AMENDMENT NO. 4 TO ASSET PURCHASE AGREEMENT
This Amendment No. 4 to Asset Purchase Agreement, dated as of
August 27, 1999 (this "Amendment"), is made and entered into by and among Livent
Inc., an Ontario corporation ("Livent"); Livent International Inc., a Barbados
corporation ("Livent International"); Livent (U.S.) Inc., a Delaware corporation
("Livent U.S."); Livent Realty (New York) Inc., a Delaware corporation ("Livent
N.Y."); Livent Realty (Chicago) Inc., a Delaware corporation ("Livent Chicago,"
and together with Livent, Livent International, Livent U.S. and Livent N.Y.,
collectively, the "Sellers"); and SFX Entertainment, Inc., a Delaware
corporation (the "Buyer"). Capitalized terms used but not otherwise defined
herein shall have the meanings accorded such terms in the Purchase Agreement (as
defined below).
W I T N E S S E T H:
WHEREAS, the Sellers and the Buyer are parties to that certain Asset
Purchase Agreement, dated as of May 28, 1999, as amended as of June 14, 1999, as
further amended as of July 8, 1999 and as further amended as of August 17, 1999
(as so amended, the "Purchase Agreement");
WHEREAS, the parties to the Purchase Agreement now wish to further
amend the Purchase Agreement, as provided herein;
NOW, THEREFORE, in consideration of the mutual terms, conditions and
other agreements set forth herein, the parties hereto hereby agree as follows:
1. The definition of "Engineering Consultant" is hereby deleted in its
entirety and replaced with the following:
"Engineering Consultant" shall mean Xxxxxx Partnership Inc., Terra Probe or
such other engineering consultant as shall be reasonably acceptable to the
Sellers and the Buyer.
2. The definition of "Escrow D Agreement" is hereby deleted in its
entirety and replaced with the following:
"Escrow D Agreement" shall mean the Escrow Agreement described in Section
2.7(f) to be dated as of the Closing Date, by and among the Sellers, the
Buyer, TTLtd., DRVS, Ernst & Young, Inc. acting as court appointed interim
receiver of certain assets of Livent, and the Escrow Agent, in form and
substance reasonably satisfactory to the Sellers and Buyer.
3. The definition of "Structural Support Escrow Amount" is hereby
deleted in its entirety and replaced with the following:
"Structural Support Escrow Amount" -- See Section 9.8(b).
4. The definition of " Structural Support Work " is hereby deleted in
its entirety and replaced with the following:
"Structural Support Work" shall mean the work reasonably ascertained by
the Engineering Consultant that is necessary to provide structural support
for the Pantages Theatre so that the structural integrity of the Pantages
Theatre will not be adversely affected by soil shifting caused by the
existing excavation with respect to the DRVS Land.
5. The definition of "Support Work Documents" is hereby deleted in its
entirety.
6. The following definition is hereby added to Section 1.1 of the
Purchase Agreement:
"Chicago Theater Company" shall mean the Chicago Theater Company, a
Delaware corporation doing business in Illinois as The Oriental Theater, and an
indirect subsidiary of Buyer.
7. The following definition is hereby added to Section 1.1 of the
Purchase Agreement:
"TTLtd." shall mean the Toronto Theater Ltd., an Ontario corporation,
and an indirect subsidiary of Buyer.
8. Section 2.7(f) of the Purchase Agreement is hereby deleted in its
entirety and replaced with the following:
"(f) At the Closing, the Buyer shall cause funds in the amount of
the Structural Support Escrow Amount as set forth in Section 9.8
to be paid out of the Estimated Purchase Price to the Escrow Agent
pursuant to the Escrow D Agreement. Said funds, together with any
interest thereon, shall be referred to as the "Escrow D Funds."
The Escrow D Funds shall be available as provided in the Escrow D
Agreement. To the extent (i) TTLtd. is entitled to perform the
Structural Support Work pursuant to Section 7.06 of the Dundee
Agreement, (ii) TTLtd. exercises its self-help rights pursuant to
said Section 7.06 and actually performs the Structural Support
Work pursuant to said Section 7.06 and (iii) the Escrow D Funds
are not sufficient to cover the cost incurred by TTLtd. to
complete such Structural Support Work, the Buyer may offset any
additional amounts required to complete such Structural Support
Work against the Put Amount, with the amount of such additional
amounts offsetting the Put Amount to be valued by increasing such
additional amounts from the date of their incurrence to the fifth
anniversary of the Closing Date using an annual rate of 15%. The
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Buyer shall notify the Sellers as to any such offset against the
Put Amount ten (10) Business Days prior to any such offset. Such
notification shall be accompanied by a certification of a senior
financial officer of the Buyer as to the calculation of such
offset, including related supporting detail and reasonable third
party documentation evidencing TTLtd.'s incurrence of the costs in
question (or, in the case of the final offset, reasonable third
party documentation evidencing costs incurred or that will be
incurred by TTLtd. to complete the Structural Support Work
pursuant to Section 7.06 of the Dundee Agreement). No such offset
shall be made after the last day of the month in which the twelve
(12) month anniversary of the Closing Date occurs. Upon
termination of the Escrow D Agreement, all Escrow D Funds which
have not been drawn or subject to a claim or demand by TTLtd. or
DRVS (as the case may be) in accordance with the Escrow D
Agreement shall be paid by the Escrow Agent to an account
designated by Livent U.S. on behalf of the Sellers in writing, by
wire transfer in immediately available funds in accordance with
the Escrow D Agreement."
9. Section 9.8 of the Purchase Agreement is hereby deleted in its
entirety and replaced with the following:
SECTION 9.8 STRUCTURAL SUPPORT FOR PANTAGES THEATRE.
"(a) Sellers and Buyer (i) acknowledge that the DRVS Land, which
is adjacent to the Land upon which the Pantages Theatre is located, contains
a crater as a result of excavation with respect to the DRVS Land and (ii)
have been informed that (A) due to the fact that such crater has remained
unfilled for a period of time, there has been a shifting of soil between the
crater and the Pantages Theatre ("Soil Shifting") and (B) if the crater were
to remain unfilled, and additional structural support were not provided to
the Pantages Theatre, the structural integrity of the Pantages Theatre might
be at risk as a result of continuing Soil Shifting.
(b) Sellers and Buyer agree that funds in an amount equal to
US$382,370.70 (CAN$570,000 divided by 1.4907 (the New York foreign exchange
mid-range rate as quoted at 4:00 p.m. Eastern time by Telerate and other
sources as published in the August 25, 1999 edition of The Wall Street
Journal)) (the "Structural Support Escrow Amount") shall be paid over to the
Escrow Agent to be held pursuant to the Escrow D Agreement, and shall be
held and disbursed pursuant to the provisions of the Escrow D Agreement for
claims made in accordance with and subject to the terms, provisions and
conditions of the Escrow D Agreement (i) by TTLtd. and/or DRVS, as the case
may be, with respect to the Structural Support Work performed using the
Schedule C Method (as defined in the Dundee Agreement) or (ii) by DRVS with
respect to Structural Support Work using the Parkade Method (as defined in
the Dundee Agreement).
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(c) The provisions of this Section 9.8 (together with the
provisions of Section 2.7(f) hereof) and the Dundee Agreement set forth the
Buyer's and TTLtd.'s sole and exclusive rights and remedies in respect of
Soil Shifting."
10. Schedules 1.4, 4.13, 4.14(a)(i) and 4.14(a)(ii) to the Purchase
Agreement are hereby deleted in their entirety and replaced with Schedules 1.4,
4.13, 4.14(a)(i) and 4.14(a)(ii), respectively, attached hereto.
11. The clause "the amount of $90,800,000 in cash (the "Initial Cash
Amount")," set forth in Section 2.2(a)(i) of the Purchase Agreement, as amended
and restated by Amendment No. 2 to the Purchase Agreement, dated as of July 8,
1999, is hereby further amended and restated to state "the amount of $90,760,000
in cash (the "Initial Cash Xxxxxx")".
00. The following sentence shall be added to Section 2.7(d), following
the last sentence thereof:
"In the event that the Buyer's claim for adjustments in respect of the
Advance Ticket Sales as set forth on the Post-Closing Advance Ticket Sales
Statement is in excess of the Escrow B Funds, the Seller shall pay promptly upon
demand in full without offset in immediately available funds at the direction of
the Buyer an amount equal to the undisputed excess amount plus an additional
fifteen percent (15%) of such excess amount (the "Excess Amount") to the Buyer.
The Buyer's claim for the Excess Amount hereunder shall constitute a claim under
Section 2.7(c)(iii). In the event the Sellers do not immediately remit the
Excess Amount and the Buyer seeks payment of such Excess Amount pursuant to the
Escrow A Agreement, the Sellers shall not dispute under Section 6 of the Escrow
A Agreement the Buyer's claim for such Excess Amount."
13. The following definition is hereby added to Section 1.1 of the
Purchase Agreement:
"Escrow E Agreement" shall mean the Escrow Agreement described in Section
2.7(g) to be dated as of the Closing Date, by and among the Sellers, the
Buyer, Chicago Theater Company, Ernst & Young Inc., in its capacity as court
appointed interim receiver of certain assets of Livent, and the Escrow
Agent, in form and substance reasonably satisfactory to the Sellers, the
Buyer and DRVS.
14. Section 9.6 of the Purchase Agreement is hereby deleted in its
entirety.
15. Section 2.7(g) is hereby added to the Purchase Agreement as
follows:
SECTION 2.7 PAYMENT OF PURCHASE PRICE.
"(g) At the Closing, the Buyer shall cause $400,000 out of the
Estimated Purchase Price to be paid to the Escrow Agent pursuant to the
Escrow E Agreement. Said funds, together with any interest thereon, shall be
referred to as the
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"Escrow E Funds". The Escrow E Funds shall be available until the
certificate of completion or Certificate (as referenced and defined in
Section 4.13 of the Redevelopment Agreement) for the Chicago Theater (the
"Chicago Certificate") has been issued. The Buyer shall be entitled to draw
against the Escrow E Funds, pursuant to and subject to the terms, provisions
and conditions of the Escrow E Agreement, to satisfy certain expenditures
incurred by Chicago Theater Company to obtain the Chicago Certificate, as
more particularly set forth in the Escrow E Agreement. Upon termination of
the Escrow E Agreement, all Escrow E Funds which have not been drawn or
subject to a claim or demand by Chicago Theater Company in accordance with
the Escrow E Agreement shall be paid by the Escrow Agent to an account
designated by Livent U.S. on behalf of the Sellers in writing, by wire
transfer in immediately available funds in accordance with the Escrow E
Agreement."
16. This Amendment shall be construed, performed and enforced in
accordance with, and governed by, the laws of the State of New York (without
giving effect to the principles of conflicts of laws thereof), except to the
extent that the laws of such state are superseded by the U.S. Bankruptcy Code.
17. Except as expressly amended herein, all terms of the Purchase
Agreement, as amended, shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
No. 4 to Asset Purchase Agreement as of the date first above written.
LIVENT INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
LIVENT INTERNATIONAL INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Assistant
Secretary
LIVENT (U.S.) INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
LIVENT REALTY (NEW YORK) INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
LIVENT REALTY (CHICAGO) INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
SFX ENTERTAINMENT, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
ERNST & YOUNG, INC.
in its capacity as court appointed
interim receiver of certain assets
of Livent Inc.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
