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EXHIBIT 10.4
FINANCIAL ADVISORY AGREEMENT
THIS FINANCIAL ADVISORY AGREEMENT (this "Agreement") is made and
entered into effective as of March 3, 1998 among LIN Television Corporation, a
Delaware corporation (together with its successors, the "Company"), LIN
Holdings Corp., a Delaware corporation (together with its successors,
"Holdings"), Ranger Equity Holdings Corporation, a Delaware corporation
(together with its successors, "REH"), Ranger Equity Holdings A Corp., a
Delaware corporation (together with its successors, "REHA"), Ranger Equity
Holdings B Corp., a Delaware corporation (together with its successors, "REHB,"
and together with the Company, Holdings, REH and REHA, the "Clients") and
Xxxxx, Muse & Co. Partners, L.P., a Texas limited partnership (together with
its successors, "HMCo").
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of
October 17, 1996 (as amended, the "Merger Agreement"), among Holdings, the
Company and LIN Acquisition Company, a Delaware corporation ("Merger Sub"),
Merger Sub is being merged (the "Merger") with and into the Company, with the
Company being the surviving corporation and thereby becoming a wholly
owned-subsidiary of Holdings;
WHEREAS, the Clients have requested that HMCo. render, and HMCo. has
rendered, financial advisory services to them in connection with the
negotiation of the Merger and the debt and equity financing transactions and
certain other transactions related thereto (collectively with the Merger, the
"Transaction"); and
WHEREAS, the Clients have requested that HMCo. render financial
advisory, investment banking, and other similar services to them with respect
to future proposals for a tender offer, acquisition, sale, merger, exchange
offer, recapitalization, restructuring, or other similar transaction directly
or indirectly involving any of the Clients or any of their respective
subsidiaries and any other person or entity (collectively, "Subsequent
Transactions");
NOW, THEREFORE, in consideration of the services rendered and to be
rendered by HMCo to the Clients, and to evidence the obligations of the Clients
to HMCo and the mutual covenants herein contained, the Clients hereby jointly
and severally agree with HMCo as follows:
1. Retention.
(a) The Clients hereby acknowledge that they have
retained HMCo, and HMCo acknowledges that it has acted, as financial advisor to
the Clients in connection with the Transaction.
(b) Each of the Clients acknowledges that it has retained
HMCo as its exclusive financial advisor in connection with any Subsequent
Transactions that may be consummated during the term of this Agreement, and
that none of the Clients will retain any other person or entity to provide such
services in connection with any such Subsequent Transaction without the prior
written consent of HMCo. HMCo agrees that it shall provide such financial
advisory, investment banking
NOTICE IS HEREBY GIVEN THAT THIS AGREEMENT CONTAINS INDEMNIFICATION PROVISIONS
IN PARAGRAPH 5 THAT APPLY TO CLAIMS, LIABILITIES, LOSSES, DAMAGES OR EXPENSES
THAT HAVE RESULTED FROM OR ARE ALLEGED TO HAVE RESULTED FROM THE ACTIVE OR
PASSIVE OR THE SOLE, JOINT OR CONCURRENT ORDINARY NEGLIGENCE OF HMCO OR ANY
OTHER INDEMNIFIED PERSON IDENTIFIED THEREIN.
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and other similar services in connection with any
such Subsequent Transaction as may be requested from time to time by the board
of directors of the applicable Client.
2. Term. The term of this Agreement shall continue until the
earlier to occur of (i) the tenth anniversary of the date hereof or (ii) the
date on which Hicks, Muse, Xxxx & Xxxxx Incorporated ("HMTF") or its successors
and their respective affiliates (including, without limitation, any equity fund
sponsored by HMTF or its successors) shall cease to own beneficially, directly
or indirectly, any securities of any of the Clients or their respective
successors.
3. Compensation.
(a) As compensation for HMCo's services as financial
advisor to the Clients in connection with the Transaction, the Clients hereby
irrevocably agree, jointly and severally, to pay to HMCo a cash fee equal to
1.5% of the combined enterprise value (which shall include all equity, assumed
debt, if not otherwise refinanced, and all additional debt incurred or
refinanced in connection with the Transaction) of Holdings to be paid at the
closing of the Merger, which will occur substantially simultaneously with the
execution of this Agreement. The parties hereto agree that the compensation
due pursuant to this Section 3(a) shall be allocated among the segments of the
financing for the Transaction in proportion to the dollar amount of each such
segment.
(b) In connection with any Subsequent Transaction
consummated during the term of this Agreement, the applicable Client shall, and
the other Clients shall cause such Client to, pay to HMCo, at the closing of
any such Subsequent Transaction, a cash fee equal to 1.5% of the Transaction
Value of such Subsequent Transaction. As used herein, the term "Transaction
Value" means the total value of the Subsequent Transaction, including, without
limitation, the aggregate amount of the funds required to complete the
Subsequent Transaction (excluding any fees payable to this Section 3(b)),
including, without limitation, the amount of any indebtedness, preferred stock
or similar items assumed (or remaining outstanding).
4. Reimbursement of Expenses. In addition to the compensation to
be paid pursuant to Section 3 hereof, the Clients agree, jointly and severally,
to reimburse HMCo, promptly following demand therefor, together with invoices
or reasonably detailed descriptions thereof, for all reasonable disbursements
and out-of-pocket expenses (including, without limitation, fees and
disbursements of counsel) incurred by HMCo (i) as financial advisor to the
Clients in connection with the Transaction or (ii) in connection with the
performance by it of the services contemplated by Section 1(b) hereof.
5. Indemnification. The Clients jointly and severally shall
indemnify and hold harmless each of HMCo, its affiliates and their respective
directors, officers, controlling persons (within the meaning of Section 15 of
the Securities Act of 1933, as amended, or Section 20(a) of the Securities
Exchange Act of 1934, as amended), if any, agents and employees (HMCo, its
affiliates and such other specified persons being collectively referred to as
"Indemnified Persons" and individually as an "Indemnified Person") from and
against any and all claims, liabilities, losses, damages and expenses incurred
by an Indemnified Person (including, without limitation, those arising out of
an Indemnified Person's negligence and reasonable fees and disbursements of the
respective Indemnified Person's counsel) which (A) are related to or arise out
of (i) actions taken or omitted to be taken (including, without limitation, any
untrue statements made or any statements
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omitted to be made) by any of the Clients or (ii) actions taken or omitted to
be taken by an Indemnified Person with any Client's consent or in conformity
with any Client's instructions or any Client's actions or omissions or (B) are
otherwise related to or arise out of HMCo's engagement, and will reimburse each
Indemnified Person for all costs and expenses, including, without limitation,
fees and disbursements of any Indemnified Person's counsel, as they are
incurred, in connection with investigating, preparing for, defending or
appealing any action, formal or informal claim, investigation, inquiry or other
proceeding, whether or not in connection with pending or threatened litigation,
caused by or arising out of or in connection with HMCo's acting pursuant to
HMCo's engagement, whether or not any Indemnified Person is named as a party
thereto and whether or not any liability results therefrom. None of the
Clients will, however, be responsible for any claims, liabilities, losses,
damages or expenses pursuant to clause (B) of the preceding sentence that have
resulted primarily from HMCo's bad faith, gross negligence or willful
misconduct. The Clients also agree that neither HMCo nor any other Indemnified
Person shall have any liability to any Client for or in connection with such
engagement except for any such liability for claims, liabilities, losses,
damages or expenses incurred by any Client that have resulted primarily from
HMCo's bad faith, gross negligence or willful misconduct. The Clients further
agree that none of them will, without the prior written consent of HMCo, settle
or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not any Indemnified Person
is an actual or potential party to such claim, action, suit or proceeding)
unless such settlement, compromise or consent includes an unconditional release
of HMCo and each other Indemnified Person hereunder from all liability arising
out of such claim, action, suit or proceeding. EACH CLIENT HEREBY ACKNOWLEDGES
THAT THE FOREGOING INDEMNITY SHALL BE APPLICABLE TO ALL CLAIMS, LIABILITIES,
LOSSES, DAMAGES OR EXPENSES THAT HAVE RESULTED FROM OR ARE ALLEGED TO HAVE
RESULTED FROM THE ACTIVE OR PASSIVE OR THE SOLE, JOINT OR CONCURRENT ORDINARY
NEGLIGENCE OF HMCO OR ANY OTHER INDEMNIFIED PERSON.
The foregoing right to indemnity shall be in addition to any rights
that HMCo and/or any other Indemnified Person may have at common law or
otherwise and shall remain in full force and effect following the completion or
any termination of the engagement. Each Client hereby consents to personal
jurisdiction and to service and venue in any court in which any claim which is
subject to this Agreement is brought against HMCo or any other Indemnified
Person.
It is understood that, in connection with HMCo's engagement, HMCo may
also be engaged to act for a Client or Clients in one or more additional
capacities, and that the terms of this engagement or any such additional
engagements may be embodied in one or more separate written agreements. This
indemnification shall apply to the engagement specified in the first paragraph
hereof as well as to any such additional engagement(s) (whether written or
oral) and any modification of said engagement or such additional engagement(s)
and shall remain in full force and effect following the completion or
termination of said engagement or such additional engagements.
Each of the Clients further understands and agrees that if HMCo is
asked to furnish any Client a financial opinion letter or act for any Client in
any other formal capacity, such further action may be subject to a separate
agreement containing provisions and terms to be mutually agreed upon.
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6. Confidential Information. In connection with the performance
of the services hereunder, HMCo agrees not to divulge any confidential
information, secret processes or trade secrets disclosed by any Client or any
of its subsidiaries to it solely in its capacity as a financial advisor, unless
such Client consents to the divulging thereof or such information, secret
processes or trade secrets are publicly available or otherwise available to
HMCo without restriction or breach of any confidentiality agreement or unless
required by any governmental authority or in response to any valid legal
process.
7. Governing Law. This Agreement shall be construed,
interpreted, and enforced in accordance with the laws of the State of Texas,
excluding any choice-of-law provisions thereof.
8. Assignment. This Agreement and all provisions contained
herein shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns; provided, however, neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned (other than with respect to the rights and obligations of HMCo,
which may be assigned to any one or more of its principals or affiliates) by
any of the parties without the prior written consent of the other parties.
9. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, and the signature of any
party to any counterpart shall be deemed a signature to, and may be appended
to, any other counterpart.
10. Other Understandings. All discussions, understandings and
agreements heretofore made between any of the parties hereto with respect to
the subject matter hereof are merged in this Agreement, which alone fully and
completely expresses the Agreement of the parties hereto.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
XXXXX, MUSE & CO. PARTNERS, L.P.
By: HM PARTNERS INC.,
its General Partner
By:
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Name:
Title:
LIN TELEVISION CORPORATION
By:
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Name:
Title:
LIN HOLDINGS CORP.
By:
---------------------------------
Name:
Title:
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RANGER EQUITY HOLDINGS CORPORATION
By:
---------------------------------
Name:
Title:
RANGER EQUITY HOLDINGS A CORP.
By:
---------------------------------
Name:
Title:
RANGER EQUITY HOLDINGS B CORP.
By:
---------------------------------
Name:
Title:
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