MASTER RICHMOND STATION GROUP AGREEMENT
THIS MASTER RICHMOND STATION GROUP AGREEMENT is made
and entered into as of the 17th day of December, 1996, by and among SFX
BROADCASTING, INC., a Delaware corporation ("SFX"), ABS COMMUNICATIONS
INCORPORATED, a Virginia corporation ("ABS"), XXXXXXX X. XXXXX ("KAB"), EBF
INC., a Delaware corporation ("EBFI"), EBF PARTNERS, a New York partnership
("EBFP" and, together with ABS, KAB and EBFI, the "Current Partners"), ABS
COMMUNICATIONS, L.L.C., a Virginia limited liability company (the "LLC"), ABS
RICHMOND PARTNERS, L.P., a Virginia limited partnership ("RICH-I"), ABS
RICHMOND PARTNERS II, L.P., a Virginia limited partnership ("RICH-II" and,
together with RICH-I, the "Partnerships"), ABS RICHMOND TOWERS, L.P., a
Virginia limited partnership and J. XXXXX XXXXXX for certain limited purposes
specified herein.
W I T N E S S E T H:
WHEREAS, the Parties have entered into that certain
Letter of Intent, dated August 9, 1996 (the "Letter of Intent") which provides,
in part, the Parties' intention for SFX (i) to acquire (A) substantially all of
the Current Partners' partnership interests in the Partnerships and (B) the
Benchmark Assets through the LLC as well as the financing of the acquisition of
such assets by the LLC, (ii) to finance and assume certain liabilities of KAB
and ABS under the Benchmark Agreements, including the repayment of all
outstanding loans under the Signet Loan Agreement, (iii) to indemnify KAB and
ABS for any losses which may be incurred by KAB and ABS under the Benchmark
Agreements and (iv) to enter into such other arrangements and transactions with
the other Parties which are more particularly described in the Letter of Intent
(collectively, the "Contemplated Transactions"); and
WHEREAS, the Parties understand that the
Contemplated Transactions must occur in several stages and accordingly desire
to enter into this Agreement to identify the timing and execution of the
various agreements which must be entered into to consummate the Contemplated
Transactions;
NOW, THEREFORE, in consideration of the mutual
representations, warranties, covenants and agreements, and upon the terms and
subject to the conditions contained herein, and intending to be fully bound
hereby, the Parties hereby agree as follows:
SECTION 1. Certain Definitions. When used in this
Agreement, the following words or phrases shall have the following meanings:
"Agreement" shall mean this Master Richmond Station
Group Agreement, as it may be amended, supplemented or otherwise modified from
time to time in accordance with the terms hereof.
"Amended and Restated Operating Agreement" shall
mean the Amended and Restated Operating Agreement substantially in the form
attached hereto as Exhibit A.
"Benchmark Agreements" shall mean all of the
agreements set forth on Schedule 1 attached hereto.
"Benchmark Asset Purchase Agreement" shall mean that
certain Asset Purchase Agreement, dated as of May 31, 1996 by and among
Benchmark Radio Acquisition Fund III Limited Partnership, WVGO License Limited
Partnership, WDCK License Limited Partnership and ABS Communications
Incorporated.
"Benchmark Assets" shall mean all of the assets to
be acquired by the LLC pursuant to the Benchmark Agreements.
"Benchmark Stations" shall mean collectively, radio
station WLEE(FM) in Williamsburg, Virginia and radio station
WBZU(FM) in Richmond Virginia.
"Xxxxx Employment Agreement" shall mean the
Employment Agreement substantially in the form attached hereto as Exhibit B.
"Xxxxx Non-Competition Agreement" shall mean the
Non-Competition Agreement substantially in the form attached hereto as Exhibit
C.
"Closing" shall mean, as applicable, the Closing as
defined under the KAB Contribution Agreement or the Purchase
and Sale Agreement.
"Collateral Assignment of Contracts" shall mean the
Collateral Assignment of Contracts substantially in the form attached hereto as
Exhibit O.
"Xxxxxx Employment Agreement" shall mean the
Employment Agreement substantially in the form attached hereto as Exhibit D.
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"Xxxxxx Non-Competition Agreement" shall mean the
Non-Competition Agreement substantially in the form attached hereto as Exhibit
E.
"Deed of Trust" shall mean the Deed of Trust
substantially in the form attached hereto as Exhibit N.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
"Escrow Agent" shall mean Signet Trust Company.
"Escrow Agreement" shall mean the Escrow Agreement
substantially in the form attached hereto as Exhibit F.
"KAB Contribution Agreement" shall mean the KAB
Contribution Agreement substantially in the form attached hereto as Exhibit G.
"Letter of Intent" shall mean that certain letter of
intent dated August 9, 1996 by and among SFX Broadcasting, Inc., KAB, ABS, the
LLC and each of the Partnerships.
"Liberty Entities" shall mean Liberty Acquisition
Subsidiary Corporation and Liberty Broadcasting of Maryland
II, Incorporated.
"Party" or "Parties" shall mean each of the parties,
either individually or collectively, as applicable, signatory
to this Agreement.
"Purchase and Sale Agreement" shall mean the
Purchase and Sale Agreement substantially in the form attached hereto as
Exhibit I.
"Put and Call Agreement" shall mean the Put and Call
Agreement substantially in the form attached hereto as Exhibit J.
"Related Agreements" shall mean each of the
agreements attached to this Agreement as an Exhibit.
"Rich Stations" shall mean, collectively, radio
station WKHK-FM in Colonial Heights, Virginia and radio station WVGO-FM in
Crewe, Virginia.
"Security Agreement" shall mean the Security
Agreement substantially in the form attached hereto as Exhibit H.
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"SFX Contribution Agreement" shall mean the SFX
Contribution Agreement substantially in the form attached hereto as Exhibit K.
"SFX Convertible Note Agreement" shall mean the
Convertible Note Agreement substantially in the form attached hereto as Exhibit
L.
"Signet Loan Agreement" shall mean that certain
Promissory Note, dated as of May 28, 1996, by and among Xxxxx Xxxxx, KAB and
Signet Bank as assigned to the LLC pursuant to that certain Assignment dated
May 28, 1996.
"Tower Lease" shall mean the Tower Lease
substantially in the form attached hereto as Exhibit M.
SECTION 2. Order of Transactions.
(a) The applicable Parties shall have entered into
the following agreements and the following actions shall have taken place
simultaneously with the execution of this Agreement and the consummation of the
transactions contemplated by the Benchmark Agreements:
(i) SFX and the LLC shall have entered into
the SFX Convertible Note Agreement, the Security Agreement, the Deed of Trust
and the Collateral Assignment of Contracts and any and all other agreements or
documents contemplated thereunder;
(ii) SFX, the Current Partners, the LLC and the
Escrow Agent shall have entered into the Escrow Agreement;
(iii) All amounts outstanding under the Signet
Loan Agreement shall have been repaid, any and all security interests granted
to Signet Bank pursuant to the Signet Loan Agreement shall have been
terminated, extinguished and released and the Signet Loan Agreement shall have
been terminated;
(iv) KAB and the LLC shall have entered into,
and consummated the transactions under, the KAB Contribution
Agreement;
(v) The Current Partners and the LLC shall
have entered into the Purchase and Sale Agreement; and
(vi) The Liberty Entities, SFX and the LLC
shall have entered into the SFX Contribution Agreement.
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(b) The applicable Parties shall have executed each
of the following agreements contemporaneously herewith, which agreements shall
become effective automatically upon the consummation of the transactions
contemplated by the Purchase and Sale Agreement without any further action by
any of the applicable Parties thereto (other than on the date of its
effectiveness, the applicable Parties completing the appropriate blanks and
dates to reflect its effectiveness); provided, in the event the transactions
contemplated by the Purchase and Sale Agreement are not consummated, each of
the agreements listed below shall be null and void and of no force and effect:
The Amended and Restated Operating Agreement, the Xxxxx Employment Agreement,
the Xxxxx Non-Competition Agreement, the Xxxxxx Employment Agreement, the
Xxxxxx Non- Competition Agreement and the Put and Call Agreement.
(c) Contemporaneously herewith, ABS Richmond
Towers, L.P. ("ABS Tower") and RICH-I shall have entered into the Tower Lease.
ABS Tower and RICH-I hereby agree that until the closing of the Purchase and
Sale Agreement, neither ABS Tower nor RICH-I shall amend, modify, terminate or
revise in any manner the Tower Lease without the prior written consent of SFX.
SECTION 3. Payment of Expenses. SFX hereby agrees
to lend to the LLC sufficient funds under the SFX Convertible Note Agreement so
that the LLC may:
(a) reimburse or pay all reasonable costs and
expenses (including, without limitation, reasonable attorneys' fees and any
reasonable expenses relating to the provisions of Article V of the Purchase and
Sale Agreement) incurred by the Current Partners which are directly related to
the negotiation, preparation and closing of this Agreement, the Benchmark
Agreements, the Purchase and Sale Agreement and the other agreements
contemplated under this Agreement and the Contemplated Transactions and such
other reasonable costs and expenses incurred by KAB to date in connection with
the solicitation and achievement of finding a financing source to consummate
the Contemplated Transactions;
(b) pay all fees and expenses of Interstate/Xxxxxxx
Xxxx Corporation ("Interstate") when due as provided in that certain Placement
Agency Agreement, dated April 17, 1996 as modified by the partners thereto as
reflected in Annex A to the Letter of Intent between ABS and Interstate.
SECTION 4. [INTENTIONALLY OMITTED].
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SECTION 5. Certain Obligations of SFX. In addition
to the obligations of SFX contained in the agreements contemplated in this
Master Agreement, SFX hereby:
(a) agrees to cause to be performed, at its sole
expense, promptly after the execution of this Master Agreement, Phase I
environmental studies of the real property and transmitting equipment used by
the Partnerships in connection with the operation of the Rich Stations; and
(b) guaranties the obligations of the Liberty
Entities (as defined in the SFX Contribution Agreement) (and their assignees,
if any) under the SFX Contribution Agreement (in the event that such
obligations have not already been transferred to SFX by the Liberty Entities'
valid assignment to SFX of all of their respective rights and obligations
thereunder).
SECTION 6. Further Assurances. Each Party hereby
agrees and covenants to the other Parties that:
(a) such Party will use his or its commercially
reasonable best efforts to cause the completion of each of the Contemplated
Transactions as expeditiously as practical and in connection therewith, such
Party will avoid taking any actions that would prevent or delay the
consummation of the Contemplated Transactions;
(b) such Party will deal with the other Parties in
good faith in completing the Contemplated Transactions; and
(c) such Party will execute all such documents
which may be necessary or appropriate to consummate the Contemplated
Transactions as expeditiously as practical and does hereby consent to the
consummation of the Contemplated Transactions and waive any rights that such
Party has under any agreements other than under this Agreement and the Related
Agreements that would preclude the consummation of the Contemplated
Transactions.
SECTION 7. Indemnification.
(a) Current Partners' Indemnities. Each Current
Partner hereby agrees, severally and not jointly (based on such Current
Partner's respective percentage interests in the Partnerships), to indemnify,
defend and hold the LLC, SFX and each of their affiliates (collectively, the
"SFX Parties") harmless with respect to any and all demands, claims, actions,
suits, proceedings, assessments, judgments, costs, losses,
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damages, liabilities and expenses (including, without limitation, reasonable
attorneys' fees) (collectively, the "Losses") asserted against, resulting from,
imposed upon or incurred by the LLC or SFX or its assignees directly or
indirectly relating to or arising out of the breach of any of the
representations or warranties or failure by such Current Partner to perform any
covenants or agreements of such Current Partner set forth in this Agreement or
the Related Agreements.
(b) SFX's Indemnities. SFX hereby agrees to
indemnify, defend and hold the Current Partners and their affiliates harmless
with respect to any and all Losses asserted against, resulting from, imposed
upon or incurred by the Current Partners directly or indirectly relating to or
arising out of the breach of any of the representations, warranties, covenants
or agreements of SFX set forth in this Agreement or any of the Related
Agreements.
(c) Limitation on Indemnity.
(i) The SFX Parties shall be entitled to
indemnification under this Agreement only to the extent that the aggregate sum
of the SFX Parties' Losses under this Agreement and the Related Agreements for
which the Current Partners are responsible hereunder individually or in the
aggregate exceeds One Hundred Fifty Thousand Dollars ($150,000) (the "Threshold
Amount")(and only to the extent of such excess). The aggregate indemnification
liability for each of the Current Partners under this Agreement shall be
limited to an amount equal to such Current Partner's allocable portion of the
Purchase Price (as defined in the Purchase and Sale Agreement) paid to such
Current Partner pursuant to Section 3.2 of the Purchase and Sale Agreement.
Notwithstanding anything to the contrary contained herein, the SFX Parties
shall not be entitled to any indemnification under this Agreement relating to
any matter disclosed in the Environmental Report (as defined in the Purchase
and Sale Agreement).
(ii) The Current Partners shall be entitled to
indemnification under this Agreement only to the extent that the aggregate sum
of the Current Partners' Losses under this Agreement and the Related Agreements
exceeds the Threshold Amount (and only to the extent of such excess). The
indemnification liability of SFX under this Agreement shall be limited to an
amount equal to the total Purchase Price paid to the Current Partners pursuant
to Section 3.2 of the Purchase and Sale Agreement which amount will be offset
by such amounts received by the Current Partners under the Escrow Agreement.
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(d) Survival of Representations and Warranties.
The Current Partners and the SFX Parties shall have the right to bring an
action for indemnification for a period of eighteen (18) months following the
Conversion Date (as defined in the SFX Convertible Note Agreement); upon the
expiration of such period, such right shall lapse and be of no further force or
effect. Notwithstanding the foregoing, the representations and warranties made
in the KAB Contribution Agreement, the Purchase and Sale Agreement and the SFX
Contribution Agreement with respect to (A) (i) title to the partnership
interests being sold or contributed thereunder and (ii) taxes shall survive the
Closing until the expiration of any applicable statutes of limitations
including any extensions thereof and shall thereupon expire together with any
right to indemnification with respect thereto and (B) environmental matters,
three (3) years from the Conversion Date.
(e) Procedures.
(i) Any party seeking indemnification under
this Section 7 (the "Indemnified Party") shall give the party from whom
indemnification is being sought (the "Indemnifying Party") notice of any matter
which such Indemnified Party has determined has given or could give rise to a
right of indemnification under this Agreement, within 30 days of such
determination, stating the amount of the Loss, if known, and method of
computation thereof. The obligations of an Indemnifying Party under this
Section 7 with respect to Losses arising from claims of any third party which
are subject to the indemnification provided for in this Section 7 ("Third Party
Claims") shall be governed by and contingent upon the following additional
terms and conditions: Within 30 days after receipt by an Indemnified Party of
notice of (i) any Third Party Claim or (ii) the commencement of any action or
proceeding which may entitle such Indemnified Party to indemnification under
this Section 7, such Indemnified Party shall give the Indemnifying Party
written notice of such claim or the commencement of such action or proceeding
and shall permit the Indemnifying Party to assume the defense of any such claim
or any litigation resulting from such claim. The failure to give the
Indemnifying Party timely notice under this Section 7 shall not preclude the
Indemnified Party from seeking indemnification from the Indemnifying Party
unless the Indemnifying Party has been materially prejudiced by such failure.
(ii) If the Indemnifying Party assumes the
defense of any such claim or litigation resulting therefrom
with counsel reasonably acceptable to the Indemnified Party,
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the obligations of the Indemnifying Party as to such claim shall be limited to
assuming, in good faith, the defense of such claim or litigation and to holding
the Indemnified Party harmless from and against any losses, damages and
liabilities caused by or arising out of any settlement approved by the
Indemnifying Party or any judgment in connection with such claim or litigation
resulting therefrom; provided, however, that the Indemnified Party may
participate, at its expense, in the defense of such claim or litigation
provided that the Indemnifying Party shall direct and control the defense of
such claim or litigation. The Indemnified Party shall cooperate and make
available all books and records reasonably necessary and useful in connection
with the defense. Without the written consent of the Indemnified Party, the
Indemnifying Party shall not, in the defense of such claim or any litigation
resulting therefrom, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or the plaintiff to the Indemnified Party of a release from all
liability in respect of such claim or litigation. No such claim or litigation
resulting therefrom which is being defended in good faith by the Indemnifying
Party shall be settled or compromised without the written consent of the
Indemnifying Party.
(iii) If the Indemnifying Party shall not,
within 30 days of receipt of notice of any such claim or litigation, give
notice to the Indemnified Party of its intention to assume the defense of any
such claim or litigation resulting therefrom, the Indemnified Party may, but
shall have no obligation to, defend against such claim or litigation, acting in
good faith and in such manner as it may deem appropriate, and the Indemnified
Party may compromise or settle such claim or litigation without the
Indemnifying Party's consent. The Indemnifying Party shall promptly pay any
such settlement of such claim or litigation and shall also promptly reimburse
the Indemnified Party for the amount of all reasonable expenses, legal or
otherwise, incurred by the Indemnified Party in connection with the defense
against or settlement of such claim or litigation. In addition, the
Indemnifying Party shall promptly pay the amount of any judgment rendered with
respect to such claim or in such litigation.
(f) Sole Remedy. The indemnification provided in
this Section 7 shall be the sole and exclusive post-Closing remedy available to
any party with respect to any claims relating to this Agreement, the Purchase
and Sale Agreement, the KAB Contribution Agreement, the SFX Contribution
Agreement
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and the SFX Convertible Note Agreement. In furtherance of the foregoing, the
parties (on behalf of themselves and their respective affiliates, directors,
officers, employees, agents, successors and assigns) hereby waive from and
after the date of the Closing, to the fullest extent permitted under applicable
law, any and all rights, claims and causes of action they may have against any
other party relating to the subject matter of this Agreement or any of the
other agreements referred to in the preceding sentence arising under or based
upon any federal, state, local or foreign law, rule or regulation (including,
without limitation, any law, rule or regulation relating to environmental
matters).
SECTION 8. Rich LMA. The parties hereto contemplate
that there may be entered into a Local Marketing Agreement ("Rich LMA") between
the Partnerships and the LLC with respect to the Rich Stations. The parties
hereby acknowledge and agree that the Rich LMA shall be in a form satisfactory
to SFX, the LLC and the Partnerships.
SECTION 9. Consequential Damages. Notwithstanding
any provision contained herein, in the event that an arbitrator under the
Escrow Agreement determines that any Party shall have acted in bad faith in
connection with any of the Contemplated Transactions, any other Party who has
incurred a Loss may seek as one of its damages consequential damages.
SECTION 10. Restriction on Consents, Amendments,
Waivers and Modifications; Opinions. The LLC hereby agrees not to amend, waive
or modify any term or condition set forth in any Related Agreement or in any
other agreement contemplated hereby to which the LLC is a Party (or consent to
any change requested thereunder) without the prior written consent of SFX. In
addition, the LLC hereby agrees that any and all forms of opinions to be
delivered to the LLC under any of the Related Agreements shall be in a form
reasonably satisfactory to SFX.
SECTION 11. Restriction on Sale of Stations. While
the Purchase and Sale Agreement is in effect, each of (i) ABS, KAB and the LLC
(with respect to the Benchmark Stations) and (ii) EBFI, EBFP, RICH-I and
RICH-II (with respect to the Rich Stations) hereby agree that such Party shall
not sell, transfer or otherwise encumber any of the Benchmark Stations or the
Rich Stations, as applicable, without the prior written approval of SFX, other
than as part of the Contemplated Transactions.
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SECTION 12. Amendment. This Agreement may only be
amended with the written consent of all of the Parties.
SECTION 13. Governing Law. The construction and
performance of this Agreement shall be governed by the laws of the Commonwealth
of Virginia without giving effect to the choice of law provisions thereof.
SECTION 14. Notices. Any notice, demand or request
required or permitted to be given under the provisions of this Agreement shall
be in writing and shall be deemed to have been duly delivered and received on
the date of personal delivery or on the date of receipt, if mailed by
registered or certified mail, postage prepaid and return receipt requested, or
on the date of a stamped receipt, if sent by an overnight delivery service, and
shall be addressed to the following addresses, or to such other address as any
Party may request:
To KAB: Xxxxxxx X. Xxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
To ABS: ABS Communications Incorporated
000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
To the LLC: ABS Communications, L.L.C.
000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
To EBFI and EBFP: x/x Xxxxxxx Xxxxxxx, XXX
Xxxxxxxxx & Xx. xx Xxxxxxxx, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
To SFX: SFX Broadcasting, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
To Partnerships: x/x Xxxxxxx Xxxxxxx, XXX
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
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Copies of all notices to KAB, ABS, the LLC, EBFI, EBFP and the Partnerships
shall also be sent to:
XxXxxxx Xxxx
000 Xxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx, Esq.
SECTION 15. Schedules and Exhibits. This Agreement
and the Related Agreements contain various schedules and exhibits. The Parties
agree that disclosure in any one schedule or exhibit shall constitute
disclosure for all purposes under this Agreement and the Related Agreements;
provided, that the disclosure is detailed enough to indicate its applicability
to such other schedule or exhibit.
SECTION 16. Counterparts. This Agreement may be
executed in one or more counterparts, each of which will be deemed an original
and all of which together shall constitute one and the same instrument.
SECTION 17. Guarantee to Provide Purchase Price.
In the event that all of the conditions precedent set forth in Article XIII of
the Purchase and Sale Agreement have been satisfied, SFX hereby irrevocably and
unconditionally guarantees to the Current Partners that SFX shall pay or cause
to be paid the Purchase Price to the Current Partners. The obligations of SFX
under this Section 17 are absolute and direct, and constitute primary
obligations of SFX.
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IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date and year first above written.
SFX BROADCASTING, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
ABS COMMUNICATIONS INCORPORATED
By: /s/ Xxx X. Xxxxx
-------------------------
Name: Xxx X. Xxxxx
Title:
XXXXXXX X. XXXXX
/s/ Xxx X. Xxxxx
----------------------------
EBF INC.
By: /s/ Xxxxxxx Xxxxxxx, III
-------------------------
Name: Xxxxxxx Xxxxxxx, III
Title: President
EBF PARTNERS
By: /s/ Xxxxxxx Xxxxxxx, III
-------------------------
Partner Xxxxxxx Xxxxxxx, III
ABS COMMUNICATIONS, L.L.C.
By: /s/ Xxx X. Xxxxx
-------------------------
Name: Xxx X. Xxxxx
Title:
ABS RICHMOND PARTNERS, L.P.
By: ABS COMMUNICATIONS
INCORPORATED,
its General Partner
By: /s/ Xxx X. Xxxxx
-------------------------
Name: Xxx X. Xxxxx
Title:
ABS RICHMOND PARTNERS II, L.P.
By: ABS COMMUNICATIONS
INCORPORATED,
its General Partner
By: /s/ Xxx X. Xxxxx
-------------------------
Name: Xxx X. Xxxxx
Title:
J. Xxxxx Xxxxxx is executing
this Agreement solely to
evidence his rights and
obligations to enter into the
Xxxxxx Employment Agreement
and the Xxxxxx Non-Competition
Agreement as of the closing
under the Purchase and Sale
Agreement:
/s/ J. XXXXX XXXXXX
-------------------------------
J. XXXXX XXXXXX
ABS RICHMOND TOWERS, L.P.
By: ABS Communications, Inc., its
-------------------------
General Partner
By: /s/ Xxx X. Xxxxx
-------------------------
Name: Xxx X. Xxxxx
Title:
