EXHIBIT 10.01
FINANCING ADVISORY AGREEMENT
This Agreement is made effective as of the 20th day of March, 1997, by
and between Investcorp International, Inc., a Delaware corporation ("III") and
FBP Acquisition Corp., Inc. a Delaware corporation ("FBP").
WHEREAS, pursuant to an Agreement and Plan of Merger dated as of March
20, 1997, by and between FBP and Falcon Building Products, Inc., a Delaware
corporation ("Falcon"), FBP will merge with and into Falcon (the "Merger"), with
Falcon surviving;
WHEREAS, FBP intends to arrange borrowing facilities with one or more
financial institutions unaffiliated with III in the aggregate amount of
approximately $300 million (the "Financing");
WHEREAS, III and its officers, employees, agents and affiliates are
experienced in the field of obtaining debt financing and are willing to act as a
financial advisor to FBP; and
WHEREAS, FBP is desirous to avail itself of the assistance and
expertise of III in arranging the Financing;
NOW, THEREFORE, the parties do hereby agree as follows:
1. SERVICES OF III. III shall assist FBP in arranging the
Financing. In connection therewith, III may, solely in its discretion and on
behalf of FBP:
(a) seek out financial institutions that may provide the
Financing;
(b) enter into negotiations with banks and other financial
institutions regarding the terms and conditions upon which the
Financing is to be provided;
(c) advise, conduct and participate in the negotiation and
drafting of any agreements, contracts, or other documents relating to
the placement of the Financing; and
(d) take all such other actions as it may deem necessary to
arrange for the Financing.
2. FEES. In consideration of the services contemplated by Section 1
hereof, FBP shall pay to III a fee
in the amount of $4,200,000, payable on the closing of the Merger.
3. REIMBURSEMENT. FBP shall pay directly any commitment fees,
arrangement fees, or other actual out-of-pocket expenses incurred in connection
with the performance of III's services under this Agreement, including, but not
limited to, fees and disbursements of III's legal counsel.
4. COOPERATION AND INFORMATION. FBP shall cooperate with III in the
performance of its obligations hereunder and shall furnish III with such
information as III may request (all such information so furnished hereinafter
referred to as the "Information"). FBP recognizes and confirms that III:
(a) will use and rely primarily on the Information and on
information available from generally recognized public sources in
performing the services contemplated by this Agreement without having
independently verified the same;
(b) does not assume responsibility for the accuracy or
completeness of the Information; and
(c) will not make an appraisal of any of the assets of FBP or of
Falcon.
All information so furnished to III will be kept confidential by III, except
such information as is in the public domain or as FBP agrees may be disclosed or
as III is required by law to disclose; PROVIDED, HOWEVER, that III may provide
such Information as it deems necessary or appropriate to financial institutions
in connection with obtaining, negotiating or arranging the Financing in
accordance with the terms of this Agreement.
5. TERMINATION. Subject to the provisions of Paragraph 6 hereof,
which shall survive any termination of this Agreement, this Agreement shall
terminate if the Merger is not consummated on or before September 17, 1997,
unless extended by the parties' mutual consent.
6. INDEMNIFICATION. FBP shall:
(a) indemnify III and hold it harmless against any losses,
claims, damages or liabilities to which III may become subject
arising in any manner out of or in connection with the rendering of
services by III
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hereunder, unless it is finally judicially determined
that such losses, claims, damages or liabilities arose primarily out
of the gross negligence or bad faith of III; and
(b) reimburse III immediately for any legal or other expenses
reasonably incurred by it in connection with investigating, preparing
to defend or defending any lawsuits or other proceedings arising in
any manner out of or in connection with the rendering of services by
III hereunder; PROVIDED, HOWEVER, that in the event a final judicial
determination is made to the effect specified in subparagraph 6(a)
above, III will remit to FBP any amounts reimbursed under this
subparagraph 6(b). FBP agrees that (i) the indemnification and
reimbursement commitments set forth in this paragraph shall apply
whether or not III is a formal party to any such lawsuits, claims or
other proceedings, (ii) III is entitled to retain separate counsel of
its choice at the expense of FBP in connection with any of the matters
to which such commitments relate, and (iii) such commitments shall
extend upon the terms set forth in this paragraph to any controlling
person, director, officer, employee or agent of III; PROVIDED,
HOWEVER, that to the extent that III retains separate counsel in
connection with any matters set forth in this subparagraph 6(b), such
counsel shall coordinate its efforts with counsel to FBP.
7. AMENDMENTS. No amendment or waiver of any provision of this
Agreement, or consent to any departure by either party from any such provision,
shall be effective unless the same shall be in writing and signed by the parties
to this Agreement and then such amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
8. NOTICES. All notices hereunder shall, in the absence of
receipted hand delivery, be deemed duly given when mailed, if the same shall be
sent by registered or certified mail, return receipt requested, and the mailing
date shall be deemed the date from which all time periods pertaining to a date
of notice shall run. Notices shall be addressed to the parties at the following
addresses:
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If to III, to:
Investcorp International, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx
0000 Xxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
If to FBP, to:
FBP Acquisition Corp.
c/o Gibson, Xxxx & Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: E. Xxxxxxx Xxxxxxx
9. ENTIRE AGREEMENT. This Agreement shall constitute the entire
Agreement between the parties with respect to the subject matter hereof, and
shall supersede all previous oral and written (and all contemporaneous oral)
negotiations, commitments, agreements and understandings relating thereto.
10. APPLICABLE LAW. This Agreement shall be construed and enforced
in accordance with the laws of the State of New York and shall inure to the
benefit of, and be binding upon, III and FBP and their respective successors and
assigns.
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IN WITNESS WHEREOF, each of the parties has caused this Financing
Advisory Agreement to be executed and delivered by its duly authorized officer
or agent as set forth below.
INVESTCORP INTERNATIONAL, INC.
By: /s/ Xxx X. Xxxxxx
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Name:
Title:
FBP ACQUISITION CORP., INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
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Name:
Title:
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