EXHIBIT 10.11
CORPORATE SERVICES AGREEMENT
between
FALCON BUILDING PRODUCTS, INC.
and
EAGLE INDUSTRIES, INC.
dated
June 16, 1997
TABLE OF CONTENTS
Page
----
1. Services to be Rendered. . . . . . . . . . . . . . . . . . . . . . . . . .1
2. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
3. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
4. Prevention of Performance. . . . . . . . . . . . . . . . . . . . . . . . .2
5. Independent Contractor; Indemnification. . . . . . . . . . . . . . . . . .2
6. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
7. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
8. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
9. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
10. Governing Law; Severability. . . . . . . . . . . . . . . . . . . . . . . .5
11. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
12. Effectiveness, Termination of Prior Agreement. . . . . . . . . . . . . . .6
EXHIBIT A Affiliates
EXHIBIT B Services to be Provided by Eagle Industries, Inc.
EXHIBIT C Schedule of Compensation
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CORPORATE SERVICES AGREEMENT
THIS CORPORATE SERVICES AGREEMENT (this "Agreement") is made as of this
16th day of June, 1997, by and between Falcon Building Products, Inc., a
Delaware corporation, with its principal offices at Xxx Xxxxx Xxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000 (the "Company"), and Eagle Industries, Inc., a Delaware
corporation, with its principal offices at Two Xxxxx Xxxxxxxxx Xxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000 ("Eagle").
W I T N E S S E T H:
WHEREAS, pursuant to a Corporate Services Agreement dated June 22, 1994,
(the "Prior Agreement") Eagle and its affiliated entities, including, without
limitation, those listed on Exhibit A hereto ("Affiliates"), have been providing
services to the Company, and whereas Eagle and the Company wish to terminate the
Prior Agreement and replace it with this Agreement; and
WHEREAS, the Company wishes to continue to purchase and acquire from Eagle
certain services designed to assist the Company in the cost-efficient management
of the Company's corporate and business affairs, in the manner and pursuant to
terms and conditions as more specifically described herein; and
WHEREAS, Eagle desires to provide or cause to be provided those services
requested by the Company under such terms, conditions and arrangements.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. SERVICES TO BE RENDERED
(a) Eagle and the Affiliates shall render to the Company, upon
request of the Company, those services listed on Exhibit B attached hereto and
made a part hereof at the rates or predetermined fees set forth on Exhibit C
attached hereto and made a part hereof. Such rates or fees are intended to allow
Eagle only to recover its costs and expenses without realizing any profit.
(b) From time to time, the Company may desire additional services not
specifically addressed in Exhibit B. For such additional services, if
requested, Eagle will be compensated
in amounts otherwise agreed to by the parties and subject to the terms of this
Agreement.
2. TERM
The term of this Agreement shall commence on the date hereof and shall
terminate December 31, 1997 provided, however that either party may terminate
this Agreement at any time by giving the other party at least thirty (30) days'
prior written notice.
3. COMPENSATION
For the services rendered by Eagle and the Affiliates to the Company
pursuant to this Agreement, the Company shall pay to Eagle the amounts specified
on Exhibit C in equal monthly installments as invoiced to the Company. The
rates provided for in Exhibit C may be amended only by the mutual consent of
Eagle and the Affiliates and the Company.
4. PREVENTION OF PERFORMANCE
Neither Eagle nor any affiliate shall be determined to be in violation of
this Agreement if it is prevented from performing any of its obligations
hereunder for any reason beyond its reasonable control, including without
limitation, acts of God, nature, or of public enemy, strikes, or limitations of
law, regulations or rules of the Federal or of any state or local government or
of any agency thereof.
5. INDEPENDENT CONTRACTOR; INDEMNIFICATION
(a) It is expressly agreed by the parties hereto that each is at all
times acting and performing hereunder as an independent contractor and not as
agent for the other, and that no act of commission or omission of either party
hereto shall be construed to make or render the other party its principal,
agent, joint venturer or associate, except to the extent specified herein.
(b) The Company shall indemnify, defend and hold Eagle and the
Affiliates, and their respective directors, officers, and employees, harmless
from and against all damages, losses and out-of-pocket expenses (including fees)
incurred by them in the course of performing the duties prescribed hereby,
except for matters covered by Paragraph 5(c) below.
(c) Eagle shall indemnify, defend and hold the Company, its
directors, officers and employees harmless from and against all damages, losses
and out-of-pocket expenses, including
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fees, caused by or arising out of any willfull misconduct or gross negligence in
the performance of any obligation or agreement of Eagle or the Affiliates
contained in this Agreement.
(d) Except as otherwise provided in Paragraph 5(c), Eagle does not
assume any responsibility under this Agreement other than to render the services
called for under this Agreement in good faith. The Company's sole remedy on
account of the failure of Eagle or the Affiliates to render the services as and
when required hereunder shall be to procure services elsewhere and to charge
Eagle the difference between the reasonable increased cost, if any, to procure
new services, and the current cost to the Company to procure services under this
Agreement for the remaining term of the Agreement.
6. NOTICES
(a) Each notice, demand, request, consent, report, approval or
communication ("Notice") which is or may be required to be given by either party
to the other party in connection with this Agreement and the transactions
contemplated hereby, shall be in writing, and given by telex, telegram,
telecopy, personal delivery, receipted delivery service, or by certified mail,
return receipt requested, prepaid and properly addressed to the party to be
served.
Such Notices, if to Eagle, addressed as follows:
Eagle Industries, Inc.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: 312/000-0000
Facsimile: 312/906-8402
Attention: Xxxxxxx XxXxxxx
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with a copy to :
Xxxxxx X. Xxxxxxxxxxx
Xxxxxxxxx & Xxxxxxxxxxx
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: 312/000-0000
Such Notices, if to the Company, addressed as follows:
Falcon Building Products, Inc.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: 312/000-0000
Facsimile: 312/906-8402
Attention: Xxx X. Xxxxxxx
(b) Notices shall be effective on the date sent via telex, telegram
or telecopy, the date delivered personally or by receipted delivery service, or
three (3) days after the date mailed, to the address indicated in the preamble
to this Agreement.
(c) Each party may designate by Notice to the others in writing,
given in the foregoing manner, a new address to which any Notice may thereafter
be so given, served or sent.
7. ENTIRE AGREEMENT
Upon its effectiveness as provided for in Paragraph 12 hereof, this
Agreement, together with the Exhibits hereto, will constitute and set forth the
entire agreement and understanding of the parties pertaining to the subject
matter hereof, and no prior or contemporaneous written or oral agreements
(including the Prior Agreement), understandings, undertakings, negotiations,
promises, discussions, warranties or covenants not specifically referred to or
contained herein or attached hereto shall be valid and enforceable. No
supplement, modification, termination in whole or in part, or waiver of this
Agreement shall be binding unless executed in writing by the party to be bound
thereby. No waiver of any of the provisions of this Agreement shall be deemed,
or shall constitute, a waiver of any other provision hereof (whether or not
similar), nor shall any such waiver constitute a continuing waiver unless
otherwise expressly provided therein.
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8. BINDING EFFECT
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto, each of their respective successors and permitted assigns, but
may not be assigned by either party without the prior written consent of the
other party, and no other persons (other than the Affiliates) shall have or
derive any right, benefit or obligation hereunder.
9. HEADINGS
The headings and titles of the various paragraphs of this Agreement are
inserted merely for the purpose of convenience, and do not expressly or by
implication limit, define, extend or affect the meaning or interpretation of
this Agreement or the specific terms or text of the paragraph so designated.
10. GOVERNING LAW; SEVERABILITY
This Agreement shall be governed in all respects, whether as to validity,
construction, capacity, performance or otherwise, by the laws of the State of
Illinois, in which it has a situs. If any provision of this Agreement shall be
held invalid by a court with jurisdiction over the parties to this Agreement,
then and in that event such provision shall be deleted from the Agreement, which
shall then be construed to give effect to the remaining provisions thereof. If
any one or more of the provisions contained in this Agreement or in any other
instrument referred to herein shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, then in that event, to the maximum
extent permitted by law, such invalidity, illegality or unenforceability shall
not affect any other provisions of this Agreement or any other such instrument.
11. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which taken together shall be considered
one and the same instrument.
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12. EFFECTIVENESS, TERMINATION OF PRIOR AGREEMENT
This Agreement shall become effective upon the closing of the merger of FBP
Acquisition Corp., Inc. with and into the Company, and upon such closing the
Prior Agreement shall terminate and be of no further force or effect.
FALCON BUILDING PRODUCTS, INC.
By: /s/ Xxx Xxxxxxx
--------------------------------
Its: Senior Vice-President
----------------------------
EAGLE INDUSTRIES, INC.
By: /s/ Xxx X. Xxxxx
--------------------------------
Its: Senior Vice-President
--------------------------------
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EXHIBIT A
AFFILIATES
1. Eagle Industries, Inc.
2. Eagle Industrial Products Corporation
EXHIBIT B
SERVICES TO BE PROVIDED BY EAGLE
1. Tax Return Preparation and Research
2. Computer Consulting Services - including, but not limited to, consulting
services in connection with all phases of the Company's computer systems.
3. Risk Management Services - including, but not limited to: (i) supplying
comprehensive insurance consulting for the Company, (ii) monitoring and
filing claims for the Company, and (iii) providing consulting services and
managing reconstruction and claim processing after a property loss is
incurred.
4. Personnel Management and Employment Relations - including but not limited
to: (i) insurance, benefit and healthcare plan maintenance, including
collection, allocation and premium payments, (ii) processing of
post-employment benefits, (iii) processing of claims for worker's
compensation and unemployment benefits, (iv) design, negotiations and
maintenance of all benefit plans, and (v) miscellaneous matters, including
but not limited to, pension and 401(k) plan review, computation and
submission to plan administrators and all necessary documentation necessary
to maintain plans to produce individual account and pension statements; and
(vi) temporary services and recruiting.
5. Physical Expenses - including, but not limited to: (i) providing services
at the corporate office for mailing, couriers, telephone, meeting rooms,
offices, and storage facilities, (ii) use of offices for persons providing
services for items 1 to 4 above, and Falcon employees and (iii) providing
office supplies, and use of office equipment including fax, copiers,
computers, furniture and fixtures.
EXHIBIT C
SCHEDULE OF COMPENSATION
As of June 16, 1997
Physical plant expense including Payment of actual
corporate office use, utilities, expenditures
telephone, maintenance, postage, reasonably
office supplies and use of office allocable to
equipment and furniture the Company
Tax advice and assistance; computer Payment of actual
consulting services; risk management expenditures
services; and personnel management reasonably
services allocable to the
Company
Third party service providers such
as, but not limited to, accountants,
actuaries, consultants, lawyers; and
other purchased services; will be
paid directly by the Company or
reimbursed to Eagle or its
Affiliates.
