OPTION AGREEMENT
AMONG
AMERICAN MULTI-CINEMA, INC.,
a Missouri corporation
and
AMC REALTY, INC.,
a Delaware corporation
("SELLER")
AND
ENTERTAINMENT PROPERTIES TRUST,
a Maryland real estate investment trust
("PURCHASER")
For the Sale and Purchase
of
Grand 24, Dallas, TX ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇
Promenade 16, Los Angeles, CA ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ Oakview 24, Omaha, NE
November ___, 1997
▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇ E.T. Bullard
▇▇▇▇▇▇▇, Mag & Fizzell, P.C. ▇▇▇▇▇▇▇ & ▇▇▇▇ ▇.▇.
1201 Walnut Suite 2500
Suite 2800 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Counsel to Purchaser Counsel to Seller
TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS. . . . . . . . . . . . . . . . . . . .1
ARTICLE II.
OPTION TO SELL AND PURCHASE AND AGREEMENT TO
LEASE
2.1 Option to Sell and Purchase . . . . . . . . 10
2.2 Exercise of Option . . . . . . . . . . . 10
2.3 Seller Option Property Purchase Price . . . 10
2.4 Limitations to Option . . . . . . . . . . . 10
ARTICLE III.
PURCHASE PRICE . . . . . . . . . . . . . . . . . 10
3.1 Payment of Purchase Price . . . . . . . . . 10
ARTICLE IV.
ITEMS TO BE FURNISHED TO PURCHASER BY SELLER . . 11
4.1 Due Diligence Materials . . . . . . . . . . 11
4.2 Due Diligence Review. . . . . . . . . . . . 12
4.3 Investigations. . . . . . . . . . . . . . . 12
4.4 Restoration After Investigations. . . . . . 12
ARTICLE V.
REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS . . . . . . . . . . . . . . . . . . . 13
5.1 Representations and Warranties of Seller. . 13
5.2 Seller Indemnification. . . . . . . . . . . 17
5.3 Covenants and Agreements of Seller. . . . . 17
5.4 Representations and Warranties of Purchaser 19
5.5 Survival. . . . . . . . . . . . . . . . . . 20
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ARTICLE VI.
CONDITIONS TO OBLIGATIONS. . . . . . . . . . . . 20
6.1 Conditions to the Purchaser's Obligations . 20
6.2 Failure of Conditions to Purchaser's
Obligations. . . . . . . . . . . . . . . . 22
6.3 Conditions to the Seller's Obligations . . 22
6.4 Failure of Conditions to Seller's
Obligations. . . . . . . . . . . . . . . . 23
ARTICLE VII.
PROVISIONS WITH RESPECT TO THE CLOSING . . . . . 23
7.1 Seller's Closing Obligations. . . . . . . . 23
7.2 Purchaser's Closing Obligations . . . . . . 24
7.3 Purchaser's Closing Obligations Respecting
Grantor Option Property . . . . . . . . . . 25
ARTICLE VIII.
EXPENSES OF CLOSING. . . . . . . . . . . . . . . 25
8.1 Adjustments . . . . . . . . . . . . . . . . 25
8.2 Closing Costs . . . . . . . . . . . . . . . 25
8.3 Commissions/Broker's Fees . . . . . . . . . 26
ARTICLE IX.
DEFAULT AND REMEDIES . . . . . . . . . . . . . . 26
9.1 Seller's Default; Purchaser's Remedies. . . 26
a. Seller's Default. . . . . . . . . 26
b. Purchaser's Remedies. . . . . . . 27
9.2 Purchaser's Default; Seller's Remedies. . . 27
a. Purchaser's Default . . . . . . . 27
b. Seller's Remedies . . . . . . . . 27
ARTICLE X.
MISCELLANEOUS. . . . . . . . . . . . . . . . . . 27
10.1 Survival. . . . . . . . . . . . . . . . . . 27
10.2 Right of Assignment . . . . . . . . . . . . 27
10.3 Notices . . . . . . . . . . . . . . . . . . 28
10.4 Entire Agreement; Modifications . . . . . . 29
10.5 Applicable Law. . . . . . . . . . . . . . . 29
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10.6 Captions. . . . . . . . . . . . . . . . . . 29
10.7 Binding Effect. . . . . . . . . . . . . . . 29
10.8 Time is of the Essence. . . . . . . . . . . 29
10.9 Waiver of Conditions. . . . . . . . . . . . 29
10.10 Confidentiality . . . . . . . . . . . . . . 30
10.11 Attorneys' Fees . . . . . . . . . . . . . . 30
10.12 Remedies Cumulative . . . . . . . . . . . . 30
10.13 Terminology . . . . . . . . . . . . . . . . 30
10.14 Estoppel. . . . . . . . . . . . . . . . . . 30
10.15 Joint Preparation . . . . . . . . . . . . . 30
10.16 Counterparts. . . . . . . . . . . . . . . . 31
10.17 Joint and Severable Liability . . . . . . . 31
10.18 Non-Assignable Agreement. . . . . . . . . . 31
10.19 Waiver of Jury Trial . . . . . . . . . . . 31
SCHEDULE OF EXHIBITS
A -- Property Descriptions (A-1 through A-17)
B -- Assignment of Ground Lease
C -- ▇▇▇▇ of Sale
D -- Certificate of Non-Foreign Status
E -- Closing Certificate
F -- Deed (F-1 through F-3)
G -- Excluded Personal Property
H -- Lease
I -- Option Agreements
J -- Personal Property
K -- Purchase Price
L -- Right to Purchase Agreement
M -- Form of Surveyor's Certification
N -- Opinions of Seller's and Purchaser's Counsel (N-1 and N-2)
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AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (the "Agreement") is made and entered
into among AMERICAN MULTI-CINEMA, INC., a Missouri corporation, AMC REALTY,
INC., a Delaware corporation (hereinafter sometimes individually or jointly
referred to as "Seller" as the context requires), and ENTERTAINMENT
PROPERTIES TRUST, a Maryland real estate investment trust (hereinafter
referred to as "Purchaser"). Seller and Purchaser are sometimes collectively
referred to herein as the "Parties" and each of the Parties is sometimes
singularly referred to herein as a "Party".
WHEREAS, Seller is the owner of the Properties (as hereinafter defined);
and,
WHEREAS, Seller desires to sell and Purchaser desires to purchase each
Property, and simultaneously therewith, to enter into a lease transaction
pursuant to which Purchaser shall, as the case may be, lease or sublease to
Seller, and Seller shall lease or sublease from Purchaser, each such Property.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00), the
mutual covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties agree as follows:
ARTICLE I.
DEFINITIONS
As used herein (including any Exhibits attached hereto), the following
terms shall have the meanings indicated:
"APPLICABLE NOTICES" shall mean any reports, notices of violation, or
notices of compliance issued in connection with any Permits.
"ASSIGNMENT" shall mean an assignment or assignments in substantially the
same form as EXHIBIT B, attached hereto and made a part hereof, and
sufficient to transfer to Purchaser all of Seller's right, title and interest
as lessee in the Ground Leases.
"▇▇▇▇ OF SALE" shall mean a ▇▇▇▇ or bills of sale in substantially the
same form as EXHIBIT C, attached hereto and made a part hereof, and sufficient
to transfer to Purchaser all Personal Property.
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"BUSINESS AGREEMENTS" shall mean any leases, contract rights, loan
agreements, mortgages, easements, covenants, restrictions or other agreements
or instruments affecting all or a portion of a Property, to the extent the
same are assignable by Seller, but specifically excluding all of Seller's
Operating and Service Agreements.
"BUSINESS DAY(S)" shall mean calendar days other than Saturdays, Sundays
and days on which banking institutions in the City of New York are authorized
by law to close.
"CERTIFICATE OF NON-FOREIGN STATUS" shall mean a certificate dated as of
the Closing Date, addressed to Purchaser and duly executed by Seller, in
substantially the same form as EXHIBIT D, attached hereto and made a part
hereof.
"CLAIM" shall mean any obligation, liability, lien, encumbrance, loss,
damage, cost, expense or claim, including, without limitation, any claim for
damage to property or injury to or death of any person or persons.
"CLOSING" shall mean the consummation of the sale and purchase of a
Property provided for herein, to be held at the offices of ▇▇▇▇▇▇▇ & ▇▇▇▇
▇.▇., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, or such other
place as the Parties may mutually agree.
"CLOSING CERTIFICATE" shall mean a certificate in substantially the same
form as EXHIBIT E, attached hereto and made a part hereof, wherein Seller and
Purchaser, respectively, shall represent that the representations and
warranties of Seller and Purchaser, respectively, contained in this Agreement
are true and correct in all material respects as of the Closing Date as if
made on and as of the Closing Date.
"CLOSING DATE" shall mean the actual day on which the transfer to
Purchaser of title to a Property is closed. The Parties agree that each
Closing Date shall be a date designated in writing by Seller to Purchaser
which date shall not (a) with respect to any Property on which the theatre
thereon is open on the closing of the Registered Offering, be earlier than
the closing of the Registered Offering or later than twenty (20) days
following the closing of the Registered Offering, or (b) with respect to any
Property on which the theatre thereon is not open on the closing of the
Registered Offering, be earlier than the actual opening date of the theatre
thereon or later than sixty (60) days following the actual opening date of
the theatre thereon, or (c) such earlier or later date as shall be hereafter
mutually agreed upon by the Parties.
"DEED" shall mean a special warranty deed or deeds in substantially the
same form as EXHIBIT F-1, F-2 OR F-3, attached hereto and made a part hereof
(as the same may be modified to comply with local law and custom), executed
by Seller, as grantor, in favor
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of Purchaser, as grantee, conveying the Land and Improvements to Purchaser,
subject only to the Permitted Exceptions.
"DUE DILIGENCE MATERIALS" shall mean the information to be provided by
Seller to Purchaser pursuant to the provisions of Section 4.1 hereof.
"EFFECTIVE DATE" shall mean the later of the two (2) dates on which this
Agreement is signed and all changes initialed by Seller and Purchaser, as
indicated by their signatures below; provided, that in the event only one
Party dates its signature, then the date of its signature shall be the
Effective Date.
"ENGINEERING DOCUMENTS" shall mean all site plans, surveys, soil and
substrata studies, architectural drawings, plans and specifications,
engineering plans and studies, floor plans, landscape plans, Americans with
Disabilities Act compliance reports, environmental reports and studies,
professional inspection reports, construction and/or architect's reports or
certificates, feasibility studies, appraisals, and other similar plans and
studies in the possession or control of Seller that relate to the Real
Property or the Personal Property, to the extent the same are assignable by
Seller.
"EXCEPTION DOCUMENTS" shall mean true, correct and legible copies of
each document listed as an exception to title in the Title Commitment.
"EXCLUDED PERSONAL PROPERTY" shall mean all those items of tangible and
intangible personal property described on EXHIBIT G, attached hereto and made
a part hereof.
"FIXTURES" shall mean all equipment, machinery, fixtures, and other
items of real and/or personal property, including all components thereof, now
or on the Closing Date located in, on or used in connection with, and
permanently affixed to or incorporated into, the Improvements, including,
without limitation, all furnaces, boilers, heaters, electrical equipment,
electronic security equipment, heating, plumbing, lighting, ventilating,
refrigerating, incineration, air and water pollution control, waste disposal,
air-cooling and air-conditioning systems and apparatus, sprinkler systems and
fire and theft protection equipment, and similar systems, all of which, to
the greatest extent permitted by law, are hereby deemed by the Parties to
constitute real estate, together with all replacements, modifications,
alterations and additions thereto, but specifically excluding all items
included within the definition of Personal Property and Excluded Personal
Property.
"GRANTOR" means Clip Funding, Limited Partnership, a Delaware limited
partnership.
"GRANTOR OPTION AGREEMENT" shall mean the Grantor Option Agreement, in
substantially the same form as Exhibit I-2, attached hereto and made a part
hereof, which
3
shall be executed and delivered by Grantor and Purchaser at the closing of
the Registered Offering, and pursuant to which Grantor shall grant Purchaser
an exclusive option to acquire the Grantor Option Properties.
"GRANTOR OPTION PROPERTIES" shall mean the real property described on
Exhibits A-15 through A-17, attached hereto and made a part hereof, and any
other property of Grantor more particularly set forth in the Grantor Option
Agreement.
"GROUND LEASES" shall mean those leases pursuant to which Seller has
leased certain land on which it has constructed certain improvements with
respect to the Leased Real Property.
"HAZARDOUS MATERIALS" shall mean (a) "hazardous substances" or "toxic
substances" as those terms are defined by the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C.
Section 9601 ET SEQ., or by the Hazardous Materials Transportation Act, 49
U.S.C. Section 1802 ET SEQ., all as now and hereafter amended; (b) "hazardous
wastes", as that term is defined by the Resource Conservation and Recovery
Act of 1976 ("RCRA"), 42 U.S.C. Section 6902 ET SEQ., as now and hereafter
amended; (c) any pollutant or contaminant or hazardous, dangerous or toxic
chemicals, materials or substances within the meaning of any other applicable
federal, state or local law, regulation, ordinance or requirement (including
consent decrees and administrative orders) relating to or imposing liability
or standards of conduct concerning any hazardous, toxic or dangerous waste
substances or materials, all as now and hereafter amended; (d) petroleum
including crude oil or any fraction thereof; (e) any radioactive material,
including any source, special nuclear or by-product material as defined at 42
U.S.C. Section 2011 ET SEQ., as now and hereafter amended; (f) asbestos in
any form or condition; and (g) polychlorinated biphenyl ("PCBs") or
substances or compounds containing PCBs.
"HAZARDOUS MATERIALS LAW" shall mean any local, state or federal law
relating to environmental conditions or industrial hygiene, including,
without limitation, RCRA, CERCLA, as amended by the Superfund Amendments and
Reauthorization Act of 1986 ("▇▇▇▇"), the Hazardous Materials Transportation
Act, the Federal Waste Pollution Control Act, the Clean Air Act, the Clean
Water Act, the Toxic Substances Control Act, the Safe Drinking Water Act, and
all similar federal, state and local environmental statutes and ordinances
and the regulations, orders, or decrees now or hereafter promulgated
thereunder.
"IMPROVEMENTS" shall mean the Leased Improvements and Owned Improvements.
"INTANGIBLE PROPERTY" shall mean all Permits, Business Agreements and
other intangible property or any interest therein now or on the Closing Date
owned or held by Seller in connection with the Real Property, including all
water rights and reservations,
4
rights to use the trade name applicable to the Property, as set forth on
EXHIBITS A-1 THROUGH A-12 hereof, and zoning rights related to the Real
Property, or any part thereof, to the extent the same are assignable by
Seller; provided, however, "Intangible Property" shall not include the
general corporate trademarks, trade names, except as set forth above, service
marks, logos or insignia or the books and records of Seller, Seller's
accounts receivable and Seller's business and operating licenses for the
facilities on the Real Property.
"KNOWLEDGE" shall mean actual knowledge of Seller or Purchaser, as the
case may be, at the time the representation is made or deemed to have been
made with no affirmative duty of inquiry or investigation.
"LAND" shall mean the Owned Real Property and the Leased Real Property.
"LAWS" shall mean all federal, state and local laws, moratoria,
initiatives, referenda, ordinances, rules, regulations, standards, orders and
other governmental requirements, including, without limitation, those
relating to the environment, health and safety and disabled or handicapped
persons.
"LEASE" shall mean the Lease in substantially the same form as EXHIBIT
H-1, attached hereto and made a part hereof, which shall be executed and
delivered by Seller (or an affiliate of Seller) and Purchaser at the Closing,
and pursuant to the terms of which Purchaser shall lease a Property to
American Multi-Cinema, Inc. following the Closing. Each such Lease will be
guaranteed by AMC Entertainment, Inc. pursuant to a Guaranty of Lease,
substantially in the form of Exhibit H-2, attached hereto and made a part
hereof.
"LEASED IMPROVEMENTS" shall mean all buildings, improvements, structures
and Fixtures now or on the Closing Date located on the Leased Real Property,
including, without limitation, landscaping, parking lots and structures,
roads, drainage and all above ground and underground utility structures,
equipment systems and other so-called "infrastructure" improvements.
"LEASED REAL PROPERTY" shall mean the real property legally described on
EXHIBITS A-9 through A-12, attached hereto and made a part hereof, together
with all of Seller's rights, titles, appurtenant interests, covenants,
licenses, privileges and benefits thereunto belonging, and Seller's right,
title and interest in and to any easements, rights-of-way, rights of ingress
or egress or other interests in, on or under any land, highway, street, road
or avenue, open or proposed, in, on, across, in front of, abutting or
adjoining such real property including, without limitation, any strips and
gores adjacent to or lying between such real property and any adjacent real
property.
"LEASED INTERESTS" shall mean (a) the leasehold estates in the Leased
Real Property as created by the Ground Leases, and all rights and interests
created by the Ground Leases, (b) all of Seller's right, title and interest
in the Leased Improvements as created by the Ground
5
Leases, and (c) all other rights, titles, interests or estates of Seller in
the Leased Improvements or the Leased Real Property.
"MATERIAL" and "MATERIALLY" shall mean a condition, noncompliance,
defect or other fact which would: (a) cost, with respect to any individual
Property, in the aggregate, in excess of Seven Hundred Fifty Thousand Dollars
($750,000.00) and, with respect to any single defect or fact, would cost,
with respect to any individual Property, in excess of Two Hundred Fifty
Thousand Dollars ($250,000.00), to correct or repair; (b) in the aggregate,
with respect to any individual Property, result in a loss to Purchaser or a
reduction in the value of such Property in excess of Seven Hundred Fifty
Thousand Dollars ($750,000.00) and, with respect to any single defect or
fact, would, with respect to any individual Property, result in a loss to
Purchaser or a reduction in the value of such Property in excess of Two
Hundred Fifty Thousand Dollars ($250,000.00); or (c) in the aggregate with
respect to the Properties, in excess of One Million Five Hundred Thousand
Dollars ($1,500,000.00).
"OPTION AGREEMENTS" means the Seller Option Agreement and the Grantor
Option Agreement.
"OPTION PROPERTIES" means the Seller Option Properties and the Grantor
Option Properties.
"OWNED IMPROVEMENTS" shall mean all buildings, improvements, structures
and Fixtures now or on the Closing Date located on the Owned Real Property,
including, without limitation, landscaping, parking lots and structures,
roads, drainage and all above ground and underground utility structures,
equipment systems and other so-called "infrastructure" improvements.
"OWNED REAL PROPERTY" shall mean the real property legally described on
EXHIBITS A-1 through A-8, attached hereto and made a part hereof, together
with all of Seller's rights, titles, appurtenant interests, covenants,
licenses, privileges and benefits thereunto belonging, and Seller's right,
title and interest in and to any easements, right-of-way, rights of ingress
or egress or other interests in, on or under any land, highway, street, road
or avenue, open or proposed, in, on, across, in front of, abutting or
adjoining such real property including, without limitation, any strips and
gores adjacent to or lying between such real property and any adjacent real
property.
"PERMITS" shall mean all permits, licenses (but excluding Seller's
business and operating licenses), approvals, entitlements and other
governmental, quasi-governmental and nongovernmental authorizations
including, without limitation, certificates of use and occupancy, required in
connection with the ownership, planning, development, construction, use,
operation or maintenance of the Real Property, to the extent the same are
assignable by Seller. As used herein, "quasi-governmental" shall include the
providers of all utility services to the Real Property.
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"PERMITTED EXCEPTIONS" shall mean those title exceptions which have been
approved in writing by Purchaser, or are deemed to have been approved by
Purchaser upon the expiration of the Review Period.
"PERSONAL PROPERTY" shall mean all Intangible Property, Warranties, and
Engineering Documents, and all those items of tangible personal property
described on EXHIBIT J, attached hereto and made a part hereof, other than
the Fixtures and the Excluded Personal Property, now or on the Closing Date
owned by Seller and located on or about the Land or Improvements or used in
connection with the operation thereof (specifically excluding personal
property owned by employees of Seller).
"PROPERTIES" shall mean, collectively, the Owned Real Property, the
Owned Improvements, the Leasehold Interests, the Fixtures, and the Personal
Property. A "Property" shall mean the Land, the Improvements, the Fixtures
and the Personal Property related to a particular Exhibit A-1 through A-12
Property.
"PURCHASE PRICE" shall mean the approximate aggregate sum of
$249,856,000.00, which is allocated to each individual Property as set forth
on EXHIBIT K attached hereto and made a part hereof. The Purchase Price with
respect to a Property shall be calculated by Seller and shall equal the cost
to Seller of developing and constructing such Property and shall include
actual land and construction costs of such Property and so-called soft or
development costs allocated to such Property. With respect to any Property
on which the theatre thereon is not open on the closing of the Registered
Offering, the Purchase Price to be paid at the closing of each such Property
shall be the amount for such Property so provided in Exhibit K; provided,
however, that if such amount does not equal the cost to Seller of developing
and constructing such Property, the difference between the Purchase Price
paid at the Closing of such Property and the cost to Seller of developing and
constructing such Property shall be paid to Seller or as applicable, on the
date which is 60 days from the Closing Date of such Property.
"REAL PROPERTY" shall mean the Land, the Improvements and the Fixtures.
"REGISTERED OFFERING" shall be the public offering by Purchaser
described in Section 5.3.j. hereof.
"REVIEW PERIOD" shall mean a period commencing on the Effective Date and
ending thirty (30) days from the date of Purchaser's receipt of the last of
the Due Diligence Materials; provided, should the Effective Date be less than
thirty (30) days prior to the Closing Date, the Review Period shall terminate
on the date which is five (5) days prior to the Closing Date.
"RIGHT TO PURCHASE AGREEMENT" shall mean the Right to Purchase Agreement
in substantially the same form as EXHIBIT L, attached hereto and made a part
hereof, which shall be executed and delivered by the Parties at the Closing,
and pursuant to the terms of which
7
Seller shall agree to a duty of first offer and grant to Purchaser a right of
first refusal for Purchaser to acquire certain property of Seller.
"SEARCH REPORTS" shall mean reports of searches made of the Uniform
Commercial Code Records of the County in which each Property is located, and
of the office of the Secretary of State of the State in which each Property
is located and in the State in which the principal office of Seller is
located, which searches shall reflect that no Property is encumbered by liens
or security interests which will remain on such Property after the Closing.
The Search Reports shall be updated, at Seller's expense, at or within
fifteen (15) days prior to Closing.
"SELLER OPTION AGREEMENT" shall mean the Seller Option Agreement, in
substantially the same form as Exhibit I-1, attached hereto and made a part
hereof, which shall be executed and delivered by Seller to Purchaser at the
closing of the Registered Offering, and pursuant to which Seller shall grant
Purchaser an exclusive option to acquire the Seller Option Properties.
"SELLER OPTION PROPERTIES" shall mean the real property described on
Exhibits ▇-▇▇, ▇-▇▇, ▇-▇▇, ▇-▇▇ ▇▇▇ ▇-▇▇ attached hereto and made a part
hereof, and any other property of Seller more particularly set forth in the
Seller Option Agreement.
"SELLER'S OPERATING AND SERVICE AGREEMENTS" shall mean all management,
service and operating agreements and contracts entered into by Seller with
respect to a Property, including, but not limited to, agreements and
contracts relating to maintenance and repair at a Property, refuse service
agreements, pest control service agreements, landscaping agreements, parking
lot maintenance agreements, and snow removal contracts.
"SURVEY" shall mean a current "as-built" ALTA survey, certified to ALTA
requirements, prepared by an engineer or surveyor licensed in the State in
which the Land is located reasonably acceptable to Purchaser, which shall:
(a) include a narrative legal description of the Land by metes and bounds
(which shall include a reference to the recorded plat, if any), and a
computation of the area comprising the Land in both acres and gross square
feet (to the nearest one-thousandth of said respective measurement); (b)
accurately show the location on the Land of all improvements (dimensions
thereof at the ground surface level and the distance therefrom to the facing
exterior property lines of the Land), building and set-back lines, parking
spaces (including number of spaces), fences, evidence of abandoned fences,
ponds, creeks, streams, rivers, officially designated 100-year flood plains
and flood prone areas, canals, ditches, easements, roads, rights-of-way and
encroachments; (c) accurately show the location of encroachments, if any,
upon adjoining property, or from adjoining property, upon the Land; (d) state
the zoning classification of the Land; (e) be certified as of the date of the
Survey to the Seller, the Purchaser, the Title Company, and any third-party
lender designated by Purchaser; (f) legibly identify any and all recorded
matters shown on said Survey by appropriate volume and page recording
references; (g) show the
8
location and names of all adjoining streets and the distance to the nearest
streets intersecting the streets that adjoin the Land; (h) be satisfactory to
(and updated from time to time as may be required by) the Title Company so as
to permit it to delete the standard exception for survey matters and replace
it with an exception for the matters shown on the Survey; and (i) include a
written Surveyor's Certification in substantially the same form as set forth
on EXHIBIT M, attached hereto.
"TITLE COMMITMENT" shall mean a current commitment or current
commitments issued by the Title Company to the Purchaser pursuant to the
terms of which the Title Company shall commit to issue the Title Policy to
Purchaser in accordance with the provisions of this Agreement, and reflecting
all matters which would be listed as exceptions to coverage on the Title
Policy.
"TITLE COMPANY" shall mean ▇▇▇▇▇▇▇ Title Guaranty Company or the
national service office of another title insurance company licensed in each
state in which a Property is located selected by Seller and reasonably
satisfactory to Purchaser.
"TITLE POLICY" shall mean an ALTA Extended Coverage Owner's Policy (or
policies) of Title Insurance (10/17/92 Form), or comparable state promulgated
policies, with liability in the aggregate amount of the Purchase Price, dated
as of the Closing Date, issued by the Title Company, insuring title to the
fee interest (or ground lease interest, as applicable) in the Real Property
in Purchaser, subject only to the Permitted Exceptions and to the standard
printed exceptions included in the ALTA standard form owner's extended
coverage policy of title insurance, with the following modifications, if
available upon commercially reasonable terms and at commercially reasonable
costs: (a) the exception for survey matters shall be deleted and replaced by
an exception for the matters shown on the Survey; (b) the exception for ad
valorem taxes shall reflect only taxes for the current and subsequent years;
(c) any exception as to parties in possession shall be limited to rights of
Seller in possession, as lessee only, pursuant to the Lease; (d) there shall
be no general exception for visible and apparent easements or roads and
highways or similar items (with any exception for visible and apparent
easements or roads and highways or similar items to be specifically
referenced to and shown on the Survey and also identified by applicable
recording information); and (e) the Title Policy shall include such
endorsements as Purchaser shall reasonably require.
"TOTAL PROPERTIES" means the Properties and the Option Properties.
"WARRANTIES" shall mean all warranties and guaranties with respect to the
Real Property or Personal Property, whether express or implied, which Seller
now holds or under which Seller is the beneficiary, to the extent the same
are assignable by Seller.
9
ARTICLE II
OPTION TO SELL AND PURCHASE AND AGREEMENT TO LEASE
2.1 OPTION TO SELL AND PURCHASE. Seller hereby grants Purchaser the
exclusive Option to purchase the Seller Option Properties for the Seller
Option Property Purchase Price (as defined herein) for each such Seller
Option Property. The Option with respect to a Seller Option Property shall
be exercisable by Purchaser, subject to the further provisions hereof, at any
time following the opening of the megaplex theatre on such Option Property
and shall expire at 5:00 p.m. on the ninetieth day following the opening of
the megaplex theatre on such Option Property, if not validly exercised by
Purchaser prior to such time. Upon Purchaser's valid exercise of the Option,
this Agreement shall be deemed a contract between Seller and Purchaser
whereby, on the Closing Date, Seller shall sell, convey, assign, transfer and
deliver to Purchaser and Purchaser shall purchase, acquire and accept from
Seller, the Seller Option Property, for the Purchase Price and subject to the
terms and conditions of this Agreement as the context requires.
2.2 EXERCISE OF OPTION. Purchaser may exercise the Option only by
providing to Seller Purchaser's written, unqualified notice of its exercise
of the Option, in accordance with the provisions of Section 10.3 hereof. The
effective time and date of such exercise shall be the date such notice is
deemed received by Seller pursuant to the provisions of Section 10.3 hereof.
In the event the Option is not duly exercised by Purchaser within the time
set forth in Section 2.1 above with respect to a Seller Option Property, the
Option and this Agreement shall expire and the Parties shall have no further
obligation hereunder with respect to such Seller Option Property.
Notwithstanding any other terms or provisions hereof, the Option shall not be
exercisable unless and until Seller has completed its development and
construction of the Improvements on the Seller Option Property (other than
minor punch list items, which shall be diligently and promptly completed
should Purchaser exercise the Option), the Seller Option Property is open for
business and Seller has received final certificates of use and occupancy, and
such other permits, licenses, approvals, agreements and authorizations as are
required for the operation of the Seller Option Property for its intended use.
2.3 SELLER OPTION PROPERTY PURCHASE PRICE. (A) The Purchase Price
with respect to the Seller Option Properties (the "Seller Option Property
Purchase Price") legally described on Exhibits A-13 and A-14 shall be
calculated by Seller and shall equal the cost to Seller of developing and
constructing each Seller Option Property and shall include actual land and
construction costs of such Seller Option Property and so-called soft or
development costs allocated to such Seller Option Property. The amount to be
paid at the Closing of each such Seller Option Property shall be an amount
reasonably estimated to be the cost to Seller of developing and constructing
such Seller Option Property; provided, however, on a date which is 60 days
from the Closing Date for such Seller Option Property, the Seller Option
Property Purchase Price shall finally be calculated by Seller and an
adjustment made to the amount paid by the Purchaser on the Closing Date by
payment by Purchaser or refund to Purchaser by Seller, as applicable.
(B) The Seller Option Property Purchase Price with respect to the
Seller Option Properties legally described on Exhibits ▇-▇▇, ▇-▇▇ ▇▇▇ ▇-▇▇
▇▇▇▇▇ ▇▇ the amount set forth on Exhibit K-1 attached hereto and made a part
hereof by this reference.
2.4. LIMITATIONS TO OPTION. Notwithstanding anything to the contrary
contained herein, Purchaser's right to exercise its option to purchase any of
the land parcels (the "pads") described in Exhibits A-18, A-19 and A-20 is
(a) subject to and contingent upon such pads not having been sold or under
contract for sale by Seller at the time of the exercise of Purchaser's Option
with respect to such pad; (b) subject to the exercise of Purchaser's Option
with respect to all pads at such theatre property remaining unsold at the
time of the exercise of such Option; and (c) not exercisable unless Purchaser
simultaneously and irrevocably exercises its option to purchase the Grantor
Option Property related to such pads pursuant to the Grantor Option Agreement.
ARTICLE III.
PURCHASE PRICE
3.1 PAYMENT OF PURCHASE PRICE. The Purchase Price for a Property
shall be paid by Purchaser delivering to the Seller at the Closing for such
Property Federal Reserve wire transfer funds or other immediately available
collected funds payable to the order of the Seller in the sum equal to the
Purchase Price for such Property, subject to adjustment as herein
10
provided. On or before the Closing, the Parties shall agree on an allocation
of the Purchase Price as between the Real Property and the Personal Property
for each Property.
ARTICLE IV.
ITEMS TO BE FURNISHED TO PURCHASER BY SELLER
4.1 DUE DILIGENCE MATERIALS. As a courtesy and without warranty or
representation, except as expressly set forth herein, Seller previously has
delivered or made available (at the offices of Seller or its legal counsel)
to Purchaser for its review and/or copying, the following items respecting
the Land and the Property:
(a) True, correct, complete and legible copies of all Business
Agreements, Warranties, Permits, Applicable Notices, Engineering Documents
and Seller's Operating and Service Agreements (solely for the purposes of
this Section 4.1 and Section 10.19 hereof, the terms Business Agreements,
Warranties, Permits, and Engineering Documents shall include all agreements,
documents and instruments otherwise included within such definitions, whether
or not the same are assignable by Seller);
(b) True, correct, complete and legible copies of tax statements or
assessments for all real estate and personal property taxes assessed against
each Property for the current and the two prior calendar years, if available;
(c) True, correct, complete and legible listing of all Fixtures,
Personal Property and Excluded Personal Property, including a current
depreciation schedule;
(d) True, correct, complete and legible copies of all existing fire and
extended coverage insurance policies and any other insurance policies
pertaining to each Property or certificates setting forth all coverages and
deductibles with respect thereto, if any;
(e) True, correct, complete and legible copies of all instruments
evidencing, governing or securing the payment of any loans secured by each
Property or related thereto;
(f) True, correct, complete and legible copies of any and all
environmental studies or impact reports relating to each Property, if any,
and any approvals, conditions, orders or declarations issued by any
governmental authority relating thereto (such studies and reports shall
include, but not be limited to, reports indicating whether the Property is or
has been contaminated by Hazardous Materials and whether the Property is in
compliance with the Americans with Disabilities Act and Section 504 of the
Rehabilitation Act of 1973, as applicable);
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(g) True, correct, complete and legible copies of any and all
litigation files with respect to any pending litigation and claim files for
any claims made or threatened, the outcome of which might materially affect
each Property or the use and operation of each Property, together with
summaries and such other more detailed information as Purchaser may
reasonably request with respect to any other pending litigation or claim the
outcome of which might materially affect Seller or materially affect each
Property.
(h) The Title Commitment, Exception Documents, Survey and Search
Reports.
4.2 DUE DILIGENCE REVIEW. Prior to the Closing Date (and in the
event there is more than one Closing Date, prior to the last Closing Date
occurring pursuant to the terms hereof) (the "Review Period"), Purchaser has
been given the right and opportunity to review the Due Diligence Materials
delivered by Seller to Purchaser pursuant to the provisions of Section 4.1
above. By consummating the sale and purchase provided herein at Closing,
Purchaser shall be deemed to have accepted and approved the Due Diligence
Materials with respect to each Property purchased at such Closing, and the
Property, and to have waived to the extent Seller has the responsibility for
the same pursuant to the Lease, any such defect, deficiency or encumbrance
disclosed in the Due Diligence Materials with respect to each Property
purchased at such Closing, and to have accepted all exceptions to title
referenced in the Title Commitment, and all matters shown on the Survey, with
respect to each Property purchased at such Closing. Such accepted title
exceptions and survey matters shall be included in the term "Permitted
Exceptions" as used herein.
4.3 INVESTIGATIONS. During the Review Period, Purchaser and its
agents and designees have been given the right and opportunity to examine
each Property for the purpose of inspecting the same and making tests,
inquiries and examinations (collectively the "Investigations").
4.4 RESTORATION AFTER INVESTIGATIONS. Purchaser agrees, at its sole
expense, to cause the Property to be restored to substantially the same
condition it was in prior to such entry. In addition, Purchaser agrees to
indemnify, defend and hold Seller, its successors and assigns and the current
owner of the Land harmless for, from and against and to reimburse Seller with
respect to all claims for bodily injury, personal injury or property damage,
as well as any professional services lien, which may be asserted by reason of
the activities of Purchaser or its agents or designees during the
Investigations. The foregoing indemnity shall survive the Closing and/or any
termination of this Agreement and shall not operate as, or be deemed to be, an
indemnification against any claim arising as a result of any condition or
matter discovered as a result of the Investigations.
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ARTICLE V.
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
5.1 REPRESENTATIONS AND WARRANTIES OF SELLER. To induce Purchaser
to enter into this Agreement and to purchase the Property, Seller represents
and warrants to Purchaser as follows:
(a) Seller has and at each Closing will have, and will convey, transfer
and assign to Purchaser, good, indefeasible and insurable right and title to
the Land and its interest, as lessee, in the Ground Leases, free and clear of
any deeds of trust, mortgages, liens, encumbrances, leases, tenancies,
licenses, chattel mortgages, conditional sales agreements, security
interests, covenants, conditions, restrictions, judgments, rights-of-way,
easements, encroachments, claims and any other matters affecting title or use
of the Property, except the Permitted Exceptions.
(b) Seller has duly and validly authorized and executed this Agreement,
and has full right, title, power and authority to enter into this Agreement
and to consummate the transactions provided for herein, and the joinder of no
person or entity will be necessary to convey each Property fully and
completely to Purchaser at the Closing of such Property and to lease or
sublease such Property from Purchaser following such Closing. Sellers are
corporations duly organized, validly existing and in good standing under the
laws of the States of Missouri and Delaware, respectively, and are qualified
to do business in each state in which any of the Property owned or leased by
such Seller is located. The consummation of the transactions contemplated
herein does not require the approval of Seller's shareholders or any third
party, except such third party approvals as Seller has obtained or will
obtain prior to each Closing Date. The execution by Seller of this Agreement
and the consummation by Seller of the transactions contemplated hereby do
not, and at the Closing will not, result in a breach of any of the terms or
provisions of, or constitute a default or a condition which upon notice or
lapse of time or both would ripen into a default under, Seller's Bylaws or
Certificate of Incorporation, any indenture, agreement, instrument or
obligation to which Seller is a party or by which any Property or any portion
thereof is bound; and does not constitute a violation of any Laws, order,
rule or regulation applicable to Seller or any portion of a Property of any
court or of any federal, state or municipal regulatory body or administrative
agency or other governmental body having jurisdiction over Seller or any
portion of a Property.
(c) There are no adverse parties in possession of a Property or of any
part thereof. Seller has not granted to any party any license, lease or
other right relating to the use or possession of a Property, except as set
forth in the Permitted Exceptions or provided to Purchaser in the Due
Diligence Materials.
13
(d) Except as provided to Purchaser in the Due Diligence Materials, no
written notice has been received from any insurance company that has issued
a policy with respect to any portion of a Property or from any board of fire
underwriters (or other body exercising similar functions), claiming any
defects or deficiencies or requiring the performance of any repairs,
replacements, alterations or other work and as of the Closing no such written
notice will have been received which shall not have been cured. No written
notice has been received by Seller from any issuing insurance company that
any of such policies will not be renewed, or will be renewed only at a
higher premium rate than is presently payable therefor.
(e) No pending condemnation, eminent domain, assessment or similar
proceeding or charge affecting any Property or any portion thereof exists.
Seller has not heretofore received any written notice, and has no actual
knowledge,that any such proceeding or charge is contemplated.
(f) All Improvements (including all utilities) have been, or as of the
Closing will be, substantially completed and installed in accordance with
the plans and specifications approved by the governmental authorities having
jurisdiction to the extent applicable and are transferable to Purchaser
without additional cost. Permanent certificates of occupancy, all licenses,
permits, authorizations and approvals required by all governmental
authorities having jurisdiction, and the requisite certificates of the local
board of fire underwriters (or other body exercising similar functions) have
been, or as of the Closing will be, issued for the Improvements, and, as of
the Closing, where required, all of the same will be in full force and
effect; provided, however, that temporary or partial certificates of
occupancy may be provided in the event that under laws or regulations
applicable to a particular Property, a permanent certificate of occupancy is
not available because of the status of construction or subleasing of a
portion of the Property. The Improvements, as designed and constructed,
substantially comply or will substantially comply with all statutes,
restrictions, regulations and ordinances applicable thereto, including but
not limited to the Americans with Disabilities Act and Section 504 of the
Rehabilitation Act of 1973, as applicable.
(g) The existing water, sewer, gas and electricity lines, storm sewer
and other utility systems on the Land are reasonably adequate to serve the
current and contemplated utility needs of each Property. All utilities
required for the operation of the Improvements enter the Land through
adjoining public streets or through adjoining private land in accordance with
valid public or private easements that will inure to the benefit of
Purchaser. All approvals, licenses and permits required for said utilities
have been obtained and are in full force and effect. All of said utilities
are installed and operating and all installation and connection charges have
been paid in full.
(h) The location, construction, occupancy, operation and use of each
Property (including the Improvements) do not violate any applicable law,
statute, ordinance, rule, regulation, order or determination of any
governmental authority or any board of fire
14
underwriters (or other body exercising similar functions), or any restrictive
covenant or deed restriction (recorded or otherwise) affecting the Property
or the location, construction, occupancy, operation or use thereof,
including, without limitation, all applicable zoning ordinances and building
codes, flood disaster laws and health and environmental laws and regulations,
the Americans with Disabilities Act and Section 504 of the Rehabilitation Act
of 1973, as applicable.
(i) There are not any structural defects in any of the buildings or
other Improvements constituting each Property. The Improvements, all heating,
electrical, plumbing and drainage at, or servicing, each Property and all
facilities and equipment relating thereto are and, as of the Closing, will be
in good condition and working order and adequate in quantity and quality for
the normal operation of the Property. No part of any Property has been
destroyed or damaged by fire or other casualty. To Seller's knowledge, there
are no unsatisfied written requests for repairs, restorations or alterations
with regard to the Property from any person, entity or authority, including
but not limited to any lender, insurance provider or governmental authority.
(j) Except as may be set forth in any of the Due Diligence Materials,
no work has been performed or is in progress at any Property, and no
materials will have been delivered to the Property that might provide the
basis for a mechanic's, materialmen's or other lien against the Property or
any portion thereof, or amounts due for such work and material shall have
paid or discharged to Purchaser's satisfaction as of Closing.
(k) There exist no service contracts, management or other agreements
applicable to any Property, to which Seller is a party or otherwise known to
Seller, other than Seller's Operating and Service Agreements and those
agreements furnished to Purchaser pursuant to Section 4.1.
(l) Seller is not in default in any manner which would result in a
material adverse effect on Seller or the Property under any of the Ground
Leases, Business Agreements, or Seller's Operating and Service Agreements or
any of the covenants, conditions, restrictions, rights-of-way or easements
affecting the Property or any portion thereof, and, to Seller's knowledge no
other party to any of the foregoing is in material default thereunder.
(m) There are no actions, suits or proceedings pending or, to Seller's
knowledge, threatened against or affecting any Property or any portion
thereof, or relating to or arising out of the ownership or operation of the
Property, or by any federal, state, county or municipal department,
commission, board, bureau or agency or other governmental instrumentality,
other than those disclosed to Purchaser pursuant to Section 4.1. All judicial
proceedings concerning any Property will be finally dismissed and terminated
prior to Closing, excluding lawsuits in which Seller is involved in its
ordinary course of business. Seller hereby covenants and agrees to indemnify
and hold Purchaser harmless from and against any and all
15
Claims (including reasonable attorneys' fees) arising out of or relating to
any lawsuits or other proceedings in which Seller is involved which lawsuits
involve or relate to the Property.
(n) Each Property has free and unimpeded access to presently existing
public highways and/or roads (either directly or by way of perpetual
easements); and, to Seller's knowledge,all approvals necessary therefor have
been obtained. No fact or condition exists which would result in the
termination of the current access from the Property to any presently existing
public highways and/or roads adjoining or situated on the Property.
(o) There are no attachments, executions, assignments for the benefit
of creditors, or voluntary or involuntary proceedings in bankruptcy or under
any other debtor relief laws contemplated by or, to Seller's knowledge,
pending or threatened against Seller or any Property.
(p) Except as may be set forth in any of the Due Diligence Materials,
no Hazardous Materials have been installed, used, generated, manufactured,
treated, handled, refined, produced, processed, stored or disposed of, or
otherwise present in, on or under any Property by Seller or to Seller's
knowledge by any third party. No activity has been undertaken on any
Property by Seller or, to Seller's knowledge, by any third party which would
cause (i) any Property to become a hazardous waste treatment, storage or
disposal facility within the meaning of, or otherwise bring any Property
within the ambit of RCRA or any Hazardous Materials Law, (ii) a release or
threatened release of Hazardous Materials from any Property within the
meaning of, or otherwise bring any Property within the ambit of, CERCLA or
▇▇▇▇ or any Hazardous Materials Law or (iii) the discharge of Hazardous
Materials into any watercourse, body of surface or subsurface water or
wetland, or the discharge into the atmosphere of any Hazardous Materials
which would require a permit under any Hazardous Materials Law. No activity
has been undertaken with respect to any Property by Seller or, to Seller's
knowledge, any third party which would cause a violation or support a claim
under RCRA, CERCLA, ▇▇▇▇ or any other Hazardous Materials Law. No
investigation, administrative order, litigation or settlement with respect to
any Hazardous Materials is in existence with respect to any Property, nor, to
Seller's knowledge, is any of the foregoing threatened. No written notice has
been received by Seller from any entity, governmental body or individual
claiming any violation of any Hazardous Materials Law, or requiring
compliance with any Hazardous Materials Law, or demanding payment or
contribution for environmental damage or injury to natural resources. Seller
has not obtained and, to Seller's knowledge, is not required to obtain, and
Seller has no knowledge of any reason Purchaser will be required to obtain,
any permits, licenses, or similar authorizations to occupy, operate or use
the Improvements or any part of any Property by reason of any Hazardous
Materials Law. Notwithstanding the representations made herein, such
representations are and shall be deemed to be limited by the matters detailed
in any Phase I Preliminary Site Assessment or other Due Diligence Materials
obtained by or provided to Purchaser in connection herewith.
16
(q) Each Property includes all items of property, tangible and
intangible, currently used by Seller in connection with the operation of the
Property, other than the Excluded Personal Property, Seller's Operating and
Service Agreements, and property expressly excluded from the definition of
the Property, and the exclusion of such items from the property to be
conveyed to Purchaser will not have any materials adverse affect upon
Purchaser's ownership of the Property following the Closing.
(r) Seller has not knowingly failed to disclose anything of a material
nature with respect to the Due Diligence Materials.
5.2 SELLER INDEMNIFICATION. Seller hereby agrees to indemnify and
defend, at its sole cost and expense, and hold Purchaser, its successors and
assigns, harmless from and against and to reimburse Purchaser with respect to
any and all claims, demands, actions, causes of action, losses, damages,
liabilities, costs and expenses (including, without limitation, reasonable
attorney's fees and court costs) actually incurred of any and every kind or
character, known or unknown, fixed or contingent, asserted against or
incurred by Purchaser at any time and from time to time by reason of or
arising out of (a) the breach of any representation or warranty of Seller set
forth in Section 5.1 or any breach by Seller of any of its covenants and
agreements set forth in this Agreement; (b) the failure of Seller, in whole
or in part, to perform any obligation required to be performed by Seller
pursuant to Section 5.1.; or (c) the ownership, construction, occupancy,
operation, use and maintenance by Seller or its agents of the Property prior
to the Closing Date. This indemnity applies, without limitation, to the
violation on or before the Closing Date of any Hazardous Materials Law in
effect on or before the Closing Date and any and all matters arising out of
any act, omission, event or circumstance existing or occurring on or prior to
the Closing Date (including, without limitation, the presence on the Property
or release from the Property of Hazardous Materials disposed of or otherwise
released prior to the Closing Date), regardless of whether the act, omission,
event or circumstance constituted a violation of any Hazardous Materials Law
at the time of its existence or occurrence. Subject to the provisions of
Section 5.5 hereof, the provisions of this Section shall survive the Closing
of the transaction contemplated by Section 2.1 of this Agreement and shall
continue thereafter in full force and effect for the benefit of Purchaser,
its successors and assigns. Notwithstanding any provision of this Agreement
to the contrary, Purchaser may exercise any right or remedy Purchaser may
have at law or in equity should Seller fail to meet, comply with or perform
its indemnity obligations required by this Section 5.2. In the event a
defect, claim or deficiency is discovered by Purchaser prior to Closing or
isnoticed in writing by Seller to Purchaser prior to Closing, Purchaser shall
either terminate the Agreement as provided herein or waive the defect, claim
or deficiency and proceed to Closing.
5.3 COVENANTS AND AGREEMENTS OF SELLER. Seller covenants and agrees
with Purchaser, from the Effective Date until the Closing with respect to a
Property or earlier termination of this Agreement:
17
(a) Seller shall: (i) operate the Property in the ordinary course of
Seller's business and in substantially the same manner as currently
operated; and (ii) fully maintain and repair the Improvements, the Fixtures,
and the Personal Property in good condition and repair.
(b) Seller shall cause to be maintained in full force and effect fire
and extended coverage insurance upon the Property and public liability
insurance with respect to damage or injury to persons or property occurring
on or relating tooperation of the Property in commercially reasonable amounts
(which for purposes hereof shall be deemed to be the amounts and coverages in
effect on the date hereof).
(c) Seller shall pay when due all bills and expenses of the Property.
Seller shall not enter into or assume anynew Business Agreements with regard
to the Property which are in addition to or different from those furnished
and disclosed to Purchaser and reviewed and approved pursuant to Section 4.1,
except in the ordinary course of business.
(d) Seller shall not create or permit to be created any liens,
easements or other conditions affecting any portion of the Property or the
uses thereof, except in the ordinary course of business, without the prior
written consent of Purchaser. No such lien, easement or other condition
affecting the Property which Seller creates or permits to be created shall
be or constitute a Permitted Exception until (i) such lien, easement or other
condition affecting the Property has been disclosed to Purchaser in writing
prior to Closing, (ii) a true and correct copy of all documents or
instruments creating, evidencing, affecting or relatingto such lien, easement
or other condition affecting the Property has been provided to Purchaser
prior to Closing, and (iii) Purchaser has determined to proceed with Closing
and accept such lien, easement or other condition affecting the Property as a
Permitted Exception, which determination shall be conclusively presumed by
Purchaser's election to proceed with Closing following Seller's compliance
with the requirements of (i) and (ii) of this paragraph.
(e) Seller will pay, as and when due, all interest and principal and
all other charges payable under any indebtedness of Seller secured by the
Property from the date hereof until Closing, and will not suffer or permit
any default or, except in the ordinary course of business, amend or modify
the documents evidencing or securing any such indebtedness without the prior
consent of Purchaser.
(f) Seller will give to Purchaser, its attorneys, accountants and other
representatives, during normal business hours and as often as may be
reasonably requested, access to all books, records and files relating to the
Property so long as the same does not unreasonably interfere with Seller's
business operations.
(g) Seller shall not remove any Personal Property or Fixtures from the
Land or Improvements without replacing same with substantially similar items
of equal or
18
greater value and repairing the damage, if any, to the Property as a result
of such removal, except in the ordinary course of business.
(h) During the pendency of this Agreement, Seller, its corporate
officers, directors, and agents shall not negotiate the sale or other
disposition of the Property with any person or entity other than Purchaser,
and shall not take any steps to initiate, consummate or document the sale or
other disposition of the Property, or any portion thereof, to any person or
entity other than Purchaser.
(i) Prior to the Closing Date, Seller agrees to notify Purchaser in
writing within three (3) Business Days of any offer received by, delivered to
or communicated to Seller for the purchase, sale, acquisition or other
disposition of the Property.
(j) Seller shall provide representations, warranties and consents as
may be reasonably required in connection with any public offering of stock
(the "Registered Offering") or debt obligations by Purchaser, including, and
similar in kind but not limited to, inclusion of financial statements,
summary financial information and other required information concerning
Seller, or Seller as lessee under the Lease, in any Securities and Exchange
Commission filings. Seller shall cooperate in the preparation by Purchaser
of a Form S-11 under the Securities Act of 1933, as amended, to be filed with
the Securities and Exchange Commission in connection with the Registered
Offering.
5.4 REPRESENTATIONS AND WARRANTIES OF PURCHASER. To induce Seller
to enter into this Agreement and to sell the Property, Purchaser represents
and warrants to Seller as follows:
(a) Purchaser has duly and validly authorized and executed this
Agreement, and has full right, title, power and authority to enter into this
Agreement and to consummate the transactions provided for herein, and the
joinder of no person or entity will be necessary to purchase the Property
from Seller at Closing, and to lease or sublease the Property to Seller
following Closing. Purchaser is a real estate investment trust duly
organized, validly existing and in good standing under the laws of the State
of Maryland and is qualified to do business in each state in which any of the
Property is located. The consummation of the transactions contemplated herein
or in the Lease does not require the approval of Purchaser's shareholders or
any third party, except such third party approvals as Purchaser has obtained
or will obtain prior to the Closing Date.
(b) The execution by Purchaser of this Agreement and the consummation
by Purchaser of the transactions contemplated hereby do not, and at the
Closing will not, result in a breach of any of the terms or provisions of, or
constitute a default or a condition which upon notice or lapse of time or
both would ripen into a default under, any indenture, agreement, instrument
or obligation to which Purchaser is a party; and does not, and at the Closing
will not, constitute a violation of any Laws, order, rule or regulation
applicable to
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Purchaser of any court or of any federal, state or municipal
regulatory body or administrative agency or other governmental body having
jurisdiction over Purchaser.
(c) There are no actions, suits or proceedings pending, or to the
actual knowledge of Purchaser, threatened, before or by any judicial body or
any governmental authority, against Purchaser which would affect in any
material respect Purchaser's ability to proceed with the transaction
contemplated by this Agreement and the Lease.
(d) Purchaser is sophisticated and experienced in the purchase of real
property and that in proceeding with the acquisition of the Properties,
Purchaser will be relying on its Investigations and examinations of each
Property and not on any representation or warranty of Seller not expressly
set forth in this Agreement.
5.5 SURVIVAL. Each of the representations, warranties and covenants
contained in this Article V is intended for the benefit of Seller or
Purchaser, as the case may be, and any underwriter of the Registered
Offering. Each of said representations, warranties and covenants shall
survive the Closing for a period of one (1) year, at which time they shall
expire unless prior to such time the party receiving such representations,
warranties and covenants has filed a legal action alleging a breach of one or
more of the representations, warranties or covenants. No investigation,
audit, inspection, review or the like conducted by or on behalf of the party
receiving such representations, warranties or covenants shall be deemed to
terminate the effect of any such representations, warranties and covenants,
it being understood that such party has the right to rely thereon and that
each such representation, warranty and covenant constitutes a material
inducement to execute this Agreement and to close the transaction
contemplated hereby.
ARTICLE VI.
CONDITIONS TO OBLIGATIONS
6.1 CONDITIONS TO THE PURCHASER'S OBLIGATIONS. The obligations of
Purchaser to purchase a Property from Seller and to consummate the
transactions contemplated by this Agreement are subject to the satisfaction,
at all times prior to and as of the Closing with respect to such Property (or
such other time period specified below), of each of the following conditions:
(a) All of the representations and warranties of Seller set forth in
this Agreement shall be true at all times prior to, at and as of, the Closing
in all material respects and Seller shall deliver a Closing Certificate in
substantially the same form attached hereto as EXHIBIT E updating such
representations and warranties.
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(b) Seller shall have delivered, performed, observed and complied with,
all of the items, instruments, documents, covenants, agreements and
conditions required by this Agreement to be delivered, performed, observed
and complied with by it prior to, or as of, the Closing.
(c) Seller shall not be in receivership or dissolution or have made any
assignment for the benefit of creditors, or admitted in writing its inability
to pay its debts as they mature, or have been adjudicated a bankrupt, or have
filed a petition in voluntary bankruptcy, a petition or answer seeking
reorganization or an arrangement with creditors under the federal bankruptcy
law or any other similar law or statute of the United States or any state and
no such petition shall have been filed against it.
(d) No material or substantial adverse change shall have occurred with
respect to the condition, financial or otherwise, of the Seller or the
Property.
(e) Neither the Property nor any part thereof or interest therein shall
have been taken by execution or other process of law in any action prior to
Closing, nor shall any action or proceeding seeking any such taking be
pending.
(f) During the Review Period, Purchaser shall have satisfactorily
completed its Investigations of the Property with respect to the physical
condition thereof by agents or contractors selected by Purchaser.
(g) During the Review Period, Purchaser shall have received, in form
acceptable to Purchaser, evidence of compliance by the Property with all
building codes, zoning ordinances and other governmental entitlements as
necessary for the operation of the Property for the current and intended use,
including, without limitation, certificates of occupancy (or evidence of the
existence thereof) and such other permits, licenses, approvals, agreements
and authorizations as are required for the operation of the Property for the
current and intended use.
(h) During the Review Period, all necessary approvals, consents and
the like of third parties to the validity and effectiveness of the
transactions contemplated hereby have been obtained.
(i) During the Review Period, Purchaser has reviewed and satisfied
itself with respect to the Due Diligence Materials.
(j) No material portion of the Property shall have been destroyed by
fire or casualty.
(k) No condemnation, eminent domain or similar proceedings shall have
been commenced or threatened in writing with respect to any material portion
of the Property.
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(l) Purchaser shall have been successful in causing the formation of a
real estate investment trust whose interests have been sold to the public
pursuant to the Registered Offering and in connection therewith shall have
raised capital in an amount not less than $_____________________.
(m) Purchaser shall have entered into option agreements, acceptable in
form and substance to Purchaser, for the purchase of the Grantor Option
Properties, such agreements to provide for the closing of the purchase of the
Grantor Option Property as set forth therein.
With respect to the conditions precedent set forth in paragraphs (a),
(b), (d), (e), (f), (g), (h), (i), (j), (k) and (m) of this Section 6.1,
Purchaser shall have the right to determine whether each of said conditions
has been satisfied separately with respect to each individual Property or
Grantor Option Property, and if Purchaser shall determine that any of said
conditions have not been satisfied with respect to any one or more individual
Property or Grantor Option Property, Purchaser shall have the right,
notwithstanding the provisions of Section 6.2 hereof (subject, however, to
the provisions of Section 6.3(e) hereof), to terminate this Agreement with
respect to any one or more individual Property as to which any of such
conditions has not been satisfied, and to proceed with the Closing with
respect to the remaining Property.
6.2 FAILURE OF CONDITIONS TO PURCHASER'S OBLIGATIONS. In the event
any one or more of the conditions to Purchaser's obligations are not
satisfied or waived in whole or in part at any time prior to or as of the
Closing of a Property, Purchaser, at Purchaser's option, shall be entitled
to: (a) terminate this Agreement by giving written notice thereof to Seller,
whereupon all moneys, if any, which have been delivered by Purchaser to
Seller or the Title Company shall be immediately refunded to Purchaser and
Purchaser shall have no further obligations or liabilities hereunder; or (b)
proceed to Closing hereunder.
6.3 CONDITIONS TO THE SELLER'S OBLIGATIONS. The obligations of
Seller to sell a Property to Purchaser and to consummate the transactions
contemplated by this Agreement are subject to the satisfaction, at all times
prior to and as of the Closing with respect to such Property (or such other
time period specified below), of each of the following conditions:
(a) All of the representations and warranties of Purchaser set forth in
this Agreement shall be true at all times prior to, at and as of, the Closing
in all material respects and Purchaser shall deliver a Closing Certificate in
substantially the same form attached hereto as EXHIBIT E updating such
representations and warranties.
(b) Purchaser shall have delivered, performed, observed and complied
with, all of the items, instruments, documents, covenants, agreements and
conditions required by this Agreement to be delivered, performed, observed
and complied with by it prior to, or as of, the Closing.
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(c) Purchaser shall not be in receivership or dissolution or have made
any assignment for the benefit of creditors, or admitted in writing its
inability to pay its debts as they mature, or have been adjudicated a
bankrupt, or have filed a petition in voluntary bankruptcy, a petition or
answer seeking reorganization or an arrangement with creditors under the
federal bankruptcy law or any other similar law or statute of the United
States or any state and no such petition shall have been filed against it.
(d) Purchaser shall have been successful in causing the formation of a
real estate investment trust whose interests have been sold to the public
pursuant to the Registered Offering and in connection therewith shall have
raised capital in an amount not less than $______________________.
(e) Purchaser has not elected to terminate this Agreement with respect
to any Properties with an aggregate Purchase Price in excess of
$__________________.
(f) Purchaser has entered into a Lease with respect to each Property
being purchased by Purchaser effective upon and following the Closing of such
Property.
6.4 FAILURE OF CONDITIONS TO SELLER'S OBLIGATIONS. In the event any
one or more of the conditions to Seller's obligations are not satisfied or
waived in whole or in part at any time prior to or as of the Closing, Seller,
at Seller's option, shall be entitled to: (a) terminate this Agreement by
giving written notice thereof to Purchaser, whereupon all moneys, if any,
which have been delivered by Seller to Purchaser or the Title Company shall
be immediately refunded to Seller and Seller shall have no further
obligations or liabilities hereunder; or (b) proceed to Closing hereunder.
ARTICLE VII.
PROVISIONS WITH RESPECT TO THE CLOSING
7.1 SELLER'S CLOSING OBLIGATIONS. At the Closing with respect to a
Property, Seller shall furnish and deliver to the Purchaser, at Seller's
expense, the following:
(a) The Deed, Title Policy (or the Title Commitment marked-up and
initialed by the Title Company), Assignment, ▇▇▇▇ of Sale, Certificate of
Non-Foreign Status, Closing Certificate, Right to Purchase Agreement, Lease,
and Seller Option Agreement, each duly executed and acknowledged by Seller
and, as appropriate, in recordable form acceptable in the state and county in
which each Property is located.
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(b) Certificates of casualty and fire insurance for the Property and
satisfactory evidence of all other insurance coverages as required pursuant
to the Lease showing Purchaser as additional insured and loss payee
thereunder, as required by the Lease, with appropriate provisions for prior
notice to Purchaser in the event of cancellation or termination of such
policies and otherwise in form and substance as required by the Lease.
(c) Search Reports, dated not more than fifteen (15) days prior to
Closing, evidencing no UCC-1 Financing Statements or other filings in the
name of Seller with respect to the Property which will remain on the Property
after the Closing or an indemnification in form reasonably acceptable to
Seller and Purchaser with respect to any such UCC-1 Financing Statements or
other filings.
(d) Such affidavits or letters of indemnity as the Title Company shall
reasonably require in order to omit from the Title Policy all exceptions for
unfiled mechanic's, materialman's or similar liens and rights of parties in
possession (other than Seller under the Lease and other tenants under leases
disclosed in the Due Diligence Materials).
(e) Any and all transfer declarations or disclosure documents, duly
executed by the appropriate parties, required in connection with the Deed by
any state, county or municipal agency having jurisdiction over the Property
or the transactions contemplated hereby.
(f) An opinion of Seller's counsel, dated as of the Closing Date, in
the form of EXHIBIT N-1, attached hereto.
(g) Such instruments or documents as are necessary, or reasonably
required by Purchaser or the Title Company, to evidence the status and
capacity of Seller and the authority of the person or persons who are
executing the various documents on behalf of Seller in connection with the
purchase and sale transaction contemplated hereby.
(h) Such other documents as are reasonably required by Purchaser to
carry out the terms and provisions of this Agreement.
(i) All necessary approvals, consents, certificates and the like of
third parties to the validity and effectiveness of the transactions
contemplated hereby.
7.2 PURCHASER'S CLOSING OBLIGATIONS. At the Closing with respect to
a Property, Purchaser shall furnish and deliver to Seller, at Purchaser's
expense, the following:
(a) Federal Reserve, wire transfer funds or other immediately available
collected funds payable to the order of Seller representing the cash portion
of the Purchase Price due in accordance with Section 3.1 herein.
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(b) The Closing Certificate, Right to Purchase Agreement, Lease,
Assignment and Seller Option Agreement duly executed and acknowledged by
Purchaser.
(c) Such instruments or documents as are necessary, or reasonably
required by Seller or the Title Company, to evidence the status and capacity
of Purchaser and the authority of the person or persons who are executing the
various documents on behalf of Purchaser in connection with the purchase and
sale transaction contemplated hereby.
(d) An opinion of Purchaser's counsel, dated as of the Closing Date, in
the form of EXHIBIT N-2, attached hereto.
(e) Such other documents as are reasonably required by Seller to carry
out the terms and provisions of this Agreement.
(f) All necessary approvals, consents, certificates and the like of
third parties to the validity and effectiveness of the transaction
contemplated hereby.
7.3 PURCHASER'S CLOSING OBLIGATIONS RESPECTING GRANTOR OPTION
PROPERTY. Upon each closing of the purchase of any Grantor Option Property,
Purchaser hereby agrees that it will, at such closing, furnish and deliver to
Seller, at Purchaser's expense, the Lease, duly executed and acknowledged by
Purchaser, as appropriate, with respect to such Grantor Option Property.
ARTICLE VIII.
EXPENSES OF CLOSING
8.1 ADJUSTMENTS. There shall be no adjustment of taxes,
assessments, water or sewer charges, gas, electric, telephone or other
utilities, operating expenses, employment charges, premiums on insurance
policies, rents or other normally proratable items, it being agreed and
understood by the Parties that the Seller shall be obligated to pay such
items after Closing under the terms of the Lease.
8.2 CLOSING COSTS. Seller shall pay (a) all title examination fees
and premiums for the Title Policy; (b) the cost of the Search Reports; (c)
the cost of the Survey; (d) Seller's legal, accounting and other professional
fees and expenses and the cost of all opinions, certificates, instruments,
documents and papers required to be delivered, or to cause to be delivered,
by Seller hereunder, including without limitation, the cost of performance by
Seller of its obligations hereunder; (e) all other costs and expenses which
are required to be paid by Seller pursuant to other provisions of this
Agreement; (f) any and all state, municipal or other documentary or transfer
taxes payable in connection with the delivery of any instrument or
25
document provided in or contemplated by this Agreement or any agreement or
commitment described or referred to herein; and (g) the charges for or in
connection with the recording and/or filing of any instrument or document
provided herein or contemplated by this Agreement or any agreement or document
described or referred to herein. Purchaser shall pay (x) Purchaser's legal,
accounting and other professional fees and expenses and the cost of all
opinions, certificates, instruments, documents and papers required to be
delivered, or to cause to be delivered, by Purchaser hereunder, including,
without limitation, the cost of performance by Purchaser of its obligations
hereunder; (y) all costs and expenses, if any, in any way relating to any
financing which Purchaser obtains in connection with its purchase of the
Property; and (z) all other costs and expenses which are required to be paid
by Purchaser pursuant to other provisions of this Agreement. Purchaser and
Seller shall each be responsible for other costs in the usual and customary
manner for this kind of transaction in the county where the Property is
located.
8.3 COMMISSIONS/BROKER'S FEES. Seller hereby represents and
warrants to Purchaser that it has not contacted any real estate broker,
finder or any other party in connection with this transaction, and that it
has not taken any action which would result in any real estate broker's,
finder's or other fees being due or payable to any party with respect to the
transaction contemplated hereby. Purchaser hereby represents and warrants to
Seller that Purchaser has not contacted any real estate broker, finder or any
other party in connection with this transaction, and that it has not taken
any action which would result in any real estate broker's, finder's or other
fees being due or payable to any party with respect to the transaction
contemplated hereby. Each Party hereby indemnifies and agrees to hold the
other Party harmless from any loss, liability, damage, cost or expenses
(including reasonable attorneys' fees) resulting to such other Party by
reason of a breach of the representation and warranty made by such Party
herein.
ARTICLE IX.
DEFAULT AND REMEDIES
9.1 SELLER'S DEFAULT; PURCHASER'S REMEDIES.
(a) SELLER'S DEFAULT. Seller shall be deemed to be in default
hereunder upon the occurrence of one of the following events: (i) any of
Seller's warranties or representations set forth herein shall be untrue in
any material re spect when made or at Closing; or (ii) Seller shall fail to
meet, comply with, or perform any covenant, agreement or obligation on its
part required within the time limits and in the manner required in this
Agreement, which, in either of such events, is not cured by Seller within
10 days following receipt by Seller of written notice of default from
Purchaser.
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(b) PURCHASER'S REMEDIES. In the event Seller shall be deemed to be in
default hereunder Purchaser may, at Purchaser's sole option, do any one or
more of the following: (i) terminate this Agreement by written notice
delivered to Seller on or before the Closing; and/or (ii) enforce specific
performance of this Agreement against Seller including Purchaser's reasonable
costs and attorneys' fees and court costs in connection therewith; and/or
(iii) exercise any other right or remedy Purchaser may have at law or in
equity by reason of such default including, but not limited to, the recovery
of reasonable attorneys' fees and court costs incurred by Purchaser in
connection herewith.
9.2 PURCHASER'S DEFAULT; SELLER'S REMEDIES.
(a) PURCHASER'S DEFAULT. Purchaser shall be deemed to be in default
hereunder upon the occurrence of one of the following events: (i) any of
Purchaser's warranties or representations set forth herein shall be untrue in
any material respect when made or at Closing; or (ii) Purchaser shall fail to
meet, comply with, or perform any covenant, agreement or obligation on its
part required within the time limits and in the manner required in this
Agreement, which, in either of such events, is not cured by Purchaser within
ten (10) days following receipt by Purchaser of written notice of default
from Seller.
(b) SELLER'S REMEDIES. In the event Purchaser shall be deemed to be in
default hereunder Seller may, at Seller's sole option, do any one or more of
the following: (i) terminate this Agreement by written notice delivered to
Purchaser on or before the Closing; and/or (ii) enforce specific performance
of this Agreement against Purchaser including Seller's reasonable costs and
attorneys' fees and court costs in connection therewith; and/or (iii)
exercise any other right or remedy Seller may have at law or in equity by
reason of such default including, but not limited to, the recovery of
reasonable attorneys' fees and court costs incurred by Seller in connection
herewith.
ARTICLE X.
MISCELLANEOUS
10.1 SURVIVAL. Except as otherwise specifically provided herein
(including Section 5.5), all of the representations, warranties, covenants,
agreements and indemnities of Seller and Purchaser contained in this
Agreement, to the extent not performed at the Closing, shall not survive the
Closing but shall be deemed to merge upon the acceptance of the Deed and
Assignment by Purchaser.
10.2 RIGHT OF ASSIGNMENT. Neither this Agreement nor any interest
herein may be assigned or transferred by either Party to any person, firm,
corporation or other entity without the prior written consent of the other
Party, which consent may be given or withheld in the sole discretion of such
other Party.
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10.3 NOTICES. All notices, requests and other communications under
this Agreement shall be in writing and shall be either (a) delivered in
person, (b) sent by certified mail, return-receipt requested, (c) delivered
by a recognized delivery service or (d) sent by facsimile transmission and
addressed as follows:
If intended for Purchaser: Entertainment Properties Trust
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
With a copy to: ▇▇▇▇▇▇▇, Mag & Fizzell, P.C.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇
If intended for Seller: AMC Entertainment Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, President
With a copy to: ▇▇▇▇▇▇▇ & ▇▇▇▇ ▇.▇.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: E.T. ▇▇▇▇▇▇▇
or at such other address, and to the attention of such other person, as the
parties shall give notice as herein provided. A notice, request and other
communication shall be deemed to be duly received if delivered in person or
by a recognized delivery service, when delivered to the address of the
recipient, if sent by mail, on the date of receipt by the recipient as shown
on the return receipt card, or if sent by facsimile, upon receipt by the
sender of an acknowledgment or transmission report generated by the machine
from which the facsimile was sent indicating that the facsimile was sent in
its entirety to the recipient's facsimile number; provided that if a notice,
request or other communication is served by hand or is received by facsimile
on a day which is not a Business Day, or after 5:00 P.M. on any
28
Business Day at the addressee's location, such notice or communication shall
be deemed to be duly received by the recipient at 9:00 A.M. on the first
Business Day thereafter.
10.4 ENTIRE AGREEMENT; MODIFICATIONS. This Agreement, together with
the other documents, instruments and agreements heretofore or hereinafter
entered into in connection with the transactions contemplated herein, embody
and constitute the entire understanding between the Parties with respect to
the transactions contemplated herein, and all prior or contemporaneous
agreements, understandings, representations and statements (oral or written)
are merged into this Agreement. Neither this Agreement nor any provision
hereof may be waived, modified, amended, discharged or terminated except by
an instrument in writing signed by the Party against whom the enforcement of
such waiver, modification, amendment, discharge or termination is sought, and
then only to the extent set forth in such instrument.
10.5 APPLICABLE LAW. THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF MISSOURI. The Parties agree that jurisdiction and venue
for any litigation arising out of this Agreement shall be in the Courts of
▇▇▇▇▇▇▇ County, Missouri or the U.S. District Court for the Western District
of Missouri and, accordingly, consent thereto.
10.6 CAPTIONS. The captions in this Agreement are inserted for
convenience of reference only and in no way define, describe, or limit the
scope or intent of this Agreement or any of the provisions hereof.
10.7 BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the Parties hereto and their respective successors
and assigns.
10.8 TIME IS OF THE ESSENCE. With respect to all provisions of this
Agreement, time is of the essence. However, if the first date of any period
which is set out in any provision of this Agreement falls on a day which is
not a Business Day, then, in such event, the time of such period shall be
extended to the next day which is a Business Day.
10.9 WAIVER OF CONDITIONS. Any Party may at any time or times, at
its election, waive any of the conditions to its obligations hereunder, but
any such waiver shall be effective only if contained in a writing signed by
such Party. No waiver by a Party of any breach of this Agreement or of any
warranty or representation hereunder by the other Party shall be deemed to be
a waiver of any other breach by such other Party (whether preceding or
succeeding and whether or not of the same or similar nature), and no
acceptance of payment or performance by a Party after any breach by the other
Party shall be deemed to be a waiver of any breach of this Agreement or of
any representation or warranty hereunder by such other Party, whether or not
the first Party knows of such breach at the time it accepts such payment or
performance. No failure or delay by a Party to exercise any right it may
have by reason of the
29
default of the other Party shall operate as a waiver of default or
modification of this Agreement or shall prevent the exercise of any right by
the first Party while the other Party continues to be so in default.
10.10 CONFIDENTIALITY. Except as hereinafter provided, from and after
the execution of this Agreement, Seller and Purchaser shall keep the Due
Diligence Materials and the contents thereof confidential and shall not
disclose the contents thereof except to their respective attorneys,
accountants, engineers, surveyors, financiers, bankers and other parties
necessary for the consummation of the contemplated transactions.
Notwithstanding the foregoing, it is acknowledged that Purchaser is in the
process of consummating the Registered Offering and, as a result thereof, is
and will be subject to various securities laws relating to, among other
things, disclosure of material facts. Accordingly, this document may be
filed with the SEC and its contents and information relating to the
Properties and the Option Properties will be disclosed to Purchaser's
underwriters, the Securities and Exchange Commission and/or similar state
authorities and to the public. If Purchaser does not consummate the
Registered Offering or acquire any Property, it shall deliver to Seller all
copies of proprietary information delivered to Purchaser by Seller.
10.11 ATTORNEYS' FEES. If either Party obtains a judgment against the
other Party by reason of a breach of this Agreement, a reasonable attorneys'
fee as fixed by the court shall be included in such judgment.
10.12 REMEDIES CUMULATIVE. Except as herein expressly set forth, no
remedy conferred upon a Party by this Agreement is intended to be exclusive
of any other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given herein or now
or hereafter existing at law, in equity or by statute.
10.13 TERMINOLOGY. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The words
"herein", "hereof", "hereunder" and similar terms shall refer to this
Agreement unless the context requires otherwise. Whenever the context so
requires, the neuter gender includes the masculine and/or feminine gender,
and the singular number includes the plural and vice versa.
10.14 ESTOPPEL. Each Party confirms and agrees that (a) it has read
and understood all of the provisions of this Agreement; (b) it is an
experienced real estate investor and is familiar with major sophisticated
transactions such as that contemplated by this Agreement; (c) it has
negotiated with the other Party at arm's length with equal bargaining power;
and (d) it has been advised by competent legal counsel of its own choosing.
10.15 JOINT PREPARATION. This Agreement (and all exhibits thereto) is
deemed to have been jointly prepared by the Parties hereto, and any
uncertainty or ambiguity existing herein, if any, shall not be interpreted
against any Party, but shall be interpreted according to the application of
the rules of interpretation for arm's-length agreements.
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10.16 COUNTERPARTS. This Agreement may be executed at different times
and in any number of counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature
page to this Agreement by telecopier shall be as effective as delivery of a
manually executed counterpart of this Agreement. In proving this Agreement,
it shall not be necessary to produce or account for more than one such
counterpart signed by the Party against whom enforcement is sought.
10.17 JOINT AND SEVERAL LIABILITY. The obligations of the
parties-Seller under this Agreement, and under all of the documents and
instruments entered into in accordance with the provisions of this Agreement,
are joint and several.
10.18 NON-ASSIGNABLE AGREEMENT. Seller hereby covenants and agrees to
use its best reasonable efforts to obtain all necessary consents to the
assignment of any of the Business Agreements, Warranties, Permits and
Engineering Documents (for the purposes of this Section 10.18, the terms
Business Agreements, Warranties, Permits and Engineering Documents shall
include all agreements, documents and instruments included within such
definitions, whether or not the same are assignable by Seller) as Purchaser
and Seller shall mutually agree upon. If and to the extent that any of the
Business Agreements, Warranties, Permits and Engineering Documents are not
assignable without the consent or approval of a third party, and either (a)
Purchaser does not request that Seller obtain such approval, or (b) Seller is
unable to obtain such approval following Purchaser's request that Seller
obtain such consent or approval, then, in either of such cases, and subject
to the Purchaser's rights as hereinafter provided, Seller hereby agrees and
acknowledges that it will, from and after Closing, own and hold such Busin
ess Agreements, Warranties, Permits and Engineering Documents as agent on
behalf of and for the benefit of Purchaser, and Seller will from time to time
execute such documents as Purchaser shall reasonably require to evidence that
Seller own and hold such Business Agreements, Warranties, Permits and
Engineering Documents as agent on behalf of and for the benefit of Purchaser.
If Purchaser requests that Seller obtain any required third party consents
for the assignment by Seller to Purchaser of any of the Business Agreements,
Warranties, Permits and Engineering Documents, and Seller is unable to obtain
such consent or approval, then Purchaser shall have the rights to determine
that the Due Diligence Materials with respect to the Property or Due
Diligence Property in question are not acceptable to Purchaser, and to
exercise Purchaser's rights under Section 6.1 hereof. The provisions of this
Section 10.18 shall not terminate or expire as otherwise provided in this
Agreement, but the covenants and agreements in this Section 10.18 shall
survive and continue in full force and effect at all times after Closing.
10.19 WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY
OTHER PARTY ON ANY MATTER ARISING OUT OF OR IN
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ANY WAY CONNECTED WITH THIS AGREEMENT OR THE OTHER AGREEMENTS.
EXECUTED to be effective as of the Effective Date.
SELLER: PURCHASER:
AMERICAN MULTI-CINEMA, INC., ENTERTAINMENT PROPERTIES TRUST,
A MISSOURI CORPORATION A MARYLAND REAL ESTATE INVESTMENT TRUST
By:______________________________ By: ___________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President Title: President
and CFO
Seller's Tax Identification Number: Purchaser's Tax Identification Number:
___________________________________ _______________________________________
AMC REALTY, INC., A DELAWARE
CORPORATION
By: ________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
and CFO
Seller's Tax Identification Number:
___________________________________
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