<PAGE>
Securities and Exchange Commission
Washington, D.C. 20549
------------------
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
(Amendment No. __)
SFX Entertainment, Inc.
- -------------------------------------------------------------------------------
(Name of Issuer)
Class A Common Stock, par value $.01 per share
- -------------------------------------------------------------------------------
(Title of Class of Securities)
784 178 105
- -------------------------------------------------------------------------------
(CUSIP Number)
Robert F.X. Sillerman
650 Madison Avenue, 16th Floor
New York, New York 10022
(212) 838-3100*
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
April 27, 1998
- -------------------------------------------------------------------------------
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-(g), check the following
box. [ ]
* with copies to:
Michael Burrows, Esq.
Baker & McKenzie
805 Third Avenue
New York, NY 10022
Telephone: (212) 751-5700
Page 1 of 29 Pages
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- ----------------------- ------------------
CUSIP No.: 784 178 105 13D Page 2 of 29 Pages
- ----------------------- ------------------
===============================================================================
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
(ENTITIES ONLY)
Robert F.X. Sillerman
===============================================================================
2 CHECK THE APPROPRIATE BOX IF A MEMBER (a) [X]
OF A GROUP (b) [ ]
===============================================================================
3 SEC USE ONLY
===============================================================================
4 SOURCE OF FUNDS PF, 00
===============================================================================
5 CHECK BOX IF DISCLOSURE OF LEGAL [ ]
PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) OR 2(e)
===============================================================================
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
===============================================================================
7 SOLE VOTING POWER 3,892,054(*)
NUMBER OF
SHARES =======================================================
BENEFICIALLY 8 SHARED VOTING POWER 0
OWNED
BY EACH =======================================================
REPORTING 9 SOLE DISPOSITIVE POWER 3,445,783(*)
PERSON
WITH =======================================================
10 SHARED DISPOSITIVE POWER 0
===============================================================================
11 AGGREGATE AMOUNT BENEFICIALLY OWNED 3,892,054(*)
BY EACH REPORTING PERSON
===============================================================================
12 CHECK IF THE AGGREGATE AMOUNT IN ROW [ ]
(11) EXCLUDES CERTAIN SHARES
===============================================================================
13 PERCENT OF CLASS REPRESENTED BY 13.5%
AMOUNT IN ROW (11)
===============================================================================
14 TYPE OF REPORTING PERSON IN
===============================================================================
- --------------
* Assumes the conversion by Mr. Sillerman of the 1,524,168 shares of Class B
Common Stock, par value $.01 per share, of SFX Entertainment, Inc.
beneficially owned by him into shares of Class A Common Stock, par value
$.01 per share, of SFX Entertainment, Inc.
Page 2 of 29 Pages
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CUSIP No.: 784 178 105 13D Page 3 of 29 Pages
- ----------------------- ------------------
===============================================================================
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
(ENTITIES ONLY)
Howard J. Tytel
===============================================================================
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A (a) [X]
GROUP (b) [ ]
===============================================================================
3 SEC USE ONLY
===============================================================================
4 SOURCE OF FUNDS PF, 00
===============================================================================
5 CHECK BOX IF DISCLOSURE OF LEGAL [ ]
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM
2(d) OR 2(e)
===============================================================================
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
===============================================================================
7 SOLE VOTING POWER 0
NUMBER OF
SHARES =======================================================
BENEFICIALLY 8 SHARED VOTING POWER 0
OWNED
BY EACH =======================================================
REPORTING 9 SOLE DISPOSITIVE POWER 446,271
PERSON
WITH =======================================================
10 SHARED DISPOSITIVE POWER 0
===============================================================================
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY 446,271
EACH REPORTING PERSON
===============================================================================
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES
===============================================================================
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN
ROW (11) 1.6%
===============================================================================
14 TYPE OF REPORTING PERSON IN
===============================================================================
Page 3 of 29 Pages
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- ----------------------- ------------------
CUSIP No.: 784 178 105 13D Page 4 of 29 Pages
- ----------------------- ------------------
===============================================================================
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
(ENTITIES ONLY)
Sillerman Communications Management Corporation
===============================================================================
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A (a) [X]
GROUP (b) [ ]
===============================================================================
3 SEC USE ONLY
===============================================================================
4 SOURCE OF FUNDS 00
===============================================================================
5 CHECK BOX IF DISCLOSURE OF LEGAL [ ]
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM
2(d) OR 2(e)
===============================================================================
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
===============================================================================
7 SOLE VOTING POWER 39,343
NUMBER OF
SHARES =======================================================
BENEFICIALLY 8 SHARED VOTING POWER 0
OWNED
BY EACH =======================================================
REPORTING 9 SOLE DISPOSITIVE POWER 39,343
PERSON
WITH =======================================================
10 SHARED DISPOSITIVE POWER 0
===============================================================================
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY 39,343
EACH REPORTING PERSON
===============================================================================
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES
===============================================================================
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN
ROW (11) (*)
===============================================================================
14 TYPE OF REPORTING PERSON CO
===============================================================================
- --------------
* Less than 1%.
Page 4 of 29 Pages
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ITEM 1. SECURITY AND ISSUER.
This Schedule 13D relates to the shares of Class A Common Stock, par
value $.01 per share (the "Class A Common Stock"), of SFX Entertainment, Inc.,
a Delaware corporation (the "Company"). The principal executive offices of the
Company are located at 650 Madison Avenue, 16th Floor, New York, New York
10022.
The Company was previously a wholly-owned subsidiary of SFX
Broadcasting, Inc., a Delaware corporation ("SFX Broadcasting"), which had been
a publicly-held corporation principally engaged in the acquisition and
operation of radio broadcasting stations and in 1997 entered the live
entertainment business. The Company was formed to acquire and operate SFX
Broadcasting's live entertainment operations. In August 1997, SFX Broadcasting
entered into a merger agreement (the "Broadcasting Merger Agreement") with SBI
Holding Corporation ("Broadcasting Buyer") and SBI Radio Acquisition
Corporation, a wholly-owned subsidiary of Broadcasting Buyer, pursuant to which
Broadcasting became a wholly-owned subsidiary of Broadcasting Buyer (the
"Merger"). In the Merger, each share of the publicly-held class A common stock
of SFX Broadcasting was converted into the right to receive $75 cash. In
addition, the Broadcasting Merger Agreement also provided for the spin-off of
the Company on a pro rata basis to certain securityholders of SFX Broadcasting
(the "Spin-Off"). The Spin-Off was consummated on April 27, 1998 and the Merger
was consummated on May 29, 1998.
Robert F.X. Sillerman, the principal founder of SFX Broadcasting, was
its Chairman of the Board and Chief Executive Officer from SFX Broadcasting's
inception in 1992 until 1995, at which time he became, and continued to be
until the Merger, its Executive Chairman of the Board. Through his holdings of
its class A common stock and class B common stock, Mr. Sillerman held a
majority of the total voting power of SFX Broadcasting since its inception.
This Schedule 13D is being filed as a result of the issuance of Company
securities upon the consummation of the Spin-Off and other related
transactions.
In addition to its Class A Common Stock, the Company has issued, and
there are outstanding, shares of its Class B Common Stock, par value $.01 per
share (the "Class B Common Stock"). The Class A Common Stock and the Class B
Common Stock are collectively referred to herein as the "Common Stock." Each
share of Class B Common Stock is convertible, pursuant to the certificate of
incorporation of the Company as currently in effect, at the option of its
holder, into an equal number of shares of Class A Common Stock, at any time.
The economic rights of each class of Common Stock of the Company are identical,
but the voting rights differ in that each share of Class A Common Stock is
entitled to one vote while each share of Class B Common Stock is generally
entitled to ten votes on most matters submitted to a vote of stockholders.
Holders of Class A Common Stock and Class B Common Stock vote as a single class
on all matter submitted to a vote of the stockholders, except (a) for the
election of directors, in which the holders of Class A Common Stock, voting as
a separate class are entitled to elect two-sevenths of the Company's directors
(the "Independent Directors"), (b) with respect to any "going private"
transaction between the Company and Robert F.X. Sillerman or any of his
affiliates and (c) as otherwise provided by law.
Page 5 of 29 Pages
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ITEM 2. IDENTITY AND BACKGROUND.
(a) Pursuant to Rule 13d-1(k)(1) promulgated under the Securities
Exchange Act of 1934 as amended (the "Exchange Act"), this Schedule 13D is
being filed by Robert F.X. Sillerman, an individual, Howard J. Tytel, an
individual, and Sillerman Communications Management Corporation, a New York
corporation ("SCMC"). These persons (collectively, the "Reporting Persons") are
making this single joint filing as they may be deemed to constitute a "group"
within the meaning of Section 13(d)(3) of the Exchange Act.
(b) - (c)
Robert F.X. Sillerman
Mr. Sillerman is principally employed as the Executive Chairman and
Member of the Office of the Chairman of the Company. Until May 29, 1998, Mr.
Sillerman also served as the Executive Chairman of SFX Broadcasting. Mr.
Sillerman's business address is 650 Madison Avenue, 16th Floor, New York, New
York 10022.
Howard J. Tytel
Mr. Tytel is principally employed as an Executive Vice President,
General Counsel and Secretary of the Company. He is also a director of the
Company. Until May 29, 1998 Mr. Tytel also served in such capacities with SFX
Broadcasting. Mr. Tytel has been associated with Mr. Sillerman in various
capacities with entities operating in the broadcasting business for the last
twenty years. Mr. Tytel's business address is 650 Madison Avenue, 16th Floor,
New York, NY 10022.
SCMC
SCMC is a private company that invests in and provides financial
consulting services to companies engaged in the media business. SCMC's business
address is 650 Madison Avenue, 16th Floor, New York, New York 10022. The name,
business address and present principal occupation or employment of each of the
executive officers and directors of SCMC are set forth on Annex A attached
hereto. Mr. Sillerman, as the holder of more than a majority of the capital
stock of SCMC, controls SCMC. From time to time, SCMC and The Sillerman
Companies, Inc., another entity controlled by Mr. Sillerman ("TSC"), acted as
nominees for Messrs. Sillerman and Tytel with respect to their securities
holdings.
(d) During the last five years, none of the Reporting Persons nor, to
the best of their knowledge, any individual listed on Annex A has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) During the last five years, none of the Reporting Persons nor, to
the best of their knowledge, any individual listed on Annex A has been a party
to a civil proceeding of a judicial or
Page 6 of 29 Pages
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administrative body of competent jurisdiction as a result of which he or it was
or is subject to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such laws.
(f) Mr. Sillerman, Mr. Tytel and each individual listed on Annex A are
citizens of the United States.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The shares of Class A Common Stock and Class B Common Stock reported
herein were issued in the Spin-Off and in connection with transactions related
thereto. In the Spin-Off, one share of Class A Common Stock was issued for each
outstanding share of class A common stock of SFX Broadcasting and one share of
Class B Common Stock was issued for each outstanding share of class B common
stock of SFX Broadcasting. In the Spin-Off, shares of Class A Common stock were
also issued to holders of Series D preferred stock of SFX Broadcasting in
accordance with SFX Broadcasting's Amended and Restated Certificate of
Incorporation and Class A Common Stock was issued in respect of certain
outstanding stock options, stock appreciation rights ("SARs") and warrants of
SFX Broadcasting on a one-for-one basis. The holders of class A common stock
and Series D preferred stock of SFX Broadcasting approved, in a separate class
vote, the issuance of Class B Common Stock in the Spin-Off. No stockholder of
SFX Broadcasting, including the Reporting Persons, paid any cash consideration
for shares of Common Stock issued in the Spin-Off or in certain transactions
related thereto. Except as described below, no cash consideration was paid with
respect to shares of Common Stock issued to the Reporting Persons. In
connection with entering into employment agreements with the Company, Mr.
Sillerman purchased 500,000 shares of Class B Common stock, Mr. Tytel purchased
80,000 shares of Class A Common Stock and Thomas Benson, Vice President,
Director and Chief Financial Offer of the Company and an executive officer of
SCMC purchased 10,000 shares of Class A Common Stock. Each individual paid
$2.00 per share and acquired the shares with personal funds. The information
contained in Item 5(c) is incorporated herein by reference.
ITEM 4. PURPOSE OF THE TRANSACTION.
Mr. Sillerman together with companies he controls, held a majority of
the total voting power of SFX Broadcasting, as a result of the ownership of
shares of its class A common stock and class B common stock. As a result of the
consummation of the Spin-Off and other related transactions, Mr. Sillerman,
individually and together with SCMC and Mr. Tytel, is the largest stockholder
of the Company, beneficially owning approximately 39.7% of the combined voting
power of the shares of Common Stock on matters on which the shares of Class B
Common Stock are entitled to ten votes per share. Mr. Sillerman currently
serves as the Executive Chairman of the Company and is a member of the Office
of the Chairman. Messrs. Tytel, Benson and Liese serve as directors and
executive officers of the Company. Mr. Sillerman seeks to maintain his position
as the stockholder of the Company with the greatest combined voting power. To
the extent consistent with the foregoing, depending upon market conditions and
other factors that Mr. Sillerman may deem
Page 7 of 29 Pages
<PAGE>
material, he may acquire additional securities of the Company or he may dispose
of a portion of the securities of the Company that he now beneficially owns or
hereafter may acquire. In addition, it is anticipated that Mr. Sillerman or
entities controlled by him may, in the future, be granted options to purchase
shares of Common Stock or be awarded restricted shares of Common Stock by the
Board of Directors of the Company.
Except as set forth in this Item 4, none of the Reporting Persons has
any current plans or proposals which relate to or would result in any of the
actions set forth in clauses (a)-(j) of Item 4 of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a)-(b)
As of June 3, 1998, there were 27,352,662 shares of Class A Common
Stock outstanding. In addition, as of such date, there were 1,697,037 shares of
Class B Common Stock outstanding. Except as otherwise set forth herein, Mr.
Sillerman has the sole power to vote and dispose of the shares of Common Stock
reported hereby.
Robert F.X. Sillerman
Mr. Sillerman beneficially owns 3,892,054 shares of Class A Common
Stock, or 13.5%, of the outstanding shares of Class A Common Stock, after
giving effect to the conversion of the shares of Class B Common Stock
beneficially owned by him, through his beneficial ownership of: (i) 1,882,272
shares of Class A Common Stock and 1,524,168 shares of Class B Common Stock
held of record by Mr. Sillerman, (ii) 446,271 shares of Class A Common Stock
held of record by Mr. Tytel of which Mr. Sillerman has sole voting power and
(iii) 39,343 shares of Class A Common Stock which are held of record by SCMC.
Howard J. Tytel
Mr. Tytel beneficially owns 446,271 shares of Class A Common Stock, or
1.6% of the outstanding shares of Class A Common Stock of which Mr. Tytel has
sole power to dispose and Mr. Sillerman has the sole power to vote. Mr. Tytel
also has an economic interest in SCMC, which beneficially owns 39,343 shares of
Class A Common Stock, although he does not have voting or dispositive power
with respect to such shares.
SCMC
SCMC beneficially owns 39,343 shares of Class A Common Stock, or less
than 1% of the outstanding shares of Class A Common Stock. SCMC has sole voting
and dispositive power with respect to the shares.
Page 8 of 29 Pages
<PAGE>
Executive Officers and Directors of SCMC
The holdings of Messrs. Sillerman and Tytel are described above and
are incorporated herein by reference.
Thomas P. Benson beneficially owns 19,000 shares of Class A Common
Stock, or less than 1% of the outstanding shares of Class A Common Stock. Mr.
Benson has sole voting and dispositive power with respect to these shares.
Richard A. Liese beneficially owns 2,800 shares of Class A Common
Stock, or less than 1% of the outstanding shares of Class A Common Stock. Mr.
Liese has sole voting and dispositive power with respect to these shares.
(c) The Reporting Persons and, to the best of their knowledge, the
individuals listed on Annex A have effected the following transactions in the
shares of Common Stock:
Reference is made to the second and third paragraph of Item 1 of this
Statement which is incorporated herein by reference. In separating the Company
from SFX Broadcasting it was important that the Company retain the services of
management. In January 1998, in order to retain the services of Messrs.
Sillerman, Tytel and Benson as officers of the Company and certain other key
corporate employees, including Richard Liese, the Company reached an agreement
in principle with such individuals pursuant to which the individuals waived
their right to receive shares of the Company in connection with the Spin-Off in
return for the right to receive either a share of Common Stock or $4.20 in cash
for each share or option of SFX Broadcasting held by them directly or
indirectly in the event that either the Spin-Off or an alternate transaction
(the disposition of the Company in a transaction other than the Spin-Off) were
to occur. The amount of $4.20 was based on the value attributed to the Common
Stock in the fairness opinion obtained by SFX Broadcasting in connection with
the Merger. The Company's obligation was deemed satisfied by receipt of shares
of Common Stock in the Spin-Off.
Upon consummation of the Spin-Off on April 27, 1998 and certain
related transactions (i) Mr. Sillerman received 1,097,910 shares of Class A
Common Stock and 1,024,168 shares of Class B Stock, (ii) Mr. Tytel received
366,271 shares of Class A Common Stock, (iii) SCMC received 39,343 shares of
Class A Common Stock, (iv) Mr. Liese received 2,800 shares of Class A Common
Stock and (v) Mr. Benson received 9,000 shares of Class A Common Stock. SCMC
and TSC were the nominees for Messrs. Sillerman and Tytel with respect to
certain securities of SFX Broadcasting and the Company. In connection with the
Spin-Off, Common Stock was issued on a one for one basis in respect of certain
outstanding stock options, SARs and warrants of SFX Broadcasting, many of which
were held by employees, officers and directors. The related transactions also
includes the issuance of Common Stock in respect of certain rights to receive
options for shares of SFX Broadcasting under Mr. Sillerman's employment
agreement with SFX Broadcasting. These issuances allowed the holders of such
securities to participate in a manner similar to the holders of SFX
Page 9 of 29 Pages
<PAGE>
Broadcasting's class A common stock and were approved by the Board of
Directors, including the Independent Directors.
In connection with their employment agreements, which were approved by
the Board of Directors, including the Independent Directors, in May 1998, the
Company sold Messrs. Sillerman, Tytel and Benson 500,000 restricted shares of
Class B Common Stock, 80,000 restricted shares of Class A Common Stock and
10,000 restricted shares of Class A Common Stock, respectively, at a purchase
price of $2.00 per share. The employment agreements also provided for the grant
of options to Messrs. Sillerman, Tytel and Benson to purchase 120,000, 25,000
and 10,000 shares of Class A Common Stock, respectively, at an exercise price
of $5.50 per share. These options vest over three years commencing January
1999.
SFX Broadcasting had an option, as amended, to repurchase 247,177
shares of its class A common stock (the "Meadows Shares") for an aggregate
purchase price of $8.2 million (the "Meadows Repurchase"). Pursuant to the
terms of the Broadcasting Merger Agreement, if the Meadows Shares had been
outstanding at the time of the Merger, Working Capital (as defined in the
Merger Agreement) to be retained by the Company would have been decreased by
approximately $10.3 million. However, SFX Broadcasting was restricted from
exercising the Meadows Repurchase by certain loan covenants and other
restrictions.
In January 1998, Mr. Sillerman committed to finance the $8.2 million
exercise price of the Meadows Repurchase in order to offset the $10.3 million
reduction to Working Capital. In consideration for such commitment, the board
of directors of SFX Broadcasting, including the independent directors, agreed
that Mr. Sillerman would receive approximately the number of shares of Class A
Common Stock of the Company to be issued in the Spin-Off with respect to the
Meadows Shares. At the time SFX Broadcasting accepted Mr. Sillerman's
commitment, the board of directors of SFX Broadcasting valued the Class A
Common Stock to be issued in the Spin-Off at $4.20 per share, the value
attributed to such shares in the fairness opinion obtained by SFX Broadcasting
in connection with the Merger. In April 1998, SFX Broadcasting assigned the
option for the Meadows Shares to an unaffiliated third party and, in connection
therewith, paid such party a fee of $75,000. Mr. Sillerman subsequently
advanced such party the $8.2 million exercise price for the Meadows Repurchase,
which advance became due upon the SFX Merger. The third party exercised the
option and tendered the Meadow Shares in the Merger for $75 per share (the cash
merger consideration). Such third party repaid the advance and transferred the
balance of $10.3 million to the Company. Pursuant to its agreement with Mr.
Sillerman, in May 1998 the third party transferred to Mr. Sillerman the 247,177
shares of Class A Common Stock of the Company issued in the Spin-Off with
respect to the Meadows Shares.
In December 1997 Mr. Sillerman exercised options in respect of an
aggregate of 537,185 shares of class A common stock of SFX Broadcasting and
sold such shares in the open market. Simultaneous with the sale of class A
common stock, Mr. Sillerman entered into a contract in which he acquired the
right to acquire up to 537,185 shares of Class A Common Stock at a weighted
Page 10 of 29 Pages
<PAGE>
average of $7.75 per share, in the event that the Spin-Off was consummated.
Pursuant to such arrangement, Mr. Sillerman acquired 537,185 shares of Class A
Common Stock upon the Spin-Off.
On April 27, 1998, the Company granted Mr. Sillerman and Mr. Tytel
options to purchase 250,000 and 30,000 shares, respectively, of Class A Common
Stock at a purchase price of $29.125 per share. On May 27, 1998, the Company
granted Mr. Sillerman and Mr. Tytel options to purchase 250,000 and 50,000
shares, respectively, of Class A Common Stock at a purchase price of $43.25 per
share. These options vest over five years commencing one year from their date
of grant.
(d) No person other than the Reporting Persons or, to the best of
their knowledge, any individual listed on Annex A has the right to receive or
the power to direct the receipt of dividends from, or the proceeds from the
sale of, the shares of Common Stock owned by them.
(e) Not Applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Pledge Agreement
Mr. Sillerman has pledged an aggregate of 793,401 of his shares of
Class B Common Stock as collateral for a line of credit, under which Mr.
Sillerman currently has no outstanding borrowings. Mr. Sillerman continues to
be entitled to exercise voting and consent rights with respect to the pledged
shares, with certain restrictions. However, if Mr. Sillerman defaults in the
payment of any future loans extended to him under the line of credit, the bank
will be entitled to sell the pledged shares. Although the Class B Common Stock
has ten votes per share in most matters, the pledged shares will automatically
convert into shares of Class A Common Stock upon such a sale. Such a sale of
the pledged shares would reduce Mr. Sillerman's share of the voting power of
the Common Stock, and would therefore be likely to result in a change of
control of the Company.
Agreement Between Messrs. Sillerman and Tytel
Mr. Sillerman and Mr. Tytel have an agreement pursuant to which Mr.
Sillerman has the sole power to vote shares of Common Stock held of record by
Mr. Tytel. As of the date hereof Mr. Tytel holds of record an aggregate of
446,271 shares of Class A Common Stock.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
1. Agreement, dated July 14, 1998, among the Reporting Persons
relating to the filing of a joint statement on Schedule 13D.
2. Agreement, dated May 27, 1998, between Robert F.X. Sillerman and
Howard J. Tytel.
Page 11 of 29 Pages
<PAGE>
3. Pledge Agreement, dated August 25, 1997, between Robert F.X.
Sillerman and The Chase Manhattan Bank.
Page 12 of 29 Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief,
the undersigned certify that the information set forth in this statement is
true, complete and correct.
Date: July 14, 1998 /s/ Robert F.X. Sillerman
-----------------------------------
Robert F.X. Sillerman
/s/ Howard J. Tytel
-----------------------------------
Howard J. Tytel
Sillerman Communications Management
Corporation
By: /s/ Robert F.X. Sillerman
-------------------------------
Name: Robert F.X. Sillerman
Title: Chief Executive Officer
Page 13 of 29 Pages
<PAGE>
ANNEX A
EXECUTIVE OFFICERS AND DIRECTORS OF
SILLERMAN COMMUNICATIONS MANAGEMENT CORPORATION ("SCMC")
The business address of all individuals set forth on this Annex A is
650 Madison Avenue, 16th Floor, New York, New York 10022.
Name and Positions with SCMC Present Principal Occupation or Employment*
- ---------------------------- -------------------------------------------
Robert F.X. Sillerman, Executive Chairman and Member of the Office
Chairman of the Board of of the Chairman of SFX Entertainment, Inc.
Directors, President and
Chief Executive Officer
Howard J. Tytel, Director, Executive Vice President, General Counsel,
Executive Vice President, Director and Secretary of SFX
General Counsel and Entertainment, Inc.
Secretary
Thomas P. Benson, Chief Vice President, Director and Chief
Financial Officer Financial Officer of SFX Entertainment,
Inc.
Richard A. Liese, Vice Vice President, Director and Assistant
President, Assistant General General Counsel of SFX Entertainment, Inc.
Counsel and Assistant
Secretary
* Each individual served in such capacity with SFX Broadcasting prior to the
consummation of the Merger.
Page 14 of 29 Pages
<PAGE>
Exhibit 1
The undersigned hereby agree, pursuant to Rule 13d-1(k)(1) promulgated
under the Securities Exchange Act of 1934, as amended, to file a joint
statement on Schedule 13D and amendments thereto pertaining to their shares of
Class A Common Stock of SFX Entertainment, Inc.
This agreement may be terminated for any reason by any party hereto
immediately upon the personal delivery or facsimile transmission of notice to
that effect to the other parties hereto.
This agreement may be executed in counterparts and all so executed
shall constitute one agreement.
Date: July 14, 1998
/s/ Robert F.X. Sillerman
-----------------------------------
Robert F.X. Sillerman
/s/ Howard J. Tytel
-----------------------------------
Howard J. Tytel
Sillerman Communications Management
Corporation
By: /s/ Robert F.X. Sillerman
--------------------------------
Name: Robert F.X. Sillerman
Title: Chief Executive Officer
Page 15 of 29 Pages
<PAGE>
Exhibit 2
May 27, 1998
Robert F.X. Sillerman
SFX Entertainment, Inc.
650 Madison Avenue
New York, NY 10022
Dear Bob:
This letter, when countersigned by you, will constitute our mutually
binding agreement (the "Agreement") with respect to the subject matter hereof.
While this Agreement deals primarily with restrictions on shares of
SFX Entertainment, Inc., ("SFX") owned by me, it is supported by consideration
in the form of $100 in cash, the receipt of which is hereby acknowledged, and
certain compromises and accommodations which you have made in the
interpretation of the agreements pursuant to which I held my interest in SFX
Broadcasting, Inc.
For so long as I hold any common stock of SFX owned by me at the time
of the completion of all transactions related to the SFX Broadcasting merger
with Hicks Muse, or any SFX common stock hereafter acquired by me from SFX
(collectively, the "SFX Common Stock"), it is agreed as follows:
1. I will vote the SFX Common Stock in concert with any directions
received from you.
2. I will, at any time upon your request, exchange shares of any 10
for 1 voting SFX Common Stock (the "Class B Common Stock") held
by me, for shares of 1 for 1 voting SFX Common Stock, (the "Class
A Common Stock"), provided that you deliver to me satisfactory
evidence that such exchange will not result in any adverse tax
consequence to me.
3. I will provide you with at least three business days' notice of
my intention to sell any shares of Class B Common Stock and give
you the opportunity to either (a) purchase such shares for cash
at the closing price posted in the Wall Street Journal the first
business day following delivery of such notice, or (b) exchange a
like number shares of Class B Common Stock for shares of Class A
Common Stock, provided that you
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deliver to me satisfactory evidence that such exchange will have
no tax consequence to me more adverse than would result from the
sale contemplated by me.
4. To the extent that I dispose of any of the SFX Common Stock
following the record date for any vote of the shareholders of SFX
and prior to the actual voting date, I will provide you with an
appropriate proxy to vote such shares in the relevant vote.
The Agreement may be offered to the Transfer Agent for the SFX Common
Stock as evidence of our agreement with respect to the foregoing, should you
reasonably deem that to be necessary. However, none of the certificates
representing my SFX Common Stock shall be legended to reflect this Agreement.
If the foregoing accurately reflects our agreement, kindly countersign
this Agreement in the space provided below.
Very truly yours,
/s/ Howard J. Tytel
Howard J. Tytel
Agreed to:
/s/ Robert F.X. Sillerman
- -----------------------------
Robert F.X. Sillerman
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Exhibit 3
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated August 25, 1997 between ROBERT F.X. SILLERMAN
residing at 150 East 58th Street, New York, New York 10155 (the "Pledgor") and
THE CHASE MANHATTAN BANK, a New York banking corporation, as pledgee (the
"Bank"):
W I T N E S S E T H:
WHEREAS, the Pledgor is the owner of the securities described in Annex
1 hereto of the issuers named therein (all such shares being herein called the
"Pledged Shares"); and
WHEREAS, the Bank has possession of the Pledged Shares and the Pledged
Shares have been transferred to and are held in a custodial account at the Bank
entitled "Robert F.X. Sillerman Custody Account" (Account Number 7619731) (the
"Account"); and
WHEREAS, the Bank has advised the Pledgor of the creation of a line of
credit evidenced by a promissory note of even date herewith in the maximum
principal amount of $10,000,000 (the "Note"); and
WHEREAS, a condition of the Bank's extending any loan to the Pledgor
pursuant to the terms of the Note and as security therefor the Bank requires
that the Pledgor pledge the Pledged Collateral (as defined in Section 1 below)
to the Bank and that this Agreement become effective; and
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, and of the making by the Bank of its loans to the
Borrower, the parties hereto agree as follows:
Section 1. Pledge. As collateral security for the due and punctual
reimbursement of the Note and all other amounts payable by the Pledgor
hereunder and thereunder, the Pledgor hereby pledges, hypothecates, assigns,
transfers, sets over unto the Bank to segregate and hold for the benefit of the
Bank in the Account, and hereby grants to the Bank a security interest in, the
following:
(i) the Pledged Shares and the certificates and book entries
representing the Pledged Shares, and all cash, securities, dividends and
other property at any time and from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the
Pledged Shares;
(ii) all securities hereafter delivered to the Bank in substitution
for or in addition to any of the foregoing, all certificates and
instruments representing or evidencing such securities, together with the
interest coupons (if any) attached thereto and all cash, securities,
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interest, dividends and other property at any time and from time to
time received, receivable or otherwise distributed in respect of or in
exchange for any or all thereof (all such Pledged Shares, certificates,
interest coupons, cash, securities, interest, dividends and other property
being herein collectively called the "Pledged Collateral");
TO HAVE AND TO HOLD the Pledged Collateral, together with all rights,
titles, interests, privileges and preferences appertaining or incidental
thereto, unto the Bank, its successors and assigns, forever, subject, however,
to the terms, covenants and conditions hereinafter set forth.
Section 2. Representations and Warranties. The Pledgor hereby
represents and warrants as follows:
(a) The delivery and performance by the Pledgor of this Pledge
and the Note has been duly executed, and do not and will not (i) violate any
provision of any law, rule, regulation (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System, or any
injunction, decree, determination or award presently in effect having
applicability to the Pledgor or of the charter or by-laws of the Pledgor, (ii)
result in a breach of or constitute a default under any indenture or loan or
credit agreement or any other agreement, lease or instrument to which the
Pledgor is a party or by which he or his properties may be bound or affected,
or (iii) result in, or require, the creation or imposition of any mortgage,
deed of trust, pledge, lien, security interest or other charge or encumbrance
of any nature (other than this Agreement) upon or with respect to any of the
properties now owned or hereafter acquired of the Pledgor; and the Pledgor is
not in default under any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or any such indenture, agreement,
lease or instrument.
(b) This Pledge and the Note constitute legal, valid and binding
obligations of the Pledgor enforceable against the Pledgor and all third
parties in accordance with their respective terms.
(c) The Pledgor is the legal and equitable owner of the Pledged
Shares free and clear of all liens, security interests, charges and
encumbrances of every kind and nature; the Pledged Shares are duly authorized,
validly issued, fully paid and non-assessable; and the Pledgor has legal title,
and good, right and lawful authority, to pledge, assign and deliver the Pledged
Shares in the manner hereby done or contemplated.
(d) When any additional Pledged Collateral is pledged hereunder:
the Pledgor will be the legal and equitable owner of such Pledged Collateral
free and clear of all liens, security interests, charges, and encumbrances of
every kind and nature; each share of stock comprising such Pledged Collateral
will have been duly authorized, validly issued and be fully paid and
non-assessable; all indebtedness comprising such Pledged Collateral will have
been duly authorized and duly authenticated and/or issued and delivered and be
fully paid for and not in default; and the Pledgor will have legal title, and
good and lawful authority, to pledge, assign and deliver such Pledged
Collateral in the manner hereby contemplated.
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(e) The Pledged Collateral is wholly comprised of unrestricted
assets of the Pledgor. (Securities which are or could become Pledged Collateral
and which fall with the description of this Section 2(e) are herein sometimes
called "Permitted Collateral").
(f) No authorization, consent, approval, license, exemption of or
filing or registration with any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, is or will be
necessary to the valid execution, delivery or performance by the Pledgor of
this Pledge or the Note or the validity of the rights created hereunder.
(g) The Pledgor is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U of the Board of Governors of the Federal Reserve
System), and no part of the proceeds of the Note will be used to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock, except that a portion of the proceeds
of the Note will be used to purchase shares of The Marquee Group and other
marketable securities.
(h) This Pledge creates a valid and perfected first priority
security interest in and pledge of the Pledged Collateral enforceable against
all third parties securing the Note and all action required to perfect fully
the security interest so constituted has been taken and completed.
Section 3. Appointment of the Bank and Subagents; Registration in
Nominee Name. The Pledgor hereby appoints the Bank its agent, bailee and the
custodian for retaining physical possession in the Account of the certificates
and instruments representing or evidencing the Pledged Collateral. The Bank
shall have the right to appoint one or more subagents for the purpose of
retaining physical possession of certificates or instruments representing or
evidencing the Pledged Collateral, which may be held (in the discretion of the
Bank) in the name of the Pledgor, endorsed or assigned in blank or in favor of
the Bank or in the name of the Bank or any nominee or nominees of the Bank or a
subagent appointed by the Bank. In addition, the Bank shall at all times have
the right to exchange certificates or instruments representing or evidencing
Pledged Collateral for certificates or instruments of smaller or larger
denominations for any purpose consistent with its performance of this Pledge.
Section 4. Minimum Collateral Value. (a) The sum of (i) the current
market value of the Pledged Collateral plus (ii) the current market value of
any additional common shares of SFX Broadcasting, Inc., a Delaware corporation,
or other marketable collateral acceptable to the Bank in its sole discretion
(the "Additional Collateral"), pledged to the Bank by the Pledgor, multiplied
by 50%, shall not at any time be less than the sum of the unpaid principal
amount of the Note plus the unpaid principal amount of any other obligations of
the Pledgor to the Bank, whether now or hereinafter incurred. If at any time
during the period of this Agreement, the aggregate market value of the Pledged
Collateral plus the aggregate market value of the Additional Collateral shall
be less than the above required amount, the Pledgor shall cause, within two
days following its receipt of written demand therefor from the Bank, pledge and
deliver to the Bank (or its designated subagent) for holding in the Account,
marketable securities which are Permitted Collateral having an aggregate
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market value equal to the amount of any such deficiency. Any Additional
Collateral pledged and delivered to the Bank (or its designated subagent) for
holding in the Account, pursuant to this Section 4 shall be accompanied by
proper instruments of assignment and/or stock and/or bond powers executed by
the Pledgor in accordance with the instructions of the Bank. Pledged Collateral
released by the Bank shall be redelivered to the Pledgor by the Bank and be
accompanied by proper instruments of reassignment and/or stock and/or bond
powers (as appropriate) executed by the Bank (or its nominee) in favor of the
Pledgor or as the Pledgor shall direct, all at the expense of the Pledgor and
without recourse upon or warranty by the Bank or any such nominee.
(b) At any time the sum of (i) the current market value of the
Pledged Collateral, plus (ii) the current market value of any Additional
Collateral, multiplied by 60% is less than the sum of the unpaid principal
amount of the Note plus the unpaid principal amount of any other obligations of
the Pledgor to the Bank, whether now or hereinafter incurred, then in such
event, (notwithstanding anything to the contrary contained herein, including,
without limitation any notification requirements contained in Sections 6 or 7
hereof for the providing of notice of any sale, which are hereby waived by the
Pledgor), the Pledgor agrees that the Bank shall have the power to sell the
Pledged Collateral, in part or in full, to such purchaser as the Bank deems
appropriate, at its discretion, without any prior notice to the Pledgor.
Section 5. Voting Rights; Dividends, Etc. (a) So long as no Event of
Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise any and all voting
and/or consensual rights and powers relating or pertaining to the Pledged
Collateral or any part thereof for any purpose not inconsistent with the
terms of this Agreement; provided, however, that the Pledgor shall not be
permitted to exercise or refrain from exercising any such right or power
if, in the judgment of the Bank, such action would have a material adverse
effect on the value of the Pledged Collateral or any part thereof, it being
understood that the exercise by the Pledgor of voting rights in connection
with the election of directors at any annual meeting of stockholders of any
issuer of Pledged Collateral and/or with respect to any incidental matters
coming before any such meeting shall not be deemed to have a material
adverse effect on the value of the Pledged Collateral within the meaning of
this subparagraph (i) and provided, further, that the Pledgor shall give
the Bank at least five (5) days' written notice of the manner in which it
intends to exercise, or the reasons for refraining from exercising any such
right or power other than with respect to the election of directors and
voting with respect to the incidental matters referred to in the preceding
provisions of this subparagraph (i).
(ii) The Bank shall execute and deliver (or cause to be executed and
delivered) to the Pledgor all such proxies, powers of attorney, and other
instruments as the Pledgor may request for the purpose of enabling the
Pledgor to exercise the voting and/or consensual rights and powers which it
is entitled to exercise pursuant to subparagraph (i) above.
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(b) Upon the occurrence and during the continuance of an Event of
Default or any event which with the giving of notice or the lapse of time or
both would constitute an Event of Default, all rights of the Pledgor to
exercise the voting and/or consensual rights and powers which it is entitled to
exercise pursuant to Section 5(a)(i) hereof shall cease, and all such rights
shall thereupon become vested in the Bank which shall have the sole and
exclusive right and authority to exercise such voting and/or consensual rights
and powers.
(c) Any and all cash dividends and interest payable on the
Pledged Collateral, and any and all stock and/or liquidating dividends,
distributions in property, returns of capital or other distributions made on or
in respect of the Pledged Collateral, whether resulting from a subdivision,
combination or reclassification of the outstanding capital stock of any issuer
thereof or received in exchange for Pledged Collateral or any part thereof or
as a result of any merger, consolidation, acquisition or other exchange of
assets to which any such issuer may be a party or otherwise, and any and all
cash and other property received in payment of the principal of or in
redemption of or in exchange for any Pledged Collateral (whether at maturity,
upon call for redemption or otherwise), shall be and become part of the
collateral pledged hereunder and, if received by the Pledgor, shall forthwith
be delivered to the Bank or its designated agent (accompanied by proper
instruments of assignment and/or stock and/or bond powers executed by the
Pledgor in accordance with the Bank's instructions) to be held subject to the
terms of this Agreement.
(d) The foregoing notwithstanding, the Pledged Collateral shall
at all times be held by the Bank in the Account for the Bank's sole account.
Section 6. Events of Default. Each of the following events shall
constitute an event of default hereunder ("Events of Default"):
(a) The Pledgor shall fail to pay any amount of principal or
interest or other amount in connection with the Note when due; or
(b) Any representation or warranty made by the Pledgor in this
Agreement or in any certificate, agreement, instrument or statement
contemplated hereby or made or delivered pursuant hereto or in connection
herewith or the Note shall prove to be incorrect in any material respect; or
(c) The Pledgor shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement on its part to be performed
or observed, and any such failure remains unremedied for ten (10) days after
written notice thereof shall have been given to the Pledgor by the Bank; or
(d) This Agreement or the Note shall at any time for any reason
cease to be in full force and effect or shall be declared to be null and void,
or the validity or enforceability
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thereof shall be contested by the Pledgor or any member of the Pledgor, or the
Pledgor shall deny that it has any or further liability or obligation
thereunder; or
(e) The Pledgor shall be adjudicated a bankrupt or insolvent, or
admit in writing its inability to pay its debts as they mature, or make an
assignment of the benefit of creditors; or the Pledgor shall apply for or
consent to the appointment of any receiver, trustee, or similar officer for it
or for all or any substantial part of its property; or such receiver, trustee
or similar officer shall be appointed without the application or consent of the
Pledgor, as the case may be, and such appointment shall continue undischarged
for a period of sixty (60) days, or the Pledgor shall institute (by petition,
application, answer, consent or otherwise) any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, dissolution, liquidation or
similar proceeding relating to it under the laws of any jurisdiction; or any
such proceeding shall be instituted (by petition, application or otherwise)
against the Pledgor and shall remain undismissed for a period of sixty (60)
days; or any judgment, writ, warrant of attachment or execution or similar
process shall be issued or levied against a substantial part of the property of
the Pledgor and such judgment, writ or similar process shall not be released,
vacated or fully bonded within sixty (60) days after its issue;
(f) There shall occur an event of default as defined under any
agreement of the Pledgor to the Bank; or
(g) The closing price at the end of any trading day for any Class
A Common Stock of SFX Broadcasting, Inc. shall be equal to or less than $24.00
per share.
Section 7. Remedies upon Default. If an Event of Default shall have
occurred and be continuing, then in addition to exercising any rights and
remedies of a secured party under the Uniform Commercial Code in effect in the
State of New York, the Bank may without being required to give any notice to
the Pledgor:
(a) apply the cash (if any) which is part of the Pledged
Collateral, first, to the payment of interest accrued and unpaid in connection
with the Note to and including the date of such application, second, to the
payment or prepayment of principal in connection with the Note and third, to
the payment of all other amounts then owing to the Bank; and
(b) if there shall be no such cash or the cash so applied shall
be insufficient to pay all such indebtedness in full, sell the Pledged
Collateral, or any part thereof, at any public or private sale or at any
broker's board or on any securities exchange, for cash, upon credit or for
future delivery, as the Bank shall deem appropriate. The Bank shall be
authorized at any such sale to restrict the prospective bidders or purchasers
to persons who will represent and agree that they are purchasing the Pledged
Collateral for their own account for investment and not with a view to the
distribution or sale thereof, and upon consummation of any such sale, the Bank
shall have the right to assign and transfer and have the Bank deliver to the
purchaser or purchasers thereof the Pledged Collateral so sold. Each such
purchaser at any such sale shall hold the property sold absolutely, free from
any claim or right on the part of the Pledgor, and the Pledgor hereby waives
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(to the extent permitted by law) all rights of redemption, stay and/or
appraisal which it now has or may at any time in the future have under any rule
of law or statute now existing or hereafter enacted. Subject to the terms of
Section 4(b) hereof, to the extent that notice of sale shall be required to be
given by law, the Bank shall give the Pledgor at least ten (10) days' written
notice of the Bank's intention to make any such public or private sale or sales
at any broker's board or on any such securities exchange. Such notice, in case
of public sale, shall state the time and place fixed for such sale, and, in the
case of sale at a broker's board or exchange at which such sale is to be made
and the day on which the Pledged Collateral, or portion thereof, will first be
offered for sale at such board or exchange. Any such public sale shall be held
at such time or times within ordinary business hours and at such place or
places, as the Bank may fix in the notice of such sale. At any such sale, the
Pledged Collateral, or portion thereof, to be sold may be sold in one lot as an
entirety or in separate parcels, as the Bank may (in its sole and absolute
discretion) determine and the Bank may bid (which bid may be in whole or in
part, in the form of cancellation of indebtedness) for and purchase for the
account of the Bank the whole or any part of the Pledged Collateral. The Bank
shall not be obligated to make any sale of Pledged Collateral if it shall
determine not to do so, regardless of the fact that notice of sale of Pledged
Collateral may have been given. The Bank may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for sale, and such sale
may, without further notice, be made at the time and place to which the same
was so adjourned. In case sale of all or any part of the Pledged Collateral is
made on credit or for future delivery, the Pledged Collateral so sold may be
retained by the Bank until the sale price is paid by the purchaser or
purchasers thereof, but the Bank shall not incur any liability in case any such
purchaser or purchasers shall fail to take up and pay for the Pledged
Collateral so sold and, in case of any such failure, such Pledged Collateral
may be sold again upon like notice. As an alternative to exercising the power
of sale herein conferred upon it, the Bank may proceed by a suit or suits at
law or in equity to foreclose this Agreement and to sell the Pledged
Collateral, or any portion thereof, pursuant to a judgment or decree of a court
or courts of competent jurisdiction.
Section 8. Application of Proceeds of Sale. The proceeds of sale of
Pledged Collateral sold pursuant to Section 7 hereof shall be applied by the
Bank as follows:
First: to the payment of the costs and expenses of such sale,
including the out-of-pocket expenses of the Bank and the reasonable fees
and out-of-pocket expense of counsel employed in connection therewith, and
to the payment of all advances made by the Bank for the account of the
Pledgor pursuant solely to this Agreement and the payment of all costs and
expenses incurred by the Bank in connection with the administration and
enforcement of this Agreement, to the extent that such advances, costs and
expenses shall not have been reimbursed to the Bank;
Second: to the payment or prepayment in full of all indebtedness
referred to in paragraph (a) of Section 7 hereof, in the order of priority
and in the manner therein specified; and
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Third: the balance (if any) of such proceeds shall be paid to the
Pledgor, its successors and assigns, or as a court of competent
jurisdiction may direct.
Section 9. Conditions of Effectiveness. This Agreement shall become
effective when the Bank shall have received each of the following in form and
substance satisfactory to the Bank:
(a) An executed copy of this Agreement.
(b) Federal Reserve Form U-1 provided for in Regulation U of the
Board of Governors of the Federal Reserve System, the statements made in which
shall be such, in the opinion of the Bank and counsel for the Bank, as to
permit the transactions contemplated hereby in accordance with said
Regulation U.
(c) Evidence that the Bank has received written notification of
this Agreement and acknowledges this Agreement.
Section 10. Reporting Requirements. So long as any amount in
connection with the Note owing by the Pledgor to the Bank, or any other
obligation of the Pledgor to the Bank shall remain unpaid, the Pledgor will,
unless the Bank shall otherwise consent in writing, furnish to the Bank:
(a) as soon as possible and in any event within five (5) days
after the occurrence of each Event of Default or each event which, with the
giving of notice or lapse of time or both, would constitute an Event of
Default, continuing on the date of such statement, a statement setting forth
details of such Event of Default or event and the action which the Pledgor
proposes to take with respect thereto;
(b) as soon as available and in any event within ninety (90) days
after the end of each fiscal year of the Borrower, a copy of a complete
personal financial statement of the Pledgor prepared on the Bank's form
together with a schedule of contingent liabilities and guarantees;
(c) as soon as available and in any event within fifteen (15)
days after the end of each month, a statement listing the securities which
constituted the Pledged Collateral and the market value thereof as of the end
of such month; and
(d) such other information as the Bank may reasonably request.
Section 11. Exoneration, Indemnity. Neither the Bank, nor any
director, officer or employee of the Bank, shall be liable to the Pledgor for
any action taken or omitted to be taken by it or them hereunder in connection
herewith, except for its or their own gross negligence or willful misconduct;
nor shall the Bank be responsible for the validity, effectiveness or
sufficiency hereof or of any document or security furnished pursuant hereto or
in connection herewith. The
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Bank shall both be entitled to rely on any communication, instrument or
document believed by it to be genuine and correct and to have been signed or
sent by the proper person or persons. The Pledgor agrees to indemnify and hold
harmless the Bank, and/or agent of the Bank from and against any and all
liability incurred by the Bank (or such agent) hereunder or in connection
herewith, unless such liability shall be due to willful misconduct or gross
negligence on the part of the Bank or such agents.
Section 12. The Bank Appointed Attorney-in-Fact. The Pledgor hereby
appoints the Bank, the Pledgor's attorney-in-fact for the purpose of carrying
out the provisions of this Pledge and taking any action and executing any
instrument which it may deem necessary or advisable to accomplish the purposes
hereof, which appointment is irrevocable and coupled with an interest. Without
limiting the generality of the foregoing, the Bank shall have the right and
power to receive, endorse and collect all checks and other orders for the
payment of money made payable to the Pledgor representing any dividend,
interest payment or other distribution payable or distributable in respect of
the Pledged Collateral or any part thereof and to give full discharge for the
same.
Section 13. No Waiver; Cumulative Remedies. No failure on the part of
the Bank to exercise, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy by the Bank preclude any other
further exercise thereof or the exercise of any other right, power or remedy.
All remedies hereunder are cumulative and are not exclusive of any other
remedies provided by law.
Section 14. Termination. This Pledge shall constitute a continuing
security agreement and shall remain in full force and effect irrespective of
any interruptions in the relationship of the Pledgor with the Bank; provided,
however, that this Pledge shall terminate on the date when all obligations in
connection with the Note have been full satisfied and all indebtedness secured
hereby and all obligations of the Pledgor hereunder have been fully paid and
performed. At such time the Bank shall execute and deliver to the Pledgor an
appropriate release and shall redeliver (or cause to be reassigned and
redelivered) to the Pledgor, or to such person or persons as the Pledgor shall
designate, against receipt, such of the Pledged Collateral (if any) as shall
have been received by the Bank and not sold or otherwise applied pursuant to
the terms hereof and shall still be held by it hereunder, together with
appropriate instruments of reassignment. Any such reassignment shall be without
recourse upon or warranty by the Bank and at the expense of the Pledgor.
Section 15. Notices. All communications and notices hereunder shall be
in writing and, if to the Pledgor, mailed or delivered to it, addressed to 150
East 58th Street, New York, New York 10155 and if to the Bank, mailed or
delivered to it, addressed to it at 1211 Sixth Avenue, 36th Floor, New York,
New York 10036, Attention: Terri Sohrab or, as to each party, at such other
address as shall be designated by such party in a written notice to the other
party complying as to delivery with the terms of this Section. All notices,
requests, demands and other communications provided for hereunder shall be
effective when deposited in the mails or delivered to the telegraph company,
addressed as aforesaid.
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Section 16. Further Assurances. The Pledgor agrees to do such further
act and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Bank may at any time request in
connection with the administration or enforcement of this Pledge or related to
the Pledged Collateral or any part thereof or in order better to assure and
confirm unto the Bank its rights, powers and remedies hereunder. The Pledgor
hereby consents and agrees that the issuers of or obligors in respect of the
Pledged Collateral or any registrar or transfer agent or trustees for any of
the Pledged Collateral shall be entitled to accept the provisions hereof as
conclusive evidence of the right of the Bank to effect any transfer pursuant to
Section 7 hereof, notwithstanding any other notice or direction to the contrary
heretofore or hereafter given by the Pledgor or any other person to any of such
issuers or obligors or to any registrar or transfer agent or trustees.
Section 17. Binding Agreement; Assignment. This Pledge, and the terms,
covenants and conditions hereof, shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns, except that
the Pledgor shall not be permitted to assign this Agreement or any interest
herein or in the Pledged Collateral, or any part thereof, or otherwise pledge,
encumber or grant any option with respect to the Pledged Collateral, or any
part thereof.
Section 18. Miscellaneous. Neither this Pledge nor any provisions
hereof may be amended, modified, waived, discharged or terminated orally nor
may any of the Pledged Collateral be released or the pledge or the security
interest created hereby extended, except by an instrument in writing signed by
a duly authorized officer of the Bank. The Section headings used herein are for
convenience of reference only and shall not define or limit the provisions of
this Agreement.
Section 19. Severability. In case any lien, security interest or other
right of any party hereto shall be held to be invalid, illegal or
unenforceable, such invalidity, illegality and/or unenforceability shall not
affect any other lien, security interest or other right granted hereby.
Section 20. Governing Law. This Pledge is made under and shall be
governed by the laws of the State of New York in all respects, including
matters of construction, validity and performance.
Section 21. Costs, Expenses and Taxes. The Pledgor agrees to pay on
demand all costs and expenses of, and all stamp and other taxes payable
(including any penalties) by, the Bank in connection with the preparation,
execution, delivery, administration and enforcement of this Pledge and the Note
and the other instruments and documents to be delivered hereunder.
Page 27 of 29 Pages
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Pledge to be
duly executed by their respective officers thereunto duly authorized as of the
date first above written.
/s/ Robert F.X. Sillerman
----------------------------------
ROBERT F.X. SILLERMAN
Pledgor
THE CHASE MANHATTAN BANK
By: /s/ Illegible
-------------------------------
Title: Vice President
Page 28 of 29 Pages
<PAGE>
ANNEX I
ISSUER CLASS NUMBER OF SHARES
- ------ ----- ----------------
SFX Broadcasting B Common 133,333
SFX Broadcasting B Common 660,068
Page 29 of 29 Pages
