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AGREEMENT FOR
PURCHASE OF JOINT VENTURE INTEREST
BY
PLATINUM ENTERTAINMENT, INC.
FROM
PRIVATE INC.
DATED AS OF NOVEMBER 12, 1996
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AGREEMENT FOR
PURCHASE OF JOINT VENTURE INTEREST
This AGREEMENT FOR PURCHASE OF JOINT VENTURE INTEREST (this "Agreement") is
made and entered into as of this 12th day of November, 1996, by and among
PRIVATE, INC., a Delaware corporation ("Seller"), XXXXXXXXXX MUSIC GROUP, INC.,
a Delaware corporation ("BMG"), HOUSE OF BLUES RECORDS, INC., a Delaware
corporation ("HOB") and PLATINUM ENTERTAINMENT, INC., a Delaware corporation
("Purchaser"). The parties agree that the defined term "Private" shall include
Private Music, a division of Private. Private and BMG shall be referred to
herein as the "Selling Parties".
R E C I T A L S
A. Reference is hereby made to that certain Heads of Agreement, dated
April 28, 1994, by and among Seller, HOB and BMG, which agreement is attached
hereto as Exhibit A (the "JV Agreement"). Private is a wholly owned subsidiary
of BMG.
B. Pursuant to the JV Agreement, HOB and Seller, as equal (50/50)
partners, established a joint venture (the "Joint Venture") for the purpose of
establishing a record label and engaging in the recording business.
C. Seller desires to sell, assign and transfer all of Seller's interest
in the Joint Venture, including, without limitation, all of Seller's rights,
benefits, liabilities and obligations under the JV Agreement (the "Interest") to
Purchaser, and Purchaser desires to purchase and accept the assignment of the
Interest from the Seller on the terms and subject to the conditions set forth in
this Agreement, and become a substitute partner in the Joint Venture with HOB.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
ASSIGNMENT AND SALE OF INTERESTS
On the terms and subject to the conditions hereof, at the Closing, Seller
hereby agrees to sell, assign and transfer ("Transfer") the Interest to
Purchaser. Purchaser, under each of the terms, conditions and provisions
contained herein, hereby agrees to purchase and accept the assignment of the
Interest from the Seller, and assume all of the obligations and liabilities of
Seller as a partner in the Joint Venture, in exchange for the payment of the
purchase price specified in ARTICLE II to the Seller. Seller agrees that
immediately prior to the consummation of the transactions contemplated herein,
all amounts due to the Seller from the Joint Venture, including, without
limitation, any and all payables of the Joint Venture which are payable to
Seller, shall be contributed by the Seller to the capital of the Joint Venture
and shall become part of the Interest purchased hereunder. The Selling Parties
agree, at the Closing, to provide the Joint Venture with the documentation
necessary in order to memorialize such contribution.
ARTICLE II
PURCHASE PRICE
The purchase price for the Interest shall be equal to $3,063,183 (the
"Purchase Price"). The parties hereto acknowledge that Purchaser has previously
deposited into an escrow account $350,000 as xxxxxxx money (the "Xxxxxxx Money
Deposit"), which Seller shall receive at the Closing and which amount shall be
credited against the Purchase Price due Seller under this Article II. The
Purchase Price (less the Xxxxxxx Money Deposit) shall be paid at Closing by wire
transfer of immediately available funds to an account of Seller at a bank
specified by Seller in writing at least two business days prior to the Closing
Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLING PARTIES
The Selling Parties, jointly and severally, represent and warrant (subject
to Section 3.8 hereof) to Purchaser as follows:
3.1 ORGANIZATION AND QUALIFICATION.
(a) Seller is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) The Joint Venture has the requisite joint venture power and
authority and all necessary governmental approvals to own, lease and operate its
properties and to carry on its business as it is now being conducted and is duly
qualified or licensed as in each jurisdiction where the character of the
properties owned, leased or operated or the nature of the business conducted by
it makes such qualification or licensing necessary.
3.2 AUTHORITY RELATIVE TO THIS AGREEMENT. Each of the Selling Parties has
all necessary corporate right, power and authority to execute and deliver this
Agreement and the Assignment and Assumption Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the Assignment and Assumption
Agreement by the Selling Parties and the consummation by the Selling Parties of
the transactions contemplated hereby have been duly and validly authorized by
all necessary corporate action on the part of the Selling Parties and no other
corporate proceedings by the Selling Parties are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
and the Assignment and Assumption Agreement have been duly and validly executed
and delivered by the Selling Parties and, assuming the due authorization,
execution and delivery thereof by (and enforceability against) the other parties
hereto, constitutes the legal, valid and binding obligation of the Selling
Parties, enforceable against the Selling Parties in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights generally and by equitable
principles to which the remedies of specific performance and injunctive and
similar forms of relief are subject.
3.3 CONSENTS AND APPROVALS; NO VIOLATION. The execution and delivery by
the Selling Parties of this Agreement and the Assignment and Assumption
Agreement, the consummation by the Selling Parties of the transactions
contemplated hereby and thereby and
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compliance by the Selling Parties with the provisions hereof and thereof will
not (a) conflict with, result in a breach of, cause a dissolution or require the
consent or approval of any Person under any provision of the Organizational
Documents of the Selling Parties or the Joint Venture, (b) require any consent,
approval, authorization or permit of, or filing with or notification to, any
Governmental Authority, (c) conflict with, result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any Contract
(including, without limitation the JV Agreement), or give to any third party any
right of termination, cancellation, amendment or acceleration under any Contract
or result in the creation of a Lien on the Interest or any assets or properties
of the Joint Venture, or (d) violate or conflict with any judgment, order, writ,
injunction or Law applicable to the Selling Parties, the Joint Venture or the
Interest. Except as specified in Part 3.3 of the Disclosure Letter, the Joint
Venture is not a party to, nor are any of its assets bound by, any Contract,
other than the JV Agreement.
3.4 FINANCIAL STATEMENTS. Seller has previously delivered to Purchaser a
true, accurate and complete copy of the balance sheet of the Joint Venture as of
June 30, 1996 and October 31, 1996 (the "Financial Statements"). The Financial
Statements have been prepared in accordance with Generally Accepted Accounting
Principles consistently applied by the Joint Venture, except as otherwise noted
therein, and except as set forth in PART 3.4 OF THE DISCLOSURE LETTER, presents
fairly in all material respects, the financial position of the Joint Venture as
of the respective dates and the results of its operations and changes in
financial position for the periods presented therein, as the case may be.
3.5 OWNERSHIP INTERESTS. PART 3.5 OF THE DISCLOSURE LETTER sets forth (a)
all of the issued and outstanding interests of the Joint Venture, including
without limitation, any preferred or priority interests (together with any
accrued and unpaid returns thereon), and (b) the participating percentages and
the type of interest held by each Joint Venture partner. The Joint Venture does
not own any interest in any corporation, limited partnership, limited liability
company, joint venture, trust or other entity. The Interest is owned by Seller
free and clear of all security interests, liens, adverse claims, pledges,
options, rights of first refusal, limitations on voting rights, charges and
other encumbrances of any nature whatsoever ("Liens"), with the exception of any
Liens created by the JV Agreement. Seller has good and valid title to the
Interest.
3.6 JV AGREEMENT. Except as set forth in PART 3.6 OF THE DISCLOSURE
LETTER, all of the terms and conditions of the Joint Venture are set forth in
the JV Agreement and no other agreement, document or understanding (oral or
written) of any nature exists with respect to either the establishment of the
Joint Venture or the relationship between the parties who comprise the Joint
Venture. The JV Agreement has not been amended, modified, restated, superseded
or nullified in any manner whatsoever. No Selling Party has received any notice
of a default by any of the Selling Parties or any other party under the JV
Agreement which has not been cured. The JV Agreement is a valid and binding
agreement and enforceable in accordance with the terms and conditions set forth
therein (assuming that the JV Agreement is valid, binding and enforceable
against the other parties thereto). Each of the Selling Parties is in
compliance in all respects with the terms and provisions of the JV Agreement.
To the knowledge of the Selling Parties, HOB is in compliance with the
provisions of the JV Agreement.
3.7 ABSENCE OF UNDISCLOSED LIABILITIES. Except as set forth on PART 3.7
OF THE DISCLOSURE LETTER, to the actual knowledge of the Selling Parties, the
Joint Venture has no liabilities or obligations of any kind or nature, whether
absolute, contingent or accrued, and whether due or to become due which would
cause a material adverse effect on the Joint Venture.
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3.8 HOB ACTIONS. The parties hereto agree that no representation and
warranties are made by the Selling Parties with respect to any state of facts
pertaining to, or actions taken by, HOB involving the Joint Venture; provided
that Selling Parties are not aware of any such state of facts or actions
involving HOB which would render the representations and warranties made by the
Selling Parties incorrect or untrue.
3.9 CAUSES OF ACTION. To the Selling Parties' actual knowledge, none of
the Selling Parties have any claims or causes of action against Purchaser as of
the Closing Date; provided, that no representation or warranty is made as to
claims or causes of action (whether actual or potential) relating, directly or
indirectly, to the Joint Venture, the Interest or any other matters contemplated
herein.
ARTICLE III-A
REPRESENTATIONS AND WARRANTIES OF HOB
HOB hereby represents and warrants to the other parties hereto as follows:
3.1-A JV AGREEMENT. Except as set forth on PART 3.6 OF THE DISCLOSURE
LETTER, all of the terms and conditions of the Joint Venture are set forth in
the JV Agreement and no other agreement, document or understanding (oral or
written) of any nature exists with respect to either the establishment of the
Joint Venture or the relationship between the parties who comprise the Joint
Venture. The JV Agreement has not been amended, modified, restated, superseded
or nullified in any manner whatsoever. HOB has not received any notice of a
default by HOB or any other party under the JV Agreement which has not been
cured. The JV Agreement is a valid and binding agreement and enforceable in
accordance with the terms and conditions set forth therein (assuming that the JV
Agreement is valid, binding and enforceable against the other parties thereto).
HOB is in compliance in all respects with the terms and provisions of the JV
Agreement. To the knowledge of HOB, each of the Selling Parties is in
compliance with the provisions of the JV Agreement.
HOB hereby represents (but does not warrant) to the other parties hereto as
follows:
3.2-A GENERAL. Except as set forth on PART 3.7 OF THE DISCLOSURE
LETTER, to the actual knowledge of HOB, the Joint Venture has no liabilities or
obligations of any kind or nature, whether absolute, contingent or accrued, and
whether due or to become due which would cause a material adverse effect on the
Joint Venture.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Selling Parties as follows:
4.1 AUTHORITY. Purchaser hereby represents and warrants to Seller that
Purchaser has the full corporate right, power and authority to execute this
Agreement and the Assignment and Assumption Agreement and consummate the
transactions contemplated by this Agreement. The execution and delivery of this
Agreement and the Assignment and Assumption Agreement by Purchaser and the
consummation by Purchaser of the transactions contemplated hereby and the
Assignment and Assumption Agreement have been duly and validly authorized by all
necessary
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corporate action and no other corporate proceedings are necessary to authorize
this Agreement and the Assignment and Assumption Agreement or to consummate the
transactions contemplated hereby. This Agreement and the Assignment and
Assumption Agreement have been duly and validly executed and delivered by
Purchaser and, assuming the due authorization, execution and delivery thereof by
the other parties hereto, constitutes the legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights generally and by equitable principles
to which the remedies of specific performance and injunctive and similar forms
of relief are subject.
4.2 ORGANIZATION. Purchaser is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware.
4.3 CONSENTS AND APPROVALS; NO VIOLATION. The execution and delivery by
the Purchaser of this Agreement and the Assignment and Assumption Agreement, the
consummation by the Purchaser of the transactions contemplated hereby and
thereby and compliance by the Purchaser with the provisions hereof and thereof
will not (a) conflict with, result in a breach of, cause a dissolution or
require the consent or approval of any Person under any provision of the
Organizational Documents of the Purchaser, (b) require any consent, approval,
authorization or permit of, or filing with or notification to, any Governmental
Authority, (c) conflict with, result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any Contract or give to
any third party any right of termination, cancellation, amendment or
acceleration under any Contract, or (d) violate or conflict with any judgment,
order, writ, injunction or Law applicable to the Purchaser.
4.4 CAUSES OF ACTION. To Purchaser's the actual knowledge, it does not
have any claims or causes of action against any of the Selling Parties as of the
Closing Date; provided, that no representation or warranty is made as to claims
or causes of action (whether actual or potential) relating, directly or
indirectly, to the Joint Venture, the Interest or any other matters contemplated
herein.
ARTICLE V
THE CLOSING
5.1 THE CLOSING. The consummation of the assignment and transfer of the
Interest (the "Closing") will take place at the offices of Xxxxxx Xxxxxx &
Xxxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, or by
telecopy (with overnight hard copies to follow), as agreed to by the parties
hereto, at 10:00 a.m., Chicago time, on November 12, 1996 or at such other
place, time or date as may be mutually agreed in writing by the parties (the
"Closing Date").
5.2 DELIVERIES OF THE SELLING PARTIES. At the Closing, the Selling
Parties will deliver to Purchaser the following:
5.2.1 ASSIGNMENT AND ASSUMPTION AGREEMENT. An Assignment and
Assumption Agreement, executed by Seller, substantially in the form
attached hereto as EXHIBIT 5.2, pursuant to which (i) Seller transfers its
Interest to Purchaser and (ii) Purchaser assumes Seller's duties,
liabilities and obligations under the JV Agreement (the "Assignment and
Assumption Agreement").
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5.2.2 RESOLUTIONS. A copy of resolutions of the Board of
Directors of the Selling Parties, certified by the Secretaries thereof as
duly adopted and in full force and effect, authorizing execution and
delivery of this Agreement and all documents contemplated herein to which
any of the Selling Parties is a party and performance by such Selling Party
of the transactions contemplated herein.
5.2.3 BOOKS AND RECORDS. The Selling Parties shall deliver to
Purchaser all of the books and records of the Joint Venture in its
possession.
5.2.4 CONTRIBUTION OF CAPITAL. Documentation reasonably
satisfactory to the Purchaser evidencing the contributions to capital
required pursuant to Article I above.
5.3 DELIVERIES OF PURCHASER. At the Closing, Purchaser will deliver to
the Selling Parties the following:
5.3.1 PURCHASE PRICE. The Purchase Price (less the Xxxxxxx Money
Deposit), paid in the manner specified in ARTICLE II.
5.3.2 ASSIGNMENT AND ASSUMPTION AGREEMENT. The Assignment and
Assumption Agreement, executed by Purchaser.
5.3.3 RESOLUTIONS. A copy of resolutions or minutes of the Board
of Directors of the Purchaser, certified by the Secretary thereof as duly
adopted and in full force and effect, authorizing execution and delivery of
this Agreement and all documents contemplated herein to which Purchaser is
a party and performance by Purchaser of the transactions contemplated
herein.
ARTICLE VI
INDEMNIFICATION
6.1 INDEMNIFICATION.
6.1.1 INDEMNIFICATION BY PURCHASER. Purchaser will indemnify,
defend and hold harmless the Selling Parties, their Affiliates and their
Representatives (each, a "Seller Indemnitee") from and against any and all
third party claims, demands or suits, losses, liabilities, actual or
punitive damages, fines, excise taxes, penalties, obligations, payments,
costs and expenses, paid or incurred, including without limitation the
costs and expenses of any and all actions, suits, proceedings, demands,
assessments, judgments, settlements and compromises relating thereto and
reasonable attorneys' fees and expenses in connection therewith
(individually and collectively, "Indemnifiable Losses") relating to,
resulting from or arising out of (i) a breach of any covenant or agreement
hereunder or in the Assignment and Assumption Agreement or inaccuracy of
Purchaser's representations and warranties set forth in ARTICLE IV or (ii)
the return of records distributed on behalf of the Joint Venture (including
any successor to the Joint Venture after the Closing Date) which returns
are received by the Selling Parties after June 30, 1996.
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6.1.2 INDEMNIFICATION BY SELLER. The Selling Parties, jointly and
severally, will indemnify, reimburse, defend, and hold harmless Purchaser
and its Affiliates and Representatives (each, a "Purchaser Indemnitee")
from and against all Indemnifiable Losses asserted against, resulting to,
imposed on, or suffered or incurred by any Purchaser Indemnitee, directly
or indirectly, as a result of:
(i) a breach of any covenant or agreement hereunder or under the
Assignment and Assumption Agreement by any of the Selling Parties or a
breach or inaccuracy of any representation or warranty of the Selling
Parties set forth in Article III; or
(ii) any claims which arise as a result of any wrongful acts or
wrongful failure to act by Seller, including, without limitation, a
breach by Seller of its fiduciary duties as a partner in the Joint
Venture.
6.2 DEFENSE OF CLAIMS. If any Seller Indemnitee or Purchaser Indemnitee
(each, an "Indemnitee") receives notice of the assertion of any claim or of the
commencement of any action or Proceeding by any person or entity that is not a
party to this Agreement or an Affiliate of such party ("Third Party Claim")
against such Indemnitee, with respect to which Purchaser, Seller or Private
(each, an "Indemnitor") is obligated to provide indemnification under this
Agreement, such Indemnitee will give Indemnitor reasonably prompt notice
thereof. Indemnitor shall assume the defense of such Third Party Claim, at its
own expense and by its own counsel reasonably satisfactory to such Indemnitee.
Without the prior written consent of such Indemnitee, Indemnitor shall not enter
into any settlement of any Third Party Claim which would lead to liability or
create any financial or other obligation on the part of such Indemnitee for
which such Indemnitee is not entitled to indemnification hereunder. If
Indemnitor fails to assume the defense of any Third Party Claim within thirty
(30) days of receipt of notice thereof or if Indemnitee reasonably believes that
assuming such defense would constitute a conflict of interest on the part of
Indemnitor, Indemnitee may elect to assume such defense, assisted by counsel
reasonably acceptable to Indemnitor, and Indemnitor shall be liable for all
reasonable costs or expenses paid or incurred in connection therewith; provided,
however, that in no event may Indemnitee settle or compromise any Third Party
Claim without the prior written consent of Indemnitor, which consent shall not
be unreasonably withheld. In such instance, the Indemnitee shall use its
reasonable efforts to keep the Indemnitor fully informed of any action, suit or
proceeding relating to such Third Party Claim, whether or not it is represented
in such claim, suit or proceeding.
6.3 LIMITATIONS.
(a) Anything contained herein to the contrary but subject to the
terms set forth in Section 6.3 (b) and (c), (i) for purposes of this Article VI,
none of the Selling Parties shall have any indemnification obligation or
liability to the Purchaser arising under or relating to this Agreement (whether
under Article VI or under any other provision of this Agreement, including,
without limitation, Articles III or otherwise), unless the aggregate amount of
Indemnifiable Losses exceeds $100,000 (in which case the Selling Parties shall
only be liable for the amount in excess of $100,000) (the "Basket") and (ii) in
no event shall the liability of the Selling Parties under this Article VI (or
under any other provision of this Agreement or otherwise) exceed $2.5 million
(the "Cap"). For purposes of this Article VI, the amount of an asserted
Indemnifiable Loss shall be reduced by the dollar amount of any title, casualty
or other insurance proceeds actually collected (net of any deductibles) by the
damaged party; provided, however, in no event shall any party be required or
obligated in any manner to file any insurance claim or seek insurance coverage
for any Indemnifiable Loss.
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(b) The limitations set forth in Section 6.3(a) (i.e. the Basket and
Cap) shall, in no event, apply to (i) a breach by the Selling Parties of its
representations and warranties contained in Sections 3.1, 3.2, 3.3 ((a) through
(c)), 3.9 and the first, third and fourth full sentences of Section 3.5, (ii) a
breach of the covenants and agreement set forth in Article VII below or (iii)
Indemnifiable Losses incurred by Purchaser or its Affiliates as a result of any
fraudulent acts (or omissions to act) by Selling Parties or its Affiliates.
(c) The representations, warranties and indemnities set forth in this
Agreement shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby and terminate 18 months
after the Closing Date; provided, however, the representations and warranties
set forth in the first, third and fourth full sentences of Section 3.5 shall
survive indefinitely. In the event Seller or Purchaser incurs an Indemnifiable
Loss and a claim(s) for indemnification is reported prior to the end of such 18
month period, the obligations of each party pursuant to this Article VI, solely
with respect to such reported claim(s) and no other claim(s), shall be extended
until such claim(s) is fully resolved and the party who incurred the
Indemnifiable Loss is appropriately indemnified pursuant to the terms hereof.
ARTICLE VII
OTHER COVENANTS AND AGREEMENTS
7.1 ATTORNEY'S FEES. Purchaser agrees that it will pay (within 10 days of
receiving both a written statement requesting such payment and the documentation
required under (ii) below), on behalf of Seller, the actual attorney's fees and
expenses incurred by Seller in connection with the negotiation and documentation
of the transactions contemplated hereby; provided, however, (i) in no event
shall Purchaser pay any amounts pursuant to this Section 7.1 in excess of
$50,000 and (ii) as a condition precedent to Purchaser's obligation under this
Section 7.1, Seller shall be required to deliver reasonable supporting
documentation evidencing the incurrence of such attorney's fees and expenses,
including, without limitation, invoices detailing the hours spent and expenses
incurred for which payment was sought.
7.2 NO POST-CLOSING LIABILITIES. Effective as of the Closing, (i) the
liabilities and obligations of the Selling Parties to the Joint Venture are
terminated and the Selling Parties shall not have any obligation to fund any
liabilities of the Joint Venture after the Closing Date and (ii) all liabilities
and obligations of the Joint Venture to the Selling Parties, other than pursuant
to Section 7.4 hereof, are terminated and the Selling Parties shall be deemed to
have waived any claims for payment of distributions or otherwise by the Joint
Venture. The parties agree that the preceding sentence shall not in any manner
derogate or limit the Selling Parties' obligations under this Agreement,
including, without limitation, its indemnification obligations under Article VI.
7.3 CLOSING EXPENSES AND RELATED TAXES. Each of the Selling Parties, on
the one hand and Purchaser, on the other hand, shall pay at the Closing fifty
percent (50%) of any stamp or other sales, transfer or transaction tax
("Transfer Tax") imposed under the laws of the United States or any state,
county, municipality or other subdivision thereof on the sale of the Interest by
Seller to Purchaser (including any indirect assessments of Transfer Tax, if
applicable).
7.4 RELEASED PRODUCT. The parties hereto agree that all of the terms,
conditions and intent of Section 8 of that certain Letter Agreement, by and
between Seller and Purchaser, dated June 1996 (the "Letter Agreement") is hereby
incorporated by reference and made a part hereof. BMG agrees (i) to abide by
the provisions of such section in all respects and (ii) to continue to
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distribute the Released Products upon the same terms and conditions and
consistent with past practices, as prior to the Closing. Other than Section 8 of
the Letter Agreement (and the meaning of the defined terms included within
Section 8 of the Letter Agreement), this Agreement supersedes the Letter
Agreement and in the event of any conflict between this Agreement and the Letter
Agreement, this Agreement shall prevail.
7.5 CONSENT. HOB and BMG hereby acknowledge and consent to the sale by
Seller to Purchaser of the Interests pursuant to the terms and conditions set
forth herein.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 NOTICES. All notices and other communications required or permitted
hereunder will be in writing and, unless otherwise provided in this Agreement,
may be personally delivered or given or made by overnight courier such as
Federal Express, by facsimile transmission or made by United States registered
or certified mail addressed as follows:
(a) If to Purchaser, to:
Platinum Entertainment, Inc.
0000 Xxxxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxxx
With a copy to:
Xxxxxx Xxxxxx & Zavis
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
(b) If to the Selling Parties, to:
Private Music
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile No.: 000-000-0000
Attention: Xxxxxx Xxxxxxxx
With a copy to:
Grubman Xxxxxxxx Xxxxxxxxx & Xxxxxxxxx, P.C.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 212-554-0444
Attention: Xxxxxx X. Xxxxxxxx, Esq.
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or to such other address or addresses as any party may from time to time
designate as to itself by like notice. Any notice so given shall be deemed to
be delivered or made on (and with respect to any notice of a claim under Article
VI above filed) the next business day sent by a nationally recognized overnight
courier, or the same day as given if sent by facsimile transmission and received
by 5:00 p.m. Central Daylight time (with an electronic confirmation of receipt)
or on the 4th business day after the same is deposited in the United States mail
as registered or certified matter, addressed as above provided, with postage
thereon fully prepaid. Any such notice not given, delivered or made by
registered or certified mail, by overnight courier or by facsimile transmission
as aforesaid shall be deemed to be given, delivered or made (and with respect to
any notice of a claim under Article VI above filed) upon receipt of the same by
the party to whom the same is to be given, delivered or made.
8.2 EXPENSES. Except as otherwise expressly provided herein, and whether
or not a Closing shall occur, each of the parties shall pay all expenses
incurred by it in connection with or incident to the negotiation and preparation
of this Agreement.
8.3 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
8.4 ENTIRE AGREEMENT. Subject to the terms of Section 7.4 above, this
Agreement (together with the Schedules hereto) supersedes any other agreement,
whether written or oral, that may have been made or entered into by Purchaser,
on the one hand, and any of the Selling Parties, on the other hand (or by any
director, officer or representative thereof) relating to the matters
contemplated hereby. This Agreement (together with the Schedules hereto)
constitute the entire agreement by and among the parties.
8.5 AMENDMENTS, SUPPLEMENTS, ETC. This Agreement may be amended or
supplemented at any time by additional written agreements executed by both
parties hereto.
8.6 BROKERS. The parties hereto hereby each represent and warrant to the
other that neither has retained the services of a broker in connection with this
transaction.
8.7 GOVERNING LAW. The validity, performance and enforcement of this
Agreement and all documents contemplated herein, unless expressly provided
herein or therein to the contrary, shall be governed by the Laws of the State of
Illinois, without giving effect to the principles of conflicts of law thereof.
8.8 EXECUTION IN COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
8.9 TITLES AND HEADINGS. Titles and headings to Articles or Sections
herein are inserted for convenience of reference only, and are not intended to
be a part of or to affect the meaning or interpretation of this Agreement.
8.10 CERTAIN INTERPRETIVE MATTERS AND DEFINITIONS.
(a) Unless the context otherwise requires, (i) all references to
Sections, Articles or Schedules are to the Sections, Articles or Schedules of or
to this Agreement, (ii) each term defined in this Agreement has the meaning
assigned to it, and (iii) words in the singular include the plural and VICE
VERSA.
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(b) No provision of this Agreement will be interpreted in favor of,
or against, any of the parties hereto by reason of the extent to which any such
party or its counsel participated in the drafting thereof or by reason of the
extent to which any such provision is inconsistent with any prior draft hereof
or thereof.
(c) For purposes of this Agreement, the following terms have the
meanings set forth below:
"AFFILIATE" shall mean, with respect to any Person, any other
Person that directly or indirectly through one or more intermediaries,
Controls, is Controlled by, or is under common Control with such
Person; provided that the Joint Venture shall not be deemed to an
Affiliate of HOB, the Purchaser or either of the Selling Parties.
"CONTRACT" shall mean any indenture, deed of trust, mortgage,
loan agreement, or other document or instrument or agreement, oral or
written, to which any of the Selling Parties are a party or by which
any of the Selling Parties' assets or properties are bound; provided,
for purposes of Section 4.3, "Contract" shall refer to any such
Contract to which the Purchaser is a party or by which any of the
Purchaser's assets or properties are bound.
"DISCLOSURE LETTER" shall means the letter delivered by the
Seller and Private to Purchaser concurrently with the execution and
delivery of this Agreement.
"GOVERNMENTAL AUTHORITY" shall mean any government or any agency,
bureau, board, commission, court, department, official, political
subdivision, tribunal or other instrumentality of any government,
whether Federal, state, local, domestic or foreign.
"LAWS" shall mean all laws, rules, regulations, ordinances,
decrees and orders of all applicable Federal, state, city and other
Governmental Authorities.
"ORDER" shall mean any order, decree, injunction, judgment,
edict, ruling, assessment, pronouncement, determination, decision,
opinion, sentence, subpoena, writ or award issued, made, entered or
rendered by any court, administrative agency or other Governmental
Authority or by any arbitrator.
"ORGANIZATIONAL DOCUMENTS" shall mean (i) with respect to a
corporation, its certificate or articles of incorporation and bylaws,
(ii) with respect to any limited liability company, its certificate of
formation, articles of organization, regulations, operating agreement
and limited liability company agreement, as applicable, (iii) with
respect to any limited partnership, its certificate of limited
partnership and limited partnership agreement, (iv) with respect to
any general partnership, its partnership agreement, (v) with respect
to a joint venture, any joint venture document, and (v) all other
similar organizational documents.
"PERSON" shall mean any natural person, corporation, general
partnership, limited partnership, proprietorship, trust, union,
association, court, tribunal, agency, government, department,
commission, self-regulatory organization,
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arbitrator, board, bureau, instrumentality, or other entity,
enterprise, authority, or business organization.
"REPRESENTATIVE" shall mean, with respect to any Person, any
director, officer, employee, agent, advisor, counsel, accountant,
lender or other representative of such Person or of any Affiliate of
such Person or any Representative of any of the foregoing.
8.11 CROSS-REFERENCES. If a document or matter is disclosed in any Exhibit
or Schedule to this Agreement in connection with a representation or warranty
made herein, it shall be deemed to be disclosed with respect to the same matter
addressed elsewhere in this Agreement without the necessity of specific
repetition or cross-reference.
8.12 SEVERABILITY. If any provision of this Agreement or the application
of any such provision to any person or circumstance shall be held invalid,
illegal or unenforceable in any respect by a court of competent jurisdiction,
such invalidity, illegality or unenforceability shall not affect any other
provision hereof.
8.13 ASSIGNMENT. No party shall not have the right to assign their rights
or delegate their obligations under this Agreement without the prior written
consent of all of the other parties hereto.
8.14 STRICT CONSTRUCTION. The language used in this Agreement will be
deemed the language chosen by the parties to express their mutual intent, and no
rule of strict construction will be applied against any party.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
PRIVATE, INC.
By: /s/ XXXXXX XXXXXXXX
------------------------------
Name: Xxxxxx Xxxxxxxx
------------------------------
Title: Senior Vice President
------------------------------
PLATINUM ENTERTAINMENT, INC.
By: /s/ XXXXXX XXXXXX
------------------------------
Name: Xxxxx Xxxxxx
------------------------------
Title: Chief Executive Officer
------------------------------
HOUSE OF BLUES RECORDS, INC., solely
with respect to Article III-A and
Section 7.5
By: /s/ XXXXXXX X. TROJAN
------------------------------
Name: Xxxxxxx X. Trojan
------------------------------
Title: President & Chief
Executive Officer
------------------------------
XXXXXXXXXX MUSIC GROUP, INC.
By: /s/ XXXXXXX X. XXXXXXXXX
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
------------------------------
Title: Asst. Secretary
------------------------------
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