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EXHIBIT 10.6.2
FINANCIAL ADVISORY AGREEMENT
THIS FINANCIAL ADVISORY AGREEMENT (this "Agreement") is made and entered
into as of July 1, 1997, between Capstar Broadcasting Corporation (the
"Company"), a Delaware corporation, and ▇▇▇▇▇, Muse & Co. Partners, L.P., a
Texas limited partnership (together with its successors, "HMCo.").
WHEREAS, the Company has requested that HMCo. render financial
advisory, investment banking, and other similar services to the Company with
respect to any FUTURE proposals for a tender offer, acquisition, sale, merger,
exchange offer, recapitalization, restructuring, or other similar transaction
directly or indirectly involving the Company, or any of its respective
subsidiaries, excluding Capstar Broadcasting Partners, Inc. ("Capstar") and
Capstar's direct or indirect subsidiaries, and any other person or entity
(collectively, "Add-on Transactions").
NOW, THEREFORE, in consideration of the services rendered and to be
rendered by HMCo. to the Company, and to evidence the obligations of the
Company to HMCo. and the mutual covenants herein contained, the Company and
HMCo. hereby agree as follows:
1. Retention. The Company acknowledges that it has retained
HMCo. as the exclusive financial advisor in connection with any Add-on
Transactions that may be consummated during the term of this Agreement, and
that the Company will not retain any other person or entity to provide such
services in connection with any such Add-on Transaction without the prior
written consent of HMCo. HMCo. agrees that it shall provide such financial
advisory, investment banking, and other similar services in connection with any
such Add-on Transactions as may be requested from time to time by the board of
directors of the Company.
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 HMTF and its affiliates cease to own beneficially, directly or
indirectly, any securities of the Company or their successors.
3. Compensation. As compensation for HMCo.'s financial advisory,
investment banking, and other similar services rendered in connection with any
Add-on Transaction pursuant to Section I hereof, the Company shall pay to
HMCo., at the closing of any such Add-on Transaction, a cash fee in the amount
of 1.5% of the Transaction Value of such Add-on Transaction. As used herein,
the term "Transaction Value" means the total value of the Add-on Transaction,
including, without limitation, the aggregate amount of the funds required to
complete the Add-on Transaction (excluding any fees payable pursuant to this
Section 3) including 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 Company agrees 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 fees and disbursements of counsel) incurred by HMCo.
in connection, the performance by it of the services contemplated by Section 1
hereof.
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5. Indemnification. The Company 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 or Section 20(a) of the Securities Exchange Act of
1934), 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 resulting from the negligence of the Indemnified Person and
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 any untrue statements made or any statements omitted to be made) by
the Company or (ii) actions taken or omitted to be taken by an Indemnified
Person with the Company's consent or in conformity with the Company's
instructions or the Company'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 fees 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 the engagement, whether or not any Indemnified
Person is named as a party thereto and whether or not any liability results
therefrom. The Company will not 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 Company also agrees that neither HMCo.
nor any other Indemnified ▇▇▇▇▇▇ shall have any liability to the Company for or
in connection with such engagement except for any such liability for claims,
liabilities, losses, damages, or expenses incurred by the Company that have
resulted primarily from HMCo.'s bad faith, gross negligence or willful
misconduct. The Company further agrees that it will not 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. THE
COMPANY 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. The Company 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 the Company in one or more additional
capacities, and that the terms of this engagement
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or any such additional engagement 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.
The Company further understands that if HMCo. is asked to furnish the
Company a financial opinion letter or act for the Company in any other formal
capacity, such further action may be subject to a separate agreement containing
provisions and terms to be mutually 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 the Company to it
solely in its capacity as a financial advisor, unless the Company 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 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 Understanding. All discussions, understandings, and
agreements theretofore 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.
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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.
▇▇▇▇▇, MUSE & CO. PARTNERS, L.P.,
its General Partner
By: HM PARTNERS INC., its General Partner
By:
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Name:
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Title:
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CAPSTAR BROADCASTING CORPORATION
By:
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Name:
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Title:
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