Exhibit (99)
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STANDSTILL AND WAIVER AGREEMENT
STANDSTILL AND WAIVER AGREEMENT dated as of May [ ], 2001 (this
"Agreement") among (A) Owens Corning and the affiliates of Owens Corning listed
on Exhibit A (collectively, the "Debtors"); IPM, Inc. ("IPM"), Owens Corning
Fiberglas Sweden Inc., and Vytec Corporation (collectively, the "Non-Debtor
Guarantors"); European Owens-Corning Fiberglas S.A. and Owens Corning Canada
Inc. (collectively, the "Non-Debtor Borrowers"); Owens-Corning Capital Holdings
I, Inc. and Owens-Corning Capital Holdings II, Inc. (collectively, the
"Consenting Subsidiaries"); the non-debtor affiliates of Owens Corning listed on
Exhibit B (the "Consolidated IPM Affiliates") (the Non-Debtor Guarantors, the
Non-Debtor Borrowers, the Consenting Subsidiaries and the Consolidated IPM
Affiliates are sometimes referred to collectively herein as the "Covered
Non-Debtors"); various non-debtor affiliates of Owens Corning that are a party
to any of the credit facilities listed on Exhibit C, as it may be amended
hereafter from time to time pursuant to Section 10 below, (each a "Bilateral
Facility" and collectively, the "Bilateral Facilities") and that are not
otherwise Covered Non-Debtors (the "Bilateral Affiliates"); various non-debtor
affiliates of Owens Corning that are not otherwise Covered Non-Debtors or
Bilateral Affiliates and that have funds currently subject to an administrative
freeze listed on Exhibit D (the "Setoff Affiliates") (the Bilateral Affiliates,
the Setoff Affiliates and the Covered Non-Debtors are sometimes referred to
collectively herein as the "Non-Debtors"); and (B) Credit Suisse First Boston,
as Agent and Lender (the "Agent"), and the Bank Lenders listed on Exhibit E,
together with their successors, assigns and any other party participating in any
such Bank Lender's interest pursuant to Section 13.09 of that certain Credit
Agreement dated as of June 26, 1997 (as amended, the "Credit Agreement")
(collectively, the "Lenders"). The term "Credit Agreement" includes any Loan
Document as defined therein, together with all documents executed and delivered
in connection therewith.
PRELIMINARY STATEMENTS:
(1) Owens Corning, certain of the Debtors, the Non-Debtor Borrowers,
certain of the Non-Debtor Guarantors, and the Lenders entered into the Credit
Agreement. The remaining Non-Debtor Guarantor subsequently executed a Guarantor
Supplement (as defined under the Credit Agreement) and thereby became a
Guarantor (as defined under the Credit Agreement) and the Consenting
Subsidiaries subsequently executed Subsidiary Consents (as shown on Schedule
6.01(b)(viii) of the Credit Agreement) and thereby became Consenting
Subsidiaries.
(2) In order to reorganize Owens Corning's European insulation business,
(i) N.V. Owens Corning S.A. ("OCSA") was split in April 2000 to form Owens
Corning Composites S.P.R.L. ("SPRL"), (ii) IPM and Alcopor Holding AG formed
Alcopor Owens Corning Holding AG ("AOCH") in May 2000, and (iii) Owens Corning
(along with certain of its subsidiaries) in May 2000 sold shares of stock to
AOCH in Owens Corning Alcopor Belgium S.A., Owens Corning (UK) Holdings Limited,
Owens-Corning Fiberglas (U.K.) Limited, Owens Corning Alcopor UK Ltd., Owens
Corning Polyfoam UK Ltd., and Owens Corning Alcopor France S.A.S. (collectively,
the "European Insulation Entities" and together with AOCH and their respective
subsidiaries, affiliates, predecessors, successors and assigns, the "Alcopor
Related Entities"). OCSA and certain of the European Insulation Entities had
been Designated Subsidiary Borrowers (as defined in the Credit Agreement).
Notwithstanding the foregoing, the Lenders have asserted a right under the
Credit Agreement, which right has been disputed by Owens Corning, OCSA, SPRL and
the Alcopor Related Entities, to recoup and setoff against funds in accounts of
OCSA, SPRL and the Alcopor Related Entities, and each of their respective
subsidiaries, affiliates, predecessors, successors and assigns.
(3) On October 5, 2000 (the "Petition Date"), the Debtors each filed a
voluntary petition for relief under chapter 11 of title 11 of the United States
Code (the "Bankruptcy Code") in the U.S. Bankruptcy Court for the District of
Delaware (the "Court"). The Debtors continue to operate their businesses and
manage their properties as debtors-in-possession pursuant to Sections 1107 and
1108 of the Bankruptcy Code.
(4) On the Petition Date, the Debtors commenced an adversary proceeding in
the Court against the Lenders captioned "Owens Corning, et al. v. Credit Suisse
First Boston, et al.," Adv. Pro. No. A-00-1575 (the "Adversary Proceeding"). In
connection with the Adversary Proceeding, the Debtors filed a motion seeking a
temporary restraining order and a preliminary injunction in order to prevent the
Lenders from exercising various rights and remedies arising (i) under the Credit
Agreement and the Loan Documents (as defined therein), as against the Covered
Non-Debtors, and (ii) under the Bilateral Facilities, as against the Non-Debtors
that are a party to any Bilateral Facility.
(5) Following discussions between Owens Corning and the Agent, the Court
entered an Order on October 10, 2000 to which the Lenders did not object (as
modified, the "TRO"), enjoining and restraining the Lenders through and
including October 16, 2000 from exercising (i) "any enforcement right or
enforcement remedy" under the Credit Agreement or any Bilateral Facility against
any Non-Debtor; or (ii) "any setoff rights" arising under the Credit Agreement,
any Bilateral Facility or under applicable law, except that Lenders were
permitted to impose an administrative freeze on the accounts of any Non-Debtor.
The TRO further maintained the status quo by, among other things, (A) permitting
Lenders to exercise rights against Non-Debtors under Bilateral Facilities due to
any event of default other than a default arising from the commencement of the
Debtors' chapter 11 cases (the "Cases"), and (B) expressly preserving all rights
and remedies of all parties, including (x) objections to the jurisdiction of the
Court, and (y) matters regarding setoff rights and administrative freeze rights.
(6) The Lenders have not objected to various subsequent modifications of
the TRO and extensions thereof through and including May 22, 2001. The Lenders
and the Debtors also entered into a stipulation, "so ordered" by the Court,
extending the time within which the Lenders must answer, plead or otherwise
respond to the complaint filed in the Adversary Proceeding until a date that is
fourteen days following the date that the Debtors provide written notice to the
Agent that a response is demanded.
(7) In order to avoid the uncertainties, costs and time demands of
litigation, the Lenders and the Debtors now wish to resolve the issues
underlying the Adversary Proceeding, whereby the Lenders will agree not to
exercise certain remedies against the Non-Debtors for a period of time in
consideration of the undertakings of the Debtors and Non-Debtors set forth
below.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
SECTION 1. Agreement to Standstill.
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(a) During the Standstill Period (as defined below), (A) the Lenders will
not exercise any right or remedy for the enforcement, collection or recovery of
any of the Guaranteed Obligations (as defined in the Credit Agreement) from any
of the Covered Non-Debtors other than with respect to valid Setoff Rights (as
defined below) existing as of the Petition Date, and (B) the Lenders party to a
Bilateral Facility will not, as a result of any default thereunder arising
solely from the commencement of the Cases, which default shall be waived during
the Standstill Period (and by execution hereof, each such Lender shall be deemed
to have waived any such default), exercise any enforcement right or remedy
against any Non-Debtor that is party to such agreement other than with respect
to valid Setoff Rights existing as of the Petition Date, provided that no Lender
will be (I) required under any circumstances to make additional loans or
advances under a Bilateral Facility to any Non-Debtor; or (II) prevented from
exercising any other rights or remedies available to it under a Bilateral
Facility. The term "Standstill Period" means the period from the date on which
the conditions set forth in Section 5 below shall have been satisfied until the
earliest to occur of (i) the date of the filing of a plan or plans of
reorganization in the Cases, (ii) a termination due to an Event of Default (as
described in Section 7 below), or (iii) the date which is no earlier than
October 31, 2002 and which is forty-five (45) days after written notice has been
given to Owens Corning and its counsel by the Agent that the Lenders
constituting the Majority Banks (as defined in the Credit Agreement) have
elected to terminate the Standstill Period. Upon termination of the Standstill
Period, all obligations of the Debtors and Non-Debtors under Section 4 and
Section 6 below shall immediately terminate.
(b) By execution hereof by Lenders constituting the Majority Banks and the
Agent, and, if and to the extent applicable, the Belgian Lending Bank, the Swing
Line Bank and any Issuing Bank (as such terms are defined in the Credit
Agreement), and upon satisfaction of the conditions set forth in Section 5
below, the Lenders hereby waive, and this Agreement shall constitute a waiver
of, pursuant to Section 13.05 of the Credit Agreement, all rights and remedies
(whether pursuant to the Credit Agreement, or any applicable law) for the
enforcement, collection or recovery of any of the Guaranteed Obligations (as
defined in the Credit Agreement) from any of the Non-Debtors during the
Standstill Period other than with respect to valid Setoff Rights existing as of
the Petition Date.
(c) By execution hereof by Lenders constituting the Majority Banks, the
Agent, and, if and to the extent applicable, the Belgian Lending Bank, the Swing
Line Bank and any Issuing Bank (as such terms are defined in the Credit
Agreement) and Owens Corning, and upon satisfaction of the conditions set forth
in Section 5 below, this Section 1(c) shall constitute an amendment of the
Credit Agreement pursuant to Section 13.05 of the Credit Agreement, whereby the
Lenders acknowledge and agree that, except as expressly set forth in this
Section 1(c), OCSA, SPRL and the Alcopor Related Entities have no liability
under the Credit Agreement, and, except as expressly set forth in this Section
1(c), the Lenders hereby unconditionally and absolutely release, discharge and
waive all actions, causes of action, claims, damages, rights and remedies
relating to the Credit Agreement, now existing or hereafter arising, against
OCSA, SPRL and the Alcopor Related Entities, and each of their respective
subsidiaries, affiliates, predecessors, successors and assigns. Notwithstanding
the foregoing, to the extent any Lender has asserted a right, whether under the
Credit Agreement or a Bilateral Facility, to setoff or recoup funds in the
accounts of OCSA, SPRL and the Alcopor Related Entities, which are currently
subject to an administrative freeze, such rights shall be preserved until
resolved pursuant to Section 2 below. The foregoing amendment and release of
OCSA, SPRL and the Alcopor Related Entities for liability under the Credit
Agreement shall survive the termination of this Agreement.
(d) Notwithstanding anything to the contrary set forth in this Agreement
(saving and excepting Section 1(c) above), and without limiting the
applicability of the foregoing, no Lender will be (i) affected or in any way
limited in its ability to terminate or close out any swap agreement, repurchase
agreement or similar transaction with any Non-Debtor; (ii) consenting to or
waiving any objection to the jurisdiction of the Court over such Lender or
Non-Debtor with respect to any dispute arising under a Bilateral Facility or an
Excluded Facility (as defined below); (iii) waiving any right to object to or
enforce its rights and remedies in respect of any plan of reorganization; (iv)
waiving any right to object to or enforce its rights and remedies in respect of
any order of the Court (or any other court of competent jurisdiction) which
would seek to affect the rights of the Agent or any Lender against any
Non-Debtor, except as provided in Sections 1(b) and 1(c) above, or (v) waiving
any rights that it may have in the event that any Non-Debtor subsequently
commences a case under the Bankruptcy Code or seeks relief under any comparable
bankruptcy or insolvency proceeding.
(e) The rights of any party with respect to any claim arising under the
Credit Agreement or any Bilateral Facility shall be preserved, except to the
extent expressly modified by this Agreement. No payments pursuant to Sections 3
and 4 below shall in any way be recharacterized as, or reduce the claims of any
Lender against any Debtor or Non-Debtor for, principal or interest under the
Credit Agreement or any Bilateral Facility.
(f) Any other credit facility between any Lender and any Non-Debtor that is
not included on Exhibit C hereto (each an "Excluded Facility") is excluded from
the scope of this Agreement and will not be affected hereby or by the Order (as
defined below).
SECTION 2. Setoff Rights.
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Lenders, Debtors, and Non-Debtors will each provide information reasonably
requested by any other to determine the validity of setoff or recoupment rights
under the Credit Agreement, under any Bilateral Facility or otherwise arising
under applicable law ("Setoff Rights"), and agree to seek in good faith (and,
with respect to the Debtors, in consultation with the official committees
appointed in the Cases under Section 1103 of the Bankruptcy Code (collectively,
the "Committees")) to resolve all disputes regarding Setoff Rights no later than
July 2, 2001 (two weeks before the July omnibus hearing). To the extent the
parties that hold a direct interest in any funds currently subject to an
administrative freeze (with respect to any asserted Setoff Right, the "Setoff
Parties") shall agree that a Setoff Right with respect to such funds is valid,
upon notice to the Agent Lenders will be entitled to exercise such Setoff
Rights. To the extent that the Setoff Parties agree that a Setoff Right is not
valid, upon notice to the Agent, Lenders agree to release funds held with
respect to such asserted Setoff Right to the applicable Debtor or Non-Debtor.
Pending resolution of Setoff Rights, all administrative freezes imposed in
accordance with the TRO or any other order of the Court shall remain in full
force and effect, and all parties' rights with respect thereto shall be
preserved. If the validity of any Setoff Right remains unresolved as of July 2,
2001 (or such later date agreed to by the Setoff Parties), the Setoff Parties
each reserve the right to submit any such dispute to the Court for resolution,
and, in accordance with Section 1(d) above, all rights with respect thereto
shall be preserved. In order to avoid unnecessary expense for the Debtors'
estates, Lenders agree that Debtors' and Non-Debtors' interests regarding Setoff
Rights may be represented by Debtors' counsel, and Lenders waive any rights to
object to such representation solely for such purpose (and solely on the basis
of potential conflicts of interest between Debtors and Non-Debtors; all other
rights being expressly reserved).
SECTION 3. Fees.
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Upon execution of this Agreement by the Agent, Chase Manhattan Bank, the
Majority Banks, and, if and to the extent applicable, the Belgian Lending Bank,
the Swing Line Bank and any Issuing Bank (as such terms are defined in the
Credit Agreement) and the satisfaction of the conditions set forth in Sections
5(a) and (c) below, Owens Corning shall make (i) a payment of $3,000,000 (the
"Standstill Fee") to the Agent for and on behalf of the Lenders executing this
Agreement (each a "Participating Lender" and collectively, the "Participating
Lenders"), and each Participating Lender shall receive (x) a pro rata share of
the Standstill Fee based upon such Participating Lender's outstanding commitment
under the Credit Agreement, and (y) a pro rata share of any portion of the
Standstill Fee remaining after payment is made pursuant to clause (x) above,
based upon such Participating Lender's outstanding commitment under the Credit
Agreement; and (ii) a payment of $200,000 to each of the Agent and Chase
Manhattan Bank, in their respective capacities as co-chairs of the Lenders'
steering committee (the "Lenders' Steering Committee").
SECTION 4. Costs and Expenses.
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Owens Corning will pay on written request (i) all reasonable fees and
expenses of the Agent incurred in connection with its participation in the Cases
or the enforcement of any rights under the Credit Agreement or Loan Documents,
including (x) reasonable attorneys' fees and disbursements, and (y) the fees and
disbursements of a financial advisor, investment banker or accounting firm,
provided that the fees and disbursements to be paid to any such financial
advisor, investment banker or accounting firm shall not exceed $1,250,000 in the
aggregate; (ii) all reasonable fees and expenses of any individual Participating
Lender (other than the Agent) that is one of the current members (or that
replaces a current member) of the Lenders' Steering Committee in connection with
such Participating Lender's participation on such Committee, including
reasonable attorneys' fees and disbursements, provided that the amount to be
paid to any such Lender on account of such attorneys' fees shall not exceed
$15,000 per calendar year; (iii) all reasonable travel and related out-of-pocket
expenses of each Participating Lender in connection with meetings of Lenders and
related matters under the Credit Agreement; and (iv) all reasonable fees and
expenses incurred to date of any individual Participating Lender that is party
to a Bilateral Facility (but solely to the extent so provided in such Bilateral
Facility), including reasonable attorneys' fees and disbursements, in connection
with the TRO and the enforcement of rights under such Bilateral Facility.
SECTION 5. Conditions of Effectiveness.
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This Agreement shall become effective only when, on or prior to June 30,
2001, unless extended by mutual agreement between Owens Corning, on behalf of
the Debtors and Non-Debtors, and the Agent, on behalf of the Lenders, (a) the
Agent notifies Owens Corning and its counsel that the Agent has given due notice
of this Agreement to the Lenders in a manner consistent with Section 13.01 of
the Credit Agreement, (b) executed by the Agent, Chase Manhattan Bank, the
Majority Banks, and, if and to the extent applicable, the Belgian Lending Bank,
the Swing Line Bank and any Issuing Bank (as such terms are defined in the
Credit Agreement), the Debtors and the Covered Non-Debtors, (c) an order
acceptable in form and substance to the Agent shall have been entered by the
Court (i) terminating the TRO with respect to the Participating Lenders and
dismissing the Adversary Proceeding, without prejudice, with respect to the
Participating Lenders' rights and remedies under (x) the Credit Agreement and
Loan Documents, and (y) the Bilateral Facilities; (ii) approving this Agreement
and the payments contemplated hereunder; and (iii) lifting the automatic stay
solely to permit the exercise of Setoff Rights pursuant to Section 2 above by
the Lenders with respect to the Debtors (the "Order"), and the Order shall be in
full force and effect and shall not have been stayed, reversed, rescinded,
modified, vacated or amended in any respect, (d) an order, in form and substance
reasonably acceptable to the Agent, shall have been entered by the Court
authorizing, among other things, the maintenance of certain existing bank
accounts, the use of a modified cash management system, and, subject to certain
conditions, the transfer of funds between Debtors and Non-Debtors (as amended,
the "Cash Management Order") and (e) the payments described in Section 3 above,
and all fees and expenses (including fees and disbursements of counsel) of the
type described in Section 4 above incurred by the Agent or any Participating
Lender from the commencement of the Cases, shall have been paid. Debtors hereby
agree to use reasonable best efforts to obtain approval of the Order. All
motions and other documents filed with and submitted to the Court in connection
with the Order shall in form and substance be reasonably acceptable to the
Agent.
SECTION 6. Affirmative and Negative Covenants.
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All affirmative and negative covenants set forth in Article 7 of that
certain Post-Petition Credit Agreement dated as of December 8, 2000 among Owens
Corning and the subsidiaries of Owens Corning named therein, as borrowers, Bank
of America, N.A., as agent ("BofA"), and the lenders named therein (the "DIP
Loan Agreement") are hereby incorporated by reference as if fully set forth
herein, mutatis mutandis; except that the term "Other Subsidiary" (as defined in
the DIP Loan Agreement) shall for purposes of this Agreement apply solely to
Covered Non-Debtors. Except as expressly set forth in Section 6(l) below any
amendment to any provision of Article 7 of the DIP Loan Agreement shall be
deemed to be an amendment to this Agreement, and any waiver by BofA with respect
to any provision of Article 7 of the DIP Loan Agreement will be deemed to effect
a waiver with respect to this Agreement. In the event that the DIP Loan
Agreement is terminated in accordance with Section 3.2 thereof and Owens Corning
from time to time becomes subject to any substitute or successor
debtor-in-possession credit agreement (the "Successor Loan Agreement"), the
affirmative and negative covenants set forth in such Successor Loan Agreement
shall be substituted for the covenants set forth in the DIP Loan Agreement and
are hereby incorporated by reference as if fully set forth herein, mutatis
mutandis. Except as expressly set forth in Section 6(l) below any amendment to
the covenants of such Successor Loan Agreement shall be deemed an amendment to
this Agreement, and any waiver granted by the lenders under such Successor Loan
Agreement will be deemed to effect a waiver with respect to this Agreement. If,
at any time, neither the DIP Loan Agreement nor any Successor Loan Agreement is
in effect, the provisions of Article 7 of the DIP Loan Agreement will survive
for purposes of this Agreement; in such event, the parties agree to negotiate in
good faith amendments or modifications proposed by any of them to the provisions
of Article 7 of the DIP Loan Agreement, including applicable schedules, tests
and other allowances. Such negotiation shall be between Owens Corning, on behalf
of the Debtors and Covered Non-Debtors, and the Agent, on behalf of the Lenders.
In addition, for so long as this Agreement is in effect:
(a) Owens Corning and each Covered Non-Debtor shall deliver to the Agent
all pleadings, motions and other documents filed with a court in connection with
any action (i) to enforce any right or remedy against any Covered Non-Debtor
under any Bilateral Facility or Excluded Facility, or (ii) which could
reasonably be expected to have a material adverse effect on the operations,
business, properties, conditions (financial or otherwise) of such Covered
Non-Debtor or on the rights and remedies of the Lenders against any Non-Debtor
Guarantor (a "Material Adverse Effect").
(b) Debtors shall not make any application to the Court seeking any
amendment to, or waiver of, Paragraph 12 of the Cash Management Order without
the prior approval of the Agent, which approval shall not be unreasonably
withheld.
(c) Owens Corning shall give the Agent (i) notice of any failure by any
Covered Non-Debtor to make any payment when due (or to otherwise timely perform)
under any Bilateral Facility, (ii) copies of any notice provided under Section
5.3 of the DIP Loan Agreement or any comparable provision(s) of any Successor
Loan Agreement, and (iii) copies of any information provided to the Official
Committee of Unsecured Creditors appointed in the Cases.
(d) Owens Corning shall provide the Agent with (i) copies of all financial
information furnished under Section 5.2 of the DIP Loan Agreement or any
comparable provision(s) of any Successor Loan Agreement, and (ii) copies of the
annual and quarterly unaudited financial statements for IPM and its direct and
indirect subsidiaries on a consolidated and consolidating basis, on the same
basis as those furnished under Sections 5.2(a) and 5.2(c) of the DIP Loan
Agreement or any comparable provision(s) of any Successor Loan Agreement,
together with such other financial information with respect to the Covered
Non-Debtors as may be reasonably requested by the Agent.
(e) No Covered Non-Debtor shall create, incur, assume or permit to exist
any Lien (as defined under the DIP Loan Agreement) on any property now owned or
hereafter acquired by any of them, except for (i) Liens that would constitute a
Permitted Lien if incurred, created or assumed by a Borrower under the DIP Loan
Agreement or any comparable provision(s) of any Successor Loan Agreement, (ii)
Liens, if any, in effect as of the date of this Agreement, (iii) Liens securing
Capital Leases and purchase money Debt (as each term in defined under the DIP
Loan Agreement) as permitted under Section 7.12(c) of the DIP Loan Agreement or
any comparable provision(s) of any Successor Loan Agreement, and (iv) Liens
granted upon the written consent of the Agent (such consent not to be
unreasonably withheld).
(f) No Covered Non-Debtor shall declare or pay any Distributions (as
defined in the DIP Loan Agreement), except (i) Distributions to any other
Covered Non-Debtor and (ii) the acquisitions of shares of the Covered
Non-Debtors' stock pursuant to any compensation or benefit plan. Notwithstanding
the foregoing, nothing set forth in this Section 6(f) shall be deemed to affect
any transfers between Debtors and Non-Debtors made in accordance with the Cash
Management Order.
(g) Debtors' and Covered Non-Debtors' senior management and professionals
agree to be available to meet or speak with the Agent or the Lenders' Steering
Committee upon reasonable notice.
(h) No Covered Non-Debtor shall voluntarily prepay any Debt (as defined
under the DIP Loan Agreement) except as would be permitted if such Covered
Non-Debtor were a Borrower in accordance with Section 7.13 of the DIP Loan
Agreement (or any comparable provisions of any Successor Loan Agreement). Solely
for purposes of this Section 6(h), each Covered Non-Debtor shall be considered a
Borrower (as defined under the DIP Loan Agreement) under the DIP Loan Agreement.
(i) No Covered Non-Debtor shall make any capital expenditures except as
permitted under the Cash Management Order.
(j) (1) The Covered Non-Debtors shall not merge, consolidate, sell or take
any other corporate action which may otherwise be permitted under Sections
7.8(iii), (iv), (viii), and (x) of the DIP Loan Agreement, as applied herein, or
any comparable provision(s) of any Successor Loan Agreement, without the prior
approval of the Agent, which approval shall not be unreasonably withheld.
Notwithstanding the foregoing, the Covered Non-Debtors may take (i) any such
action approved by the Agent, (ii) any action permitted under Sections 7.8(i),
(ii), (v), (vi), and (vii) of the DIP Loan Agreement, as applied herein, or any
comparable provision(s) of any Successor Loan Agreement, and (iii) any action
permitted under Section 7.8(ix) of the DIP Loan Agreement, as applied herein, or
any comparable provision(s) of any Successor Loan Agreement, provided that in
the case of any action referred to in (iii) above, such action is in the
ordinary course of business and is not inconsistent with past business practices
(each a "Permitted Action"). Nothing in this Section 6(j) shall affect the right
of any Lender to object to any Permitted Action in the Cases. Following payment
of all obligations, the net proceeds from any sale, transfer or other
disposition of assets permitted hereunder may not be used except in accordance
with Paragraph 12 of the Cash Management Order. Lenders, consistent with the
provisions of this Section 6(j), shall execute and deliver to Owens Corning such
documents and agreements or take such action, including, without limitation, a
release of any obligations under this Agreement, as may be reasonably required
to carry out the Permitted Action.
(2) Notwithstanding anything to the contrary set forth in this Agreement,
with respect to any action outside of the ordinary course of business proposed
to be taken by the Covered Non-Debtors, the Debtors shall seek Court approval
for such non-ordinary course action to the extent that Court approval would be
required before such action could be taken if and to the extent the Non-Debtor
Guarantors were operating under chapter 11 of the Bankruptcy Code, unless such
action is approved by the Agent, which approval shall not be unreasonably
withheld.
(k) Debtors and Non-Debtor Guarantors undertake to conduct business
operations with respect to the Covered Non-Debtors in a manner consistent with
their respective fiduciary duties. Owens Corning, on behalf of the Debtors and
Covered Non-Debtors, will provide notice to the Agent of any material change in
pricing, production, royalties or customers from past ordinary course business
practices, or of any other material change in the business operations of the
Covered Non-Debtors of such a type or nature that would reasonably be expected
to require disclosure under applicable securities laws if IPM were a publicly
held company.
(1) No amendment to, or waiver of, (i) any provision of Article 7 of the
DIP Loan Agreement, (ii) the definition of the terms "Debt", "Lien", "Permitted
Lien" or "Distribution" under the DIP Loan Agreement, or (iii) any comparable
provision of any Successor Loan Agreement, shall be effective with respect to
any Covered Non-Debtor for purposes of this Agreement unless approved by the
Agent, which approval shall not be unreasonably withheld.
SECTION 7. Events of Default.
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The Agent shall, upon the request of the Lenders constituting the Majority
Banks (as defined in the Credit Agreement), terminate the Standstill Period (A)
after giving twenty (20) days' prior written notice to Owens Corning and its
counsel upon the occurrence of (i) an attempt to enforce or take legal action
(including obtaining a judgment) against any Covered Non-Debtor which action is
not stayed and could reasonably be expected to have a Material Adverse Effect
with respect to IPM singularly, or against the Non-Debtor Guarantors
collectively; (ii) an Event of Default under the DIP Loan Agreement or any
Successor Loan Agreement which has not been cured, waived or otherwise remedied;
(iii) failure of any Covered Non-Debtor to make any payment when due under any
Bilateral Facility or Excluded Facility which has not been cured, waived or
otherwise remedied and could reasonably be expected to have a Material Adverse
Effect with respect to IPM singularly, or against the Non-Debtor Guarantors
collectively; (iv) a breach of any contract or agreement to which any Covered
Non-Debtor is a party involving aggregate consideration payable to or by such
Covered Non-Debtor of $5,000,000 or more in any calendar year which has not been
cured, waived or otherwise remedied and could reasonably be expected to have a
Material Adverse Effect with respect to IPM singularly, or against the
Non-Debtor Guarantors collectively; (v) noncompliance with any covenant set
forth in Section 6 above which has not been cured, waived or otherwise remedied;
or (vi) noncompliance with any provision of the Cash Management Order in the
form as approved by the Agent in accordance with Section 5(d) above
(notwithstanding that such noncompliance may be effected with the approval of
the Court) which has not been cured, waived or otherwise remedied and could
reasonably be expected to have a Material Adverse Effect with respect to IPM
singularly, or against the Non-Debtor Guarantors collectively; or (B) upon the
occurrence of (i) the dismissal of any Case or the conversion of any Case to a
case under chapter 7 of the Bankruptcy Code; or (ii) the entry of an order of
the Court appointing a responsible officer or examiner with enlarged powers
relating to the operation of the business of Owens Corning.
SECTION 8. Limited Consent to Jurisdiction.
-------------------------------
The Lenders and the Non-Debtors, consent to and waive any objection to the
jurisdiction of the Court for the limited purpose of resolving disputes arising
under this Agreement, provided that nothing set forth herein shall prejudice the
ability of any Debtor or Non-Debtor to argue that the Court has jurisdiction to
resolve any disputes regarding the validity of Setoff Rights.
SECTION 9. Acknowledgment of Confidentiality.
---------------------------------
Each Lender hereby acknowledges, and agrees to remain bound by, the
confidentiality provisions set forth in Section 13.04 of the Credit Agreement,
provided that no disclosure shall be made pursuant to Section 13.04(e) unless
three (3) business days prior written notice shall have been given to Owens
Corning and its counsel.
SECTION 10. Amendments and Waivers.
----------------------
No amendment or waiver of any provision of this Agreement, other than the
Bilateral Facilities listed on Exhibit C, which may be amended pursuant to an
agreement among Owens Corning and the Lenders and Non-Debtors who are parties to
such Bilateral Facilities, and no consent with respect to any departure by any
Debtor or Non-Debtor therefrom, shall be effective unless the same is in writing
and signed by Lenders constituting the Majority Banks (as defined in the Credit
Agreement), and each Debtor and Non-Debtor whose interest will be effected by
such amendment, waiver or consent, and then any such amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
SECTION 11. Authority.
---------
Each individual executing this Agreement on behalf of any Lender, Debtor or
Non-Debtor, respectively, warrants and represents that he or she is fully
authorized to execute this Agreement in the capacities listed herein and has
been duly authorized by such Lender, Debtor or Non-Debtor, respectively, to
execute this Agreement. Additionally, the Agent warrants and represents that the
Agent, the Majority Banks, and, if and to the extent applicable, the Belgian
Lending Bank, the Swing Line Bank and any Issuing Bank (as such terms are
defined in the Credit Agreement) have executed this Agreement.
SECTION 12. Successors and Assigns.
----------------------
This Agreement shall inure to the benefit of, and be binding upon, the
parties hereto and their respective successors, assigns and any other party
participating in any Lender's interest pursuant to Section 13.09 of the Credit
Agreement.
SECTION 13. Notices.
-------
All notices, demands, requests, instructions or other communications to be
given under this Agreement by any party to this Agreement to any other party to
this Agreement shall be in writing and shall be duly given (i) upon receipt if
personally delivered, (ii) when sent if confirmed by telecopier, or (iii) upon
receipt following deposit with an overnight courier to the respective addresses
set forth below:
If to any Debtor or Non-Debtor, to:
Owens Corning
Owens Corning World Headquarters
One Owens Corning Parkway
Toledo, Ohio 43659
Attn: Steven J. Strobel
Telecopier No.: (419) 325-3730
with copies to:
Charles O. Monk, II, Esq.
Saul Ewing LLP
100 South Charles Street
Baltimore, MD 21201
Telecopier No.: (410) 332-8862
If to the Agent, to:
Credit Suisse First Boston
Eleven Madison Avenue
New York, NY 10010
Attn: Jan Kofol
Telecopier No.: (212) 325-0304
with copies to:
Mark Shapiro, Esq.
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022
Telecopier No.: (212) 848-7179
If to any Lender, to the address set forth for such Lender on
the signature pages hereto, with a copy to the Agent and
counsel for the Agent.
SECTION 14. Execution in Counterparts.
-------------------------
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute but one and the same agreement. Delivery of an executed counterpart
of a signature page to this Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 15. Governing Law.
-------------
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
Owens Corning, a Debtor
By:_________________________
Name:
Title: Authorized Signatory
CDC Corporation, a Debtor
By:_________________________
Name:
Title: Authorized Signatory
Engineered Yarns America, Inc., a Debtor
By:_________________________
Name:
Title: Authorized Signatory
Falcon Foam Corporation, a Debtor
By:_________________________
Name:
Title: Authorized Signatory
Integrex, a Debtor
By:_________________________
Name:
Title: Authorized Signatory
Fibreboard Corporation, a Debtor
By:_________________________
Name:
Title: Authorized Signatory
Exterior Systems, Inc., a Debtor
By:_________________________
Name:
Title: Authorized Signatory
INTEGREX Ventures LLC, a Debtor
By:_________________________
Name:
Title: Authorized Signatory
INTEGREX Professional Services LLC, a Debtor
By:_________________________
Name:
Title: Authorized Signatory
INTEGREX Supply Chain Solutions LLC, a Debtor
By:_________________________
Name:
Title: Authorized Signatory
INTEGREX Testing Systems LLC, a Debtor
By:_________________________
Name:
Title: Authorized Signatory
HOMExperts LLC, a Debtor
By:_________________________
Name:
Title: Authorized Signatory
Jefferson Holdings, Inc., a Debtor
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning Fiberglas Technology Inc.,
a Debtor
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning HT, Inc., a Debtor
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning Overseas Holdings Inc., a Debtor
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning Remodeling Systems, LLC,
a Debtor
By:_________________________
Name:
Title: Authorized Signatory
Soltech, Inc., a Debtor
By:_________________________
Name:
Title: Authorized Signatory
IPM, Inc., a Non-Debtor Guarantor
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning Fiberglas Sweden, Inc.,
a Non-Debtor Guarantor
By:_________________________
Name:
Title: Authorized Signatory
Vytec Corporation, a Non-Debtor Guarantor
By:_________________________
Name:
Title: Authorized Signatory
European Owens-Corning Fiberglas S.A.,
a Non-Debtor Borrower
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning Canada Inc.,
a Non-Debtor Borrower and
a Bilateral Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning Capital Holdings I, Inc.,
a Consenting Subsidiary
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning Capital Holdings II, Inc.,
a Consenting Subsidiary
By:_________________________
Name:
Title: Authorized Signatory
LMP Impianti Srl, a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
OC (Belgium) Holdings, Inc.,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
OC Celfortec Inc., a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
O.C. Funding B.V.,
a Consolidated IPM Affiliate and
a Bilateral Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning Argentina Sociedad de Responsabilidad
Limitada, a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning Composites Italia S.r.l.,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning Fiberglas Deutschland GmbH,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning Fiberglas A.S. Limitada,
a Consolidated IPM Affiliate and
a Bilateral Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning Fiberglas S.A.,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning Cayman Limited,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning South Africa (Pty) Ltd.,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning (Japan) Ltd.,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning VF Holdings, Inc.,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning NRO Inc.,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning Korea,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning (Singapore) Pte Ltd.,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning Espana SA,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning Building Materials Espana, S.A.,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning Fiberglas Espana, S.A.,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning Australia Pty. Limited,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning Fiberglas France S.A.,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning Veil Netherlands B.V.,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning Fiberglas Norway A/S,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning FSC, Inc.,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning Holdings Limited,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning NRO II Inc.,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
EPS Holding AS, a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Engineered Pipe Systems, Inc.,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Flowtite (Botswana) (Proprietary) Limited,
a Bilateral Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Flowtite Eksport AS,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Flowtite Offshore Services Ltd.,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
NORSKE EPS BOT AS,
a Consolidated IPM Affiliate and
a Bilateral Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning Composites S.P.R.L.,
a Consolidated IPM Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Alcopor Owens Corning (Jersey) Holding Ltd.,
a Setoff Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning (UK) Holdings Limited,
a Setoff Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning Fiberglas UK Limited,
a Setoff Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning Alcopor UK Ltd.,
a Setoff Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning Polyfoam UK Limited,
a Setoff Affiliate
By:_________________________
Name:
Title: Authorized Signatory
N.V. Owens Corning S.A.,
a Setoff Affiliate
By:_________________________
Name:
Title: Authorized Signatory
(of successor in interest)
Owens Corning (India) Limited, a Bilateral Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens Corning Yapi Merkezi Boru Sanayi VeTicaret A.S.,
a Bilateral Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning (China) Investment Co., Ltd.,
a Bilateral Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning (Shanghai) Fiberglas Co. Ltd,
a Bilateral Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning (Guangzhou) Fiberglas Co. Ltd,
a Bilateral Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning (Nanjing) Foamular Board Co., Ltd.,
a Bilateral Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning (Anshan) Fiberglas Co. Ltd.,
a Bilateral Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning Britinvest Limited,
a Setoff Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning Fiberglas (G.B.) Ltd.,
a Setoff Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Owens-Corning Veil U.K. Ltd., a Setoff Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Scanglas Ltd., a Setoff Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Wrexham A.R. Glass Ltd., a Setoff Affiliate
By:_________________________
Name:
Title: Authorized Signatory
Credit Suisse First Boston
By:_________________________
Name:
Title: Authorized Signatory
The Chase Manhattan Bank N.A.
By:_________________________
Name:
Title: Authorized Signatory
Arab Bank PLC
By:_________________________
Name:
Title: Authorized Signatory
Bank of America
By:_________________________
Name:
Title: Authorized Signatory
The Bank of New York
By:_________________________
Name:
Title: Authorized Signatory
Bank One, N.A.
By:_________________________
Name:
Title: Authorized Signatory
The Bank of Tokyo-Mitsubishi, Ltd.
By:_________________________
Name:
Title: Authorized Signatory
Banque Nationale (BNP Paribas)
By:_________________________
Name:
Title: Authorized Signatory
Barclays PLC
By:_________________________
Name:
Title: Authorized Signatory
Bear, Sterns & Co. Inc.
By:_________________________
Name:
Title: Authorized Signatory
California Bank & Trust
By:_________________________
Name:
Title: Authorized Signatory
Chase Securities
By:_________________________
Name:
Title: Authorized Signatory
Citibank, N.A.
By:_________________________
Name:
Title: Authorized Signatory
Credit Agricole Indosuez
By:_________________________
Name:
Title: Authorized Signatory
Credit Industriel et Commercial
By:_________________________
Name:
Title: Authorized Signatory
Credit Lyonnais
By:_________________________
Name:
Title: Authorized Signatory
Dai-Ichi Kangyo Bank, Limited
By:_________________________
Name:
Title: Authorized Signatory
Dexia Bank
By:_________________________
Name:
Title: Authorized Signatory
Firstar Bank, N.A.
By:_________________________
Name:
Title: Authorized Signatory
Fleet National Bank
By:_________________________
Name:
Title: Authorized Signatory
Fortis (USA) Finance LLC
By:_________________________
Name:
Title: Authorized Signatory
The Fuji Bank Limited
By:_________________________
Name:
Title: Authorized Signatory
GE Capital Commercial Finance
By:_________________________
Name:
Title: Authorized Signatory
Goldman Sachs Credit Partners L.P.
By:_________________________
Name:
Title: Authorized Signatory
KBC Bank, N.V.
By:_________________________
Name:
Title: Authorized Signatory
Kensington International Limited, Elliott
International Capital Advisors, Inc.
as Attorney-in-Fact
By:_________________________
Name:
Title: Authorized Signatory
Keybank National Association
By:_________________________
Name:
Title: Authorized Signatory
Kingstreet Capital Management L.L.C.
By:_________________________
Name:
Title: Authorized Signatory
Lehman Commercial Paper Inc.
By:_________________________
Name:
Title: Authorized Signatory
Mellon Bank N.A.
By:_________________________
Name:
Title: Authorized Signatory
Merril Lynch, Pierce, Fenner & Smith Inc.
By:_________________________
Name:
Title: Authorized Signatory
The Mitsubishi Trust and Banking Corporation
By:_________________________
Name:
Title: Authorized Signatory
Morgan Guaranty Trust Company of New York
By:_________________________
Name:
Title: Authorized Signatory
Natexis Banque
By:_________________________
Name:
Title: Authorized Signatory
The Northern Trust Company
By:_________________________
Name:
Title: Authorized Signatory
Oaktree Capital Management, LLC
By:_________________________
Name:
Title: Authorized Signatory
Perry Principals
By:_________________________
Name:
Title: Authorized Signatory
PNC Bank, National Association
By:_________________________
Name:
Title: Authorized Signatory
Redwood Master Fund Ltd.
By:_________________________
Name:
Title: Authorized Signatory
Royal Bank of Canada
By:_________________________
Name:
Title: Authorized Signatory
Salomon Brothers Holding Company Inc.
By:_________________________
Name:
Title: Authorized Signatory
San Paolo Imi S.p.A.
By:_________________________
Name:
Title: Authorized Signatory
The Sanwa Bank, Limited
By:_________________________
Name:
Title: Authorized Signatory
Silver Oaks & Co. L.P.
By:_________________________
Name:
Title: Authorized Signatory
Societe Generale
By:_________________________
Name:
Title: Authorized Signatory
Springfield Associates, LLC, Elliott
Associates, L.P., as Managing Partner
By:_________________________
Name:
Title: Authorized Signatory
Standard Chartered Bank
By:_________________________
Name:
Title: Authorized Signatory
STB Delaware Funding Trust I
By:_________________________
Name:
Title: Authorized Signatory
Suntrust Bank
By:_________________________
Name:
Title: Authorized Signatory
Toronto Dominion (Texas), Inc.
By:_________________________
Name:
Title: Authorized Signatory
Wachovia Bank, N.A.
By:_________________________
Name:
Title: Authorized Signatory
Wells Fargo, National Association.
By:_________________________
Name:
Title: Authorized Signatory