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EXHIBIT 10.3
MONITORING AND OVERSIGHT AGREEMENT
THIS MONITORING AND OVERSIGHT 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
▇▇▇▇▇, Muse & Co. Partners, L.P., a Texas limited partnership (together with
its successors, "HMCo").
1. Retention. The Clients hereby acknowledge that they have
retained HMCo to, and HMCo acknowledges that, subject to reasonable advance
notice in order to accommodate scheduling, HMCo will, provide financial
oversight and monitoring services to the Clients as requested by the board of
directors of REH during the term of this Agreement.
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, ▇▇▇▇ & ▇▇▇▇▇ 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 to the Clients
under this Agreement, the Clients hereby irrevocably agree, jointly and
severally, to pay to HMCo an annual fee (the "Monitoring Fee") of $1,000,000
(the "Base Fee"), subject to adjustment pursuant to paragraphs (b) and (c)
below and prorated on a daily basis for any partial calendar year during the
term of this Agreement. The Monitoring Fee shall be payable in equal quarterly
installments on each January 1, April 1, July 1 and October 1 during the term
of this Agreement (each a "Payment Date"), beginning with the first Payment
Date following the date hereof. All payments shall be made by wire transfer of
immediately available funds to the account described on Exhibit A hereto (or
such other account as HMCo may hereafter designate in writing).
(b) On January 1 of each calendar year during the term of
this Agreement, the Monitoring Fee shall be adjusted to an amount equal to (i)
the budgeted consolidated annual EBITDA of Holdings and its subsidiaries for
the then current fiscal year, multiplied by (ii) 1.0% (the "Percentage");
provided, however, that in no event shall the annual Monitoring Fee be less
than the Base Fee.
NOTICE IS HEREBY GIVEN THAT THIS AGREEMENT CONTAINS INDEMNIFICATION PROVISIONS
IN PARAGRAPH 5 THAT APPLY TO CLAIMS, LIABILITIES, LOSSES, DAMAGE 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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(c) On each occasion that Holdings or any of its
subsidiaries shall acquire another entity or business during the term of this
Agreement, the annual Monitoring Fee for the calendar year in which such
acquisition occurs shall be adjusted prospectively (i.e., for periods
subsequent to such acquisition until the next adjustment pursuant to clause (b)
above), as of the closing of such acquisition, to an annual amount equal to (i)
the pro forma combined budgeted consolidated annual EBITDA of Holdings and its
subsidiaries for the entire then-current fiscal year of Holdings (including the
EBITDA of the acquired entity or business for such entire fiscal year, on a pro
forma basis), multiplied by (ii) the Percentage; provided, however, that in no
event shall the annual Monitoring Fee be less than the Base Fee.
(d) All past due payments in respect of the Monitoring
Fee shall bear interest at the lesser of the highest rate of interest which may
be charged under applicable law or the prime commercial lending rate per annum
of The Chase Manhattan Bank or its successors (which rate is a reference rate
and is not necessarily its lowest or best rate of interest actually charged to
any customer) (the "Prime Rate") as in effect from time to time, plus five
percent (5.0%), from the due date of such payment to and including the date on
which payment is made to HMCo in full, including such interest accrued thereon.
4. Reimbursement of Expenses. In addition to the compensation to
be paid pursuant to Section 3 hereof, the Clients agree, jointly and severally,
to pay or reimburse HMCo for all "Reimbursable Expenses," which shall consist
of (i) all reasonable disbursements and out-of-pocket expenses (including,
without limitation, costs of travel, postage, deliveries, communications, etc.)
incurred by HMCo or its affiliates for the account of any Client or in
connection with the performance by HMCo of the services contemplated by Section
1 hereof and (ii) the Clients' Pro Rata Share of Allocable Expenditures (as
defined in Exhibit B hereto). Promptly (but not more than 10 days) after
request by or notice from HMCo, the applicable Client shall pay HMCo, by wire
transfer of immediately available funds to the account described on Exhibit A
hereto (or such other account as HMCo may hereafter designate in writing), the
Reimbursable Expenses for which HMCo has provided such Client invoices or
reasonably detailed descriptions. All past due payments in respect of the
Reimbursable Expenses shall bear interest at the lesser of the highest rate of
interest which may be charged under applicable law or the Prime Rate plus 5.0%
from the Payment Date to and including the date on which such Reimbursable
Expenses plus accrued interest thereon are fully paid to HMCo.
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 any Indemnified Person (including 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 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
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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 neither 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 ANY 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 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
engagement(s) 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
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agreed upon.
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, understanding 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. All calculations of
the Monitoring Fee and Reimbursable Expenses shall be made by HMCo and, in the
absence of mathematical error, shall be final and conclusive.
[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 date and year first above written.
▇▇▇▇▇, 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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EXHIBIT A
Wire Transfer Instructions
Texas Commerce Bank
ABA #: ▇▇▇▇▇▇▇▇▇
Account E: 08805113824
Credit: ▇▇▇▇▇, Muse & Co. Partners
Reference: Payment of Monitoring Fees or Expenses by LIN
Television
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EXHIBIT B
PRO RATA SHARE OF ALLOCABLE EXPENDITURES AND RELATED DEFINITIONS
Pro Rata Share of Allocable Expenditures shall equal the product
obtained by multiplying (i) the sum of all Allocable Expenditures that have not
previously been paid or reimbursed to HMCo by the Clients and other
Participating Acquired Companies, by (ii) a fraction, the numerator of which
shall equal the total amount of Invested Capital (as from time to time
outstanding) that any Fund has invested in the Clients' respective securities
or instruments and the denominator of which shall equal the total amount of
Invested Capital (as from time to time outstanding) that any Fund has invested
in the securities or instruments of any and all Participating Acquired
Companies.
The capitalized terms used in the foregoing definitions have the
meanings set forth below:
Allocable Expenditures shall mean all variable, fixed, and other
costs, expenses, expenditures, charges or obligations (including, without
limitation, letters of credit, deposits, etc.) that are related to assets
utilized, services provided, or programs administered by HMCo or its affiliates
in connection with the performance by HMCo of financial oversight and
monitoring services on behalf of the Clients and other Participating Acquired
Companies, including without limitation corporate airplanes, charitable
contributions, retainers for lobbyists and other professionals, and premiums
and finance charges for director and officer insurance maintained for
representatives of HMCo or its affiliates.
Fund shall mean any one or more of the equity funds now or hereafter
sponsored by Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated or its successors,
including any LP Investment Entity (as defined in the limited partnership
agreement for any such equity fund) formed under or with respect to any such
equity fund.
Invested Capital shall mean the total amount of partner capital that a
Fund from time to time invests in the purchase of securities or instruments of
a Participating Acquired Company, less the total cash distributions that
constitute a return of such partner capital with proceeds from the disposition
of all or any part of such securities or instruments. For each period for
which the Pro Rata Share of Allocable Expenditures is being made, the
applicable Invested Capital shall equal the amount outstanding as of the end of
the respective period.
Participating Acquired Company shall mean any partnership, corporation,
trust, limited liability company, or other entity that is, for the period for
which the Pro Rata Share of Allocable Expenditures is being determined, a party
to a monitoring agreement or similar contract with HMCo or its affiliates and
is, as of the end of such period, designated by HMCo to bear a portion of such
allocable expenditures. HMCo may, in its sole and absolute discretion,
determine not to designate an entity as a Participating Acquired Company with
respect to such period. HMCo may make such determination of non-designation
for no reason or for any reason, including without limitation the respective
entity's bankruptcy or other temporary or permanent inability to pay fees or
expenses to HMCo or its affiliates.
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