EXHIBIT 10.24
PENSION BENEFITS INDEMNITY AGREEMENT
PENSION BENEFITS INDEMNITY AGREEMENT dated as of March 20, 1997 by and
between GREAT AMERICAN MANAGEMENT AND INVESTMENT, INC., a Delaware corporation
("GAMI"), EAGLE INDUSTRIAL PRODUCTS CORPORATION, a Delaware corporation
("EIPC"), EAGLE INDUSTRIES, INC., a Delaware corporation ("Eagle") (GAMI, EIPC
and Eagle are referred to as the "Indemnifying Parties," and each as an
"Indemnifying Party"), and FALCON BUILDING PRODUCTS, INC., a Delaware
corporation ("Falcon"), XXXX & XXXXXX, INC., a Delaware corporation ("HCI"),
MANSFIELD PLUMBING PRODUCTS INC., a Delaware corporation ("MPP"), and DEVILBISS
AIR POWER, INC., a Delaware corporation ("DAP") (Falcon, HCI, MPP and DAP are
referred to as the "Indemnified Companies," and each as an "Indemnified
Company").
WHEREAS, the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), provides that each trade or business that is under common control
with another trade or business has joint and several liability with respect to
any employee pension benefit plan that is subject to ERISA, including liability
for contributions that are required to be made to the plan and for underfunding
in the event the Plan is terminated; and
WHEREAS, Falcon has agreed, pursuant to the October 27, 1994 agreement
between the Pension Benefit Guaranty Corporation (the "PBGC), Falcon, EIPC,
Eagle, HCI, MPP, DAP and GAMI, to remain jointly and severally liable for
liabilities arising under Section 4062 of ERISA in the event any plan maintained
by GAMI's control group is terminated by the PBGC after Falcon ceases to be a
member of GAMI's control group (the "PBGC Agreement"), a copy of which is
attached hereto;
NOW, THEREFORE, in consideration of the covenants contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. INDEMNIFICATION
1.1. INDEMNITY. Each Indemnifying Party, jointly and severally,
agrees to indemnify each of the Indemnified Companies, and each of their
respective directors, officers, employees, affiliates, subsidiaries and their
subsidiaries and affiliates (collectively, the "Indemnified Company Affiliates")
(the Indemnified Companies and their respective Indemnified Company Affiliates
are referred to herein as the "Indemnified Parties" and each as an "Indemnified
Party") against, and agrees to hold each Indemnified Party harmless from, any
and all debts, claims, obligations, liabilities, losses, costs, damages,
penalties or expenses (including without limitation reasonable attorneys' fees
and expenses and costs of investigation, litigation and settlement)
(collectively, "Losses") suffered by any Indemnified Party directly or
indirectly arising out of, based upon or resulting from the PBGC Agreement or
any claim that any
Indemnified Party is responsible for any liabilities related to any plans
ever maintained by GAMI's control group. However, there shall be no double
recovery hereunder as to a particular Loss by virtue of there being multiple
Indemnified Parties.
1.2. NOTICE OF CLAIMS; ASSUMPTION OF DEFENSE. Each Indemnified Party
shall give prompt notice to GAMI (which will act as representative of the
Indemnifying Parties for purposes of this Agreement), in accordance with the
terms of SECTION 2.2, of the assertion of any claim, or the commencement of any
suit, action or proceeding by any party, in respect of which indemnity may be
sought hereunder, giving GAMI such information with respect thereto as GAMI may
reasonably request (but the giving of such notice shall not be a condition
precedent to indemnification hereunder). The Indemnifying Parties shall, at
their own expense, assume the defense thereof; provided that (i) counsel is
reasonably satisfactory to the Indemnified Party, and (ii) GAMI, on behalf of
itself and the other Indemnifying Parties, shall thereafter consult with the
Indemnified Party upon reasonable request for such consultation from time to
time with respect to such claim, suit, action or proceeding. The Indemnified
Party shall have the right (but not the duty) to participate in the defense
thereof and to employ counsel, at their own expense, separate from the counsel
employed by GAMI.
1.3. SETTLEMENT OR COMPROMISE. GAMI shall not settle or compromise
any claim, suit, action or proceeding without the prior written consent of the
Indemnified Party, which consent shall not be unreasonably withheld.
1.4. FAILURE OF INDEMNIFYING PARTY TO ACT. In the event that any
Indemnifying Party does not elect to assume the defense of any claim, suit,
action or proceeding, then any failure of such Indemnified Party to defend or to
participate in the defense of any such claim, suit, action or proceeding, or to
cause the same to be done, shall not relieve any Indemnifying Party of its
obligations hereunder.
2. MISCELLANEOUS PROVISIONS
2.1. WAIVER AND AMENDMENT. The failure of any party hereto to comply
with any of the obligations or agreements set forth herein or to fulfill any
condition set forth herein may be waived only by written instrument signed by
all of the parties hereto. No failure by any party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver of such right
hereunder by any party hereto or preclude any other future exercise of that
right or any other right hereunder by such party. This Agreement may be amended
or modified only by a written instrument signed by all of the parties hereto.
2.2. NOTICES. All notices, requests or other communications required
or permitted hereunder shall be in writing and shall be deemed given (i) when
received if delivered by hand, (ii) on the date of transmission if sent by
telex, telecopy or other wire transmission (receipt confirmed), (iii) one day
after being sent by reputable overnight courier or (iv) five days after being
deposited in the U.S. mail, registered or certified mail, return receipt
requested,
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postage prepaid, in each case to the party to receive the same at
such party's respective address set forth below, or at such other address as may
from time to time be designated by such party to the other parties hereto in
accordance with this SECTION 2.2:
If to an Indemnifying Party, to:
Great American Management
and Investments, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxxxxxx & Xxxxxxxxxxx
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxxxx, Esq.
Fax: (000) 000-0000
If to Falcon:
Falcon Building Products, Inc.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx X. Xxxxx, Esq.
Fax: (000) 000-0000
With a copy to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
2.3. NO CREATION OF RIGHTS IN THIRD PARTIES. Nothing in this
Agreement, express or implied, is intended or shall be construed to confer upon
or give to any person, firm or corporation other than the parties hereto and
their successors and assigns any remedy or claim under or by reason of this
Agreement or any term, covenant or condition hereof, and all the terms,
covenants and conditions in this Agreement shall be for the sole and exclusive
benefit of the parties hereto and their successors and assigns.
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2.4. CAPTIONS AND PARAGRAPH HEADINGS. Captions and paragraph headings
used herein are for convenience only and are not a part of this Agreement and
shall not be used in construing it.
2.5. ENTIRE AGREEMENT. This Agreement embodies the entire
understanding of the parties hereto with respect to the subject matter hereof,
and there are no other agreement or understandings, written or oral, in effect
between the parties hereto with respect to the subject matter hereof. This
Agreement supersedes and terminates all prior discussions, negotiations,
understandings, arrangements and agreements among the parties hereto relating to
the subject matter hereof.
2.6. COUNTERPARTS. This Agreement may be executed in any number of
duplicate counterparts, each of which shall be deemed an original and all of
which together constitute one and the same instrument.
2.7. ASSIGNABILITY. This Agreement and the provisions hereof shall be
binding upon and inure to the benefit of the respective successors and assigns
of the parties hereto. No party may assign this Agreement without the prior
written consent of the other parties hereto. Any attempted assignment of this
Agreement without such prior written consent shall be void as to the other party
to this Agreement.
2.8. GOVERNING LAW. The validity, construction, operation and effect
of the terms of this Agreement shall be determined and enforced in accordance
with the laws of the State of Illinois without giving effect to principles of
conflicts of law thereunder.
2.9. EFFECTIVE TIME. This Agreement shall become effective at the
Effective Time, as if in effect from the signing of the Agreement and Plan of
Merger between Falcon Building Products, Inc. and FBP Acquisition Corp., Inc.,
dated March 20, 1997.
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IN WITNESS WHEREOF, each of the parties has caused this instrument to be
signed on its behalf by a duly authorized officer as of the 20th day of March,
1997.
GREAT AMERICAN MANAGEMENT AND
INVESTMENT, INC.
By: /s/ XXX XXXXXXXX
----------------------
Name: Xxx Xxxxxxxx
Title: President
FALCON BUILDING PRODUCTS, INC.
By: /s/ XXX X. XXXXX
----------------------
Name: Xxx X. Xxxxx
Title: Senior Vice-President
EAGLE INDUSTRIES, INC.
By: /s/ XXX X. XXXXX
----------------------
Name: Xxx X. Xxxxx
Title: Senior Vice-President
EAGLE INDUSTRIAL PRODUCTS
CORPORATION
By: /s/ XXX X. XXXXX
----------------------
Name: Xxx X. Xxxxx
Title: Senior Vice-President
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MANSFIELD PLUMBING PRODUCTS, INC.
By: /s/ XXX X. XXXXX
----------------------
Name: Xxx X. Xxxxx
Title: Vice-President
DEVILBISS AIR POWER, INC.
By: /s/ XXX X. XXXXX
----------------------
Name: Xxx X. Xxxxx
Title: Vice-President
XXXX & XXXXXX, INC.
By: /s/ XXX X. XXXXX
----------------------
Name: Xxx X. Xxxxx
Title: Vice-President
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