UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington D.C., 20549

 

 

Form 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date Of Report (Date Of Earliest Event Reported): October 22, 2012

 

 

Owens Corning

(Exact Name of Registrant as Specified in its Charter)

 

 

Commission File Number: 1-33100

 

DE   43-2109021
(State or Other Jurisdiction of   (I.R.S. Employer
Incorporation or Organization)   Identification No.)

One Owens Corning Parkway

Toledo, OH 43659

(Address of Principal Executive Offices, Including Zip Code)

419-248-8000

(Registrant’s Telephone Number, Including Area Code)

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

Item 8.01. Other Events.

On October 17, 2012, Owens Corning (the “Company”) entered in an Underwriting Agreement with Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., J.P. Morgan Securities LLC and Wells Fargo Securities, LLC, as representatives of the several underwriters named therein, with respect to the sale by the Company of $600,000,000 aggregate principal amount of 4.200% Senior Notes due 2022 (the “Notes”) under the Company’s Registration Statement on Form S-3 (Registration No. 333-179524) that the Company filed with the Securities and Exchange Commission on February 16, 2012. The Company has filed with the Securities and Exchange Commission a prospectus supplement, dated October 17, 2012, in connection with the public offering of the Notes.

The sale of the Notes closed on October 22, 2012. The Notes were issued pursuant to an Indenture, dated as of June 2, 2009, among the Company, the subsidiary guarantors named therein and Wells Fargo Bank, National Association, as trustee (the “Trustee”), as supplemented and amended by the First Supplemental Indenture, dated as of June 8, 2009, by and among the Company, the subsidiary guarantors party thereto and the Trustee, the Second Supplemental Indenture, dated as of May 26, 2010, by and among the Company, the subsidiary guarantors party thereto and the Trustee and the Third Supplemental Indenture, dated as of October 22 (the “Third Supplemental Indenture”), 2012, by and among the Company, the subsidiary guarantors party thereto and the Trustee.

The Notes are fully and unconditionally guaranteed, jointly and severally, by each of our current and future domestic subsidiaries (the “Guarantors”) that is a borrower or guarantor under our Credit Agreement, dated as of October 31, 2006, as amended. The Notes and the guarantees by the Guarantors will be the general senior unsecured obligations of the Company and the Guarantors, respectively. They will rank equally in right of payment with the existing and future senior unsecured indebtedness of the Company and the Guarantors, respectively.

For a complete description of the terms and conditions of the Notes and the guarantees, please refer to the Third Supplemental Indenture and the form of Note and Notation of Guarantee, which are incorporated herein by reference and filed with this Current Report on Form 8-K as Exhibit 4.1 and 4.2, respectively.

In connection with the issuance of the Notes, Sidley Austin LLP, Stites & Harbison, PLLC and Reinhart Boerner Van Deuren s.c. provided the Company with the legal opinions attached to this Current Report on Form 8-K as Exhibits 5.1, 5.2 and 5.3.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.

 

Exhibit No.

  

Description

4.1    Third Supplemental Indenture, dated October 22, 2012, among the Company, the subsidiary guarantors named as a party thereto and Wells Fargo Bank, National Association, as trustee.
4.2    Form of 4.200% Senior Note due 2022 and Notation of Guarantee (included as part of Exhibit 4.1).
5.1    Opinion of Sidley Austin LLP.
5.2    Opinion of Stites & Harbison, PLLC
5.3    Opinion of Reinhart Boerner Van Deuren s.c.
23.1    Consent of Sidley Austin LLP (included in Exhibit 5.1)
23.2    Consent of Stites & Harbison, PLLC (included in Exhibit 5.2)
23.3    Consent of Reinhart Boerner Van Deuren s.c. (included in Exhibit 5.3)

SIGNATURE

Pursuant to the Requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the Undersigned hereunto duly authorized.

 

    Owens Corning

Date: October 22, 2012

    By:  

/s/ John W. Christy

    John W. Christy
    Senior Vice President, General
    Counsel and Secretary

EXHIBIT INDEX

 

Exhibit No.

  

Description

4.1    Third Supplemental Indenture, dated October 22, 2012, among the Company, the subsidiary guarantors named as a party thereto and Wells Fargo Bank, National Association, as trustee.
4.2    Form of 4.200% Senior Note due 2022 and Notation of Guarantee (included as part of Exhibit 4.1).
5.1    Opinion of Sidley Austin LLP.
5.2    Opinion of Stites & Harbison, PLLC
5.3    Opinion of Reinhart Boerner Van Deuren s.c.
23.1    Consent of Sidley Austin LLP (included in Exhibit 5.1)
23.2    Consent of Stites & Harbison, PLLC (included in Exhibit 5.2)
23.3    Consent of Reinhart Boerner Van Deuren s.c. (included in Exhibit 5.3)

Exhibit 4.1

THIRD SUPPLEMENTAL INDENTURE

Dated as of October 22, 2012

Among

OWENS CORNING,

As Issuer

Each of the SUBSIDIARY GUARANTORS party hereto

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

As Trustee

4.200% Senior Notes Due 2022

THIS THIRD SUPPLEMENTAL INDENTURE (the “ Third Supplemental Indenture ”), dated as of October 22, 2012, 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, certain Subsidiary Guarantors and the Trustee have heretofore executed and delivered an Indenture, dated as of June 2, 2009 (the “ Original Indenture ”) (as supplemented by that certain First Supplemental Indenture, dated as of June 8, 2009, and as supplemented by that certain Second Supplemental Indenture, dated as of May 26, 2010, and as hereby further 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 “4.200% Senior Notes due 2022” (herein referred to as the “ 20 22 Notes ”), the form and substance of the 2022 Notes and the terms, provisions and conditions thereof to be set forth as provided in the Original Indenture and this Third 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 a supplemental indenture to the Indenture;

WHEREAS, Section 9.01(vii) of the Original Indenture provides that the Company and the Trustee may enter into a supplemental indenture to the Indenture to establish the form or terms of Securities of any series as permitted by the Original Indenture;

WHEREAS, Section 9.01(iv) of the Original Indenture provides that the Company and the Trustee may enter into a supplemental indenture to change or eliminate any of the provisions of the Indenture with respect to any series of Securities (other than any outstanding Securities of any series to which such modification would apply); and

WHEREAS, all acts and things necessary to make this Third 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 Third Supplemental Indenture have been in all respects duly authorized.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt whereof is hereby acknowledged, it is agreed by and among the Company, the Subsidiary Guarantors, and the Trustee as follows:

 

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ARTICLE ONE

Relation to Indenture; Additional Definitions

1.01 Relation to Indenture . This Third Supplemental Indenture constitutes an integral part of the Indenture.

1.02 Additional Definitions . For all purposes of this Third Supplemental Indenture, capitalized terms used herein shall have the respective meanings specified below or in the Original Indenture, as the case may be.

“ 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 the Company 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 the Company;

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 the Company, 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 the Company 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)(2).

“ Change of Control Repurchase Even t” means the occurrence of a Change of Control and a Ratings Downgrade.

“ Comparable Treasury Issue ” means the United States Treasury security selected

 

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by the Quotation Agent as having a maturity comparable to the remaining term of the 2022 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 2022 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 the Company who:

1) was a member of such Board of Directors on the date of the indenture; or

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.

“ Global Notes ” has the meaning set forth in Section 2.07(a).

“ 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 June 15, 2013.

“ Maturity Date ” has the meaning set forth in Section 2.03.

“ Notation of Guarantee ” has the meaning set forth in Section 2.08.

“ Note Registrar ” means Wells Fargo Bank, National Association, hereby appointed as an agency of the Company in accordance with Section 2.05 of the Indenture.

“ Optional Redemption Date ” means September 15, 2022.

“ 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 2022 Notes carry:

 

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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 2022 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 2022 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) 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 2022 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 2022 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 2022 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

 

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Control an investment grade credit rating to the 2022 Notes;

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 2022 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 2022 Notes; 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 2022 Notes;

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 the Company that such decision(s) resulted, in whole or in part, from the occurrence of the Change of Control.

“ Reference Treasury Dealer ” means (i) each of Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., J.P. Morgan Securities LLC and a Primary Treasury Dealer (as defined herein) selected by Wells Fargo Securities, LLC, or their respective successors or affiliates, and at least one other primary U.S. Government securities dealer in New York City (a “ Primary Treasury Dealer ”) selected by the Company; 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.

“ 20 22 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 Third Supplemental Indenture. The terms “ herein ,” “ hereof ,” “ hereunder ” and other words of similar import refer to this Third Supplemental Indenture.

 

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ARTICLE TWO

The Series of Notes

2.01 Title of the Notes. The 2022 Notes shall be designated as the “4.200% Senior Notes due 2022.”

2.02 Limitation on Aggregate Principal Amount. The aggregate principal amount of 2022 Notes that may initially be outstanding shall not exceed $600,000,000.

2.03 Stated Maturity. The stated maturity of the 2022 Notes shall be December 15, 2022 (the “ Maturity Date ”).

2.04 Interest and Interest Rate .

(a) The 2022 Notes shall bear interest at the rate of 4.200% per annum, from and including their Original Issue Date of October 22, 2012, or from the most recent Interest Payment Date on which interest has been paid or provided for, but excluding, the Maturity Date. Such interest shall be payable semiannually in arrears, on the Interest Payment Dates of June 15 and December 15 in each year, commencing on June 15, 2013. Interest accrued on the 2022 Notes from the last Interest Payment Date before the Maturity Date shall be payable on the Maturity Date.

(b) The interest so payable on any Interest Payment Date shall be paid to the Persons in whose names the 2022 Notes are registered at the close of business on the record date for such Interest Payment Date, being the immediately preceding June 1 and December 1, as the case may be, whether or not such day is a Business Day.

(c) The Company will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate that is 1% per annum in excess of 4.200% to the extent lawful; it will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at a rate that is 1% per annum in excess of 4.200% to the extent lawful.

2.05 Place of Payment. The place or places where the principal of and interest on the 2022 Notes shall be payable is the office or agency of the Company maintained for such purpose, which shall initially be the Corporate Trust Office of the Trustee, and any other place or places designated by the Company pursuant to the Indenture, provided that while the 2022 Notes are represented by one or more Registered Global Securities registered in the name of the Depositary, or its nominee, the Company will cause payments of principal and interest on such Registered Global Securities to be made to the Depositary or its nominee, as the case may be, by wire transfer to the extent, in the funds and in the manner required by agreements with, or regulations or procedures prescribed from time to time by the Depositary or its nominee, and otherwise in accordance with such agreements, regulations or procedures.

 

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2.06 Place of Registration or Exchange; Notices and Demands With Respect to the 20 22 Notes. The place where the Holders of the 2022 Notes may present the 2022 Notes for registration of transfer or exchange and may make notices and demands to or upon the Company in respect of the 2022 Notes shall be the Corporate Trust Office of the Trustee.

2.07 Global Notes.

(a) The 2022 Notes shall be issuable in whole or in part in the form of one or more global notes (the “ Global Notes ”) in definitive, full registered, book-entry form, without interest coupons, only in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000. The Global Notes shall be deposited on their Original Issue Date with, or on behalf of, the Depositary.

(b) The Depository Trust Company (“ DTC ”) shall initially serve as Depositary with respect to the Global Notes. Such Global Notes shall bear the legend set forth in the form of 2022 Notes attached as Exhibit A .

2.08 Form of Securities. The Global Notes shall be substantially in the form attached as Exhibit A . The notation of the Note Guarantee of each Subsidiary Guarantor (the “ Notation of Guarantee ”) shall be substantially in the form attached as Exhibit B .

2.09 Note Registrar. The Trustee shall initially serve as the Note Registrar for the 2022 Notes.

2.10 Sinking Fund Obligations. The Company shall have no obligation to redeem or purchase any 2022 Notes pursuant to any sinking fund or analogous requirement.

2.11 Offer to Repurchase Upon Change of Control Repurchase Event .

(a) Upon the occurrence of a Change of Control Repurchase Event, the Company will make an offer (a “ Change of Control Offer ”) to each Holder of the 2022 Notes to repurchase all or any part (equal to $2,000 or integral multiples of $1,000 in excess of $2,000) of that Holder’s 2022 Notes at a purchase price in cash equal to 101% of the aggregate principal amount of 2022 Notes repurchased plus accrued and unpaid interest on the 2022 Notes repurchased to the date of repurchase, subject to the rights of Holders of the 2022 Notes on the relevant record date to receive interest due on the relevant interest payment date (the “ Change of Control Payment ”). Within 30 days following any Change of Control Repurchase Event, the Company will mail or deliver in accordance with DTC procedures a notice to each Holder and the Trustee describing the transaction or transactions that constitute the Change of Control Repurchase Event and stating:

(1) that the Change of Control Offer is being made pursuant to this section of the Third Supplemental Indenture and that all 2022 Notes tendered will be accepted for payment;

(2) the purchase price and the purchase date, which shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed (the “ Change of Control Payment Date ”);

 

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(3) that any 2022 Note not tendered will continue to accrue interest;

(4) that, unless the Company defaults in the payment of the Change of Control Payment, all 2022 Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date;

(5) that Holders electing to have any 2022 Notes purchased pursuant to a Change of Control Offer will be required to surrender the 2022 Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the 2022 Notes completed, or transfer by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;

(6) that Holders of the 2022 Notes will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of 2022 Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the 2022 Notes purchased; and

(7) that Holders whose 2022 Notes are being purchased only in part will be issued new 2022 Notes equal in principal amount to the unpurchased portion of the 2022 Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess of $2,000.

The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the 2022 Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 2.11, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 2.11 by virtue of such compliance.

(b) On the Change of Control Payment Date, the Company will, to the extent lawful:

(1) accept for payment all the 2022 Notes or portions of the 2022 Notes properly tendered pursuant to the Change of Control Offer;

(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all the 2022 Notes or portions of the 2022 Notes properly tendered; and

(3) deliver or cause to be delivered to the Trustee the 2022 Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of the 2022 Notes or portions of the 2022 Notes being purchased by the Company.

The Paying Agent will promptly mail (but in any case not later than five days after the Change of Control Payment Date) to each Holder of the 2022 Notes properly tendered the

 

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Change of Control Payment for such 2022 Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new 2022 Note equal in principal amount to any unpurchased portion of the 2022 Notes surrendered, if any. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.

(c) Notwithstanding anything to the contrary herein, the Company will not be required to make a Change of Control Offer upon a Change of Control Repurchase Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth herein and purchases all 2022 Notes properly tendered and not withdrawn under the Change of Control Offer.

2.12 Other Terms. The provisions of Article Three and Article Four shall apply to the 2022 Notes as set forth therein.

ARTICLE THREE

Optional Redemption of the 2022 Notes

3.01 Redemption Price Prior to the Optional Redemption Date . The Company shall have the right to redeem the 2022 Notes, at its option, in whole at any time or in part from time to time. If the Company redeems the 2022 Notes prior to the Optional Redemption Date, the Company shall pay a redemption price equal to the greater of:

(a) 100% of the principal amount of the 2022 Notes to be redeemed; and

(b) as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of principal and interest on the 2022 Notes being redeemed (excluding any portion of such payments of interest accrued as of the date of redemption), discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 35 basis points;

plus, in each case, accrued and unpaid interest thereon to, but not including, the redemption date.

3.02 Redemption Price On or After the Optional Redemption Date . At any time on or after the Optional Redemption Date, the Company shall have the right to redeem the 2022 Notes, at its option, in whole at any time or in part from time to time, at a redemption price of 100% of the principal amount of the 2022 Notes to be redeemed, plus accrued and unpaid interest thereon to, but not including, the redemption date.

ARTICLE FOUR

Modification of Section 4.10 of the Original Indenture

Section 4.10 of the Original Indenture is hereby amended and restated solely with respect to the 2022 Notes and any other series of Securities issued pursuant to the Indenture after the date hereof (such affected Securities, the “ Affected Securities ”) (but, for the avoidance of doubt,

 

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not with respect to any series of Securities issued under the Indenture prior to the date hereof (each, an “ Outstanding Series ”) or any additional Securities of an Outstanding Series issued under the Indenture after the date hereof) as follows, and all references in the Original Indenture to Section 4.10 thereof and to the provisions specified therein shall, with respect to the 2022 Notes and each other Affected Security, be deemed to be references to this Article Four and to the provisions specified herein, respectively:

“ 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;

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 Company 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.”

ARTICLE FIVE

Miscellaneous Provisions

5.01 The Indenture, as supplemented by this Third Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed.

5.02 This Third Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.

5.03 THIS THIRD SUPPLEMENTAL INDENTURE AND EACH 2022 NOTE SHALL BE GOVERNED BY AND DEEMED TO BE A CONTRACT MADE UNDER, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.

5.04 If any provision in this Third Supplemental Indenture limits, qualifies or conflicts with another provision hereof that is required to be included herein by any provisions of the Trust Indenture Act, such required provision shall control.

 

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5.05 In case any provision in this Third Supplemental Indenture or the 2022 Notes 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.

5.06 The recitals contained herein shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the proper authorization or due execution hereof or of the 2022 Notes by the Company or the Subsidiary Guarantors or as to the validity or sufficiency of this Third Supplemental Indenture, any Notation of Guarantee or the 2022 Notes. The Trustee shall not be accountable for the use or application by the Company of the 2022 Notes or the proceeds of the 2022 Notes.

*    *    *    *

 

11

IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed as of the day and year first above written.

 

OWENS CORNING

By:

  /s/ Michael McMurray
Name:   Michael McMurray
Title:   Senior Vice President and Chief Financial Officer

By:

  /s/ John Christy

Name:

  John W. Christy

Title:

  Senior Vice President,
  General Counsel and Secretary
CDC CORPORATION,
ENGINEERED PIPE SYSTEMS, INC.,

ERIC COMPANY,

IPM INC.,
OCCV1, INC.,
OCCV2, LLC,
OWENS CORNING COMPOSITE MATERIALS, LLC,
OWENS CORNING CONSTRUCTION SERVICES, LLC,

OCV INTELLECTUAL CAPITAL, 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 ROOFING AND ASPHALT, LLC,

OWENS CORNING SALES, LLC,

OWENS CORNING SCIENCE AND TECHNOLOGY, LLC,

OWENS CORNING U.S. HOLDINGS, LLC, and SOLTECH, INC.

By:

  /s/ Joseph J. Mikelonis

Name:

  Joseph J. Mikelonis

Title:

  Authorized Signatory

Supplemental Indenture

OC CANADA HOLDINGS GENERAL PARTNERSHIP

by OC CANADA HOLDINGS COMPANY, its Managing Partner

By:

  /s/ Melissa M. Gleespen

Name:

  Melissa M. Gleespen

Title:

  Authorized Signatory

Supplemental Indenture

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

By:

  /s/ Gregory S. Clarke
Name:   Gregory S. Clarke

Title:

  Vice President

Supplemental Indenture

Exhibit A

FORM OF NOTE CERTIFICATE

CUSIP/CINS                        

4.200% Senior Notes due 2022

 

No.

   $     

Owens Corning

promises to pay to Cede & Co., or registered assigns,

the principal sum of                                                      on October 22, 2022.

Interest Payment Dates: June 15 and December 15

Record Dates: June 1 and December 1

Dated:

 

Owens Corning

By:

   

Name:

 

Title:

 

This is one of the Securities referred to

in the within-mentioned Indenture:

 

WELLS FARGO BANK, NATIONAL

ASSOCIATION,

    as Trustee

By:

   
  Authorized Signatory

 

A-1

4.200% Senior Notes due 2022

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.

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

(1) INTEREST . Owens Corning, a Delaware corporation (the “ Company ”), promises to pay interest on the principal amount of this Security at 4.200% per annum from October 22, 2012 until maturity. The Company will pay interest semi-annually in arrears on June 15 and December 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “ Interest Payment Date ”). Interest on the Securities will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Security is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be June 15, 2013. The Company will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate that is 1% per annum in excess of 4.200% to the extent lawful; it will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue instalments of interest (without regard to any applicable grace periods) from time to time on demand at a rate that is 1% per annum in excess of 4.200% to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.

(2) METHOD OF PAYMENT . The Company will pay interest on the Securities (except defaulted interest) to the Persons who are registered Holders of Securities at the close of business on the June 1 or December 1 next preceding the Interest Payment Date, even if such Securities are cancelled after such record date and on or before such Interest Payment Date, except as provided in Section 2.13 of the Indenture with respect to defaulted interest. The Securities will be payable as to principal, premium, if any, and interest at the office or agency of the Company maintained for such purpose within or without the City of Chicago in the State of Illinois, or, at the option of the Company, payment of interest may be made by check mailed to the Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest and premium, if any, on, all Global Securities and all other Securities the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

(3) PAYING AGENT AND REGISTRAR . Initially, Wells Fargo Bank, National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any Affiliate of the Company may act in any such capacity.

(4) INDENTURE . The Company issued the Securities under an Indenture (the “ Original Indenture ”), dated as of June 2, 2009 (as supplemented by the First Supplemental Indenture, dated as of June 8, 2009, the Second Supplemental Indenture, dated as of May 26, 2010 and the Third Supplemental Indenture (the “ Third Supplemental Indenture ”), dated as of October 22, 2012, the “ Indenture ”) among the Company, the Subsidiary Guarantors party thereto and the Trustee. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference

 

A-2

to the Trust Indenture Act (the “ TIA ”). The Third Supplemental Indenture modifies Section 4.10 of the Original Indenture as it is applies to the Securities. The Securities are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of such terms. To the extent any provision of this Security conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Securities are unsecured obligations of the Company. The Indenture does not limit the aggregate principal amount of Securities that may be issued thereunder.

(5) OPTIONAL REDEMPTION .

(a) The Company may redeem, in whole at any time or in part from time to time, any Securities, at its option. If the Company elects to redeem the Securities prior to Optional Redemption Date, the Company will pay a redemption price equal to the greater of (i) 100% of the principal amount of the Securities to be redeemed and (ii) as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of principal and interest on the Securities to be redeemed (excluding any portion of such payments of interest accrued as of the date of redemption), discounted to the date of redemption on a semi-annual basis (assuming a 360-day year, consisting of twelve 30-day months) at the Treasury Rate plus 35 basis points, plus, in each case, accrued and unpaid interest thereon to, but not including, the date of redemption. If the Company elects to redeem the Securities on or after the Optional Redemption Date, the redemption price will equal 100% of the aggregate principal amount of the notes being redeemed, plus accrued and unpaid interest thereon to, but not including, the date of redemption.

(b) Unless the Company defaults in payment of the redemption price, on and after the date of redemption, interest will cease to accrue on the Securities or portions thereof called for redemption.

(c) Any redemption pursuant to Article 3 of the Indenture shall be made pursuant to the provisions of Sections 3.01 through 3.05 of the Indenture.

(6) REPURCHASE AT THE OPTION OF HOLDER . If there is a Change of Control Repurchase Event, the Company will be required to make an offer (a “ Change of Control Offer ”) to each Holder to repurchase all or any part (equal to $2,000 or integral multiples of $1,000 in excess of $2,000) of each Holder’s Securities at a purchase price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest thereon to the date of repurchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date (the “ Change of Control Payment ”). Within 30 days following any Change of Control Repurchase Event, the Company will mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture.

(7) NOTICE OF REDEMPTION . Notice of redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each Holder whose Securities are to be redeemed at its registered address. Securities in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Securities held by a Holder are to be redeemed.

(8) DENOMINATIONS, TRANSFER, EXCHANGE . The Securities are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000. The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Security or portion of a Security selected for redemption, except for the unredeemed portion of any Security being redeemed in part. Also, the Company need not exchange or register the transfer of any Securities for a period of 15 days before a selection of Securities to be redeemed or during the period between a record date and the corresponding Interest Payment Date.

(9) PERSONS DEEMED OWNERS . The registered Holder of a Security may be treated as its owner for all purposes.

 

A-3

(10) AMENDMENT, SUPPLEMENT AND WAIVER . Subject to certain exceptions, the Indenture or the Securities or the Note Guarantees may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Securities including additional Securities, if any, voting as a single class, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Securities or Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Securities including additional Securities, if any, voting as a single class. Without the consent of any Holder of a Security, the Indenture or the Securities or Note Guarantees may be amended or supplemented to correct any mistakes or defects in the Indenture, but only if such action does not adversely affect the interests of the Holders of the Securities in any material respect or otherwise amend the Indenture in any respect that does not adversely affect the interests of the Holders of the Securities; to add or change any of the provisions of the Indenture relating to the issuance or exchange of the Securities in registered form, but only if such action does not adversely affect the interests of the Holders of the Securities or related coupons in any material respect; to provide for the assumption of the Company’s or a Subsidiary Guarantor’s obligations to Holders of the Securities and Note Guarantees by a successor Person; to impose additional covenants and Events of Default or to add Note Guarantees of other Persons for the benefit of the Holders; to change or eliminate any of the provisions of the Indenture, but only if the change or elimination becomes effective when there are no outstanding Securities or related coupons, which are entitled to the benefit of such provision and as to which such modification would apply; to secure the Securities; to comply with the requirements of the SEC in order to effect or maintain the qualification of the Indenture under the TIA; to conform the text of the Indenture, the Securities or the Note Guarantees to any provision of the “Description of the Notes” section of the Company’s Prospectus Supplement dated as of October 17, 2012, relating to the initial offering of the Securities, to the extent that such provision in that “Description of the Notes” was intended to be a verbatim recitation of a provision of the Indenture, the Note Guarantees or the Securities; to supplement any of the provisions of the Indenture to permit or facilitate the defeasance and discharge of the Securities, but only if such action does not adversely affect the interests of the Holders of the Securities or related coupons in any material respect; to establish the form or terms of the Securities or related coupons, 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 or to allow any Subsidiary Guarantor to execute a supplemental indenture to the Indenture and/or a Note Guarantee with respect to the Securities.

(11) DEFAULTS AND REMEDIES . Events of Default include: (i) default for 30 days in the payment when due of interest on the Securities; (ii) default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the Securities, (iii) failure by the Company or any of its Subsidiaries for 60 days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Securities then outstanding voting as a single class to comply with any of the other agreements in the Indenture or the Securities; (iv) default under certain other agreements relating to Indebtedness for money borrowed by the Company or any of its Subsidiaries, which default is a Payment Default or results in the acceleration of such Indebtedness prior to its express maturity, but only if the aggregate principal amount of such Indebtedness under which there has been a Payment Default or which has been accelerated is $75 million or more; (v) certain events of bankruptcy or insolvency with respect to the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of Subsidiaries that, taken together, would constitute a Significant Subsidiary; and (vi) except as permitted by the Indenture, any Note 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 its behalf denies or disaffirms its obligations under such Subsidiary Guarantor’s Note Guarantee. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Securities may declare all the Securities to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Securities will become due and payable immediately without further action or notice. Holders may not enforce the Indenture or the Securities except as provided in the Indenture. Subject to certain

 

A-4

limitations, Holders of a majority in aggregate principal amount of the then outstanding Securities may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Securities notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest or premium, if any) if it determines that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the then outstanding Securities by notice to the Trustee may, on behalf of the Holders of all of the Securities, 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 Securities. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required, upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.

(12) TRUSTEE DEALINGS WITH COMPANY . The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.

(13) NO RECOURSE AGAINST OTHERS . A director, officer, employee, incorporator or stockholder of the Company or any of the Subsidiary Guarantors, as such, will not have any liability for any obligations of the Company or the Subsidiary Guarantors under the Securities, the Note Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Securities.

(14) AUTHENTICATION . This Security will not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.

(15) ABBREVIATIONS . Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

(16) CUSIP NUMBERS . Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Securities, and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Securities or as contained in any notice of redemption, and reliance may be placed only on the other identification numbers placed thereon.

(17) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS SECURITY AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

Owens Corning

One Owens Corning Parkway

Toledo, OH 43659

Attention: Investor Relations

 

A-5

ASSIGNMENT FORM

To assign this Security, fill in the form below:

 

(I) or (we) assign and transfer this Security to:                                                                                                                                                  

 

(Insert assignee’s legal name)

 

(Insert assignee’s soc. sec. or tax I.D. no.)

 

 

 

 

(Print or type assignee’s name, address and zip code)
and irrevocably appoint                                                                                                                                                                                  

 

  

to transfer this Security on the books of the Company. The agent may substitute another to act for him.

Date:                     

 

Your Signature:  

 

(Sign exactly as your name appears on the face of this Security)

Signature Guarantee*:                                     

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

A-6

Option of Holder to Elect Purchase

If you want to elect to have this Security purchased by the Company pursuant to Section 2.11 of the Supplemental Indenture, check the box below:

¨  Section 2.11

If you want to elect to have only part of the Security purchased by the Company pursuant to Section 2.11of the Supplemental Indenture, state the amount you elect to have purchased:

$                       

Date:                                  

 

Your Signature:

 

 

(Sign exactly as your name appears on the face of this Security)

 

Tax Identification No.:  

 

Signature Guarantee*:                                          

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

A-7

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY

The following exchanges of a part of this Registered Global Security for an interest in another Registered Global Security or for a definitive Registered Security, or exchanges of a part of another Registered Global Security or definitive Registered Security for an interest in this Registered Global Security, have been made:

 

Date of Exchange

 

Amount of decrease in

Principal Amount

of

this Global Security

 

Amount of increase in

Principal Amount

of

this Global Security

   Principal Amount
of this Global  Security
following such
decrease
(or increase) 		   Signature of authorized
officer of Trustee or
Custodian

 

 

 

A-8

Exhibit B

FORM OF NOTATION OF GUARANTEE

For value received, each Subsidiary Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture dated as of June 2, 2009 (as supplemented by the First Supplemental Indenture dated as of June 8, 2009, the Second Supplemental Indenture, dated May 26, 2010 and the Third Supplemental Indenture dated October 22, 2012 the “ Indenture ”) among Owens Corning, (the “Company” ), the Subsidiary Guarantors party thereto and Wells Fargo Bank, National Association, as trustee (the “ Trustee ”), (a) the due and punctual payment of the principal of, premium, if any, and interest on, the Securities when due, whether at maturity, by acceleration or otherwise, the due and punctual payment of interest on overdue principal of and interest on the Securities, if any, if lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any Securities or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Subsidiary Guarantors to the Holders of Securities and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee.

Capitalized terms used but not defined herein have the meanings given to them in the Indenture.

[Remainder of Page Intentionally Left Blank]

 

B-1

[GUARANTOR]
By    
  Name:
  Title:

 

B-2

Exhibit 5.1

 

LOGO  

SIDLEY AUSTIN LLP

ONE SOUTH DEARBORN STREET        

CHICAGO, IL 60603

(312) 853 7000

(312) 853 7036 FAX

  

BEIJING

BRUSSELS

CHICAGO

DALLAS

FRANKFURT        

GENEVA

HONG KONG

HOUSTON

LONDON

   LOS ANGELES

NEW YORK

PALO ALTO

SAN FRANCISCO

SHANGHAI

SINGAPORE

SYDNEY

TOKYO

WASHINGTON, D.C.

     FOUNDED 1866

October 22, 2012

Owens Corning

One Owens Corning Parkway

Toledo, OH 43659

Re: Registration Statement on Form S-3

Ladies and Gentlemen:

We refer to the Registration Statement on Form S-3, File No. 333-179542 (the “ Registration Statement ”), filed by Owens Corning, a Delaware corporation (the “ Company ”), and certain subsidiaries of the Company (the “ Subsidiary Guarantors ”), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “ Securities Act ”), which Registration Statement became effective upon filing pursuant to Rule 462(e) under the Securities Act. Pursuant to the Registration Statement, (i) the Company is issuing $600,000,000 aggregate principal amount of the Company’s 4.200% Notes due 2022 (the “ Debt Securities ”) and (ii) the Subsidiary Guarantors are issuing guarantees to holders of the Debt Securities (the “ Guarantees ” and, together with the Debt Securities, the “ Securities ”). The Securities are being issued under an Indenture, dated as of June 2, 2009 (the “ Base Indenture ”), by and among the Company, the subsidiary guarantors party thereto and Wells Fargo Bank, National Association, as trustee (the “ Trustee ”), as amended and supplemented by the First Supplemental Indenture, dated as of June 8, 2009 (the “ First Supplemental Indenture ”), by and among the Company, the subsidiary guarantors party thereto and the Trustee, the Second Supplemental Indenture, dated as of May 26, 2010 (the “ Second Supplemental Indenture ”), by and among the Company, the subsidiary guarantors party thereto and the Trustee and the Third Supplemental Indenture, dated as of October 22, 2012 (the “ Third Supplemental Indenture ,” and, together with the Base Indenture, the First Supplemental Indenture and the Second Supplemental Indenture, the “ Indenture ”), by and among the Company, the Subsidiary Guarantors and the Trustee. The Securities are to be sold by the Company pursuant to an underwriting agreement dated October 17, 2012 (the “ Underwriting Agreement ”) among the Company and the representatives of the several underwriters named in Schedule A to the Underwriting Agreement. We refer herein to the Subsidiary Guarantors listed on Annex A hereto, each of which is formed or organized under the laws of the State of Delaware, as the “ Specified Subsidiary Guarantors .”

Sidley Austin LLP is a limited liability partnership practicing in affiliation with other Sidley Austin partnerships

LOGO

Owens Corning

October 22, 2012

Page 2

 

This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.

We have examined the Registration Statement, the Indenture, the Underwriting Agreement, the Debt Securities in global form and the resolutions adopted by the board of directors of the Company and the board of directors, board of managers or managing partner of the Specified Subsidiary Guarantors, in each case relating to the Registration Statement, the Indenture, the Underwriting Agreement and the issuance of the Debt Securities by the Company and the issuance of the Guarantees by the Specified Subsidiary Guarantors. We have also examined originals, or copies of originals certified to our satisfaction, of such agreements, documents, certificates and statements of the Company and the Specified Subsidiary Guarantors and other documents and instruments, and have examined such questions of law, as we have considered relevant and necessary as a basis for this opinion 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. As to facts relevant to the opinions expressed herein, we have relied without independent investigation or verification upon, and assumed the accuracy and completeness of, certificates, letters and oral and written statements and representations of public officials and officers and other representatives of the Company and the Specified Subsidiary Guarantors.

Based on and subject to the foregoing and the other limitations, qualifications and assumptions set forth herein, we are of the opinion that the Debt Securities will constitute valid and binding obligations of the Company and the Guarantees set forth in the Indenture will constitute valid and binding obligations of the Subsidiary Guarantors, in each case, when the Debt Securities are duly executed by duly authorized officers of the Company and duly authenticated by the Trustee, all in accordance with the provisions of the Indenture, and the Debt Securities are delivered to the purchasers thereof against payment of the agreed consideration therefor in accordance with the Underwriting Agreement.

Our opinion is subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting creditors’ rights generally and to general equitable principles (regardless of whether considered in a proceeding in equity or at law), including concepts of commercial reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief.

With respect to each instrument or agreement referred to in or otherwise relevant to the opinions set forth herein (each, an “ Instrument ”), we have assumed, to the extent relevant to the opinions set forth herein, that (i) each party to such Instrument (if not a natural person) was duly organized or formed, as the case may be, and was at all relevant times and is validly existing and

LOGO

Owens Corning

October 22, 2012

Page 3

 

in good standing under the laws of its jurisdiction of organization or formation, as the case may be, and had at all relevant times and has the right, power and authority to execute, deliver and perform its obligations under such Instrument and (ii) such Instrument has been duly authorized, executed and delivered by each party thereto, and (iii) such Instrument was at all relevant times and is a valid, binding and enforceable agreement or obligation, as the case may be, of, each party thereto; provided that we make no such assumption insofar as any of the foregoing matters relates to the Company or a Specified Subsidiary Guarantor and is expressly covered by our opinion set forth above; and provided further that we make no assumption in clause (iii) with respect to any Subsidiary Guarantor that is not a Specified Subsidiary Guarantor. We have also assumed that no event has occurred that would cause the release of the Guarantee by any Subsidiary Guarantor under the terms of the Indenture.

This opinion letter is limited to the General Corporation Law of the State of Delaware, the Limited Liability Company Act of the State of Delaware, the Revised Uniform Partnership Act of the State of Delaware and the laws of the State of New York (excluding the securities laws of the State of New York). We express no opinion as to the laws, rules or regulations of any other jurisdiction, including, without limitation, the federal laws of the United States of America or any state securities or blue sky laws.

We hereby consent to the filing of this opinion 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 .

Very truly yours,

/s/ Sidley Austin LLP

ANNEX A

SPECIFIED SUBSIDIARY GUARANTORS

Engineered Pipe Systems, Inc

Eric Company

IPM Inc.

OC Canada Holdings General Partnership

OCCV1, Inc.

OCCV2, LLC

Owens Corning Composite Materials, LLC

Owens Corning Construction Services, LLC

OCV Intellectual Capital, 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 Roofing and Asphalt, LLC

Owens Corning Sales, LLC

Owens Corning Science and Technology, LLC

Owens Corning U.S. Holdings, LLC

Exhibit 5.2

October 22, 2012

Owens Corning

One Owens Corning Parkway

Toledo, OH 43659

Re: 4.200% Senior Notes Due 2022

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 issuance and sale by the Company of $600,000,000 aggregate principal amount of its 4.200% Senior Notes due 2022 (the “ Notes ”) pursuant to the prospectus supplement dated October 17, 2012 (the “ Prospectus Supplement ”), which supplements the prospectus dated February 16, 2012 (the “ Base Prospectus ”) that forms a part of the Company’s Registration Statement on Form S-3 (File No. 333-179542) filed on February 16, 2012, with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “ Securities Act ”), and the rules and regulations under the Securities Act. The Notes are being issued 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 ”), as amended and supplemented by the First Supplemental Indenture (the “ First Supplemental Indenture ”), dated as of June 8, 2009, among the Company, the Guarantors named as a party thereto and the Trustee, as further amended and supplemented by the Second Supplemental Indenture (the “ Second Supplemental Indenture ”) dated as of May 26, 2010, and as further amended and supplemented by the Third Supplemental Indenture (the “ Third Supplemental Indenture ”; and with the Base Indenture, the First Supplemental Indenture and the Second Supplemental Indenture collectively, the “ Indenture ”), dated as of October 22, 2012, among the Company, the Guarantors named as a party thereto and the Trustee, which Notes will be guaranteed by the Kentucky Guarantor.

In rendering the opinions expressed below, we have examined and relied upon (i) a copy of the Underwriting Agreement, dated as of October 17, 2012 (the “Underwriting Agreement”), among Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., J.P. Morgan Securities LLC and Wells Fargo Securities, LLC, as representatives of the Underwriters, the Company, and the Guarantors named therein (the “ Guarantors ”), including the Kentucky Guarantor, (ii) a copy of the Prospectus Supplement delivered to us by the Company; (iii) a copy of the Indenture; (iv) a copy of the Articles of Incorporation of the Kentucky Guarantor, as certified by the Secretary of State of Kentucky on September 27, 2012 (the “ Articles of Incorporation ”), (v) a Certificate of Existence for the Kentucky Guarantor, as issued by the

Owens Corning

October 22, 2012

Page 2

 

Secretary of State of Kentucky on September 27, 2012 (the “ Certificate of Existence ”); (vi) a copy of the by-laws of the Kentucky Guarantor (the “ Bylaws ”), as certified by the Secretary of the Kentucky Guarantor, and (vii) a copy of all proceedings, actions and resolutions of the board of directors of the Kentucky Guarantor relating to the Registration Statement, the Indenture and the issuance and sale of the Notes. 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 Underwriting Agreement as to factual matters.

We also have assumed without investigation that (i) the Registration Statement and the Indenture have been duly authorized, executed and delivered by all parties to the Registration Statement and the Indenture other than the Kentucky Guarantor and (ii) the Kentucky Guarantor’s execution, delivery or performance of the Registration Statement and the Indenture will not breach, violate, conflict with or constitute a default under any agreement (other than the Registration Statement and the Indenture), 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 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 and the Indenture.

3. The Kentucky Guarantor has duly 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.

Owens Corning

October 22, 2012

Page 3

 

5. The Indenture has been duly authorized, executed and delivered by the Kentucky Guarantor.

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.

This Opinion is for your benefit in connection with the transactions contemplated by the Registration Statement, the Prospectus Supplement 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 Company’s current report on Form 8-K on the date hereof, which form 8-K will be incorporated by reference into the Registration Statement, and to all references to our firm in the Prospectus and the Prospectus Supplement. In giving such consent, we do not thereby admit that we are within the 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,
STITES & HARBISON PLLC
/s/ STITES & HARBISON PLLC

Exhibit 5.3

 

LOGO

     

Reinhart Boerner Van Deuren s.c.

P.O. Box 2965

Milwaukee, WI 53201-2965

 

1000 North Water Street

Suite 1700

Milwaukee, WI 53202

 

Telephone: 414-298-1000

Facsimile: 414-298-8097

reinhartlaw.com

October 22, 2012

 

Owens Corning

One Owens Corning Parkway

Toledo, Ohio 43659

  

Sidley Austin LLP

One South Dearborn Street

Chicago, Illinois 60603

Ladies and Gentlemen:

We have acted as local Wisconsin counsel to CDC Corporation, a Wisconsin corporation (the “Guarantor”), in connection with (i) the issuance and sale by Owens Corning, a Delaware corporation (“Parent”), of $600,000,000 aggregate principal amount of Parent’s 4.200% Senior Notes due 2022 (the “Debt Securities”), and (ii) the guarantee (the “Guarantee”) to be issued by the Guarantor to holders of the Debt Securities, pursuant to the prospectus supplement dated October 19, 2012 supplementing the prospectus dated February 16, 2012 that forms a part of the Parent’s Registration Statement (the “Registration Statement”) on Form S-3 (Registration No. 333-179542) filed on February 16, 2012 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”).

The Debt Securities and the Guarantee are being issued under an Indenture dated as of June 2, 2009, as supplemented by the Supplemental Indenture dated June 8, 2009, the Second Supplemental Indenture dated as of May 26, 2010, and the Third Supplemental Indenture dated as of October 22, 2012 (as so supplemented, the “Indenture”) among Parent, the Guarantor, certain other subsidiaries of Parent who will issue guarantees of the Debt Securities under the Indenture and Wells Fargo Bank, National Association, as trustee. 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 this opinion we have, with your permission, relied on an officer’s certificate as to certain factual matters. In rendering this opinion we have, with your permission, assumed without investigation, verification or inquiry that all signatures on the documents reviewed by us are genuine; the copies of all documents submitted to us are accurate and complete; each such document that is original is authentic and each such document that is a copy conforms to an authentic original.

Milwaukee Ÿ Madison Ÿ Waukesha Ÿ Rockford, IL

Phoenix, AZ Ÿ Denver, CO

Owens Corning

Sidley Austin LLP

October 22, 2012

Page 2

 

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 and the Guarantee.

3. The execution, delivery and performance of the Indenture and the Guarantee have been duly authorized by all necessary corporate action on the part of the Guarantor.

4. The Indenture and the Guarantee have been duly executed and delivered by the Guarantor.

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. 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. 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 filing of this letter as an Exhibit to the Parent’s Current Report on Form 8-K on the date hereof, which Form 8-K will be incorporated by reference into the Registration Statement, and to all references to our firm included in or made a part of the Prospectus. In giving our consent, we do not admit that we are “experts” within the meaning of Section 11 of the Securities Act or within the category of persons whose consent is required by Section 7 of the Securities.

 

Very truly yours,
REINHART BOERNER VAN DEUREN s.c.
BY   /s/ Benjamin G. Lombard
  Benjamin G. Lombard