EXHIBIT 10.11
HCC Industries Inc.
0000 Xxxxxx Xxxx Xxxx.
Xxxxxxxx, XX 00000
February 14, 1997
Windward Capital Partners, L.P.
Eleven Madison Avenue
26th floor
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The Windward Entities (as defined below) have retained you,
Windward Capital Partners, L.P., a Delaware limited partnership ("Windward"), to
provide certain consulting and advisory services ("Services") in connection with
the transactions contemplated by the First Amendment and Restatement of the
Stock Purchase and Sale Agreement (the "Purchase Agreement"), dated as of
December 23, 1996, between the Company, Windward Capital Associates, L.P.
("Windward Associates"), Windward/Merchant, L.P. ("Windward/Merchant"),
Windward/Park HCC, L.L.C. ("Windward/Park"), Metropolitan Life Insurance Company
("MetLife"), Windward/Merban, L.P. (collectively with Windward, Windward
Associates, MetLife, Windward/Merchant and Windward/Park, the "Windward
Entities"), HCC Windward L.L.C., and each of the stockholders of the Company set
forth on the signature pages thereto, as contemplated in Exhibit B of the
Purchase Agreement. We understand that the Services include, without limitation,
advice with respect to structuring the transactions contemplated by the Purchase
Agreement (the "Recapitalization"), the financing of the Recapitalization and
the negotiation of the Purchase Agreement.
The Company agrees to promptly reimburse Windward on behalf of
each of the Windward Entities for the reasonable out-of-pocket costs and
expenses of the Windward Entities up to an aggregate total of $2,750,000
incurred in connection with the performance of the Services by Windward and in
connection with the transactions contemplated in the Purchase Agreement with
respect to the Windward Entities.
The Company hereby agrees to indemnify Windward and its
affiliates, and their respective officers, directors, employees, agents,
partners and control persons (as such term is used in the Securities Act of 1933
and the
rules and regulations thereunder) (together, the "Windward Indemnities") to the
full extent lawful against any and all claims, losses and expenses as incurred
(including amounts paid in settlement and all reasonable fees and disbursements
of any such indemnitee's counsel and other out-of-pocket expenses incurred in
connection with the investigation of and preparation for any such pending or
threatened claims and any litigation or other proceedings arising therefrom)
arising out of any Services rendered by Windward, provided, however, there shall
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be excluded from such indemnification any such claim, loss or expense that is
based upon any action or failure to act by Windward that is found in a final
judicial determination to constitute gross negligence or intentional misconduct
on Windward's part. The Company will advance costs and expenses, including
attorney's fees, incurred by any such indemnitee in defending any such claim in
advance of the final disposition of such claim upon receipt of an undertaking by
or on behalf of such indemnitee to repay amounts so advanced if it shall
ultimately be determined that such indemnitee is not entitled to be indemnified
by the Company pursuant to this letter agreement. With respect any such claim,
loss or expense, Windward may settle any claim or litigation prior to a final
judgement thereon or forego appeal with respect thereto, in either case, with
the prior written consent of the Company, which consent shall not be
unreasonably withheld. The Company will not consent to entry of any judgment or
enter into any settlement (i) which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Windward Indemnitee of a
release from all liability in respect to such claim or litigation, and (ii) that
imposes any obligation on an Windward Indemnitee (except any obligation to make
payments which the Company shall, and promptly does, pay). No Windward
Indemnitee shall be liable to the Company or its respective subsidiaries or
affiliates for any error of judgment or mistake of law or for any loss incurred
by the Company or its subsidiaries or any of their respective affiliates in
connection with the matters to which this letter agreement relates, except for
any damages that are found by a court of competent jurisdiction to have resulted
primarily from the gross negligence or willful misconduct of the Windward
Indemnitee.
This agreement shall be governed by and interpreted and enforced
in accordance with the substantive
laws of the State of New York, without giving effect to the choice of law
principles thereof.
If you are in agreement with the foregoing, kindly so indicate by
signing a counterpart of this letter, whereupon it will become a binding
agreement between us.
Very truly yours,
HCC INDUSTRIES INC.
By:____________________________________
Name:
Title:
WINDWARD CAPITAL ASSOCIATES, L.P.
By: Windward Capital
Associates, Inc.,
its general partner
By:_______________________________
Name:
Title:
WINDWARD/PARK HCC L.L.C.
By: Windward Capital Associates,
L.P., its manager
By: Windward Capital
Associates, Inc.,
its general partner
By:_______________________________
Name:
Title:
WINDWARD/MERBAN, L.P.
By: Windward Capital Associates,
L.P., its general partner
By: Windward Capital
Associates, Inc.,
its general partner
By:_______________________________
Name:
Title:
WINDWARD/MERCHANT, L.P.
By: Windward Capital Associates,
L.P., its general partner
By: Windward Capital
Associates, Inc.,
its general partner
By:_______________________________
Name:
Title:
THE METROPOLITAN LIFE INSURANCE COMPANY
By:_______________________________
Name:
Title:
Accepted and agreed
as of February 14, 1996
WINDWARD CAPITAL PARTNERS, L.P.
By: Windward Management, Inc.,
its general partner
By:__________________________________
Name:
Title:
