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Exhibit 7(f)
XXXXX CORNING WORLD HEADQUARTERS
ONE XXXXX CORNING PARKWAY
TOLEDO, OHIO 43659
413.248.8000
[XXXXX CORNING LOGO]
March 13, 2000
CBP Holdings, Inc.
c/o CGW Southeast Partners IV, L.P.
Twelve Piedmont Center
Suite 210
Atlanta, GA 30305
Attention: Xxxx X. XxXxxx
President
Gentlemen:
1. Commitment. This letter (the "Letter Agreement") will confirm
the commitment of Xxxxx Corning, a Delaware corporation ("OC"), to provide $30.0
million of senior preferred equity financing (the "Financing") to CBP Holdings,
Inc., a Georgia corporation, (the "Company"), on terms and conditions
substantially as set forth on Exhibit A hereto, and subject to the terms and
conditions set forth herein. The proceeds to the Company from the Financing may
be used as part of the total financing to acquire 100% of the outstanding
capital stock (the "Transaction") of Xxxxxxx Xxxxxx Building Products, Inc., a
Georgia corporation ("Xxxxxxx Xxxxxx"), pursuant to the terms and conditions of
the Agreement and Plan of Merger, dated as of January 17, 2000, by and among the
Company, CBP Acquisition Corp., and certain other parties thereto (the "Merger
Agreement").
2. Conditions. Our commitment to provide the Financing hereunder
is subject to (i) the satisfaction or waiver of all conditions precedent to the
Transaction contained in the Merger Agreement; and (ii) the execution by OC and
Xxxxxxx Xxxxxx of a mutually-acceptable Supply Agreement (collectively, the
"Conditions").
3. Termination. This Financing commitment will be effective upon
the Company's acceptance of the terms and conditions of this Letter Agreement
and will expire, unless otherwise waived by OC in its sole discretion, as of the
earlier to occur of (a) the date that is six (6) months from the date hereof or
(b) the termination of the Merger Agreement pursuant to the terms and conditions
of Section 7.1 thereof.
4. Governing Law. This Letter Agreement shall be governed by and
construed in accordance with the internal laws of the state of New York
(excluding the provisions of such laws regarding conflicts of law).
5. Assignment, Amendment and Waiver. Neither this Letter
Agreement nor any of the rights, interests or obligations hereunder may be
assigned by OC or the Company without the prior written consent of the other.
Any provision of this Letter Agreement may be amended only with the prior
written consent of OC and the Company. Any provision of this Letter Agreement
for the benefit of a party hereto may be waived by such party (either generally
or in particular and either retroactively or prospectively), only by a written
instrument signed by the party waiving compliance.
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6. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and delivered personally, sent by
documented overnight delivery service or, to the extent receipt is confirmed,
telecopy, telefax or other electronic transmission service to the appropriate
address or numbers as set forth below. Notices shall be effective only upon
annual receipt. Notices to the Company shall be addressed to:
CBP Holdings, Inc.
c/o CGW Southeast Partners IV, L.P.
Twelve Piedmont Center, Suite 210
Atlanta, GA 30305
Attn: Xxxx X. XxXxxx
President
Fax: (000) 000-0000
with a copy (which shall not constitute notice to the Company) to:
Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
and
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxx
Fax: (000) 000-0000
and
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxx XxXxxxx
Fax: (000) 000-0000
or at such other address and to the attention of such other person as the
Company may designate by written notice to OC. Notices to OC shall be addressed
to:
Xxxxx Corning
Xxx Xxxxx Xxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
Fax: (000) 000-0000
or at such other address and to the attention of such other person as OC may
designate by written notice to the Company.
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7. Complete Agreement. This Letter Agreement and the other
documents and writings referred to herein or delivered pursuant hereto contain
the entire understanding of the parties with respect to the subject matter
hereof and thereof and supersede all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof
and thereof.
8. No Third Party Beneficiaries. This Letter Agreement is not
intended and shall not be deemed to confer any benefit upon any person or entity
other than the parties hereto.
9. Headings. The headings contained in this Letter Agreement are
for references only and shall not affect in any way the meaning or
interpretation of this Letter Agreement.
10. Confidentiality. Neither the Company nor OC nor any of their
respective representatives or affiliates shall disclose to any third party the
terms or existence of this agreement without the written consent of the other,
except as otherwise required by law.
Very truly yours,
XXXXX CORNING
By: /s/ Xxxxxxxx Xxxxxx
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Xxxxxxxx Xxxxxx
President, BMSB
AGREED AND ACCEPTED:
CBP HOLDINGS, INC.
By: /s/ Xxxx X. XxXxxx
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Xxxx X. XxXxxx
President
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EXHIBIT A
CBP HOLDINGS, INC.
PROPOSED TERMS - SENIOR PREFERRED STOCK
Issuer: CBP Holdings, Inc., a Georgia corporation.
Purchaser Xxxxx Coming, a Delaware corporation.
Principal Amount: $30.0 million.
Dividend Rate: 7.5% cumulative dividends, payable in kind on a
semi-annual basis.
Maturity: 9 years.
Rank: The Senior Preferred Stock will, with respect to
dividend distributions and distributions upon
liquidation, winding-up and dissolution of the
Issuer, rank (i) junior to the subordinated
indebtedness of X.X. Xxxxxxx & Co. and (ii) senior
to all other classes or series of the Issuer's
equity securities.
Security: Unsecured.
Redemptions:
Mandatory: Mandatorily redeemable, at face value, plus
accrued dividends, upon a change of control of the
Issuer.
Optional: Optionally redeemable by the Issuer at any time,
in whole or in part, without premium or penalty,
or face value plus accrued dividends.
Exchange: The Issuer may, at its option and at any time, or
shall upon demand from Purchaser, exchange all or
any portion of the Senior Preferred Stock into
subordinated notes containing the same features of
the Senior Preferred Stock.
Covenants: The Issuer shall be subject to normal and
customary restrictions regarding (i) change of
control, (ii) junior payments, and (iii) affiliate
transactions.
Transfer Restrictions: The Senior Preferred Stock shall be
non-transferable, except for transfers made by the
Purchaser to its affiliates.
Information Rights: The Purchaser shall be entitled to receive
audited annual financial statements of the Issuer
and, to the extent desired, monthly and/or
quarterly unaudited financial statements of the
Issuer.
Supply Agreements: The Issuer shall execute a Supply Agreement with
the Purchaser, substantially in the form attached
hereto as Exhibit B.
Registration Rights: None.
Board Representation: None.
Voting Rights: None, except as otherwise required by law.
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[XXXXX CORNING LOGO]
XXXXX CORNING WORLD HEADQUARTERS
ONE XXXXX CORNING PARKWAY
TOLEDO, OHIO 43659
413.248.8000
March 13, 2000
CBP Holdings, Inc.
c/o CGW Southeast Partners IV, L.P.
Twelve Piedmont Center
Suite 210
Atlanta, GA 30305
Attention: Xxxx X. XxXxxx
President
Gentlemen:
This letter is to clarify our mutual understanding regarding Owens
Corning's commitment to provide Financing as set forth in the letter agreement
between OC and the Company dated March 13, 2000 (the "Commitment Letter").
(Capitalized terms used herein and not defined shall have the meanings set forth
in the Commitment Letter.)
The Company has no obligation to effect the Financing. The intent
of the Commitment Letter is to obligate OC to provide the Financing if, and only
if, the Company decides to increase its offer price for Xxxxxxx Xxxxxx above the
proposed purchase price of Guardian Industries. OC acknowledges that (i) the
Company has not yet determined whether to increase its offer price for Xxxxxxx
Xxxxxx and (ii) if OC does not provide the Financing, then the Supply Agreement
with Xxxxxxx Xxxxxx shall terminate.
Very truly yours,
XXXXX CORNING
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President and General Counsel
Building Materials Systems Business
AGREED AND ACCEPTED:
CBP HOLDINGS, INC.
By: /s/ Xxxx X. XxXxxx
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Xxxx X. XxXxxx
President
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