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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
May 13, 1998
Date of Report
(Date of earliest event reported)
TBA ENTERTAINMENT CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 0-22582 62-1535897
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
</TABLE>
402 Heritage Plantation Way
Hickory Valley, Tennessee
(Address of principal executive offices)
38042
(Zip Code)
(901) 764-2300
(Registrant's telephone number, including area code)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On May 13, 1998, TBA Entertainment Corporation (the "Company") sold its
fifty-one percent (51%) interest in a group of affiliated entertainment entities
known as Avalon West Coast (collectively, the "Avalon West Coast Entities") to
SFX Entertainment, Inc. ("SFX"). The Avalon West Coast Entities include New
Avalon, Inc., a California corporation, TBA Media, Inc., a California
corporation, West Coast Amphitheater Corp., a California corporation, and Irvine
Meadows Amphitheater, a California general partnership. The sale of the
Company's interest in the Avalon West Coast Entities was consummated pursuant to
a Purchase Agreement between the Company and SFX.
Pursuant to the Purchase Agreement, the Company received $9,915,000 in
cash and reimbursement for approximately $300,000 of expenses. The Company also
received a license to continue to use the name "Avalon" in connection with the
future business operations of the Company's wholly-owned subsidiary, Avalon
Entertainment Group, Inc., a Tennessee corporation ("AEG"), and Warner/Avalon,
AEG's joint venture with Warner Custom Music Corp.
Concurrent with the closing of this transaction, the Company sold its
fifty-one percent (51%) interest in Eric/Chandler Ltd., Inc., a Texas
Corporation, to Robert E. Geddes, Thomas Miserendino and Brian F. Murphy
(collectively, the "Minority Shareholders") and acquired from the Minority
Shareholders the remaining forty-nine percent (49%) interest in Eric Chandler
Merchandising, Inc., a California corporation, not owned by the Company. In
addition, the Minority Shareholders resigned from all positions as directors,
employees, officers and consultants of the Company.
The foregoing description of the terms of the disposition does not
purport to be complete and is qualified in its entirety by reference to the
Purchase Agreement relating to the disposition, a copy of which is attached
hereto and incorporated herein by reference.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) EXHIBITS.
2.1 Purchase Agreement, dated as of May 13, 1998, among SFX Entertainment,
Inc., TBA Entertainment Corporation and AWC Acquisition Corp.
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Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
TBA ENTERTAINMENT CORPORATION
Date: May 15, 1998 By: /s/ Thomas J. Weaver III
------------------------------------------
Thomas J. Weaver III
Chief Executive Officer
SFX ENTERTAINMENT, INC.
By: /s/ Richard A. Liese
------------------------------------------
Name: Richard A. Liese
Title: Vice President
AWC ACQUISITION CORP.
By: /s/ Thomas J. Weaver III
------------------------------------------
Name: Thomas J. Weaver III
Title: Chief Executive Officer
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INDEX TO EXHIBITS
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Sequentially
Exhibit Numbered
Number Description of Document Page
- ------- ----------------------- ------------
<S> <C> <C>
2.1 Purchase Agreement, dated as of May 13, 1998, among SFX
Entertainment, Inc., TBA Entertainment Corporation and AWC Acquisition
Corp.
</TABLE>
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EXHIBIT 2.1
================================================================================
PURCHASE AGREEMENT
by and among
SFX ENTERTAINMENT, INC.,
TBA ENTERTAINMENT CORPORATION
and
AWC ACQUISITION CORP.
Dated as of May 13, 1998
================================================================================
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PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of May 13, 1998, by and among SFX
ENTERTAINMENT, INC. (the "Buyer"), a Delaware corporation, TBA ENTERTAINMENT
CORPORATION ("TBA"), a Delaware corporation, and AWC ACQUISITION CORP., a
Delaware corporation and wholly-owned subsidiary of TBA ("AWC" and, together
with TBA, the "Sellers").
W I T N E S S E T H:
WHEREAS, the Sellers are collectively the holders of (i) partnership
interests (the "Partnership Interests") representing in the aggregate a
fifty-one percent (51%) partnership interest in Irvine Meadows Amphitheater, a
California general partnership ("IMA"), and (ii) fifty-one percent (51%) of the
issued and outstanding capital stock (the "Stock") of each of New Avalon, Inc.,
a California corporation, TBA Media, Inc., a California corporation, and West
Coast Amphitheater Corp., a California corporation (each a "Subsidiary" and,
together with IMA, the "Companies"), as further set forth on Schedule 3.03
hereto;
WHEREAS, the Companies are engaged in the "at risk" music and concert
production and promotion businesses and certain of the Companies are developing
the Camarillo Creek Amphitheater (collectively, the "Businesses"); and
WHEREAS, the Buyer desires to acquire from the Sellers, and the Sellers
desire to sell to the Buyer, all of the issued and outstanding Partnership
Interests and all of the issued and outstanding Stock owned by the Sellers
(collectively, the "Interests"), on the terms and subject to the conditions set
forth herein (the "Acquisition").
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
For purposes of this Agreement, the terms set forth on Schedule 1.01
shall have the respective meanings set forth therein.
Section 1.02 Interpretation.
In this Agreement, (a) words used herein regardless of the gender
specifically used shall be deemed and construed to include any other gender,
masculine, feminine or neuter, as the context shall require, (b) all terms
defined in the singular shall have the same meanings when used in the plural and
vice versa, (c) words denoting natural persons shall include corporations,
partnerships and other entities and vice versa, unless the context otherwise
requires, and (d) all references to Articles, Sections, Exhibits and Schedules
refer to the Articles, Sections, Exhibits and Schedules of and to this
Agreement, except as otherwise specified herein to the contrary.
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ARTICLE II
PURCHASE AND SALE
Section 2.01 Sale and Purchase of the Stock and the Partnership
Interests.
On the Closing Date, the Sellers shall sell, transfer, convey and
assign to the Buyer, and the Buyer shall purchase from the Sellers, all of the
Interests, free and clear of all Liens.
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Section 2.02 Closing Matters.
(a) Closing. Subject to Section 10.01 hereof, the closing of
the transactions contemplated by Section 2.01 hereof (the "Closing") shall take
place at 10:00 a.m., New York time, on the business day which is five business
days after the fulfillment of the conditions set forth in Articles VII and VIII
hereof, at the offices of Rosenman & Colin LLP, 575 Madison Avenue, New York,
New York 10022, or at such other time or on such other date or at such other
place as the Buyer and the Sellers may agree. The date of the Closing is
referred to herein as the "Closing Date."
(b) Actions Simultaneous. All actions to be taken and all
documents to be executed and delivered by all parties at the Closing shall be
deemed to have been taken and executed and delivered simultaneously and no
actions shall be deemed to have been taken nor shall any documents be deemed to
have been executed and delivered until all actions have been taken and all
documents shall have been executed and delivered.
Section 2.03 Transfer of Shares and Partnership Interests.
The Sellers agree that at the Closing, the Sellers shall transfer to
the Buyer all of the Interests owned by them by delivering to the Buyer (i) one
or more stock certificates representing all of the issued and outstanding shares
of Stock owned by them, duly endorsed in blank or accompanied by duly executed
stock powers in blank and with any necessary transfer stamps affixed thereto and
(ii) certificates (or other evidence satisfactory to the Buyer in its sole
discretion) representing all of the issued and outstanding Partnership Interests
owned by them.
Section 2.04 Consideration.
(a) Purchase Price. The Interests shall be sold by the Sellers
and shall be purchased by the Buyer for an aggregate purchase price (the
"Purchase Price") of (i) $9,915,000 plus (ii) the Sellers' substantiated
third-party out-of-pocket costs and expenses (excluding any internal allocations
of costs and expenses to any Affiliate of a Seller), if any, incurred in
connection with the development of the Camarillo Creek amphitheater (the
"Amphitheater") including, without limitation, expenses, if any, incurred by the
Sellers after the Closing Date, all of which costs and expenses the Sellers
represent are currently reflected in the existing construction plans and budget
(the "Construction Budget") for the Amphitheater (the "Reimbursable Costs"),
which Construction Budget has been provided to the Buyer and which Construction
Budget, from and after the Closing, may only be amended by the Buyer and the
expenditure of which Reimbursable Costs by any Seller Entity, from and after the
Closing, shall be subject to the prior written approval of the Buyer (unless
incurred in accordance with the Construction Budget prior to Closing Date).
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(b) Form of Consideration. The Purchase Price shall be paid to
the Sellers by delivery of (i) $9,915,000 in cash by wire transfer of
immediately available funds at the Closing, (ii) reimbursement of the Sellers in
cash by wire transfer of immediately available funds at the Closing of the
Reimburseable Costs incurred by the Sellers prior to the Closing and set forth
in part (b) of Schedule 2.04, and (iii) reimbursement of the Sellers in cash by
certified or cashier's check of the Reimbursable Costs within 30 days after
receipt by the Buyer of receipts, invoices and/or other written documentation,
in form and substance reasonably satisfactory to the Buyer, of the Reimbursable
Costs for which a Seller is entitled to reimbursement, but only to the extent
such Reimbursable Costs have not been paid pursuant to clause (ii) of this
Section 2.04(b).
(c) Allocation of Purchase Price. The Purchase Price will be
allocated among the Partnership Interests and the Stock of each of the Companies
in accordance with part (c) of Schedule 2.04.
Section 2.05 [Intentionally Omitted.]
Section 2.06 Conveyance and Transfer.
The parties hereto agree that the purchase and sale of the Interests
shall be effected by bills of sale, stock powers, endorsements, deeds,
assignments and other instruments of transfer, all in such form as may be
reasonably requested to vest in the Buyer ownership of the Interests.
Section 2.07 Certain Assets.
On the Closing Date, the Sellers and certain of the 49% Sellers shall
cause Eric/Chandler Ltd., Inc. ("Eric/Chandler") to transfer and assign to the
Buyer, free and clear of all Liens and for no additional consideration, all of
the assets of Eric/Chandler which are or have been used in any of the Businesses
(the "E/C Assets"). Such assignments and transfer shall be effected by
assignments and other instruments of transfer, all in such form as may be
reasonably requested to vest in the Buyer ownership of the E/C Assets.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers, jointly and severally, represent and warrant to the Buyer that:
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Section 3.01 Organization, Good Standing and Qualification.
(a) Each Seller, CAMP, Eric/Chandler and each Subsidiary is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation and is duly licensed or qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
in which the nature of the business transacted by it or the character of the
property owned or leased by it makes such licensing or qualification by it
necessary.
(b) IMA is duly organized and validly existing as a general
partnership under the laws of the State of California and is duly licensed or
qualified to do business as a foreign general partnership and is in good
standing in each jurisdiction in which the nature of the business transacted by
it or the character of the property owned or leased by it makes such licensing
or qualification by it necessary.
(c) Part (c) of Schedule 3.01 sets forth a correct and
complete list of the jurisdictions of incorporation of each of the Sellers, CAMP
and the Subsidiaries and all jurisdictions in which each Company or CAMP is
licensed or qualified to do business.
Section 3.02 Authority.
Each Seller, CAMP and each Subsidiary has all requisite corporate power
and authority, and IMA has the requisite general partnership power and
authority, to own and operate its properties and to carry on its business as it
is now being conducted. Each of the Sellers has all requisite corporate power
and authority to execute and deliver this Agreement and each of the other
Documents to which it is or will be party, and to perform its obligations
hereunder and thereunder. The execution and delivery by each of the Sellers of
this Agreement and each of the Documents to which it is or will be a party and
the consummation by it of the transactions contemplated hereby and thereby have
been duly authorized by all necessary action. Assuming the due authorization,
execution and delivery hereof and of any Documents to be executed by the Buyer,
this Agreement constitutes, and each of the Documents to be executed by a
Seller, upon execution and delivery thereof by such Seller, will constitute, a
legal, valid and binding obligation of such Seller, in each case enforceable in
accordance with their respective terms, subject to bankruptcy, insolvency and
similar laws affecting the rights and remedies of creditors and secured parties
generally and general principles of equity.
Section 3.03 Capitalization.
(a) Each Subsidiary and CAMP is authorized to issue the amount
and class of shares of its capital stock set forth on part (a) of Schedule 3.03.
The number of issued and outstanding shares of capital stock of each Subsidiary
and CAMP as of the date hereof is as set forth on part (a) of Schedule 3.03.
Neither CAMP nor any Subsidiary has any series or classes of capital
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stock authorized or issued and outstanding, except as set forth in part (a) of
Schedule 3.03, nor are any shares of any such corporation's capital stock held
in treasury.
(b) The partners of IMA are as set forth in part (b) of
Schedule 3.03.
(c) There are no issued or outstanding bonds, debentures,
notes or other indebtedness of any Company or of CAMP which has the right to
vote (or which is convertible into other securities having the right to vote) on
any matters on which stockholders (or, in the case of IMA, partners) of any
Company or of CAMP may vote ("Voting Debt"). There are no outstanding or
authorized subscriptions, warrants, options, contracts, rights (preemptive or
otherwise), calls, commitments or demands of any character relating to any (i)
authorized and issued or unissued shares of capital stock of any Subsidiary or
of CAMP or (ii) partnership interests in IMA, or outstanding securities,
obligations, rights, Voting Debt or other instruments convertible into or
exchangeable for such stock or interests, or which obligate any Company or CAMP
to seek authorization to issue additional shares of any class of stock or
partnership interests or Voting Debt, nor will any be created by virtue of this
Agreement or the transactions contemplated hereby.
(d) All of the outstanding shares of capital stock (or, in the
case of IMA, all of the outstanding general partnership interests) of each
Company have been duly authorized and validly issued, are fully paid and
nonassessable and are owned beneficially and of record by the Sellers and the
49% Sellers, as set forth in part (d) of Schedule 3.03 hereto, and, as to the
Sellers, free and clear of all Liens, and are not subject to, nor have they been
issued in violation of, any preemptive rights and, except for the general
partnership interests in IMA, no personal liability is attached to the ownership
thereof. All of the outstanding shares of capital stock of CAMP have been duly
authorized and validly issued, are fully paid and nonassessable and are owned
beneficially and of record by West Coast Amphitheater Corp., free and clear of
all Liens, and are not subject to, nor have they been issued in violation of,
any preemptive rights and, no personal liability is attached to the ownership
thereof.
Section 3.04 Subsidiaries.
Except as set forth on Schedule 3.04, no Company owns, beneficially or
of record, or controls, directly or indirectly, any capital stock, securities
convertible into or exchangeable for capital stock or any other ownership or
participation interest in any corporation, association, partnership, joint
venture, limited liability company or other entity. The Sellers and certain of
the 49% Sellers collectively own, beneficially and of record, all of the
outstanding shares of capital stock of Eric/Chandler, as set forth on Schedule
3.04.
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Section 3.05 No Default; Non-Contravention.
Neither the execution and delivery by either of the Sellers of this
Agreement or any of the Documents to which either are a party nor the
consummation by either of the Sellers of the transactions hereby and thereby
contemplated shall (a) constitute any violation or breach of either Seller's
certificate of incorporation or by-laws or (b) (i) subject to the receipt of the
consents listed on Schedule 3.06, constitute a default under or a breach of, or
result in the acceleration of any obligation under, any provision of any
contract, lease, mortgage or other instrument to which any Seller or Company is
a party or by which it is bound or by which any of the Businesses, Companies or
Interests or any of the assets of any Company or CAMP or any of the E/C Assets
may be affected; (ii) violate any Governmental Rule directly or indirectly
affecting any Seller, CAMP or any Company or any of the Businesses, E/C Assets
or Interests; (iii) result in the creation of any Lien on any of the assets of
any Company, any of the E/C Assets or on any of the Interests; or (iv) result in
the termination of any license, franchise, lease or Permit to which any Seller
or Company is a party or by which it is bound.
Section 3.06 Consents and Approvals.
Except for all filings and the termination of the waiting period under
the HSR Act and as set forth on Schedule 3.06, no authorization, approval,
order, license, permit, franchise or consent and no registration, declaration,
notice or filing by or with any Governmental Body or other party is required for
the execution and delivery by any Seller of this Agreement or any other Document
or the consummation by any such party of the transactions contemplated hereby
and thereby.
Section 3.07 Personal Property.
(a) The Companies and CAMP have good and marketable title to
all of the personal property, tangible and intangible, reflected in the
Financial Statements for the year ended December 31, 1997, free and clear of all
Liens of every nature, other than Permitted Liens. The assets of the Companies
and CAMP, together with the E/C Assets, (i) are adequate for the conduct of the
Businesses as presently conducted and comprise the capacity and right to perform
the same services in the same manner as presently being performed by the
Companies and CAMP and (ii) notwithstanding the Sellers' rights after the
Closing under Section 9.04(a), represent all of the "at risk" music and concert
production or promotion businesses in the greater Los Angeles, California area
and the business involved in the development of the Amphitheater conducted by
the Sellers.
(b) By acquiring the Companies and CAMP (through the
acquisition of the Interests and the interests of the 49% Sellers in the
Companies), the Buyer is acquiring all of the Sellers' assets used by the
Companies and CAMP in the Businesses and no other material assets, other than
the E/C Assets, are needed to conduct the Businesses as the same are presently
conducted. The tangible assets of the Companies and the E/C Assets are in good
working order, ordinary wear
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and tear excepted, and except where the failure to be in such condition in any
one instance or in the aggregate would not have a Material Adverse Effect on any
Company or any Business. None of the Companies have any assets which are not
used in the Businesses.
(c) The E/C Assets are listed on Schedule 3.07 hereto. The
transfer of the E/C Assets pursuant to Section 2.07 has been duly authorized by
all necessary action. Eric/Chandler has all requisite corporate power and
authority to own and operate the E/C Assets and to carry on its business as it
is now being conducted. Eric/Chandler has all requisited corporate power and
authority to execute and deliver documentation evidencing the transfer by it to
the Buyer of the E/C Assets and to perform its obligations thereunder. Assuming
the due authorization, execution and delivery thereof by the Buyer, if
applicable, each such document will constitute, a legal, valid and binding
obligation of Eric/Chandler, in each case enforceable in accordance with their
respective terms, subject to bankruptcy, insolvency and similar laws affecting
the rights and remedies of creditors and secured parties generally and general
principles of equity.
Section 3.08 Real Property.
(a) CAMP and each Company has good and marketable title, free
and clear of all Liens, to all of its real properties, except for (i) Permitted
Liens and (ii) Liens noted on the title commitment attached hereto as Exhibit A.
(b) Set forth in part (b) of Schedule 3.08 is a list of all of
the real property owned, leased or licensed by each Company and CAMP
(collectively, the "Real Property"). Neither any Seller nor Eric/Chandler owns,
leases or licenses any real property used in any Business. All of the licenses,
leases and subleases set forth in part (b) of Schedule 3.08 are in full force
and effect, free of subtenancies and other occupancy rights.
(c) All Real Property which is leased or licensed by a Company
or CAMP is subject to a valid and binding lease or license agreement which is
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy and other laws affecting the enforceability of creditors'
rights generally or laws governing the availability of specific performance or
other equitable remedies. A true and complete copy of each such lease agreement
has been delivered or made available to the Buyer. Each of CAMP and each Company
which is a party to any such lease or license agreement has performed all of its
obligations required to be performed by it thereunder, and no default exists
under any provision thereof, nor has any event occurred thereunder which, with
the lapse of time or the giving of notice or both, would constitute a default
thereunder by any party thereto.
(d) Part (d) of Schedule 3.08 sets forth a correct and
complete list of all Permits currently held by any of the Companies or CAMP with
respect to the Real Property. Neither any
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Seller nor Eric/Chandler holds any Permit with respect to the Real Property. No
Seller Entity has received any notice of any violation or revocation of any of
such Permits nor, to any such party's knowledge, has any such revocation been
threatened.
(e) There are no special or other assessments for public
improvements or otherwise now affecting the Real Property nor are any such
assessments pending nor do any of the Seller Entities know of any proposed,
contemplated or threatened special or other assessments affecting the Real
Property that may result in special or other assessments affecting the Real
Property.
(f) The Real Property and the current use, occupation and
condition thereof do not violate any Permits or Contracts or any applicable deed
restrictions or other covenants, restrictions or agreements, site plan
approvals, zoning or subdivision regulations or urban development plans
applicable to the Real Property or any other Governmental Rules applicable to
the Real Property.
(g) All roads bounding the Real Property are public roads.
(h) Except as set forth in part (o) of Schedule 3.08 and in
the Option Agreement and except for the Permits and approvals set forth on
Schedule 1 to the opinion of Cohen, Alexander & Clayton attached hereto as
Exhibit B, no subdivision or other approvals of any Governmental Body relating
to the Real Property are necessary in connection with the transactions
contemplated hereby.
(i) There has been no condemnation or taking of any part of
the Real Property and no condemnation or taking is pending or, to the knowledge
of the Seller Entities, threatened.
(j) No Seller Entity has received any notices (i) from any
Governmental Body alleging any fire, health, safety, building, pollution,
environmental, zoning or other violation of law with respect to the Real
Property which has not been corrected as of the date hereof, or (ii) from any
insurance company concerning the discontinuation or potential discontinuation of
any insurance coverage on the Real Property.
(k) All real property Taxes due on or with respect to the Real
Property (and, if payable by any Seller Entity as a tenant on leased properties,
real property Taxes due on or with respect to such leased properties) and all
pending Tax certiorari proceedings with respect to the Real Property owner, in
whole or in part, directly or indirectly, by any Seller Entity, are set forth in
part (k) of Schedule 3.08.
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(l) Except as set forth in part (l) of Schedule 3.08, other
than the Companies and CAMP, there are no parties in possession of the Real
Property and there are no parties with any use or other possessory rights
covering all or any portion of the Real Property.
(m) There are no security deposits under any leases for Real
Property, except as set forth in part (m) of Schedule 3.08.
(n) To the knowledge of each Seller Entity, no tax lot of any
other party encroaches on the Real Property.
(o) Sufficient parking facilities for current use and
satisfaction of applicable Governmental Rules exist with respect to the Real
Property, and, except as set forth in part (o) of Schedule 3.08, such facilities
are in adequate condition to be used as such and the Companies and CAMP possess
and are transferring to the Buyer hereunder, all of their right, title and
interest therein, including, without limitation, the leases and Permits with
respect thereto.
(p) (i) There is no building system with respect to the Irvine
Meadows Amphitheater which is not in working order, (ii) Except as set forth in
part (p) of Schedule 3.08, there is no physical damage to the Irvine Meadows
Amphitheater in excess of $25,000 for which there is no insurance in effect
covering the full cost of restoration, (iii) There are no structural defects
relating to the Irvine Meadows Amphitheater which would prevent the use of the
Irvine Meadows Amphitheater in the manner in which it is intended to be used by
the Buyer and (iv) Except as set forth in part (p) of Schedule 3.08, there is no
current renovation or restoration or tenant improvement to the Irvine Meadows
Amphitheater, the cost of which exceeds $25,000. Buyer shall be solely
responsible for payment for the repairs and improvements referred to on part (p)
of Schedule 3.08.
Section 3.09 Litigation.
Set forth on Schedule 3.09 is a complete and accurate list of all
litigations in which the Seller Entities or Eric/Chandler are currently involved
(which in the case of the Sellers and Eric/Chandler relate to the Businesses,
the E/C Assets, the Interests, CAMP or the Companies), regardless of size,
merits or whether covered by insurance. Schedule 3.09 also contains an accurate
and fair summary of each such litigation, including the description of the
claims, the perceived merit thereof, the name of counsel to the Seller Entities
or Eric/Chandler, as applicable, the court in which the action is pending, the
amount of any damage claim, whether the claim is covered by insurance, the
relevant deductible with respect thereto and whether the premiums have been paid
to date on the applicable policy. Except as specifically noted on Schedule 3.09,
(i) there are no legal actions, suits, proceedings, arbitrations, controversies
or investigations (whether or not purportedly on behalf of or against any Seller
Entity or Eric/Chandler) pending or, to the knowledge of each Seller Entity,
threatened or contemplated, by any Governmental Body or other party against any
Seller Entity or
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Eric/Chandler in any way relating to or affecting CAMP, any of the Interests,
any of the Companies, any of the Businesses, any of the E/C Assets or the
transactions contemplated by this Agreement and (ii) neither Eric/Chandler nor
any of the Seller Entities is a party to or subject to any judgment, order,
writ, injunction or decree in any way relating to or affecting CAMP, any of the
Interests, any of the Companies, any of the E/C Assets or the Businesses or the
transactions contemplated by this Agreement.
Section 3.10 Intellectual Property.
Schedule 3.10 sets forth a correct and complete list and brief
identification of all assets of the Companies and Eric/Chandler utilized in or
relating to the marketing, advertising and commercial exploitation of the
products and services of the Businesses, and all patents, patent rights,
unpatented inventions, trademarks, trade names, service marks, copyrights and
other similar proprietary rights (in each case, whether registered or not) and
all applications therefor which patents, patent rights, unpatented inventions,
trademarks, trade names, service marks, copyrights and other similar proprietary
rights are presently or were ever used in the Businesses (the "Intellectual
Property"). CAMP does not own any Intellectual Property. No interest in any
Intellectual Property or any manufacturing process, know-how or trade secrets
used in any of the Businesses has been assigned, transferred or licensed to any
third party. Each of the Companies owns or possesses licenses or other rights to
use all Intellectual Property, manufacturing processes, know-how and trade
secrets necessary to conduct the Businesses as now operated. To the knowledge of
the Seller Entities, the use of the Intellectual Property and such manufacturing
processes, know-how and trade secrets in connection with the Businesses does not
infringe upon the rights of any third party. There are no suits, claims or
assessments pending or, to the knowledge of any Seller Entity, threatened
relating to the use of the Intellectual Property or such manufacturing
processes, know-how and trade secrets. No Seller Entity is aware of any pending
or threatened cancellation or revocation of any agreement granting to any
Company rights to any of the Intellectual Property, manufacturing process, or
know-how of others used in the Businesses. Except as set forth in Schedule 3.10,
no person is entitled to any payment in connection with any Intellectual
Property, manufacturing process or trade secret used in the Businesses.
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Section 3.11 Contracts.
(a) Schedule 3.11 contains a complete and correct list of all
contracts, arrangements, leases, licenses and agreements as in effect on the
date hereof (the "Contracts") to which CAMP or any Company is a party, including
evidences of indebtedness, whether written or oral, talent agreements, venue
agreements, purchase or sale agreements, agency or advertising contracts,
sponsorship agreements, agreements with employees, sales representatives and
distributors, and agreements with factors, banks or other lending institutions,
except for the leases and licenses for Real Property and the licenses of
Intellectual Property listed on Schedule 3.08 and Schedule 3.10, respectively,
and except for any Contract which does not involve a payment by or to a Company
of more than $7,500. The Contracts are all of the contracts, arrangements,
licenses, leases and agreements relating to the Businesses. A true and complete
copy of each written Contract listed on Schedule 3.11 and a complete and correct
summary of each oral Contract listed on Schedule 3.11 has heretofore been
provided or made available to the Buyer. CAMP or the Company which is a party to
a Contract has performed all of its obligations required to be performed by it,
has paid all payments, advances and royalties required to be paid by it and is
not in default under any Contract, and no event has occurred thereunder in each
case which, with the lapse of time or the giving of notice or both, would
constitute such a default and, no other party to any Contract is in default
thereunder. Each of the Contracts listed on Schedule 3.11 constitutes a valid,
binding, enforceable and legal obligation of CAMP or the Company which is a
party thereto and the other parties thereto in accordance with its terms,
subject to bankruptcy, insolvency and similar laws affecting the rights and
remedies of creditors and secured parties generally and general principles of
equity. No Seller Entity has received notice that any party to any of the
Contracts is in default thereunder.
(b) Except as set forth in part (b) of Schedule 3.11, none of
the Contracts requires the consent of a third party in connection with the
transactions contemplated hereby.
(c) Except as set forth in part (c) of Schedule 3.11, no
Seller Entity is aware of the assertion by any third party of any claim or
potential claim of breach or default under any of the Contracts or the intention
on the part of any party to any Contract listed on Schedule 3.11 (i) to
terminate or significantly change its existing business relationship with any of
the Companies, CAMP or any of the Businesses or (ii) to fail to renew or extend
its existing business relationship with any of the Companies, CAMP or any of the
Businesses at the end of the term of any existing contractual arrangement
between such third party and any Company, CAMP or any Business.
Section 3.12 Financial Statements.
True and complete copies of the unaudited balance sheets of each of the
Companies as of the years ended December 31, 1995, 1996 and 1997 and the three
month period ended March 31, 1998,
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and the related unaudited statements of operations for each of the periods then
ended (the "Financial Statements") have heretofore been delivered to the Buyer.
The Financial Statements have been prepared in accordance with GAAP consistently
applied throughout the periods covered thereby. The Financial Statements present
fairly the financial condition of each of the Companies as of the dates for
which they were prepared, and the results of operations for the periods then
ended.
Section 3.13 Absence of Liabilities.
Except as set forth in the Financial Statements or on Schedules 3.08,
3.09, 3.11, 3.13, 3.14, 3.15, 3.18, and 3.22, neither CAMP nor any Company had,
as of the date thereof, any direct or indirect indebtedness, liability, claim,
loss, damage, deficiency or obligation, fixed or unfixed, choate or inchoate,
liquidated or unliquidated, secured or unsecured, accrued, absolute, contingent
or otherwise (collectively, the "Liabilities"), which individually or in the
aggregate exceed $7,500. Except as otherwise set forth on Schedule 3.13, there
are no other Liabilities with respect to the Companies, CAMP or the Businesses
relating to or arising out of any act, transaction, circumstance or state of
facts which occurred or existed after March 31, 1998, other than those
Liabilities arising in the ordinary course of business consistent with industry
and past practice and the terms and conditions of this Agreement and of the same
character, type and magnitude as incurred in the past and which individually do
not exceed $50,000 or, in the case of Liabilities to any Seller Entity, CAMP or
any Affiliate thereof, $25,000. Neither CAMP nor any Company has any Liabilities
other than Liabilities incurred in connection with the operation of the
Businesses.
Section 3.14 Absence of Certain Changes.
Since March 31, 1998, except as set forth on Schedule 3.14, neither
CAMP nor any Company has:
(a) failed to maintain its status as a corporation or general
partnership subsisting under the laws of its jurisdiction of incorporation or
organization;
(b) declared or made any dividend or any distribution or
transfer of any of its assets, real or personal, tangible or intangible to its
equity holders or any of their Affiliates;
(c) made any capital expenditures or commitments for capital
expenditures, including any capitalized lease obligations (for purchase of
equipment or otherwise), in excess of $25,000 or entered into or committed to
enter into any operating lease in connection with its assets, real or personal,
tangible or intangible, or the Businesses for any property or equipment calling
for net increased rentals in excess of the lesser of 5% or $25,000 annually per
lease (over present rentals), or acquired any assets or properties with an
individual or aggregate value in excess of
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$25,000, in connection with its assets, real or personal, tangible or intangible
or the Business or contracted to do so;
(d) made any advance or investment to or in any individual,
firm, corporation or other entity, whether by loan, purchase of stock or other
securities, by contributions to capital or otherwise;
(e) (i) incurred any Liability relating to the Businesses,
other than those Liabilities arising in the ordinary course of business
consistent with past practice and the terms and conditions of this Agreement, of
the same character, type and magnitude as incurred in the past and which do not
exceed $25,000 in the aggregate or, in the case of the construction of the
Amphitheater, which are consistent with the existing construction budget for the
Amphitheater, or (ii) accelerated the payment of any Liability;
(f) purchased, acquired, sold, assigned or transferred or
entered into any contract or agreement for the purchase, acquisition, sale,
assignment or transfer of any of its assets which are valued in excess of
$25,000 in the aggregate;
(g) subjected to a Lien, any of its assets, real or personal,
tangible or intangible, other than Permitted Liens;
(h) waived any material rights relating to its assets or the
Businesses, whether or not in the ordinary course of business;
(i) made or suffered, or agreed to make or suffer, any new
material contract, arrangement, lease, license or agreement relating to its
assets or the Businesses or any amendment, modification or termination of any
existing Contract, whether or not in the ordinary course of business, other than
talent agreements entered into the ordinary course of business and consistent
with past practice;
(j) made or entered into any bonus payment or arrangement with
any of its employees, officers or agents or granted any increase in the
compensation or fringe benefits (whether or not provided under or pursuant to a
Plan) of any employee or officer, or taken any action that results in an
increase in the cost of any Plan;
(k) changed any of its business policies, including, without
limitation, advertising, marketing policy, payment, collection, budget or other
material policies, or terminated any of its operations;
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(l) altered or revised the accounting principles, procedures,
methods or practices relating to the Businesses or any of the assets or
liabilities with respect thereto, including, without limitation, the creation or
modification of any reserves other than as required by GAAP;
(m) disposed of or permitted to lapse any Intellectual
Property;
(n) entered into any agreements or arrangements or engaged in
any transactions with or made any cash payments to any of the Seller Entities or
their respective Affiliates;
(o) created, suffered or incurred any damage, destruction or
loss (whether or not covered by insurance) or any other event or condition of
any character which could have a Material Adverse Effect on any Company or CAMP
or any of its assets or any of the Businesses;
(p) failed to (i) maintain in full force and effect each Plan
(whether or not listed on Schedule 3.18) in which any employee of CAMP or any
Company participates, (ii) make timely all required contributions thereto or
(iii) administer each such Plan in accordance with its terms and all applicable
laws;
(q) authorized for issuance, issued, or sold any shares of its
capital stock or other securities or ownership interests, acquired directly or
indirectly, by redemption or otherwise, any such capital stock or other
securities or ownership interests, reclassified or split-up any such capital
stock, or granted or entered into any options, warrants, calls, agreements or
commitments of any kind with respect thereto;
(r) made any Tax election or entered into any agreement or
settlement with any Tax Authority that affects or could affect the basis for Tax
purposes of its assets or the timing for Tax purposes of income or deduction;
(s) effected or caused to occur any "plant closing" or "mass
layoff" as those terms are defined in the WARN Act or taken any action which
caused or is reasonably likely to cause any liability under any other
Governmental Rule affecting any site of employment, facility, operating unit or
employee of any Business; or
(t) agreed, whether in writing or otherwise, to take any
action described in this Section 3.14.
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Section 3.15 Taxes.
(a) Except as otherwise set forth in part (a) of Schedule
3.15, CAMP and each of the Companies (and each Seller with respect to CAMP and
the Companies) has filed, within the time and manner prescribed by law, all Tax
Returns that it was required to file. All such Tax Returns were correct and
complete in all material respects. Except as otherwise set forth in part (a) of
Schedule 3.15, all Taxes owed by CAMP or any of the Companies (whether or not
shown on any Tax Return) have been paid. Except as otherwise set forth in part
(a) of Schedule 3.15, neither CAMP nor any of the Companies currently is the
beneficiary of any extension of time within which to file any Tax Return. No
claim has ever been made by any Tax Authority in a jurisdiction where CAMP or
any of the Companies do not file Tax Returns that it is or may be subject to
taxation by that jurisdiction. There are no Liens on any of the assets of CAMP
or any of the Companies that arose in connection with any failure (or alleged
failure) to pay any Tax. All written assessments of Taxes due and payable by, on
behalf of or with respect to each of the Seller Entities pertaining to CAMP or
any of the Companies have been paid by such party, or, to the extent disclosed
to the Buyer in writing prior to the Closing, are being contested in good faith
by appropriate proceedings and have been reserved against in accordance with
GAAP.
(b) The sale of the Partnership Interests shall cause the
current taxable year of IMA to close on the Closing Date pursuant to Treasury
Regulation Section 1.708-1(b)(1)(iii)(b), and shall cause IMA to terminate
solely for U.S. federal income Tax purposes pursuant to Section 708(b)(1)(B) of
the Code. Since the Sellers purchased their Partnership Interests in IMA, there
has not been any sale, transfer, assignment or other disposition of any interest
in IMA, nor has there been any distribution by IMA of any assets other than
cash.
(c) CAMP and each of the Companies has withheld and paid all
Taxes required to have been withheld and paid in connection with amounts paid or
owing by it to each employee, independent contractor, creditor, stockholder,
partner or other third party.
(d) Neither CAMP nor any Company nor any director or officer
(or employee responsible for Tax matters) of either CAMP or any Company expects
or has reason to expect any Tax Authority to assess any additional Taxes for any
period for which Tax Returns have been filed. There is no dispute or claim
concerning any Tax Liability of CAMP or any Company either (i) claimed or raised
by any Tax Authority in writing or (ii) as to which any Seller Entity or any
director or officer (or employee responsible for Tax matters) of CAMP or any
Company has knowledge. Part (d) of Schedule 3.15 lists all U.S. federal, state,
local and foreign income Tax Returns filed with respect to CAMP or any of the
Companies for taxable periods ended after December 31, 1992, and indicates those
Tax Returns that have been audited or are currently the subject of an audit. The
Seller Entities have delivered to the Buyer correct and complete copies of all
federal Tax Returns,
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examination reports and statements of deficiencies assessed against or agreed to
by CAMP or any Company for any period subsequent to December 31, 1992.
(e) Neither CAMP nor any Company has waived any statute of
limitations in respect of Taxes or agreed to any extension of time with respect
to a Tax assessment or deficiency.
(f) Neither CAMP nor any Company has filed a consent under
Code Section 341(f) concerning collapsible corporations. Neither CAMP nor any
Company has made any payments, is obligated to make any payments, or is a party
to any agreement that under certain circumstances could obligate it to make any
payments that will not be deductible under Code Section 280G. Neither CAMP nor
any Company has been a United States real property holding corporation within
the meaning of Code Section 897(c)(2) during the applicable period specified in
Code Section 897(c)(1)(A)(ii). CAMP and each Company has disclosed on its
federal Tax Returns all positions taken therein that could give rise to a
substantial understatement of federal income Tax within the meaning of Code
Section 6662. Neither CAMP nor any Company is a party to any Tax allocation or
sharing agreement. Neither CAMP nor any Company (i) has ever been a member of an
affiliated group filing a consolidated federal income Tax Return (other than a
group that consisted of only the Companies or CAMP) or (ii) has any Liability
for the Taxes of any other individual, corporation, partnership or other entity
(other than any of the Companies or CAMP) under Treasury Regulation Section
1.1502-6 (or any similar provision of state, local, or foreign law) as a
transferee or successor, by contract, or otherwise.
(g) Part (g) of Schedule 3.15 sets forth the following
information with respect to each Company and CAMP as of the most recent
practicable date: (i) the basis of each Company and CAMP in its assets; (ii) the
basis of each of the Sellers in its Interests, and of each of the Companies in
its subsidiary's stock or partnership interests (or the amount of any excess
loss account); (iii) the amount of any net operating loss, net capital loss,
unused investment or other credit, unused foreign tax, or excess charitable
contribution allocable to any such party; and (iv) the amount of any deferred
gain or loss allocable to each party arising out of any deferred intercompany
transaction.
(h) The unpaid Taxes of CAMP and the Companies (i) did not, as
of April 30, 1998, exceed the reserve for Tax liabilities (rather than any
reserve for deferred Taxes established to reflect timing differences between
book and Tax income) set forth on the face of the most recent balance sheet
(rather than in any notes thereto) included in the Financial Statements and (ii)
do not exceed that reserve as adjusted for the passage of time through the
Closing Date in accordance with the past custom and practice of CAMP and the
Companies in filing their Tax Returns.
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Section 3.16 Compliance with Laws.
Schedule 3.16 sets forth a correct and complete list of all Permits of
any Governmental Body presently held by the Companies and by CAMP in connection
with the Businesses. The Permits listed in Schedule 3.16 constitute all Permits
which are required in order to allow the Companies and CAMP to continue to carry
on the Businesses and use their assets and properties with respect thereto as
now conducted. Neither Eric/Chandler nor any Seller holds any Permits in
connection with any of the Businesses. Each Seller Entity, to the extent
applicable, is in compliance in all respects with such Permits and all
applicable Governmental Rules required to be complied with in order to allow it
to continue to carry on the Businesses and use its assets as now being conducted
and used by it. No Seller Entity has received any written notification of any
failure or asserted failure to comply with any such Permits or any Governmental
Rules nor are any of them aware of any failure or asserted failure to comply
with any such Permits or Governmental Rules.
Section 3.17 Employee Matters.
(a) Set forth in part (a) of Schedule 3.17 is a true and
complete list of the name and position of each current employee of each of the
Companies, CAMP and each of the Businesses who earned more than $20,000 in
salary, bonus and overtime and of each independent contractor and agent who was
paid more than $20,000 with respect to the year ended December 31, 1997 or who
is expected to be paid in connection with services provided to the Companies,
CAMP or the Businesses at least such amount with respect to the year ending
December 31, 1998.
(b) The Companies, the Business and CAMP are each in full
compliance with all applicable Governmental Rules respecting employment and
employment practices, terms and conditions of employment, wages and hours and
non-discrimination in employment and is not engaged in any unfair labor
practice. There are no pending or, to any Seller Entity's knowledge, threatened
disputes, grievances, charges, complaints, petitions or proceedings involving
the employees of CAMP or any of the Companies or Businesses or any collective
bargaining representatives, and neither CAMP nor any of the Companies or
Businesses has suffered, nor is there pending or, to any Seller Entity's
knowledge, threatened, any strike, lockouts or general work stoppages which have
caused or would cause a cessation of operations of any Business or any facility
of such Business, nor is any such strike, lockout or work stoppage pending or
threatened. Neither CAMP nor any of the Companies or Businesses has been the
subject of any orders to show cause, notices of debarment or administrative
proceedings relating to its employment practices.
(c) Except as disclosed in part (c) of Schedule 3.17, none of
the employees of CAMP, the Businesses or the Companies is covered by a
collective bargaining agreement.
(d) The Seller Entities are in compliance with their
respective obligations pursuant to the WARN Act and all other notification and
bargaining obligations arising under any Governmental Rule or otherwise with
regard to employees of the Businesses.
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Section 3.18 Employees and Related Agreements; ERISA.
(a) Except as set forth in part (a) of Schedule 3.18, neither
any of the Companies nor any ERISA Affiliate maintains or contributes to, or has
any obligation to contribute to or, during the last six years, has maintained,
contributed to or been obligated to contribute to, and neither any of the
Companies nor any ERISA Affiliate has any liability (including, without
limitation, a liability arising out of an indemnification, guarantee, hold
harmless or similar agreement) with respect to, any Plan. No severance pay
policy or procedure is maintained by any of the Companies or CAMP which does or
could apply to employees of any of the Companies or the Businesses in any form,
whether written or unwritten, and whether or not disclosed to one or more
employees. All Plans identified in part (a) of Schedule 3.18 are in compliance
in all material respects with the applicable provisions of ERISA, the Code and
the Plan documents.
(b) Neither any of the Companies nor any ERISA Affiliate
maintains, contributes to or is obligated to contribute to, or, during the last
six years, has maintained, contributed to or been obligated to contribute to,
any Single Employer Defined Benefit Plan and, except as set forth in part (b) of
Schedule 3.18, neither any of the Companies nor any ERISA Affiliate maintains,
contributes to or is obligated to contribute to or, during the last six years,
has maintained, contributed to or been obligated to contribute to, any
Multiemployer Plan or any Multiple Employer Plan or multiple employer welfare
arrangement as defined in Section 3(40) of ERISA.
(c) No event has occurred in connection with which CAMP or any
of the Companies or any Plan identified in Schedule 3.18 or any "plan
administrator" (as defined in Section 3(16) of ERISA) thereof, directly or
indirectly, is or could be subject to liability, other than for routine claims
for benefits, contingent or otherwise, or any lien, whether or not perfected,
under the terms of any Plan or under ERISA, the Code or any other law,
regulation or governmental order applicable to any Plan at any time maintained
or contributed to by any of the Companies or any ERISA Affiliate, including,
without limitation, Sections 302(f), 404, 406, 409, 502(c)(1), 502(c)(3),
502(g), 502(i), 502(1), 601, 602, 603, 604, 605, 606, 607, 608, 4062, 4063,
4064, 4068, 4069, 4071 or 4201 of ERISA, or Sections 412(n), 4971, 4975, 4976,
4980B or 5000 of the Code, or under any agreement, instrument, statute, rule of
law or regulation pursuant to or under which CAMP or any of the Companies has
agreed to indemnify or is required to indemnify any person against liability
incurred under, or for a violation or failure to satisfy the requirements of,
any such statute, regulation or order. No Plan listed in Schedule 3.18 is
subject to Section 302 of ERISA or Section 412 of the Code.
(d) All payments and contributions due from CAMP or the
Companies under each Plan identified in Schedule 3.18 have been made and all
amounts properly accrued to date as liabilities of CAMP or the Companies which
have not been paid have been or will, prior to the
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Closing Date, have been properly recorded on the books of CAMP or the Companies
and, to the extent not theretofore paid, will be reflected as a liability on
Schedule 3.18 hereto.
(e) No Welfare Benefit Plan provides benefits, including,
without limitation, death or medical benefits (whether or not insured) with
respect to any current or former employee of CAMP or any of the Companies or the
Businesses beyond his or her retirement or other termination of service other
than (i) coverage mandated by applicable law or (ii) disability benefits that
have been fully provided for by insurance or otherwise.
(f) The transactions contemplated by this Agreement will not
result in any payment or series of payments by the Buyer, CAMP or any of the
Companies to any person of an "excess parachute payment" within the meaning of
Section 280G of the Code.
(g) The consummation of the transactions contemplated by this
Agreement will not (i) entitle any employee or former employee of CAMP or any of
the Companies or the Businesses to severance pay, unemployment compensation or
any other payment except as expressly provided in this Agreement or (ii) result
in any prohibited transaction described in Section 406 of ERISA or Section 4975
of the Code for which an exemption is not available.
(h) There has been delivered or made available to the Buyer
with respect to each Plan identified in Schedule 3.18:
(i) A copy of the annual report (with accompanying
schedules and exhibits), if required under ERISA, which has been filed
with respect to such Plan for the two most recently completed plan
years. The information contained in such report (including such
schedules and exhibits) is true and complete and there has been no
material adverse change in the condition of such Plan, financial or
otherwise, since the date thereof;
(ii) A copy of the actuarial report, if any, with
respect to each such Plan for the last two years. The information
contained therein, and the information furnished by the administrator
of such Plan or by any of the Companies or any ERISA Affiliate in
connection with the preparation thereof, is true and complete and there
has been no material adverse change therein since the date thereof;
(iii) A copy of the most recent summary plan
description, together with each Summary of Material Modifications with
respect thereto, required under ERISA with respect to such Plan, all
material employee communications relating to such Plan, distributed
within the last 12 months and a true and complete copy of such Plan
together with any current filings with the Internal Revenue Service;
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(iv) If such Plan is funded through a trust or any
third party funding vehicle, a copy of the trust or other funding
vehicle and the latest financial statements thereof; and
(v) The most recent determination letter received
from the Internal Revenue Service with respect to each Plan that is
intended to qualify under Section 401 of the Code.
(i) Neither any of the Companies nor any ERISA Affiliate has
made any agreement, understanding or promise, whether written or oral, to
create, establish, sponsor, maintain or contribute, directly or indirectly, to
or under any additional Plan for the benefit of current or former employees of
CAMP, the Companies or the Businesses nor, except as set forth in part (i) of
Schedule 3.18, to amend or modify any existing Plan identified in Schedule 3.18
in any manner not reflected in the plan documents of such Plan delivered or
provided to the Buyer on or before the date hereof.
(j) Each Plan to which any of the Companies or any ERISA
Affiliate contributes or has any obligation to contribute which is intended to
be qualified under Section 401 of the Code, has received a favorable
determination letter from the Internal Revenue Service with respect to such
qualification and with respect to the exemption from tax of the trusts created
thereunder under Section 501(a) of the Code, or will within the appropriate
remedial amendment period under Section 401(b) of the Code, apply for such
letter, and nothing has occurred that has affected or is likely to affect
adversely such qualification or exemption since the date of any such letter with
respect to each Plan.
(k) All material reports and other information required under
ERISA or any other applicable law or regulation to be filed in respect of any
Plan by the administrator thereof or by any of the Companies or any ERISA
Affiliate on or prior to the date hereof with the relevant governmental
authority and/or distributed or made available to any Plan participant and
beneficiary (including "alternate payees", as such term is defined in Section
206(d)(3)(K) of ERISA), as the case may be, have been filed, distributed or made
available in accordance with ERISA or such other applicable law or regulation,
as the case may be, and all such reports and other information are true and
complete in all material respects as of the date given.
(l) Neither CAMP nor any of the Companies has entered into any
agreement, written or otherwise, relating to any Plan providing medical benefits
obligating CAMP or any of the Companies or its successor in interest to make any
supplemental or retrospective premium payments for the current or any prior
contract period in the event of adverse experience, termination of the minimum
premium arrangement or termination of an insurance contract relating to such
Plan.
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(m) There are no claims, lawsuits, arbitrations or other
actions pending or threatened against any of the Companies or any ERISA
Affiliate or any administrator, trustee or other fiduciary of any Plan listed on
Schedule 3.18 with respect to any Plan listed on Schedule 3.18.
No prohibited transaction has occurred under any such Plan.
(n) No Plan listed on Schedule 3.18 is under audit or
investigation by the Internal Revenue Service or the U.S. Department of Labor or
any other governmental body, and no completed audit or investigation, if any,
has resulted in the imposition of any tax or penalty.
(o) There are no leased employees within the meaning of
Section 414(n) of the Code who perform services for CAMP or any of the Companies
or the Businesses.
Section 3.19 Environmental Compliance.
(a) (i) Hazardous Substances have not been generated, used,
treated, handled, stored, released or disposed of, on, at, from, under or about
(x) any property or facility now or previously owned, operated or occupied by
any Seller Entity (or any of its predecessors) and used in connection with the
Businesses or by the Companies or CAMP (or any of their predecessors), (y) any
property or facility now or previously owned, operated or occupied by any
Affiliate of any Seller Entity (or any of its predecessors) and used in
connection with the Businesses or by the Companies or CAMP (or any of their
predecessors) or (z) the property on which the Amphitheater is to be built
(collectively, the "Premises"), or transported to or from such Premises, except
in compliance with Environmental Laws, (ii) the activities, operations and
business carried out at or on the Premises by the Seller Entities, their
Affiliates and their predecessors, including, but not limited to, the business
conducted at the Premises or any past or ongoing alterations or improvements at
the Premises is, and has been at all times in compliance with all Environmental
Laws, and with all agreements with governmental agencies, court orders, and
administrative orders regarding Environmental Laws and Environmental Conditions
at or relating to the Premises, and (iii) no further action is required to
remedy any Environmental Condition or the violation of any Environmental Law.
(b) Except as disclosed on Schedule 3.09, there are no
pending, and no Seller Entity is aware of any threatened, litigations or
proceedings before any Governmental Body arising under any Environmental Law, or
the existence of any Environmental Condition at, from or caused by operations
now or previously conducted at the Premises or by the Businesses, and no Seller
Entity has (i) received any notice of and has no actual or constructive
knowledge that any third party, Governmental Body or any employee or agent
thereof, has determined or has alleged, threatens to determine or requires an
investigation under any Environmental Law to determine that there exists any
Environmental Condition or any violation of any Environmental Law, or the
presence, release, threat of release, or placement on, at, under or about the
Premises, or the use, handling, manufacturing, generation, production, storage,
treatment, processing, transportation or disposal of
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any Hazardous Substances on, at, under, from or about the Premises; (ii)
received any notice under the citizen suit provision of any Environmental Law in
connection therewith; or (iii) other than with respect to the environmental
surveys to be performed on behalf of the Buyer in connection with the
Acquisition, received any request for inspection or request for information,
notice, demand, administrative inquiry or any formal or informal complaint or
claim with respect to or in connection with any Environmental Condition or any
Environmental Law, including, without limitation, any Environmental Law
referring or relating to Hazardous Substances relating to the Premises or any
facilities, operations or activities conducted thereon or any business conducted
by any Company or any of its predecessors.
(c) No Lien has been imposed or asserted on any assets of any
Seller Entity by any Governmental Body or other person in connection with any
Environmental Law or Environmental Condition.
(d) CAMP and each Company (i) has all Permits required
pursuant to any Environmental Laws necessary for its activities and operations
of its Business and for any past or ongoing alterations or improvements at any
Premises, (ii) is not in violation of any such Permits and has applied for
renewals where necessary and (iii) such Permits are assignable to the Buyer or
will not terminate or lapse as a result of the consummation of the Acquisition.
(e) No storage tanks presently exist on, at, under or about
any Premises, or, to the knowledge of any Seller Entity, previously existed on,
at, under or about any Premises, or, to the knowledge of the Seller Entities,
are located on any adjoining property.
(f) The Seller Entities have heretofore delivered to the Buyer
copies of all documents, records, and information in the possession or control
or, to the Seller Entities' knowledge, available to the Seller Entities
concerning Environmental Conditions relevant to the Businesses, the Premises,
any predecessors and/or any facilities or operations of the Companies, CAMP or
the Businesses, whether generated by a Seller Entity or others, including,
without limitation, environmental audits, environmental risk assessments, or
site assessments of the Premises and/or any adjacent property or other property
in the vicinity of any Premises owned or operated by any Seller Entity or
others, documentation regarding offsite disposal of Hazardous Substances,
reports and correspondence (the "Environmental Documents").
(g) The Businesses have been operated in compliance with all
Governmental Rules regarding so-called noise pollution. CAMP and each of the
Companies has all Permits required pursuant to any applicable Governmental Rules
necessary for its activities and operations of its Business, is not in violation
of any such Permits and has applied for renewals where necessary and such
Permits are assignable to the Buyer or will not terminate or lapse as a result
of the consummation of the Acquisition. There are no pending, and no Seller
Entity is aware of any
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threatened, litigations or proceedings before any Governmental Body in which any
person or entity alleges the violation of any Governmental Rule regarding noise
or seeks, directly or indirectly, to revoke or limit the relevant Permits or the
activities of the Businesses with respect to such matter.
Section 3.20 Insurance.
CAMP and each Company has reasonably adequate insurance coverage for
its assets and the operations of the Businesses owned or operated by it. Set
forth on Schedule 3.20 is a complete and correct list of all policies of
insurance carried by CAMP and each Company or pursuant to which such party is
named beneficiary or pursuant to which its assets or its Business are currently
insured or have been insured for the past five years and a brief description of
each such policy, including, without limitation, the identification of the
insured, the amount and purpose of the insurance and the amount of the
deductible. True and complete copies of all such policies have been delivered or
made available to the Buyer. All of such policies are in full force and effect;
all premiums due and payable in respect of such policies have been paid in full;
and there exists no default or other circumstance which would create the
substantial likelihood of the cancellation or non-renewal of any such policy.
The Seller Entities have notified such insurers of any claim known to them which
they believe is covered by any such insurance policy and have delivered to the
Buyer a copy of any such claim.
Section 3.21 Accounts Receivable.
All accounts receivable of CAMP and the Companies arose from bona fide
transactions in the ordinary course of business of the Businesses, represent
credit extended in a manner consistent with the historic trade and credit
practices of the Businesses and industry practice.
Section 3.22 Transactions with Affiliates.
Except as set forth in Schedule 3.22, no Seller Entity is, nor for the
past year has been, a party to, bound by, benefited from, or obligated under,
any agreements, understandings, indebtedness, obligation or any other
transaction with any other Seller Entity relating to, CAMP, the Companies, the
Businesses, the E/C Assets or the Interests.
Section 3.23 Finder's Fees.
Neither Eric/Chandler nor any Seller Entity has incurred any liability
for finder's or brokerage fees or agent's commissions in connection with this
Agreement or the transactions hereby contemplated.
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Section 3.24 Absence of Certain Business Practices.
All tickets sold in connection with the operation of the Businesses are
sold in conformity with all venue agreements, all talent agreements and industry
practice, and are sold in compliance with all Governmental Rules and solely
through nationally recognized ticket outlets or the Business itself, and not to
or through ticket brokers or scalpers, and no Seller Entity authorizes, or is
aware of, the withholding of any tickets from public on-sale availability for
the purpose of making such tickets available to ticket brokers or scalpers. The
Businesses and the Companies have established, and are in compliance with,
policies and procedures to ensure the foregoing.
Section 3.25 Certain Payments.
No Seller Entity, nor any director, officer, agent, partner or employee
thereof or any other person associated with or acting for or on behalf of such
Seller Entity has directly or indirectly (a) made or agreed to make any
contribution, gift, bribe, rebate, payoff, influence payment, kickback or other
payment (whether in cash or otherwise) to any person, private or public,
regardless of form, whether in money, property, or services, in violation of any
applicable law, rule or regulation (i) to obtain favorable treatment in securing
business, (ii) to pay for favorable treatment for business secured, (iii) to
obtain special concessions or for special concessions already obtained, for or
in respect of any Seller Entity or (iv) to pay for any lobbying or similar
services or (b) established or maintained any fund or asset that has not been
recorded in the books and records of such Seller Entity.
Section 3.26 Disclosure.
No representations or warranties made by the Seller Entities in this
Agreement and no statement contained in any Document (including, without
limitation, the schedules hereto and thereto), certificate, or other writing to
be executed and delivered by any of the Seller Entities or Eric/Chandler
pursuant to the provisions hereof or the transactions contemplated hereby,
contains or will contain any untrue statement of material fact, or omits or will
omit to state any material fact necessary in light of the circumstances under
which it was made, in order to make the statements herein or therein not
misleading.
Section 3.27 Irvine Meadows.
Without limiting any other representations or warranties contained in
Article III:
(a) Based upon the advice of Hennigan, Mercer and Bennett, Los
Angeles, California, the Seller Entities do not believe that the Amended and
Restated Agreement Re Ground Lease, dated October 1, 1991 between The Irvine
Company and IMA, is in force or effect or that the indemnification obligations
of the parties thereto are enforceable. That certain Ground Lease dated as of
March 1, 1997 between The Irvine Company and IMA (the "Ground Lease"), is in
full force
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and effect and has not been modified or amended by either party thereto (except
for the modifications contained in the consent of the Irvine Company delivered
in connection with the transactions contemplated hereby). Neither party is in
default under such agreement.
(b) Except for the litigation described under the subheading
"Irvine Meadows Amphitheater" on pages 2 and 3 on Schedule 3.09, there is no
pending or threatened litigation or other challenge to the validity of the
Ground Lease or to the tenant's estate and rights thereunder. Based upon the
advice of Hennigan, Mercer and Bennett, Los Angeles, California, the Seller
Entities do not believe that the claims and challenges of Lion Country Safari
are likely to result in the demolition of the Irvine Meadows amphitheater or are
meritorious.
(c) Except as disclosed in part (p) of Schedule 3.08 and part
(o) of Schedule 3.14, the Irvine Meadows amphitheater and related improvements
have not been damaged in any material respect by fire or, to any Seller Entity's
knowledge, earthquake, or other casualty and neither such improvements nor their
site is the subject of any pending or, to the knowledge of any Seller Entity,
threatened condemnation or similar proceeding.
(d) Except as disclosed in part (p) of Schedule 3.08 and part
(o) of Schedule 3.14, the Irvine Meadows amphitheater, related improvements,
parking facilities, and roadways comply in all material respects with all
relevant zoning, subdivision, land use, environmental, seismic, building code
and similar Governmental Rules (after giving effect to any "grandfathering" or
similar provision of any Governmental Rule which as applied to the Irvine
Meadows Amphitheater would require different compliance than for any structure
currently under construction). No notices of violations of any nature have been
issued or threatened.
(e) The Sellers have delivered to the Buyer true and complete
copies of all plans and specifications, engineering reports, studies and
consultant's reports, and made available all correspondence files and other
relevant information in its possession concerning the physical aspects and the
operation of the Irvine Meadows amphitheater.
(f) Except for the consent of The Irvine Company, as lessor
under the Ground Lease, no third-party consent (from any Governmental Body or
any other Person, other than such consents previously received by the Sellers
and which remain in full force and effect) is required in connection with the
transfer of ownership and control of IMA (and its material assets, including
without limitation, the Irvine Meadows amphitheater) to the Buyer (or an
Affiliate of the Buyer) as contemplated by this Agreement. All costs and
expenses payable to The Irvine Company associated with such consent shall be
paid by the Sellers.
(g) Conditional Use Permit 80 CP 0358 (i) is in full force and
effect, (ii) has not been modified and (iii) does not materially affect or limit
the use or operation of the Irvine Meadows
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amphitheater as the same has been historically used and operated. No Seller
Entity has any reason to believe that there will be any material change in the
manner in which said Permit is enforced. All of the terms set forth in said
Permit have been materially complied with and are currently being materially
complied with and no Seller Entity has received a notice of default thereunder.
(h) The operation of El Toro Marine Base, as currently and
historically operated, has not materially and adversely affected the operation
of the Irvine Meadows amphitheater, as currently and historically operated, and
none of the Seller Entities has any knowledge of any change or proposed change
in the operation of El Toro Marine Base that is reasonably likely to materially
and adversely affect the use and operation of the Irvine Meadows amphitheater in
the manner in which it is intended to be operated. Other than speculation in
news reports that El Toro Marine Base may be converted to residential or civil
aviation use, the Seller Entities have no knowledge of any future non-military
use of El Toro Marine Base.
(i) Wild Rivers, a California general partnership, will
approve the form of reciprocal easement agreement regarding parking, ingress,
egress and drainage at the Irvine Meadows amphitheater, a copy of which is
attached hereto as Exhibit C as required in connection with the City of Irvine's
approval of the subdivision maps with respect thereto, and the Sellers have no
reason to believe Wild Rivers will not approve the form of reciprocal easement
agreement. Said reciprocal easement shall be submitted to the City of Irvine as
soon as practicable and the Sellers have no reason to believe that approval
thereof will not be granted without material changes thereto.
Section 3.28 Camarillo Amphitheater Project.
Without limiting any other representations or warranties contained in
Article III:
(a) The Camarillo Amphitheater Option Agreement (the "Option
Agreement"), dated as of May 21, 1996, between the County of Ventura and
Camarillo Amphitheater Managing Partners, Inc. ("CAMP"), a wholly-owned
subsidiary of West Coast Amphitheater Corp., is in full force and effect and,
except as disclosed on Schedule 3.11, has not been amended, modified,
transferred or assigned by either party thereto. Neither party is in default
under the Option Agreement nor does any condition exist which, with the giving
of notice, the passage of time or both, would constitute a default thereunder,
except as set forth in Paragraph 1 of the Camarillo Amphitheater Option
Agreement Extension, dated March 17, 1998. The County of Ventura has not
notified any Seller Entity or CAMP that it intends to nor, to the knowledge of
the Seller Entities and CAMP, has the County of Ventura threatened to terminate
or cancel the Option Agreement. The form of concession agreement attached to the
Option Agreement (the "Concession Agreement") has not been modified, and CAMP's
right under the Option Agreement to enter into the Concession Agreement and to
develop, own and operate the Project (as hereinafter defined) has not been
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challenged by pending or threatened government action or litigation or, except
as disclosed under the subheading "Camarillo Amphitheater" on Schedule 3.09, by
similar actions of private parties.
(b) The development and construction of the Amphitheater (the
"Project"), as contemplated by the Option Agreement and the Concession
Agreement, and as described in (i) the plans and specifications therefor
prepared by Gin Wong Associates and dated January 12, 1998, February 26, 1998
and April 23, 1998 and (ii) the Construction Budget, can be substantially
completed as proposed in, and in accordance with, such plans and specifications
and Budget and for the amounts currently set forth in the Construction Budget,
except as disclosed on the final page of the Construction Budget with respect to
assets to be leased. Upon the Closing, the Buyer will be the beneficial owner of
the plans and specifications therefor prepared by Gin Wong Associates.
(c) The plans and specifications for the Project (other than
the redesign of the entrance to the Project to respond to the "wetlands" issue)
have been submitted for approval to the County of Ventura and no Seller Entity
has any reason to believe that such plans and specifications will not be
approved without material changes thereto.
(d) The Project, as described in the plans and specifications
therefor, complies in all material respects with all applicable municipal and
regional zoning, subdivision and land use requirements, except that a portion of
the Project site consists of "wetlands" under federal and state Governmental
Rules.
(e) Although a portion of the Project site consists of
"wetlands" under federal and state Governmental Rules, based on advice from the
Sellers' land use consultant, the Sellers have no reason to believe that
approval of the Project by the United States Army Corps of Engineers is required
in view of the minimal effect of the Project on such wetlands.
(f) The letters, dated March 19, 1998 and March 24, 1998,
respectively, between the United States Department of the Interior and the
County of Ventura, copies of which are attached hereto as Exhibits D-1 and D-2,
are the only correspondence known to the Seller Entities with the United States
Department of the Interior and relating to the Project. No Seller Entity has any
reason to believe that the United States Department of the Interior intends to
take any action which could reasonably be expected to adversely affect the
Project, the development thereof in accordance with the plans and specifications
therefor or the change in control of CAMP to the Buyer or an Affiliate of the
Buyer.
(g) All required environmental impact reports for the Project
have been duly submitted and approved and, except as disclosed on Schedule 3.09,
are not currently subject to pending or threatened litigation or other
challenges by any Governmental Body or private parties.
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(h) Intentionally Omitted.
(i) The Sellers have delivered to the Buyer true and complete
copies of all plans and specifications, studies, consultants' reports and
feasibility analyses and made available all correspondence files and similar
materials and information in their possession or control relating to the
Project.
(j) Except for the consent of Ventura County, no third-party
consent (from any Governmental Body or other Person) is required in connection
with the transfer of ownership and control of CAMP to the Buyer or any Affiliate
of the Buyer as contemplated by this Agreement.
(k) CAMP may exercise the Option Agreement at any time upon
executing the Concession Agreement, notwithstanding that certain ministerial or
non-material changes thereto may be requested or required.
(l) The Sellers have requested the approval of the County of
Ventura to the change in control of CAMP to Buyer or a Subsidiary of Buyer, have
requested such to be placed on the agenda of the May 12, 1998 meeting of the
Board of Supervisors of the County of Ventura, and have no reason to believe
that the approval of the Board of Supervisors of the County of Ventura to such
change in control will not be granted at such meeting and, in any event, in the
form presented, without conditions.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Sellers that:
Section 4.01 Organization, Good Standing and Qualification.
The Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and is duly licensed or
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction in which the nature of the business transacted by it or the
character of the property owned or leased by it makes such licensing or
qualification by it necessary, other than in such jurisdictions where the
failure so to qualify would not, individually or in the aggregate, have a
Material Adverse Effect on the Buyer and its subsidiaries, taken as a whole.
Section 4.02 Authority.
The Buyer has all requisite corporate power and authority to own and
operate its properties and to carry on its business as it is now being conducted
and to execute and deliver this Agreement
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and each of the Documents to which it is or will be a party, and to perform its
obligations hereunder and thereunder. The execution and delivery by the Buyer of
this Agreement and each of the Documents to which it is a party and the
consummation by it of the transactions contemplated hereby and thereby have been
duly authorized by all necessary corporate action of the Buyer. This Agreement
constitutes, and each of the Documents upon execution and delivery thereof will
constitute, the legal, valid and binding obligations of the Buyer, in each case
enforceable in accordance with their respective terms, subject to bankruptcy,
insolvency and similar laws affecting the rights and remedies of creditors and
secured parties generally and general principles of equity.
Section 4.03 No Default; Non-Contravention.
Neither the execution and delivery of this Agreement and all of the
other Documents to which the Buyer is or will be a party nor the consummation of
the transactions hereby and thereby contemplated shall (a) constitute a
violation or breach of the Certificate of Incorporation or By-laws of the Buyer,
(b) except as listed in Schedule 4.03, and subject to the receipt of the
consents listed on Schedule 4.04, (i) constitute a default under or a breach of,
or result in acceleration of any obligation under, any provision of any
contract, lease, mortgage or other instrument to which it is a party or by which
any of its assets may be affected or secured, which default, breach or
acceleration has not been waived; (ii) violate any Governmental Rule affecting
the Buyer or any of its assets; (iii) result in the creation of any Lien on any
of the assets or properties of the Buyer; or (iv) result in the termination of
any license, franchise, lease or permit to which the Buyer is a party or by
which it is bound, except in the case of those items specified in clause (b)
above which would not, individually or in the aggregate, limit the ability of
the Buyer to consummate the transactions hereby contemplated or have a Material
Adverse Effect on the Buyer and its subsidiaries taken as a whole.
Section 4.04 Consents and Approvals.
Except for the filing and the termination of the waiting period under
the HSR Act and as set forth on Schedule 4.04, no authorization, approval,
order, license, permit, franchise or consent, and no registration, declaration,
notice or filing by or with any Governmental Body or other party is required in
connection with the execution and delivery by the Buyer of this Agreement and
the other Documents to which it is a party and the consummation by it of the
transactions contemplated hereby and thereby, except such consents as shall have
been obtained on or prior to the Closing Date.
Section 4.05 Finder's Fees.
The Buyer has not incurred any liability for finder's or brokerage fees
or agent's commissions in connection with this Agreement or the transactions
hereby contemplated.
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ARTICLE V
PRE-CLOSING COVENANTS OF THE SELLERS
Each of the Sellers, jointly and severally, agrees that, subsequent to
the date hereof and until the Closing:
Section 5.01 Conduct of Businesses.
Except as otherwise consented to or approved by the Buyer in writing
and except as otherwise agreed to herein,
(a) Each of the Sellers shall, and shall cause each Company,
CAMP and Eric/Chandler to:
(i) operate the assets of CAMP, the Companies and the
Businesses and the E/C Assets in the ordinary course and consistent
with prior practice and use best efforts to (A) preserve the present
business organization of CAMP and each of the Companies intact, (B)
keep available the services of the present officers of CAMP and each of
the Companies, (C) preserve the present relationships of CAMP and each
Company with employees and independent contractors (except to the
extent of voluntary terminations of employment), customers, patrons and
suppliers of the Businesses, (D) maintain in force, and renew upon
expiration, all insurance policies with respect to its assets and the
Businesses, as the same have been previously represented to the Buyer
and (E) maintain in effect all Permits;
(ii) maintain its books, accounts and records, in the
usual and ordinary manner, and reflect income, expenses, assets and
liabilities in a manner consistent with its past practices; and
(iii) maintain its assets in good repair, order and
condition and consistent with sound business practice and all
applicable Governmental Rules.
(b) none of the Sellers shall take, and the Sellers shall
prevent each Company, CAMP and Eric/Chandler from taking, each action
(including, without limitation, by voting its Interests) which directly or
indirectly could adversely affect the Businesses, the Interests, the Companies,
CAMP, the Acquisition, the E/C Assets or any of the transactions contemplated
hereby.
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Section 5.02 Extraordinary Acts.
(a) Without limiting the general applicability of Section
5.01, except as otherwise consented to or approved by the Buyer in writing, or
as otherwise permitted pursuant to Section 5.02(b), no Seller shall take or
agree, whether in writing or otherwise, to take, any action (including, without
limitation, by voting its Interests) which, directly or indirectly, causes any
Company, CAMP or Eric/Chandler to:
(i) fail to maintain its status as a corporation or
general partnership subsisting under the laws of its state of
incorporation or organization;
(ii) declare or make any dividend or any distribution
or transfer of any of its assets or properties to its equity holders or
any of their Affiliates;
(iii) make any capital expenditures or commitments
for capital expenditures, including any capitalized lease obligations
(for purchase of equipment or otherwise) or enter into or commit to
enter into any operating lease for any property or equipment calling
for net increased rentals, or acquire any assets or properties or
contract to do so, except with respect to the construction of the
Amphitheater but subject to Section 2.04(a) hereof;
(iv) make any advance or investment either by
purchase of stock or other securities or contributions to capital of
any individual, firm, corporation or other entity;
(v) incur any Liability, other than those Liabilities
arising in the ordinary course of business and consistent with past
practice and the terms and conditions of this Agreement and of the same
character, type and magnitude as incurred in the past, or accelerate
the payment of any Liability;
(vi) purchase, sell, assign or transfer or enter into
any contract or agreement for the purchase, sale, assignment or
transfer of any of its assets or properties, or cancel any debts or
claims;
(vii) subject to a Lien, any assets, other than
Permitted Liens;
(viii) waive any material rights relating to its
assets, properties or Business, whether or not in the ordinary course
of business;
(ix) make or suffer, or agree to make or suffer, any
new contract or agreement or any amendment, modification or termination
of any existing contract, lease or other agreement, whether or not in
the ordinary course of business other than talent agreements entered
into the ordinary course of business consistent with past practice;
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(x) make or enter into any bonus payment or
arrangement with any of its employees, officers or agents or grant any
increase in the compensation or fringe benefits (whether or not
provided under or pursuant to a Plan) of any employee or officer;
(xi) change any of its business policies, including,
without limitation, construction plans, advertising, marketing policy,
sales policy, purchasing, payment, collection, budget or other material
policies, or terminate any of its operations;
(xii) alter or revise its accounting principles,
procedures, methods or practices, including, without limitation, the
creation or modification of any reserves other than as required by
GAAP;
(xiii) dispose of or permit to lapse any Intellectual
Property which comprises a part of its assets or which is used by or in
any of the Businesses;
(xiv) enter into any agreements or arrangements or
engage in any transaction with any Seller Entity or its Affiliates;
(xv) create, suffer or incur any damage, destruction
or loss (whether or not covered by insurance) or any other event or
condition of any character which would have a Material Adverse Effect
on its assets, properties or Business;
(xvi) fail to maintain in full force and effect each
Plan in which any of its employees participate and timely make all
required contributions thereto and administer each such Plan in
accordance with its terms and all applicable laws;
(xvii) authorize for issuance, issue, or sell any
shares of its capital stock or other securities or ownership interests,
acquire directly or indirectly, by redemption or otherwise, any such
capital stock, securities or ownership interests, reclassify or
split-up any such capital stock, securities or ownership interests, or
grant or enter into any options, warrants, calls or commitments of any
kind with respect thereto;
(xviii) make any Tax election or enter into any
agreement or settlement with any Tax Authority that affects or could
affect the basis for Tax purposes of its assets or the timing for Tax
purposes of income or deduction; or
(xix) effectuate a "plant closing" or "mass layoff,"
as those terms are defined in the WARN Act or take any action that
causes, or could reasonably be expected to cause, liability under any
Governmental Rule affecting any site of employment facility, operating
unit or employee of any Business.
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(b) Notwithstanding anything in Section 5.01 or 5.02 to the
contrary, neither CAMP nor any Company shall, and no Seller shall, directly or
indirectly, cause CAMP or any Company to, enter into any contract, arrangement,
lease, license or agreement or any modification of any Contract (other than
talent agreements entered into in the ordinary course of business and consistent
with past practice) which requires a payment of or to CAMP or a Company in
excess of $50,000 or which has a term of one year or longer without the Buyer's
written consent, which consent shall not be unreasonably withheld. If the Buyer
shall not notify the appropriate Seller Entity of the Buyer's consent or denial
of consent within three business days after the Buyer's actual receipt of the
request for consent, such consent shall be deemed to have been given.
Section 5.03 No Breach of Representations and Warranties.
None of the Sellers shall take any action (or cause, directly or
indirectly, CAMP, Eric/Chandler or any Company to take any action) which would
cause or constitute a material breach of any of its representations and
warranties set forth in this Agreement. Each of the Sellers shall, in the event
of, or promptly after the occurrence of, or promptly after obtaining knowledge
of the occurrence of or the impending or threatened occurrence of, any fact or
event which would cause or constitute a breach of any of the representations and
warranties set forth herein at any time after the date hereof and through the
Closing Date, give detailed notice thereof to the Buyer and shall use its best
efforts to prevent or promptly to remedy such breach.
Section 5.04 Access by the Buyer.
The officers, employees and representatives of the Buyer (collectively,
the "Buyer Representatives") shall be permitted access, during usual business
hours and as often as may be reasonably requested, to, and will be permitted to
make copies of and extracts from, the accounts, minute books, other records,
books of account, other books, deeds, leases, title documents, insurance
policies, contracts, commitments, sale orders, purchase orders, Tax Returns,
records, files and such other information relating to the Interests, any of the
Companies, their assets, CAMP, the E/C Assets and the Businesses as the Buyer
shall reasonably request. The Buyer Representatives shall be permitted access,
during usual business hours, and as often as may be reasonably requested, to the
premises and physical properties used in connection, in whole or in part, with
or by the Companies and CAMP. The Buyer Representatives shall be permitted to
discuss the Interests, the affairs, finances and accounts of the Companies, the
E/C Assets and CAMP with the Sellers and with officers and employees of the
Companies and CAMP and, with the consent of the Seller Entities (which consent
shall not be unreasonably withheld or delayed), with distributors, sales
representatives, licensees, licensors, suppliers and customers of the
Businesses.
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Section 5.05 HSR Act.
The Sellers shall file promptly with the United States Department of
Justice and the United States Federal Trade Commission true, correct and
complete copies of its pre-merger notification report forms and any other
information and documents required under the HSR Act in connection with the
transactions contemplated hereby and shall promptly notify the Buyer of any
communications in respect of either filing from the Department of Justice or the
Federal Trade Commission. The Seller Entities shall promptly furnish to the
Buyer (a) copies of all pleadings, notices or other communications received by
them that relate to the transactions contemplated by this Agreement and (b)
true, correct and complete copies of all other information in their possession
as may be necessary for completion of the reports or notifications to be filed
by the Buyer under the HSR Act. The determination of whether any filings are
required under the HSR Act shall be made by the Buyer's counsel.
Section 5.06 Consents; Notices; Termination.
The Sellers shall use their best efforts to obtain and deliver to the
Buyer written consents, in form and substance reasonably satisfactory to the
Buyer required in connection with this Agreement or the transactions hereby
contemplated. The Sellers or the Seller Entities shall also deliver all notices
to third parties required to be delivered in connection with the execution of
this Agreement and the transactions hereby contemplated.
Section 5.07 Best Efforts.
Each of the Seller Entities shall use its best efforts to effectuate
the transactions hereby contemplated and to fulfill the conditions to the
obligations of the Buyer under Article VII of this Agreement.
ARTICLE VI
PRE-CLOSING COVENANTS OF THE BUYER
The Buyer agrees that, subsequent to the date hereof and until the
Closing:
Section 6.01 No Breach of Representations and Warranties.
The Buyer shall not take any action which would cause or constitute a
material breach of any of its representations and warranties set forth herein.
The Buyer shall, in the event of, or promptly after the occurrence of, or
promptly after obtaining knowledge of the occurrence or the impending or
threatened occurrence of, any fact or event which would cause or constitute a
breach of any of the representations and warranties set forth herein at any time
after the date hereof and through the
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Closing Date, give detailed notice thereof to the Sellers and the Buyer shall
use its best efforts to prevent or promptly to remedy such breach.
Section 6.02 HSR Act.
The Buyer shall promptly file with the United States Department of
Justice and the United States Federal Trade Commission true, correct and
complete copies of its pre-merger notification report forms and any other
information and documents required under the HSR Act in connection with the
transactions contemplated hereby and shall promptly notify the Sellers of any
communications with respect to either filing from the Department of Justice or
the Federal Trade Commission. The Buyer shall promptly furnish to the Sellers
(a) copies of all pleadings, notices or other communications received by it that
relate to the transactions contemplated by this Agreement and (b) true, correct
and complete copies of all other information in their possession as may be
necessary for the completion of the reports or notifications to be filed by the
Seller Entities under the HSR Act.
Section 6.03 Consents and Approvals; Notices.
The Buyer shall use its best efforts to obtain and deliver to the
Sellers written consents, in form and substance reasonably satisfactory to the
Sellers, required in connection with this Agreement or the transactions hereby
contemplated. The Buyer shall also deliver all notices to third parties required
to be delivered in connection with the execution of this Agreement and the
transactions hereby contemplated.
Section 6.04 Best Efforts.
The Buyer shall use its best efforts to effectuate the transactions
hereby contemplated and to fulfill the conditions to the Sellers' obligations
under Article VIII of this Agreement.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF THE BUYER
All obligations of the Buyer under this Agreement are subject to the
fulfillment, at or prior to the Closing, of each of the following conditions,
any or all of which may be waived in whole or in part by the Buyer in its sole
discretion:
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Section 7.01 Representations and Warranties.
The representations and warranties of each of the Sellers contained in
Article III hereof and elsewhere herein if specifically qualified by
materiality, shall be true and correct and, if not so qualified, shall be true
and correct in all material respects in each case as of the Closing Date, as
though such representations and warranties were made on and as of such date,
except for those representations and warranties which are expressly made as of a
specified earlier date.
Section 7.02 Covenants.
The Seller Entities shall have performed and complied in all material
respects with all agreements, covenants and conditions on their part required by
this Agreement to be performed or complied with on or prior to the Closing Date.
Section 7.03 Officer's Certificate.
The Buyer shall have received a certificate of each of the Sellers,
dated the Closing Date, certifying to the fulfillment of the conditions
specified in Sections 7.01 and 7.02 hereof.
Section 7.04 Opinion of Counsel.
The Buyer shall have received an opinion of counsel for the Seller
Entities, dated the Closing Date, in form and substance reasonably acceptable to
the Buyer and its counsel, which opinion shall include, without limitation, a
zoning opinion (unless a zoning endorsement satisfactory to the Buyer in its
sole discretion is provided by the Sellers (at their sole expense) to the title
coverage for the Real Property) addressing among other things, public assembly
issues.
Section 7.05 Consents.
The Buyer shall have received (in form and substance reasonably
satisfactory to it) all approvals set forth in Schedule 3.06 from all
Governmental Bodies and other third parties in connection with the execution,
delivery and performance of this Agreement and the consummation of the
transactions hereby contemplated.
Section 7.06 HSR Act.
The Sellers shall have made all pre-merger notification filings
required to be made by them (or any of them) under the HSR Act, all applicable
waiting periods thereunder shall have expired or been terminated without any
request from any appropriate governmental agency for additional information or,
if additional information has been requested, all applicable extended waiting
periods shall have expired.
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Section 7.07 Legality.
No change shall have occurred in any law, rule or regulation which
would prohibit the performance of the obligations of the Buyer under Article II
hereof.
Section 7.08 Injunctions.
No court, agency or other authority shall have issued any order, decree
or judgment to set aside, restrain, enjoin or prevent the performance of the
obligations of the Buyer under Article II hereof. No statute, rule, regulation,
executive order, decree or injunction shall have been enacted, entered,
promulgated or enforced by any Governmental Body of competent jurisdiction which
prohibits the consummation of the Acquisition or any other transaction
contemplated hereby.
Section 7.09 Institution of Proceedings.
There shall not have been instituted by any third party any suit or
proceeding to restrain or invalidate this Agreement or the transactions hereby
contemplated or seeking damages from or to impose obligations upon the Buyer by
reason of this Agreement or the transactions hereby contemplated which, in the
good faith judgment of the Buyer, would involve expenses or lapse of time that
would materially and adversely affect the purpose and intent of and cost to the
Buyer in entering into this Agreement.
Section 7.10 Title Insurance.
The Sellers shall provide the Buyer, at the Seller's cost, with a title
policy (together with a non-imputation endorsement and a zoning endorsement
acceptable to Buyer) issued by Fidelity National Title Insurance Company, in the
amount of $10 million, insuring IMA's leasehold interest under the Ground Lease.
Section 7.11 Employment Agreements.
The employment agreements between certain of the Companies and each of
Murphy, Randy Brogna, and Matt Curto shall be in full force and effect.
Section 7.12 FIRPTA Certificates.
Each Seller shall have delivered to the Buyer a certificate which
states, under penalty of perjury, the taxpayer identification number and office
address of each transferor of Real Property as well as a statement that such
transferor is not a "foreign person" within the meaning of Section 1445(f)(3) of
the Code.
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Section 7.13 Intentionally Omitted.
Section 7.14 Audited Financial Statements.
True and complete copies of the (i) audited consolidated balance sheets
of TBA as of December 31, 1997, 1996 and 1995, and the related audited
statements of operations, cash flows and stockholders' equity for each of the
years then ended, all of which have been certified by Arthur Andersen LLP and
(ii) balance sheet and statement of operations in a consolidating format of the
Companies as of December 31, 1997 and a letter from Arthur Andersen LLP dated
May 5, 1998, with respect thereto (the "Audited Financial Statements"), shall
have been delivered to the Buyer and shall be consistent in all material
respects with the Financial Statements for the same periods.
Section 7.15 Consulting Services.
The Buyer (directly or through CAMP, a Company or other Affiliate)
shall have entered into a consulting agreement with Robert E. Geddes ("Geddes"),
providing that, among other things, from and after the Closing Date through the
earlier of (i) completion of development of the Amphitheater or (ii) December
31, 1998, Geddes will provide consulting services to the Buyer with respect to
such development at such times and on such terms as the Buyer and Geddes may
reasonably determine; provided, however, that Geddes shall assume no liability
with respect to such services and the Buyer shall agree to indemnify Geddes from
and against any and all liabilities that may arise with respect to the
development of the Amphitheater, except for liabilities that may arise with
respect to Geddes' gross negligence or willful misconduct or that are a result
of a material misrepresentation by Geddes.
Section 7.16 Certain Events.
Without regard to whether or not any Seller shall have breached any
covenant set forth in Article V, neither CAMP nor any Company nor Eric/Chandler
shall have (i) failed to take any action described in Section 5.01 or (ii) taken
any action described in Section 5.02.
Section 7.17 Closing of 49% Transaction.
The closing of the purchase from the 49% Sellers of the remaining 49%
of (i) the issued and outstanding Stock and (ii) the Partnership Interests shall
occur simultaneously with the Closing.
Section 7.18 Releases.
The Sellers and the Sellers' employees designated on Schedule 7.18
shall have executed and delivered to the Buyer releases in form and substance
reasonably satisfactory to the Buyer.
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Section 7.19 Trademark Assignment.
Each of Geddes and Brian F. Murphy ("Murphy") shall have transferred to
the Buyer all of his right, title and interest in and to the trademarks
identified on Schedule 7.19.
Section 7.20 Acknowledgement.
The Sellers shall have executed and delivered to the Buyer an
acknowledgement in form and substance reasonably satisfactory to the Buyer
relating to the role Geddes and Thomas Miserendino played in negotiating both
the terms of the Acquisition and the terms of the 49% Acquisition Agreement and
certain conflicts of interests of Geddes, Mr. Miserendino and Murphy due to
their positions with the Sellers and their interests under the 49% Acquisition
Agreement.
Section 7.21 Delivery of Notices.
The Buyer shall have received copies of all notices required (i) to be
delivered under any Contract as a result of or in connection with the
transactions contemplated hereunder or (ii) in order to obtain any permit or
license necessary to consummate the transactions contemplated hereunder,
together with evidence of the delivery of all of such notices, in form and
substance reasonably satisfactory to the Buyer.
Section 7.22 Assignment of E/C Assets.
Eric/Chandler shall have executed and delivered to the Buyer
assignments and other instruments of transfer in form and substance reasonably
satisfactory to the Buyer in order to assign and transfer the E/C Assets to the
Buyer.
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS
OF THE SELLERS
All obligations of the Sellers under this Agreement are subject to the
fulfillment, at or prior to the Closing, of each of the following conditions,
any or all of which may be waived in whole or in part by the Sellers in their
sole discretion:
Section 8.01 Representations and Warranties.
The representations and warranties of the Buyer contained in Article IV
hereof and elsewhere herein shall be true and correct on and as of the Closing
Date as though such representations and
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warranties were made on and as of such date, except for those representations
and warranties which are expressly made as of a specified earlier date.
Section 8.02 Covenants.
The Buyer shall have performed and complied with all agreements,
covenants and conditions on its part required by this Agreement to be performed
or complied with on or prior to the Closing Date.
Section 8.03 Officer's Certificate.
The Sellers shall have received a certificate of an executive officer
of the Buyer, dated the Closing Date, certifying to the fulfillment of the
conditions specified in Sections 8.01 and 8.02 hereof.
Section 8.04 Opinion of Counsel.
The Sellers shall have received an opinion of counsel for the Buyer,
dated the Closing Date, in form and substance reasonably acceptable to the
Sellers and their counsel.
Section 8.05 Consents.
The Seller Entities shall have received (in form and substance
reasonably satisfactory to them) all approvals set forth in Schedule 4.04 hereto
from all Governmental Bodies and other third parties in connection with the
execution, delivery and performance of this Agreement and the consummation of
the transactions hereby contemplated.
Section 8.06 HSR Act.
The Buyer shall have made all pre-merger notification filings required
to be made by them under the HSR Act, all applicable waiting periods thereunder
shall have expired or been terminated without any request from any appropriate
governmental agency for additional information or, if additional information has
been requested, all applicable extended waiting periods shall have expired.
Section 8.07 Legality.
No change shall have occurred in any law, rule or regulation which
would prohibit the performance of any of the Sellers' obligations under Article
II hereof.
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Section 8.08 Injunctions.
No court, agency or other authority shall have issued any order, decree
or judgment to set aside, restrain, enjoin or prevent the performance of any of
the Seller Entities' obligations under Article II hereof. No statute, rule,
regulation, executive order, decree or injunction shall have been enacted,
entered, promulgated or enforced by any Governmental Body of competent
jurisdiction which prohibits the consummation of the Acquisition or any other
transaction contemplated hereby.
Section 8.09 Institution of Proceedings.
There shall not have been instituted by any third party any suit or
proceeding to restrain or invalidate this Agreement or the transactions hereby
contemplated or seeking damages from or to impose obligations upon any of the
Sellers by reason of this Agreement or the transactions hereby contemplated
which, in their good faith judgment, would involve expenses or lapse of time
that would materially and adversely affect the purpose and intent of and cost to
the Sellers in entering into this Agreement.
Section 8.10 Delivery of Consideration.
There shall have been delivered to the Sellers the portion of the
Purchase Price to be paid to the Sellers at the Closing pursuant to Section
2.04.
Section 8.11 Employment Agreements.
The employment agreements between certain of the Companies and each of
Murphy, Randy Brogna and Matt Curto shall be in full force and effect.
Section 8.12 Closing of the 49% Transaction.
The closing of the purchase from the 49% Sellers of the remaining 49%
of (i) the issued and outstanding Stock and (ii) the partnership interests in
IMA shall occur simultaneously with the Closing.
Section 8.13 Trademark License Agreement.
The Buyer, TBA and certain Affiliates of TBA shall have entered into a
Trademark License Agreement relating to the name and mark "Avalon" and related
registrations, in form and substance reasonably satisfactory to the Buyer and
TBA.
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ARTICLE IX
ADDITIONAL AGREEMENTS OF THE PARTIES
Section 9.01 Tax Matters.
(a) From and after the Closing, each of the Sellers, on the
one hand, and the Buyer, on the other hand, shall cooperate fully with each
other and make available or cause to be made available to each other for
consultation, inspection and copying (at such other party's expense) in a timely
fashion such personnel, tax data, Tax Returns and filings, files, books,
records, documents, financial, technical and operating data, computer records
and other information as may be reasonably required (i) for the preparation by
any of them of any Tax Returns, elections, consents or certificates required to
be prepared and filed by such parties or any of the Companies (which, for
purposes of this Section, shall include CAMP) or (ii) in connection with any
audit or proceeding relating to Taxes relating to the assets of the Companies or
the Businesses. The Buyer agrees (A) to retain all books and records with
respect to Tax matters pertinent to the Companies relating to any taxable period
beginning before the Closing Date until the expiration of the statute of
limitations (and, to the extent notified by Buyer or Sellers, any extensions
thereof) of the respective taxable periods, and to abide by all record retention
agreements entered into with any taxing authority, and (B) to give the other
party reasonable written notice prior to transferring, destroying or discarding
any such books and records and, if the other party so requests, the Buyer shall
allow the other party to take possession of such books and records.
(b) The Sellers shall prepare or cause to be prepared all
sales, use or other transfer tax returns required to be filed with any taxing
authority relating to the transfer of the Interests to the Buyer (collectively,
"Transfer Tax Returns"), as well as all income Tax Returns of the Companies
covering the taxable period ending on the Closing Date and all other
(non-income) Tax Returns of the Companies covering any taxable period (or
portion thereof) preceding the Closing Date. In the case of the Transfer Tax
Returns and all other Tax Returns described in the preceding sentence, at least
25 days prior to the due date thereof (including extensions), the Sellers shall
provide a copy of such Tax Returns of the Companies, in the form proposed to be
filed, to Buyer for its good faith review and approval. The Buyer shall provide
the Sellers with any comments it has on such Tax Returns at least 10 days prior
to the due date thereof and, if no comments are provided to the Sellers within
such period, shall be deemed to have approved such Tax Returns. IMA shall make a
valid election under sections 743 and 754 of the Code (and any corresponding
provisions of state and local Tax law as the Buyer requests) on its income Tax
Return for the taxable period ending on the Closing Date. The partners of IMA
shall report the Tax consequences of the sale of the Partnership Interests
consistently with all allocations and Tax basis adjustments of the Purchase
Price made by the Buyer with respect to the purchase of IMA.
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(c) None of the parties hereto shall cause an election to be
made, an accounting method for Tax purposes to be adopted, or a position to be
taken on any Tax Return, or in any Tax Proceeding, other than an election under
sections 743 and 754 of the Code described in (b) above, that is inconsistent
with the provisions of this Agreement. In addition to the foregoing and not in
limitation thereof, the Sellers shall not, and shall use their best efforts to
cause the Companies to not, without the written consent of the Buyer, cause any
election to be made, or any accounting method to be adopted or any position to
be taken with respect to the assets of the Companies in any Tax Return that has
not yet been filed or in any Tax Proceeding if such election, method or position
is inconsistent with any election, accounting method or position previously
adopted, taken or elected by any Subsidiary or is inconsistent with any
representation herein or covenant hereunder.
(d) From and after the Closing, the Sellers shall pay and
shall indemnify and hold harmless the Buyer from and against, any and all Taxes
levied by any foreign, federal, state or local Taxing Authority with respect to
the ownership or use of the assets of the Companies or the conduct of the
Businesses on or prior to the Closing Date, including, without limitation, any
and all of any such Seller Entity's Tax liabilities, whether a direct liability
or a joint and several liability imposed pursuant to Treasury Regulation Section
1.1502-6 or any comparable provision under foreign, state or local laws by
reason of any Seller Entity having been a member of any consolidated, combined,
unitary or similar group at any time, and the Buyer shall pay, and shall
indemnify and hold harmless the Sellers from and against, any and all such Taxes
with respect to the ownership or use of such assets or the conduct of the
Businesses after the Closing Date. The Sellers shall be entitled to retain or
the Buyer shall pay TBA all refunds of Taxes (whether in the form of payment,
credit or otherwise) from any Taxing Authority to the extent that such refunds
are attributable to the Taxes with respect to the ownership or use of the assets
or the conduct of the Businesses on or prior to the Closing Date. The
indemnification agreements of the Sellers on the one hand, and the Buyer on the
other hand, pursuant to this Section 9.01(d) shall not be subject to Section
11.04 of this Agreement.
(e) The Buyer will file a consolidated federal income Tax
return which will include the operations of the Companies or the conduct of the
Businesses after the Closing Date.
(f) The Buyer and the Sellers further agree, upon request, to
use their best efforts to obtain any certificate or other documents from any
Governmental Body or any other Person as may be necessary, at no material cost
to the Sellers, to mitigate, reduce or eliminate any Tax that could be imposed
(including, but not limited to, with respect to the transactions contemplated
hereby).
(g) The Buyer and the Sellers further agree, upon request, to
provide the other party with all information that either party may be required
to report pursuant to Section 6043 of the Code and all Treasury Department
Regulations promulgated thereunder.
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(h) All tax sharing agreements or similar agreements with
respect to or involving the Companies shall be terminated as of the Closing Date
and, after the Closing Date, the Companies shall not be bound thereby or have
any liability thereunder.
(i) All transfer, documentary, sales, use, stamp, registration
and other such Taxes and fees (including any penalties and interest) incurred in
connection with this Agreement, shall be paid by the Sellers when due, and the
Sellers will, at their own expense, file all necessary Tax Returns in accordance
with Section 9.01(b) and shall deliver copies of all tax Returns and other
documentation filed with respect thereto to the Buyer promptly after filing.
(j) Intentionally Omitted.
(k) The partners of IMA shall report, for U.S. federal income
Tax purposes, 100% in the aggregate of all taxable income, gain, loss and
deductions of IMA for the taxable year of IMA ending on the Closing Date.
(l) As of the close of the day immediately preceding the
Closing Date, IMA shall have no liability for unpaid Taxes, other than Taxes (if
any) of IMA that have accrued as of such date in the ordinary course of the
Business but are not yet due and payable.
Section 9.02 Bulk Transfer Laws.
The Buyer hereby waives compliance by the Sellers with the provisions
of any so-called bulk transfer laws of any jurisdiction in connection with the
sale and transfer of the Interests to the Buyer. Each of the Sellers agrees,
jointly and severally, to indemnify the Buyer against any and all losses, costs,
expenses, liabilities or damages which may be asserted by third parties against
the Buyer as a result of non-compliance with any such bulk transfer laws. The
agreement to indemnify the Buyer pursuant to this Section 9.02 shall not be
subject to Section 11.04 of this Agreement.
Section 9.03 [Intentionally Omitted.]
Section 9.04 Restrictive Covenants.
(a) For the two-year period commencing on the Closing Date,
without the prior written consent of the Buyer, the Sellers shall not, directly
or indirectly, as a director, officer, agent, employee, consultant, or
independent contractor, or in any other individual or representative capacity
(i) develop, construct, operate or manage venues within the greater Los Angeles,
California area which shall include, but not be limited to, Los Angeles, Ventura
and Santa Barbara Counties, (ii) engage in the production or promotion of "at
risk" music or concert productions or promotions in the greater Los Angeles,
California area which is inconsistent with past practice and in any event
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which generate gross revenues which exceed $10,000,000, or (iii) develop,
construct, operate or manage a venue in Portland, Oregon.
(b) It is the intent and understanding of each party hereto
that if in any action before any court or agency legally empowered to enforce
this Section 9.04, any term, restriction, covenant or promise in this Section
9.04 is found to be unreasonable and for that reason unenforceable, then such
term, restriction, covenant or promise shall be construed so as thereafter to be
limited or reduced to make it enforceable by such court or agency under
applicable law, it being understood that the parties hereto regard such
restrictions as reasonable and compatible with their respective rights.
(c) Without limiting the right of the Buyer to pursue all
other remedies available for a violation of this Section 9.04, it is agreed
that, because of the unique nature of each Seller's services and in view of the
nature of the Businesses, each Seller acknowledges that a breach or threatened
breach by him of this Section 9.04 will cause the Buyer irreparable damage and
incalculable harm and, accordingly, the Buyer shall be entitled to seek
preliminary and permanent injunctive and other relief to prevent a violation or
continuing violation hereof, without the necessity of proving damages or the
posting of a bond.
Section 9.05 Non-Solicitation.
For the two-year period commencing on the Closing Date, no Seller nor
any Affiliate of any Seller shall, on his or its own behalf or on behalf of any
other person, partnership, association, corporation, or other entity, (i)
persuade or attempt to persuade any person providing goods or services to the
Buyer, CAMP or any Company not to do business with the Buyer, CAMP or such
Company or to reduce the amount of business it does with the Buyer, CAMP or such
Company; (ii) persuade or attempt to persuade any performer, act or customer not
to do business with the Buyer, CAMP or any Company or to reduce the amount of
business it does with the Buyer, CAMP or such Company; (iii) dissuade or attempt
to dissuade any individual who was a director, officer or employee of CAMP or a
Company prior to the date hereof from hereafter becoming a director, officer or
employee of the Buyer or (iv) hire or solicit any employee of any Company, or
any Affiliate thereof listed on Schedule 9.05 (an "Employee") or in any manner,
directly or indirectly, solicit, induce or attempt to persuade or influence any
Employee to leave the employment of a Company or such Affiliate thereof;
provided, however, nothing in this Section 9.05 shall prevent a Seller from
hiring, or soliciting to hire, any Employee who is terminated by a Company, or
any Affiliate thereof, during such two-year period. The Buyer acknowledges that
employees of the Companies may voluntarily terminate their employment prior to
the Closing Date.
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Section 9.06 No-Shop.
From the date hereof until the Closing, the Sellers covenant and agree
that no Seller shall, and the Sellers shall use their best efforts to cause the
Companies and CAMP not to, authorize or permit any Affiliate, officer, director,
shareholder or employee of, or any investment banker, attorney, accountant or
other representative retained by, any Seller or Company to make, solicit,
initiate, encourage or respond to a submission of a proposal or offer from any
person or entity (other than the Buyer) relating to the liquidation,
dissolution, recapitalization, merger, consolidation, acquisition or purchase of
all or a material portion of the assets of any Company or of CAMP, the E/C
Assets, or the outstanding equity interests of any Company, of CAMP or of
Eric/Chandler or other similar transaction or business combination involving any
Company and CAMP (hereinafter collectively referred to as a "Third Party
Offer"). The Sellers will, and will cause the Companies, CAMP and Eric/Chandler
to, immediately cease and cause to be terminated any contracts or negotiations
currently pending with respect to Third Party Offers, if any.
Section 9.07 [Intentionally Omitted.]
Section 9.08 [Intentionally Omitted.]
Section 9.09 Subdivision.
From and after the Closing, the Sellers will continue the process of
filing subdivision maps with respect to Irvine Meadows amphitheater and
obtaining the reciprocal easement agreement relating thereto or, at the Buyer's
option, will assist the Buyer in filing such maps and obtaining the reciprocal
easement agreement relating thereto. All costs and expenses arising out of
filing such maps and obtaining the reciprocal easement agreement relating
thereto, including, without limitation, those costs and expenses associated with
the reciprocal easement required by the City of Irvine or with amending the
Ground Lease in connection therewith, if necessary, will be paid by the Sellers
and the 49% Sellers.
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Section 9.10 License of Office Space.
Notwithstanding any provisions hereof to the contrary, the Buyer agrees
that the Sellers may continue to occupy up to 1,500 square feet of space (the
"Hold-over Premises") under that certain lease dated June 12, 1995, between New
Avalon Inc., as tenant, and R&D Building Company, as landlord (as described on
Schedule 3.08 attached hereto), for a period not to exceed 30 days after the
Closing. The Sellers shall be obligated to pay for all utilities (including,
without limitation, telephone bills) but shall not be obligated to pay rent.
Except as set forth in the prior sentence, the Sellers, jointly and severally,
shall indemnify and hold Buyer harmless from any and all costs, expenses, claims
or liabilities arising out of Seller's use of the Hold-over Premises. The
foregoing indemnity shall not be subject to the limitations set forth in Section
11.04(a). The Sellers acknowledge and agree that its vacating the Hold-over
Premises is an essential term of this Agreement and if the Sellers breach such
obligation, the Buyer will suffer substantial damages and shall have available
all rights and remedies at law or equity.
Section 9.11 Expenses of the Transaction.
Except as otherwise set forth herein, each of the parties hereto agrees
to pay its own fees and expenses in connection with this Agreement and the
transactions contemplated hereby. The Sellers hereby covenant and agree that
they will not pay their expenses incurred in connection with the transactions
contemplated hereby (including, without limitation, attorneys' and auditors'
fees and expenses) prior to the Closing Date and that subsequent thereto, they
shall use the Purchase Price to pay such expenses.
ARTICLE X
TERMINATION
Section 10.01 Termination.
This Agreement may be terminated at any time prior to the Closing Date:
(a) by mutual consent of the parties hereto;
(b) by the Buyer, if there has been a material violation or
breach by any of the Sellers of any representation, warranty, covenant or
agreement contained in this Agreement or any failed condition to the obligations
of the Buyer under Article VII hereof and such breach, violation or failed
condition is not cured within a reasonable period, not to exceed 30 days, after
written notice thereof is given;
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(c) by any of the Sellers, if there has been a material
violation or breach by the Buyer of any representation, warranty, covenant or
agreement contained in this Agreement or any failed condition to the obligations
of the Sellers under Article VIII hereof and such breach, violation or failed
condition is not cured within a reasonable period, not to exceed 30 days, after
written notice thereof is given;
(d) by the Buyer or by the Sellers acting together, if the
Acquisition shall not have been consummated within 10 business days after the
date on which all consents of Governmental Bodies required to consummate the
transactions contemplated by this Agreement shall have been received (unless (i)
the failure to consummate the Acquisition by such date shall be (A) due to the
action or failure to act of the party or parties seeking to terminate this
Agreement or (B) in any way attributable to the fault of any party seeking to
terminate this Agreement, which fault, for purposes hereof, shall include,
without limitation, the making by any Seller in this Agreement or the Letter
Agreement of any material misrepresentation and the failure by any Seller to
make in this Agreement or the Letter Agreement any statement necessary to make
the statements contained herein or therein not misleading, in light of the
circumstances in which they were made or (ii) the conditions to the obligations
of the non-terminating party or parties shall not have been satisfied by such
date) and the non-terminating party refuses to close within 30 days of the
terminating party's notice of termination; provided, however, that if the
non-breaching party shall have given the appropriate notice under Article XI
hereof prior to any such termination, then the indemnification provisions set
forth in Article XI hereof shall survive any such termination of this Agreement
as to any party who shall be in breach of this Agreement as at such date or at
any earlier date of the termination of this Agreement pursuant hereto, unless
the survival of such provisions is specifically waived by the non-breaching
party or parties hereto; or
(e) by any party, if (i) the conditions to obligations of such
party or any other party shall have become impossible to satisfy, other than as
a result of its own acts or omissions in violation of its obligations hereunder
or (ii) any permanent injunction or other order of a court or other competent
authority preventing the consummation of the Acquisition shall have become final
and nonappealable.
Section 10.02 Effect of Termination.
If this Agreement shall be terminated pursuant to Section 10.01 hereof,
this Agreement shall forthwith become void and have no effect, without any
liability on the part of any party hereto or its Affiliates, directors, officers
or stockholders, other than the provisions of Article XI and Sections 12.07 and
12.08 hereof; provided, however, that nothing contained in this Section 10.02
shall be deemed to constitute a release or waiver by any party of any claim at
law or in equity against another
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party hereto based on any breach of such party's representations, warranties,
covenants or agreements contained herein.
ARTICLE XI
INDEMNIFICATION
Section 11.01 Survival of Representations and Warranties.
All representations and warranties made hereby by the parties to this
Agreement, unless waived in writing and notwithstanding any examination by or on
behalf of any party hereto and the consummation of the transactions hereby
contemplated, shall survive for a period of two years after the Closing;
provided, however, that the representations and warranties made in Sections
3.15, 3.17, 3.18, 3.19 and 9.01 hereto shall survive for the statute of
limitations applicable thereto. Notwithstanding the foregoing, any
representation or warranty hereof shall survive the time at which it would
otherwise terminate pursuant to the preceding sentence, if notice of the
inaccuracy or breach thereof or the claim thereunder shall have been given to
the party from whom indemnity may be sought in respect thereof prior to the
expiration of the applicable survival period therefor. All covenants and
agreements made hereby by the parties to this Agreement shall, unless waived in
writing, survive the Closing.
Section 11.02 By the Sellers.
Each of the Sellers, jointly and severally, agrees to indemnify and
hold harmless the Buyer and its directors, officers, employees and agents (the
"Buyer Parties") against, and to reimburse the Buyer Parties on demand with
respect to, any and all losses, liabilities, obligations, suits, proceedings,
demands, judgments, damages, claims, expenses and costs (including, without
limitation, reasonable fees, expenses and disbursements of counsel)
(collectively, "Losses") which each may suffer, incur or pay, by reason of (i)
the breach by any Seller of any representation or warranty contained in this
Agreement or in any other Document executed by a Seller and delivered to a Buyer
Party pursuant to the provisions of this Agreement, or (ii) the failure of any
Seller to perform any agreement required hereby or by any other Document.
Section 11.03 By the Buyer.
The Buyer agrees to indemnify and hold harmless the Sellers and their
respective directors, officers, employees and agents (the "Seller Parties")
against, and to reimburse the Seller Parties on demand with respect to, any and
all Losses which each may suffer, incur or pay by reason of (i) the breach by
the Buyer of any representation or warranty contained in this Agreement or in
any other Document executed by the Buyer and delivered to the Sellers pursuant
to the provisions of this
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Agreement, (ii) the failure of the Buyer to perform any agreement required
hereby or any agreement executed pursuant to the provisions hereof, or (iii)
claims and liabilities of the Companies disclosed in the Financial Statements or
on the Schedules hereto or with respect to the ownership and operation of the
Companies on or after the Closing Date, subject to (A) any right to
indemnification to which the Buyer is entitled with respect thereto hereunder
and (B) any and all other rights of the Buyer hereunder.
Section 11.04 Limitations on Indemnification.
(a) Except as otherwise provided herein neither the Buyer
Parties, on the one hand, nor the Seller Parties, on the other hand, shall be
entitled to be indemnified pursuant to Section 11.02 or Section 11.03 hereof
unless and until the aggregate of all Losses incurred by the Buyer Parties or
the Seller Parties, as the case may be, exceeds $50,000 and, upon exceeding such
amount, the Buyer Parties or the Seller Parties shall be entitled to be
indemnified for all Losses in excess of such $50,000 threshold on a dollar for
dollar basis.
(b) The Sellers shall be jointly and severally liable for all
obligations of the Seller under Section 10.02.
Section 11.05 Indemnification Procedure for Third Party Claims.
Promptly, and in any event within 30 days after the receipt by any
party hereto of notice of any claim or the commencement of any action or
proceeding by a third party, such party will, if a claim with respect thereto is
to be made against any party obligated to provide indemnification hereunder (the
"Indemnifying Party"), give such Indemnifying Party written notice of such claim
or the commencement of such action or proceeding, but any failure to timely
notify the Indemnifying Party shall not relieve the Indemnifying Party of its
obligations hereunder except to the extent it was actually prejudiced thereby.
Upon unconditional and unqualified written acknowledgment of the Indemnified
Party's entitlement to indemnification therefor and if the Indemnifying Party
has sufficient resources to pay any final judgment, such Indemnifying Party
shall have the right, at its option, to settle, compromise or defend, at its own
expense and with its own counsel, any such claim, action or proceeding involving
the asserted liability of the party seeking such indemnification (the
"Indemnified Party"), provided that the Indemnifying Party shall not settle,
compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding except with the consent of the Indemnified Party
(which consent shall not be unreasonably withheld or delayed). If the
Indemnifying Party fails to assume the defense of such claim, action or
proceeding within 30 days of receipt of notice of such claim, action or
proceeding, or if at any time the Indemnifying Party shall fail to defend in
good faith any such claim, action or proceeding, the Indemnified Party may
assume the defense thereof and may employ counsel with respect thereto and all
fees and expenses of such counsel shall be paid by the Indemnifying Party, and
the Indemnified Party may conduct and
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defend such claim, action or proceeding in such manner as it may deem
appropriate, subject, however, to the last sentence of this Section 11.05. If
any Indemnifying Party undertakes to compromise, settle or defend any such
asserted liability, it shall promptly notify the Indemnified Party of its
intention to do so, and the Indemnified Party agrees to cooperate fully with the
Indemnifying Party and its counsel in the compromise of, or defense against, any
such asserted liability. The Indemnified Party may appoint, at its own expense,
associate counsel to participate in the joint defense of any such matter with
respect to which the Indemnifying Party has undertaken the defense, and the
Indemnifying Party may appoint, at its own expense, associate counsel to
participate in the joint defense of any such matter which the Indemnified Party
is defending. No Indemnified Party shall settle, compromise or consent to the
entry of any judgment in any pending or threatened claim, action or proceeding
except with the consent of the Indemnifying Party (which consent shall not be
unreasonably withheld or delayed).
ARTICLE XII
MISCELLANEOUS
Section 12.01 Further Assurances.
Each of the parties agrees and covenants promptly to execute and
deliver, or cause to be executed and delivered, to each of the other parties
such documents or instruments, in addition to those expressly required by the
Agreement to be executed and delivered, as any of the other parties may
reasonably deem necessary or desirable to carry out or implement any provision
of the Agreement and the transactions contemplated hereby. In addition to the
foregoing and not in limitation thereof, each of the Sellers hereby constitutes
and appoints the Buyer as its true and lawful attorney, with full power of
substitution, in the name of the Sellers, Eric/Chandler and each of them, but
for the benefit of the Buyer, (a) to collect, assert or enforce any claim, right
or title of any kind in or to the Interests or the E/C Assets, to institute and
prosecute claims, actions, suits and proceedings which the Buyer may deem proper
in order to collect, assert or enforce any such claim, right or title, to defend
and compromise all claims, actions, suits and proceedings in respect of any such
Interest or any E/C Asset and to do all acts and things in relation thereto as
the Buyer shall deem advisable and (b) to take all such action which the Buyer
may deem proper in order to provide for it the benefits of the Interests and the
E/C Assets, including, without limitation, where any required consent of a third
party to the assignment thereof to the Buyer shall not have been obtained. Each
of the Sellers acknowledges that such powers are coupled with an interest and
may not be revoked by it in any manner or for any reason.
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Section 12.02 Entire Agreement.
This Agreement and the Letter Agreement, together with all agreements,
schedules, exhibits, documents and other instruments attached hereto or to be
delivered hereunder sets forth the entire understanding between the parties,
there are no terms, conditions, representations, warranties or covenants other
than those contained herein and in such agreements, schedules, exhibits,
documents and other instruments attached hereto or to be delivered hereunder,
and all prior agreements, contracts, promises, representations and statements,
if any, among the parties hereto as to the subject matter hereof, are merged
into this Agreement. Notwithstanding anything to the contrary contained herein,
to the extent that the Letter Agreement and this Agreement are inconsistent, the
terms of this Agreement shall control.
Section 12.03 Notices.
(a) All notices, consents, demands or other communications
required or permitted to be given pursuant to the Agreement shall be in writing
and shall be deemed sufficiently given on (i) the day on which delivered
personally or by telecopy (with prompt confirmation by mail) during a business
day to the appropriate location listed as the address below, (ii) three business
days after the posting thereof by United States registered or certified first
class mail, return receipt requested with postage and fees prepaid, or (iii) one
business day after deposit thereof for overnight delivery. Such notices,
consents, demands or other communications shall be addressed respectively:
As to the Buyer:
SFX Entertainment, Inc.
650 Madison Avenue
New York, New York 10022
Attention: Howard Tytel, Esq.
Telecopy No.: (212) 486-4830
with a copy to:
Rosenman & Colin LLP
575 Madison Avenue
New York, New York 10022-2585
Attention: Howard Schneider, Esq.
Telecopy No.: (212) 940-8563
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As to the Sellers:
TBA Entertainment Corporation
AWC Acquisition Corp.
402 Heritage Plantation Way
Hickory Valley, Tennessee 38042
Attention: Thomas Jackson Weaver III
Telecopy No.: (901) 764-6107
with a copy to:
Winstead Sechrest & Minick P.C.
5400 Renaissance Tower
Dallas, Texas 75270
Attention: Randall E. Roberts, Esq.
Telecopy No.: (214) 745-5390
or to any other address or telecopy number which such party may have
subsequently communicated to the other parties in writing in accordance with the
terms of this Section 12.03, except such notice shall only be effective upon
actual receipt by the intended recipient.
(b) Except as otherwise provided in this Agreement, any
notice, consent, demand or other communication given hereunder may be signed on
behalf of a party by any duly authorized representative of that party.
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<PAGE> 56
Section 12.04 Binding Effect; Successors and Assigns.
Each and every representation, warranty, covenant, agreement,
indemnification, and provision of this Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
successors and assigns. This Agreement may not be assigned by any party hereto
without the prior written consent of the other parties hereto, except that the
Buyer may assign this Agreement to any of its Affiliates without the consent of
any other party; provided, however, that in the event of any such assignment,
the Buyer shall remain liable for the payment and performance of its obligations
hereunder. Any purported assignment in violation of this Agreement shall be null
and void.
Section 12.05 Governing Law.
This Agreement and any other agreement entered into in connection
herewith shall be governed by, and construed under and in accordance with, the
laws of the State of New York without giving effect to the conflict of laws
principles thereof.
Section 12.06 Captions.
The captions and the table of contents appearing in this Agreement are
inserted only as a matter of convenience and for reference and in no way define,
limit or describe the scope or intent of this Agreement or any of the provisions
hereof.
Section 12.07 Confidentiality of Disclosures.
Any corporate information, records, documents, descriptions or other
disclosures of whatsoever nature or kind made or disclosed by any of the parties
to any of the other parties, or to the authorized representative thereof, or
learned or discovered by such other party or by any representative thereof in
the course of the investigations pursuant to the consummation of the
transactions contemplated by this Agreement (whether prior to or after the date
of the execution of this Agreement) and not known by or available to the public
at large, shall be received in confidence and none of the parties nor any such
authorized representative shall disclose or make use of such information or
authorize anyone else to disclose or make use thereof without the written
consent of the other relevant parties hereto, except (a) as necessary to
consummate the transactions contemplated hereby, (b) that the parties hereto
shall continue such communications with directors, employees, customers,
suppliers, franchisees, lenders, lessors, shareholders, partners and other
particular groups as may be legally required or necessary or appropriate and not
inconsistent with the best interests of the other parties for the proper
consummation of the transactions contemplated herein, and (c) as compelled by
judicial or administrative process or by other requirements of applicable law
including any disclosure under federal securities laws; provided, however, that
in the
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case of any disclosure contemplated pursuant to this clause (c), the party
seeking to disclose such information shall give the other party or parties
reasonable prior written notice thereof in order to afford such other party or
parties reasonable opportunity to seek a protective order or other limitation
under such disclosure.
Section 12.08 Publicity.
Any communications and notices to third parties and all other publicity
concerning the transactions contemplated by this Agreement (other than
governmental or regulatory filings) shall be planned and coordinated by and
among each of the parties and shall, to the extent reasonably practicable, be
provided to the other party at least 24 hours prior to the release of any such
publicity. Unless required by applicable law, none of the parties shall
disseminate or make public or cause to be disseminated or made public any
information regarding the transactions contemplated hereunder without the prior
written approval of the other parties, which approval shall not be unreasonably
withheld or delayed.
Section 12.09 Consent to Jurisdiction.
With respect to any claim arising out of this Agreement, each of the
parties hereto irrevocably submits to the non-exclusive jurisdiction of the
courts of the State of New York and the United States District Court located in
the Borough of Manhattan, the City of New York (and of the appropriate appellate
courts thereof). In addition, each of the parties hereto irrevocably waives any
objection which it may now or hereafter have to the laying of venue of any
action, suit or proceeding arising out of or relating to this Agreement brought
in such courts, irrevocably waives any claim that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum
and further irrevocably waives the right to object with respect to such claim,
action, suit or proceeding brought in any such court, that such court does not
have jurisdiction over him or it, as the case may be, or any other party hereto.
The parties hereto hereby agree that process in any such action or proceeding
may be served on any party anywhere in the world, whether within or without the
State of New York, provided that notice thereof is provided pursuant to the
provisions of Section 12.03 hereof.
Section 12.10 Fees and Expenses.
All costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the party incurring such
expenses.
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Section 12.11 Third Parties.
Other than the parties hereto, no person shall have any rights under or
to enforce any provision of this Agreement.
Section 12.12 Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which taken together shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
SFX ENTERTAINMENT, INC.
By:
-------------------------------------
Name:
Title:
TBA ENTERTAINMENT CORPORATION
By: /s/ Thomas J. Weaver III
-------------------------------------
Name: Thomas J. Weaver III
Title: Chief Executive Officer
AWC ACQUISITION CORP.
By: /s/ Thomas J. Weaver III
-------------------------------------
Name: Thomas J. Weaver III
Title: Chief Executive Officer
<PAGE> 60
SCHEDULE 1.01
Defined Terms
"49% Acquisition Agreement" means that certain Purchase Agreement,
dated as of even date herewith, by and among the Buyer, Irving Azoff, Robert E.
Geddes, Peach Street Partners, Ltd., Robert E. Geddes, as Trustee of The Robert
E. Geddes Family Trust, Thomas Miserendino and Kristyne Miserendino, as
Co-trustees of the Miserendino Family Trust and Brian F. Murphy, relating to the
purchase of the 49% of the issued and outstanding Partnership Interests and
Stock not owned by the Sellers.
"49% Sellers" means parties to the 49% Acquisition Agreement (other
than the Buyer), who are the sellers under the 49% Acquisition Agreement.
"Acquisition" has the meaning ascribed to such term in the third
recital to this Agreement.
"Affiliate" or "affiliate" means, with respect to a specified Person, a
Person that directly, or indirectly through one or more intermediaries, controls
or is controlled by, or is under common control with, the Person specified.
"Amphitheater" has the meaning ascribed to such term in Section 2.04
hereof.
"Audited Financial Statements" has the meaning ascribed to such term in
Section 7.14 hereof.
"AWC" has the meaning ascribed to such term in the Preamble hereto.
"Businesses" has the meaning ascribed to such term in the second
recital to this Agreement.
"Buyer" has the meaning ascribed to such term in the Preamble hereto.
"Buyer Parties" has the meaning ascribed to such term in Section 11.02
hereof.
"Buyer Representatives" has the meaning ascribed to such term in
Section 5.04 hereto.
"CAMP" means Camarillo Amphitheater Managing Partners, Inc., a
wholly-owned subsidiary of West Coast Amphitheater Corp.
"Closing" has the meaning ascribed to such term in Section 2.02 hereof.
"Closing Date" has the meaning ascribed to such term in Section 2.02
hereof.
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"Commission" means the Securities and Exchange Commission.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any successor statute thereto.
"Companies" has the meaning ascribed to such term in the first recital
to this Agreement.
"Concession Agreement" has the meaning ascribed to such term in Section
3.28 hereof.
"Construction Budget" has the meaning ascribed to such term in Section
2.04 hereof.
"Contracts" has the meaning ascribed to such term in Section 3.11
hereof.
"Documents" means this Agreement and the other documents, instruments
and agreements to be executed and delivered pursuant thereto.
"E/C Assets" has the meaning ascribed to such term in Section 2.07.
"Employee" has the meaning ascribed to such term in Section 9.05
hereof.
"Environment" means soil, surface waters, ground waters, land, stream
sediments, surface or subsurface strata, ambient air, and any environmental
medium.
"Environmental Condition" means (a) any condition with respect to the
Environment on the Premises, whether or not yet discovered, caused by activities
conducted or conditions existing on the Premises, which constitutes a violation
of any Environmental Law or which could or does result in any damage, loss,
cost, expense, claim, demand, order or liability to or against the Buyer or any
of its affiliates, directly or indirectly, including, without limitation, any
condition resulting from the ownership or use of any property by any Company or
CAMP or, with respect to the Businesses, any of the Sellers or any of their
respective Affiliates or predecessors, or the operation of the Businesses and/or
any activity or operation formerly conducted by any person on the Premises or
(b) the presence, Release or Threat of Release of Hazardous Substances on, under
or from the Premises.
"Environmental Laws" means (a) any Governmental Rule regulating or
relating or pertaining to the Environment or the protection of human health,
whether existing as of the date hereof, previously enforced or subsequently
enacted, including, without limitation, the Resource Conservation and Recovery
Act, as amended, the Comprehensive Environmental Response, Compensation, and
Liability Act, as amended, or the Federal Clean Water Act, as amended; (b) any
Governmental Rule, whether existing as of the date hereof, that asserts or may
assert jurisdiction over the Sellers or the Premises or the operations or
activity at the Premises that relates or pertains to the Environment, including,
without limitation, those which regulate the presence, release, emission, threat
of release, use, handling, manufacturing, generation, production, storage,
treatment,
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processing, transportation or disposal of any Hazardous Substance, including,
but not limited to (i) requiring any permit, license, approval, consent or
authorization, or the renewal thereof, (ii) regulating the amount, form, manner
of storage, transport and/or disposal of Hazardous Substances, or (iii)
requiring any reporting, inspection report, business plan, notification, or any
other dissemination of or access to information regarding Hazardous Substances,
including warnings or notices to tenants, subtenants, employees, occupants,
invitees or consumers.
"Eric/Chandler" has the meaning ascribed to such term in Section 2.07.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, any successor statute thereto and all final or
temporary regulations promulgated thereunder.
"ERISA Affiliate" means all members of a controlled group of
corporations and all trades and businesses (whether or not incorporated) under
common control and all other entities which, together with any of the Companies,
are treated as a single employer under any or all of Sections 414(b), (c), (m)
or (o) of the Code on either the date of this Agreement or the Closing Date or
at any time during the six year period ended on the date of this Agreement.
"Facilities" means all Real Property now or previously owned by a
Company or CAMP or currently or previously used in connection with the
Businesses.
"Financial Statements" has the meaning ascribed to such term in Section
3.12 hereof.
"GAAP" means generally accepted accounting principles in the United
States of America in effect from time to time.
"Geddes" has the meaning ascribed to such term in Section 7.15.
"Governmental Body" means any federal, state, local or foreign
governmental authority or regulatory body, any subdivision, agency, commission
or authority thereof (including, without limitation, environmental protection,
planning and zoning), or any quasi-governmental or private body asserting,
exercising or empowered to assert or exercise any regulatory authority
thereunder and any person directly or indirectly owned by and subject to the
control of any of the foregoing, or any court, arbitrator or other judicial or
quasi-judicial tribunal.
"Governmental Rules" means any statute, law, treaty, rule, code,
ordinance, regulation, permit, certificate or order of any Governmental Body or
any judgment, decree, injunction, writ, order or like action of any Governmental
Body, whether now or hereinafter enacted or in force.
"Ground Lease has the meaning ascribed to such term in Section 3.27
hereof.
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"Hazardous Substances" means (a) any pollutant, toxic substance,
contaminant, chemical, hazardous waste, hazardous material, petroleum product,
oil, radioactive material or energy; (b) any substance, gas material or chemical
which is or may be defined as or included in the definition of "hazardous
substances," "toxic substances," "hazardous materials," "hazardous wastes," or
words of similar import under any Governmental Rule or Environmental Law; (c)
radon gas, asbestos, urea formaldehyde foam insulation or polychlorinated
biphenyls in excess of federal, state or local safety guidelines, whichever are
more stringent; (d) any other chemical, material, gas or substance, the exposure
to or Release of which is or may be prohibited, limited or regulated by any
Governmental Body, or (e) any other chemical, material, gas or substance that
does or may pose a hazard to health and/or safety of the occupants of the
Premises, or the owners and/or occupants of property adjacent to or surrounding
the Premises.
"Holdover Premises" has the meaning ascribed to such term in Section
9.10 hereof.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"IMA" has the meaning ascribed to such term in the first recital to
this Agreement.
"Indemnified Party" has the meaning ascribed to such term in Section
11.05 hereof.
"Indemnifying Party" has the meaning ascribed to such term in Section
11.05 hereof.
"Intellectual Property" has the meaning ascribed to such term in
Section 3.10 hereof.
"Interests" has the meaning ascribed to such term in the third recital
to this Agreement.
"Letter Agreement" means that certain letter agreement, dated March 6,
1998, by and among SFX Entertainment, Inc., the Sellers and Pavilion Partners.
"Liabilities" has the meaning ascribed to such term in Section 3.13
hereof.
"Lien" means any mortgage, charge, pledge, lien, security interest,
claim, encumbrance or restriction, of any kind or nature.
"Losses" has the meaning ascribed to such term in Section 11.02 hereof.
"Material Adverse Effect" means a material adverse effect on the
business, assets, prospects, financial condition or results of operations of the
specified entity.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
3(37) or Section 4001(a)(3) of ERISA.
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"Multiple Employer Plan" means a single employer pension plan within
the meaning of Section 4001(a)(15) of ERISA which is subject to the provisions
of Sections 4063 and 4064 of ERISA.
"Murphy" has the meaning ascribed to such term in Section 7.19.
"Option Agreement" has the meaning ascribed to such term in Section
3.28(a).
"Partnership Interests" has the meaning ascribed to such term in the
first recital to this Agreement.
"Permit" means any permit, license, approval, consent, or authorization
issued by a Governmental Body or required by any Governmental Rule.
"Permitted Liens" means (i) Liens for Taxes or governmental
assessments, charges or claims the payment of which is not yet due or which are
being contested in good faith and for which adequate reserves have been
accounted for in accordance with GAAP, (ii) statutory Liens, such as
warehousemen, mechanics and materialmen Liens which arise by operation of law
and are incurred in the ordinary course of business and consistent with past
practice and are for sums not yet delinquent and (iii) as to property leased or
licensed, the Lien attributable to the existence of such lease or license.
"Person" means any individual, corporation, partnership, limited
liability company, limited liability partnership, joint venture, estate, trust,
cooperative, foundation, union, syndicate, league, consortium, coalition,
committee, society, firm, company or other enterprise, association, organization
or other entity or Governmental Body.
"Plan" means any written or unwritten plan, program, arrangement,
agreement or commitment which is a deferred compensation, pension, profit
sharing, savings, thrift or other retirement plan (including, without
limitation, any "employee pension benefit plan" as defined in Section 3(2) of
ERISA), stock purchase, stock option, performance share, bonus or other
incentive or severance pay plan, policy or procedure, or vacation or other
employee benefit plan, program, arrangement, agreement or commitment (including,
without limitation, any Welfare Benefit Plan), other than such arrangement or
arrangements which constitute a payroll practice within the meaning of 29 C.F.R.
2510.3-1(b).
"Premises" has the meaning ascribed to such term in Section 3.19
hereof.
"Project" has the meaning ascribed to such term in Section 3.28 hereof.
"Purchase Price" has the meaning ascribed to such term in Section 2.04
hereof.
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"Real Property" has the meaning ascribed to such term in Section 3.08
hereof.
"Release" means any releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, disposing,
abandoning or dumping into the Environment.
"Seller Entities" means, collectively, the Sellers, the Companies and
CAMP.
"Seller Parties" has the meaning ascribed to such term in Section 11.03
hereof.
"Sellers" has the meaning ascribed to such term in the preamble hereto.
"Single Employer Defined Benefit Plan" means an "employee pension
benefit plan" within the meaning of Section 3(2) of ERISA which is subject to
Subtitle B of Title IV of ERISA and which is not a Multiemployer Plan.
"Stock" has the meaning ascribed to such term in the first recital to
this Agreement.
"Subsidiary" has the meaning ascribed to such term in the first recital
to this Agreement.
"Tax" or "Taxes" means federal, state, local or foreign income, capital
gains, profits, gross receipts, payroll, capital stock, franchise, employment,
withholding, social security, unemployment, disability, real property, personal
property, stamp, excise, occupation, sales, use, transfer, mining, value added,
investment credit recapture, alternative or add-on minimum, environmental,
estimated or other taxes, duties or assessments of any kind, including any
interest, penalty and additions imposed with respect to such amounts.
"Tax Authority" means any federal, national, foreign, state, municipal
or other local government, any subdivision, agency, commission or authority
thereof, or any quasi-governmental body or other authority exercising any taxing
or tax regulatory authority.
"Tax Proceedings" means any audit, other administrative proceeding or
judicial proceeding pending or threatened involving Taxes.
"Tax Returns" means all returns, information statements and reports
(including schedules attached to any of the foregoing) required to be filed with
or supplied to a Tax Authority with respect to Taxes.
"TBA" has the meaning ascribed to such term in Section 3.03 hereof.
"Threat of Release" means a substantial likelihood of a Release which
requires action to prevent or mitigate damage to the Environment which may
result from such Release.
"Transfer Tax Returns" has the meaning ascribed to such term in Section
9.01 hereof.
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"Voting Debt" has the meaning ascribed to such term in Section 3.03
hereof.
"WARN Act" means the Worker Adjustment and Retraining Notification Act
of 1988.
"Welfare Benefit Plan" means an "employee welfare benefit plan" within
the meaning of Section 3(1) of ERISA
SCHEDULE 2.04
The Purchase Price will be allocated among the Interests in the Companies in
accordance with the percentages set forth below:
<TABLE>
<CAPTION>
Name of Company Percentage of Purchase Price allocated to the
Interests being purchased in such Company
- --------------------------------------------------------------------------------------------
<S> <C>
Irvine Meadows Amphitheater 80%
New Avalon, Inc. 10%
TBA Media, Inc. 5%
West Coast Amphitheater Corp. 5%
</TABLE>
<PAGE> 67
SCHEDULE 4.03
NONE
<PAGE> 68
SCHEDULE 4.04
NONE
