FEE, REIMBURSEMENT AND INDEMNITY AGREEMENT
Exhibit 10.3
FEE, REIMBURSEMENT AND INDEMNITY AGREEMENT
This Fee, Reimbursement and Indemnity Agreement (the “Agreement”) is made and entered into effective as of the 17th day of April, 2017, by and between HHS GUARANTY, LLC, a Texas limited liability company (the “LLC”), and XXXXX XXXXX, INC., a Delaware corporation (“Xxxxx Xxxxx”).
W I T N E S S E T H:
WHEREAS, pursuant to a loan agreement and related documents dated as of the date hereof by and between Texas Capital Bank, N.A. (the “Bank”) and Xxxxx Xxxxx, the Bank agreed to provide Xxxxx Xxxxx a revolving line of credit in the maximum aggregate principal amount of $20,000,000 (the “Loan”); and
WHEREAS, at the request of Xxxxx Xxxxx and as required by the Bank, the LLC agreed to guaranty all of the payment obligations of Xxxxx Xxxxx under the Loan by pledging the Collateral (as hereinafter defined) to the Bank, pursuant to the terms of that one certain Pledge Agreement (the “Pledge Agreement”) and Note Purchase Agreement (the “Note Purchase Agreement”) (the Pledge Agreement and Note Purchase Agreement are collectively referred to herein as the “Pledge Documents”); and
WHEREAS, pursuant to the Pledge Documents, the LLC will pledge a minimum of $24,000,000 in cash and marketable securities to the Bank, and the Bank will have custody and control over such cash and marketable securities (the “Collateral”); and
WHEREAS, Xxxxx Xxxxx desires to compensate the LLC for the LLC’s pledge of the Collateral to secure the Loan for the benefit of Xxxxx Xxxxx, pursuant to the terms and conditions as set forth herein; and
WHEREAS, in exchange for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties wish to enter into this Agreement;
NOW, THEREFORE, for good and adequate consideration, the receipt and sufficiency of which is hereby acknowledged, Xxxxx Xxxxx and the LLC agree as follows:
1. Payments, Performance, Covenants.
(a) In the event the Bank makes any demand on Xxxxx Xxxxx, or Xxxxx Xxxxx is otherwise required to perform any obligations under the Loan (including without limitation, any payment obligation) or any Loan Documents (as hereafter defined), Xxxxx Xxxxx shall promptly perform its obligations under the Loan or applicable Loan Document.
(b) In the event any such amount is not timely paid or such obligation is not timely performed by Xxxxx Xxxxx and the Bank seeks to enforce the LLC’s guaranty under the Pledge Documents, or, in the event the LLC is required to purchase the Loan from the Bank as set forth in the Loan Documents, Xxxxx Xxxxx shall reimburse, within five days of receiving notice from
the LLC, to the LLC the aggregate amount of all funds advanced by the LLC or paid to the Bank for the purchase of the Loan or otherwise, on account of such obligation, together with interest on such amount at an annual rate equal to the prime rate (as defined below) plus 6%, from the date of payment by the LLC until all such amounts have been repaid by Xxxxx Xxxxx. For the purpose of this Agreement, “prime rate” shall mean the variable rate of interest, per annum, most recently announced by the Bank, as its “prime rate,” whether or not such announced rate is the lowest rate available from such bank.
(c) Xxxxx Xxxxx will not agree to any amendment, modification, waiver or supplement to the Loan or any of the documents, instruments or agreements executed in connection therewith (collectively, the “Loan Documents”) without the prior written consent of the LLC. Xxxxx Xxxxx will use reasonable best efforts to accommodate the LLC’s written request that any subsidiary of Xxxxx Xxxxx become party to that certain Security Agreement dated as of April 17, 2017 between Xxxxx Xxxxx and the Bank (the “Security Agreement”) pursuant to Section 4.21 of the Security Agreement.
2. Fees and Reimbursement of Expenses.
(a) As consideration for the pledge of the Collateral, Xxxxx Xxxxx hereby agrees to pay to the LLC an annual fee equal to $480,000 (the “Annual Fee”), for so long the Collateral is pledged to and held by the Bank, to be paid quarterly as described in (b) below.
(b) The Annual Fees due under this Agreement shall be payable in quarterly installments of $120,000 each, with the first quarterly payment due upon execution of this Agreement and all following quarterly payments due in advance of the next calendar quarter such that the first quarterly installment shall be due on April 17, 2017, the second quarterly installment shall be due on July 17, 2017, the third quarterly installment shall be due on October 17, 2017, and the fourth quarterly installment shall be due on January 17, 2018, with all subsequent quarterly installments due on the same 17th day of each of April, July, October, and January of the applicable year during the term of this Agreement.
(c) In addition to the Annual Fees due under this Agreement, Xxxxx Xxxxx shall, within five days of receiving a request from the LLC, reimburse the LLC for all LLC costs and expenses incurred by the LLC in connection with this Agreement, the Loan, the Loan Documents, the Pledge Documents, and the pledge of the collateral (collectively, the “Reimbursed Expenses”). The Reimbursed Expenses shall include, but are not limited to, reasonable legal, accounting, custody and Bank fees, expenses, and costs incurred by the LLC in its formation, initial funding, and throughout the term of this Agreement (except to the extent related to LLC activities after the date hereof which are unrelated to this Agreement or the Loan Documents).
(d) All payments made under this Agreement shall be paid by Xxxxx Xxxxx in cash pursuant to a check or wire transfer made payable to the LLC.
3. Obligations of Xxxxx Xxxxx. The obligations of Xxxxx Xxxxx under this Agreement shall be absolute, unconditional and irrevocable, shall apply to the fullest extent authorized or
permitted by any applicable law, under and shall be paid and performed strictly in accordance with the terms of this Agreement, under all circumstances whatsoever, including, without limitation, the following circumstances:
(a) Any lack of validity or enforceability of this Agreement;
(b) the existence of any claim, set-off, defense or other rights which Xxxxx Xxxxx may have at any time against the LLC or any other person or entity, whether or not in connection with this Agreement; or
(c) Any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
4. Representations and Warranties of Xxxxx Xxxxx. Xxxxx Xxxxx hereby represents and warrants to the LLC as follows:
(a) Organization and Standing. Xxxxx Xxxxx is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite power and authority to carry on its business as now being conducted.
(b) Authority; Enforceability. Xxxxx Xxxxx has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby.
(c) Execution of Agreement. This Agreement has been duly executed and delivered by Xxxxx Xxxxx. The execution, delivery and performance of this Agreement will not cause any default, breach or violation of any provision of any material agreement to which Xxxxx Xxxxx is a party or by which any of Xxxxx Hanks’s assets are bound.
(d) Validity of Agreement. This Agreement constitutes the legal, valid and binding obligation of Xxxxx Xxxxx, enforceable in accordance with its terms.
(e) Approvals. No approval, authorization, consent or other order or action of or filing with any governmental or administrative entity or any other person is required for the execution and delivery by Xxxxx Xxxxx of this Agreement or such other agreements and instruments required hereunder or for the consummation by Xxxxx Xxxxx of the transactions contemplated hereby or thereby.
(f) Violation of Laws or Agreements. The making and performance of this Agreement and the other documents, agreements and actions required hereunder or thereunder will not violate any provisions of any law, federal, state or local rule or regulation, or any judgment, decree, award or order of any court or other governmental entity, agency or arbitrator to which Xxxxx Xxxxx is subject.
5. Termination. This Agreement shall remain in full force and effect and shall terminate on the later to occur of (i) the date that the Pledge Documents are terminated or (ii) the date that all obligations of Xxxxx Xxxxx to the LLC, and all obligations of Xxxxx Xxxxx hereunder have been
paid in full and satisfied and; in each case, after the expiration of the period during which any payment by Xxxxx Xxxxx is or may be subject to rescission, avoidance or refund under the United States Bankruptcy Code (or any similar state statute).
6. Indemnification.
(a) Xxxxx Xxxxx hereby agrees to indemnify, protect, defend and hold harmless the LLC and its officers, managers, members, directors, employees, successors and assigns, (collectively, the “Indemnified Parties”), from and against any and all claims, damages, losses, liabilities, costs or expenses of any kind or nature and from any suits, claims or demands, including reasonable attorney’s fees incurred in investigating or defending such claim, suffered by any of them and caused by, relating to, arising out of, resulting from, or in any way connected with this Agreement or the transactions contemplated hereby (unless determined by a final judgment of a court of competent jurisdiction to have been caused solely by the gross negligence or willful misconduct of the Indemnified Parties) including without limitation:
(i) by reason of any breach of any representation or warranty of Xxxxx Xxxxx in this Agreement;
(ii) by reason of, in connection with, or as a consequence of any default by Xxxxx Xxxxx, in the performance or observance of any term, condition, covenant, or undertaking contained in this Agreement or any other document to be observed or performed by Xxxxx Xxxxx in connection with the Loan;
(iii) by reason of or in connection with any litigation or other proceeding in any way restraining, enjoining, questioning or affecting performance or obligation hereunder; and
(iv) by reason of or in connection with its obligations under the Loan Documents and its obligation to pay fees and reimburse expenses to the LLC pursuant to this Agreement.
(b) In case any action shall be brought against the LLC or any other Indemnified Party in respect to which indemnity may be sought against Xxxxx Xxxxx, the LLC or such other Indemnified Party shall promptly notify Xxxxx Xxxxx and Xxxxx Xxxxx shall assume the defense thereof, including the employment of counsel selected by Xxxxx Xxxxx and satisfactory to the LLC, the payment of all costs and expenses, and the right to negotiate and consent to settlement. The failure of the LLC to so notify Xxxxx Xxxxx shall not relieve Xxxxx Xxxxx of any liability it may have under the foregoing indemnification provisions or from any liability which it may otherwise have to the LLC or any of the other Indemnified Parties. The LLC shall have the right, at its sole option, to employ separate counsel in any such action and to participate in the defense thereof and retain its own counsel, and the fees and expenses of such counsel shall be reimbursed to the LLC pursuant to Section 2(c) hereof. Xxxxx Xxxxx shall not be liable for any settlement of any such action effected without its consent, which consent shall not be unreasonably withheld, delayed or conditioned, but if settled with Xxxxx Hanks’s consent, or if there shall be a final
judgment for the claimant in any such action, Xxxxx Xxxxx agrees to indemnify and hold harmless the LLC from and against any loss or liability by reason of such settlement or judgment.
(c) The provisions of this Section 6 shall survive the repayment or other satisfaction of the obligations of Xxxxx Xxxxx hereunder.
7. Information Reporting and Confidentiality. During the term of this Agreement, Xxxxx Xxxxx agrees to provide all information required to be provided to the Bank pursuant to the Loan Documents, to the LLC, pursuant to the same reporting deadlines as set forth in the Loan Documents (collectively, the “Reporting Information”). The LLC hereby agrees to maintain all Reporting Information provided to the LLC hereunder in strict confidence, and to use the same degree of care in protecting the Reporting Information as the LLC uses to protect its own confidential information; provided, however, that the LLC’s confidentiality obligations hereunder shall not apply to any Reporting Information which, (a) at the time of disclosure by Xxxxx Xxxxx to the LLC is in the public domain, as evidenced by printed publication or otherwise; (b) after disclosure by Xxxxx Xxxxx to the LLC becomes part of the public domain, by publication or otherwise, through no fault of the LLC; or (c) the LLC can show by reasonably convincing evidence that the Reporting Information already was in the LLC’s possession at the time of disclosure by Xxxxx Xxxxx to the LLC hereunder and was not previously acquired, directly or indirectly, from Xxxxx Xxxxx by the LLC on a confidential basis.
8. Notices. All notices, requests, demands and other communications that this Agreement requires or permits shall be in writing and shall be sent by overnight courier providing delivery receipt, or by certified mail, return receipt requested, or by telecopy or hand delivery to the following addresses:
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If to Xxxxx Xxxxx: |
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Xxxxx Xxxxx, Inc. |
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0000 XxXxxxxxxx Xxxxxxx, Xxxxx 000 |
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Xxx Xxxxxxx, Xxxxx 00000 |
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Attention: Xxxxxx Xxxxxx, General Counsel |
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Telephone: 000-000-0000 |
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Fax: 000-000-0000 |
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If to the LLC: |
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HHS Guaranty, LLC |
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000 Xxxxxx Xxxxxx |
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Xxxxxxx, Xxxxx 00000 |
All notices, requests, demands and other communications provided in accordance with the provisions of this Agreement shall be effective: (i) if sent by overnight courier or facsimile, when received, (ii) if sent by certified mail, return receipt requested, the third day after sending, or (iii) if given by hand delivery, when delivered.
9. Amendments. The provisions of this Agreement may be amended only by a written agreement signed by Xxxxx Xxxxx and the LLC.
10. Governing Law and Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Texas, without regard to the conflicts of laws provisions.
11. Continuing Obligation. This Agreement is a continuing obligation and shall (a) be binding upon Xxxxx Xxxxx and its respective its successors and assigns, and (b) inure to the benefit of and be enforceable by the LLC against Xxxxx Xxxxx (and its successors, transferees and assigns); provided, that Xxxxx Xxxxx may not assign all or any part of its obligations hereunder without the prior written consent of the LLC.
12. Savings Clause. Whenever possible, each provision of this Agreement shall be interpreted in a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
13. Severability. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the validity of any other provision of this Agreement, and such provision(s) shall be deemed modified to the extent necessary to make it enforceable.
14. Survival of Representations and Warranties. All representations and warranties contained or incorporated herein or made in writing in connection herewith shall survive the execution and delivery of this Agreement.
15. Counterparts. This Agreement may be executed in more than one counterpart, including by facsimile signature, all of which, together, constitute one and the same instrument.
16. No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto; there are no third-party beneficiaries of this Agreement other than the Indemnified Parties for purposes of indemnification hereunder.
17. Entire Agreement. This Agreement embodies and reflects the entire agreement between the parties with respect to the matters set forth herein, and there are no other agreements, understandings, representations or warranties between the parties other than those set forth in this Agreement.
[Signatures to Follow on Next Page.]
Wherein this Agreement is executed and effective as of the date set forth above.
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LLC: | |
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HHS GUARANTY, LLC | |
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By: |
/s/ Xxxxx X. Xxxxxxxx |
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Xxxxx X. Xxxxxxxx, Sole Manager |
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XXXXX XXXXX: | |
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XXXXX XXXXX, INC. | |
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By: |
/s/ Xxxxxx X. X. Xxxxxx |
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Name: |
Xxxxxx X. X. Xxxxxx |
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Title: |
EVP, General Counsel & Secretary |
