Exhibit (4)
STANDSTILL AGREEMENT
STANDSTILL AGREEMENT dated as of January 30, 2001 (this "Agreement")
between Exterior Systems, Inc., successor in interest to Amerimark Building
Products, Inc. ("Exterior Systems") and Xxxxx-Xxxxxxx Fiberglas Technology Inc.
("OC Technology").
PRELIMINARY STATEMENTS:
(1) Exterior Systems and OC Technology entered into a certain
License Agreement, dated as of April 27, 1999 (the "License Agreement").
(2) On October 5, 2000 (the "Petition Date"), OC Technology,
Exterior Systems and certain of their affiliates (collectively with Exterior
Systems and OC Technology, 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.
(3) Exterior Systems and OC Technology, among others, have
agreed to certain restrictions (the "Restrictions") on cash transfers and other
transactions among the Debtors and other affiliates during the Debtors' chapter
11 cases (the "Cases").
(4) In connection with the Restrictions, Exterior Systems and
OC Technology now wish to agree that during the Standstill Period (defined
below) (i) in lieu of Exterior Systems making cash royalty payments due after
the Petition Date to OC Technology under the License Agreement, such obligations
will accrue as administrative claims under Sections 503(b) and 507(a)(1) of the
Bankruptcy Code and (ii) OC Technology will not exercise any remedies against
Exterior Systems under the License Agreement for such non-payments during the
Standstill Period in consideration of the undertakings 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 period (the "Standstill Period") from the date
hereof until the date of confirmation of a plan or plans of reorganization in
the Cases, (i) Exterior Systems shall not be required to make cash royalty
payments (the "Deferred Payments") due after the Petition Date to OC Technology
at the times specified under the License Agreement and such Deferred Payments
shall accrue as administrative claims under Sections 503(b) and 507(a)(1) of the
Bankruptcy Code and (ii) OC Technology will not exercise any enforcement right
or remedy under the License Agreement against Exterior Systems.
(b) Nothing set forth in this Agreement shall constitute a
waiver of the rights of OC Technology with respect to any claim against Exterior
Systems arising under the License Agreement.
SECTION 2. Bankruptcy Court Approval. Exterior
Systems and OC Technology hereby agree to use reasonable best efforts to obtain
Court approval of this Agreement.
SECTION 3. Termination of Standstill Agreement. Each of OC
Technology and Exterior Systems shall have the right to terminate the Standstill
Period upon (i) the giving of 30 days' notice to the other party; or (ii) upon
the entry of an order dismissing the Case of Exterior Systems or OC Technology
or converting such Case to a case under chapter 7 of the Bankruptcy Code.
SECTION 4. Amendments and Waivers. No amendment or waiver of
any provision of this Agreement, and no consent with respect to any departure by
any party hereto therefrom, shall be effective unless the same is in writing and
signed by each party hereto, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 5. Successors and Assigns. This Agreement
shall inure to the benefit of, and be binding upon, the parties hereto and their
respective successors and assigns.
SECTION 6. 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 Exterior Systems, to:
Exterior Systems, Inc.
Xxxxx Corning World Headquarters
Xxx Xxxxx Xxxxxxx Xxxxxxx
Xxxxxx, Xxxx 00000
Attn: General Counsel
Telecopier: (000) 000-0000
If to OC Technology, to:
Xxxxx-Xxxxxxx Fiberglas Technology, Inc.
Xxxxx Corning World Headquarters
Xxx Xxxxx Xxxxxxx Xxxxxxx
Xxxxxx, Xxxx 00000
Attn: Secretary
Telecopier: (000) 000-0000
SECTION 12. 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 13. Governing Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective, duly authorized officers, as of
the date first above written.
EXTERIOR SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
XXXXX-XXXXXXX FIBERGLAS TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Secretary
