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Exhibit 10.26
ASSUMPTION AGREEMENT
(hereinafter "Agreement")
by and between
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
(hereinafter called the "Company")
and
MANUFACTURER'S INDEMNITY AND INSURANCE COMPANY OF AMERICA
(hereinafter called "MIICA")
and
WERNER HOLDING CO. (PA), INC.
(hereinafter called "Werner")
WHEREAS, it is the intent of the parties hereto that effective as of 12:01
a.m., March 31, 1998 (the "Effective Date"), the Company shall assume all
rights, duties, and obligations of MIICA with respect to certain policies of
insurance (listed in Schedule A and attached hereto, the "Policies") issued by
MIICA to Werner and its subsidiaries and that MIICA shall be relieved of all
insurance obligations and risks transferred hereunder.
NOW THEREFORE, in consideration of the mutual covenants hereinafter
contained and upon the terms and conditions hereinafter set forth, the parties
hereto agree as follows:
ARTICLE I
ASSUMPTION OF RIGHTS, DUTIES AND LIABILITIES
MIICA hereby transfers and assigns to the Company and the Company hereby
accepts and assumes, all of MIICA's rights, duties, liabilities and
obligations with respect to the Policies. The parties agree that the
Company shall be bound by and undertakes to perform MIICA's obligations
under the Policies in all respects as if the Company rather than MIICA were
the original party to the Policies.
ARTICLE II
RELEASE AND CONSENT TO NOVATION
Werner hereby consents and agrees to the Company's assumption of MIICA's
rights, duties, liabilities and obligations with respect to the Policies.
In consideration of such assumption, Werner hereby releases and discharges
MIICA from any and all liability of whatever kind or character arising out
of or in connection with the Policies.
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ARTICLE III
COVERAGE RESTRICTIONS
Coverage for Property Damage and Bodily Injury under the Policies shall be
limited to damages arising from an Occurrence which happened during the
Policy Periods described in the Policies and is subject to the restrictions
of Per Occurrence and Policy Aggregate Limits as stated in Schedule A.
Coverage under this Agreement is further restricted by the Total Program
Aggregate as stated below and to the exclusions under Article VI of this
Agreement.
Notwithstanding the terms of the Policies, coverage for Property Damage and
Bodily Injury is subject to a Total Program Aggregate Limit as stated in
the Indemnity Agreement attached hereto as Ex. B. Under no circumstances
shall the total liability of the Company under this Agreement exceed the
Total Program Aggregate Limit as stated in the Indemnity Agreement.
Notwithstanding the terms of the Policies, coverage for Property Damage and
Bodily Injury under the Policies shall not include damages incurred and
paid by Werner and/or MICCA prior to the Effective Date. Coverage for
Supplementary Payments with respect to any claim or suit shall be limited
to work performed or costs and expenses incurred after the Effective Date.
ARTICLE IV
INDEMNIFICATION
The Company agrees to indemnify, defend, and hold MIICA and Werner harmless
from any and all losses, liabilities, damages, actions, claims, demands,
judgments, or expenses arising from or related to the Company's assumption
of MIICA's rights, duties, liabilities and obligations under the Policies,
but solely for those matters ocurring after the Effective Date.
Werner agrees to indemnify, defend and hold the Company harmless from any
and all losses, liabilities, damages, actions, claims, demands, judgments,
or expenses arising from or related to any of MIICA's liabilities or
obligations under policies of insurance not covered by this Agreement.
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ARTICLE V
CLAIMS HANDLING
Werner represents and warrants that, as of the effective date of this
Agreement, claims under the Policies are being handled by Werner Holding
Company, Inc. a/k/a Pheonix Management Services, Inc. (the "Claims
Handlers"), and Werner agrees that it shall not amend, modify or waive the
provisions of any of its current agreements with the Claims Handlers (to
the extent such provisions affect the handling of claims included within
the liabilities assumed by the Company under this Agreement) without the
Company's prior written consent.
ARTICLE VI
CONSIDERATION
The consideration for the Company's assumption of MIICA's obligations,
duties and liabilities under this Agreement, shall be $_____________
payable by MIICA to the Company concurrently with the execution and
delivery of this Agreement. Receipt of the consideration by the Company is
a condition precedent to the Company's assumption of MIICA's obligations,
duties and liabilities under this Agreement.
ARTICLE VII
EXCLUSIONS
This Agreement does not apply to and will not cover:
1) Damages awarded by a court against Werner or the Claims Handlers where
such damages are outside the provisions of the Policies and such damages
are due to bad faith, fraud, or gross negligence of Werner or the Claims
Handlers in the handling of a loss;
2) Any risk not covered by the Policies;
3) Any ex gratia payments.
ARTICLE VIII
ACCESS TO RECORDS
MIICA shall allow the Company or its agents or authorized representatives
to inspect, at all reasonable times, or deliver to the Company upon request
all records of MIICA relevant to claims, losses or legal proceedings which
involve or are likely to involve the Policies assumed hereunder by the
Company.
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ARTICLE IX
ERRORS AND OMISSIONS
Any inadvertent error, omission or delay in complying with the terms and
conditions of this AGREEMENT shall not be held to relieve either party
hereto from any liability which would attach to it hereunder if such delay,
omission or error had not been made, provided such delay, omission or error
is rectified as soon as practicable upon discovery.
ARTICLE X
ARBITRATION CLAUSE
All disputes or differences arising out of the interpretation of this
AGREEMENT shall be submitted to the binding decision of two (2)
Arbitrators, one to be chosen by each party, and in the event the
Arbitrators fail to agree, to the decision of an Umpire to be chosen by the
Arbitrators. The Arbitrators and Umpire shall be disinterested active or
retired executive officials of Fire or Casualty Insurance or Reinsurance
Companies. If either of the parties fails to appoint an Arbitrator within
one (1) month after being required by the other party in writing to do so,
or if the Arbitrators fail to appoint an Umpire, within one (1) month of
receipt of a request in writing by either of them to do so, such Arbitrator
or Umpire, as the case may be, shall at the request of either of them to do
so, such Arbitrator or Umpire, as the case may be, shall at the request of
either party be appointed by a Judge of the State Court of New York.
The Arbitration proceedings shall take place New York, New York. The
applicant shall submit its case within one (1) month after the appointment
of the Court of Arbitration, and the respondent shall submit his reply
within one (1) month after receipt of a claim. The Arbitrators and Umpire
are relieved from all judicial formality and may abstain from following the
strict rules of law.
The Arbitrators and the Umpire shall not award punitive damages. They shall
settle any dispute under this AGREEMENT according to an equitable rather
than a strictly legal interpretation of its terms and their decision shall
be provided to the parties in writing and shall be final and not subject to
appeal. Judgement may be entered upon the award of the Arbitrators in any
court having jurisdiction thereof.
Each party shall bear the expenses of its Arbitrator and shall jointly and
equally share with the other the expense of the Umpire and of the
Arbitration.
This Article shall survive the termination of this AGREEMENT.
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ARTICLE XI
TERMINATION
It is agreed that neither party to this AGREEMENT may terminate this
AGREEMENT.
ARTICLE XII
NOTICE
Any notice or other communication required to be given hereunder shall be
effective only if in writing and shall be deemed sufficiently given only if
sent to the respective address shown below unless a change in address is
received by the notifying party.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
attn: Risk Finance
Operations Division
70 Pine Street, 5th Floor
New York, NY 10270
WERNER HOLDING CO. (PA.), INC.
MANUFACTURERS INDEMNITY AND INSURANCE COMPANY OF AMERICA
ARTICLE XIII
MISCELLANEOUS
A. This Agreement shall not be deemed to give any right or remedy to any
third party whatsoever unless said right or remedy is specifically
granted to such third party by the terms hereof.
B. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties hereto.
C. Nothing contained in this Agreement shall be construed so as to require
the commission of any act contrary to law, and wherever there is any
conflict between any provisions(s) of this Agreement and any statute,
law, ordinance or regulation
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contrary to which the parties hereto have no legal right to contract,
the latter shall prevail; provided, however, that in such event the
provision(s) of this Agreement so affected shall be curtailed and
limited only to extent necessary to permit compliance with the minimum
legal requirement, and no other provisions of this Agreement shall be
affected thereby, and all such other provisions of this Agreement shall
continue in full force and effect.
D. This Agreement contains the full and complete understanding and
agreement between the parties hereto with respect to the subject matter
hereof, and the parties acknowledge that neither is entering into this
Agreement in reliance upon any term, condition, representation or
warranty not stated herein and that this Agreement replaces any and all
prior agreements whether oral or written, pertaining to the subject
matter hereof.
E. Any capitalized terms used but not defined herein shall have the same
meaning as defined in the Policies.
F. Whenever the text hereof requires the use of a singular term it shall
include the appropriate plural term as the text of the instrument
requires.
G. All changes to this Agreement must be in writing and agreed to by the
Parties.
H. To the extent that any issues or disputes fall outside Article IX of
this Agreement, this Agreement shall be governed by the laws of the
State of New York and the parties hereto do irrevocably submit to the
non-exclusive jurisdiction of the Courts in the State of New York and to
the extent permitted by law the parties expressly waive all rights to
challenge or otherwise limit such jurisdiction.
I. No failure or delay by a party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege
hereunder.
J. It is understood and agreed that this Agreement is a manuscript
Agreement that has been negotiated at arm's length and on equal footing
as between the parties hereto, and that any dispute concerning the
meaning of this Master Policy, or any term or condition hereof, shall be
resolved without reference to the doctrine of contra proferentem or any
related or similar doctrine.
K. Each of the parties hereto represents that it has not assigned any of
its rights under the Policies, and the signatories to this Agreements
represent that they are fully authorized to execute the agreements and
releases set forth herein on behalf of the respective parties hereto.
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The remainder of this page is left intentionally blank.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives in New York, New York this _________
day of , 19_.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
By: /s/
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Title:
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Address: 70 Pine Street New York, New York 10270.
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WERNER HOLDING CO. (PA.), INC.
By: /s/
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Title:
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Address:
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MANUFACTURERS INDEMNITY AND INSURANCE COMPANY OF
AMERICA
By: /s/
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Title:
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Address:
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