GUARANTY OF LEASE [REIT]
(Name of Project)
THIS GUARANTY is given this _______ day of November 1997, by AMC
ENTERTAINMENT INC., a Delaware corporation ("GUARANTOR"), to ENTERTAINMENT
PROPERTIES TRUST, a Maryland real estate investment trust ("OWNER").
In order to induce Owner to enter into a certain Lease (the "LEASE")
dated as of November ____, 1997, between Owner, as Landlord, and American
Multi-Cinema, Inc., a wholly-owned subsidiary of Guarantor (the "TENANT"), as
Tenant, pursuant to which Owner has leased to Tenant certain premises located
in _______________ and described therein (the "LEASE"), Guarantor agrees as
follows:
1. GUARANTY. Guarantor hereby absolutely and unconditionally
guarantees to Owner, subject to the terms of this Guaranty and to the
limitations set forth herein, (i) the full, prompt and complete payment of
the rent and all other sums due and payable by Tenant under the Lease and all
costs incurred by Owner in collecting such sums or in enforcing its rights
hereunder, and (ii) the full, prompt and complete performance by Tenant of
all covenants, conditions and provisions in the Lease required to be
performed by Tenant (collectively, the "LIABILITIES"). If Tenant fails to
pay or perform any of the Liabilities, Guarantor shall pay or perform such
Liabilities within thirty days after written notice of such failure from
Owner. Guarantor waives any right to require Owner to proceed first against
Tenant or to exhaust any remedy Owner may have against Tenant under the Lease
or with respect to any security granted by Tenant under the Lease before
proceeding against Guarantor.
2. RIGHT TO ASSERT DEFENSES.
A. Except as provided in subparagraph (B) of this Section,
Guarantor shall have the benefit of and shall be entitled to assert with
respect to its obligations hereunder any and all rights, claims,
counterclaims, offsets and defenses available to Tenant with respect to the
Liabilities or which Tenant is otherwise entitled to assert against Owner;
provided however that in the event Tenant has the right to dispute a default
asserted by Owner in the manner permitted by Article ___ of the Lease and
either (i) does not pursue such right, or (ii) is adjudged by a court of
competent jurisdiction to be in default of its obligation under the Lease,
then, notwithstanding the provisions of this Section 2(A), Guarantor shall
not be entitled to assert as a defense to its obligations hereunder the right
to dispute the default under said Article ___ of the Lease.
B. The duties and obligations of Guarantor hereunder shall not be
affected by, and Guarantor hereby waives any defense based on, the Tenant's
becoming insolvent or being adjudicated a bankrupt, or filing a petition for
reorganization, liquidation, or for the adjustment of debts or for similar
relief under any present or future provision of the Bankruptcy Code, or the
issuance by a court of an order for relief in the case of a petition being
filed by a creditor or
creditors of Tenant, or the seeking by Tenant of a judicial readjustment of
the rights of its creditors under any present or future federal or state law,
or the appointment of a receiver or trustee of all or part of Tenant's
property and assets by any state or federal court.
3. WAIVER. Guarantor hereby waives notice of acceptance of this
Guaranty and hereby waives, so long as Tenant remains an affiliate of
Guarantor, notice of any amendment of any Liabilities (including any
amendment of the Lease) and the granting of any indulgence or extension of
time to Tenant to perform under the Lease. Guarantor hereby also waives, so
long as Tenant remains an affiliate of Guarantor, any and all other notices
which by law or under the terms and provisions of the Lease are required to
be given to Tenant, any demand for or notice of default in the payment of any
sums payable by Tenant under the Lease or in the performance of all and
singular the terms, covenants, conditions and provisions in the Lease
required to be performed by Tenant, except as specifically set forth in
Section 1 hereof. Any modification, amendment, change or extension of any of
the terms, covenants or conditions of the Lease which Tenant (which term shall
include, without limitation, a trustee in bankruptcy) and Owner may hereafter
make, or any forbearance, delay, neglect or failure on the part of Owner in
enforcing any of the terms, covenants, conditions or provisions of the Lease,
or any sale, conveyance, mortgaging or other transfer by Owner of any right,
title, interest or estate in or to any of the property of which the Premises
is a part, or any assignment, mortgaging or other transfer by Tenant of the
Lease or any interest therein or any subletting of all or part of the
Premises, or any dissolution or liquidation of Tenant, shall not in any way
affect, impair or discharge the unconditional liability of Guarantor to Owner
hereunder. Notwithstanding the foregoing, Owner agrees that if Tenant is no
longer affiliated with Guarantor, Owner will, in addition to the notices
required by Section 1 hereof, give Guarantor notice of any and all such
actions, event or occurrences as are described in this Section 3. For the
purposes hereof, Tenant shall be deemed to be an affiliate of Guarantor until
such time as Guarantor notifies Owner in writing that Tenant is no longer an
affiliate of Guarantor.
4. LIMITATIONS ON GUARANTY. Notwithstanding anything to the contrary
contained in this Guaranty: (i) if Tenant shall assign its interest in the
Lease as permitted therein and shall be released thereunder of any liability
accruing subsequent to the date of assignment, then Guarantor shall have no
further obligation with respect to Liabilities that accrue hereunder from and
after the date Tenant is released; and (ii) Guarantor shall have no
obligation or liability under this Guaranty for any obligations for payment
or performance that accrue under the Lease during any option periods or
renewals of the Lease if Original Tenant as defined in the Lease is the
tenant under the Lease at the date of expiration of the original term of the
Lease. Upon Guarantor's request, Owner shall confirm in writing the release
of liability in favor of Guarantor as described in clauses (i) and (ii)
above.
5. DEFAULT OF TENANT. If because of Tenant's default, the Lease is
terminated, then Owner shall notify Guarantor thereof, and if Guarantor would
otherwise have continuing liability to Owner hereunder, then at Guarantor's
option upon written notice to Owner, shall enter into a
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New Lease with Guarantor (or an affiliate of Guarantor other than Tenant) for
the balance of the term of the Lease (including option periods), on the same
terms as are set forth in the Lease, and such New Lease shall continue as a
direct lease between Owner and Guarantor or its affiliate (as tenant). As a
condition of Owner's obligation to enter into the New Lease, Guarantor shall
cure all monetary defaults, and other defaults capable of being cured, and
shall reimburse Owner for any costs incurred by Owner in connection with such
default, including reasonable attorneys' fees and court costs.
6. NOTICES. All notices, consents, requests and approvals
(collectively, "NOTICES") required or permitted hereunder shall only be
effective if in writing. All Notices shall be sent by Federal Express,
Airborne or similar express courier which delivers only upon signed receipt
of the addressee, by facsimile or by certified mail, with return receipt
requested. Notices to Guarantor shall be sent to 000 Xxxx 00xx Xxxxxx, Xxxxx
0000, Xxxxxx Xxxx, Xxxxxxxx 00000, marked for the attention of Lease
Administrator, with a copy to Xxxxxxx & Xxxx X.X., 0000 Xxxxx Xxxxxxxxx,
Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx, 00000, marked for the attention of E.T.
Xxxxxxx, or to such other addresses as Guarantor may later designate by
Notice to Owner. All Notices to Owner shall be sent to Entertainment
Properties Trust, 0000 Xxxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx, 00000, marked
for the attention of Xxxxxx X. Xxxxxx, President, with a copy to Xxxxxxx, Mag
& Fizzell, P.C., 0000 Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx, 00000,
marked for the attention of Xxxxxxx X. X'Xxxxxxxx, or to such other address
as Owner may later designate by Notice to Guarantor. All Notices shall be
effective upon the date of receipt by the addressee thereof as shown on the
return or courier receipt of the Notice, on the facsimile confirmation page,
or the certified mail receipt, as applicable.
7. CUMULATIVE OBLIGATIONS. The amount of liability of Guarantor and
all rights, powers, and remedies of Owner hereunder and under any other
agreement now or at any time hereafter in force between Owner and Guarantor
relating to any obligations or indebtedness of Tenant or Guarantor to Owner
shall be cumulative and not alternative and such rights, powers, and remedies
shall be in addition to all rights, powers, and remedies given to Owner by
law.
8. SEPARATE ACTIONS. The agreements, obligations, warranties and
representations of Guarantor hereunder are independent of the obligations of
Tenant. In the event of any default hereunder, a separate action or actions
may be brought and prosecuted against the undersigned, whether Tenant is
joined therein or a separate action or actions are brought against Tenant.
Owner may maintain successive actions for other defaults. Owner's right
hereunder shall not be exhausted by its exercise of any of its rights or
remedies until and unless all indebtedness and obligations hereby guaranteed
have been paid and fully performed.
9. SAVINGS CLAUSE. Should any one or more provisions of this Guaranty
be determined to be illegal or unenforceable, all other provisions
nevertheless shall be effective.
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10. SUCCESSORS AND ASSIGNS. This Guaranty shall inure to the benefit of
Owner, its successors and assigns, and shall bind the heirs, executors,
administrators, successors, and assigns of Guarantor and any parties
constituting Guarantor.
11. WAIVER IN WRITING. No provision of this Guaranty or right of Owner
hereunder can be waived nor can Guarantor be released from Guarantor's
obligations hereunder except by a writing duly executed by Owner and except
as specifically provided for herein.
12. ATTORNEYS FEES. If it becomes necessary for Owner to employ counsel
to enforce the obligations of Guarantor hereunder, then, to the extent
permitted by law, all reasonable attorneys' fees and expenses in connection
therewith of the prevailing party in any action instituted shall be paid by
the other party.
13. GENERAL. Guarantor will not exercise any right of subrogation with
respect to any payment made hereunder unless and until all Liabilities shall
have been paid in full; if any payment is made to Guarantor on account of
such subrogation rights at any time when the Liabilities have not been paid
in full, any amounts so paid shall be forthwith paid to Owner to be applied
to any of the Liabilities. This Guaranty may be amended only in writing
signed by Guarantor and Owner. This Guaranty shall be binding upon the
successors and assigns of Guarantor and shall inure to the benefit of Owner
and its successors and assigns. Guarantor represents and warrants that it is
a corporation duly organized, legally existing and in good standing under the
laws of the State of Delaware and that it has the power and authority to
execute, deliver and perform this Guaranty.
Executed as of the date first above written.
AMC ENTERTAINMENT INC.,
a Delaware corporation
ATTEST:
By: ____________________________ By: ________________________________
Print Name:_____________________ Print Name: ________________________
Title: _________________________ Title: _____________________________
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