EXHIBIT 10.3
ALLOY SERVICES AGREEMENT
This Alloy Services Agreement is made as of September 30, 1998 by and between
Advanced Glassfiber Yarns LLC (hereinafter "Buyer") and OWENS CORNING, a company
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incorporated under the laws of the State of Delaware and having its principal
office at Owens Corning World Headquarters, One Owens Corning Parkway, Toledo,
Ohio 43659 (hereinafter "OC").
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WITNESSETH
WHEREAS, OC and Buyer have entered into an Amended and Restated Asset
Contribution Agreement, dated July 31, 1998 (the "ACA"), whereby OC has
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contributed to Buyer a quantity of platinum and rhodium;
WHEREAS, Buyer requires alloying, fabrication and repair services for bushings,
thermocouples and glass melter parts constructed from metal alloys (collectively
referred to as the "Parts"); and
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WHEREAS, OC has the expertise to provide these services to Buyer;
NOW, THEREFORE, OC and Buyer agree as follows:
1. ESTABLISHMENT OF ALLOY ACCOUNTS
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A. On the date hereof, OC has established one or more alloy accounts
(the "Accounts") in favor of Buyer evidencing the amounts of platinum
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and rhodium in alloy form purchased by Buyer pursuant to the ACA and
to be serviced hereunder. As of an inventory taken on June 19, 1998,
the Accounts show a balance of 838,571 grams of H alloy, 2,573,173
grams of J alloy and 40,743 grams of thermocouple wire alloy.
B. OC will be responsible for maintaining and providing a monthly
transaction summary for the Accounts. OC recognizes that the metals
and alloy represented by the Accounts (other than the leased alloy as
provided in paragraph 4 below) is Buyer property and will not assign
it as collateral for any financing and it remains the sole property of
Buyer even in case of termination of this Agreement.
2. ALLOYING/DE-ALLOYING OF PRECIOUS METALS
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A. OC agrees to combine for Buyer platinum and rhodium into H alloy, J
alloy, thermocouple wire and other alloys as may be required from time
to time in amounts as agreed upon by OC and Buyer in accordance with
the requirements of Paragraph 2B herein. To direct OC to undertake
alloying services, Buyer shall issue a purchase order to OC's Alloy
Manufacturing Operations in Anderson,
South Carolina. If Buyer issues an oral purchase order, the oral
purchase order shall be confirmed by Buyer in writing within five (5)
business days of the issue date. OC shall acknowledge receipt of each
purchase order and provide the estimated date of shipment for the
items covered by each purchase order.
B. Any platinum and rhodium to be deposited by Buyer into the Accounts
prior to alloying shall have a purity of 99.95% and 99.90,
respectively.
Alloy metal in combined ingot form manufactured by OC hereunder shall
have an alloyed purity of at least 99.7%. The attached Exhibit 1
provides for an allowance for other elements which shall be acceptable
in the purity levels. OC represents that the platinum, rhodium and
alloy purchased under the ACA and deposited in the Accounts satisfy
the foregoing purity requirements.
C. The fee schedule for alloying services shall be determined for each
calendar year by OC and shall be announced to Buyer as soon before the
beginning of each calendar year as is practicable. The 1998 fee
schedule for alloying is attached to this Alloy Services Agreement as
Exhibit 2. The fees listed on Exhibit 2, paragraph A do not include
inherent metal losses of the alloying process, which OC agrees will be
no more than to be 0.2%. Such inherent metal losses will be charged
against and deducted from the Accounts.
D. All billings for alloying services shall be rendered by OC on a
monthly basis shall be on prevailing OC credit terms, currently net
thirty (30) days. Remittances to OC shall be made in U.S. Dollars by
wire transfer to a bank to be determined by OC. Payment of fees for
alloying services will be subject to an interest charge equal to the
"base rate" of Citibank N.A. as announced from time to time (the "U.S.
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Prime Rate") plus 2.0% per annum beginning on the 31st day after the
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invoice date if not then paid in full.
E. The alloying fees described in this paragraph 2 shall be in addition
to any other charges described in this Alloy Services Agreement.
F. De-Alloying services will be quoted on request.
3. FABRICATION AND/OR REPAIR SERVICES
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A. At the request of Buyer, OC will provide fabrication and/or repair
services for Parts using Buyer's alloys in accordance with OC design
specifications.
B. To direct OC to fabricate and/or repair one or more Parts, Buyer shall
issue a purchase order to OC's Alloy Manufacturing Operations in
Anderson, South Carolina specifying the fabrication or repair services
to be performed by OC. If
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Buyer issues an oral release, the oral release shall be confirmed by
Buyer in writing within five (5) business days of the issue date. OC
shall acknowledge receipt of each release and provide the estimated
date of shipment for the item(s) in the release. OC shall comply with
the terms of Buyer's purchase order which are consistent with the
requirements of Section 3.A of this Agreement.
C. The fee schedule for fabrication/repair services shall be determined
for each calendar year by OC and shall be announced to Buyer as soon
before the beginning of each calendar year as is practicable. This
will incorporate the forecasted activity level of the Buyer. The fee
schedule for such fabrication and/or repair services shall generate a
forty (40%) margin.
D. Buyer and OC agree that fabrication of Parts will cause a loss of
alloy not exceeding 1% of gross item weight. All such losses shall be
charged against and deducted from the Accounts on a monthly basis.
E. Fees for services to fabricate and/or repair furnace parts, viscometer
parts, finshields, center supports, precision fin adjustors, tip plugs
and other special orders will be quoted by OC on request.
F. OC and Buyer agree that, as of the date of this Alloy Services
Agreement, shipment of Parts, other than those required for initial
plant start-up, will be effected no more than seven (7) weeks from the
date that an order is acknowledged (the "Cycle Time").
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Notwithstanding the foregoing, once a month Buyer may place an order
for one Part for shipment within one week. Buyer's orders will be
processed at least on a proportionate basis to OC's own processing
needs.
G. Billings for fabrication and/or repair services shall be rendered by
OC on a monthly basis shall be on prevailing OC credit terms,
currently net thirty (30) days from the day of invoice. Remittances
shall be made in U.S. Dollars by wire transfer or check to a bank to
be determined by OC. Payment of fees for fabrication and/or repair
services will be made by Buyer subject to an interest charge of U.S.
Prime Rate plus 2% per annum beginning on the 31st day after the
invoice date if not then paid in full.
H. Billings for the cost of delivery of Parts to and from the airport for
shipment to or receipt from Buyer (all of which shall be the
responsibility of Buyer) shall be rendered by OC on receipt of armored
car services' billings to OC.
I. OC shall prepare and package Parts for shipment to Buyer in OC
designed and provided reusable containers. Shipments will be made CPT,
destination, airport basis. OC shall assist Buyer in negotiating and
obtaining best terms for freight
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and insurance. OC reserves the right to change shipping terms with at
least thirty (30) days' prior written notice to Buyer.
J. As soon as practicable after receipt, but in no case exceeding
fourteen (14) days after receipt, Buyer shall return the reusable
containers to OC CIF, OC Manufacturing Facility at Ridgeview, South
Carolina basis. Buyer may at each manufacturing location retain two
(2) empty containers for its future use to return Parts for repair.
K. The fabrication and/or repair and other fees described in this
paragraph 3 shall be in addition to any other charges described in
this Alloy Services Agreement.
L. For returns of used Parts, Buyer shall return such Parts CIF, OC
Manufacturing Facility at Anderson, South Carolina. Buyer shall
package the used Parts in an OC reusable container and Buyer shall
comply with all other instructions provided by OC regarding the return
of the Part.
4. BRIDGE LEASING FOR POOL ACCOUNT
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A. Buyer agrees it is responsible to maintain at all times a balance in
the Accounts to cover 110% of the purchase orders rendered hereunder.
Should Buyer enter an order or orders for Parts which order or orders
result in one or more Accounts having a negative balance after
considering the effect of the order(s), OC shall lease to Buyer the
amount of alloy required to bring such negative Account or Accounts to
a positive balance. In consideration thereof, Buyer agrees to pay to
OC a lease fee in an amount calculated per the applicable formula(s)
set out in subparagraph B below.
B. The applicable formula for lease fee determination for each alloy is
as follows:
J Alloy Formula monthly charges:
The sum of (i)
(J alloy leased x 75% Pt ratio) x (Pt mkt. price x lease rate %) x emergency factor) x days in current month
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360
and (ii)
(J alloy leased x 25% Rh ratio) x (Rh mkt. price x lease rate %) x emergency factor) x days in current month
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360
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H Alloy Formula monthly charges:
The sum of (i)
(H alloy leased x 90% Pt ratio) x (Pt mkt. price x lease rate %) x
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emergency factor) x days in current month
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360
and (ii)
(H alloy leased x 10% Rh ratio) x (Rh mkt. price x lease rate %) x
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emergency factor) x days in current month
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360
TC Alloy Formula monthly charges:
The sum of (i)
(TC alloy leased x 93.5% Pt ratio) x (Pt mkt. price x lease rate %)
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x emergency factor) x days in current month
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360
and (ii)
(TC alloy leased x 6.5% Rh ratio) x (Rh mkt. price x lease rate %) x
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emergency factor) x days in current month
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360
Where:
J Leased = Quantity of J alloy leased in grams.
H Leased = Quantity of H alloy leased in grams.
TC Leased = Quantity of TC alloy leased in grams.
Pt Mkt. Price = Closing Price of platinum in U.S. dollars per gram at
the close of business in New York on the Metals Inventory Date in the
month the negative balance occurs as published by Johnson & Matthey
Inc.
Rh Mkt. Price = Closing Price of rhodium in U.S. dollars per gram at
the close of business in New York on the Metals Inventory Date in the
month the negative balance occurs as published by Johnson & Matthey
Inc.
Lease Rate = 15%
Emergency Factor = 1.16
The Metals Inventory Date Schedule for 1998 is attached hereto as Exhibit 3.
The Metals Inventory Date schedule for each subsequent year shall be
communicated in writing as soon before the beginning of each calendar year as is
practicable. Buyer shall participate in the OC's metals inventory process
according to the Metals Inventory Date schedule.
C. The lease fee shall be billed monthly for all months that Buyer's
Accounts are in negative status. All billings for bridge leasing
shall be paid on prevailing OC credit terms, currently net thirty (30)
days, unless expressly modified by this Alloy Services Agreement.
Remittances to OC shall be made in U.S. Dollars by wire transfer to a
bank to be determined by OC. Payments of bridge leasing fees will be
subject to an interest charge equal to the U.S. Prime Rate plus 2.0%
per annum beginning on the 31st day after invoice date if not then
paid in full. The quantity of alloy exceeding 111,000 oz. on the
Metals Inventory Date shall be charged to Buyer using the bridge lease
formula provided in Section 4B based on
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the ratio of J, H and TC Alloy determined in Paragraph 1.A above. The
quantity below 111,000 oz on the Metals Inventory Date shall be
charged to Seller using the bridge leasing formula provided in Section
4B based on the ratio of J, H and TC Alloy determined.
D. Fees for bridge leasing described in this paragraph 4 shall be in
addition to any other charges described in this Alloy Services
Agreement.
E. Buyer and OC may agree from time to time to change alloy compositions
from those shown in the above formulae, and the appropriate
percentages of platinum and rhodium shall be substituted in the
affected formula to determine the new alloy's lease fee monthly
payment.
F. It is agreed that the bridge leasing provided for in this paragraph 4
is intended only for Buyer's short term unexpected needs. Buyer
agrees that any needs exceeding thirty (30) days shall be satisfied by
Buyer purchasing and depositing in the Accounts additional platinum
and/or rhodium.
5. OC ALLOY POLICIES
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In addition to the provisions contained herein, the agreements of the
parties represented hereby shall be further subject to OC Alloy Policies AO
A251 and A451 (the "Alloy Policies"), Exhibits 4 and 5 respectively. OC
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reserves the right to amend the Alloy Policies at any time and from time to
time on thirty (30) days' prior written notice. To the extent there is a
conflict between the terms of this Alloy Services Agreement and the Alloy
Policies, the terms of this Alloy Services Agreement shall control.
6. METAL OPERATING LOSSES
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During the normal course of operating an alloyed part, there will be a
percentage of alloy loss noted after the part is removed. This loss will
be charged against and deducted from the Accounts. The charge for this
loss will be the difference in part weight when shipped out new less the
used part weight when returned. OC shall account to Buyer for any alloys
recovered on Buyer's behalf using the same procedure as OC uses for its
licensees and affiliates.
7. TERM
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This Alloy Services Agreement shall be effective as of the date of
execution and, unless earlier terminated as provided herein, shall continue
in full force and effect for the period of seven years and three months
through and including December 31, 2005 (the "Initial Term"). This
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Agreement is renewable at the option of either party for consecutive terms
of five years unless terminated by either party upon twenty-four (24)
months, prior
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written notice. The Initial Term, together with all renewal periods
thereof, is referred to hereinafter as the "Term."
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8. EXCLUSIVITY
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OC shall be Buyer's exclusive provider of alloying services and fabrication
and repair services with regard to Parts which are utilized by Buyer. OC
agrees that it will not provide Parts to any third party who utilizes such
Parts to manufacture Business Products in competition with Buyer.
Exceptions to this limitation shall be made by mutual agreement of both
parties acting reasonably and in good faith.
9. PART DESIGN SECRECY
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The treatment of OC's and Buyer's proprietary information embodied in the
Parts shall be governed by the provisions of the Patent and Know How
License Agreement dated the date hereof by and between OC and Buyer.
10. INSURANCE
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OC agrees to take reasonable precautions where possible to minimize the
risk of loss of precious metals in the Accounts while in the custody of OC.
OC assumes all risk of loss for precious metals, whether in fabricated form
or in the form of pure alloy or precious metals, while located at OC
manufacturing facilities. Buyer assumes all risk of loss at all other
times and regardless of where located for all precious metals in the
Accounts, whether in fabricated form or in the form of pure alloy or
precious metals. Buyer shall remain responsible to procure all appropriate
insurance at its own expense for those losses for which it is responsible.
11. WARRANTY/LIMITATION OF LIABILITY
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A. OC warrants that the Parts when delivered to Buyer shall conform to OC
specifications and shall be free and clear of all liens and
encumbrances. Any services rendered in connection with the alloying
of metals or the fabrication of Parts shall be performed in a
workmanlike manner. OC further warrants that it shall have complied
with all applicable laws, regulations, ordinances and codes and OC
shall have obtained those permits, licenses, approvals and
certificates, reasonably necessary for the manufacture, packaging,
storage and handling the Parts and the provision of such other
services hereunder at OC's manufacturing facilities.
B. EXCEPT AS PROVIDED IN PARAGRAPH 11(A) HEREIN, OC MAKES NO OTHER
REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICES
DELIVERED HEREUNDER, WHETHER
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EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE, EVEN IF
DISCLOSED TO OC, AND OC HEREBY DISCLAIMS ANY SUCH OTHER REPRESENTATION
OR WARRANTY.
C. OC's sole liability with respect to the services provided by OC under
this Alloy Services Agreement, and whether based upon breach of
warranty, negligence, strict liability, tort, breach of contract or
any other theory, shall be limited to and shall in no event in the
aggregate exceed the fees charged hereunder for the services sold
hereunder. OC shall have no liability to any person other than Buyer
by virtue of the sale of the services hereunder and the other matters
contemplated by this Alloy Services Agreement.
D. Buyer's sole and exclusive remedy and the limit of OC's liability for
breach of the warranty set forth in paragraph 11(A), whether based
upon breach of warranty, negligence, strict liability, tort, breach of
contract or any other theory, shall be, at OC's option, (a)
replacement of the non-conforming Parts, without charge, F.O.B.
Buyer's manufacturing facility; or (b) refund of the purchase price
paid in respect of such non-conforming Parts, plus commercially
reasonably charges in connection with the return or disposition of the
non-conforming Parts. If OC elects to replace the non-conforming
Parts, it shall do so at no cost to Buyer within seven days unless the
parties agree otherwise. To effect this sole and exclusive remedy,
Buyer must make its claim for breach of warranty within 12 months of
the date of shipment of the Parts, and any such claim not then made
shall be irrevocably waived.
E. THE FOREGOING IS THE ENTIRE OBLIGATION OF OC PURSUANT TO THIS
AGREEMENT. OC SHALL NOT BE LIABLE PURSUANT TO THIS AGREEMENT FOR ANY
CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT OR PENAL DAMAGES TO ANY
PERSON, WHETHER BASED UPON BREACH OF WARRANTY, NEGLIGENCE, STRICT
LIABILITY, TORT, BREACH OF CONTRACT OR ANY OTHER THEORY, OR FOR
FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS ALLOY SERVICES
AGREEMENT. ADDITIONAL, CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT
OR PENAL DAMAGES SHALL NOT BE RECOVERABLE EVEN IF THE REPLACEMENT OR
REFUND REMEDY FOR OC'S BREACH OF ITS LIMITED WARRANTY FAILS OF ITS
ESSENTIAL PURPOSE OR FOR ANY OTHER REASON.
F. No statement or recommendation made or assistance given by OC, or its
representatives, either oral or in any literature or other
documentation, to Buyer, its customers or any other persons in
connection with the services provided hereunder, shall constitute a
waiver by OC of any provision hereof or affect OC's
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liability as herein defined; and no such statement, recommendation or
assistance that is not expressly required by the provisions of this
Alloy Services Agreement shall subject OC to any liability of any
nature whatsoever.
12. NON-ASSIGNABILITY
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This Alloy Services Agreement shall inure to the benefit of and be binding
on the parties hereto and their respective successors and permitted
assigns. Except as otherwise expressly provided herein, this Agreement
shall not be assigned by either party hereto without the express prior
written consent of the other party, and any attempted assignment, without
such consents, shall be null and void. Notwithstanding any nonassignment
provisions contained in this Section 12, Buyer, or any permitted assignee
or transferee of Buyer, may assign or otherwise transfer some or all of its
rights and/or obligations hereunder (i) to any entity or entities, or any
assignee of such entity or entities, providing financing for the
transactions contemplated by this Agreement or to any entity or entities
providing to Buyer, Buyer's Affiliates, or to any such permitted assignee
of Buyer, financing relating to the Business (collectively, the "Financing
Sources"), (ii) to any Affiliate of Buyer, provided that (x) such Affiliate
shall agree with OC and its permitted assignees or transferees, if any, in
writing to assume the Buyer's obligations hereunder and (y) any such
assignment to an Affiliate of the Buyer shall not relieve the Buyer from
its obligations hereunder or (iii) to any entity to which Buyer, or any
assignee or transferee of Buyer, assigns, sells, transfers or otherwise
conveys (A) all or substantially all of the assets constituting the
Business (a "Complete Assignment") or (B) all or substantially all of the
assets constituting either the Aiken Facility, the Huntingdon Facility or
the South Hill Facility (a "Partial Assignment"), provided that such
acquiring entity agrees with and acknowledges in writing to OC and its
permitted assignees or transferees, if any, that this Agreement shall be
binding upon and enforceable against such entity as though such acquiring
entity were Buyer and that such entity shall perform all of Buyer's
obligations hereunder. Notwithstanding any nonassignment provisions
contained in this Section 12, OC, or any permitted assignee or transferee
of OC, may assign or otherwise transfer some or all of its rights and/or
obligations hereunder (i) to any Affiliate of OC, provided that (x) such
Affiliate shall agree with Buyer and its permitted assignees or
transferees, if any, in writing to assume the OC's obligations hereunder
and (y) any such assignment to an Affiliate of the OC shall not relieve the
OC from its obligations hereunder or (ii) to any entity to which OC, or any
assignee or transferee of Buyer, assigns, sells, transfers or otherwise
conveys any portion of its business which owns, licenses, or uses Business
Patents or Business Know How (as each is defined in the Patent and Know How
License Agreement), provided that such acquiring entity agrees with and
acknowledges in writing to Buyer and its permitted assignees or
transferees, if any, that this Agreement shall be binding upon and
enforceable against such entity as though such acquiring entity were OC and
that such entity shall perform all of OC's obligations hereunder. To the
extent that assignment
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and/or transfer of any of the rights, privileges, and/or obligations is
permitted, this Agreement shall be binding on, and except as otherwise
expressly provided, shall inure to the benefit of, the legal successors,
assigns, or representatives of the parties.
13. AMENDMENT; WAIVER.
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This Alloy Services Agreement may be amended, supplemented or otherwise
modified only by a written instrument executed by the parties hereto. No
waiver by either party of any of the provisions hereof shall be effective
unless explicitly set forth in writing and executed by the party so
waiving. Except as provided in the preceding sentence, no action taken
pursuant to this Alloy Services Agreement, including without limitation,
any investigation by or on behalf of any party, shall be deemed to
constitute a waiver by the party taking such action of compliance with any
representations, warranties, covenants or agreements contained herein. The
waiver by any party hereto of a breach of any provision of this Alloy
Services Agreement shall not operate or be construed as a waiver of any
subsequent breach.
14. NOTICES
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All communications provided for hereunder shall be in writing and shall be
deemed to be given when delivered in person or by private courier with
receipt, when telefaxed and received, or three (3) days after being
deposited in the United States mail, first-class, registered or certified,
return receipt requested, with postage paid and,
If to Buyer: Advanced Glassfiber Yarns LLC
2556 Wagener Road
Aiken, South Carolina 29801
Fax: 803-643-1526
Attention: General Manager
With a copy to: AGY Holdings, Inc.
c/o Glass Holdings Corp.
3802 Robert Porcher Way
Greensboro, North Carolina 27410
Fax: 336-545-7715
Attention: President
And to: Jefferson Holdings, Inc.
One Owens Corning Parkway
Toledo, Ohio 43659
Fax: 419-325-1180
Attention: President
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If to OC: Owens Corning World Headquarters
One Owens Corning Parkway
Toledo, Ohio 43659
Fax: 419-325-1180
Attention: Larry W. Cullum
With a copy to: Owens Corning World Headquarters
One Owens Corning Parkway
Toledo, Ohio 43659
Fax: 419-248-1723
Attention: Law Department
or to such other address as any such party shall designate by written
notice to the other parties hereto.
15. TAXES
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Buyer shall pay to the proper authority, when and as the same become due
and payable, all taxes, duties, assessments and similar charges which at
any time during the term of this Alloy Services Agreement may be taxed,
assessed or imposed upon Buyer or OC with respect to the services provided
under this Alloy Services Agreement (other than any tax properly imposed by
the laws of any foreign jurisdiction or the United States upon OC, said tax
being in the nature of an income tax and measured by the amount of payments
to be made pursuant to this Agreement).
16. FORCE MAJEURE
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Neither party shall be liable to the other for delay or failure to perform
in whole or in part, by reason of contingencies or events which: (i) are
beyond the reasonable control of the party whose performance is affected,
(ii) are unforeseeable, and (iii) could not have been reasonably prevented,
whether herein specifically enumerated or not (a "Force Majeure Event").
These contingencies include, among others, act of God, act of war,
revolution, riot, acts of public enemies, fire, explosion, breakdown of
plant, strike, lockout, labor dispute, casualty or accident, earthquake,
flood, cyclone, tornado, hurricane or other windstorm, or by reason of any
law, order, proclamation, regulation, ordinance, demand, requisition or
requirement or any other act of any governmental authority, foreign or
domestic, local, state or federal (provided that the Force Majeure Event
does not arise due to or is connected in any way with a violation by party
hereto of any law, order, proclamation, regulation, ordinance, demand,
requisition or requirement of any governmental authority) except that
contingencies shall not include a downturn in Buyer's business or general
economic downturn. A party so affected by a Force Majeure Event shall:
(i) promptly give written notice to the other party whenever such
contingency or other act becomes reasonably foreseeable (including an
estimate of the
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expected duration of the Force Majeure Event and its probable impact on the
performance of such party's obligations hereunder); (ii) exercise all
reasonable efforts to continue to perform its obligations hereunder; (iii)
use its commercially reasonable best efforts to overcome or mitigate the
effects of the contingency as promptly as possible and (iv) promptly give
written notice to the other party of the cessation of such contingency.
Neither party, however, shall be required to resolve a strike, lockout or
other labor problem in a manner which it alone does not deem proper and
advisable. In no event shall any Force Majeure Event excuse party's failure
to pay when due any monetary obligation hereunder. In the case of any Force
Majeure Event relied on by OC, OC agrees that it shall treat Buyer no less
favorably than the most favorably treated Affiliate or customer of OC in
dealing with or adjusting to the consequences of such Force Majeure Event
and in relation to the allocation of any Products, the production or
availability of which may have been interrupted or diminished.
Deliveries of the Parts omitted due to any Force Majeure Event affecting OC
or Buyer shall, without liability, reduce by an equivalent quantity the
quantity of Parts to be sold and delivered during the period in which the
Force Majeure Event occurred. To determine the quantity of Parts that
would have been sold, the parties shall assume that Buyer's most recent
Refined Estimates would have been purchased on a ratable basis.
17. GOVERNING LAW
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This Alloy Services Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to a contract
executed and performed in such State without giving to the conflicts of law
principles thereof.
18. SEVERABILITY
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If any provision of this Alloy Services Agreement shall be declared by any
court of competent jurisdiction to be illegal, void or unenforceable, all
other provisions of this Alloy Services Agreement shall not be affected and
shall remain in full force and effect.
19. DEFAULT
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Except as otherwise specifically provided in this Alloy Services Agreement,
if either party fails to perform any of the terms of this Alloy Services
Agreement, (a) the other party may defer its performance under this Alloy
Services Agreement until the default is cured by the defaulting party, or
(b) at its option, the party may treat such default as a breach of the
entire Alloy Services Agreement and, if such default is not cured within 30
days after the giving of notice thereof to the defaulting party (or, in the
case of default in payment of monies, within 10 business days), may
immediately terminate this Alloy Services Agreement upon notice to the
defaulting party. This Alloy Services Agreement shall terminate
automatically, without necessity of notice, in the event Buyer or OC
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makes an assignment for the benefit of creditors, generally is adjudicated
bankrupt or in the event of the filing of any voluntary or involuntary
petition in bankruptcy against Buyer or OC or the appointment of a receiver
for Buyer or OC or any substantial part of their respective properties.
20. SURVIVAL
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The provisions of paragraphs 3G and 11 of this Agreement shall survive any
termination or expiration hereof.
21. SECTION HEADINGS
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The section headings contained in this Alloy Services Agreement are for
reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
22. ENTIRE AGREEMENT
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This Alloy Services Agreement and Exhibits set forth the entire
understanding of the parties hereto, and no modifications or amendments to
this Alloy Services Agreement shall be binding on the parties unless in
writing and signed by the party or parties to be bound by such modification
or amendment.
23. COUNTERPARTS
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This Alloy Services Agreement may be executed in counterparts, each of
which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
24. PUBLICITY
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Each of the Buyer and OC agrees not to use the name or trademarks or logos
of the other party or its divisions or affiliates in any publicity,
packaging, marketing materials, or other promotional activities or
materials without the prior written consent of the other party.
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IN WITNESS WHEREOF, the parties hereto have caused this Alloy Services Agreement
to be duly executed as of the date first written above.
OWENS CORNING
By: /s/ Charles E. Dana
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Name: Charles Dana
Title: Vice President
ADVANCED GLASSFIBER YARNS LLC
By: /s/ Robert B. Fisher
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Name: Robert B. Fisher
Title: General Manager