EXHIBIT 10.9
TRANSITIONAL SERVICES AGREEMENT
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This Transitional Services Agreement (the "Agreement") is made and
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entered into as of September 30, 1998 (the "Effective Date"), by and among Owens
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Corning, a Delaware corporation ("OC"), and Advanced Glassfiber Yarns LLC, a
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Delaware limited liability company (the "Company").
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RECITALS
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WHEREAS, OC and Company have entered into that certain Amended and
Restated Asset Contribution Agreement dated as of July 31, 1998 (the
"Contribution Agreement"), whereby OC contributed to the Company its business of
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manufacturing and selling glass fiber yarns and specialty materials at its
facilities located in Aiken, South Carolina, Huntingdon, Pennsylvania and South
Hill, Virginia (the "Business") in exchange for all of the membership interest
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in the Company and other consideration;
WHEREAS, OC, the Company and Glass Holdings Corp. have entered into
that certain LLC Interest Sale and Purchase Agreement dated as of July 31, 1998
(the "SPA"), whereby OC agreed to sell a 51% interest in the Company to AGY
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Holdings, Inc.; and
WHEREAS, each party hereto desires to continue to provide to the other
party selected services, and each party is willing to do so on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereby agree as follows:
1. Provision of Transitional Services.
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(a) Subject to the terms and conditions of this Agreement and
during the Transition Period (as defined herein), OC will provide the
Company (for the Business):
(i) the corporate services described in Appendix A,
which is attached to and made part of this Agreement (hereinafter
referred to individually as a "Service" and collectively as the
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"Corporate Services");
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(ii) the information systems services described in
Appendix B, which is attached to and made part of this Agreement
(hereinafter referred to individually as a "Service," and
collectively as the "IS Services").
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(iii) and such other services not specifically
enumerated on Appendix A or B provided by OC to the Business as
of the date hereof (hereinafter referred to individually as a
"Service" and, together with the Corporate Services, the IS
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Services and the services referenced in 1(b), the "Services").
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(b) Subject to the terms and conditions of this Agreement and
during the Term (as defined herein), the Company will provide OC with
the services described in Appendix C.
2. Method of Provision of Services. Each party agrees to provide to the other
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party the Services at the current level, scope and manner at which such Services
have been provided by OC or its Composites Systems Business to the Business or
to the Aiken mat line facility as of the date of this Agreement. Neither party
shall be under an obligation to expand or modify the level, scope or manner of
the Services provided. All Services shall be provided in a professional
workmanlike manner and,in the case of OC, shall be of a quality at least equal
to that provided by OC to its most favored Affiliate.
3. Discontinuation of Services. Either party may elect to discontinue
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receiving any Service under this Agreement by giving the other party at least
twenty (20) days' advance written notice of its election to discontinue such
Service or Services.
4. Disclaimer of Warranty. THE SERVICES HEREUNDER ARE PROVIDED ON AN "AS IS"
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BASIS. EACH PARTY HEREBY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF ANY
KIND, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
5. Limitation of Liability.
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(a) No party will be liable to the other party for any
incidental, consequential, special or punitive damages of any kind or
nature, including without limitation loss of data, services, profits,
revenue, business and service interruption in connection with, or
related to, the performance of this Agreement, or arising out of the
Services rendered hereunder, whether such liability is asserted on the
basis of contract (including, without limitation, the breach of this
Agreement or any termination of this Agreement), tort (including
negligence or
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strict liability), or otherwise, even if any other party has been warned of
the possibility of any such loss or damage in advance.
(b) Except as provided in Paragraph 5(a) and except in the event of
reckless or willful misconduct (whether or not the party is negligent) or
gross negligence, neither party shall be liable to the other party for any
claims, liabilities, damages, losses, costs, expenses (including, but not
limited to, settlements, judgments, court costs and reasonable legal fees),
fines and penalties, arising out of any actual or alleged injury, loss or
damage of any nature whatsoever suffered by such other party in providing
or failing to provide the Services to the Company. Notwithstanding anything
to the contrary contained herein, if either party commits an error with
respect to or incorrectly performs or fails to perform any Service, at the
other party's request, the erring party shall use reasonable efforts to
correct such error, reperform or perform such Service; provided, that
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neither party shall have any obligation to recreate any lost or destroyed
data to the extent the same cannot be cured by the reperformance of the
Service in question.
6. Price and Payment for Services. Each party shall invoice the other on a
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monthly basis for services rendered in the preceding calendar month. Each
invoice shall be sufficiently detailed to substantiate all amounts and Services
charged. The prices that will be paid for the Services under this Agreement
during the Term, will be as follows:
(a) For the Services, the Company shall pay to OC a fee equal to OC's
costs to provide the Services as described in Appendix A.
(b) For the IS Services, the Company shall pay to OC a fee equal to
OC's costs to provide the IS Services as described in Appendix B.
(c) For the Services rendered by the Company to OC, OC shall pay a
fee equal to the Company's costs to provide such Services as described in
Appendix C.
(d) For any other Service needed by either party from the other, a
fee equal to that party's costs to provide such Service shall be charged.
(e) For any Service rendered by a third party on behalf of a party,
the party receiving the Services shall pay to the party providing the
Services the fee equal to the fee charged by such third party, without
mark-up.
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(f) Each party shall invoice the other party on a monthly basis and
the invoiced party shall pay such invoiced amount net thirty (30) days from
the date of such invoice except to the extent that any item on such invoice
is disputed by the other party in good faith. Such disputed fees shall be
paid by the other party upon the mutually satisfactory resolution of such
dispute.
To the extent monthly fees and charges are computed on the basis of
budgeted or historic annual cost, such monthly fees shall promptly be
adjusted upon a known reduction in the actual cost of the related Service;
provided, however, that no adjustment shall be made with respect to any fee
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for a Service in the first three months in which such Service is performed.
7. Term and Termination.
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7.1 Term. This Agreement shall become effective upon the date hereof and
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will continue until and including December 31, 1999 (the "Term"), unless earlier
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terminated in accordance with the terms of this Agreement. Benefits
Administration Services listed in Section 2 of Appendix A and Information
Systems Services listed in Section 1 of Appendix B shall be provided through
December 31, 1999. All other Services shall terminate on March 31, 1999 unless
either party elects to extend the receipt of such Services for a period of three
(3) months by providing the other party with twenty (20) days' notice prior to
March 31, 1999.
7.2 Default and Remedies.
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(a) Event of Default. A party will be in default hereunder (an
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"Event of Default") if (i) such party commits a material breach of any term
or condition of this Agreement and such failure continues uncured for
thirty (30) days following receipt of written notice thereof from the other
party; (ii) there is a filing of an involuntary case for the entry of
relief against such party under any bankruptcy, insolvency or similar law
for the relief of debtors and such case remains undismissed for thirty (30)
days or more; (iii) a trustee or receiver is appointed for such party or
its assets or any substantial part thereof; or (iv) such party files a
voluntary petition under any bankruptcy, insolvency or similar law of the
relief of debtors.
(b) Remedies.
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(i) Upon an Event of Default hereunder, the non-defaulting party
may exercise any or all of the following remedies: (A) declare
immediately due and payable all fees for Services rendered
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under this Agreement; (B) decline to provide any Service or Services;
and/or (C) terminate this Agreement as provided herein.
(ii) In the event of any default by the party providing Services
hereunder, the party receiving the Services may terminate this
Agreement and/or decline to pay any and fees for the Services subject
to the Default.
(iii) In addition to the remedies set forth in subsection (i) or
(ii), above and subject to the terms and conditions of this Agreement,
a non-defaulting party will have all other rights and remedies
available at law or equity.
8. Indemnification. Each party will indemnify and hold the other party and
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its shareholders, directors, officers, employees and agents harmless from and
against any and all obligations, liabilities, claims and demands, expenses and
costs (including reasonable attorneys' fees) for any loss or damage to property
or injury to persons which may be asserted against such party by third parties
by reason, or as a result, of any acts or omissions of the indemnifying party,
including, but not limited to, claims arising out of the negligence of the
indemnifying party in connection with, or related to, the performance of this
Agreement.
9. Confidentiality.
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9.1 Confidential Information. Each party acknowledges that, in
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connection with the performance of this Agreement, it may receive certain
confidential or proprietary information and materials of the other party
("Confidential Information"). Confidential Information includes, without
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limitation, (a) all trade secrets and similar information, the disclosure of
which might destroy or impair the competitive advantage of a party; (b) any
nonpublic information regarding a party's financial condition, business plans,
operations or strategies; and (c) any other non-public information that a party
uses reasonable efforts to protect from disclosure to third parties.
9.2 Confidentiality. OC and the Company each hereby agree: (a) to
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hold and maintain in strict confidence all Confidential Information of the other
party; and (b) not to use any Confidential Information except as permitted by
this Agreement or necessary for a party to perform its obligations under this
Agreement. Each party will use at least the same degree of care to protect the
other party's Confidential Information as it uses to protect its own
Confidential Information of like importance, and in no event will such degree of
care be less than reasonable due care. The obligations
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of confidentiality shall survive for a period of eight (8) years beyond the
expiration or termination of this Agreement.
9.3 Exceptions. Notwithstanding the foregoing, the parties agree
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that Confidential Information will not include any information that: (a) is
generally known or becomes part of the public domain through no fault of the
party receiving such information or that the disclosing party authorizes the
receiving party in writing to disclose, copy or use under this Agreement; (b) is
rightfully received by a party without breach of this Agreement from a third
party which is not bound by any restriction on disclosure; (c) is furnished by
the disclosing party to another third party without having imposed upon such
third party any similar restriction on disclosure; or (d) is independently
developed by the receiving party without any use of the Confidential Information
of the disclosing party.
10. General Provisions.
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10.1 Notices. All communications provided for hereunder shall be in
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writing and shall be deemed to be given when delivered in person or by private
courier with receipt, when telefaxed and received, and,
If to Company: Advanced Glassfiber Yarns LLC
Highway 301
Aiken, South Carolina
Fax:
Attention:
If to OC: Owens Corning World Headquarters
One Owens Corning Parkway
Toledo, Ohio 43659
Fax: 419-248-8445
Attention: Corporate Secretary
With a copy to: Owens Corning World Headquarters
One Owens Corning Parkway
Toledo, Ohio 43659
Fax: 419-248-1723
Attention: Law Department
10.2 Force Majeure. Neither party shall be liable to the other for
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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
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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 the
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 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 a 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 the Company 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 performance of
any Service, the performance of which may have been interrupted or diminished.
10.3 Waiver, Modification. Any waiver of any right or default
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hereunder will be effective only in the instance given and will not operate as
or imply a waiver of any other or similar right or default on any subsequent
occasion. No waiver or modification of this Agreement or of any provision hereof
will be effective unless in writing and signed by the party against whom such
waiver or modification is sought to be enforced.
10.4 Assignment. This Agreement shall be binding upon and shall inure
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to the benefit of both parties and their respective successors and 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
10.4, the Company, or any
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permitted assignee or transferee of the Company, may assign or otherwise
transfer all of its rights and/or obligations hereunder (i) to any entity or
entities providing to the Company, the Company's Affiliates, or to any such
permitted assignee of the Company, financing relating to the Business
(collectively, the "Financing Sources"), (ii) to any Affiliate (as defined in
the Contribution Agreement of the Company, provided that (x) such Affiliate
shall agree with OC and its permitted assignees or transferees, if any, in
writing to assume the Company's obligations hereunder and (y) any such
assignment to an Affiliate of the Company shall not relieve the Company from its
obligations hereunder or (iii) to any entity to which the Company, or any
assignee or transferee of the Company, assigns, sells, transfers or otherwise
conveys all or substantially all of the assets constituting the Business,
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 the Company and that such entity shall perform all of the Company's
obligations hereunder. Notwithstanding any nonassignment provisions contained in
this Section 10.4, 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 the
Company 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 OC, assigns, sells,
transfers or otherwise conveys all or substantially all of the assets
constituting its business, provided that such acquiring entity agrees with and
acknowledges in writing to the Company 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
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.
10.5 Governing Law. This Agreement will be governed by and construed
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in accordance with the internal laws of the State of New York, excluding that
body of law related to choice of laws.
10.6 Severability. In the event any provision of this Agreement (or
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portion thereof) is determined by a court of competent jurisdiction to be
invalid, illegal or otherwise unenforceable, then such provision will, to the
extent permitted by the court, not be voided but will instead be construed to
give effect to its intent to the maximum extent permissible under applicable law
and the remainder of this Agreement will remain in full force and effect
according to its terms.
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10.7 Sections and Headings. The headings contained herein are for the
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convenience of reference only and are not intended to define, limit, expand or
describe the scope or intent of any clause or provision of this Agreement.
10.8 Entire Agreement. This Agreement, together with all exhibits
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hereto, constitutes the entire agreement and understanding of the parties
relating to the subject matter hereof and supersedes all prior negotiations and
understandings between the parties, both oral and written, regarding such
subject matter.
10.9 Counterparts. This Agreement may be signed in counterparts and
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all signed copies of this Agreement will together constitute one original of
this Agreement.
10.10 Construction. This Agreement will be fairly interpreted in
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accordance with its terms and without any strict construction in favor of or
against either of the parties.
10.11 Legal Expenses. The prevailing party in any legal action brought
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by one party against the other and arising out of this Agreement will be
entitled, in addition to any other rights and remedies available to it at law or
in equity, to reimbursement for its reasonable costs and expenses (including
court costs and reasonable fees for attorneys and expert witnesses) incurred
with respect to bringing and maintaining any such action.
IN WITNESS WHEREOF, the duly authorized representatives of each of the
parties hereto have executed this Agreement effective as of the day and year
first written above.
OWENS CORNING
By: /s/ Charles E. Dana
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Name:
Title:
ADVANCED GLASSFIBER YARNS LLC
By: /s/ Robert B. Fisher
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Name:
Title:
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