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EXHIBIT 10.13
FINANCING ADVISORY AGREEMENT
This Agreement is made effective as of the 30th day of October, 1996, by
and between Investcorp International, Inc., a Delaware corporation ("III") and
CSK Auto, Inc., a Delaware corporation ("CSK Auto").
WHEREAS, pursuant to an Stock Purchase Agreement dated as of September
29, 1996, as amended, by and between the parties listed on the attached
schedule 1 (the "Purchasers") and the Carmel Trust, the Purchasers shall
purchase fifty-one percent of the outstanding stock of CSK Group, Ltd., the
parent of CSK Auto;
WHEREAS, CSK Auto intends to arrange borrowing facilities with one or
more financial institutions unaffiliated with III in the aggregate amount of
approximately $315 million (the "Financing");
WHEREAS, III and its officers, employees, agents and affiliates are
experienced in the field of obtaining debt financing and are willing to act as
a financial advisor to CSK Auto; and
WHEREAS, CSK Auto is desirous to avail itself of the assistance and
expertise of III in arranging the Financing;
NOW, THEREFORE, the parties do hereby agree as follows:
1. Services of III. III shall assist CSK Auto in arranging the
Financing. In connection therewith, III may, solely in its discretion and on
behalf of CSK Auto:
(a) seek out financial institutions that may provide the
Financing;
(b) enter into negotiations with banks and other financial
institutions regarding the terms and conditions upon which the Financing
is to be provided;
(c) advise, conduct and participate in the negotiation and
drafting of any agreements, contracts, or other documents relating to
the placement of the Financing; and
(d) take all such other actions as it may deem necessary to
arrange for the Financing.
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2. Fees. In consideration of the services contemplated by Section 1
hereof, CSK Auto shall pay to III a fee in the amount of $3,150,000.00 (1
percent of the Financing), payable on the closing of the Purchase.
3. Reimbursement. CSK Auto shall pay directly any commitment fees,
arrangement fees, or other actual out-of-pocket expenses incurred in connection
with the performance of III's services under this Agreement, including, but not
limited to, fees and disbursements of III's legal counsel.
4. Cooperation and Information. CSK Auto shall cooperate with III
in the performance of its obligations hereunder and shall furnish III with such
information as III may request (all such information so furnished hereinafter
referred to as the "Information"). CSK Auto recognizes and confirms that III:
(a) will use and rely primarily on the Information and on
information available from generally recognized public sources in
performing the services contemplated by this Agreement without having
independently verified the same;
(b) does not assume responsibility for the accuracy or
completeness of the Information; and
(c) will not make an appraisal of any of the assets of CSK Auto
or of CSK Group, Ltd.
All information so furnished to III will be kept confidential by III, except
such information as is in the public domain or as CSK Auto agrees may be
disclosed or as III is required by law to disclose; provided, however, that III
may provide such Information as it deems necessary or appropriate to financial
institutions in connection with obtaining, negotiating or arranging the
Financing in accordance with the terms of this Agreement.
5. Termination. Subject to the provisions of Paragraph 6 hereof,
which shall survive any termination of this Agreement, this Agreement shall
terminate if the Purchase is not consummated on or before January 31, 1997,
unless extended by the parties' mutual consent.
6. Indemnification. CSK Auto shall:
(a) indemnify III and hold it harmless against any losses,
claims, damages or liabilities to which III may become subject
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arising in any manner out of or in connection with the rendering of
services by III hereunder, unless it is finally judicially determined
that such losses, claims, damages or liabilities arose primarily out of
the gross negligence or bad faith of III; and
(b) reimburse III immediately for any legal or other expenses
reasonably incurred by it in connection with investigating, preparing to
defend or defending any lawsuits or other proceedings arising in any
manner out of or in connection with the rendering of services by III
hereunder; provided, however, that in the event a final judicial
determination is made to the effect specified in subparagraph 6(a)
above, III will remit to CSK Auto any amounts reimbursed under this
subparagraph 6(b). CSK Auto agrees that (i) the indemnification and
reimbursement commitments set forth in this paragraph shall apply
whether or not III is a formal party to any such lawsuits, claims or
other proceedings, (ii) III is entitled to retain separate counsel of
its choice at the expense of CSK Auto in connection with any of the
matters to which such commitments relate, and (iii) such commitments
shall extend upon the terms set forth in this paragraph to any
controlling person, director, officer, employee or agent of III;
provided, however, that to the extent that III retains separate counsel
in connection with any matters set forth in this subparagraph 6(b), such
counsel shall coordinate its efforts with counsel to CSK Auto.
7. Amendments. No amendment or waiver of any provision of this
Agreement, or consent to any departure by either party from any such provision,
shall be effective unless the same shall be in writing and signed by the
parties to this Agreement and then such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
8. Notices. All notices hereunder shall, in the absence of
receipted hand delivery, be deemed duly given when mailed, if the same shall be
sent by registered or certified mail, return receipt requested, and the mailing
date shall be deemed the date from which all time periods pertaining to a date
of notice shall run. Notices shall be addressed to the parties at the
following addresses:
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If to III, to:
Investcorp International, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxx
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
If to CSK Auto, to:
CSK Auto, Inc.
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: President
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
9. Entire Agreement. This Agreement shall constitute the entire
Agreement between the parties with respect to the subject matter hereof, and
shall supersede all previous oral and written (and all contemporaneous oral)
negotiations, commitments, agreements and understandings relating thereto.
10. Applicable Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of New York and shall inure to the
benefit of, and be binding upon, III and CSK Auto and their respective
successors and assigns.
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IN WITNESS WHEREOF, each of the parties has caused this Financing
Advisory Agreement to be executed and delivered by its duly authorized officer
or agent as set forth below.
INVESTCORP INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxx
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Name:
Title:
CSK AUTO, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: President
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