Exhibit 4.1
FIRST SUPPLEMENTAL
INDENTURE
Dated as of June 8,
2009
Among
OWENS CORNING,
As Issuer
Each of the SUBSIDIARY GUARANTORS
party hereto
and
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
As Trustee
9.000% Senior Notes Due
2019
THIS FIRST SUPPLEMENTAL INDENTURE
(the “ Supplemental Indenture ”), dated as of
June 8, 2009, among OWENS CORNING, a Delaware corporation
(“ Company ”), the SUBSIDIARY GUARANTORS listed
on the signature pages hereto (“ Subsidiary Guarantors
”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national
banking association duly incorporated and existing under the laws
of the United Sates of America, as Trustee (“ Trustee
”).
W I T N E S S E T H:
WHEREAS, the Company, the Subsidiary
Guarantors and the Trustee have heretofore executed and delivered
an Indenture, dated as of June 2, 2009 (the “
Original Indenture ” and, as hereby supplemented, the
“ Indenture ”), providing for the issuance from
time to time of one or more series of the Company’s
Securities;
WHEREAS, pursuant to the terms of
the Indenture, the Company desires to provide for the establishment
of a series of Securities to be designated as the “9.000%
Senior Notes due 2019” (herein referred to as the “
2019 Notes ”), the form and substance of the 2019
Notes and the terms, provisions and conditions thereof to be set
forth as provided in the Original Indenture and this Supplemental
Indenture;
WHEREAS, Section 2.03 of the
Original Indenture provides that various matters with respect to
any series of Securities issued under the Indenture may be
established in an indenture supplemental to the
Indenture;
WHEREAS, Section 9.01(vii) of
the Original Indenture provides that the Company and the Trustee
may enter into an indenture supplemental to the Indenture to
establish the form or terms of Securities of any series as
permitted by the Original Indenture; and
WHEREAS, all acts and things
necessary to make this Supplemental Indenture, when duly executed
and delivered, a valid, binding and legal instrument in accordance
with its terms and for the purposes herein expressed, have been
done and performed; and the execution and delivery of this
Supplemental Indenture have been in all respects duly
authorized.
NOW, THEREFORE, in consideration of
the premises and in further consideration of the sum of One Dollar
in lawful money of the United States of America paid to the Company
by the Trustee at or before the execution and delivery of this
Supplemental Indenture, the receipt whereof is hereby acknowledged,
and of other good and valuable consideration, it is agreed by and
among the Company, the Subsidiary Guarantors, and the Trustee as
follows:
ARTICLE ONE
Relation to Indenture; Additional
Definitions
1.01 Relation to Indenture .
This Supplemental Indenture constitutes an integral part of the
Indenture.
1.02 Additional Definitions .
For all purposes of this Supplemental Indenture, capitalized terms
used herein shall have the respective meanings specified below or
in the Original Indenture, as the case may be.
1
“ Beneficial Owner
” has the meaning assigned to such term in Rule 13d-3 and
Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular “person” (as
that term is used in Section 13(d)(3) of the Exchange Act),
such “person” will be deemed to have beneficial
ownership of all securities that such “person” has the
right to acquire by conversion or exercise of other securities,
whether such right is currently exercisable or is exercisable only
after the passage of time. The terms “Beneficially
Owns” and “Beneficially Owned” have a
corresponding meaning.
“ Change of Control
” means the occurrence of any of the following:
1) the direct or indirect sale,
lease, transfer, conveyance or other disposition (other than by way
of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the properties or
assets of Owens Corning and its Subsidiaries taken as a whole to
any “person” (as that term is used in
Section 13(d) of the Exchange Act);
2) the adoption of a plan relating
to the liquidation or dissolution of Owens Corning;
3) the consummation of any
transaction (including, without limitation, any merger or
consolidation), the result of which is that any
“person” (as defined above) becomes the Beneficial
Owner, directly or indirectly, of more than 50% of the Voting Stock
of Owens Corning, measured by voting power rather than number of
shares; or
4) the first day on which a majority
of the members of the Board of Directors of Owens Corning are not
Continuing Directors.
“ Change of Control
Offer ” has the meaning set forth in
Section 2.11(a).
“ Change of Control
Payment ” has the meaning set forth in
Section 2.11(a).
“ Change of Control Payment
Date ” has the meaning set forth in
Section 2.11(a).
“ Change of Control
Repurchase Event ” means the occurrence of a Change of
Control and a Ratings Downgrade.
“ Comparable Treasury
Issue ” means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to
the remaining term of the 2019 Notes to be redeemed that would be
utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate notes of
comparable maturity to the remaining term of the 2019
Notes.
“ Comparable Treasury
Price ” means, with respect to any redemption date,
(1) the average of four Reference Treasury Dealer Quotations
for such redemption date, after excluding the highest and lowest
such Reference Treasury Dealer Quotations, or (2) if the
Quotation Agent obtains fewer than four such Reference Treasury
Dealer Quotations, the average of all such quotations.
“Continuing
Directors” means,
as of any date of determination, any member of the Board of
Directors of Owens Corning who:
1) was a member of such Board of
Directors on the date of the indenture; or
2
2) was nominated for election or
elected to such Board of Directors with the approval of a majority
of the Continuing Directors who were members of such Board of
Directors at the time of such nomination or election.
“ Interest Payment
Dates ” means June 15 and December 15 of each
year, or if any such day is not a Business Day, the next succeeding
Business Day, until maturity, beginning on December 15,
2009.
“ Maturity Date ”
has the meaning set forth in Section 2.03.
“ Note Registrar
” means Wells Fargo Bank, National Association, hereby
appointed as an agency of the Company in accordance with
Section 2.05 of the Original Indenture.
“ Original Indenture
” has the meaning set forth in the first paragraph of the
Recitals hereof.
“ Quotation Agent
” means a Reference Treasury Dealer appointed by the
Company.
“ Rating Agency ”
means each of Moody’s Investors Service Inc. and
Standard & Poor’s Ratings Services, a division of
The McGraw-Hill Companies, Inc., or any of their
successors.
“ Ratings Downgrade
” means when, at the time of a Change of Control, the notes
carry:
1) an investment grade credit rating
(BBB-/Baa3, or equivalent, or better) from both Rating Agencies,
and such rating from both Rating Agencies is within 60 days of the
occurrence of the Change of Control (which period shall be extended
so long as the rating of the notes is under publicly announced
consideration for possible downgrade by either Rating Agency)
either downgraded to a non-investment grade credit rating (BB+/Ba1
or equivalent, or worse) or withdrawn and is not within such period
subsequently (in the case of a downgrade) upgraded to an investment
grade credit rating or (in the case of a withdrawal) replaced by an
investment grade credit rating;
2) a non-investment grade credit
rating (BB+/Ba1, or equivalent, or worse) from both Rating
Agencies, and such rating from both Rating Agencies is within 60
days of the occurrence of the Change of Control (which period shall
be extended so long as the rating of the notes is under publicly
announced consideration for possible downgrade by either Rating
Agency) downgraded by one or more notches (for illustration, Ba1 to
Ba2 being one notch) and is not within such period subsequently
upgraded to its earlier credit rating or better by both Rating
Agencies;
3
3) both (A) an investment grade
credit rating (BBB-/Baa3, or equivalent, or better) from one Rating
Agency, and such rating is within 60 days of the occurrence of the
Change of Control (which period shall be extended so long as the
rating of the notes is under publicly announced consideration for
possible downgrade by either Rating Agency) either downgraded to a
non-investment grade credit rating (BB+/Ba1, or equivalent, or
worse) or withdrawn and is not within such period subsequently (in
the case of a downgrade) upgraded to an investment grade credit
rating by such Rating Agency or (in the case of a withdrawal)
replaced by an investment grade credit rating from such Rating
Agency and (B) a non-investment grade credit rating (BB+/Ba1,
or equivalent, or worse) from one Rating Agency, and such rating is
within 60 days of the occurrence of the Change of Control (which
period shall be extended so long as the rating of the notes is
under publicly announced consideration for possible downgrade by
either Rating Agency) downgraded by one or more notches (for
illustration, Ba1 to Ba2 being one notch) and is not within such
period subsequently upgraded to its earlier credit rating or better
by such Rating Agency;
4) both (A) an investment grade
credit rating (BBB-/Baa3, or equivalent, or better) from one Rating
Agency, and such rating is within 60 days of the occurrence of the
Change of Control (which period shall be extended so long as the
rating of the notes is under publicly announced consideration for
possible downgrade by either Rating Agency) either downgraded to a
non-investment grade credit rating (BB+/Ba1, or equivalent, or
worse) or withdrawn and is not within such period subsequently (in
the case of a downgrade) upgraded to an investment grade credit
rating by such Rating Agency or (in the case of a withdrawal)
replaced by an investment grade credit rating from such Rating
Agency and (B) no credit rating from one Rating Agency, and
such Rating Agency does not assign within 60 days of the occurrence
of the Change of Control an investment grade credit rating to the
notes of such series;
5) both (A) a non-investment
grade credit rating (BB+/Ba1, or equivalent, or worse) from one
Rating Agency, and such rating is within 60 days of the occurrence
of the Change of Control (which period shall be extended so long as
the rating of the notes is under publicly announced consideration
for possible downgrade by either Rating Agency) downgraded by one
or more notches (for illustration, Ba1 to Ba2 being one notch) and
is not within such period subsequently upgraded to its earlier
credit rating or better by such Rating Agency and (B) no
credit rating from one Rating Agency, and such Rating Agency does
not assign within 60 days of the occurrence of the Change of
Control an investment grade credit rating to the notes of such
series; or
6) no credit rating from either
Rating Agency and both Rating Agencies do not assign within 60 days
of the occurrence of the Change of Control an investment grade
credit rating to the notes of such series;
and in making the relevant
decision(s) referred to above to downgrade or withdraw such
ratings, as applicable, the relevant Rating Agency announces
publicly or confirms in writing to Owens Corning that such
decision(s) resulted, in whole or in part, from the occurrence of
the Change of Control.
4
“ Reference Treasury
Dealer ” means (i) each of Citigroup Global Markets,
Inc., Banc of America Securities LLC, one other primary U.S.
Government securities dealer in New York City (a “Primary
Treasury Dealer”) selected by Wachovia Capital Markets, LLC
and J.P. Morgan Securities Inc., and their respective successors,
provided, however, that if any of the foregoing shall cease to be a
Primary Treasury Dealer, the Company will substitute therefor
another Primary Treasury Dealer; and (ii) any other Primary
Treasury Dealer selected by the Company.
“ Reference Treasury Dealer
Quotations ” means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined
by the Company, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Quotation Agent by such
Reference Treasury Dealer at 5:00 p.m., New York City time, on the
third Business Day preceding such redemption date.
“ Treasury Rate ”
means, with respect to any redemption date, the rate per annum
equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption
date.
“ 2019 Notes ”
has the meaning set forth in the second paragraph of the Recitals
hereof.
All references herein to Articles,
Sections or Exhibits, unless otherwise specified, refer to the
corresponding Articles, Sections or Exhibits of this Supplemental
Indenture. The terms “ herein ,” “
hereof ,” “ hereunder ” and other
words of similar import refer to this Supplemental
Indenture.
ARTICLE TWO
The Series of
Notes
2.01 Title of the Notes. The
2019 Notes shall be designated as the “9.000% Senior Notes
due 2019.”
2.02 Limitation on Aggregate
Principal Amount. The aggregate principal amount of 2019 Notes
that may initially be outstanding shall not exceed
$350,000,000.
2.03 Stated Maturity. The
stated maturity of the 2019 Notes shall be June 15, 2019 (the
“ Maturity Date ”).
2.04 Interest and Interest
Rate .
(a) The 2019 Notes shall bear
interest at the rate of 9.000% per annum, from and including
their Original Issue Date of June 8, 2009, or from the most
recent Interest Payment Date on which interest has been paid or
provided for, but excluding, the Maturity
5
