-Gobain BTI, Inc.
(Name of Corporation)
Deputy Secretary of State
Pursuant to 13-C MRSA §1006, the undersigned corporation executes and delivers the following Articles of Amendment:
FIRST:
The text of the amendment or the information required by 13-C MRSA §121.10.E as set forth in Exhibit A attached, was
adopted on (date) January 17, 2008 .
The amendment was duly approved as follows; (“X” one box only.)
by the incorporators — shareholder approval was not required OR

by the board of directors — shareholder approval was not required OR
by the shareholders in the manner required by this Act and by the articles of incorporation.
SECOND:
If the amendment provides for an exchange, reclassification or cancellation of issued shares, provisions for implementing the
amendment. if not contained in the amendment itself, are set forth in Exhibit
or as follows:
THIRD:
The effective date of the articles of amendment (if other than the date of filing of the articles of amendment) is
.
DATED January 21, 2008
*BY /s/ John W. Christy
(signature of any duly authorized person)
John W. Christy, Secretary
(type or print name and capacity)
* This document MUST be signed by any duly authorized officer OR the clerk. (13-C MRSA §121.5)
Please remit your payment made payable to the Maine Secretary of State.
SUBMIT COMPLETED FORMS TO: CORPORATE EXAMINING SECTION, SECRETARY OF STATE,
101 STATE HOUSE STATION, AUGUSTA, ME 04333-0101
FORM NO. MBCA-9 (1 of 1) Rev. 8/1/2004
TEL. (207) 624-7740
EXHIBIT A
TO THE
ARTICLES OF AMENDMENT
OF
SAINT-GOBAIN BTI, INC.
Pursuant to 13-C MRSA §121.10.E of the
Maine Business Corporation Act
FIRST: The name of the Corporation is Saint-Gobain BTI, Inc.
SECOND: The Articles of Incorporation are amended to change the name of the Corporation by striking article FIRST of the Articles of
Incorporation in its entirety and inserting the following new article FIRST as follows:
“FIRST: The name of the corporation is OCV FABRICS US, INC.”
THIRD: This Amendment to the Articles of Incorporation was duly approved by the Board of Directors on January 17, 2008 and
shareholder approval was not required.
Filing Fee $20.00
DOMESTIC
BUSINESS CORPORATION
STATE OF MAINE
CHANGE OF CLERK ONLY or CHANGE
OF CLERK AND REGISTERED OFFICE
File No. 20002027 D Pages 2
Fee Paid $ 20
DCN
2003411300009
CLRO
FILED
12/06/2000
/s/ Julie L. Flynn
Deputy Secretary of State
A True Copy When Attested By Signature
/s/ Julie L. Flynn
Deputy Secretary of state
Saint-Gobain BTI, Inc.
(Name of Corporation)
Pursuant to 13-A MRSA §304, the undersigned corporation executes and delivers for filing the following change(s):
FIRST:
The name and registered office of the clerk appearing on the record in the Secretary of State’s office:
Gregory S. Fryer
(name)
One Portland Square, P. O. Box 586, Portland, ME 04112-0586
(street, city, state and zip code)
SECOND: The name and registered office of the successor (new) clerk, who must be a Maine resident:
Peter B. Webster
(name)
One Portland Square, Portland, ME 04101
(physical location - street (not P.O. Box), city, state and zip code)
(mailing address if different from above)
THIRD:
Upon a change in clerk this must be completed:
 Such change was authorized by the board of directors and the power to make such change is not reserved to the
shareholders by the articles or the bylaws.
Such change was authorized by the shareholders.
DATED December 5, 2000
*By: /s/ Peter B. Webster
(signature)
MUST BE COMPLETED FOR VOTE
OF SHAREHOLDERS
I certify that I have custody of the minutes showing the above action
by the shareholders.
Peter B. Webster, Clerk
(type or print name and capacity)
*By:
(signature)
(type or print name and capacity)
(signature of clerk, secretary or asst. secretary)
THE FOLLOWING SHALL BE COMPLETED BY THE CLERK UNLESS THIS DOCUMENT IS ACCOMPANIED BY FORM
MBCA-18A (§304.2-A.).
The undersigned hereby accepts the appointment as clerk for the above-named domestic business corporation.
CLERK
DATED December 5, 2000
/s/ Peter B. Webster
Peter B. Webster
(signature)
(type or print name)
* This document MUST be signed by
(1)
the NEW Clerk OR
(2)
the President or a vice-pres. together with the Secretary or an ass’t. sec., or a 2nd certifying officer OR
(3)
if no such officers, then a majority of the Directors OR
(4)
if no such directors, then the Holders of a majority of all outstanding shares OR
(5)
the Holders of all of the outstanding shares .
SUBMIT COMPLETED FORMS TO: CORPORATE EXAMINING SECTION, SECRETARY OF STATE,
101 STATE HOUSE STATION, AUGUSTA, ME 04333-0101
FORM NO. MBCA-3 Rev. 7/2000
TEL. (207) 287-4195
Exhibit A
ADDITIONAL PROVISIONS OF THE
ARTICLES OF INCORPORATION
The following articles shall constitute additional provisions of the Articles of Incorporation:
EIGHTH: Pursuant to 13-A M.R.S.A. § 517(2), the Corporation may make distributions to its shareholders from capital surplus.
NINTH: Pursuant to 13-A M.R.S.A. § 518(2), the Corporation may purchase its own shares from capital surplus.
TENTH: Pursuant to 13-A M.R.S.A. § 524, the Corporation may issue bonds or debentures convertible into shares of any class of stock,
or convertible into other bonds or debentures, within such periods and upon such terms and conditions as the board of directors shall fix
and determine.
A-1
DOMESTIC
BUSINESS CORPORATION
Minimum Fee $35 (See §1401 sub-§15)
File No. 20002027 D Pages 3
Fee Paid $ 35
DCN
2002301400004
LNME
FILED
08/17/2000 @10:58AM
STATE OF MAINE
ARTICLES OF AMENDMENT
(Shareholders Voting as One Class)
/s/ Julie L. Flynn
Deputy Secretary State
A True Copy When Attested By Signature
VA Acquisition Corporation
(Name of Corporation)
/s/ Julie L. Flynn
Deputy Secretary of State
Pursuant to 13-A MRSA §§805 and 807, the undersigned corporation adopts these Articles of Amendment:
FIRST:
All outstanding shares were entitled to vote on the following amendment as one class.
SECOND:
The amendment set out in Exhibit A attached was adopted by the shareholders on (date) August 16, 2000 (“X” one box only)
at a meeting legally called and held
THIRD:
OR

by unanimous written consent
Shares outstanding and entitled to vote and shares voted for and against said amendment were:
NUMBER
Number of Shares Outstanding
and Entitled to Vote
Voted For
NUMBER
Voted Against
–100–
–100–
–0–
FOURTH:
If such amendment provides for exchange, reclassification or cancellation of issued shares, the manner in which this shall be
effected is contained in Exhibit B attached if it is not set forth in the amendment itself.
FIFTH:
If the amendment changes the number or par values of authorized shares, the number of shares the corporation has authority to
issue thereafter, is as follows:
Class
Series (If Any)
Number of Shares
Par Value (If Any)
The aggregate par value of all such shares (of all classes and series) having par value is $
The total number of all such shares (of all classes and series) without par value is
shares
SIXTH: The address of the registered office of the corporation in the State of Maine is
One Portland Square, P.O. Box 586, Portland, ME 04112–0586
(street, city, state and zip code)
DATED August 17, 2000
*By /s/ Gregory S. Fryer
(signature)
MUST BE COMPLETED FOR VOTE
OF SHAREHOLDERS
I certify that I have custody of the minutes showing the above
action by the shareholders.
Gregory S. Fryer, Clerk
(type or print name and capacity)
*By
(signature)
/s/ Gregory S. Fryer
(signature of clerk, secretary or asst. secretary)
NOTE:
*
(type or print name and capacity)
This form should not be used if any class of shares is entitled to vote as a separate class for any of the reasons set out in §806, or
because the articles so provide. For vote necessary for adoption see §805.
This document MUST be signed by (1) the Clerk OR (2) the President or a vice-president and the Secretary or an assistant secretary,
or such other officer as the bylaws may designate as a 2nd certifying officer OR (3) if there are no such officers, then a majority of the
Directors or such directors as may be designated by a majority of directors then in office OR (4) if there are no such directors, then the
Holders , or such of them as may be designated by the holders, of record of a majority of all outstanding shares entitled to vote thereon
OR (5) the Holders of all of the outstanding shares of the corporation.
SUBMIT COMPLETED FORMS TO: CORPORATE EXAMINING SECTION, SECRETARY OF STATE,
101 STATE HOUSE STATION, AUGUSTA, ME 04333-0101
FORM NO. MBCA-6 Rev. 96
TEL. (207) 287-4195
EXHIBIT A
RESOLVED, that the name of the Corporation shall be changed to “Saint-Gobain BTI, Inc.” effective as of the effective date of the
merger of Brunswick Technologies, Inc. with and into the Corporation; and
FURTHER RESOLVED, that the Clerk of the Corporation be, and he hereby is, authorized and directed to execute and file with the
Maine Secretary of State appropriate articles of amendment to effect the foregoing resolution.
Minimum Fee $105. (See §1403 sub-§§1 and 2)
File No. 20002027 D Pages 4
Fee Paid $ 105
DCN
2001051500032
ARTI
FILED
04/14/2000
/s/ Julie L. Flynn
Deputy Secretary of State
A True Copy When Attested By Signature
/s/ Julie L. Flynn
Deputy Secretary of State
Pursuant to 13-A MRSA §403, the undersigned, acting as incorporator(s) of a corporation, adopt(s) the following Articles of Incorporation:
FIRST:
The name of the corporation is
and its principal business location in Maine is
VA Acquisition Corporation
Portland
(physical location - street (not P.O. Box), city, state and zip code)
SECOND: The name of its Clerk, who must be a Maine resident, and the registered office shall be:
Gregory S. Fryer
(name)
One Portland Square, P. O. Box 586, Portland, ME 04112-0586
(physical location - street (not P.O. Box), city, state and zip code)
(mailing address if different from above)
THIS FORM MUST BE ACCOMPANIED BY FORM MBCA-18A (Acceptance of Appointment as Clerk §304.2-A.).
THIRD:
(“X” one box only)

A. 1.
2.
The number of directors constituting the initial board of directors of the corporation is 1 (See §703.1.A.)
If the initial directors have been selected, the names and addresses of the persons who are to serve as directors until the
first annual meeting of the shareholders or until their successors are elected and shall qualify are:
NAME
B.
is ADDRESS
3.
The board of directors 
4.
If the board is so authorized, the minimum number, if any, shall be 1 directors, (See §703.l.A.) and the maximum
number, if any, shall be 5 directors.
There shall be no directors initially; the shares of the corporation will not be sold to more than twenty (20) persons; the
business of the corporation will be managed by the shareholders. (See §701.2.)
is not authorized to increase or decrease the number of directors.
FOURTH:

(“X” one box only)
There shall be only one class of shares (title of class) Common
Par value of each share (if none, so state) $ .01 Number of shares authorized 10,000
There shall be two or more classes of shares. The information required by §403 concerning each such class is set out in Exhibit
attached hereto and made a part hereof.
SUMMARY
The aggregate par value of all authorized shares (of all classes) having a par value is $ 100
The total number of authorized shares (of all classes) without par value is 0 shares
FIFTH:
(“X” one box only) Meetings of the shareholders 
SIXTH:
(“X” if applicable) 
may may not be held outside of the State of Maine.
There are no preemptive rights.
SEVENTH: Other provisions of these articles, if any, including provisions for the regulation of the internal affairs of the corporation, are set
out in Exhibit A attached hereto and made a part hereof.
INCORPORATORS
DATED April 7, 2000
/s/ Gregory S. Fryer
signature
Street
Gregory S. Fryer
(type or print name)
219 New Gloucester Road
(residence address)
North Yarmouth, ME 04097
(city, state and zip code)
Street
(signature)
(residence address)
(type or print name)
(city, state and zip code)
Street
(signature)
(residence address)
(type or print name)
(city, state and zip code)
For Corporate Incorporators*
Name of Corporate Incorporator
By
*
Street
(signature of officer)
(principal business location)
(type or print name and capacity)
(city, state and zip code)
Article are to be executed as follows:
If a corporation is an incorporator (§402), the name of the corporation should be typed and signed on its behalf by an officer of the corporation.
The articles of incorporation must be accompanied by a certificate of an appropriate officer of the corporation, not the person signing the
articles, certifying that the person executing the articles on behalf of the corporation was duly authorized to do so.
SUBMIT COMPLETED FORMS TO: CORPORATE EXAMINING SECTION, SECRETARY OF STATE,
101 STATE HOUSE STATION, AUGUSTA, ME 04333-0101
FORM NO. MBCA-6 Rev. 9/97
TEL. (207) 287-4195
Exhibit 3.2
BYLAWS
OF
VA ACQUISITION CORPORATION
ARTICLE I
DEFINITIONS
When used in these Bylaws, the terms defined below shall have the meanings specified:
The “Articles” shall mean the Articles of Incorporation of the Corporation, including any and all amendments thereto, as then in effect.
The “Board” shall mean the Board of Directors of the Corporation.
The “Corporation” shall mean VA Acquisition Corporation, a Maine corporation.
The “Corporation Act” or the “Act” shall mean the Maine Business Corporation Act, Title 13-A of the Revised Maine Statutes
Annotated, as then in effect.
The “State” shall mean the State of Maine.
ARTICLE II
CORPORATE OFFICES
SECTION 2.1 Principal Office . The principal office of the Corporation shall be located at 750 E. Swedesford Road, Valley Forge,
Pennsylvania 19482 or such other place as the Board may designate from time to time.
SECTION 2.2 Registered Office . The registered office of the Corporation shall be at One Portland Square, P.O. Box 586, Portland, Maine,
04112-0586, or at such other address as the Clerk of the Corporation shall maintain.
SECTION 2.3 Other Offices . The Corporation may have offices at such other places either within or without the State as the Board may
determine or as the business may require.
-1-
ARTICLE III
MEETINGS OF SHAREHOLDERS
SECTION 3.1 Annual Meetings . The President or the Board each year shall call an annual meeting of shareholders for the election of directors
and the transaction of any other proper business. Such meeting shall be held each year at such date and hour as the President or the Board shall
determine.
SECTION 3.2 Special Meetings . Except as otherwise provided by the Corporation Act, special meetings of shareholders may be called only by
the President, the Board, or the holders of more than one-third of the shares entitled to vote at the meeting.
SECTION 3.3 Place of Meetings . All meetings of shareholders shall be held at the registered office of the Corporation or at such other place
within or without the State as the President or the Board shall designate.
SECTION 3.4 Notice of Meetings . Written notice of each annual or special meeting of shareholders shall be delivered to each shareholder of
record entitled to vote at such meeting. Notice shall be given not less than three (3) nor more than sixty (60) days before the date of the
meeting, except as the Corporation Act may otherwise require. Such notice shall state the place, date, and hour of the meeting. In the case of a
special meeting, or to the extent otherwise required by the Corporation Act, the Articles, or these Bylaws, such notice shall also state the
purpose or purposes for which the meeting is called. If mailed, such notice shall be deemed delivered when deposited with postage prepaid in
the United States mail, addressed to the shareholder at his or her address as it appears on the stock transfer books of the Corporation.
Notwithstanding any provision of these Bylaws, defects in the calling or notice of a meeting of shareholders shall be deemed waived to the
extent provided by the Act. Notice of an adjourned meeting need be given only if required by the Act.
SECTION 3.5 Record Date . The Board may fix a record date to determine persons entitled to vote, receive dividends, or exercise any other
right of shareholders. If the Board does not fix a record date for a meeting of shareholders, the day next preceding the date on which notice of
the meeting is first given to shareholders shall be deemed to be the record date for such meeting.
SECTION 3.6 List of Shareholders . In advance of each meeting of shareholders, a list of the shareholders entitled to vote at that meeting shall
be made available in accordance with the Corporation Act. No failure to comply with such requirements shall affect the validity of any action
taken at any meeting.
SECTION 3.7 Quorum . At each meeting of shareholders, the holders of a majority of the shares entitled to vote thereat, present in person or by
proxy, shall constitute a quorum for the transaction of business.
SECTION 3.8 Conduct of Meetings . Each meeting of shareholders shall be presided over by the President or by a person designated by the
President to act as chairman of the meeting. The Clerk shall act as secretary of each meeting of shareholders. In the absence of the Clerk, the
chairman of
-2-
the meeting may appoint any person present to act as secretary of the meeting. The chairman of the meeting shall have discretion to set the
order of business and rules of conduct of each meeting. The secretary of the meeting shall act as voting inspector and shall keep a record of all
actions taken by the shareholders at the meeting. Minutes of the meeting shall be filed as part of the corporate records.
SECTION 3.9 Proxies . A shareholder may vote either in person or by a written proxy executed by the shareholder or by his or her duly
authorized attorney-in-fact. Proxies shall not be given effect unless delivered to the President, Secretary, or Clerk in a timely manner.
SECTION 3.10 Consent of Shareholders . Any action required or permitted to be taken at any meeting of shareholders may be taken without a
meeting if written consents, setting forth the action so taken, are signed by all shareholders entitled to vote on such action and are filed as part
of the corporate records.
ARTICLE IV
DIRECTORS
SECTION 4.1 General Powers . Except to the extent expressly reserved to the shareholders by the Corporation Act, the Articles, or these
Bylaws, the Board shall have full authority to manage and direct the management of the business and affairs of the Corporation.
SECTION 4.2 Number . The number of directors constituting the Board shall be set from time to time by the shareholders or the Board within
the limits fixed by the Articles; provided, however, that the Board may consist of fewer than three (3) directors only to the extent permitted by
the Corporation Act and the Articles.
SECTION 4.3 Qualifications . Directors must have attained the age of twenty-one (21) years.
SECTION 4.4 Election and Term . Unless otherwise provided by the Articles and except as hereinafter provided, the directors shall be elected
each year at the annual meeting of shareholders. Each director shall hold office until the expiration of the term for which he or she is elected
and until his or her successor has been elected and qualified, or until his or her earlier resignation, removal from office, death, or incapacity.
SECTION 4.5 Vacancies . Vacancies in the Board, including those created by an increase in the number of directors or by removal, may be
filled by a majority of the directors then in office, even if less than a quorum, or by a sole remaining director. Any director elected to fill any
vacancy shall be elected for the unexpired term of his or her predecessor.
SECTION 4.6 Meetings and Notice . An annual meeting of the Board may be held at the place of and immediately following the annual
meeting of shareholders, and no notice of such meeting shall be required. Other regular meetings of the Board may be held without notice at
such place, date, and
-3-
hour as the Board may fix by resolution. Special meetings of the Board may be called by the President, any two (2) directors, or such other
persons as are specifically permitted by the Corporation Act to call special meetings of directors. Notice of the place, date, and hour of each
special meeting (i) shall be mailed to each director, addressed to his or her residence or usual place of business, at least three (3) business days
before the meeting or (ii) shall have been sent to him or her at such place by telegram or cable, or received by him or her in person or by
telephone or by fax, at least twenty-four (24) hours before the meeting. Except as otherwise expressly required by the Act, the Articles, or these
Bylaws, notices of meetings need not describe the purposes of or business to be transacted at the meeting. Notice of any meeting of the Board
need not be given to any director who is present at such meeting or who signs a written waiver of notice, either before or after the meeting.
Notice of adjournment of any meeting need not be given if the time and place to which it is adjourned are fixed and announced at such meeting.
Notwithstanding any provision of these Bylaws, defects in the calling or notice of a meeting of directors shall be deemed waived to the extent
provided by the Act.
SECTION 4.7 Quorum; Voting . At each meeting of the Board, a majority of the directors then in office shall constitute a quorum for the
transaction of business. Except as otherwise provided by the Corporation Act, the Articles, or these Bylaws, the vote of a majority of the
directors present shall constitute the act of the Board.
SECTION 4.8 Conduct of Meetings . The Board may designate a chairman to preside at meetings of directors and may otherwise adopt rules
governing the conduct of such meetings. At each such meeting the Secretary (or, in the absence of the Secretary, another person designated by
the chairman of the meeting) shall keep minutes of all actions taken by the directors. Such minutes shall be filed with the Clerk as part of the
corporate records.
SECTION 4.9 Committees . By resolution adopted by a majority of the directors then in office, the Board may designate from among its
members one or more committees, each consisting of two (2) or more directors. The Board may delegate to any such committee all or any
portion of the authority of the Board, except to the extent prohibited by the Corporation Act. Each committee shall keep regular minutes of its
meetings and shall report its actions to the Board when so requested.
SECTION 4.10 Telephonic Meetings . Members of the Board or any committee thereof may participate in a meeting of the Board or such
committee by means of a conference telephone or similar communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting pursuant to this section shall constitute presence in person at such meeting.
SECTION 4.11 Consent of Directors . Any action required or permitted to be taken at a meeting of the Board or of any committee thereof may
be taken without a meeting if written consents, setting forth the action taken, are signed (at any time before or after the intended effective date
of such action) by all members of the Board or committee, as the case may be. Such consents shall be filed with the Clerk as part of the
corporate records.
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ARTICLE V
OFFICERS; CLERK
SECTION 5.1 Officers . The Board shall elect a President, Secretary, and Treasurer of the Corporation and such other officers as the Board
from time to time deems appropriate (including without limitation one or more Vice Presidents). In addition, the President may from time to
time appoint such Assistant Secretaries or Assistant Treasurers as he or she shall deem appropriate. Any two or more offices may be held by
the same person.
SECTION 5.2 Term of Office; Removal . Officers shall hold office until the next annual meeting of the Board and until their successors are
chosen and have qualified, or until their earlier resignation or removal from office. All officers serve at the pleasure of the Board and may be
removed at any time by the Board, with or without cause. Assistant Secretaries or Assistant Treasurers appointed by the President may also be
removed by the President at any time, with or without cause. Removal from office, however effected, shall not prejudice the contract rights, if
any, of the officer removed, nor shall election or appointment of an officer of itself create contract rights.
SECTION 5.3 Resignations . Any officer may resign by giving written notice to the President or Clerk. Unless otherwise specified therein, a
resignation shall take effect upon receipt of such notice, and the acceptance of such resignation shall not be necessary to make it effective.
SECTION 5.4 Vacancies . A vacancy in any office, however occurring, shall be filled in the manner prescribed by these Bylaws for regular
election or appointment to such office.
SECTION 5.5 Powers and Duties . Except as hereinafter provided and subject to the control of the Board, each officer shall have such powers
and duties as are customarily incident to his or her office or as the Board may otherwise prescribe.
(a) President . The President shall be the chief executive officer of the Corporation, shall preside at all meetings of shareholders and
(unless the Board shall have otherwise appointed a chairman) all meetings of the Board, shall supervise and direct all officers of the
Corporation, and shall see that all orders and resolutions of the Board are carried into effect. The President shall have authority to appoint and
remove agents and employees and to prescribe their powers and duties and may authorize any other officer or officers to do so. He or she shall
have authority to institute or defend legal proceedings whenever the directors or shareholders are deadlocked.
(b) Vice President . The Board may elect one or more Vice Presidents, who shall have such powers and duties as the Board shall
designate. In the absence or disability of the President, the Vice President (or, in case there shall be more than one, the Vice Presidents in such
order as the Board shall designate) shall perform the duties and exercise the powers of the President.
(c) Secretary . The Secretary shall attend meetings of the Board and record its proceedings. He or she may give, or cause to be given,
notice of all meetings of shareholders and directors of the Corporation. The Secretary may certify all votes, resolutions, and actions of the
shareholders, the
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Board, and committees of the Board, and may attest all documents executed on behalf of the Corporation.
(d) Treasurer . The Treasurer shall have charge of, and be responsible for, all funds and securities of the Corporation, shall maintain full
and accurate accounts of the Corporation’s disbursements and receipts, shall report to the Board from time to time on the financial condition of
the Corporation, and shall otherwise exercise the powers and perform the duties incident to the office of Treasurer. The Treasurer may certify
or attest documents executed on behalf of the Corporation.
(e) Assistant Officers . Assistant Secretaries and Assistant Treasurers shall perform such duties as from time to time may be assigned to
them by the Board or by (respectively) the Secretary or the Treasurer. At the request of the Secretary or Treasurer, or in case of his or her
absence or inability to act, any Assistant Secretary or Assistant Treasurer (respectively) may act in his or her place.
SECTION 5.6 Compensation . The Board or a duly authorized committee thereof may fix the compensation of each officer. In the event that
compensation paid to an officer is disallowed in whole or in part as a deductible expense by the Corporation for federal income tax purposes,
the Board may require the officer to reimburse such payment to the Corporation to the full extent of the disallowance.
SECTION 5.7 Clerk . As required by the Corporation Act, the Corporation shall have and continuously maintain a Clerk, who shall be a
resident of the State and who shall not be deemed an officer of the Corporation. The Board shall have authority from time to time to appoint or
remove the Clerk, subject to the procedures set forth in the Act. The position of Clerk shall be ministerial in nature, and the Clerk, in his or her
capacity as such, shall have no authority to engage in any policymaking function on behalf of the Corporation, or to enter into contracts or incur
debts on behalf of the Corporation. The Clerk shall perform the duties set forth in Section 714(11) of the Act. The Board or the President may
appoint an Assistant Clerk, in which case the Assistant Clerk may perform any duties of the Clerk (other than duties that by statute are reserved
solely to the Clerk). The Board or the President may remove an Assistant Clerk at any time.
ARTICLE VI
INDEMNIFICATION
SECTION 6.1 Mandatory Indemnification of Directors and Officers . To the fullest extent permitted by law, the Corporation shall in all cases
indemnify any existing or former director, officer, Clerk, or Assistant Clerk of the Corporation who was or is a party (or is threatened to be
made a party) to any threatened or pending action, suit, or other proceeding by reason of the fact that he or she is or was a director, officer,
employee, or agent of the Corporation (or is or was sewing at the request of the Board as a director, officer, trustee, partner, fiduciary,
employee, or agent of another entity), or by reason of his or her conduct in any such capacity, against expenses (including, without limitation,
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costs of investigation and attorneys’ fees, judgments, fines, penalties, and amounts paid in settlement) actually and reasonably incurred by him
or her in connection with such proceeding. Provided, however, that indemnification shall not be mandatory in respect of (i) any action or claim
by such person against the Corporation, or against one or more directors or officers of the Corporation in their capacities as such, or (ii) any
action or claim by or in the tight of the Corporation against such person if such action or claim was approved, prior to the filing thereof, by the
affirmative vote of at least two-thirds of the directors of the Corporation then in office.
SECTION 6.2 Permissive Indemnification . Except to the extent that indemnification is mandatory under Section 6.1 above, the Corporation
may (but shall not be required to) indemnify any person who was or is a party (or is threatened to be made a party) to any threatened or pending
action, suit, or other proceeding by reason of the fact that he or she 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, trustee, employee, partner, fiduciary, or agent of another entity), or by
reason of his or her conduct in any such capacity, against expenses actually and reasonably incurred by him or her in connection with such
proceeding. Such indemnification shall be subject to any restrictions imposed by applicable law or by the Board in its discretion.
SECTION 6.3 Advance Payment of Expenses . In its discretion the Board may, on such conditions as it deems appropriate, authorize the
Corporation to pay or reimburse costs of investigation, attorneys’ fees, and other expenses incurred by a person entitled to indemnification
under this Article, even in advance of the final disposition of the proceeding in question.
SECTION 6.4 Nonexclusive Remedy; Benefit . The rights provided by this Article shall not be deemed exclusive of any other right of
indemnification or payment provided by contract, the Articles, vote of shareholders or directors, or otherwise. Any right of indemnity or
payment arising under this Article shall continue as to a person who has ceased to hold the office or position in which such right arose; shall
inure to the benefit of his or her heirs, executors, and administrators; and shall survive any subsequent amendment of this Article.
ARTICLE VII
CONTRACTS, BANK ACCOUNTS, ETC.
SECTION 7.1 Execution of Documents . Except as limited by law, the Articles, or these Bylaws, and unless otherwise expressly provided by
any resolution of the Board, the President, acting singly, shall have authority to execute and deliver, in the name and on behalf of the
Corporation, any contract, bill, note, check, deed, mortgage, bill of sale, or other instrument.
SECTION 7.2 Bank Accounts . Unless otherwise expressly provided by any resolution of the Board, the President or Treasurer, acting singly,
may open, close, and maintain deposit, checking, money market, and similar accounts with banks, trust companies, and other depositories in
the name of the Corporation and may purchase and sell certificates of deposit and similar instruments on behalf of
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the Corporation. The Board may make such special rules and regulations with respect to such activities as it deems expedient.
SECTION 7.3 Authority to Vote Shares . Unless otherwise provided by resolution of the Board, the President, any Vice President, the
Secretary, and the Treasurer (in that order) shall have authority to vote (either in person or by proxy) any shares of other corporations standing
in the name of the Corporation.
ARTICLE VIII
CAPITAL STOCK; TRANSFERS OF SHARES
SECTION 8.1 Issuance of Shares . No officer shall have authority to cause the Corporation to issue, or to agree to issue, any shares of the
Corporation, any rights or options to acquire such shares, or any instruments or indebtedness convertible into such shares, without the express
authorization of the Board, which authorization shall be limited to transactions or classes of transactions specified by the Board.
SECTION 8.2 Share Certificates . Each shareholder, upon payment in full for his or her shares, shall be entitled to a certificate certifying the
number of shares owned by him or her in the Corporation. No certificate shall be issued for any share until such share is fully paid. Each such
certificate shall be signed in the name of the Corporation by any two officers of the Corporation. Share certificates of the Corporation shall
conform to all requirements imposed thereon by the Corporation Act or these Bylaws and shall bear such additional legends, if any, as the
Clerk shall consider appropriate to reflect applicable restrictions on transfer or ownership.
SECTION 8.3 Lost Certificates . The Board may direct that a new certificate be issued in place of any certificate previously issued by the
Corporation and alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the record or beneficial owner of
such certificate. The Board may require such owner, or his or her legal representative, to give the Corporation a bond or otherwise to indemnify
the Corporation against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen, or
destroyed.
SECTION 8.4 Transfer Procedures . Each transfer of shares of stock of the Corporation shall be made only on the stock transfer books of the
Corporation and only by the record holder thereof, or by his or her duly authorized attorney-in-fact, upon surrender of the certificate or
certificates of such shares properly endorsed and the payment of all taxes thereon. The person in whose name shares of stock stand on the stock
transfer books of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation, and the Corporation shall not
be bound to recognize any equitable or other claim to or interest in such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law; provided that whenever any transfer of shares is made for collateral
security and not absolutely, such fact shall be so expressed in the entry of transfer if so requested by a written notice to the Clerk which has
been executed by both the transferor and transferee.
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SECTION 8.5 Other Rules Regarding Transfer, Etc . The Board may, from time to time, adopt by resolution such additional rules and
regulations as it deems expedient, not inconsistent with these Bylaws or the Articles, concerning the issue, transfer, and registration of
certificates for shares of the capital stock of the Corporation.
ARTICLE X
GENERAL PROVISIONS
SECTION 9.1 Fiscal Year . The fiscal year of the Corporation shall end on December 31 of each year, except as otherwise fixed by resolution
of the Board.
SECTION 9.2 Corporate Seal . The Corporation may have a seal in such form as the Board or the Clerk may approve. Whenever it is
inconvenient to use the corporate seal, a facsimile thereof may be used. The Clerk and any officer of the Corporation shall have authority to
affix the corporate seal, and it may be attested by his or her signature.
SECTION 9.3 Facsimile Signatures . Facsimile signatures of any officer of the Corporation may be used whenever authorized by the Board or
the President. The Corporation may rely upon the facsimile signature of any person if delivered by or on behalf of such person in a manner
evidencing an intention to permit such reliance.
SECTION 9.4 Inspection of Records . Except as otherwise required by law, the President and the Board shall have authority to determine the
extent to which, and the manner in which, books and records of account, minutes of meetings, shareholder lists, and other documents of the
Corporation shall be open to inspection by shareholders. Any such right of inspection shall be subject to such reasonable confidentiality
restrictions as the President or the Board deems appropriate to protect the Corporation and its business.
SECTION 9.5 Amendment of Bylaws . Except as the Articles otherwise provide, these Bylaws may be amended or repealed, and new Bylaws
may be adopted, by vote of the shareholders or the Board. For any meeting at which Bylaws are to be adopted, amended, or repealed, specific
notice of such proposed action shall be given, either setting out the text of the proposed new or amended Bylaw or Bylaw to be repealed, or
summarizing the changes to be effected by such adoption, amendment, or repeal.
SECTION 9.6 Interpretation . Headings and captions used herein are inserted for convenience only and shall not be used to construe the scope
or content of any provision. Whenever used herein, the masculine gender shall include the feminine and neuter genders, as the context requires.
In the case of any conflict between the provisions of the Articles and these Bylaws, the Articles shall control. In the case of any ambiguity or
other question concerning interpretation of these Bylaws, the good faith interpretation of the Board shall be binding on the Corporation and its
shareholders.
As adopted April 14, 2000.
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Exhibit 3.3
State of Delaware
Certificate of Merger of Foreign Corporation
into Domestic Limited Liability Company
Pursuant to Title 6, Section 18-209 of the Delaware Limited Liability Company Act.
First: The name of the surviving Limited Liability Company is Owens Corning Intellectual Capital, LLC, a Delaware Limited Liability
Company.
Second: The name of the foreign corporation being merged into this surviving Limited Liability Company is Owens-Corning Fiberglas
Technology, Inc. The jurisdiction in which the foreign corporation was formed is Illinois.
Third: The Agreement of Merger has been approved and executed by each of the constituent entities.
Fourth: The name of the surviving Limited Liability Company is: Owens Corning Intellectual Capital, LLC.
Fifth: The merger is to become effective on June 28, 2007.
Sixth: The Agreement of Merger is on file at One Owens Corning Parkway, Toledo, Ohio 43659, a place of business of the surviving Limited
Liability Company.
Seventh: A copy of the Agreement of Merger will be furnished by the surviving Limited Liability Company, on request without cost, to any
member or stockholder of the constituent entities.
IN WITNESS WHEREOF, said Limited Liability Company has caused this certificate to be signed by an authorized person, this 28 day of
June, A.D. 2007
By:
/s/ Joseph J. Mikelonis
Authorized Person
Name: Joseph J. Mikelonis, Vice President
Print or Type
FORM BCA 11.39 (rev. Dec. 2003)
ARTICLES OF MERGER,
BETWEEN ILLINOIS CORPORATIONS
AND LIMITED LIABILITY COMPANIES
Business Corporation Act
Jesse White, Secretary of State
Department of Business Services
Springfield, IL 62756
Telephone (217) 782-6961
www.cyberdriveillinois.com
Remit payment in the form of a
check or money order payable
to the Secretary of State.
The filing fee is $100, but if merger
involves more than 2 corporations,
$50 for each additional corporation.
File #
Submit in duplicate
Filing Fee: $
Type or Print clearly in black ink
Approved:
Do not write above this line
1. Names of the corporations and limited liability companies proposing to merge and the state or country of their organization or
incorporation:
Name of Corporation
Limited Liability Company
State or Country of
Organization/Incorporation
Owens Corning Intellectual Capital, LLC
Delaware
Corporation
File Number
4348508
2. The laws of the state or country under which each corporation and Limited Liability Company are organized, permit such merger.
3. (a) Name of the surviving party:
Owens Corning Intellectual Capital, LLC
(b) it shall be governed by the laws of: Delaware
If not sufficient space to cover this point, add one or more sheets of this size.
4. Plan of merger is as follows:
See attached Agreement and Plan of Merger
5.
Plan of merger was approved, as to each limited liability company, in compliance with the laws of the state under which it is organized,
and (b) as to each Illinois corporation, as follows:
(Only “X” one box for each Illinois corporation)
By the shareholders, a
resolution of the board of
directors having been duly
adopted and submitted to a
vote at a meeting of
shareholders. Not less than
the minimum number of
votes required by statute and
by the articles of
incorporation voted in favor
of the action taken.
(§11.20)
By written consent of the
shareholders having not
less than the minimum
number of
votes required by statute
and by the articles of
incorporation.
Shareholders who have
not consented in writing
have been given notice in
accordance with §7.10
(§11.20)
By written consent of
ALL the shareholders
entitled to vote on the
action, in accordance
with § 7.10 & § 11.20
Name of Corporation
Owens-Corning Fiberglas Technology, Inc.
6.

(Not applicable if survivor is an Illinois corporation or an Illinois Limited Liability Company)
It is agreed that, upon and after the issuance of a certificate of merger by the Secretary of State of the State of Illinois:
a.
The surviving limited liability company may be served with process in the State of Illinois in any proceeding for the enforcement
of any obligation of any corporation organized under the laws of the State of Illinois which is a party to the merger and in any
proceeding for the enforcement of the rights of a dissenting shareholder of any such corporation organized under the laws of the
State of Illinois against the surviving limited liability company.
b.
The Secretary of State of the State of Illinois shall be and hereby is irrevocably appointed as the agent of the surviving limited
liability company to accept service of process in any such proceedings, and
c.
The surviving limited liability company will promptly pay to the dissenting shareholders of any corporation organized under the
laws of the State of Illinois which is a party to the merger the amount, if any, to which they shall be entitled under the provisions
of “The Business Corporation Act of 1983” of the State of Illinois with respect to the rights of dissenting shareholders.
7.(a.) The undersigned corporations have caused these articles to be signed by their duly authorized officers, each of whom affirms, under
penalties of perjury, that the facts stated herein are true. (All signatures must be in BLACK INK . )
Dated June 28
, 2007
(Year)
(Month & Day)
Owens-Corning Fiberglas Technology, Inc.
(Exact Name of Corporation)
(Any authorized officer’s signature)
Joseph J. Mikelonis, Vice President
(Type or Print Name and Title)
Dated
,
(Month & Day)
(Year)
(Exact Name of Corporation)
(Any authorized officer’s signature)
(Type or Print Name and Title)
7.(b.) The undersigned limited liability companies have caused these articles to be signed by their duly authorized person, who affirms, under
penalties of perjury, that the facts stated herein are true. (All signatures must be in BLACK INK . )
Dated June 28
(Month & Day)
, 2007
(Year)
Owens Corning Intellectual Capital, LLC
(Exact Name of Limited Liability Company)
by /s/ OWENS CORNING, Member
(Signature)
Joseph J. Mikelonis, Vice President
(Type or Print Name and Title)
Dated
,
(Month & Day) (Year)
(Year)
(Exact Name of Limited Liability Company)
by
(Signature)
(Type or Print Name and Title)
C-294.3
CERTIFICATE OF FORMATION
OF
OWENS CORNING INTELLECTUAL CAPITAL, LLC
1. The name of the limited liability company is Owens Corning Intellectual Capital, LLC.
2. The address of its registered office In the State of Delaware is: Corporation Trust Center, 1209 Orange Street. in the City of
Wilmington, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.
th day
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of Owens Corning Intellectual Capital, LLC this 8
of May, 2007.
/s/ James I. Rothschild
James I. Rothschild, Authorized Representative
Exhibit 3.4
OPERATING AGREEMENT
OF
OWENS CORNING INTELLECTUAL CAPITAL, LLC
THIS AGREEMENT is made and entered into as of the 8 th day of May, 2007 by Owens Corning, a Delaware corporation (the
“Initial Member”), as the sole member of Owens Corning Intellectual Capital, LLC, a Delaware limited liability company (the “Company”) and
any Additional Member who shall hereafter execute this Agreement as a Member of the Company.
PRELIMINARY STATEMENT
WHEREAS, the Initial Member has heretofore caused to be filed a Certificate of Formation with the Secretary of State to organize
the Company under and pursuant to the Act;
WHEREAS, upon the terms and subject to the conditions set forth herein, the Initial Member is concurrently with the execution of
this Agreement acquiring certain Membership Interests in the Company; and
WHEREAS, in accordance with the Act, each of the Company and the Member desire to enter into this Agreement to set forth the
respective rights, powers and interests of the Member with respect to the Company and its Membership Interests therein and to provide for the
management of the business and operations of the Company.
NOW, THEREFORE, in consideration of the mutual promises and agreements made herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
For purposes of this Agreement, unless the context clearly indicates otherwise, the following terms shall have the following meanings:
1.1. Act. The Delaware Limited Liability Company Act, Delaware Code Title 6, Chapter 18, as amended from time to time.
1.2. Additional Member. A Member other than the Initial Member who has acquired a Membership Interest in the Company.
1.3. Affiliate. A company with a relationship of an “Affiliate” as defined under the Securities Exchange Act of 1934.
1.4. Admission (Admit). The act of becoming a Member and obtaining the rights appurtenant to a Membership Interest.
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1.5. Agreement. This Agreement including all amendments adopted in accordance with this Agreement and the Act.
1.6. Board of Managers. At any time, the Board of Managers designated in accordance with Section 6.1 .
1.7. Capital Contribution. Any contribution or contribution of services made by or on behalf of a new or existing Member or Assignee as
consideration for a Membership Interest.
1.8. Capital Account. The account maintained on the Company’s books and records for the purpose of recording contributions from and
distributions to the Members, and other items of income or loss as determined by the Agent to be appropriate.
1.9. Certificate. The Certificate of Formation of the Company as properly adopted and amended from time to time by the Member and
filed with the Secretary of State.
1.10. Code. The Internal Revenue Code of 1986, as amended from time to time, or any corresponding provision of any succeeding law.
1.11. Commitment. The obligation of a Member to make a Capital Contribution in the future.
1.12. Company. Owens Corning Intellectual Capital, LLC, a limited liability company formed under the laws of the State of Delaware,
and any successor limited liability company.
1.13. Company Property. Any Property owned by the Company.
1.14. Contribution. Any contribution of Property made by or on behalf of a new or existing Member or Assignee as consideration for a
Membership Interest as shown on the books and records of the Company maintained by the Agent.
1.15. Distribution. A transfer of Property to a Member on account of a Membership Interest as described in Article IX.
1.16. Disposition (Dispose). Any sale, assignment, transfer, exchange, mortgage, pledge, grant, hypothecation, or other transfer, absolute
or as security or encumbrance (including dispositions by operation of law).
1.17. Initial Capital Contribution. The Capital Contribution made by the Member as described in Article VIII.
1.18. Initial Member. Owens Coming, a Delaware corporation.
1.19. Majority Vote. With respect to actions taken by Members, the affirmative vote or consent of Members holding at least a majority of
the Membership Interests then outstanding and, with respect to actions to be taken by the Board of Managers, the affirmative vote or consent of
at least a majority of the Managers then serving on the Board of Managers.
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1.20. Managers. At any time, the Persons appointed in accordance with Section 6.1 to serve on the Board of Managers.
1.21. Member. The Initial Member, any transferee of a Member, or any Additional Member, as currently reflected in the Membership
Ledger attached as Schedule I. If at any time there is more than one Member, the term “Member” shall mean all Members, and any action that
may be taken under this Agreement by the Member may be taken by a majority in interest of the Members.
1.22. Membership. All of the rights of the Member, including the right to share in profits, losses, and distributions and the right to
participate in the management of the Company.
1.23. Membership Interest. With respect to any Member at any time, the entire interest of such Member in the Company at such time.
Such interest includes, without limitation, (a) all rights of a Member to receive distributions of revenues, allocations of income and loss and
distributions of liquidation proceeds under this Agreement and (b) all management rights, voting rights and rights to consent.
1.24. Person. An individual, trust, estate, or any incorporated or unincorporated organization permitted to be a member of a limited
liability company under the laws of the State of Delaware.
1.25. Proceeding. Any judicial or administrative trial, hearing, or other activity, civil, criminal or investigative, the result of which may
be that a court, arbitrator, or governmental agency may enter a judgment, order, decree, or other determination which, if not appealed and
reversed, would be binding upon the Company, a Member, or other Person subject to the jurisdiction of such court, arbitrator, or governmental
agency.
1.26. Property. Any property real or personal, tangible or intangible (including goodwill), including money and any legal or equitable
interest in such property, but excluding services and promises to perform services in the future.
1.27. Secretary of State. The Secretary of State of the State of Delaware.
1.28. Securities Act. The Securities Act of 1933, as amended.
1.29. Taxing Jurisdiction. Any state, local, or foreign government that collects tax, interest or penalties, however designated, on the
Member’s share of the income or gain attributable to the Company.
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ARTICLE II.
FORMATION
2.1. Organization. The Initial Member has caused to be organized the Company as a Delaware limited liability company under and
pursuant to the provisions of the Act by the filing of the Certificate with the Office of the Secretary of State as required by the Act. In the event
of a conflict between the terms of this Agreement and the Certificate, the terms of the Certificate shall prevail.
2.2. Name. The name of the Company is Owens Corning Intellectual Capital, LLC.
2.3. Effective Date. This Agreement shall become effective as of May 8, 2007 (the “Effective Date”).
2.4. Term. The Company shall exist for a period of duration that shall be perpetual, unless the Company shall be sooner dissolved and its
affairs wound up in accordance with the Act or this Agreement.
2.5. Registered Agent and Office. The registered agent (“Agent”) for the service of process and the registered office shall be that Person
and location reflected in the Certificate as filed in the office of the Secretary of State. The Board of Managers by Majority Vote or the Agent
may, from time to time, change the registered agent or office through appropriate filings with the Secretary of State. In the event the registered
agent ceases to act as such for any reason or the registered office shall change, the Board of Managers or the Agent shall promptly designate a
replacement registered agent or file a notice of change of address as the case may be.
2.6. Principal Office. The principal office of the Company shall be located at One Owens Corning Parkway, Toledo, Ohio, or at such
place as the Board of Managers by Majority Vote or the Agent may designate from time to time, which need not be in the State of Delaware,
and the Company shall maintain records there for inspection as required by the Act. The Company may have such other offices as the Board of
Managers by Majority Vote or the Agent may designate from time to time.
2.7. Qualification in Other Jurisdictions. The Company’s officers and/or the Agent shall cause the Company to be qualified as a foreign
organization to conduct business in jurisdictions in which the nature of the Company’s operations or business require it to be so qualified or
where it is otherwise deemed to be appropriate.
2.8. No State-Law Partnership. No provisions of this Agreement shall be deemed or construed to constitute the Company a partnership
(including, without limitation, a limited partnership) or joint venture, or any Member a partner or joint venturer of or with any other Member,
for any purposes other than federal and state tax purposes.
2.9. Certificate Evidencing Membership Interest. Company shall not issue certificates evidencing the Membership Interests; provided,
however, that if the Agent determines that certificates are necessary or appropriate for any purpose, including but not limited to the purpose of
effecting the Member’s pledge of its Members Interest to its lender(s),
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the Agent may cause such certificate(s) to be issued and registered in the name of the Member in accordance with Schedule I. Each
Membership Interest, whether or not certificated, shall constitute a “security” governed by Article 8 of the Uniform Commercial Code in effect
from time to time in the State of Delaware.
ARTICLE III.
NATURE OF BUSINESS
The purpose of the Company is to (i) provide services, (ii) sell products and (iii) engage in any lawful act, activity, or business not
contrary to and for which a limited liability company may be formed under the laws of the State of Delaware. The Company shall have the
authority to do all things necessary or convenient to accomplish its purpose and operate its business as described in this Article III.
ARTICLE IV.
ACCOUNTING AND RECORDS
The Company, through the Agent, shall maintain at the Company’s Principal Office all such accounting and business records that are
usually and customarily maintained by a business of this type.
ARTICLE V.
MEMBERS
5.1. Initial Member. The Initial Member of the Company is listed on Schedule I of this Agreement and the address of such Initial
Member is as set forth on such Schedule I . As of the date hereof, there are no other Members of the Company and no other Person has any
right to take part in the ownership of the Company.
5.2. Admission of Additional Members. Additional Members of the Company may only be added if the addition of any such proposed
additional Member is approved in writing, prior to such admission, by all the then existing Members.
5.3. Board of Managers. The Member shall have the sole right to appoint a Board of Managers to manage the Company in accordance
with the provisions of Article VI of this Agreement.
5.4. Liability of the Member. The Member shall not be liable for the liabilities of the Company. The failure of the Company to observe
any formalities or requirements relating to the exercise of its powers or management of its business or affairs under this Agreement or the Act
shall not be grounds for imposing personal liability on the Member for liabilities of the Company.
5
5.5. Other Business. The Member may engage in or possess an interest in other business ventures (unconnected with the Company) of
every kind and description, independently or with others. Neither the Company nor any other Member shall have any rights in or to such
independent ventures of the Member or the income or profits therefrom by virtue of this Agreement.
ARTICLE VI.
MANAGEMENT OF THE COMPANY
6.1. Management and Board of Managers. The business and affairs of the Company shall be managed by a Board of Managers (the
“Board of Managers”), which shall consist of one or more individuals (each, a “Manager” and, collectively, the “Managers”). The number of
Managers and the members of the Board of Managers shall be determined and appointed by the Member. Decisions of the Board of Managers
shall be presumed to be within its scope of authority and shall be binding upon the Company.
6.1.1. Meetings of the Board of Managers shall be held at the principal place of business of the Company or at any other place that
any Manager may determine. In the alternative, meetings may be held by conference telephone or similar communications equipment, provided
that each Manager can hear the others. The presence of Managers entitled to exercise a majority of the voting power on the Board of Managers
(determined in accordance with Section 6.1.2) shall constitute a quorum for the transaction of business. Any Manager may convene a meeting
thereof at the Company’s principal offices designated from time to time pursuant to Section 2.6, upon at least two (2) business days’ prior
written notice to the other Managers, or such lesser period of time as to which the Managers may consent (the presence of a Manager at a
meeting, without objection, shall be deemed evidence of such consent). The Board of Managers also may make decisions, without holding a
meeting, by written consent of all of the Managers sufficient to make the decision at a meeting duly held. Minutes of each meeting and a record
of each decision (including written consents) shall be kept by the Secretary of the Company and shall be given to the Board of Managers
promptly after the meeting.
6.1.2. Votes of the Managers shall be weighted equally.
6.1.3. Except as otherwise determined by the Member, the Managers shall serve in that capacity without compensation from the
Company, but may be reimbursed for expenses.
6.2. Appointment, Removal, and Resignation of Officers. The Board of Managers may appoint such Company officers as the Board of
Managers shall determine in its sole discretion, including a President and Chief Executive Officer, one or more Company Vice-Presidents,
Chief Financial Officer, Secretary, Treasurer, Assistant Secretary, and Assistant Treasurer, and who shall have such powers and duties as the
Board of Managers shall determine in its sole discretion. The Board of Managers may also authorize individuals to act on behalf of the
Company for special purpose(s) as designated in a resolution of the Board of Managers. Any officer of the Company may be removed without
liability to the Company, with or without cause,
6
by the Board of Managers. The Board of Managers may fill or not fill any vacancy in any office in its sole discretion. Unless otherwise set
forth in the action of the Board of Managers appointing such officer, any person appointed to an office shall have the following general powers
and responsibilities:
6.2.1 President. The President shall be the chief executive officer of the Company and shall in general supervise and control all of
the business and affairs of the Company. The President may execute, alone or with the Secretary or any other officer of the Company
authorized by the Board, any contracts or other instruments which the Board has authorized to be executed or which are permitted by
Section 6.4, except in cases where the execution thereof shall be expressly delegated by the Board to some other officer or agent of the
Company, or shall be required by law to be otherwise executed, and in general he or she shall perform all duties incident to the office of
President and such other duties as from time to time may be prescribed by the Board.
6.2.2 Vice President(s). In the absence of the President or in the event of his or her inability or refusal to act, the Vice President (or
in the event there shall be more than one Vice President, the Vice Presidents in the order determined by the Board or, if there shall have been
no such determination, then in the order of their election) shall perform the duties of the President and, when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. The Managers may also designate certain Vice Presidents as being in charge
of designated divisions, plants or functions of the Company’s business and add appropriate descriptions to their titles. In addition, any Vice
President shall perform such duties as from time to time may be assigned to him or her by the President or the Managers.
6.2.3 Secretary. The Secretary shall (a) keep the minutes of proceedings of the Members, the Board and any committee of the
Board in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of this
Agreement or as required by law; (c) be custodian of the Company records; (d) keep a record of the mailing address of each Member and
Manager, and (e) in general, perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to
him or her by the President or the Board of Managers.
6.2.4 Treasurer. The Treasurer shall have charge and custody of and be responsible for all funds of the Company, receive and give
receipts for moneys due and payable to the Company from any source whatsoever, deposit all such moneys in the name of the Company in
such banks or other depositories as the Board of Managers may authorize pursuant to a resolution of general application or the Board of
Managers may, by resolution, delegate such authority, disburse the funds of the Company as ordered by the Board or the President or as
otherwise required in the conduct of the business of the Company and render to the President or the Board, upon request, an accounting of all
his or her transactions as Treasurer and a report on the financial condition of the Company. The Treasurer shall in general perform all the duties
incident to the office of Treasurer and such other duties as from time to time may be assigned to him or her by the President or the Board. If
required by the Board, the Treasurer shall give a bond (which shall be renewed regularly), in such sum and with such surety or sureties as the
Board shall determine, for the faithful discharge of his or her duties and for the restoration to the Company, in case of his or her death,
resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her
possession or under his or her control belonging to the Company
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6.3. Board of Managers’ Powers in General. Except as otherwise provided herein, the Board of Managers shall have full and complete
charge of all affairs of the Company, and the management and control of the Company’s business shall rest exclusively with the Board of
Managers. The Board of Managers shall, subject to Section 6.4 , possess all power, on behalf of the Company, to do or authorize the Company
or to direct officers of the Company, or certain individuals appointed pursuant to Section 6.2, on behalf of the Company, to do all things
necessary or convenient to carry out the business and affairs of the Company.
6.4. Conduct of Business. The Member and the Board of Managers hereby adopt, and agree to be governed by, the Business
Conduct/Corporate Policies and other policies, procedures and guidelines of Owens Corning, including but not limited to the Levels of
Authority Policy, as such policies may from time to time be set forth on the Owens Corning GlobaLink intranet (or any replacement thereof),
for rules governing the conduct of business by the Board of Managers and the Company’s officers and employees.
6.5. Limitation on Powers. The enumeration of powers in this Agreement shall not limit the general or implied powers of the Board of
Managers or any additional powers provided by law. Notwithstanding the foregoing and any other provision contained in this Agreement to the
contrary, the Board of Managers, the officers, and any individual appointed pursuant to Section 6.2, may not, without the consent of the
Member, do any of the following:
6.5.1. Sell or otherwise dispose of, or agree to sell or otherwise dispose of, all or substantially all the assets of the Company.
6.5.2. Merge or consolidate with any other person;
6.5.3. Make, execute, or deliver any assignment for the benefit of creditors;
6.5.4. Do any act in contravention of this Agreement or the Certificate;
6.5.5. Do any act that would make it impossible to carry on the business of the Company; or
6.5.6. Knowingly take any action that would subject the Member in its capacity as a Member to personal liability in any
jurisdiction.
ARTICLE VII.
INDEMNIFICATION AND INSURANCE
7.1. Indemnification and Advancement of Expenses.
7.1.1. The Company shall indemnify any Person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right
of the Company), by reason of the fact that he, she or it is or was a Member, officer, employee,
8
representative or agent of the Company, or is or was serving at the request of the Company as a director, officer, manager, employee,
representative or agent of another corporation, limited liability company, general partnership, limited partnership, joint venture, trust, business
trust or other enterprise or entity, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him, her or it in connection with such action, suit or proceeding if he, she or it acted in good faith and in a manner he,
she or it reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his, her or its conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that such
Person did not act in good faith and in a manner which he, she or it reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his, her or its conduct was unlawful.
7.1.2. The Company shall indemnify any Person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Company to procure a judgment in its favor by reason of the fact that he, she or it is
or was a Member, officer, employee, representative or agent of the Company, or is or was serving at the request of the Company as a director,
officer, manager, employee, representative or agent of another corporation, limited liability company, general partnership, limited partnership,
joint venture, trust, business trust or other enterprise or entity, against expenses (including attorneys’ fees) actually and reasonably incurred by
him, her or it in connection with the defense or settlement of such action or suit if he, she or it acted in good faith and in a manner he, she or it
reasonably believed to be in or not opposed to the best interests of the Company, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such Person shall have been adjudged to be liable to the Company unless and only to the extent that a
Delaware state court or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which
such court shall deem proper.
7.1.3. To the extent that a Member, officer, employee, representative or agent of the Company has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section 7.1.1 and Section 7.1.2 , or in defense of any claim, issue or matter
therein, he, she or it shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him, her or it in
connection therewith.
7.1.4. Any indemnification under Section 7.1.1 and Section 7.1.2 (unless ordered by a court of competent jurisdiction) shall be
made by the Company only as authorized in the specific case upon a determination that indemnification of the Member, officer, employee,
representative or agent is proper in the circumstances because he, she or it has met the applicable standard of conduct set forth in Section 7.1.1
and Section 7.1.2. Such determination shall be made (i) by the Members by a Majority Vote of Members who were not parties to such action,
suit or proceeding (even if such Members constitute less than a quorum of Members), or (ii) if a quorum of disinterested Members so directs,
by independent legal counsel in a written opinion.
9
7.1.5. Expenses (including attorneys’ fees) incurred by a Member or officer in defending any civil, criminal, administrative or
investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Member or officer to repay such amount if it shall ultimately be determined that he, she or it
is not entitled to be indemnified by the Company pursuant to this Section 7.1 . Such expenses (including attorneys’ fees) incurred by other
officers, employees, representatives and agents shall be so paid upon such terms and conditions, if any, as the Members deem appropriate.
7.1.6. The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 7.1 shall not be deemed
exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any by-law, agreement,
vote of Members or otherwise, both as to action in an official capacity and as to action in another capacity while holding such office.
7.1.7. For purposes of this Section 7.1 , any reference to the “Company” shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence
had continued, would have had power and authority to indemnify its directors, officers, managers, members, employees, representatives or
agents, so that any Person who is or was a director, officer, manager, member, employee, representative or agent of such constituent entity, or
is or was serving at the request of such constituent entity as a director, officer, manager, employee, representative or agent of another entity,
limited liability company, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this
Section 7.1 with respect to the resulting or surviving entity as he or she would have with respect to such constituent entity if its separate
existence had continued.
7.1.8. The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 7.1 shall continue as to a
Person who has ceased to be a Member, officer, employee, representative or agent and shall inure to the benefit of the heirs, executors and
administrators of such Person.
7.1.9. Notwithstanding anything in this Article to the contrary, the Company will not have the obligation of indemnifying any
Person with respect to proceedings, claims or actions initiated or brought voluntarily by such Person and not by way of defense.
7.2. Insurance. The Company or its Agent may purchase and maintain insurance or another arrangement on behalf of any Person who is
or was a Member, officer, employee, agent or other Person identified in Section 7.1 against any liability asserted against such Person or
incurred by such Person in such a capacity or arising out of the status of such a Person, whether or not the Company would have the power to
indemnify such Person against that liability under Section 7.1 or otherwise.
7.3. Limit on Liability of Members. The indemnification set forth in this Article VII shall in no event cause the Members to incur any
personal liability beyond their total Capital Contributions, nor shall it result in any liability of the Members to any third party.
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ARTICLE VIII.
CONTRIBUTIONS
8.1. Initial Capital Contributions. As of the Effective Date, the Initial Member has contributed the sum of One Hundred Dollars ($100)
(the “Initial Capital Contribution”).
8.2. Initial Membership Interests . In consideration of the Initial Capital Contribution, the Initial Member is entitled to the Membership
Interests set forth in Schedule I, and the Capital Account set forth in the Company’s books of account.
8.3. Additional Capital Contributions. In addition to the Initial Capital Contribution, the Member may make additional Capital
Contributions, which shall be recorded and maintained by the Agent in the Company’s books of account. The Member shall not be obligated to
make any additional Capital Contributions.
8.4. Return of Capital Contributions. Except as otherwise provided herein or in the Act, no Member shall have the right to withdraw, or
receive any return of, all or any portion of such Member’s Capital Contribution.
8.5. Interest. No interest shall be paid by the Company on Capital Contributions.
8.6. Loans From Members. Loans by a Member to the Company shall not be considered Capital Contributions. If any Member shall
advance funds to the Company in excess of the amounts required hereunder to be contributed by such Member to the capital of the Company,
the amounts of any such advances shall be a debt of the Company to such Member and shall be payable or collectible only out of the Company
assets in accordance with the terms and conditions upon which such advances are made.
ARTICLE IX.
DISTRIBUTIONS
9.1. Distributions. Except as provided in Section 9.2 , the Company may make distributions to the Member.
9.2. Limitations on Distributions. No distribution shall be declared and paid unless, after the distribution is made, the assets of the
Company are in excess of all liabilities of the Company.
ARTICLE X.
TAXES
10.1. Elections. The Agent, on behalf of the Member or the Board of Managers, may make any tax elections for the Company allowed
under the Code or the tax laws of any state or other jurisdiction having taxing jurisdiction over the Company.
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10.2. Taxes of Taxing Jurisdictions. To the extent that the laws of any Taxing Jurisdiction require, the Member will submit an agreement
indicating that the Member will make timely income tax payments to the Taxing Jurisdiction and that the Member accepts personal jurisdiction
of the Taxing Jurisdiction with regard to the collection of income taxes attributable to the Member’s income, and interest, and penalties
assessed on such income. If the Member fails to provide such agreement, the Company may withhold and pay over to such Taxing Jurisdiction
the amount of tax, penalty, and interest determined under the laws of the Taxing Jurisdiction with respect to such income. Any such payments
with respect to the income of a Member shall be treated as a distribution for purposes of Article IX.
10.3. Method of Accounting. The records of the Company shall be maintained on the same method of accounting as that of the Member.
10.4. Allocation of Profit and Loss. Consistent with its classification as an entity disregarded as an entity separate from its owner for
federal income tax purposes, all profit or loss of the Company for all taxable periods shall be treated for federal income tax purposes and, to the
extent permitted by applicable law, for state and local income and other tax purposes, as realized or incurred directly by the Member.
ARTICLE XI.
DISPOSITION OF MEMBERSHIP INTEREST AND ADMISSION OF
ASSIGNEES AND ADDITIONAL MEMBERS
11.1. Disposition. The Member’s Membership Interest is transferable either voluntarily or by operation of law. The Member may dispose
of all or a portion of the Member’s Membership Interest. Upon the transfer of the Member’s Membership Interest, the transferee shall be
admitted as a Member at the time the transfer is completed.
11.2. Admission of Additional Members. The Member may admit Additional Members and determine the Capital Contributions of such
Member.
11.3. Effect of Admission. Each transferee of the Member and each Additional Member shall join and agree to be bound by this
Operating Agreement as a condition to admission to Membership, through execution of the Joinder Agreement attached hereto as Schedule II.
ARTICLE XII.
DISSOLUTION AND WINDING UP
12.1. Events Causing Dissolution. The Company shall be dissolved upon the first of the following events to occur:
12.1.1. The expiration of the term of the Company set forth in the Certificate of Formation, as and if amended;
12.1.2. The written consent of all Members at any time to dissolve and wind up the affairs of the Company;
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12.1.3. The occurrence of any other event that causes the dissolution of a limited liability company under the Act.
12.2. Winding Up. If the Company is dissolved pursuant to Section 12.1 , the Company’s affairs shall be wound up as soon as reasonably
practicable in the manner set forth below.
12.2.1. The winding up of the Company’s affairs shall be supervised by a liquidator (the “Liquidator”). The Liquidator shall be
selected by the Board of Managers by Majority Vote.
12.2.2. In winding up the affairs of the Company, the Liquidator shall have full right and unlimited discretion, in the name of and
for and on behalf of the Company to:
(i) Prosecute and defend civil, criminal or administrative suits;
(ii) Collect Company assets, including obligations owed to the Company;
(iii) Settle and close the Company’s business;
(iv) Dispose of and convey all Company Property for cash, and in connection therewith to determine the time, manner and
terms of any sale or sales of Company Property, having due regard for the activity and condition of the relevant market and general
financial and economic conditions;
(v) Pay all reasonable selling costs and other expenses incurred in connection with the winding up out of the proceeds of the
disposition of Company Property;
(vi) Discharge the Company’s known liabilities and, if necessary, to set up, for a period not to exceed five (5) years after the
date of dissolution, such cash reserves as the Liquidator may deem reasonably necessary for any contingent or unforeseen liabilities
or obligations of the Company;
(vii) Distribute any remaining proceeds from the sale of Company Property to the Members;
(viii) Prepare, execute, acknowledge and file articles of dissolution under the Act and any other certificates, tax returns or
instruments necessary or advisable under any applicable law to effect the winding up and termination of the Company; and
(ix) Exercise, without further authorization or consent of any of the parties hereto or their legal representatives or successors
in interest, all of the powers conferred upon the Members under the terms of this Agreement to the extent necessary or desirable in
the good faith judgment of the Liquidator to perform its duties and functions. The Liquidator shall, while acting in such
13
capacity on behalf of the Company, be entitled to the indemnification rights set forth in the Certificate of Formation and in Article
VII .
12.3. Compensation of Liquidator. The Liquidator appointed as provided herein shall be entitled to receive such reasonable
compensation for its services as shall be agreed upon by the Liquidator and the Board of Managers.
12.4. Distribution of Company Property and Proceeds of Sale Thereof.
12.4.1. Upon completion of all sales of Company Property, and after payment of all selling costs and expenses, the Liquidator shall
distribute the proceeds of such sales, and any Company Property that is to be distributed in kind, to the following groups in the following order
of priority:
(i) to satisfy Company liabilities to creditors, including Members who are creditors, to the extent otherwise permitted by law
(other than for past due Company distributions), whether by payment or establishment of reserves;
(ii) to satisfy Company obligations to Members and former Members to pay past due Company distributions; and
(iii) to the Members, in accordance with the positive balances in their respective Capital Accounts determined after allocating
all items for all periods prior to and including the date of distribution, including items relating to sales and distributions pursuant to
this Article XII .
All distributions required under this Section 12.4.1 shall be made to the Members by the end of the taxable year in which the liquidation occurs
or, if later, within 90 days after the date of such liquidation.
12.4.2. The claims of each priority group specified above shall be satisfied in full before satisfying any claims of a lower priority
group. If the assets available for disposition are insufficient to dispose of all of the claims of a priority group, the available assets shall be
distributed in proportion to the amounts owed to each creditor or the respective Membership Interests of each Member in such group.
12.5. Final Audit. Within a reasonable time following the completion of the liquidation, the Liquidator shall supply to each of the
Members a statement that shall set forth the assets and the liabilities of the Company as of the date of complete liquidation and each Member’s
pro rata portion of distributions pursuant to Section 12.4 .
12.6. Deficit Capital Accounts. Notwithstanding anything to the contrary contained in this Agreement, and notwithstanding any custom
or rule of law to the contrary, to the extent that the deficit, if any, in the Capital Account of any Member results from or is attributable to
deductions and losses of the Company (including non-cash items such as depreciation), or distributions of money pursuant to this Agreement to
all Members in proportion to their respective Membership Interests, upon dissolution of the Company such deficit shall not be an
14
asset of the Company and such Members shall not be obligated to contribute such amount to the Company to bring the balance of such
Member’s Capital Account to zero.
ARTICLE XIII.
AMENDMENT
13.1. Agreement May Be Modified. This Agreement may be modified as provided in this Article XII (as the same may from time to time
be amended).
13.2. Amendment or Modification of Agreement. This Agreement may be amended or modified from time to time only by a written
instrument adopted by the Member and executed by the Member.
ARTICLE XIV.
MISCELLANEOUS PROVISIONS
14.1. Entire Agreement. This Agreement represents the entire Agreement of the Member(s) of the Company.
14.2. Rights of Creditors and Third Parties under Agreement. This Agreement is made by the Member for the exclusive benefit of the
Company, its Member, and their successors and assignees. This Agreement is expressly not intended for the benefit of any creditor of the
Company or any other Person. Except and only to the extent provided by applicable statute, no such creditor or third party shall have any rights
under this Agreement or any agreement between the Company and the Member with respect to any Capital Contribution or otherwise.
14.3. Counterparts. This Agreement may be executed in several counterparts, each of which will be deemed an original but all of which
will constitute one and the same.
14.4. Partial Invalidity. Wherever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such provision shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or
unenforceability without invalidating the remainder of such invalid, illegal or unenforceable provision or provisions or any other provisions
hereof, unless such a construction would be unreasonable.
14.5. Binding Effect. Subject to the provisions of this Agreement relating to transferability, this Agreement will be binding upon and
shall inure to the benefit of the parties, and their respective distributees, heirs, successors and assigns.
14.6. Governing Law. This Agreement shall be governed by and construed in accordance with the local, internal laws of the State of
Delaware. In particular, this Agreement is intended to comply with the requirements of the Act and the Certificate of Formation. In the event of
a direct conflict between the provisions of this Agreement and the mandatory provisions
15
of the Act or any provision of the Certificate of Formation, the Act and the Certificate of Formation, in that order of priority, will control.
14.7. Offset. Whenever the Company is to pay any sum to any Member, any amounts that Member owes the Company may be deducted
from that sum before payment.
14.8. Effect of Waiver or Consent. A waiver or consent, express or implied, to or of any breach or default by any Person in the
performance by that Person of its obligations with respect to the Company is not a consent or waiver to or of any other breach or default in the
performance by that Person of the same or any other obligations of that Person with respect to the Company. Failure on the part of a Person to
complain of any act of any Person or to declare any Person in default with respect to the Company, irrespective of how long that failure
continues, does not constitute a waiver by that Person of its rights with respect to that default until the applicable statute-of-limitations period
has run.
14.9. Further Assurances. In connection with this Agreement and the transactions contemplated hereby, each Member shall execute and
deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and
perform the provisions of this Agreement and such transactions.
14.10. Seal. The Company shall not have an official seal; provided, however, that if the Agent determines that a seal is necessary or
appropriate for the conduct of the Company’s business in any jurisdiction, whether domestic or foreign, the Agent may cause a seal to be
created for the benefit of the Company.
IN WITNESS WHEREOF, the Member has executed this Agreement to be effective as of the Effective Date.
OWENS CORNING
By: /s/ Joseph J. Mikelonis
Title: ASSISTANT SECRETARY
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SCHEDULE I
Membership Ledger
Member Name and Address
Date
Owens Corning
One Owens Corning Parkway
Toledo, Ohio 43659
May 8, 2007
17
Percentage Interest
100%
SCHEDULE II
Joinder Agreement
Reference is made to the Operating Agreement of Owens Corning Intellectual Capital, LLC effective as of May 8, 2007 (the
“Agreement”). Capitalized terms used herein shall have the meanings set forth in the Agreement, unless otherwise defined here.
Pursuant to Section 11.3 of the Agreement, the undersigned transferee or Additional Member: (1) confirms that it hereby makes
each of the investment representations set forth in Section 5.3 of the Agreement, and (2) agrees to be bound by all the terms and conditions of
the Operating Agreement.
IN WITNESS WHEREOF, this Joinder Agreement has been executed by an authorized representative of the undersigned, as of
May 8, 2007.
By:
Title:
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Exhibit 4.1
OWENS CORNING
as Issuer,
Each of the SUBSIDIARY GUARANTORS party hereto
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee
Indenture
Dated as of June 2, 2009
TABLE OF CONTENTS
PAGE
ARTICLE 1
Section 1.01.
Section 1.02.
Section 1.03.
Section 1.04.
ARTICLE 2
Section 2.01.
Section 2.02.
Section 2.03.
Section 2.04.
Section 2.05.
Section 2.06.
Section 2.07.
Section 2.08.
Section 2.09.
Section 2.10.
Section 2.11.
Section 2.12.
Section 2.13.
Section 2.14.
ARTICLE 3
Section 3.01.
Section 3.02.
Section 3.03.
Section 3.04.
Section 3.05.
ARTICLE 4
Section 4.01.
Section 4.02.
Section 4.03.
Section 4.04.
Section 4.05.
Section 4.06.
Section 4.07.
Section 4.08.
Section 4.09.
Section 4.10.
Section 4.11.
Section 4.12.
DEFINITIONS AND INCORPORATION BY REFERENCE
Definitions
Other Definitions
Incorporation by Reference of Trust Indenture Act
Rules of Construction
1
10
10
10
THE SECURITIES
Form and Dating
Execution and Authentication
Amount Unlimited; Issuable in Series
Denomination and Date of Securities; Payments of Interest
Registrar and Paying Agent; Agents Generally
Paying Agent to Hold Money in Trust
Transfer and Exchange
Replacement Securities
Outstanding Securities
Temporary Securities
Cancellation
CUSIP Numbers
Defaulted Interest
Series May Include Tranches
11
11
14
16
17
18
19
21
22
23
24
24
24
24
REDEMPTION
Applicability of Article
Notice of Redemption; Partial Redemptions
Payment Of Securities Called For Redemption
Exclusion of Certain Securities from Eligibility for Selection for Redemption
Mandatory and Optional Sinking Funds
25
25
26
27
27
COVENANTS
Payment of Securities
Maintenance of Office or Agency
Compliance Certificate
Taxes
Stay, Extension and Usury Laws
Securityholders’ Lists
Reports by the Company
Additional Amounts
Limitation on Mortgages and Liens
Corporate Existence
Limitation on Sale and Leaseback Transactions
Future Subsidiary Guarantors
30
30
31
32
32
32
32
32
33
33
34
34
ii
Section 4.13.
ARTICLE 5
Section 5.01.
Section 5.02.
ARTICLE 6
Section 6.01.
Section 6.02.
Section 6.03.
Section 6.04.
Section 6.05.
Section 6.06.
Section 6.07.
Section 6.08.
Section 6.09.
Section 6.10.
Section 6.11.
Section 6.12.
Section 6.13.
Section 6.14.
ARTICLE 7
Section 7.01.
Section 7.02.
Section 7.03.
Section 7.04.
Section 7.05.
Section 7.06.
Section 7.07.
Section 7.08.
Section 7.09.
Section 7.10.
Section 7.11.
Section 7.12.
Waiver Of Certain Covenants
34
CONSOLIDATION, MERGER OR SALE OF ASSETS
Consolidation, Merger or Sale of Assets by the Company
Successor Corporation Substituted
35
35
DEFAULT AND REMEDIES
Events of Default
Acceleration
Other Remedies
Waiver of Past Defaults
Control by Majority
Limitation on Suits
Rights of Holders to Receive Payment
Collection Suit by Trustee
Trustee May File Proofs of Claim
Application of Proceeds
Restoration of Rights and Remedies
Undertaking for Costs
Rights and Remedies Cumulative
Delay or Omission not Waiver
36
38
39
39
39
39
40
40
40
41
41
41
41
42
TRUSTEE
General
Certain Rights of Trustee
Individual Rights of Trustee and Others
Trustee’s Disclaimer
Notice of Default
Reports by Trustee to Holders
Compensation and Indemnity
Replacement of Trustee
Acceptance of Appointment by Successor
Successor Trustee By Merger, Etc.
Eligibility
Money Held in Trust
42
42
44
44
44
45
45
46
47
48
48
48
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 8.01.
Section 8.02.
Section 8.03.
Section 8.04.
Section 8.05.
Section 8.06.
Section 8.07.
Section 8.08.
Satisfaction and Discharge of Indenture
Application by Trustee of Funds Deposited for Payment of Securities
Repayment of Moneys Held by Paying Agent
Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years
Defeasance and Discharge of Indenture
Defeasance of Certain Obligations
Reinstatement
Indemnity
iii
48
50
50
50
50
51
53
53
Section 8.09.
Section 8.10.
ARTICLE 9
Section 9.01.
Section 9.02.
Section 9.03.
Section 9.04.
Section 9.05.
Section 9.06.
ARTICLE 10
Section 10.01.
Section 10.02.
Section 10.03.
Section 10.04.
Section 10.05.
Section 10.06.
Section 10.07.
Section 10.08.
Section 10.09.
ARTICLE 11
Section 11.01.
Section 11.02.
Section 11.03.
Section 11.04.
Section 11.05.
Section 11.06.
Section 11.07.
Section 11.08.
Section 11.09.
Section 11.10.
Section 11.11.
Section 11.12.
Section 11.13.
Section 11.14.
Section 11.15.
Section 11.16.
Section 11.17.
Excess Funds
Qualifying Trustee
53
53
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Amendments Without Consent of Holders
Amendments with Consent of Holders
Revocation and Effect of Consent
Notation on or Exchange of Securities
Trustee to Sign Amendments, Etc.
Conformity With Trust Indenture Act
53
55
56
56
56
57
SUBSIDIARY GUARANTORS
Guarantees
Limitation on Liability
Successors and Assigns
No Waiver
Modification
Execution and Delivery of Note Guarantee
Subsidiary Guarantors May Consolidate, etc., on Certain Terms
Release of Subsidiary Guarantor
Contribution
57
58
59
59
59
59
59
60
61
MISCELLANEOUS
Trust Indenture Act of 1939
Notices
Certificate and Opinion as to Conditions Precedent
Statements Required in Certificate or Opinion
Forms of Documents Delivered to Trustee
Evidence of Ownership
Rules by Trustee, Paying Agent or Registrar
Payment Date Other Than a Business Day
Governing Law
No Adverse Interpretation of Other Agreements
Successors
Duplicate Originals
Separability
Table of Contents, Headings, Etc.
Incorporators, Stockholders, Officers and Directors of Company Exempt from Individual Liability
Force Majeure
Communication by Holders of Securities with Other Holders of Securities
iv
61
61
62
63
63
63
64
64
64
65
65
65
65
65
65
65
66
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section
310(a)(1)
(a)(2)
(a)(3)
(a)(4)
(a)(5)
(b)
(c)
311(a)
(b)
(c)
312(a)
(b)
(c)
313(a)
(b)(1)
(b)(2)
(c)
(d)
314(a)
(b)
(c)(1)
(c)(2)
(c)(3)
(d)
(e)
(f)
315(a)
(b)
(c)
(d)
(e)
316(a) (last sentence)
(a)(1)(A)
(a)(1)(B)
(a)(2)
(b)
(c)
317(a)(1)
(a)(2)
(b)
318(a)
(b)
(c)
N.A. means not applicable.
*
This Cross Reference Table is not part of the Indenture.
Indenture Section
7.11
7.11
N.A.
N.A.
7.11
7.03
N.A.
7.03
7.03
N.A.
4.06
11.17
11.17
7.06
N.A.
7.06; 7.07
7.06; 12.02
7.06
4.03; 4.07
N.A.
11.03
11.03
N.A.
N.A.
11.04
N.A.
7.01
7.05; 11.02
7.01
7.01
6.12
2.09
6.05
6.04
N.A.
6.07
2.13
6.08
6.09
2.06
11.01
N.A.
11.01
INDENTURE, dated as of June 2, 2009, between OWENS CORNING, a Delaware corporation (the “ Company ”), the Subsidiary
Guarantors listed on the signature pages hereto and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association
duly incorporated and existing under the laws of the United States of America (the “ Trustee ”).
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to time of its senior debentures, notes or other evidences of
indebtedness to be issued in one or more series (the “Securities”) up to such principal amount or amounts as may from time to time be
authorized in accordance with the terms of this Indenture and to provide, among other things, for the general terms and conditions for the
authentication, delivery and administration thereof, the Company has duly authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the holders thereof, the Company and the Subsidiary Guarantors
mutually covenant and agree with the Trustee for the equal and proportionate benefit of the respective holders from time to time of the
Securities or of any and all series thereof and of the coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
The following terms (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section. All other terms used in this
Indenture which are defined (either directly or by reference) in the Trust Indenture Act (except as herein otherwise expressly provided or unless
the context otherwise requires) shall have the meanings so assigned to such terms.
Section 1.01. Definitions.
“ 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” (including, with correlative meanings, the terms
“controlling”, “controlled” and “under common control with”) when used with respect to any specified Person means the possession, directly
or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of
voting securities, by contract or otherwise; provided that beneficial ownership of 10% or more of the Voting Stock of a Person will be deemed
to be control.
“ Agent ” means any Registrar, co-registrar, Paying Agent, additional paying agent, Calculation Agent, transfer agent or Authenticating
Agent.
“ Attributable Debt ” in respect of a Sale and Leaseback Transaction means, at the time of the determination, the present value of the
obligation of the lessee for net rental payments during the remaining term of the lease included in such Sale and Leaseback Transaction
including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be
calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP.
“ Authorized Newspaper ” means a newspaper (in the City of New York, which, if practicable, shall be The Wall Street Journal (U.S.
Edition) or, with respect to any Security the interest on which is based on the offered quotations in the interbank Eurodollar Market for debtor
deposits, in London, which, if practicable, shall be the Financial Times (U.K. Edition)) published at least once a day for at least five days in
each calendar week and of general circulation in the City of New York or London, as applicable. If it shall be impractical in the opinion of the
Trustee to make any publication of any notice required hereby in an Authorized Newspaper, any publication or other notice in lieu thereof
which is made or given with the approval of the Trustee shall constitute a sufficient publication of such notice.
“ Bankruptcy Law ” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
“ Board of Directors ” means:
(1) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act for the
corporation;
(2) with respect to a partnership, the Board of Directors of the general partner of the partnership;
(3) with respect to a limited liability company, the managing member or members or any controlling committee of managing
members thereof; and
(4) with respect to any other Person, the board or committee of such Person serving a similar function.
“ Board Resolution ” means one or more resolutions of the Board of Directors or any authorized committee thereof, certified by the
secretary or an assistant secretary of the Company to have been duly adopted and to be in full force and effect on the date of certification, and
delivered to the Trustee.
“ Business Day ” means, unless otherwise provided with respect to a series of Securities, any day other than a Legal Holiday.
“ Capital Lease Obligation ” means, at the time any determination is to be made, the amount of the liability in respect of a capital lease
that would at that time be required to be
2
capitalized on a balance sheet prepared in accordance with GAAP.
“ Capital Stock ” means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership
interests; and
(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person;
but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right
of participation with Capital Stock.
“ Calculation Agent ” means a financial institution appointed by the Company to calculate the interest rate payable in respect of each
interest period on any floating rate notes issued pursuant to this Indenture.
“ Commission ” means the United States Securities and Exchange Commission, as from time to time constituted, created under the
Exchange Act or, if at any time after the execution and delivery of this instrument such Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“ Company ” means Owens Corning, a Delaware corporation, until a successor replaces it pursuant to Article 5 of this Indenture and
thereafter means the successor.
“ Consolidated Net Tangible Assets ” means the aggregate amount of assets of the Company and its Subsidiaries (less applicable
reserves and other properly deductible items) after deducting therefrom (a) all current liabilities (excluding any current liabilities constituting
Funded Debt by reason of being extendible or renewable), (b) all goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles and (c) minority equity interests in any Subsidiary of the Company that is not a Wholly-Owned Subsidiary,
all as set forth on or included in the balance sheet of the Company and its Subsidiaries for its most recent completed fiscal quarter for which
internal financial statements are available computed in accordance with GAAP.
“ Corporate Trust Office ” means the office of the Trustee at which the corporate trust business of the Trustee is principally
administered, which at the date of this Indenture is located at the offices of Wells Fargo Bank, National Association, Corporate Trust & Escrow
Services, 230 W. Monroe Street, Suite 2900, Chicago, Illinois 60606.
“ Credit Agreement ” means the Credit Agreement dated as of October 31, 2006, among the Company, the lending institutions party
thereto and Citibank N.A., as administrative agent, and any related notes, Guarantees, collateral documents, instruments and agreements
executed in
3
connection therewith, and in each case, as amended, restated, modified, renewed, refunded, replaced (whether upon termination or otherwise)
or refinanced in whole or in part from time to time.
“ Default ” means any event that is, or after notice or passage of time or both would be, an Event of Default.
“ Depositary ” means, with respect to the Securities of any series issuable or issued, in whole or in part, in the form of one or more
Registered Global Securities, the Person designated as Depositary by the Company pursuant to Section 2.03 until a successor Depositary shall
have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is
then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Registered Global Securities of that series.
“ Domestic Subsidiary ” means, as to any Person, any Subsidiary of such Person incorporated or organized in the United States or any
state or territory thereof.
“ Exchange Act ” means the United States Securities Exchange Act of 1934, as amended.
“ Fair Market Value ” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not
involving distress or necessity of either party, determined in good faith by the Board of Directors of the Company (unless otherwise provided in
this Indenture).
“ Funded Debt ” means all Indebtedness, whether or not evidenced by a bond, debenture, note or similar instrument or agreement, of any
Person, for the repayment of borrowed money having a maturity of more than 12 months from the date of its creation or having a maturity of
less than 12 months from the date of its creation but by its terms being renewable or extendible beyond 12 months from such date at the option
of such Person. For the purpose of determining “Funded Debt” of any Person, there will be excluded any particular Indebtedness if, on or prior
to the maturity thereof, there will have been deposited with the proper depository in trust the necessary funds for the payment, redemption or
satisfaction of such Indebtedness.
“ GAAP ” means, as to a particular Person, such accounting principles as, in the opinion of the independent public accountants regularly
retained by such Person, conform at the time to accounting principles generally accepted in the United States.
“ Governmental Authority ” means any nation or government, any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“ Guarantee ” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business,
direct or indirect, in any manner, including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements
to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise).
4
“ Guaranteed Obligations ” means the principal, premium, if any, and interest on the Securities when due, whether at stated maturity, by
acceleration or otherwise, and all other obligations, monetary or otherwise, of the Company under this Indenture and the Securities (including
compensation, expenses and indemnification).
“ Hedging Obligations ” means, with respect to any specified Person, the obligations of such Person under:
(1) interest rate agreements, interest rate cap agreements and interest rate collar agreements or other similar agreements or
arrangements;
(2) foreign exchange contracts and currency protection agreements or other similar agreements or arrangements; and
(3) any commodity futures contract, commodity option or other similar agreements or arrangements.
“ Holder ” or “ Securityholder ” means the registered holder of any Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
“ Indebtedness ” means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect
thereof);
(3) in respect of bankers’ acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an
accrued expense or trade payable; or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance
sheet of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all indebtedness of others
secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent
not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount; and;
5
(2) the principal amount of the Indebtedness, together with any interest on the Indebtedness that is more than 30 days past due, in
the case of any other Indebtedness.
“ Indenture ” means this Indenture as originally executed and delivered or as it may be amended or supplemented from time to time by
one or more indentures supplemental to this Indenture entered into pursuant to the applicable provisions of this Indenture and shall include the
forms and terms of the Securities of each series established as contemplated pursuant to Sections 2.01 and 2.03.
“ Legal Holiday ” means a Saturday, a Sunday or a day on which banking institutions in the City of New York or at a place of payment
are authorized by law, regulation or executive order to remain closed.
“ Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to
give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
“ Note Guarantee ” means the Guarantee by each Subsidiary Guarantor of the Company’s obligations under this Indenture and the
Securities of any series, executed pursuant to the provisions of this Indenture.
“ Obligations ” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable
under the documentation governing any Indebtedness.
“ Officer ” means, with respect to the Company, the Chairman of the Board, the Chief Executive Officer, the President, the Chief
Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary, any Assistant Secretary or
any Vice-President of such Person. “Officer” of a Subsidiary Guarantor has a correlative meaning.
“ Officers’ Certificate ” means a certificate signed on behalf of the Company by two Officers of the Company, or by an Officer of the
Company and either an Assistant Treasurer or an Assistant Secretary of the Company that meets the requirements of Section 11.04 hereof.
“ Opinion of Counsel ” means a written opinion signed by legal counsel, who may be an employee of or counsel to the Company, a
Subsidiary of the Company or the Trustee, and who is reasonably acceptable to the Trustee. Each such opinion shall comply with Section 314
of the Trust Indenture Act, if applicable, and include the statements provided in Section 11.04, if and to the extent required thereby.
“ Original Issue Date ” of any Security (or portion thereof) means the earlier of (a) the date of authentication of such Security or (b) the
date of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or
substitution.
6
“ Original Issue Discount Security ” means any Security that provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 6.02.
“ Periodic Offering ” means an offering of Securities of a series from time to time, the specific terms of which Securities, including,
without limitation, the rate or rates of interest, if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company or its agents upon the issuance of such Securities.
“ Permitted Liens ” means:
(1) Liens existing on the date of this Indenture;
(2) Liens in favor of the Company or any of its Subsidiaries;
(3) Liens on property of a Person existing at the time such Person is merged with or into or consolidated with the Company or any
Subsidiary of the Company; provided that such Liens were in existence prior to the contemplation of such merger or consolidation and do not
extend to any assets other than those of the Person merged into or consolidated with the Company or the Subsidiary;
(4) Liens on property existing at the time of acquisition of the property by the Company or any Subsidiary of the Company, provided that
such Liens were in existence prior to the contemplation of such acquisition;
(5) Liens to secure the performance of statutory or regulatory obligations, surety or appeal bonds, performance bonds or other obligations
of a like nature incurred in the ordinary course of business;
(6) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in
conformity with GAAP has been made therefor;
(7) any extension, renewal or replacement of any Lien referred to above; provided that (a) such extension, renewal or replacement Lien is
limited to the same property that secured the original Lien (plus improvements and accessions to such property) and (b) the Indebtedness
secured by the new Lien is not greater than the Indebtedness secured by the Lien that is extended, renewed or replaced; and
(8) zoning restrictions, easements, rights-of-way, restrictions on the use of property, other similar encumbrances incurred in the ordinary
course of business and minor irregularities of title, which do not materially interfere with the ordinary conduct of the business of the Company
and its Subsidiaries taken as a whole.
7
“ Person ” means an individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust,
unincorporated organization, Governmental Authority or other entity of whatever nature.
“ Principal Property ” means any manufacturing plant, warehouse or other similar facility or any parcel of real estate or group of
contiguous parcels of real estate owned by the Company or any of its Subsidiaries (whether owned on the date of this Indenture or thereafter
acquired) that has a gross book value on the date as of which the determination is being made, without deduction of any depreciation reserves,
exceeding 1% of Consolidated Net Tangible Assets.
“ Registered Global Security ” means a Security evidencing all or a part of a series of Registered Securities, issued to the Depositary for
such series in accordance with Section 2.02, and bearing the legend prescribed in Section 2.02.
“ Registered Security ” means any Security registered on the Security Register (as defined in Section 2.05).
“ Responsible Officer ” when used with respect to the Trustee, shall mean an officer of the Trustee in the Corporate Trust Office, having
direct responsibility for the administration of this Indenture, and also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer’s knowledge of and familiarity with the particular subject.
“ Sale and Leaseback Transaction ” means any arrangement with any Person providing for the leasing by the Company or any
Subsidiary of the Company of any Principal Property which has been or is to be sold or transferred by the Company or any such Subsidiary to
such Person with the intention of taking back a lease of such property, except for temporary leases for a term (including renewals at the option
of the lessee) of not more than three years and except for leases between the Company and a Subsidiary or between Subsidiaries of the
Company.
“ Security ” or “ Securities ” means any of the securities, as described in the first paragraph of the recitals hereof, that are authenticated
and delivered under this Indenture and, unless the context indicates otherwise, shall include any coupon appertaining thereto.
“ Significant Subsidiary ” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date of this Indenture.
“ Subsidiary ” means, with respect to any specified Person:
(1) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that
effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business
entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a
combination thereof); and
8
(2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or
(b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).
“ Subsidiary Guarantors ” means each of:
(1) the Company’s current and future Domestic Subsidiaries that is a borrower or a guarantor under the Credit Agreement; and
(2) any other Subsidiary of the Company that executes a Note Guarantee in accordance with the provisions of this Indenture,
and their respective successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the
provisions of this Indenture.
“ Trust Indenture Act ” means the United States Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb), as it may
be amended from time to time.
“ Trustee ” means Wells Fargo Bank, National Association until a successor replaces it in accordance with the provisions of Article 7
and thereafter shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person,
“Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
“ Unregistered Security ” means any Security other than a Registered Security.
“ U.S. Government Obligations ” means securities that are (i) direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (ii) obligations of an agency or instrumentality of the United States of America the full and timely
payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment
of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest
on or principal of the U.S. Government Obligation evidenced by such depository receipt.
“ Voting Stock ” of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the
election of the Board of Directors of such Person.
“ Wholly-Owned Subsidiary ” means, as to any Person, (i) any corporation 100% of whose capital stock (other than director’s
qualifying shares and/or other nominal amounts of shares required by applicable law to be held by Persons other than such Person) is at the
time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any partnership, limited liability company,
association, joint venture or other entity in which
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such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such time.
“ Yield to Maturity ” means, as the context may require, the yield to maturity (i) on a series of Securities or (ii) if the Securities of a
series are issuable from time to time, on a Security of such series, calculated at the time of issuance of such series in the case of clause (i) or at
the time of issuance of such Security of such series in the case of clause (ii), or, if applicable, at the most recent redetermination of interest on
such series or on such Security, and calculated in accordance with the constant interest method or such other accepted financial practice as is
specified in the terms of such Security.
Section 1.02. Other Definitions . Each of the following terms is defined in the section set forth opposite such term:
Term
Section
Authenticating Agent
cash transaction
Dollars
Event of Default
incur
mandatory sinking fund payment
optional sinking fund payment
Paying Agent
Payment Default
record date
Registrar
Security Register
self-liquidating paper
sinking fund payment date
tranche
2.02
7.03
4.02
6.01
4.09
3.05
3.05
2.05
6.01
2.04
2.05
2.05
7.03
3.05
2.14
Section 1.03. Incorporation by Reference of Trust Indenture Act . Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this Indenture. The following terms used in this Indenture that are defined
by the Trust Indenture Act have the following meanings:
“ indenture securities ” means the Securities and the Subsidiary Guarantees; and
“ obligor ” on the indenture securities means the Company, each Subsidiary Guarantor and any other obligor on the Securities.
All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by reference in the Trust Indenture Act to
another statute or defined by a rule of the Commission under the Trust Indenture Act and not otherwise defined herein have the meanings
assigned to them therein.
Section 1.04. Rules of Construction . Unless the context otherwise requires:
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(a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(b) “or” is not exclusive;
(c) words in the singular include the plural, and words in the plural include the singular;
(d) “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section
or other subdivision of this Indenture;
(e) all references to Sections or Articles refer to Sections or Articles of this Indenture unless otherwise indicated; and
(f) use of masculine, feminine or neuter pronouns should not be deemed a limitation, and the use of any such pronouns should be
construed to include, where appropriate, the other pronouns.
ARTICLE 2
THE SECURITIES
Section 2.01. Form and Dating . The Securities of each series shall be substantially in such form or forms (not inconsistent with this
Indenture) as shall be established by or pursuant to one or more Board Resolutions or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have
imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as
may be required to comply with any law, or with any rules of any securities exchange or usage, all as may be determined by the officers
executing such Securities as evidenced by their execution of the Securities. Unless otherwise so established, Unregistered Securities shall have
coupons attached.
Section 2.02. Execution and Authentication . An Officer shall execute the Securities and the coupons appertaining thereto, if any, for the
Company by facsimile or manual signature, which may be imprinted or otherwise reproduced on the Securities, in the name and on behalf of
the Company. If an Officer whose signature is on a Security or coupon appertaining thereto no longer holds that office at the time the Security
is authenticated, the Security and such coupon shall nevertheless be valid.
The Trustee may appoint an authenticating agent (the “ Authenticating Agent ”) to authenticate Securities. The Authenticating Agent
may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes
authentication by such Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times meet the
qualifications of the Trustee required by Article 7 of this Indenture. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the previous sentence, such Authenticating Agent shall resign immediately.
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If an Authenticating Agent consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to,
another corporation or national banking association, the resulting, surviving or transferee corporation or national banking association without
any further act shall be an Authenticating Agent under this Indenture with the same effect as if the successor Authenticating Agent had been
appointed as an Authenticating Agent as provided herein, provided such successor shall otherwise be eligible to be an Authenticating Agent
under this Indenture.
A Security and the coupons appertaining thereto shall not be valid or obligatory for any purpose or be entitled to the benefits of this
Indenture until the Trustee or Authenticating Agent executes the certificate of authentication on the Security or on the Security to which such
coupon appertains by an authorized officer. The signature shall be conclusive evidence that the Security or the Security to which the coupon
appertains has been duly authenticated and delivered under this Indenture.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series
having attached thereto appropriate coupons, if any, executed by the Company to the Trustee for authentication together with the applicable
documents referred to below in this Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the written
order of the Company, signed by an Officer, or pursuant to such procedures acceptable to the Trustee, without any further action by the
Company. In authenticating such Securities, the Trustee shall be entitled to receive prior to the authentication of any Securities of such series
each of the following, and (subject to Article 7) shall be fully protected in relying upon, unless and until such documents have been superseded
or revoked:
(a) any Board Resolution and/or executed supplemental indenture referred to in Sections 2.01 and 2.03 by or pursuant to which the
forms and terms of the Securities of that series were established;
(b) an Officers’ Certificate stating that all covenants and conditions precedent to the execution, authentication and delivery of the
Securities have been complied with, and no Default or Event of Default has occurred and is continuing, and setting forth the form or
forms and terms of the Securities, stating that the form or forms and terms of the Securities of such series have been, or, in the case of a
Periodic Offering, will be when established in accordance with such procedures as shall be referred to therein, established in compliance
with this Indenture; and
(c) an Opinion of Counsel substantially to the following effect, which Opinion of Counsel may contain such assumptions,
qualifications and limitations as such counsel shall reasonably deem appropriate: (i) the form or forms and terms of the Securities of such
series have been, or, in the case of a Periodic Offering, will be when established in accordance with such procedures as shall be referred
to therein, established in compliance with this Indenture and the supplemental indenture, to the extent applicable, and (ii) the Indenture
and such Securities have been duly authorized and, if executed and authenticated in accordance with the provisions of the Indenture and
delivered and duly paid for, will be entitled to the benefits of the Indenture and will
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constitute valid and legally binding obligations of the Company and each Subsidiary Guarantor, enforceable against the Company and
each Subsidiary Guarantor in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, receivership,
moratorium and other similar laws affecting creditors’ rights generally and general principles of equity (regardless of whether
enforceability is considered in a proceeding of equity or law).
The Trustee shall not be required to authenticate such Securities if the Trustee reasonably determines that the issue of such Securities
pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture in any material
respect or may not be lawfully taken.
Notwithstanding the provisions of Sections 2.01 and this Section 2.02, if, in connection with a Periodic Offering, all Securities of a series
are not to be originally issued at one time, it shall not be necessary to deliver the Board Resolution otherwise required pursuant to Section 2.01
or the written order, Officers’ Certificate and Opinion of Counsel otherwise required pursuant to this Section 2.02 at or prior to the
authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any
of such Securities, the forms and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel
and the other documents delivered pursuant to Section 2.01 and this Section 2.02, as applicable, in connection with the first authentication of
Securities of such series.
If the Company shall establish pursuant to or as contemplated by Section 2.03 that the Securities of a series or a portion thereof are to be
issued in the form of one or more Registered Global Securities, then the Company shall execute and the Trustee shall authenticate and deliver
one or more Registered Global Securities in temporary or permanent form that (i) shall represent and shall be denominated in an amount equal
to the aggregate principal amount of all of the Securities of such series issued in such form and not yet cancelled, (ii) shall be registered in the
name of the Depositary for such Registered Global Security or Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary’s instructions and (iv) shall bear a legend substantially to the following effect:
“THIS SECURITY IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.”
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Section 2.03. Amount Unlimited; Issuable in Series . The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
There shall be established in or pursuant to a Board Resolution and set forth in an Officers’ Certificate, or established in one or more
indentures supplemental hereto, prior to the initial issuance of Securities of any series, subject to the last sentence of this Section 2.03:
(a) the designation of the Securities of the series, which shall distinguish the Securities of the series from the Securities of all other
series, except to the extent that additional Securities of an existing series are being, or will be, issued;
(b) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, or upon
redemption of, other Securities of the series pursuant hereto); provided, however, that the authenticated aggregate principal amount of
such series may from time to time be increased above such amount by Board Resolution to such effect;
(c) the date or dates on which the principal of the Securities of the series is payable, or the method of determination thereof, (which
date or dates may be fixed or extendible);
(d) the rate or rates (which may be fixed or variable), or the method of determination thereof, at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest shall accrue, or the method of determination thereof, on which such
interest shall be payable and (in the case of Registered Securities) on which a record shall be taken for the determination of Holders to
whom interest is payable and/or the method by which such rate or rates or date or dates shall be determined;
(e) if other than as provided in Section 4.02, the place or places where the principal of, premium, if any, and any interest, if any, on
Securities of the series shall be payable, any Registered Securities of the series may be presented for registration of transfer or for
exchange, notices, demands to or upon the Company in respect of the Securities of the series and this Indenture may be served and notice
to Holders may be published;
(f) the right, if any, of the Company to redeem Securities of the series, in whole or in part, at its option and the period or periods
within which, the price or prices at which and any terms and conditions upon which Securities of the series may be so redeemed, pursuant
to any sinking fund or otherwise;
(g) the obligation, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or
periods within which, the currency or currencies in which and any of the terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
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(h) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall
be issuable;
(i) if other than the principal amount thereof, the portion of the principal amount of any of the Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof;
(j) if other than the coin or currency in which the Securities of the series are denominated, the coin or currency in which payment of
the principal of, premium, if any, or interest on the Securities of the series shall be payable or if the amount of payments of principal of,
premium, if any, and/or interest on the Securities of the series may be determined with reference to an index based on a coin or currency
other than that in which the Securities of the series are denominated, the manner in which such amounts shall be determined;
(k) if other than the currency of the United States of America, the currency or currencies or currency unit or units, including
composite currencies, in which payment of the principal of, premium, if any, and interest, if any, on the Securities of the series shall be
payable, and the manner in which any such currencies shall be valued against other currencies in which any other Securities shall be
payable;
(l) whether the Securities of the series or any portion thereof will be issuable as Registered Securities (and if so, whether such
Securities will be issuable as Registered Global Securities) or Unregistered Securities (with or without coupons) (and if so, whether such
Securities will be issued in temporary or permanent global form), or any combination of the foregoing, any restrictions applicable to the
offer, sale or delivery of Unregistered Securities or the payment of interest thereon and, if other than as provided herein, the terms upon
which Unregistered Securities of any series may be exchanged for Registered Securities of such series and vice versa;
(m) whether and under what circumstances the Company will pay additional amounts on the Securities of the series held by a
person who is not a U.S. person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the
Company will have the option to redeem such Securities rather than pay such additional amounts;
(n) if the Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms
of such certificates, documents or conditions;
(o) any trustees, depositaries, authenticating or paying agents, transfer agents or the registrar or any other agents with respect to the
Securities of the series, if other than the Trustee;
(p) provisions, if any, for the legal defeasance or covenant defeasance of the Securities of the series (including provisions permitting
defeasance or covenant defeasance of less than all Securities of the series), which provisions may be in addition
15
to, in substitution for, or in modification of (or any combination of the foregoing) the provisions of Article 8;
(q) if the Securities of the series are issuable in whole or in part as one or more Registered Global Securities or Unregistered
Securities in global form, the identity of the Depositary or common Depositary for such Registered Global Security or Securities or
Unregistered Securities in global form;
(r) any deletions from or modifications of or additions to the Events of Default or covenants with respect to the Securities of the
series and any other change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof
due and payable pursuant to this Indenture; and
(s) any other terms of the Securities of the series and any other deletions from or modifications of or additions to this Indenture in
respect of such Securities.
Each Depositary designated pursuant to this Section 2.03 must, at the time of its designation and at all times while it serves as Depositary,
be either a clearing agency registered under the Exchange Act and any other applicable statute or regulation or a foreign clearing agency
regulated by a foreign financial regulatory authority as defined in Section 3(a)(52) of the Exchange Act, including, without limitation,
Euroclear Bank S.A./N.V. and Clearstream Banking, société anonyme .
All Securities of any one series and coupons, if any, appertaining thereto shall be substantially identical, except in the case of Registered
Securities as to date and denomination, except in the case of any Periodic Offering and except as may otherwise be provided by or pursuant to
the Board Resolution referred to above or as set forth in any such indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to such
Board Resolution or in any such indenture supplemental hereto and any forms and terms of Securities to be issued from time to time may be
completed and established from time to time prior to the issuance thereof by procedures described in such Board Resolution or supplemental
indenture.
Unless otherwise expressly provided with respect to a series of Securities, the aggregate principal amount of a series of Securities may be
increased and additional Securities of such series may be issued up to the maximum aggregate principal amount authorized with respect to such
series as increased.
Section 2.04. Denomination and Date of Securities; Payments of Interest . The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as contemplated by Section 2.03 or, if not so established with respect to
Securities of any series, in denominations of $1,000 and any integral multiple thereof. The Securities of each series shall be numbered, lettered
or otherwise distinguished in such manner or in accordance with such plan as the Officers of the Company executing the same may determine,
as evidenced by their execution thereof.
16
Unless otherwise specified with respect to a series of Securities, each Security shall be dated the date of its authentication. The Securities
of each series shall bear interest, if any, from the date, and such interest and shall be payable on the dates, established as contemplated by
Section 2.03.
The person in whose name any Registered Security of any series is registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered Security subsequent to the record date and prior to such interest
payment date, except if and to the extent the Company shall default in the payment of the interest due on such interest payment date for such
series, in which case the provisions of Section 2.13 shall apply. The term “record date” as used with respect to any interest payment date
(except a date for payment of defaulted interest) for the Securities of any series shall mean the date specified as such in the terms of the
Registered Securities of such series established as contemplated by Section 2.03, or, if no such date is so established, the fifteenth day next
preceding such interest payment date, whether or not such record date is a Business Day.
Except as the Company and the Trustee may otherwise agree, the Company shall promptly deliver to the Trustee following the end of
each calendar year a written notice specifying the amount of original issue discount accrued on any outstanding Securities that are Original
Issue Discount Securities or otherwise are issued with more than a de minimis amount of original issue discount (as defined in Section 1273(a)
of the Internal Revenue Code of 1986, as amended) for such calendar year, including daily rates and accrual periods, and such other
information relating to original issue discount reasonably necessary in order to complete any required tax information reports for such calendar
year.
Section 2.05. Registrar and Paying Agent; Agents Generally . The Company shall maintain an office or agency where Securities may be
presented for registration, registration of transfer or for exchange (the “ Registrar ”) and an office or agency where Securities may be
presented for payment (the “ Paying Agent ”). The Company shall cause the Registrar to keep a register of the Registered Securities and of
their registration, transfer and exchange (the “ Security Register ”). The Company may have one or more additional Paying Agents or transfer
agents with respect to any series.
The Company shall enter into an appropriate agency agreement with any Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture and the Trust Indenture Act that relate to such Agent. The Company shall give prompt written notice
to the Trustee of the name and address of any Agent and any change in the name or address of an Agent. If the Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such. The Company may remove any Agent upon written notice to such Agent and the
Trustee; provided that no such removal shall become effective until (i) the acceptance of an appointment by a successor Agent to such Agent as
evidenced by an appropriate agency agreement entered into by the Company and such successor Agent and delivered to the Trustee or
(ii) notification to the Trustee that the Trustee shall serve as such Agent until the appointment of a successor Agent in accordance with clause
(i) of this proviso. The Company or any Affiliate of the Company may act as Paying Agent or Registrar; provided that neither the Company nor
an Affiliate of the Company shall act as Paying Agent in connection with the defeasance of the Securities or the discharge of this Indenture
under Article 8.
17
The Company initially appoints the Trustee as Registrar, Paying Agent, Calculation Agent and Authenticating Agent. If, at any time, the
Trustee is not the Registrar, the Registrar shall make available to the Trustee ten days prior to each interest payment date and at such other
times as the Trustee may reasonably request the names and addresses of the Holders as they appear in the Security Register.
Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or
of the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the
purpose of receiving payment of principal of (and premium, if any) and (subject to Section 2.13) interest on such Registered Security and for
all other purposes whatsoever, whether or not such Registered Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of any Unregistered Security and the bearer
of any coupon as the absolute owner of such Unregistered Security or coupon for the purpose of receiving payment thereof or on account
thereof and for all other purposes whatsoever, whether or not such Unregistered Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests, or any notice which is permitted or required to be given under the
Indenture, any consent given or other action taken by the Depositary as Registered Holder, or any selection by the Depositary of any Person to
receive payment of principal, premium, if any, interest or other amounts payable on the Securities.
Section 2.06. Paying Agent to Hold Money in Trust . Not later than 10:00 a.m. New York City time on each due date or, in the case of
Unregistered Securities, 10:00 a.m. New York City time on the Business Day prior to the due date, of any principal, interest or premium, if any,
on any Securities, the Company shall deposit with the Paying Agent money in immediately available funds sufficient to pay such principal,
interest or premium becoming due. The Company shall require each Paying Agent other than the Trustee to agree in writing that such Paying
Agent shall hold in trust for the benefit of the Holders of such Securities or the Trustee all money held by the Paying Agent for the payment of
principal of and interest or premium, if any, on such Securities and shall promptly notify the Trustee of any Default by the Company in making
any such payment. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and account for any funds
disbursed, and the Trustee may at any time during the continuance of any Payment Default, upon written request to a Paying Agent, require
such Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent shall
have no further liability for the money so paid over to the Trustee. If the Company or any Affiliate of the Company acts as Paying Agent, it
shall, on or before each due date of any principal, interest or premium on any Securities, segregate and hold in a separate trust fund for the
benefit of the Holders thereof a sum of money sufficient to pay such principal, interest or premium so becoming due until such sum of money
18
shall be paid to such Holders or otherwise disposed of as provided in this Indenture, and shall promptly notify the Trustee in writing of its
action or failure to act as required by this Section 2.06.
Section 2.07. Transfer and Exchange . Unregistered Securities (except for any temporary global Unregistered Securities) and coupons
(except for coupons attached to any temporary global Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of any series (other than a Registered Global Security, except as set forth
below) may be exchanged for a Registered Security or Registered Securities of such series and like tenor, of any authorized denominations and
like aggregate principal amount and maturity, upon surrender of such Registered Securities to be exchanged at the agency of the Company that
shall be maintained for such purpose in accordance with Section 2.05 and upon payment, if the Company shall so require, of the charges
hereinafter provided. If the Securities of any series are issued in both registered and unregistered form, except as otherwise established pursuant
to Section 2.03, at the option of the Holder thereof, Unregistered Securities of any series may be exchanged for Registered Securities of such
series and tenor having authorized denominations and an equal aggregate principal amount, upon surrender of such Unregistered Securities to
be exchanged at the agency of the Company that shall be maintained for such purpose in accordance with Section 4.02, with, in the case of
Unregistered Securities that have coupons attached, all unmatured coupons and all matured coupons in default thereto appertaining, and upon
payment, if the Company shall so require, of the charges hereinafter provided. At the option of the Holder thereof, if Unregistered Securities of
any series, maturity date, interest rate and Original Issue Date are issued in more than one authorized denomination, except as otherwise
established pursuant to Section 2.03, such Unregistered Securities may be exchanged for Unregistered Securities of such series and tenor
having authorized denominations and an equal aggregate principal amount, upon surrender of such Unregistered Securities to be exchanged at
the agency of the Company that shall be maintained for such purpose in accordance with Section 4.02, with, in the case of Unregistered
Securities that have coupons attached, all unmatured coupons and all matured coupons in default thereto appertaining, and upon payment, if the
Company shall so require, of the charges hereinafter provided. Registered Securities of any series may not be exchanged for Unregistered
Securities of such series. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
Upon surrender for registration of transfer of any Registered Security of a series at the agency of the Company that shall be maintained
for that purpose in accordance with Section 2.05 and upon payment, if the Company shall so require, of the charges hereinafter provided, the
Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new
Registered Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount and maturity.
All Registered Securities presented or surrendered for registration of transfer, exchange, redemption or payment shall (if so required by
the Company or Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the
19
Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing.
The Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection
with any exchange or registration of transfer of Securities. No service charge shall be made for any such transaction.
Notwithstanding any other provision of this Section 2.07, unless and until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole
by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee
of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor
Depositary.
If at any time the Depositary for any Registered Global Securities of any series notifies the Company that it is unwilling or unable to
continue as Depositary for such Registered Global Securities or if at any time the Depositary for such Registered Global Securities shall no
longer be eligible under applicable law, the Company shall use its commercially reasonable efforts to appoint a successor Depositary eligible
under applicable law with respect to such Registered Global Securities. If a successor Depositary eligible under applicable law for such
Registered Global Securities is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of
such ineligibility, the Company shall execute, and the Trustee, upon receipt of the Company’s order for the authentication and delivery of
definitive Registered Securities of such series shall authenticate and deliver, as specified in such order, Registered Securities of such series in
definitive form, in an aggregate principal amount equal to the principal amount of such Registered Global Securities, in exchange for such
Registered Global Securities.
The Company may at any time and in its sole discretion determine that any Registered Global Securities of any series shall no longer be
maintained in global form. In such event, the Company shall execute, and the Trustee, upon receipt of the Company’s order for the
authentication and delivery of definitive Registered Securities of such series shall authenticate and deliver, as specified in such order,
Registered Securities of such series in definitive form, in an aggregate principal amount equal to the principal amount of such Registered
Global Securities, in exchange for such Registered Global Securities.
Any time the Registered Securities of any series are not in the form of Registered Global Securities pursuant to the preceding two
paragraphs, the Company agrees to supply the Trustee with a reasonable supply of certificated Registered Securities without the legend
required by Section 2.02 and the Trustee agrees to hold such Registered Securities in safekeeping until authenticated and delivered pursuant to
the terms of this Indenture.
If established by the Company pursuant to Section 2.03 with respect to any Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in exchange in whole or in part for Registered Securities of the
same series in definitive registered form on such terms as are acceptable to the Company and such
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Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without service charge,
(a) to each Person specified by such Depositary, new Registered Securities of the same series, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the
Registered Global Security; and
(b) to such Depositary, a new Registered Global Security in a denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (a) above.
Registered Securities issued in exchange for a Registered Global Security pursuant to this Section 2.07 shall be registered in such names
and in such authorized denominations as the Depositary for such Registered Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to or as directed by the Persons in whose names
such Securities are so registered. The Registered Global Security exchanged shall be cancelled by the Trustee.
All Securities issued upon any registration of transfer or exchange of Securities shall be valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any Securities to the contrary, none of the Company, the Trustee or any agent
of the Company or the Trustee shall be required to exchange any Unregistered Security for a Registered Security if such exchange would result
in adverse federal income tax consequences to the Company (such as, for example, the inability of the Company to deduct from its income, as
computed for federal income tax purposes, the interest payable on the Unregistered Securities) under then applicable United States federal
income tax laws. The Trustee and any such agent shall be entitled to rely on an Officers’ Certificate or an Opinion of Counsel in determining
such result.
The Company shall not be required (i) to issue, register the transfer of, or exchange Securities of any particular series during the period
from the opening of business 15 days before the day a notice of redemption relating to such Securities selected for redemption is sent to the
close of business on the day that notice is sent, or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or
part, except for the unredeemed portion of any Security being redeemed in part.
Section 2.08. Replacement Securities . If any mutilated Security or a Security with a mutilated coupon appertaining to it is surrendered to
the Trustee, the Company shall execute and the Trustee shall authenticate and deliver, in exchange for such mutilated Security or in exchange
for the Security to which a mutilated coupon appertains, a new Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such mutilated Security or to
the Security to which such mutilated coupon appertains.
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If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon and (ii) such security or indemnity as may be required by them to hold each of them and any agent of any of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security or coupon has been acquired by a bona fide purchaser, the Company
shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in exchange for the Security
to which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or stolen), a new Security of the same
series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon
appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security, pay such Security or coupon (without surrender thereof except in the case of a
mutilated Security or coupon) if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as
may be required by them to hold each of them and any agent of any of them harmless, and in the case of destruction, loss or theft, evidence
satisfactory to the Company and the Trustee and any agent of them of the destruction, loss or theft of such Security and the ownership thereof;
provided, however, that the principal of, premium, if any, and any interest on Unregistered Securities shall, except as otherwise provided in
Section 4.02, be payable only at an office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security
or in exchange for any mutilated Security, or in exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains, shall
constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security and its
coupons, if any, or the mutilated, destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and any such new Security and
coupons, if any, shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series
and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) any other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 2.09. Outstanding Securities . Securities outstanding at any time are all Securities that have been authenticated by the Trustee
except for those cancelled by it, those delivered to it for cancellation, those described in this Section as not outstanding and those that have
been defeased pursuant to Section 8.05.
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If a Security is replaced pursuant to Section 2.08, it ceases to be outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due course.
If the Paying Agent (other than the Company or an Affiliate of the Company) holds on the maturity date or any redemption date or date
for repurchase of the Securities money sufficient to pay Securities payable or to be redeemed or repurchased on that date, then on and after that
date such Securities cease to be outstanding and interest on them shall cease to accrue.
A Security does not cease to be outstanding because the Company or one of its Affiliates holds such Security unless cancelled pursuant to
Section 2.11, provided, however, that, in determining whether the Holders of the requisite principal amount of the outstanding Securities have
given any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any Affiliate of
the Company shall be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities as to which a Responsible Officer of
the Trustee has received written notice to be so owned shall be so disregarded. Any Securities so owned which are pledged by the Company, or
by any Affiliate of the Company, as security for loans or other obligations, otherwise than to another such Affiliate of the Company, shall be
deemed to be outstanding, if the pledgee is entitled to act with respect to such Securities.
In determining whether the Holders of the requisite principal amount of the outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed
to be outstanding shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon
acceleration of the maturity thereof pursuant to Section 6.02.
Section 2.10. Temporary Securities . Until definitive Securities of any series are ready for delivery, the Company may execute and the
Trustee shall authenticate and deliver temporary Securities of such series. Temporary Securities of any series shall be substantially in the form
of definitive Securities of such series but may have insertions, substitutions, omissions and other variations determined to be appropriate by the
Officers executing the temporary Securities, as evidenced by their execution of such temporary Securities. If temporary Securities of any series
are issued, the Company shall cause definitive Securities of such series to be prepared without unreasonable delay.
After preparation of definitive Securities of any series, the temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of such temporary Securities at the office or agency of the Company designated for such purpose
pursuant to Section 4.02, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series
the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of
such series and tenor and authorized denominations. Until so exchanged, the temporary Securities of any series shall be entitled to the same
benefits under this Indenture as definitive Securities of such series.
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Section 2.11. Cancellation . The Company or one of its Affiliates at any time may deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company or one of its Affiliates may have acquired in any manner whatsoever,
and may deliver to the Trustee for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold.
The Registrar, any transfer agent and the Paying Agent shall forward to the Trustee any Securities surrendered to them for transfer, exchange or
payment. The Trustee shall promptly cancel and dispose of in accordance with its customary procedures all Securities surrendered for transfer,
exchange, payment or cancellation and upon written request shall deliver a certificate of disposition to the Company. The Company may not
issue new Securities to replace Securities it has paid in full or delivered to the Trustee for cancellation.
Section 2.12. CUSIP Numbers . The Company in issuing the Securities may use “CUSIP” and “CINS” numbers (if then generally in use),
and, if so, the Trustee shall, as a convenience, use CUSIP numbers or CINS numbers, as the case may be, in notices to Holders and no
representation shall be made as to the correctness of such numbers either as printed on the Securities or as contained in any notice, and reliance
may be placed only on the other identification numbers printed on the Securities.
Section 2.13. Defaulted Interest . If the Company defaults in a payment of interest on the Securities of any series, it will pay the defaulted
interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Securities and in Section 4.01 hereof. The Company will notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on each Security of the applicable series and the date of the proposed
payment. The Company will fix or cause to be fixed each such special record date and payment date; provided that no such special record date
may be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) will mail or cause to be
mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid.
Section 2.14. Series May Include Tranches . A series of Securities may include one or more tranches (each a “tranche”) of Securities,
including Securities issued in a Periodic Offering. The Securities of different tranches may have one or more different terms, including
authentication dates and public offering prices, but all the Securities within each such tranche shall have identical terms, including
authentication date and public offering price. Notwithstanding any other provision of this Indenture, with respect to Sections 2.02 (other than
the fourth, sixth and seventh paragraphs thereof) through 2.04, 2.07, 2.08, 2.10, 3.01 through 3.05, 4.02, 6.01 through 6.14, 8.01 through 8.06,
Section 9.02 through 9.04 and 11.08, if any series of Securities includes more than one tranche, all provisions of such sections applicable to any
series of Securities shall be deemed equally applicable to each tranche of any series of Securities in the same manner as though originally
designated a series unless otherwise provided with respect to such series or tranche pursuant to Section 2.03. In particular, and without limiting
the scope of the next preceding sentence, any of the provisions of such sections which provide for or permit action to be taken with respect to a
series of Securities shall also be deemed to provide for and permit such action to be taken instead only with respect to Securities
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of one or more tranches within that series (and such provisions shall be deemed satisfied thereby), even if no comparable action is taken with
respect to Securities in the remaining tranches of that series.
ARTICLE 3
REDEMPTION
Section 3.01. Applicability of Article . The provisions of this Article 3 shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 2.03 for Securities of such series.
Section 3.02. Notice of Redemption; Partial Redemptions . Notice of redemption to the Holders of Registered Securities of any series to
be redeemed as a whole or in part at the option of the Company shall be given by mailing notice of such redemption by first class mail, postage
prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders of Registered Securities of such
series at their last addresses as they shall appear upon the registry books. Notice of redemption to the Holders of Unregistered Securities of any
series to be redeemed as a whole or in part who have filed their names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act shall be given by mailing notice of such redemption, by first class mail, postage prepaid, at least 30 days and not more than 60
days prior to the date fixed for redemption, to such Holders at such addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Company, the Trustee shall make such information available to the Company for such purpose). Notice of redemption to all
other Holders of Unregistered Securities of any series to be redeemed as a whole or in part shall be published in an Authorized Newspaper,
once in each of three successive calendar weeks, the first publication to be not less than 30 days nor more than 60 days prior to the date fixed
for redemption. Any notice which is mailed or published in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice. Failure to give notice by mail, or any defect in the notice to the Holder of any Security of
a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security
of such series.
The notice of redemption to each such Holder shall specify the principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP numbers of the Securities to be redeemed, the date fixed for redemption, the redemption price, or if not then
ascertainable, the manner of calculation thereof, the place or places of payment, that payment will be made upon presentation and surrender of
such Securities and, in the case of Securities with coupons attached thereto, of all coupons appertaining thereto maturing after the date fixed for
redemption, that such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the case, that interest accrued to, but
excluding, the date fixed for redemption will be paid as specified in such notice and that on and after said date interest thereon or on the
portions thereof to be redeemed will cease to accrue and that such Securities subject to such redemption shall cease to be outstanding and the
Holders thereof shall have no rights with respect thereto other than the right to receive the redemption price upon presentment and surrender. In
case any Security of a series is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for
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redemption, upon surrender of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed portion
thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the option of the Company shall be given by the Company or, at
the Company’s request, by the Trustee in the name and at the expense of the Company.
On or before 10:00 a.m. New York City time on the redemption date or, in the case of Unregistered Securities, on or before 10:00 a.m.
New York City time on the Business Day prior to the redemption date specified in the notice of redemption given as provided in this Section,
the Company shall deposit with the Trustee or with one or more Paying Agents (or, if the Company is acting as its own Paying Agent, set aside,
segregate and hold in trust as provided in Section 2.06) an amount of money sufficient to redeem on the redemption date all the Securities of
such series so called for redemption at the appropriate redemption price, together with accrued interest to, but excluding the date fixed for
redemption. If all of the outstanding Securities of a series are to be redeemed, the Company shall deliver to the Trustee at least 10 days prior to
the last date on which notice of redemption may be given to Holders pursuant to the first paragraph of this Section 3.02 (or such shorter period
as shall be acceptable to the Trustee) an Officers’ Certificate stating that all such Securities are to be redeemed. If less than all the outstanding
Securities of a series are to be redeemed, the Company shall deliver to the Trustee at least 10 days (or such lesser number of days as the Trustee
shall approve) prior to last date on which notice of redemption may be given to Holders pursuant to the first paragraph of this Section 3.02 (or
such shorter period as shall be acceptable to the Trustee) an Officers’ Certificate stating the aggregate principal amount of such Securities to be
redeemed. In the case of any redemption of Securities (a) prior to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, or (b) pursuant to an election of the Company which is subject to a condition specified in the
terms of such Securities or elsewhere in this Indenture, the Company shall deliver to the Trustee, not later than the giving of any notice of
redemption to Holders pursuant to this Section, an Officers’ Certificate evidencing compliance with such restriction or condition.
If less than all the Securities of a series are to be redeemed, and if the Securities are held by a Depositary, the applicable operational
procedures of the Depositary for selection of Securities for redemption will apply. If the Securities are not held by a Depositary, the Trustee
shall select, pro rata, by lot or in such manner as it shall deem appropriate and fair, Securities of such series or portions thereof to be redeemed
in whole or in part. Securities may be redeemed in part in principal amounts equal to authorized denominations for Securities of such series.
The Trustee shall promptly notify the Company and Paying Agent in writing of the Securities of such series or portions thereof selected for
redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case
of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be
redeemed.
Section 3.03. Payment Of Securities Called For Redemption . If notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the
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applicable redemption price, together with interest accrued to, but excluding, the date fixed for redemption, and on and after such date (unless
the Company shall default in the payment of such Securities or portions thereof at the redemption price, together with interest accrued to, but
excluding, such date) any interest on the Securities or portions of Securities so called for redemption shall cease to accrue, and the unmatured
coupons, if any, appertaining thereto shall be void and, except as provided in Sections 7.12 and 8.02, such Securities shall be deemed not to be
outstanding and shall cease from and after the date fixed for redemption to be entitled to any benefit under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to receive the redemption price thereof and unpaid interest to the date
fixed for redemption. On presentation and surrender of such Securities at a place of payment specified in said notice, together with all coupons,
if any, appertaining thereto maturing after the date fixed for redemption, said Securities or the specified portions thereof shall be paid and
redeemed by the Company at the applicable redemption price, together with interest accrued thereon to, but excluding, the date fixed for
redemption; provided that payment of interest becoming due on or prior to the date fixed for redemption shall be payable in the case of
Securities with coupons attached thereto to the Holders of the coupons for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as such on the relevant record date subject to the terms and provisions of
Sections 2.04 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by such Security.
If any Security with coupons attached thereto is surrendered for redemption and is not accompanied by all appurtenant coupons maturing
after the date fixed for redemption, the surrender of such missing coupon or coupons may be waived by the Company and the Trustee, if there
be furnished to each of them such security or indemnity as they may require to save each of them harmless.
Upon presentation and surrender of any Security of any series redeemed in part only, the Company shall execute and the Trustee shall
authenticate and deliver to or on the order of the Holder thereof, at the expense of the Company, a new Security or Securities of such series
(with any unmatured coupons attached), of authorized denominations, in principal amount equal to the unredeemed portion of the Security so
presented.
Section 3.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption . Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and certificate number in a written statement signed by an Officer of the
Company and delivered to the Trustee at least 40 days prior to the last date on which notice of redemption may be given as being owned of
record and beneficially by, and not pledged or hypothecated by, either (a) the Company or (b) an entity specifically identified in such written
statement as being an Affiliate of the Company.
Section 3.05. Mandatory and Optional Sinking Funds . The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to
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as a “ mandatory sinking fund payment ”, and any payment in excess of such minimum amount provided for by the terms of the Securities of
any series is herein referred to as an “optional sinking fund payment”. The date on which a sinking fund payment is to be made is herein
referred to as the “ sinking fund payment date ”.
In lieu of making all or any part of any mandatory sinking fund payment with respect to any series of Securities of a series in cash, the
Company may at its option (a) deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired by the Company or
receive credit for the principal amount of Securities of such series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Company and delivered to the Trustee for cancellation pursuant to Section 2.11, (b) receive credit for optional
sinking fund payments (not previously so credited) made pursuant to this Section or (c) receive credit for Securities of such series (not
previously so credited) redeemed by the Company at the option of the Company pursuant to the terms of such Securities or through any
optional sinking fund payment pursuant to the terms of such Securities. Securities so delivered or credited shall be received or credited by the
Trustee at the sinking fund redemption price specified in such Securities and the amount of mandatory sinking fund payment shall be reduced
accordingly.
On or before the sixtieth day next preceding each sinking fund payment date for any series, or such shorter period as shall be acceptable
to the Trustee, the Company shall deliver to the Trustee an Officers’ Certificate (a) specifying the portion of the mandatory sinking fund
payment to be satisfied by payment of cash and the portion to be satisfied by credit of specified Securities of such series and the basis for such
credit and (b) stating whether or not the Company intends to exercise its right to make an optional sinking fund payment with respect to such
series. Any Securities of such series to be credited and required to be delivered to the Trustee in order for the Company to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.11 to the
Trustee with such Officers’ Certificate (or reasonably promptly thereafter if acceptable to the Trustee). Such Officers’ Certificate shall be
irrevocable and upon its receipt by the Trustee the Company shall become obligated to make all the cash payments, delivery of Securities or
crediting therein referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the Company, on or before any such
sixtieth day, to deliver such Officers’ Certificate and Securities specified in this paragraph, if any, shall not constitute a Default but shall
constitute, on and as of such date, the irrevocable election of the Company (i) that the mandatory sinking fund payment for such series due on
the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such series in
respect thereof and (ii) that the Company shall make no optional sinking fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash shall exceed $50,000 or the equivalent in foreign currency if to
be paid out in such currency (or a lesser sum if the Company shall so request with respect to the Securities of any series), such cash shall be
applied on the next succeeding sinking fund payment date to the redemption of Securities of such series at the sinking fund redemption price
thereof together with accrued interest thereon to, but excluding, the date fixed for redemption. If such amount shall be $50,000 (or such lesser
sum) or less and the Company makes no such request
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then it shall be carried over until a sum in excess of $50,000 (or such lesser sum) is available. If the Securities are held by a Depositary, the
applicable operational procedures of the Depositary for selection of Securities for redemption will apply. If the Securities are not held by a
Depositary, the Trustee shall select, in the manner provided in Section 3.02, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash, as nearly as may be, and shall (if requested in writing by the Company)
inform the Company of the serial numbers of the Securities of such series (or portions thereof) so selected. Securities shall be excluded from
eligibility for redemption under this Section if they are identified by registration and certificate number in an Officers’ Certificate delivered to
the Trustee at least 60 days prior to the sinking fund payment date as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Company or (b) an entity specifically identified in such Officers’ Certificate as being an Affiliate of the
Company. The Trustee, in the name and at the expense of the Company (or the Company, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in substantially the manner provided in Section 3.02 (and with the effect
provided in Section 3.03) for the redemption of Securities of such series in part at the option of the Company. The amount of any sinking fund
payments not so applied or allocated to the redemption of Securities of such series shall be added to the next cash sinking fund payment for
such series and, together with such payment, shall be applied in accordance with the provisions of this Section. Any and all sinking fund
moneys held on the stated maturity date of the Securities of any particular series (or earlier, if such maturity is accelerated), which are not held
for the payment or redemption of particular Securities of such series shall be applied, together with other moneys, if necessary, sufficient for
the purpose, to the payment of the principal of, premium, if any, and interest on, the Securities of such series at maturity.
On or before 10:00 a.m. New York City time on each sinking fund payment date or, in the case of Unregistered Securities, 10:00 a.m.
New York City time on the Business Day prior to the sinking fund payment date, the Company shall pay to the Trustee in cash or shall
otherwise provide for the payment of all interest accrued to, but excluding, the date fixed for redemption on Securities or portions thereof to be
redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities of such series by operation of the sinking fund during the continuance of a Default in payment of interest on such
Securities or of any Event of Default except that, where the mailing of notice of redemption of any Securities shall theretofore have been made,
the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Company a sum sufficient for
such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such Default or Event of Default
shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such Default or Event of Default, be deemed
to have been collected under Article 6 and held for the payment of all such Securities. In case such Event of Default shall have been waived as
provided in Section 6.04 or the Default cured on or before the sixtieth day preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section to the redemption of such
Securities.
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ARTICLE 4
COVENANTS
Unless otherwise specified as contemplated by Section 2.03, the covenants contained in this Article 4 shall be applicable to the Securities
of any series.
Section 4.01. Payment of Securities . The Company shall pay the principal of, premium, if any, and interest, if any, on the Securities of a
series on the dates and in the manner provided in the Securities of that series and this Indenture. The interest on Securities with coupons
attached (together with any additional amounts payable pursuant to the terms of such Securities) shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature. The interest on any temporary
Unregistered Securities (together with any additional amounts payable pursuant to the terms of such Securities) shall be paid, as to the
installments of interest evidenced by coupons attached thereto, if any, only upon presentation and surrender thereof, and, as to the other
installments of interest, if any, only upon presentation of such Unregistered Securities for notation thereon of the payment of such interest. The
interest on Registered Securities (together with any additional amounts payable pursuant to the terms of such Securities) shall be payable only
to the Holders thereof (subject to Section 2.04) and at the option of the Company may be paid by mailing checks for such interest payable to or
upon the written order of such Holders at their last addresses as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the Securities of any series to the contrary, if the Company and a Holder of any
Registered Security so agree, payments of interest on, premium, if any, and any portion of the principal of, such Holder’s Registered Security
shall be made by the Paying Agent, upon receipt from the Company of immediately available funds by 11:00 A.M., New York City time (or
such other time as may be agreed to between the Company and the Paying Agent), directly to the Holder of such Security (by Federal funds
wire transfer or otherwise) if the Holder has delivered written instructions to the Trustee 15 days prior to such payment date requesting that
such payment will be so made and designating the bank account to which such payments shall be so made and in the case of payments of
principal, surrenders the same to the Trustee in exchange for a Security or Securities aggregating the same principal amount as the unredeemed
principal amount of the Securities surrendered. The Trustee shall be entitled to rely on the last instruction delivered by the Holder pursuant to
this Section 4.01 unless a new instruction is delivered 15 days prior to a payment date. The Company shall indemnify and hold each of the
Trustee and any Paying Agent harmless against any loss, liability or expense (including attorneys’ fees) resulting from any act or omission to
act on the part of the Company or any such Holder in connection with any such agreement or from making any payment in accordance with any
such agreement.
Section 4.02. Maintenance of Office or Agency . The Company shall maintain an office or agency where Securities of any series may be
surrendered for registration of transfer or exchange or for presentation for payment and where notices and demands to or upon the Company in
respect of the Securities of such series and this Indenture may be served. The Company hereby initially designates the Corporate Trust Office
of the Trustee as such office or agency of the Company. The Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
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fails to maintain any such required office or agency or fails to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may maintain one or more agencies in a city or cities located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange on which the Securities of any series are listed) where the
Unregistered Securities, if any, of each series and coupons, if any, appertaining thereto may be presented for payment. No payment on any
Unregistered Security or coupon shall be made upon presentation of such Unregistered Security or coupon at an agency of the Company within
the United States nor shall any payment be made by transfer to an account in, or by mail to an address in, the United States unless, pursuant to
applicable United States laws and regulations then in effect, such payment can be made without adverse tax consequences to the Company.
Notwithstanding the foregoing, if full payment in United States Dollars (“Dollars”) at each agency maintained by the Company outside the
United States for payment on such Unregistered Securities or coupons appertaining thereto is illegal or effectively precluded by exchange
controls or other similar restrictions, payments in Dollars of Unregistered Securities of any series and coupons appertaining thereto which are
payable in Dollars may be made at an agency of the Company.
The Company may also from time to time designate one or more other offices or agencies where the Securities of any series may be
presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided that no such designation
or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or
agency.
Section 4.03. Compliance Certificate. (a) The Company and each Subsidiary Guarantor (to the extent that such Subsidiary Guarantor is
so required under the Trust Indenture Act) shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers’ Certificate
stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision
of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of
any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default has occurred, describing all such Defaults or
Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto) and
that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the
principal of, premium or interest, if any, on the Securities is prohibited or if such event has occurred, a description of the event and what action
the Company is taking or proposes to take with respect thereto.
(b) So long as any of the Securities of any series are outstanding, the Company will deliver to the Trustee, forthwith upon any
Officer becoming aware of any
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Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default, what action the Company is taking or
proposes to take with respect thereto and whether the Securities are listed on any exchange.
Section 4.04. Taxes . The Company will pay, and will cause each of its Subsidiaries to pay, prior to delinquency, all material taxes,
assessments, and governmental levies except such as are contested in good faith and by appropriate proceedings or where the failure to effect
such payment is not adverse in any material respect to the Holders of the Securities.
Section 4.05. Stay, Extension and Usury Laws . The Company and each of the Subsidiary Guarantors covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Company and each of the Subsidiary Guarantors (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.
Section 4.06. Securityholders’ Lists . The Company shall furnish or cause to be furnished to the Trustee a list in such form as the Trustee
may reasonably require of the names and addresses of the holders of the Securities pursuant to Section 312 of the Trust Indenture Act (a) not
more than 15 days after each record date for the payment of interest on the Securities, as hereinabove specified, as of such record date, and
(b) at such other times as the Trustee may request in writing, within thirty days after receipt by the Company of any such request as of a date
not more than 15 days prior to the time such information is furnished; provided, however, in each case that so long as the Trustee shall be the
Registrar, such lists shall not be required to be furnished.
Section 4.07. Reports by the Company . The Company and each Subsidiary Guarantor covenants to file with the Trustee, within 15 days
after the Company and each Subsidiary Guarantor is required to file with the Commission, copies of the annual reports and of the information,
documents, and other reports which the Company and each Subsidiary Guarantor is required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act. Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute notice or constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s or any Subsidiary Guarantor’s compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates or certificates delivered to the Trustee
pursuant to Section 4.03).
Section 4.08. Additional Amounts . If the Securities of a series provide for the payment of additional amounts, at least 10 days prior to the
first interest payment date with respect to that series of Securities and at least 10 days prior to each date of payment of principal of, premium, if
any, or interest on the Securities of that series if there has been a change with respect to the matters set forth in the below-mentioned Officers’
Certificate, the Company shall furnish to the Trustee and the Paying Agent, if other than the Trustee, an Officers’ Certificate instructing the
Trustee and such
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Paying Agent whether such payment of principal of, premium, if any, or interest on the Securities of that series shall be made to Holders of the
Securities of that series without withholding or deduction for or on account of any tax, assessment or other governmental charge described in
the Securities of that series. If any such withholding or deduction shall be required, then such Officers’ Certificate shall specify by country the
amount, if any, required to be withheld or deducted on such payments to such Holders and shall certify the fact that additional amounts will be
payable and the amounts so payable to each Holder, and the Company shall pay to the Trustee or such Paying Agent the additional amounts
required to be paid by this Section. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section.
Whenever in this Indenture there is mentioned, in any context, the payment of the principal of, premium, if any, or interest or any other
amounts on, or in respect of, any Security of any series, such mention shall be deemed to include mention of the payment of additional amounts
provided by the terms of such series established hereby or pursuant hereto to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention of the payment of additional amounts (if applicable) in any
provision hereof shall not be construed as excluding the payment of additional amounts in those provisions hereof where such express mention
is not made.
Section 4.09. Limitation on Mortgages and Liens . If the Company or any of its Subsidiaries, directly or indirectly, creates, incurs, issues,
assumes, guarantees or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively “ incur ”) any
Indebtedness secured by a Lien (other than a Permitted Lien) upon any Principal Property or upon the Capital Stock of any Subsidiary (in each
case, now owned or hereafter acquired), the Company will secure the Securities on an equal and ratable basis with the Indebtedness so secured,
unless the aggregate principal amount of all outstanding Indebtedness of the Company and its Subsidiaries that is secured by Liens (other than
Permitted Liens) on any Principal Property or upon the Capital Stock of any Subsidiary (in each case, now owned or hereafter acquired) plus
the amount of all outstanding Attributable Debt incurred pursuant to clause (a) of Section 4.11 would not exceed 10% of Consolidated Net
Tangible Assets calculated as of the date of the creation or incurrence of the Lien.
Section 4.10. Corporate Existence . Subject to Article 5 hereof, the Company shall do or cause to be done all things necessary to preserve
and keep in full force and effect:
(a) its corporate existence, and the corporate, partnership or other existence of each of its Subsidiaries, in accordance with the
respective organizational documents (as the same may be amended from time to time) of the Company or any such Subsidiary; and
(b) the rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries;
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provided, however, that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Subsidiaries, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to
the Holders of the Securities.
Section 4.11. Limitation on Sale and Leaseback Transactions . The Company will not, and will not permit any of its Subsidiaries to, enter
into any Sale and Leaseback Transaction; provided that the Company or any Subsidiary may enter into a Sale and Leaseback Transaction if:
(a) after giving effect thereto, the aggregate amount of all outstanding Attributable Debt with respect to all such transactions, plus
the amount of outstanding Indebtedness secured by a Lien (other than a Permitted Lien) upon any Principal Property or upon the Capital
Stock of any Subsidiary (in each case, now owned or hereafter acquired) incurred without equally and ratably securing the Securities
pursuant to the covenant entitled “Limitation on Mortgages and Liens” would not exceed 10% of Consolidated Net Tangible Assets
calculated at the time of the transaction; or
(b) within 120 days after such Sale and Leaseback Transaction, the Company or such Subsidiary applies an amount equal to the
greater of the net proceeds of such Sale and Leaseback Transaction and the Fair Market Value at the time of the transaction of the
Principal Property so leased to the retirement of Funded Debt of the Company or any of its Subsidiaries.
Section 4.12. Future Subsidiary Guarantors . The Company shall not permit any of its Domestic Subsidiaries to, directly or indirectly,
guarantee any Person’s Obligations under the Credit Agreement unless such Subsidiary is a Subsidiary Guarantor or concurrently executes a
supplemental indenture and a Note Guarantee.
Section 4.13. Waiver Of Certain Covenants . The Company may omit in any particular instance to comply with any term, provision or
condition set forth in Sections 4.09, 4.11, 4.12 and clause (d) of Section 5.01, except as otherwise specifically provided therein (and, if so
specified pursuant to Section 2.03, any other covenant not set forth herein and specified pursuant to Section 2.03 to be applicable to the
Securities of any series, except as otherwise provided pursuant to Section 2.03), with respect to the Securities of any series if before the time
for such compliance the Holders of at least a majority in aggregate principal amount of the outstanding Securities of such series shall, by act of
such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the extent expressly so waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
ARTICLE 5
CONSOLIDATION, MERGER OR SALE OF ASSETS
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Section 5.01. Consolidation, Merger or Sale of Assets by the Company . The Company shall not, directly or indirectly: (i) consolidate or
merge with or into another Person (whether or not the Company is the surviving corporation) or (ii) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole, in one or more related
transactions, to another Person, unless:
(a) either:
(i) the Company is the surviving corporation; or
(ii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, conveyance or other disposition has been made is a corporation or limited liability company organized or
existing under the laws of the United States, any state of the United States or the District of Columbia;
(b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such
sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company under the
Securities and this Indenture pursuant to a supplemental indenture reasonably satisfactory to the Trustee;
(c) immediately after such transaction, no Default or Event of Default exists; and
(d) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which
such sale, assignment, transfer, conveyance or other disposition has been made, shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that such transaction and any supplemental indenture entered into in connection
therewith comply with all of the terms of this covenant and that all conditions precedent provided for in this covenant relating to such
transaction or series of transactions have been complied with.
In addition, the Company will not, directly or indirectly, lease all or substantially all of its properties or assets of the Company and its
Subsidiaries, taken as a whole, in one or more related transactions, to any other Person. This Section 5.01 will not apply to:
(a) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction; or
(b) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or
among the Company and its Subsidiaries.
Section 5.02. Successor Corporation Substituted . Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance
or other disposition of all or substantially all of the properties or assets of the Company in a transaction that is subject to, and that complies
with the provisions of, Section 5.01 hereof, the successor Person formed by such consolidation or
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into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or
other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the successor Person and not to the
Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had
been named as the Company herein; provided, however, that the predecessor Company shall not be relieved from the obligation to pay the
principal of, premium, if any, and interest on the Securities except in the case of a sale of all of the Company’s assets in a transaction that is
subject to, and that complies with the provisions of, Section 5.01 hereof.
ARTICLE 6
DEFAULT AND REMEDIES
Section 6.01. Events of Default . Each of the following is an “ Event of Default ” with respect to the Securities of any series (whatever
the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law, pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) Default for 30 days in the payment when due of interest on the Securities of such series; or
(b) Default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the
Securities of such series; or
(c) failure by the Company or any of its Subsidiaries for 60 days after notice to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in aggregate principal amount of the Securities of such series then outstanding voting as a
single class to comply with any of the other agreements in this Indenture; or
(d) Default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of its Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created after the date of this Indenture,
if that Default:
(i) is caused by a failure to pay principal of, or interest or premium, if any, on, such Indebtedness prior to the expiration of the
grace period provided in such Indebtedness on the date of such Default (a “ Payment Default ”), or
(ii) results in the acceleration of such Indebtedness prior to its express maturity,
and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment
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Default or the maturity of which has been so accelerated, aggregates $75.0 million or more; or
(e) the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of Subsidiaries of the Company that, taken
together, would constitute a Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a custodian of it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is not paying its debts as they become due; or
(f) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of Subsidiaries of
the Company that, taken together, would constitute a Significant Subsidiary in an involuntary case;
(ii) appoints a custodian of the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of Subsidiaries
of the Company that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property of the
Company or any of its Subsidiaries that is a Significant Subsidiary or any group of Subsidiaries of the Company that, taken
together, would constitute a Significant Subsidiary; or
(iii) orders the liquidation of the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of
Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days; or
(g) except as permitted by this Indenture, any Note Guarantee of the Securities of such series is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force and effect, or any Subsidiary Guarantor, or any Person acting on
behalf of any Subsidiary Guarantor, denies or disaffirms its obligations under its Note Guarantee of the Securities of such series; or
(h) any other Event of Default established pursuant to Section 2.03 with respect to the Securities of such series occurs.
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Section 6.02. Acceleration . In the case of an Event of Default specified in clause (e) or (f) of Section 6.01 hereof, with respect to the
Company, any Subsidiary of the Company that is a Significant Subsidiary or any group of Subsidiaries of the Company that, taken together,
would constitute a Significant Subsidiary, all outstanding Securities of any series will become due and payable immediately without further
action or notice. If any other Event of Default with respect to the Securities of any series then outstanding occurs and is continuing, then, and in
each and every such case, except for any series of Securities the principal of which shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of the Securities of any such series then outstanding hereunder (each
such series treated as a separate class) by notice in writing to the Company (and to the Trustee if given by Securityholders), may declare the
entire principal (or, if the Securities of any such series are Original Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series established pursuant to Section 2.03) of all Securities of such series, and the interest accrued thereon, if
any, and premium, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and
payable.
The foregoing provision, however, is subject to the condition that if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the terms thereof established pursuant to Section 2.03) of the Securities
of any series (or of all the Securities, as the case may be) shall have been so declared or become due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained by the Trustee as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all overdue installments of interest or other payments with respect to coupons on all the
Securities of each such series (or of all the Securities, as the case may be) and the principal of, premium, if any, and interest on any and all
Securities of each such series (or of all the Securities, as the case may be) which shall have become due otherwise than by such declaration and
acceleration (with interest upon such overdue installments of interest or other payments with respect principal and, to the extent that payment of
such interest is enforceable under applicable law, on overdue installments of interest or other payments with respect to coupons on all
Securities of each series, at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of each such series to the date of such payment or deposit) and such amount as shall be sufficient to cover all amounts owing
the Trustee under Section 7.07, and if any and all Events of Default under the Indenture, other than the non-payment of the principal of
Securities which shall have become due by acceleration, shall have been cured, waived or otherwise remedied as provided herein, then and in
every such case the Holders of a majority in aggregate principal amount of all the then outstanding Securities of all such series that have been
accelerated (voting as a single class), by written notice to the Company and to the Trustee, may waive all Defaults with respect to all such
series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences, but no such waiver
or rescission and annulment shall extend to or shall affect any subsequent Default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated
and declared or become due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has
been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be
such portion of the principal thereof as shall be
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due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of
such acceleration, together with interest or premium, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of
such Original Issue Discount Securities.
Section 6.03. Other Remedies . If an Event of Default with respect to the Securities of any series occurs and is continuing, the Trustee
may pursue, in its own name or as trustee of an express trust, any available remedy by proceeding at law or in equity to collect the payment of
principal of, premium, if any, and interest on the Securities of such series or to enforce the performance of any provision of the Securities of
such series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the
proceeding.
Section 6.04. Waiver of Past Defaults . Subject to Sections 6.02, 6.07 and Section 9.02, the Holders of a majority in aggregate principal
amount of the outstanding Securities of any series affected (voting as a single class), by notice to the Trustee, may, on behalf of the Holders of
all of the Securities of such series, waive an existing Default or Event of Default with respect to the Securities of such series and its
consequences, except a Default or Event of Default in the payment of principal of, premium or interest, if any, on any Security as specified in
clause (a) or (b) of Section 6.01 or in respect of a covenant or provision of this Indenture which cannot be modified or amended without the
consent of the Holder of each outstanding Security of such series affected. Upon any such waiver, such Default shall cease to exist, and any
Event of Default with respect to the Securities of such series arising therefrom shall be deemed to have been cured for every purpose of this
Indenture and the Company, Trustee and Holders restored to their former position and rights hereunder; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent thereto.
Section 6.05. Control by Majority . Subject to Sections 7.01 and 7.02(e), the Holders of a majority in aggregate principal amount of the
outstanding Securities of any series affected (voting as a single class) may direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Securities of such series by
this Indenture; provided, that the Trustee may refuse to follow any direction that conflicts with law or this Indenture, that may involve the
Trustee in personal liability or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders not joining in the
giving of such direction; and provided further, that the Trustee may take any other action it deems proper that is not inconsistent with any
directions received from Holders of Securities pursuant to this Section 6.05.
Section 6.06. Limitation on Suits . No Holder of any Security of any series may institute any proceeding, judicial or otherwise, in equity
or at law, with respect to this Indenture or the Securities of such series, or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(a) such Holder has previously given to the Trustee written notice of a continuing Event of Default with respect to the Securities of
such series;
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(b) the Holders of at least 25% in aggregate principal amount of outstanding Securities of such series affected shall have made
written request to the Trustee to institute such proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to the Trustee against any costs, liabilities
or expenses to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding;
and
(e) during such 60-day period, the Holders of a majority in aggregate principal amount of the outstanding Securities of such affected
series have not given the Trustee a direction that is inconsistent with such written request.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over such other Holder.
Section 6.07. Rights of Holders to Receive Payment . Notwithstanding any other provision of this Indenture, the right of any Holder of a
Security to receive payment of principal of or interest or premium, if any, on such Holder’s Security on or after the respective due dates
expressed on such Security, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
Section 6.08. Collection Suit by Trustee . If an Event of Default with respect to the Securities of any series in payment of principal,
premium or interest specified in clause 6.01(a) or (b) occurs and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount (or such portion thereof as specified in the terms established pursuant to
Section 2.03 of Original Issue Discount Securities) of principal of, premium, if any, and accrued interest remaining unpaid on, together with
interest on overdue principal specified in such Securities, and such further amount as shall be sufficient to cover all amounts owing the Trustee
under Section 7.07, except for such amounts arising out of the Trustee’s negligence or bad faith.
Section 6.09. Trustee May File Proofs of Claim . The Trustee may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for amounts due the Trustee under Section 7.07) and the
Holders allowed in any judicial proceedings relative to the Company (or any other obligor on the Securities), its creditors or its property and
shall be entitled and empowered to collect and receive any moneys, securities or other property payable or deliverable upon conversion or
exchange of the Securities or upon any such claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to
it under Section 7.07, except for such amounts arising out of the Trustee’s negligence or bad faith. Nothing herein contained shall be deemed to
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empower the Trustee to authorize or consent to, or accept or adopt on behalf of any Holder, any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Holder in any such proceeding.
Section 6.10. Application of Proceeds . If the Trustee collects any money pursuant to this Article 6 in respect of the Securities of any
series, it shall pay out the money in the following order:
FIRST: to the Trustee, its agents and attorneys for amounts due under Section 7.07 with respect to such series of Securities,
including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
SECOND: to Holders of Securities of the applicable series for amounts due and unpaid on such Securities for principal, premium,
and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities of such series
for principal, premium, and interest, respectively; and
THIRD: to the Company or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders of Securities pursuant to this Section 6.10.
Section 6.11. Restoration of Rights and Remedies . If the Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the
Trustee or to such Holder, then, and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the
Holders shall be restored to their former positions hereunder and thereafter all rights and remedies of the Company, Trustee and the Holders
shall continue as though no such proceeding had been instituted.
Section 6.12. Undertaking for Costs . In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the
Trustee for any action taken or omitted by it as Trustee, in either case in respect to the Securities of any series, a court may require any party
litigant in such suit to file an undertaking to pay the costs of the suit, and the court may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit having due regard to the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.12 does not apply to a suit by a Holder pursuant to Section 6.06, a suit instituted by the Trustee or a suit by Holders of more than
10% in principal amount of the outstanding Securities of such series.
Section 6.13. Rights and Remedies Cumulative . Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities in Section 2.08, no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The
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assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 6.14. Delay or Omission not Waiver . No delay or omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Subject to Section 6.06, every right and remedy given by this Article 6 or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE 7
TRUSTEE
Section 7.01. General . Except during the continuance of an Event of Default, the Trustee’s duties and responsibilities under this
Indenture shall be only those duties and responsibilities specifically set forth in this Indenture and no implied duties or responsibilities shall be
read into this Indenture against the Trustee. In case an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and
powers vested in it by this Indenture, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs. Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured. Whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article 7.
Section 7.02. Certain Rights of Trustee . Subject to Trust Indenture Act Sections 315(a) through (d):
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, Officers’
Certificate, Opinion of Counsel (or both), statement, instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or
presented by the proper person or persons;
(b) before the Trustee acts or refrains from acting, it may require an Officers’ Certificate and/or an Opinion of Counsel, which shall
conform to Section 11.04 and shall cover such other matters as the Trustee may reasonably request. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such certificate or opinion. Subject to Section 7.01 and this Section 7.02,
whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be
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conclusively proved and established by an Officers’ Certificate delivered to the Trustee, and such certificate, in the absence of negligence
or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof;
(c) the Trustee may act through its attorneys and agents not regularly in its employ and shall not be responsible for the misconduct
or negligence of any agent or attorney appointed with due care, and the rights, privileges, protections, immunities and benefits given to
the Trustee, including without limitation its right to be compensated, reimbursed, and indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder;
(d) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers’
Certificate (unless other evidence in respect thereof be herein specifically prescribed);
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in compliance with such request,
order or direction;
(f) the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its
rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders in accordance with Section 6.05
relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture;
(g) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon; and
(h) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, Officers’ Certificate, Opinion of
Counsel, Board Resolution, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture,
note, coupon, security or other paper or document with respect to such series of Securities, unless requested in writing so to do by the
Holders of not less than a majority in aggregate principal amount of the Securities of any series affected then outstanding; provided that,
if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this
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Indenture, the Trustee may require reasonable indemnity against such expenses or liabilities as a condition to proceeding.
Section 7.03. Individual Rights of Trustee and Others . The Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with the Company, any Subsidiary Guarantor or any of their respective Affiliates with the same
rights it would have if it were not the Trustee. Any Agent may do the same with like rights. However, the Trustee is subject to Trust Indenture
Act Sections 310(b) and 311, and the rights, privileges, protections, immunities and benefits given to the Trustee, including without limitation
its right to be compensated, reimbursed, and indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act hereunder. For purposes of Trust Indenture Act Section 311(b)(4)
and (6), the following terms shall have the following meanings:
(a) “ cash transaction ” means any transaction in which full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand; and
(b) “ self-liquidating paper ” means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or
the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company or any Subsidiary
Guarantor arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.
Section 7.04. Trustee’s Disclaimer . The recitals contained herein and in the Securities (except the Trustee’s certificate of authentication)
shall be taken as statements of the Company and not of the Trustee and the Trustee assumes no responsibility for the correctness of the same.
Neither the Trustee nor any of its agents (a) makes any representation as to the validity or adequacy of this Indenture or the Securities or
(b) shall be accountable for the Company’s use or application of the proceeds from the Securities.
Section 7.05. Notice of Default . If any Default with respect to the Securities of any series occurs and is continuing and if such Default is
known to the actual knowledge of a Responsible Officer of the Trustee, the Trustee shall give to each Holder of Securities of such series notice
of such Default within 90 days after it occurs (a) if any Unregistered Securities of such series are then outstanding, to the Holders thereof, by
publication at least once in an Authorized Newspaper and (b) to all Holders of Securities of such series in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, unless such Default shall have been cured or waived before the mailing or publication of
such notice; provided, however, that, except in the case of a Default or Event of Default in the payment of the principal of, premium, if any, or
interest on any Security of such series, the Trustee shall be protected in withholding such notice if the
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Trustee in good faith determines that the withholding of such notice is in the interests of the Holders.
Section 7.06. Reports by Trustee to Holders . The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each May 15 following the date of this Indenture,
deliver to Holders a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a).
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The Company shall promptly notify the Trustee when any
Securities are listed on any stock exchange.
Section 7.07. Compensation and Indemnity . The Company shall pay to the Trustee such reasonable compensation as shall be agreed
upon in writing from time to time for its services. The compensation of the Trustee shall not be limited by any law on compensation of a
Trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses, disbursements
and advances incurred or made by the Trustee or in accordance with the provisions of this Indenture, except for any such expense,
disbursement or advance as may arise from its negligence or bad faith. Such expenses shall include the reasonable compensation and expenses
of the Trustee’s counsel and other persons not regularly in their employ.
The Company shall indemnify the Trustee and any predecessor Trustee for, and hold them harmless against, any loss or liability or
expense incurred by them without negligence, bad faith or willful misconduct on their part arising out of or in connection with the acceptance
or administration of this Indenture and the Securities of any series or the issuance of the Securities or of series thereof or the trusts hereunder
and the performance of duties under this Indenture and the Securities, including the costs and expenses of defending themselves against or
investigating any claim or liability and of complying with any process served upon them or any of their officers in connection with the exercise
or performance of any of their powers or duties under this Indenture and the Securities; provided that the Company need not pay for any
settlement made without its consent, which consent shall not be unreasonably withheld. The Trustee may have separate counsel and the
Company will pay the reasonable fees and expenses of such counsel. The Trustee shall notify the Company promptly of any claim for which it
may seek indemnification; provided, however, the failure to give such notice shall not affect the right to indemnification hereunder except to
the extent of actual prejudice.
To secure the Company’s payment obligations in this Section 7.07, the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee, in its capacity as Trustee, except money or property held in trust for the benefit of the Holders of
particular Securities.
The obligations of the Company under this Section to compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor
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Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the defeasance or
satisfaction and discharge of this Indenture, the registration or removal of the Trustee, or the rejection or termination of this Indenture under
Bankruptcy Law. Such additional indebtedness shall be a senior claim to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities or coupons, and the Securities are hereby
subordinated to such senior claim. Without prejudice to any other rights available to the Trustee under applicable law, if the Trustee renders
services and incurs expenses following an Event of Default under Section 6.01(e) or Section 6.01(f) hereof, the parties hereto and the holders
by their acceptance of the Securities hereby agree that such expenses are intended to constitute expenses of administration under any
Bankruptcy Law.
Section 7.08. Replacement of Trustee . A resignation or removal of the Trustee as Trustee with respect to the Securities of any series and
appointment of a successor Trustee as Trustee with respect to the Securities of any series shall become effective only upon the successor
Trustee’s acceptance of appointment as provided in this Section 7.08.
The Trustee may resign as Trustee with respect to the Securities of any series at any time by so notifying the Company and the Holders as
specified in this Indenture in writing. The Holders of a majority in aggregate principal amount of the outstanding Securities of any series may
at any time remove the Trustee as Trustee with respect to the Securities of such series by so notifying the Trustee in writing and may appoint a
successor Trustee with respect thereto with the consent of the Company. The Company may remove the Trustee as Trustee with respect to the
Securities of any series if: (i) the Trustee is no longer eligible under Section 7.11; (ii) the Trustee is adjudged a bankrupt or insolvent; (iii) a
receiver or other public officer takes charge of the Trustee or its property; or (iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the Securities of any series, or if a vacancy exists in the office of Trustee
with respect to the Securities of any series for any reason, the Company shall use its commercially reasonable efforts to promptly appoint a
successor Trustee with respect thereto. If the successor Trustee with respect to the Securities of any series does not deliver its written
acceptance required by Section 7.09 within 30 days after the retiring Trustee mails the notice of resignation or is removed, the retiring Trustee,
the Company or the Holders of a majority in aggregate principal amount of the outstanding Securities of such series may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect thereto.
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of at least 10% in aggregate principal amount of the then outstanding Securities of any series may petition any court
of competent jurisdiction for the appointment of a successor Trustee.
The Company or successor Trustee shall give notice of any resignation or removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee in respect of the Securities of such series to all Holders of Securities of such series. Each
notice shall include the name of the successor Trustee and the address of its Corporate Trust Office.
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Notwithstanding replacement of the Trustee with respect to the Securities of any series pursuant to this Section 7.08 and Section 7.09, the
Company’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.
Section 7.09. Acceptance of Appointment by Successor . In case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee with
respect to any and all applicable series 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 with respect to any and all applicable series of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges and subject to the lien provided for in Section 7.07, execute and
deliver an instrument transferring to such successor Trustee all the rights, powers and trusts with respect to any and all applicable series of the
retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee
hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent
provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all
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such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be eligible under this
Article 7 and have no conflict of interest under Section 310(b) of the Trust Indenture Act.
Section 7.10. Successor Trustee By Merger, Etc . If the Trustee consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking association, the resulting, surviving or transferee corporation or
national banking association without any further act shall be the successor Trustee hereunder with the same effect as if the successor Trustee
had been named as the Trustee herein; provided that such successor shall be otherwise eligible under this Article 7. In case any Securities shall
have been authenticated, but not delivered, by the Trustee then in office, any successor Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.11. Eligibility . This Indenture shall always have a Trustee who satisfies the requirements of Trust Indenture Act Section 310
(a). The Trustee shall have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of
condition.
Section 7.12. Money Held in Trust . The Trustee shall not be liable for interest on any money received by it hereunder except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the
extent required by law and except for money held in trust under Article 8 of this Indenture.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 8.01. Satisfaction and Discharge of Indenture . If at any time:
(a) (i) the Company shall have paid or caused to be paid the principal of, premium, if any, and interest on all the Securities of any
series outstanding hereunder (other than Securities of such series which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 2.08) as and when the same shall have become due and payable,
(ii) the Company shall have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated
(other than any Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.08), or
(iii) all the Securities of such series not theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year (or, in the case of securities that pay interest at a floating
rate, within the remaining term of the then current interest
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period) or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of
redemption,
and, in the case of clause (iii), the Company shall have irrevocably deposited or caused to be deposited with the Trustee as trust funds the
entire amount in U.S. dollars (other than moneys repaid by the Trustee or any paying agent to the Company in accordance with
Section 8.04) or U.S. Government Obligations, maturing as to principal, premium, if any, and interest in such amounts and at such times
as will insure (without consideration of the reinvestment of such interest) the availability of cash, or a combination thereof, sufficient to
pay at maturity or upon redemption all Securities of such series (other than any Securities of such series which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided in Section 2.08 or delivered to the Trustee for cancellation),
including principal, premium, if any, and interest due or to become due on or prior to such date of maturity or redemption as the case may
be; provided , however , in the event a petition for relief under any applicable federal or state bankruptcy, insolvency or other similar law
is filed with respect to the Company within 91 days after the deposit and the Trustee is required to return the deposited money to the
Company, the Company’s obligations under the Indenture with respect to the Securities of such series shall not be deemed terminated or
discharged;
(b) the Company shall have paid or caused to be paid all other sums payable hereunder by the Company with respect to the
Securities of such series;
(c) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the satisfaction, defeasance and discharge of the Indenture with respect to the Securities of such series
have been complied with; and
(d) the Company has delivered to the Trustee (x) an Opinion of Counsel, by counsel of recognized standing in respect of U.S.
federal income tax matters, to the effect that Holders of Securities of such series will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of the Company’s deposit of funds under this Section 8.01 and will be subject to federal income tax on the
same amount and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had
not occurred or (y) a ruling received from the Internal Revenue Service to the same effect as the aforementioned Opinion of Counsel,
then this Indenture shall cease to be of further effect with respect to any Securities of such series (except as to (i) rights of registration of
transfer and exchange, and the Company’s right of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Securities, (iii) rights of holders to receive payments of principal thereof, premium, if any, and interest thereon, upon the original
stated due dates therefor (but not upon acceleration) and remaining rights of the holders to receive mandatory sinking fund payments, if
any, (iv) the rights, obligations and immunities of the Trustee hereunder and (v) the rights of the Securityholders of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them), and the Trustee, on demand
of the Company accompanied by an Officers’ Certificate and an Opinion of
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Counsel and at the cost and expense of the Company, shall execute proper instruments acknowledging such satisfaction of and
discharging this Indenture with respect to such series; provided , that the rights of Holders of the Securities to receive amounts in respect
of principal of, premium, if any, and interest on the Securities held by them shall not be delayed longer than required by then-applicable
mandatory rules or policies of any securities exchange upon which the Securities are listed. The Company agrees to reimburse the Trustee
for any costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for any services thereafter reasonably
and properly rendered by the Trustee in connection with this Indenture or the Securities of such series.
Section 8.02. Application by Trustee of Funds Deposited for Payment of Securities . Subject to Section 8.04, all moneys (including U.S.
Government Obligations and the proceeds thereof) deposited with the Trustee pursuant to Section 8.01, Section 8.05 or Section 8.06 shall be
held in trust and applied by the Trustee in accordance with the provisions of such Securities and the Indenture to the payment, either directly or
through any Paying Agent (other than the Company acting as its own Paying Agent) to the Holders of the particular Securities of such series
for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for
principal, premium, if any, and interest, if any; but such money need not be segregated from other funds except to the extent required by law.
Section 8.03. Repayment of Moneys Held by Paying Agent . In connection with the satisfaction and discharge of this Indenture with
respect to Securities of any series, all moneys then held by any Paying Agent, other than the Trustee, under the provisions of this Indenture
with respect to such series of Securities shall, upon and in accordance with the demand of the Company, be repaid to it or paid to the Trustee
and thereupon such Paying Agent shall be released from all further liability with respect to such moneys.
Section 8.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years . Any moneys deposited with or paid to the
Trustee or any Paying Agent for the payment of the principal of or interest or premium, if any, on any Security of any series and not applied but
remaining unclaimed for two years after the date upon which such principal, interest or premium, if any, shall have become due and payable,
shall, upon the written request of the Company and unless otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Company by the Trustee for such series or such Paying Agent, and the Holder of the Security of such
series shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look
only to the Company for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any Paying Agent with
respect to such moneys shall thereupon cease.
Section 8.05. Defeasance and Discharge of Indenture . The Company and each Subsidiary Guarantor shall be deemed to have paid and
shall be discharged from any and all obligations in respect of the Securities of any series, on the 123rd day after the deposit referred to in clause
(a) hereof has been made, and the provisions of this Indenture shall no longer be in effect with respect to the Securities of such series (and the
Trustee, upon request and at the expense of the Company, shall execute proper instruments acknowledging the same), except as to: (1) rights of
registration of transfer and exchange, and the Company’s right of optional
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redemption, if any, (2) substitution of mutilated, defaced, destroyed, lost or stolen Securities, (3) rights of holders to receive payments of
principal thereof, premium, if any, and interest thereon, upon the original stated due dates therefor (but not upon acceleration) and remaining
rights of the Holders to receive mandatory sinking fund payments, if any, (4) the rights, obligations and immunities of the Trustee hereunder
and (5) the rights of the Securityholders of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable
to all or any of them; provided that the following conditions shall have been satisfied:
(a) with reference to this provision, the Company has deposited or caused to be irrevocably deposited with the Trustee, in trust,
specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series, money or the
equivalent in U.S. Government Obligations, or any combination thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification delivered to the Trustee, for payment of all (x) the principal of,
premium, if any, and each installment of interest on the outstanding Securities of such series on the due dates thereof and (y) any
mandatory sinking fund payments or analogous payments applicable to the Securities of such series on the day on which such payments
are due and payable in accordance with the terms of Securities of such series and the Indenture with respect to the Securities of such
series;
(b) the deposit does not cause the Trustee with respect to the Securities to have a conflicting interest (within the meaning of
Section 310(b) of the Trust Indenture Act) with respect to the Securities of such series;
(c) the deposit will not result in a breach or violation of, or constitute a Default under, the Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound; and
(d) on the date of such deposit, (i) there is no continuing Event of Default, or event (including such deposit) which, with notice or
lapse of time or both, would become an Event of Default with respect to the Securities of such series, and (ii) no Event of Default under
the provisions of Section 6.01(e) or Section 6.01(f) or event which, with notice or lapse of time or both, would become an Event of
Default under such bankruptcy or insolvency provisions shall have occurred and be continuing on the 91st day after such date; and
(e) the Company has delivered to the Trustee (x) an Opinion of Counsel, by counsel of recognized standing in respect of U.S.
federal income tax matters, to the effect that Holders of Securities of such series will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of the Company’s exercise of its option under this Section 8.05 and will be subject to federal income tax
on the same amount and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge
had not occurred or (y) a ruling received from the Internal Revenue Service to the same effect as the aforementioned Opinion of Counsel.
Section 8.06. Defeasance of Certain Obligations . The Company and each Subsidiary Guarantor may omit to comply with any term,
provision or condition set forth in, and this
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Indenture shall no longer be in effect with respect to the obligations of the Company and each Subsidiary Guarantor set forth in, Section 4.09 or
Section 4.11; and Section 6.01(c) and Section 6.01(d) shall no longer constitute an Event of Default; provided the following conditions have
been satisfied:
(a) with reference to this provision the Company has deposited or caused to be irrevocably deposited with the Trustee (or another
qualifying trustee satisfying the requirements of Section 7.11) as trust funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of such series, (i) money in an amount, or (ii) U.S. Government Obligations which
through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than one day before
the due date of any payment referred to in subclause (x) or (y) of this clause (i) money in an amount, or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge without consideration of the reinvestment of such interest and after payment of all federal,
state and local taxes or other charges and assessments in respect thereof payable by the Trustee (x) the principal of, premium, if any, and
each installment of interest on the outstanding Securities of such series on the due dates thereof and (y) any mandatory sinking fund
payments or analogous payments applicable to the Securities of such series on the day on which such payments are due and payable in
accordance with the terms of Securities of such series and the Indenture with respect to the Securities of such series;
(b) on the date of such deposit, no Event of Default, or event (including such deposit) that, after the giving of notice or lapse of time
or both, would become an Event of Default, shall have occurred and be continuing;
(c) the deposit does not cause the Trustee with respect to the Securities to have a conflicting interest (within the meaning of
Section 310(b) of the Trust Indenture Act) with respect to the Securities of such series;
(d) the deposit will not result in a breach or violation of, or constitute a Default under, the Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound; and
(e) the Company has delivered to the Trustee (x) an Opinion of Counsel, by counsel of recognized standing in respect of U.S.
federal income tax matters, to the effect that Holders of Securities of such series will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of the Company’s exercise of its option under this Section 8.06 and will be subject to federal income tax
on the same amount and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge
had not occurred or (y) a ruling received from the Internal Revenue Service to the same effect as the aforementioned Opinion of Counsel.
Notwithstanding the foregoing, if the Company exercises its option with respect to the Securities of a series under this Section 8.06 and
an Event of Default under the provisions of Section 6.01(e) or Section 6.01(f) or event which, with notice or lapse of time or both, would
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become an Event of Default under such bankruptcy or insolvency provisions shall have occurred and be continuing on the 91st day after the
date of such deposit referred to in clause (a) above, the obligation of the Company and each Subsidiary Guarantor to comply with Section 4.09
or Section 4.11 and Section 6.01(c) with respect to the Securities of such series shall be reinstated.
Section 8.07. Reinstatement . If the Trustee or Paying Agent is unable to apply any monies or U.S. Government Obligations in
accordance with this Article 8 to pay any principal, premium, if any, or interest, if any, with respect to the Securities of any series by reason of
any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company’s and the Subsidiary Guarantors’ obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to this Article 8 until such time as the Trustee or Paying Agent is
permitted to apply all such monies or U.S. Government Obligations in accordance with this Article 8; provided, however, that if the Company
has made any payment of principal of, premium, if any, or interest, if any, on any Securities of such series because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the monies or U.S.
Government Obligations held by the Trustee or Paying Agent.
Section 8.08. Indemnity . The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this
Section 8.08 and Section 8.02, the “Trustee”) against any tax, fee or other charge, imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 8.01, 8.05 or 8.06 or the principal or interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the Securities and any coupons appertaining thereto.
Section 8.09. Excess Funds . Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon request of the Company any money or U.S. Government Obligations (or other property and any proceeds therefrom)
held by it as provided in Section 8.01, 8.05 or 8.06 which, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect a discharge or defeasance, as applicable, in accordance with this Article 8.
Section 8.10. Qualifying Trustee . Any trustee appointed pursuant to Section 8.05 or 8.06 for the purpose of holding money or U.S.
Government Obligations deposited pursuant to such Sections shall be appointed under an agreement in form acceptable to the Trustee and shall
provide to the Trustee a certificate, upon which certificate the Trustee shall be entitled to conclusively rely, that all conditions precedent
provided for herein to the related defeasance have been complied with. In no event shall the Trustee be liable for any acts or omissions of said
trustee.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Amendments Without Consent of Holders . The Company, the Subsidiary Guarantors and the Trustee may, at any time and
from time to time, amend the Indenture or the
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Securities of any series without notice to or the consent of any Holder for any of the following purposes:
(i) to effect the assumption of the Company’s or any Subsidiary Guarantor’s obligations under this Indenture by a successor
Person;
(ii) to impose additional covenants and Events of Default or to add Guarantees of other Persons for the benefit of the Holders;
(iii) to add or change any of the provisions of this Indenture relating to the issuance or exchange of the Securities of such
series in registered form, but only if such action does not adversely affect the interests of the Holders of the outstanding Securities
of such series or related coupons in any material respect;
(iv) to change or eliminate any of the provisions of this Indenture, but only if the change or elimination becomes effective
when there are no outstanding Securities of any series, or related coupon, which are entitled to the benefit of such provision and as
to which such modification would apply;
(v) to secure the Securities of any series;
(vi) to supplement any of the provisions of this Indenture to permit or facilitate the defeasance and discharge of the Securities
of any series, but only if such action does not adversely affect the interests of the Holders of outstanding Securities of any series or
related coupons in any material respect;
(vii) to establish the form or terms of the Securities of any series and coupons, if any, of any Securities of such series as
permitted by this Indenture;
(viii) to evidence and provide for the acceptance of appointment by a successor Trustee and to add to or change any of the
provisions of this Indenture to facilitate the administration of the trusts by more than one Trustee;
(ix) to correct any mistakes or defects in this Indenture, but only if such action does not adversely affect the interests of the
Holders of outstanding Securities or related coupons in any material respect or otherwise amend this Indenture in any respect that
does not adversely affect the interests of the Holders of outstanding Securities or related coupons;
(x) to conform the text of this Indenture, the Securities or the Note Guarantees to any provision of a description of such
Securities appearing in a prospectus or prospectus supplement or an offering memorandum or offering circular pursuant to which
such Securities were offered to the extent that such provision was intended to be a verbatim recitation of a provision of this
Indenture, the Securities or the Note Guarantees;
(xi) to allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee with respect to the Securities of a
particular series; and
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(xii) to comply with requirements of the Commission in order to effect or maintain the qualification of this Indenture under
the Trust Indenture Act.
Section 9.02. Amendments with Consent of Holders . (a) Subject to Section 9.02(b), the Company, the Subsidiary Guarantors and the
Trustee may amend the Indenture and the Securities of any series, with the consent of the Holders of not less than a majority in principal
amount of the Securities affected by such modification, to add, change or eliminate any provision of, or to modify the rights of such Holders
under, the Indenture.
(b) Notwithstanding the provisions of Section 9.02(a), without the consent of each Holder of outstanding Securities of any series
affected, an amendment or waiver may not
(i) change the stated maturity of the principal of, or any installment of interest on, the Securities of any series (or related
coupon), reduce the principal amount thereof, the interest thereon or any premium payable upon redemption thereof or change the
currency or currencies in which the principal, premium or interest is denominated or payable;
(ii) reduce the amount of, or impair the right to institute suit for the enforcement of, any payment on the Securities of any
series following maturity thereof;
(iii) reduce the percentage in principal amount of the outstanding Securities of any series required for consent to any waiver of
Defaults or compliance with the provisions of this Indenture with respect to such series;
(iv) release any Subsidiary Guarantor from any of its obligations under its Note Guarantee or this Indenture, except in
accordance with the terms of this Indenture; or
(v) modify any provision of this Indenture relating to modifications and waivers of Defaults and covenants, except to increase
any such percentage or to provide that certain other provisions cannot be modified or waived without the consent of each Holder of
outstanding Securities affected thereby.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of Securities, or which modifies the rights of Holders of Securities of such series
with respect to such covenant or provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any
other series or of the coupons appertaining to such Securities.
It shall not be necessary for the consent of any Holder under this Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.
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An amendment, supplement or waiver under this Section shall become effective on receipt by the Trustee of written consents from the
Holders of the requisite percentage in principal amount of the outstanding Securities affected thereby. After an amendment, supplement or
waiver under this Section 9.02 becomes effective, the Company shall give to the Holders affected thereby a notice briefly describing the
amendment, supplement or waiver. The Company shall mail supplemental indentures to Holders upon request. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or
waiver.
Section 9.03. Revocation and Effect of Consent . Until an amendment or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the
Security of the consenting Holder, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder
may revoke the consent as to its Security or portion of its Security. Such revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes effective.
The Company may, but shall not be obligated to, fix a record date (which may be not less than five nor more than 60 days prior to the
solicitation of consents) for the purpose of determining the Holders of the Securities of any series affected entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then, notwithstanding the immediately preceding paragraph, those Persons who
were such Holders at such record date (or their duly designated proxies) and only those Persons shall be entitled to consent to such amendment,
supplement or waiver or to revoke any consent previously given, whether or not such Persons continue to be such Holders after such record
date. No such consent shall be valid or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective with respect to the Securities of any series affected thereby, it shall bind
every Holder of such Securities unless it is of the type described in Section 9.02, in which case the amendment or waiver shall bind each such
Holder who has consented to it and every subsequent Holder of a Security that evidences the same indebtedness as the Security of the
consenting Holder.
Section 9.04. Notation on or Exchange of Securities . If an amendment, supplement or waiver changes the terms of any Security, the
Trustee may require the Holder thereof to deliver it to the Trustee. The Trustee may place an appropriate notation on the Security about the
changed terms and return it to the Holder and the Trustee may place an appropriate notation on any Security of such series thereafter
authenticated. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security of the same series and tenor that reflects the changed terms.
Section 9.05. Trustee to Sign Amendments, Etc . The Trustee shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article 9 is authorized or
permitted by this Indenture, stating that all requisite consents have been obtained or that no consents are required and stating that such
supplemental indenture constitutes the legal, valid and binding obligation of the Company and the Subsidiary Guarantors, enforceable against
the
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Company and the Subsidiary Guarantors in accordance with its terms, subject to customary exceptions. The Trustee may, but shall not be
obligated to, execute any such amendment, supplement or waiver that affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.
Section 9.06. Conformity With Trust Indenture Act . Every supplemental indenture executed pursuant to this Article 9 shall conform to
the requirements of the Trust Indenture Act.
ARTICLE 10
SUBSIDIARY GUARANTORS
Section 10.01. Guarantees .
(a) Each Subsidiary Guarantor hereby irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety,
the due and punctual payment and performance of all of the Guaranteed Obligations of such Subsidiary Guarantor, jointly with the other
Subsidiary Guarantors and severally. Each of the Subsidiary Guarantors further agrees that its Guaranteed Obligations may be extended
or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any such Guaranteed Obligation. Each of the Subsidiary Guarantors waives presentment to,
demand of payment from and protest to the Company or any Subsidiary Guarantor of any of its Guaranteed Obligations, and also waives
notice of acceptance of its guarantee, notice of protest for nonpayment and all similar formalities.
(b) Each of the Subsidiary Guarantors further agrees that its guarantee hereunder constitutes a guarantee of payment when due and
not of collection, and waives any right to require that any resort be had by the Trustee or any Holder to any security held for the payment
of its Guaranteed Obligations or to any balance of any deposit account or credit on the books of the Trustee or any Holder in favor of the
Company.
(c) Except for termination of a Subsidiary Guarantor’s obligations hereunder or a release of such Subsidiary Guarantor pursuant to
Section 10.08, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or
termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any
defense or set-off, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the
Guaranteed Obligations of such Subsidiary Guarantor or otherwise. Without limiting the generality of the foregoing, the obligations of
each Subsidiary Guarantor hereunder shall not be discharged or impaired or otherwise affected by (i) the failure of the Trustee or any
Holder to assert any claim or demand or to enforce any right or remedy under the provisions of this Indenture or otherwise; (ii) any
rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Indenture or any other
agreement, including with respect to any other Subsidiary Guarantor under this Agreement; (iii) any Default, failure or delay, willful or
otherwise, in the performance of the Guaranteed Obligations of such Subsidiary Guarantor; or (iv) any other act or omission that may or
might in any manner or to any
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extent vary the risk of such Subsidiary Guarantor or otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or
equity (other than the indefeasible payment in full in cash of all the Guaranteed Obligations of such Subsidiary Guarantor).
(d) To the fullest extent permitted by applicable law, each Subsidiary Guarantor waives any defense based on or arising out of any
defense of the Company or any other Subsidiary Guarantor or the unenforceability of the Guaranteed Obligations of such Subsidiary
Guarantor or any part thereof from any cause, or the cessation from any cause of the liability of the Company or any other Subsidiary
Guarantor, other than the indefeasible payment in full in cash of all the Guaranteed Obligations of such Subsidiary Guarantor. The
Trustee may, at its election, compromise or adjust any part of the Guaranteed Obligations, make any other accommodation with the
Company or any Subsidiary Guarantor or exercise any other right or remedy available to them against the Company or any Subsidiary
Guarantor, in each case without affecting or impairing in any way the liability of any Subsidiary Guarantor hereunder except to the extent
the Guaranteed Obligations of such Subsidiary Guarantor have been fully and indefeasibly paid in full in cash. To the fullest extent
permitted by applicable law, each Subsidiary Guarantor waives any defense arising out of any such election even though such election
operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such
Subsidiary Guarantor against the Company or any other Subsidiary Guarantor, as the case may be.
(e) Each of the Subsidiary Guarantors agrees that its guarantee hereunder shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of any Guaranteed Obligation of such Subsidiary Guarantor is rescinded or must
otherwise be restored by the Trustee upon the bankruptcy or reorganization of the Company, any other Subsidiary Guarantor or
otherwise.
(f) Each Subsidiary Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees
that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Note Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and
(2) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due
and payable) will forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Note Guarantee.
Section 10.02. Limitation on Liability . Any term or provision of this Indenture to the contrary notwithstanding, the maximum aggregate
amount of the Guaranteed Obligations guaranteed hereunder by any Subsidiary Guarantor shall not exceed the maximum amount that can be
hereby guaranteed without rendering this Indenture, as it relates to such Subsidiary Guarantor, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
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Section 10.03. Successors and Assigns . This Article 10 shall be binding upon each Subsidiary Guarantor and its successors and assigns
and shall inure to the benefit of the successors, transferees and assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges conferred upon that party in this Indenture and in the Securities
shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions of this Indenture.
Section 10.04. No Waiver . Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article 10 shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further
exercise of any right, power or privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly specified are
cumulative and not exclusive of any other rights, remedies or benefits which either may have under this Article 10 at law, in equity, by statute
or otherwise.
Section 10.05. Modification . No modification, amendment or waiver of any provision of this Article 10, nor the consent to any departure
by any Subsidiary Guarantor therefrom, shall in any event be effective unless the same shall be in writing and signed by the Trustee, and then
such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any
Subsidiary Guarantor in any case shall entitle such Subsidiary Guarantor to any other or further notice or demand in the same, similar or other
circumstances.
Section 10.06. Execution and Delivery of Note Guarantee . To evidence its Note Guarantee set forth in Section 10.01 hereof, each
Subsidiary Guarantor hereby agrees that a notation of such Note Guarantee shall be substantially in such form or forms (not inconsistent with
this Indenture) as shall be established by or pursuant to one or more Board Resolutions or in one or more indentures supplemental hereto, and
shall be endorsed by an Officer of such Subsidiary Guarantor on each Security authenticated and delivered by the Trustee and that this
Indenture will be executed on behalf of such Subsidiary Guarantor by one of its Officers.
Each Subsidiary Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 hereof will remain in full force and effect
notwithstanding any failure to endorse on each Security a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee
authenticates the Security on which a Note Guarantee is endorsed, the Note Guarantee will be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note Guarantee
set forth in this Indenture on behalf of the Subsidiary Guarantors.
In the event that the Company or any of its Subsidiaries creates or acquires any Domestic Subsidiary after the date of this Indenture, if
required by Section 4.12 hereof, the Company will cause such Domestic Subsidiary to comply with the provisions of Section 4.12 hereof and
this Article 10, to the extent applicable.
Section 10.07. Subsidiary Guarantors May Consolidate, etc., on Certain Terms .
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(a) Except as otherwise provided in Section 10.08 hereof, no Subsidiary Guarantor may sell or otherwise dispose of all or
substantially all of its assets to, or consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving
Person) another Person, other than the Company or another Subsidiary Guarantor, unless immediately after giving effect to such
transaction, no Default or Event of Default exists.
(b) In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by
supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed
upon the Securities and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the
Subsidiary Guarantor, such successor Person will succeed to and be substituted for the Subsidiary Guarantor with the same effect as if it
had been named herein as a Subsidiary Guarantor. Such successor Person thereupon may cause to be signed any or all of the Note
Guarantees to be endorsed upon all of the Securities issuable hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee. All the Note Guarantees so issued will in all respects have the same legal rank and benefit under this Indenture
as the Note Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Note
Guarantees had been issued at the date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 hereof, and notwithstanding Section 10.07(a) and (b), nothing contained in this Indenture
or in any of the Securities will prevent any consolidation or merger of a Subsidiary Guarantor with or into the Company or another
Subsidiary Guarantor, or will prevent any sale or conveyance of the property of a Subsidiary Guarantor as an entirety or substantially as
an entirety to the Company or another Subsidiary Guarantor.
Section 10.08. Release of Subsidiary Guarantor . A Subsidiary Guarantor shall be released from its obligations under this Article 10
(other than any obligation that may have arisen under this Section 10.08):
(a) upon the sale (including any sale pursuant to any exercise of remedies by a holder of Indebtedness of the Company or of such
Subsidiary Guarantor) or other disposition (including by way of consolidation or merger) of a Subsidiary Guarantor;
(b) upon the sale or disposition of all or substantially all the assets of such Subsidiary Guarantor;
(c) upon such Subsidiary Guarantor’s being released as a borrower or guarantor under the Credit Agreement;
(d) unless there is then existing an Event of Default, at such time and for so long as any such Subsidiary Guarantor that became a
Subsidiary Guarantor pursuant to Section 4.12 does not Guarantee any Indebtedness that would have required such Subsidiary Guarantor
to enter into a supplemental indenture pursuant to Section 4.12 and
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the Company provides an Officers’ Certificate to the Trustee certifying that no such Guarantee is outstanding and the Company elects to
have such Subsidiary Guarantor released from this Article 10; or
(e) upon the exercise by the Company of its legal defeasance option or its covenant defeasance option or if the Obligations of the
Company under the Indenture and the Securities are discharged pursuant to Article 8.
provided, however, that in the case of clauses (a) and (b) above, (i) such sale or other disposition is made to a Person other than the Company
or a Subsidiary of the Company, (ii) such sale or disposition is otherwise permitted by this Indenture and (iii) the Company complies with its
obligations under Section 5.01.
At the request of the Company, the Trustee shall execute and deliver an appropriate instrument evidencing such release.
Section 10.09. Contribution . Each Subsidiary Guarantor that makes a payment under its Subsidiary Guarantee shall be entitled upon
payment in full of all Guaranteed Obligations under this Indenture to a contribution from each other Subsidiary Guarantor in an amount equal
to such other Subsidiary Guarantor’s pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors at the
time of such payment determined in accordance with GAAP.
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act of 1939 . This Indenture shall incorporate and be governed by the provisions of the Trust Indenture
Act that are required to be part of and to govern indentures qualified under the Trust Indenture Act.
Section 11.02. Notices . Any notice or communication shall be sufficiently given if written and (a) if delivered in person when received
or (b) if mailed by first class mail 5 days after mailing or (c) as between the Company and the Trustee if sent by facsimile transmission, when
transmission is confirmed, in each case addressed as follows:
if to the Company and/or any Subsidiary Guarantor:
Owens Corning
One Owens Corning Parkway
Toledo, OH 43659
Facsimile No.: (419) 248-5337
Attention: Stephen K. Krull
with a copy to:
Sidley Austin LLP
One South Dearborn Street
Chicago, IL 60603
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Facsimile No.: (312) 853-2238
Attention: Larry A. Barden, Lisa J. Reategui
if to the Trustee:
Wells Fargo Bank, National Association
Corporate Trust & Escrow Services
230 W. Monroe Street, Suite 2900
Chicago, IL 60606
Facsimile No.: (312) 726-2158
Attention: Gregory S. Clarke
The Company, any Subsidiary Guarantor or the Trustee by written notice to the other may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication shall be sufficiently given to Holders of any Unregistered Securities, by publication at least once in an
Authorized Newspaper and by mailing to the Holders thereof who have filed their names and addresses with the Trustee pursuant to
Section 313(c)(2) of the Trust Indenture Act at such addresses as were so furnished to the Trustee and to Holders of Registered Securities by
mailing to such Holders at their addresses as they shall appear on the Security Register. Notice mailed shall be sufficiently given if so mailed
within the time prescribed. Copies of any such communication or notice to a Holder shall also be mailed to the Trustee and each Agent at the
same time.
Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
Except as otherwise provided in this Indenture, if a notice or communication is mailed in the manner provided in this Section 11.02, it is duly
given, whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case it shall be impracticable to give notice as herein contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 11.03. Certificate and Opinion as to Conditions Precedent . Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers’ Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
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(b) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Section 11.04. Statements Required in Certificate or Opinion . Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than the certificate required by Section 4.03) shall include:
(a) a statement that each person signing such certificate or opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statement or opinion contained in
such certificate or opinion is based;
(c) a statement that, in the opinion of each such person, he has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of each such person, such condition or covenant has been complied with.
Section 11.05. Forms of Documents Delivered to Trustee . In any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person,
or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer or counsel knows, or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his or her certificate or opinion is based are erroneous. Any Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel rendering
such Opinion of Counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with
respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions, or
other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 11.06. Evidence of Ownership . The Company, the Trustee and any agent of the Company or the Trustee may deem and treat the
Holder of any Unregistered Security and the Holder of any coupon as the absolute owner of such Unregistered Security or coupon (whether
63
or not such Unregistered Security or coupon shall be overdue) for the purpose of receiving payment thereof or on account thereof and for all
other purposes, and neither the Company, the Trustee, nor any agent of the Company or the Trustee shall be affected by any notice to the
contrary. The fact of the holding by any Holder of an Unregistered Security, and the identifying number of such Security and the date of his
holding the same, may be proved by the production of such Security or by a certificate executed by any trust company, bank, banker or
recognized securities dealer wherever situated satisfactory to the Trustee, if such certificate shall be deemed by the Trustee to be satisfactory.
Each such certificate shall be dated and shall state that on the date thereof a Security bearing a specified identifying number was deposited with
or exhibited to such trust company, bank, banker or recognized securities dealer by the person named in such certificate. Any such certificate
may be issued in respect of one or more Unregistered Securities specified therein. The holding by the person named in any such certificate of
any Unregistered Securities specified therein shall be presumed to continue for a period of one year from the date of such certificate unless at
the time of any determination of such holding (1) another certificate bearing a later date issued in respect of the same Securities shall be
produced or (2) the Security specified in such certificate shall be produced by some other Person or (3) the Security specified in such certificate
shall have ceased to be outstanding. Subject to Article 7, the fact and date of the execution of any such instrument and the amount and numbers
of Securities held by the Person so executing such instrument may also be proven in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in any other manner which the Trustee may deem sufficient.
The Company, the Trustee and any agent of the Company or the Trustee may deem and treat the person in whose name any Registered
Security shall be registered upon the Security Register for such series as the absolute owner of such Registered Security (whether or not such
Registered Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and, subject to the provisions of this Indenture, premium or interest on such Registered Security
and for all other purposes; and neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary.
Section 11.07. Rules by Trustee, Paying Agent or Registrar . The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Paying Agent or Registrar may make reasonable rules for its functions.
Section 11.08. Payment Date Other Than a Business Day . Except as otherwise provided with respect to a series of Securities, if any date
for payment of principal, premium, if any, or interest on any Security shall not be a Business Day at any place of payment, then payment of
principal of, premium, if any, or interest on such Security, as the case may be, need not be made on such date, but may be made on the next
succeeding Business Day at any place of payment with the same force and effect as if made on such date and no interest shall accrue in respect
of such payment for the period from and after such date.
Section 11.09. Governing Law . The laws of the State of New York shall govern this Indenture and the Securities, without regard to
conflicts of law principles thereof.
64
Section 11.10. No Adverse Interpretation of Other Agreements . This Indenture may not be used to interpret another indenture or loan or
debt agreement of the Company or any Subsidiary of the Company. Any such indenture or agreement may not be used to interpret this
Indenture.
Section 11.11. Successors . All agreements of the Company in this Indenture and the Securities shall bind its successors. All agreements
of each Subsidiary Guarantor shall bind its successors, except as otherwise provided by Section 10.08 hereof. All agreements of the Trustee in
this Indenture shall bind its successors.
Section 11.12. Duplicate Originals . The parties may sign any number of copies of this Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement.
Section 11.13. Separability . In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 11.14. Table of Contents, Headings, Etc . The Table of Contents and headings of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms
and provisions hereof.
Section 11.15. Incorporators, Stockholders, Officers and Directors of Company Exempt from Individual Liability . No recourse under or
upon any obligation, covenant or agreement contained in this Indenture or any indenture supplemental hereto, or in any Security or any
coupons appertaining thereto, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such or against any
past, present or future stockholder, officer, director or employee, as such, of the Company, any Subsidiary Guarantor or of any successor of the
foregoing, either directly or through the Company or any successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by
the acceptance of the Securities and the coupons appertaining thereto by the holders thereof and as part of the consideration for the issue of the
Securities and the coupons appertaining thereto.
Section 11.16. Force Majeure . In no event shall the Trustee be responsible or liable, nor shall the Company or the Subsidiary Guarantors
be responsible or liable to the Trustee, for any failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or
computer (software and hardware) services; it being understood that the Trustee or the Company or the Subsidiary Guarantors, as the case may
be, shall use reasonable efforts which are consistent with accepted practices to resume performance as soon as practicable under the
circumstances.
65
Section 11.17. Communication by Holders of Securities with Other Holders of Securities . Holders of Securities of any series may
communicate pursuant to Trust Indenture Act Section 312(b) with other Holders of that series with respect to their rights under this Indenture
or the applicable Securities. The Company, the Trustee, the Registrar and anyone else shall have the protection of Trust Indenture Act Section
312(c).
66
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the date first written above.
OWENS CORNING
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Vice President Finance and Treasurer
By:
/s/ Stephen K. Krull
Name: Stephen K. Krull
Title: Senior Vice President, General Counsel and
Secretary
CDC CORPORATION
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
ENGINEERED PIPE SYSTEMS, INC.
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
ERIC COMPANY
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
FALCON FOAM CORPORATION
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
INTEGREX VENTURES LLC
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
IPM INC.
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
JEFFERSON HOLDINGS, INC.
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
MODULO USA LLC
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
OCCV1, INC.
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
OCCV2, LLC
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
OCV FABRICS US, INC.
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
OWENS CORNING COMPOSITE MATERIALS,
LLC
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
OWENS CORNING CONSTRUCTION SERVICES,
LLC
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
OWENS CORNING MASONRY PRODUCTS, LLC
(F/K/A OWENS CORNING CULTURED STONE,
LLC)
/s/ Michael C. McMurray
By:
Name: Michael C. McMurray
Title: Authorized Signer
OCV INTELLECTUAL CAPITAL, LLC (F/K/A
OWENS-CORNING FIBERGLAS TECHNOLOGY
II, LLC)
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
OWENS CORNING FOAM INSULATION, LLC
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
OWENS CORNING FRANCHISING, LLC
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
OWENS-CORNING FUNDING CORPORATION
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
OWENS CORNING HOMEXPERTS, INC.
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
OWENS CORNING HT, INC.
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
OWENS CORNING INSULATING SYSTEMS, LLC
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
OWENS CORNING INTELLECTUAL CAPITAL,
LLC
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
OWENS CORNING OVERSEAS HOLDING, INC.
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
OWENS CORNING ROOFING AND ASPHALT,
LLC
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
OWENS CORNING SALES, LLC (F/K/A OWENS
CORNING SALES, INC.)
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
OWENS CORNING SCIENCE AND
TECHNOLOGY, LLC
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
OWENS CORNING U.S. HOLDINGS, LLC
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
PALMETTO PRODUCTS, INC.
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
SOLTECH, INC.
By:
/s/ Michael C. McMurray
Name: Michael C. McMurray
Title: Authorized Signer
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
/s/ Gregory S. Clarke
Name: Gregory S. Clarke
Title: Vice President
Exhibit 5.1
SIDLEY AUSTIN LLP
ONE SOUTH DEARBORN
CHICAGO, IL 60603
(312) 853 7000
(312) 853 7036 FAX
BEIJING
BRUSSELS
CHICAGO
DALLAS
FRANKFURT
GENEVA
HONG KONG
LONDON
LOS ANGELES
NEW YORK
SAN FRANCISCO
SHANGHAI
SINGAPORE
SYDNEY
TOKYO
WASHINGTON, D.C.
FOUNDED 1866
June 2, 2009
Owens Corning
One Owens Corning Parkway
Toledo, Ohio 43659
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3 (the “ Registration Statement ”) being filed by Owens Corning, a Delaware
corporation (the “ Company ”), and certain subsidiaries of the Company (the “ Guarantors ”), with the Securities and Exchange Commission
(the “ SEC ”) under the Securities Act of 1933, as amended (the “ Securities Act ”), relating to the registration of an unlimited amount of:
(i) debt securities of the Company (the “ Debt Securities ”) and (ii) guarantees to be issued by the Guarantors to holders of the Debt Securities
(the “ Guarantees ” and, together with the Debt Securities, the “ Securities ”). Unless otherwise specified in the applicable prospectus
supplement, the Debt Securities will be issued pursuant to one or more indentures supplement (each, a Supplemental Indenture”) to be entered
into under the Indenture, dated as of June 2, 2009 (the “ Indenture ”) among the Company, the Guarantors and Wells Fargo Bank, National
Association, as trustee (the “ Trustee ”). We refer herein to the Guarantors listed on Annex A hereto as the “ Specified Guarantors .”
This letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In rendering the opinions expressed below, we have examined and relied upon a copy of the Registration Statement, the exhibits
filed therewith, the Indenture and certain resolutions (the “ Resolutions ”) of the Board of Directors of the Company (the “ Board ”) and the
Boards of Directors of the Specified Guarantors (the “ Specified Guarantor Boards ”), in each case adopted on June 1, 2009. We have also
examined originals, or copies of originals certified to our satisfaction, of such agreements, documents, certificates and statements of
government officials and other instruments, and have examined such questions of law and have satisfied ourselves to such matters of fact, as
we have considered relevant and necessary as a basis for this letter. We have assumed the authenticity of all documents submitted to us as
originals, the genuineness of all signatures, the legal capacity of all persons and the conformity with the original documents of any copies
thereof submitted to us for examination.
Sidley Austin LLP is a limited liability partnership practicing in affiliation with other Sidley Austin partnerships
Owens Corning
June 2, 2009
Page 2
Based on the foregoing, and subject to the assumptions, qualifications and limitations set forth herein, we are of the opinion that:
1. Each series of Debt Securities covered by the Registration Statement will constitute legally issued and validly binding obligations
of the Company enforceable against the Company in accordance with its terms when: (i) the Registration Statement (including any posteffective amendments) shall have become effective under the Securities Act and the Indenture shall have been qualified under the Trust
Indenture Act of 1939, as amended (the “ TIA ”); (ii) a prospectus supplement with respect to such series of Debt Securities shall have been
filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) the Board or a duly authorized
committee thereof shall have duly adopted final resolutions in conformity with the Resolutions authorizing the key terms, issuance and sale of
such series of Debt Securities as contemplated by the Registration Statement and the Indenture and the execution and delivery of a
Supplemental Indenture relating thereto; (iv) the Supplemental Indenture shall have been duly executed and delivered by the Company, each of
the Guarantors and the Trustee; and (v) the Debt Securities shall have been duly executed by the Company and authenticated by the Trustee
and issued as provided in the Indenture, the applicable Supplemental Indenture and the final resolutions of the Board or a duly authorized
committee thereof authorizing the issuance and sale of the Debt Securities, and shall have been duly delivered to the purchasers thereof against
payment of the agreed consideration therefor.
2. The Guarantees will constitute valid and legally binding obligations of the Specified Guarantors when: (i) the Registration
Statement (including any post-effective amendments) shall have become effective under the Securities Act; (ii) the Indenture shall have been
qualified under the TIA; (iii) a prospectus supplement with respect to the Guarantees and the Debt Securities to which the Guarantees relate
shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iv) each Specified
Guarantor Board or a duly authorized committee thereof shall have duly adopted final resolutions in conformity with the Resolutions
authorizing the Guarantee by such Specified Guarantor; (v) the Debt Securities to which the Guarantees relate shall have been duly issued as
set forth above; and (vi) each Specified Guarantor shall have executed the notation of the Guarantee contemplated by the Indenture in
accordance with the Indenture and such resolutions.
The opinions above are subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance,
fraudulent transfer or other similar laws affecting the enforcement of creditors’ rights generally and by the effect of general principles of equity,
regardless of whether considered in a proceeding in equity or at law, and further to the extent the enforcement of any Debt Securities
denominated in currency other than United States dollars may be limited by requirements that a claim (or a foreign currency judgment in
respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law.
Owens Corning
June 2, 2009
Page 3
For the purposes of this letter, we have assumed that, at the time of the issuance, sale and delivery of each series of Debt Securities
and the related Guarantees: (i) any Securities being offered will be issued and sold as contemplated in the Registration Statement or the
prospectus supplement relating thereto; (ii) the terms of any Security will not violate any applicable law or result in a default under or breach of
any agreement or instrument binding upon the Company or the Specified Guarantors, as the case may be, and will comply with any
requirements or restrictions imposed by any court or governmental body having jurisdiction over the Company or the Specified Guarantors, as
the case may be; (iii) the authorization thereof by the Company or the Specified Guarantors, as the case may be, will not have been modified or
rescinded, and there will not have occurred any change in law affecting the validity, legally binding character or enforceability thereof; (iv) the
Indenture will not have been modified or amended; and (v) the organizational documents of the Company and each Specified Guarantor, as
currently in effect, will not have been modified or amended and will be in full force and effect. We have further assumed that each
Supplemental Indenture will be governed by the laws of the State of New York. With respect to any instrument or agreement executed or to be
executed by any party (other than the Company or the Specified Guarantors), we have assumed, to the extent relevant to the opinions set forth
herein, that (i) such party (if not a natural person) has been duly formed or organized and is validly existing and in good standing under the
laws of its jurisdiction of formation or organization and (ii) such party has full right, power and authority to execute, deliver and perform its
obligations under each instrument or agreement to which it is a party and each such instrument or agreement has been duly authorized (if
applicable), executed and delivered by, and is a valid, binding and enforceable agreement or obligation, as the case may be, of such party. We
have also assumed that no event has occurred or will occur that would cause the release of the Guarantee by any Specified Guarantor under the
terms of the Indenture.
This letter is limited to the laws of the State of New York, the Federal laws of the United States of America, the General
Corporation Law of the State of Delaware and the Limited Liability Company Act of the State of Delaware. We express no opinion as to
matters relating to securities or blue sky laws of any jurisdiction or any rules or regulations thereunder (other than federal securities laws).
We hereby consent to the filing of this letter as an Exhibit to the Registration Statement and to all references to our firm included in
or made a part of the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules or regulations promulgated thereunder.
Very truly yours,
/s/ Sidley Austin LLP
ANNEX A
SPECIFIED GUARANTORS
Engineered Pipe Systems, Inc.
Eric Company
Falcon Foam Corporation
INTEGREX Ventures LLC
IPM Inc.
Jefferson Holdings, Inc.
Modulo USA LLC
OCCV1, Inc.
OCCV2, LLC
Owens Corning Composite Materials, LLC
Owens Corning Construction Services, LLC
Owens Corning Masonry Products, LLC (f/k/a Owens Corning Cultured Stone, LLC)
OCV Intellectual Capital, LLC (f/k/a Owens-Corning Fiberglas Technology II, LLC)
Owens Corning Foam Insulation, LLC
Owens Corning Franchising, LLC
Owens-Corning Funding Corporation
Owens Corning HOMExperts, Inc.
Owens Corning HT, Inc.
Owens Corning Insulating Systems, LLC
Owens Corning Intellectual Capital, LLC
Owens Corning Overseas Holding, Inc.
Owens Corning Roofing and Asphalt, LLC
Owens Corning Sales, LLC (f/k/a Owens Corning Sales, Inc.)
Owens Corning Science and Technology, LLC
Owens Corning U.S. Holdings, LLC
Palmetto Products, Inc.
Exhibit 5.2
June 2, 2009
Owens Corning
One Owens Corning Parkway
Toledo, OH 43659
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel in the Commonwealth of Kentucky (“ Kentucky ”) to Soltech, Inc., a Kentucky corporation (the “ Kentucky
Guarantor ”), a wholly owned subsidiary of Owens Corning, a Delaware corporation (the “ Company ”), in connection with the Company’s and
the Guarantors’ (as that term is defined below) filing of a Registration Statement on Form S-3 (the “ Registration Statement ”) with the
Securities and Exchange Commission (the “ Commission ”) on June 3, 2009, under the Securities Act of 1933, as amended (the “ Securities
Act ”), and the rules and regulations under the Securities Act. As more particularly described in the Registration Statement, the Company may
issue certain debt securities from time to time in one or more series (the “ Debt Securities ”), under the Indenture (the “ Base Indenture ”) dated
as of June 2, 2009, among the Company, the subsidiaries of the Company described therein as guarantors (“ Guarantors ”) and Wells Fargo
Bank, National Association, as trustee (the “ Trustee ”) or any other indenture which the Company and the Guarantors identify in a prospectus
supplement (the Base Indenture and any other such indenture is referred to as the “ Indenture ”), which Debt Securities will be guaranteed by
the Kentucky Guarantor.
In rendering the opinions expressed below, we have examined and relied upon (i) a copy of the Registration Statement delivered to us by
counsel to the Company; (ii) a copy of the Indenture delivered to us by counsel to the Company; (iii) a copy of the Articles of Incorporation of
the Kentucky Guarantor, as certified by the Secretary of State of Kentucky on May 29, 2009 (the “ Articles of Incorporation ”), (iv) a
Certificate of Existence for the Kentucky Guarantor, as issued by the Secretary of State of Kentucky on June 1, 2009 (the “ Certificate of
Existence ”); (v) a copy of the by-laws of the Kentucky Guarantor (the “ Bylaws ”), as certified by the Secretary of the Kentucky Guarantor,
and (vi) a copy of all proceedings, actions and resolutions of the board of directors of the Kentucky Guarantor relating to the Registration
Statement and the Indenture. In such review, we have assumed the authenticity of all documents submitted to us as originals, the genuineness
of all signatures, the legal capacity of natural persons and the conformity to the originals of all documents submitted to us as copies. Without
independent investigation, we have relied upon and assumed the accuracy and completeness of (i) certificates and statements of officers of the
Kentucky Guarantor as to factual matters, (ii) corporate records provided to us by such officers, (iii) certificates, copies and other documents
obtained from public officials, and (iv) the representations and warranties contained in the Registration Statement as to factual matters.
Owens Corning
June 2, 2009
Page 2
We also have assumed without investigation that (i) the Registration Statement has been duly authorized, executed and delivered by all
parties to the Registration Statement and the Indenture other than the Kentucky Guarantor; (ii) the Registration Statement is enforceable in
accordance with its terms against all the parties to the Registration Statement (including the Kentucky Guarantor); and (iii) the Kentucky
Guarantor’s execution, delivery or performance of the Registration Statement will not breach, violate, conflict with or constitute a default under
any agreement (other than the Registration Statement), contract or obligation of the Kentucky Guarantor. We have further assumed, without
investigation, the receipt or making of any consent, approval, order or authorization of, and the effectiveness of any registration or filing with,
any third party or governmental body that is required to be received or made by any party in connection with the execution, delivery and filing
of the Registration Statement or the Indenture or the consummation of the transactions contemplated thereby.
Based on the foregoing, and subject to the assumptions, qualifications and limitations set forth in this opinion (the “ Opinion ”), we are of
the opinion that:
1. The Kentucky Guarantor is a corporation duly incorporated and, based solely on the Certificate of Existence validly existing under the
laws of Kentucky.
2. The Kentucky Guarantor has the corporate power and authority to execute, deliver and perform its obligations under the Registration
Statement.
3. The Kentucky Guarantor has authorized the (i) execution and delivery of the Indenture and (ii) performance by the Kentucky
Guarantor of its obligations under the Indenture.
4. The Registration Statement has been duly authorized, executed and delivered by the Kentucky Guarantor.
Our opinions are limited by and subject to the following:
(a) This Opinion is limited to the laws of Kentucky, and we express no opinion concerning the laws of any other jurisdiction or whether
such laws may apply, under a conflict of laws analysis or otherwise. We express no opinion as to matters relating to securities or blue sky laws
of any jurisdiction or any rules or regulations thereunder. We express no opinion as to the enforceability of the Registration Statement or the
Indenture.
(b) This Opinion relates solely to matters existing as of the date of this Opinion, and we disclaim any obligation to update this Opinion
for events occurring after this date.
This Opinion is for your benefit in connection with the transactions contemplated by the Registration Statement and the Indenture and
may be relied upon only by you and other persons entitled to rely upon it pursuant to the applicable provisions of federal securities laws. We
consent to your filing this Opinion as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal
Matters.” In giving such consent, we do not thereby admit that we are within the
Owens Corning
June 2, 2009
Page 3
category of persons for whom consent is required by Section 7 of the Securities Act or the related rules promulgated by the Commission
thereunder.
Very truly yours,
/s/ STITES & HARBISON PLLC
Exhibit 5.3
June 2, 2009
Owens Corning
One Owens Corning Parkway
Toledo, Ohio 43659
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Ladies/Gentlemen:
We have acted as local Wisconsin counsel to CDC Corporation, a Wisconsin corporation (the “ Guarantor ”), in connection with that
certain Indenture dated as of the date hereof (the “ Indenture ”) among the Guarantor, Owens Corning, a Delaware corporation (the “ Company
”), certain other subsidiaries of the Company and Wells Fargo Bank, National Association, as trustee (the “ Trustee ”) providing for the
issuance by the Company of debt securities to be issued in one or more series from time to time (collectively, the “ Debt Securities ”). Pursuant
to the Indenture, the Debt Securities are and will be guaranteed by the Guarantor (the “ Guarantee ”).
In rendering this opinion we have, with your permission, relied on an officer’s certificate as to certain factual matters.
Based upon the foregoing, but subject to the assumptions, qualifications and limitations set forth herein, we are of the opinion that:
1. The Guarantor is a corporation validly existing under the laws of the State of Wisconsin and, based solely on a certificate issued by the
Wisconsin Department of Financial Institutions (the “ Department ”): (a) the Guarantor has filed with the Department during its most recently
completed report year the required annual report; and (b) Articles of Dissolution of the Guarantor have not been filed with the Department.
2. The Guarantor has the corporate power and authority to enter into, and perform its obligations under, the Indenture.
3. The execution, delivery and performance of the Indenture have been duly authorized by all necessary corporate action on the part of
the Guarantor.
4. The execution and filing with the Securities and Exchange Commission of the Registration Statement (as such term is defined below)
have been duly authorized by all necessary corporate action on the part of the Guarantor.
Owens Corning
Sidley Austin LLP
June 2, 2009
Page 2
The opinions expressed herein are limited to the laws of the State of Wisconsin in effect on the date hereof as they presently apply and we
express no opinion herein as to the laws of any other jurisdiction; provided, however, we express no opinion regarding any securities laws,
rules or regulations of the State of Wisconsin. These opinions are given as of the date hereof, they are intended to apply only to those facts and
circumstances that exist as of the date hereof, and we assume no obligation or responsibility to update or supplement these opinions to reflect
any facts or circumstances that may hereafter come to our attention or any changes in laws that may hereafter occur, or to inform the addressees
of any change in circumstances occurring after the date hereof that would alter the opinions rendered herein.
This opinion is limited to the matters set forth herein, and no opinion may be inferred or implied beyond the matters expressly contained
herein. This opinion is being provided solely for the benefit of the addressees hereof in connection with the Registration Statement on Form S-3
(the “ Registration Statement ”) relating to the registration of the Debt Securities and the Guarantee. This opinion may not be used or relied
upon for any other purpose, relied upon by any other party, or filed with or disclosed to any governmental authority without our prior written
consent.
We hereby consent to the use of our name beneath the caption “Legal Matters” in the prospectus forming part of the Registration
Statement and to the filing of a copy of this opinion as an exhibit thereto. In giving our consent, we do not admit that we are “experts” within
the meaning of Section 11 of the Securities Act of 1933 (the “ Act ”) or within the category of persons whose consent is required by Section 7
of the Act.
Very truly yours,
REINHART BOERNER VAN DEUREN s.c.
BY /s/ Benjamin G. Lombard
Benjamin G. Lombard
Exhibit 5.4
One Monument Square
Portland, ME 04101-1110
207-791-1100 voice
207-791-1350 fax
[email protected]
pierceatwood.com
June 2, 2009
Owens Corning
One Owens Corning Parkway
Toledo, OH 43659
Re: OCV Fabrics US, Inc.
Ladies and Gentlemen:
We have acted as special Maine counsel for OCV Fabrics US, Inc., a Maine corporation (the “Company”), in connection with the matters
set forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our examination of documents has been limited to the examination of originals
or copies of the following:
(a) The Articles of Incorporation of the Company, as certified by the office of the Secretary of State of the State of Maine (the “Secretary
of State”), on June 1, 2009 (the “Articles of Incorporation”);
(b) The Bylaws of the Company as amended to date (as so amended, the “Bylaws”);
(c) The Unanimous Written Consent of the Board of Directors of the Company, dated as of June 1, 2009 (the “Consent”), relating to
certain matters;
(d) The Registration Statement on Form S-3 (the “Registration Statement”), including a prospectus (the “Prospectus”), relating to the debt
securities (as defined therein) of Owens Corning and the related guarantees thereof by the Company and certain of its affiliates, as proposed to
be filed by Owens Corning, the Company and certain of their affiliates with the Securities and Exchange Commission on or about June 2, 2009;
(e) The Indenture, dated as of June 2, 2009, among Owens Corning, the Company, certain of their affiliates and the Trustee (as defined
therein) (the “Indenture”); and
(f) A Certificate of Good Standing for the Company, dated May 28, 2009, obtained from the Secretary of State.
For purposes of this opinion, we have not reviewed any documents other than the documents listed in paragraphs (a) through (f) above. In
particular, we have not reviewed any
Page 2
June 2, 2009
document (other than the documents listed in paragraphs (a) through (f) above) that is referred to in or incorporated by reference into the
documents reviewed by us. We have assumed that there exists no provision in any document that we have not reviewed that is inconsistent with
the opinions stated herein.
We have assumed (a) the authenticity and completeness of documents purporting to be originals (whether examined in original or copy
form), the conformity to originals of documents purporting to be photostatic copies of originals, and the genuineness of all signatures, (b) that
each of the Trustee and the signatories to the Indenture other than the Company has all requisite power and authority and has taken all
necessary corporate or other actions to execute and deliver the instruments and agreements to which it is a party and to effect the transactions
contemplated thereby, (c) the accuracy and completeness of all statements contained in certificates of public officials, upon which we have
relied in preparing this opinion, and (d) the completeness of all corporate records of the Company furnished to us, but which on their face
appear to be complete.
In rendering the opinions set forth herein, we have also, with your approval, assumed the accuracy and completeness of all factual
representations made by the parties in the Indenture and all statements of fact made to us by the Company. As to certain matters of fact not
within our knowledge, we have relied solely on factual representations by the Company, and our opinion is, therefore, as to such factual
matters, based solely thereon. We have not undertaken any independent investigation to verify any matters of fact, representations or statements
made to us.
In rendering this opinion, we have relied as to matters of fact, without independent investigation, upon an Officer’s Certificate of the
Company, dated the date hereof, certifying as to the Consent, the Articles of Incorporation, the Bylaws and certain other matters, as specified
therein.
We have not participated in the preparation of the Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Maine (excluding the securities laws of the State of Maine), and we have not considered
and express no opinion on the laws of any other jurisdiction, including federal laws and rules and regulations relating thereto. Our opinions are
rendered only with respect to Maine laws and rules, regulations and orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions of law and statutes of the State of Maine as we have considered
necessary or appropriate, and subject to the assumptions, qualifications, limitations and exceptions set forth herein, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing in good standing as a corporation under Maine law governing
corporations.
Page 3
June 2, 2009
2. Under the Maine Business Corporation Act, 13-C M.R.S. Section 101 et seq. (the “Act”), the Articles of Incorporation, the Bylaws and
the Consent, the Company has all necessary corporate power and authority to execute and deliver the Indenture, and to perform its obligations
thereunder. To the extent governed by the Act, the Indenture has been duly executed and delivered by the Company.
3. Under the Act, the Articles of Incorporation, the Bylaws and the Consent, the execution and delivery by the Company of the Indenture,
and the performance by the Company of its obligations under the Indenture, have been duly authorized by all necessary corporate action on the
part of the Company.
4. Under the Act, the Articles of Incorporation, the Bylaws and the Consent, the Company has all necessary corporate power and
authority to file, or cause to be filed, with the Securities and Exchange Commission the Registration Statement, and the execution and filing
thereof by the Company has been duly authorized by all necessary corporate action on the part of the Company.
We consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement. We
also consent to Sidley & Austin LLP’s relying as to matters of Maine law upon this opinion in connection with an opinion to be rendered by it
on the date hereof. In addition, we hereby consent to the use of our name under the heading “Legal Matters” in the Prospectus. In giving the
foregoing consents, 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. Except as stated
above, without our prior written consent, this opinion may not be furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/
PIERCE ATWOOD LLP
Exhibit 12
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for the years period indicated:
For the
Three
Months Ended
March 31,
2009
Successor
For the
For the
Twelve
Twelve
Months Ended
Months Ended
Predecessor
For the
Two
Months Ended
For the
Ten
Months Ended
For the
Twelve
Months Ended
For the
Twelve
Months Ended
December 31,
2008
December 31,
2007
December 31,
2006
December 31,
2006
December 31,
2005
December 31,
2004
$
$
$
$
$
$
Earnings:
Earnings (loss) from
continuing
operations before
taxes
Fixed charges (see
below)
Amortization of
capitalized interest
Capitalized interest
Noncontrolling
interest in pre-tax
income of
subsidiaries that
have not incurred
fixed charges
Earnings, as adjusted
$
(43)
34
163
1
(3)
$
—
(11)
118
2
(9)
22
(105)
9,021
177
39
277
1
(11)
—
(2)
—
$
—
274
$
—
189
$
—
(68)
$
31
$
32
$
5
$
123
9
163
$
134
11
177
$
32
2
39
(4,513)
402
775
35
7
8
2
5
—
$
—
9,303
$
—
(3,731)
$
22
$
27
$
255
—
277
$
748
—
775
$
—
447
$
27
$
10
(2)
35
Fixed Charges:
Portion of rents
representative of
interest expense
(33%)
Interest on
indebtedness,
including
amortization of
deferred loan costs
Capitalized interest
Total fixed charges
Ratio of earnings to
fixed charges
(a)
(b)
(c)
$
6
$
25
3
34
N/A (a)
1.7
1.1
N/A (b)
33.6
N/A (c)
12.8
We would have had to generate additional earnings of $45 million in the three months ended March 31, 2009 in order to achieve a
coverage ratio of 1:1.
Due to the losses incurred for adjustments due to bankruptcy proceedings, we would have had to generate additional earnings of $107
million in the two months ended December 31, 2006 in order to achieve a coverage ratio of 1:1.
Due to the losses incurred for adjustments due to bankruptcy proceedings, we would have had to generate additional earnings of $4.506
billion in the twelve months ended December 31, 2005 in order to achieve a coverage ratio of 1:1.
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our reports dated February 18, 2009, except
for Notes 2, 3 and 26 as to which the date is June 1, 2009; and March 13, 2007, except for Note 9 as to which the date is February 26, 2008 and
except for Notes 2, 3 and 26 as to which the date is June 1, 2009, relating to the financial statements, financial statement schedule,
management’s assessment of the effectiveness of internal control over financial reporting and the effectiveness of internal control over financial
reporting, which appear in Owens Corning’s Annual Report on Form 10-K for the year ended December 31, 2008. We also consent to the
reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Toledo, Ohio
June 1, 2009
Exhibit 25
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)
WELLS FARGO BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A National Banking Association
94-1347393
(Jurisdiction of incorporation or
organization if not a U.S. national bank)
(I.R.S. Employer
Identification No.)
101 North Phillips Avenue
Sioux Falls, South Dakota
57104
(Address of principal executive offices)
(Zip code)
Wells Fargo & Company
Law Department, Trust Section
MAC N9305-175
Sixth Street and Marquette Avenue, 17 th Floor
Minneapolis, Minnesota 55479
(612) 667-4608
(Name, address and telephone number of agent for service)
Owens Corning
(Exact name of obligor as specified in its charter)
Delaware
43-2109021
(State or other jurisdiction of
incorporation or organization)
(I.R.S. Employer
Identification No.)
One Owens Corning Parkway
Toledo, Ohio
43659
(Address of principal executive offices)
(Zip code)
Debt Securities
and related Guarantees
(Title of the indenture securities)
GUARANTORS
Exact Name of Obligor as
Specified in its Charter
State or Other Jurisdiction of
Incorporation or Organization
I.R.S. Employer
Identification Number
CDC Corporation
Wisconsin
39-1830456
One Owens Corning
Parkway
Toledo, Ohio 43659
Engineered Pipe Systems, Inc.
Delaware
34-1870323
One Owens Corning
Parkway
Toledo, Ohio 43659
Eric Company
Delaware
34-1162113
One Owens Corning
Parkway
Toledo, Ohio 43659
Falcon Foam Corporation
Delaware
34-1810126
One Owens Corning
Parkway
Toledo, Ohio 43659
INTEGREX Ventures LLC
Delaware
34-1921499
One Owens Corning
Parkway
Toledo, Ohio 43659
IPM Inc.
Delaware
51-0336727
One Owens Corning
Parkway
Toledo, Ohio 43659
Jefferson Holdings, Inc.
Delaware
58-2407011
One Owens Corning
Parkway
Toledo, Ohio 43659
Modulo USA LLC
Delaware
45-0556704
One Owens Corning
Parkway
Toledo, Ohio 43659
OCCV1, Inc.
Delaware
20-5580634
One Owens Corning
Parkway
Toledo, Ohio 43659
OCCV2, LLC
Delaware
20-5581329
One Owens Corning
Parkway
Toledo, Ohio 43659
Maine
23-3045916
One Owens Corning
Parkway
Toledo, Ohio 43659
Owens Corning Composite
Materials, LLC
Delaware
35-2273537
One Owens Corning
Parkway
Toledo, Ohio 43659
Owens Corning Construction
Services, LLC
Delaware
36-4590392
One Owens Corning
Parkway
Toledo, Ohio 43659
Owens Corning Masonry
Products, LLC (f/k/a Owens
Corning Cultured Stone, LLC)
Delaware
61-1504835
One Owens Corning
Parkway
Toledo, Ohio 43659
OCV Intellectual Capital, LLC
(f/k/a Owens Corning Fiberglass
Technology II, LLC)
Delaware
83-0466000
One Owens Corning
Parkway
Toledo, Ohio 43659
Owens Corning Foam Insulation,
LLC
Delaware
38-3737830
One Owens Corning
Parkway
Toledo, Ohio 43659
Owens Corning Franchising, LLC
Delaware
32-0181362
One Owens Corning
Parkway
Toledo, Ohio 43659
Owens-Corning Funding
Corporation
Delaware
34-1788139
One Owens Corning
Parkway
Toledo, Ohio 43659
OCV Fabrics US, Inc.
Address of Principal
Executive Offices
Owens Corning
Delaware
32-0176636
One Owens Corning
HOMExperts, Inc.
Parkway
Toledo, Ohio 43659
Owens Corning HT, Inc.
Delaware
34-1830879
One Owens Corning
Parkway
Toledo, Ohio 43659
Owens Corning Insulating
Systems, LLC
Delaware
37-1525228
One Owens Corning
Parkway
Toledo, Ohio 43659
Owens Corning Intellectual
Capital, LLC
Delaware
83-0485853
One Owens Corning
Parkway
Toledo, Ohio 43659
Owens Corning Overseas
Holding, Inc.
Delaware
34-1794022
One Owens Corning
Parkway
Toledo, Ohio 43659
Owens Corning Roofing and
Asphalt, LLC
Delaware
32-0176634
One Owens Corning
Parkway
Toledo, Ohio 43659
Owens Corning Sales, LLC (f/k/a
Owens Corning Sales, Inc.)
Delaware
74-3189734
One Owens Corning
Parkway
Toledo, Ohio 43659
Owens Corning Science and
Technology, LLC
Delaware
30-0369347
One Owens Corning
Parkway
Toledo, Ohio 43659
Owens Corning U.S. Holdings,
LLC
Delaware
30-0369361
One Owens Corning
Parkway
Toledo, Ohio 43659
Palmetto Products, Inc.
Delaware
34-1560647
One Owens Corning
Parkway
Toledo, Ohio 43659
Soltech, Inc.
Kentucky
35-1575937
One Owens Corning
Parkway
Toledo, Ohio 43659
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.
Comptroller of the Currency
Treasury Department
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of San Francisco
San Francisco, California 94120
(b)
Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2.
Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation.
None with respect to the trustee.
No responses are included for Items 3-14 of this Form T-1 because the obligor is not in default as provided under Item 13.
Item 15.
Foreign Trustee. Not applicable.
Item 16.
List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility.
Exhibit 1.
A copy of the Articles of Association of the trustee now in effect.*
Exhibit 2.
A copy of the Comptroller of the Currency Certificate of Corporate Existence and Fiduciary Powers for
Wells Fargo Bank, National Association, dated February 4, 2004.**
Exhibit 3.
See Exhibit 2
Exhibit 4.
Copy of By-laws of the trustee as now in effect.***
Exhibit 5.
Not applicable.
Exhibit 6.
The consent of the trustee required by Section 321(b) of the Act.
Exhibit 7.
A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its
supervising or examining authority.
Exhibit 8.
Not applicable.
Exhibit 9.
Not applicable.
*
**
***
Incorporated by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit 25 to the Form S-4
dated December 30, 2005 of file number 333-130784-06.
Incorporated by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit 25 to the Form T-3
dated March 3, 2004 of file number 022-28721.
Incorporated by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit 25 to the Form S-4
dated May 26, 2005 of file number 333-125274.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells Fargo Bank, National Association, a national
banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago and State of Illinois on the 28th day of May 2009.
WELLS FARGO BANK, NATIONAL ASSOCIATION
/s/ Gregory S. Clarke
Gregory S. Clarke
Vice President
EXHIBIT 6
May 28, 2009
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned hereby consents that reports of examination
of the undersigned made by Federal, State, Territorial, or District authorities authorized to make such examination may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
WELLS FARGO BANK, NATIONAL ASSOCIATION
/s/ Gregory S. Clarke
Gregory S. Clarke
Vice President
EXHIBIT 7
Consolidated Report of Condition of
Wells Fargo Bank National Association
of 101 North Phillips Avenue, Sioux Falls, SD 57104
And Foreign and Domestic Subsidiaries,
at the close of business March 31, 2009, filed in accordance with 12 U.S.C. §161 for National Banks.
Dollar Amounts
In Millions
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin
Interest-bearing balances
Securities:
Held-to-maturity securities
Available-for-sale securities
Federal funds sold and securities purchased under agreements to resell:
Federal funds sold in domestic offices
Securities purchased under agreements to resell
Loans and lease financing receivables:
Loans and leases held for sale
Loans and leases, net of unearned income
LESS: Allowance for loan and lease losses
Loans and leases, net of unearned income and allowance
Trading Assets
Premises and fixed assets (including capitalized leases)
Other real estate owned
Investments in unconsolidated subsidiaries and associated companies
Intangible assets
Goodwill
Other intangible assets
Other assets
$
0
102,802
7,380
1,122
28,411
332,448
10,240
322,208
11,401
4,281
1,172
438
11,381
13,099
25,816
Total assets
LIABILITIES
Deposits:
In domestic offices
Noninterest-bearing
Interest-bearing
In foreign offices, Edge and Agreement subsidiaries, and IBFs
Noninterest-bearing
Interest-bearing
Federal funds purchased and securities sold under agreements to repurchase:
Federal funds purchased in domestic offices
Securities sold under agreements to repurchase
12,028
10,631
$
552,170
$
316,654
76,832
239,822
55,774
1,002
54,772
32,172
13,234
Dollar Amounts
In Millions
Trading liabilities
Other borrowed money
(includes mortgage indebtedness and obligations under capitalized leases)
Subordinated notes and debentures
Other liabilities
7,432
46,503
16,011
19,122
Total liabilities
$
506,902
EQUITY CAPITAL
Perpetual preferred stock and related surplus
Common stock
Surplus (exclude all surplus related to preferred stock)
Retained earnings
Accumulated other comprehensive income
Other equity capital components
0
520
29,112
17,471
(2,007)
0
Total equity capital
Noncontrolling (minority) interests in consolidated subsidiaries
45,096
172
Total equity capital
45,268
Total liabilities, minority interest, and equity capital
$
552,170
I, Howard I. Atkins, EVP & CFO of the above-named bank do hereby declare that this Report of Condition has been prepared in conformance
with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief.
Howard I. Atkins
EVP & CFO
We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best
of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and
is true and correct.
Dave Hoyt
John Stumpf
Carrie Tolstedt
Directors