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Exhibit 10.22
FINANCING ADVISORY AGREEMENT
This Agreement is made effective as of the 8th day of October,
1997, by and between Investcorp International Inc., a Delaware corporation
("III") and Werner Holding Co. (DE), Inc., a Delaware corporation ("Werner").
WHEREAS, pursuant to the Amended and Restated Recapitalization
Agreement (the "Recapitalization Agreement") by and between Werner Holding Co.
(PA), Inc. ("Holding") and the investors set forth on Schedule 1 of the
Recapitalization Agreement (the "Investors"), the Investors will acquire
approximately 67% of the outstanding stock of Holding (the "Recapitalization");
WHEREAS, Werner intends to arrange borrowing facilities with
one or more financial institutions unaffiliated with III in the aggregate amount
of approximately $455 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 Werner; and
WHEREAS, Werner 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 Werner in arranging the
Financing. In connection therewith, III may, solely in its discretion and on
behalf of Werner:
(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.
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2. FEES. In consideration of the services contemplated by
Section 1 hereof, Werner shall pay to III a fee in the amount of $6,000,000,
payable on the closing of the Recapitalization.
3. REIMBURSEMENT. Werner 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. Werner 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"). Werner 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 Werner.
All Information so furnished to III will be kept confidential by III, except
such Information as is in the public domain or as Werner 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 Recapitalization is not consummated on or before February
24, 1998, unless extended by the parties' mutual consent.
6. INDEMNIFICATION. Werner shall:
(a) indemnify III and hold it harmless against any
losses, claims, damages or liabilities to which III may become
subject
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arising in any manner out of or in connection with the
rendering of services by III 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 Werner any amounts reimbursed
under this subparagraph 6(b). Werner 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 Werner 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 Werner.
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.
280 Park Avenue
37th Floor
New York, New York 10017
Attention: President
with a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
Attention: E. Michael Greaney, Esq.
If to Werner, to:
Werner Holding Co. (DE), Inc.
1105 North Market Street, Suite 1300
Wilmington, DE 19899
Attention: General Counsel
with a copy to:
Werner Holding Co. (PA), Inc.
93 Werner Road
Greenville, PA 16125
Attention: General Counsel
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 (without regard to
the conflicts of laws provisions thereof or of any other jurisdiction) and shall
inure to the benefit of, and be binding upon, III and Werner and their
respective successors and assigns.
11. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
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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/________________________
Name:
Title:
WERNER HOLDING CO. (DE), INC.
By:__/s/________________________
Name:
Title:
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