Exhibit 10.2
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 21, 1997
▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇ E.T. Bullard
▇▇▇▇▇▇▇, Mag & Fizzell, P.C. ▇▇▇▇▇▇▇ & ▇▇▇▇ ▇.▇.
1201 Walnut Suite 2500
Suite 2800 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Counsel to Purchaser Counsel to Seller
OPTION AGREEMENT
THIS OPTION AGREEMENT (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.
"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 (a)
with respect to any Property on which the theatre thereon is open on the closing
of the Registered Offering, shall not 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, shall be the
earlier of the actual opening date of the theatre thereon or the first day of
the month following the Anticipated Opening Date shown in the final prospectus
for the offering, or (c) with respect to any Seller Option Property shall be a
date mutually agreed upon by the Parties but not less than 90 days after the
exercise by Purchaser of its Option with respect to such Option Property, or (d)
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 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 November 24, 1997.
"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 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. ss. 9601
et seq., or by the Hazardous Materials Transportation Act, 49 U.S.C. ss. 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. ss. 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. ss. 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, 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., a Delaware corporation ("AMCE") 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 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.
"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 Purchaser, as applicable on the date which
is 60 days from the Closing Date of such Property. Anything contained herein to
the contrary notwithstanding, the Purchase Price with respect to the Properties
on which the theatres thereon are not open on the closing of the Registered
Offering, shall not in the aggregate increase in excess of $500,000 from the
aggregate Purchase Price shown on Exhibit K with respect to such Properties.
"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 at the Closing, and
pursuant to the terms of which AMCE shall agree to a duty of first offer and
grant to Purchaser a right of first refusal for Purchaser to acquire certain
property of AMCE.
"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 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.
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 obligations
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. Seller agrees to provide to Purchaser not
less than five business days' notice of the date that the megaplex theatre on
each such Option Property will open for business.
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-14 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 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 10.18 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);
(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 or made available 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.
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.
(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 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, and all amounts due for such work and material shall have been
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 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.
(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 is noticed 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:
(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 to operation 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 any new 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 relating to 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 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.
(k) Seller is sophisticated and experienced in the sale and
lease back of real property and that in proceeding with the sale and lease back
of the Properties, Seller will be relying on its investigations and examinations
of each Property and not on any representation or warranty of Purchaser not
expressly set forth in this Agreement.
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
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.
(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.
(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 $250,000,000.00.
(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.
(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 $250,000,000.00.
(e) Purchaser has not elected to terminate this Agreement with
respect to any Properties with an aggregate Purchase Price in excess of
$35,000,000.00.
(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 or pro
forma policy 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.
(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 from Seller 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.
(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 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 respect 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.
(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 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.
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
One Kansas City Place
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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 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 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.
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 Business 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
ANY WAY CONNECTED WITH THIS AGREEMENT OR THE OTHER
AGREEMENTS.
EXECUTED to be effective as of the Effective Date.
SELLER:
(SEAL) AMERICAN MULTI-CINEMA, INC.,
ATTEST a Missouri corporation
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary Title: Executive Vice President and
Chief Financial Officer
Seller's Tax Identification Number:
▇▇-▇▇▇▇▇▇▇
(SEAL) AMC REALTY, INC., a Delaware
ATTEST corporation
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary Title: Executive Vice President and
Chief Financial Officer
Seller's Tax Identification Number:
▇▇-▇▇▇▇▇▇▇
PURCHASER:
(SEAL) ENTERTAINMENT PROPERTIES TRUST,
a Maryland Real Estate Investment Trust
By: /s/ ▇▇▇▇▇ ▇. Brain
Name: ▇▇▇▇▇ ▇. Brain
Title: Chief Financial Officer and
Secretary
Purchaser's Tax Identification Number:
43-179877
TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS.................................................................1
ARTICLE II. OPTION TO SELL AND PURCHASE AND AGREEMENT TO LEASE.............10
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.................................................11
ARTICLE III. PURCHASE PRICE................................................11
3.1 Payment of Purchase Price.............................................11
ARTICLE IV. ITEMS TO BE FURNISHED TO PURCHASER BY SELLER...................11
4.1 Due Diligence Materials.........................................11
4.2 Due Diligence Review............................................13
4.3 Investigations..................................................13
4.4 Restoration After Investigations................................13
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..............................18
5.4 Representations and Warranties of Purchaser.....................20
5.5 Survival........................................................21
ARTICLE VI. CONDITIONS TO OBLIGATIONS....................................21
6.1 Conditions to the Purchaser's Obligations....................21
6.2 Failure of Conditions to Purchaser's Obligations.............23
6.3 Conditions to the Seller's Obligations.......................23
6.4 Failure of Conditions to Seller's Obligations................24
ARTICLE VII. PROVISIONS WITH RESPECT TO THE CLOSING......................24
7.1 Seller's Closing Obligations.................................24
7.2 Purchaser's Closing Obligations..............................25
7.3 Purchaser's Closing Obligations Respecting ..................26
Grantor Option Property
ARTICLE VIII. EXPENSES OF CLOSING......................................26
8.1 Adjustments................................................26
8.2 Closing Costs..............................................26
8.3 Commissions/Broker's Fees..................................27
ARTICLE IX. DEFAULT AND REMEDIES......................................27
9.1 Seller's Default; Purchaser's Remedies....................27
a. Seller's Default..................................27
b. Purchaser's Remedies..............................27
9.2 Purchaser's Default; Seller's Remedies.....................28
a. Purchaser's Default...............................28
b. Seller's Remedies.................................28
ARTICLE X. MISCELLANEOUS..............................................28
10.1 Survival..................................................28
10.2 Right of Assignment.......................................28
10.3 Notices...................................................28
10.4 Entire Agreement; Modifications...........................29
10.5 Applicable Law............................................30
10.6 Captions..................................................30
10.7 Binding Effect.........................................30
10.8 Time is of the Essence.................................30
10.9 Waiver of Conditions...................................30
10.10 Confidentiality........................................30
10.11 Attorneys' Fees........................................31
10.12 Remedies Cumulative....................................31
10.13 Terminology............................................31
10.14 Estoppel...............................................31
10.15 Joint Preparation......................................31
10.16 Counterparts...........................................31
10.17 Joint and Several Liability............................32
10.18 Non-Assignable Agreement...............................32
10.19 Waiver of Jury Trial...................................32
SCHEDULE OF EXHIBITS
A - Property Descriptions (A-1 through A-20)
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-1 - Lease
H-2 - Guaranty of Lease
I-1 - Seller Option Agreement
I-2 Grantor Option Agreement
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)
EXHIBITS
TO
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")
November 21, 1997
EXHIBIT K
TO OPTION AGREEMENT
AMERICAN MULTI-CINEMA, INC./ENTERTAINMENT PROPERTIES TRUST
Purchase Price
Purchase Price
Property Pad (in thousands)
Gulf Pointe 30 A ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ 30 B ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ 30 D 465
Mesquite 30 A-1 810
Mesquite 30 A-2 674
Mesquite 30 B 674
Cantera 30 B 1,012
Cantera 30 C 1,100
Cantera 30 D 1,012
Cantera 30 E 1,056
A-1