Exhibit 10.3
AMCE RIGHT TO PURCHASE AGREEMENT
THIS RIGHT TO PURCHASE AGREEMENT (the "Agreement"), dated as of November
21, 1997, is made and entered into among AMC ENTERTAINMENT INC., a Delaware
corporation (including its consolidated subsidiaries, hereinafter referred to as
"Grantor"), and ENTERTAINMENT PROPERTIES TRUST, a Maryland real estate
investment trust (hereinafter referred to as "Offeree"). Grantor and Offeree are
sometimes collectively referred to herein as the "Parties" and each of the
Parties is sometimes singularly referred to herein as a "Party".
WHEREAS, Grantor may in the future acquire or develop megaplex theatre and
related entertainment property owned (or ground-leased) by the Grantor (the
"Property");
WHEREAS, Grantor may from time to time sell, transfer, convey or otherwise
dispose of (which may include a leaseback, but not a mortgage) ("Transfer") any
or all such Property during a period of five (5) years from and including the
date hereof (the "Right to Purchase Period"); and
WHEREAS, Grantor desires to grant to Offeree a personal non-assignable
right of first offer and right of first refusal relating to the Transfer of any
Property, exercisable under the terms and conditions hereinafter set forth.
NOW, THEREFORE, For and in consideration of the payment of the sum of Ten
Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which is acknowledged by the Parties, Grantor and Offeree hereby
agree as follows:
1. Right of First Offer.
(a) Grant of Right of First Offer. Subject to the terms and conditions set
forth in this Agreement, Grantor hereby grants to Offeree a right of first offer
("First Offer Right") relating to the Transfer of all or any Property. If, at
any time during the Right to Purchase Period, Grantor desires to Transfer all or
any portion of a Property (the "Offered Property"), Grantor shall first deliver
to Offeree written notice (the "Notice of Transfer"), which Notice of Transfer
shall state Grantor's desire to Transfer the Offered Property and contain an
accurate description of the Offered Property and its proposed operations.
(b) Election to Offer. (i) If Offeree elects to make an offer to purchase
the Offered Property, Offeree shall deliver to Grantor within sixty (60) days
following the date the Notice of Transfer was received by Offeree (the "Offer
Date") a written offer (the "Offeree Offer"), which Offeree Offer shall offer to
purchase the Offered Property on the terms and conditions, including price,
timing and lease terms (if
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applicable), specified therein. The Offeree Offer shall disclose all material
facts relating to the proposed transaction and, at Offeree's option, may include
a form purchase agreement or lease, as applicable. Each Offeree Offer shall be
an irrevocable commitment by Offeree to purchase the Offered Property on the
terms and conditions set forth therein.
(ii) If Offeree does not elect to make an offer to purchase
the Offered Property by the Offer Date or if Offeree makes an offer to purchase
the Offered Property by the Offer Date and Grantor elects not to Transfer the
Offered Property on the terms offered by Offeree, Grantor (A) shall be under no
obligation to Transfer any portion of the Offered Property to any person, unless
Grantor so elects, and (B) may, within a period of 6 months from and after the
Offer Date, solicit offers relating to the Transfer of such Offered Property;
provided, however, any Transfer of the Property within a period of 6 months from
and after the Offer Date not on terms and conditions and at a price more
favorable to those offered by Offeree shall be subject to the First Refusal
Right set forth in paragraph 2 of this Agreement. The First Offer Right granted
to Offeree under the terms and conditions of this Agreement shall revive in the
event that Grantor fails to Transfer the Offered Property within the six (6)
months from and after the Offer Date.
(iii) Notwithstanding Offeree's election not to make an offer
to purchase the Offered Property by the Offer Date or Grantor's election not to
Transfer the Offered Property on the terms offered by Offeree, Grantor shall be
obligated to submit a Grantor Offer to Offeree following receipt of a Bona Fide
Offer from a Proposed Transferee pursuant to paragraph 2 of this Agreement.
(c) Acceptance of Offeree Offer. If Grantor elects to Transfer
the Offered Property on the terms offered by the Offeree, Grantor shall deliver
in writing its election to Transfer the Offered Property to Offeree within
thirty (30) days following the date the Offeree Offer was received by Grantor.
Such communication shall, when taken in conjunction with the Offeree Offer, be
deemed to constitute a valid, legally binding and enforceable agreement for the
Transfer of the Property. Such agreement may be evidenced by, but, unless
otherwise agreed, shall not be subject to, execution of a purchase agreement or
lease, as applicable.
2. Right of First Refusal.
(a) Grant of Right of First Refusal. Subject to the terms and
conditions set forth in this Agreement, Grantor hereby grants to Offeree a right
of first refusal ("First Refusal Right") relating to the Transfer of all or any
Property. If, at any time during the Right to Purchase Period, Grantor desires
to Transfer any Offered Property pursuant to a bona fide offer (the "Bona Fide
Offer") from a third party (the "Proposed Transferee"), Grantor shall first
deliver to Offeree a written offer (the "Grantor Offer"), which Grantor Offer
shall offer to Transfer the Offered Property to the Offeree on terms and
conditions, including price, timing and lease terms (if applicable), not less
favorable to the Offeree than the terms and conditions which Grantor proposes to
Transfer such Property to the
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Proposed Transferee. The Grantor Offer shall disclose the identity of the
Proposed Transferee, the person or persons, if any, that control such Proposed
Transferee, to the extent known by Grantor, the terms and conditions, including
price, timing and lease terms (if applicable), of the proposed Transfer, any
proposed form purchase agreement or lease and any other material facts relating
to the proposed transaction. Each Grantor Offer is an irrevocable commitment by
Grantor to sell the Offered Property on the terms and conditions set forth
therein.
(b) Confirmation of Bona Fide Offer. The Offeree shall be
permitted to confirm that the Bona Fide Offer is firm and subject only to
conditions that could reasonably be expected to be satisfied, by (i) review of
the documents involved in such Bona Fide Offer and (ii) requiring that the
Grantor cause the Proposed Transferee to submit evidence reasonably satisfactory
to the Offeree of financing for such purchase, but only to the extent that the
Bona Fide Offer has a financing contingency. If review of such documents and of
such evidence of financing by the Offeree would violate a confidentiality
obligation of Grantor to the Proposed Transferee, or of the Proposed Transferee
to any third party, Grantor shall designate a recognized accounting or
investment banking firm or similar third party reasonably satisfactory to the
Offeree, who shall at Offeree's expense (i) certify that the terms set forth in
the written documents are as described in the Offer or are no more favorable to
the Proposed Transferee than the terms described in the Offer, and (ii) certify
that financing has been obtained, subject to no condition which, in such third
party's reasonable judgment, is likely to be unsatisfied, or based on the
evidence provided, such third party expects that financing for the sale to the
Proposed Transferee will be obtained.
(c) Acceptance of Grantor Offer. (i) If Offeree elects to
purchase the Offered Property on the terms set forth in the Grantor Offer,
Offeree shall deliver in writing its election to purchase the Offered Property
to Grantor within forty-five (45) days following the date the Grantor Offer was
received by the Offeree (the "Acceptance Date"), but not less than five days
prior to the expiration date of the Bona Fide Offer, provided such election in
any circumstance will not be due prior to the expiration of 10 business days
following the date the Grantor's Offer was received by Offeree. Such
communication shall, when taken in conjunction with the Grantor Offer, be deemed
to constitute a valid, legally binding and enforceable agreement for the
Transfer of the Property. Such agreement may be evidenced by, but, unless
otherwise agreed, shall not be subject to, execution of a purchase agreement or
lease, as applicable.
(ii) If Offeree does not elect to purchase the Offered
Property by the Acceptance Date, Grantor (i) shall be under no obligation to
Transfer any portion of the Offered Property to any person, unless Grantor so
elects, and (ii) may, within a period of 6 months from and after the date the
Grantor Offer was received by the Offeree, Transfer the Offered Property to any
person, including the Proposed Transferee, at a price at least equal to that
offered to Offeree in the Grantor Offer and on the terms and conditions
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substantially consistent to those included in the Grantor Offer and Grantor
shall be under no obligation to submit a Grantor Offer to Transfer such Offered
Property to the Offeree in connection therewith. The First Refusal Right granted
to the Offeree under the terms and conditions of this Agreement shall revive in
the event that Grantor fails to Transfer the Offered Property within the six (6)
month period specified above.
3. Due Diligence. During the periods following the date the Notice of
Transfer was received by Offeree and prior to the Offer Date, following the date
the Grantor Offer was received by Offeree and prior to the Acceptance Date and
following any agreement to Transfer a Property, Grantor shall provide Offeree
access to the Offered Property, its books and records related thereto and its
officers and employees with knowledge thereof during reasonable hours for
purposes of conducting a due diligence investigation of the Offered Property and
its proposed operations.
4. Closing. (a) The closing of any Transfer of Offered Property pursuant to
this Agreement shall be determined by the Parties (which, unless otherwise
agreed, shall be within 90 days of the acceptance of any offer hereunder).
5. No Assignment. The First Refusal Right and First Offer Right granted
hereby are personal to Offeree, and, as an inducement to Grantor to enter into
this Agreement, it is expressly agreed that Offeree has no right, directly or
indirectly, to assign in whole or in part any rights granted by this Agreement.
Grantor shall have no obligation or requirement to deal with any party other
than Offeree in all matters relating to this Agreement. Any purchase agreement
or lease hereunder may be made with a subsidiary of Grantor acceptable to
Offeree.
6. No Broker. Offeree represents that it has dealt with no broker in
connection with the First Refusal Right and First Offer Right granted hereby,
and agrees to indemnify and hold Grantor harmless from the claims of any broker
in connection with the transactions contemplated hereby.
7. 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 Offeree: Entertainment Properties Trust
One Kansas City Place
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Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
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With a copy to: ▇▇▇▇▇▇▇, Mag & Fizzell, P.C.
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Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇
If intended for Grantor: AMC Entertainment Inc.
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Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, President
With a copy to: ▇▇▇▇▇▇▇ & ▇▇▇▇ ▇.▇.
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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.
8. 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 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 by such
other Party, whether or not the first Party knows of such breach at the time it
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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.
9. Governing Law. This Agreement 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. 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.
11. 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.
12. Specific Performance. The Parties agree that if any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, irreparable damage would occur, and
no adequate remedy at law would exist and damages would be difficult to
determine, and that the Parties shall be entitled to specific performance hereof
(without requirement to post bond), in addition to any and all other remedies at
law or in equity. The Parties agree that in connection with the enforcement of
any agreement to Transfer a Property created hereunder, the terms to be enforced
shall be in the following order of priority: (i) those terms contained in any
executed purchase agreement or lease; (ii) in the absence of (i), those
contained in the communications that constituted the agreement between the
parties; and (iii) in the absence of (i) or (ii), those contained in the
Agreement of Sale and Purchase, dated as of November 21, 1997, among American
Multi-Cinema, Inc., AMC Realty, Inc. and Entertainment Properties Trust or the
Lease, dated as of November 21, 1997, between Entertainment Properties Trust and
American Multi-Cinema, Inc., as applicable.
13. Complete Agreement. This Agreement constitutes the entire
understanding between Grantor and Offeree with respect to the subject matter
hereof and no representations, warranties, promises, guarantees or agreements,
oral or written, express or implied, have been made by Grantor with respect to
this Agreement except as expressly provided in this Agreement. The Agreement may
not be modified, amended or waived except by a written instrument executed by
both Grantor and Offeree. A waiver on one occasion shall not be construed to be
a waiver with respect to any other occasion.
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14. 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.
15. 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.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which counterparts, when executed and delivered, shall be
deemed to be an original and all of which counterparts, when taken together,
shall constitute one and the same Agreement.
IN WITNESS WHEREOF, Grantor and Offeree have executed this Agreement as
of the day and year first above written.
OFFEREE:
(SEAL) ENTERTAINMENT PROPERTIES
TRUST, a Maryland real estate
investment trust
By:/s/ ▇▇▇▇▇ ▇. Brain
Name: ▇▇▇▇▇ ▇. Brain
Title: Chief Financial Officer and
Secretary
(SEAL) GRANTOR:
ATTEST: AMC ENTERTAINMENT, INC., a
Delaware corporation
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary Title: President and Chief Financial
Officer
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