EXHIBIT 10.26
PURCHASE AGREEMENT
IN RESPECT OF
LIMITED PARTNERSHIP INTERESTS
This agreement (the "Agreement") is entered into as of January 5, 2000
by and between Platinum Blues Chicago, L.L.C., an Illinois limited liability
company ("Seller"), and HOB Chicago, Inc., a Delaware corporation ("Buyer").
Capitalized terms used but not otherwise defined herein shall have the meanings
set forth in the Agreement of Limited Partnership of HOB Marina City Partners,
L.P. (the "Partnership") among Seller, Buyer, HOB Marina City, Inc., a Delaware
corporation (the "General Partner"), and Marks Theater Investment, L.L.C., an
Illinois limited liability company ("Marks") (and successor-in-interest to Niki
Development, Corp., an Illinois corporation), dated January 29, 1996, as amended
by the First Amendment to the Agreement of Limited Partnership dated December
20, 1996 and the Second Amendment to Agreement of Limited Partnership dated as
of May 1, 1997 (as amended, the "Partnership Agreement").
RECITALS
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WHEREAS, pursuant to the Partnership Agreement, Seller made a capital
contribution to the Partnership, and the Partnership issued to Seller an
interest as a Limited Partner in the Partnership;
WHEREAS, Seller desires to sell its entire interest as a Limited
Partner of the Partnership (the "Interests") to Buyer and Buyer wishes to
purchase such Interests pursuant to Section 12.1 of the Partnership Agreement;
WHEREAS, the transactions contemplated herein have been Approved by
the Limited Partners in accordance with Section 8.2(a) of the Partnership
Agreement, and such approval is attached hereto as Exhibit A; and
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WHEREAS, the General Partner will consent to the substitution of Buyer
as a Limited Partner in respect of such Interests;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
AGREEMENT
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1. Transfer of Percentage Interests. Seller will sell, assign,
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transfer and deliver to Buyer all of its Interests in consideration of the
payment by the Buyer of the Purchase Price (as defined below), payable in full
on the Closing Date as provided in this Agreement. On the Closing Date, Buyer
will pay to Seller, or to its order, the cash amount of $5,950,037 (the "Cash
Payment") and deliver 802,469 shares of Class D-2 Preferred Stock, $.01 par
value per share of HOB Entertainment, Inc., a Delaware corporation ("HOB
Entertainment"), valued at $1.62 per share (the "HOB Shares"), the Cash Payment
and the HOB Shares representing the full purchase price (the "Purchase Price")
for the Interests calculated in accordance with Section 12.1 of the Partnership
Agreement.
2. Closing and Payment.
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2.1 Closing Date. The sale and purchase of the Interests
pursuant to this Agreement shall close (the "Closing") in the offices of ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇ at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ on
January 5, 2000, or at such other place, time or date as mutually may be agreed
to by Buyer and Seller (the "Closing Date").
2.2 Deliveries at Closing. At the Closing, the following
shall occur:
2.2.1 Seller and Buyer shall execute and deliver to
each other and to the General Partner an Assignment of Partnership Interests in
the form attached hereto as Exhibit B (the "Assignment of Partnership
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Interests"), pursuant to which the Interests to be sold hereunder shall be
transferred to Buyer free and clear of all liens and encumbrances, but subject
to the terms and provisions of the Partnership Agreement;
2.2.2 Buyer shall pay to Seller, by wire transfer of
immediately available funds, the Cash Payment;
2.2.3 Buyer shall deliver to Seller, and at Seller's
written direction, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ("Seller's Designee") certificates
evidencing and representing 185,185 HOB Shares, in the case of Seller, and
617,284 shares, in the case of Seller's Designee, and containing thereon
applicable legends conforming to the requirements of federal and state
securities laws;
2.2.4 Seller and Seller's Designee shall deliver to
Buyer an executed counterpart to HOB Entertainment's Amended and Restated
Stockholder Agreement whereby each of Seller and Seller's Designee becomes a
party to and bound by the HOB Entertainment's Amended and Restated Stockholder
Agreement;
2.2.5 The General Partner shall deliver to Buyer and
Seller its written consent to the substitution of Buyer as a Limited Partner in
respect of the Interests, substantially in a form attached hereto as Exhibit C;
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2.2.6 HOB Marina City, Inc. and Seller shall execute
and deliver to each other the Agreement of Settlement and Mutual Release;
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2.2.7 The General Partner shall deliver to Buyer and
Seller a Third Amendment to the Partnership Agreement, substantially in the form
attached hereto as Exhibit D and in accordance with Section 3.6 of the
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Partnership Agreement, reflecting the substitution of Buyer as Limited Partner
in respect of the Interests; and
2.2.8 HOB Entertainment, Seller and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
shall execute and deliver to each other the Lock-Up Agreement with respect to
the HOB Shares.
3. Representations and Warranties.
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3.1 Of Buyer. Buyer represents and warrants to Seller as
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follows:
3.1.1 Buyer is a corporation duly organized and
validly existing under the laws of the State of Delaware, and has full power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder;
3.1.2 HOB Entertainment has taken all actions
necessary to duly authorize the issuance of the HOB Shares which when issued in
accordance with the terms of this Agreement will be validly issued, fully paid
and nonassessable, and free and clear of any liens, claims and encumbrances
except as set forth in the Amended and Restated Stockholders Agreement of HOB
Entertainment, dated as of September 10, 1999;
3.1.3 HOB Entertainment has issued shares of its
Class D-2 Preferred Stock in a private offering on September 10, 1999 and
pursuant to a related preemptive rights offering will issue shares of its Class
D-2 Preferred Stock at a purchase price of $1.62 per share. HOB Entertainment
has made no other issuances of its Class D-2 Preferred Stock;
3.1.4 The execution, delivery and performance of
this Agreement and the transactions contemplated herein have been duly
authorized by all requisite corporate action and no other acts or other
proceedings on the part of the Buyer or its shareholders are necessary to
authorize this Agreement or the transactions contemplated herein. This Agreement
has been duly and validly executed by Buyer and constitutes a legal, valid and
binding obligation of Buyer, enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law);
3.1.5 Neither the execution and delivery of this
Agreement nor the performance by Buyer of its obligations hereunder will result
in (i) a violation of or conflict with its organizational documents; (ii) a
material breach of or default under any contract, agreement, indebtedness,
lease, commitment, license, franchise, permit, authorization, or concession to
which it is a party or by which it is bound; or (iii) a violation of any
statute, law, ordinance, rule, regulation, order, judgment, or decree;
3.1.6 Any consent, approval, or authorization of, or
declaration, filing, or registration with, any governmental or regulatory
authority, or any other person or
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entity, required to be made or obtained by Buyer in connection with the
execution, delivery and performance of this Agreement has been made or obtained;
3.1.7 Buyer is acquiring the Interests to be
acquired by it hereunder solely for its own account, not as a nominee or agent
for any other person or entity, and not with a view to, or for offer or sale in
connection with, any distribution thereof that would be in violation of the
securities laws of the United States of America or any state thereof, without
prejudice, however, to its right at all times to sell or otherwise dispose of
all or any part of said Interests under the Securities Act of 1933, as amended
(the "Securities Act"), and applicable state securities laws, or under any
exemption from such registration available under the Securities Act and other
applicable state securities laws;
3.1.8 Buyer is knowledgeable, sophisticated, and
experienced in business and financial matters such that it is capable of
evaluating the merits and risks of the prospective investment in the Interests
to be acquired by it hereunder, is able to bear the economic risk of an
investment in Interests to be acquired by it hereunder, and is able to afford
the complete loss of such investment;
3.1.9 Buyer is an "accredited investor" as defined
in Regulation D under the Securities Act; and
3.1.10 Buyer acknowledges that the Partnership
Agreement limits the transferability of the Interests, that transfers may be
made only in compliance with applicable provisions of the Partnership Agreement
and applicable federal and state securities laws, and that there is no market
for the sale or trade of the Interests.
3.2 Of Seller. Seller represents and warrants to Buyer as
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follows:
3.2.1 Seller is a limited liability company duly
organized and validly existing under the laws of the State of Illinois, and has
full power and authority to execute and deliver this Agreement and to perform
its obligations hereunder;
3.2.2 The execution, delivery and performance of
this Agreement and the transactions contemplated herein have been duly
authorized by all requisite action and no other proceedings on the part of the
Seller are necessary to authorize this Agreement or the transactions
contemplated herein. This Agreement has been duly and validly executed by Seller
and constitutes a legal, valid and binding obligation of Seller, enforceable
against it in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law);
3.2.3 Neither the execution and delivery of this
Agreement nor the performance by Seller of its obligations hereunder will result
in (i) a violation of or conflict with its organizational documents; (ii) a
material breach of or default under any contract, agreement, indebtedness,
lease, commitment, license, franchise, permit, authorization, or
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concession to which it is a party or by which it is bound; or (iii) a violation
of any statute, law, ordinance, rule, regulation, order, judgment, or decree;
3.2.4 Any consent, approval, or authorization of, or
declaration, filing, or registration with, any governmental or regulatory
authority, or any other person or entity, required to be made or obtained by
Seller in connection with the execution, delivery and performance of this
Agreement has been made or obtained;
3.2.5 Seller has valid and legal title to the
Interests and the Interests are not subject to any lien or adverse claim;
3.2.6 Each of Seller and Seller's Designee is
acquiring any HOB Shares that may be acquired by it hereunder solely for its own
account, not as a nominee or agent for any other person or entity, and not with
a view to, or for offer or sale in connection with, any distribution thereof
that would be in violation of the securities laws of the United States of
America or any state thereof, without prejudice, however, to its right at all
times to sell or otherwise dispose of all or any part of said HOB Shares under
the Securities Act of 1933, as amended (the "Securities Act"), and applicable
state securities laws, or under any exemption from such registration available
under the Securities Act and other applicable state securities laws;
3.2.7 Each of Seller and Seller's Designee is
knowledgeable, sophisticated, and experienced in business and financial matters
such that it is capable of evaluating the merits and risks of the prospective
investment in the HOB Shares to be acquired by it hereunder, is able to bear the
economic risk of an investment in Interests to be acquired by it hereunder, and
is able to afford the complete loss of such investment;
3.2.8 Each of Seller and Seller's Designee is an
"accredited investor" as defined in Regulation D under the Securities Act; and
3.2.9 Seller acknowledges for itself and on behalf
of Seller's Designee that transfers of the HOB Shares may be made only in
compliance with applicable federal and state securities laws, and that there is
no market for the sale or trade of the HOB Shares.
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4. Indemnification. To the extent Seller, as the transferring
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Partner of the Interests is not released from further obligations under the
Partnership Agreement after the Closing (the "Further Obligations"), Buyer
agrees to indemnify and hold harmless Seller and its officers, directors,
employees and agents for any and all liabilities, losses, damages, claims, costs
and expenses, interest, awards, judgments and penalties (including reasonable
attorneys' fees and expenses) actually suffered or incurred by them arising out
of or resulting from any and all Further Obligations. For the avoidance of
doubt, the Further Obligations do not include any obligations of Seller under
the Partnership Agreement prior to the Closing.
5. Seller's Acknowledgment. Seller acknowledges for itself and on
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behalf of Seller's Designee that any decision to pursue an initial public
offering of capital stock of HOB Entertainment shall be made by the Board of
Directors of HOB Entertainment and no assurance has been or can be provided
regarding whether or not such a transaction will be pursued or successfully
completed or the timing thereof.
6. Miscellaneous.
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6.1 Expenses. All costs and expenses, including fees and
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disbursements of counsel incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such costs
and expenses; provided, however, the Buyer shall pay or reimburse the
Partnership for all reasonable expenses of the Partnership in connection with
the transaction contemplated hereby.
6.2 Further Assurances. Each of Seller and Buyer agrees to
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cooperate with one another in executing, delivering and otherwise providing such
additional documents, instruments or items as shall be necessary or appropriate
under and pursuant to the terms of this Agreement to effectuate the sale,
assignment, transfer and delivery, from Seller to Buyer, of the Interests to be
acquired by Buyer hereunder.
6.3 Counterparts. This Agreement may be executed
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simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same instrument.
6.4 No Assignment; No Third-Party Beneficiaries. No party
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shall be entitled to assign its rights or obligations under this Agreement
without the prior written consent of every other party, which consent may be
withheld in each party's sole discretion. This Agreement has been and is made
solely for the benefit of Seller and Buyer and their respective successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement.
6.5 Attorneys' Fees. In the event of any litigation between
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the parties based upon, arising out of, or in any way relating to this
Agreement, the prevailing party shall be entitled to recover all of its costs
and expenses (including without limitation attorneys' fees) from the non-
prevailing party.
6.6 Entire Agreement; Governing Law. This Agreement
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incorporates the entire understanding of the parties and supersedes all previous
agreements should they exist,
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and shall be governed by, and construed in accordance with, the laws of the
State of Delaware, without regard to principles of conflicts of law.
(Signature Page Follows)
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IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto effective as of the date first written above.
PLATINUM BLUES CHICAGO, L.L.C.
By:
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Name:
Title:
HOB CHICAGO, INC.
By:
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Name:
Title: