<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 13, 1997
NO. 333-35281
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
AMENDMENT NO. 3
TO
FORM S-11
AND
FORM S-3
REGISTRATION STATEMENTS
UNDER
THE SECURITIES ACT OF 1933
----------------
<TABLE>
<S> <C>
ENTERTAINMENT PROPERTIES TRUST AMC ENTERTAINMENT INC.
(Exact name of Registrant as specified in its charter)
MARYLAND DELAWARE
(State or other jurisdiction of incorporation or organization)
6978 7832
(Primary Standard Industrial Classification Code Number)
43-179877 43-1304369
(I.R.S. Employer Identification Number)
ONE KANSAS CITY PLACE 106 WEST 14TH STREET
1200 MAIN STREET, SUITE 3250 KANSAS CITY, MISSOURI 64105-1977
KANSAS CITY, MISSOURI 64105 (816) 221-4000
(816) 480-4649
(Address of Principal Executive Offices)
</TABLE>
<TABLE>
<S> <C>
DAVID M. BRAIN PETER C. BROWN
ENTERTAINMENT PROPERTIES TRUST AMC ENTERTAINMENT INC.
ONE KANSAS CITY PLACE 106 WEST 14TH STREET
1200 MAIN STREET, SUITE 3250 KANSAS CITY, MISSOURI 64105-1977
KANSAS CITY, MISSOURI 64105 (816) 221-4000
(816) 480-4649
(Name and address of agent for service)
</TABLE>
COPIES TO:
<TABLE>
<S> <C> <C>
ALISON S. RESSLER RAYMOND F. BEAGLE, JR. YAACOV M. GROSS
SULLIVAN & CROMWELL LATHROP & GAGE L.C. WILLKIE FARR & GALLAGHER
444 SOUTH FLOWER STREET 2345 GRAND BOULEVARD, 24TH ONE CITICORP CENTER
LOS ANGELES, CA 90071 FLOOR 153 EAST 53RD STREET
(213) 955-8000 KANSAS CITY, MO 64108 NEW YORK, NY 10022
(816) 292-2000 (212) 821-8000
</TABLE>
------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this registration statement becomes effective.
------------------
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED NOVEMBER 13, 1997
13,800,000 SHARES
[LOGO]
ENTERTAINMENT PROPERTIES TRUST
COMMON SHARES OF BENEFICIAL INTEREST
(PAR VALUE $.01 PER SHARE)
----------------
Entertainment Properties Trust, a Maryland real estate investment trust (the
"Company"), was formed in August 1997 to capitalize on the opportunities created
by the development of destination entertainment and entertainment-related
properties including larger theatre complexes. The Company's initial portfolio
will consist of twelve megaplex theatres (the "Initial Properties") purchased
from subsidiaries of AMC Entertainment Inc. ("AMCE") for an aggregate purchase
price of approximately $248.8 million. The Company will also have options to
acquire up to five additional megaplex theatres (the "Option Properties") for an
estimated aggregate purchase price of $138.5 million. The Company will lease all
of the Initial Properties and, if acquired, the Option Properties to American
Multi-Cinema, Inc. ("AMC"), a wholly owned subsidiary of AMCE. The Company
intends to pay regular quarterly distributions, initially at a rate of $1.60 per
share per annum, beginning with a pro-rated dividend for the quarter ended
December 31, 1997. See "Distributions." Upon consummation of the Formation
Transactions (as defined herein), the Company will have no outstanding
indebtedness and $200 million available under a bank credit facility.
All of the common shares of beneficial interest, $0.01 par value per share
(the "Shares"), offered hereby (the "Offering") are being sold by the Company.
Concurrently with the Offering, certain executive officers will purchase 120,000
Shares from the Company at the initial public offering price. Prior to the
Offering, there has been no public market for the Shares. It is currently
estimated that the initial public offering price per Share will be between
$19.00 and $21.00. See "Underwriting" for a discussion of the factors to be
considered in determining the initial public offering price. Application has
been made to list the Shares on the New York Stock Exchange ("NYSE") under the
symbol "EPR."
SEE "RISK FACTORS" BEGINNING ON PAGE 15 OF THIS PROSPECTUS FOR A DISCUSSION
OF MATERIAL RISKS RELEVANT TO AN INVESTMENT IN THE SHARES.
The risk factors include:
- The dependence on AMC, as the lessee of the Initial Properties and, if
acquired, the Option Properties, and AMCE, as the guarantor of AMC's lease
obligations, for the Company's initial revenues and ability to make
distributions.
- Potential conflicts of interest between the Company and its affiliates and
AMCE and its affiliates, including the lack of arm's-length negotiations
with respect to the purchase price of, and the leaseback provisions for,
the Initial Properties and the Option Properties (the "Properties").
- The Company's lack of operating history, management's lack of experience
in operating a real estate investment trust and the availability of
suitable acquisition and development opportunities.
- Actual Cash Available for Distribution (as hereinafter defined) may be
insufficient to allow the Company to maintain its proposed initial
distribution rate of $1.60 per Share per annum.
- Operating risks inherent in the entertainment industry that may affect the
operations of the Company's tenants.
- Dependence on key personnel, particularly the Company's President, Chief
Financial Officer and Chairman of the Board of Trustees.
- Inability to obtain any or all consents or waivers necessary to effect the
Formation Transactions.
- General real estate investment risks that may affect the Company's
properties, the value of the Shares and the Company's ability to make
distributions.
- Absence of limitation on the amount of indebtedness the Company can incur.
- The taxation of the Company as a regular corporation if it fails to
qualify as a real estate investment trust.
- Anti-takeover effects of restrictions on the ownership of Shares to 9.8%
of the outstanding shares.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
------------------
<TABLE>
<CAPTION>
INITIAL PUBLIC UNDERWRITING PROCEEDS TO
OFFERING PRICE DISCOUNT(1) COMPANY(2)
-------------- ------------- ------------
<S> <C> <C> <C>
Per Share.......................................................... $ $ $
Total(3)........................................................... $ $ $
</TABLE>
- ------------------
(1) The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended. See "Underwriting."
(2) Before deducting estimated expenses of $2.0 million payable by the Company.
(3) The Company has granted the Underwriters an option for 30 days to purchase
up to an additional 2,052,000 Shares at the initial public offering price
per Share, less the underwriting discount, solely to cover over-allotments.
If such option is exercised in full, the total Initial Public Offering
Price, Underwriting Discount and Proceeds to Company will be $ ,
$ and $ , respectively. See "Underwriting."
---------------------
The Shares offered hereby are offered severally by the Underwriters, as
specified herein, subject to receipt and acceptance by them and subject to their
right to reject any order in whole or in part. It is expected that certificates
for the Shares will be ready for delivery in New York, New York on or about
, 1997, against payment therefor in immediately available funds.
GOLDMAN, SACHS & CO. MORGAN STANLEY DEAN WITTER
FURMAN SELZ
PRUDENTIAL SECURITIES INCORPORATED
SALOMON BROTHERS INC
------------
The date of this Prospectus is , 1997.
<PAGE>
[PICTORIAL COLLAGE OF 18 EXTERIOR AND INTERIOR PHOTOGRAPHS OF THE AMC AND AMCE
MEGAPLEX THEATRES TO BE ACQUIRED BY THE COMPANY. HIGHLIGHTS INCLUDE FRONTAL
EXTERIOR SHOTS, INTERIOR BOX OFFICE AND CONCESSION STANDS, STADIUM AMC
LOVESEAT-TM- STYLE SEATING, TORUS-TM- COMPOUND CURVED SCREENS AND HIGH IMPORT
THEATRE SYSTEMS.]
CERTAIN PERSONS PARTICIPATING IN THE OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE SHARES, INCLUDING
OVER-ALLOTMENT, STABILIZING AND SHORT-COVERING TRANSACTIONS IN SUCH SHARES, AND
THE IMPOSITION OF A PENALTY BID, IN CONNECTION WITH THE OFFERING. FOR A
DESCRIPTION OF THESE ACTIVITIES, SEE "UNDERWRITING."
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
AVAILABLE INFORMATION............. 1
PROSPECTUS SUMMARY................ 2
The Company..................... 2
Summary Risk Factors............ 3
Business Objectives and
Strategies.................... 5
Growth Strategy............... 5
Operating Strategy............ 5
Capitalization Strategy....... 5
Business of the Company and its
Properties.................... 6
The Properties................ 6
The Initial Properties........ 6
The Option Properties......... 7
Future AMCE Properties........ 8
Planet Movies Properties...... 8
Entertainment Themed Retail
Centers..................... 8
Leases.......................... 9
Conflicts of Interest and
Benefits to Certain Persons... 10
Distributions................... 10
Summary Selected Financial
Information................... 11
AMC Entertainment Inc........... 13
The Offering.................... 13
Tax Status of the Company....... 14
RISK FACTORS...................... 15
Dependence on AMC and AMCE for
the Company's Initial Revenues
and Ability to Make
Distributions................. 15
Conflicts of Interest........... 16
Affiliated Trustees........... 16
Lessees Other Than AMC........ 16
Purchase Price of the
Properties.................. 16
Terms of the Leases........... 16
Potential for Future
Conflicts................... 16
Lack of Operating History....... 17
Ability to Maintain Initial
Distribution Rate............. 17
Operating Risks Inherent in the
Entertainment Industry That
May Affect the Operations of
the Company's Tenants......... 18
Dependence on Key Personnel..... 18
Inability to Obtain Consents or
Waivers Required to Effect
Formation Transactions........ 18
General Real Estate Investment
Risks That May Affect the
Company's Properties, the
Value of the Shares and the
Company's Ability to Make
Distributions................. 19
General....................... 19
Interest Rates and Debt
Financing................... 19
Absence of Limitation on
Company Indebtedness........ 19
Government Regulations........ 19
Uninsured Loss................ 20
Competition................... 20
Risks of Real Estate
Development................. 20
Risks of Investments in
Mortgages................... 21
Effect of Bankruptcy on
Leases...................... 21
Taxation of the Company as a
REIT.......................... 21
Tax Liabilities as a
Consequence of the Failure
to Qualify as a REIT........ 21
Other Tax Consequences........ 22
Anti-Takeover Effects of
Limitations on Size of
Holdings of Shares and other
Charter Provisions............ 22
Ownership Limit............... 22
Classified Board.............. 22
<CAPTION>
PAGE
-----
<S> <C>
Shares and Preferred Shares... 22
Business Combinations and
Control Share
Acquisitions................ 22
Advance Notice Provisions..... 23
Lack of Control Over Day-to-Day
Operations and Management of
the Properties................ 23
Changes in Policies............. 23
No Prior Market for Shares...... 24
Effect of Market Interest Rates
on Share Prices............... 24
Dilution........................ 24
THE COMPANY....................... 25
General......................... 25
Business Objectives and
Operating Strategies.......... 25
USE OF PROCEEDS................... 28
CAPITALIZATION.................... 29
DISTRIBUTIONS..................... 30
DILUTION.......................... 32
THE COMPANY'S SELECTED FINANCIAL
INFORMATION..................... 33
THE COMPANY'S MANAGEMENT'S
DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS
OF OPERATIONS................... 35
Overview........................ 35
Results of Operations........... 35
Forecast Results of
Operations.................... 35
Liquidity and Capital
Resources..................... 36
Funds from Operations........... 37
Inflation....................... 37
BUSINESS OF THE COMPANY AND ITS
PROPERTIES...................... 38
Overview........................ 38
The Properties.................. 38
Land Parcels.................... 48
Future AMCE Properties.......... 49
Planet Movies Properties........ 50
Theatrical Exhibition Industry
and Megaplex Theatres......... 50
Entertainment Themed Retail
Centers....................... 52
Governmental Regulations
Affecting the Properties...... 52
Insurance Coverage.............. 53
Competition..................... 53
Legal Proceedings............... 53
LEASES............................ 54
MANAGEMENT........................ 59
Trustees and Executive Officers
of the Company................ 59
Classification of Trustees...... 60
Committees of the Board......... 60
Compensation of Trustees........ 61
Executive Compensation.......... 61
Employment Agreements........... 62
Compensation Programs........... 62
Trustee Liability Limitation and
Indemnification............... 65
AMC ENTERTAINMENT INC............. 67
Business of AMCE................ 67
AMCE Properties................. 68
AMCE's Selected Consolidated
Financial Information......... 68
AMCE's Management's Discussion
and Analysis of Financial
Condition and Results of
Operations.................... 71
Liquidity and Capital
Resources..................... 78
Recently Issued Financial
Accounting Pronouncements..... 80
</TABLE>
i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
CERTAIN RELATIONSHIPS AND
TRANSACTIONS.................... 81
Purchase of Initial
Properties.................... 81
Option Properties............... 81
Right to Purchase............... 81
Employment Agreements........... 81
Purchase of Shares by Executive
Officers...................... 81
POLICIES AND OBJECTIVES WITH
RESPECT TO CERTAIN ACTIVITIES... 82
Investment Objectives and
Policies...................... 82
Dispositions; AMC's Right of
First Refusal and First
Offer......................... 82
Financing....................... 83
Working Capital Reserves........ 83
Conflict of Interest Policies... 83
Declaration of Trust and Bylaw
Provisions.................... 83
Other Policies.................. 84
CONFLICTS OF INTEREST............. 84
General......................... 84
Potential Conflicts of
Interest...................... 84
THE FORMATION TRANSACTIONS........ 86
Benefits to the Company and its
Officers and Trustees......... 86
Benefits to AMCE................ 87
PRINCIPAL SHAREHOLDERS OF THE
COMPANY......................... 88
RELATIONSHIP BETWEEN AMCE AND THE
COMPANY AFTER THE FORMATION
TRANSACTIONS.................... 88
DESCRIPTION OF SHARES OF
BENEFICIAL INTEREST............. 90
General......................... 90
Common Shares................... 90
Preferred Shares................ 91
Power to Issue Additional Shares
and Preferred Shares.......... 91
Restriction on Size of Holdings
of Shares..................... 91
<CAPTION>
PAGE
-----
<S> <C>
PROVISIONS OF MARYLAND LAW AND OF
THE COMPANY'S DECLARATION OF
TRUST AND BYLAWS................ 93
Classification and Removal of
the Trustees.................. 93
Business Combinations........... 94
Control Share Acquisitions...... 94
Amendment to the Declaration of
Trust......................... 95
Dissolution of the Company...... 95
Advance Notice of Trustee
Nominations and New
Business...................... 95
Anti-takeover Effect of Certain
Provisions of Maryland Law and
of the Declaration of Trust
and Bylaws.................... 96
Maryland Asset Requirements..... 96
SHARES AVAILABLE FOR FUTURE
SALE............................ 96
FEDERAL INCOME TAX CONSEQUENCES... 97
Taxation of the Company as a
REIT.......................... 97
Taxation of Holders of Shares... 103
Other Tax Consequences.......... 107
UNDERWRITING...................... 108
EXPERTS........................... 109
VALIDITY OF SHARES................ 110
INCORPORATION BY REFERENCE........ 110
GLOSSARY.......................... 111
INDEX TO FINANCIAL STATEMENTS..... F-1
</TABLE>
ii
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-11 (the "Form S-11") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Shares offered hereby, and AMCE has filed a Registration Statement on Form S-3
under the Securities Act (the "Form S-3") (the Form S-11 and the Form S-3 are
collectively referred to as the "Registration Statement"). This Prospectus,
which is part of the Registration Statement, does not contain all the
information set forth in the Registration Statement and the exhibits thereto.
For further information with respect to the Company and the Shares, reference is
made to the Registration Statement and such exhibits filed therewith. Any
statements contained herein concerning the provisions of any document are not
necessarily complete, and, in each instance, reference is made to the copy of
such document filed as an exhibit to the Registration Statement or otherwise
filed with the Commission. Each such statement is qualified in its entirety by
such reference.
For further information with respect to the Company, AMCE and the Shares,
reference is made to the Registration Statement and such exhibits, copies of
which may be examined without charge at, or copies obtained upon payment of
prescribed fees from, the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549 and will also be available for
inspection and copying at the regional offices of the Commission located at 7
World Trade Center, Suite 1300, New York, New York 10048 and at Citicorp Center,
Suite 1400, 500 West Madison Street, Chicago, Illinois 60661-2511. The
Commission also maintains a web site that contains reports, proxy and
information statements and other information regarding registrants that file
documents with the Commission, including the Company, and the address is
http://www.sec.gov. Moreover, application will be made to list the Shares on the
New York Stock Exchange (the "NYSE"). Accordingly, upon official notice of
issuance, periodic reports, proxy material, and other information concerning the
Company, when filed, may be inspected at the offices of the NYSE, Operations, 20
Broad Street, New York, New York 10005.
Following the closing of the Offering, the Company will be subject to the
informational requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and will, therefore, be required to file reports, proxy
and information statements and other information with the Commission pursuant to
the reporting requirements of Section 13(a) thereof, in addition to any other
legal or NYSE requirements. Such reports, statements and information can also be
inspected and copied at the Commission's offices and web site listed above.
AMCE is subject to the informational requirements of the Exchange Act, and,
in accordance therewith, files reports and other information with the
Commission. Such reports and other information can be inspected and copied at
prescribed rates at the public reference facilities mentioned above.
AMCE Common Stock and Convertible Preferred Stock are listed on the AMEX and
AMCE Common Stock is listed also on the Pacific Stock Exchange. AMCE's periodic
reports and proxy statements filed under the Exchange Act as well as other
information concerning AMCE can be requested at the American Stock Exchange, 86
Trinity Place, New York 10086 and at the Pacific Stock Exchange, 301 Pine
Street, Suite 1104, San Francisco, California 94104.
The Company intends to furnish its shareholders with annual reports
containing consolidated financial statements audited by its independent
certified public accountants and with quarterly reports containing unaudited
condensed consolidated financial statements for each of the first three quarters
of each fiscal year.
THIS PROSPECTUS CONTAINS FORWARD-LOOKING STATEMENTS RELATING TO THE FORECAST
RESULTS OF OPERATIONS OF THE COMPANY AND PLANS AND OBJECTIVES OF THE COMPANY AND
AMCE FOR FUTURE OPERATIONS. SUCH FORWARD-LOOKING STATEMENTS INVOLVE KNOWN AND
UNKNOWN RISKS, UNCERTAINTIES AND OTHER FACTORS THAT MAY CAUSE THE ACTUAL
RESULTS, PERFORMANCE OR ACHIEVEMENTS OF THE COMPANY OR AMCE TO BE MATERIALLY
DIFFERENT FROM THOSE EXPRESSED OR IMPLIED BY SUCH FORWARD-LOOKING STATEMENTS.
SEE "RISK FACTORS" BEGINNING ON PAGE 15 OF THIS PROSPECTUS FOR A DISCUSSION OF
MATERIAL RISKS RELEVANT TO AN INVESTMENT IN THE SHARES. NEITHER THE COMPANY NOR
AMCE UNDERTAKES ANY OBLIGATION TO RELEASE PUBLICLY THE RESULTS OF ANY FUTURE
REVISIONS IT MAY MAKE TO FORWARD-LOOKING STATEMENTS TO REFLECT EVENTS OR
CIRCUMSTANCES AFTER THE DATE HEREOF.
1
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial statements, and the notes thereto, appearing elsewhere
in this Prospectus. Unless otherwise indicated, the information contained in
this Prospectus assumes (i) an initial public offering price per Share of $20.00
(the mid-point of the range of estimated initial public offering prices set
forth on the front cover of this Prospectus); (ii) the consummation of the
Formation Transactions; and (iii) no exercise of the Underwriters'
over-allotment option. References to AMC Entertainment Inc. ("AMCE") and
American Multi-Cinema, Inc. ("AMC") include their consolidated subsidiaries
unless the context otherwise requires. See "Glossary" beginning on page 111 for
the definitions of certain terms used in this Prospectus.
THE COMPANY
The Company is being formed to capitalize on the opportunities created by
the development of destination entertainment and entertainment-related
properties including larger theatre complexes. The Company believes that
entertainment is emerging as an important and discrete sector of the retail real
estate industry and, as a result of its focus on properties in this sector, it
will have a competitive advantage in providing capital to operators of such
properties. The principal business strategy of the Company is to acquire and
develop a diversified portfolio of high-quality properties leased to
entertainment and entertainment-related business operators generally under
long-term triple net leases that require a tenant to pay substantially all
expenses associated with the operations of the leased property. The Company will
focus primarily on megaplex theatres and entertainment themed retail centers.
Megaplex theatres have at least 14 screens with predominantly stadium-style
seating (seating with an elevation between rows to provide unobstructed viewing)
and are generally equipped with amenities that significantly enhance the audio
and visual experience for the patron. The Company believes that the development
of megaplex theatres has accelerated the obsolescence of many existing movie
theatres by setting new standards for moviegoers, who have demonstrated their
preference for the more attractive surroundings, wider variety of films, better
customer service and more comfortable seating typical of megaplex theatres. As a
result of the significant capital commitment involved in building such
properties and the experience and industry relationships of the Company's
management, the Company believes that it will have opportunities to provide
capital to businesses that seek to develop and operate such properties but would
rather lease than own their real estate properties. The Company's ability to
finance the acquisition of such properties will enable it to grow and diversify
its asset base.
The Company's initial portfolio will consist of the Initial Properties
purchased from subsidiaries of AMCE for an aggregate purchase price of
approximately $248.8 million. The Initial Properties consist of twelve megaplex
theatres with an aggregate of 282 screens and 54,846 seats, each of which is
located in a large metropolitan market and has been constructed since May 1995
or is currently under construction. Four of the Initial Properties are among the
thirteen highest grossing theatres in the United States and each of the eight
operating Initial Properties is the highest grossing theatre in the local
geographic area in which it operates. The Company will also have options to
acquire any or all of the Option Properties for the cost to AMCE of developing
and constructing such property (estimated to aggregate $138.5 million if all the
Option Properties are purchased). The Option Properties are megaplex theatres
that will have an aggregate of 134 screens and 27,380 seats and are currently
under construction, with the last theatre expected to be completed and opened by
August 1998. The Initial Properties and the Option Properties represent all of
the AMCE-owned (or ground-leased) megaplex theatres with the exception of one
property that is not readily transferable to the Company. One of the Initial
Properties and three of the Option Properties have adjacent land parcels that,
if not under contract for sale or sold at the time of the related theatre
acquisition, may be purchased by the Company for an aggregate purchase price of
$9.6 million. The related land parcels, if acquired, may be developed by the
Company
2
<PAGE>
and leased or sold to third parties for development as restaurant or retail
sites that complement the megaplex theatre entertainment experience.
In addition, for a period of five years following the closing of the
Offering, the Company will have a right of first refusal and first offer to
purchase and lease back to AMC any megaplex theatre and related entertainment
property acquired or developed and owned (or ground-leased) by AMCE or its
subsidiaries, exercisable upon AMCE's intended disposition of such property.
This right to purchase is intended to give the Company access to new projects
owned and operated by AMCE and its subsidiares, thereby providing opportunities
for future growth, although AMCE will be free to own, develop and lease megaplex
theatres and related entertainment properties, subject only to the Company's
right of first refusal and first offer upon AMCE's intended disposition of any
such properties. The Company believes that there will also be additional
opportunities to develop and acquire similar high-quality entertainment and
entertainment-related properties for and from other operators, including Planet
Movies Company, L.P. ("Planet Movies"), a joint venture between AMCE and Planet
Hollywood International, Inc. ("Planet Hollywood").
The Company will lease all of the Initial Properties and, if acquired, the
Option Properties to AMC, and AMC will continue to operate the Properties. The
Properties will be leased to AMC pursuant to long-term triple net leases (the
"Leases") that require AMC to pay substantially all expenses associated with the
operation of such Properties, such as taxes and other governmental charges,
insurance, utilities, service, maintenance and any ground lease payments. All of
the Leases will provide for base rent with certain annual escalations and
percentage rent on revenues in excess of a baseline amount and will have primary
terms ranging from 13 to 15 years that may be extended upon the same terms and
conditions for four additional five-year periods at the option of AMC. The
Initial Properties are expected to generate aggregate initial annual rent of
approximately $26.1 million, which represents a 10.5% lease rate based on the
purchase price for such Properties. See "Leases."
Upon consummation of the Formation Transactions, the Company will have no
outstanding indebtedness. The Company is negotiating to obtain a $200 million
unsecured line of credit (the "Bank Credit Facility"), which will be used
primarily for the acquisition of additional entertainment and entertainment-
related properties, including the Option Properties and related land parcels,
and for general corporate purposes. See "The Company's Management's Discussion
and Analysis of Financial Condition and Results of Operations--Liquidity and
Capital Resources" and "Policies and Objectives With Respect to Certain
Activities--Financing."
SUMMARY RISK FACTORS
Prospective investors should carefully consider, among other factors, the
matters discussed under "Risk Factors" in this Prospectus prior to making an
investment decision regarding the Shares offered hereby. Such risk factors
include:
- The dependence on AMC, as the lessee of the Initial Properties and, if
acquired, the Option Properties, and AMCE, as the guarantor of AMC's
obligations under the Leases, for the Company's initial revenues and
ability to make distributions to its shareholders;
- Potential conflicts of interests between the Company and its affiliates
and AMCE and its affiliates, including the lack of arm's-length
negotiations with respect to the purchase price of, and the lease back
provisions for, the Properties and related land parcels;
- The Company's lack of operating history, management's lack of experience
in operating in accordance with the requirements for maintaining its
qualification as a REIT and the availability of suitable acquisition and
development opportunities;
- Actual Cash Available for Distribution (defined generally as net earnings
(loss) (computed in accordance with generally accepted accounting
principles ("GAAP")) of the Company plus
3
<PAGE>
depreciation and amortization and minus capital expenditures and principal
payments on indebtedness) may be insufficient to allow the Company to
maintain its proposed initial distribution rate of $1.60 per Share per
annum;
- Operating risks inherent in the entertainment industry that may affect the
operations of the Company's tenants;
- The dependence on certain key personnel, particularly Messrs. Robert L.
Harris, David M. Brain and Peter C. Brown;
- The inability to obtain any or all consents or waivers which are required
to transfer the Initial Properties to the Company and/or lease the Initial
Properties to AMC;
- Certain real estate investment risks that may affect the Company's
properties, the value of the Shares and the Company's ability to make
distributions to shareholders, including, without limitation, (i) the
general economic climate; (ii) government regulations on the environment,
zoning, public access and taxes; (iii) interest rates and the availability
of debt financing; and (iv) the possibility that a property could sustain
an uninsured loss;
- Absence of limitation on the amount of indebtedness the Company can incur;
- The taxation of the Company as a regular corporation if it fails to
qualify as a REIT;
- Anti-takeover effect of limiting actual or constructive ownership of
Shares of the Company by a single person to 9.8% of the outstanding
shares, subject to certain specified exceptions, to ensure compliance with
certain requirements related to qualification of the Company as a REIT and
certain other provisions contained in the organizational documents of the
Company, any of which may have the effect of delaying, deferring or
preventing a transaction or change in control of the Company that might
involve a premium price for the Shares or otherwise be in the best
interests of the Company's shareholders;
- The Company's lack of control over the day-to-day operations and
management of the Properties;
- The ability of the Company to make changes in its investment and financing
policies without the approval of its shareholders;
- The lack of a prior market for the Shares and the potential impact of
market interest rate increases and other factors on the trading prices of
the Shares; and
- The immediate dilution of $1.87 per Share in the net tangible book value
per Share of the Shares purchased in the Offering.
For a discussion of the Company's transactions with related parties and the
compensation therefor, see "Certain Relationships and Transactions."
4
<PAGE>
BUSINESS OBJECTIVES AND STRATEGIES
The Company's business objectives are to achieve predictable and increasing
Funds from Operations (as hereinafter defined) per Share and enhance shareholder
value by acquiring and developing a diversified portfolio of high-quality
properties leased to entertainment and entertainment-related business operators
generally under long-term triple net leases. The Company intends to achieve such
objectives through the implementation of the following strategies:
GROWTH STRATEGY
- Acquire the Option Properties pursuant to the option agreements between
the Company and subsidiaries of AMCE and the current owner/lessor of
certain of the Option Properties (the "Option Agreements") and lease back
the Option Properties to AMC;
- Purchase additional AMC-operated properties pursuant to a right of first
refusal and first offer to purchase agreement between the Company and AMCE
(the "AMCE Right to Purchase Agreement");
- Develop or acquire additional megaplex theatres leased to other qualified
theatrical exhibitors and Planet Movies-operated properties to the extent
possible; and
- Develop or acquire entertainment themed retail centers ("ETRCs") and
single-tenant out-of-home location based entertainment and
entertainment-related properties.
OPERATING STRATEGY
- Purchase single-tenant properties supported by long-term leases or
multi-tenant properties that are substantially leased to minimize the
risks inherent in initial leasing;
- Structure leases, where possible, on a triple net or similar basis under
which the tenants bear the principal portion of the financial and
operational responsibility for the properties;
- Provide in the leases for contractual increases in rent and/or percentage
rent based upon a percentage of a tenant's gross sales over a
pre-determined level;
- Develop and maintain long-term working relationships with theatre,
restaurant, retail and other entertainment-related business operators; and
- Diversify the Company's asset base by property type and tenant.
CAPITALIZATION STRATEGY
- Employ moderate leverage, pursuant to the Bank Credit Facility or
otherwise, to fund additional acquisitions;
- Maintain a debt to total market capitalization ratio (i.e., total debt of
the Company as a percentage of equity market value plus total debt) of
less than 50%; and
- Pay regular distributions and periodically raise distributions as Funds
from Operations per Share increases.
There can be no assurances that the Company will be able to achieve its
business objectives or implement the listed strategies.
5
<PAGE>
BUSINESS OF THE COMPANY AND ITS PROPERTIES
THE PROPERTIES
The Company will enter into a purchase agreement to acquire the Initial
Properties from subsidiaries of AMCE for an aggregate purchase price of
approximately $248.8 million, and option agreements to purchase any or all of
the Option Properties for an aggregate estimated purchase price of $138.5
million. One of the Initial Properties and three of the Option Properties have
adjacent land parcels that, if not under contract for sale or sold at the time
of the related theatre acquisition, may be purchased by the Company for an
aggregate purchase price of $9.6 million. The Initial Properties and the Option
Properties represent all of the AMC-owned (or ground-leased) megaplex theatres
with the exception of one property that is not readily transferrable to the
Company. Each of the Properties is located in a large metropolitan market and
has been constructed since May 1995 or is currently under construction. Four of
the Initial Properties are among the thirteen highest grossing theatres in the
United States and each of the eight operating Initial Properties is the highest
grossing theatre in the local geographic area in which it operates. In addition,
the Company will have a right of first refusal and first offer to purchase any
megaplex theatre and related entertainment property acquired or developed and
owned (or ground-leased) by AMCE or its subsidiaries, exercisable for a period
of five years following the closing of the Offering upon AMCE's intended
disposition of such property. The Company will acquire a 100% interest in each
of the Properties (or related ground leases, as applicable) purchased.
THE INITIAL PROPERTIES
Certain information regarding each of the Initial Properties is set forth
below:
<TABLE>
<CAPTION>
BUILDING
METROPOLITAN NO. OF NO. OF (GROSS OPENING
THEATRE NAME AREA SCREENS SEATS SQ. FT.) DATE RANKING(1)
- ------------------------ ------------------- ------------- ----------- --------- ----------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Grand 24................ Dallas, TX 24 5,067 98,175 5/95 6
Mission Valley 20(2).... San Diego, CA 20 4,361 84,352 12/95 4
Promenade 16(3)......... Los Angeles, CA 16 2,860 129,822 3/96 37
Ontario Mills 30........ Los Angeles, CA 30 5,496 131,534 12/96 11
Lennox 24(2)............ Columbus, OH 24 4,412 98,261 12/96 13
West Olive 16........... St. Louis, MO 16 2,817 60,418 4/97 N/A
Studio 30............... Houston, TX 30 6,032 136,154 5/97 N/A
Huebner Oaks 24......... San Antonio, TX 24 4,400 96,004 6/97 N/A
First Colony 24(2)...... Houston, TX 24 5,098(4) 107,690 12/97(5) N/A
Oak View 24(2).......... Omaha, NE 24 5,098(4) 107,402 12/97(5) N/A
Leawood Town Center 20.. Kansas City, MO/KS 20 2,995(4) 75,224 1/98(5) N/A
South Barrington
30(6)................. Chicago, IL 30 6,210(4) 130,891 2/98(5) N/A
--- ----------- ---------
282 54,846 1,255,927
--- ----------- ---------
--- ----------- ---------
</TABLE>
- --------------
(1) Among United States theatres based on ticket revenues for the period from
January 1 through October 16, 1997 according to daily grosses collected from
participating exhibitors and published to subscribers by Entertainment Data
Incorporated. No ranking is provided for those theatres that were not
operational during the entire period.
6
<PAGE>
(2) Third party ground leased Property. Although the Company will become the
tenant under the ground leases and assume responsibility for performing the
obligations thereunder in the Formation Transactions, pursuant to the Leases
AMC will have responsibility for performing the Company's obligations under
such ground leases.
(3) The theatre occupies 60,000 square feet. See "Business of the Company and
its Properties--Initial Property Descriptions--Promenade 16."
(4) Estimate based on construction plans.
(5) Anticipated opening date. The Company will pay the purchase price and AMC
will commence paying rent under the applicable Lease with the Company on the
date the Property is acquired by the Company, which will occur on the
earlier of the actual opening date of the megaplex theatre and the first day
of the month following the anticipated opening date indicated.
(6) The Company will acquire one land parcel totaling approximately 2.1 acres
adjacent to this theatre if such parcel is not under contract for sale or
sold by AMC at the time of the Formation Transactions. See "Business of the
Company and its Properties--Land Parcels." The Company will not have the
right to acquire other land parcels adjacent to this theatre because of the
uncertainty of sewer capacity to serve such parcels.
THE OPTION PROPERTIES
Certain information regarding each of the Option Properties, including the
purchase price payable by the Company therefor, is set forth below:
<TABLE>
<CAPTION>
ESTIMATED BUILDING ANTICIPATED ESTIMATED
METROPOLITAN NO. OF NO. OF (GROSS SQ. OPENING PURCHASE PRICE
THEATRE NAME AREA SCREENS SEATS FT.) DATE(1) (IN THOUSANDS)(2)
- -------------------- ------------ ------------- ----------- ----------- ------------- -----------------
<S> <C> <C> <C> <C> <C> <C>
Gulf Pointe
30(3)(4).......... Houston, TX 30 6,008 130,891 12/97 $ 27,000
Cantera 30(4)....... Chicago, IL 30 6,210 130,757 2/98 34,400
Mesquite 30(3)(4)... Dallas, TX 30 6,008 130,891 3/98 23,500
Hampton Town Center
24(3)............. Norfolk, VA 24 5,098 107,396 4/98 26,100
Livonia 20.......... Detroit, MI 20 4,056 85,688 8/98 27,500
--- ----------- ----------- -----------------
134 27,380 585,623 $ 138,500
--- ----------- ----------- -----------------
--- ----------- ----------- -----------------
</TABLE>
- --------------
(1) If the Company acquires an Option Property, the Company will pay the
purchase price and AMC will commence paying rent under the applicable Lease
with the Company on the date such Option Property is acquired by the
Company, which will not occur prior to the actual opening date of the
megaplex theatre.
(2) Purchase prices are estimated but are not expected to materially change. The
actual purchase price for each Option Property will equal the cost to AMC of
developing and constructing such Property at the time of acquisition by the
Company.
(3) AMC currently leases such Properties from a third party owner/lessor. The
Company will have an option to acquire such Properties from the
owner/lessor. Such properties will be acquired without representation or
warranty by, or recourse to, the owner/lessor and the Company will be
responsible for all transaction costs.
7
<PAGE>
(4) The Company will have the option to acquire the land parcels adjacent to
this theatre if such land parcels are not under contract for sale or sold at
the time of the related theatre acquisition. See "Business of the Company
and its Properties--Land Parcels."
The Company will lease to AMC the Option Properties, if acquired, pursuant
to Leases on substantially the same terms and conditions as the Leases for the
Initial Properties, including annual rent escalations and percentage rent on
revenues in excess of a baseline amount. See "Leases." The initial annual rental
rate for each Option Property will be equal to 10.5% of the purchase price.
Using the 10.5% lease rate calculation and the estimated purchase prices, the
Company believes that the initial annual rent for each Option Property, if
acquired, will be: (a) Gulf Pointe 30--$2.8 million; (b) Cantera 30--$3.6
million; (c) Mesquite 30--$2.5 million; (d) Hampton Town Center 24--$2.7
million; and (e) Livonia 20--$2.9 million. Total initial annual rent for the
Option Properties, if acquired, will be approximately $14.5 million.
FUTURE AMCE PROPERTIES
It is anticipated that AMCE or its subsidiaries will acquire or develop
additional entertainment or entertainment-related properties in the future. The
Company and AMCE will enter into the AMCE Right to Purchase Agreement whereby
the Company will have a right of first refusal and first offer to acquire and
lease back to AMC any megaplex theatre and related entertainment property
acquired or developed and owned (or ground-leased) by AMCE or its subsidiaries,
exercisable for a period of five years following the closing of the Offering
upon AMCE's intended disposition of such property. The purchase price and the
initial annual rental rate on each property leased back to AMC will be
determined through the right of first refusal and first offer process at the
time of such acquisition and lease back.
PLANET MOVIES PROPERTIES
In July 1997, AMCE and Planet Hollywood announced the formation of a joint
venture to develop and operate unique, integrated movie-going, dining and retail
shopping complexes to be branded "Planet Movies by AMC" that the Company
believes will typically aggregate 200,000 square feet. Although currently there
are no Planet Movies complexes in operation or under construction, the Company
anticipates working closely with Planet Movies in evaluating potential Planet
Movies locations, including the acquisition and development of property by the
Company and the leasing of such property to Planet Movies, although neither
party is obligated to do so. The development and rental terms of any such
properties will be negotiated between the Company and Planet Movies at the time
that such transaction occurs. In addition, certain of the Properties may be
operated by AMC under the "Planet Movies by AMC" name in the future.
ENTERTAINMENT THEMED RETAIL CENTERS
ETRCs are generally large multi-tenant retail developments that incorporate
elements such as megaplex theatres, restaurants, book and/or music superstores,
interactive entertainment venues and other specialty retail that is oriented to
entertainment or leisure time activities. The Company believes that the most
important component of an ETRC is a megaplex theatre due to its ability to
generate substantial customer traffic to the site. Such centers typically
attempt to provide a family entertainment experience by creating an atmosphere
of fun and excitement. The Company believes that ETRCs broaden the traditional
retail shopping concept and attract a greater number of customers to spend more
time and money at a single location. The Company also believes that access to
capital in this developing market is generally limited for operators other than
the largest entertainment companies. As a result of the significant capital
commitment involved in building such properties and the experience and
relationships of the Company's management, the Company believes that it will
have opportunities to provide capital to businesses that seek to develop and
operate such properties but would rather lease than own their real estate
properties. The Company's ability to finance the acquisition and development of
such properties will enable it to grow and diversify its asset base. See "The
Company--Business Objectives and Operating Strategies" and "Business of the
Company and its Properties--Entertainment Industry and Properties."
8
<PAGE>
LEASES
Concurrently with the Company's acquisition of the Initial Properties and,
if acquired, the Option Properties, the Company will lease each such Property to
AMC pursuant to a Lease. AMCE will guarantee AMC's obligations under each Lease.
The Leases will have initial terms ranging from 13 to 15 years (the "Fixed
Term") and may be extended upon the same terms and conditions for four
additional five-year terms (each, an "Extended Term") at the option of AMC. The
Leases will be triple net leases that require AMC to pay substantially all
expenses associated with the operation of the Properties, such as taxes and
other governmental charges, insurance, utilities, service, maintenance and any
ground lease payments. Each Lease will require that, for a specified period, AMC
operate the leased Property only as a movie theatre and for activities
incidental thereto.
The rent schedules under the Leases are expected to provide for a relatively
stable source of cash flow and opportunities to participate in future growth in
revenues experienced by AMCE and its subsidiaries. The rent for the first year
for each Property under the Leases will be initially set at a fixed amount and
will be increased each year by the annual percentage increase in the Consumer
Price Index ("CPI"), not to exceed 2%, times the base rent applicable to that
Property for the preceding year (the "Base Rent Escalation"). In addition, AMC
will pay percentage rent on revenues in excess of a baseline amount ("Annual
Percentage Rent"). However, the Company does not expect to receive any
percentage rent for at least five years. The initial annual rent for each
Initial Property will be (a) Grand 24 -- $2.0 million; (b) Mission Valley 20 --
$1.7 million; (c) Promenade 16 -- $3.0 million; (d) Ontario Mills 30 -- $2.7
million; (e) Lennox 24 -- $1.4 million; (f) West Olive 16 -- $1.9 million; (g)
Studio 30 -- $2.8 million; (h) Huebner Oaks 24 -- $1.8 million; (i) First Colony
24 -- $2.0 million; (j) Oak View 24 -- $1.8 million; (k) Leawood Town Center 20
- -- $1.7 million; and (l) South Barrington 30 -- $3.6 million. Total initial
annual rent for the Initial Properties will be approximately $26.1 million.
During each Fixed Term, certain obligations, including payment obligations,
of AMC under each Lease will be cross-defaulted to each of the other Leases
until AMCE's senior debt obligations or corporate credit rating becomes rated
investment grade or AMC's rent payments to the Company represent less than 50%
of the Company's rental income for any fiscal quarter. The Company will have
general recourse to AMC under the Leases and to AMCE under its guarantee of
AMC's obligations under the Leases, but AMC's payment obligations under such
Leases and AMCE's obligations under its guarantees will not be secured by any
assets of AMC or AMCE.
Neither the Leases nor any of the other agreements entered into in
connection with the Formation Transactions prohibits or otherwise restricts the
ability of the Company to purchase properties from, or lease properties to,
parties other than AMCE, AMC or any of their affiliates or the ability of AMCE,
AMC or any of their affiliates to lease properties from parties (domestic or
foreign) other than the Company. Pursuant to the Leases, AMC will have a right
of first refusal and first offer to acquire any Property or any interest in an
entertainment or entertainment-related property acquired or developed by the
Company and operated by AMC. See "Leases" for a more detailed discussion of the
terms and conditions of the Leases.
9
<PAGE>
CONFLICTS OF INTEREST AND BENEFITS TO CERTAIN PERSONS
Several conflicts of interest exist on the part of the Company, its trustees
and officers and AMCE, AMC and their respective directors and officers. Such
conflicts include a trustee of the Company being affiliated with AMCE, the lack
of arms' length negotiations with respect to the purchase price of, and the
lease back provisions for, the Properties and the potential for future conflicts
arising from the Leases, the Option Agreements, the AMCE Right to Purchase
Agreement and other agreements between the Company and AMCE and their
affiliates. See "Risk Factors -- Conflicts of Interest" and "Conflicts of
Interest."
In addition, AMCE, the Company and its officers and trustees will receive
certain benefits as a result of the Formation Transactions. The benefits to the
Company and its officers and trustees include the ability to access capital
markets, employment agreements with the Company's executive officers, and the
sale of Shares and granting of restricted Shares and options to the Company's
executive officers and trustees. The benefits to AMCE include the receipt of
approximately $248.8 million in cash in exchange for the twelve Initial
Properties, the potential to receive up to approximately $61.9 million in cash
in exchange for two of the five Option Properties and the repayment of certain
indebtedness with such proceeds and the ability to expand its marketing
activities. See "The Formation Transactions."
DISTRIBUTIONS
The Company intends to pay regular quarterly distributions to its
shareholders. The Board of Trustees (the "Board") of the Company, in its sole
discretion, will determine the actual distribution rate based on the Company's
actual results of operations, economic conditions, tax considerations (including
those related to maintaining REIT status, such as the requirement that a REIT
currently distribute at least 95% of its taxable income to shareholders) and
other factors. The first distribution, for the period ending December 31, 1997,
is expected to equal a pro rata share of the anticipated initial quarterly
distribution of $0.40 per Share. On an annualized basis, the anticipated
distribution is $1.60 per Share, or approximately 7.6% to 8.4% of the estimated
range of the initial public offering price per Share. The Company does not
expect to change its estimated initial distribution per Share if the
Underwriters' over-allotment option is exercised. See "The Formation
Transactions."
The expected distribution represents approximately 96.6% of the estimated
Cash Available for Distribution for the twelve months ending November 30, 1998.
The Company intends to maintain its approximate initial distribution amount for
at least 12 months following the closing of the Offering unless actual results
of operations, economic conditions or other factors differ from the assumptions
used in calculating the estimate. The Company estimates that approximately 20%
to 25% of the anticipated initial annual distribution to shareholders will
represent a return of capital for federal income tax purposes and that the
Company would generally be required to distribute $16.2 million, or $1.17 per
Share, during the twelve months ending November 30, 1998 in order to maintain
its status as a REIT. If actual Funds from Operations or taxable income vary
from the estimated amounts, the percentage of the anticipated initial annual
distribution representing a return of capital may vary substantially. See
"Distributions" for the calculation of estimated Cash Available for Distribution
and related assumptions.
10
<PAGE>
SUMMARY SELECTED FINANCIAL INFORMATION
The following table sets forth summary selected historical, pro forma and
forecast financial information for the Company. The pro forma balance sheet
information is presented as if the Formation Transactions had occurred on
September 30, 1997 and therefore incorporates certain assumptions that are set
forth in the Company's Pro Forma Balance Sheet. The pro forma information does
not purport to represent what the Company's financial position actually would
have been had the Formation Transactions, in fact, occurred on such date or to
project the Company's financial position at any future date. The forecast
operating information is presented as if the Formation Transactions had occurred
as of December 1, 1997 and therefore incorporates certain assumptions that are
set forth in the Company's Forecast Statement of Operations. The historical, pro
forma and forecast financial information set forth below should be read in
conjunction with "The Company's Management's Discussion and Analysis of
Financial Condition and Results of Operations."
<TABLE>
<CAPTION>
FORECAST TWELVE
MONTHS ENDING
NOVEMBER 30, 1998
----------------------
(IN THOUSANDS, EXCEPT
PER SHARE DATA)
<S> <C>
STATEMENT OF OPERATIONS DATA:
Rental income(1)........................................................... $ 25,382
General and administrative expenses(2)..................................... 2,209
Depreciation(3)............................................................ 5,239
Interest expense, net...................................................... 829
--------
Net earnings............................................................... $ 17,105
--------
--------
Net earnings per Share..................................................... $ 1.23
--------
--------
Distributions declared and paid............................................ $ 22,176
Distributions declared and paid per Share.................................. $ 1.60
Weighted average Shares outstanding(4)..................................... 13,860
</TABLE>
<TABLE>
<CAPTION>
HISTORICAL AUGUST
29, 1997
PRO FORMA -------------------
SEPTEMBER 30, 1997
--------------------
(IN THOUSANDS)
<S> <C> <C>
BALANCE SHEET DATA:
Real estate owned, at cost................... $ 249,856 $ --
Total assets................................. 252,450 2
Debt outstanding under the Bank Credit
Facility................................... -- --
Total shareholders' equity................... 252,450 2
</TABLE>
11
<PAGE>
<TABLE>
<CAPTION>
FORECAST
TWELVE MONTHS
ENDING
NOVEMBER 30, 1998
-------------------
<S> <C>
OTHER FINANCIAL DATA:
Net earnings......................................................... $ 17,105
Add: Depreciation.................................................... 5,239
--------
Funds from Operations(5)............................................. 22,344
Add: Amortization.................................................... 605
--------
Cash Available for Distribution(6)................................... $ 22,949
--------
--------
</TABLE>
- --------------
(1) Represents estimated rental income from AMC recorded in accordance with the
terms of the Leases as if the Initial Properties are leased commencing with
the beginning of the period or, if later, the anticipated opening date. The
Company will lease the Initial Properties to AMC under the Leases, which are
guaranteed by AMCE.
(2) Represents management's estimates of general and administrative expenses.
(3) Represents depreciation of the Initial Properties over a 40-year period
following the assumed acquisition dates.
(4) Weighted average Shares outstanding include Shares sold in the Offering and
restricted Shares granted pursuant to the Company's Restricted Share Program
as if such Shares were outstanding for the entire period.
(5) The Company believes Funds from Operations is helpful to investors as a
measure of the performance of an equity REIT because, along with cash flows
from operating activities, investing activities and financing activities, it
provides investors with an understanding of the ability of the Company to
incur and service debt and make capital expenditures. Funds from Operations
is calculated as net earnings (loss) (computed in accordance with GAAP),
excluding significant non-recurring items, gains (or losses) from debt
restructuring and sales of property, plus real estate related depreciation.
The Company computes Funds from Operations in accordance with standards
established by the White Paper on Funds from Operations approved by the
National Association of Real Estate Investment Trusts ("NAREIT") Board of
Governors in March 1995, which may differ from the methodology for
calculating Funds from Operations utilized by other equity REITs, and,
accordingly, the Company's Funds from Operations may not be comparable to
the Funds from Operations of such other REITs. See "The Company's
Management's Discussion and Analysis of Financial Condition and Results of
Operations--Funds from Operations." Funds from Operations should not be
considered as an alternative to net earnings (computed in accordance with
GAAP) as an indication of the Company's financial performance or to cash
flows from operating activities (computed in accordance with GAAP) as a
measure of the Company's liquidity, nor is it indicative of funds available
to fund the Company's cash needs, including its ability to make
distributions.
(6) Cash Available for Distribution means net earnings plus depreciation and
amortization and minus capital expenditures and principal payments on
indebtedness. No capital expenditures or principal payments on indebtedness
are included for the periods indicated.
12
<PAGE>
AMC ENTERTAINMENT INC.
AMCE is one of the leading theatrical exhibition companies in North America
measured by revenues. In the fiscal year ended April 3, 1997, AMCE's
consolidated revenues were $749,597,000. As of October 2, 1997, AMCE operated
222 theatres with an aggregate of 2,048 screens located in 22 states, the
District of Columbia, Portugal and Japan. Approximately 73% of AMCE's domestic
screens are located in areas among the 20 largest "Areas of Dominant Influence"
(television market areas as defined by Arbitron Company). AMCE is an industry
leader in the development and operation of megaplex and multiplex theatres,
primarily in large metropolitan markets.
AMCE and its predecessor have operated movie theatres since 1920. AMCE
currently operates one of the largest motion picture exhibition circuits in
North America and continually upgrades its theatre circuit by opening new
theatres (primarily megaplex theatres) and adding new screens to existing
theatres. Since April 1995, AMCE has opened 31 new theatres with 618 screens,
representing 30.2% of its current number of screens, and has added 79 screens to
existing theatres. The Company is acquiring as Initial Properties all of the
AMCE-owned megaplex theatres and is acquiring or has the option to acquire as
Initial Properties or Option Properties all of the AMCE-owned (or ground-leased)
megaplex theatres under construction with the exception of one property that is
not readily transferrable. See "AMC Entertainment Inc.--AMCE Properties."
Certain financial information regarding AMCE is contained under "AMC
Entertainment Inc." and AMCE's Consolidated Financial Statements included
elsewhere in this Prospectus. AMCE owns 50% of Planet Movies and does not own
any Shares of the Company.
THE OFFERING
<TABLE>
<CAPTION>
Shares offered hereby........................ 13,680,000(1)
<S> <C>
Shares to be outstanding after the 13,860,100(2)
Offering....................................
Use of proceeds.............................. Approximately $248.8 million of the net
proceeds of the Offering will be used by the
Company to purchase the Initial Properties
from subsidiaries of AMCE. The remaining net
proceeds and any net proceeds from the
exercise of the Underwriters' over-allotment
option will be used by the Company to pay
expenses of the Formation Transactions, to
make loans pursuant to the Share Purchase
Program, to acquire the land parcel related
to an Initial Property, for the future
acquisition of additional properties or for
general business purposes. See "Use of
Proceeds."
Proposed NYSE Symbol......................... EPR
</TABLE>
- --------------
(1) Excludes 80,000 Shares that will be purchased by Robert L. Harris and 40,000
Shares that will be purchased by David M. Brain, each at the initial public
offering price, pursuant to the Company's Share Purchase Program. See
"Management--Compensation Programs."
(2) Includes 60,000 restricted Shares granted pursuant to the Company's
Restricted Share Program and 100 shares that were issued at the time of the
formation of the Company and excludes options to purchase 90,000 Shares
granted pursuant to the Company's Share Option Program. See
"Management--Compensation Programs."
13
<PAGE>
TAX STATUS OF THE COMPANY
The Company plans to make an election to be taxed as a REIT under the
Internal Revenue Code of 1986, as amended (the "Code"), commencing with its
taxable year ending December 31, 1997. In the opinion of Sullivan & Cromwell,
commencing with such taxable year, the Company will be organized in conformity
with the requirements for qualification as a REIT, and its proposed method of
operation will enable it to meet the requirements for qualification and taxation
as a REIT under the Code. The opinion of Sullivan & Cromwell is based upon
certain representations received from the Company. As a REIT, the Company
generally will not be taxed on income it currently distributes to its
shareholders so long as it distributes at least 95% of its taxable income
currently. REITs are subject to a number of organizational and operational
requirements. Even if the Company continues to qualify for taxation as a REIT,
the Company may be subject to certain federal income taxes and to certain state
and local taxes on its income and property. See "Risk Factors--Taxation of the
Company as a REIT" and "Federal Income Tax Consequences."
14
<PAGE>
RISK FACTORS
Prospective investors should carefully consider, among other factors, the
matters described below prior to making an investment decision regarding the
Shares offered hereby. Each of these factors could adversely affect the ability
of the Company to make expected distributions to shareholders.
DEPENDENCE ON AMC AND AMCE FOR THE COMPANY'S INITIAL REVENUES AND
ABILITY TO MAKE DISTRIBUTIONS
AMC will be the lessee of all the Initial Properties and, if acquired, the
Option Properties. The Company's initial revenues, and its ability to make
distributions to its shareholders, will depend on rental payments by AMC under
the Leases and by AMCE under the guarantees of AMC's obligations under the
Leases. The Company believes that AMC and AMCE have sufficient assets and income
to enable them to satisfy their obligations under the Leases and guarantees at
this time; however, there can be no assurance that AMC or AMCE will have such
assets or income in the future.
Due to the Company's initial dependence on AMC's rental payments as the
principal source of the Company's revenues, the Company may be limited in its
ability to fully enforce its rights under the Leases or to terminate the Leases.
Failure by AMC to materially comply with the terms of a Lease could require the
Company to find another lessee to lease such Property since, as a REIT, the
Company is generally precluded from operating its properties. In the event of a
default by AMC, AMCE or another lessee, there could be a decrease or cessation
of rental payments or, in the case of ground-leased Properties, the Company
would be required to make the ground lease payments or lose the applicable
Property. Moreover, there can be no assurance that AMC will elect to renew a
lease upon expiration of its initial term, which would also force the Company to
find a suitable replacement lessee. In either circumstance, the Company may be
unable to locate a suitable lessee at similar rental rates, which would have the
effect of reducing the Company's Cash Available for Distribution. See "Leases,"
"AMC Entertainment Inc." and "Conflicts of Interest."
As of October 2, 1997, AMCE had $479.5 million of bank and other
indebtedness and $56.3 million in capital lease obligations. The net proceeds to
be received by AMCE as the purchase price for the Initial Properties will be
available to AMCE to reduce outstanding indebtedness under AMCE's $425 million
credit facility (the "AMCE Credit Facility"), which was amended and restated as
of April 10, 1997. To the extent net proceeds are applied to reduce indebtedness
under the AMCE Credit Facility, the amount available for borrowing by AMCE under
the AMCE Credit Facility will be increased and available to AMCE for future
expansion. AMCE also has significant rental obligations under operating leases.
See Note 8 of the Notes to AMCE's Consolidated Financial Statements and "AMC
Entertainment Inc.--AMCE's Management's Division and Analysis of Financial
Condition and Results of Operations--Liquidity and Capital Resources." AMCE
anticipates that it will require financing in addition to the unused commitment
under the AMCE Credit Facility, as its current expansion program involves
planned capital expenditures which equal or exceed those made over the past few
years. In order to satisfy AMCE's obligations under its outstanding indebtedness
and its leases, including the Leases, AMCE will be required to generate
substantial operating cash flow. The ability of AMCE to meet debt service,
rental and other obligations will depend on the future performance of AMCE,
which will be subject to prevailing economic conditions and to financial,
business and other factors beyond the control of AMCE. As with other exhibitors,
AMCE's smaller multiplex theatres are subject to being rendered obsolete through
the introduction of new, competing megaplex theatres. In addition, the value of
the Shares and the cost of the Company's borrowings may be adversely affected by
any negative change to AMCE's credit rating. See "AMC Entertainment Inc." and
"Business of the Company and its Properties--Competition."
15
<PAGE>
CONFLICTS OF INTEREST
Several conflicts of interest exist on the part of the Company and its
trustees and officers and AMCE and its directors and officers. The following
descriptions set forth the principal conflicts of interest, including the
relationships through which they arise, and the policies and procedures
implemented by the Company to address those conflicts.
AFFILIATED TRUSTEES. Peter C. Brown is the Chairman of the Board of the
Company and President, Chief Financial Officer and Director of AMCE. As of
October 27, 1997, Mr. Brown owned options to purchase 159,000 shares of AMCE
common stock. As a result of the provision in the Company's bylaws that subjects
contracts and transactions between the Company and any of its trustees to the
interested director provision of the Maryland General Corporation Law (the
"MGCL"), it is not expected that the Company's current Chairman of the Board
will vote on transactions between the Company and AMCE or Planet Movies. The
Company's Declaration of Trust does not require that a specified number of
trustees be independent trustees. See "Management," "Policies and Objectives
with Respect to Certain Activities--Declaration of Trust and Bylaw Provisions"
and "Relationship Between AMCE and the Company after the Formation
Transactions."
LESSEES OTHER THAN AMC. Although the Company will lease all of its Initial
Properties and, if acquired, the Option Properties to AMC, the Company believes
that there will be additional opportunities to develop and acquire similar
high-quality entertainment and entertainment-related properties for and from
other operators, including Planet Movies, and contemplates entering into leasing
transactions with operators other than AMC. However, the fact that AMC is the
lessee on all of the Initial Properties and, if acquired, the Option Properties
and that Peter C. Brown is affiliated with AMCE may cause some competitors of
AMCE to require additional assurances from the Company with respect to both the
confidentiality of their financial and operating information and the Company's
evaluation of such potential tenant's credit.
PURCHASE PRICE OF THE PROPERTIES. The purchase price of each Property was
determined by management of both AMCE and the Company as the cost of developing
and constructing such Property. The purchase price of the land parcels
associated with certain of the Properties was determined by management of both
AMCE and the Company based on an estimated market value for such parcels less
estimated marketing and selling costs. The estimated market value was based on
an evaluation of comparable properties in each of the markets in which such land
parcels are located in consultation with local real estate brokers. It is
possible that if such valuations had been determined on an arm's-length basis,
or had been the subject of independent valuations or appraisals, the sum of the
values of the Properties and the related land parcels might have been greater or
lower than the sum of the values determined by the management of AMCE and the
Company.
TERMS OF LEASES. The Lease payment obligations with respect to the
Properties were determined by management of AMCE and management of the Company
and were not negotiated on an arm's-length basis. However, the lease payments
that AMC is obligated to make are based on an initial lease rate of 10.5%, which
the Company believes reflects the fair market rental value of the Properties to
the Company based on rates for comparable triple net lease transactions. It is
possible that if such terms had been determined on an arms' length basis, the
initial lease rate may have been higher or lower than the rate determined by
management of AMCE and the Company.
POTENTIAL FOR FUTURE CONFLICTS. After the Offering, AMCE and the Company
may be in situations where they have differing interests resulting from the
significant ongoing relationship between the companies. Such situations include
the fact that after the Offering (i) AMC will lease, pursuant to the Leases
guaranteed by AMCE, the Initial Properties, which will be owned by the Company;
(ii) the Company will have options to acquire the Option Properties and related
land parcels that are owned by AMC and a right of first refusal and first offer
to purchase any megaplex theatre and related entertainment
16
<PAGE>
properties acquired or developed and owned (or ground-leased) by AMCE or its
subsidiaries, exercisable for a period of five years following the closing of
the Offering upon AMCE's intended disposition of such property; (iii) AMC will
lease, pursuant to Leases guaranteed by AMCE, any acquired Option Property from
the Company; and (iv) AMC will have a right of first refusal and first offer to
acquire any Property or any interest in an entertainment or
entertainment-related property acquired or developed by the Company and operated
by AMC. Accordingly, the potential exists for disagreements as to the compliance
with these agreements. Additionally, the possible need by the Company, from time
to time, to finance, refinance or effect a sale of any of the properties
operated by AMC may result in a need to modify the lease with AMC with respect
to such property. Any such modification will require the consent of AMC, and the
lack of consent from AMC could adversely affect the Company's ability to
consummate such financings or sales. Because of the relationships described
above, there exists the risk that the Company will not achieve the same results
in its dealings with AMCE or from its operations that it might achieve if such
relationships did not exist. Similar potential for future conflicts exist with
respect to Planet Movies as a result of AMCE's participation in such joint
venture or otherwise.
LACK OF OPERATING HISTORY
The Company has been recently organized and has no operating history. There
can be no assurance that the Company will be able to generate sufficient revenue
from operations to make anticipated distributions. The Company also will be
subject to the risks generally associated with the formation of any new
business. The Company's management has no experience operating in accordance
with the requirements for maintaining its qualification as a REIT.
The Company's business objectives and operating strategies include the
acquisition and development of additional entertainment and
entertainment-related properties. Apart from the Initial Properties (which will
be purchased using the net proceeds from the Offering concurrently with or
within a short time following the closing of the Offering), the Company has not
completed any acquisitions or dispositions. Although the Company has options and
rights to purchase the Option Properties, related land parcels and additional
AMCE properties, there can be no assurance that the Company will be successful
in consummating the acquisition of any such properties. The Company has no
options or rights to purchase any properties from Planet Movies, and there can
be no assurances that the Company will work closely with Planet Movies in
developing properties for lease by Planet Movies. Furthermore, there can be no
assurances that additional acquisition and development opportunities on terms
that meet the Company's investment criteria will be available to the Company or
that the Company will be successful in capitalizing on such opportunities.
ABILITY TO MAINTAIN INITIAL DISTRIBUTION RATE
The Company initially plans to pay regular quarterly distributions to its
shareholders of, on an annualized basis, approximately 7.6% to 8.4% of the
estimated range of the initial public offering price per Share. If actual Cash
Available for Distribution falls short of estimates, the Company may be unable
to maintain its proposed initial distribution rate. The Company's ability to pay
future distributions depends on a number of factors, including factors relating
to the future operations of the Company. These factors include, among other
things, the continued lease payments by AMC and the Company's ability to
acquire, finance and lease additional properties at attractive rates. Some of
the factors are beyond the control of the Company, and a change in any such
factor could affect the Company's ability to pay future distributions. Hence, no
assurance can be given as to the Company's ability to pay future distributions.
See "Distributions."
17
<PAGE>
OPERATING RISKS INHERENT IN THE ENTERTAINMENT INDUSTRY THAT MAY AFFECT
THE OPERATIONS OF THE COMPANY'S TENANTS
Upon consummation of the Formation Transactions, the Company will own
properties in the theatrical exhibition segment of the entertainment industry.
The ability of its initial lessee, AMC, to operate successfully in this segment
depends on a number of factors, the most important of which are the availability
and popularity of motion pictures, the performance of such pictures in AMC's
markets, the allocation of popular motion pictures to AMC as a result of AMC's
relationships with motion picture distributors and the terms upon which motion
pictures are licensed to AMC. Poor performance of, or disruption in the
production of or access to, motion pictures, or a deterioration in AMC's
relationships with motion picture distributors or the terms upon which AMC
licenses such motion pictures, can adversely affect AMC's business, and neither
the Company nor AMC has any control over the operations of the distributors of
motion pictures. In addition, a megaplex theatre may compete for the licensing
of commercially popular motion pictures with other theatres located in the same
local geographic area as such property. See "--Competition."
The entertainment industry trend towards megaplex theatres is relatively
recent. In addition, such megaplex theatres require greater capital expenditures
than the previous generation of multiplex theatres, special construction and
limited use designs by developers of such properties. The ability of the Company
to recoup its investment in such properties in the event of a default by AMC
under the Leases or upon the expiration of such Leases is therefore uncertain.
Furthermore, both in the theatrical exhibition segment and other segments of the
entertainment industry, such as theme restaurants, live production theatres and
arcades, the success of operators of such properties depends on general economic
conditions and the willingness of consumers to allocate their expenditures
toward such entertainment activities. To the extent such activities become less
popular or consumers spend less on entertainment activities, the Company's
operations could be adversely affected.
DEPENDENCE ON KEY PERSONNEL
The Company's success depends to a large extent upon the experience and
abilities of its executives, Robert L. Harris, who will serve as the Company's
President and Chief Development Officer, and David M. Brain, who will serve as
the Company's Chief Financial Officer, and its Chairman of the Board of
Trustees, Peter C. Brown. See "Management--Trustees and Executive Officers of
the Company." The loss of the services of any of these individuals could have a
material adverse effect on the Company, its operations and its business
prospects. See "Certain Relationships and Transactions--Employment Agreements."
Mr. Brown presently expects to devote approximately one-third to one-half of his
time to the Company, but will not have an employment agreement and will have no
obligation to do so. To the extent Mr. Brown is unable or unwilling to devote
such time, the Company could be adversely affected. The Company's success also
depends upon its ability to attract and maintain qualified personnel, including
its anticipated hiring of a Treasurer following the Formation Transactions.
INABILITY TO OBTAIN CONSENTS OR WAIVERS REQUIRED TO EFFECT FORMATION
TRANSACTIONS
Pursuant to the Purchase Agreement, the transfer of the Initial Properties
from AMC to the Company is subject to the closing of the Offering as well as
normal and customary conditions to the closing of real estate transactions,
including the receipt of consents and/or waivers from ground lessors or
unaffiliated third parties to the transfer of the Initial Properties to the
Company and the lease back of such properties to AMC. There can be no assurance
that any or all such consents or waivers will be obtained prior to the closing
of the Offering. Failure to obtain such consents or waivers could delay, burden
or prevent the acquisition of certain of the Initial Properties, including
Promenade 16, and Mission Valley 20. In addition, failure to solve zoning issues
affecting Hampton Town Center 24 could affect the Company's decision to execute
its option with respect to such Option Property. See "Business of the Company
and its Properties--The Properties."
18
<PAGE>
GENERAL REAL ESTATE INVESTMENT RISKS THAT MAY AFFECT THE COMPANY'S PROPERTIES,
THE VALUE OF THE SHARES AND THE COMPANY'S ABILITY TO MAKE DISTRIBUTIONS
GENERAL. Real property investments are subject to varying degrees of risk.
Real estate values and cash flows of the Company's properties will be affected
by a number of factors, including changes in the general economic climate, local
conditions (such as an oversupply of entertainment or entertainment-related
properties or a reduction in rental demand in an area), competition from other
available entertainment or entertainment-related properties and the ability of
the operator to provide adequate maintenance and insurance and to control
operating costs. Real estate values and cash flows are also affected by such
factors as government regulations, including, without limitation, environmental,
public access, zoning and tax laws, interest rate levels and the availability of
financing. Each of such general risks will affect the value of the Properties
and any additional properties that the Company may acquire, the Company's
ability to acquire and rent additional properties and the rental revenues and
expenses relating to any such properties.
Equity real estate investments are relatively illiquid and therefore may
tend to limit the ability of the Company to react promptly to changes in
economic or other conditions. In addition, certain significant expenditures
associated with equity real estate investments (such as interest payments, real
estate taxes and maintenance costs) are generally not reduced when circumstances
cause a reduction in income from the investments. To the extent the Company
bears such expenses, its cash flows and ability to make distributions to
shareholders could be adversely affected.
INTEREST RATES AND DEBT FINANCING. The Company intends to enter into the
Bank Credit Facility immediately following the Offering, although there can be
no assurance it will do so. Failure to enter into the Bank Credit Facility or
have the anticipated borrowing ability under the Bank Credit Facility may
adversely affect the Company's growth strategy. The Company expects to borrow
under the Bank Credit Facility to acquire the Option Properties and may require
additional financing to the extent it does not have borrowing availability under
the Bank Credit Facility following the acquisitions of the Option Properties. To
the extent it incurs debt, the Company will be subject to the risks associated
with interest rates and debt financing, including the risks that the Company's
cash flow from operations will be insufficient to meet required payments of
principal and interest, that the Company will be unable to refinance the Bank
Credit Facility or future mortgage indebtedness on its properties, that the
terms of such refinancings will not be as favorable as the terms of existing
indebtedness and that the Company will be unable to make necessary capital
expenditures for such purposes as renovations and releasing properties due to
lack of available funds. The Company's borrowings under the Bank Credit Facility
will bear interest at variable rates, which will subject the Company to the risk
that interest rates may increase, which in turn could adversely affect its
ability to make distributions. If a property is mortgaged to secure payment of
indebtedness and the Company is unable to meet mortgage payments, the property
could be transferred to the mortgagee with a consequent loss of income and asset
value to the Company.
ABSENCE OF LIMITATION ON COMPANY INDEBTEDNESS. The Company's current
borrowing policy is to maintain a ratio of debt to total market capitalization
of less than 50%. Although the Bank Credit Facility is expected to limit the
amount of indebtedness the Company may incur, the Company's organizational
documents do not contain any such limitation, and the Board of Trustees could
alter or eliminate the Company's current borrowing policy. If the policy were
changed or eliminated, the Company could become more highly leveraged, resulting
in an increase in debt service, which could adversely affect the Company's
ability to make distributions.
GOVERNMENT REGULATIONS. Governmental authorities at the federal, state and
local levels are actively involved in the promulgation and enforcement of laws
and regulations relating to the environment, public access, land use, zoning
restrictions and taxes. Under the Leases, AMC will be required to pay
substantially all expenses associated with operation of the Properties,
including all taxes, assessments and levies, excises, fees and all other
governmental charges with respect to each Property. To the
19
<PAGE>
extent AMC is not required to pay any expenses associated with compliance with
such government regulations, the Company may incur additional costs.
Under various federal, state and local laws, ordinances and regulations, a
current or previous owner, developer or operator of real estate may be liable
for the costs of removal or remediation of certain hazardous or toxic substances
at, on, under or in its property. The costs of such removal or remediation could
be substantial. In addition, the Properties and any newly developed or acquired
properties must comply with Title III of the Americans with Disabilities Act of
1990 (the "ADA") to the extent that such properties are "public accommodations"
and/or "commercial facilities" as defined by the ADA. Although the Company
believes the Properties are in substantial compliance with applicable
environmental laws and the ADA, no assurance can be given that any investigation
of the Properties did or will reveal all potential environmental liabilities,
that no prior owner or operator or other person created any material
environmental condition not known to the Company or that future uses, conditions
or legal requirements (including, without limitation, those that may result from
future acts or omissions or changes in applicable laws and regulations) will not
result in the imposition of environmental liabilities or non-compliance with the
ADA. See "Business of the Company and its Properties--Governmental Regulations
Affecting the Properties."
UNINSURED LOSS. The Leases will require AMC to maintain insurance on each
Property, with such coverages and in such amounts as are or shall customarily be
insured against with respect to properties similar to the Properties, for fire,
vandalism and malicious mischief, extended coverage perils, all physical loss
perils, commercial general liability, flood (when the Property is located in
whole or in material part in a designated flood plain area) and workers'
compensation insurance. There are, however, certain types of losses (such as
from hurricanes, floods, earthquakes or wars) that may be either uninsurable or
not economically insurable. Should an uninsured loss occur, the Company could
lose both its capital invested in and anticipated profits from one or more
properties. See "Leases."
COMPETITION. There are numerous commercial developers, real estate
companies and other owners of real estate, including those that operate in the
regions in which the Company's properties are located, that will compete with
the Company in seeking properties for acquisition and disposition, land for
development and tenants for properties. A few entities, including MCA Inc. and
The Walt Disney Company, have substantial involvement in the development of
destination entertainment properties, including The City Walk project adjacent
to Universal City Florida in Orlando, Florida and Disneyland Center, a shopping,
dining and entertainment complex adjacent to Disneyland in Anaheim, California.
In addition, Simon Debartolo Group, Inc. and a fund of Donaldson, Lufkin &
Jenrette, Inc. recently formed a joint venture to invest in
entertainment-related properties, including megaplex theatres. The Company
expects to compete with such other owners primarily on the basis of ability to
finance other properties, purchase and lease terms and knowledge of the
industry. All of the Properties are located in developed areas that include
other entertainment and entertainment-related properties, including in many
instances one or more other multiplex or megaplex theatres operated by AMCE or
another exhibition company. The number of competitive entertainment and
entertainment-related properties in a particular area could have a material
adverse effect on the Company's ability to lease entertainment space in future
properties it may acquire or develop and renew leases on the Properties and on
the rents charged. In addition, AMCE, Planet Movies and other entertainment
business operators may lease entertainment and entertainment-related properties
from owners other than the Company.
RISKS OF REAL ESTATE DEVELOPMENT. The Company's strategy includes the
development of ETRCs and other out-of-home location based entertainment and
entertainment-related properties. Although the Company's officers have
experience developing properties and the Company intends to increase its
capacity to develop properties, the Company is not likely to have significant
in-house development capabilities in the near future. Accordingly, the Company
initially will be dependent on AMCE and other developers for the development of
properties, including completion of those Properties that are currently
20
<PAGE>
under construction by AMCE. There can be no assurance that AMCE will
successfully develop new properties or successfully complete construction of
those Properties that are currently under construction. In addition, there can
be no assurance that there will not be cost overruns on any such developments,
including the Properties under construction. To the extent the Company develops
properties in the future, it will be subject to the risks inherent in the real
estate development process.
There is significant competition in the United States for site locations
from both theatre companies and other businesses and significant competition
among theatre companies for theatre acquisition opportunities. It typically
takes AMCE 18 to 24 months to open a theatre on a site from the time the site is
identified. Until such properties are developed and leased, they will not
generate any cash flow to the developer, lessor or operator. Moreover, the
availability of attractive site locations can be adversely affected by changes
in the national, regional and local economic climate, local conditions such as
scarcity of space or an increase in demand for real estate in the area,
demographic changes, competition from other available space and changes in real
estate, zoning and tax laws. As a result of the foregoing, there can be no
assurance that the Company or AMCE will be able to acquire attractive site
locations or existing theatres on terms it considers acceptable, that the
Company or AMCE will be able to acquire financing for such theatres on
acceptable terms or that the Company's strategy will result in improvements to
the business, financial condition or profitability of the Company.
RISKS OF INVESTMENTS IN MORTGAGES. Although the Company emphasizes equity
real estate investments, the Company may invest in mortgages in connection with
the construction and development of new entertainment and entertainment-related
properties for the Company by third parties. See "Policies and Objectives With
Respect to Certain Activities--Financing." Mortgage investments are subject to
certain risks, including that borrowers may not be able to make debt service
payments or pay principal when due, that the value of mortgaged property may be
less than the amounts owed, and that interest rates payable on the mortgages may
be lower than the Company's cost of funds. If the Company invested in mortgages
and if any of the above occurred, cash flows could be materially adversely
affected. In addition, the mortgages invested in may be prepayable at any time.
The rate of prepayment on the mortgages may be influenced by a variety of
economic, social, and other factors, including the structure of the loans. Any
reinvestment risks resulting from a faster or slower incidence of prepayment of
mortgages will be borne entirely by the Company. Currently there are no
limitations on the percentage of the Company's assets that may be invested in
mortgages, although the Board of Trustees could set a limitation in the future.
EFFECT OF BANKRUPTCY ON LEASES. To the extent that any of the tenants of
the Company's properties, including AMCE and AMC, were to become a debtor in a
bankruptcy proceeding under the United States Bankruptcy Code (the "Bankruptcy
Code"), such guarantor, lessee or its bankruptcy trustee could reject the lease.
If a lease were rejected, rental payments thereunder would terminate as to the
related property, thereby leaving the Company without regular rent payments as
to such property and with a claim for damages as a source of payment of amounts
due under such lease under section 502(b)(6) of the Bankruptcy Code. A claim by
a lessor for damages resulting from the rejection by a debtor of a lease of real
property (or rejection of a guarantee of a lease upon the bankruptcy of the
guarantor) is limited to an amount equal to the rent reserved under the lease,
without acceleration, for the greater of one year or 15 percent (but not more
than three years) of the remaining term of the lease, plus rent already due but
unpaid. There can be no assurance that any such claim for damages would be
sufficient to provide for the repayment of amounts then due under the lease.
TAXATION OF THE COMPANY AS A REIT
TAX LIABILITIES AS A CONSEQUENCE OF THE FAILURE TO QUALIFY AS A REIT. The
Company plans to make an election to be taxed as a REIT under the Code,
commencing with its taxable year ending December 31, 1997. A qualified REIT
generally is not taxed on income it distributes to its shareholders as long as
it distributes at least 95% of its taxable income currently. No assurance can be
given that the
21
<PAGE>
Company will qualify as a REIT or be able to remain so qualified. No assurance
can be given that legislation, new regulations, administrative interpretations
or court decisions will not significantly change the rules applicable to the
Company with respect to qualification as a REIT or the federal income tax
consequences of such qualification.
If the Company fails to continue to qualify as a REIT, it will be subject to
federal income tax (including any applicable alternative minimum tax) on its
taxable income at regular corporate rates. In addition, unless entitled to
relief under certain statutory provisions, the Company will be disqualified from
treatment as a REIT for the four taxable years following the year during which
qualification is lost. The additional tax could significantly reduce cash flows.
OTHER TAX CONSEQUENCES. Even if the Company qualifies as a REIT, it may be
subject to certain federal income taxes and to certain state and local taxes on
its income and property. See "Federal Income Tax Consequences--Other Tax
Consequences."
ANTI-TAKEOVER EFFECTS OF LIMITATIONS ON SIZE OF HOLDINGS OF SHARES AND
OTHER CHARTER PROVISIONS
OWNERSHIP LIMIT. Generally, in order to maintain its qualification as a
REIT, not more than 50% in value of the Company's outstanding shares of
beneficial interest may be owned, directly or indirectly, by five or fewer
individuals (as defined in the Code to include certain entities) at any time
during the last half of any taxable year following the Company's first taxable
year. The Company's 9.8% share ownership limit for shareholders, as well as the
ability of the Company to issue additional Shares or other classes or series of
shares (which may have rights and preferences senior to the Shares), may have
the effect of delaying, deferring or preventing a change in control of the
Company without the consent of the Board even if a change in control were in the
shareholders' interests and may also (i) deter tender offers for the Shares,
which offers may be advantageous to shareholders, and (ii) limit the opportunity
for shareholders to receive a premium for their Shares that might otherwise
exist if an investor were attempting to acquire in excess of 9.8% of the
Company's outstanding Shares or otherwise effect a change in control of the
Company. See "Description of Shares of Beneficial Interest--Restriction on Size
of Holdings of Shares" for additional information regarding the ownership limit.
CLASSIFIED BOARD. The Board has been divided into three classes of
trustees. The terms of the classes will expire in 1998, 1999 and 2000,
respectively. Beginning in 1998, as the term of a class expires, trustees in
that class will be elected for a three-year term and the trustees in the other
two classes will continue in office. Such classified board provision will make
it more difficult for a potential acquiror to remove trustees or elect a
majority of new trustees.
SHARES AND PREFERRED SHARES. The Company's Declaration of Trust authorizes
the Board to issue additional Shares or preferred shares of beneficial interest,
par value $.01 per share ("Preferred Shares"), or classify any unissued Shares
or Preferred Shares and to reclassify any previously classified but unissued
Shares or Preferred Shares of any series from time to time. See "Description of
Shares of Beneficial Interest--General" and "--Preferred Shares." No such Shares
or Preferred Shares have been so classified or reclassified to date. The
issuance of Preferred Shares or other Shares with voting rights different from
the Shares could make it more difficult for a potential acquiror to obtain
sufficient votes to approve proposed transactions.
BUSINESS COMBINATIONS AND CONTROL SHARE ACQUISITIONS. Under the MGCL,
certain business combinations with interested shareholders are prohibited for
five years after the most recent date on which such interested shareholder
became an interested shareholder. In addition, the MGCL provides that control
shares of a Maryland real estate investment trust acquired in a control share
acquisition have no voting rights except to the extent approved by a vote of
two-thirds of the votes entitled to be cast on the matter, excluding shares
acquired by the acquiror, officers or directors who are employees of the
22
<PAGE>
corporation. Such acquisitions may make it more difficult for an acquiror to
gain control of the Company without the approval of the Board or the
shareholders.
ADVANCE NOTICE PROVISIONS. For nominations or other business to be properly
brought before an annual meeting of shareholders by a shareholder, the Company's
Bylaws require such shareholder to deliver a notice to the Secretary, absent
specified circumstances, not less than 60 days nor more than 90 days prior to
the first anniversary of the preceding year's annual meeting setting forth: (i)
as to each person whom the shareholder proposes to nominate for election or
reelection as a trustee, all information relating to such person that is
required to be disclosed in solicitations of proxies for the election of
trustees pursuant to Regulation 14A of the Exchange Act; (ii) as to any other
business that the shareholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such shareholder and of the beneficial owner, if any, on whose
behalf the proposal is made; and (iii) as to the shareholder giving the notice
and the beneficial owner, if any, on whose behalf the nomination or proposal is
made, (x) the name and address of such shareholder as it appears on the
Company's books and of such beneficial owner and (y) the number of Shares which
are owned beneficially and of record by such shareholder and such beneficial
owner, if any.
The classified Board, the issuance or reclassification of Shares or
Preferred Shares and the advance notice provisions discussed in the preceding
paragraphs, and the provisions in the AMCE Right to Purchase Agreement
terminating the Company's rights upon a change in control of the Company, each
could have the effect of delaying, deferring or preventing a change in control
of the Company even if a change in control were in the shareholders' interests.
LACK OF CONTROL OVER DAY-TO-DAY OPERATIONS AND MANAGEMENT OF THE PROPERTIES
To qualify as a REIT for federal income tax purposes, the Company generally
may not operate, or participate in decisions affecting the operations of, the
Initial Properties and, if acquired, the Option Properties. AMC will control the
operations of the Properties under the Leases, each of which will have initial
terms ranging from 13 to 15 years and four renewal terms of five years each,
exercisable at the option of AMC. The Leases will generally require that AMC
operate the Properties in an efficient and professional manner and maintain each
Property in good order, repair and appearance. During the terms of the Leases,
the Company will not have the authority to require AMC to operate the Properties
in a particular manner or to govern any particular aspect of their operation
except as set forth in the Leases. Thus, even if the Company believes AMC is
operating the Properties inefficiently or in a manner adverse to the Company's
interests, the Company will not be able to require AMC to change its method of
operation. The Company is limited to seeking redress only if AMC violates the
terms of a Lease, in which case the Company's primary remedy is to terminate the
Lease or, in certain circumstances, all of the Leases, and seek to recover
damages from AMC and/or AMCE. If a Lease is terminated, the Company will be
required to find another suitable lessee or risk losing its ability to elect or
maintain REIT status, as applicable.
CHANGES IN POLICIES
The major policies of the Company, including its policies with respect to
investments, financing, growth, debt capitalization, REIT qualification and
distributions, are determined by the Board. Although it has no present intention
to do so, the Board may amend or revise these and other policies from time to
time without a vote of the shareholders of the Company. See "Policies and
Objectives With Respect to Certain Activities." Accordingly, shareholders will
have limited control over changes in policies of the Company.
23
<PAGE>
NO PRIOR MARKET FOR SHARES
Prior to the Offering, there has been no market for the Shares. Although
application has been made to list the Shares on the NYSE, there can be no
assurance that an active trading market will develop or that the Shares will be
so listed. The initial public offering price will be determined through
negotiations between the Company and the Underwriters and may not be indicative
of the market price of the Shares after the Offering. See "Underwriting."
EFFECT OF MARKET INTEREST RATES ON SHARE PRICES
One of the factors that may influence the price of the Shares in public
markets will be the annual yield on the price paid for Shares from distributions
by the Company. Thus, an increase in market interest rates may lead purchasers
of Shares to demand a higher annual yield, which could adversely affect the
market price of the Shares.
DILUTION
The pro forma net tangible book value per Share after the Offering will be
lower than the initial public offering price per Share in the Offering.
Accordingly, persons acquiring Shares in the Offering will experience immediate
dilution of $1.87 per Share in the net tangible book value of Shares acquired in
the Offering. See "Dilution."
24
<PAGE>
THE COMPANY
GENERAL
The Company is being formed to capitalize on the opportunities created by
the development of destination entertainment and entertainment-related
properties including larger theatre complexes. The Company believes that
entertainment is emerging as an important and discrete sector of the retail real
estate industry and, as a result of its focus on properties in this sector, it
will have a competitive advantage in providing capital to operators of such
properties. The principal business strategy of the Company is to acquire and
develop a diversified portfolio of high-quality properties leased to
entertainment and entertainment-related business operators generally under
long-term triple net leases. The Company will focus primarily on megaplex
theatres and entertainment themed retail centers.
The Company's initial portfolio will consist of the Initial Properties
purchased from subsidiaries of AMCE for an aggregate purchase price of
approximately $248.8 million. The Company will also have options for a period of
90 days following the actual opening date of the megaplex theatre on each Option
Property to acquire such Option Property from AMC or the current owner/lessor
thereof for the cost to AMC of developing and constructing such property
(estimated to aggregate $138.5 million if all the Option Properties are
purchased). The Option Properties are currently under construction, with the
last theatre expected to be completed and opened by August 1998. The Company
will lease all of the Initial Properties and, if acquired, the Option Properties
to AMC. One of the Initial Properties and three of the Option Properties have
adjacent land parcels that, if not under contract for sale or sold at the time
of the related theatre acquisition, may be purchased by the Company for an
aggregate purchase price of $9.6 million. In addition, the Company will have a
right of first refusal and first offer to purchase any megaplex theatre and
related entertainment property acquired or developed and owned (or ground-
leased) by AMCE or its subsidiaries, exercisable for a period of five years
following the closing of the Offering upon AMCE's intended disposition of such
property. As a result of these and other transactions, the Company and AMCE will
have several ongoing relationships after the Formation Transactions, some of
which could give rise to possible conflicts of interest. See "Conflicts of
Interest" and "Relationship Between AMCE and the Company after the Formation
Transactions." The Company will also pursue opportunities to acquire and develop
entertainment and entertainment-related properties and lease them to Planet
Movies and other operators other than AMCE. Likewise, AMCE and Planet Movies may
lease entertainment and entertainment-related properties from owners other than
the Company.
The Company's executive offices are located at One Kansas City Place, 1200
Main Street, Suite 3250, Kansas City, Missouri 64105, and its telephone number
is (816) 480-4649. The Company is a Maryland real estate investment trust formed
in August 1997.
BUSINESS OBJECTIVES AND OPERATING STRATEGIES
The Company's business objectives are to achieve predictable and increasing
Funds from Operations per Share and enhance shareholder value by acquiring and
developing a diversified portfolio of high-quality properties leased to
entertainment and entertainment-related business operators generally under
long-term triple net leases.
GROWTH STRATEGY
In addition to internal growth through increasing rental payments under the
Leases for the Initial Properties, the Company intends to implement each of the
growth strategies outlined below:
OPTION PROPERTIES. The Company will have options to acquire up to five
additional megaplex theatres currently under construction by AMC for an
aggregate estimated purchase price of $138.5 million. The Option Properties are
expected to be completed on dates between December 1997 and August 1998. The
acquisition of such Option Properties and any related land parcels will be
funded by
25
<PAGE>
any remaining net proceeds of the Offering and the Bank Credit Facility. The
Company will also achieve additional growth through leasing the Option
Properties to AMC pursuant to Leases that provide for year over year Base Rent
Escalation and, if revenues exceed the baseline amounts, Annual Percentage Rent.
FUTURE AMCE PROPERTIES. The Company will have the right of first refusal
and first offer to acquire and lease back to AMC any megaplex theatre and
related entertainment property acquired or developed and owned (or
ground-leased) by AMCE or its subsidiaries, exercisable for a period of five
years following the closing of the Offering upon AMCE's intended disposition of
such property pursuant to the AMCE Right to Purchase Agreement. The Company
expects that AMCE and its subsidiaries will continue to acquire and/or develop
and own such properties, although AMCE may lease entertainment and
entertainment-related properties from owners other than the Company.
ADDITIONAL MEGAPLEX THEATRE AND PLANET MOVIES PROPERTIES. The Company
believes that movie theatre operators other than AMC will develop megaplex
theatres. The Company expects to pursue opportunities to acquire high-quality
properties associated with such developments from operators with a strong market
presence. The Company believes that it will have opportunities to purchase
megaplex theatres that are being developed by other operators because of the
significant capital commitment involved in building such properties. The Company
also anticipates working closely with Planet Movies in evaluating potential
Planet Movies locations, including the acquisition and development of property
by the Company and the leasing of such property to Planet Movies, although
neither party is obligated to do so. The Company expects that Planet Movies will
be active in developing such properties, although Planet Movies may lease
entertainment and entertainment-related properties from owners other than the
Company.
ENTERTAINMENT THEMED RETAIL CENTERS. The Company intends to focus on
opportunities to acquire ETRCs, which are generally large multi-tenant retail
developments that incorporate elements such as megaplex theatres, restaurants,
book and/or music superstores, interactive entertainment venues and other
specialty retail that is oriented to entertainment or leisure-time activities.
The Company believes that not only do significant opportunities exist today, but
also that the consumer demand for entertainment will lead to ETRCs as a rapid
growth category of the retail real estate industry. Further, the Company
believes the newness of the concept may make traditional real estate credit
sources less available to ETRCs and create significant opportunities for the
Company. As a result of the significant capital commitment involved in building
such properties and the experience and relationships of the Company's
management, the Company believes that it will have opportunities to provide
capital for the development of such properties. The Company's ability to finance
the acquisition and development of such properties will enable it to grow and
diversify its asset base. Additionally, the Company believes that as a result of
its involvement with multi-tenant ETRCs, it will develop relationships with
entertainment business operators that would rather lease than own their real
estate and therefore have opportunities for single-tenant out-of-home location
based property developments other than megaplex theatres with such operators.
OPERATING STRATEGY
As the Company pursues its growth strategy involving the acquisition and
development of additional properties, the Company intends to implement the
following operating strategy:
LEASE RISK MINIMIZATION. To avoid initial lease-up risks and produce a
predictable income stream, the Company intends to acquire single-tenant
properties that are leased under long-term leases or multi-tenant properties
that are substantially leased. The Initial Properties and, if acquired, the
Option Properties, will be leased to AMC with initial terms ranging from 13 to
15 years. The Company's willingness to make long-term investments in properties
offers tenants financial flexibility and allows tenants to allocate capital to
their core businesses.
26
<PAGE>
LEASE STRUCTURE. The Company also intends to structure leases, where
possible, on a triple-net or similar basis under which the tenants bear the
principal portion of the financial and operational responsibility for the
properties. During each lease term and any renewal periods, the Company intends
to provide for contractual increases in rent and/or percentage rent based upon a
percentage of a tenant's gross sales over a pre-determined level.
TENANT RELATIONSHIPS. The Company will seek to develop and maintain
long-term working relationships with theatre, restaurant and other
entertainment-related business operators, such as AMC and Planet Movies, by
providing capital for multiple properties on a national basis, thereby adding
additional efficiency and value to such operators and the Company. The Company
will target tenants whose competitive position and financial strength should
enable them to meet their obligations throughout the leases' terms. The Company
believes that the contacts and experience of its management and its financing
strategy will enable it to develop and maintain such relationships.
PORTFOLIO DIVERSIFICATION. The Company expects to diversify its asset base
by property type and tenant. In pursuing its diversification strategy, the
Company will target theatre, restaurant, retail and other entertainment-related
business operators that management views as leaders in their market segments and
that have the financial strength to compete effectively. As ETRCs include an
increasing number of diverse tenants, the Company expects that it will be able
to serve the widening demands of this market and that its portfolio will reflect
these additional complementary businesses.
CAPITALIZATION STRATEGY
Upon consummation of the Formation Transactions, the Company will have no
outstanding indebtedness. In order to implement its growth and operational
strategies, the Company intends to follow the following capitalization strategy:
MODERATE USE OF LEVERAGE. The Company will seek to enhance shareholder
return through the moderate use of leverage. The Company intends to use the $200
million Bank Credit Facility to fund the acquisition of the Option Properties,
related land parcels and additional acquisitions of properties consistent with
the Company's investment policies. In addition, the Company may refinance such
debt with long-term debt or equity as circumstances warrant. The Company expects
to maintain a debt to total market capitalization ratio (i.e., total debt of the
Company as a percentage of equity market value plus total debt) of less than
50%.
PAYMENT OF REGULAR DISTRIBUTIONS. The Company intends to pay quarterly
distributions to its shareholders. Among the factors that the Board will
consider in setting the distribution rate will be the Company's results of
operations, including Funds from Operations per Share. Accordingly, the Company
expects to periodically raise distributions as Funds from Operations per Share
increases and other considerations and factors warrant. See "Distributions."
The Company believes it will have opportunities to provide capital to
businesses that seek to develop or operate entertainment and
entertainment-related properties due to its strong capital base of shareholders'
equity, the funds available under its Bank Credit Facility and its access to the
capital markets. The Company also will be in a position to acquire new
properties for cash, shares or a combination thereof creating the opportunity
for tax-deferred transactions for the seller (through a subsidiary partnership
or otherwise) and thereby potentially reducing the price that would be paid in
all cash transactions.
27
<PAGE>
USE OF PROCEEDS
The proceeds to the Company from the sale of the Shares offered hereby, net
of the estimated underwriting discount and expenses of the Offering, are
expected to be approximately $254.8 million ($293.0 if the Underwriters'
over-allotment option is exercised in full), assuming an initial public offering
price per share of $20.00. Approximately $248.8 million of the net proceeds of
the Offering will be used by the Company to purchase the Initial Properties from
subsidiaries of AMCE. The purchase of the Initial Properties will close
concurrently with or within a short period following the closing of the
Offering. See "The Formation Transactions." The remaining net proceeds and any
net proceeds from the exercise of the Underwriters' over-allotment option, and
funds available from the $200 million Bank Credit Facility, will be used by the
Company (i) to pay fees of approximately $1.2 million related to the Bank Credit
Facility, (ii) to make loans of $2.4 million pursuant to the Share Purchase
Program, (iii) to purchase the Option Properties and related land parcels for an
estimated aggregate purchase price of $148.1 million, (iv) to purchase
additional properties consistent with the Company's investment policies or (iv)
for general business purposes. While the Company may engage from time to time in
discussions regarding potential acquisitions, other than with respect to the
Option Agreements and the AMCE Right to Purchase Agreement, it has not entered
into any agreement as of the date of this Prospectus to make any such
acquisition. Pending the described uses, any remaining net proceeds will be
invested in short-term investment grade instruments, interest-bearing bank
accounts, certificates of deposit, money market securities, U.S. government
securities or mortgage-backed securities guaranteed by Federal agencies.
28
<PAGE>
CAPITALIZATION
The following table sets forth the capitalization of the Company as of
August 29, 1997, the date of its formation, and as adjusted to give effect to
the Formation Transactions. The table should be read in conjunction with the
historical and pro forma financial information of the Company included elsewhere
in this Prospectus.
<TABLE>
<CAPTION>
PRO FORMA
HISTORICAL SEPTEMBER 30,
AUGUST 29, 1997 1997
--------------- ----------------
(IN THOUSANDS)
<S> <C> <C>
Debt outstanding under the Bank Credit Facility............ $ -- $ --
Shareholders' Equity:
Common Shares, par value $.01 per Share; 50,000,000 -- 139
Shares authorized; 100 Shares issued historical;
13,860,100 Shares issued pro forma(1)..................
Share purchase loans..................................... -- (2,400)
Additional paid-in capital............................... 2 252,311
------ ----------------
Total shareholders' equity............................. 2 252,450
------ ----------------
Total capitalization................................... $ 2 $ 252,450
------ ----------------
------ ----------------
</TABLE>
- --------------
(1) Includes 60,000 restricted Shares granted pursuant to the Company's Share
Incentive Plan and excludes options to purchase 90,000 Shares granted
pursuant to the Company's Share Option Program. See
"Management--Compensation Programs."
29
<PAGE>
DISTRIBUTIONS
The Company intends to pay regular quarterly distributions to its
shareholders. The Board of Trustees, in its sole discretion, will determine the
actual distribution rate based on the Company's actual results of operations,
economic conditions, tax considerations (including those related to REITs, such
as the requirement that a REIT currently distribute at least 95% of its taxable
income to shareholders) and other factors. The first distribution, for the
period ending December 31, 1997, is expected to equal a pro rata share of the
anticipated initial quarterly distribution of $0.40 per Share. On an annualized
basis, the anticipated distribution is $1.60 per Share, or approximately 7.6% to
8.4% of the estimated range of the initial public offering price. The Company
does not expect to change its estimated initial distribution per Share if the
Underwriters' over-allotment option is exercised. See "The Formation
Transactions."
The distribution described above represents approximately 96.6% of the
Company's estimated Cash Available for Distribution for the twelve months ending
November 30, 1998. The Company's estimate of the Cash Available for Distribution
is being made solely for the purpose of setting the initial distribution and is
not intended to be a projection of the Company's results of operations or its
liquidity, nor is the methodology upon which such adjustments were made
necessarily intended to be a basis for determining future distributions.
The following table describes the calculation of estimated Cash Available
for Distribution for the twelve months ending November 30, 1998 and the expected
initial distributions.
<TABLE>
<CAPTION>
TWELVE MONTHS
ENDING
NOVEMBER 30, 1998
-------------------
(IN THOUSANDS,
EXCEPT PER SHARE
DATA)
<S> <C>
Estimated net earnings.................................................. $ 17,105
Add: Estimated depreciation............................................. 5,239
--------
Estimated Funds from Operations(1)...................................... 22,344
Add: Estimated amortization............................................. 605
--------
Estimated Cash Available for Distribution(2)............................ $ 22,949
Estimated cash flows from operating activities(3)....................... 22,949
Expected initial distribution(4)........................................ 22,176
Expected initial distribution per Share................................. $ 1.60
Expected initial payout ratio based on estimated Cash Available for
Distribution(5)........................................................ 96.6%
Expected initial payout ratio based on estimated cash flows from
operating activities(6)................................................ 96.6%
</TABLE>
30
<PAGE>
- --------------
(1) The Company believes Funds from Operations is helpful to investors as a
measure of the performance of an equity REIT because, along with cash flows
from operating activities, investing activities and financing activities, it
provides investors with an understanding of the ability of the Company to
incur and service debt and make capital expenditures. Funds from Operations
is calculated as net earnings (loss) (computed in accordance with GAAP)
excluding significant non-recurring items, gains (or losses) from debt
restructuring and sales of property, plus real estate related depreciation.
The Company's Funds from Operations is not comparable to Funds from
Operations reported by other REITs that do not define the term using the
current NAREIT definition or that interpret the current NAREIT definition
differently than does the Company. Funds from Operations should not be
considered as an alternative to net earnings (computed in accordance with
GAAP) as an indication of the Company's financial performance or to cash
flows from operating activities (computed in accordance with GAAP) as a
measure of the Company's liquidity, nor is it indicative of funds available
to fund the Company's cash needs, including its ability to make
distributions.
(2) Cash Available for Distribution is estimated net earnings plus depreciation
and amortization and minus capital expenditures and principal payments on
indebtedness. No capital expenditures or principal payments on indebtedness
are included for the periods indicated as the Company is not obligated to
make such expenditures under the Leases and has no debt outstanding on a pro
forma basis. The estimate of Cash Available for Distribution is being made
solely for the purpose of setting the initial distribution and is not
intended to be a projection or forecast of the Company's results of
operations or its liquidity, nor is the methodology upon which such
adjustments were made necessarily intended to be a basis for determining
future distributions.
(3) The Company has not included cash flows from investing or financing
activities since the Company's forecast financial statements do not include
any acquisitions or borrowings. The Company has not made any determination
as to whether or when it will exercise any of its options to acquire the
Option Properties and has no commitments with respect to any capital
expenditures. Unless circumstances change or additional acquisition
opportunities arise, the Company does not anticipate any material cash
requirements for investing or financing activities during the next year.
(4) Represents expected initial distribution per Share multiplied by the
13,860,100 Shares to be outstanding upon completion of the Formation
Transactions.
(5) Represents the anticipated initial aggregate distribution divided by
estimated Cash Available for Distribution.
(6) Represents the anticipated initial aggregate distribution divided by
estimated cash flows from operating activities.
The Company believes that its estimated Cash Available for Distribution
constitutes a reasonable basis for setting the initial distribution rate on the
Shares and intends to maintain its initial distribution rate for the 12 months
following the closing of the Offering unless actual results from operations,
economic conditions or other factors differ from the assumptions used in its
estimate. The actual return that the Company will realize and the amount
available for distributions to shareholders will be affected by a number of
factors, including the revenues received from the Initial Properties, the
operating expenses of the Company, the interest expense incurred on its
borrowings and unanticipated capital expenditures. No assurance can be given
that the Company's estimate will prove accurate. In addition, pro forma results
of operations do not purport to represent the actual results that can be
expected for future periods. See "The Company's Management's Discussion and
Analysis of Financial Condition and Results of Operations."
The Company anticipates that Funds from Operations will exceed "earnings and
profits" as computed for federal income tax purposes due to non-cash expenses,
primarily depreciation and amortization, expected to be incurred by the Company.
Distributions by the Company to the extent of its current
31
<PAGE>
or accumulated earnings and profits for federal income tax purposes will be
taxable to shareholders as ordinary dividend income. Distributions in excess of
earnings and profits generally will be treated as a non-taxable reduction of the
shareholder's basis in the Shares to the extent thereof, and thereafter as
capital gain. Distributions treated as a non-taxable reduction in basis will
have the effect of deferring taxation until the sale of a shareholder's Shares.
The Company does not intend to reduce the expected initial distribution per
Share if the Underwriters' over-allotment option is exercised. The Company
estimates that approximately 20% to 25% of the anticipated initial annual
distribution to shareholders will represent a return of capital for federal
income tax purposes and that the Company would generally be required to
distribute $16.2 million, or $1.17 per Share, during the twelve months ending
November 30, 1998 in order to maintain its status as a REIT. If actual Funds
from Operations or taxable income vary from the estimated amounts, the
percentage of distributions that will represent a return of capital may vary
substantially in future years. For a discussion of the tax treatment of
distributions to holders of Shares, see "Federal Income Tax Consequences--
Taxation of Holders of Shares." In order to qualify to be taxed as a REIT, the
Company must make annual distributions to shareholders of at least 95% of its
REIT taxable income (determined by excluding any net capital gain), which the
Company anticipates initially will be less than adjusted Funds from Operations.
Under certain circumstances, the Company may be required to make distributions
in excess of Cash Available for Distribution in order to meet such distribution
requirements. In such a case, the Company may find it necessary to arrange for
short-term (or possibly long-term) borrowings or to raise funds through the
issuance of additional Shares or Preferred Shares (as defined).
Future distributions by the Company will be at the discretion of the Board
of Trustees and will depend on the actual Cash Available for Distribution of the
Company, its financial condition, capital requirements, the annual distribution
requirements under the REIT provisions of the Code (see "Federal Income Tax
Considerations--Taxation of the Company as a REIT--Requirements for
Qualification"), and such other factors as the Board of Trustees deems relevant.
See "Risk Factors--Changes in Policies."
DILUTION
The initial public offering price per Share will exceed the net tangible
book value per Share. Therefore, purchasers of Shares sold in the Offering will
realize an immediate dilution in the net tangible book value of their Shares.
Net tangible book value per Share is determined by subtracting total liabilities
from total tangible assets and dividing the remainder by the number of Shares
that will be outstanding after the Offering. The following table illustrates the
dilution to purchasers of Shares sold in the Offering based on the assumed
initial public offering price and assuming no exercise of the Underwriters'
over-allotment option.
<TABLE>
<S> <C> <C>
Assumed initial public offering price(1)................................... $20.00
Net tangible book value per Share(2)....................................... $ 0.00
Increase in net pro forma tangible book value per Share attributable to
payments by purchasers of Shares sold in the Offering..................... 18.13
Net pro forma tangible book value per Share after the Offering(3).......... 18.13
------
Dilution per Share sold in the Offering.................................... $ 1.87
------
------
</TABLE>
- --------------
(1) Before deducting estimated expenses of the Offering.
(2) Determined by dividing total tangible assets of the Company as of August 29,
1997 by the total number of Shares to be outstanding following the Formation
Transactions.
(3) Determined by dividing total tangible assets of the Company on a pro forma
basis as of September 30, 1997 by the total number of Shares to be
outstanding following the Formation Transactions.
32
<PAGE>
THE COMPANY'S SELECTED FINANCIAL INFORMATION
The following table sets forth selected historical, pro forma and forecast
financial information for the Company as of September 30, 1997 and August 29,
1997 and for the twelve months ending November 30, 1998. The pro forma balance
sheet information is presented as if the Formation Transactions had occurred on
September 30, 1997 and therefore incorporates certain assumptions that are set
forth in the Company's Pro Forma Balance Sheet. The pro forma information does
not purport to represent what the Company's financial position actually would
have been had the Formation Transactions, in fact, occurred on such date, or to
project the Company's financial position at any future date. The forecast
operating information is presented as if the Formation Transactions had occurred
as of December 1, 1997 and therefore incorporates certain assumptions that are
set forth in the Company's Forecast Statement of Operations. The historical
financial information set forth below is qualified in its entirety by reference
to the Company's Financial Statements and the Notes thereto included elsewhere
in this Prospectus. The historical, pro forma and forecast information set forth
below should be read in conjunction with "The Company's Management's Discussion
and Analysis of Financial Condition and Results of Operations."
<TABLE>
<CAPTION>
FORECAST TWELVE
MONTHS ENDING
NOVEMBER 30, 1998
---------------------
(IN THOUSANDS, EXCEPT
PER SHARE DATA)
<S> <C>
STATEMENT OF OPERATIONS DATA:
Rental income(1)................................................... $ 25,382
General and administrative expenses(2)............................. 2,209
Depreciation(3).................................................... 5,239
Interest expense, net.............................................. 829
--------
Net earnings....................................................... $ 17,105
--------
--------
Net earnings per Share............................................. $ 1.23
--------
--------
Distributions declared and paid.................................... $ 22,176
Distributions declared and paid per Share.......................... $ 1.60
Weighted average Shares outstanding(4)............................. 13,860
</TABLE>
<TABLE>
<CAPTION>
PRO FORMA HISTORICAL
SEPTEMBER 30, 1997 AUGUST 29, 1997
-------------------- -------------------
(IN THOUSANDS)
<S> <C> <C>
BALANCE SHEET DATA:
Real estate owned, at cost........................ $ 249,856 $ --
Total assets...................................... 252,450 2
Debt outstanding under the Bank Credit Facility... -- --
Total shareholders' equity........................ 252,450 2
</TABLE>
33
<PAGE>
<TABLE>
<CAPTION>
FORECAST
TWELVE MONTHS
ENDING
NOVEMBER 30, 1998
-------------------
<S> <C>
OTHER FINANCIAL DATA:
Net earnings......................................................... $ 17,105
Add: Depreciation.................................................... 5,239
--------
Funds from Operations(5)............................................. 22,344
Add: Amortization.................................................... 605
--------
Cash Available for Distribution(6)................................... $ 22,949
--------
--------
</TABLE>
- --------------
(1) Represents estimated rental income from AMC recorded in accordance with the
terms of the Leases as if the Initial Properties are leased commencing with
the beginning of the period or, if later, the anticipated opening date. The
Company will lease the Initial Properties to AMC under operating leases
guaranteed by AMCE.
(2) Represents management's estimates of general and administrative expenses.
(3) Represents depreciation of the Initial Properties over a 40-year period
following the assumed acquisition dates.
(4) Weighted average Shares outstanding include Shares sold in the Offering and
restricted Shares granted pursuant to the Company's Restricted Share Program
as if such Shares were outstanding for the entire period.
(5) The Company believes that Funds from Operations is helpful to investors as a
measure of the performance of an equity REIT because, along with cash flows
from operating activities, investing activities and financing activities, it
provides investors with an understanding of the ability of the Company to
incur and service debt and make capital expenditures. Funds from Operations
is calculated as net earnings (loss) (computed in accordance with GAAP),
excluding significant non-recurring items, gains (or losses) from debt
restructuring and sales of property, plus real estate related depreciation.
The Company computes Funds from Operations in accordance with standards
established by the White Paper on Funds from Operations approved by the
NAREIT Board of Governors in March 1995, which may differ from the
methodology for calculating Funds from Operations utilized by other equity
REITs, and, accordingly, the Company's Funds from Operations may not be
comparable to the Funds from Operations of such other REITs. See "The
Company's Management's Discussion and Analysis of Financial Condition and
Results of Operations--Funds from Operations." Funds from Operations should
not be considered as an alternative to net earnings (computed in accordance
with GAAP) as an indication of the Company's financial performance or to
cash flows from operating activities (computed in accordance with GAAP) as a
measure of the Company's liquidity, nor is it indicative of funds available
to fund the Company's cash needs, including its ability to make
distributions.
(6) Cash Available for Distribution is net earnings plus depreciation and
amortization and minus capital expenditures and principal payments on
indebtedness. No capital expenditures or principal payments on indebtedness
are included for the periods indicated.
34
<PAGE>
THE COMPANY'S MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
The Company was organized as a Maryland real estate investment trust on
August 22, 1997, and intends to make an election to qualify under the Code as a
REIT commencing with its taxable year ending December 31, 1997. Substantially
all of the Company's initial revenues are expected to be derived from: (i) rents
received under long-term triple net leases of entertainment and entertainment-
related properties, initially megaplex theatres leased to AMC under operating
leases guaranteed by AMCE; and (ii) interest earned from the temporary
investment of funds in short-term investments. The rent for the first year for
each Property under the Leases is initially set at a fixed amount and will be
increased each year by the Base Rent Escalation. Although the Company is
entitled to Annual Percentage Rent under the Leases, it does not anticipate
receiving any such payments for at least five years following the Formation
Transactions.
The Company will incur operating and administrative expenses including,
principally, compensation expense for its executive officers and other
employees, office rental and related occupancy costs and various expenses
incurred in the process of acquiring additional properties. The Company will be
self-administered and managed by its executive officers and staff, and will not
engage a separate advisor or pay an advisory fee for administrative or
investment services, although the Company will engage legal, accounting, tax and
financial advisors from time to time.
The primary non-cash expense of the Company will be the depreciation of its
entertainment and entertainment-related properties. The Company expects to
depreciate buildings and improvements over a 39- and 40-year period for tax and
financial reporting purposes, respectively. The Company will not own or lease
any personal property, furniture or equipment at any Property following the
Formation Transactions.
The Company also expects to employ moderate leverage, pursuant to the Bank
Credit Facility or otherwise, to fund additional investments and will incur long
and short-term indebtedness, and related interest expense, from time to time.
See "Risk Factors--General Real Estate Investment Risks--Interest Rates and Debt
Financing."
The Company intends to make distributions to its shareholders in amounts not
less than the amounts required to maintain REIT status under the Code and, in
general, in amounts exceeding taxable income. The Company's ability to make
distributions will depend upon its Cash Available for Distribution.
RESULTS OF OPERATIONS
The Company has had no operations prior to August 22, 1997 (the date of
organization), or through the date of this Prospectus. The Company's future
results of operations will depend upon the acquisition of the Initial Properties
and other properties, including the Option Properties, and the terms of any
subsequent investments the Company may make.
FORECAST RESULTS OF OPERATIONS
The Company estimates that after giving effect to the Offering and the
acquisition of the Initial Properties, rental income would be $25.4 million for
the twelve months ending November 30, 1998, net earnings would be $17.1 million,
or $1.23 per Share, and depreciation would be $5.2 million. Forecast rental
income is estimated in accordance with the terms of the Leases as if the Initial
Properties are leased commencing with the beginning of the period or, if later,
the anticipated opening date. See "The Company's Selected Financial
Information."
35
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
The Company anticipates that its initial working capital and cash from
operations, together with the Bank Credit Facility anticipated to be available
to the Company, will provide adequate liquidity to conduct its operations, fund
administrative and operating costs, interest payments and acquisitions, and
allow distributions to the Company's shareholders in accordance with the Code's
requirements for qualification as a REIT and to avoid any corporate level
federal income or excise tax.
In order to qualify as a REIT for federal income tax purposes, the Company
will be required to make substantial distributions to its shareholders. The
following factors, among others, will affect Funds from Operations and will
influence the decisions of the Board of Trustees regarding distributions: (i)
scheduled increases in base rent under the Leases with respect to the
Properties; (ii) receipt of percentage rents; and (iii) returns from short-term
investments pending application of the net proceeds of the Offering. Although
the Company will receive most of its rental payments on a monthly basis, it
intends to make distributions quarterly. Amounts accumulated for distribution
will be invested by the Company in short-term investments.
Under the terms of the Leases, AMC is responsible for substantially all
expenses associated with the operation of the Properties, such as taxes and
other governmental charges, insurance, utilities, service, maintenance and any
ground lease payments. See "Business of the Company and its Properties--The
Properties" and "Leases." As a result of these arrangements, the Company does
not believe it will be responsible for any major expenses in connection with the
Properties during the terms of the respective Leases. The Company anticipates
entering into similar leases with respect to additional properties, including
the Option Properties. After the terms of the respective leases expire, or in
the event a lessee is unable to meet its obligations, the Company anticipates
that any expenditures it might become responsible for in maintaining the
properties will be funded by cash from operations and, in the case of major
expenditures, possibly by borrowings. To the extent that unanticipated
expenditures or significant borrowings are required, the Company's Funds from
Operations and liquidity may be adversely affected.
The Company is negotiating to obtain a $200 million Bank Credit Facility
that will be used to primarily finance the acquisition of additional properties,
including the Option Properties and related land parcels, and for other general
operating purposes and working capital, as necessary. It is expected that the
Bank Credit Facility will have a maturity of three years following the Formation
Transactions and will bear interest at variable rates based on a spread over the
London Interbank Rate. It is also expected that the Bank Credit Facility will
contain affirmative and negative covenants customary and standard for a REIT,
including a requirement that the Company repay amounts in excess of the total
commitment amount, as adjusted to reflect mandatory reductions.
Other than the $248.8 million purchase of the Initial Properties using the
net proceeds from the Offering and the purchase of a related land parcel, the
Company has no commitments with respect to other capital expenditures. However,
the Company has options exercisable at any time during the 90-day period
following the actual opening date of the megaplex theatre on any Option Property
to purchase such Option Property for the cost to AMC of developing and
constructing such Property (estimated to aggregate $138.5 million if all the
Option Properties are purchased). One of the Initial Properties and three of the
Option Properties have adjacent land parcels that, if not under contract for
sale or sold at the time of the related theatre acquisition, may be purchased by
the Company for an aggregate purchase price of $9.6 million. If acquired, the
Company may be required to make additional expenditures to develop such land
parcels. In addition, the Company has a right of first refusal and first offer
to purchase any megaplex theatre and related entertainment property acquired or
developed and owned (or ground-leased) by AMCE or its subsidiaries for a period
of five years following the closing of the Offering. The Company may raise
additional long-term capital by issuing, in public or private transactions,
equity or debt securities, but the availability and terms of any such issuance
will depend
36
<PAGE>
upon the market and other conditions. The Company anticipates that as a result
of its initially low debt to total capitalization ratio and its intention to
maintain a debt to total market capitalization ratio of less than 50%, it will
be able to obtain financing for its long-term capital needs. However, there can
be no assurance that such additional financing or capital will be available on
terms acceptable to the Company. The Company expects to borrow under the Bank
Credit Facility to acquire the Option Properties and related land parcels and
may, under certain circumstances, borrow additional amounts in connection with
the acquisition of additional properties, the renovation or expansion of
Properties, or, as necessary, to meet certain distribution requirements imposed
on REITs under the Code. See "Policies and Objectives with Respect to Certain
Activities--Investment Objectives and Policies."
Acquisitions will be made subject to the investment objectives and policies
to maximize both current income and long-term growth in income described
elsewhere in this Prospectus. The Company's liquidity requirements with respect
to future acquisitions may be reduced to the extent the Company uses Shares as
consideration for such purchases.
FUNDS FROM OPERATIONS
The Company believes Funds from Operations is helpful to investors as a
measure of the performance of an equity REIT because, along with cash flows from
operating activities, investing activities and financing activities, it provides
investors with an understanding of the ability of the Company to incur and
service debt and make capital expenditures. Funds from Operations is calculated
as net earnings (loss) (computed in accordance with GAAP), excluding significant
non-recurring items, gains (or losses) from debt restructuring and sales of
property, plus real estate related depreciation and amortization and after
adjustments for unconsolidated partnerships and joint ventures. The Company
computes Funds from Operations in accordance with standards established by the
White Paper on Funds from Operations approved by the NAREIT Board of Governors
in March 1995, which may differ from the methodology for calculating Funds from
Operations utilized by other equity REITs, and, accordingly, the Company's Funds
from Operations may not be comparable to the Funds from Operations of such other
REITs. Further, Funds from Operations does not represent amounts available for
management's discretionary use because of needed capital replacement or
expansion, debt service obligations, or other commitments and uncertainties. The
Company believes that in order to facilitate a clear understanding of the pro
forma operating results of the Initial Properties and the Company, Funds from
Operations should be examined in conjunction with the Company's Condensed Pro
Forma Financial Statements included elsewhere in this Prospectus. Funds from
Operations should not be considered as an alternative to net earnings (computed
in accordance with GAAP) as an indication of the Company's financial performance
or to cash flows from operating activities (computed in accordance with GAAP) as
a measure of the Company's liquidity, nor is it indicative of funds available to
fund the Company's cash needs, including its ability to make distributions.
INFLATION
All of the Leases will be triple net leases requiring AMC to pay for
substantially all expenses associated with the operation of the Properties, such
as taxes and other governmental charges, insurance, utilities, service,
maintenance and any ground lease payments, thereby minimizing the Company's
exposure to increases in costs and operating expenses resulting from inflation.
Because the Bank Credit Facility is expected to provide for a variable interest
rate, inflation could have a material adverse effect on the Company's net income
if interest rates increase substantially during any year. Accordingly, when
deemed appropriate, based on the then current interest rates, the Company may
seek to replace the Bank Credit Facility with a credit facility that provides
for a fixed interest rate.
37
<PAGE>
BUSINESS OF THE COMPANY AND ITS PROPERTIES
OVERVIEW
The Company will enter into a purchase agreement to acquire the Initial
Properties from subsidiaries of AMCE for an aggregate purchase price of
approximately $248.8 million, and option agreements to purchase any or all of
the Option Properties from subsidiaries of AMCE or the current owner/lessor
thereof for an aggregate estimated purchase price of $138.5 million that may be
exercised by the Company, with respect to each Property, at any time during the
90-day period following the actual opening date of the megaplex theatre on such
Option Property, with up to an additional 90-day period to close such
acquisition. One of the Initial Properties and three of the Option Properties
have adjacent land parcels that, if not under contract for sale or sold at the
time of the related theatre acquisition, may be purchased by the Company for an
aggregate purchase price of $9.6 million. The Initial Properties and the Option
Properties represent all of the AMC-owned (or ground-leased) megaplex theatres
with the exception of one property that is not readily transferrable to the
Company. Each of the Properties is located in a large metropolitan market and
has been constructed since May 1995 or is currently under construction. AMCE
generally selected the theatre sites on the bases of retail concentration,
access to surface transportation and favorable demographic trends identified by
reference to census figures and other statistical sources. Four of the Initial
Properties are among the thirteen highest grossing theatres in the United States
and each of the eight operating Initial Properties is the highest grossing
theatre in the local geographic area in which it operates. In addition, the
Company will have a right of first refusal and first offer to purchase any
megaplex theatre and related entertainment property acquired or developed and
owned (or ground-leased) by AMCE or its subsidiaries, exercisable for a period
of five years following the closing of the Offering upon AMCE's intended
disposition of such property. The Company will acquire a 100% interest in each
of the Properties (or related ground leases, as applicable) purchased.
THE PROPERTIES
The Properties are all state-of-the-art megaplex theatres with predominantly
stadium-style seating (seating with an elevation between rows to provide
unobstructed viewing). Most are equipped with SONY Dynamic Digital Sound -TM-
(SDDS-TM-) and AMC LoveSeat-TM- style seating (plush, high-backed seats with
retractable armrests). Other amenities may include auditoriums with TORUS-TM-
Compound Curved Screens and High Impact Theatre Systems-TM- (HITS-TM-), which
enhance picture and sound quality, respectively. All of such equipment and
amenities will be owned, or leased from third parties, by AMC following the
Formation Transactions.
38
<PAGE>
THE INITIAL PROPERTIES
Certain information regarding each of the Initial Properties is set forth
below:
<TABLE>
<CAPTION>
BUILDING ANTICIPATED
METROPOLITAN NO. OF NO. OF (GROSS OPENING LEASE
THEATRE NAME AREA SCREENS SEATS SQ. FT.) DATE RANKING (1) EXPIRATION
- ------------------- ------------------- ------------- --------- --------- ----------- ------------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Grand 24........... Dallas, TX 24 5,067 98,175 5/95 6 12/2010
Mission Valley
20(2)............ San Diego, CA 20 4,361 84,352 12/95 4 12/2010
Promenade 16(3).... Los Angeles, CA 16 2,860 129,822 3/96 37 12/2010
Ontario Mills 30... Los Angeles, CA 30 5,496 131,534 12/96 11 12/2010
Lennox 24(2)....... Columbus, OH 24 4,412 98,261 12/96 13 12/2011
West Olive 16...... St. Louis, MO 16 2,817 60,418 4/97 N/A 12/2011
Studio 30.......... Houston, TX 30 6,032 136,154 5/97 N/A 12/2011
Huebner Oaks 24.... San Antonio, TX 24 4,400 96,004 6/97 N/A 12/2011
First Colony
24(2)............ Houston, TX 24 5,098(4) 107,690 12/97(5) N/A 12/2012
Oak View 24(2)..... Omaha, NE 24 5,098(4) 107,402 12/97(5) N/A 12/2012
Leawood Town Center
20............... Kansas City, MO/KS 20 2,995(4) 75,224 1/98(5) N/A 1/2013
South Barrington
30(6)............ Chicago, IL 30 6,210(4) 130,891 2/98(5) N/A 2/2013
--- --------- ---------
282 54,846 1,255,927
--- --------- ---------
--- --------- ---------
</TABLE>
- --------------
(1) Among United States theatres based on ticket revenues for the period from
January 1 through October 16, 1997 according to Entertainment Data
Incorporated. No ranking is provided for those theatres that were not
operational during the entire period.
(2) Third party ground leased Property. Although the Company will become the
tenant under the ground leases and assume responsibility for performing the
obligations thereunder in the Formation Transactions, pursuant to the Leases
AMC will have responsibility for performing the Company's obligations under
such ground leases.
(3) The theatre occupies 60,000 square feet. See "--Initial Property
Descriptions--Promenade 16."
(4) Estimate based on construction plans.
(5) Anticipated opening date. The Company will pay the purchase price and AMC
will commence paying rent under the applicable Lease with the Company on the
date the Property is acquired by the Company, which will occur on the
earlier of the actual opening date of the megaplex theatre and the first day
of the month following the anticipated opening date indicated.
(6) The Company will acquire one land parcel totaling approximately 2.1 acres
adjacent to this theatre if such parcel is not under contract for sale or
sold by AMC at the time of the Formation Transactions. See "--Land Parcels."
The Company will not have the right to acquire other land parcels adjacent
to this theatre because of the uncertainty of sewer capacity to serve such
parcels.
The Initial Properties will be purchased from subsidiaries of AMCE for an
aggregate purchase price of approximately $248.8 million in cash. The Company
will lease the Initial Properties to AMC pursuant to the Leases with initial
terms ranging from 13 to 15 years with aggregate initial annual rents of
approximately $26.1 million. Throughout the terms of the Leases, annual rents
will escalate by the Base Rent Escalation, and Annual Percentage Rent on
revenues in excess of a baseline amount will be payable by AMC. The Leases may
be extended upon the same terms for four additional periods of five years at the
option of AMC. The initial annual rent for each Initial Property will be (a)
Grand 24 -- $2.0 million; (b) Mission Valley 20 -- $1.7 million; (c) Promenade
16 -- $3.0 million; (d) Ontario Mills 30 --
39
<PAGE>
$2.7 million; (e) Lennox 24 -- $1.4 million; (f) West Olive 16 -- $1.9 million;
(g) Studio 30 -- $2.8 million; (h) Huebner Oaks 24 -- $1.8 million; (i) First
Colony 24 -- $2.0 million; (j) Oak View 24 -- $1.8 million; (k) Leawood Town
Center 20 -- $1.7 million; and (l) South Barrington 30 -- $3.6 million. Total
initial annual rent for the Initial Properties will be approximately $26.1
million.
The purchase price for each Initial Property will equal the cost to AMCE of
developing and constructing such Property. See "Risk Factors--Conflicts of
Interest--Purchase Price of the Properties." It is possible that if the Company
were to have obtained independent valuations or appraisals, the sum of the
values of the Initial Properties might have been greater or lower than the sum
of the values determined by the management of AMCE and of the Company.
INITIAL PROPERTY DESCRIPTIONS
Set forth below are descriptions of the Initial Properties.
GRAND 24. The Grand 24 was the first megaplex theatre opened by AMC in May
1995. It is a free-standing theatre located on a 21.2 acre site at 10110
Technology Boulevard East (in the Stemmons Crossroads development, at the
intersection of I-35 and Northwest Highway) in Dallas, Texas. The theatre has
98,175 square feet and 5,067 seats. The theatre site includes a 2,600-space free
parking area and tram service is provided to the theatre. Its box office has 12
stations, and there are three concessions stands with 21 total stations. Theatre
amenities include stadium AMC LoveSeat-TM- style seating, 46-inch spacing
between rows, SDDS-TM-, TORUS-TM- Compound Curved Screens, HITS-TM- and advance
ticket purchase by TeleTicket-TM-. Eight restaurants and clubs are located near
the theatre site. From January 1 through October 16, 1997, the Grand 24 was the
sixth highest grossing theatre in the United States.
Based on the 1990 U.S. Census, there are approximately 460,000 people
residing within seven miles of the Grand 24. The Grand 24 site is subject to
standard and customary utility and other easements, certain covenants and
restrictions and certain reciprocal easements regarding access and the
construction of a pedestrian bridge linking the Grand 24 site to adjoining
properties.
MISSION VALLEY 20. The Mission Valley 20 opened in December 1995. It is
located in the Mission Valley Center shopping complex, on Interstate 8 at the
Mission Center Road exit in San Diego, California. The ground lease is for
77,000 square feet, and the theatre has 84,352 square feet and 4,361 seats. Free
parking for patrons is available throughout the shopping complex, including
under the theatre and on the south side of the shopping center. The theatre box
office has 15 stations, and there are two concessions stands with 34 total
stations. Other amenities include stadium AMC LoveSeat-TM- style seating,
46-inch spacing between rows, SDDS-TM-, advance ticket purchase by
TeleTicket-TM-, TORUS-TM- Compound Curved Screens and HITS-TM-. From January 1
through October 16, 1997, the Mission Valley 20 was the fourth highest grossing
theatre in the United States. The Company believes that this theatre may be
operated by AMC under the "Planet Movies by AMC" name in the future.
The Mission Valley Center is a one-level outdoor mall with 1.3 million
square feet on 48.1 acres. The Mission Valley Center opened in 1961 with 100
shops, including the May Company and Montgomery Wards Department Store. In 1975,
the Mission Valley Center expanded by adding Bullock's and 44,000 square feet of
specialty shops. In 1983, the Mission Valley Center also added 50 more specialty
shops. Based on the 1990 U.S. Census, there are approximately 490,000 people
residing within five miles of the Mission Valley 20. The ground-leased parcel
for the Mission Valley 20 site is subject to various reciprocal easements,
restrictions, covenants and other agreements for the operation of the Mission
Valley Center.
The Mission Valley 20 ground lease was entered into in 1994 and has a
30-year initial term expiring in March 2024, with two, ten-year extension
options exercisable by the tenant. Minimum rent is $10 per square foot ($764,850
per annum) through year 11 of the lease, increasing by an amount equal to $2 per
square foot in year 12 and each five-year period thereafter to $18 per square
foot in year 27 of the ground lease. Minimum rent in the first option period is
$20 per square foot, and increases by an amount equal
40
<PAGE>
to $2 per square foot at the commencement of each successive option period. The
ground lease also requires percentage rent, commencing in year seven (2001), of
10% of gross sales over specified breakpoints. During the first ten years of the
ground lease, the property may only operate as a theatre; thereafter, with the
consent of the landlord and the major tenants of the shopping center, up to
25,000 square feet of the property may be used to operate up to two retail
businesses. The tenant under the ground lease must obtain the landlord's consent
to its assignment of the ground lease to the Company and the sublease back to
AMC. Such ground lease will be assigned to the Company as part of the Formation
Transactions, and the Company will assume responsibility for performing the
obligations thereunder. Pursuant to the Leases, all of the Company's obligations
under the ground lease, including rent payment obligations, will be the
responsibility of AMC.
PROMENADE 16. The Promenade 16 opened in March 1996. It is located on a 6.2
acre site in The Promenade at Woodland Hills shopping complex, at the
intersection of 101 Freeway and Topanga Canyon Boulevard in Woodland Hills,
California. The building has 129,822 square feet, including the theatre that has
60,000 square feet and 2,860 seats. Free parking is available in the shopping
complex parking lots located around the theatre and the mall. The theatre box
office has eight stations; in addition, there are four self-service box offices
outside the box office where purchasers may purchase ticket or pick up
"will-call" tickets. The theatre has three concessions stands with 26 total
stations. Some concessions stations include pass-through concessions service.
Amenities include stadium AMC LoveSeat-TM- style seating, 46-inch spacing
between rows, SDDS-TM-, advance ticket purchase by TeleTicket-TM-, TORUS-TM-
Compound Curved Screens and HITS-TM-. From January 1 through October 16, 1997,
the Promenade 16 was the 37th highest grossing theatre in the United States. The
Company believes that this theatre may be operated by AMC under the "Planet
Movies by AMC" name in the future. The Promenade 16 will represent approximately
11.5% of the Company's pro forma total assets and rental revenues. The Company
expects that its federal tax basis in the buildings and improvements on this
property will be $22.5 million, which will be depreciated using the
straight-line method over a 39-year period. The realty tax rate on this property
is 1.109% of assessed value, which amounted to realty taxes for 1997 of
$258,518.
The Promenade at Woodland Hills shopping complex is a two-level, enclosed
mall having 600,000 square feet of gross leaseable area on 34 acres. The
shopping complex opened in 1973 and was fully renovated in 1992. In addition to
the AMC Promenade 16 theatre, the Promenade at Woodland Hills shopping complex
is anchored by a Macy's and Macy's Men's and Children's stores and features 80
specialty shops and restaurants. Based on the 1990 U.S. Census, there are
approximately 450,000 people residing within seven miles of the Promenade 16.
The Promenade 16 site is subject to various reciprocal easements, restrictions,
covenants and other agreements for operation of the Promenade shopping complex.
An agreement with the developer of the shopping complex contains a covenant to
operate the theatre facility only as a theatre for a period of 10 years, certain
restrictions on the use of the retail portions of the property and restrictions
on the transfer of the theatre facility. A consent from such developer is being
sought with respect to the transfer to the Company. It further grants to the
developer of the shopping complex an option to purchase the theatre facility if
at least 35,000 square feet (or 10 screens) of the facility is not operated as a
theatre. AMC's obligation to sell Promenade 16 to the Company is therefore
contingent upon obtaining the consent of such developer. AMC is currently
negotiating a renewal of its expired temporary certificate of occupancy for this
Property. The Promenade 16 site includes a 20,000 square foot food court, which
includes 5,000 square feet available for lease of which 3,700 square feet
currently is leased to six tenants. There is also 40,000 square feet of retail
space below the theatre that is currently vacant. AMC will lease the entire site
from the Company.
ONTARIO MILLS 30. The Ontario Mills 30 opened in December 1996. It is
located on a 14.7 acre site at the intersection of 4th Street and Milliken
Avenue in the Ontario Mills Mall in Ontario, California. The theatre has 131,534
square feet and 5,496 seats. Free parking is available to patrons in the
7,500-space Ontario Mills parking lots around the theatre and the mall. The
theatre has three box offices with a total of
41
<PAGE>
15 stations, as well as two automated ticket dispensers for pick up of
TeleTicket-TM- purchases. There are three concessions stands with a total of 42
stations, all of which feature pass-through concessions service. Amenities
include stadium AMC LoveSeat-TM- style seating, 46-inch spacing between rows,
SDDS-TM-, TORUS-TM- Compound Curved Screens, HITS-TM-, advance ticket purchase
by TeleTicket-TM-, an Image Video Entertainment Wall which plays continuous
digitized images of coming attractions and current releases, two arcade areas
and a private room for party rentals and events. From January 1 through October
16, 1997, the Ontario Mills 30 was the eleventh highest grossing theatre in the
United States. The Company believes that this theatre may be operated by AMC
under the "Planet Movies by AMC" name in the future. The Ontario Mills 30 will
represent approximately 10.2% of the Company's pro forma total assets and rental
revenues. The Company expects that its federal tax basis in the buildings and
improvements on this property will be $19.8 million, which will be depreciated
using the straight-line method over a 39-year period. The realty tax rate on
this property is 1.021% of assessed value plus certain assessments, which
amounted to realty taxes for 1997 of $358,366.
The Ontario Mills Mall is a 1.7 million square foot mall located on the
northwest corner of the intersection of the Interstate 10 and Interstate 15
freeways and is one of California's largest outlet malls. The Ontario Mills 30
is the Ontario Mills Mall's key entertainment anchor of a total of 13 anchors
including Clearinghouse by Saks Fifth Avenue, J.C. Penney Outlet, Sports
Authority, Marshall's, Burlington Coat Factory and Bed, Bath and Beyond. Other
entertainment stores and attractions include Sega Gameworks, Wolfgang Puck Cafe,
Virgin Megastore and the Warner Bros. Studio Store Outlet. Based on the 1990
U.S. Census, there are approximately 470,000 people residing within seven miles
of the Ontario Mills 30. The Ontario Mills 30 site is subject to standard and
customary utility and other easements and certain reciprocal easements,
covenants, conditions and restrictions regarding access, parking, passage, signs
and utility lines over, and the construction of the common areas of the Ontario
Mills Mall. An agreement with the developer contains a covenant in favor of the
developer of the Ontario Mills Mall and its successors and assigns to operate
the AMC facility only as a theatre for a period of 10 years (subject to limited
exceptions) and provides to such developer an option to purchase the property if
it is not used as a theatre for a term of 40 years after the expiration of the
initial 10 year operating covenant period. For 15 years from the date AMC
acquired the property, the developer has a right of first offer and a right of
first refusal with respect to any future sale or lease by the Company of
substantially all of the property. The price to be paid for the property
pursuant to such purchase option is its fair market value as determined by the
procedure set forth in such agreement.
LENNOX 24. The Lennox 24 opened in December 1996. It is located on a 10.6
acre ground leased site in the Lennox Town Center shopping complex on Olentangy
River Road and Route 315 in Columbus, Ohio. The theatre has 98,261 square feet
and 4,412 seats. Approximately 800 parking spaces are allocated specifically for
AMC's patrons, and an additional 662 spaces are available within the Lennox Town
Center; 1,000 additional spaces will be available when the Lennox Town Center is
completely finished. Theatre box offices feature a total of 14 stations, and
there are two "will-call" stations for advance ticket sales and pickups. A guest
services kiosk allows patrons to make special arrangements, as well as purchase
gift certificates and offers other services to moviegoers. The theatre has three
concessions stands with 38 total stations, some of which feature pass-through
concessions service. Amenities include stadium AMC LoveSeat-TM- style seating,
46-inch spacing between rows, SDDS-TM-, advance ticket purchase by
TeleTicket-TM-, TORUS-TM- Compound Curved Screens and HITS-TM-. From January 1
through October 16, 1997, the Lennox 24 was the thirteenth highest grossing
theatre in the United States.
The Lennox Town Center is a regional shopping center with 320,000 square
feet of leaseable area on 37.5 acres. It is located approximately four miles
northeast of downtown Columbus, and is near Ohio State University which is just
across the Olentangy River to the east. Lennox Town Center's anchor tenants
include Target and Barnes and Noble. Based on the 1990 U.S. Census, there are
approximately 525,000 people residing within seven miles of the Lennox 24. The
Lennox 24 is subject to standard and customary utility and other easements.
42
<PAGE>
The Lennox 24 ground lease was entered into in 1995 and has a 25-year
initial term ending in the year 2020, with ten, five-year renewal options
exercisable by the tenant. Annual minimum rent is $537,578 through year five of
the ground lease, increasing by $50,000 per annum in year six, $55,000 per annum
in year 11, $61,000 per annum in year 16 and $66,000 per annum in year 21.
Annual rentals during the option periods commence at $805,860 during the first
period and increase to $1,900,000 per annum in the tenth option period. During
the initial term, there is also percentage rent due in an amount per annum equal
to two percent of gross sales over a specified breakpoint in each lease year.
The property must be operated as a theatre through year five of the ground
lease, but thereafter may be operated for any lawful retail, service or
entertainment use (subject to rights of exclusivity granted other tenants). Such
ground lease will be assigned to the Company as part of the Formation
Transactions, and the Company will assume responsibility for performing the
obligations thereunder. Pursuant to the Leases, all of the Company's obligations
under the ground lease, including rent payment obligations, will be the
responsibility of AMC.
WEST OLIVE 16. The West Olive 16 opened in April 1997. It is a
free-standing theatre located on an 8.02 acre site in a multi-use development at
the intersection of Olive and Interstate 270 in St. Louis, Missouri. The theatre
has 60,418 square feet and 2,817 seats. Free parking is available around the
theatre in 1,850 spaces. The theatre has two box offices with a total of eight
stations and two concessions stands with a total of 24 stations. Some
concessions stations include pass-through concessions service. Other amenities
include stadium AMC LoveSeat-TM- style seating, 46-inch spacing between rows,
SDDS-TM-, TORUS-TM- Compound Curved Screens and HITS-TM-. For the period through
October 16, 1997 that the West Olive 16 has been open, it was the 93rd highest
grossing theatre in the United States. Based on the 1990 U.S. Census, there are
approximately 330,000 people residing within seven miles of the West Olive 16.
The West Olive 16 is subject to standard and customary utility and other
easements.
STUDIO 30. The Studio 30 opened in May 1997. It is a free-standing theatre
located on a 21.56 acre site adjacent to a Wal-Mart and a Sam's Club store
located on the southeast corner of Westheimer and Dunvale in Houston, Texas. The
theatre has 136,154 square feet and 6,032 seats. Free parking is available to
patrons on the project site in 2,000 spaces around the theatre. The theatre has
three box offices with a total of 15 stations and three concessions stands with
a total of 45 stations. All of the concessions stands include pass-through
concessions service. Other amenities include stadium AMC LoveSeat-TM- style
seating, 46-inch spacing between rows, SDDS-TM-, TORUS-TM- Compound Curved
Screens and HITS-TM-. For the period through October 16, 1997 that the Studio 30
has been open, it was the 86th highest grossing theatre in the United States.
The Company believes that this theatre may be operated by AMC under the "Planet
Movies by AMC" name in the future. The Studio 30 will represent approximately
10.6% of the Company's pro forma total assets and rental revenues. The Company
expects that its federal tax basis in the buildings and improvements on this
property will be $20.4 million, which will be depreciated using the
straight-line method over a 39-year period. The realty tax rate (including
certain assessments) on this property is 2.738% of assessed value, which
amounted to realty taxes for 1997 of $413,762. Based on the 1990 U.S. Census,
there are approximately 760,000 people residing within seven miles of the Studio
30. The Studio 30 site is subject to standard utility easements and City of
Houston general ordinances with respect to platting and building set-back lines.
HUEBNER OAKS 24. The Huebner Oaks 24 opened in June 1997. It is a
free-standing theatre on a 13.56 acre site and serves as an anchor in a strip
shopping center having other national tenants including Bed, Bath and Beyond,
Old Navy, Pier 1 Imports and Borders Books. The site is located at the
intersection of Huebner Road and Interstate 10 in San Antonio, Texas. The
theatre has 96,004 square feet and 4,400 seats. Parking for patrons is available
in over 2,000 spaces located around the theatre building and 1,000 spaces in the
shopping mall adjacent to the theatre property pursuant to a reciprocal easement
agreement. The theatre has three box offices with a total of 15 stations and
three concessions stands with a total of 43 stations. All of the concessions
stands include pass-through concessions service. Other theatre amenities include
stadium AMC LoveSeat-TM- style seating, 46-inch spacing
43
<PAGE>
between rows, SDDS-TM-, TORUS-TM- Compound Curved Screens and HITS-TM-. For the
period through October 16, 1997 that the Huebner Oaks 24 has been open, it was
the 83rd highest grossing theatre in the United States. Based on the 1990 U.S.
Census, there are approximately 440,000 people residing within seven miles of
the Huebner Oaks 24. The Huebner Oaks 24 is subject to standard and customary
utility and other easements.
FIRST COLONY 24. The First Colony 24 is expected to open in December 1997.
The free-standing theatre will be located on a 26.5 acre ground-leased site
across the ring road from the First Colony Mall in Suger Land, Texas, a suburb
of Houston. The theatre will have 107,690 square feet and 5,098 seats. The site
will include 2,200 parking spaces. The theatre will have two box offices with a
total of 16 stations. There will be three concessions stands with a total of 40
stations, all of which will feature pass-through concessions service. Other
amenities will include stadium AMC LoveSeat-TM- style seating, 46-inch spacing
between rows, SDDS-TM-, TORUS-TM- Compound Curved Screens and HITS-TM-.
The First Colony Mall is a regional mall with more than one million square
feet of retail space located at the Southwest (US 59) and South Beltway 6
freeways. The mall is anchored by Foley's, Dillard's, J.C. Penney and Mervyn's.
Based on the 1990 U.S. Census, there are approximately 270,000 people residing
within seven miles of the First Colony 24. The First Colony 24 will be subject
to standard and customary utility and other easements.
The First Colony 24 ground lease was entered into in 1996 and has a 20-year
initial term expiring in 2016, with six, five-year renewal options exercisable
by the tenant. Annual minimum rent is $501,870 through year 10 of the ground
lease, $552,057 for years 11 through 15 of the ground lease and $607,263 for
years 16 through 20 of the ground lease. Annual minimum rent for each of the
six, five-year renewal options is $667,989, $734,788, $808,267, $889,094,
$978,003 and $1,075,803, respectively. In addition, there is also percentage
rent due in an amount per annum equal to three percent of gross receipts over a
specified breakpoint in each lease year. The property must be operated as a
theatre through year 10 of the ground lease, but thereafter may be operated for
any retail or entertainment use (subject to limited exceptions). Such ground
lease will be assigned to the Company as part of the Formation Transactions and
the Company will assume responsibility for performing the obligations
thereunder. Pursuant to the Leases, all of the Company's obligations under the
ground lease, including rent payment obligations, will be the responsibility of
AMC.
Upon the occurrence of certain events, the ground lessor has the right to
repurchase the First Colony theatre in certain events by paying to AMC its fair
market value as determined by the appraisal procedure set forth in the ground
lease. Those events include: tenant's request for a change in the use of the
premises, tenant's ceasing to operate in the premises for more than 18
consecutive months, or entry by AMC into a "major sublease" as defined in the
ground lease after the expiration of the operating covenant. Generally, the
ground lessor may in its sole discretion withhold consent to a subletting or
assignment of the ground lease except to an eligible transferee. The Company
believes that it and AMC are eligible transferees with respect to the assignment
and sublease of the ground lease but nevertheless intends to seek consent from
the ground lessor to such assignment and sublease.
OAK VIEW 24. The Oak View 24 is anticipated to open in December 1997. It
will be a free-standing facility located on a 20.4 acre ground-leased parcel in
the Oak View Plaza shopping center at 144th and West Center Road, in Omaha,
Nebraska. The theatre will have 107,402 square feet and 5,098 seats. Free
parking will be available in 1,350 shopping center spaces. The theatre will have
three box offices with a total of 14 stations and three concessions stands with
a total of 40 stations. Some concessions stations will include pass-through
concessions service. Other theatre amenities will include stadium AMC
LoveSeat-TM- style seating, 46-inch spacing between rows and SDDS-TM-. Some
auditoriums will feature TORUS-TM- Compound Curved Screens and HITS-TM-.
Oak View Plaza is a regional shopping complex located across the street from
Oak View Mall. Oak View Plaza's anchor tenants include Kohl's, Barnes & Noble
and Linens 'N' Things. Oak View Mall's
44
<PAGE>
anchor tenants include Yonkers, DiIlard's, J.C. Penney and Sears. Based on the
1990 U.S. Census, there are approximately 260,000 people residing within seven
miles of the Oak View 24. AMC's interest under its ground lease in the Oak View
24 property is subject to standard and customary utility and other easements.
The Oak View 24 ground lease was entered into in 1996 and has a 20-year
initial term expiring in October 2016, with six, five-year renewal options
exercisable by the tenant. Fixed rental under the lease is $425,000 annually
through the third year, increasing to $525,000 per annum in years four and five,
then increasing in increments of $50,000 per annum in years six, 11 and 16. Rent
during the option periods is $675,000 per annum, adjusted by changes in the
consumer price index over the prior term. There is no percentage rent. The
premises may be used for a theatre or any other lawful purpose. The tenant under
the ground lease has an option to purchase the land commencing in year four of
the ground lease at a price of $5,000,000, which purchase price increases in
increments of $500,000 in years six, 11 and 16 of the ground lease. Such ground
lease will be assigned to the Company as part of the Formation Transactions and
the Company will assume responsibility for performing the obligations under the
ground lease. Pursuant to the Leases, all of the Company's obligations under the
ground lease, including rent payment obligations, will be the responsibility of
AMC.
LEAWOOD TOWN CENTER 20. The Leawood Town Center 20 is expected to open in
January 1998. The free-standing theatre will be located on an 8.4 acre site in
the Leawood Town Center Plaza shopping center in a Kansas suburb of Kansas City,
Missouri. The theatre will have 75,224 square feet and 2,995 seats. Parking will
be available in 3,300 parking spaces in lots around the mall and on-site. The
theatre will have one box office with a total of 12 stations as well as two
automated ticket dispensers for pick-up of TeleTicket-TM- purchases. There will
be three concessions stands with a total of 32 stations, all of which will
feature pass-through concessions service. Other amenities will include stadium
AMC LoveSeat-TM- style seating, 46-inch spacing between rows, SDDS-TM-,
TORUS-TM- Compound Curved Screens and HITS-TM-.
The Leawood Town Center Plaza shopping center is located at 119th Street and
Roe in Leawood, Kansas and is anchored by a Jacobson's department store, a
Galyans sporting goods store and the AMC theatre. It also features other
retailers such as Williams Sonoma, Barnes & Noble, Pottery Barn, The Gap, Gap
Kids and The Limited. There are also 10 restaurants, including On The Border and
Houlihan's, located at the shopping center. Based on the 1990 U.S. Census, there
are approximately 310,000 people residing within seven miles of the Leawood Town
Center 20. The Leawood Town Center 20 will be subject to standard and customary
utility and other easements.
SOUTH BARRINGTON 30. The South Barrington 30 is expected to open in
February 1998. It will be a free-standing theatre located on a 25.3 acre site at
the intersection of Interstate 90 and Barrington Road in South Barrington,
Illinois, a suburb of Chicago. The theatre will have 130,891 square feet and
6,210 seats. The site will include 2,800 parking spaces. The theatre will have
two box offices with a total of 18 stations. There will be three concessions
stands with a total of 44 stations, all of which will feature pass-through
concessions service. Other amenities will include stadium AMC LoveSeat-TM- style
seating, 46-inch spacing between rows, SDDS-TM-, TORUS-TM- Compound Curved
Screens and HITS-TM-. The South Barrington 30 will represent approximately 13.5%
of the Company's pro forma total assets and rental revenues. The Company expects
that its federal tax basis in the buildings and improvements on this property
will be $30.2 million, which will be depreciated using the straight-line method
over a 39-year period. The realty tax rate on this property is 5.912%, which
will be multiplied by the assessed value of this property to compute the annual
realty taxes. Based on the 1990 U.S. Census, there are approximately 400,000
people residing within seven miles of the South Barrington 30. The South
Barrington 30 will be subject to standard and customary utility and other
easements.
45
<PAGE>
THE OPTION PROPERTIES
Certain information regarding each of the Option Properties, including the
purchase price payable by the Company therefor, is set forth below:
<TABLE>
<CAPTION>
ESTIMATED
ESTIMATED BUILDING ANTICIPATED PURCHASE PRICE
METROPOLITAN NO. OF NO. OF (GROSS SQ. OPENING (IN
THEATRE NAME AREA SCREENS SEATS FT.) DATE(1) THOUSANDS)(2)
- ---------------------------- ------------ ------------- ----------- ----------- ------------- --------------
<S> <C> <C> <C> <C> <C> <C>
Gulf Pointe 30(3)(4)........ Houston, TX 30 6,008 130,891 12/97 $ 27,000
Cantera 30 (4).............. Chicago, IL 30 6,210 130,757 2/98 34,400
Mesquite 30(3)(4)........... Dallas, TX 30 6,008 130,891 3/98 23,500
Hampton Town Center 24(3)... Norfolk, VA 24 5,098 107,396 4/98 26,100
Livonia 20.................. Detroit, MI 20 4,056 85,688 8/98 27,500
--- ----------- ----------- --------------
134 27,380 585,623 $ 138,500
--- ----------- ----------- --------------
--- ----------- ----------- --------------
</TABLE>
- --------------
(1) If the Company acquires an Option Property, the Company will pay the
purchase price and AMC will commence paying rent under the applicable Lease
with the Company on the date such Option Property is acquired by the
Company, which will not occur prior to the actual opening date of the
megaplex theatre.
(2) Purchase prices are estimated but are not expected to materially change. The
actual purchase price for each Option Property will equal the cost to AMC of
developing and constructing such Property at the time of acquisition by the
Company.
(3) AMC currently leases such Properties from a third party owner/lessor. The
Company will have an option to acquire such Properties from the
owner/lessor. Such properties will be acquired without representation or
warranty by, or recourse to, the owner/lessor and the Company will be
responsible for all transaction costs.
(4) The Company will have the option to acquire the land parcels adjacent to
this theatre if such land parcels are not under contract for sale or sold at
the time of the related theatre acquisition. See "-- Land Parcels."
The Company will have options to purchase each Option Property that may be
exercised at any time during the 90-day period following the actual opening date
of the megaplex theatre on such Option Property. After exercise of the option,
the Company is required to close the acquisition within the following 90 days.
The exercise and closing dates may not be later than October 20, and December
20, 1998, respectively, with respect to the Option Properties currently leased
from a third party owner/lessor. The purchase price of each Option Property will
be equal to the cost to AMC of developing and constructing such Property. The
Company will lease to AMC the Option Properties, if acquired, pursuant to Leases
on substantially the same terms and conditions as the Leases for the Initial
Properties, including the Base Rent Escalation and the Annual Percentage Rent.
The initial annual rental rate for each Option Property will be equal to 10.5%
of the purchase price. Using the 10.5% lease rate calculation and the estimated
purchase prices, the Company believes that the initial annual rent for each
Option Property, if acquired, will be: (a) Gulf Pointe 30--$2.8 million; (b)
Cantera 30--$3.6 million; (c) Mesquite 30--$2.5 million; (d) Hampton Town Center
24--$2.7 million; and (e) Livonia 20--$2.9 million. Total initial annual rent
for the Option Properties, if acquired, will be approximately $14.5 million.
Because the Option Properties are currently under construction by AMC, the
cash consideration to be paid by the Company for each of the Option Properties
will equal the cost to AMC of developing and constructing such Property.
Independent valuations were not obtained to determine the purchase price of the
Option Properties. See "Risk Factors--Conflicts of Interest--Purchase Price of
the Properties."
46
<PAGE>
OPTION PROPERTY DESCRIPTIONS
Set forth below are descriptions of the Option Properties.
GULF POINTE 30. The Gulf Pointe 30 is expected to open in December 1997. It
will be a free-standing theatre located on a 34 acre site at the Interstate 45
and South Beltway 8 freeways in Houston, Texas. The theatre will have 130,891
square feet and 6,008 seats. The site will include 3,000 parking spaces. The
theatre will have two box offices with a total of 18 stations. There will be
three concessions stands with a total of 44 stations, all of which will feature
pass-through concessions service. Other amenities will include stadium AMC
LoveSeat-TM- style seating, 46-inch spacing between rows, SDDS-TM-, TORUS-TM-
Compound Curved Screens and HITS-TM-.
AMC currently leases the Gulf Pointe 30 from a third party owner/lessor. The
Company's option to acquire such property will be with the owner/lessor. Based
on the 1990 U.S. Census, there are approximately 295,000 people residing within
seven miles of the Gulf Pointe 30. The Gulf Pointe 30 will be subject to
standard and customary utility and other easements.
CANTERA 30. The Cantera 30 is expected to open in February 1998. It will be
a free-standing theatre located on a 42.3 acre site in Warrenville, Illinois, a
suburb of Chicago. The theatre will have 130,757 square feet and 6,210 seats.
The site will include 3,000 parking spaces. The theatre will have two box
offices with a total of 18 stations. There will be three concessions stands with
a total of 44 stations, all of which will feature pass-through concessions
service. Other amenities will include stadium AMC LoveSeat-TM- style seating,
46-inch spacing between rows, SDDS-TM-, TORUS-TM- Compound Curved Screens and
HITS-TM-.
The Cantera 30 will be part of a larger multi-use development that will
eventually consist of 4.7 million square feet of office space, 3 million square
feet of light industrial space, 500 multi-family residential units, retail,
hotel and recreational areas. Based on the 1990 U.S. Census, there are
approximately 310,000 people residing within seven miles of the Cantera 30. The
Cantera 30 will be subject to standard and customary utility and other
easements.
MESQUITE 30. The Mesquite 30 is expected to open in March 1998. It will be
a free-standing theatre located on a 23.6 acre site at the intersection of
Interstate 635 and US 80 freeways in Mesquite, Texas, a suburb of Dallas. The
theatre will have 130,891 square feet and 6,008 seats. The site will include
2,000 parking spaces. The theatre will have two box offices with a total of 18
stations. There will be three concessions stands with a total of 44 stations,
all of which will feature pass-through concessions service. Other amenities will
include stadium AMC LoveSeat-TM- style seating, 46-inch spacing between rows,
SDDS-TM-, TORUS-TM- Compound Curved Screens and HITS-TM-.
AMC currently leases the Mesquite 30 from a third party owner/lessor. The
Company's option to acquire such property will be with the owner/lessor. Based
on the 1990 U.S. Census, there are approximately 410,000 people residing within
seven miles of the Mesquite 30. The Mesquite 30 will be subject to standard and
customary utility and other easements.
HAMPTON TOWN CENTER 24. The Hampton Town Center 24 is expected to open in
April 1998. It will be a free-standing theatre located on a 25 acre site in a
shopping center at Interstate 64 East, Big Bethel Road and Hampton Roads Center
Parkway in Hampton, Virginia, a suburb of Norfolk. The theatre will have 107,396
square feet and 5,098 seats. The site will include 2,400 parking spaces. The
theatre will have two box offices with a total of 16 stations. There will be
three concessions stands with a total of 40 stations, all of which will feature
pass-through concessions service. Other amenities will include stadium AMC
LoveSeat-TM- style seating, 46-inch spacing between rows, SDDS-TM-, TORUS-TM-
Compound Curved Screens and HITS-TM-.
AMC currently leases the Hampton Town Center 24 from a third party
owner/lessor. The Company's option to acquire such property will be with the
owner/lessor. The shopping center adjacent to the
47
<PAGE>
Hampton Town Center 24 will have a grocery store and large local retailer as
well as several restaurant and retail pads. Based on the 1990 U.S. Census, there
are approximately 260,000 people residing within seven miles of the Hampton Town
Center 24. The Hampton Town Center 24 will be subject to standard and customary
utility and other easements. The building permit for the Hampton Town Center 24
may not have been issued in compliance with local zoning regulations. AMC is in
discussions with the municipality to obtain a rezoning but no assurance can be
made that AMC will be successful in its efforts.
LIVONIA 20. The Livonia 20 is expected to open in August 1998. It will be a
free-standing theatre located on a 35.3 acre condominium subdivision developed
as a shopping center in Livonia, Michigan, a suburb of Detroit. The theatre will
have 85,688 square feet and 4,056 seats. The site will include 2,200 parking
spaces. The theatre will have one box office with a total of 12 stations as well
as two automated ticket dispensers for pick-up of TeleTicket-TM- purchases.
There will be three concessions stands with a total of 28 stations, all of which
will feature pass-through concessions service. Other amenities will include
stadium AMC LoveSeat-TM- style seating, 46-inch spacing between rows, SDDS-TM-,
TORUS-TM- Compound Curved Screens and HITS-TM-.
The shopping center will have three other anchor retailers plus several
restaurant/retail pads. It will be located at Haggerty Road and Seven Mile Road,
just off of Interstate 275/96. Based on the 1990 U.S. Census, there are
approximately 400,000 people residing within seven miles of the Livonia 20. The
Livonia 20 will be subject to standard and customary utility and other
easements.
LAND PARCELS
Certain information regarding the land parcels adjacent to certain of the
Properties, including the purchase price payable by the Company therefor, is set
forth below:
<TABLE>
<CAPTION>
LAND PURCHASE PRICE
THEATRE NAME PAD (SQ. FT.) (IN THOUSANDS)
- --------------------------------------------- ----- --------- --------------
<S> <C> <C> <C>
South Barrington 30(1)....................... E 93,218 $ 1,056
Gulf Pointe 30(2)............................ A 52,141 511
B 51,531 511
C 96,485 744
D(3) 61,158 465
Mesquite 30(2)............................... A-1 103,281 810
A-2 100,188 674
B 133,468 674
Cantera 30(2)................................ B 77,101 1,012
C 54,014 1,100
D(3) 65,340 1,012
E 85,813 1,056
--------- --------------
973,738 $ 9,625
--------- --------------
--------- --------------
</TABLE>
- --------------
(1) Indicates land parcel is adjacent to this Initial Property.
(2) Indicated land parcels are adjacent to this Option Property.
(3) Indicates land parcels under contract to be sold. If such land parcel is no
longer under contract at the time of the exercise by the Company of its
option to purchase the related theatre, the Company will have the option to
purchase such land parcel.
48
<PAGE>
At the time the Company exercises its option to acquire an Option Property,
it will have the option to acquire not less than all of the land parcels
adjacent to the theatre at such Property that are not under contract for sale or
sold for the purchase prices indicated in the table above. The purchase price
for each land parcel was determined by management of both AMCE and the Company
based on an estimated market value for such parcel less estimated marketing and
selling costs. Independent valuations were not obtained to determine the
purchase price of the land parcels. See "Risk Factors--Conflicts of
Interest--Purchase Price of the Properties." The Company's initial focus with
respect to the land parcels will be ground lease or build-to-suit opportunities
with entertainment and entertainment-related operators that have significant
market presence (primarily restaurants). The Company does not anticipate leasing
any of the land parcels, if acquired, to AMCE or any of its subsidiaries or to
Planet Movies. AMCE may market and negotiate to sell any or all of the land
parcels relating to the Option Properties prior to the exercise by the Company
of its options to purchase the Option Properties.
SOUTH BARRINGTON 30 LAND PARCEL. There is one adjacent land parcel
northeast of the South Barrington 30 totaling approximately 2.1 acres that, if
acquired, may be developed and leased by the Company or sold to third parties
for development as a restaurant or retail site. The site plan includes a
pedestrian pathway linking the restaurant or retail store and the megaplex
theatre. There are additional land parcels adjacent to this theatre that the
Company will not have the right to acquire because of the uncertainty of sewer
capacity to serve such parcels.
GULF POINTE 30 LAND PARCELS. There are four adjacent land parcels east of
the proposed site for the Gulf Pointe 30 totaling approximately 6.0 acres that
AMCE is expected to acquire. If acquired by the Company, such parcels may be
developed and leased by the Company or sold to third parties for development as
restaurant or retail sites. AMC has entered into a contract to sell one of the
land parcels located at the proposed site, with a pad of 9,200 square feet and
67 parking spaces, to Outback Steakhouse. The land parcels will be subject to
customary reciprocal easements for ingress, egress and parking between each of
the land parcels and between the land parcels and the theatre parcel, and
restrictions relating to certain uses.
MESQUITE 30 LAND PARCELS. There are three adjacent land parcels south of
the proposed site for the Mesquite 30 totaling approximately 7.7 acres that may
be developed and leased by the Company or sold to third parties for development
as restaurant or retail sites. AMC has entered into a contract to sell one of
the land parcels located at the proposed site. The land parcels will be subject
to customary reciprocal easements for ingress, egress and parking between each
of the land parcels and between the land parcels and the theatre parcel, and
restrictions relating to certain uses.
CANTERA 30 LAND PARCELS. There are four adjacent land parcels south of the
proposed site for the Cantera 30 totaling approximately 6.5 acres that may be
developed and leased by the Company or sold to third parties for development as
restaurant or retail sites. AMC has entered into a contract to sell one of the
land parcels located at the proposed site. The land parcels will be subject to
customary reciprocal easements for ingress, egress and parking between each of
the land parcels and between the land parcels and the theatre parcel, and
restrictions relating to certain uses.
FUTURE AMCE PROPERTIES
It is anticipated that AMCE or its subsidiaries will acquire or develop
additional entertainment or entertainment-related properties in the future. The
Company and AMCE will enter into the AMCE Right to Purchase Agreement whereby
the Company will have the right of first refusal and first offer to acquire and
lease back to AMC any megaplex theatre and related entertainment property
acquired or developed and owned (or ground-leased) by AMCE or its subsidiaries
following the Formation Transactions (each a "Future AMCE Property"),
exercisable for a period of five years following the closing of the Offering
upon AMCE's intended disposition of such property. The right of first refusal
provides that if AMCE or any of its subsidiaries obtains an acceptable third
party offer to acquire any interest in a Future AMCE Property,
49
<PAGE>
prior to selling any interest in such property, AMCE must first offer to sell
the Future AMCE Property to the Company on the same terms and conditions
contained in such third party offer. Such right of first refusal must be
exercised at least 5 days prior to the date the offer by the potential
third-party purchaser expires, but not less than 10 business days after AMCE
notifies the Company of the terms of such potential sale. If the Company
declines to purchase such Future AMCE Property on such terms and conditions,
AMCE will be free to sell such Future AMCE Property for a specified period of
time at a price at least equal to the price offered to the Company and on terms
and conditions substantially consistent with those offered to the Company. The
right of first offer provides that if AMCE or any of its subsidiaries desires to
sell any interest in a Future AMCE Property, AMCE must notify the Company and
the Company will have the right to make an offer to acquire such property within
a specified period of time. If the Company declines to make an offer, AMCE will
be free to sell such property for a specified period of time. If the Company
makes an offer but AMCE declines to sell such Future AMCE Property to the
Company on the terms and conditions contained in such offer, AMCE will be
restricted from selling such Future AMCE Property for a specified period of time
except upon terms and conditions and at a price more favorable to AMCE than
those offered by the Company. The Company's rights under the AMCE Right to
Purchase Agreement will terminate upon a change in control of the Company.
PLANET MOVIES PROPERTIES
In July 1997, AMCE and Planet Hollywood announced the formation of a joint
venture to develop and operate unique, integrated movie-going, dining and retail
shopping complexes to be branded "Planet Movies by AMC." The Company believes
that each complex will typically aggregate 200,000 square feet and include one
megaplex theatre, two theme restaurants and additional entertainment-related
retailers. The Company believes that Planet Movies expects to open 8 to 10
complexes over the next 12 to 24 months. Over the longer term, the Company also
believes that Planet Movies expects to open an additional 5 to 10 complexes per
year. The Company anticipates working closely with Planet Movies in evaluating
potential Planet Movies locations, including the acquisition and development of
property by the Company and the leasing of such property to Planet Movies,
although neither party is obligated to do so. The development and rental terms
of any such properties will be negotiated between the Company and Planet Movies
at the time that such transaction occurs. In addition, certain of the Properties
may be operated by AMC under the "Planet Movies by AMC" name in the future.
THEATRICAL EXHIBITION INDUSTRY AND MEGAPLEX THEATRES
The Initial Properties and the Option Properties are all megaplex theatres
that operate in the theatrical exhibition industry. Motion picture theatres are
the primary initial distribution channel for new motion picture releases, and
the Company believes that the theatrical success of the motion picture is often
the most important factor in establishing its value in the cable television,
videocassette and other ancillary markets. The Company further believes that the
emergence of new motion picture distribution channels has not adversely affected
attendance at theatres and that these distribution channels do not provide an
experience comparable to that of viewing a movie in a theatre. Annual domestic
theatre attendance has averaged approximately one billion persons since the
early 1960s. In 1996, domestic attendance was approximately 1.34 billion.
Fluctuations and variances in year-to-year attendance are primarily related to
the overall popularity and supply of motion pictures. During the period from
January 1, 1990 to December 31, 1996, the annual number of first-run motion
pictures released by distributors in the United States ranged from a low of 370
in 1995 to a high of 440 in 1993, according to the Motion Picture Association of
America.
The theatrical exhibition industry in North America is comprised of over 400
exhibitors, approximately 250 of which operate four or more screens. Based on
the listing of exhibitors in the National Association of Theatre Owners (NATO)
1996-97 Encyclopedia of Exhibition, as of May 1, 1997, the 10 largest exhibitors
(in terms of number of screens), which includes AMCE, operated approximately 58%
of the total screens, with no one exhibitor operating more than eleven percent
of the total screens.
50
<PAGE>
The shortage of quality screens in the United States has caused theatrical
exhibitors to build new screens or renovate old screens. The Company believes
that the introduction of megaplex theatres by AMCE has created a new replacement
cycle for the industry and prompted the current theatrical exhibition industry
trend in the United States and Canada toward the development of larger theatre
complexes. This trend has accelerated the obsolescence of many existing movie
theatres by setting new standards for moviegoers, who have demonstrated their
preference for the more attractive surroundings, wider variety of films, better
customer service and more comfortable seating typical of megaplex theatres. The
Company believes that consumers will increasingly choose theatres based on the
quality of the movie-going experience rather than the location of the theatre.
As a result, the Company believes that older, smaller theatres will become
obsolete as the megaplex theatre concept matures.
The Company defines megaplex theatres as theatres having at least 14 screens
with predominantly stadium-style seating (seating with an elevation between rows
to provide unobstructed viewing). Megaplex theatres enable theatre operators to
exhibit concurrently a variety of motion pictures attractive to different
segments of the movie-going public. Megaplex theatres also allow theatre
operators to match a particular motion picture's attendance patterns to the
appropriate auditorium size (ranging from approximately 90 to 450 seats),
thereby extending the run of a motion picture and achieving superior theatre
economics. The Company believes that megaplex theatres enhance the ability of
operators to license commercially popular motion pictures.
According to the Motion Picture Association of America, the number of indoor
screens in the United States has increased from 24,344 at the end of 1992 to
28,905 at the end of 1996, or approximately 18.7%, and the Company believes the
number of screens located in theatres with at least 14 screens has increased
from fewer than 100 at the end of 1992 to approximately 2,300 at the end of
1996.
EDGAR REPRESENTATION OF DATA POINTS USED IN PRINTED GRAPHIC
<TABLE>
<CAPTION>
SCREENS 1992 1996
<S> <C> <C>
U.S. indoor screens in theatres with 13 or fewer screens 24,244 26,605
U.S. indoor screens in theatres with 14 or more screens 100 2,300
</TABLE>
Source: NATO Encyclopedia of Exhibition and AMCE
There are currently approximately 2,700 screens in theatres with at least 14
screens operating in the United States, with the first megaplex theatre having
been opened by AMCE in May 1995. From January 1 through October 16, 1997, 34
theatres with at least 14 screens ranked in the top 50 highest grossing theatres
in the United States, including 12 of AMCE's 15 megaplex theatres that were
operating during the entire period. The Company believes that the number of
screens in theatres with at least 14 screens is growing faster than the total
number of screens as a result of the replacement of older theatres with newer,
larger theatres.
AMCE is an industry leader in the development and operation of megaplex
theatres, primarily in large metropolitan markets, and 25 of its 27 theatres
under construction as of October 2, 1997 are megaplex theatres. AMCE's megaplex
theatres have consistently ranked among its top grossing properties on a per
screen basis. The following chart depicts a comparison of attendance per screen,
total
51
<PAGE>
revenue per patron, operating cash flow before rent as a percentage of total
revenue and return on assets for AMCE's megaplex theatres and multiplex theatres
for the fiscal year ended April 3, 1997.
<TABLE>
<CAPTION>
DIFFERENCE
MEGAPLEX MULTIPLEX ----------------------------
THEATRES THEATRES AMOUNT PERCENT
----------- ----------- --------------- -----------
<S> <C> <C> <C> <C>
Attendance per screen
(patrons)................... 88,200 63,800 24,400 38.2%
Total revenue per patron...... $ 6.54 $ 5.95 $ 0.59 9.9%
Operating cash flow before
rent as a percentage of 410 basis
total revenue(1)............ 37.2% 33.1% points
</TABLE>
- --------------
(1) Operating cash flow is operating income plus depreciation and amortization.
ENTERTAINMENT THEMED RETAIL CENTERS
ETRCs are generally large multi-tenant retail developments that incorporate
elements such as restaurants, book or music superstores, high-tech attractions,
interactive game centers, live entertainment venues and other specialty retail
that is oriented to entertainment or leisure-time activities. The Company
believes that the most important component of an ETRC is a megaplex theatre due
to its ability to generate substantial customer traffic to the site. Such
centers typically attempt to provide a family entertainment experience by
creating an atmosphere of fun and excitement. The Company believes that ETRCs
broaden the traditional retail shopping concept and attract a greater number of
customers to spend more time and money at a single location. ETRCs may be
free-standing or attached to regional malls. The recently announced Planet
Movies joint venture is an example of two entertainment based retailers that
expect to capitalize on what the Company believes to be a growing destination
entertainment trend. See "--Planet Movies Properties." The Company believes that
not only do significant opportunities exist today but also that the consumer
demand for entertainment will lead to ETRCs as a rapid growth category of the
retail real estate industry.
GOVERNMENTAL REGULATIONS AFFECTING THE PROPERTIES
ENVIRONMENTAL LAWS. Under various federal, state and local laws, ordinances
and regulations, a current or previous owner, developer or operator of real
estate may be liable for the costs of removal or remediation of certain
hazardous or toxic substances at, on, under or in its property. The costs of
such removal or remediation could be substantial. Such laws often impose such
liability without regard to whether the owner or operator knew of, or was
responsible for, the release or presence of such hazardous or toxic substances.
The presence of such substances may adversely affect the owner's ability to sell
or rent such real estate or to borrow using such real estate as collateral.
Persons who arrange for the disposal or treatment of hazardous or toxic
substances also may be liable for the costs of removal or remediation of such
substances at the disposal or treatment facility, whether or not such facility
is owned or operated by such person.
Each of the Properties has undergone a Phase I environmental assessment
(which does not involve invasive procedures such as soil sampling or ground
water analysis) by independent consultants within the last two years. While some
of these assessments have led to further investigation and sampling, none of the
environmental assessments has revealed, nor is the Company aware of, any
environmental liability that the Company believes would have a material adverse
effect on the Company's business, financial condition or results of operations.
No assurance can be given, however, that these assessments and investigations
reveal all potential environmental liabilities, that no prior owner or operator
or other person created any material environmental condition not known to the
Company or the independent consultants or that future uses, conditions or legal
requirements (including, without limitation, those that may result from future
acts or omissions or changes in applicable environmental laws and regulations)
will not result in the imposition of environmental liabilities. See "Risk
Factors--General Real Estate Investment Risks--Government Regulations."
Subsidiaries of AMCE have made certain representations
52
<PAGE>
in the Purchase Agreement regarding the absence of known environmental
liabilities and will indemnify the Company for any breaches of such
representations. Should environmental liabilities arise, however, there can be
no assurance that such indemnification will be available or uncontested.
AMERICANS WITH DISABILITIES ACT OF 1990. The Properties and any newly
developed or acquired entertainment or entertainment-related properties must
comply with Title III of the ADA to the extent that such properties are "public
accommodations" and/or "commercial facilities" as defined by the ADA. Compliance
with the ADA requires that public accommodations "reasonably accommodate"
individuals with disabilities and that new construction or alterations made to
"commercial facilities" conform to accessibility guidelines unless "structurally
impracticable" for new construction or technically infeasible for alterations.
The Company believes that the Properties substantially comply with all present
requirements under the ADA and applicable state laws. Under the Leases, AMC is
responsible for all costs associated with compliance with the ADA. However,
noncompliance with the ADA could result in the imposition of injunctive relief,
fines, an award of damages to private litigants or additional capital
expenditures to remedy such noncompliance.
INSURANCE COVERAGE
The Company believes that all of the Properties will be adequately insured
by AMC under the terms of the Leases; however, an uninsured loss could result in
loss of capital investment and anticipated profits. See "Risk Factors--General
Real Estate Investment Risks--Uninsured Loss."
COMPETITION
There are numerous commercial developers, real estate companies and other
owners of real estate, including those that operate in the regions in which the
Properties are located, that will compete with the Company in seeking properties
for acquisition and disposition, land for development and tenants for
properties. All of the Properties are located in developed areas that include
other entertainment and entertainment-related properties, including in many
instances one or more other multiplex or megaplex theatres operated by AMCE or
another exhibition company. The number of competitive properties in a particular
area could have a material adverse effect on the Company's ability to lease
space in, or renew leases for, future properties and on the rents charged. In
addition, AMCE, Planet Movies and other entertainment business operators may
lease entertainment and entertainment-related properties from owners other than
the Company. See "Risk Factors--General Real Estate Investment Risks--
Competition."
AMCE's theatres are subject to varying degrees of competition in the
geographic areas in which they operate. Competition is often intense with
respect to licensing motion pictures, attracting patrons and finding new theatre
sites. Theatres operated by national and regional circuits and by smaller
independent exhibitors compete aggressively with AMCE's theatres, often within
the local geographic area as AMCE's theatres. AMCE believes that the principal
competitive factors with respect to film licensing include licensing terms,
seating capacity and location and condition of an exhibitor's theatres. The
competition for patrons is dependent upon factors such as the availability of
popular motion pictures, the location and number of theatres and screens in a
market, the comfort and quality of the theatres and pricing. The theatrical
exhibition industry also faces competition from other distribution channels for
filmed entertainment, such as cable television, pay per view and home video
systems, as well as from all other forms of entertainment. See "Risk
Factors--Operating Risks Inherent in the Entertainment Industry." As with other
exhibitors, AMCE's smaller multiplex theatres are subject to being rendered
obsolete through the introduction of new, competing megaplex theatres.
LEGAL PROCEEDINGS
The Company is not a party to any legal proceedings. Pursuant to the Leases,
AMC will indemnify the Company from and against all liabilities, costs and
expenses imposed upon or asserted against the Company as owner of the applicable
Property on account of certain matters relating to the operation of the
Properties by AMC and, where appropriate, the ownership of the Properties prior
to their acquisition by the Company. See "Leases--Indemnification Generally."
53
<PAGE>
LEASES
The following summary of the Leases between the Company and AMC does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Leases, a form of which is filed as an exhibit to the
Registration Statement of which this Prospectus forms a part. Concurrently with
the conveyance by subsidiaries of AMCE of the Initial Properties to the Company,
the Company will lease each such property to AMC pursuant to a Lease. The
Company will lease to AMC the Option Properties, if acquired, pursuant to Leases
on substantially the same terms and conditions as the Leases for the Initial
Properties, including the Base Rent Escalation and the Annual Percentage Rent.
The land parcels related to the Properties, if acquired, and any additional
properties acquired (other than the Initial Properties and, if acquired, the
Option Properties) would be leased pursuant to such terms and conditions as may
be agreed upon between the Company and a lessee at the time of such
acquisitions, and such terms and conditions may vary from the terms and
conditions of the Leases described herein.
The Company's interest in each Property includes the land, buildings and
improvements, related easements and rights and fixtures thereon. The Company
will not own or lease any personal property, furniture or equipment at any
Property following the Formation Transactions, all of which will be owned, or
leased from third parties, by AMC.
AMCE will guarantee AMC's obligations under each Lease. The Company will
have general recourse to AMC under the Leases and to AMCE under its guarantee of
AMC's obligations under the Leases, but AMC's payment obligations under such
Leases and AMCE's obligations under its guarantee will not be secured by any
assets of AMC or AMCE other than as described under "--Assignment and
Subletting." Because AMCE's Credit Facility may be secured by a pledge of the
stock of AMC and other subsidiaries and of notes evidencing intercompany debt of
such subsidiaries to AMCE, in the event of bankruptcy or other winding up of
AMCE, the assets of such subsidiaries or proceeds from the sale of stock of such
subsidiaries may first be applied to AMCE's obligations under the AMCE Credit
Facility before being available to satisfy its obligations under its guarantee
of the Leases.
LEASE TERM. Each Property will be leased to AMC under a Lease that will
have a Fixed Term ranging from 13 to 15 years. In addition, AMC will have
options to extend the term of each Lease for four five-year Extended Terms.
USE OF THE PROPERTIES. Each Lease generally will require the Property to be
continuously operated, until the 10th anniversary of the commencement of the
Lease, only as a theatre and auditorium for presentation of motion pictures,
telecasts and other audio-visual presentations, and for meetings and other
public presentations and entertainment and other activities customarily
associated with or incidental to the operation of a movie theatre, including
operation of games and other amusement devices, sale or rental of
entertainment-related merchandise and sale of food, beverages and other goods
and wares. Following the 10th anniversary of the commencement of the Lease, AMC
or any permitted assignee will be permitted to operate each Property for any
lawful purpose, provided that AMC or such assignee must obtain the Company's
prior approval if such use would have the effect of causing all or a portion of
the amount received or accrued by the Company from such Property to be treated
as other than "rents from real property" within the meaning of Section 856(d) of
the Code. The Leases will generally require that AMC or any permitted assignee
operate the Properties in an efficient and professional manner.
AMOUNTS PAYABLE UNDER THE LEASES; NET PROVISIONS. During the Fixed Term and
the Extended Terms, AMC will pay annual base rent ("Annual Base Rent"), which
will be payable in monthly installments. Annual Base Rent for each Property will
be increased each year by the annual percentage increase in the CPI, not to
exceed 2%, times the Annual Base Rent applicable to that Property for the
preceding year. In addition, AMC will pay percentage rent equal to the sum of 6%
(the "Annual Percentage Rate") of Gross Receipts in excess of a baseline amount
("Annual Percentage Rent"). "Gross Receipts" with respect to a particular
Property generally means the receipts from the sale of theatre admission tickets
and concessions received by AMC in or from the Property during each lease year,
with certain deductions and exceptions. The baseline amount is generally an
amount equal to the
54
<PAGE>
quotient obtained by dividing the Annual Base Rent payable for a lease year by
the Annual Percentage Rate. The Company does not anticipate receiving any Annual
Percentage Rent under the Leases for at least five years following the Formation
Transactions.
Notwithstanding the foregoing, the Leases provide for a recalculation of
Percentage Rent and a redefinition of Gross Receipts during any period that a
Property is not used for theatre uses to reflect a market percentage rent based
on such use.
Each Lease is what is commonly referred to as a "triple net" lease, under
which AMC is required to pay thereunder Annual Base Rent, Annual Percentage Rent
and substantially all expenses associated with operation of the Properties. Such
expenses include all taxes, assessments and levies, excises, fees, and all other
governmental charges with respect to each Property, and all charges for
insurance, utilities, service and maintenance, including, without limitation,
electricity, telephone, trash disposal, gas, oil, water, sewer, communication
and all other utilities used in each Property, and any ground lease payments.
AMC will generally be obligated to comply with all laws, contracts, covenants
and restrictions affecting a Property and to perform all of the Company's
obligations under any ground lease affecting a Property.
AMC'S RIGHT OF FIRST REFUSAL AND FIRST OFFER. Pursuant to each Lease, AMC
will have a right of first refusal in the event the Company obtains an
acceptable third party offer to acquire any interest in any Property or in any
entertainment or entertainment-related property acquired or developed by the
Company and operated by AMC following the Formation Transactions (each a "Future
Property"). Pursuant to such right, prior to selling any interest in any
Property or Future Property, the Company must first offer to sell such Property
or Future Property to AMC on the same terms and conditions contained in such
third party offer. Such right of first refusal must be exercised at least 5 days
prior to the date the offer by the potential third party purchaser expires, but
not less than 10 business days after the Company notifies AMC of the terms of
such potential sale. If AMC declines to purchase such Property or Future
Property on such terms and conditions, the Company will be free to sell such
Property or Future Property for a specified period of time at a price at least
equal to the price offered to AMC and on terms and conditions substantially
consistent with those offered to AMC. Pursuant to each Lease, AMC will also have
a right of first offer, which provides that if the Company desires to sell any
interest in any Property, the Company must notify AMC and AMC will have the
right to make an offer to acquire such property within a specified period of
time. If AMC declines to make an offer, the Company will be free to sell such
Property for a specified period of time. If AMC makes an offer but the Company
declines to sell such Property to AMC on the terms and conditions contained in
such offer, the Company will be restricted from selling such Property for a
specified period of time except upon terms and conditions and at a price more
favorable to the Company than those offered by AMC. AMC will have a similar
right of first offer if, upon expiration of the Fixed Term and any Extended
Term, the Company seeks to lease a Property for use as a theatre at a rate less
than the amount then payable under the Lease.
MAINTENANCE, MODIFICATION AND CAPITAL ADDITIONS. AMC will, at its sole cost
and expense, maintain each Property in good order, repair and appearance and
will make structural and non-structural, interior and exterior, foreseen and
unforeseen, and ordinary and extraordinary repairs which may be necessary and
appropriate to keep such Property in good order, repair and appearance
(excluding ordinary wear and tear). The Company generally will not be required
to build or rebuild any improvements to any Property, or to make any repairs,
replacements, alterations, restorations or renewals to any Property, except in
connection with certain uninsured losses or takings. In the event that the
Company elects to make capital improvements on a Property, the Company will
generally condition such election on an increase in Annual Base Rent under the
Lease with respect to such Property to reflect such expenditures.
AMC, at its sole cost and expense, may make certain alterations, additions,
changes and/or improvements to each Property without the prior written consent
of the Company, provided that the value and primary intended use of such
Property is not impaired. All machinery, equipment, furniture,
55
<PAGE>
furnishings and other personal property installed at the expense of AMC on any
Property, will remain the property of AMC and may be removed by AMC at the
expiration or earlier termination of the Lease.
INSURANCE. Each Lease provides that AMC will maintain insurance on each
Property under AMC's insurance policies providing for the following coverages in
such amounts as are or shall customarily be insured against with respect to
properties similar to the Properties, including: (i) fire, vandalism and
malicious mischief, extended coverage perils and all physical loss perils, (ii)
commercial general public liability (including personal injury and property
damage), (iii) flood (when the Property is located in whole or in material part
in a designated flood plain area), earthquake and other similar hazards as may
be customary for comparable properties in the area, (iv) worker's compensation
and (v) such other insurance as the Company or any holder of a mortgage, deed of
trust or other security agreement on such Property (a "Company Mortgagee") may
reasonably require, which at the time is usual and commonly obtained on
commercially reasonable terms in connection with properties similar in type of
building size and use to the Property and located in the geographic area where
the Property is located. The foregoing insurance policies will name the Company
and any Company Mortgagee as additional insureds or loss payees, as applicable.
The deductibles for such insurance will be in such amounts as are common to
properties similar to the Properties. The amount of such insurance with respect
to any Property that is self-retained by AMC will not exceed 1% of AMCE's
consolidated net worth.
ASSIGNMENT AND SUBLETTING. The Leases provide that AMC may, without the
prior written consent of the Company, assign any Lease or sublease any Property
in whole or in part; provided that each sublease or assignment shall expressly
be made subject and subordinate to the provisions of such Lease; and, provided
that, such assignee or sublessee assumes all of AMC's obligations under the
Lease; and, provided further that, no assignment or sublease shall impose any
obligations on the Company, or modify or limit any right or power of the Company
under the Lease. The Leases further provide that no assignment will in any way
impair the continuing primary liability of AMC under, or AMCE as guarantor of
AMC's obligations under, the Leases. Notwithstanding the previous sentence, AMC
will be released of its primary liability under, and AMCE will be released as
the guarantor of AMC's obligations under, a particular Lease (i) if the Company
so consents or (ii) following the fifth anniversary of the commencement of such
Lease, the assignee of a Lease has a minimum net book value of at least $100
million and other specified conditions are met, including the requirement that
the assignee assumes all of AMC's obligations under the Lease or (iii) upon the
occurrence of certain conditions following the renewal of a Lease.
AMC will, without the Company's prior approval, be permitted to sublease
portions of any Property to concessionaires or licensees to: (i) operate games
or other amusement devices; (ii) sell food, beverages and refreshments; (iii)
sell or rent video cassettes and discs; (iv) sell records, compact discs, books,
magazines, toys and novelties related to the movie industry; and (v) sell other
goods, wares, merchandise and services customarily associated with or incidental
to the operation of each Property. Each sublease will be subject and subordinate
to the provisions of the Lease relating to the subject Property. The sublease
will not affect or reduce any of the obligations of AMC under, or AMCE as
guarantor of AMC's obligations under, the relevant Lease, nor will the sublease
impose any additional obligations on the Company. AMC will, within 10 days after
the execution and delivery of any sublease, deliver a duplicate original thereof
to the Company. AMC will need the Company's prior approval before entering into
any sublease, license agreement or other arrangement which would have the effect
of causing all or a portion of the amount received or accrued by the Company
under the Leases to be treated as other than "rents from real property" within
the meaning of Section 856(d) of the Code.
As security for performance of its obligations under each Lease, AMC grants,
conveys and assigns to the Company all right, title and interest of AMC in and
to all subleases entered into for any or all of any Property, and all
extensions, modifications and renewals thereof and all rents, issues and profits
therefrom. The Company grants AMC a license to collect and enjoy all rents and
other sums of money payable under any such sublease; PROVIDED, HOWEVER, that the
Company will have the absolute right at
56
<PAGE>
any time after the occurrence of an Event of Default (as hereinafter defined)
upon notice to AMC and any subtenants to revoke said sublease or license and to
collect such rents and sums of money and to retain the same.
DAMAGE TO, OR CONDEMNATION OF, A PROPERTY. In the event of any insurable
damage or destruction to any Property, AMC has the obligation to repair or
restore the same at AMC's expense (to the extent then permitted by law and to
the extent of available insurance proceeds plus any deductible and self insured
amounts), with the Annual Base Rent, real estate taxes and other impositions on
the particular Property being proportionately abated during the time of
restoration, but only to the extent of any rental interruption insurance
proceeds actually received by the Company. The Company has the obligation to
make all insurance proceeds available as a result of such damage or destruction
to AMC for restoration. If any Property is damaged by an insurable event to such
an extent that the cost of restoration would exceed 50% of the cost to
completely replace the theatre building on such Property at the time of such
damage, and if AMC has fully complied with the insurance obligations with
respect to such Property (including maintaining insurance against loss of
rents), AMC may terminate the Lease of that Property. With respect to an
insurable event, AMC will be obligated to turn over all insurance proceeds to
the Company with respect to such Property, together with an amount equal to the
difference, if any, between the amount of such insurance proceeds and the net
book value of the damaged property, as reflected on the Company's financial
statements on the date of damage. Under certain other circumstances following
damage to a Property AMC may terminate the Lease with respect to that Property.
In the event of any uninsurable damage or destruction to any Property, AMC
may have, under certain circumstances, a right to terminate the respective Lease
and, alternatively, the Company may have a duty to restore the Property.
In the event of a condemnation or taking of a material part of any Property
(meaning any material part of the theatre building or a specified percentage of
parking spaces servicing such Property) AMC shall have the option of terminating
the Lease with respect to such Property if exercised within a specified time
period following such taking. In such event, the total condemnation award shall
be payable to the Company, except that AMC may recover the value of its
property, if taken, so long as the amount of the award paid to the Company is
equal to the net book value of the Property taken, as reflected on the Company's
financial statements on the date of the condemnation.
INDEMNIFICATION GENERALLY. Under each Lease, AMC indemnifies, and is
obligated to save harmless, the Company generally from and against liabilities,
costs and expenses (including reasonable attorneys' fees and expenses) and
actual or consequential damages imposed upon or asserted against the Company as
owner of the applicable Property on account of, among other things, (i)
accident, injury to or death of a person or loss of or damage to property on or
about the Property (unless caused by the willful or negligent act or omission by
the Company), (ii) use, misuse, non-use, condition, maintenance or repair by or
on behalf of AMC of the Property, (iii) impositions (which are the obligations
of AMC to pay pursuant to the applicable provisions of such Lease or any
sublease), (iv) failure on the part of AMC to perform or comply with any of the
terms of the Lease or any sublease, (v) liability the Company may incur or
suffer as a result of any permitted contest by AMC under any Lease and (vi)
failure by AMC to comply with any laws (including the ADA) affecting the
Property. Under each Lease, the Company indemnifies, and is obligated to save
harmless, AMC generally from and against liabilities, costs and expenses
(including reasonable attorneys' fees) imposed upon or asserted against AMC as a
result of the Company's willful or negligent act or omission.
ENVIRONMENTAL MATTERS. Each Lease provides for various representations and
warranties by AMC relating to environmental matters with respect to each
Property. Each Lease requires (i) AMC to indemnify and hold harmless the Company
and any holder of a mortgage, deed of trust or other security agreement on a
Property from and against all liabilities, costs and expenses imposed upon or
asserted against the Company or the Property on account of any federal, state or
local law, ordinance, regulation,
57
<PAGE>
order or decree relating to the protection of human health or the environment in
respect of the Property which liability arises as a result of any event or
occurrence during the period when AMC or any of its affiliates was an owner of
the Property or a tenant pursuant to a ground lease or is an obligor under the
Lease and which does not arise as a result of the actions or negligence of the
Company or its agents or invitees, and (ii) the Company to indemnify and hold
AMC harmless from and against all liabilities, costs and expenses imposed upon
or asserted against AMC or the Property on account of any federal, state or
local law, ordinance, regulation, order or decree relating to the protection of
human health or the environment in respect of the Property which liability
arises as a result of the actions or negligence of the Company or its agents or
invitees.
EVENTS OF DEFAULT. An "Event of Default" will be deemed to have occurred
under a Lease if AMC fails to perform any non-monetary covenant and does not
diligently undertake to cure the same after 30 days' notice from the Company; if
the interest of AMC in any Property is levied upon or attached and such levy or
attachment is not discharged in a specified period of time; or if any
representation or warranty of AMC is materially incorrect. An "Event of Default"
also will be deemed to have occurred under any of the Leases and, prior to the
Cross-Default Termination Date, all of the Leases if AMC fails to pay any rent
within 15 days after written notice of non-payment from the Company, if any
bankruptcy or insolvency proceedings are instituted by or against AMCE or AMC
and, if against AMCE or AMC, they are not dismissed within 90 days or if AMC
fails to continuously operate a Property for a permitted use. "Cross-Default
Termination Date" means the earlier to occur of (i) the date AMCE's senior
long-term debt obligations are rated, or AMCE's corporate credit rating is,
investment grade by either Standard & Poor's Corporation or Moody's Investors
Service, Inc., (ii) AMC's rent payments represent less than 50% of the Company's
rental income for any fiscal quarter or (iii) the expiration of a Fixed Term
with respect to a Lease. The Company's right to exercise its remedies in the
event of certain non-monetary and non-bankruptcy related defaults may be stayed
if AMC disputes any such default.
In the event of any Event of Default referable to a specific Property, the
Company may evict AMC from such Property and either terminate the Lease or
re-let the Property. In either event, AMC shall remain responsible for the rents
for such Property for the remainder period of the term in excess of rents
received by the Company from any successor occupant. In addition, the Company
may exercise any other rights that it may have under law or under the Leases.
TERMINATION BY AMC. The Leases grant to AMC certain limited rights to
terminate the Lease with respect to a particular Property or Properties upon a
determination by AMC, reasonably exercised, that such Property has become
economically obsolete due to competition or circumstances relating to the
property adjacent to such Property. Upon such termination, AMC will be obligated
to pay the Company the greater of its net book value and its appraised value
based on the capitalized value of AMC's remaining rental payments under the
Leases, assuming the Leases remained in place during the applicable Fixed Term
or Extended Term. The appraised value of such Property shall be determined by an
independent appraiser selected by AMC and the Company as more fully described in
the Lease. The Leases also grant to AMC certain limited rights to terminate the
Lease with respect to a certain Property if any law prohibits the use of AMC's
theatre facility as permitted under the Leases.
LIMITS ON COMPETITION BY THE COMPANY. Under the Leases, AMC is entitled to
a reduction in rent in certain circumstances in the event the Company owns a
theatre property within 500 feet of the AMC-leased property. Further, the
Company is generally prohibited from selling certain items sold in theatre
concession stands within 150 feet of the AMC-leased property.
Each Lease will be governed by and construed in accordance with the law of
the state in which the related Property is situated (but not including such
state's conflict of laws rules). None of the agreements entered into by AMC in
connection with the Formation Transactions prohibits or otherwise restricts the
Company's ability to lease properties to parties (domestic or foreign) other
than AMC.
58
<PAGE>
MANAGEMENT
TRUSTEES AND EXECUTIVE OFFICERS OF THE COMPANY
<TABLE>
<CAPTION>
YEAR TRUSTEE
NAME AGE TITLE TERM EXPIRES
- ------------------------ ----------- --------------------------------------------- -----------------
<S> <C> <C> <C>
Peter C. Brown.......... 39 Chairman of the Board of Trustees 2000
President, Chief Development Officer and
Robert L. Harris........ 39 Trustee 1999
David M. Brain.......... 41 Chief Financial Officer
Robert J. Druten........ 50 Trustee 1999
Charles S. Paul......... 48 Trustee 2000
Scott H. Ward........... 40 Trustee 1998
</TABLE>
PETER C. BROWN has served as Chairman of the Board of Trustees of the
Company since August 1997 and as a Director of AMCE and AMC since November 12,
1992. Mr. Brown was appointed President of AMCE on January 10, 1997. Mr. Brown
served as Executive Vice President of AMCE from August 3, 1994 to January 10,
1997. Mr. Brown has served as Executive Vice President of AMC since August 3,
1994, and as Chief Financial Officer of AMCE and AMC since November 14, 1991.
Mr. Brown served as Senior Vice President of AMCE and AMC from November 14, 1991
until his appointment as Executive Vice President in August 1994. Mr. Brown
served as Treasurer of AMCE and AMC from September 28, 1992 through September
19, 1994. Prior to November 14, 1991, Mr. Brown served as a consultant to AMCE
from October 1990 to October 1991. Prior to serving as a consultant to AMCE, Mr.
Brown was a Vice President at DJS Inverness, Inc., an investment banking firm
located in New York City. Mr. Brown is a graduate of the University of Kansas.
ROBERT L. HARRIS has served as President, Chief Development Officer and
Trustee of the Company since August 1997. From 1992 until joining the Company,
he was employed by AMCE, most recently serving as a Senior Vice President of AMC
in charge of its international efforts. From 1980 to 1992, Mr. Harris was
employed by Carlton Browne & Company, a California-based real estate developer,
serving as its President from 1985 to 1992. During such employment, Mr. Harris
was in charge of development projects totaling in excess of 3.0 million square
feet, including more than 900,000 square feet of commercial/retail development.
Mr. Harris is a director of Imperial Bancorp's Financial Group and serves on the
Board of Pepperdine University's George L. Graziadio School of Business and
Management. Mr. Harris is an alumnus of the University of Southern California.
Mr. Harris is a member of the International Council of Shopping Centers (ICSC)
and was a speaker at the last two regional conferences on ETRCs.
DAVID M. BRAIN has served as Chief Financial Officer of the Company since
August 1997 and has acted as a consultant to AMCE regarding the formation of the
Company since July 1997. From 1996 until that time he was a Senior Vice
President in the investment banking and corporate finance department of George
K. Baum & Company ("GKB"), an investment banking firm headquartered in Kansas
City, Missouri. Mr. Brain's responsibilities at GKB included client advisory
assignments involving the establishment of real estate joint ventures and the
placement of debt and equity for real estate acquisitions and developments.
Before joining GKB, Mr. Brain was in the Kansas City office of KPMG Peat Marwick
LLP as Managing Director of the Corporate Finance group, a practice unit that he
organized and managed for over 12 years. Besides his corporate finance
experience, Mr. Brain has appeared numerous times as an expert witness in
federal and state courts regarding valuation matters. He received a Bachelor of
Arts degree in Economics from Tulane University with honors, as well as Phi Beta
Kappa and Tulane Scholar designations, and a Masters of Business Administration
from the A.B. Freeman Graduate Business School at Tulane University, where he
was awarded an academic fellowship. Mr. Brain serves as a director for Capital
for Entrepreneurs, Inc., a venture capital fund, the Center for Business
Innovation, Inc., a not-for-profit small business incubator located on the
campus of the University of Missouri at
59
<PAGE>
Kansas City, Weather Protection Systems, Inc., a tension fabric structure
vendor, and the Council for Entrepreneurship at the University of Missouri at
Kansas City.
Mr. Robert J. Druten is expected to serve as a trustee of the Company. He is
currently Vice President-Administration, Chief Financial Officer and a Corporate
Officer of Hallmark Cards Incorporated. From 1991 to 1994, Mr. Druten served as
Executive Vice President and Chief Financial Officer of Crown Media, Inc., a
cable communications subsidiary of Hallmark Cards, Inc. From 1989 to 1991, Mr.
Druten served as Vice President of Corporate Development and as a Corporate
Officer of Hallmark Cards Incorporated. Mr. Druten is a member of the Hallmark
Cards Holdings, Ltd. board of directors and is a member of the Hallmark
Entertainment, Inc. board of directors. Mr. Druten received a Bachelor of Arts
in economics from University of Kansas and a Masters of Business Administration
from Rockhurst College.
Mr. Charles S. Paul is expected to serve as a trustee of the Company. He has
served as Chairman and Chief Executive Officer of Sega Gameworks, L.L.C. since
1996. Prior to that time, Mr. Paul served as Executive Vice President and a
Director of MCA Inc. Before joining MCA in 1985, Mr. Paul served in various
positions at Atari Inc., including President of the coin-operated game division.
Mr. Paul also serves as a director of National Golf Properties, Inc.
Mr. Scott H. Ward is expected to serve as a trustee of the Company. He has
served as Co-President of Russell Stover Candies, Inc. and Whitman's Candies,
Inc. since 1993 and as a Vice President of Castle Mountain Ranch, Inc. since
1981. From March 1993 to January 1997 he additionally served as the Chief
Financial Officer of Russell Stover Candies, Inc. and Whitman's Candies, Inc.
From 1981 to 1993 he served as a Vice President of Russell Stover Candies, Inc.
Mr. Ward received a Bachelor of Science in business from the University of
Kansas and a Masters of Business Administration from the University of Texas.
The Company is currently in discussions with prospective individuals for the
position of Treasurer and additional development support staff. The Company
intends to fill these positions following the Formation Transactions. See "The
Company--Business Objectives and Operating Strategies."
CLASSIFICATION OF TRUSTEES
Pursuant to the terms of the Company's Declaration of Trust, the trustees
are divided into three classes. One class (consisting of Mr. Ward) will hold
office for a term expiring at the annual meeting of shareholders to be held in
1998, a second class (consisting of Mr. Harris and Mr. Druten) will hold office
for a term expiring at the annual meeting of shareholders to be held in 1999 and
a third class (consisting of Mr. Brown and Mr. Paul) will hold office for a term
expiring at the annual meeting of shareholders to be held in 2000. Each trustee
will hold office for the term to which he or she is elected and until his or her
successor is duly elected and qualified. At each annual meeting of shareholders
of the Company, the successors to the class of trustees whose terms expire at
such meeting will be elected to hold office for a term expiring at the annual
meeting of shareholders held in the third year following the year of their
election. See "Certain Provisions of Maryland Law and of the Company's
Declaration of Trust and Bylaws." The Company's Declaration of Trust does not
require that a specified number of trustees be independent trustees. However,
the Company considers Mr. Druten, Mr. Paul and Mr. Ward to be independent
trustees for purposes of NYSE requirements.
COMMITTEES OF THE BOARD
The Board expects to establish an Audit Committee consisting of Mr. Druten
and Mr. Paul. The Audit Committee will be responsible for making recommendations
concerning the engagement of independent public accountants, reviewing the plans
and results of the audit engagement with the independent public accountants,
approving professional services provided by the independent public accountants,
reviewing the independence of the independent public accountants, considering
the range of audit and non-audit fees and reviewing the adequacy of the
Company's internal accounting controls.
60
<PAGE>
The Board expects to establish a Compensation Committee consisting of Mr.
Druten and Mr. Ward. The Compensation Committee will be responsible for
reviewing the performance of executive officers and changes in officers'
compensation and benefits.
The Company may from time to time form other committees as circumstances
warrant. Such committees will have authority and responsibility as delegated by
the Board of Trustees.
COMPENSATION OF TRUSTEES
The Company will pay an annual retainer of $18,000 to each of its trustees
who is not an officer or employee of the Company or any of its affiliates (a
"Non-Employee Trustee"). The annual retainer will be paid 50% in cash and 50% in
Shares. A Non-Employee Trustee may elect to receive all of the retainer in
Shares and may also elect to defer payment of his annual retainer under the
Company's Deferred Compensation Plan for Non-Employee Trustees (the "Deferred
Compensation Plan"). Such trustees will also receive $1,000 for each Board
meeting attended, which will also be paid in cash. Non-employee chairpersons of
Board committees will receive $1,250 payable in cash for each committee meeting
attended and non-employee members of the Board committees will receive $750
payable in cash for each committee meeting attended. Employees of the Company or
its affiliates who are trustees will not be paid any trustee fees. Trustees will
be reimbursed for any out-of-town travel expenses incurred in connection with
attendance at Board meetings.
In addition, pursuant to the Company's 1997 Share Incentive Plan, each
Non-Employee Trustee will be entitled to receive an option to purchase 10,000
Shares on the effective date of the Registration Statement (or the date such
person first becomes a Non-Employee Trustee) relating to the Offering and will
automatically receive an option to purchase 3,333 Shares on the date of each
subsequent annual meeting of shareholders at a price per Share equal to the
closing price of one Share on such annual meeting date. The initial options
awarded to Non-Employee Trustees will vest in equal increments over a three year
period. Annual options granted to Non-Employee Trustees will vest after one
year. Such options will expire after ten years unless sooner terminated by
reason of the trustee's termination of service as a trustee. Except in the case
of disability or death, such options will terminate 90 days after termination of
service. In the event of disability or death, they will terminate one year after
such event. Notwithstanding the foregoing, upon a change in control, all options
will become vested and exercisable in full. See "--Compensation Programs--Share
Incentive Plan."
Pursuant to the Deferred Compensation Plan, each Non-Employee Trustee may
elect to defer all or a portion of his or her annual retainer and meetings fees
earned as a member of the Board of Trustees. All amounts deferred under the
Deferred Compensation Plan will be credited to each participant's share unit
account which will be based on the number of Shares that a participant has
elected to defer and the amount of any cash a participant elected to defer if
such cash were converted into Shares based on the value of the Shares on the
date of deferral. Any dividends paid on the Shares during the term of the
Deferred Compensation Plan will be deemed to be paid on Share units held in a
participant's share unit account and such dividends will be converted into
additional Share units. When a participant elects to participate in the Deferred
Compensation Plan, he must elect whether he will receive payments from the Plan
after termination of his status as a trustee in a lump-sum or in substantially
equal payments over a period not to exceed 10 years. Notwithstanding the
foregoing, upon a change in control of the Company, all amounts will be paid in
a lump-sum following termination. All payments made under the Deferred
Compensation Plan will be made in Shares equal in number to the number of Share
units allocated to a participant's share unit account; provided, however, that
cash payments will be made in lieu of fractional shares.
EXECUTIVE COMPENSATION
Prior to the Offering, the Company will not pay any compensation to its
executive officers. The following table sets forth the annual base salary rates
and other compensation expected to be paid by
61
<PAGE>
the Company in 1997 to the most highly compensated executive officers of the
Company (i.e., those whose cash compensation from the Company in 1997 on an
annualized basis is expected to exceed $100,000).
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG-TERM COMPENSATION
---------------------------------
AWARDS
---------------------------------
ANNUAL COMPENSATION SECURITIES
RESTRICTED UNDERLYING
------------------------ SHARE AWARDS OPTIONS/
NAME AND PRINCIPAL POSITION YEAR SALARY(1) BONUS ($)(2) SARS(#)(3)
- ------------------------------- --------- ----------- ----------- -------------- -----------------
<S> <C> <C> <C> <C> <C>
Robert L. Harris ..............
President and Chief
Development Officer 1997 $ 225,000 (4) $ 800,000 40,000
David M. Brain ................
Chief Financial Officer 1997 $ 175,000 (4) $ 400,000 20,000
</TABLE>
- --------------
(1) Amounts given are annualized salaries effective for the year ended December
31, 1997.
(2) These Shares are entitled to receive distributions to the extent paid by the
Company.
(3) All options will vest in 20% increments at the end of each of the first five
years following the Offering, and will be exercisable at a price per Share
equal to the initial public offering price per Share.
(4) Amount of bonus is contingent on performance measures. See "Compensation
Programs--Annual Incentive Program."
EMPLOYMENT AGREEMENTS
The Company will enter into employment agreements with Robert L. Harris and
David M. Brain, pursuant to which Mr. Harris will serve as the President and
Chief Development Officer and Mr. Brain will serve as the Chief Financial
Officer of the Company, each for a period of two years (extendable at the option
of the Company) at an initial annual compensation of $225,000 and $175,000,
respectively, subject to any increases in base compensation approved by the
Compensation Committee. Upon consummation of the Formation Transactions, Mr.
Harris and Mr. Brain will receive a signing bonus of $40,000 and $30,000,
respectively. Such agreements will provide for awards under the Entertainment
Properties Trust 1997 Share Incentive Plan (the "Share Incentive Plan")
described below under "Compensation Programs -- Share Incentive Plan -- Awards
Made Under the Share Incentive Plan" and for annual performance-based bonuses at
maximum, target and threshold levels equal to 60%, 40% and 20% of base salary
for Mr. Harris and 40%, 20% and 10% of base salary for Mr. Brain. Under such
agreements, if either Messrs. Harris and Brain is terminated by the Company
without cause or if either terminates their employment as a result of a material
breach of his employment agreements by the Company, he will be entitled to
receive an amount equal to his base salary plus target performance bonus over
the unexpired term of his employment agreement.
COMPENSATION PROGRAMS
The Company has implemented various compensation programs (the "Compensation
Programs") to attract and retain trustees, executive officers and other key
employees of the Company, to provide incentives to such persons to maximize the
Company's Funds from Operations and to enable trustees, executive officers and
other key employees of the Company to participate in the ownership of the
Company. The Annual Incentive Program provides for the payment of certain
incentive payments based
62
<PAGE>
on performance. The Share Incentive Plan provides executive officers the
opportunity to purchase Shares (the "Share Purchase Program"), the grant of
restricted Shares or restricted share units (the "Restricted Share Program") and
the award to executive officers and other key employees of the Company of
nonqualified options and incentive options to purchase Shares (the "Share Option
Program"). The Share Incentive Plan also provides for performance based
restricted Share and unit awards and other awards whose value is based on Shares
and which may be paid in cash or Shares or a combination thereof. Performance
based Share and unit awards under the Share Incentive Plan may be based upon the
same criteria as awards under the Annual Incentive Program described below. The
maximum number of performance Shares subject to an award to an employee subject
to the deductibility limitations of Section 162(m) of the Code will not exceed
250,000 for each 12 months during a performance period (or, to the extent such
award is paid in cash, the maximum dollar amount of such award is the equivalent
cash value of such number of Shares). Upon the occurrence of a change in
control, all performance conditions will be deemed satisfied. No such awards are
presently contemplated, however.
The Compensation Programs will be administered by the Board, unless and
until the Board appoints a Compensation Committee, which is authorized to select
from among the eligible employees of the Company individuals to whom incentive
and other Share-based awards are to be granted and to determine the number of
Shares to be subject thereto and the terms and conditions thereof. The Board or
Compensation Committee is also authorized to adopt, amend and rescind rules
relating to the administration of any such compensation programs. No member of
the Board or Compensation Committee is eligible to participate in any
Compensation Program other than as non-employee trustees of the Company.
ANNUAL INCENTIVE PROGRAM. The Annual Incentive Program provides for
incentive payments to employees designated by the Board or Compensation
Committee. Such payments may not exceed $300,000 or 60% of the employee's base
salary, whichever is less, and will be based on performance measured against a
target or the achievement of certain strategic objectives relating to one or
more of the following criteria: revenue, revenue growth, EBITDA, EBITDA growth,
Funds from Operations, Funds from Operations per Share and per Share growth,
Cash Available for Distribution, Cash Available for Distribution per Share and
per Share growth, net earnings, earnings per share, earnings per share growth,
return on equity, return on assets, share price performance on an absolute basis
and relative to an index, attainment of expense levels and completion of
critical projects. For the Company's initial fiscal year, awards will be based
on Funds from Operations. Maximum, target and threshold levels will be set for
each participant at the time of grant. Such levels will be 60%, 40%, and 20% of
base salary for Mr. Harris and 40%, 20% and 10% of base salary for Mr. Brain.
All or part of the incentive payments may be paid in unrestricted Shares at the
participant's option.
SHARE INCENTIVE PLAN. Pursuant to the Share Incentive Plan, employees and
trustees of the Company or any of its subsidiaries are eligible to receive
options, restricted Shares, restricted Share units, performance Shares,
performance Share units and other Share awards or awards based on the value of
the Shares. The purpose of the Share Incentive Plan is to enable the Company to
attract and retain employees and trustees of outstanding ability and to provide
employees and trustees with an interest in the Company parallel to that of the
Company's shareholders.
SHARE PURCHASE PROGRAM. Pursuant to the Share Incentive Plan, the Company
may provide participants the opportunity to purchase Shares at the fair market
value of such Shares at time of purchase. Such Shares may be subject to certain
transfer restrictions and other conditions as the Board or Compensation
Committee may determine at the time of grant. It is the intention of the Company
that after five years, participation by certain officers in the Share Incentive
Plan will be contingent upon his or her ownership of Shares with a value equal
to a multiple of the executive's then existing base salary.
63
<PAGE>
RESTRICTED SHARE PROGRAM. Pursuant to the Share Incentive Plan, the Company
may grant restricted Shares or restricted Share units from time to time to
employees of the Company. Restricted Shares and restricted Share units shall be
subject to the terms and conditions as the Board or Compensation Committee may
determine at the time of grant. Restricted Shares may also be sold to
participants at various prices (or issued without monetary consideration) and
may be made subject to such restrictions as may be determined by the Board or
Compensation Committee. In general, restricted Shares may not be sold, or
otherwise transferred or hypothecated, until restrictions are removed by the
Board or Compensation Committee or expire. Grantees of restricted Shares, unlike
recipients of Share options, will have voting rights and will receive dividends
and distributions prior to the time such restrictions lapse. All restrictions on
restricted Shares lapse upon the occurrence of a change in control, as defined
in the Share Incentive Plan. Restricted Share units may be paid in cash or
Shares or a combination thereof, all at the discretion of the Board or
Compensation Committee.
SHARE OPTION PROGRAM. Pursuant to the Share Incentive Plan, the Company may
grant options to purchase Shares from time to time to employees of the Company.
Options may be either nonqualified options or incentive options (for employees
only) and may also be issued to participants at various prices and may be made
subject to such restrictions as may be determined by the Compensation Committee.
Nonqualified options, if granted, will provide for the right to purchase
Shares at a specific price that may be less than the fair market value of Shares
on the grant date and usually will become exercisable in installments after the
grant date. Nonqualified options may be granted for any reasonable term, not to
exceed ten years, and may be transferrable in certain limited circumstances.
Incentive options, if granted, will be designed to comply with the
"incentive stock option" provisions of the Code and will be subject to
restrictions contained therein, including that the exercise price must generally
equal at least 100% of the fair market value of Shares on the grant date and
that the term generally must not exceed ten years. Incentive options may be
modified after the grant date to disqualify them from treatment as "incentive
stock options."
SHARES SUBJECT TO THE SHARE INCENTIVE PLAN. A maximum of 1,500,000 Shares
(including the 270,000 Shares awarded or reserved pursuant to the awards made
prior to the consummation of the Offering), subject to adjustment in the event
of certain corporate events, will be reserved for issuance under the Share
Incentive Plan. The limit on the number of shares subject to options granted to
any one individual is 750,000 shares so long as the grant does not violate the
Ownership Limit or cause the Company to fail to qualify as a REIT for federal
income tax purposes. See "Description of Shares of Beneficial
Interest--Restriction on Size of Holdings of Shares."
AWARDS MADE UNDER THE SHARE INCENTIVE PLAN. Prior to the consummation of
the Offering, pursuant to the Share Incentive Plan and the award agreements
entered into thereunder, the Company will lend approximately $1.6 million to
Robert L. Harris to purchase 80,000 Shares at the initial public offering price
pursuant to the Share Purchase Program. In addition, Mr. Harris will be granted
(i) 40,000 restricted Shares pursuant to the Restricted Share Program and (ii)
options to purchase 40,000 Shares pursuant to the Share Option Program.
Prior to the consummation of the Offering, pursuant to the Share Incentive
Plan and the award agreements entered into thereunder, the Company will lend
approximately $800,000 to David M. Brain to purchase 40,000 Shares at the
initial public offering price pursuant to the Share Purchase Program. In
addition, Mr. Brain will be granted (i) 20,000 restricted Shares pursuant to the
Restricted Share Program and (ii) options to purchase 20,000 Shares pursuant to
the Share Option Program.
The borrowings by Mr. Harris and Mr. Brain to purchase Shares will be
evidenced by full recourse notes bearing interest at 6.1% per annum. Interest
will accumulate and be added to principal. The notes will be payable in three
annual installments commencing on the third and ending on the fifth anniversary
64
<PAGE>
date of the notes. The Board or Compensation Committee may forgive a note after
application of proceeds from the sale of shares following a change in control or
termination of employment by reason of death, disability, normal retirement or
without cause.
The term of the options granted to Mr. Harris and Mr. Brain will be ten
years from the date of grant. Each such option will vest in 20% increments at
the end of each of five years following the Offering, and will be exercisable at
a price per Share equal to the initial public offering price per Share. Upon the
occurrence of a change in control, all options will automatically become vested
and exercisable in full and all restrictions on restricted Shares will lapse.
Restricted Shares will vest after five years, provided that the Compensation
Committee may accelerate vesting of any or all of the Restricted Shares at its
discretion. All unvested options held by either Mr. Harris or Mr. Brain will
vest and all restrictions with respect to Restricted Shares held by either of
them will lapse upon the occurrence of such executive officer's death,
separation from service due to disability, termination of employment by the
Company without cause, or termination of employment following a material breach
by the Company of the terms of his employment agreement. All unvested options
held by Mr. Harris also will vest and all restrictions with respect to
Restricted Shares held by him will lapse if he resigns following appointment of
a chief executive officer from outside the Company. Unvested options and
restricted Shares will be forfeited if the executive officer sells the Shares
purchased pursuant to the Share Purchase Program during the five-year period
subsequent to grant. The Shares purchased by Mr. Harris and Mr. Brain pursuant
to the Share Purchase Program may not be sold for two years following the
consumation of the Formation Transactions without the prior written consent of
the Company, except upon a change of control or termination by reason of death,
disability or normal retirement.
Participation by Mr. Harris and Mr. Brain in the Share Purchase Program
after five years will be contingent upon the ownership of Shares with a value
equal to five times base salary for Mr. Harris and two and one-half times base
salary for Mr. Brain.
In addition, Non-Employee Trustees will be granted nonqualified options
pursuant to the Share Incentive Plan. See "Management--Compensation of
Trustees."
TRUSTEE LIABILITY LIMITATION AND INDEMNIFICATION
Maryland law permits a Maryland real estate investment trust to include in
its declaration of trust a provision limiting the liability of its trustees and
officers to the trust and its shareholders for money damages except for
liability resulting from (a) actual receipt of an improper benefit or profit in
money, property or services or (b) active and deliberate dishonesty established
by a final judgment as being material to the cause of action. The Company's
Declaration of Trust contains such a provision which eliminates such liability
to the maximum extent permitted by Maryland law.
The Company's Declaration of Trust provides that the Company will, to the
maximum extent permitted by Maryland law in effect from time to time, indemnify
(a) any individual who is a present or former trustee or officer of the Company
or (b) any individual who, while a trustee or officer of the Company and at the
request of the Company, serves or has served as a director, officer,
shareholder, partner, trustee, employee or agent of any real estate investment
trust, corporation, partnership, joint venture, trust, employee benefit plan or
any other enterprise from and against any claim or liability, together with
reasonable expenses actually incurred in advance of a final disposition of a
legal proceeding, to which such person may become subject or which such person
may incur by reason of his or her status as such. The Company has the power,
with the approval of the Board of Trustees, to provide such indemnification and
advancement of expenses to a person who served a predecessor of the Company in
any of the capacities described in (a) or (b) above and to any employee or agent
of the Company or its predecessors.
Maryland law permits a Maryland real estate investment trust to indemnify
and advance expenses to its trustees, officers, employees and agents to the same
extent as permitted by the MGCL for directors,
65
<PAGE>
officers, employees and agents of a Maryland corporation. The MGCL requires a
corporation (unless its charter provides otherwise, which the Company's
Declaration of Trust does not) to indemnify a director or officer who has been
successful, on the merits or otherwise, in the defense of any proceeding to
which he or she is made a party by reason of his or her service in that
capacity. The MGCL permits a corporation to indemnify its present and former
directors and officers, among others, against judgments, penalties, fines,
settlements and reasonable expenses actually incurred by them in connection with
any proceeding to which they may be made a party by reason of their service in
those or other capacities unless it is established that (a) the act or omission
of the director or officer was material to the matter giving rise to the
proceeding and (i) was committed in bad faith or (ii) was the result of active
and deliberate dishonesty, (b) the director or officer actually received an
improper personal benefit in money, property or services or (c) in the case of
any criminal proceeding, the director or officer had reasonable cause to believe
that the act or omission was unlawful. However, under the MGCL, a Maryland
corporation may not indemnify for an adverse judgment in a suit by or in the
right of the corporation or for a judgment of liability on the basis that
personal benefit was improperly received, unless in either case a court orders
indemnification and then only for expenses. In addition, the MGCL permits a
corporation to advance reasonable expenses to a director or officer upon the
corporation's receipt of (a) a written affirmation by the director or officer of
his or her good faith belief that he or she has met the standard of conduct
necessary for indemnification by the corporation and (b) a written undertaking
by or on his or her behalf to repay the amount paid or reimbursed by the
corporation if it shall ultimately be determined that the standard of conduct
was not met.
Additionally, the Company has entered into indemnity agreements with each of
its officers and trustees which provide for reimbursement of all expenses and
liabilities of such officer or trustee, arising out of any lawsuit or claim
against such officer or trustee due to the fact that he or she was or is serving
as an officer or trustee, except for such liabilities and expenses (a) the
payment of which is judicially determined to be unlawful, (b) relating to claims
under Section 16(b) of the Exchange Act or (c) relating to judicially determined
criminal violations.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to trustees, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
66
<PAGE>
AMC ENTERTAINMENT INC.
BUSINESS OF AMCE
AMC, the lessee of the Initial Properties and, if acquired by the Company,
the Option Properties, is a wholly-owned subsidiary of AMCE, the guarantor of
AMC's obligations under the Leases and one of the leading theatrical exhibition
companies in North America measured by revenues. In the fiscal year ended April
3, 1997, AMCE's consolidated revenues were $749,597,000. As of October 2, 1997,
AMCE, through its subsidiaries, operated 222 theatres with an aggregate of 2,048
screens located in 22 states, the District of Columbia, Portugal and Japan.
Approximately 63% of the screens operated by AMCE are located in Florida,
California, Texas, Missouri and Michigan and approximately 73% of AMCE's
domestic screens are located in areas among the 20 largest "Areas of Dominant
Influence" (television market areas as defined by Arbitron Company). AMCE is an
industry leader in the development and operation of megaplex and multiplex
theatres, primarily in large metropolitan markets.
AMCE and its predecessor have operated movie theatres since 1920. AMCE
currently operates one of the largest motion picture exhibition circuits in
North America and continually upgrades its theatre circuit by opening new
theatres (primarily megaplex theatres), and adding new screens to existing
theatres. Since April 1995, AMCE has opened 31 new theatres with 618 screens,
representing 30.2% of its current number of screens, and has added 79 screens to
existing theatres.
Revenues for AMCE are generated primarily from box office admissions and
theatre concessions sales, which accounted for 66% and 30%, respectively, of
fiscal 1997 revenues. The balance of AMCE's revenues are generated primarily by
AMCE's on-screen advertising business, video games located in theatre lobbies
and the rental of theatre auditoriums.
AMCE is a holding company with no significant operations of its own, and it
has three direct wholly-owned subsidiaries, AMC, AMC Entertainment
International, Inc. and National Cinema Network, Inc. All of AMCE's domestic
theatrical exhibition business is conducted through AMC and its subsidiaries.
AMCE is developing theatres in international markets through AMC Entertainment
International, Inc. and its subsidiaries. AMCE engages in the on-screen
advertising business through National Cinema Network, Inc.
AMCE predominantly licenses "first-run" motion pictures on a film-by-film
and theatre-by-theatre basis. AMCE obtains these licenses either by negotiations
directly with, or by submitting bids to, distributors. Negotiations with
distributors are based on several factors, including theatre location,
competition, season of the year and motion picture content. Licenses entered
into through both negotiated and bid processes typically state that rental fees
shall be based on the higher of a gross receipts formula or a theatre admissions
revenue sharing formula. Under a gross receipts formula, the distributor
receives a specified percentage of box office receipts, with the percentages
declining over the term of the run. First-run motion picture rental fees are
generally the greater of (i) 70% of box office admissions, gradually declining
to as low as 30% over a period of four to seven weeks, and (ii) a specified
percentage (i.e., 90%) of the excess of box office receipts over a negotiated
allowance for theatre expenses (commonly known as a "90/10" clause). Second-run
motion picture rental fees typically begin at 35% of box office admissions and
often decline to 30% after the first week. The theatrical exhibition industry is
seasonal in nature, with the highest attendance and revenue occurring during the
summer months and the holiday seasons.
AMCE is a Delaware corporation with its principal executive offices located
at 106 West 14th Street, Kansas City, Missouri 64105. Its telephone number at
such address is (816) 221-4000.
67
<PAGE>
AMCE PROPERTIES
As of October 2, 1997, AMCE's theatres are as set forth below:
<TABLE>
<CAPTION>
POST-FORMATION TRANSACTIONS(1)
PRE-FORMATION TRANSACTIONS
------------------------------------- -------------------------------------
OPERATING UNDER CONSTRUCTION(2) OPERATING UNDER CONSTRUCTION(2)
-------------- --------------------- -------------- ---------------------
<S> <C> <C> <C> <C>
Owns(3):
Megaplex....................... 9 5 1(4) --
Other(5)....................... 20 -- 20 --
Leases or manages:
Megaplex....................... 16 20(6) 24 25
Other.......................... 177 2 177 2
-- --
--- ---
222(7) 27 222(7) 27
-- --
-- --
--- ---
--- ---
</TABLE>
- --------------
(1) Assumes exercise of options to acquire all of the Option Properties.
Excludes Livonia 20 for which construction had not commenced as of October
2, 1997.
(2) Only includes theatres for which construction has commenced. Excludes
Livonia 20 for which construction had not commenced as of October 2, 1997.
(3) Includes ground leased properties.
(4) The one megaplex theatre that the Company is not acquiring is Pleasure
Island 24 located at Walt Disney World in Orlando, Florida. The Company is
not acquiring this property because its ground lease is not readily
transferable to the Company.
(5) The Company is not acquiring the 20 other theatres owned by AMCE because
they do not meet the Company's investment criteria and objectives.
(6) Includes the three Option Properties that are currently leased by AMC from a
third party owner/ lessor.
(7) Of the 222 operating theatres, 217 were owned or leased by AMC or one of its
subsidiaries, two were leased by AMC Entertainment International, Inc. or
one of its subsidiaries and three were operated by AMC but owned by third
parties.
AMCE'S SELECTED CONSOLIDATED FINANCIAL INFORMATION
The following table sets forth selected consolidated data regarding AMCE's
five most recent fiscal years ended April 3, 1997 and the interim periods ended
October 2, 1997 and September 26, 1996. Operating results for the period ended
October 2, 1997 are not necessarily indicative of the results that may be
expected for the entire fiscal year ending April 2, 1998. The historical
financial information for each of the fiscal periods specified below has been
derived from AMCE's consolidated financial statements for such periods. The
unaudited pro forma financial information of AMCE as of and for the fiscal year
ended April 3, 1997 and for the interim period ended October 2, 1997 has been
adjusted to give effect to the Formation Transactions as set forth in the Notes
to AMCE's Condensed Pro Forma Financial Statements included elsewhere in this
Prospectus. Such pro forma information does not purport to represent what AMCE's
results of operations would have been had the Formation Transactions occurred on
the dates presented or to project AMCE's financial position or results of
operations for any future period. The historical financial data set forth below
is qualified in its entirety by reference to AMCE's Consolidated Financial
Statements and the Notes thereto included elsewhere in this Prospectus. The
historical and pro forma financial data set forth below should be read in
conjunction with "--AMCE's Management's Discussion and Analysis of Financial
Condition and Results of Operations," and AMCE's Consolidated Financial
Statements and the Notes thereto included elsewhere in this Prospectus.
68
<PAGE>
<TABLE>
<CAPTION>
TWENTY-SIX WEEKS ENDED
--------------------------------------------------------
OCTOBER 2, 1997 OCTOBER 2, 1997 SEPTEMBER 26, 1996
PRO FORMA ACTUAL ACTUAL
(1)(2)(6) (1)(2) (1)(2)
---------------- ---------------- --------------------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS
AND STATISTICAL DATA)
<S> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Total revenues........................................ $ 414,051 $ 414,051 $ 364,363
Total cost of operations.............................. 337,756 330,139 288,414
General and administrative............................ 26,852 26,852 24,672
Depreciation and amortization......................... 30,704 32,889 24,414
Impairment of long-lived assets....................... 46,998 46,998 --
---------------- ---------------- ----------
Operating income (loss)............................... (28,259) (22,827) 26,863
Interest expense...................................... 13,002 17,650 9,761
Investment income..................................... 681 681 321
Gain (loss) on disposition of assets.................. 2,496 2,496 (31)
---------------- ---------------- ----------
Earnings (loss) before income taxes................... (38,084) (37,300) 17,392
Income tax provision.................................. (15,418) (15,100) 7,000
---------------- ---------------- ----------
Net earnings (loss)................................... $ (22,666) $ (22,200) $ 10,392
---------------- ---------------- ----------
---------------- ---------------- ----------
Preferred dividends................................... 2,651 2,651 3,000
---------------- ---------------- ----------
Net earnings (loss) for common shares................. $ (25,317) $ (24,851) $ 7,392
---------------- ---------------- ----------
---------------- ---------------- ----------
Earnings (loss) per share:
Primary............................................. $ (1.39) $ (1.37) $ .42
Fully diluted....................................... $ (1.39) $ (1.37) $ .42
Common dividends per share............................ -- -- --
Weighted average number of shares outstanding:
Primary............................................. 18,194 18,194 17,534
Fully diluted....................................... 18,194 18,194 17,726
BALANCE SHEET DATA (AT PERIOD END):
Cash, equivalents and investments..................... $ 25,563 $ 25,563 $ 9,137
Total assets.......................................... 732,550 885,048 557,478
Total debt (including capital lease obligations)...... 375,308 535,732 253,967
Stockholders' equity.................................. 144,423 144,423 166,396
OTHER FINANCIAL DATA:
EBITDA as adjusted (5)................................ $ 52,401 $ 60,018 $ 51,431
Cash flows provided by operating activities........... 49,520 52,171 33,015
Cash flows used in investing activities............... (158,061) (219,161) (101,414)
Cash flows provided by financing activities........... 106,850 167,950 66,450
Capital expenditures.................................. 173,811 173,811 92,082
STATISTICAL DATA (AT PERIOD END):
Number of theatres operated........................... 222 222 230
Number of screens operated............................ 2,048 2,048 1,820
Screens per theatre................................... 9.2 9.2 7.9
</TABLE>
69
<PAGE>
<TABLE>
<CAPTION>
YEARS ENDED
----------------------------------------------------------------------------
APRIL 3, APRIL 3, MARCH 28, MARCH 30, MARCH 31,
1997 1997 1996 1995 1994 APRIL 1,
PRO FORMA ACTUAL ACTUAL ACTUAL ACTUAL 1993
(1)(2)(6) (1)(2) (1)(2) (1)(2) (1)(2) ACTUAL (2)
--------- --------- ------------ ------------ ------------ ------------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS AND STATISTICAL DATA)
<S> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Total revenues........................ $ 749,597 $ 749,597 $ 655,972 $ 563,344 $ 586,300 $ 403,775
Total cost of operations.............. 587,582 580,002 491,358 432,763 446,957 308,848
General and administrative............ 56,647 56,647 52,059 41,639 40,559 37,582
Depreciation and amortization......... 57,507 59,803 43,886 37,913 38,048 28,175
Estimated loss on future disposition
of assets........................... -- -- -- -- -- 2,500
--------- --------- ------------ ------------ ------------ ------------
Operating income...................... 47,861 53,145 68,669 51,029 60,736 26,670
Interest expense...................... 17,430 22,022 28,828 35,908 36,375 31,401
Investment income..................... 856 856 7,052 10,013 1,156 8,239
Minority interest..................... -- -- -- -- 1,599 --
Gain (loss) on disposition of
assets.............................. (84) (84) (222) (156) 296 9,638
--------- --------- ------------ ------------ ------------ ------------
Earnings before income taxes and
extraordinary item.................. 31,203 31,895 46,671 24,978 27,412 13,146
Income tax provision.................. 12,620 12,900 19,300 (9,000) 12,100 5,400
--------- --------- ------------ ------------ ------------ ------------
Earnings before extraordinary item.... 18,583 18,995 27,371 33,978 15,312 7,746
Extraordinary item.................... -- -- (19,350) -- -- (6,483)
--------- --------- ------------ ------------ ------------ ------------
Net earnings.......................... $ 18,583 $ 18,995 $ 8,021 $ 33,978 $ 15,312 $ 1,263
--------- --------- ------------ ------------ ------------ ------------
--------- --------- ------------ ------------ ------------ ------------
Preferred dividends................... 5,907 5,907 7,000 7,000 538 256
--------- --------- ------------ ------------ ------------ ------------
Net earnings for common shares........ $ 12,676 $ 13,088 $ 1,021 $ 26,978 $ 14,774 $ 1,007
--------- --------- ------------ ------------ ------------ ------------
--------- --------- ------------ ------------ ------------ ------------
Earnings per share before
extraordinary item:
Primary............................. $ .72 $ .74 $ 1.21 $ 1.63 $ .89 $ .46
Fully diluted....................... $ .71 $ .73 $ 1.20 $ 1.45 $ .89 $ .46
Earnings per share:
Primary............................. $ .72 $ .74 $ .06(4) $ 1.63 $ .89 $ .06(3)
Fully diluted....................... $ .71 $ .73 $ .06(4) $ 1.45 $ .89 $ .06(3)
Common dividends per share............ -- -- -- -- -- $ 1.14
Weighted average number of shares
outstanding:
Primary............................. 17,726 17,726 16,795 16,593 16,521 16,217
Fully diluted....................... 17,940 17,940 17,031 23,509 16,550 16,217
BALANCE SHEET DATA (AT PERIOD END):
Cash, equivalents and investments..... N/A $ 24,715 $ 10,795 $ 140,377 $ 151,469 $ 50,106
Total assets.......................... N/A 718,213 483,458 522,154 501,276 374,102
Total debt (including capital lease
obligations)........................ N/A 373,724 188,172 267,504 268,188 255,302
Stockholders' equity.................. N/A 170,012 158,918 157,388 130,404 18,171
OTHER FINANCIAL DATA:
EBITDA as adjusted (5)................ $ 105,571 $ 113,151 $ 80,144 $ 90,795 $ 99,666 $ 55,195
Cash flows provided by operating
activities.......................... 131,366 134,074 96,847 44,366 63,680 29,062
Cash flows provided by (used in)
investing activities................ (182,317) (283,917) (66,848) 3,664 (111,505) 4,594
Cash flows provided by (used in)
financing activities................ 62,382 163,982 (90,437) (9,116) 56,147 (21,022)
Capital expenditures.................. 253,380 253,380 120,796 56,403 10,651 8,786
STATISTICAL DATA (AT PERIOD END):
Number of theatres operated........... 228 228 226 232 236 243
Number of screens operated............ 1,957 1,957 1,719 1,630 1,603 1,617
Screens per theatre................... 8.6 8.6 7.6 7.0 6.8 6.7
</TABLE>
- ------------------
(1) Fiscal 1998, 1997, 1996, 1995 and 1994 include the effects from the
acquisition of Exhibition Enterprises Partnership on May 28, 1993.
(2) Fiscal 1997 consists of 53 weeks. All other years have 52 weeks.
(3) Fiscal 1993 includes a $6,483,000 extraordinary loss equal to $.40 per
common share.
(4) Fiscal 1996 includes a $19,350,000 extraordinary loss equal to $1.15 per
common share.
(5) Represents net earnings plus interest, income taxes, depreciation and
amortization and adjusted for impairment losses recognized under Statement
of Financial Accounting Standards No. 121, IMPAIRMENT OF LONG-LIVED ASSETS
AND FOR LONG-LIVED ASSETS TO BE DISPOSED OF. Management of AMCE has included
EBITDA because it believes that EBITDA provides lenders and stockholders
additional information for estimating AMCE's value and evaluating its
ability to service debt. Management of AMCE believes that EBITDA is a
financial measure commonly used in AMCE's industry and should not be
construed as an alternative to operating income (as determined in accordance
with GAAP). EBITDA as determined by AMCE may not be comparable to EBITDA as
reported by other companies. In addition, EBITDA is not intended to
represent cash flow (as determined in accordance with GAAP) and does not
represent the measure of cash available for discretionary uses.
(6) See AMCE's Condensed Pro Forma Financial Statements and the Notes thereto
included elsewhere in this Prospectus.
70
<PAGE>
AMCE'S MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following financial analysis should be read in conjunction with the
above financial information concerning AMCE.
The forward-looking statements included in this section, which reflect
AMCE's management's best judgment based on factors currently known, involve
risks and uncertainties. Actual results could differ materially from those
anticipated in the forward-looking statements included herein as a result of a
number of factors, including but not limited to AMCE's ability to enter into
various financing programs, competition from other companies, changes in
economic climate, increase in demand for real estate, demographic changes,
changes in real estate, zoning and tax laws, the ability to open new theatres
and screens as currently planned, the performance of films licensed by AMCE and
other risks and uncertainties.
OPERATING RESULTS
TWENTY-SIX WEEKS ENDED OCTOBER 2, 1997 AND SEPTEMBER 26, 1996
Set forth in the table below is a summary of revenues, cost of operations,
general and administrative expenses and depreciation and amortization
attributable to AMCE's domestic and international theatrical exhibition
operations and AMCE's on-screen advertising business for the twenty-six weeks
ended October 2, 1997 and September 26, 1996.
<TABLE>
<CAPTION>
TWENTY-SIX WEEKS ENDED
----------------------------
OCTOBER 2, SEPTEMBER 26,
1997 1996 % CHANGE
----------- --------------- ---------------
(IN THOUSANDS, EXCEPT PERCENTAGES)
<S> <C> <C> <C>
REVENUES
Domestic
Admissions...................................................................... $ 259,915 $ 235,566 10.3%
Concessions..................................................................... 123,136 111,124 10.8
Other........................................................................... 7,127 5,703 25.0
----------- --------------- -----
390,178 352,393 10.7
International
Admissions...................................................................... 10,802 4,545 *
Concessions..................................................................... 2,291 647 *
Other........................................................................... 18 2 *
----------- --------------- -----
13,111 5,194 *
On-screen advertising and other................................................... 10,762 6,776 58.8
----------- --------------- -----
Total revenues................................................................ $ 414,051 $ 364,363 13.6%
----------- --------------- -----
----------- --------------- -----
COST OF OPERATIONS
Domestic
Film exhibition costs........................................................... $ 146,057 $ 127,515 14.5%
Concession costs................................................................ 19,065 17,929 6.3
Rent............................................................................ 42,654 35,813 19.1
Other........................................................................... 101,407 94,127 7.7
----------- --------------- -----
309,183 275,384 12.3
International
Film exhibition costs........................................................... 5,923 2,754 *
Concession costs................................................................ 842 151 *
Rent............................................................................ 2,972 2,046 45.3
Other........................................................................... 2,932 2,236 31.1
----------- --------------- -----
12,669 7,187 76.3
On-screen advertising and other................................................... 8,287 5,843 41.8
----------- --------------- -----
Total cost of operations...................................................... $ 330,139 $ 288,414 14.5%
----------- --------------- -----
----------- --------------- -----
GENERAL AND ADMINISTRATIVE
Corporate and domestic............................................................ $ 21,160 $ 19,565 8.2%
International..................................................................... 3,144 2,938 7.0
On-screen advertising and other................................................... 2,548 2,169 17.5
----------- --------------- -----
Total general and administrative.............................................. $ 26,852 $ 24,672 8.8%
----------- --------------- -----
----------- --------------- -----
DEPRECIATION AND AMORTIZATION
Corporate and domestic............................................................ $ 30,404 $ 23,174 31.2%
International..................................................................... 1,287 410 *
On-screen advertising and other................................................... 1,198 830 44.3
----------- --------------- -----
Total depreciation and amortization........................................... $ 32,889 $ 24,414 34.7%
----------- --------------- -----
----------- --------------- -----
</TABLE>
- --------------------
* Percentage change in excess of 100%
71
<PAGE>
REVENUES. Total revenues increased 13.6%, or $49,688,000, during the
twenty-six weeks ended October 2, 1997 compared to the twenty-six weeks ended
September 26, 1996.
Total domestic revenues increased 10.7%, or $37,785,000, from the prior
year. Admissions revenues increased 10.3%, or $24,349,000, due to a 5.4%
increase in average ticket prices, which contributed $13,274,000 of the
increase, and a 4.7% increase in attendance, which contributed $11,075,000 of
the increase. The increase in average ticket prices was due to price increases
and the growing number of megaplexes in AMCE's circuit, which yield higher
average ticket prices than multiplexes. The increase in attendance was due
primarily to AMCE's megaplexes. Attendance at megaplexes increased as a result
of the addition of 15 new megaplexes with 304 screens since September 26, 1996
which was offset by a 0.8% decrease in attendance at comparable megaplexes
(theatres opened before the first quarter of the prior fiscal year) due to
poorer than expected film product. The overall increase in attendance from
megaplexes was partially offset by a 9.3% decrease in attendance at comparable
multiplexes and the closure or sale of 24 theatres with 120 screens since the
second quarter of fiscal 1997. The decline in attendance at comparable
multiplexes was due primarily to competition from new megaplexes operated by
AMCE and other competing circuits, a trend which AMCE anticipates will continue.
Attendance also was impacted by the overall poorer than expected performance of
film product. Concessions revenues increased by 10.8%, or $12,012,000, due to a
5.8% increase in average concessions per patron, which contributed $6,788,000 of
the increase, and the increase in total attendance, which contributed $5,224,000
of the increase. The increase in average concessions per patron was attributable
to the increasing number of megaplexes in AMCE's circuit, where concession
spending per patron is higher than multiplexes.
Total international revenues increased $7,917,000 from the prior year.
Admissions revenues increased $6,257,000 due to an increase in attendance, which
contributed $15,427,000 of the increase, offset by a decrease in average ticket
prices which reduced revenues by $9,170,000. Attendance increased as a result of
the opening of AMCE's second international theatre, the Arrabida 20 in Portugal,
during the third quarter of fiscal 1997 and improved attendance at the Canal
City 13 in Japan. Concessions revenues increased by $1,644,000 due to the
increase in total attendance, which contributed $2,196,000 of the increase,
offset by a decrease in average concessions per patron, which reduced revenues
by $552,000. The decrease in average ticket prices and concessions per patron
was due to the lower ticket and concessions prices at the theatre in Portugal
compared to the theatre in Japan.
On-screen advertising and other revenues increased $3,986,000 due to an
increase in the number of screens served, a result of its expansion program, and
a change in the number of periods included in the results of operations of
AMCE's on-screen advertising business.
COST OF OPERATIONS. Total cost of operations increased 14.5%, or
$41,725,000, during the twenty-six weeks ended October 2, 1997 compared to the
twenty-six weeks ended September 26, 1996.
Total domestic cost of operations increased 12.3%, or $33,799,000, from the
prior year. Film exhibition costs increased 14.5%, or $18,542,000, due to higher
attendance, which contributed $12,593,000 of the increase, and an increase in
the percentage of admissions paid to film distributors, which caused an increase
of $5,949,000. As a percentage of admissions revenues, film exhibition costs
increased to 56.2% in the current year as compared with 54.1% in the prior year.
This increase occurred primarily during the first quarter of the year and was
due to a change in attendance patterns and the popularity of films released
during the period which had higher film exhibition terms. Attendance was more
concentrated in the early weeks for the films released during the first quarter
of the year, which typically results in higher film exhibition costs. The 6.3%,
or $1,136,000, increase in concession costs is attributable to the increase in
concession revenues. As a percentage of concessions revenues, concession costs
decreased from 16.1% to 15.5% due to an increase in advertising and promotional
allowances received by AMCE and improved procurement terms with a major vendor.
Rent expense increased 19.1%, or $6,841,000, due to the higher number of screens
in operation and the growing number of megaplexes in AMCE's circuit, which
generally require higher rent per screen than multiplexes. Other
72
<PAGE>
cost of operations increased 7.7%, or $7,280,000. As a percentage of total
revenues, other cost of operations decreased from 26.7% in the prior year to
26.0% in the current year, primarily as a result of more effective staffing at
AMCE's theatres.
Total international cost of operations increased 76.3%, or $5,482,000, from
the prior year. Film exhibition costs increased $3,169,000 due to higher
attendance which contributed $3,791,000 of the increase, offset by a decrease in
the percentage of admissions paid to film distributors, which caused a decrease
of $622,000. The $691,000 increase in concession costs was primarily
attributable to the increase in concessions revenues. Rent expense increased
$926,000 and other cost of operations increased $696,000 from the prior year due
to the opening of the Arrabida 20 during the third quarter of fiscal 1997.
On-screen advertising and other cost of operations increased $2,444,000 as a
result of the higher number of screens served and a change in the number of
periods included in the results of operations of AMCE's on-screen advertising
business.
GENERAL AND ADMINISTRATIVE. General and administrative expenses increased
8.8%, or $2,180,000, during the twenty-six weeks ended October 2, 1997. As a
percentage of total revenues, general and administrative expenses decreased from
6.8% in the prior year to 6.5% in the current year.
DEPRECIATION AND AMORTIZATION. Depreciation and amortization increased
34.7%, or $8,475,000, during the twenty-six weeks ended October 2, 1997. This
increase was caused by an increase in employed theatre assets resulting from
AMCE's expansion plan which was partially offset by reduced depreciation and
amortization of approximately $3,500,000 as a result of the reduced carrying
amount of the impaired multiplex assets declared below.
IMPAIRMENT OF LONG-LIVED ASSETS. During the twenty-six weeks ended October
2, 1997, AMCE recognized a non-cash impairment loss of $46,998,000 ($27,728,000
after tax, or $1.52 per share) on 59 multiplex theatres with 412 screens in 14
states (primarily California, Texas, Missouri, Arizona and Florida) including a
loss of $523,000 associated with 10 theatres that were included in impairment
losses recognized in previous periods. The expected future cash flows of these
theatres, undiscounted and without interest charges, were less than the carrying
value of the theatre assets.
The summer of 1997 was the first summer film season, generally the highest
grossing period for the film industry, that a significant number of megaplexes
of AMCE and its competitors were operating (the first megaplex, Grand 24, was
opened by AMCE in May 1995). During this period, the financial results of
certain multiplexes of AMCE were significantly less than anticipated at the
beginning of fiscal 1998 due primarily to competition from the newer megaplex
theatres. As a result, AMCE initiated a review of its portfolio of theatres to
identify those theatres which are not expected to provide an adequate financial
return in the future. AMCE anticipates that many of its multiplexes may be
disposed of in the intermediate term but continues to evaluate its future plans
for such theatres.
INTEREST EXPENSE. Interest expense increased 80.8%, or $7,889,000, during
the twenty-six weeks ended October 2, 1997 compared to the prior year. The
increase in interest expense resulted primarily from an increase in average
outstanding borrowings related to AMCE's expansion plan.
GAIN ON DISPOSITION OF ASSETS. Gain on disposition of assets increased
$2,527,000 during the twenty-six weeks ended October 2, 1997 from the sale of
two of AMCE's multiplexes during the current year.
INCOME TAX PROVISION. The provision for income taxes decreased $22,100,000
to a benefit of $15,100,000 during the current year from an expense of
$7,000,000 in the prior year. The effective tax rate was 40.5% during the
current year compared to 40.2% in the prior year.
73
<PAGE>
NET EARNINGS. Net earnings decreased $32,592,000 during the twenty-six
weeks ended October 2, 1997 to a loss of $22,200,000 from earnings of
$10,392,000 in the prior year. Net loss per common share, after deducting
preferred dividends, was $1.37 compared to earnings of $.42 in the prior year.
YEARS (53/52 WEEKS) ENDED APRIL 3, 1997 AND MARCH 28, 1996
Set forth in the table below is a summary of revenues, cost of operations,
general and administrative expenses and depreciation and amortization
attributable to AMCE's domestic and international theatrical exhibition
operations and AMCE's on-screen advertising business for the year (53 weeks)
ended April 3, 1997 and the year (52 weeks) ended March 28, 1996.
<TABLE>
<CAPTION>
53 WEEKS 52 WEEKS
ENDED ENDED
APRIL 3, MARCH 28,
1997 1996 % CHANGE
------------ ------------ -----------------
(IN THOUSANDS, EXCEPT PERCENTAGES)
<S> <C> <C> <C>
REVENUES
Domestic
Admissions........................................................ $ 479,629 $ 431,361 11.2%
Concessions....................................................... 222,945 196,645 13.4
Other............................................................. 15,763 15,096 4.4
------------ ------------ ---
718,337 643,102 11.7
International
Admissions........................................................ 13,322 -- --
Concessions....................................................... 2,222 -- --
Other............................................................. 49 -- --
------------ ------------ ---
15,593 -- --
On-screen advertising and other..................................... 15,667 12,870 21.7
------------ ------------ ---
Total revenues.................................................... $ 749,597 $ 655,972 14.3%
------------ ------------ ---
------------ ------------ ---
COST OF OPERATIONS
Domestic
Film rentals...................................................... $ 239,480 $ 215,099 11.3%
Concession costs.................................................. 36,045 30,417 18.5
Rent.............................................................. 75,116 64,813 15.9
Other............................................................. 198,555 172,087 15.4
------------ ------------ ---
549,196 482,416 13.8
International
Film rentals...................................................... 7,719 -- --
Concession costs.................................................. 703 -- --
Rent.............................................................. 4,945 -- --
Other............................................................. 5,377 -- --
------------ ------------ ---
18,744 -- --
On-screen advertising and other..................................... 12,062 8,942 34.9
------------ ------------ ---
Total cost of operations.......................................... $ 580,002 $ 491,358 18.0%
------------ ------------ ---
------------ ------------ ---
GENERAL AND ADMINISTRATIVE
Domestic and corporate.............................................. $ 45,558 $ 44,200 3.1%
International....................................................... 6,864 4,550 50.9
On-screen advertising and other..................................... 4,225 3,309 27.7
------------ ------------ ---
Total general and administrative.................................. $ 56,647 $ 52,059 8.8%
------------ ------------ ---
------------ ------------ ---
DEPRECIATION AND AMORTIZATION
Domestic and corporate.............................................. $ 56,623 $ 42,550 33.1%
International....................................................... 1,436 -- --
On-screen advertising and other..................................... 1,744 1,336 30.5
------------ ------------ ---
Total depreciation and amortization................................. $ 59,803 $ 43,886 36.3%
------------ ------------ ---
------------ ------------ ---
</TABLE>
REVENUES. Total revenues increased 14.3%, or $93,625,000, during the year
(53 weeks) ended April 3, 1997 compared to the year (52 weeks) ended March 28,
1996.
74
<PAGE>
Total domestic revenues increased 11.7%, or $75,235,000, from the prior
year. Admissions revenues increased 11.2%, or $48,268,000, due to a 6.4%
increase in attendance, which contributed $27,658,000 of the increase, and a
4.7% increase in average ticket prices, which contributed $20,610,000 of the
increase. The increase in attendance was due primarily to AMCE's megaplex
theatres (theatres having at least 14 screens with predominately stadium-style
seating). Attendance at megaplex theatres increased during the year as a result
of the addition of 12 new megaplex theatres with 248 screens and from the
operation for a full fiscal year of AMCE's remaining five domestic megaplex
theatres with 98 screens that were opened in fiscal 1996. The increase in
attendance from megaplex theatres was partially offset by a decrease in
attendance at multiplex theatres (theatres generally without stadium-style
seating and having less than 14 screens) and the closure or sale of 15 theatres
with 76 screens. Attendance at multiplex theatres decreased as a result of
competitive factors. Also, during the first nine months of the fiscal year,
attendance at all theatres was impacted by film product from AMCE's key
suppliers which did not deliver the results achieved in the prior fiscal year.
The increase in average ticket prices is due to price increases and the growing
number of megaplexes in AMCE's circuit, which yield higher average ticket prices
than multiplexes. Concessions revenues at domestic theatres increased by 13.4%,
or $26,300,000, due to a 6.9% increase in average concessions per patron, which
contributed $13,692,000 of the increase, and the increase in total attendance,
which contributed $12,608,000 of the increase. The increase in average
concessions per patron is attributable to the introduction of new concessions
products and the increasing number of megaplexes in AMCE's circuit, where
concession spending per patron is higher than in multiplex theatres.
Total international revenues were the result of admissions and concessions
revenues from AMCE's two international theatres, the Canal City 13 located in
Fukuoka, Japan and the Arrabida 20 located in Porto, Portugal, which opened
during the first and third quarters of fiscal 1997, respectively. Admissions and
concessions revenues accounted for 85% and 14% of total international revenues,
respectively. AMCE's initial attendance at the Canal City 13 was negatively
impacted by film distributors in Japan who restricted AMCE's ability to obtain
film product until approximately two weeks after its competitors had received
it. This delay in releasing films to AMCE has generally been eliminated.
On-screen advertising and other revenues increased 21.7%, or $2,797,000, due
primarily to an increase in the number of screens served by AMCE's on-screen
advertising business, a result of its expansion program.
COST OF OPERATIONS. Total cost of operations increased 18.0%, or
$88,644,000, during the year (53 weeks) ended April 3, 1997 compared to the year
(52 weeks) ended March 28, 1996.
Total domestic cost of operations increased 13.8%, or $66,780,000, from the
prior year. Film rentals expense increased 11.3%, or $24,381,000, due to higher
admissions revenues. As a percentage of admissions revenues, film rentals
expense was 49.9% in each year. The 18.5%, or $5,628,000, increase in concession
costs is attributable to the increase in concessions revenues. As a percentage
of concessions revenues, concession costs increased from 15.5% to 16.2% due
primarily to increases in raw popcorn costs and the lower margins on new
concessions products. Rent expense increased 15.9%, or $10,303,000, due to the
higher number of screens in operation. Other cost of operations increased 15.4%,
or $26,468,000, from the prior year due to the higher number of screens in
operation, $1,825,000 of advertising expenses associated with the opening of new
theatres and higher expenses associated with AMCE's theatre management
development program.
Total international cost of operations were the result of expenses
associated with AMCE's new theatres in Japan and Portugal. As a percentage of
admissions revenues, film rentals expense was 57.9% primarily because film
rentals in Japan are generally higher than those domestically. Concession costs
were 31.6% of concessions revenues due to the high procurement costs of
concessions products sourced from the United States. As a percentage of total
revenues, rent expense was 31.7% as a result of low attendance and admissions
revenues and the higher real estate costs in Japan.
75
<PAGE>
On-screen advertising and other cost of operations increased 34.9%, or
$3,120,000, as a result of the higher number of screens served and related
start-up expenses.
GENERAL AND ADMINISTRATIVE. General and administrative expenses increased
8.8%, or $4,588,000, during the year (53 weeks) ended April 3, 1997.
Domestic and corporate general and administrative expenses increased 3.1%,
or $1,358,000, primarily due to increases in costs associated with AMCE's
development of theatres and increased pension and retirement expenses of
$1,992,000. These increases were partially offset by a decrease of $3,500,000 in
the current year's bonus expense and severance payments of $967,000 for two
former executive officers made during the prior year.
International general and administrative expenses increased 50.9%, or
$2,314,000, due primarily to increases in costs associated with AMCE's
development of new theatres and other expenses to support AMCE's international
operations and expansion plan.
General and administrative expenses associated with on-screen advertising
and other increased 27.7%, or $916,000, due primarily to an increase in payroll
and related costs to support the expansion program at AMCE's on-screen
advertising business.
DEPRECIATION AND AMORTIZATION. Depreciation and amortization increased
36.3%, or $15,917,000, during the year (53 weeks) ended April 3, 1997. This
increase was caused by an increase in employed theatre assets resulting from
AMCE's expansion plan and an impairment loss of $7,231,000 on 18 theatres with
82 screens in 9 states (primarily Michigan, Pennsylvania, California, Florida
and Virginia) due to expected declines in future cash flows of certain multiplex
theatres due primarily to competition from newer megaplex theatres.
OPERATING INCOME. Operating income decreased 22.6%, or $15,524,000, during
the year (53 weeks) ended April 3, 1997. The decrease in operating income is
attributable to the attendance and revenue decline at multiplex theatres and an
increase in domestic and corporate general and administrative expenses of
$1,358,000, the effects of which were partially offset by an increase in
attendance and revenues at megaplex theatres. Additionally, operating income was
reduced by operating losses of $4,587,000 from AMCE's international theatres in
Japan and Portugal, an increase in international general and administrative
expenses of $2,314,000 and an increase in operating losses of $1,647,000 from
AMCE's on-screen advertising business.
INTEREST EXPENSE. Interest expense decreased 23.6%, or $6,806,000, during
the year (53 weeks) ended April 3, 1997 compared to the prior year. The decrease
in interest expense resulted from lower rates under the AMCE Credit Facility,
which was partially offset by an increase in average outstanding borrowings
related to AMCE's expansion plan.
INVESTMENT INCOME. Investment income decreased 87.9% or $6,196,000, during
the year (53 weeks) ended April 3, 1997 due to a decrease in outstanding cash
and investments compared to the prior year. Cash and investments decreased as a
result of AMCE's redemption of substantially all of its 11 7/8% Senior Notes due
2000 (the "Senior Notes") and 12 5/8% Senior Subordinated Notes due 2002 (the
"12 5/8% Senior Subordinated Notes") on December 28, 1995.
EARNINGS BEFORE INCOME TAXES AND EXTRAORDINARY ITEM. Earnings before income
taxes and extraordinary item decreased by 31.7%, or $14,776,000, during the year
(53 weeks) ended April 3, 1997 due primarily to the $15,524,000 decrease in
operating income.
NET EARNINGS. Net earnings before extraordinary item decreased $8,376,000
during the year (53 weeks) ended April 3, 1997 to $18,995,000 from $27,371,000
in the prior year. Net earnings for the period were $18,995,000 compared to
$8,021,000 in the prior year, which included an extraordinary item (a loss of
$19,350,000 in connection with the early extinguishment of debt). Net earnings
before extraordinary
76
<PAGE>
item per common share, after deducting preferred dividends, was $.74 compared to
$1.21 for the prior year. Net earnings per common share, after deducting
preferred dividends, was $.74 compared to $.06 for the prior year.
YEARS (52 WEEKS) ENDED MARCH 28, 1996 AND MARCH 30, 1995
Set forth below in the table is a summary of revenues and cost of operations
attributable to AMCE's operations for the year (52 weeks) ended March 28, 1996
and March 30, 1995.
<TABLE>
<CAPTION>
52 WEEKS ENDED 52 WEEKS ENDED
---------------------------- ----------------------------
MARCH 28, % OF TOTAL MARCH 30, % OF TOTAL
1996 REVENUES 1995 REVENUES
----------- --------------- ----------- ---------------
(IN THOUSANDS, EXCEPT PERCENTAGES)
<S> <C> <C> <C> <C>
REVENUES
Admissions................................ $ 431,361 66% $ 371,145 66%
Concessions............................... 196,645 30 169,120 30
Other..................................... 27,966 4 23,079 4
----------- --- ----------- ---
Total................................... $ 655,972 100% $ 563,344 100%
----------- --- ----------- ---
----------- --- ----------- ---
COST OF OPERATIONS
Film rentals.............................. $ 215,099 33% $ 182,669 33%
Concession costs.......................... 30,417 5 24,383 4
Rent...................................... 64,813 10 60,076 11
Other..................................... 181,029 27 165,635 29
----------- --- ----------- ---
Total................................... $ 491,358 75% $ 432,763 77%
----------- --- ----------- ---
----------- --- ----------- ---
</TABLE>
REVENUES. Total revenues for the year (52 weeks) ended March 28, 1996
increased 16.4%, or $92,628,000, to $655,972,000 compared to $563,344,000 for
the year (52 weeks) ended March 30, 1995. Admissions revenues increased 16.2%,
or $60,216,000, due to a 11.1% increase in attendance, which contributed
$41,151,000 of the increase, and a 4.4% increase in average ticket prices, which
contributed $19,065,000 of the increase. The increase in attendance resulted
from the popularity of films licensed during fiscal 1996 and the net addition of
89 screens since fiscal 1995 at new and higher performing locations. Attendance
during the prior year was impacted by a dispute with a major distributor over
film licensing terms, which resulted in AMCE licensing that distributor's films
for a smaller number of its theatres than it otherwise would have. In fiscal
1996, AMCE licensed that distributor's films for what it considers to be a more
acceptable number of AMCE's theatres. Concessions revenues increased by 16.3%,
or $27,525,000, due to the increase in total attendance, which caused an
increase of $18,752,000, and a 6.9% increase in average concessions per patron,
which contributed $8,773,000 of the increase.
COST OF OPERATIONS. Total cost of operations increased 13.5%, or
$58,595,000, in fiscal 1996 to $491,358,000 from $432,763,000 in fiscal 1995. As
a percentage of total revenues, cost of operations was 75% and 77% in fiscal
1996 and 1995, respectively. Film rentals expense increased 17.8%, or
$32,430,000, in fiscal 1996 due to higher attendance levels, which contributed
$29,637,000 of the increase, and an increase in the percentage of admissions
paid to film distributors, which caused an increase of $2,793,000. Concessions
costs, rent and other costs of operations increased 10.5%, or $26,165,000, from
the prior year due to increases in payroll of $6,641,000, concession costs of
$6,034,000, rent of $4,737,000 and other theatre operating expenses associated
with the increase in admissions and concessions revenues and from the higher
number of screens in operation.
GENERAL AND ADMINISTRATIVE. General and administrative expenses increased
25.0%, or $10,420,000, to $52,059,000 in fiscal 1996 from $41,639,000 in fiscal
1995. The increase in general and administrative expenses is primarily
attributable to payroll and other costs associated with AMCE's development of
theatres in the United States and certain international markets, additional
bonus
77
<PAGE>
expense of $3,074,000 related to improved profitability of AMCE and severance
payments of $967,000 for two former executive officers. As a percentage of total
revenues, general and administrative expenses increased to 7.9% in fiscal 1996
from 7.4% in fiscal 1995.
DEPRECIATION AND AMORTIZATION. Depreciation and amortization increased
15.8%, or $5,973,000, to $43,886,000 in fiscal 1996 from $37,913,000 in fiscal
1995. This increase resulted primarily from the reduction, effective December
30, 1994, in the estimated lives of lease rights and location premiums on
certain smaller theatres to correspond to the base terms of the theatre leases,
an increase in employed theatre assets and the recognition of an impairment loss
of $1,799,000 on 4 theatres with 21 screens in Arizona, Florida and California
in connection with the adoption of Statement of Financial Accounting Standards
No. 121, ACCOUNTING FOR THE IMPAIRMENT OF LONG-LIVED ASSETS AND FOR LONG-LIVED
ASSETS TO BE DISPOSED OF.
INTEREST EXPENSE. Interest expense decreased 19.7%, or $7,080,000, to
$28,828,000 in fiscal 1996 from $35,908,000 in fiscal 1995. The decrease in
interest expense resulted from lower interest rates under the AMCE Credit
Facility as compared to the rates under the Senior Notes and 12 5/8% Senior
Subordinated Notes.
INVESTMENT INCOME. Investment income decreased 29.6%, or $2,961,000, to
$7,052,000 in fiscal 1996 from $10,013,000 in fiscal 1995 due primarily to a net
gain of $1,407,000 recorded in fiscal 1995 from the sales of stock of TPI
Enterprises, Inc. and AmeriHealth, Inc. and a decrease of $1,513,000 in interest
income in fiscal 1996.
EARNINGS BEFORE INCOME TAXES AND EXTRAORDINARY ITEM. Earnings before income
taxes and extraordinary item increased 86.8%, or $21,693,000, to $46,671,000 in
fiscal 1996 from $24,978,000 in fiscal 1995. AMCE recorded a $19,350,000
extraordinary loss, net of income tax benefit of $13,400,000, related to
extinguishment of debt in fiscal 1996.
NET EARNINGS. For the year (52 weeks) ended March 28, 1996, AMCE recorded
net earnings of $8,021,000, a $25,957,000 decrease from net earnings of
$33,978,000 for the year (52 weeks) ended March 30, 1995. Net earnings per
common share, after deducting $7,000,000 of preferred dividends, was $.06 in
fiscal 1996 compared to $1.63 in fiscal 1995. The decrease in net earnings was
impacted by an extraordinary loss of $19,350,000 incurred as a result of AMCE's
repurchase of Senior Notes and 12 5/8% Senior Subordinated Notes in fiscal 1996.
Also, in fiscal 1996 AMCE had a tax expense of $19,300,000, as opposed to a tax
benefit of $9,000,000 in fiscal 1995. The fiscal 1995 tax benefit resulted from
a $19,792,000 reduction in the deferred tax valuation allowance established
under Statement of Financial Accounting Standards No. 109, ACCOUNTING FOR INCOME
TAXES. Earnings per share before extraordinary item, after deduction of
preferred dividends, was $1.21 in fiscal 1996 compared to $1.63 in fiscal 1995.
LIQUIDITY AND CAPITAL RESOURCES
AMCE's revenues are collected in cash, principally through box office
admissions and theatre concessions sales. AMCE has an operating "float" which
partially finances its operations and which generally permits AMCE to maintain a
smaller amount of working capital capacity. This float exists because admissions
revenues are received in cash, while exhibition costs (primarily film rentals)
are ordinarily paid to distributors from 30 to 45 days following receipt of box
office admissions revenues. AMCE is only occasionally required to make advance
payments or non-refundable guaranties of film rentals. Film distributors
generally release during the summer and holiday seasons the films which they
anticipate will be the most successful. Consequently, AMCE typically generates
higher revenues during such periods. Cash flows from operating activities, as
reflected in the Consolidated Statements of Cash Flows, were $134,074,000,
$96,847,000 and $44,366,000 for fiscal 1997, 1996 and 1995, respectively,
78
<PAGE>
and $52,171,000, and $33,015,000 for the twenty-six weeks ended October 2, 1997
and September 26, 1996, respectively.
During the current fiscal year, AMCE has had capital expenditures and net
increases in refundable construction advances of $173,811,000 and $39,162,000,
respectively, primarily for the development of new theatres and the addition of
screens at existing locations. AMCE has continued its expansion plan during the
current fiscal year by opening 5 megaplexes with 109 screens and one multiplex
with 6 screens and expanding three existing multiplexes by 37 screens. Of the
152 screens added during the year, 84 screens will be operated pursuant to
long-term non-cancelable operating leases. In addition, AMCE closed or sold 13
multiplexes with 63 screens resulting in a circuit total of 25 megaplexes with
518 screens and 197 multiplexes with 1,530 screens as of October 2, 1997.
AMCE has plans to open a total of approximately 630 screens during fiscal
1998. If these planned screens are opened as scheduled, AMCE estimates that
total capital expenditures for fiscal 1998 will aggregate approximately $370
million. Included in these amounts are assets which AMCE may place into
sale/leaseback or other comparable financing programs which will have the effect
of reducing AMCE's net cash outlays. As of October 2, 1997, AMCE had under
construction 25 megaplexes with 595 screens and 2 multiplexes with 25 screens.
AMCE maintains a $425 million credit facility (the "Credit Facility"), which
was amended and restated as of April 10, 1997. The Credit Facility permits
borrowings at interest rates based on either the bank's base rate or LIBOR and
requires an annual commitment fee based on margin ratios that could result in a
rate of .1875% to .375% on the unused portion of the commitment. The Credit
Facility matures in 2004. The commitment thereunder will reduce by $25 million
on each of December 31, 2002, March 31, 2003, June 30, 2003 and September 30,
2003 and by $50 million on December 31, 2003. As of October 2, 1997, AMCE had
outstanding borrowings of $275,000,000 under the Credit Facility at an average
interest rate of 6.4% per annum.
Covenants of the Credit Facility impose limitations on indebtedness,
creation of liens, change of control, transactions with affiliates, mergers,
investments, guaranties, asset sales, dividends, business activities and
pledges. As of October 2, 1997, AMCE was in compliance with all financial
covenants relating to the Credit Facility.
Prior to its April 10, 1997 amendment and restatement, the Credit Facility
contained a covenant that generally limited AMCE's capital expenditures. This
covenant has been eliminated.
On March 19, 1997, AMCE sold $200 million aggregate principal amount of
9 1/2% Senior Subordinated Notes due 2009 (the "Notes"). As required by the Note
Indenture, AMCE consummated a registered offer on August 5, 1997 to exchange the
Notes for notes of AMCE with terms identical in all material respects to the
Notes.
AMCE has agreed to sell 12 of its owned (or ground leased) megaplexes, eight
of which are currently operating, to the Company for approximately $248,800,000.
AMCE also has granted an option to EPT to purchase two additional owned
megaplexes currently under construction for the cost to AMCE of developing and
constructing such properties (estimated at $61,900,000). In addition, EPT will
have a right of first right of refusal and first offer to purchase and lease
back to AMCE any megaplex acquired or developed and owned (or ground-leased) by
AMCE for a period of five years.
The theatres that are to be sold will be leased back from EPT pursuant to
non-cancelable operating leases with terms ranging from 13 to 15 years at an
initial lease rate of 10.5% with options to extend for up to an additional 20
years. The transaction, which is expected to close by early December, is
conditioned, among other matters, on completing negotiations of non-price terms
for the sale and leaseback and successful completion by EPT of an offering of
its shares of beneficial interest.
79
<PAGE>
Proceeds from the sales will be used to reduce outstanding indebtedness
under the Credit Facility. To the extent net proceeds are applied to reduce
indebtedness under the Credit Facility, the amount available for borrowing under
the Credit Facility will be increased and AMCE intends to utilize this increased
availability to continue its current expansion plan.
AMCE believes that cash generated from operations, existing cash and
equivalents, amounts received from the sale/leaseback transactions and the
unused commitment amount under its Credit Facility will be sufficient to fund
operations and planned capital expenditures for the next twelve months.
During the twenty-six weeks ended October 2, 1997, various holders of AMCE's
$1.75 Cumulative Convertible Preferred Stock (the "Convertible Preferred Stock")
converted 384,500 shares into 662,877 shares of Common Stock at a conversion
rate of 1.724 shares of Common Stock for each share of Convertible Preferred
Stock. Convertible Preferred Stock dividend payments decreased 13.4%, or
$412,000, to $2,673,000 for the twenty-six weeks ended October 2, 1997 from
$3,085,000 in the prior year as a result of the conversions. Future conversions
will continue to reduce the amount of dividends paid by AMCE and increase the
number of shares of Common Stock outstanding.
OTHER
On July 24, 1997, AMCE announced the formation of a joint venture with
Planet Hollywood International, Inc. to develop, own and operate an integrated
moviegoing, dining and retail concept worldwide. The new complexes, which will
be branded "Planet Movies by AMC", will combine AMCE's megaplex theatre concept
with Planet Hollywood-theming, as well as additional dining, retail and
entertainment opportunities.
RECENTLY ISSUED FINANCIAL ACCOUNTING PRONOUNCEMENTS
During fiscal 1997, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 128 ("SFAS 128"), EARNINGS PER
SHARE. SFAS 128 eliminates the presentation of primary and fully diluted
earnings per share ("EPS") and requires presentation of basis and diluted EPS.
The principal difference between primary and basic EPS is that common stock
equivalents are not included with the weighted average number of shares
outstanding used in the computation of basic EPS. Diluted EPS is computed
similarly to fully diluted EPS. SFAS 128 is effective for periods ending after
December 15, 1997, including interim periods, and requires restatement of all
prior-period EPS data. Early adoption is not permitted. AMCE plans to adopt SFAS
128 during the third quarter of fiscal 1998. The impact of adopting SFAS 128 on
primary and fully diluted loss per share for the thirteen weeks ended July 3,
1997 and June 27, 1996 is not expected to be material.
During fiscal 1998, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 130 ("SFAS 130"), REPORTING
COMPREHENSIVE INCOME, and Statement of Financial Accounting Standards No. 131
("SFAS 131"), DISCLOSURES ABOUT SEGMENTS OF AN ENTERPRISE AND RELATED
INFORMATION. SFAS 130 requires disclosure of comprehensive income and its
components in a company's financial statements and is effective for fiscal years
beginning after December 15, 1997. SFAS 131 requires new disclosures of segment
information in a company's financial statements and is effective for fiscal
years beginning after December 15, 1997. AMCE is currently evaluating the
financial statement impact of adopting SFAS 130 and SFAS 131.
80
<PAGE>
CERTAIN RELATIONSHIPS AND TRANSACTIONS
PURCHASE OF INITIAL PROPERTIES
The Company will enter into the Purchase Agreement with AMC and one of its
subsidiaries pursuant to which the Company will acquire the Initial Properties
for an aggregate cash consideration of approximately $248.8 million. The
Purchase Agreement will contain representations and warranties by AMC
customarily found in agreements of such types.
OPTION PROPERTIES
The Company and AMC and certain of its subsidiaries and the current
owner/lessor of certain Properties will enter into the Option Agreements
pursuant to which AMC and such owner/lessor will grant the Company options to
acquire any or all of the Option Properties for an aggregate estimated purchase
price of $138.5 million. One of the Initial Properties and three of the Option
Properties have adjacent land parcels that, if not under contract for sale or
sold at the time of the related theatre acquisition, may be purchased by the
Company for an aggregate purchase price of $9.6 million.
RIGHT TO PURCHASE
The Company and AMCE will enter into the AMCE Right to Purchase Agreement
whereby the Company will have a right of first refusal and first offer to
purchase and lease back to AMCE any megaplex theatre and related entertainment
property acquired or developed and owned (or ground-leased) by AMCE or its
subsidiaries for a period of five years following the Formation Transactions.
The initial annual rental rate on properties leased back to AMC will be
determined through the right of first refusal and first offer process at the
time of such lease back.
EMPLOYMENT AGREEMENTS
The Company will enter into employment agreements with Robert L. Harris and
David M. Brain, pursuant to which Mr. Harris will serve as President and Chief
Development Officer and Mr. Brain will serve as Chief Financial Officer of the
Company each for a period of two years (extendable at the option of the Company)
at an initial annual compensation of $225,000 and $175,000, respectively,
subject to any increases in base compensation approved by the Compensation
Committee. See "Management-- Employment Agreements."
PURCHASE OF SHARES BY EXECUTIVE OFFICERS
Robert L. Harris will purchase 80,000 Shares pursuant to the Share Purchase
Program and will be granted 40,000 restricted Shares pursuant to the Restricted
Share Program and options to purchase 40,000 Shares pursuant to the Share Option
Program. David M. Brain will purchase 40,000 Shares pursuant to the Share
Purchase Program and will be granted 20,000 restricted Shares pursuant to the
Restricted Share Program and options to purchase 20,000 Shares pursuant to the
Share Option Program.
81
<PAGE>
POLICIES AND OBJECTIVES WITH RESPECT TO CERTAIN ACTIVITIES
The following is a discussion of the Company's investment objectives and
policies, financing policies and policies with respect to certain other
activities. These policies are determined by the Board of Trustees and may be
amended or revised from time to time at the discretion of the Board of Trustees
without a vote of the Company's shareholders.
INVESTMENT OBJECTIVES AND POLICIES
The Company's investment objectives are to maximize current returns to
shareholders through increases in Funds from Operations and to increase
long-term total returns to shareholders through appreciation in the value of the
Shares. The Company will seek to accomplish its objectives through (i) its
ownership interests in the Initial Properties; (ii) selective acquisitions of
the Option Properties, additional AMCE-operated properties, Planet
Movies-operated properties and additional megaplex theatres leased to other
qualified theatrical exhibitors; and (iii) developing or acquiring ETRCs and
single-tenant out-of-home location based entertainment or entertainment-related
properties.
The Company will consider a variety of factors in evaluating potential
investments in entertainment or entertainment-related properties, including (i)
the long-term investment potential of the asset and the reputation and
creditworthiness of the current owner, manager or developer of the property;
(ii) the proposed terms for purchasing the property; (iii) the proposed terms
for leasing the property, including rental payments and lease term; and (iv) the
condition of the property, including the quality of construction of the
improvements thereon.
The Company may purchase or lease properties for long-term investment,
expand and improve the properties it owns or acquires after the Formation
Transactions or sell such properties, in whole or in part, when circumstances
warrant. The Company may also participate with other entities in property
ownership, through joint ventures or other types of co-ownership. Equity
investments may be subject to existing mortgage financing and other indebtedness
which have priority over the equity interest of the Company.
While the Company emphasizes equity real estate investments, it may, in its
discretion, invest in mortgages, equity or debt securities of other REITs,
partnerships and other real estate interests. Such mortgage investments may
include participating in convertible mortgages. The types of properties subject
to mortgages in which the Company may invest are expected to be, but not limited
to, entertainment or entertainment-related properties. The Company does not
currently intend to purchase securities of, or interests in, other entities
engaged in real estate activities.
There are no limitations on the percentage of the Company's assets that may
be invested in any one property, venture or type of security. The Board of
Trustees may establish limitations as it deems appropriate from time to time. No
limitations have been set on the number of properties in which the Company will
seek to invest or on the concentration of investments in any one geographic
region.
DISPOSITIONS; AMC'S RIGHT OF FIRST REFUSAL AND FIRST OFFER
The Company has no current intention to cause the disposition of any of the
Properties, although it reserves the right to do so if the Board of Trustees
determines that such action would be in the best interests of the Company.
Pursuant to the Leases, AMC will have a right of first refusal and first offer
to acquire any Property or any interest in an entertainment or
entertainment-related property acquired or developed by the Company and operated
by AMC. See "Leases" for a more detailed discussion of the terms and conditions
of the Leases.
82
<PAGE>
FINANCING
Upon consummation of the Formation Transactions, the Company will have no
outstanding indebtedness. The Company presently intends to maintain a ratio of
debt to total market capitalization of less than 50%. The Board of Trustees may,
however, from time to time reevaluate this policy and decrease or increase such
ratio accordingly. The Company will determine its financing policies in light of
then current economic conditions, relative costs of debt and equity capital,
market values of properties, growth and acquisition opportunities and other
factors. The Company is negotiating to obtain a commitment for the $200 million
Bank Credit Facility that will be used in acquiring additional entertainment and
entertainment-related properties, including the Option Properties and related
land parcels, and for certain other purposes, including expanding existing
properties and working capital, as necessary. The Company expects to close the
Bank Credit Facility as part of the Formation Transactions. If the Board of
Trustees determines that additional funding is desirable, the Company may raise
such funds through additional equity offerings, debt financing or retention of
cash flow (subject to considerations relating to provisions in the Code
concerning taxability of undistributed REIT income and REIT qualification), or a
combination of these methods.
Indebtedness incurred by the Company may be in the form of publicly or
privately placed debt instruments or financings from banks, institutional
investors or other lenders, any of which indebtedness may be unsecured or may be
secured by mortgages or other interests in the property owned by the Company.
There are no limits on the number or amounts of mortgages or other interests
which may be placed on any one property. In addition, such indebtedness may be
with or without recourse to all or any part of the property of the Company or
may be limited to the particular property to which the indebtedness relates. The
proceeds from any borrowings may be used for the payment of distributions, for
working capital, to refinance indebtedness or to finance acquisitions,
expansions or developments of new properties.
In the event that the Board of Trustees determines to raise additional
equity capital, the Board of Trustees has the authority, without shareholder
approval, to issue additional Shares or other equity interests (including
Preferred Shares and other securities senior to the Shares) of the Company in
any manner (and on such terms and for such consideration) it deems appropriate,
including in exchange for property. Existing shareholders would have no
preemptive right to purchase shares issued in any offering, and any such
offering might cause a dilution of a shareholder's investment in the Company.
WORKING CAPITAL RESERVES
The Company will attempt to maintain working capital reserves (and when not
sufficient, access to borrowings) in amounts that the Board of Trustees
determines to be adequate to meet normal contingencies in connection with the
operation of the Company's business and investments.
CONFLICT OF INTEREST POLICIES
The Company will adopt certain policies and enter into certain agreements
designed to minimize potential conflicts of interest. It is expected that no
trustee will vote on contracts or transactions between the Company and other
entities affiliated with such trustee. However, there can be no assurance that
these policies always will be successful in eliminating the influence of such
conflicts, and if they are not successful, decisions could be made that might
fail to reflect fully the interests of all shareholders. See "Conflicts of
Interest."
DECLARATION OF TRUST AND BYLAW PROVISIONS
The Company's Bylaws provide that any contract or other transaction between
the Company and any of its trustees or any other entity in which a trustee has a
material financial interest is subject to the interested director transaction
provision of the MGCL. Such provision generally provides that a contract
83
<PAGE>
or other transaction with a director or where such material financial interest
exists is not void or voidable if (i) the fact of the common directorship or
interest is disclosed or known to (a) the Board, and the Board ratifies the
contract or transaction by the affirmative vote of a majority of disinterested
directors or (b) the stockholders, and the contract or transaction is approved
by a majority of the votes cast by stockholders other than the interested person
or (ii) the contract or transaction is fair and reasonable to the corporation.
Pursuant to the Declaration of Trust, each trustee is required to discharge
his or her duties in good faith, in a manner he or she reasonably believes to be
in the best interest of the Company and with the care an ordinarily prudent
person in a like position would use under similar circumstances.
OTHER POLICIES
The Company intends to operate in a manner that will not subject it to
regulation under the Investment Company Act of 1940. The Company does not intend
(i) to invest in the securities of other issuers for the purpose of exercising
control over such issuer; (ii) to underwrite securities of other issuers; or
(iii) to trade actively in loans or other investments.
The Company may make investments other than as previously described
(including bonds, preferred stocks and common stocks), although it does not
currently intend to do so. The Company may repurchase or otherwise reacquire
Shares or any other securities it may issue and may engage in such activities in
the future. The Board of Trustees has no present intention of causing the
Company to repurchase any of the Shares, and any such action would be taken only
in conformity with applicable federal and state laws and the requirements for
qualifying as a REIT under the Code and the Treasury regulations thereunder.
Although it may do so in the future, the Company has not issued Shares or any
other securities in exchange for property, nor has it reacquired any of its
Shares or any other securities. See "The Formation Transactions." The Company
may make loans to third parties, including, without limitation, to its officers
and to joint ventures in which it decides to participate. Such loans will
generally require the approval of the Board of Trustees.
At all times, the Company intends to make investments in such a manner as to
be consistent with the requirements of the Code to qualify as a REIT unless,
because of changes in future economic, market or legal conditions, or changes in
the Code or in the Treasury Regulations, the Board of Trustees determines to
revoke the Company's REIT election if the Board determines that such factors
make it no longer beneficial to qualify as a REIT.
CONFLICTS OF INTEREST
GENERAL
Several conflicts of interest exist on the part of the Company, its trustees
and officers and AMCE, AMC and their respective directors and officers. The
following descriptions set forth the principal conflicts of interest, including
the relationships through which they arise, and the policies and procedures
implemented by the Company to address those conflicts.
POTENTIAL CONFLICTS OF INTEREST
AFFILIATED TRUSTEES. Peter C. Brown is the Chairman of the Board of
Trustees of the Company and the President, Chief Financial Officer and Director
of AMCE. As of October 27, 1997, Mr. Brown owned options to purchase 159,000
shares of AMCE common stock. The Company's Bylaws provide that any transactions
between the Company and any of its trustees or any other entity in which a
trustee has a material financial interest is subject to the interested director
transaction provision of Maryland law. Accordingly, it is expected that no
trustee will vote on contracts or transactions between the Company and other
entities affiliated with such trustee. See "Management," "Policies and
Objectives with Respect
84
<PAGE>
to Certain Activities-- Declaration of Trust and Bylaw Provisions" and
"Relationship Between AMCE and the Company after the Formation Transactions."
PURCHASE PRICE OF THE PROPERTIES. The purchase price of each Property was
determined by management of both AMCE and the Company as the cost of developing
and constructing such Property. The purchase price of the land parcels was
determined by management of both AMCE and the Company based on an estimated
market value for such parcels less estimated marketing and selling costs. The
estimated market value was based on an evaluation of comparable properties in
each of the markets in which such land parcels are located in connection with
local real estate brokers. It is possible that if such valuations had been
determined on an arm's-length basis, or had been the subject of independent
valuations or appraisals, the sum of the values of the Properties might have
been greater or lower than the sum of the values determined by the management of
AMCE and the Company.
TERMS OF LEASES. The Lease payment obligations with respect to the
Properties were determined by management of AMC and management of the Company
and were not negotiated on an arm's-length basis. However, the Lease payments
that AMC is obligated to make are based on an initial lease rate of 10.5%, which
the Company believes reflects the fair rental value of the Properties to the
Company based on rates for comparable triple net lease transactions. It is
possible that if such terms had been determined on an arms' length basis, the
initial lease rate may have been higher or lower than the rate determined by
managements of AMCE and the Company.
POTENTIAL FOR FUTURE CONFLICTS. After the Offering, AMCE and the Company
may be in situations where they have differing interests resulting from the
significant ongoing relationship between the companies. Such situations include
the fact that after the Offering (i) AMC will lease, pursuant to the Leases
guaranteed by AMCE, the Initial Properties which will be owned by the Company;
(ii) the Company will have options to acquire the Option Properties and related
land parcels that are owned by AMC and a right of first refusal and first offer
to purchase any megaplex theatre and related entertainment properties acquired
or developed and owned (or ground-leased) by AMCE or its subsidiaries,
exercisable for a period of five years following the closing of the Offering
upon AMCE's intended disposition of such property; (iii) AMC will lease,
pursuant to Leases guaranteed by AMCE, any acquired Option Property from the
Company; and (iv) AMC will have a right of first refusal and first offer to
acquire any Property or any interest in an entertainment or
entertainment-related property acquired or developed by the Company and operated
by AMC. Accordingly, the potential exists for disagreements as to the compliance
with these agreements. Additionally, the possible need by the Company, from time
to time, to finance, refinance or effect a sale of any of the properties
operated by AMC may result in a need to modify the lease with AMC with respect
to such property. Any such modification will require the consent of AMC, and the
lack of consent from AMC could adversely affect the Company's ability to
consummate such financings or sales. Because of the relationships described
above, there exists the risk that the Company will not achieve the same results
in its dealings with AMCE or from its operations that it might achieve if such
relationships did not exist. Similar potential for future conflicts exist with
respect to Planet Movies as a result of AMCE's participation in such joint
venture or otherwise.
85
<PAGE>
THE FORMATION TRANSACTIONS
Following the closing of the Offering, the Company and AMCE will engage in
the Formation Transactions, which are designed to consolidate the ownership
interests in the Initial Properties in the Company, to facilitate the Offering
and to enable the Company to qualify as a REIT for federal income tax purposes
commencing with its taxable year ending December 31, 1997. None of such
transactions is expected to occur unless all such transactions occur. These
transactions include the following:
- The Company, which was formed as a Maryland real estate investment trust
on August 22, 1997, will sell 13,800,000 Shares in the Offering (including
120,000 Shares to certain executive officers of the Company) for net
proceeds of approximately $254.8 million after deduction of the estimated
underwriting discount and offering expenses (assuming an initial public
offering price of $20.00 per Share);
- The Company will use the net proceeds of the Offering to acquire the
Initial Properties from AMC for an aggregate purchase price of
approximately $248.8 million payable in cash;
- The Company will lease the Initial Properties to AMC, pursuant to the
Leases, for initial terms ranging from 13 to 15 years. Each Lease may be
extended upon the same terms and conditions for four five-year renewal
terms each at the option of AMC. Pursuant to the Leases, the Company will
grant to AMC a right of first refusal and first offer to acquire any
Property or any interest in an entertainment or entertainment-related
property acquired or developed by the Company and operated by AMC;
- The Company will enter into the Option Agreements with AMCE and certain of
its subsidiaries and the current owner/lessor of certain Properties
pursuant to which the Company will be granted the option to acquire any or
all of the Option Properties for an aggregate estimated purchase price of
$138.5 million for a period of 90 days following the actual opening date
of the megaplex theatre on such Option Properties. If acquired, the Option
Properties will be leased to AMC pursuant to Leases on substantially the
same terms and conditions as the Leases to the Initial Properties.
- The Company will acquire a land parcel adjacent to one of the Initial
Properties and will have options to acquire land parcels adjacent to three
of the Option Properties, if not under contract for sale or sold at the
time of the related theatre acquisition, for an aggregate purchase price
of $9.6 million.
- The Company will enter into the AMCE Right to Purchase Agreement pursuant
to which AMCE will grant the Company a right of first refusal and first
offer to purchase and lease back to AMC, any megaplex theatre property
acquired or developed and owned (or ground-leased) by AMCE or its
subsidiaries, exercisable for a period of five years following the closing
of the Offering upon AMCE's intended disposition of such property. The
purchase price and the initial annual rental rate for properties acquired
will be determined through the right of first refusal and first offer
process at the time of such acquisition and lease back;
- The Company will enter into the $200 million Bank Credit Facility
following the Formation Transactions; and
- The Company will enter into employment agreements with certain of the
Company's executive officers, including Robert L. Harris, the President
and Chief Development Officer of the Company, and David M. Brain, the
Chief Financial Officer of the Company.
BENEFITS TO THE COMPANY AND ITS OFFICERS AND TRUSTEES
The benefits of the Formation Transactions to the Company and its officers
and trustees include:
- The ability to access public capital markets;
86
<PAGE>
- The creation of an entity which, through its distributions to
shareholders, is able to reduce or avoid the incurrence of federal income
tax, allowing its shareholders to participate in real estate investments
without the "double taxation" of income that generally results from an
investment in a regular corporation;
- The ability of the Company to take advantage of acquisition and
development opportunities through its strong capital base;
- The Company will enter into employment agreements with Robert L. Harris
and David M. Brain providing for annual initial compensation of $225,000
and $175,000, respectively, and signing bonuses upon consummation of the
Formation Transactions of $40,000 and $30,000, respectively;
- Robert L. Harris, the President and Chief Development Officer of the
Company, will purchase 80,000 Shares at the initial public offering price
pursuant to the Share Purchase Program and will be granted 40,000
restricted Shares pursuant to the Restricted Share Program and options to
purchase 40,000 Shares pursuant to the Share Option Program. David M.
Brain, the Chief Financial Officer of the Company, will purchase 40,000
Shares at the initial public offering price pursuant to the Share Purchase
Program and will be granted 20,000 restricted Shares pursuant to the
Restricted Share Program and options to purchase 20,000 Shares pursuant to
the Share Option Program; and
- Each Non-Employee Trustee (other than the Chairman of the Board of
Trustees) will receive options to acquire 10,000 Shares at the initial
public offering price. Such options will vest immediately upon the date of
grant.
BENEFITS TO AMCE
The benefits of the Formation Transactions to AMCE and its subsidiaries
include:
- AMCE will receive approximately $248.8 million in cash in exchange for the
Initial Properties to be sold to the Company.
- In the event the Company determines to exercise the Company's option to
purchase all of the Option Properties that are owned or leased by
subsidiaries of AMCE, AMCE could receive up to approximately $61.9 million
in cash;
- In the event subsidiaries of AMCE have not contracted to sell or sold the
land parcels and the Company exercises its options to acquire such land
parcels, AMCE would receive up to approximately $9.6 million in cash;
- AMCE will have the proceeds of the sale of the Initial Properties
available to discharge certain indebtedness under the AMCE Credit
Facility, which will become available for reborrowing; and
- AMCE will expand its marketing opportunities through increased access to
capital.
87
<PAGE>
PRINCIPAL SHAREHOLDERS OF THE COMPANY
The following table sets forth certain information regarding the beneficial
ownership of Shares by each trustee of the Company, by each Named Executive
Officer, by all trustees and officers of the Company as a group and by each
person who is expected to be the beneficial owner of 5% or more of the
outstanding Shares immediately following the closing of the Offering. The table
assumes (i) the consummation of the Formation Transactions, and (ii) no exercise
of the Underwriters' over-allotment option. Each person named in the table has
sole voting and investment power with respect to all the Shares shown as
beneficially owned by such person except as otherwise set forth in the notes to
the table.
<TABLE>
<CAPTION>
PERCENTAGE OF SHARES
NUMBER OF OUTSTANDING FOLLOWING THE
NAME OF BENEFICIAL OWNERS SHARES OFFERING
- -------------------------------------------------------- ----------- -------------------------
<S> <C> <C>
Peter C. Brown.......................................... -- *%
Robert L. Harris(1)..................................... 120,050 *
David M. Brain(1)....................................... 60,050 *
Robert J. Druten(2)..................................... 10,000 *
Charles S. Paul......................................... 10,000 *
Scott H. Ward(2)........................................ 10,000 *
All executive officers and trustees as a group (6
persons)............................................... 210,100 1.5%
</TABLE>
- --------------
* Less than 1%.
(1) Includes restricted Shares that will be awarded pursuant to the Restricted
Share Program.
(2) Represents options that will be granted pursuant to the Share Option Program
at the initial public offering price and will vest immediately upon the date
of grant.
RELATIONSHIP BETWEEN AMCE AND THE COMPANY
AFTER THE FORMATION TRANSACTIONS
For the purpose of governing certain of the ongoing relationships between
AMCE and the Company after the Formation Transactions and to provide mechanisms
for an orderly transition, prior to the completion of the Formation
Transactions, AMCE and the Company will have entered into the various agreements
and will adopt policies as described herein. The Company believes that the
agreements are fair to it and contain terms which generally are comparable to
those which would have been reached in arm's-length negotiations with
unaffiliated parties. Such agreements include (a) the Purchase Agreement, (b)
the Option Agreements, (c) the AMCE Right to Purchase Agreement and (d) the
Leases.
PURCHASE AGREEMENT. Prior to the closing of the Offering, the Company, AMC
and other subsidiaries of AMCE will enter into the Purchase Agreement which
provides the terms of the sale of the Initial Properties for aggregate cash
consideration of approximately $248.8 million. Pursuant to the Purchase
Agreement, the transfer of the Initial Properties is subject to the closing of
the Offering as well as the normal and customary conditions to the closing of
real estate transactions, including certain consents or waivers of third
parties. The Purchase Agreement will contain representations and warranties by
AMC concerning the Initial Properties customarily found in agreements of such
types.
OPTION AGREEMENTS. Prior to the closing of the Offering, the Company and
subsidiaries of AMCE and the current owner/lessor of certain Properties will
enter into the Option Agreements, pursuant to
88
<PAGE>
which subsidiaries of AMCE and such owner/lessor will grant the Company
exclusive options to acquire any or all of the Option Properties for an
aggregate estimated purchase price of $138.5 million. One of the Initial
Properties and three of the Option Properties have adjacent land parcels that,
if not under contract for sale or sold at the time of the related theatre
acquisition, may be purchased by the Company for an aggregate purchase price of
$9.6 million.
AMCE RIGHT TO PURCHASE AGREEMENT. It is anticipated that AMCE or its
subsidiaries will acquire or develop additional entertainment or
entertainment-related properties in the future. The Company and AMCE will enter
into the AMCE Right to Purchase Agreement whereby the Company will have a right
of first refusal and first offer to purchase and lease back to AMC any megaplex
theatre and related entertainment property acquired or developed and owned (or
ground-leased) by AMCE and its subsidiaries, exercisable for a period of five
years following the closing of the Offering upon AMCE's intended disposition of
such property. The right of first refusal provides that if AMCE or any of its
subsidiaries obtains an acceptable third party offer to acquire any interest in
a Future AMCE Property, prior to selling any interest in such property, AMCE
must first offer to sell the Future AMCE Property to the Company on the same
terms and conditions contained in such third party offer. Such right of first
refusal must be exercised at least 5 days prior to the date the offer by the
potential third-party purchaser expires, but not less than 10 business days
after AMCE notifies the Company of the terms of such potential sale. If the
Company declines to purchase such Future AMCE Property on such terms and
conditions, AMCE will be free to sell such Future AMCE Property for a specified
period of time at a price at least equal to the price offered to the Company and
on terms and conditions substantially consistent with those offered to the
Company. The right of first offer provides that if AMCE or any of its
subsidiaries desires to sell any interest in a Future AMCE Property, AMCE must
notify the Company and the Company will have the right to make an offer to
acquire such property within a specified period of time. If the Company declines
to make an offer, AMCE will be free to sell such property for a specified period
of time. If the Company makes an offer but AMCE declines to sell such Future
AMCE Property to the Company on the terms and conditions contained in such
offer, AMCE will be restricted from selling such Future AMCE Property for a
specified period of time except upon terms and conditions and at a price more
favorable to AMCE than those offered by the Company.
LEASES. The Company will lease the Initial Properties to AMC pursuant to
the Leases guaranteed by AMCE. For a detailed discussion of the terms and
conditions of the Leases, see "Leases."
POLICIES AND PROCEDURES FOR ADDRESSING CONFLICTS. After completion of the
Formation Transactions, AMCE and its subsidiaries and the Company will have
significant contractual and other ongoing relationships, as described above.
Such ongoing relationships may present certain conflict situations where the
Company and AMCE may have differing interests. See "Risk Factors--Conflicts of
Interest." The Company will adopt appropriate policies and procedures to be
followed by the Board of Trustees of the Company to attempt to address those
conflicts. Whether or not a conflict of interest situation exists will be
determined on a case-by-case basis in accordance with the policies and
procedures to be developed by the Company's Board of Trustees. The Company's
Bylaws provide that any transactions between the Company and any of its trustees
or any other entity in which a trustee has a material financial interest is
subject to the interested director transaction provision of Maryland law. See
"Policies and Objectives with Respect to Certain Activities--Declaration of
Trust and Bylaw Provisions."
89
<PAGE>
DESCRIPTION OF SHARES OF BENEFICIAL INTEREST
The following summary of the material terms of the shares of beneficial
interest of the Company does not purport to be complete and is subject to and
qualified in its entirety by reference to the Company's Declaration of Trust and
Bylaws, copies of which have been filed as exhibits to the Registration
Statement of which this Prospectus forms a part.
GENERAL
The Declaration of Trust provides that the Company may issue up to
50,000,000 Shares and 5,000,000 Preferred Shares. Upon the closing of the
Offering, 13,860,100 Shares will be issued and outstanding and no Preferred
Shares will be issued and outstanding. As permitted by Maryland law, the
Declaration of Trust contains a provision permitting the Board of Trustees,
without any action by the shareholders of the Company, to amend the Declaration
of Trust from time to time to increase or decrease the aggregate number of
shares of beneficial interest or the number of shares of any class of shares of
beneficial interest that the Company has authority to issue. Under Maryland law,
a shareholder is not personally liable for the obligations of a real estate
investment trust solely as a result of his status as a shareholder. For a
description of certain provisions that could have the effect of delaying,
deferring or preventing a change in control, see "Risk Factors--Limitations on
Size of Holdings of Shares and Change in Control" and "Certain Provisions of
Maryland Law and of the Company's Declaration of Trust and Bylaws."
The transfer agent and registrar for the Shares is UMB Bank, National
Association.
COMMON SHARES
All Shares offered hereby will be duly authorized, fully paid and
nonassessable. Subject to the preferential rights of any other class or series
of beneficial interest and to the provisions of the Declaration of Trust
regarding the restriction of the transfer of shares of beneficial interest,
holders of Shares are entitled to receive dividends on such shares if, as and
when authorized and declared by the Board of Trustees of the Company out of
assets legally available therefor and to share ratably in the assets of the
Company legally available for distribution to its shareholders in the event of
its liquidation, dissolution or winding up after payment of or adequate
provision for all known debts and liabilities of the Company.
Subject to the provisions of the Declaration of Trust regarding the
restriction on the transfer of shares of beneficial interest, each outstanding
Share entitles the holder to one vote on all matters submitted to a vote of
shareholders, including the election of trustees, and, except as provided with
respect to any other class or series of shares, the holders of such Shares will
possess the exclusive voting power. There is no cumulative voting in the
election of trustees, which means that the holders of a majority of the
outstanding Shares can elect all of the trustees then standing for election and
the holders of the remaining Shares will not be able to elect any trustees.
Holders of Shares have no preference, conversion, exchange, sinking fund or
redemption rights and have no preemptive rights to subscribe for any securities
of the Company. Subject to the provisions of the Declaration of Trust regarding
the restriction on transfer of shares of beneficial interest, Shares will have
equal dividend, liquidation and other rights.
Under Maryland law, a Maryland real estate investment trust generally cannot
amend its declaration of trust or merge, unless approved by the affirmative vote
of shareholders holding at least two thirds of the shares entitled to vote on
the matter unless a lesser percentage (but not less than a majority of all of
the votes entitled to be cast on the matter) is set forth in the trust's
Declaration of Trust. The Declaration of Trust of the Company provides for
approval by a majority of all votes entitled to be cast on the matter in such
situations. Under Maryland law, a declaration of trust may permit the trustees
by a two-thirds vote to amend the declaration of trust from time to time to
qualify as a REIT under the Code or Maryland law
90
<PAGE>
without the affirmative vote or written consent of the shareholders. The
Company's Declaration of Trust permits such action by the Board of Trustees.
Pursuant to the Company's Declaration of Trust, the dissolution of the Company
must be approved by the affirmative vote of a majority of all the votes entitled
to be cast on the matter.
The Declaration of Trust authorizes the Board of Trustees to reclassify any
unissued Shares into other classes or series of classes of beneficial interest
and to establish the number of shares in each class or series and to set the
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends or other distributions, qualifications or terms or
conditions of redemption for each such class or series.
PREFERRED SHARES
The Board is empowered by the Declaration of Trust, without the approval of
shareholders, to classify any unissued Preferred Shares and to reclassify any
previously classified but unissued Preferred Shares of any series from time to
time. Prior to the issuance of any such shares, the Board is required to set,
subject to the provisions of the Declaration of Trust regarding the restriction
on transfers of shares, the terms, preferences, conversion or other rights,
voting powers, restrictions, limitations as to dividends or other distributions,
qualifications and terms or conditions of redemption for such shares. Upon the
closing of the Offering, no Preferred Shares will be outstanding and the Company
has no present plans to issue any Preferred Shares following the closing of the
Offering.
POWER TO ISSUE ADDITIONAL SHARES AND PREFERRED SHARES
The Company believes that the power of the Board of Trustees to issue
additional authorized but unissued Shares or Preferred Shares and to classify or
reclassify unissued Shares or Preferred Shares and thereafter to cause the
Company to issue such classified or reclassified shares of beneficial interest
will provide the Company with increased flexibility in structuring possible
future financings and acquisitions and in meeting other needs which might arise.
The additional classes or series, as well as the Shares, will be available for
issuance without further action by the Company's shareholders, unless such
action is required by applicable law or the rules of any stock exchange or
automated quotation system on which the Company's securities may be listed or
traded. Although the Board of Trustees has no intention at the present time of
doing so, it could authorize the Company to issue a class or series that could,
depending upon the terms of such class or series, delay, defer or prevent a
transaction or a change in control of the Company that might involve a premium
price for holders of Shares or otherwise be in their best interest.
RESTRICTION ON SIZE OF HOLDINGS OF SHARES
The Company's Declaration of Trust contains certain restrictions on the
number of Shares that individual shareholders may own. Generally, for the
Company to qualify as a REIT under the Code, not more than 50% in value of the
Company's outstanding shares of beneficial interest (after taking into account
options to acquire Shares) may be owned, directly or indirectly, by five or
fewer individuals (as defined in the Code to include certain entities and
constructive ownership among specified family members) at any time during the
last half of a taxable year (other than the Company's first taxable year). The
shares of beneficial interest must also be beneficially owned (other than during
the Company's first taxable year) by 100 or more persons during at least 335
days of a taxable year or during a proportionate part of a shorter taxable year.
Because the Company intends to qualify as a REIT, its Declaration of Trust
contains restrictions on the acquisition of the Company's Shares intended to
ensure compliance with these requirements.
Subject to certain exceptions specified in the Company's Declaration of
Trust, no holder may own, or be deemed to own by virtue of the attribution
provisions of the Code, more than 9.8% (the "Ownership
91
<PAGE>
Limit") of the number or value of the Company's issued and outstanding shares of
beneficial interest. The Board, upon receipt of a ruling from the Internal
Revenue Service ("IRS") or an opinion of counsel or other evidence satisfactory
to the Board and upon such other conditions as the Board may direct, may also
exempt a proposed transferee from the Ownership Limit. Any person who acquires
or attempts to acquire shares of beneficial interest in violation of the
Ownership Limit, or any person who, as a transferee, acquires shares of
beneficial interest in violation of the Ownership Limit, must immediately give
written notice, or, in the event of a proposed or attempted transfer, must give
written notice to the Company of the proposed transfer no later than the
fifteenth day prior to any transfer which, if consummated, would result in the
intended transferee owning shares of beneficial interest in excess of the
Ownership Limit. The Board may require such opinions of counsel, affidavits,
undertakings or agreements as it may deem necessary or advisable in order to
determine or ensure the Company's status as a REIT. Any transfer of Shares that
would (i) create a direct or indirect ownership of shares of beneficial interest
in excess of the Ownership Limit, (ii) result in the shares of beneficial
interest being beneficially owned by fewer than 100 persons (determined without
reference to any rules of attribution) as provided in Section 856(a) of the Code
or (iii) result in the Company being "closely held" within the meaning of
Section 856(h) of the Code, shall be null and void ab initio, and the intended
transferee will acquire no rights to the shares of beneficial interest. The
foregoing restrictions on transferability and ownership will not apply if the
Board determines that it is no longer in the best interests of the Company to
attempt to qualify, or to continue to qualify, as a REIT.
Any shares of beneficial interest the purported transfer of which would
result in a person owning Shares in excess of the Ownership Limit or cause the
Company to become "closely held" under Section 856(h) of the Code that is not
otherwise permitted as provided above will constitute excess shares ("Excess
Shares"), which will be transferred pursuant to the Company's Declaration of
Trust to a party not affiliated with the Company designated by the Company as
the trustee of a trust for the exclusive benefit of an organization or
organizations described in Sections 170(b)(1)(A) and 170(c) of the Code and
identified by the Board as the beneficiary or beneficiaries of the trust (the
"Charitable Beneficiary"), until such time as the Excess Shares are transferred
to a person whose ownership will not violate the restrictions on ownership.
While these Excess Shares are held in trust, any distributions on such Excess
Shares will be paid to the trust for the benefit of the Charitable Beneficiary
and may only be voted by the trustee on behalf of the Charitable Beneficiary.
Subject to the Ownership Limit, the Excess Shares shall be transferred by the
trustee at the direction of the Company to any person (if the Excess Shares
would not be Excess Shares in the hands of such person). The purported
transferee of the Shares that are transferred to the Excess Shares trust will
thereupon receive the lesser of (i) the price paid by the purported transferee
for the Excess Shares (or, if no consideration was paid, fair market value on
the day of the event causing the Excess Shares to be held in trust) and (ii) the
price received from the sale or other disposition of the Excess Shares held in
trust. Any proceeds in excess of the amount payable to the purported transferee
will be paid to the Charitable Beneficiary. In addition, such Excess Shares held
in trust are subject to purchase by the Company for a 90-day period at a
purchase price (which will be payable at the option of the Company at any time
up to but not later than five years after the date the Company accepts the offer
to purchase the Excess Shares) equal to the lesser of (i) the price paid for the
Excess Shares by the purported transferee (or, if no consideration was paid,
fair market value at the time of the event causing the shares to be held in
trust) and (ii) the fair market value of the Excess Shares on the date the
Company elects to purchase. Upon liquidation of the Company, the purported
transferee will receive the lesser of (i) the amount of any liquidating
distribution or (ii) the price paid by the purported transferee for the Excess
Shares or, if the purported transferee did not give value for the Excess Shares,
the fair market value of the Excess Shares on the day of the event causing the
Excess Shares to be held in trust. Fair market value, for these purposes, means
the last reported sales price reported on the NYSE on the trading day
immediately preceding the relevant date, or if not then traded on the NYSE, the
last reported sales price on the trading day immediately preceding the relevant
date as reported on any exchange or quotation system over or through which the
relevant class of shares may be traded, or if not
92
<PAGE>
then traded over or through any exchange or quotation system, then the market
price on the relevant date as determined in good faith by the Board.
From and after the purported transfer to the purported transferee of the
Excess Shares, the purported transferee shall cease to be entitled to
distributions (other than liquidating distributions), voting rights and other
benefits with respect to the Excess Shares except the right to payment on the
transfer of the Excess Shares as described above. Any distribution paid to a
purported transferee on Excess Shares prior to the discovery by the Company that
such Excess Shares have been transferred in violation of the provisions of the
Declaration of Trust shall be repaid, upon demand, to the Company, which shall
pay any such amounts to the trust for the benefit of the Charitable Beneficiary.
If the foregoing transfer restrictions are determined to be void, invalid or
unenforceable by any court of competent jurisdiction, then the purported
transferee of any Excess Shares may be deemed, at the option of the Company, to
have acted as an agent on behalf of the Company in acquiring such Excess Shares
in trust and to hold such Excess Shares on behalf of the Company.
All certificates representing Shares will bear a legend referring to the
restrictions described above.
All persons who own, directly or by virtue of the attribution provisions of
the Code, more than 5% (or such other lower percentages, as required pursuant to
regulations promulgated under the Code) of the number or value of the Company's
outstanding shares of beneficial interest, including Shares, must give a written
notice containing certain information to the Company by January 31 of each year.
In addition, each shareholder shall upon demand be required to disclose to the
Company in writing such information with respect to the direct, indirect and
constructive ownership of Shares as the Board deems reasonably necessary to
comply with the provisions of the Code applicable to a REIT, to determine the
Company's status as a REIT, to comply with the requirements of any taxing
authority or governmental agency or to determine any such compliance.
These ownership limitations could have the effect of delaying, deferring or
preventing a change of control of the Company in which holders of some, or a
majority, of the Shares might receive a premium for their Shares over the then
prevailing market price or which such holders might believe to be otherwise in
their best interest.
PROVISIONS OF MARYLAND LAW AND OF
THE COMPANY'S DECLARATION OF TRUST AND BYLAWS
The following summary of the material provisions of Maryland law and the
Company's Declaration of Trust and Bylaws does not purport to be complete and is
subject to and qualified in its entirety by reference to Maryland law and to the
Company's Declaration of Trust and Bylaws, copies of which have been filed as
exhibits to the Registration Statement of which this Prospectus forms a part.
CLASSIFICATION AND REMOVAL OF THE TRUSTEES
The Company's Declaration of Trust provides that the number of trustees may
be increased or decreased from time to time by the vote of a majority of the
Board but may not be less than three. Pursuant to the Company's Declaration of
Trust, the trustees are divided into three classes. One class will hold office
initially for a term expiring at the annual meeting of shareholders to be held
in 1998, another class will hold office initially for a term expiring at the
annual meeting of shareholders to be held in 1999 and another class will hold
office initially for a term expiring at the annual meeting of shareholders to be
held in 2000. As the term of each class expires, trustees in that class will be
elected for a term of three years and until their successors are duly elected
and qualify. The Company believes that classification of the Board will help to
assure the continuity and stability of the Company's business strategies and
policies as determined by the Board. Holders of Shares will have no right to
cumulative voting in the election of trustees. Consequently, at each annual
meeting of shareholders, the holders of a majority of
93
<PAGE>
the Shares will be able to elect all of the successors of the class of trustees
whose terms expire at that meeting.
The classified trustee provision could have the effect of making the removal
of incumbent trustees more time-consuming and difficult, which could discourage
a third party from making a tender offer or otherwise attempting to obtain
control of the Company, even though such an attempt might be beneficial to the
Company and its shareholders. At least two annual meetings of shareholders,
instead of one, will generally be required to effect a change in a majority of
the Board. Thus, the classified board provision could increase the likelihood
that incumbent trustees will retain their positions.
The Declaration of Trust provides that a trustee may be removed only for
cause and only by the affirmative vote of at least two-thirds of the votes
entitled to be cast generally in the election of trustees. This provision, when
coupled with the provision in the Bylaws authorizing the Board of Trustees to
fill vacant trusteeships, precludes shareholders from removing incumbent
trustees except upon the existence of cause for removal and a substantial
affirmative vote and filling the vacancies created by such removal with their
own nominees.
BUSINESS COMBINATIONS
Under the MGCL, as applicable to Maryland real estate investment trusts,
certain "business combinations" (including a merger, consolidation, share
exchange, or, in certain circumstances, an asset transfer or issuance or
reclassification of equity securities) between a Maryland real estate investment
trust and any person who beneficially owns 10% or more of the voting power of
the trust's shares or an affiliate of the trust who, at any time within the
two-year period prior to the date in question, was the beneficial owner of 10%
or more of the voting power of the then-outstanding voting shares of the trust
(an "Interested Shareholder") or an affiliate of such an Interested Shareholder
are prohibited for five years after the most recent date on which the Interested
Shareholder became an Interested Shareholder. Thereafter, any such business
combination must be recommended by the board of trustees of such trust and
approved by the affirmative vote of at least (a) 80% of the votes entitled to be
cast by holders of outstanding voting shares of the trust and (b) two-thirds of
the votes entitled to be cast by holders of outstanding voting shares of
beneficial interest of the trust other than shares held by the Interested
Shareholder with whom (or with whose affiliate) the business combination is to
be effected, unless, among other conditions, the trust's common shareholders
receive a minimum price (as defined in the MGCL) for their shares and the
consideration is received in cash or in the same form as previously paid by the
Interested Shareholder for its shares. These provisions of Maryland law do not
apply, however, to business combinations that are approved or exempted by the
board of trustees of the trust prior to the time that the Interested Shareholder
becomes an Interested Shareholder.
CONTROL SHARE ACQUISITIONS
The MGCL, as applicable to Maryland real estate investment trusts, provides
that "Control Shares" of a Maryland real estate investment trust acquired in a
"Control Share acquisition" have no voting rights except to the extent approved
by a vote of two-thirds of the votes entitled to be cast on the matter,
excluding shares owned by the acquiror, by officers or by directors who are
employees of the corporation. "Control Shares" are voting shares which, if
aggregated with all other such shares previously acquired by the acquiror, or in
respect of which the acquiror is able to exercise or direct the exercise of
voting power (except solely by virtue of a revocable proxy), would entitle the
acquiror to exercise voting power in electing directors within one of the
following ranges of voting power: (i) one-fifth or more but less than one-third,
(ii) one-third or more but less than a majority, or (iii) a majority of all
voting power. Control Shares do not include shares the acquiring person is then
entitled to vote as a result of having previously obtained shareholder approval.
A "Control Share acquisition" means the acquisition of Control Shares, subject
to certain exceptions. A person who has made or proposes to make a Control
94
<PAGE>
Share acquisition, upon satisfaction of certain conditions (including an
undertaking to pay expenses), may compel the board of trustees to call a special
meeting of shareholders to be held within 50 days of demand to consider the
voting rights of the shares. If no request for a meeting is made, the trust may
itself present the question at any shareholders meeting.
If voting rights are not approved at the meeting or if the acquiring person
does not deliver an acquiring person statement as required by the statute, then,
subject to certain conditions and limitations, the trust may redeem any or all
of the Control Shares (except those for which voting rights have previously been
approved) for fair value determined, without regard to the absence of voting
rights for the Control Shares, as of the date of the last Control Share
acquisition of the acquiror or of any meeting of shareholders at which the
voting rights of such shares are considered and not approved. If voting rights
for Control Shares are approved at a shareholders meeting and the acquiror
becomes entitled to vote a majority of the shares entitled to vote, all other
shareholders may exercise appraisal rights. The fair value of the shares as
determined for purposes of such appraisal rights may not be less than the
highest price per share paid by the acquiror in the Control Share acquisition.
The Control Share acquisition statute does not apply to shares acquired in a
merger, consolidation or share exchange if the trust is a party to the
transaction, or to acquisitions approved or exempted by the declaration of trust
or bylaws of the trust.
AMENDMENT TO THE DECLARATION OF TRUST
The Declaration of Trust, including its provisions on classification of the
Board of Trustees and removal of trustees, may be amended only by the
affirmative vote of the holders of not less than a majority of all of the votes
entitled to be cast on the matter. Under Maryland law, a real estate investment
trust generally cannot dissolve, amend its declaration of trust or merge, unless
approved by the affirmative vote of shareholders holding at least two-thirds of
the shares entitled to vote on the matter unless a lesser percentage (but not
less than a majority of all of the votes entitled to be cast on the matter) is
set forth in the real estate investment trust's declaration of trust. The
Company's Declaration of Trust provides for approval in such situations by a
majority of all of the votes entitled to be cast on the matter. Under Maryland
law, a declaration of trust may permit the trustees by a two-thirds vote to
amend the declaration of trust from time to time to qualify as a real estate
investment trust under the Code or Maryland law without the affirmative vote or
written consent of the shareholders. The Company's Declaration of Trust permits
such action by the Board of Trustees.
DISSOLUTION OF THE COMPANY
Pursuant to the Company's Declaration of Trust, the dissolution of the
Company must be approved by the affirmative vote of the holders of not less than
a majority of all of the votes entitled to be cast on the matter.
ADVANCE NOTICE OF TRUSTEE NOMINATIONS AND NEW BUSINESS
For nominations or other business to be properly brought before an annual
meeting of shareholders by a shareholder, the Company's Bylaws require such
shareholder to deliver a notice to the Secretary, absent specified
circumstances, not less than 60 days nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting setting forth: (i) as to each
person whom the shareholder proposes to nominate for election or reelection as a
trustee, all information relating to such person that is required to be
disclosed in solicitations of proxies for the election of trustees, pursuant to
Regulation 14A of the Exchange Act; (ii) as to any other business that the
shareholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
shareholder and of the beneficial owner, if any, on whose behalf the proposal is
made; and (iii) as to the shareholder
95
<PAGE>
giving the notice and the beneficial owner, if any, on whose behalf the
nomination or proposal is made, (x) the name and address of such shareholder as
they appear on the Company's books, and of such beneficial owner and (y) the
number of Shares which are owned beneficially and of record by such shareholder
and such beneficial owner, if any.
ANTI-TAKEOVER EFFECT OF CERTAIN PROVISIONS OF MARYLAND LAW AND OF THE
DECLARATION OF TRUST AND BYLAWS
The business combination provisions and the control share acquisition
provisions of the MGCL, the provisions of the Declaration of Trust on
classification of the Board of Trustees and removal of trustees and the advance
notice provisions of the Bylaws could delay, defer or prevent a transaction or a
change in control of the Company that might involve a premium price for holders
of Shares or otherwise be in their best interest.
MARYLAND ASSET REQUIREMENTS
To maintain its qualification as a Maryland real estate investment trust,
Maryland law requires that the Company hold, either directly or indirectly, at
least 75% of the value of its assets in real estate assets, mortgages or
mortgage-related securities, government securities, cash and cash equivalent
items, including high-grade short-term securities and receivables. Maryland law
also prohibits using or applying land for farming, agricultural, horticultural
or similar purposes.
SHARES AVAILABLE FOR FUTURE SALE
As of the date of this Prospectus, the Company had 100 Shares issued and
outstanding. Upon the closing of the Offering, the Company will have 13,860,100
Shares issued and outstanding and 90,000 Shares reserved pursuant to awards made
under the Compensation Programs prior to the consummation of the Offering. The
Company has reserved an additional 1,230,000 Shares for future issuance upon
exercise of awards granted under the Compensation Programs. See
"Management--Compensation Programs." All of the 13,800,000 Shares to be issued
or sold by the Company in the Offering, other than Shares purchased by Robert L.
Harris, David M. Brain and other affiliates, will be tradeable without
restriction under the Securities Act. The Shares currently issued and
outstanding or reserved for issuance upon exercise of options will be eligible
for sale in the future, subject to the volume resale, manner of sale and notice
limitations of Rule 144 under the Securities Act.
In general, under Rule 144, a person (or persons whose Shares are aggregated
in accordance with the Rule) who has beneficially owned his or her Shares for at
least one year, including any such persons who may be deemed "affiliates" of the
Company (as defined in the Securities Act), would be entitled to sell within any
three-month period a number of Shares that does not exceed the greater of 1% of
the then outstanding number of Shares or the average weekly trading volume of
the Shares during the four calendar weeks preceding each such sale. After Shares
are held for two years, a person who is not deemed an "affiliate" of the Company
is entitled to sell such Shares under Rule 144 without regard to the volume
limitations described above. Sales of Shares by affiliates will continue to be
subject to the volume limitations. As defined in Rule 144, an "affiliate" of an
issuer is a person that directly or indirectly, through the use of one or more
intermediaries, controls, is controlled by, or is under common control with,
such issuer.
No prediction can be made as to the effect, if any, that future sales of
Shares or the availability of Shares for future sale will have on the market
prices of Shares. Sales of substantial amounts of Shares (including Shares
issued upon the exercise of options), or the perception that such sales could
occur, could adversely affect the prevailing market price of the Shares.
For a description of certain restrictions on transfers of Shares by the
Company (and certain of its trustees and officers), see "Underwriting."
96
<PAGE>
FEDERAL INCOME TAX CONSEQUENCES
The following summary of the taxation of the Company and the material
federal income tax consequences to holders of the Shares is for general
information only, and is not tax advice. The tax treatment of a holder of Shares
will vary depending upon the holder's particular situation, and this discussion
addresses only holders that hold Shares as capital assets and does not purport
to deal with all aspects of taxation that may be relevant to particular holders
in light of their personal investment or tax circumstances, or to certain types
of holders (including dealers in securities or currencies, banks, tax-exempt
organizations, life insurance companies, persons that hold Shares that are a
hedge or that are hedged against currency risks or that are part of a straddle
or conversion transaction) subject to special treatment under the federal income
tax laws. This summary is based on the Code, its legislative history, existing
and proposed regulations thereunder, published rulings and court decisions, all
as currently in effect and all subject to change at any time, perhaps with
retroactive effect.
INVESTORS ARE URGED TO CONSULT WITH THEIR OWN TAX ADVISORS REGARDING THE TAX
CONSEQUENCES TO THEM OF THE ACQUISITION, OWNERSHIP AND SALE OF SHARES, INCLUDING
THE FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF SUCH ACQUISITION,
OWNERSHIP AND SALE IN THEIR PARTICULAR CIRCUMSTANCES AND POTENTIAL CHANGES IN
APPLICABLE LAWS.
TAXATION OF THE COMPANY AS A REIT
GENERAL
The Company plans to make an election to be taxed as a REIT under Sections
856 through 860 of the Code, commencing with its taxable year ending December
31, 1997. The Company believes that, commencing with such taxable year, it will
be organized and will operate in such a manner as to qualify for taxation as a
REIT under the Code.
In the opinion of Sullivan & Cromwell, commencing with its taxable year
ending December 31, 1997, the Company will be organized in conformity with, and
its proposed method of operation will enable it to meet, the requirements for
qualification and taxation as a REIT under the Code. Investors should be aware,
however, that opinions of counsel are not binding upon the Internal Revenue
Service or any court. In providing its opinion, Sullivan & Cromwell is relying
upon representations received from the Company. The qualification and taxation
of the Company as a REIT depends upon its ability to meet, through actual annual
operating results, distribution levels, share ownership requirements and the
various qualification tests imposed under the Code. Accordingly, while the
Company intends to qualify to be treated as a REIT, no assurance can be given
that the actual results of the Company's operations for any particular year will
satisfy such requirements. Sullivan & Cromwell will not monitor the compliance
of the Company with the requirements for REIT qualification on an ongoing basis.
The sections of the Code applicable to REITs are highly technical and
complex. The material aspects thereof are summarized below.
As a REIT, the Company generally will not be subject to federal corporate
income taxes on its net income that is currently distributed to shareholders.
This treatment substantially eliminates the "double taxation" (at the corporate
and shareholder levels) that generally results from investment in a regular
corporation. However, the Company will be subject to federal income tax as
follows. First, the Company will be taxed at regular corporate rates on any
undistributed real estate investment trust taxable income, including
undistributed net capital gains. Second, under certain circumstances, the
Company may be subject to the "alternative minimum tax" on its items of tax
preference. Third, if the Company has (i) net income from the sale or other
disposition of "foreclosure property" which is held primarily for sale to
customers in the ordinary course of business or (ii) other non-qualifying income
from foreclosure property, it will be subject to tax at the highest corporate
rate on such income. Fourth, if the Company
97
<PAGE>
has net income from "prohibited transactions" (which are, in general, certain
sales or other dispositions of property, other than foreclosure property, held
primarily for sale to customers in the ordinary course of business), such income
will be subject to a 100% tax. Fifth, if the Company should fail to satisfy the
75% gross income test or the 95% gross income test (as discussed below), but has
nonetheless maintained its qualification as a REIT because certain other
requirements have been met, it will be subject to a 100% tax on an amount equal
to (a) the gross income attributable to the greater of the amount by which the
Company fails the 75% or 95% test, multiplied by (b) a fraction intended to
reflect the Company's profitability. Sixth, if the Company should fail to
distribute during each calendar year at least the sum of (i) 85% of its real
estate investment trust ordinary income for such year, (ii) 95% of its real
estate investment trust capital gain net income for such year, and (iii) any
undistributed taxable income from prior periods, the Company would be subject to
a 4% excise tax on the excess of such required distribution over the amounts
actually distributed. Seventh, if the Company acquires any asset from a C
corporation (i.e., generally a corporation subject to full corporate-level tax)
in certain transactions in which the basis of the asset in the hands of the
Company is determined by reference to the basis of the asset (or any other
property) in the hands of the C corporation, and the Company recognizes gain on
the disposition of such asset during the ten-year period beginning on the date
on which such asset was acquired by the Company (the "Recognition Period"),
then, pursuant to the Treasury regulations that have not yet been issued and to
the extent of the excess of the fair market value of the asset as of the date of
the Company's acquisition over the Company's adjusted basis in such asset on
such date, such gain will be subject to tax at the highest regular corporate
rate. The results described above with respect to assets acquired from a C
corporation assume that the Company will make an election pursuant to Internal
Revenue Service Notice 88-19.
REQUIREMENTS FOR QUALIFICATION
The Code defines a REIT as a corporation, trust or association (1) which is
managed by one or more trustees or directors, (2) the beneficial ownership of
which is evidenced by transferable shares, or by transferable certificates of
beneficial interest, (3) which would otherwise be taxable as a domestic
corporation, but for Sections 856 through 859 of the Code, (4) which is neither
a financial institution nor an insurance company subject to certain provisions
of the Code, (5) the beneficial ownership of which is held by 100 or more
persons, (6) during the last half of each taxable year, not more than 50% in
value of the outstanding shares of which is owned, directly or constructively,
by five or fewer individuals (as defined in the Code to include certain
entities) and (7) which meets certain other tests, described below, regarding
the nature of its income and assets. The Code provides that conditions (1) to
(4) must be met during the entire taxable year and that condition (5) must be
met during at least 335 days of a taxable year of 12 months, or during a
proportionate part of a taxable year of less than 12 months.
The Company's Declaration of Trust provides for restrictions regarding the
ownership and transfer of the Company's shares of beneficial interest, which
restrictions are intended to assist the Company in satisfying the share
ownership requirements described in (5) and (6) above. The ownership and
transfer restrictions pertaining to the Shares are described under the heading
"Description of Shares of Beneficial Interest--Restriction on Size of Holdings
of Shares."
INCOME TESTS. In order to maintain qualification as a REIT, the Company
annually must satisfy two gross income requirements. First, at least 75% of the
Company's gross income (excluding gross income from prohibited transactions) for
each taxable year must be derived directly or indirectly from investments
relating to real property or mortgages on real property (including "rents from
real property") or from certain types of temporary investments. Second, at least
95% of the Company's gross income (excluding gross income from prohibited
transactions) for each taxable year must be derived from such real property
investments, dividends, interest and gain from the sale or disposition of stock
or securities (or from any combination of the foregoing).
98
<PAGE>
Rents received by the Company will qualify as "rents from real property" in
satisfying the gross income requirements for a REIT described above only if
several conditions are met. First, the amount of rent must not be based in whole
or in part on the income or profits of any person. However, an amount received
or accrued generally will not be excluded from the terms "rents from real
property" solely by reason of being based on a fixed percentage or percentages
of receipts or sales. Second, the Code provides that rents received from a
tenant will not qualify as "rents from real property" in satisfying the gross
income tests if the REIT, directly or under the applicable attribution rules,
owns a 10% or greater interest in such tenant (a "Related Party Tenant"). The
applicable attribution rules, however, are highly complex and difficult to
apply, and the Company may inadvertently enter into leases with tenants who,
through application of such rules, will constitute Related Party Tenants. In
such event, rent paid by the Related Party Tenant will not qualify as "rents
from real property," which may jeopardize the Company's status as a REIT. Third,
if rent attributable to personal property leased in connection with a lease of
real property is greater than 15% of the total rent received under the lease,
then the portion of rent attributable to such personal property will not qualify
as "rents from real property". Finally, for rents received to qualify as "rents
from real property," the REIT generally must not operate or manage the property
or furnish or render services to the tenants of such property, other than
through an independent contractor from whom the REIT derives no revenue;
provided, however, that the Company may directly perform certain services that
are "usually or customarily rendered" in connection with the rental of space for
occupancy only or are not considered "rendered to the occupant" of the property.
Pursuant to the Leases, AMC will lease from the Company the land, buildings
and improvements comprising the Properties for initial terms ranging from 13 to
15 years. The Leases will be "triple net" leases which will require AMC to pay
substantially all expenses associated with the operation of the Properties, such
as real estate taxes, insurance, utilities, services, maintenance and other
operating expenses and any ground lease payments. During the Fixed Term and the
Extended Terms of the Leases, AMC will pay Annual Base Rent which will be
payable in monthly installments. Annual Base Rent will be increased each year by
the Base Rent Escalation. In addition, AMC will pay Annual Percentage Rent.
On an ongoing basis, the Company will use its best efforts: (i) not to
charge rent for any property that is based in whole or in part on the income or
profits of any person (except by reason of being based on a percentage of
receipts or sales, as described above); (ii) not to rent any property to a
Related Party Tenant (taking into account the applicable constructive ownership
rules), unless the Company determines in its discretion that the rent received
from such Related Party Tenant is not material and will not jeopardize the
Company's status as a REIT; (iii) not to derive rental income attributable to
personal property (other than personal property leased in connection with the
lease of real property, the amount of which is less than 15% of the total rent
received under the lease); and (iv) not to perform services considered to be
rendered to the occupant of the property, other than through an independent
contractor from whom the Company derives no revenue or if the provisions of such
services will not jeopardize the Company's status as a REIT. Because the Code
provisions applicable to REITs are complex, however, the Company may fail to
meet one or more of the foregoing objectives, which failure may jeopardize the
Company's status as a REIT. For a discussion of the consequences of any failure
be the Company to qualify as a REIT, see "--Failure to Qualify."
Rents under the Leases (the "Rent") will constitute "rents from real
property" only if the Leases are treated as true leases for federal income tax
purposes and are not treated as financing arrangements or some other type of
arrangement. The determination of whether the Leases are true leases depends on
an analysis of all surrounding facts and circumstances. In making such a
determination, courts have considered a variety of factors, including the
following: (i) the intent of the parties; (ii) the form of the agreement; (iii)
the degree of control over the property that is retained by the property owner
(e.g., whether the lessee has substantial control over the operation of the
property or whether the lessee was required simply to use its best efforts to
perform its obligations under the agreement); (iv) the extent to
99
<PAGE>
which the property owner retains the risk of loss with respect to the operation
of the property (e.g., whether the lessee bears the risk of increases in
operating expenses or the risk of damage to the property); and (v) the extent to
which the property owner retains the burdens and benefits of ownership of the
property.
Investors should be aware that there are no controlling Treasury
regulations, published rulings, or judicial decisions involving leases with
terms substantially similar to those contained in the Leases that address
whether such leases constitute true leases for federal income tax purposes. If
the Leases are recharacterized as financing agreements or other arrangements,
rather than true leases, part or all of the payments that the Company receives
from AMC may not be considered rent or may not otherwise satisfy the various
requirements for qualification as "rents from real property." In that case, the
Company likely would not be able to satisfy either the 75% or 95% gross income
tests and, as a result, would lose its REIT status.
The Leases should be treated as true leases for federal income tax purposes,
based, in part, on the following facts: (i) the Company and AMC intend for their
relationship to be that of a lessor and lessee and such relationship will be
documented by lease agreements; (ii) AMC will have the right to exclusive
possession and use and quiet enjoyment of the Properties during the term of the
Leases; (iii) AMC will bear the cost of, and be responsible for, day-to-day
maintenance and repair of the Properties, and will dictate how the Properties
are operated, maintained, and improved; (iv) AMC will bear all of the costs and
expenses of operating the Properties during the terms of the Leases; (v) AMC
will benefit from any savings in the costs of operating the Properties during
the terms of the Leases; (vi) AMC will generally indemnify the Company against
all liabilities imposed on the Company during the term of the Leases by reason
of (a) injury to persons or damage to property occurring at the Properties, or
(b) AMC's use, management, maintenance or repair of the Properties; (vii) AMC is
obligated to pay substantial fixed rent for the period of use of the Properties;
(viii) AMC stands to incur substantial losses (or reap substantial gains)
depending on how successfully it operates the Properties; (ix) the useful lives
of the Properties are significantly longer than the terms of the Leases; and (x)
the Company will receive the benefit of any increase in value, and will bear the
risk of any decrease in value, of the Properties during the terms of the Leases.
For the Rent to constitute "rents from real property," the other
requirements enumerated above also must be satisfied. One requirement is that
the Rent attributable to personal property leased in connection with the lease
of a property must not be greater than 15% of the total Rent received under the
Leases. The Rent attributable to the personal property associated with a
property is the amount that bears the same ratio to total rent for the taxable
year as the average of the adjusted bases of the personal property in the
property at the beginning and at the end of the taxable year bears to the
average of the aggregate adjusted bases of both the real and personal property
comprising the property at the beginning and at the end of such taxable year
(the "Adjusted Basis Ratio"). The Company will not lease any personal property
to AMC pursuant to the Leases. The Adjusted Basis Ratio with respect to each
Lease is anticipated to be less than 15%. Accordingly, Rent received by the
Company should satisfy this requirement.
A second requirement for qualification of the Rent as "rents from real
property" is that the Rent must not be based in whole or in part on the income
or profits of any person. The Rent paid by AMC for the Properties will be a
fixed amount (as adjusted based in part on the gross revenues of each Property)
and will not be based in whole or in part on the net income of any person with
respect to the Properties. Thus, the Rent should also satisfy this requirement.
A third requirement for qualification of the Rent as "rents from real
property" is that the Company must not own, directly or constructively, 10% or
more of AMC or any other tenant of the Properties. The constructive ownership
rules generally provide that if 10% or more in value of the shares of the
Company are owned, directly or indirectly, by or for any person, the Company is
considered as owning the shares
100
<PAGE>
owned, directly or indirectly, by or for such person. The Declaration of Trust
provides that no person may own, directly or constructively, more than 9.8% of
the Company. See "Description of Shares of Beneficial Interest--Restriction on
Size of Holding of Shares." Assuming the Declaration of Trust is complied with,
neither AMC nor any other person should ever own, directly or constructively,
10% or more of the Company, and thus the constructive ownership rules should not
be triggered.
A fourth requirement for qualification of the Rent as "rents from real
property" is that the Company cannot furnish or render noncustomary services to
the tenants of its properties, or manage or operate such properties, other than
through an independent contractor who is adequately compensated and from whom
the Company itself does not derive or receive any income. Provided that the
Leases are respected as true leases, the Company should satisfy this requirement
with respect to the Rent because it will not be performing for AMC any services
other than customary services. As described above, however, if the Leases are
recharacterized as service contracts or partnership agreements, the Rent likely
would be disqualified as "rents from real property" because the Company would be
considered to furnish or render services to the occupants of the properties and
to manage or operate the properties other than through an independent contractor
from whom the Company derives or receives no income. If the Company provides
services to a tenant that are other than those usually or customarily provided
in connection with the rental of space for occupancy only, amounts received by
the Company for such services will not be treated as "rents from real property"
for purposes of the REIT gross income tests but will not cause other amounts
received with respect to the property to fail to be treated as "rents from real
property" unless the amounts received in respect of such services, together with
amounts received for certain management services, exceeds 1% of all amounts
received or accrued by the Company during the taxable year with respect to such
property. Under the literal wording of Section 856 of the Code, if the 1%
threshold is exceeded, then all amounts received or accrued by the Company with
respect to the property will not qualify as "rents from real property," even if
the impermissible services are provided to some, but not all, of the tenants of
the property.
Based on the foregoing, the Rent should qualify as "rents from real
property" for purposes of the 75% and 95% gross income tests. As described
above, however, there can be no complete assurance that the Service will not
assert successfully a contrary position and, therefore, prevent the Company from
qualifying as a REIT.
If the Company fails to satisfy one or both of the 75% or 95% gross income
tests for any taxable year, it may nevertheless qualify as a REIT for such year
if it is entitled to relief under certain provisions of the Code. These relief
provisions will generally be available if the Company's failure to meet such
tests was due to reasonable cause and not due to willful neglect, the Company
attaches a schedule of the sources of its income to its federal income tax
return, and any incorrect information on the schedule was not due to fraud with
intent to evade tax. It is not possible, however, to state whether in all
circumstances the Company would be entitled to the benefit of these relief
provisions. As discussed above under "--General," even if these relief
provisions apply, a tax would be imposed with respect to the excess income.
OTHER ISSUES. Because the majority of the Properties will be acquired from,
and all will be leased to AMC, the Service could assert that the Company
realized prepaid rental income in the year of purchase to the extent that the
value of such Properties exceeds the purchase price paid by the Company for such
Properties. In litigated cases involving sale-leasebacks which have considered
this issue, courts generally have concluded that buyers have realized prepaid
rent where both parties acknowledged that the purported purchase price for the
property was substantially less than the fair market value, and the proposed
rents were substantially less than the fair market rentals. Because of the lack
of clear precedent and the inherently factual nature of the inquiry, no
assurances can be given that the Internal Revenue Service could not successfully
assert the existence of prepaid rental income in such circumstances. The value
of property and the fair market rent for properties involved in sale-leasebacks
are inherently factual matters and always subject to challenge. The Company
believes that
101
<PAGE>
the purchase price paid for the Properties is approximately equal to the fair
market value of the Properties.
Additionally, Section 467 of the Code (concerning leases with increasing
rents) may apply to these Leases because they provide for rents that increase
from one period to the next. Section 467 provides that in the case of a
so-called "disqualified leaseback agreement," rental income must be accrued at a
constant rate. If such constant rate accrual is required, the Company would
recognize rental income in excess of cash rents and, as a result, may fail to
meet the 95% dividend distribution requirement. "Disqualified leaseback
agreements" include leaseback transactions where a principal purpose of
providing increasing rent under the agreement is the avoidance of federal income
tax. The Company and AMC have represented that the principal purpose of rent
increases under the Leases is not the avoidance of federal income taxes.
Furthermore, under Treasury regulations, tax avoidance is not considered a
principal purpose where the lessee is required to pay third party costs, such as
insurance, maintenance and taxes, or where rent is adjusted based on reasonable
price indices. Accordingly, the Company believes that the Leases will not be
subject to rent leveling under Code Section 467. It should be noted, however,
that leases involved in sale-leaseback transactions are subject to special
scrutiny under this provision of the Code.
ASSET TESTS. The Company, at the close of each quarter of its taxable year,
must also satisfy three tests relating to the nature of its assets. First, at
least 75% of the value of the Company's total assets must be represented by real
estate assets (including (i) real estate assets held by the Company's qualified
REIT subsidiaries and the Company's allocable share of real estate assets held
by partnerships in which the Company owns an interest, (ii) for a period of one
year from the date of the Company's receipt of proceeds of an offering of its
shares of beneficial interest or long-term (at least five years) debt, stock or
debt instruments purchased with such proceeds and (iii) stock issued by another
REIT), cash, cash items and government securities. Second, not more than 25% of
the Company's total assets may be represented by securities other than those in
the 75% asset class. Third, of the investments included in the 25% asset class,
the value of any one issuer's securities (other than securities issued by
another REIT) owned by the Company may not exceed 5% of the value of the
Company's total assets and the Company may not own more than 10% of any one
issuer's outstanding voting securities.
ANNUAL DISTRIBUTION REQUIREMENTS. The Company, in order to qualify as a
REIT, is required to distribute dividends (other than capital gain dividends) to
its shareholders in an amount at least equal to (A) the sum of (i) 95% of the
Company's "real estate investment trust taxable income" (computed without regard
to the dividends paid deduction and the Company's net capital gain) and (ii) 95%
of the net income (after tax), if any, from foreclosure property minus (B) the
sum of certain items of non-cash income. In addition, if the Company disposes of
any asset acquired from a C corporation in a carryover basis transaction during
its Recognition Period, the Company will be required, pursuant to Treasury
regulations which have not yet been promulgated, to distribute at least 95% of
the built-in gain (after tax), if any, recognized on the disposition of such
asset. Such distributions must be paid in the taxable year to which they relate,
or in the following taxable year if declared before the Company timely files its
tax return for such year and if paid on or before the first regular dividend
payment after such declaration. To the extent that the Company does not
distribute all of its net capital gain or distributes at least 95%, but less
than 100%, of its "real estate investment trust taxable income," as adjusted, it
will be subject to tax thereon at regular ordinary and capital gain corporate
tax rates. Furthermore, if the Company should fail to distribute during each
calendar year at least the sum of (i) 85% of its ordinary income for such year,
(ii) 95% of its capital gain net income for such year, and (iii) any
undistributed taxable income from prior periods, the Company would be subject to
a 4% excise tax on the excess of such required distribution over the amounts
actually distributed. The Company intends to satisfy the annual distribution
requirements.
It is possible that the Company, from time to time, may not have sufficient
cash or other liquid assets to meet the 95% distribution requirement due to
timing differences between (i) the actual receipt of
102
<PAGE>
income and actual payment of deductible expenses and (ii) the inclusion of such
income and deduction of such expenses in arriving at taxable income of the
Company. In the event that such timing differences occur, in order to meet the
95% distribution requirement, the Company may find it necessary to arrange for
short-term, or possibly long-term, borrowings or to pay dividends in the form of
taxable share dividends.
Under certain circumstances, the Company may be able to rectify a failure to
meet the distribution requirement for a year by paying "deficiency dividends" to
shareholders in a later year, which may be included in the Company's deduction
for dividends paid for the earlier year. Thus, the Company may be able to avoid
being taxed on amounts distributed as deficiency dividends; however, the Company
will be required to pay interest based upon the amount of any deduction taken
for deficiency dividends.
FAILURE TO QUALIFY
If the Company fails to qualify for taxation as a REIT in any taxable year,
and the relief provisions do not apply, the Company will be subject to tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates. Distributions to shareholders in any year in which the
Company fails to qualify will not be deductible by the Company nor will they be
required to be made. In such event, to the extent of current and accumulated
earnings and profits, all distributions to shareholders will be taxable as
ordinary income and, subject to certain limitations of the Code, corporate
distributees may be eligible for the dividends received deduction. Unless
entitled to relief under specific statutory provisions, the Company will also be
disqualified from taxation as a REIT for the four taxable years following the
year during which qualification was lost. It is not possible to state whether in
all circumstances the Company would be entitled to such statutory relief.
TAXATION OF HOLDERS OF SHARES
U.S. SHAREHOLDERS
As used herein, the term "U.S. Shareholder" means a holder of Shares who
(for United States federal income tax purposes) is (i) a citizen or resident of
the United States, (ii) a corporation, partnership or other entity created or
organized in or under the laws of the United States or of any political
subdivision thereof, or (iii) an estate or trust the income of which is subject
to United States federal income taxation regardless of its source.
As long as the Company qualifies as a REIT, distributions made by the
Company out of its current or accumulated earnings and profits (and not
designated as capital gain dividends) will constitute dividends taxable to its
taxable U.S. Shareholders as ordinary income. Such distributions will not be
eligible for the dividends-received deduction in the case of U.S. Shareholders
that are corporations. Distributions made by the Company that are properly
designated by the Company as capital gain dividends will be taxable to U.S.
Shareholders as gain from the sale and exchange of a capital asset held for more
than one year (to the extent that they do not exceed the Company's actual net
capital gain for the taxable year) without regard to the period for which a U.S.
Shareholder has held his shares. U.S. Shareholders that are corporations may,
however, be required to treat up to 20% of certain capital gain dividends as
ordinary income.
To the extent that the Company makes distributions (not designated as
capital gain dividends) in excess of its current and accumulated earnings and
profits, such distributions will be treated first as a tax-free return of
capital to each U.S. Shareholder, reducing the adjusted basis which such U.S.
Shareholder has in his Shares for tax purposes by the amount of such
distribution (but not below zero), with distributions in excess of a U.S.
Shareholder's adjusted basis in his shares taxable as capital gains (provided
that the Shares have been held as a capital asset). Dividends authorized by the
Company in October, November or December of any year and payable to a
shareholder of record on a specified date in any such month shall be treated as
both paid by the Company and received by the shareholder on
103
<PAGE>
December 31 of such year, provided that the dividend is actually paid by the
Company on or before January 31 of the following calendar year. Shareholders may
not include in their own income tax returns any net operating losses or capital
losses of the Company.
Distributions made by the Company and gain arising from the sale or exchange
by a U.S. Shareholder of Shares will not be treated as passive activity income,
and, as a result, U.S. Shareholders generally will not be able to apply any
"passive losses" against such income or gain.
Upon any sale or other disposition of Shares, a U.S. Shareholder will
recognize gain or loss for federal income tax purposes in an amount equal to the
difference between (i) the amount of cash and the fair market value of any
property received on such sale or other disposition, and (ii) the holder's
adjusted basis in the Shares for tax purposes. Such gain or loss will be capital
gain or loss if the Shares have been held by the U.S. Shareholder as a capital
asset. Long-term capital gain of an individual U.S. Shareholder is generally
subject to a maximum tax rate of 28% in respect of property held for more than
one year and the maximum rate is reduced to 20% in the case of property held in
excess of 18 months. In general, any loss recognized by a U.S. Shareholder upon
the sale or other disposition of shares of the Company that have been held for
six months or less (after applying certain holding period rules) will be treated
as a long-term capital loss, to the extent of distributions received by such
U.S. Shareholder from the Company which were required to be treated as long-term
capital gains.
U.S. Shareholders holding Shares at the close of the Company's taxable year
will be required to include, in computing their long-term capital gains for the
taxable year in which the last day of the Company's taxable year falls, such
amount as the Company may designate in a written notice mailed to its
shareholders. The Company may not designate amounts in excess of the Company's
undistributed net capital gain for the taxable year. Each U.S. Shareholder
required to include such a designated amount in determining such shareholder's
long-term capital gains will be deemed to have paid, in the taxable year of the
inclusion, the tax paid by the Company in respect of such undistributed net
capital gains. U.S. Shareholders subject to these rules will be allowed a credit
or a refund, as the case may be, for the tax deemed to have been paid by such
shareholders. U.S. Shareholders will increase their basis in their Shares by the
difference between the amount of such includible gains and the tax deemed paid
by the shareholder in respect of such gains.
BACKUP WITHHOLDING. The Company will report to its U.S. Shareholders and
the IRS the amount of dividends paid during each calendar year, and the amount
of tax withheld, if any. Under the backup withholding rules, a shareholder may
be subject to backup withholding at the rate of 31% with respect to dividends
paid unless such holder (a) is a corporation or comes within certain other
exempt categories and, when required, demonstrates this fact, or (b) provides a
taxpayer identification number, certifies as to no loss of exemption from backup
withholding, and otherwise complies with applicable requirements of the backup
withholding rules. A U.S. Shareholder that does not provide the Company with his
correct taxpayer identification number may also be subject to penalties imposed
by the IRS. Any amount paid as backup withholding will be creditable against the
shareholder's income tax liability. In addition, the Company may be required to
withhold a portion of capital gain distributions to any shareholders who fail to
certify their non-foreign status to the Company.
TAXATION OF TAX-EXEMPT SHAREHOLDERS. The IRS has ruled that amounts
distributed as dividends by a REIT generally do not constitute unrelated
business taxable income ("UBTI") when received by a tax-exempt entity. Based on
that ruling, provided that a tax-exempt shareholder (except certain tax-exempt
shareholders described below) has not held its Shares as "debt financed
property" within the meaning of the Code and such Shares are not otherwise used
in a trade or business, the dividend income from Shares will not be UBTI to a
tax-exempt shareholder. Similarly, income from the sale of Shares will not
constitute UBTI unless such tax-exempt shareholder has held such Shares as "debt
financed property" within the meaning of the Code or has used the Shares in a
trade or business.
104
<PAGE>
For tax-exempt shareholders that are social clubs, voluntary employee
benefit associations, supplemental unemployment benefit trusts, and qualified
group legal services plans exempt from federal income taxation under Sections
501(c)(7), (c)(9), (c)(17), and (c)(20) of the Code, respectively, income from
an investment in the Company's Shares will constitute UBTI unless the
organization is able to properly deduct amounts set aside or placed in reserve
for certain purposes so as to offset the income generated by its Shares. Such
prospective investors should consult their own tax advisors concerning these
"set aside" and reserve requirements.
Notwithstanding the foregoing, however, a portion of the dividends paid by a
"pension-held REIT" will be treated as UBTI to any trust which (i) is described
in Section 401(a) of the Code, (ii) is tax-exempt under Section 501(a) of the
Code, and (iii) holds more than 10% (by value) of the equity interests in the
REIT. Tax-exempt pension, profit-sharing and stock bonus funds that are
described in Section 401(a) of the Code are referred to below as "qualified
trusts."
A REIT is a "pension-held REIT" if (i) it would not have qualified as a REIT
but for the fact that Section 856(h)(3) of the Code provides that stock owned by
qualified trusts shall be treated, for purposes of the "not closely held"
requirement, as owned by the beneficiaries of the trust (rather than by the
trust itself) and (ii) either (A) at least one qualified trust holds more than
25% (by value) of the interests in the REIT or (B) one or more qualified trusts,
each of which owns more than 10% (by value) of the interests in the REIT, hold
in the aggregate more than 50% (by value) of the interests in the REIT. The
percentage of any REIT dividend treated as UBTI is equal to the ratio of (i) the
gross income (less direct expenses related thereto) of the REIT from unrelated
trades or businesses (determined as though the REIT were a qualified trust) to
(ii) the total gross income (less direct expenses related thereto) of the REIT.
A DE MINIMIS exception applies where this percentage is less than 5% for any
year. The Company does not expect to be classified as a "pension-held REIT".
Tax-exempt entities will be subject to the rules described above, under the
heading "--U.S. Shareholders" concerning the inclusion of the Company's
designated undistributed net capital gains in the income of its shareholders.
Thus, such entities will, after satisfying filing requirements, be allowed a
credit or refund of the tax deemed paid by such entities in respect of such
includible gains.
NON-U.S. SHAREHOLDERS
The rules governing U.S. federal income taxation of nonresident alien
individuals, foreign corporations, foreign partnerships and other foreign
shareholders (collectively, "Non-U.S. Shareholders") are complex and no attempt
will be made herein to provide more than a limited summary of such rules.
Prospective Non-U.S. Shareholders should consult with their own tax advisors to
determine the impact of U.S. federal, state and local income tax laws with
regard to an investment in Shares, including any reporting requirements.
ORDINARY DIVIDENDS. Distributions, other than distributions that are
treated as attributable to gain from sales or exchanges by the Company of U.S.
real property interests (discussed below) and other than distributions
designated by the Company as capital gain dividends, will be treated as ordinary
income to the extent that they are made out of current or accumulated earnings
and profits of the Company. Such distributions to Non-U.S. Shareholders will
ordinarily be subject to a withholding tax equal to 30% of the gross amount of
the distribution, unless an applicable tax treaty reduces that tax. However, if
income from the investment in the Shares is treated as effectively connected
with the Non-U.S. Shareholder's conduct of a U.S. trade or business, the
Non-U.S. Shareholder generally will be subject to tax at graduated rates in the
same manner as U.S. shareholders are taxed with respect to such dividends (and
may also be subject to the 30% branch profits tax if the shareholder is a
foreign corporation). The Company expects to withhold U.S. tax at the rate of
30% on the gross amount of any dividends, other than dividends treated as
attributable to gain from sales or exchanges of U.S. real property interests and
capital gain dividends, paid to a Non-U.S. Shareholder, unless (i) a lower
treaty
105
<PAGE>
rate applies and the required form evidencing eligibility for that reduced rate
is filed with the Company or the appropriate withholding agent or (ii) the
Non-U.S. Shareholder files an IRS Form 4224 (or a successor form) with the
Company or the appropriate withholding agent claiming that the distributions are
"effectively connected" income.
Distributions to a Non-U.S. Shareholder that are designated by the Company
at the time of distribution as capital gain dividends which are not attributable
to or treated as attributable to the disposition by the Company of a U.S. real
property interest generally will not be subject to U.S. federal income taxation,
except as described below.
RETURN OF CAPITAL. Distributions in excess of current and accumulated
earnings and profits of the Company, which are not treated as attributable to
the gain from disposition by the Company of a U.S. real property interest, will
not be taxable to a Non-U.S. Shareholder to the extent that they do not exceed
the adjusted basis of the Non-U.S. Shareholder's Shares, but rather will reduce
the adjusted basis of such Shares. To the extent that such distributions exceed
the adjusted basis of a Non-U.S. Shareholder's Shares, they will give rise to
tax liability if the Non-U.S. Shareholder otherwise would be subject to tax on
any gain from the sale or disposition of its Shares, as described below. If it
cannot be determined at the time a distribution is made whether such
distribution will be in excess of current and accumulated earnings and profits,
the distribution will be subject to withholding at the rate applicable to
dividends. However, the Non-U.S. Shareholder may seek a refund of such amounts
from the IRS if it is subsequently determined that such distribution was, in
fact, in excess of current and accumulated earnings and profits of the Company.
CAPITAL GAIN DIVIDENDS. For any year in which the Company qualifies as a
REIT, distributions that are attributable to gain from sales or exchanges by the
Company of U.S. real property interests will be taxed to a Non-U.S. Shareholder
under the provisions of the Foreign Investment in Real Property Tax Act of 1980,
as amended ("FIRPTA"). Under FIRPTA, these distributions are taxed to a Non-U.S.
Shareholder as if such gain were effectively connected with a U.S. business.
Thus, Non-U.S. Shareholders will be taxed on such distributions at the normal
capital gain rates applicable to U.S. Shareholders (subject to any applicable
alternative minimum tax and special alternative minimum tax in the case of
nonresident alien individuals). The Company is required by applicable Treasury
regulations under FIRPTA to withhold 35% of any distribution that could be
designated by the Company as a capital gain dividend. However, if the Company
designates as a capital gain dividend a distribution made prior to the day the
Company actually effects such designation, then (although such distribution may
be taxable to a Non-U.S. Shareholder) such distribution is not subject to
withholding under FIRPTA; rather, the Company must effect the 35% FIRPTA
withholding from distributions made on and after the date of such designation,
until the distributions so withheld equal the amount of the prior distribution
designated as a capital gain dividend. The amount withheld is creditable against
the Non-U.S. Shareholder's U.S. tax liability.
SALES OF SHARES. Gain recognized by a Non-U.S. Shareholder upon a sale or
exchange of Shares generally will not be taxed under FIRPTA if the Company is a
"domestically controlled REIT," defined generally as a REIT in respect of which
at all times during a specified testing period less than 50% in value of the
stock is and was held directly or indirectly by foreign persons. It is currently
anticipated that the Company will continue to be a "domestically controlled
REIT," and, therefore, that the sale of Shares will not be subject to taxation
under FIRPTA. However, gain not subject to FIRPTA will be taxable to a Non-U.S.
Shareholder if (i) investment in the Shares is treated as "effectively
connected" with the Non-U.S. Shareholder's U.S. trade or business, in which case
the Non-U.S. Shareholder will be subject to the same treatment as U.S.
Shareholders with respect to such gain, or (ii) the Non-U.S. Shareholder is a
nonresident alien individual who was present in the United States for 183 days
or more during the taxable year and has a "tax home" in the United States, or
maintains an office or a fixed place of business in the United States to which
the gain is attributable, in which case the nonresident alien individual will be
106
<PAGE>
subject to a 30% tax on the individual's capital gains. A similar rule will
apply to capital gain dividends not subject to FIRPTA.
If the Company were not a domestically-controlled REIT, a Non-U.S.
Shareholder's sale of Shares would be subject to tax under FIRPTA only if the
selling Non-U.S. Shareholder owned more than 5% of the class of Shares sold at
any time during a specified period (generally the shorter of the period that the
Non-U.S. Shareholder owned the Shares sold or the five-year period ending on the
date of disposition). If the gain on the sale of Shares were to be subject to
tax under FIRPTA, the Non-U.S. Shareholder would be subject to the same
treatment as U.S. Shareholders with respect to such gain (subject to any
applicable alternative minimum tax and a special alternative minimum tax in the
case of nonresident alien individuals) and the purchaser of such Shares would be
required to withhold 10% of the gross purchase price.
TREATY BENEFITS. Pursuant to Treasury Regulations currently in effect,
dividends paid to an address in a country outside the United States are
generally presumed to be paid to a resident of such country for purposes of
determining the applicability of withholding discussed above and the
applicability of a tax treaty rate.
Under the recently issued Treasury Regulations that are proposed to be
effective for distributions made after December 31, 1998, however, a Non-U.S.
Shareholder who wishes to claim the benefit of an applicable treaty rate would
be required to satisfy applicable certification requirements. In addition, under
the recently issued Treasury Regulations, in the case of Shares held by a
foreign partnership, (x) the certification requirement would generally be
applied to the partners in the partnership and (y) the partnership would be
required to provide certain information, including a United States taxpayer
identification number. Look-through rules are provided in the case of tiered
partnerships. Shareholders that are partnerships or entities that are similarly
fiscally transparent for federal income tax purposes, and persons holding Shares
through such entities, may be subject to restrictions on their ability to claim
benefits under U.S. tax treaties and should consult a tax advisor.
OTHER TAX CONSEQUENCES
The Company and its shareholders may be subject to state or local taxation
in various state or local jurisdictions, including those in which it or they
transact business or reside. The state and local tax treatment of the Company
and its shareholders may not conform to the federal income tax consequences
discussed above. Consequently, prospective shareholders are urged to consult
their own tax advisors regarding the effect of state and local tax laws on an
investment in the Company.
107
<PAGE>
GLOSSARY
Unless the context otherwise requires, the following capitalized terms shall
have the meanings set forth below for purposes of this Prospectus:
"ADA" means the Americans with Disabilities Act of 1990.
"AMC" means American Multi-Cinema, Inc., a Missouri corporation and a
wholly-owned subsidiary of AMCE and the Company's lessee under the Leases.
"AMCE" means AMC Entertainment Inc., a Delaware corporation and the
guarantor of AMC's obligations under the Leases.
"AMCE Credit Facility" means AMCE's $425 million credit facility, which was
amended and restated as of April 10, 1997.
"AMCE Right to Purchase Agreement" means the right to purchase agreement
between the Company and AMCE and its subsidiaries pursuant to which the Company
will have a right of first refusal and first offer to purchase any megaplex
theatre and related entertainment property acquired or developed and owned by
AMCE or its subsidiaries for a period of five years following the closing of the
Offering.
"Annual Base Rent" means an annual base rent payable during the Fixed Term
and the Extended Terms.
"Annual Percentage Rate" means 6%.
"Annual Percentage Rent" means percentage rent equal to the sum of 6% of
Gross Receipts in excess of a baseline amount.
"Bank Credit Facility" means the Company's proposed $200 million unsecured
line of credit.
"Base Rent Escalation" means, for any year, the increase in Annual Base Rent
equal to the annual percentage increase in the CPI, not to exceed 2%, times the
base rent applicable to a Property for the preceding year.
"Board" means the Company's Board of Trustees.
"Cash Available for Distribution" is net earnings plus depreciation and
amortization and minus capital expenditures and principal payments on
indebtedness.
"Charitable Beneficiary" means an organization or organizations described in
Sections 170(b)(1)(A) and 170(c) of the Code and identified by the Board as the
beneficiary or beneficiaries of the Excess Shares trust.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Company" means Entertainment Properties Trust, a Maryland corporation
formed in August 1997.
"Control Share acquisition" means, under Maryland law, the acquisition of
Control Shares, subject to certain exceptions.
"Control Shares" means, under Maryland law, voting shares which, if
aggregated with all other such shares previously acquired by the acquiror, or in
respect of which the acquiror is able to exercise or direct the exercise of
voting power (except solely by virtue of a revocable proxy), would entitle the
acquiror to exercise voting power in electing directors within one of the
following ranges of voting power: (i) one-fifth or more but less than one-third,
(ii) one-third or more but less than a majority, or (iii) a majority of all
voting power.
111
<PAGE>
"CPI" means the Consumer Price Index for all urban consumers, U.S. City
Average, published by the United States Department of Commerce (base year
1982-84=100), or any successor index thereto.
"Cross-Default Termination Date" means the earlier to occur of (i) the date
AMCE's senior long-term debt obligations are rated, or AMCE's corporate credit
rating is, investment grade by either Standard & Poor's Corporation or Moody's
Investors Service, Inc., (ii) AMC's rent payments to the Company represent less
than 50% of the Company's rental income for any fiscal quarter or (iii) the
expiration of the Fixed Term with respect to a Lease.
"ETRCs" mean entertainment themed retail centers, which are generally large
multi-tenant retail developments that incorporate elements such as megaplex
theatres, restaurants, book and/or music superstores, interactive entertainment
venues and other specialty retail that is oriented to entertainment or
leisure-time activities.
"Event of Default" means an event of default under the Leases.
"Excess Shares" means Shares that would result in a person owning Shares in
excess of the Ownership Limit or cause the Company to become "closely held"
under Section 856(h) of the Code, unless acquired in a permitted transfer.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Extended Term" means the four additional five-year terms under the Leases.
"FIRPTA" means the Foreign Investment in Real Property Tax Act of 1980.
"Fixed Term" means the initial terms ranging from 13 to 15 years under the
Leases.
"Formation Transactions" means the transactions designed to consolidate the
ownership interests in the Initial Properties in the Company, to facilitate the
Offering and to enable the Company to qualify as a REIT for federal income tax
purposes commencing with its taxable year ending December 31, 1997.
"Funds from Operations" means net earnings (loss) (computed in accordance
with GAAP), excluding significant non-recurring items, gains (or losses) from
debt restructuring and sales of property, plus real estate related depreciation.
"Future AMCE Property" means any megaplex theatre or related entertainment
property acquired or developed and owned (or ground-leased) by AMCE or its
subsidiaries following the Formation Transactions.
"Future Property" means any entertainment or entertainment-related property
acquired or developed by the Company and operated by AMC following the Formation
Transactions.
"GAAP" means generally accepted accounting principles.
"Gross Receipts" with respect to a particular Property generally means the
receipts from the sale of theatre admission tickets and concessions received by
AMC in or from the Property during each lease year, with certain deductions and
exceptions.
"Initial Properties" means the twelve megaplex theatres that the Company
will acquire concurrently with or within a short period following the closing of
the Offering.
"Interested Shareholder" means any person who beneficially owns 10% or more
of the voting power of a Maryland real estate investment trust's shares or an
affiliate of a Maryland real estate investment trust who, at any time within the
two-year period prior to the date in question, was the beneficial owner of 10%
or more of the voting power of the then-outstanding voting shares of the real
estate investment trust.
"IRS" means the Internal Revenue Service.
112
<PAGE>
"Leases" means the long-term triple net leases pursuant to which AMC will
lease the Properties from the Company.
"megaplex theatres" are theatres having at least 14 screens with
predominantly stadium style seating (seating with an elevation between rows to
provide unobstructed viewing).
"MGCL" means the Maryland General Corporate Law, as amended.
"multiplex theatres" are theatres generally without stadium-style seating
and having less than 14 screens.
"NAREIT" means the National Association of Real Estate Investment Trusts.
"Notes" means the $200 million aggregate principal amount of 9 1/2% Senior
Subordinated Notes due 2009.
"NYSE" means the New York Stock Exchange, Inc.
"Offering" means the offering of Shares to the public by the Company
pursuant to this Prospectus.
"Option Agreements" means agreements between the Company and AMC and one of
its subsidiaries and the current owner/lessor of certain properties pursuant to
which the Company will have exclusive options to acquire any or all of the
Option Properties.
"Option Properties" means megaplex theatres, currently under construction by
AMC, that the Company will have the right to acquire and lease to AMC pursuant
to the Option Agreements.
"Ownership Limit" means 9.8% of the number or value of the Company's issued
and outstanding shares.
"Planet Movies" means the joint venture between AMCE and Planet Hollywood
International, Inc.
"Preferred Shares" means preferred shares of beneficial interest, par value
$.01 per share, of the Company.
"Properties" means the Initial Properties and the Option Properties.
"Purchase Agreement" means an agreement of sale and purchase between the
Company and AMC and one of its subsidiaries which provides the terms of the sale
of the Initial Properties.
"Recognition Period" means the 10-year period beginning on the day the
Company acquires assets from a C corporation in certain transactions.
"REIT" means a real estate investment trust as defined under the Code.
"SDDS-TM-" and "SONY Dynamic Digital Sound-TM-" are trademarks of Sony
Incorporated.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means the common shares of beneficial interest, par value $.01 per
share, of the Company.
"Treasury" means the United States Treasury Department.
"triple net leases" are generally leases that require the tenant to pay
substantially all expenses associated with the operation of the leased property,
such as taxes and other governmental charges, insurance, utilities, service,
maintenance and any ground lease payments.
"UBTI" means unrelated business taxable income as defined under the Code.
"Underwriting Agreement" means the Underwriting Agreement between the
Company and the Underwriters.
"Underwriters" means the Underwriters named in this Prospectus.
113
<PAGE>
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
-----------
<S> <C>
THE COMPANY
PRO FORMA BALANCE SHEET:
Pro Forma Balance Sheet....................................................................... F-2
Pro Forma Consolidated Balance Sheet as of September 30, 1997................................. F-3
Notes to Pro Forma Balance Sheet.............................................................. F-4
FORECAST STATEMENT OF OPERATIONS:
Forecast Statement of Operations.............................................................. F-5
Forecast Statement of Operations for the twelve months ending November 30, 1998............... F-6
Notes to Forecast Statement of Operations..................................................... F-7
AUDITED FINANCIAL STATEMENTS:
Report of Independent Auditors................................................................ F-8
Balance Sheet as of August 29, 1997........................................................... F-9
Notes to Balance Sheet........................................................................ F-10
AMC ENTERTAINMENT INC.
PRO FORMA FINANCIAL STATEMENTS:
Condensed Pro Forma Financial Statements...................................................... F-11
Condensed Pro Forma Consolidated Statement of Operations for the twenty-six weeks ended
October 2, 1997............................................................................. F-12
Condensed Pro Forma Consolidated Statement of Operations for the year (53 weeks) ended April
3, 1997..................................................................................... F-13
Condensed Pro Forma Consolidated Balance Sheet as of October 2, 1997.......................... F-14
Notes to Condensed Pro Forma Financial Statements............................................. F-15
UNAUDITED FINANCIAL STATEMENTS:
Consolidated Statements of Operations for the twenty-six weeks ended October 2, 1997 and
September 26, 1996.......................................................................... F-16
Consolidated Balance Sheets as of October 2, 1997 and April 3, 1997........................... F-17
Consolidated Statements of Cash Flows for the twenty-six weeks ended October 2, 1997 and
September 26, 1996.......................................................................... F-18
Notes to Consolidated Financial Statements.................................................... F-19
AUDITED FINANCIAL STATEMENTS:
Report of Independent Accountants............................................................. F-29
Consolidated Statements of Operations for the year (53 weeks) ended April 3, 1997 and the
years (52 weeks) ended March 28, 1996 and March 30, 1995.................................... F-30
Consolidated Balance Sheets as of April 3, 1997 and March 28, 1996............................ F-31
Consolidated Statements of Cash Flows for the year (53 weeks) ended April 3, 1997 and the
years (52 weeks) ended March 28, 1996 and March 30, 1995.................................... F-32
Consolidated Statements of Stockholders' Equity for the year (53 weeks) ended April 3, 1997
and the years (52 weeks) ended March 28, 1996 and March 30, 1995............................ F-34
Notes to Consolidated Financial Statements.................................................... F-35
</TABLE>
F-1
<PAGE>
ENTERTAINMENT PROPERTIES TRUST
PRO FORMA BALANCE SHEET
(UNAUDITED)
The following unaudited Pro Forma Balance Sheet has been prepared giving
effect to the Formation Transactions. The Formation Transactions include the
transactions designed to consolidate the ownership interests of the Initial
Properties in the Company, to facilitate the Offering and to enable the Company
to qualify as a REIT for federal income tax purposes commencing with its taxable
year ending December 31, 1997. The Pro Forma Balance Sheet assumes that the
Formation Transactions occurred on September 30, 1997.
The unaudited Pro Forma Balance Sheet does not purport to represent the
Company's financial position had the Formation Transactions in fact occurred on
such date. In addition, the unaudited Pro Forma Balance Sheet is not intended to
be indicative of the Company's future financial position.
The unaudited Pro Forma Balance Sheet should be read in conjunction with the
Company's historical financial statements and "The Company's Management's
Discussion and Analysis of Financial Condition and Results of Operations"
included elsewhere herein.
F-2
<PAGE>
ENTERTAINMENT PROPERTIES TRUST
PRO FORMA BALANCE SHEET
SEPTEMBER 30, 1997
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
PRO FORMA
ACTUAL(1) ADJUSTMENTS PRO FORMA
--------- ----------- ---------
<S> <C> <C> <C>
ASSETS
Cash................................................... $ 2 $ 1,292(2) $ 1,294
Real estate owned, at cost............................. -- 249,856(3) 249,856
Intangible assets, net................................. -- 1,200(4) 1,200
Other long-term assets................................. -- 100(5) 100
--------- ----------- ---------
Total assets......................................... $ 2 $252,448 $252,450
--------- ----------- ---------
--------- ----------- ---------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities.................................... $-- $ -- $ --
Long-term debt......................................... -- -- --
Shareholders' equity:
Common shares, $.01 par value........................ -- 139(6) 139
Share purchase loans................................. -- (2,400)(7) (2,400)
Additional paid-in capital........................... 2 254,709(6) 254,711
--------- ----------- ---------
$ 2 $252,448 $252,450
--------- ----------- ---------
--------- ----------- ---------
</TABLE>
See Notes to Pro Forma Balance Sheet
F-3
<PAGE>
ENTERTAINMENT PROPERTIES TRUST
NOTES TO PRO FORMA BALANCE SHEET
(UNAUDITED)
(1) The amounts presented hereunder were taken from the Company's August 29,
1997 Consolidated Balance Sheet.
(2) Represents the estimated remaining net proceeds of the Offering after the
Formation Transactions.
(3) Represents the net book value of the Initial Properties and the one related
land parcel as of September 30, 1997. The Initial Properties and the related
land parcel are to be purchased from subsidiaries of AMCE. The purchase
price for each Initial Property will equal the cost to AMCE of developing
and constructing such Property and will not be based on arms' length
negotiations. The Company believes that such purchase price equals the
estimated fair value of the Initial Properties at the date of the Formation
Transactions. It is possible that if the valuations had been determined on
an arms' length basis, or had been the subject of independent valuations or
appraisals, the sum of the values of the Initial Properties and the related
land parcel might have been greater or lower than the sum of the values
determined by the management of AMCE and the Company.
(4) Represents capitalized financing fees in connection with the Bank Credit
Facility.
(5) Represents furniture, fixtures, and equipment for the Company's office
space.
(6) Represents the issuance of 13,800,000 Shares in the Offering at an assumed
initial public offering price of $20.00 per share. The estimated costs of
the Offering, including the underwriting discount, have been reflected as an
offset to additional paid-in capital.
(7) Represents the purchase of 120,000 Shares by certain executive officers of
the Company with loans from the Company aggregating $2.4 million pursuant to
the Share Purchase Program.
F-4
<PAGE>
ENTERTAINMENT PROPERTIES TRUST
FORECAST STATEMENT OF OPERATIONS
(UNAUDITED)
The following unaudited Forecast Statement of Operations has been prepared
giving effect to the Formation Transactions. The Formation Transactions include
the transactions designed to consolidate the ownership interests of the Initial
Properties in the Company, to facilitate the Offering and to enable the Company
to qualify as a REIT for federal income tax purposes commencing with its taxable
year ending December 31, 1997. The Forecast Financial Statements for the twelve
months ending November 30, 1998 assumes that the Formation Transactions occurred
on December 1, 1997.
The unaudited Forecast Financial Statements should be read in conjunction
with the Company's Pro Forma Balance Sheet, historical financial statements and
"The Company's Management's Discussion and Analysis of Financial Condition and
Results of Operations" included elsewhere herein.
F-5
<PAGE>
ENTERTAINMENT PROPERTIES TRUST
FORECAST STATEMENT OF OPERATIONS
TWELVE MONTHS ENDING NOVEMBER 30, 1998
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
FORECAST
-----------
<S> <C>
Rental income.................................................................... $ 25,382(1)
General and administrative expenses.............................................. 2,209(2)
Depreciation..................................................................... 5,239(3)
-----------
Operating income............................................................... 17,934
Interest expense, net............................................................ 829(4)
-----------
Net earnings..................................................................... $ 17,105
-----------
-----------
Net earnings per share........................................................... $ 1.23
-----------
-----------
Weighted average number of shares outstanding.................................... 13,860
-----------
-----------
</TABLE>
See Notes to Forecast Statement of Operations.
F-6
<PAGE>
ENTERTAINMENT PROPERTIES TRUST
NOTES TO FORECAST STATEMENT OF OPERATIONS
(UNAUDITED)
(1) Represents rental income from AMC recorded in accordance with the terms of
the Leases as if the Initial Properties are leased commencing with the
beginning of the period or, if later, the anticipated opening date. The
Company will lease the Initial Properties to AMC under operating leases
guaranteed by AMCE. The initial annual rent for each Initial Property will
be (a) Grand 24--$2.0 million; (b) Mission Valley 20--$1.7 million; (c)
Promenade 16--$3.0 million; (d) Ontario Mills 30--$2.7 million; (e) Lennox
24--$1.4 million; (f) West Olive 16--$1.9 million; (g) Studio 30--$2.8
million; (h) Huebner Oaks 24--$1.8 milliion; (i) First Colony 24--$2.0
million; (j) Oak View 24--$1.8 million; (k) Leawood Town Center 20--$1.7
million; and (l) South Barrington 30--$3.6 million. All of the Initial
Properties are assumed to be leased during the entire period with the
exception of Leawood Town Center 20 and South Barrington 30, which are
assumed to be placed in service in January 1998 and February 1998,
respectively. The Leases require AMC to pay substantially all expenses
associated with the operation of such Initial Properties, such as taxes and
other governmental charges, insurance, utilities, service, maintanence and
any ground lease payments. No exercise of any option to acquire an Option
Property is assumed.
(2) Represents management's estimates of general and administrative expenses,
including compensation expense of $1.3 million, shareholder related expenses
of $0.5 million, administrative expenses of $0.3 million and business
development expenses of $0.2 million.
(3) Represents depreciation of the $212.2 million cost of the Initial
Properties (excluding land) over a 40-year period following the assumed
acquisition dates.
(4) Represents amortization of estimated $1.2 million in Bank Credit Facility
origination fees over the expected initial three year facility commitment,
annual Bank Credit Facility fees associated with unused amounts and interest
on Share purchase loans at a rate of 6.1% annually.
F-7
<PAGE>
REPORT OF INDEPENDENT AUDITORS
THE BOARD OF TRUSTEES
Entertainment Properties Trust
We have audited the accompanying balance sheet of Entertainment Properties
Trust, a Maryland real estate investment trust (the Company) , as of August 29,
1997. This balance sheet is the responsibility of the Company's management. Our
responsibility is to express an opinion on the balance sheet based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the balance sheet is free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the balance sheet. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall balance sheet presentation. We
believe that our audit provides a reasonable basis for our opinion.
In our opinion, the balance sheet referred to above presents fairly, in all
materials respects, the financial position of Entertainment Properties Trust as
of August 29, 1997, in conformity with generally accepted accounting principles.
ERNST & YOUNG LLP
Kansas City, Missouri
August 29, 1997
F-8
<PAGE>
ENTERTAINMENT PROPERTIES TRUST
(A MARYLAND REAL ESTATE INVESTMENT TRUST)
BALANCE SHEET
AUGUST 29, 1997
<TABLE>
<CAPTION>
ASSETS
<S> <C>
Cash............................................................................... $ 2,000
SHAREHOLDERS' EQUITY
Shareholders' equity:
Common shares, $.01 par value; 1,000 shares authorized; 100 shares issued and
outstanding...................................................................... $ 1
Additional paid-in capital......................................................... 1,999
---------
$ 2,000
---------
---------
</TABLE>
See Notes to Balance Sheet.
F-9
<PAGE>
ENTERTAINMENT PROPERTIES TRUST
(A MARYLAND REAL ESTATE INVESTMENT TRUST)
NOTES TO BALANCE SHEET
AUGUST 29, 1997
1. ORGANIZATION
Entertainment Properties Trust (the "Company") was formed August 22, 1997 as
a Maryland real estate investment trust. The Company has had no operations to
date, but has issued 100 Common Shares to founding shareholders.
2. FEDERAL INCOME TAXES
At the earliest possible date, the Company plans to qualify as a real estate
investment trust (REIT) under the Internal Revenue Code and, accordingly, will
not be subject to federal income taxes on amounts distributed to shareholders
provided that it distributes at least 95% of its real estate investment trust
taxable income and meets certain other requirements.
3. INTENTIONS OF THE COMPANY (UNAUDITED)
The Company has announced its intention to sell 13,800,000 Common Shares in
an initial public offering. Immediately after the closing of the Offering, the
Company intends to consummate the following transactions with AMC Entertainment
Inc. (AMCE): (a) purchase of 12 megaplex theatres and a related land parcel for
$249.9 million and enter into triple net leases with a subsidiary of AMCE for
original fixed terms of 13 to 15 years with renewal terms for four additional
five-year terms at the option of the tenant, (b) execute an option agreement to
purchase 5 additional megaplex theatres for an estimated $138.5 million and
related land parcels for an aggregate of $9.6 million and (c) execute a right to
purchase agreement to purchase additional megaplex theatres or related
entertainment properties acquired or developed and owned by AMCE for a period of
five years following the close of the offering.
The Company will be dependent on AMCE for its initial revenues. Also, due to
the nature of the business and the contractual relationships with AMCE,
including the operating leases, the Company's ability to be successful is
dependent on a number of factors, including key personnel, continuing
qualification as a REIT and continued availability of financial resources.
Prior to the Offering, the Company expects to adopt an Annual Incentive
Program, a Share Incentive Plan and a Deferred Compensation Plan for
Non-Employee Trustees. Up to 1,500,000 Shares are expected to be reserved for
issuance pursuant to the Share Incentive Plan. The Company will also, as part of
the Formation Transactions, enter into employment agreements with its President
and Chief Development Officer and its Chief Financial Officer providing for
annual salaries of $225,000 and $175,000, respectively.
F-10
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
CONDENSED PRO FORMA FINANCIAL STATEMENTS
(UNAUDITED)
The following unaudited Condensed Pro Forma Consolidated Statements of
Operations and Balance Sheet have been prepared giving effect to the Formation
Transactions. The Condensed Pro Forma Consolidated Statements of Operations for
the twenty-six weeks ended October 2, 1997 and the year (53 weeks) ended April
3, 1997 assume that the Formation Transactions occurred on March 29, 1996. The
Condensed Pro Forma Consolidated Balance Sheet assumes that the Formation
Transactions occurred on October 2, 1997.
The unaudited Condensed Pro Forma Financial Statements do not purport to
represent AMCE's financial position or results of operations had the Formation
Transactions in fact occurred on such dates. In addition, the unaudited
Condensed Pro Forma Financial Statements are not intended to be indicative of
AMCE's future financial position or results of operations.
The unaudited Condensed Pro Forma Financial Statements should be read in
conjunction with AMCE's historical financial statements and "AMCE's Management's
Discussion and Analysis of Financial Condition and Results of Operations"
included elsewhere herein.
F-11
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
CONDENSED PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS
TWENTY-SIX WEEKS ENDED OCTOBER 2, 1997
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
PRO FORMA
ACTUAL(1) ADJUSTMENTS PRO FORMA
----------- -------------- -----------
<S> <C> <C> <C>
Revenues.............................................. $ 414,051 $ -- $ 414,051
Cost of operations.................................... 330,139 7,617(2) 337,756
General and administrative............................ 26,852 -- 26,852
Depreciation and amortization......................... 32,889 (2,185)(3) 30,704
Impairment of long-lived assets....................... 46,998 -- 46,998
----------- ------- -----------
Operating loss...................................... (22,827) (5,432) (28,259)
Interest expense...................................... 17,650 (4,648)(4) 13,002
Other income, net..................................... 3,177 -- 3,177
----------- ------- -----------
Loss before income taxes.............................. (37,300) (784) (38,084)
Income tax provision.................................. (15,100) (318)(5) (15,418)
----------- ------- -----------
Net loss.............................................. $ (22,200) $ (466) $ (22,666)
----------- ------- -----------
----------- ------- -----------
Preferred dividends................................... 2,651 2,651
----------- -----------
Net loss for common shares............................ $ (24,851) $ (25,317)
----------- -----------
----------- -----------
Loss per share:
Primary............................................. $ (1.37) $ (1.37)
----------- -----------
----------- -----------
Fully diluted....................................... $ (1.37) $ (1.37)
----------- -----------
----------- -----------
Weighted average number of shares outstanding:
Primary............................................. 18,194 18,194
----------- -----------
----------- -----------
Fully diluted....................................... 18,194 18,194
----------- -----------
----------- -----------
</TABLE>
See Notes to Condensed Pro Forma Financial Statements.
F-12
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
CONDENSED PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS
YEAR (53 WEEKS) ENDED APRIL 3, 1997
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
PRO FORMA
ACTUAL(1) ADJUSTMENTS PRO FORMA
---------- ----------- ---------
<S> <C> <C> <C>
Revenues............................................... $749,597 $ -- $749,597
Cost of operations..................................... 580,002 7,580(2) 587,582
General and administrative............................. 56,647 -- 56,647
Depreciation and amortization.......................... 59,803 (2,296)(3) 57,507
---------- ----------- ---------
Operating income..................................... 53,145 (5,284) 47,861
Interest expense....................................... 22,022 (4,592)(4) 17,430
Other income, net...................................... 772 -- 772
---------- ----------- ---------
Earnings before income taxes........................... 31,895 (692) 31,203
Income tax provision................................... 12,900 (280)(5) 12,620
---------- ----------- ---------
Net earnings........................................... $ 18,995 $ (412) $ 18,583
---------- ----------- ---------
---------- ----------- ---------
Preferred dividends.................................... 5,907 5,907
---------- ---------
Net earnings for common shares......................... $ 13,088 $ 12,676
---------- ---------
---------- ---------
Earnings per share:
Primary.............................................. $ 0.74 $ 0.72
---------- ---------
---------- ---------
Fully diluted........................................ $ 0.73 $ 0.71
---------- ---------
---------- ---------
Weighted average number of shares outstanding:
Primary.............................................. 17,726 17,726
---------- ---------
---------- ---------
Fully diluted........................................ 17,940 17,940
---------- ---------
---------- ---------
</TABLE>
See Notes to Condensed Pro Forma Financial Statements.
F-13
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
CONDENSED PRO FORMA CONSOLIDATED BALANCE SHEET
OCTOBER 2, 1997
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
PRO FORMA
ACTUAL(1) ADJUSTMENTS PRO FORMA
---------- ------------ ---------
<S> <C> <C> <C>
ASSETS
Current assets......................................... $126,873 $ -- $126,873
Property, net.......................................... 647,270 (155,833)(6) 491,437
Intangible assets, net................................. 23,761 -- 23,761
Other long-term assets................................. 87,144 3,335(8) 90,479
---------- ------------ ---------
Total assets......................................... $885,048 $(152,498) $732,550
---------- ------------ ---------
---------- ------------ ---------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities.................................... $157,684 $ 3,335(8) $161,019
Corporate borrowings................................... 479,464 (160,424)(7) 319,040
Capital lease obligations.............................. 52,490 -- 52,490
Other long-term liabilities............................ 50,987 4,591(8) 55,578
---------- ------------ ---------
740,625 (152,498) 588,127
Stockholders' equity................................... 144,423 -- 144,423
---------- ------------ ---------
$885,048 $(152,498) $732,550
---------- ------------ ---------
---------- ------------ ---------
</TABLE>
See Notes to Condensed Pro Forma Financial Statements.
F-14
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONDENSED PRO FORMA FINANCIAL STATEMENTS
(UNAUDITED)
(1) The amounts presented hereunder were taken from AMCE's October 2, 1997 and
April 3, 1997 Consolidated Financial Statements.
(2) Represents rent expense of $7,787,000 and $7,838,000 for the twenty-six
weeks ended October 2, 1997 and the year (53 weeks) ended April 3, 1997,
respectively, for the periods the completed Initial Properties were in
operation, net of amortized gain of $170,000 and $258,000 for the twenty-six
weeks ended October 2, 1997 and the year (53 weeks) ended April 3, 1997,
respectively, from the sale of the completed Initial Properties. The
deferral of the gain on the sale of the completed Initial Properties is
being amortized to rent expense over the lease term of the related Property.
(3) Represents the elimination of historical depreciation on the completed
Initial Properties.
(4) Represents the reduction of interest expense associated with the reduction
of outstanding indebt-
edness under the AMCE Credit Facility (at an average interest rate of
approximately 6.2%) with the net proceeds from the sale of the completed
Initial Properties to the Company in the Formation Transactions.
(5) Represents the adjustment to income taxes to the expected effective tax rate
of 40.5% and 40.4% for the twenty-six weeks ended October 2, 1997 and the
year (53 weeks) ended April 3, 1997, respectively.
(6) Represents the net book value of the completed Initial Properties as of
October 2, 1997.
(7) Represents the paydown of the AMCE Credit Facility with the net proceeds
from the sale of the completed Initial Properties to the Company in the
Formation Transactions.
(8) Represents the deferral of the gain of $5,091,000 on sale of the completed
Initial Properties (Grand 24, Mission Valley 20, Promenade 16, Ontario Mills
30, Lennox 24, West Olive 16, Studio 30 and Huebner Oaks 24), which equals
the accumulated depreciation on such properties, net of expenses of
$500,000, and the related current and deferred income tax effect of
$3,335,000.
F-15
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
TWENTY-SIX
WEEKS ENDED
---------------------------
OCTOBER 2, SEPTEMBER 26,
1997 1996
----------- --------------
(UNAUDITED)
<S> <C> <C>
Revenues
Admissions................................................... $ 270,717 $ 240,111
Concessions.................................................. 125,427 111,771
Other........................................................ 17,907 12,481
----------- --------------
Total revenues............................................. 414,051 364,363
Expenses
Film exhibition costs........................................ 151,980 130,269
Concession costs............................................. 19,907 18,080
Other........................................................ 158,252 140,065
----------- --------------
Total cost of operations................................... 330,139 288,414
General and administrative................................... 26,852 24,672
Depreciation and amortization................................ 32,889 24,414
Impairment of long-lived assets.............................. 46,998 --
----------- --------------
Total expenses............................................. 436,878 337,500
----------- --------------
Operating income........................................... (22,827) 26,863
Other expense (income)
Interest expense
Corporate borrowings....................................... 12,961 4,613
Capital lease obligations.................................. 4,689 5,148
Investment income............................................ (681) (321)
Loss (gain) on disposition of assets......................... (2,496) 31
----------- --------------
Earnings (loss) before income taxes............................ (37,300) 17,392
Income tax provision........................................... (15,100) 7,000
----------- --------------
Net earnings (loss)............................................ $ (22,200) $ 10,392
----------- --------------
----------- --------------
Preferred dividends............................................ 2,651 3,000
----------- --------------
Net earnings (loss) for common shares.......................... $ (24,851) $ 7,392
----------- --------------
----------- --------------
Earnings (loss) per share:
Primary...................................................... $ (1.37) $ .42
----------- --------------
----------- --------------
Fully diluted................................................ $ (1.37) $ .42
----------- --------------
----------- --------------
</TABLE>
See Notes to Consolidated Financial Statements.
F-16
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AMOUNTS)
<TABLE>
<CAPTION>
APRIL 3,
1997
OCTOBER 2, ---------
1997
------------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets:
Cash and equivalents............................................. $ 25,563 $ 24,715
Receivables, net of allowance for doubtful accounts of $777 as of
October 2, 1997 and $704 as of April 3, 1997................... 83,416 42,188
Other current assets............................................. 17,894 16,769
------------ ---------
Total current assets........................................... 126,873 83,672
------------ ---------
Property, net...................................................... 647,270 543,058
Intangible assets, net............................................. 23,761 28,679
Other long-term assets............................................. 87,144 62,804
------------ ---------
Total assets..................................................... $ 885,048 $ 718,213
------------ ---------
------------ ---------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable................................................. $ 105,113 $ 88,367
Accrued expenses and other liabilities........................... 48,793 42,459
Current maturities of corporate borrowings and capital lease
obligations.................................................... 3,778 3,441
------------ ---------
Total current liabilities...................................... 157,684 134,267
Corporate borrowings............................................... 479,464 315,046
Capital lease obligations.......................................... 52,490 55,237
Other long-term liabilities........................................ 50,987 43,651
------------ ---------
Total liabilities................................................ 740,625 548,201
Stockholders' equity:
$1.75 Cumulative Convertible Preferred Stock, 66 2/3 CENTS par
value; 2,919,100 shares issued and outstanding as of October 2,
1997 and 3,303,600 shares issued and outstanding as of April 3,
1997 (aggregate liquidation preference of $72,977 as of October
2, 1997 and $82,590 as of April 3, 1997)......................... 1,946 2,202
Common Stock, 66 2/3 CENTS par value; 13,408,684 shares issued as
of October 2, 1997 and 6,604,469 shares issued as of April 3,
1997 8,939 4,403
Convertible Class B Stock, 66 2/3 CENTS par value; 5,015,657 shares
issued and outstanding as of October 2, 1997 and 11,157,000
shares issued and outstanding as of April 3, 1997................ 3,344 7,438
Additional paid-in capital......................................... 107,595 107,781
Foreign currency translation adjustment............................ (2,764) (2,048)
Retained earnings.................................................. 25,732 50,605
------------ ---------
144,792 170,381
Less--Common Stock in treasury, at cost, 20,500 shares as of
October 2, 1997 and April 3, 1997................................ 369 369
------------ ---------
Total stockholders' equity....................................... 144,423 170,012
------------ ---------
Total liabilities and stockholders' equity......................... $ 885,048 $ 718,213
------------ ---------
------------ ---------
</TABLE>
See Notes to Consolidated Financial Statements.
F-17
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
TWENTY-SIX WEEKS ENDED
----------------------------
OCTOBER 2, SEPTEMBER 26,
1997 1996
----------- ---------------
(UNAUDITED)
<S> <C> <C>
INCREASE (DECREASE) IN CASH AND EQUIVALENTS
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings (loss).......................................... $ (22,200) $ 10,392
Adjustments to reconcile net earnings (loss) to net cash
provided by operating activities:
Impairment of long-lived assets.............................. 46,998 --
Depreciation and amortization................................ 32,889 24,414
Deferred income taxes........................................ (19,270) --
Loss (gain) on sale of long-term assets...................... (2,496) 31
Change in assets and liabilities:
Receivables................................................ (1,964) 374
Other current assets....................................... (1,125) 581
Accounts payable........................................... 8,700 (7,269)
Accrued expenses and other liabilities..................... 10,991 (3,965)
Other, net................................................... (352) 527
----------- ---------------
Total adjustments............................................ 74,371 22,623
----------- ---------------
Net cash provided by operating activities.................... 52,171 33,015
----------- ---------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures......................................... (173,811) (92,082)
Net change in refundable construction advances............... (39,162) (2,966)
Proceeds from disposition of long-term assets................ 3,446 180
Other, net................................................... (9,634) (6,546)
----------- ---------------
Net cash used in investing activities........................ (219,161) (101,414)
----------- ---------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net borrowings under revolving credit facility............... 165,000 67,000
Principal payments under capital lease obligations and
other...................................................... (1,741) (1,208)
Cash overdrafts.............................................. 8,046 3,602
Proceeds from exercise of stock options...................... -- 141
Dividends paid on preferred stock............................ (2,673) (3,085)
Deferred financing costs and other........................... (682) --
----------- ---------------
Net cash provided by financing activities.................... 167,950 66,450
----------- ---------------
Effect of exchange rate changes on cash and equivalents...... (112) 291
----------- ---------------
NET INCREASE (DECREASE) IN CASH AND EQUIVALENTS................ 848 (1,658)
CASH AND EQUIVALENTS AT BEGINNING OF PERIOD.................... 24,715 10,795
----------- ---------------
CASH AND EQUIVALENTS AT END OF PERIOD.......................... $ 25,563 $ 9,137
----------- ---------------
----------- ---------------
Cash paid during the period for:
Interest (net of amounts capitalized of $3,572 and $999)..... $ 20,226 $ 10,620
Income taxes paid (refunded)................................. 6,384 (1,617)
</TABLE>
See Notes to Consolidated Financial Statements.
F-18
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
OCTOBER 2, 1997
(UNAUDITED)
NOTE 1--BASIS OF PRESENTATION
AMC Entertainment Inc. ("AMCE") is a holding company which, through its
direct and indirect subsidiaries, including American Multi-Cinema, Inc. ("AMC")
and its subsidiaries (collectively with AMCE, unless the context otherwise
requires, the "Company"), is principally involved in the operation of motion
picture theatres throughout the United States and in Japan and Portugal. The
Company is also involved in the business of providing on-screen advertising and
other services to AMC and other theatre circuits through a wholly-owned
subsidiary, National Cinema Network, Inc. ("NCN").
Prior to fiscal 1998, NCN was consolidated with the Company as of a fiscal
period end that was one month earlier than the Company' fiscal period end.
Beginning in fiscal year 1998, this one-month reporting lag was eliminated and
NCN year to date results include activity for seven months.
The accompanying unaudited consolidated financial statements have been
prepared in response to the requirements of Form 10-Q and should be read in
conjunction with the Company's annual report on Form 10-K for the year (53
weeks) ended April 3, 1997. In the opinion of management, these interim
financial statements reflect all adjustments (consisting of normal recurring
adjustments) necessary for a fair presentation of the Company's financial
position and results of operations. Due to the seasonal nature of the Company's
business, results for the thirteen and twenty-six weeks ended October 2, 1997
are not necessarily indicative of the results to be expected for the fiscal year
(52 weeks) ending April 2, 1998.
The year-end consolidated balance sheet data was derived from audited
financial statements, but does not include all disclosures required by generally
accepted accounting principles.
Certain amounts have been reclassified from prior period consolidated
financial statements to conform with the current year presentation.
NOTE 2--EARNINGS PER SHARE
Primary earnings per share is computed by dividing net earnings less
preferred dividends by the sum of the weighted average number of common shares
outstanding and outstanding stock options, when their effect is dilutive. The
average shares used in the computations were 18,382,000 and 18,194,000 for the
thirteen and twenty-six weeks ended October 2, 1997, respectively, and
17,943,000 and 17,534,000 for the thirteen and twenty-six weeks ended September
26, 1996, respectively. On a fully diluted basis, net earnings and shares
outstanding are adjusted to assume conversion of the $1.75 Cumulative
Convertible Preferred Stock, if dilutive. The average shares used in the
computations were 18,382,000 and 18,194,000 for the thirteen and twenty-six
weeks ended October 2, 1997, respectively, and 23,866,000 and 17,726,000 for the
thirteen and twenty-six weeks ended September 26, 1996, respectively.
NOTE 3--MERGER WITH PARENT
Effective August 15, 1997, the Company completed a merger with its majority
stockholder, Durwood, Inc. ("DI"), with the Company remaining as the surviving
entity (the "Merger"). In connection with the Merger, 2,641,951 shares of the
Company's Common Stock and 11,157,000 shares of the Company's Class B Stock
owned by DI were canceled and the Company issued 8,783,289 shares of its Common
Stock and 5,015,657 shares of its Class B Stock to the DI stockholders. The
Merger was
F-19
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
OCTOBER 2, 1997
(UNAUDITED)
NOTE 3--MERGER WITH PARENT (CONTINUED)
accounted for as a corporate reorganization and the recorded balances for
consolidated assets, liabilities, total stockholders' equity and results of
operations were not affected.
In connection with the Merger, the DI stockholders granted a proxy to the
Company to vote their shares of the Company's Common Stock for each candidate
for the Company's Board of Directors in the same proportion as the aggregate
votes cast in such elections by all other holders of the Company's Common Stock
not affiliated with the Company, its directors and officers. The proxy will
remain in effect for a period of three years commencing on the date of the
Merger.
NOTE 4--IMPAIRMENT OF LONG-LIVED ASSETS
The summer of 1997 was the first summer film season, generally the highest
grossing period for the film industry, that a significant number of megaplexes
of the Company and its competitors were operating (the first megaplex, Grand 24,
was opened by the Company in May 1995). During this period, the financial
results of certain multiplexes of the Company were significantly less than
anticipated at the beginning of fiscal 1998 due primarily to competition from
the newer megaplex theatres. As a result, the Company initiated a review of its
portfolio of theatres to identify those theatres which are not expected to
provide an adequate financial return in the future. The Company anticipates that
many of its multiplexes may be disposed of in the intermediate term but
continues to evaluate its future plans for such theatres.
As a result of this review, the Company evaluated its theatre assets and
related intangibles for impairment in accordance with the provisions of
Statement of Financial Accounting Standards No. 121, ACCOUNTING FOR THE
IMPAIRMENT OF LONG-LIVED ASSETS AND FOR LONG-LIVED ASSETS TO BE DISPOSED OF. The
expected future cash flows of certain theatres, undiscounted and without
interest charges, were less than the carrying value of the theatre assets. As a
result, the Company recognized a non-cash impairment loss of $46,998,000
($27,728,000 after tax, or $1.51 per share) on 59 multiplex theatres with 412
screens in 14 states (primarily California, Texas, Missouri, Arizona and
Florida) including a loss of $523,000 associated with 10 theatres that were
included in impairment losses recognized in previous periods. The impairment
loss represents the amount by which the carrying value of the multiplex assets,
including intangibles, exceeded the estimated fair value of those assets. The
estimated fair value of assets was determined as either the expected selling
price less selling costs or the present value of estimated expected future cash
flows.
The reduced carrying amount of the impaired assets will result in reduced
depreciation and amortization in future periods. For fiscal 1998, such charge is
expected to be reduced by approximately $10,500,000 which includes a $3,500,000
reduction in depreciation and amortization for the thirteen weeks ended October
2, 1997.
F-20
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
CONSOLIDATED FINANCIAL STATEMENTS
AND REPORT OF INDEPENDENT ACCOUNTANTS
YEAR (53 WEEKS) ENDED
APRIL 3, 1997 AND YEARS (52 WEEKS) ENDED MARCH 28, 1996 AND MARCH 30, 1995
F-21
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders of AMC Entertainment Inc.
Kansas City, Missouri
We have audited the accompanying consolidated balance sheets of AMC
Entertainment Inc. and subsidiaries as of April 3, 1997 and March 28, 1996, and
the related consolidated statements of operations, stockholders' equity and cash
flows for the year (53 weeks) ended April 3, 1997 and the years (52 weeks) ended
March 28, 1996 and March 30, 1995. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial presentation. We believe
that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of AMC
Entertainment Inc. and subsidiaries as of April 3, 1997 and March 28, 1996, and
the consolidated results of their operations and their cash flows for the year
(53 weeks) ended April 3, 1997 and the years (52 weeks) ended March 28, 1996 and
March 30, 1995, in conformity with generally accepted accounting principles.
COOPERS & LYBRAND L.L.P.
Kansas City, Missouri
May 16, 1997
F-22
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND
YEARS (52 WEEKS) ENDED MARCH 28, 1996 AND MARCH 30, 1995
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
1997 1996 1995
----------- ----------- -----------
<S> <C> <C> <C>
Revenues
Admissions............................................................... $ 492,951 $ 431,361 $ 371,145
Concessions.............................................................. 225,167 196,645 169,120
Other.................................................................... 31,479 27,966 23,079
----------- ----------- -----------
Total revenues....................................................... 749,597 655,972 563,344
Expenses
Film rentals............................................................. 247,199 215,099 182,669
Concession costs......................................................... 36,748 30,417 24,383
Other.................................................................... 296,055 245,842 225,711
----------- ----------- -----------
Total cost of operations............................................. 580,002 491,358 432,763
General and administrative............................................... 56,647 52,059 41,639
Depreciation and amortization............................................ 59,803 43,886 37,913
----------- ----------- -----------
Total expenses....................................................... 696,452 587,303 512,315
----------- ----------- -----------
Operating income..................................................... 53,145 68,669 51,029
Other expense (income)
Interest expense
Cororate borrowings.................................................... 12,016 18,099 24,502
Capital lease obligations.............................................. 10,006 10,729 11,406
Investment income........................................................ (856) (7,052) (10,013)
Loss on disposition of assets............................................ 84 222 156
----------- ----------- -----------
Earnings before income taxes and extraordinary item........................ 31,895 46,671 24,978
Income tax provision....................................................... 12,900 19,300 (9,000)
----------- ----------- -----------
Earnings before extraordinary item......................................... 18,995 27,371 33,978
Extraordinary item -- Loss on extinguishment of debt (net of income tax
benefit of $13,400)...................................................... -- (19,350) --
----------- ----------- -----------
Net earnings............................................................... $ 18,995 $ 8,021 $ 33,978
----------- ----------- -----------
----------- ----------- -----------
Preferred dividends........................................................ 5,907 7,000 7,000
----------- ----------- -----------
Net earnings for common shares............................................. $ 13,088 $ 1,021 $ 26,978
----------- ----------- -----------
----------- ----------- -----------
Earnings per share before extraordinary item:
Primary.................................................................. $ .74 $ 1.21 $ 1.63
----------- ----------- -----------
----------- ----------- -----------
Fully diluted............................................................ $ .73 $ 1.20 $ 1.45
----------- ----------- -----------
----------- ----------- -----------
Earnings per share:
Primary.................................................................. $ .74 $ .06 $ 1.63
----------- ----------- -----------
----------- ----------- -----------
Fully diluted............................................................ $ .73 $ .06 $ 1.45
----------- ----------- -----------
----------- ----------- -----------
</TABLE>
See Notes to Consolidated Financial Statements.
F-23
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
APRIL 3, 1997 AND MARCH 28, 1996
(IN THOUSANDS, EXCEPT SHARE AMOUNTS)
<TABLE>
<CAPTION>
1997 1996
----------- -----------
<S> <C> <C>
ASSETS
Current assets:
Cash and equivalents.................................................................. $ 24,715 $ 10,795
Receivables, net of allowance for doubtful accounts of $704 as of April 3, 1997 and
$801 as of March 28, 1996........................................................... 42,188 20,503
Other current assets.................................................................. 16,769 15,179
----------- -----------
Total current assets................................................................ 83,672 46,477
Property, net........................................................................... 543,058 355,485
Intangible assets, net.................................................................. 28,679 36,483
Other long-term assets.................................................................. 62,804 45,013
----------- -----------
Total assets........................................................................ $ 718,213 $ 483,458
----------- -----------
----------- -----------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable...................................................................... $ 88,367 $ 59,353
Accrued expenses and other liabilities................................................ 42,459 43,319
Current maturities of corporate borrowings and capital lease obligations.............. 3,441 2,904
----------- -----------
Total current liabilities........................................................... 134,267 105,576
Corporate borrowings.................................................................... 315,046 126,127
Capital lease obligations............................................................... 55,237 59,141
Other long-term liabilities............................................................. 43,651 33,696
----------- -----------
Total liabilities................................................................... 548,201 324,540
Commitments and contingencies
Stockholders' equity:
$1.75 Cumulative Convertible Preferred Stock, 66 2/3 CENTS par value; 3,303,600 and
4,000,000 shares issued and outstanding as of April 3, 1997, and March 28, 1996,
respectively (aggregate liquidation preference of $82,590 and $100,000 as of April
3, 1997 and March 28, 1996, respectively)........................................... 2,202 2,667
Common Stock, 66 2/3 CENTS par value; 6,604,469 and 5,388,880 shares issued as of
April 3, 1997, and March 28, 1996, respectively..................................... 4,403 3,593
Convertible Class B Stock, 66 2/3 CENTS par value; 11,157,000 shares issued and
outstanding......................................................................... 7,438 7,438
Additional paid-in capital............................................................ 107,781 107,986
Foreign currency translation adjustment............................................... (2,048) --
Retained earnings..................................................................... 50,605 37,603
----------- -----------
170,381 159,287
Less--Common Stock in treasury, at cost, 20,500 shares as of April 3, 1997 and March
28, 1996............................................................................ 369 369
----------- -----------
Total stockholders' equity.......................................................... 170,012 158,918
----------- -----------
Total liabilities and stockholders' equity.......................................... $ 718,213 $ 483,458
----------- -----------
----------- -----------
</TABLE>
See Notes to Consolidated Financial Statements.
F-24
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND YEARS (52 WEEKS)
ENDED MARCH 28, 1996 AND MARCH 30, 1995
(IN THOUSANDS)
<TABLE>
<CAPTION>
1997 1996 1995
------------ ------------ ------------
<S> <C> <C> <C>
INCREASE (DECREASE) IN CASH AND EQUIVALENTS
Cash flows from operating activities:
Net earnings.......................................................... $ 18,995 $ 8,021 $ 33,978
Adjustments to reconcile net earnings to net cash provided by
operating activities:
Depreciation and amortization....................................... 59,803 43,886 37,913
Deferred income taxes............................................... (2,476) (1,328) (21,285)
Gain on sale of available for sale investments...................... -- -- (1,407)
Extraordinary item.................................................. -- 19,350 --
Loss on sale of long-term assets.................................... 84 222 156
Change in assets and liabilities:
Receivables....................................................... (609) (1,537) 807
Other current assets.............................................. 1,578 10,167 (578)
Accounts payable.................................................. 41,486 7,458 341
Accrued expenses and other liabilities............................ 12,441 7,640 (5,763)
Other, net............................................................ 2,772 2,968 204
------------ ------------ ------------
Total adjustments............................................... 115,079 88,826 10,388
------------ ------------ ------------
Net cash provided by operating activities............................. 134,074 96,847 44,366
------------ ------------ ------------
Cash flows from investing activities:
Capital expenditures.................................................. (253,380) (120,796) (56,403)
Purchase of real estate investment.................................... (7,692) -- --
Acquisition of minority interest...................................... (7,400) -- --
Purchases of available for sale investments........................... -- (424,134) (314,368)
Proceeds from maturities of available for sale investments............ -- 493,278 364,374
Proceeds from sales of available for sale investments................. -- -- 11,689
Proceeds from disposition of long-term assets......................... 15,054 2,243 70
Net change in refundable construction advances........................ (21,076) (10,394) (182)
Other, net............................................................ (9,423) (7,045) (1,516)
------------ ------------ ------------
Net cash provided by (used in) investing activities................... (283,917) (66,848) 3,664
------------ ------------ ------------
Cash flows from financing activities:
Net borrowings (repayments) under revolving credit facility........... (10,000) 120,000 --
Proceeds from issuance of 9 1/2% Senior Subordinated Notes............ 198,938 -- --
Principal payments under capital lease obligations.................... (2,835) (2,455) (2,088)
Repurchase of 11 7/8% Senior and 12 5/8% Senior Subordinated Notes.... -- (220,734) --
Cash overdrafts....................................................... (11,673) 22,848 --
Other repayments...................................................... -- (404) (34)
Proceeds from exercise of stock options............................... 140 878 239
Dividends paid on preferred stock..................................... (5,993) (7,000) (7,233)
Deferred financing costs and other.................................... (4,595) (3,570) --
------------ ------------ ------------
Net cash provided by (used in) financing activities................... 163,982 (90,437) (9,116)
------------ ------------ ------------
Effect of exchange rate changes on cash and equivalents............... (219) -- --
------------ ------------ ------------
Net increase (decrease) in cash and equivalents......................... 13,920 (60,438) 38,914
Cash and equivalents at beginning of year............................... 10,795 71,233 32,319
------------ ------------ ------------
Cash and equivalents at end of year..................................... $ 24,715 $ 10,795 $ 71,233
------------ ------------ ------------
------------ ------------ ------------
</TABLE>
F-25
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND YEARS (52 WEEKS) ENDED MARCH 28, 1996
AND MARCH 30, 1995
(IN THOUSANDS)
Supplemental Schedule of Noncash Investing and Financing Activities:
During 1995, capital lease obligations of $1,363 were incurred in connection
with property acquired.
Supplemental Disclosures of Cash Flow Information:
<TABLE>
<CAPTION>
1997 1996 1995
--------- --------- ---------
<S> <C> <C> <C>
Cash paid during the period for:
Interest (net of amounts capitalized of $3,344, $3,003 and $870)............. $ 24,188 $ 34,775 $ 35,878
Income taxes, net............................................................ 6,285 9,787 14,822
</TABLE>
See Notes to Consolidated Financial Statements.
F-26
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
FOREIGN
PREFERRED STOCK COMMON STOCK CLASS B STOCK ADDITIONAL CURRENCY
---------------------- ---------------------- ------------------------ PAID-IN TRANSLATION
SHARES AMOUNT SHARES AMOUNT SHARES AMOUNT CAPITAL ADJUSTMENT
----------- --------- ----------- --------- ------------- --------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance, April 1,
1994.................. 4,000,000 $ 2,667 5,266,830 $ 3,511 11,157,000 $ 7,438 $ 106,951 $ --
Net earnings.......... -- -- -- -- -- -- -- --
Exercise of options on
Common Stock........ -- -- 39,550 27 -- -- 212 --
Dividends declared:
$1.75 Preferred
Stock............. -- -- -- -- -- -- -- --
----------- --------- ----------- --------- ------------- --------- ----------- -----------
Balance, March 30,
1995.................. 4,000,000 2,667 5,306,380 3,538 11,157,000 7,438 107,163 --
Net earnings.......... -- -- -- -- -- -- -- --
Exercise of options on
Common Stock........ -- -- 82,500 55 -- -- 823 --
Dividends declared:
$1.75 Preferred
Stock............. -- -- -- -- -- -- -- --
Acquisition of Common
Stock in Treasury... -- -- -- -- -- -- -- --
----------- --------- ----------- --------- ------------- --------- ----------- -----------
Balance, March 28,
1996.................. 4,000,000 2,667 5,388,880 3,593 11,157,000 7,438 107,986 --
Net earnings.......... -- -- -- -- -- -- -- --
Exercise of options on
Common Stock........ -- -- 15,000 10 -- -- 130 --
Preferred Stock
conversions......... (696,400) (465) 1,200,589 800 -- -- (335) --
Dividends declared:
$1.75 Preferred
Stock............. -- -- -- -- -- -- -- --
Foreign currency
translation
adjustment.......... -- -- -- -- -- -- -- (2,048)
----------- --------- ----------- --------- ------------- --------- ----------- -----------
Balance, April 3,
1997.................. 3,303,600 $ 2,202 6,604,469 $ 4,403 11,157,000 $ 7,438 $ 107,781 $ (2,048)
----------- --------- ----------- --------- ------------- --------- ----------- -----------
----------- --------- ----------- --------- ------------- --------- ----------- -----------
<CAPTION>
COMMON STOCK IN
TREASURY TOTAL
RETAINED ---------------------- STOCKHOLDERS'
EARNINGS SHARES AMOUNT EQUITY
--------- --------- ----------- --------------
<S> <C> <C> <C> <C>
Balance, April 1,
1994.................. $ 9,837 -- $ -- $ 130,404
Net earnings.......... 33,978 -- -- 33,978
Exercise of options on
Common Stock........ -- -- -- 239
Dividends declared:
$1.75 Preferred
Stock............. (7,233) -- -- (7,233)
--------- --------- ----------- --------------
Balance, March 30,
1995.................. 36,582 -- -- 157,388
Net earnings.......... 8,021 -- -- 8,021
Exercise of options on
Common Stock........ -- -- -- 878
Dividends declared:
$1.75 Preferred
Stock............. (7,000) -- -- (7,000)
Acquisition of Common
Stock in Treasury... -- 20,500 (369) (369)
--------- --------- ----------- --------------
Balance, March 28,
1996.................. 37,603 20,500 (369) 158,918
Net earnings.......... 18,995 -- -- 18,995
Exercise of options on
Common Stock........ -- -- -- 140
Preferred Stock
conversions......... -- -- -- --
Dividends declared:
$1.75 Preferred
Stock............. (5,993) -- -- (5,993)
Foreign currency
translation
adjustment.......... -- -- -- (2,048)
--------- --------- ----------- --------------
Balance, April 3,
1997.................. $ 50,605 20,500 $ (369) $ 170,012
--------- --------- ----------- --------------
--------- --------- ----------- --------------
</TABLE>
See Notes to Consolidated Financial Statements.
F-27
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND YEARS (52 WEEKS) ENDED MARCH 28, 1996
AND MARCH 30, 1995
NOTE 1--THE COMPANY AND SIGNIFICANT ACCOUNTING POLICIES
AMC Entertainment Inc. ("AMCE") is a holding company which, through its
direct and indirect subsidiaries, including American Multi-Cinema, Inc. ("AMC")
and its subsidiaries (collectively with AMCE, unless the context otherwise
requires, the "Company"), is principally involved in the operation of motion
picture theatres throughout the United States and in Japan and Portugal. The
Company is also involved in the business of providing on-screen advertising and
other services to AMC and other theatre circuits through a wholly-owned
subsidiary, National Cinema Network, Inc.
Approximately 78% of AMCE's outstanding voting securities are owned by
Durwood, Inc. ("DI"). See Note 12 for further description of AMCE's transactions
with DI.
USE OF ESTIMATES: The preparation of financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the amounts reported in the financial
statements and accompanying notes. Although these estimates are based on
management's knowledge of current events and actions it may undertake in the
future, they may ultimately differ from actual results.
PRINCIPLES OF CONSOLIDATION: The consolidated financial statements include
the accounts of AMCE and all subsidiaries. All significant intercompany balances
and transactions have been eliminated.
FISCAL YEAR: The Company has a 52/53 week fiscal year ending on the
Thursday closest to the last day of March. The 1997 fiscal year reflects a 53
week period, fiscal years 1996 and 1995 each reflect a 52 week period. Fiscal
year 1998 will reflect a 52 week period.
REVENUES AND FILM RENTAL COSTS: Revenues are recognized when admissions and
concessions sales are received at the theatres. Film rental costs are recognized
based on the applicable box office receipts and the terms of the film licenses.
CASH AND EQUIVALENTS: Cash and equivalents consists of cash on hand and
temporary cash investments with original maturities of less than thirty days.
The Company invests excess cash in deposits with major banks and in temporary
cash investments. Such investments are made only in instruments issued or
enhanced by high quality financial institutions (investment grade or better).
Amounts invested in a single institution are limited to minimize risk. Under the
Company's cash management system, checks issued but not presented to banks
frequently result in overdraft balances for accounting purposes and are
classified within accounts payable in the balance sheet. The amount of these
checks included in accounts payable as of April 3, 1997 and March 28, 1996 was
$11,175,000 and $22,848,000, respectively.
INVESTMENTS: For purposes of determining gross realized gains and losses,
the cost of investment securities sold is determined upon specific
identification. Proceeds and gross realized gains from the sales in 1995 of
equity securities classified as other long-term assets as of March 31, 1994 were
$11,689,000 and $1,407,000, respectively.
REFUNDABLE CONSTRUCTION ADVANCES: Included in receivables as of April 3,
1997 and March 28, 1996 is $33,193,000 and $12,117,000, respectively, due from
developers to fund a portion of the
F-28
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND YEARS (52 WEEKS) ENDED MARCH 28, 1996
AND MARCH 30, 1995
NOTE 1--THE COMPANY AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
construction costs of new theatres that are to be operated by the Company
pursuant to lease agreements. These amounts are repaid by the developers either
during construction or shortly after completion.
PROPERTY: Property is recorded at cost. The Company uses the straight-line
method in computing depreciation and amortization for financial reporting
purposes and accelerated methods, with respect to certain assets, for income tax
purposes. The estimated useful lives are generally as follows:
<TABLE>
<S> <C>
Buildings and improvements.................................. 20 to 40 years
Leasehold improvements...................................... 5 to 25 years
Furniture, fixtures and equipment........................... 3 to 10 years
</TABLE>
Expenditures for additions (including interest during construction), major
renewals and betterments are capitalized, and expenditures for maintenance and
repairs are charged to expense as incurred. The cost of assets retired or
otherwise disposed of and the related accumulated depreciation are eliminated
from the accounts in the year of disposal. Gains or losses resulting from
property disposals are credited or charged to operations currently.
INTANGIBLE ASSETS: Intangible assets are recorded at cost and are comprised
of lease rights, which are amounts assigned to theatre leases assumed under
favorable terms, and location premiums on acquired theatres which are being
amortized on a straight-line basis over the estimated remaining useful life of
the theatre. Accumulated amortization on intangible assets was approximately
$41,690,000 and $36,035,000 as of April 3, 1997 and March 28, 1996,
respectively.
Effective December 30, 1994, the Company reduced the estimated lives of
lease rights and location premiums on certain smaller theatres to correspond to
the base terms of the theatre leases. This change in accounting estimate was
made to better match the estimated life of the intangible assets with the life
of the theatre due to the Company's strategic plans to primarily own and operate
larger theatres. The effect of this change in estimate was to increase
amortization expense in 1995 by $1,542,000 and decrease net earnings by
$876,000, or $.05 per share.
OTHER LONG-TERM ASSETS: Other long-term assets are comprised principally of
costs incurred in connection with the issuance of debt securities which are
being amortized over the respective life of the issue; investments in real
estate; investments in partnerships and corporate joint ventures accounted for
under the equity method; preopening costs relating to new theatres which are
being amortized over two years; and long-term deferred income taxes.
FOREIGN CURRENCY TRANSLATION: The financial statements of subsidiaries
outside the United States are generally measured using the local currency as the
functional currency. Assets and liabilities of these subsidiaries are translated
at the rates of exchange at the balance sheet date. Income and expense items are
translated at average rates of exchange. The resultant translation adjustments
are included in foreign currency translation adjustment, a separate component of
stockholders' equity. Gains and losses from foreign currency transactions of
these subsidiaries are included in net earnings and have not been material.
F-29
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND YEARS (52 WEEKS) ENDED MARCH 28, 1996
AND MARCH 30, 1995
NOTE 1--THE COMPANY AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
INCOME TAXES: Income taxes are calculated in accordance with Statement of
Financial Accounting Standards No. 109 ("SFAS 109"), ACCOUNTING FOR INCOME
TAXES. The statement requires that deferred income taxes reflect the impact of
temporary differences between the amount of assets and liabilities for financial
reporting purposes and such amounts as measured by tax laws and regulations.
EARNINGS PER SHARE: Primary earnings per share is computed by dividing net
earnings for common shares by the sum of the weighted average number of common
shares outstanding and outstanding stock options, when their effect is dilutive.
The average shares used in the computations were 17,726,000 in 1997, 16,795,000
in 1996 and 16,593,000 in 1995. On a fully diluted basis, both net earnings and
shares outstanding are adjusted to assume the conversion of $1.75 Cumulative
Convertible Preferred Stock, if dilutive. The average shares used in the
computations were 17,940,000 in 1997, 17,031,000 in 1996 and 23,509,000 in 1995.
CHANGES IN ACCOUNTING PRINCIPLES: During fiscal 1996, the Financial
Accounting Standards Board issued Statement of Financial Accounting Standards
No. 123, ACCOUNTING FOR STOCK-BASED COMPENSATION. The Statement allows companies
to measure compensation cost in connection with employee stock compensation
plans using a fair value based method or to continue to use an intrinsic value
based method to account for stock options and awards. The Company has chosen to
continue using the intrinsic value based method while adopting the
disclosure-only provisions of the pronouncement.
During the fourth quarter of fiscal 1996, the Company adopted Statement of
Financial Accounting Standards No. 121, ACCOUNTING FOR THE IMPAIRMENT OF
LONG-LIVED ASSETS AND FOR LONG-LIVED ASSETS TO BE DISPOSED OF ("SFAS 121"). This
Statement establishes accounting standards for the impairment of long-lived
assets, certain identifiable intangibles and goodwill related to those assets to
be held and used. In connection with the adoption of this Statement, the Company
reviewed the assets and related intangibles of its motion picture theatres for
impairment on a disaggregated basis. The expected future cash flows of certain
theatres, undiscounted and without interest charges, were less than the carrying
value of the assets. As a result, the Company recognized an impairment loss of
$1,799,000. The impairment loss represents the amount by which the carrying
value of the theatre assets, including intangibles, exceeded the estimated fair
value of those assets. The estimated fair value of assets was determined as the
present value of estimated expected future cash flows. The loss is included in
depreciation and amortization in the Consolidated Statements of Operations.
During fiscal 1997, the Company continued to review the assets and related
intangibles of its motion picture theatres for impairment in accordance with the
provisions of SFAS 121. As a result of expected declines in future cash flows of
certain theatres the Company recognized an impairment loss of $7,231,000 which
is included in depreciation and amortization in the Consolidated Statements of
Operations.
During fiscal 1997, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 128 ("SFAS 128"), EARNINGS PER
SHARE. SFAS 128 eliminates the presentation of primary and fully diluted
earnings per share ("EPS") and requires presentation of basic and diluted EPS.
The principal difference between primary and basic EPS is that common stock
equivalents are not included with the weighted average number of shares
outstanding used in the computation of basic
F-30
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND YEARS (52 WEEKS) ENDED MARCH 28, 1996
AND MARCH 30, 1995
NOTE 1--THE COMPANY AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
EPS. Diluted EPS is computed similarly to fully diluted EPS. SFAS 128 is
effective for periods ending after December 15, 1997, including interim periods,
and requires restatement of all prior-period EPS data. Early adoption is not
permitted. Management has not yet determined the impact that this statement will
have on the Company.
PRESENTATION: Certain amounts have been reclassified from prior period
consolidated financial statements to conform with the current year presentation.
NOTE 2--ACQUISITION
On January 10, 1997, the Company purchased the 20% minority interest in the
common stock of AMC Philadelphia, Inc., an 80% owned subsidiary, for $7,400,000
in cash. The acquisition has been accounted for using the purchase method of
accounting. The excess of the purchase price over the fair value of the assets
acquired is being amortized on a straight-line basis over the estimated useful
life of the assets acquired.
NOTE 3--PROPERTY
A summary of property is as follows (in thousands):
<TABLE>
<CAPTION>
1997 1996
--------- ---------
<S> <C> <C>
Property owned:
Land............................................... $ 60,090 $ 35,610
Buildings and improvements......................... 221,396 146,061
Furniture, fixtures and equipment.................. 264,619 205,761
Leasehold improvements............................. 211,720 146,152
--------- ---------
757,825 533,584
Less--accumulated depreciation and amortization.... 246,476 213,654
--------- ---------
511,349 319,930
Property leased under capital leases:
Buildings.......................................... 66,074 67,274
Less--accumulated amortization..................... 34,365 31,719
--------- ---------
31,709 35,555
--------- ---------
$ 543,058 $ 355,485
--------- ---------
--------- ---------
</TABLE>
Included in property is $83,558,000 and $35,289,000 of construction in
progress as of April 3, 1997 and March 28, 1996, respectively.
F-31
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND YEARS (52 WEEKS) ENDED MARCH 28, 1996
AND MARCH 30, 1995
NOTE 4--OTHER ASSETS AND LIABILITIES
Other assets and liabilities consist of the following (in thousands):
<TABLE>
<CAPTION>
1997 1996
--------- ---------
<S> <C> <C>
Other current assets:
Prepaid rent......................................... $ 7,366 $ 6,412
Prepaid income taxes................................. -- 3,074
Deferred income taxes................................ 6,376 3,207
Other................................................ 3,027 2,486
--------- ---------
$ 16,769 $ 15,179
--------- ---------
--------- ---------
Other long-term assets:
Investments in real estate........................... $ 15,329 $ 6,922
Investments in partnerships and corporate joint
ventures........................................... 733 1,121
Deferred charges, net................................ 12,147 6,203
Deferred income taxes................................ 23,813 24,506
Preopening costs..................................... 6,519 2,636
Other................................................ 4,263 3,625
--------- ---------
$ 62,804 $ 45,013
--------- ---------
--------- ---------
Accrued expenses and other liabilities:
Taxes other than income.............................. $ 10,030 $ 7,110
Income taxes......................................... 6,017 --
Interest............................................. 1,512 841
Payroll and vacation................................. 4,982 6,149
Casualty claims and premiums......................... 4,655 2,034
Deferred income...................................... 8,911 11,634
Accrued bonus........................................ 3,974 7,634
Other................................................ 2,378 7,917
--------- ---------
$ 42,459 $ 43,319
--------- ---------
--------- ---------
</TABLE>
F-32
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND YEARS (52 WEEKS) ENDED MARCH 28, 1996
AND MARCH 30, 1995
NOTE 5--CORPORATE BORROWINGS AND CAPITAL LEASE OBLIGATIONS
A summary of corporate borrowings and capital lease obligations is as
follows (in thousands):
<TABLE>
<CAPTION>
1997 1996
--------- ---------
<S> <C> <C>
$425 million revolving Credit Facility due 2004....... $ 110,000 $ 120,000
11 7/8% Senior Notes due 2000......................... 615 614
9 1/2% Senior Subordinated Notes due 2009............. 198,940 --
12 5/8% Senior Subordinated Notes due 2002............ 4,882 4,878
Capital lease obligations, interest ranging from
7 1/4% to 20%....................................... 58,652 62,022
Other indebtedness.................................... 635 658
--------- ---------
Total................................................. 373,724 188,172
Less-current maturities............................... 3,441 2,904
--------- ---------
$ 370,283 $ 185,268
--------- ---------
--------- ---------
</TABLE>
On December 28, 1995, the Company completed the redemption of $99,383,000 of
its outstanding 11 7/8% Senior Notes due 2000 at a price of $1,117.90 per $1,000
principal amount and $95,096,000 of its outstanding 12 5/8% Senior Subordinated
Notes due 2002 at a price of $1,144.95 per $1,000 principal amount. In addition,
the terms of the Indentures governing the remaining Senior and Senior
Subordinated Notes were amended to eliminate certain restrictive covenants.
Sources of funds for the redemption were cash and investments on hand and
borrowings on a credit facility. Premiums paid to redeem the Senior and Senior
Subordinated Notes, together with the write-off of unamortized debt issue costs
and other costs directly related to the debt redemptions, resulted in an
extraordinary loss of $19,350,000, net of income tax benefit of $13,400,000. The
extraordinary loss reduced earnings per share by $1.15 for the year (52 weeks)
ended March 28, 1996.
As a part of the refinancing plan, the Company entered into a $425 million
credit facility (the "Credit Facility"), which was amended and restated as of
April 10, 1997. The Credit Facility permits borrowings at interest rates based
on either the bank's base rate or LIBOR and requires an annual commitment fee
based on margin ratios that could result in a rate of .1875% to .375% on the
unused portion of the commitment. The Credit Facility matures in 2004. The
commitment thereunder will reduce by $25 million on each of December 31, 2002,
March 31, 2003, June 30, 2003 and September 30, 2003 and by $50 million on
December 31, 2003. As of April 3, 1997, the Company had outstanding borrowings
of $110,000,000 under the Credit Facility at an average interest rate of 6.4%
per annum.
Covenants of the Credit Facility impose limitations on the incurrence of
additional indebtedness, creation of liens, change of control, transactions with
affiliates, mergers, investments, guaranties, asset sales, business activities
and pledges. The Company is also required to maintain certain financial
covenants, as defined in the Credit Facility. As of April 3, 1997, the Company
was in compliance with all financial covenants relating to the Credit Facility.
Prior to its April 10, 1997 amendment and restatement, the Credit Facility
contained a covenant that generally limited the Company's capital expenditures.
This covenant has been eliminated.
F-33
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND YEARS (52 WEEKS) ENDED MARCH 28, 1996
AND MARCH 30, 1995
NOTE 5--CORPORATE BORROWINGS AND CAPITAL LEASE OBLIGATIONS (CONTINUED)
Costs related to the establishment of the Credit Facility were capitalized
and are charged to interest expense over the life of the Credit Facility.
Unamortized issuance costs of $2,821,000 as of April 3, 1997 are included in
other long-term assets.
On March 19, 1997, the Company sold $200 million of Senior Subordinated
Notes due 2009 (the "Notes"). The Notes bear interest at the rate of 9 1/2% per
annum, payable in March and September. The Notes are redeemable at the option of
the Company, in whole or in part, at any time on or after March 15, 2002 at
104.75% of the principal amount thereof, declining ratably to 100% of the
principal amount thereof on or after March 15, 2006, plus in each case interest
accrued to the redemption date. Upon a change of control (as defined in the Note
Indenture), each holder of the Notes will have the right to require the Company
to repurchase such holder's Notes at a price equal to 101% of the principal
amount thereof plus accrued and unpaid interest to the date of repurchase. The
Notes are subordinated to all existing and future senior indebtedness (as
defined in the Note Indenture) of the Company.
The Note Indenture contains certain covenants that, among other things,
restrict the ability of the Company and its subsidiaries to incur additional
indebtedness and pay dividends or make distributions in respect of their capital
stock. If the Notes attain "investment grade status" (as defined in the Note
Indenture), the covenants in the Note Indenture limiting the Company's ability
to incur additional indebtedness and pay dividends will cease to apply. As of
April 3, 1997, the Company was in compliance with all financial covenants
relating to the Note Indenture.
The Note Indenture also requires the Company to use its best efforts to
consummate a registered offer to exchange the Notes (the "Exchange Offer") for
notes of AMCE with terms identical in all material respects to the Notes or
cause a shelf registration statement with respect to the Notes to become
effective. In the event that certain filing deadlines as specified in the Note
Indenture are not met, the interest rate borne by the Notes could increase as
much as 1.0% per annum. The Company anticipates meeting its filing deadlines.
The discount on the Notes is being amortized to interest expense following
the interest method of amortization. Costs related to the issuance of the Notes
were capitalized and are charged to interest expense, following the interest
method, over the life of the securities. Unamortized issuance costs of
$4,572,000 as of April 3, 1997 are included in other long-term assets.
F-34
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND YEARS (52 WEEKS) ENDED MARCH 28, 1996
AND MARCH 30, 1995
NOTE 5--CORPORATE BORROWINGS AND CAPITAL LEASE OBLIGATIONS (CONTINUED)
Minimum annual payments required under existing capital lease obligations
(net present value thereof) and maturities of corporate borrowings as of April
3, 1997, are as follows (in thousands):
<TABLE>
<CAPTION>
CAPITAL LEASE OBLIGATIONS
-------------------------------------
MINIMUM NET
LEASE LESS PRESENT CORPORATE
PAYMENTS INTEREST VALUE BORROWINGS TOTAL
----------- ----------- ----------- ----------- ---------
<S> <C> <C> <C> <C> <C>
1998.................... $ 12,795 $ 9,380 $ 3,415 $ 26 $ 3,441
1999.................... 12,800 8,715 4,085 30 4,115
2000.................... 12,211 8,026 4,185 34 4,219
2001.................... 11,939 7,294 4,645 653 5,298
2002.................... 11,110 6,529 4,581 43 4,624
Thereafter.............. 70,161 32,420 37,741 314,286 352,027
----------- ----------- ----------- ----------- ---------
Total................. $ 131,016 $ 72,364 $ 58,652 $ 315,072 $ 373,724
----------- ----------- ----------- ----------- ---------
----------- ----------- ----------- ----------- ---------
</TABLE>
The Company maintains a letter of credit in the normal course of its
business. The unused portion of the letter of credit was $2,378,000 as of April
3, 1997.
NOTE 6--STOCKHOLDERS' EQUITY
The authorized Common Stock of AMCE consists of two classes of stock. Except
for the election of directors, each holder of Common Stock (66 2/3 CENTS par
value; 45,000,000 shares authorized) is entitled to one vote per share, and each
holder of Class B Stock (66 2/3 CENTS par value; 30,000,000 shares authorized)
is entitled to 10 votes per share. Common stockholders voting as a class are
presently entitled to elect two of the seven members of AMCE's Board of
Directors with Class B stockholders electing the remainder.
Holders of the Company's stock have no pre-emptive or subscription rights
and there are no restrictions with respect to transferability. Holders of the
Common Stock have no conversion rights, but holders of Class B Stock may elect
to convert at any time on a share-for-share basis into Common Stock.
The Company has authorized 10,000,000 shares of Preferred Stock
(66 2/3 CENTS par value), of which 3,303,600 shares of $1.75 Cumulative
Convertible Preferred Stock (66 2/3 CENTS par value) (the "Convertible Preferred
Stock") are issued and outstanding. Dividends are payable quarterly at an annual
rate of $1.75 per share. The Convertible Preferred Stock has preference in
liquidation in the amount of $25 per share plus accrued and unpaid dividends.
The Convertible Preferred Stock is convertible at the option of the holder into
shares of Common Stock at a conversion price of $14.50 per share of Common
Stock, subject to change in certain events. In lieu of conversion the Company
may, at its option, pay to the holder cash equal to the then market value of the
Common Stock. The Company may redeem in whole or in part the Convertible
Preferred Stock at a redemption price beginning at $26.00 per share, declining
ratably to $25.00 per share after March 15, 2001.
F-35
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND YEARS (52 WEEKS) ENDED MARCH 28, 1996
AND MARCH 30, 1995
NOTE 6--STOCKHOLDERS' EQUITY (CONTINUED)
During 1997, various holders of the Company's Convertible Preferred Stock
converted 696,400 shares into 1,200,589 shares of Common Stock at a conversion
rate of 1.724 shares of Common Stock for each share of Convertible Preferred
Stock.
STOCK-BASED COMPENSATION PLANS
In June 1983, AMCE adopted a stock option plan (the "1983 Plan") for
selected employees. This plan provided for the grant of rights to purchase
shares of Common Stock under both incentive and non-incentive stock option
agreements. The number of shares which could be sold under the plan could not
exceed 750,000 shares. The 1983 Plan provided that the exercise price could not
be less than the fair market value of the stock at the date of grant and
unexercised options expired no later than ten years after date of grant.
Pursuant to the terms of the 1983 Plan, no further options may be granted under
this plan.
In September 1984, AMCE adopted a non-qualified stock option plan (the "1984
Plan"). This plan provided for the grant of rights to purchase shares of Common
Stock under non-qualified stock option agreements. The number of shares which
could be sold under the plan could not exceed 750,000 shares. The 1984 Plan
provided that the exercise price would be determined by the Company's Stock
Option Committee and that the options expired no later than ten years after date
of grant. Pursuant to the terms of the 1984 Plan, no further options may be
granted under this plan.
In November 1994, AMCE adopted a stock option and incentive plan (the "1994
Plan"). This plan provides for three basic types of awards: (i) grants of stock
options which are either incentive or non-qualified stock options, (ii) grants
of stock awards, which may be either performance or restricted stock awards, and
(iii) performance unit awards. The number of shares of Common Stock which may be
sold or granted under the plan may not exceed 1,000,000 shares. The 1994 Plan
provides that the exercise price for stock options may not be less than the fair
market value of the stock at the date of grant and unexercised options expire no
later than ten years after date of grant. Options issued under the 1994 Plan
vest over two years from the date of issuance.
The Company has adopted the disclosure-only provisions of SFAS 123. As
permitted by SFAS 123, the Company has chosen to continue to account for
stock-based compensation using the intrinsic value method. Accordingly, no
compensation expense has been recognized for the Company's stock-based
compensation plans other than for performance-based stock awards. In 1997 and
1996, the Company granted to certain individuals stock awards which are issuable
at the end of a performance period ending April 2, 1998 based on certain
performance criteria. The number of shares which may be issued at the end of the
performance period ranges from zero to 216,000. The Company recognized
compensation expense for performance stock awards of $586,000 and $772,000 in
1997 and 1996, respectively. Had compensation expense for the Company's plans
been determined based on the fair value at the grant dates for stock options and
awards granted in 1997 and 1996, the Company's net earnings and net earnings for
common shares would have been different.
F-36
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND YEARS (52 WEEKS) ENDED MARCH 28, 1996
AND MARCH 30, 1995
NOTE 6--STOCKHOLDERS' EQUITY (CONTINUED)
The pro forma amounts under SFAS 123 are indicated below (in thousands
except per share amounts):
<TABLE>
<CAPTION>
1997 1996
--------- ---------
<S> <C> <C>
Net earnings
As reported............................................ $ 18,995 $ 8,021
Pro forma.............................................. $ 18,664 $ 8,210
Net earnings per common share
As reported............................................ $ .74 $ .06
Pro forma.............................................. $ .72 $ .07
</TABLE>
The following table reflects the weighted average fair value per option
granted during the year, as well as the significant weighted average assumptions
used in determining fair value using the Black-Scholes option-pricing model:
<TABLE>
<CAPTION>
1997 1996
--------- ---------
<S> <C> <C>
Fair value on grant date.................................. $ 11.63 $ 6.96
Risk-free interest rate................................... 6.24% 5.64%
Expected life (years)..................................... 5 5
Expected volatility....................................... 42.9% 46.0%
Expected dividend yield................................... -- --
</TABLE>
F-37
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND YEARS (52 WEEKS) ENDED MARCH 28, 1996
AND MARCH 30, 1995
NOTE 6--STOCKHOLDERS' EQUITY (CONTINUED)
A summary of stock option activity under all plans is as follows:
<TABLE>
<CAPTION>
1997 1996 1995
---------------------------- ---------------------------- ----------------------------
WEIGHTED WEIGHTED WEIGHTED
AVERAGE AVERAGE AVERAGE
NUMBER EXERCISE PRICE NUMBER EXERCISE PRICE NUMBER EXERCISE PRICE
OF SHARES PER SHARE OF SHARES PER SHARE OF SHARES PER SHARE
----------- --------------- ----------- --------------- ----------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Outstanding at
beginning of
year.......... 487,500 $ 9.67 776,500 $ 9.57 813,300 $ 9.29
Granted......... 103,250 $ 24.80 23,250 $ 14.50 36,500 $ 11.75
Canceled........ (17,250) $ 10.04 (229,750) $ 9.46 (33,750) $ 9.38
Exercised....... (15,000) $ 9.375 (82,500) $ 10.65 (39,550) $ 6.01
----------- ------- ----------- ------- ----------- -------
Outstanding at
end of year... 558,500 $ 12.47 487,500 $ 9.67 776,500 $ 9.57
----------- ------- ----------- ------- ----------- -------
----------- ------- ----------- ------- ----------- -------
Exercisable at
end of year... 365,875 $ 10.51 233,250 $ 9.45 230,000 $ 9.79
----------- ------- ----------- ------- ----------- -------
----------- ------- ----------- ------- ----------- -------
Available for
grant at end
of year....... 630,500 746,500 817,500
----------- ----------- -----------
----------- ----------- -----------
</TABLE>
The following table summarizes information about stock options as of April
3, 1997:
<TABLE>
<CAPTION>
OUTSTANDING STOCK OPTIONS
---------------------------------------------------- EXERCISABLE STOCK OPTIONS
WEIGHTED-AVERAGE --------------------------------
RANGE OF NUMBER REMAINING WEIGHTED-AVERAGE NUMBER WEIGHTED-AVERAGE
EXERCISE PRICES OF SHARES CONTRACTUAL LIFE EXERCISE PRICE OF SHARES EXERCISE PRICE
- ----------------- ----------- ------------------ ------------------- ----------- -------------------
<C> <C> <S> <C> <C> <C>
$9.25 to $11.75 436,500 6.3 years $ 9.46 335,250 $ 9.51
$14.50 to $18.50 29,250 8.7 years $ 15.94 9,375 $ 14.50
$24.50 to $26.375 92,750 9.1 years $ 25.52 21,250 $ 24.50
----------- ---------- ------- ----------- -------
$9.25 to $26.375 558,500 6.9 years $ 12.47 365,875 $ 10.51
----------- ---------- ------- ----------- -------
----------- ---------- ------- ----------- -------
</TABLE>
F-38
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND YEARS (52 WEEKS) ENDED MARCH 28, 1996
AND MARCH 30, 1995
NOTE 7--INCOME TAXES
Income taxes reflected in the Consolidated Statements of Operations for the
three years ended April 3, 1997 are as follows (in thousands):
<TABLE>
<CAPTION>
1997 1996 1995
--------- --------- ---------
<S> <C> <C> <C>
Current:
Federal....................................... $ 11,418 $ 5,134 $ 7,738
State......................................... 3,958 2,094 4,547
--------- --------- ---------
Total current............................... 15,376 7,228 12,285
Deferred:
Federal....................................... (2,114) (1,121) (1,238)
State......................................... (362) (207) (255)
Change in valuation allowance................. -- -- (19,792)
--------- --------- ---------
Total deferred.............................. (2,476) (1,328) (21,285)
--------- --------- ---------
Total provision................................. 12,900 5,900 (9,000)
Tax benefit of extraordinary
item--extinguishment of debt.................. -- 13,400 --
--------- --------- ---------
Total provision before extraordinary item....... $ 12,900 $ 19,300 $ (9,000)
--------- --------- ---------
--------- --------- ---------
</TABLE>
The effective tax rate on income before extraordinary items was 40.4%,
41.4%, and (36.0%) in 1997, 1996 and 1995, respectively. The difference between
the effective rate and the U.S. federal income tax statutory rate of 35% is
accounted for as follows (in thousands):
<TABLE>
<CAPTION>
1997 1996 1995
--------- --------- ---------
<S> <C> <C> <C>
Tax on earnings before provision for income tax and
extraordinary item at statutory rates......................... $ 11,163 $ 16,335 $ 8,742
Add (subtract) tax effect of:
State income taxes, net of federal tax benefit................ 2,258 3,163 2,973
Change in valuation allowance................................. -- -- (19,792)
Other, net.................................................... (521) (198) (923)
--------- --------- ---------
Income tax provision............................................ $ 12,900 $ 19,300 $ (9,000)
--------- --------- ---------
--------- --------- ---------
</TABLE>
F-39
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND YEARS (52 WEEKS) ENDED MARCH 28, 1996
AND MARCH 30, 1995
NOTE 7--INCOME TAXES (CONTINUED)
The significant components of deferred income tax assets and liabilities as
of April 3, 1997 and March 28, 1996 are as follows (in thousands):
<TABLE>
<CAPTION>
1997 1996
---------------------- ----------------------
DEFERRED INCOME TAX DEFERRED INCOME TAX
---------------------- ----------------------
ASSETS LIABILITIES ASSETS LIABILITIES
--------- ----------- --------- -----------
Accrued reserves and liabilities.................. $ 9,189 $ 179 $ 5,323 $ 343
<S> <C> <C> <C> <C>
Investments in partnerships....................... -- 495 -- 419
Capital lease obligations......................... 11,464 -- 10,852 --
Depreciation...................................... 5,587 -- 7,842 --
Deferred rents.................................... 6,254 -- 5,266 --
Other............................................. 550 2,181 683 1,491
--------- ----------- --------- -----------
Total............................................. 33,044 2,855 29,966 2,253
Less: Current deferred income taxes............... 6,586 210 3,702 495
--------- ----------- --------- -----------
Total noncurrent deferred income taxes............ $ 26,458 $ 2,645 $ 26,264 $ 1,758
--------- ----------- --------- -----------
--------- ----------- --------- -----------
Net noncurrent deferred income taxes.............. $ 23,813 $ 24,506
--------- ---------
--------- ---------
</TABLE>
SFAS 109 requires that a valuation allowance be provided against deferred
tax assets if, based on the weight of available evidence, it is more likely than
not that some or all of the deferred tax assets will not be realized. Based upon
positive earnings in recent years and the expectation that taxable income will
continue for the foreseeable future, management believes it is more likely than
not that the Company will realize its deferred tax assets and, accordingly, no
valuation allowance has been provided as of April 3, 1997 and March 28, 1996.
NOTE 8--LEASES
The majority of the Company's operations are conducted in premises occupied
under lease agreements with base terms ranging generally from 15 to 25 years,
with certain leases containing options to extend the leases for up to an
additional 20 years. The leases provide for fixed rentals and/or rentals based
on revenues with a guaranteed minimum. The Company also leases certain equipment
under leases expiring at various dates. The majority of the leases provide that
the Company will pay all, or substantially all, taxes, maintenance, insurance
and certain other operating expenses. Assets held under capital lease
obligations are included in property. Performance under some leases has been
guaranteed by DI.
F-40
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND YEARS (52 WEEKS) ENDED MARCH 28, 1996
AND MARCH 30, 1995
NOTE 8--LEASES (CONTINUED)
Following is a schedule, by year, of future minimum rental payments required
under existing operating leases that have initial or remaining non-cancellable
terms in excess of one year as of April 3, 1997 (in thousands):
<TABLE>
<S> <C>
1998........................................................... $ 68,551
1999........................................................... 69,070
2000........................................................... 68,406
2001........................................................... 66,388
2002........................................................... 63,748
Thereafter..................................................... 722,341
----------
Total minimum payments required.............................. $1,058,504
----------
----------
</TABLE>
The Company has entered into agreements to lease space for the operation of
theatres not yet fully constructed. The scheduled completion of construction and
theatre openings are at various dates during fiscal 1998. The future minimum
rental payments required under the terms of these leases total approximately
$429 million.
In addition, the Company entered into a master lease agreement during fiscal
1997 for three theatres with an expected cost of approximately $81 million.
Rental amounts will be based on the final construction costs of the theatres and
the lessor's cost of funds and will be finalized as the theatres open. The
initial lease term under the agreement will be three years. The master lease
agreement provides for a substantial residual value guarantee by the Company and
includes purchase and renewal options. The Company expects these leases to be
classified as operating leases.
The Company records rent expense on a straight-line basis over the term of
the lease. Included in long-term liabilities as of April 3, 1997 and March 28,
1996 is $16,278,000 and $12,858,000, respectively, of deferred rent representing
pro rata future minimum rental payments for leases with scheduled rent
increases.
Rent expense is summarized as follows (in thousands):
<TABLE>
<CAPTION>
1997 1996 1995
--------- --------- ---------
<S> <C> <C> <C>
Minimum rentals................................ $ 80,670 $ 64,657 $ 59,790
Percentage rentals based on revenues........... 2,008 2,354 1,970
--------- --------- ---------
$ 82,678 $ 67,011 $ 61,760
--------- --------- ---------
--------- --------- ---------
</TABLE>
NOTE 9--EMPLOYEE BENEFIT PLANS
The Company sponsors a non-contributory defined benefit pension plan
covering, after a minimum of one year of employment, all employees age 21 or
older, who have completed 1,000 hours of service in their first twelve months of
employment or in a calendar year and who are not covered by a collective
bargaining agreement.
F-41
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND YEARS (52 WEEKS) ENDED MARCH 28, 1996
AND MARCH 30, 1995
NOTE 9--EMPLOYEE BENEFIT PLANS (CONTINUED)
The plan calls for benefits to be paid to eligible employees at retirement
based primarily upon years of credited service with the Company (not exceeding
thirty-five) and the employee's highest five year average compensation.
Contributions to the plan reflect benefits attributed to employees' services to
date, as well as services expected to be earned in the future. Plan assets are
invested in a group annuity contract with an insurance company pursuant to which
the plan's benefits are paid to retired and terminated employees and the
beneficiaries of deceased employees.
The following table sets forth the plan's funded status as of December 31,
1996 and 1995 (plan valuation dates) and the amounts included in the
Consolidated Balance Sheets as of April 3, 1997 and March 28, 1996 (in
thousands):
<TABLE>
<CAPTION>
1997 1996
--------- ---------
<S> <C> <C>
Actuarial present value of accumulated benefit obligation, including
vested benefits of $11,139 and $10,041................................. $ 11,309 $ 10,205
--------- ---------
--------- ---------
Projected benefit obligation for service rendered to date................ $ 18,489 $ 17,051
Plan assets at fair value................................................ (10,857) (9,580)
--------- ---------
Projected benefit obligation in excess of plan assets.................... 7,632 7,471
Unrecognized net loss from past experience different from that assumed
and effects of changes in assumptions.................................. (686) (1,509)
Unrecognized net obligation upon adoption being recognized over 15
years.................................................................. (1,411) (1,588)
--------- ---------
Pension liability........................................................ $ 5,535 $ 4,374
--------- ---------
--------- ---------
</TABLE>
Net pension expense includes the following components (in thousands):
<TABLE>
<CAPTION>
1997 1996 1995
--------- --------- ---------
<S> <C> <C> <C>
Service cost....................................... $ 1,191 $ 855 $ 1,261
Interest cost...................................... 1,188 966 971
Actual return on plan assets....................... (1,218) (1,630) 55
Net amortization and deferral...................... 563 1,096 (190)
--------- --------- ---------
Net pension expense................................ $ 1,724 $ 1,287 $ 2,097
--------- --------- ---------
--------- --------- ---------
</TABLE>
The Company also sponsors a non-contributory Supplemental Executive
Retirement Plan (the "SERP") which provides certain employees additional pension
benefits. The actuarial present value of accumulated plan benefits related to
the SERP was $569,000 and $379,000 as of April 3, 1997 and March 28, 1996,
respectively, which is reflected in the Consolidated Balance Sheets.
The weighted average discount rate used to measure the plans' projected
benefit obligations was 7.0% for 1997 and 1996 and 7.75% in 1995. The rate of
increase in future compensation levels was 6.0% for 1997, 1996 and 1995 and the
expected long-term rate of return on assets was 8.5% for 1997, 1996 and 1995. A
limited number of employees are covered by collective bargaining agreements
under which payments are made to a union-administered fund.
F-42
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND YEARS (52 WEEKS) ENDED MARCH 28, 1996
AND MARCH 30, 1995
NOTE 9--EMPLOYEE BENEFIT PLANS (CONTINUED)
The Company sponsors a voluntary thrift savings plan covering the same
employees eligible for the pension plan. Since inception of the savings plan,
the Company has matched 50% of each eligible employee's elective contributions,
limited to 3% of the employee's salary.
The Company's expense under the thrift savings plan was $1,270,000,
$1,032,000 and $1,015,000 for 1997, 1996 and 1995, respectively.
The Company currently offers eligible retirees the opportunity to
participate in a health plan (medical and dental) and a life insurance plan.
Substantially all employees may become eligible for these benefits provided that
the employee must be at least 55 years of age and have 15 years of credited
service at retirement. The health plan is contributory, with retiree
contributions adjusted annually; the life insurance plan is noncontributory. The
accounting for the health plan anticipates future modifications to the
cost-sharing provisions to provide for retiree premium contributions of
approximately 20% of total premiums, increases in deductibles and co-insurance
at the medical inflation rate and coordination with Medicare. Retiree health and
life insurance plans are not funded. The Company is amortizing the transition
obligation on the straight-line method over a period of 20 years.
The following table sets forth the plans' accumulated postretirement benefit
obligation reconciled with the amounts included in the Consolidated Balance
Sheets as of April 3, 1997 and March 28, 1996 (in thousands):
<TABLE>
<CAPTION>
1997 1996
--------- ---------
<S> <C> <C>
Accumulated postretirement benefit obligation:
Retirees................................................................. $ 618 $ 557
Fully eligible active plan participants.................................. 513 438
Other active plan participants........................................... 1,777 1,292
--------- ---------
Accumulated postretirement benefit obligation.............................. 2,908 2,287
Unrecognized net obligation upon adoption being recognized over 20 years... (697) (747)
Unrecognized gain (loss)................................................... (190) 105
--------- ---------
Postretirement benefit liability........................................... $ 2,021 $ 1,645
--------- ---------
--------- ---------
</TABLE>
Postretirement expense includes the following components (in thousands):
<TABLE>
<CAPTION>
1997 1996 1995
----------- ----------- -----------
<S> <C> <C> <C>
Service cost........................................... $ 199 $ 192 $ 188
Interest cost.......................................... 172 208 202
Net amortization and deferral.......................... 50 66 66
----- ----- -----
Postretirement expense................................. $ 421 $ 466 $ 456
----- ----- -----
----- ----- -----
</TABLE>
For measurement purposes, the annual rate of increase in the per capita cost
of covered health care benefits assumed for 1997 was 7.5% for medical and 4.75%
for dental. The rates were assumed to decrease gradually to 5.0% for medical and
3.0% for dental at 2020 and remain at that level thereafter. The health care
cost trend rate assumption has a significant effect on the amounts reported.
Increasing
F-43
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND YEARS (52 WEEKS) ENDED MARCH 28, 1996
AND MARCH 30, 1995
NOTE 9--EMPLOYEE BENEFIT PLANS (CONTINUED)
the assumed health care cost trend rates by one percentage point in each year
would increase the accumulated postretirement benefit obligation as of April 3,
1997 by $862,000 and the aggregate of the service and interest cost components
of postretirement expense for 1997 by $164,000. The weighted-average discount
rate used in determining the accumulated postretirement benefit obligation was
7.0% for 1997 and 1996 and 7.75% for 1995.
NOTE 10--CONTINGENCIES
The Company, in the normal course of business, is party to various legal
actions. Management believes that the potential exposure, if any, from such
matters would not have a material adverse effect on the financial condition,
cash flows or results of operations of the Company.
NOTE 11--FUTURE DISPOSITION OF ASSETS
The Company has provided reserves for estimated losses from discontinuing
the operation of fast food restaurants, for theatres which have been or are
expected to be closed and for other future dispositions of assets.
In conjunction with the opening of certain new theatres in fiscal 1986
through 1988, the Company expanded its food services by leasing additional space
adjacent to those theatres to operate specialty fast food restaurants. The
Company discontinued operating the restaurants due to unprofitability. The
Company continues to sub-lease or to convert to other uses the space leased for
these restaurants. The Company is obligated under long-term lease commitments
with remaining terms of up to eleven years. As of April 3, 1997, the base rents
aggregate approximately $779,000 annually, and $7,150,000 over the remaining
term of the leases. As of April 3, 1997, the Company has subleased approximately
55% of the space with remaining terms ranging from 2 months to 68 months.
Non-cancellable subleases currently aggregate approximately $496,000 annually,
and $4,216,000 over the remaining term of the subleases.
NOTE 12--TRANSACTIONS WITH DURWOOD, INC.
The Company and DI maintain intercompany accounts. Charges to the
intercompany accounts include the allocation of AMC general and administrative
expense of $116,000 in 1996 and 1995 and payments made by AMC on behalf of DI.
There were no general and administrative allocations in 1997. DI and non-AMCE
subsidiaries owed the Company $181,000 and $795,000 as of April 3, 1997 and
March 28, 1996, respectively.
The Board of Directors has approved an agreement (the "Merger Agreement")
providing for the Merger of the Company and DI, with the Company remaining as
the surviving entity. The Merger has been sought by members of the Durwood
family so that they may hold their interests in the Company directly instead of
indirectly through DI and a related entity. In the Merger, stockholders of DI
would exchange their shares of DI stock for shares of the Company's stock.
Although the outstanding shares of the Company's Common Stock will increase and
the outstanding shares of its Class B Stock will decrease if the Merger is
effected, no aggregate increase in total outstanding shares will occur because
the shares of the Company owned by DI will be canceled and the shares of the
Company held by other stockholders would not be exchanged in the Merger. A
condition to the Merger is that the Merger
F-44
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEAR (53 WEEKS) ENDED APRIL 3, 1997 AND YEARS (52 WEEKS) ENDED MARCH 28, 1996
AND MARCH 30, 1995
NOTE 12--TRANSACTIONS WITH DURWOOD, INC. (CONTINUED)
Agreement receive approval of the holders of a majority of the shares of Common
Stock other than DI, the Durwood family, their spouses and children and officers
and directors of the Company.
DI is primarily a holding company with no significant operations or assets
other than its equity interest in the Company. Management expects that the
Merger will be accounted for as a corporate reorganization and that,
accordingly, the recorded balances for consolidated assets, liabilities, total
stockholders' equity and results of operations of the Company would not be
affected. If the Merger occurs, the Company will be responsible for paying 50%
of its costs in connection with the Merger; the aggregate merger costs for both
the Company and DI are estimated to be approximately $2 million. Management does
not believe that the transaction will have a significant effect on the Company's
financial condition, liquidity or capital resources.
NOTE 13--FAIR VALUE OF FINANCIAL INSTRUMENTS
The following methods and assumptions were used to estimate the fair value
of each class of financial instruments for which it was practicable to estimate
that value.
The carrying value of cash and equivalents and investments in debt
securities approximates fair value because of the short duration of those
instruments. The fair value of publicly held corporate borrowings was based upon
quoted market prices. For other corporate borrowings, the fair value was based
upon rates available to the Company from bank loan agreements or rates based
upon the estimated premium over U.S. treasury notes with similar average
maturities.
The estimated fair values of the Company's financial instruments are as
follows (in thousands):
<TABLE>
<CAPTION>
1997 1996
-------------------- --------------------
CARRYING FAIR CARRYING FAIR
AMOUNT VALUE AMOUNT VALUE
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Financial assets:
Cash and equivalents........... $ 24,715 $ 24,715 $ 10,795 $ 10,795
Financial liabilities:
Cash overdrafts................ $ 11,175 $ 11,175 $ 22,848 $ 22,848
Corporate borrowings........... 315,072 315,804 126,150 126,992
</TABLE>
F-45
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
STATEMENTS OF OPERATIONS BY QUARTER
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
JUNE 27, JUNE 29, SEPT. 26, SEPT. 28, DEC. 26, DEC. 28, APRIL 3, MARCH 28,
1996 1995 1996 1995 1996 1995 1997(3) 1996
--------- --------- ----------- ----------- --------- --------- --------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Total revenues............... $ 161,927 $ 153,409 $ 202,436 $ 184,482 $ 163,192 $ 154,970 $ 222,042 $ 163,111
Total cost of operations..... 132,821 118,738 155,593 135,497 130,464 118,252 161,124 118,871
General and administrative... 13,025 11,085 11,647 14,497 13,910 11,437 18,065 15,040
Depreciation and
amortization............... 11,674 9,972 12,740 10,471 13,129 10,399 22,260(2) 13,044(1)
--------- --------- ----------- ----------- --------- --------- --------- -----------
Operating income............. 4,407 13,614 22,456 24,017 5,689 14,882 20,593 16,156
Interest expense............. 4,909 8,309 4,852 8,318 5,275 7,883 6,986 4,318
Investment income............ 182 2,226 139 2,440 343 1,958 192 428
Gain (loss) on disposition of
assets..................... 18 (15) (49) (123) (53) 159 -- (243)
--------- --------- ----------- ----------- --------- --------- --------- -----------
Earnings (loss) before income
taxes and extraordinary
item....................... (302) 7,516 17,694 18,016 704 9,116 13,799 12,023
Income tax provision......... (125) 3,100 7,125 7,400 285 3,800 5,615 5,000
--------- --------- ----------- ----------- --------- --------- --------- -----------
Earnings (loss) before
extraordinary item......... (177) 4,416 10,569 10,616 419 5,316 8,184 7,023
Extraordinary item--Loss on
extinguishment of debt (net
of income tax benefit of
$13,400)................... -- -- -- -- -- (19,350) -- --
--------- --------- ----------- ----------- --------- --------- --------- -----------
Net earnings (loss).......... $ (177) $ 4,416 $ 10,569 $ 10,616 $ 419 $ (14,034) $ 8,184 $ 7,023
--------- --------- ----------- ----------- --------- --------- --------- -----------
--------- --------- ----------- ----------- --------- --------- --------- -----------
Preferred dividends.......... 1,546 1,750 1,454 1,750 1,454 1,750 1,453 1,750
--------- --------- ----------- ----------- --------- --------- --------- -----------
Net earnings (loss) for
common shares.............. $ (1,723) $ 2,666 $ 9,115 $ 8,866 $ (1,035) $ (15,784) $ 6,731 $ 5,273
--------- --------- ----------- ----------- --------- --------- --------- -----------
--------- --------- ----------- ----------- --------- --------- --------- -----------
Earnings (loss) per share
before extraordinary item:
Primary.................... $ (.10) $ .16 $ .51 $ .53 $ (.06) $ .21 $ .38 $ .31
--------- --------- ----------- ----------- --------- --------- --------- -----------
--------- --------- ----------- ----------- --------- --------- --------- -----------
Fully diluted.............. $ (.10) $ .16 $ .44 $ .45 $ (.06) $ .21 $ .34 $ .29
--------- --------- ----------- ----------- --------- --------- --------- -----------
--------- --------- ----------- ----------- --------- --------- --------- -----------
Earnings (loss) per share:
Primary.................... $ (.10) $ .16 $ .51 $ .53 $ (.06) $ (.93) $ .38 $ .31
--------- --------- ----------- ----------- --------- --------- --------- -----------
--------- --------- ----------- ----------- --------- --------- --------- -----------
Fully diluted.............. $ (.10) $ .16 $ .44 $ .45 $ (.06) $ (.93) $ .34 $ .29
--------- --------- ----------- ----------- --------- --------- --------- -----------
--------- --------- ----------- ----------- --------- --------- --------- -----------
<CAPTION>
FISCAL YEAR
--------------------
1997(3) 1996
--------- ---------
<S> <C> <C>
Total revenues............... $ 749,597 $ 655,972
Total cost of operations..... 580,002 491,358
General and administrative... 56,647 52,059
Depreciation and
amortization............... 59,803 43,886
--------- ---------
Operating income............. 53,145 68,669
Interest expense............. 22,022 28,828
Investment income............ 856 7,052
Gain (loss) on disposition of
assets..................... (84) (222)
--------- ---------
Earnings (loss) before income
taxes and extraordinary
item....................... 31,895 46,671
Income tax provision......... 12,900 19,300
--------- ---------
Earnings (loss) before
extraordinary item......... 18,995 27,371
Extraordinary item--Loss on
extinguishment of debt (net
of income tax benefit of
$13,400)................... -- (19,350)
--------- ---------
Net earnings (loss).......... $ 18,995 $ 8,021
--------- ---------
--------- ---------
Preferred dividends.......... 5,907 7,000
--------- ---------
Net earnings (loss) for
common shares.............. $ 13,088 $ 1,021
--------- ---------
--------- ---------
Earnings (loss) per share
before extraordinary item:
Primary.................... $ .74 $ 1.21
--------- ---------
--------- ---------
Fully diluted.............. $ .73 $ 1.20
--------- ---------
--------- ---------
Earnings (loss) per share:
Primary.................... $ .74 $ .06
--------- ---------
--------- ---------
Fully diluted.............. $ .73 $ .06
--------- ---------
--------- ---------
</TABLE>
- --------------
(1) During the fourth quarter of 1996, the Company adopted Statement of
Financial Accounting Standards No. 121 ("SFAS 121"), ACCOUNTING FOR THE
IMPAIRMENT OF LONG-LIVED ASSETS AND FOR LONG-LIVED ASSETS TO BE DISPOSED OF.
As a result, the Company recognized an impairment loss under SFAS 121 of
$1,799.
(2) During the fourth quarter of 1997, the Company recognized an impairment loss
under SFAS 121 of $7,231.
(3) Fiscal year 1997 consists of 53 weeks and the fiscal quarter ended April 3,
1997 consists of 14 weeks.
F-46
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO
WHICH IT RELATES OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY SUCH
SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED
HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Available Information.............................. 1
Prospectus Summary................................. 2
Risk Factors....................................... 15
The Company........................................ 25
Use of Proceeds.................................... 28
Capitalization..................................... 29
Distributions...................................... 30
Dilution........................................... 32
The Company's Selected Financial Information....... 33
The Company's Management's Discussion and Analysis
of Financial Condition and Results of
Operations....................................... 35
Business of the Company and its Properties......... 38
Leases............................................. 54
Management......................................... 59
AMC Entertainment Inc.............................. 67
Certain Relationships and Transactions............. 81
Policies and Objectives with Respect to Certain
Activities....................................... 82
Conflicts of Interest.............................. 84
The Formation Transactions......................... 86
Principal Shareholders of the Company.............. 88
Relationship Between AMCE and the Company after the
Formation Transactions........................... 88
Description of Shares of Beneficial Interest....... 90
Provisions of Maryland Law and of the Company's
Declaration of Trust and Bylaws.................. 93
Shares Available for Future Sale................... 96
Federal Income Tax Consequences.................... 97
Underwriting....................................... 108
Experts............................................ 109
Validity of Shares................................. 109
Incorporation by Reference......................... 110
Glossary........................................... 111
Index to Financial Statements...................... F-1
</TABLE>
------------------
THROUGH AND INCLUDING, , 1997 (THE 25TH DAY AFTER THE DATE OF
THIS PROSPECTUS), ALL DEALERS EFFECTING TRANSACTIONS IN THE SHARES, WHETHER OR
NOT PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS.
THIS IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN
ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR
SUBSCRIPTIONS.
13,800,000 SHARES
ENTERTAINMENT PROPERTIES TRUST
COMMON SHARES OF
BENEFICIAL INTEREST
(PAR VALUE $.01 PER SHARE)
---------------------
PROSPECTUS
---------------------
GOLDMAN, SACHS & CO.
MORGAN STANLEY DEAN WITTER
FURMAN SELZ
PRUDENTIAL SECURITIES INCORPORATED
SALOMON BROTHERS INC
REPRESENTATIVES OF THE UNDERWRITERS
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 31. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table itemizes the expenses incurred by the Company in
connection with the offering of the shares being registered. All the amounts
shown are estimates (other than the SEC registration fee and the NASD fee).
<TABLE>
<CAPTION>
AMOUNT
----------
<S> <C>
SEC registration fee........................................... $ 100,145
NASD fee....................................................... 30,500
New York Stock Exchange listing fee............................ 85,000
Printing and engraving fees.................................... 250,000
Legal fees and expenses (other than Blue Sky).................. 800,000
Accounting fees and expenses................................... 100,000
Blue Sky fees and expenses (including fees of counsel)......... 10,000
Other (including expenses related to the Formation
Transactions)................................................ 624,355
----------
Total...................................................... $2,000,000
----------
----------
</TABLE>
ITEM 32. SALES TO SPECIAL PARTIES.
See Item 33.
ITEM 33. RECENT SALES OF UNREGISTERED SECURITIES.
On August 28, 1997, the Company issued 50 shares of Common Stock to Robert
L. Harris and 50 shares of Common Stock to David M. Brain at a purchase price of
$20.00 per share. Such shares were issued in a transaction exempt from
registration pursuant to Section 4(2) of the Securities Act of 1933 as they were
issued in a transaction not involving any public offering. In addition, Robert
L. Harris and David M. Brain agreed to purchase an aggregate of 120,000 Shares
pursuant to the Company's Share Purchase Program. Such Shares will be issued to
the two officers pursuant to the exemption provided by Section 4(2) of the
Securities Act as they were issued in a transaction not involving any public
offering. The opportunity to purchase such Shares was not made to any person
other than Mr. Harris and Mr. Brain and the agreement by such officers to
purchase such Shares was made prior to the filing of the Registration Statement
on September 10, 1997. Both Mr. Harris and Mr. Brain are "accredited investors"
and "executive officers" as defined in Rule 501 in Regulation D under the
Securities Act.
ITEM 34. INDEMNIFICATION OF TRUSTEES AND OFFICERS.
Maryland law permits a Maryland corporation to include in its declaration of
trust a provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages except for liability
resulting from (a) actual receipt of an improper benefit or profit in money,
property or services or (b) active and deliberate dishonesty established by a
final judgment as being material to the cause of action. The Company's
declaration of trust contains such a provision which eliminates such liability
to the maximum extent permitted by Maryland law.
The Company's officers and trustees are and will be indemnified under the
Company's declaration of trust against certain liabilities. The Company's
declaration of trust provides that the Company will, to
II-1
<PAGE>
the maximum extent permitted by Maryland law in effect from time to time,
indemnify (a) any individual who is a present or former trustee or officer of
the Company or (b) any individual who, while a trustee or officer of the Company
and at the request of the Company, serves or has served as a director, officer,
shareholder, partner, trustee, employee or agent of any real estate investment
trust corporation, partnership, joint venture, trust, employee benefit plan or
any other enterprise from and against any claim or liability, together with
reasonable expenses actually incurred in advance of a final disposition of a
legal proceeding, to which such person may become subject or which such person
may incur by reason as his or her status as such. The Company has the power,
with the approval of the Company's Board of Trustees, to provide such
indemnification and advancement of expenses to a person who served a predecessor
of the Company in any of the capacities described in (a) or (b) above and to any
employee or agent of the Company or its predecessors.
Maryland law permits a Maryland real estate investment trust to indemnify
and advance expenses to its trustees, officers, employees and agents to the same
extent as permitted by the Maryland General Corporation Law ("MGCL") for
directors, officers, employees and agents of a Maryland corporation. The MGCL
requires a corporation (unless its charter provides otherwise, which the
Company's declaration of trust does not) to indemnify a director or officer who
has been successful, on the merits or otherwise, in the defense of any
proceeding to which he or she is made a party by reason of his or her service in
that capacity. The MGCL permits a corporation to indemnify its present and
former directors and officers, among others, against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by them in
connection with any proceeding to which they may be made a party by reason of
their service in those or other capacities unless it is established that (a) the
act or omission of the director or officer was material to the matter giving
rise to the proceeding and (i) was committed in bad faith or (ii) was the result
of active and deliberate dishonesty, (b) the director or officer actually
received an improper personal benefit in money, property or services or (c) in
the case of any criminal proceeding, the director or officer had reasonable
cause to believe that the act or omission was unlawful. However, under the MGCL,
a Maryland corporation may not indemnify for an adverse judgment in a suit by or
in the right of the corporation or for a judgment of liability on the basis that
personal benefit was improperly received, unless in either case a court orders
indemnification and then only for expenses. In addition, the MGCL permits a
corporation to advance reasonable expenses to a director or officer upon the
corporation's receipt of (a) a written affirmation by the director or officer of
his or her good faith belief that he or she has met the standard of conduct
necessary for indemnification by the corporation and (b) a written undertaking
by or on his or her behalf to repay the amount paid or reimbursed by the
corporation if it shall ultimately be determined that the standard of conduct
was not met.
The Company has entered into indemnity agreements with each of its officers
and trustees which provide for reimbursement of all expenses and liabilities of
such officer or trustee, arising out of any lawsuit or claim against such
officer or trustee due to the fact that he or she was or is serving as an
officer or trustee, except for such liabilities and expenses (a) the payment of
which is judicially determined to be unlawful, (b) relating to claims under
Section 16(b) of the Exchange Act or (c) relating to judicially determined
criminal violations.
AMC Entertainment Inc. is incorporated in Delaware. Under the General
Corporation Law of the State of Delaware, a corporation has the power, under
specified circumstances, to indemnify its directors, officers, employees and
agents in connection with actions, suits or proceedings brought against them by
a third party or in the right of the corporation, by reason of the fact that
they were or are such directors, officers, employees or agents, against expenses
incurred in any such action, suit or proceeding. AMCE's certificate of
incorporation requires indemnification of directors and officers to the full
extent permitted by the Delaware General Corporation Law and provides that, in
any action by a claimant, AMCE shall bear the burden of proof that the claimant
is not entitled to Indemnification.
The Delaware General Corporation law also provides that a certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director provided that such provision
shall not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the
II-2
<PAGE>
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 (relating to liability for unauthorized acquisitions or redemptions
of, dividends on, capital stock) of the Delaware General Corporation Law, or
(iv) for any transaction from which the director derived an improper personal
benefit. The Certificate of Incorporation of AMCE contains the provisions
permitted by the Delaware General Corporation Law.
The form of Underwriting Agreement filed as an exhibit to this Registration
Statement provides for the reciprocal indemnifications by the Underwriters of
the Company and AMCE, and their trustees, officers and controlling persons, and
by the Company and AMCE of the Underwriters, and their respective directors,
officers and controlling persons, against certain liabilities under the
Securities Act.
ITEM 35. TREATMENT OF PROCEEDS FROM STOCK BEING REGISTERED.
The consideration to be received by the Company for the shares registered
will be credited to the appropriate capital account.
ITEM 36. FINANCIAL STATEMENTS AND EXHIBITS.
See Index to Financial Statements and Index to Exhibits.
ITEM 37. UNDERTAKINGS.
The undersigned Company hereby undertakes to provide to the underwriters at
the closing specified in the underwriting agreements, certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrants pursuant to the foregoing provisions, or otherwise, the Registrants
have been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by a Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The Registrants hereby undertake that: (1) for purposes of determining any
liability under the Securities Act, the information omitted from the form of
prospectus filed as part of this Registration Statement in reliance upon Rule
430A and contained in a form of prospectus filed by the Registrants pursuant to
Rule 424(b)(1) or (4), or 497(h) under the Securities Act shall be deemed to be
part of this Registration Statement as of the time it was declared effective;
and (2) for the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus shall be deemed
to be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
AMCE hereby undertakes that, for purposes of determining any liability under
the Securities Act, each filing of AMCE's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-11 AND HAS DULY CAUSED THIS AMENDMENT TO THE
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF KANSAS CITY, STATE OF MISSOURI, ON THE 11th DAY
OF NOVEMBER, 1997.
<TABLE>
<S> <C> <C>
ENTERTAINMENT PROPERTIES TRUST
By: /s/ DAVID M. BRAIN
-----------------------------------------
</TABLE>
Pursuant to requirements of the Securities Act of 1933, this Amendment to
the Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
* Chairman of the Board of
- ------------------------------ Trustees (Principal November 11, 1997
PETER C. BROWN Executive Officer)
* President, Chief
- ------------------------------ Development Officer and November 11, 1997
ROBERT L. HARRIS Trustee
/s/ DAVID M. BRAIN Chief Financial Officer
- ------------------------------ (Principal Financial and November 11, 1997
DAVID M. BRAIN Accounting Officer)
*By: /s/ DAVID M. BRAIN
-------------------------
DAVID M. BRAIN
II-4
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter C. Brown his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments or post-effective amendments to this Registration Statement,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite or necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his/her substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, AMC
Entertainment Inc. has duly caused this Amendment to the Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Kansas City and the State of Missouri, on the th of November, 1997.
<TABLE>
<S> <C> <C>
AMC ENTERTAINMENT INC.
By: /s/ PETER C. BROWN
-----------------------------------------
Peter C. Brown
PRESIDENT AND CHIEF FINANCIAL OFFICER
</TABLE>
II-5
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
/s/ STANLEY H. DURWOOD Chairman of the Board,
- ------------------------------ Chief Executive Officer November 11, 1997
Stanley H. Durwood and Director
- ------------------------------ Director November , 1997
Paul E. Vardeman
/s/ CHARLES J. EGAN, JR.
- ------------------------------ Director November 11, 1997
Charles J. Egan, Jr.
/s/ WILLIAM T. GRANT, II
- ------------------------------ Director November 11, 1997
William T. Grant, II
/s/ JOHN P. MASCOTTE
- ------------------------------ Director November 11, 1997
John P. Mascotte
/s/ PETER C. BROWN President and Chief
- ------------------------------ Financial Officer-- November 11, 1997
Peter C. Brown Director
/s/ PHILIP M. SINGLETON Executive Vice President
- ------------------------------ and Chief Operating November 11, 1997
Philip M. Singleton Officer and Director
/s/ RICHARD L. OBERT Senior Vice President and
- ------------------------------ Chief Accounting and November 11, 1997
Richard L. Obert Information Officer
II-6
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DOCUMENT DESCRIPTION
- ------------- -----------------------------------------------------------------------------
<S> <C>
1+ Form of Underwriting Agreement among Entertainment Properties Trust (the
"Company") and Goldman, Sachs & Co., Morgan Stanley & Co. Incorporated,
Furman Selz LLC, Prudential Securities Incorporated and Salomon Brothers
Inc, as representatives of the several underwriters named therein
2.1 Agreement and Plan of Merger dated as of March 31, 1997 between AMC
Entertainment Inc. and Durwood, Inc. (Incorporated by reference from
Exhibit 2.1 to AMCE's Registration Statement on Form S-4 (File No.
333-25755) filed April 24, 1997).
2.2 Stock Agreement among AMC Entertainment Inc. and Stanley H. Durwood, his
children: Carol D. Journagan, Edward D. Durwood, Thomas A. Durwood, Elissa
D. Grodin, Brian H. Durwood and Peter J. Durwood ("the Durwood Children").
The Thomas A. and Barbara F. Durwood Family Investment Partnership (the
"TBD Partnership") and Delta Properties, Inc. (Incorporated by reference
from Exhibit 99.3 to Amendment No. 2 to Schedule 13D of Stanley H. Durwood
filed September 30, 1997).
2.3 Registration Agreement among AMC Entertainment Inc. and the Durwood Children
and Delta Properties, Inc. (Incorporated by reference from Exhibit 99.2 to
Amendment No. 2 to Schedule 13D of Stanley H. Durwood filed September 30,
1997).
2.4(a) Indemnification Agreement dated as of March 31, 1997 among AMC Entertainment
Inc., Stanley H. Durwood, the Durwood Children and Delta Properties, Inc.
(Incorporated by reference from Exhibit 2.4(a) to AMCE's Registration
Statement on Form S-4 (File No. 333-25755) filed April 24, 1997).
2.4(b) Durwood Family Settlement Agreement dated as of January 22, 1996 among
Stanley H. Durwood and the Durwood Children (Incorporated by reference from
Exhibit 99.1 to Schedule 13-D of Durwood, Inc. and Stanley H. Durwood filed
May 7, 1996).
2.4(c) First Amendment to Durwood Family Settlement Agreement dated as of March 18,
1997 among Stanley H. Durwood and the Durwood Children (Incorporated by
reference from Exhibit 2.4(c) to AMCE's Registration Statement on Form S-4
(File No. 333-25755) filed April 24, 1997).
2.4(d) Second Amendment to Durwood Family Settlement Agreement dated as of August
15, 1997, among Stanley H. Durwood, the Durwood Children and the TBD
Partnership (Incorporated by reference from Exhibit 99.7 to Amendment No. 2
to Schedule 13D of Stanley H. Durwood filed September 30, 1997.)
2.5 Articles of Merger dated March 31, 1994 between American Multi-Cinema, Inc.
and its wholly-owned subsidiaries Cinema Enterprises, Inc. and Cinema
Enterprises II, Inc. and related Plan and Agreement of Liquidation and
Merger (Incorporated by reference from Exhibit 2 to AMCE's Form 10-K (File
No. 1-8747) for fiscal year ended March 31, 1994).
2.6 Stock Purchase, Release and Settlement Agreement dated January 10, 1997
between American Multi-Cinema, Inc. and H. Donald Busch respecting AMC
Philadelphia, Inc. (Incorporated by reference from Exhibit 2.1 to AMCE's
Form 10-Q (File No. 0-12429) for the quarter ended December 26, 1996).
2.7(a) Plan and Agreement of Liquidation and Merger dated March 31, 1997 between AMC
Realty, Inc. and its subsidiary, AMC Canton Realty, Inc. (Incorporated by
reference from Exhibit 2.7(a) to AMCE's Registration Statement on Form S-4
(File No. 333-25755) filed April 24, 1997).
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DOCUMENT DESCRIPTION
- ------------- -----------------------------------------------------------------------------
<S> <C>
2.7(b) Certificate of Ownership and Merger dated March 31, 1997 between AMC Realty,
Inc. and its subsidiary, AMC Canton Realty, Inc. (Incorporated by reference
from Exhibit 2.7(b) to AMCE's Registration Statement on Form S-4 (File No.
333-25755) filed April 24, 1997).
2.8(a) Plan and Agreement of Liquidation and Merger dated March 31, 1997 between AMC
Philadelphia, Inc. and its subsidiary Budco Theatres, Inc. (Incorporated by
reference from Exhibit 2.8(a) to AMCE's Registration Statement on Form S-4
(File No. 333-25755) filed April 24, 1997).
2.8(b) Certificate of Ownership and Merger dated March 31, 1997 between AMC
Philadelphia, Inc. and its subsidiary, Budco Theatres, Inc. (Delaware)
(Incorporated by reference from Exhibit 2.8(b) to AMCE's Registration
Statement on Form S-4 (File No. 333-25755) filed April 24, 1997).
2.8(c) Articles of Merger dated March 31, 1997 between AMC Philadelphia, Inc. and
Budco Theatres, Inc. (Pennsylvania) (Incorporated by reference from Exhibit
2.8(c) to AMCE's Registration Statement on Form S-4 (File No. 333-25755)
filed April 24, 1997).
2.9(a) Plan and Agreement of Liquidation and Merger dated March 31, 1997 between
American Multi-Cinema, Inc. and its subsidiary AMC Philadelphia, Inc.
(Incorporated by reference from Exhibit 2.9(a) to AMCE's Registration
Statement on Form S-4 (File No. 333-25755) filed April 24, 1997).
2.9(b) Certificate of Ownership and Merger merging AMC Philadelphia, Inc., a
Delaware Corporation, into American Multi-Cinema, Inc., a Missouri
Corporation (Delaware) (Incorporated by reference from Exhibit 2.9(b) to
AMCE's Registration Statement on Form S-4 (File No. 333-25755) filed April
24, 1997).
2.9(c) Articles of Merger between AMC Philadelphia, Inc. and American Multi-Cinema,
Inc. (Missouri) (Incorporated by reference from Exhibit 2.9(c) to AMCE's
Registration Statement on Form S-4 (File No. 333-25755) filed April 24,
1997).
4.1+ Declaration of Trust of the Company
4.2+ First Supplemental Indenture respecting AMC Entertainment Inc.'s 9 1/2%
Senior Subordinated Notes due 2009. (Incorporated by reference from Exhibit
4.4(b) to Amendment No. 2 to AMCE's REgistration Statement on Form S-4
(File No. 333-29155) filed August 4, 1997).
4.3+ Bylaws of the Company
4.4+ Amended Bylaws of the Company
4.5+ Form of share certificate for common shares of beneficial interest of the
Company
4.6(a) Indenture among AMC Entertainment Inc., as issuer, American Multi-Cinema,
Inc., AMC Realty, Inc., Conservco, Inc., AMC Canton Realty, Inc., AMC
Philadelphia, Inc., Budco Theatres, Inc. and Concord Cinema, Inc.
(collectively "Guarantors") and United States Trust Company of New York, as
Trustee, respecting AMC Entertainment Inc.'s 11 7/8% Senior Notes due 2000
(Incorporated by reference from Exhibit 4.3 to AMCE's Form 10-Q (File No.
0-12429) for the quarter ended July 2, 1992).
4.6(b) First Supplemental Indentured dated as of March 31, 1993, pursuant to which
AMC Film Marketing, Inc. became a Guarantor (Incorporated by reference from
Exhibit 4.1(b) to AMCE's Form 10-K (File No. 1-8747) for the fiscal year
ended April 1, 1993).
4.6(c) Fourth Supplemental Indenture dated as of March 31, 1994, pursuant to which
American Multi-Cinema, Inc. assumed the obligations of Cinema Enterprises,
Inc., Cinema Enterprises II, Inc. and Exhibition Enterprises Partnership
under the Senior Note Indenture and related guarantees of such entities
(Incorporated by reference from Exhibit 4.1(c) to AMCE's Form 10-K (File
No. 1-8747) for the fiscal year ended March 31, 1994).
</TABLE>
II-8
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DOCUMENT DESCRIPTION
- ------------- -----------------------------------------------------------------------------
<S> <C>
4.6(d) Fifth Supplemental Indenture dated December 28, 1995, respecting AMC
Entertainment Inc.'s 11 7/8% Senior Notes due 2000. Incorporated by
reference from Ex. 4.1(d) to AMCE's Registration Statement on Form S-4
(File No. 333-29155) filed June 11, 1997.
4.6(e) Sixth Supplemental Indenture dated March 28, 1996, respecting AMC
Entertainment Inc.'s 11 7/8% Senior Notes due 2000 (Incorporated by
reference from Exhibit 4.2(d) to AMCE's Form 10-K (File No. 0-12429) for
the fiscal year ended March 28, 1996).
4.7(a) Indenture among AMC Entertainment Inc., as issuer, American Multi-Cinema,
Inc., AMC Realty, Inc., Conservco, Inc., AMC Canton Realty, Inc., AMC
Philadelphia, Inc., Budco Theatres, Inc. and Concord Cinema, Inc.
(collectively "Guarantors") and The Bank of New York, as Trustee,
respecting AMC Entertainment Inc.'s 12 5/8% Senior Subordinated Notes due
2002 (Incorporated by reference from Exhibit 4.4 to ACME's Form 10-Q (File
No. 0-12429) for the quarter ended July 2, 1992).
4.7(b) First Supplemental Indenture dated as of March 31, 1993, pursuant to which
AMC Film Marketing, Inc. became a Guarantor (Incorporated by reference from
Exhibit 4.2(b) to AMCE's Form 10-K (File No. 1-8747) for the fiscal year
ended April 1, 1993).
4.7(c) Fourth Supplemental Indenture dated as of March 31, 1994, pursuant to which
American Multi-Cinema, Inc. assumed the obligations of Cinema Enterprises,
Inc., Cinema Enterprises II, Inc. and Exhibition Enterprises Partnership
under the Senior Subordinated Note Indenture and related guarantees of such
entities (Incorporated by reference from Exhibit 4.2(c) to AMCE's Form 10-K
(File No. 1-8747) for the fiscal year ended March 31, 1994).
4.7(d) Fifth Supplemental Indenture dated December 28, 1995, respecting AMC
Entertainment Inc.'s 12 5/8 Senior Subordinated Notes due 2002.
Incorporated by reference from Ex. 4.2(d) to AMCE's Registration Statement
on Form S-4 (File No. 333-92155) filed June 11, 1997.
4.7(e) Sixth Supplemental Indenture dated March 28, 1996, respecting AMC
Entertainment Inc.'s 12 5/8% Senior Subordinated Notes due 2002
(Incorporated by reference from Exhibit 4.2(e) to AMCE's Form 10-K (File
No. 0-12429) for the fiscal year ended March 28, 1996).
4.8 Amended and Restated Credit Agreement dated as of April 10, 1997, among AMC
Entertainment Inc., as the Borrower, The Bank of Nova Scotia, as
Administrative Agent, and Bank of America National Trust and Savings
Association, as Documentation Agent, and Various Financial Institutions, as
Lenders, together with the following exhibits thereto: significant
subsidiary guarantee, form of notes, form of pledge agreement and form of
subsidiary pledge agreement (Incorporated by reference from Exhibit 4.3 to
AMCE's Registration Statement on Form S-4 (File No. 333-25755) filed April
24, 1997).
4.9(a) Indenture dated March 19, 1997, respecting AMC Entertainment Inc.'s 9 1/2%
Senior Subordinated Notes due 2009 (Incorporated by reference from Exhibit
4.1 to AMCE's Form 8-K (File No. 1-8747) dated March 19, 1997).
4.9(b) First Supplemental Indenture respecting AMC Entertainment Inc.'s 9 1/2%
Senior Subordinated Notes due 2009. (Incorporated by reference from Exhibit
4.4(b) to Amendment No. 2 to AMCE's Registration Statement on Form S-4
(File No. 333-29155) filed August 4, 1997).
4.10 In accordance with Item 60(b)(4)(iii)(A) of Regulation S-K, certain
instruments respecting long term debt of the registrant have been omitted
but will be furnished to the Commission upon request.
5+ Opinion of Sullivan & Cromwell as to the legality of the shares being
registered
</TABLE>
II-9
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DOCUMENT DESCRIPTION
- ------------- -----------------------------------------------------------------------------
<S> <C>
5.1+ Opinion of Ballard Spahr Andrews & Ingersoll as to the legality of the shares
being registered
8+ Opinion of Sullivan & Cromwell as to certain tax matters
10.1 Form of Agreement of Sale and Purchase between the Company and American
Multi-Cinema, Inc.
10.2 Form of Option Agreement between the Company and American Multi-Cinema, Inc.
10.3 Form of Option Agreement between the Company and Clip Funding, Limited
Partnership
10.4 Form of AMCE Right to Purchase Agreement between the Company and AMC
Entertainment Inc.
10.5 Form of Lease entered into between the Company and American Multi-Cinema,
Inc.
10.6 Form of Guaranty of Lease entered into between the Company and AMC
Entertainment, Inc.
10.7 Intentionally Omitted
10.8+ Form of Indemnification Agreement entered into between the Company and each
of its trustees and officers
10.9+ 1997 Share Incentive Plan
10.10+ Deferred Compensation Plan for Non-Employee Trustees
10.11+ Annual Incentive Program
10.12 Employment Agreement with Robert L. Harris
10.13 Employment Agreement with David M. Brain
21+ Subsidiaries of the Company
23.1+ Consent of Sullivan & Cromwell (included in Exhibits 5 and 8)
23.2 Consent of Ernst & Young LLP
23.3 Consent of Coopers & Lybrand L.L.P.
23.4+ Consent of Robert J. Druten
23.5+ Consent of Scott H. Ward
23.6+ Consent of Charles S. Paul
24+ Power of Attorney pursuant to which amendments to this Registration Statement
may be filed (included on the signature page)
</TABLE>
- --------------
+ Previously filed.
II-10
<PAGE>
AGREEMENT OF SALE AND PURCHASE
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 Leawood Town Center 20, Kansas City, MO
Promenade 16, Los Angeles, CA South Barrington 30, Chicago, IL
Ontario Mills 30, Los Angeles, CA Mission Valley 20, San Diego, CA
West Olive 16, St. Louis, MO Lennox 24, Columbus, OH
Studio 30, Houston, TX First Colony 24, Houston, TX
Huebner Oaks 24, San Antonio, TX Oakview 24, Omaha, NE
November ___, 1997
Michael G. O'Flaherty E.T. Bullard
Stinson, Mag & Fizzell, P.C. Lathrop & Gage L.C.
1201 Walnut Suite 2500
Suite 2800 2345 Grand Boulevard
Kansas City, Missouri 64105 Kansas City, Missouri 64108
Telephone: (816) 691-3180 Telephone: (816) 292-2000
Telecopy: (816) 691-3495 Telecopier: (816) 292-2001
Counsel to Purchaser Counsel to Seller
<PAGE>
TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS. . . . . . . . . . . . . . . . . . . .1
ARTICLE II.
AGREEMENTS TO SELL, PURCHASE, LEASE AND OPTION AND
AGREEMENT REGARDING RIGHT TO PURCHASE. . . . . . 10
2.1 Agreement to Sell and Purchase. . . . . . 10
2.2 Agreement to Lease. . . . . . . . . . . . . 10
2.3 Agreement to Grant Option . . . . . . . . . 10
2.4 Right to Purchase . . . . . . . . . . . . . 10
ARTICLE III.
PURCHASE PRICE . . . . . . . . . . . . . . . . . 10
3.1 Payment of Purchase Price . . . . . . . . . 10
ARTICLE IV.
ITEMS TO BE FURNISHED TO PURCHASER BY SELLER . . 11
4.1 Due Diligence Materials . . . . . . . . . . 11
4.2 Due Diligence Review. . . . . . . . . . . . 12
4.3 Investigations. . . . . . . . . . . . . . . 12
4.4 Restoration After Investigations. . . . . . 12
ARTICLE V.
REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS . . . . . . . . . . . . . . . . . . . 13
5.1 Representations and Warranties of Seller. . 13
5.2 Seller Indemnification. . . . . . . . . . . 17
5.3 Covenants and Agreements of Seller. . . . . 17
5.4 Representations and Warranties of Purchaser 19
5.5 Survival. . . . . . . . . . . . . . . . . . 20
i
<PAGE>
ARTICLE VI.
CONDITIONS TO OBLIGATIONS. . . . . . . . . . . . 20
6.1 Conditions to the Purchaser's Obligations . 20
6.2 Failure of Conditions to Purchaser's
Obligations. . . . . . . . . . . . . . . . 22
6.3 Conditions to the Seller's Obligations . . 22
6.4 Failure of Conditions to Seller's
Obligations. . . . . . . . . . . . . . . . 23
ARTICLE VII.
PROVISIONS WITH RESPECT TO THE CLOSING . . . . . 23
7.1 Seller's Closing Obligations. . . . . . . . 23
7.2 Purchaser's Closing Obligations . . . . . . 24
7.3 Purchaser's Closing Obligations Respecting
Grantor Option Property . . . . . . . . . . 25
ARTICLE VIII.
EXPENSES OF CLOSING. . . . . . . . . . . . . . . 25
8.1 Adjustments . . . . . . . . . . . . . . . . 25
8.2 Closing Costs . . . . . . . . . . . . . . . 25
8.3 Commissions/Broker's Fees . . . . . . . . . 26
ARTICLE IX.
DEFAULT AND REMEDIES . . . . . . . . . . . . . . 26
9.1 Seller's Default; Purchaser's Remedies. . . 26
a. Seller's Default. . . . . . . . . 26
b. Purchaser's Remedies. . . . . . . 27
9.2 Purchaser's Default; Seller's Remedies. . . 27
a. Purchaser's Default . . . . . . . 27
b. Seller's Remedies . . . . . . . . 27
ARTICLE X.
MISCELLANEOUS. . . . . . . . . . . . . . . . . . 27
10.1 Survival. . . . . . . . . . . . . . . . . . 27
10.2 Right of Assignment . . . . . . . . . . . . 27
10.3 Notices . . . . . . . . . . . . . . . . . . 28
10.4 Entire Agreement; Modifications . . . . . . 29
10.5 Applicable Law. . . . . . . . . . . . . . . 29
ii
<PAGE>
10.6 Captions. . . . . . . . . . . . . . . . . . 29
10.7 Binding Effect. . . . . . . . . . . . . . . 29
10.8 Time is of the Essence. . . . . . . . . . . 29
10.9 Waiver of Conditions. . . . . . . . . . . . 29
10.10 Confidentiality . . . . . . . . . . . . . . 30
10.11 Attorneys' Fees . . . . . . . . . . . . . . 30
10.12 Remedies Cumulative . . . . . . . . . . . . 30
10.13 Terminology . . . . . . . . . . . . . . . . 30
10.14 Estoppel. . . . . . . . . . . . . . . . . . 30
10.15 Joint Preparation . . . . . . . . . . . . . 30
10.16 Counterparts. . . . . . . . . . . . . . . . 31
10.17 Joint and Severable Liability . . . . . . . 31
10.18 Non-Assignable Agreement. . . . . . . . . . 31
10.19 Waiver of Jury Trial . . . . . . . . . . . 31
SCHEDULE OF EXHIBITS
A -- Property Descriptions (A-1 through A-17)
B -- Assignment of Ground Lease
C -- Bill of Sale
D -- Certificate of Non-Foreign Status
E -- Closing Certificate
F -- Deed (F-1 through F-3)
G -- Excluded Personal Property
H -- Lease
I -- Option Agreements
J -- Personal Property
K -- Purchase Price
L -- Right to Purchase Agreement
M -- Form of Surveyor's Certification
N -- Opinions of Seller's and Purchaser's Counsel (N-1 and N-2)
iii
<PAGE>
AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (the "Agreement") is made and entered
into among AMERICAN MULTI-CINEMA, INC., a Missouri corporation, AMC REALTY,
INC., a Delaware corporation (hereinafter sometimes individually or jointly
referred to as "Seller" as the context requires), and ENTERTAINMENT
PROPERTIES TRUST, a Maryland real estate investment trust (hereinafter
referred to as "Purchaser"). Seller and Purchaser are sometimes collectively
referred to herein as the "Parties" and each of the Parties is sometimes
singularly referred to herein as a "Party".
WHEREAS, Seller is the owner of the Properties (as hereinafter defined);
and,
WHEREAS, Seller desires to sell and Purchaser desires to purchase each
Property, and simultaneously therewith, to enter into a lease transaction
pursuant to which Purchaser shall, as the case may be, lease or sublease to
Seller, and Seller shall lease or sublease from Purchaser, each such Property.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00), the
mutual covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties agree as follows:
ARTICLE I.
DEFINITIONS
As used herein (including any Exhibits attached hereto), the following
terms shall have the meanings indicated:
"APPLICABLE NOTICES" shall mean any reports, notices of violation, or
notices of compliance issued in connection with any Permits.
"ASSIGNMENT" shall mean an assignment or assignments in substantially the
same form as EXHIBIT B, attached hereto and made a part hereof, and
sufficient to transfer to Purchaser all of Seller's right, title and interest
as lessee in the Ground Leases.
"BILL OF SALE" shall mean a bill 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.
1
<PAGE>
"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 Lathrop & Gage
L.C., 2345 Grand Boulevard, Suite 2800, Kansas City, Missouri, 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 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) 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
2
<PAGE>
of Purchaser, as grantee, conveying the Land and Improvements to Purchaser,
subject only to the Permitted Exceptions.
"DUE DILIGENCE MATERIALS" shall mean the information to be provided by
Seller to Purchaser pursuant to the provisions of Section 4.1 hereof.
"EFFECTIVE DATE" shall mean the later of the two (2) dates on which this
Agreement is signed and all changes initialed by Seller and Purchaser, as
indicated by their signatures below; provided, that in the event only one
Party dates its signature, then the date of its signature shall be the
Effective Date.
"ENGINEERING DOCUMENTS" shall mean all site plans, surveys, soil and
substrata studies, architectural drawings, plans and specifications,
engineering plans and studies, floor plans, landscape plans, Americans with
Disabilities Act compliance reports, environmental reports and studies,
professional inspection reports, construction and/or architect's reports or
certificates, feasibility studies, appraisals, and other similar plans and
studies in the possession or control of Seller that relate to the Real
Property or the Personal Property, to the extent the same are assignable by
Seller.
"EXCEPTION DOCUMENTS" shall mean true, correct and legible copies of
each document listed as an exception to title in the Title Commitment.
"EXCLUDED PERSONAL PROPERTY" shall mean all those items of tangible and
intangible personal property described on EXHIBIT G, attached hereto and made
a part hereof.
"FIXTURES" shall mean all equipment, machinery, fixtures, and other
items of real and/or personal property, including all components thereof, now
or on the Closing Date located in, on or used in connection with, and
permanently affixed to or incorporated into, the Improvements, including,
without limitation, all furnaces, boilers, heaters, electrical equipment,
electronic security equipment, heating, plumbing, lighting, ventilating,
refrigerating, incineration, air and water pollution control, waste disposal,
air-cooling and air-conditioning systems and apparatus, sprinkler systems and
fire and theft protection equipment, and similar systems, all of which, to
the greatest extent permitted by law, are hereby deemed by the Parties to
constitute real estate, together with all replacements, modifications,
alterations and additions thereto, but specifically excluding all items
included within the definition of Personal Property and Excluded Personal
Property.
"GRANTOR" means Clip Funding, Limited Partnership, a Delaware limited
partnership.
"GRANTOR OPTION AGREEMENT" shall mean the Grantor Option Agreement, in
substantially the same form as Exhibit I-2, attached hereto and made a part
hereof, which
3
<PAGE>
shall be executed and delivered by Grantor and Purchaser at the closing of
the Registered Offering, and pursuant to which Grantor shall grant Purchaser
an exclusive option to acquire the Grantor Option Properties.
"GRANTOR OPTION PROPERTIES" shall mean the real property described on
Exhibits A-15 through A-17, attached hereto and made a part hereof, and any
other property of Grantor more particularly set forth in the Grantor Option
Agreement.
"GROUND LEASES" shall mean those leases pursuant to which Seller has
leased certain land on which it has constructed certain improvements with
respect to the Leased Real Property.
"HAZARDOUS MATERIALS" shall mean (a) "hazardous substances" or "toxic
substances" as those terms are defined by the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C.
Section 9601 ET SEQ., or by the Hazardous Materials Transportation Act, 49
U.S.C. Section 1802 ET SEQ., all as now and hereafter amended; (b) "hazardous
wastes", as that term is defined by the Resource Conservation and Recovery
Act of 1976 ("RCRA"), 42 U.S.C. Section 6902 ET SEQ., as now and hereafter
amended; (c) any pollutant or contaminant or hazardous, dangerous or toxic
chemicals, materials or substances within the meaning of any other applicable
federal, state or local law, regulation, ordinance or requirement (including
consent decrees and administrative orders) relating to or imposing liability
or standards of conduct concerning any hazardous, toxic or dangerous waste
substances or materials, all as now and hereafter amended; (d) petroleum
including crude oil or any fraction thereof; (e) any radioactive material,
including any source, special nuclear or by-product material as defined at 42
U.S.C. Section 2011 ET SEQ., as now and hereafter amended; (f) asbestos in
any form or condition; and (g) polychlorinated biphenyl ("PCBs") or
substances or compounds containing PCBs.
"HAZARDOUS MATERIALS LAW" shall mean any local, state or federal law
relating to environmental conditions or industrial hygiene, including,
without limitation, RCRA, CERCLA, as amended by the Superfund Amendments and
Reauthorization Act of 1986 ("SARA"), the Hazardous Materials Transportation
Act, the Federal Waste Pollution Control Act, the Clean Air Act, the Clean
Water Act, the Toxic Substances Control Act, the Safe Drinking Water Act, and
all similar federal, state and local environmental statutes and ordinances
and the regulations, orders, or decrees now or hereafter promulgated
thereunder.
"IMPROVEMENTS" shall mean the Leased Improvements and Owned Improvements.
"INTANGIBLE PROPERTY" shall mean all Permits, Business Agreements and
other intangible property or any interest therein now or on the Closing Date
owned or held by Seller in connection with the Real Property, including all
water rights and reservations,
4
<PAGE>
rights to use the trade name applicable to the Property, as set forth on
EXHIBITS A-1 THROUGH A-12 hereof, and zoning rights related to the Real
Property, or any part thereof, to the extent the same are assignable by
Seller; provided, however, "Intangible Property" shall not include the
general corporate trademarks, trade names, except as set forth above, service
marks, logos or insignia or the books and records of Seller, Seller's
accounts receivable and Seller's business and operating licenses for the
facilities on the Real Property.
"KNOWLEDGE" shall mean actual knowledge of Seller or Purchaser, as the
case may be, at the time the representation is made or deemed to have been
made with no affirmative duty of inquiry or investigation.
"LAND" shall mean the Owned Real Property and the Leased Real Property.
"LAWS" shall mean all federal, state and local laws, moratoria,
initiatives, referenda, ordinances, rules, regulations, standards, orders and
other governmental requirements, including, without limitation, those
relating to the environment, health and safety and disabled or handicapped
persons.
"LEASE" shall mean the Lease in substantially the same form as EXHIBIT
H-1, attached hereto and made a part hereof, which shall be executed and
delivered by Seller (or an affiliate of Seller) and Purchaser at the Closing,
and pursuant to the terms of which Purchaser shall lease a Property to
American Multi-Cinema, Inc. following the Closing. Each such Lease will be
guaranteed by AMC Entertainment, Inc. pursuant to a Guaranty of Lease,
substantially in the form of Exhibit H-2, attached hereto and made a part
hereof.
"LEASED IMPROVEMENTS" shall mean all buildings, improvements, structures
and Fixtures now or on the Closing Date located on the Leased Real Property,
including, without limitation, landscaping, parking lots and structures,
roads, drainage and all above ground and underground utility structures,
equipment systems and other so-called "infrastructure" improvements.
"LEASED REAL PROPERTY" shall mean the real property legally described on
EXHIBITS A-9 through A-12, attached hereto and made a part hereof, together
with all of Seller's rights, titles, appurtenant interests, covenants,
licenses, privileges and benefits thereunto belonging, and Seller's right,
title and interest in and to any easements, rights-of-way, rights of ingress
or egress or other interests in, on or under any land, highway, street, road
or avenue, open or proposed, in, on, across, in front of, abutting or
adjoining such real property including, without limitation, any strips and
gores adjacent to or lying between such real property and any adjacent real
property.
"LEASED INTERESTS" shall mean (a) the leasehold estates in the Leased
Real Property as created by the Ground Leases, and all rights and interests
created by the Ground Leases, (b) all of Seller's right, title and interest
in the Leased Improvements as created by the Ground
5
<PAGE>
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.
6
<PAGE>
"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.
"REAL PROPERTY" shall mean the Land, the Improvements and the Fixtures.
"REGISTERED OFFERING" shall be the public offering by Purchaser
described in Section 5.3.j. hereof.
"REVIEW PERIOD" shall mean a period commencing on the Effective Date and
ending thirty (30) days from the date of Purchaser's receipt of the last of
the Due Diligence Materials; provided, should the Effective Date be less than
thirty (30) days prior to the Closing Date, the Review Period shall terminate
on the date which is five (5) days prior to the Closing Date.
"RIGHT TO PURCHASE AGREEMENT" shall mean the Right to Purchase Agreement
in substantially the same form as EXHIBIT L, attached hereto and made a part
hereof, which shall be executed and delivered by the Parties at the Closing,
and pursuant to the terms of which
7
<PAGE>
Seller shall agree to a duty of first offer and grant to Purchaser a right of
first refusal for Purchaser to acquire certain property of Seller.
"SEARCH REPORTS" shall mean reports of searches made of the Uniform
Commercial Code Records of the County in which each Property is located, and
of the office of the Secretary of State of the State in which each Property
is located and in the State in which the principal office of Seller is
located, which searches shall reflect that no Property is encumbered by liens
or security interests which will remain on such Property after the Closing.
The Search Reports shall be updated, at Seller's expense, at or within
fifteen (15) days prior to Closing.
"SELLER OPTION AGREEMENT" shall mean the Seller Option Agreement, in
substantially the same form as Exhibit I-1, attached hereto and made a part
hereof, which shall be executed and delivered by Seller to Purchaser at the
closing of the Registered Offering, and pursuant to which Seller shall grant
Purchaser an exclusive option to acquire the Seller Option Properties.
"SELLER OPTION PROPERTIES" shall mean the real property described on
Exhibits A-13, A-14, A-18, A-19 and A-20 attached hereto and made a part
hereof, and any other property of Seller more particularly set forth in the
Seller Option Agreement.
"SELLER'S OPERATING AND SERVICE AGREEMENTS" shall mean all management,
service and operating agreements and contracts entered into by Seller with
respect to a Property, including, but not limited to, agreements and
contracts relating to maintenance and repair at a Property, refuse service
agreements, pest control service agreements, landscaping agreements, parking
lot maintenance agreements, and snow removal contracts.
"SURVEY" shall mean a current "as-built" ALTA survey, certified to ALTA
requirements, prepared by an engineer or surveyor licensed in the State in
which the Land is located reasonably acceptable to Purchaser, which shall:
(a) include a narrative legal description of the Land by metes and bounds
(which shall include a reference to the recorded plat, if any), and a
computation of the area comprising the Land in both acres and gross square
feet (to the nearest one-thousandth of said respective measurement); (b)
accurately show the location on the Land of all improvements (dimensions
thereof at the ground surface level and the distance therefrom to the facing
exterior property lines of the Land), building and set-back lines, parking
spaces (including number of spaces), fences, evidence of abandoned fences,
ponds, creeks, streams, rivers, officially designated 100-year flood plains
and flood prone areas, canals, ditches, easements, roads, rights-of-way and
encroachments; (c) accurately show the location of encroachments, if any,
upon adjoining property, or from adjoining property, upon the Land; (d) state
the zoning classification of the Land; (e) be certified as of the date of the
Survey to the Seller, the Purchaser, the Title Company, and any third-party
lender designated by Purchaser; (f) legibly identify any and all recorded
matters shown on said Survey by appropriate volume and page recording
references; (g) show the
8
<PAGE>
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 Stewart Title Guaranty Company or the
national service office of another title insurance company licensed in each
state in which a Property is located selected by Seller and reasonably
satisfactory to Purchaser.
"TITLE POLICY" shall mean an ALTA Extended Coverage Owner's Policy (or
policies) of Title Insurance (10/17/92 Form), or comparable state promulgated
policies, with liability in the aggregate amount of the Purchase Price, dated
as of the Closing Date, issued by the Title Company, insuring title to the
fee interest (or ground lease interest, as applicable) in the Real Property
in Purchaser, subject only to the Permitted Exceptions and to the standard
printed exceptions included in the ALTA standard form owner's extended
coverage policy of title insurance, with the following modifications, if
available upon commercially reasonable terms and at commercially reasonable
costs: (a) the exception for survey matters shall be deleted and replaced by
an exception for the matters shown on the Survey; (b) the exception for ad
valorem taxes shall reflect only taxes for the current and subsequent years;
(c) any exception as to parties in possession shall be limited to rights of
Seller in possession, as lessee only, pursuant to the Lease; (d) there shall
be no general exception for visible and apparent easements or roads and
highways or similar items (with any exception for visible and apparent
easements or roads and highways or similar items to be specifically
referenced to and shown on the Survey and also identified by applicable
recording information); and (e) the Title Policy shall include such
endorsements as Purchaser shall reasonably require.
"TOTAL PROPERTIES" means the Properties and the Option Properties.
"WARRANTIES" shall mean all warranties and guaranties with respect to the
Real Property or Personal Property, whether express or implied, which Seller
now holds or under which Seller is the beneficiary, to the extent the same
are assignable by Seller.
9
<PAGE>
ARTICLE II.
AGREEMENTS TO SELL, PURCHASE, LEASE AND OPTION AND
AGREEMENT REGARDING RIGHT TO PURCHASE
2.1 AGREEMENT TO SELL AND PURCHASE. On the Closing Date for a
Property, subject to the performance by the parties of the terms and
provisions of this Agreement, Seller shall sell, convey, assign, transfer and
deliver to Purchaser and Purchaser shall purchase, acquire and accept from
Seller, such Property, for the Purchase Price therefor and subject to the
terms and conditions of this Agreement. Subject to the terms and conditions
of this Agreement, the Parties hereby agree to consummate [each] Closing for
the sale of the Properties as soon as practicable following the closing of
the Registered Offering.
2.2 AGREEMENT TO LEASE. On the Closing Date, and subject to the
closing by Purchaser of the transaction contemplated herein with respect to
some or all of the Property, Purchaser shall lease or sublease to American
Multi-Cinema, Inc. ("AMC"), as applicable, and AMC shall lease or sublease
from Purchaser, as applicable, the Property so purchased at the rental and
upon the terms and conditions set forth in a Lease. On the Closing Date for
the purchase of any Option Property, Purchaser shall lease or sublease to
AMC, as applicable, and AMC shall lease or sublease from Purchaser, as
applicable, the Option Property at a rental and upon the terms and conditions
set forth in a Lease.
2.3 AGREEMENT TO GRANT OPTION. On the Closing Date, and subject to
the Closing by Purchaser of the transaction contemplated herein with respect
to some or all of the Property, Seller shall grant to Purchaser options to
acquire the Option Properties at the purchase price and upon the terms and
conditions set forth in the Option Agreements.
2.4 RIGHT TO PURCHASE. On the Closing Date, and subject to the
Closing by Purchaser of the transaction contemplated herein with respect to
some or all of the Property, Seller shall agree to a duty of first offer and
grant to Purchaser a right of first refusal to acquire certain property of
Seller, upon the terms and conditions set forth in the Right to Purchase
Agreement.
ARTICLE III.
PURCHASE PRICE
3.1 PAYMENT OF PURCHASE PRICE. The Purchase Price for a Property
shall be paid by Purchaser delivering to the Seller at the Closing for such
Property Federal Reserve wire transfer funds or other immediately available
collected funds payable to the order of the Seller in the sum equal to the
Purchase Price for such Property, subject to adjustment as herein
10
<PAGE>
provided. On or before the Closing, the Parties shall agree on an allocation
of the Purchase Price as between the Real Property and the Personal Property
for each Property.
ARTICLE IV.
ITEMS TO BE FURNISHED TO PURCHASER BY SELLER
4.1 DUE DILIGENCE MATERIALS. As a courtesy and without warranty or
representation, except as expressly set forth herein, Seller previously has
delivered or made available (at the offices of Seller or its legal counsel)
to Purchaser for its review and/or copying, the following items respecting
the Land and the Property:
(a) True, correct, complete and legible copies of all Business
Agreements, Warranties, Permits, Applicable Notices, Engineering Documents
and Seller's Operating and Service Agreements (solely for the purposes of
this Section 4.1 and Section 10.19 hereof, the terms Business Agreements,
Warranties, Permits, and Engineering Documents shall include all agreements,
documents and instruments otherwise included within such definitions, whether
or not the same are assignable by Seller);
(b) True, correct, complete and legible copies of tax statements or
assessments for all real estate and personal property taxes assessed against
each Property for the current and the two prior calendar years, if available;
(c) True, correct, complete and legible listing of all Fixtures,
Personal Property and Excluded Personal Property, including a current
depreciation schedule;
(d) True, correct, complete and legible copies of all existing fire and
extended coverage insurance policies and any other insurance policies
pertaining to each Property or certificates setting forth all coverages and
deductibles with respect thereto, if any;
(e) True, correct, complete and legible copies of all instruments
evidencing, governing or securing the payment of any loans secured by each
Property or related thereto;
(f) True, correct, complete and legible copies of any and all
environmental studies or impact reports relating to each Property, if any,
and any approvals, conditions, orders or declarations issued by any
governmental authority relating thereto (such studies and reports shall
include, but not be limited to, reports indicating whether the Property is or
has been contaminated by Hazardous Materials and whether the Property is in
compliance with the Americans with Disabilities Act and Section 504 of the
Rehabilitation Act of 1973, as applicable);
11
<PAGE>
(g) True, correct, complete and legible copies of any and all
litigation files with respect to any pending litigation and claim files for
any claims made or threatened, the outcome of which might materially affect
each Property or the use and operation of each Property, together with
summaries and such other more detailed information as Purchaser may
reasonably request with respect to any other pending litigation or claim the
outcome of which might materially affect Seller or materially affect each
Property.
(h) The Title Commitment, Exception Documents, Survey and Search
Reports.
4.2 DUE DILIGENCE REVIEW. Prior to the Closing Date (and in the
event there is more than one Closing Date, prior to the last Closing Date
occurring pursuant to the terms hereof) (the "Review Period"), Purchaser has
been given the right and opportunity to review the Due Diligence Materials
delivered by Seller to Purchaser pursuant to the provisions of Section 4.1
above. By consummating the sale and purchase provided herein at Closing,
Purchaser shall be deemed to have accepted and approved the Due Diligence
Materials with respect to each Property purchased at such Closing, and the
Property, and to have waived to the extent Seller has the responsibility for
the same pursuant to the Lease, any such defect, deficiency or encumbrance
disclosed in the Due Diligence Materials with respect to each Property
purchased at such Closing, and to have accepted all exceptions to title
referenced in the Title Commitment, and all matters shown on the Survey, with
respect to each Property purchased at such Closing. Such accepted title
exceptions and survey matters shall be included in the term "Permitted
Exceptions" as used herein.
4.3 INVESTIGATIONS. During the Review Period, Purchaser and its
agents and designees have been given the right and opportunity to examine
each Property for the purpose of inspecting the same and making tests,
inquiries and examinations (collectively the "Investigations").
4.4 RESTORATION AFTER INVESTIGATIONS. Purchaser agrees, at its sole
expense, to cause the Property to be restored to substantially the same
condition it was in prior to such entry. In addition, Purchaser agrees to
indemnify, defend and hold Seller, its successors and assigns and the current
owner of the Land harmless for, from and against and to reimburse Seller with
respect to all claims for bodily injury, personal injury or property damage,
as well as any professional services lien, which may be asserted by reason of
the activities of Purchaser or its agents or designees during the
Investigations. The foregoing indemnity shall survive the Closing and/or any
termination of this Agreement and shall not operate as, or be deemed to be, an
indemnification against any claim arising as a result of any condition or
matter discovered as a result of the Investigations.
12
<PAGE>
ARTICLE V.
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
5.1 REPRESENTATIONS AND WARRANTIES OF SELLER. To induce Purchaser
to enter into this Agreement and to purchase the Property, Seller represents
and warrants to Purchaser as follows:
(a) Seller has and at each Closing will have, and will convey, transfer
and assign to Purchaser, good, indefeasible and insurable right and title to
the Land and its interest, as lessee, in the Ground Leases, free and clear of
any deeds of trust, mortgages, liens, encumbrances, leases, tenancies,
licenses, chattel mortgages, conditional sales agreements, security
interests, covenants, conditions, restrictions, judgments, rights-of-way,
easements, encroachments, claims and any other matters affecting title or use
of the Property, except the Permitted Exceptions.
(b) Seller has duly and validly authorized and executed this Agreement,
and has full right, title, power and authority to enter into this Agreement
and to consummate the transactions provided for herein, and the joinder of no
person or entity will be necessary to convey each Property fully and
completely to Purchaser at the Closing of such Property and to lease or
sublease such Property from Purchaser following such Closing. Sellers are
corporations duly organized, validly existing and in good standing under the
laws of the States of Missouri and Delaware, respectively, and are qualified
to do business in each state in which any of the Property owned or leased by
such Seller is located. The consummation of the transactions contemplated
herein does not require the approval of Seller's shareholders or any third
party, except such third party approvals as Seller has obtained or will
obtain prior to each Closing Date. The execution by Seller of this Agreement
and the consummation by Seller of the transactions contemplated hereby do
not, and at the Closing will not, result in a breach of any of the terms or
provisions of, or constitute a default or a condition which upon notice or
lapse of time or both would ripen into a default under, Seller's Bylaws or
Certificate of Incorporation, any indenture, agreement, instrument or
obligation to which Seller is a party or by which any Property or any portion
thereof is bound; and does not constitute a violation of any Laws, order,
rule or regulation applicable to Seller or any portion of a Property of any
court or of any federal, state or municipal regulatory body or administrative
agency or other governmental body having jurisdiction over Seller or any
portion of a Property.
(c) There are no adverse parties in possession of a Property or of any
part thereof. Seller has not granted to any party any license, lease or
other right relating to the use or possession of a Property, except as set
forth in the Permitted Exceptions or provided to Purchaser in the Due
Diligence Materials.
13
<PAGE>
(d) Except as provided to Purchaser in the Due Diligence Materials, no
written notice has been received from any insurance company that has issued
a policy with respect to any portion of a Property or from any board of fire
underwriters (or other body exercising similar functions), claiming any
defects or deficiencies or requiring the performance of any repairs,
replacements, alterations or other work and as of the Closing no such written
notice will have been received which shall not have been cured. No written
notice has been received by Seller from any issuing insurance company that
any of such policies will not be renewed, or will be renewed only at a
higher premium rate than is presently payable therefor.
(e) No pending condemnation, eminent domain, assessment or similar
proceeding or charge affecting any Property or any portion thereof exists.
Seller has not heretofore received any written notice, and has no actual
knowledge,that any such proceeding or charge is contemplated.
(f) All Improvements (including all utilities) have been, or as of the
Closing will be, substantially completed and installed in accordance with
the plans and specifications approved by the governmental authorities having
jurisdiction to the extent applicable and are transferable to Purchaser
without additional cost. Permanent certificates of occupancy, all licenses,
permits, authorizations and approvals required by all governmental
authorities having jurisdiction, and the requisite certificates of the local
board of fire underwriters (or other body exercising similar functions) have
been, or as of the Closing will be, issued for the Improvements, and, as of
the Closing, where required, all of the same will be in full force and
effect; provided, however, that temporary or partial certificates of
occupancy may be provided in the event that under laws or regulations
applicable to a particular Property, a permanent certificate of occupancy is
not available because of the status of construction or subleasing of a
portion of the Property. The Improvements, as designed and constructed,
substantially comply or will substantially comply with all statutes,
restrictions, regulations and ordinances applicable thereto, including but
not limited to the Americans with Disabilities Act and Section 504 of the
Rehabilitation Act of 1973, as applicable.
(g) The existing water, sewer, gas and electricity lines, storm sewer
and other utility systems on the Land are reasonably adequate to serve the
current and contemplated utility needs of each Property. All utilities
required for the operation of the Improvements enter the Land through
adjoining public streets or through adjoining private land in accordance with
valid public or private easements that will inure to the benefit of
Purchaser. All approvals, licenses and permits required for said utilities
have been obtained and are in full force and effect. All of said utilities
are installed and operating and all installation and connection charges have
been paid in full.
(h) The location, construction, occupancy, operation and use of each
Property (including the Improvements) do not violate any applicable law,
statute, ordinance, rule, regulation, order or determination of any
governmental authority or any board of fire
14
<PAGE>
underwriters (or other body exercising similar functions), or any restrictive
covenant or deed restriction (recorded or otherwise) affecting the Property
or the location, construction, occupancy, operation or use thereof,
including, without limitation, all applicable zoning ordinances and building
codes, flood disaster laws and health and environmental laws and regulations,
the Americans with Disabilities Act and Section 504 of the Rehabilitation Act
of 1973, as applicable.
(i) There are not any structural defects in any of the buildings or
other Improvements constituting each Property. The Improvements, all heating,
electrical, plumbing and drainage at, or servicing, each Property and all
facilities and equipment relating thereto are and, as of the Closing, will be
in good condition and working order and adequate in quantity and quality for
the normal operation of the Property. No part of any Property has been
destroyed or damaged by fire or other casualty. To Seller's knowledge, there
are no unsatisfied written requests for repairs, restorations or alterations
with regard to the Property from any person, entity or authority, including
but not limited to any lender, insurance provider or governmental authority.
(j) Except as may be set forth in any of the Due Diligence Materials,
no work has been performed or is in progress at any Property, and no
materials will have been delivered to the Property that might provide the
basis for a mechanic's, materialmen's or other lien against the Property or
any portion thereof, or amounts due for such work and material shall have
paid or discharged to Purchaser's satisfaction as of Closing.
(k) There exist no service contracts, management or other agreements
applicable to any Property, to which Seller is a party or otherwise known to
Seller, other than Seller's Operating and Service Agreements and those
agreements furnished to Purchaser pursuant to Section 4.1.
(l) Seller is not in default in any manner which would result in a
material adverse effect on Seller or the Property under any of the Ground
Leases, Business Agreements, or Seller's Operating and Service Agreements or
any of the covenants, conditions, restrictions, rights-of-way or easements
affecting the Property or any portion thereof, and, to Seller's knowledge no
other party to any of the foregoing is in material default thereunder.
(m) There are no actions, suits or proceedings pending or, to Seller's
knowledge, threatened against or affecting any Property or any portion
thereof, or relating to or arising out of the ownership or operation of the
Property, or by any federal, state, county or municipal department,
commission, board, bureau or agency or other governmental instrumentality,
other than those disclosed to Purchaser pursuant to Section 4.1. All judicial
proceedings concerning any Property will be finally dismissed and terminated
prior to Closing, excluding lawsuits in which Seller is involved in its
ordinary course of business. Seller hereby covenants and agrees to indemnify
and hold Purchaser harmless from and against any and all
15
<PAGE>
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
SARA 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, SARA or any other Hazardous Materials Law. No
investigation, administrative order, litigation or settlement with respect to
any Hazardous Materials is in existence with respect to any Property, nor, to
Seller's knowledge, is any of the foregoing threatened. No written notice has
been received by Seller from any entity, governmental body or individual
claiming any violation of any Hazardous Materials Law, or requiring
compliance with any Hazardous Materials Law, or demanding payment or
contribution for environmental damage or injury to natural resources. Seller
has not obtained and, to Seller's knowledge, is not required to obtain, and
Seller has no knowledge of any reason Purchaser will be required to obtain,
any permits, licenses, or similar authorizations to occupy, operate or use
the Improvements or any part of any Property by reason of any Hazardous
Materials Law. Notwithstanding the representations made herein, such
representations are and shall be deemed to be limited by the matters detailed
in any Phase I Preliminary Site Assessment or other Due Diligence Materials
obtained by or provided to Purchaser in connection herewith.
16
<PAGE>
(q) Each Property includes all items of property, tangible and
intangible, currently used by Seller in connection with the operation of the
Property, other than the Excluded Personal Property, Seller's Operating and
Service Agreements, and property expressly excluded from the definition of
the Property, and the exclusion of such items from the property to be
conveyed to Purchaser will not have any materials adverse affect upon
Purchaser's ownership of the Property following the Closing.
(r) Seller has not knowingly failed to disclose anything of a material
nature with respect to the Due Diligence Materials.
5.2 SELLER INDEMNIFICATION. Seller hereby agrees to indemnify and
defend, at its sole cost and expense, and hold Purchaser, its successors and
assigns, harmless from and against and to reimburse Purchaser with respect to
any and all claims, demands, actions, causes of action, losses, damages,
liabilities, costs and expenses (including, without limitation, reasonable
attorney's fees and court costs) actually incurred of any and every kind or
character, known or unknown, fixed or contingent, asserted against or
incurred by Purchaser at any time and from time to time by reason of or
arising out of (a) the breach of any representation or warranty of Seller set
forth in Section 5.1 or any breach by Seller of any of its covenants and
agreements set forth in this Agreement; (b) the failure of Seller, in whole
or in part, to perform any obligation required to be performed by Seller
pursuant to Section 5.1.; or (c) the ownership, construction, occupancy,
operation, use and maintenance by Seller or its agents of the Property prior
to the Closing Date. This indemnity applies, without limitation, to the
violation on or before the Closing Date of any Hazardous Materials Law in
effect on or before the Closing Date and any and all matters arising out of
any act, omission, event or circumstance existing or occurring on or prior to
the Closing Date (including, without limitation, the presence on the Property
or release from the Property of Hazardous Materials disposed of or otherwise
released prior to the Closing Date), regardless of whether the act, omission,
event or circumstance constituted a violation of any Hazardous Materials Law
at the time of its existence or occurrence. Subject to the provisions of
Section 5.5 hereof, the provisions of this Section shall survive the Closing
of the transaction contemplated by Section 2.1 of this Agreement and shall
continue thereafter in full force and effect for the benefit of Purchaser,
its successors and assigns. Notwithstanding any provision of this Agreement
to the contrary, Purchaser may exercise any right or remedy Purchaser may
have at law or in equity should Seller fail to meet, comply with or perform
its indemnity obligations required by this Section 5.2. In the event a
defect, claim or deficiency is discovered by Purchaser prior to Closing or
isnoticed in writing by Seller to Purchaser prior to Closing, Purchaser shall
either terminate the Agreement as provided herein or waive the defect, claim
or deficiency and proceed to Closing.
5.3 COVENANTS AND AGREEMENTS OF SELLER. Seller covenants and agrees
with Purchaser, from the Effective Date until the Closing with respect to a
Property or earlier termination of this Agreement:
17
<PAGE>
(a) Seller shall: (i) operate the Property in the ordinary course of
Seller's business and in substantially the same manner as currently
operated; and (ii) fully maintain and repair the Improvements, the Fixtures,
and the Personal Property in good condition and repair.
(b) Seller shall cause to be maintained in full force and effect fire
and extended coverage insurance upon the Property and public liability
insurance with respect to damage or injury to persons or property occurring
on or relating tooperation of the Property in commercially reasonable amounts
(which for purposes hereof shall be deemed to be the amounts and coverages in
effect on the date hereof).
(c) Seller shall pay when due all bills and expenses of the Property.
Seller shall not enter into or assume anynew Business Agreements with regard
to the Property which are in addition to or different from those furnished
and disclosed to Purchaser and reviewed and approved pursuant to Section 4.1,
except in the ordinary course of business.
(d) Seller shall not create or permit to be created any liens,
easements or other conditions affecting any portion of the Property or the
uses thereof, except in the ordinary course of business, without the prior
written consent of Purchaser. No such lien, easement or other condition
affecting the Property which Seller creates or permits to be created shall
be or constitute a Permitted Exception until (i) such lien, easement or other
condition affecting the Property has been disclosed to Purchaser in writing
prior to Closing, (ii) a true and correct copy of all documents or
instruments creating, evidencing, affecting or relatingto such lien, easement
or other condition affecting the Property has been provided to Purchaser
prior to Closing, and (iii) Purchaser has determined to proceed with Closing
and accept such lien, easement or other condition affecting the Property as a
Permitted Exception, which determination shall be conclusively presumed by
Purchaser's election to proceed with Closing following Seller's compliance
with the requirements of (i) and (ii) of this paragraph.
(e) Seller will pay, as and when due, all interest and principal and
all other charges payable under any indebtedness of Seller secured by the
Property from the date hereof until Closing, and will not suffer or permit
any default or, except in the ordinary course of business, amend or modify
the documents evidencing or securing any such indebtedness without the prior
consent of Purchaser.
(f) Seller will give to Purchaser, its attorneys, accountants and other
representatives, during normal business hours and as often as may be
reasonably requested, access to all books, records and files relating to the
Property so long as the same does not unreasonably interfere with Seller's
business operations.
(g) Seller shall not remove any Personal Property or Fixtures from the
Land or Improvements without replacing same with substantially similar items
of equal or
18
<PAGE>
greater value and repairing the damage, if any, to the Property as a result
of such removal, except in the ordinary course of business.
(h) During the pendency of this Agreement, Seller, its corporate
officers, directors, and agents shall not negotiate the sale or other
disposition of the Property with any person or entity other than Purchaser,
and shall not take any steps to initiate, consummate or document the sale or
other disposition of the Property, or any portion thereof, to any person or
entity other than Purchaser.
(i) Prior to the Closing Date, Seller agrees to notify Purchaser in
writing within three (3) Business Days of any offer received by, delivered to
or communicated to Seller for the purchase, sale, acquisition or other
disposition of the Property.
(j) Seller shall provide representations, warranties and consents as
may be reasonably required in connection with any public offering of stock
(the "Registered Offering") or debt obligations by Purchaser, including, and
similar in kind but not limited to, inclusion of financial statements,
summary financial information and other required information concerning
Seller, or Seller as lessee under the Lease, in any Securities and Exchange
Commission filings. Seller shall cooperate in the preparation by Purchaser
of a Form S-11 under the Securities Act of 1933, as amended, to be filed with
the Securities and Exchange Commission in connection with the Registered
Offering.
5.4 REPRESENTATIONS AND WARRANTIES OF PURCHASER. To induce Seller
to enter into this Agreement and to sell the Property, Purchaser represents
and warrants to Seller as follows:
(a) Purchaser has duly and validly authorized and executed this
Agreement, and has full right, title, power and authority to enter into this
Agreement and to consummate the transactions provided for herein, and the
joinder of no person or entity will be necessary to purchase the Property
from Seller at Closing, and to lease or sublease the Property to Seller
following Closing. Purchaser is a real estate investment trust duly
organized, validly existing and in good standing under the laws of the State
of Maryland and is qualified to do business in each state in which any of the
Property is located. The consummation of the transactions contemplated herein
or in the Lease does not require the approval of Purchaser's shareholders or
any third party, except such third party approvals as Purchaser has obtained
or will obtain prior to the Closing Date.
(b) The execution by Purchaser of this Agreement and the consummation
by Purchaser of the transactions contemplated hereby do not, and at the
Closing will not, result in a breach of any of the terms or provisions of, or
constitute a default or a condition which upon notice or lapse of time or
both would ripen into a default under, any indenture, agreement, instrument
or obligation to which Purchaser is a party; and does not, and at the Closing
will not, constitute a violation of any Laws, order, rule or regulation
applicable to
19
<PAGE>
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.
20
<PAGE>
(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.
21
<PAGE>
(l) Purchaser shall have been successful in causing the formation of a
real estate investment trust whose interests have been sold to the public
pursuant to the Registered Offering and in connection therewith shall have
raised capital in an amount not less than $_____________________.
(m) Purchaser shall have entered into option agreements, acceptable in
form and substance to Purchaser, for the purchase of the Grantor Option
Properties, such agreements to provide for the closing of the purchase of the
Grantor Option Property as set forth therein.
With respect to the conditions precedent set forth in paragraphs (a),
(b), (d), (e), (f), (g), (h), (i), (j), (k) and (m) of this Section 6.1,
Purchaser shall have the right to determine whether each of said conditions
has been satisfied separately with respect to each individual Property or
Grantor Option Property, and if Purchaser shall determine that any of said
conditions have not been satisfied with respect to any one or more individual
Property or Grantor Option Property, Purchaser shall have the right,
notwithstanding the provisions of Section 6.2 hereof (subject, however, to
the provisions of Section 6.3(e) hereof), to terminate this Agreement with
respect to any one or more individual Property as to which any of such
conditions has not been satisfied, and to proceed with the Closing with
respect to the remaining Property.
6.2 FAILURE OF CONDITIONS TO PURCHASER'S OBLIGATIONS. In the event
any one or more of the conditions to Purchaser's obligations are not
satisfied or waived in whole or in part at any time prior to or as of the
Closing of a Property, Purchaser, at Purchaser's option, shall be entitled
to: (a) terminate this Agreement by giving written notice thereof to Seller,
whereupon all moneys, if any, which have been delivered by Purchaser to
Seller or the Title Company shall be immediately refunded to Purchaser and
Purchaser shall have no further obligations or liabilities hereunder; or (b)
proceed to Closing hereunder.
6.3 CONDITIONS TO THE SELLER'S OBLIGATIONS. The obligations of
Seller to sell a Property to Purchaser and to consummate the transactions
contemplated by this Agreement are subject to the satisfaction, at all times
prior to and as of the Closing with respect to such Property (or such other
time period specified below), of each of the following conditions:
(a) All of the representations and warranties of Purchaser set forth in
this Agreement shall be true at all times prior to, at and as of, the Closing
in all material respects and Purchaser shall deliver a Closing Certificate in
substantially the same form attached hereto as EXHIBIT E updating such
representations and warranties.
(b) Purchaser shall have delivered, performed, observed and complied
with, all of the items, instruments, documents, covenants, agreements and
conditions required by this Agreement to be delivered, performed, observed
and complied with by it prior to, or as of, the Closing.
22
<PAGE>
(c) Purchaser shall not be in receivership or dissolution or have made
any assignment for the benefit of creditors, or admitted in writing its
inability to pay its debts as they mature, or have been adjudicated a
bankrupt, or have filed a petition in voluntary bankruptcy, a petition or
answer seeking reorganization or an arrangement with creditors under the
federal bankruptcy law or any other similar law or statute of the United
States or any state and no such petition shall have been filed against it.
(d) Purchaser shall have been successful in causing the formation of a
real estate investment trust whose interests have been sold to the public
pursuant to the Registered Offering and in connection therewith shall have
raised capital in an amount not less than $______________________.
(e) Purchaser has not elected to terminate this Agreement with respect
to any Properties with an aggregate Purchase Price in excess of
$__________________.
(f) Purchaser has entered into a Lease with respect to each Property
being purchased by Purchaser effective upon and following the Closing of such
Property.
6.4 FAILURE OF CONDITIONS TO SELLER'S OBLIGATIONS. In the event any
one or more of the conditions to Seller's obligations are not satisfied or
waived in whole or in part at any time prior to or as of the Closing, Seller,
at Seller's option, shall be entitled to: (a) terminate this Agreement by
giving written notice thereof to Purchaser, whereupon all moneys, if any,
which have been delivered by Seller to Purchaser or the Title Company shall
be immediately refunded to Seller and Seller shall have no further
obligations or liabilities hereunder; or (b) proceed to Closing hereunder.
ARTICLE VII.
PROVISIONS WITH RESPECT TO THE CLOSING
7.1 SELLER'S CLOSING OBLIGATIONS. At the Closing with respect to a
Property, Seller shall furnish and deliver to the Purchaser, at Seller's
expense, the following:
(a) The Deed, Title Policy (or the Title Commitment marked-up and
initialed by the Title Company), Assignment, Bill 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.
23
<PAGE>
(b) Certificates of casualty and fire insurance for the Property and
satisfactory evidence of all other insurance coverages as required pursuant
to the Lease showing Purchaser as additional insured and loss payee
thereunder, as required by the Lease, with appropriate provisions for prior
notice to Purchaser in the event of cancellation or termination of such
policies and otherwise in form and substance as required by the Lease.
(c) Search Reports, dated not more than fifteen (15) days prior to
Closing, evidencing no UCC-1 Financing Statements or other filings in the
name of Seller with respect to the Property which will remain on the Property
after the Closing or an indemnification in form reasonably acceptable to
Seller and Purchaser with respect to any such UCC-1 Financing Statements or
other filings.
(d) Such affidavits or letters of indemnity as the Title Company shall
reasonably require in order to omit from the Title Policy all exceptions for
unfiled mechanic's, materialman's or similar liens and rights of parties in
possession (other than Seller under the Lease and other tenants under leases
disclosed in the Due Diligence Materials).
(e) Any and all transfer declarations or disclosure documents, duly
executed by the appropriate parties, required in connection with the Deed by
any state, county or municipal agency having jurisdiction over the Property
or the transactions contemplated hereby.
(f) An opinion of Seller's counsel, dated as of the Closing Date, in
the form of EXHIBIT N-1, attached hereto.
(g) Such instruments or documents as are necessary, or reasonably
required by Purchaser or the Title Company, to evidence the status and
capacity of Seller and the authority of the person or persons who are
executing the various documents on behalf of Seller in connection with the
purchase and sale transaction contemplated hereby.
(h) Such other documents as are reasonably required by Purchaser to
carry out the terms and provisions of this Agreement.
(i) All necessary approvals, consents, certificates and the like of
third parties to the validity and effectiveness of the transactions
contemplated hereby.
7.2 PURCHASER'S CLOSING OBLIGATIONS. At the Closing with respect to
a Property, Purchaser shall furnish and deliver to Seller, at Purchaser's
expense, the following:
(a) Federal Reserve, wire transfer funds or other immediately available
collected funds payable to the order of Seller representing the cash portion
of the Purchase Price due in accordance with Section 3.1 herein.
24
<PAGE>
(b) The Closing Certificate, Right to Purchase Agreement, Lease,
Assignment and Seller Option Agreement duly executed and acknowledged by
Purchaser.
(c) Such instruments or documents as are necessary, or reasonably
required by Seller or the Title Company, to evidence the status and capacity
of Purchaser and the authority of the person or persons who are executing the
various documents on behalf of Purchaser in connection with the purchase and
sale transaction contemplated hereby.
(d) An opinion of Purchaser's counsel, dated as of the Closing Date, in
the form of EXHIBIT N-2, attached hereto.
(e) Such other documents as are reasonably required by Seller to carry
out the terms and provisions of this Agreement.
(f) All necessary approvals, consents, certificates and the like of
third parties to the validity and effectiveness of the transaction
contemplated hereby.
7.3 PURCHASER'S CLOSING OBLIGATIONS RESPECTING GRANTOR OPTION
PROPERTY. Upon each closing of the purchase of any Grantor Option Property,
Purchaser hereby agrees that it will, at such closing, furnish and deliver to
Seller, at Purchaser's expense, the Lease, duly executed and acknowledged by
Purchaser, as appropriate, with respect to such Grantor Option Property.
ARTICLE VIII.
EXPENSES OF CLOSING
8.1 ADJUSTMENTS. There shall be no adjustment of taxes,
assessments, water or sewer charges, gas, electric, telephone or other
utilities, operating expenses, employment charges, premiums on insurance
policies, rents or other normally proratable items, it being agreed and
understood by the Parties that the Seller shall be obligated to pay such
items after Closing under the terms of the Lease.
8.2 CLOSING COSTS. Seller shall pay (a) all title examination fees
and premiums for the Title Policy; (b) the cost of the Search Reports; (c)
the cost of the Survey; (d) Seller's legal, accounting and other professional
fees and expenses and the cost of all opinions, certificates, instruments,
documents and papers required to be delivered, or to cause to be delivered,
by Seller hereunder, including without limitation, the cost of performance by
Seller of its obligations hereunder; (e) all other costs and expenses which
are required to be paid by Seller pursuant to other provisions of this
Agreement; (f) any and all state, municipal or other documentary or transfer
taxes payable in connection with the delivery of any instrument or
25
<PAGE>
document provided in or contemplated by this Agreement or any agreement or
commitment described or referred to herein; and (g) the charges for or in
connection with the recording and/or filing of any instrument or document
provided herein or contemplated by this Agreement or any agreement or document
described or referred to herein. Purchaser shall pay (x) Purchaser's legal,
accounting and other professional fees and expenses and the cost of all
opinions, certificates, instruments, documents and papers required to be
delivered, or to cause to be delivered, by Purchaser hereunder, including,
without limitation, the cost of performance by Purchaser of its obligations
hereunder; (y) all costs and expenses, if any, in any way relating to any
financing which Purchaser obtains in connection with its purchase of the
Property; and (z) all other costs and expenses which are required to be paid
by Purchaser pursuant to other provisions of this Agreement. Purchaser and
Seller shall each be responsible for other costs in the usual and customary
manner for this kind of transaction in the county where the Property is
located.
8.3 COMMISSIONS/BROKER'S FEES. Seller hereby represents and
warrants to Purchaser that it has not contacted any real estate broker,
finder or any other party in connection with this transaction, and that it
has not taken any action which would result in any real estate broker's,
finder's or other fees being due or payable to any party with respect to the
transaction contemplated hereby. Purchaser hereby represents and warrants to
Seller that Purchaser has not contacted any real estate broker, finder or any
other party in connection with this transaction, and that it has not taken
any action which would result in any real estate broker's, finder's or other
fees being due or payable to any party with respect to the transaction
contemplated hereby. Each Party hereby indemnifies and agrees to hold the
other Party harmless from any loss, liability, damage, cost or expenses
(including reasonable attorneys' fees) resulting to such other Party by
reason of a breach of the representation and warranty made by such Party
herein.
ARTICLE IX.
DEFAULT AND REMEDIES
9.1 SELLER'S DEFAULT; PURCHASER'S REMEDIES.
(a) SELLER'S DEFAULT. Seller shall be deemed to be in default
hereunder upon the occurrence of one of the following events: (i) any of
Seller's warranties or representations set forth herein shall be untrue in
any material re spect when made or at Closing; or (ii) Seller shall fail to
meet, comply with, or perform any covenant, agreement or obligation on its
part required within the time limits and in the manner required in this
Agreement, which, in either of such events, is not cured by Seller within
10 days following receipt by Seller of written notice of default from
Purchaser.
26
<PAGE>
(b) PURCHASER'S REMEDIES. In the event Seller shall be deemed to be in
default hereunder Purchaser may, at Purchaser's sole option, do any one or
more of the following: (i) terminate this Agreement by written notice
delivered to Seller on or before the Closing; and/or (ii) enforce specific
performance of this Agreement against Seller including Purchaser's reasonable
costs and attorneys' fees and court costs in connection therewith; and/or
(iii) exercise any other right or remedy Purchaser may have at law or in
equity by reason of such default including, but not limited to, the recovery
of reasonable attorneys' fees and court costs incurred by Purchaser in
connection herewith.
9.2 PURCHASER'S DEFAULT; SELLER'S REMEDIES.
(a) PURCHASER'S DEFAULT. Purchaser shall be deemed to be in default
hereunder upon the occurrence of one of the following events: (i) any of
Purchaser's warranties or representations set forth herein shall be untrue in
any material respect when made or at Closing; or (ii) Purchaser shall fail to
meet, comply with, or perform any covenant, agreement or obligation on its
part required within the time limits and in the manner required in this
Agreement, which, in either of such events, is not cured by Purchaser within
ten (10) days following receipt by Purchaser of written notice of default
from Seller.
(b) SELLER'S REMEDIES. In the event Purchaser shall be deemed to be in
default hereunder Seller may, at Seller's sole option, do any one or more of
the following: (i) terminate this Agreement by written notice delivered to
Purchaser on or before the Closing; and/or (ii) enforce specific performance
of this Agreement against Purchaser including Seller's reasonable costs and
attorneys' fees and court costs in connection therewith; and/or (iii)
exercise any other right or remedy Seller may have at law or in equity by
reason of such default including, but not limited to, the recovery of
reasonable attorneys' fees and court costs incurred by Seller in connection
herewith.
ARTICLE X.
MISCELLANEOUS
10.1 SURVIVAL. Except as otherwise specifically provided herein
(including Section 5.5), all of the representations, warranties, covenants,
agreements and indemnities of Seller and Purchaser contained in this
Agreement, to the extent not performed at the Closing, shall not survive the
Closing but shall be deemed to merge upon the acceptance of the Deed and
Assignment by Purchaser.
10.2 RIGHT OF ASSIGNMENT. Neither this Agreement nor any interest
herein may be assigned or transferred by either Party to any person, firm,
corporation or other entity without the prior written consent of the other
Party, which consent may be given or withheld in the sole discretion of such
other Party.
27
<PAGE>
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
1221 Baltimore Avenue
Kansas City, Missouri 64105
Phone: (816) 480-4649
Fax: (816) 480-4617
Attention: Robert L. Harris, President
With a copy to: Stinson, Mag & Fizzell, P.C.
1201 Walnut, Suite 2800
Kansas City, Missouri 64105
Phone: (816) 691-3180
Fax: (816) 691-3495
Attention: Michael G. O'Flaherty
If intended for Seller: AMC Entertainment Inc.
106 West 14th Street
Kansas City, Missouri 64105
Phone: (816) 221-4000
Fax: (816) 480-4617
Attention: Peter C. Brown, President
With a copy to: Lathrop & Gage L.C.
2345 Grand Boulevard, Suite 2800
Kansas City, Missouri 64108
Phone: (816) 460-5515
Fax: (816) 292-2001
Attention: E.T. Bullard
or at such other address, and to the attention of such other person, as the
parties shall give notice as herein provided. A notice, request and other
communication shall be deemed to be duly received if delivered in person or
by a recognized delivery service, when delivered to the address of the
recipient, if sent by mail, on the date of receipt by the recipient as shown
on the return receipt card, or if sent by facsimile, upon receipt by the
sender of an acknowledgment or transmission report generated by the machine
from which the facsimile was sent indicating that the facsimile was sent in
its entirety to the recipient's facsimile number; provided that if a notice,
request or other communication is served by hand or is received by facsimile
on a day which is not a Business Day, or after 5:00 P.M. on any
28
<PAGE>
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
Jackson County, Missouri or the U.S. District Court for the Western District
of Missouri and, accordingly, consent thereto.
10.6 CAPTIONS. The captions in this Agreement are inserted for
convenience of reference only and in no way define, describe, or limit the
scope or intent of this Agreement or any of the provisions hereof.
10.7 BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the Parties hereto and their respective successors
and assigns.
10.8 TIME IS OF THE ESSENCE. With respect to all provisions of this
Agreement, time is of the essence. However, if the first date of any period
which is set out in any provision of this Agreement falls on a day which is
not a Business Day, then, in such event, the time of such period shall be
extended to the next day which is a Business Day.
10.9 WAIVER OF CONDITIONS. Any Party may at any time or times, at
its election, waive any of the conditions to its obligations hereunder, but
any such waiver shall be effective only if contained in a writing signed by
such Party. No waiver by a Party of any breach of this Agreement or of any
warranty or representation hereunder by the other Party shall be deemed to be
a waiver of any other breach by such other Party (whether preceding or
succeeding and whether or not of the same or similar nature), and no
acceptance of payment or performance by a Party after any breach by the other
Party shall be deemed to be a waiver of any breach of this Agreement or of
any representation or warranty hereunder by such other Party, whether or not
the first Party knows of such breach at the time it accepts such payment or
performance. No failure or delay by a Party to exercise any right it may
have by reason of the
29
<PAGE>
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.
30
<PAGE>
10.16 COUNTERPARTS. This Agreement may be executed at different times
and in any number of counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature
page to this Agreement by telecopier shall be as effective as delivery of a
manually executed counterpart of this Agreement. In proving this Agreement,
it shall not be necessary to produce or account for more than one such
counterpart signed by the Party against whom enforcement is sought.
10.17 JOINT AND SEVERAL LIABILITY. The obligations of the
parties-Seller under this Agreement, and under all of the documents and
instruments entered into in accordance with the provisions of this Agreement,
are joint and several.
10.18 NON-ASSIGNABLE AGREEMENT. Seller hereby covenants and agrees to
use its best reasonable efforts to obtain all necessary consents to the
assignment of any of the Business Agreements, Warranties, Permits and
Engineering Documents (for the purposes of this Section 10.18, the terms
Business Agreements, Warranties, Permits and Engineering Documents shall
include all agreements, documents and instruments included within such
definitions, whether or not the same are assignable by Seller) as Purchaser
and Seller shall mutually agree upon. If and to the extent that any of the
Business Agreements, Warranties, Permits and Engineering Documents are not
assignable without the consent or approval of a third party, and either (a)
Purchaser does not request that Seller obtain such approval, or (b) Seller is
unable to obtain such approval following Purchaser's request that Seller
obtain such consent or approval, then, in either of such cases, and subject
to the Purchaser's rights as hereinafter provided, Seller hereby agrees and
acknowledges that it will, from and after Closing, own and hold such Busin
ess Agreements, Warranties, Permits and Engineering Documents as agent on
behalf of and for the benefit of Purchaser, and Seller will from time to time
execute such documents as Purchaser shall reasonably require to evidence that
Seller own and hold such Business Agreements, Warranties, Permits and
Engineering Documents as agent on behalf of and for the benefit of Purchaser.
If Purchaser requests that Seller obtain any required third party consents
for the assignment by Seller to Purchaser of any of the Business Agreements,
Warranties, Permits and Engineering Documents, and Seller is unable to obtain
such consent or approval, then Purchaser shall have the rights to determine
that the Due Diligence Materials with respect to the Property or Due
Diligence Property in question are not acceptable to Purchaser, and to
exercise Purchaser's rights under Section 6.1 hereof. The provisions of this
Section 10.18 shall not terminate or expire as otherwise provided in this
Agreement, but the covenants and agreements in this Section 10.18 shall
survive and continue in full force and effect at all times after Closing.
10.19 WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY
OTHER PARTY ON ANY MATTER ARISING OUT OF OR IN
31
<PAGE>
ANY WAY CONNECTED WITH THIS AGREEMENT OR THE OTHER AGREEMENTS.
EXECUTED to be effective as of the Effective Date.
SELLER: PURCHASER:
AMERICAN MULTI-CINEMA, INC., ENTERTAINMENT PROPERTIES TRUST,
A MISSOURI CORPORATION A MARYLAND REAL ESTATE INVESTMENT TRUST
By:______________________________ By: ___________________________
Name: Peter C. Brown Name: Robert L. Harris
Title: Executive Vice President Title: President
and CFO
Seller's Tax Identification Number: Purchaser's Tax Identification Number:
___________________________________ _______________________________________
AMC REALTY, INC., A DELAWARE
CORPORATION
By: ________________________________
Name: Peter C. Brown
Title: Executive Vice President
and CFO
Seller's Tax Identification Number:
___________________________________
32
<PAGE>
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 Leawood Town Center 20, Kansas City, MO
Promenade 16, Los Angeles, CA South Barrington 30, Chicago, IL
Ontario Mills 30, Los Angeles, CA Mission Valley 20, San Diego, CA
West Olive 16, St. Louis, MO Lennox 24, Columbus, OH
Studio 30, Houston, TX First Colony 24, Houston, TX
Huebner Oaks 24, San Antonio, TX Oakview 24, Omaha, NE
November ___, 1997
Michael G. O'Flaherty E.T. Bullard
Stinson, Mag & Fizzell, P.C. Lathrop & Gage L.C.
1201 Walnut Suite 2500
Suite 2800 2345 Grand Boulevard
Kansas City, Missouri 64105 Kansas City, Missouri 64108
Telephone: (816) 691-3180 Telephone: (816) 292-2000
Telecopy: (816) 691-3495 Telecopier: (816) 292-2001
Counsel to Purchaser Counsel to Seller
<PAGE>
TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS. . . . . . . . . . . . . . . . . . . .1
ARTICLE II.
OPTION TO SELL AND PURCHASE AND AGREEMENT TO
LEASE
2.1 Option to Sell and Purchase . . . . . . . . 10
2.2 Exercise of Option . . . . . . . . . . . 10
2.3 Seller Option Property Purchase Price . . . 10
2.4 Limitations to Option . . . . . . . . . . . 10
ARTICLE III.
PURCHASE PRICE . . . . . . . . . . . . . . . . . 10
3.1 Payment of Purchase Price . . . . . . . . . 10
ARTICLE IV.
ITEMS TO BE FURNISHED TO PURCHASER BY SELLER . . 11
4.1 Due Diligence Materials . . . . . . . . . . 11
4.2 Due Diligence Review. . . . . . . . . . . . 12
4.3 Investigations. . . . . . . . . . . . . . . 12
4.4 Restoration After Investigations. . . . . . 12
ARTICLE V.
REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS . . . . . . . . . . . . . . . . . . . 13
5.1 Representations and Warranties of Seller. . 13
5.2 Seller Indemnification. . . . . . . . . . . 17
5.3 Covenants and Agreements of Seller. . . . . 17
5.4 Representations and Warranties of Purchaser 19
5.5 Survival. . . . . . . . . . . . . . . . . . 20
i
<PAGE>
ARTICLE VI.
CONDITIONS TO OBLIGATIONS. . . . . . . . . . . . 20
6.1 Conditions to the Purchaser's Obligations . 20
6.2 Failure of Conditions to Purchaser's
Obligations. . . . . . . . . . . . . . . . 22
6.3 Conditions to the Seller's Obligations . . 22
6.4 Failure of Conditions to Seller's
Obligations. . . . . . . . . . . . . . . . 23
ARTICLE VII.
PROVISIONS WITH RESPECT TO THE CLOSING . . . . . 23
7.1 Seller's Closing Obligations. . . . . . . . 23
7.2 Purchaser's Closing Obligations . . . . . . 24
7.3 Purchaser's Closing Obligations Respecting
Grantor Option Property . . . . . . . . . . 25
ARTICLE VIII.
EXPENSES OF CLOSING. . . . . . . . . . . . . . . 25
8.1 Adjustments . . . . . . . . . . . . . . . . 25
8.2 Closing Costs . . . . . . . . . . . . . . . 25
8.3 Commissions/Broker's Fees . . . . . . . . . 26
ARTICLE IX.
DEFAULT AND REMEDIES . . . . . . . . . . . . . . 26
9.1 Seller's Default; Purchaser's Remedies. . . 26
a. Seller's Default. . . . . . . . . 26
b. Purchaser's Remedies. . . . . . . 27
9.2 Purchaser's Default; Seller's Remedies. . . 27
a. Purchaser's Default . . . . . . . 27
b. Seller's Remedies . . . . . . . . 27
ARTICLE X.
MISCELLANEOUS. . . . . . . . . . . . . . . . . . 27
10.1 Survival. . . . . . . . . . . . . . . . . . 27
10.2 Right of Assignment . . . . . . . . . . . . 27
10.3 Notices . . . . . . . . . . . . . . . . . . 28
10.4 Entire Agreement; Modifications . . . . . . 29
10.5 Applicable Law. . . . . . . . . . . . . . . 29
ii
<PAGE>
10.6 Captions. . . . . . . . . . . . . . . . . . 29
10.7 Binding Effect. . . . . . . . . . . . . . . 29
10.8 Time is of the Essence. . . . . . . . . . . 29
10.9 Waiver of Conditions. . . . . . . . . . . . 29
10.10 Confidentiality . . . . . . . . . . . . . . 30
10.11 Attorneys' Fees . . . . . . . . . . . . . . 30
10.12 Remedies Cumulative . . . . . . . . . . . . 30
10.13 Terminology . . . . . . . . . . . . . . . . 30
10.14 Estoppel. . . . . . . . . . . . . . . . . . 30
10.15 Joint Preparation . . . . . . . . . . . . . 30
10.16 Counterparts. . . . . . . . . . . . . . . . 31
10.17 Joint and Severable Liability . . . . . . . 31
10.18 Non-Assignable Agreement. . . . . . . . . . 31
10.19 Waiver of Jury Trial . . . . . . . . . . . 31
SCHEDULE OF EXHIBITS
A -- Property Descriptions (A-1 through A-17)
B -- Assignment of Ground Lease
C -- Bill of Sale
D -- Certificate of Non-Foreign Status
E -- Closing Certificate
F -- Deed (F-1 through F-3)
G -- Excluded Personal Property
H -- Lease
I -- Option Agreements
J -- Personal Property
K -- Purchase Price
L -- Right to Purchase Agreement
M -- Form of Surveyor's Certification
N -- Opinions of Seller's and Purchaser's Counsel (N-1 and N-2)
iii
<PAGE>
AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (the "Agreement") is made and entered
into among AMERICAN MULTI-CINEMA, INC., a Missouri corporation, AMC REALTY,
INC., a Delaware corporation (hereinafter sometimes individually or jointly
referred to as "Seller" as the context requires), and ENTERTAINMENT
PROPERTIES TRUST, a Maryland real estate investment trust (hereinafter
referred to as "Purchaser"). Seller and Purchaser are sometimes collectively
referred to herein as the "Parties" and each of the Parties is sometimes
singularly referred to herein as a "Party".
WHEREAS, Seller is the owner of the Properties (as hereinafter defined);
and,
WHEREAS, Seller desires to sell and Purchaser desires to purchase each
Property, and simultaneously therewith, to enter into a lease transaction
pursuant to which Purchaser shall, as the case may be, lease or sublease to
Seller, and Seller shall lease or sublease from Purchaser, each such Property.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00), the
mutual covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties agree as follows:
ARTICLE I.
DEFINITIONS
As used herein (including any Exhibits attached hereto), the following
terms shall have the meanings indicated:
"APPLICABLE NOTICES" shall mean any reports, notices of violation, or
notices of compliance issued in connection with any Permits.
"ASSIGNMENT" shall mean an assignment or assignments in substantially the
same form as EXHIBIT B, attached hereto and made a part hereof, and
sufficient to transfer to Purchaser all of Seller's right, title and interest
as lessee in the Ground Leases.
"BILL OF SALE" shall mean a bill 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.
1
<PAGE>
"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 Lathrop & Gage
L.C., 2345 Grand Boulevard, Suite 2800, Kansas City, Missouri, or such other
place as the Parties may mutually agree.
"CLOSING CERTIFICATE" shall mean a certificate in substantially the same
form as EXHIBIT E, attached hereto and made a part hereof, wherein Seller and
Purchaser, respectively, shall represent that the representations and
warranties of Seller and Purchaser, respectively, contained in this Agreement
are true and correct in all material respects as of the Closing Date as if
made on and as of the Closing Date.
"CLOSING DATE" shall mean the actual day on which the transfer to
Purchaser of title to a Property is closed. The Parties agree that each
Closing Date shall be a date designated in writing by Seller to Purchaser
which date shall not (a) with respect to any Property on which the theatre
thereon is open on the closing of the Registered Offering, be earlier than
the closing of the Registered Offering or later than twenty (20) days
following the closing of the Registered Offering, or (b) with respect to any
Property on which the theatre thereon is not open on the closing of the
Registered Offering, be earlier than the actual opening date of the theatre
thereon or later than sixty (60) days following the actual opening date of
the theatre thereon, or (c) such earlier or later date as shall be hereafter
mutually agreed upon by the Parties.
"DEED" shall mean a special warranty deed or deeds in substantially the
same form as EXHIBIT F-1, F-2 OR F-3, attached hereto and made a part hereof
(as the same may be modified to comply with local law and custom), executed
by Seller, as grantor, in favor
2
<PAGE>
of Purchaser, as grantee, conveying the Land and Improvements to Purchaser,
subject only to the Permitted Exceptions.
"DUE DILIGENCE MATERIALS" shall mean the information to be provided by
Seller to Purchaser pursuant to the provisions of Section 4.1 hereof.
"EFFECTIVE DATE" shall mean the later of the two (2) dates on which this
Agreement is signed and all changes initialed by Seller and Purchaser, as
indicated by their signatures below; provided, that in the event only one
Party dates its signature, then the date of its signature shall be the
Effective Date.
"ENGINEERING DOCUMENTS" shall mean all site plans, surveys, soil and
substrata studies, architectural drawings, plans and specifications,
engineering plans and studies, floor plans, landscape plans, Americans with
Disabilities Act compliance reports, environmental reports and studies,
professional inspection reports, construction and/or architect's reports or
certificates, feasibility studies, appraisals, and other similar plans and
studies in the possession or control of Seller that relate to the Real
Property or the Personal Property, to the extent the same are assignable by
Seller.
"EXCEPTION DOCUMENTS" shall mean true, correct and legible copies of
each document listed as an exception to title in the Title Commitment.
"EXCLUDED PERSONAL PROPERTY" shall mean all those items of tangible and
intangible personal property described on EXHIBIT G, attached hereto and made
a part hereof.
"FIXTURES" shall mean all equipment, machinery, fixtures, and other
items of real and/or personal property, including all components thereof, now
or on the Closing Date located in, on or used in connection with, and
permanently affixed to or incorporated into, the Improvements, including,
without limitation, all furnaces, boilers, heaters, electrical equipment,
electronic security equipment, heating, plumbing, lighting, ventilating,
refrigerating, incineration, air and water pollution control, waste disposal,
air-cooling and air-conditioning systems and apparatus, sprinkler systems and
fire and theft protection equipment, and similar systems, all of which, to
the greatest extent permitted by law, are hereby deemed by the Parties to
constitute real estate, together with all replacements, modifications,
alterations and additions thereto, but specifically excluding all items
included within the definition of Personal Property and Excluded Personal
Property.
"GRANTOR" means Clip Funding, Limited Partnership, a Delaware limited
partnership.
"GRANTOR OPTION AGREEMENT" shall mean the Grantor Option Agreement, in
substantially the same form as Exhibit I-2, attached hereto and made a part
hereof, which
3
<PAGE>
shall be executed and delivered by Grantor and Purchaser at the closing of
the Registered Offering, and pursuant to which Grantor shall grant Purchaser
an exclusive option to acquire the Grantor Option Properties.
"GRANTOR OPTION PROPERTIES" shall mean the real property described on
Exhibits A-15 through A-17, attached hereto and made a part hereof, and any
other property of Grantor more particularly set forth in the Grantor Option
Agreement.
"GROUND LEASES" shall mean those leases pursuant to which Seller has
leased certain land on which it has constructed certain improvements with
respect to the Leased Real Property.
"HAZARDOUS MATERIALS" shall mean (a) "hazardous substances" or "toxic
substances" as those terms are defined by the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C.
Section 9601 ET SEQ., or by the Hazardous Materials Transportation Act, 49
U.S.C. Section 1802 ET SEQ., all as now and hereafter amended; (b) "hazardous
wastes", as that term is defined by the Resource Conservation and Recovery
Act of 1976 ("RCRA"), 42 U.S.C. Section 6902 ET SEQ., as now and hereafter
amended; (c) any pollutant or contaminant or hazardous, dangerous or toxic
chemicals, materials or substances within the meaning of any other applicable
federal, state or local law, regulation, ordinance or requirement (including
consent decrees and administrative orders) relating to or imposing liability
or standards of conduct concerning any hazardous, toxic or dangerous waste
substances or materials, all as now and hereafter amended; (d) petroleum
including crude oil or any fraction thereof; (e) any radioactive material,
including any source, special nuclear or by-product material as defined at 42
U.S.C. Section 2011 ET SEQ., as now and hereafter amended; (f) asbestos in
any form or condition; and (g) polychlorinated biphenyl ("PCBs") or
substances or compounds containing PCBs.
"HAZARDOUS MATERIALS LAW" shall mean any local, state or federal law
relating to environmental conditions or industrial hygiene, including,
without limitation, RCRA, CERCLA, as amended by the Superfund Amendments and
Reauthorization Act of 1986 ("SARA"), the Hazardous Materials Transportation
Act, the Federal Waste Pollution Control Act, the Clean Air Act, the Clean
Water Act, the Toxic Substances Control Act, the Safe Drinking Water Act, and
all similar federal, state and local environmental statutes and ordinances
and the regulations, orders, or decrees now or hereafter promulgated
thereunder.
"IMPROVEMENTS" shall mean the Leased Improvements and Owned Improvements.
"INTANGIBLE PROPERTY" shall mean all Permits, Business Agreements and
other intangible property or any interest therein now or on the Closing Date
owned or held by Seller in connection with the Real Property, including all
water rights and reservations,
4
<PAGE>
rights to use the trade name applicable to the Property, as set forth on
EXHIBITS A-1 THROUGH A-12 hereof, and zoning rights related to the Real
Property, or any part thereof, to the extent the same are assignable by
Seller; provided, however, "Intangible Property" shall not include the
general corporate trademarks, trade names, except as set forth above, service
marks, logos or insignia or the books and records of Seller, Seller's
accounts receivable and Seller's business and operating licenses for the
facilities on the Real Property.
"KNOWLEDGE" shall mean actual knowledge of Seller or Purchaser, as the
case may be, at the time the representation is made or deemed to have been
made with no affirmative duty of inquiry or investigation.
"LAND" shall mean the Owned Real Property and the Leased Real Property.
"LAWS" shall mean all federal, state and local laws, moratoria,
initiatives, referenda, ordinances, rules, regulations, standards, orders and
other governmental requirements, including, without limitation, those
relating to the environment, health and safety and disabled or handicapped
persons.
"LEASE" shall mean the Lease in substantially the same form as EXHIBIT
H-1, attached hereto and made a part hereof, which shall be executed and
delivered by Seller (or an affiliate of Seller) and Purchaser at the Closing,
and pursuant to the terms of which Purchaser shall lease a Property to
American Multi-Cinema, Inc. following the Closing. Each such Lease will be
guaranteed by AMC Entertainment, Inc. pursuant to a Guaranty of Lease,
substantially in the form of Exhibit H-2, attached hereto and made a part
hereof.
"LEASED IMPROVEMENTS" shall mean all buildings, improvements, structures
and Fixtures now or on the Closing Date located on the Leased Real Property,
including, without limitation, landscaping, parking lots and structures,
roads, drainage and all above ground and underground utility structures,
equipment systems and other so-called "infrastructure" improvements.
"LEASED REAL PROPERTY" shall mean the real property legally described on
EXHIBITS A-9 through A-12, attached hereto and made a part hereof, together
with all of Seller's rights, titles, appurtenant interests, covenants,
licenses, privileges and benefits thereunto belonging, and Seller's right,
title and interest in and to any easements, rights-of-way, rights of ingress
or egress or other interests in, on or under any land, highway, street, road
or avenue, open or proposed, in, on, across, in front of, abutting or
adjoining such real property including, without limitation, any strips and
gores adjacent to or lying between such real property and any adjacent real
property.
"LEASED INTERESTS" shall mean (a) the leasehold estates in the Leased
Real Property as created by the Ground Leases, and all rights and interests
created by the Ground Leases, (b) all of Seller's right, title and interest
in the Leased Improvements as created by the Ground
5
<PAGE>
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.
6
<PAGE>
"PERMITTED EXCEPTIONS" shall mean those title exceptions which have been
approved in writing by Purchaser, or are deemed to have been approved by
Purchaser upon the expiration of the Review Period.
"PERSONAL PROPERTY" shall mean all Intangible Property, Warranties, and
Engineering Documents, and all those items of tangible personal property
described on EXHIBIT J, attached hereto and made a part hereof, other than
the Fixtures and the Excluded Personal Property, now or on the Closing Date
owned by Seller and located on or about the Land or Improvements or used in
connection with the operation thereof (specifically excluding personal
property owned by employees of Seller).
"PROPERTIES" shall mean, collectively, the Owned Real Property, the
Owned Improvements, the Leasehold Interests, the Fixtures, and the Personal
Property. A "Property" shall mean the Land, the Improvements, the Fixtures
and the Personal Property related to a particular Exhibit A-1 through A-12
Property.
"PURCHASE PRICE" shall mean the approximate aggregate sum of
$249,856,000.00, which is allocated to each individual Property as set forth
on EXHIBIT K attached hereto and made a part hereof. The Purchase Price with
respect to a Property shall be calculated by Seller and shall equal the cost
to Seller of developing and constructing such Property and shall include
actual land and construction costs of such Property and so-called soft or
development costs allocated to such Property. With respect to any Property
on which the theatre thereon is not open on the closing of the Registered
Offering, the Purchase Price to be paid at the closing of each such Property
shall be the amount for such Property so provided in Exhibit K; provided,
however, that if such amount does not equal the cost to Seller of developing
and constructing such Property, the difference between the Purchase Price
paid at the Closing of such Property and the cost to Seller of developing and
constructing such Property shall be paid to Seller or as applicable, on the
date which is 60 days from the Closing Date of such Property.
"REAL PROPERTY" shall mean the Land, the Improvements and the Fixtures.
"REGISTERED OFFERING" shall be the public offering by Purchaser
described in Section 5.3.j. hereof.
"REVIEW PERIOD" shall mean a period commencing on the Effective Date and
ending thirty (30) days from the date of Purchaser's receipt of the last of
the Due Diligence Materials; provided, should the Effective Date be less than
thirty (30) days prior to the Closing Date, the Review Period shall terminate
on the date which is five (5) days prior to the Closing Date.
"RIGHT TO PURCHASE AGREEMENT" shall mean the Right to Purchase Agreement
in substantially the same form as EXHIBIT L, attached hereto and made a part
hereof, which shall be executed and delivered by the Parties at the Closing,
and pursuant to the terms of which
7
<PAGE>
Seller shall agree to a duty of first offer and grant to Purchaser a right of
first refusal for Purchaser to acquire certain property of Seller.
"SEARCH REPORTS" shall mean reports of searches made of the Uniform
Commercial Code Records of the County in which each Property is located, and
of the office of the Secretary of State of the State in which each Property
is located and in the State in which the principal office of Seller is
located, which searches shall reflect that no Property is encumbered by liens
or security interests which will remain on such Property after the Closing.
The Search Reports shall be updated, at Seller's expense, at or within
fifteen (15) days prior to Closing.
"SELLER OPTION AGREEMENT" shall mean the Seller Option Agreement, in
substantially the same form as Exhibit I-1, attached hereto and made a part
hereof, which shall be executed and delivered by Seller to Purchaser at the
closing of the Registered Offering, and pursuant to which Seller shall grant
Purchaser an exclusive option to acquire the Seller Option Properties.
"SELLER OPTION PROPERTIES" shall mean the real property described on
Exhibits A-13, A-14, A-18, A-19 and A-20 attached hereto and made a part
hereof, and any other property of Seller more particularly set forth in the
Seller Option Agreement.
"SELLER'S OPERATING AND SERVICE AGREEMENTS" shall mean all management,
service and operating agreements and contracts entered into by Seller with
respect to a Property, including, but not limited to, agreements and
contracts relating to maintenance and repair at a Property, refuse service
agreements, pest control service agreements, landscaping agreements, parking
lot maintenance agreements, and snow removal contracts.
"SURVEY" shall mean a current "as-built" ALTA survey, certified to ALTA
requirements, prepared by an engineer or surveyor licensed in the State in
which the Land is located reasonably acceptable to Purchaser, which shall:
(a) include a narrative legal description of the Land by metes and bounds
(which shall include a reference to the recorded plat, if any), and a
computation of the area comprising the Land in both acres and gross square
feet (to the nearest one-thousandth of said respective measurement); (b)
accurately show the location on the Land of all improvements (dimensions
thereof at the ground surface level and the distance therefrom to the facing
exterior property lines of the Land), building and set-back lines, parking
spaces (including number of spaces), fences, evidence of abandoned fences,
ponds, creeks, streams, rivers, officially designated 100-year flood plains
and flood prone areas, canals, ditches, easements, roads, rights-of-way and
encroachments; (c) accurately show the location of encroachments, if any,
upon adjoining property, or from adjoining property, upon the Land; (d) state
the zoning classification of the Land; (e) be certified as of the date of the
Survey to the Seller, the Purchaser, the Title Company, and any third-party
lender designated by Purchaser; (f) legibly identify any and all recorded
matters shown on said Survey by appropriate volume and page recording
references; (g) show the
8
<PAGE>
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 Stewart Title Guaranty Company or the
national service office of another title insurance company licensed in each
state in which a Property is located selected by Seller and reasonably
satisfactory to Purchaser.
"TITLE POLICY" shall mean an ALTA Extended Coverage Owner's Policy (or
policies) of Title Insurance (10/17/92 Form), or comparable state promulgated
policies, with liability in the aggregate amount of the Purchase Price, dated
as of the Closing Date, issued by the Title Company, insuring title to the
fee interest (or ground lease interest, as applicable) in the Real Property
in Purchaser, subject only to the Permitted Exceptions and to the standard
printed exceptions included in the ALTA standard form owner's extended
coverage policy of title insurance, with the following modifications, if
available upon commercially reasonable terms and at commercially reasonable
costs: (a) the exception for survey matters shall be deleted and replaced by
an exception for the matters shown on the Survey; (b) the exception for ad
valorem taxes shall reflect only taxes for the current and subsequent years;
(c) any exception as to parties in possession shall be limited to rights of
Seller in possession, as lessee only, pursuant to the Lease; (d) there shall
be no general exception for visible and apparent easements or roads and
highways or similar items (with any exception for visible and apparent
easements or roads and highways or similar items to be specifically
referenced to and shown on the Survey and also identified by applicable
recording information); and (e) the Title Policy shall include such
endorsements as Purchaser shall reasonably require.
"TOTAL PROPERTIES" means the Properties and the Option Properties.
"WARRANTIES" shall mean all warranties and guaranties with respect to the
Real Property or Personal Property, whether express or implied, which Seller
now holds or under which Seller is the beneficiary, to the extent the same
are assignable by Seller.
9
<PAGE>
ARTICLE II
OPTION TO SELL AND PURCHASE AND AGREEMENT TO LEASE
2.1 OPTION TO SELL AND PURCHASE. Seller hereby grants Purchaser the
exclusive Option to purchase the Seller Option Properties for the Seller
Option Property Purchase Price (as defined herein) for each such Seller
Option Property. The Option with respect to a Seller Option Property shall
be exercisable by Purchaser, subject to the further provisions hereof, at any
time following the opening of the megaplex theatre on such Option Property
and shall expire at 5:00 p.m. on the ninetieth day following the opening of
the megaplex theatre on such Option Property, if not validly exercised by
Purchaser prior to such time. Upon Purchaser's valid exercise of the Option,
this Agreement shall be deemed a contract between Seller and Purchaser
whereby, on the Closing Date, Seller shall sell, convey, assign, transfer and
deliver to Purchaser and Purchaser shall purchase, acquire and accept from
Seller, the Seller Option Property, for the Purchase Price and subject to the
terms and conditions of this Agreement as the context requires.
2.2 EXERCISE OF OPTION. Purchaser may exercise the Option only by
providing to Seller Purchaser's written, unqualified notice of its exercise
of the Option, in accordance with the provisions of Section 10.3 hereof. The
effective time and date of such exercise shall be the date such notice is
deemed received by Seller pursuant to the provisions of Section 10.3 hereof.
In the event the Option is not duly exercised by Purchaser within the time
set forth in Section 2.1 above with respect to a Seller Option Property, the
Option and this Agreement shall expire and the Parties shall have no further
obligation hereunder with respect to such Seller Option Property.
Notwithstanding any other terms or provisions hereof, the Option shall not be
exercisable unless and until Seller has completed its development and
construction of the Improvements on the Seller Option Property (other than
minor punch list items, which shall be diligently and promptly completed
should Purchaser exercise the Option), the Seller Option Property is open for
business and Seller has received final certificates of use and occupancy, and
such other permits, licenses, approvals, agreements and authorizations as are
required for the operation of the Seller Option Property for its intended use.
2.3 SELLER OPTION PROPERTY PURCHASE PRICE. (A) The Purchase Price
with respect to the Seller Option Properties (the "Seller Option Property
Purchase Price") legally described on Exhibits A-13 and A-14 shall be
calculated by Seller and shall equal the cost to Seller of developing and
constructing each Seller Option Property and shall include actual land and
construction costs of such Seller Option Property and so-called soft or
development costs allocated to such Seller Option Property. The amount to be
paid at the Closing of each such Seller Option Property shall be an amount
reasonably estimated to be the cost to Seller of developing and constructing
such Seller Option Property; provided, however, on a date which is 60 days
from the Closing Date for such Seller Option Property, the Seller Option
Property Purchase Price shall finally be calculated by Seller and an
adjustment made to the amount paid by the Purchaser on the Closing Date by
payment by Purchaser or refund to Purchaser by Seller, as applicable.
(B) The Seller Option Property Purchase Price with respect to the
Seller Option Properties legally described on Exhibits A-18, A-19 and A-20
shall be the amount set forth on Exhibit K-1 attached hereto and made a part
hereof by this reference.
2.4. LIMITATIONS TO OPTION. Notwithstanding anything to the contrary
contained herein, Purchaser's right to exercise its option to purchase any of
the land parcels (the "pads") described in Exhibits A-18, A-19 and A-20 is
(a) subject to and contingent upon such pads not having been sold or under
contract for sale by Seller at the time of the exercise of Purchaser's Option
with respect to such pad; (b) subject to the exercise of Purchaser's Option
with respect to all pads at such theatre property remaining unsold at the
time of the exercise of such Option; and (c) not exercisable unless Purchaser
simultaneously and irrevocably exercises its option to purchase the Grantor
Option Property related to such pads pursuant to the Grantor Option Agreement.
ARTICLE III.
PURCHASE PRICE
3.1 PAYMENT OF PURCHASE PRICE. The Purchase Price for a Property
shall be paid by Purchaser delivering to the Seller at the Closing for such
Property Federal Reserve wire transfer funds or other immediately available
collected funds payable to the order of the Seller in the sum equal to the
Purchase Price for such Property, subject to adjustment as herein
10
<PAGE>
provided. On or before the Closing, the Parties shall agree on an allocation
of the Purchase Price as between the Real Property and the Personal Property
for each Property.
ARTICLE IV.
ITEMS TO BE FURNISHED TO PURCHASER BY SELLER
4.1 DUE DILIGENCE MATERIALS. As a courtesy and without warranty or
representation, except as expressly set forth herein, Seller previously has
delivered or made available (at the offices of Seller or its legal counsel)
to Purchaser for its review and/or copying, the following items respecting
the Land and the Property:
(a) True, correct, complete and legible copies of all Business
Agreements, Warranties, Permits, Applicable Notices, Engineering Documents
and Seller's Operating and Service Agreements (solely for the purposes of
this Section 4.1 and Section 10.19 hereof, the terms Business Agreements,
Warranties, Permits, and Engineering Documents shall include all agreements,
documents and instruments otherwise included within such definitions, whether
or not the same are assignable by Seller);
(b) True, correct, complete and legible copies of tax statements or
assessments for all real estate and personal property taxes assessed against
each Property for the current and the two prior calendar years, if available;
(c) True, correct, complete and legible listing of all Fixtures,
Personal Property and Excluded Personal Property, including a current
depreciation schedule;
(d) True, correct, complete and legible copies of all existing fire and
extended coverage insurance policies and any other insurance policies
pertaining to each Property or certificates setting forth all coverages and
deductibles with respect thereto, if any;
(e) True, correct, complete and legible copies of all instruments
evidencing, governing or securing the payment of any loans secured by each
Property or related thereto;
(f) True, correct, complete and legible copies of any and all
environmental studies or impact reports relating to each Property, if any,
and any approvals, conditions, orders or declarations issued by any
governmental authority relating thereto (such studies and reports shall
include, but not be limited to, reports indicating whether the Property is or
has been contaminated by Hazardous Materials and whether the Property is in
compliance with the Americans with Disabilities Act and Section 504 of the
Rehabilitation Act of 1973, as applicable);
11
<PAGE>
(g) True, correct, complete and legible copies of any and all
litigation files with respect to any pending litigation and claim files for
any claims made or threatened, the outcome of which might materially affect
each Property or the use and operation of each Property, together with
summaries and such other more detailed information as Purchaser may
reasonably request with respect to any other pending litigation or claim the
outcome of which might materially affect Seller or materially affect each
Property.
(h) The Title Commitment, Exception Documents, Survey and Search
Reports.
4.2 DUE DILIGENCE REVIEW. Prior to the Closing Date (and in the
event there is more than one Closing Date, prior to the last Closing Date
occurring pursuant to the terms hereof) (the "Review Period"), Purchaser has
been given the right and opportunity to review the Due Diligence Materials
delivered by Seller to Purchaser pursuant to the provisions of Section 4.1
above. By consummating the sale and purchase provided herein at Closing,
Purchaser shall be deemed to have accepted and approved the Due Diligence
Materials with respect to each Property purchased at such Closing, and the
Property, and to have waived to the extent Seller has the responsibility for
the same pursuant to the Lease, any such defect, deficiency or encumbrance
disclosed in the Due Diligence Materials with respect to each Property
purchased at such Closing, and to have accepted all exceptions to title
referenced in the Title Commitment, and all matters shown on the Survey, with
respect to each Property purchased at such Closing. Such accepted title
exceptions and survey matters shall be included in the term "Permitted
Exceptions" as used herein.
4.3 INVESTIGATIONS. During the Review Period, Purchaser and its
agents and designees have been given the right and opportunity to examine
each Property for the purpose of inspecting the same and making tests,
inquiries and examinations (collectively the "Investigations").
4.4 RESTORATION AFTER INVESTIGATIONS. Purchaser agrees, at its sole
expense, to cause the Property to be restored to substantially the same
condition it was in prior to such entry. In addition, Purchaser agrees to
indemnify, defend and hold Seller, its successors and assigns and the current
owner of the Land harmless for, from and against and to reimburse Seller with
respect to all claims for bodily injury, personal injury or property damage,
as well as any professional services lien, which may be asserted by reason of
the activities of Purchaser or its agents or designees during the
Investigations. The foregoing indemnity shall survive the Closing and/or any
termination of this Agreement and shall not operate as, or be deemed to be, an
indemnification against any claim arising as a result of any condition or
matter discovered as a result of the Investigations.
12
<PAGE>
ARTICLE V.
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
5.1 REPRESENTATIONS AND WARRANTIES OF SELLER. To induce Purchaser
to enter into this Agreement and to purchase the Property, Seller represents
and warrants to Purchaser as follows:
(a) Seller has and at each Closing will have, and will convey, transfer
and assign to Purchaser, good, indefeasible and insurable right and title to
the Land and its interest, as lessee, in the Ground Leases, free and clear of
any deeds of trust, mortgages, liens, encumbrances, leases, tenancies,
licenses, chattel mortgages, conditional sales agreements, security
interests, covenants, conditions, restrictions, judgments, rights-of-way,
easements, encroachments, claims and any other matters affecting title or use
of the Property, except the Permitted Exceptions.
(b) Seller has duly and validly authorized and executed this Agreement,
and has full right, title, power and authority to enter into this Agreement
and to consummate the transactions provided for herein, and the joinder of no
person or entity will be necessary to convey each Property fully and
completely to Purchaser at the Closing of such Property and to lease or
sublease such Property from Purchaser following such Closing. Sellers are
corporations duly organized, validly existing and in good standing under the
laws of the States of Missouri and Delaware, respectively, and are qualified
to do business in each state in which any of the Property owned or leased by
such Seller is located. The consummation of the transactions contemplated
herein does not require the approval of Seller's shareholders or any third
party, except such third party approvals as Seller has obtained or will
obtain prior to each Closing Date. The execution by Seller of this Agreement
and the consummation by Seller of the transactions contemplated hereby do
not, and at the Closing will not, result in a breach of any of the terms or
provisions of, or constitute a default or a condition which upon notice or
lapse of time or both would ripen into a default under, Seller's Bylaws or
Certificate of Incorporation, any indenture, agreement, instrument or
obligation to which Seller is a party or by which any Property or any portion
thereof is bound; and does not constitute a violation of any Laws, order,
rule or regulation applicable to Seller or any portion of a Property of any
court or of any federal, state or municipal regulatory body or administrative
agency or other governmental body having jurisdiction over Seller or any
portion of a Property.
(c) There are no adverse parties in possession of a Property or of any
part thereof. Seller has not granted to any party any license, lease or
other right relating to the use or possession of a Property, except as set
forth in the Permitted Exceptions or provided to Purchaser in the Due
Diligence Materials.
13
<PAGE>
(d) Except as provided to Purchaser in the Due Diligence Materials, no
written notice has been received from any insurance company that has issued
a policy with respect to any portion of a Property or from any board of fire
underwriters (or other body exercising similar functions), claiming any
defects or deficiencies or requiring the performance of any repairs,
replacements, alterations or other work and as of the Closing no such written
notice will have been received which shall not have been cured. No written
notice has been received by Seller from any issuing insurance company that
any of such policies will not be renewed, or will be renewed only at a
higher premium rate than is presently payable therefor.
(e) No pending condemnation, eminent domain, assessment or similar
proceeding or charge affecting any Property or any portion thereof exists.
Seller has not heretofore received any written notice, and has no actual
knowledge,that any such proceeding or charge is contemplated.
(f) All Improvements (including all utilities) have been, or as of the
Closing will be, substantially completed and installed in accordance with
the plans and specifications approved by the governmental authorities having
jurisdiction to the extent applicable and are transferable to Purchaser
without additional cost. Permanent certificates of occupancy, all licenses,
permits, authorizations and approvals required by all governmental
authorities having jurisdiction, and the requisite certificates of the local
board of fire underwriters (or other body exercising similar functions) have
been, or as of the Closing will be, issued for the Improvements, and, as of
the Closing, where required, all of the same will be in full force and
effect; provided, however, that temporary or partial certificates of
occupancy may be provided in the event that under laws or regulations
applicable to a particular Property, a permanent certificate of occupancy is
not available because of the status of construction or subleasing of a
portion of the Property. The Improvements, as designed and constructed,
substantially comply or will substantially comply with all statutes,
restrictions, regulations and ordinances applicable thereto, including but
not limited to the Americans with Disabilities Act and Section 504 of the
Rehabilitation Act of 1973, as applicable.
(g) The existing water, sewer, gas and electricity lines, storm sewer
and other utility systems on the Land are reasonably adequate to serve the
current and contemplated utility needs of each Property. All utilities
required for the operation of the Improvements enter the Land through
adjoining public streets or through adjoining private land in accordance with
valid public or private easements that will inure to the benefit of
Purchaser. All approvals, licenses and permits required for said utilities
have been obtained and are in full force and effect. All of said utilities
are installed and operating and all installation and connection charges have
been paid in full.
(h) The location, construction, occupancy, operation and use of each
Property (including the Improvements) do not violate any applicable law,
statute, ordinance, rule, regulation, order or determination of any
governmental authority or any board of fire
14
<PAGE>
underwriters (or other body exercising similar functions), or any restrictive
covenant or deed restriction (recorded or otherwise) affecting the Property
or the location, construction, occupancy, operation or use thereof,
including, without limitation, all applicable zoning ordinances and building
codes, flood disaster laws and health and environmental laws and regulations,
the Americans with Disabilities Act and Section 504 of the Rehabilitation Act
of 1973, as applicable.
(i) There are not any structural defects in any of the buildings or
other Improvements constituting each Property. The Improvements, all heating,
electrical, plumbing and drainage at, or servicing, each Property and all
facilities and equipment relating thereto are and, as of the Closing, will be
in good condition and working order and adequate in quantity and quality for
the normal operation of the Property. No part of any Property has been
destroyed or damaged by fire or other casualty. To Seller's knowledge, there
are no unsatisfied written requests for repairs, restorations or alterations
with regard to the Property from any person, entity or authority, including
but not limited to any lender, insurance provider or governmental authority.
(j) Except as may be set forth in any of the Due Diligence Materials,
no work has been performed or is in progress at any Property, and no
materials will have been delivered to the Property that might provide the
basis for a mechanic's, materialmen's or other lien against the Property or
any portion thereof, or amounts due for such work and material shall have
paid or discharged to Purchaser's satisfaction as of Closing.
(k) There exist no service contracts, management or other agreements
applicable to any Property, to which Seller is a party or otherwise known to
Seller, other than Seller's Operating and Service Agreements and those
agreements furnished to Purchaser pursuant to Section 4.1.
(l) Seller is not in default in any manner which would result in a
material adverse effect on Seller or the Property under any of the Ground
Leases, Business Agreements, or Seller's Operating and Service Agreements or
any of the covenants, conditions, restrictions, rights-of-way or easements
affecting the Property or any portion thereof, and, to Seller's knowledge no
other party to any of the foregoing is in material default thereunder.
(m) There are no actions, suits or proceedings pending or, to Seller's
knowledge, threatened against or affecting any Property or any portion
thereof, or relating to or arising out of the ownership or operation of the
Property, or by any federal, state, county or municipal department,
commission, board, bureau or agency or other governmental instrumentality,
other than those disclosed to Purchaser pursuant to Section 4.1. All judicial
proceedings concerning any Property will be finally dismissed and terminated
prior to Closing, excluding lawsuits in which Seller is involved in its
ordinary course of business. Seller hereby covenants and agrees to indemnify
and hold Purchaser harmless from and against any and all
15
<PAGE>
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
SARA 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, SARA or any other Hazardous Materials Law. No
investigation, administrative order, litigation or settlement with respect to
any Hazardous Materials is in existence with respect to any Property, nor, to
Seller's knowledge, is any of the foregoing threatened. No written notice has
been received by Seller from any entity, governmental body or individual
claiming any violation of any Hazardous Materials Law, or requiring
compliance with any Hazardous Materials Law, or demanding payment or
contribution for environmental damage or injury to natural resources. Seller
has not obtained and, to Seller's knowledge, is not required to obtain, and
Seller has no knowledge of any reason Purchaser will be required to obtain,
any permits, licenses, or similar authorizations to occupy, operate or use
the Improvements or any part of any Property by reason of any Hazardous
Materials Law. Notwithstanding the representations made herein, such
representations are and shall be deemed to be limited by the matters detailed
in any Phase I Preliminary Site Assessment or other Due Diligence Materials
obtained by or provided to Purchaser in connection herewith.
16
<PAGE>
(q) Each Property includes all items of property, tangible and
intangible, currently used by Seller in connection with the operation of the
Property, other than the Excluded Personal Property, Seller's Operating and
Service Agreements, and property expressly excluded from the definition of
the Property, and the exclusion of such items from the property to be
conveyed to Purchaser will not have any materials adverse affect upon
Purchaser's ownership of the Property following the Closing.
(r) Seller has not knowingly failed to disclose anything of a material
nature with respect to the Due Diligence Materials.
5.2 SELLER INDEMNIFICATION. Seller hereby agrees to indemnify and
defend, at its sole cost and expense, and hold Purchaser, its successors and
assigns, harmless from and against and to reimburse Purchaser with respect to
any and all claims, demands, actions, causes of action, losses, damages,
liabilities, costs and expenses (including, without limitation, reasonable
attorney's fees and court costs) actually incurred of any and every kind or
character, known or unknown, fixed or contingent, asserted against or
incurred by Purchaser at any time and from time to time by reason of or
arising out of (a) the breach of any representation or warranty of Seller set
forth in Section 5.1 or any breach by Seller of any of its covenants and
agreements set forth in this Agreement; (b) the failure of Seller, in whole
or in part, to perform any obligation required to be performed by Seller
pursuant to Section 5.1.; or (c) the ownership, construction, occupancy,
operation, use and maintenance by Seller or its agents of the Property prior
to the Closing Date. This indemnity applies, without limitation, to the
violation on or before the Closing Date of any Hazardous Materials Law in
effect on or before the Closing Date and any and all matters arising out of
any act, omission, event or circumstance existing or occurring on or prior to
the Closing Date (including, without limitation, the presence on the Property
or release from the Property of Hazardous Materials disposed of or otherwise
released prior to the Closing Date), regardless of whether the act, omission,
event or circumstance constituted a violation of any Hazardous Materials Law
at the time of its existence or occurrence. Subject to the provisions of
Section 5.5 hereof, the provisions of this Section shall survive the Closing
of the transaction contemplated by Section 2.1 of this Agreement and shall
continue thereafter in full force and effect for the benefit of Purchaser,
its successors and assigns. Notwithstanding any provision of this Agreement
to the contrary, Purchaser may exercise any right or remedy Purchaser may
have at law or in equity should Seller fail to meet, comply with or perform
its indemnity obligations required by this Section 5.2. In the event a
defect, claim or deficiency is discovered by Purchaser prior to Closing or
isnoticed in writing by Seller to Purchaser prior to Closing, Purchaser shall
either terminate the Agreement as provided herein or waive the defect, claim
or deficiency and proceed to Closing.
5.3 COVENANTS AND AGREEMENTS OF SELLER. Seller covenants and agrees
with Purchaser, from the Effective Date until the Closing with respect to a
Property or earlier termination of this Agreement:
17
<PAGE>
(a) Seller shall: (i) operate the Property in the ordinary course of
Seller's business and in substantially the same manner as currently
operated; and (ii) fully maintain and repair the Improvements, the Fixtures,
and the Personal Property in good condition and repair.
(b) Seller shall cause to be maintained in full force and effect fire
and extended coverage insurance upon the Property and public liability
insurance with respect to damage or injury to persons or property occurring
on or relating tooperation of the Property in commercially reasonable amounts
(which for purposes hereof shall be deemed to be the amounts and coverages in
effect on the date hereof).
(c) Seller shall pay when due all bills and expenses of the Property.
Seller shall not enter into or assume anynew Business Agreements with regard
to the Property which are in addition to or different from those furnished
and disclosed to Purchaser and reviewed and approved pursuant to Section 4.1,
except in the ordinary course of business.
(d) Seller shall not create or permit to be created any liens,
easements or other conditions affecting any portion of the Property or the
uses thereof, except in the ordinary course of business, without the prior
written consent of Purchaser. No such lien, easement or other condition
affecting the Property which Seller creates or permits to be created shall
be or constitute a Permitted Exception until (i) such lien, easement or other
condition affecting the Property has been disclosed to Purchaser in writing
prior to Closing, (ii) a true and correct copy of all documents or
instruments creating, evidencing, affecting or relatingto such lien, easement
or other condition affecting the Property has been provided to Purchaser
prior to Closing, and (iii) Purchaser has determined to proceed with Closing
and accept such lien, easement or other condition affecting the Property as a
Permitted Exception, which determination shall be conclusively presumed by
Purchaser's election to proceed with Closing following Seller's compliance
with the requirements of (i) and (ii) of this paragraph.
(e) Seller will pay, as and when due, all interest and principal and
all other charges payable under any indebtedness of Seller secured by the
Property from the date hereof until Closing, and will not suffer or permit
any default or, except in the ordinary course of business, amend or modify
the documents evidencing or securing any such indebtedness without the prior
consent of Purchaser.
(f) Seller will give to Purchaser, its attorneys, accountants and other
representatives, during normal business hours and as often as may be
reasonably requested, access to all books, records and files relating to the
Property so long as the same does not unreasonably interfere with Seller's
business operations.
(g) Seller shall not remove any Personal Property or Fixtures from the
Land or Improvements without replacing same with substantially similar items
of equal or
18
<PAGE>
greater value and repairing the damage, if any, to the Property as a result
of such removal, except in the ordinary course of business.
(h) During the pendency of this Agreement, Seller, its corporate
officers, directors, and agents shall not negotiate the sale or other
disposition of the Property with any person or entity other than Purchaser,
and shall not take any steps to initiate, consummate or document the sale or
other disposition of the Property, or any portion thereof, to any person or
entity other than Purchaser.
(i) Prior to the Closing Date, Seller agrees to notify Purchaser in
writing within three (3) Business Days of any offer received by, delivered to
or communicated to Seller for the purchase, sale, acquisition or other
disposition of the Property.
(j) Seller shall provide representations, warranties and consents as
may be reasonably required in connection with any public offering of stock
(the "Registered Offering") or debt obligations by Purchaser, including, and
similar in kind but not limited to, inclusion of financial statements,
summary financial information and other required information concerning
Seller, or Seller as lessee under the Lease, in any Securities and Exchange
Commission filings. Seller shall cooperate in the preparation by Purchaser
of a Form S-11 under the Securities Act of 1933, as amended, to be filed with
the Securities and Exchange Commission in connection with the Registered
Offering.
5.4 REPRESENTATIONS AND WARRANTIES OF PURCHASER. To induce Seller
to enter into this Agreement and to sell the Property, Purchaser represents
and warrants to Seller as follows:
(a) Purchaser has duly and validly authorized and executed this
Agreement, and has full right, title, power and authority to enter into this
Agreement and to consummate the transactions provided for herein, and the
joinder of no person or entity will be necessary to purchase the Property
from Seller at Closing, and to lease or sublease the Property to Seller
following Closing. Purchaser is a real estate investment trust duly
organized, validly existing and in good standing under the laws of the State
of Maryland and is qualified to do business in each state in which any of the
Property is located. The consummation of the transactions contemplated herein
or in the Lease does not require the approval of Purchaser's shareholders or
any third party, except such third party approvals as Purchaser has obtained
or will obtain prior to the Closing Date.
(b) The execution by Purchaser of this Agreement and the consummation
by Purchaser of the transactions contemplated hereby do not, and at the
Closing will not, result in a breach of any of the terms or provisions of, or
constitute a default or a condition which upon notice or lapse of time or
both would ripen into a default under, any indenture, agreement, instrument
or obligation to which Purchaser is a party; and does not, and at the Closing
will not, constitute a violation of any Laws, order, rule or regulation
applicable to
19
<PAGE>
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.
20
<PAGE>
(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.
21
<PAGE>
(l) Purchaser shall have been successful in causing the formation of a
real estate investment trust whose interests have been sold to the public
pursuant to the Registered Offering and in connection therewith shall have
raised capital in an amount not less than $_____________________.
(m) Purchaser shall have entered into option agreements, acceptable in
form and substance to Purchaser, for the purchase of the Grantor Option
Properties, such agreements to provide for the closing of the purchase of the
Grantor Option Property as set forth therein.
With respect to the conditions precedent set forth in paragraphs (a),
(b), (d), (e), (f), (g), (h), (i), (j), (k) and (m) of this Section 6.1,
Purchaser shall have the right to determine whether each of said conditions
has been satisfied separately with respect to each individual Property or
Grantor Option Property, and if Purchaser shall determine that any of said
conditions have not been satisfied with respect to any one or more individual
Property or Grantor Option Property, Purchaser shall have the right,
notwithstanding the provisions of Section 6.2 hereof (subject, however, to
the provisions of Section 6.3(e) hereof), to terminate this Agreement with
respect to any one or more individual Property as to which any of such
conditions has not been satisfied, and to proceed with the Closing with
respect to the remaining Property.
6.2 FAILURE OF CONDITIONS TO PURCHASER'S OBLIGATIONS. In the event
any one or more of the conditions to Purchaser's obligations are not
satisfied or waived in whole or in part at any time prior to or as of the
Closing of a Property, Purchaser, at Purchaser's option, shall be entitled
to: (a) terminate this Agreement by giving written notice thereof to Seller,
whereupon all moneys, if any, which have been delivered by Purchaser to
Seller or the Title Company shall be immediately refunded to Purchaser and
Purchaser shall have no further obligations or liabilities hereunder; or (b)
proceed to Closing hereunder.
6.3 CONDITIONS TO THE SELLER'S OBLIGATIONS. The obligations of
Seller to sell a Property to Purchaser and to consummate the transactions
contemplated by this Agreement are subject to the satisfaction, at all times
prior to and as of the Closing with respect to such Property (or such other
time period specified below), of each of the following conditions:
(a) All of the representations and warranties of Purchaser set forth in
this Agreement shall be true at all times prior to, at and as of, the Closing
in all material respects and Purchaser shall deliver a Closing Certificate in
substantially the same form attached hereto as EXHIBIT E updating such
representations and warranties.
(b) Purchaser shall have delivered, performed, observed and complied
with, all of the items, instruments, documents, covenants, agreements and
conditions required by this Agreement to be delivered, performed, observed
and complied with by it prior to, or as of, the Closing.
22
<PAGE>
(c) Purchaser shall not be in receivership or dissolution or have made
any assignment for the benefit of creditors, or admitted in writing its
inability to pay its debts as they mature, or have been adjudicated a
bankrupt, or have filed a petition in voluntary bankruptcy, a petition or
answer seeking reorganization or an arrangement with creditors under the
federal bankruptcy law or any other similar law or statute of the United
States or any state and no such petition shall have been filed against it.
(d) Purchaser shall have been successful in causing the formation of a
real estate investment trust whose interests have been sold to the public
pursuant to the Registered Offering and in connection therewith shall have
raised capital in an amount not less than $______________________.
(e) Purchaser has not elected to terminate this Agreement with respect
to any Properties with an aggregate Purchase Price in excess of
$__________________.
(f) Purchaser has entered into a Lease with respect to each Property
being purchased by Purchaser effective upon and following the Closing of such
Property.
6.4 FAILURE OF CONDITIONS TO SELLER'S OBLIGATIONS. In the event any
one or more of the conditions to Seller's obligations are not satisfied or
waived in whole or in part at any time prior to or as of the Closing, Seller,
at Seller's option, shall be entitled to: (a) terminate this Agreement by
giving written notice thereof to Purchaser, whereupon all moneys, if any,
which have been delivered by Seller to Purchaser or the Title Company shall
be immediately refunded to Seller and Seller shall have no further
obligations or liabilities hereunder; or (b) proceed to Closing hereunder.
ARTICLE VII.
PROVISIONS WITH RESPECT TO THE CLOSING
7.1 SELLER'S CLOSING OBLIGATIONS. At the Closing with respect to a
Property, Seller shall furnish and deliver to the Purchaser, at Seller's
expense, the following:
(a) The Deed, Title Policy (or the Title Commitment marked-up and
initialed by the Title Company), Assignment, Bill 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.
23
<PAGE>
(b) Certificates of casualty and fire insurance for the Property and
satisfactory evidence of all other insurance coverages as required pursuant
to the Lease showing Purchaser as additional insured and loss payee
thereunder, as required by the Lease, with appropriate provisions for prior
notice to Purchaser in the event of cancellation or termination of such
policies and otherwise in form and substance as required by the Lease.
(c) Search Reports, dated not more than fifteen (15) days prior to
Closing, evidencing no UCC-1 Financing Statements or other filings in the
name of Seller with respect to the Property which will remain on the Property
after the Closing or an indemnification in form reasonably acceptable to
Seller and Purchaser with respect to any such UCC-1 Financing Statements or
other filings.
(d) Such affidavits or letters of indemnity as the Title Company shall
reasonably require in order to omit from the Title Policy all exceptions for
unfiled mechanic's, materialman's or similar liens and rights of parties in
possession (other than Seller under the Lease and other tenants under leases
disclosed in the Due Diligence Materials).
(e) Any and all transfer declarations or disclosure documents, duly
executed by the appropriate parties, required in connection with the Deed by
any state, county or municipal agency having jurisdiction over the Property
or the transactions contemplated hereby.
(f) An opinion of Seller's counsel, dated as of the Closing Date, in
the form of EXHIBIT N-1, attached hereto.
(g) Such instruments or documents as are necessary, or reasonably
required by Purchaser or the Title Company, to evidence the status and
capacity of Seller and the authority of the person or persons who are
executing the various documents on behalf of Seller in connection with the
purchase and sale transaction contemplated hereby.
(h) Such other documents as are reasonably required by Purchaser to
carry out the terms and provisions of this Agreement.
(i) All necessary approvals, consents, certificates and the like of
third parties to the validity and effectiveness of the transactions
contemplated hereby.
7.2 PURCHASER'S CLOSING OBLIGATIONS. At the Closing with respect to
a Property, Purchaser shall furnish and deliver to Seller, at Purchaser's
expense, the following:
(a) Federal Reserve, wire transfer funds or other immediately available
collected funds payable to the order of Seller representing the cash portion
of the Purchase Price due in accordance with Section 3.1 herein.
24
<PAGE>
(b) The Closing Certificate, Right to Purchase Agreement, Lease,
Assignment and Seller Option Agreement duly executed and acknowledged by
Purchaser.
(c) Such instruments or documents as are necessary, or reasonably
required by Seller or the Title Company, to evidence the status and capacity
of Purchaser and the authority of the person or persons who are executing the
various documents on behalf of Purchaser in connection with the purchase and
sale transaction contemplated hereby.
(d) An opinion of Purchaser's counsel, dated as of the Closing Date, in
the form of EXHIBIT N-2, attached hereto.
(e) Such other documents as are reasonably required by Seller to carry
out the terms and provisions of this Agreement.
(f) All necessary approvals, consents, certificates and the like of
third parties to the validity and effectiveness of the transaction
contemplated hereby.
7.3 PURCHASER'S CLOSING OBLIGATIONS RESPECTING GRANTOR OPTION
PROPERTY. Upon each closing of the purchase of any Grantor Option Property,
Purchaser hereby agrees that it will, at such closing, furnish and deliver to
Seller, at Purchaser's expense, the Lease, duly executed and acknowledged by
Purchaser, as appropriate, with respect to such Grantor Option Property.
ARTICLE VIII.
EXPENSES OF CLOSING
8.1 ADJUSTMENTS. There shall be no adjustment of taxes,
assessments, water or sewer charges, gas, electric, telephone or other
utilities, operating expenses, employment charges, premiums on insurance
policies, rents or other normally proratable items, it being agreed and
understood by the Parties that the Seller shall be obligated to pay such
items after Closing under the terms of the Lease.
8.2 CLOSING COSTS. Seller shall pay (a) all title examination fees
and premiums for the Title Policy; (b) the cost of the Search Reports; (c)
the cost of the Survey; (d) Seller's legal, accounting and other professional
fees and expenses and the cost of all opinions, certificates, instruments,
documents and papers required to be delivered, or to cause to be delivered,
by Seller hereunder, including without limitation, the cost of performance by
Seller of its obligations hereunder; (e) all other costs and expenses which
are required to be paid by Seller pursuant to other provisions of this
Agreement; (f) any and all state, municipal or other documentary or transfer
taxes payable in connection with the delivery of any instrument or
25
<PAGE>
document provided in or contemplated by this Agreement or any agreement or
commitment described or referred to herein; and (g) the charges for or in
connection with the recording and/or filing of any instrument or document
provided herein or contemplated by this Agreement or any agreement or document
described or referred to herein. Purchaser shall pay (x) Purchaser's legal,
accounting and other professional fees and expenses and the cost of all
opinions, certificates, instruments, documents and papers required to be
delivered, or to cause to be delivered, by Purchaser hereunder, including,
without limitation, the cost of performance by Purchaser of its obligations
hereunder; (y) all costs and expenses, if any, in any way relating to any
financing which Purchaser obtains in connection with its purchase of the
Property; and (z) all other costs and expenses which are required to be paid
by Purchaser pursuant to other provisions of this Agreement. Purchaser and
Seller shall each be responsible for other costs in the usual and customary
manner for this kind of transaction in the county where the Property is
located.
8.3 COMMISSIONS/BROKER'S FEES. Seller hereby represents and
warrants to Purchaser that it has not contacted any real estate broker,
finder or any other party in connection with this transaction, and that it
has not taken any action which would result in any real estate broker's,
finder's or other fees being due or payable to any party with respect to the
transaction contemplated hereby. Purchaser hereby represents and warrants to
Seller that Purchaser has not contacted any real estate broker, finder or any
other party in connection with this transaction, and that it has not taken
any action which would result in any real estate broker's, finder's or other
fees being due or payable to any party with respect to the transaction
contemplated hereby. Each Party hereby indemnifies and agrees to hold the
other Party harmless from any loss, liability, damage, cost or expenses
(including reasonable attorneys' fees) resulting to such other Party by
reason of a breach of the representation and warranty made by such Party
herein.
ARTICLE IX.
DEFAULT AND REMEDIES
9.1 SELLER'S DEFAULT; PURCHASER'S REMEDIES.
(a) SELLER'S DEFAULT. Seller shall be deemed to be in default
hereunder upon the occurrence of one of the following events: (i) any of
Seller's warranties or representations set forth herein shall be untrue in
any material re spect when made or at Closing; or (ii) Seller shall fail to
meet, comply with, or perform any covenant, agreement or obligation on its
part required within the time limits and in the manner required in this
Agreement, which, in either of such events, is not cured by Seller within
10 days following receipt by Seller of written notice of default from
Purchaser.
26
<PAGE>
(b) PURCHASER'S REMEDIES. In the event Seller shall be deemed to be in
default hereunder Purchaser may, at Purchaser's sole option, do any one or
more of the following: (i) terminate this Agreement by written notice
delivered to Seller on or before the Closing; and/or (ii) enforce specific
performance of this Agreement against Seller including Purchaser's reasonable
costs and attorneys' fees and court costs in connection therewith; and/or
(iii) exercise any other right or remedy Purchaser may have at law or in
equity by reason of such default including, but not limited to, the recovery
of reasonable attorneys' fees and court costs incurred by Purchaser in
connection herewith.
9.2 PURCHASER'S DEFAULT; SELLER'S REMEDIES.
(a) PURCHASER'S DEFAULT. Purchaser shall be deemed to be in default
hereunder upon the occurrence of one of the following events: (i) any of
Purchaser's warranties or representations set forth herein shall be untrue in
any material respect when made or at Closing; or (ii) Purchaser shall fail to
meet, comply with, or perform any covenant, agreement or obligation on its
part required within the time limits and in the manner required in this
Agreement, which, in either of such events, is not cured by Purchaser within
ten (10) days following receipt by Purchaser of written notice of default
from Seller.
(b) SELLER'S REMEDIES. In the event Purchaser shall be deemed to be in
default hereunder Seller may, at Seller's sole option, do any one or more of
the following: (i) terminate this Agreement by written notice delivered to
Purchaser on or before the Closing; and/or (ii) enforce specific performance
of this Agreement against Purchaser including Seller's reasonable costs and
attorneys' fees and court costs in connection therewith; and/or (iii)
exercise any other right or remedy Seller may have at law or in equity by
reason of such default including, but not limited to, the recovery of
reasonable attorneys' fees and court costs incurred by Seller in connection
herewith.
ARTICLE X.
MISCELLANEOUS
10.1 SURVIVAL. Except as otherwise specifically provided herein
(including Section 5.5), all of the representations, warranties, covenants,
agreements and indemnities of Seller and Purchaser contained in this
Agreement, to the extent not performed at the Closing, shall not survive the
Closing but shall be deemed to merge upon the acceptance of the Deed and
Assignment by Purchaser.
10.2 RIGHT OF ASSIGNMENT. Neither this Agreement nor any interest
herein may be assigned or transferred by either Party to any person, firm,
corporation or other entity without the prior written consent of the other
Party, which consent may be given or withheld in the sole discretion of such
other Party.
27
<PAGE>
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
1221 Baltimore Avenue
Kansas City, Missouri 64105
Phone: (816) 480-4649
Fax: (816) 480-4617
Attention: Robert L. Harris, President
With a copy to: Stinson, Mag & Fizzell, P.C.
1201 Walnut, Suite 2800
Kansas City, Missouri 64105
Phone: (816) 691-3180
Fax: (816) 691-3495
Attention: Michael G. O'Flaherty
If intended for Seller: AMC Entertainment Inc.
106 West 14th Street
Kansas City, Missouri 64105
Phone: (816) 221-4000
Fax: (816) 480-4617
Attention: Peter C. Brown, President
With a copy to: Lathrop & Gage L.C.
2345 Grand Boulevard, Suite 2800
Kansas City, Missouri 64108
Phone: (816) 460-5515
Fax: (816) 292-2001
Attention: E.T. Bullard
or at such other address, and to the attention of such other person, as the
parties shall give notice as herein provided. A notice, request and other
communication shall be deemed to be duly received if delivered in person or
by a recognized delivery service, when delivered to the address of the
recipient, if sent by mail, on the date of receipt by the recipient as shown
on the return receipt card, or if sent by facsimile, upon receipt by the
sender of an acknowledgment or transmission report generated by the machine
from which the facsimile was sent indicating that the facsimile was sent in
its entirety to the recipient's facsimile number; provided that if a notice,
request or other communication is served by hand or is received by facsimile
on a day which is not a Business Day, or after 5:00 P.M. on any
28
<PAGE>
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
Jackson County, Missouri or the U.S. District Court for the Western District
of Missouri and, accordingly, consent thereto.
10.6 CAPTIONS. The captions in this Agreement are inserted for
convenience of reference only and in no way define, describe, or limit the
scope or intent of this Agreement or any of the provisions hereof.
10.7 BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the Parties hereto and their respective successors
and assigns.
10.8 TIME IS OF THE ESSENCE. With respect to all provisions of this
Agreement, time is of the essence. However, if the first date of any period
which is set out in any provision of this Agreement falls on a day which is
not a Business Day, then, in such event, the time of such period shall be
extended to the next day which is a Business Day.
10.9 WAIVER OF CONDITIONS. Any Party may at any time or times, at
its election, waive any of the conditions to its obligations hereunder, but
any such waiver shall be effective only if contained in a writing signed by
such Party. No waiver by a Party of any breach of this Agreement or of any
warranty or representation hereunder by the other Party shall be deemed to be
a waiver of any other breach by such other Party (whether preceding or
succeeding and whether or not of the same or similar nature), and no
acceptance of payment or performance by a Party after any breach by the other
Party shall be deemed to be a waiver of any breach of this Agreement or of
any representation or warranty hereunder by such other Party, whether or not
the first Party knows of such breach at the time it accepts such payment or
performance. No failure or delay by a Party to exercise any right it may
have by reason of the
29
<PAGE>
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.
30
<PAGE>
10.16 COUNTERPARTS. This Agreement may be executed at different times
and in any number of counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature
page to this Agreement by telecopier shall be as effective as delivery of a
manually executed counterpart of this Agreement. In proving this Agreement,
it shall not be necessary to produce or account for more than one such
counterpart signed by the Party against whom enforcement is sought.
10.17 JOINT AND SEVERAL LIABILITY. The obligations of the
parties-Seller under this Agreement, and under all of the documents and
instruments entered into in accordance with the provisions of this Agreement,
are joint and several.
10.18 NON-ASSIGNABLE AGREEMENT. Seller hereby covenants and agrees to
use its best reasonable efforts to obtain all necessary consents to the
assignment of any of the Business Agreements, Warranties, Permits and
Engineering Documents (for the purposes of this Section 10.18, the terms
Business Agreements, Warranties, Permits and Engineering Documents shall
include all agreements, documents and instruments included within such
definitions, whether or not the same are assignable by Seller) as Purchaser
and Seller shall mutually agree upon. If and to the extent that any of the
Business Agreements, Warranties, Permits and Engineering Documents are not
assignable without the consent or approval of a third party, and either (a)
Purchaser does not request that Seller obtain such approval, or (b) Seller is
unable to obtain such approval following Purchaser's request that Seller
obtain such consent or approval, then, in either of such cases, and subject
to the Purchaser's rights as hereinafter provided, Seller hereby agrees and
acknowledges that it will, from and after Closing, own and hold such Busin
ess Agreements, Warranties, Permits and Engineering Documents as agent on
behalf of and for the benefit of Purchaser, and Seller will from time to time
execute such documents as Purchaser shall reasonably require to evidence that
Seller own and hold such Business Agreements, Warranties, Permits and
Engineering Documents as agent on behalf of and for the benefit of Purchaser.
If Purchaser requests that Seller obtain any required third party consents
for the assignment by Seller to Purchaser of any of the Business Agreements,
Warranties, Permits and Engineering Documents, and Seller is unable to obtain
such consent or approval, then Purchaser shall have the rights to determine
that the Due Diligence Materials with respect to the Property or Due
Diligence Property in question are not acceptable to Purchaser, and to
exercise Purchaser's rights under Section 6.1 hereof. The provisions of this
Section 10.18 shall not terminate or expire as otherwise provided in this
Agreement, but the covenants and agreements in this Section 10.18 shall
survive and continue in full force and effect at all times after Closing.
10.19 WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY
OTHER PARTY ON ANY MATTER ARISING OUT OF OR IN
31
<PAGE>
ANY WAY CONNECTED WITH THIS AGREEMENT OR THE OTHER AGREEMENTS.
EXECUTED to be effective as of the Effective Date.
SELLER: PURCHASER:
AMERICAN MULTI-CINEMA, INC., ENTERTAINMENT PROPERTIES TRUST,
A MISSOURI CORPORATION A MARYLAND REAL ESTATE INVESTMENT TRUST
By:______________________________ By: ___________________________
Name: Peter C. Brown Name: Robert L. Harris
Title: Executive Vice President Title: President
and CFO
Seller's Tax Identification Number: Purchaser's Tax Identification Number:
___________________________________ _______________________________________
AMC REALTY, INC., A DELAWARE
CORPORATION
By: ________________________________
Name: Peter C. Brown
Title: Executive Vice President
and CFO
Seller's Tax Identification Number:
___________________________________
32
<PAGE>
OPTION AGREEMENT
THIS OPTION AGREEMENT (this "Option Agreement"), dated as of
November ___, 1997, is by and between ENTERTAINMENT PROPERTIES TRUST, a
Maryland real estate investment trust having an address at 1221 Baltimore
Avenue, Kansas City, Missouri, 64105 ("Grantee"), and CLIP FUNDING, LIMITED
PARTNERSHIP, a Delaware limited partnership having an address at World
Financial Center, North Tower-10th Floor, 250 Vesey Street, New York, New
York 10281-1310 ("Grantor").
W I T N E S S E T H
WHEREAS, Grantee and American Multi-Cinema, Inc. ("AMC") have
requested Grantor to grant to Grantee a non-assignable option to purchase (a)
Grantor's interest in the land and the improvements thereon known as Gulf
Pointe 30 located in Houston, Texas ("Option Property I") which is legally
described on Exhibit A attached hereto and made a part hereof by this
reference; (b) Grantor's interest in the land and the improvements thereon
known as Mesquite 30 located in Mesquite, Texas ("Option Property II") which
is legally described on Exhibit B attached hereto and made a part thereof by
this reference; and (c) Grantor's interest in the land and the improvements
thereon known as Hampton Town Center 24 located in Norfolk, Virginia ("Option
Property III") which is legally described on Exhibit C attached hereto and
made a part hereof by this reference; (Option Property I, Option Property II,
and Option Property III are hereinafter referred to individually as an
"Option Property" and collectively as the "Option Properties"); and
WHEREAS, prior to the date hereof, Grantor has executed a mortgage
and related security interests (the "Security Interest") with respect to each
Option Property in favor of one or more lenders (the "Assignee"); and
WHEREAS, Grantor is willing to grant to Grantee a personal,
non-assignable option to purchase Grantor's interest in the Option
Properties, exercisable from time to time with respect to one or more Option
Properties in any combination, all on the terms and conditions hereinafter
set forth;
NOW, THEREFORE, Grantor and Grantee hereby agree as follows:
1. GRANT OF OPTION. Subject to the conditions contained in this
Option Agreement, Grantor hereby grants to Grantee a personal, non-assignable
option to purchase Grantor's interest in the Option Properties (the "Option")
on or before December 20, 1998 (the "Option Termination Date"). The Option
may be exercised from time to time with respect to one or more Option
Properties in any combination. Each exercise of
<PAGE>
the Option with respect to an Option Property shall be made no earlier than
the date on which the megaplex theatre located on such Option Property opens
to the public for business (the "Opening Date") and no later than the date
which is the earlier of (i) ninety (90) days following the Opening Date for
such Option Property or (ii) sixty-one (61) days prior to the Option
Termination Date by irrevocable written notice (the "Option Notice") to
Grantor at its address given above, sent by certified mail, return receipt
requested, and specifying a date no earlier than sixty (60) days after the
date of such Option Notice and no later than a date which is the earlier of
(x) ninety (90) days following the date of such Option Notice or (y) the
Option Termination Date for closing on the Option Property or Option
Properties specified in such Option Notice; provided that each exercise of
the Option and each closing thereunder shall be subject to the conditions
that, (a) on the date of closing, such Option Property specified shall be
leased pursuant to the terms, conditions, and provisions of the Lease
Agreement dated as of July 25, 1996 (the "Lease") between Grantor, as lessor,
and AMC, as lessee, (b) the date specified for such closing shall be the
twentieth (20th) day of a calendar month, time being of the essence; (c) at
the time of delivery of such Option Notice and on the date of closing on each
such Option Property, there shall be no Event of Default or Potential Default
(as each such term is defined in the Lease) by AMC under the Lease, and no
Event of Default or Potential Default (as each such term is defined in the
Agreement for Lease dated as of July 25, 1996 (the "AFL")) by AMC under the
AFL, and Grantor shall have received a certificate of AMC to such effect; and
(d) at the time of closing on an Option Property, all amounts otherwise
payable by AMC under the AFL or the Lease with respect to such Option
Property as of the date of such closing shall have been paid in full,
including, without limitation, all payments due under any indemnities and,
all payments of rent and other amounts of any kind due thereunder. On the
Option Termination Date, the Option shall terminate and Grantee shall have no
further rights under this Option Agreement, including any with respect to an
Option Property as to which the Option has been exercised but for which the
closing has not occurred.
2. PURCHASE PRICE. The purchase price for an Option Property
subject to the Lease shall be an amount equal to the Adjusted Acquisition
Cost (as defined in the Lease) for such Option Property as of the date of
closing. As a condition to each purchase and sale hereunder, Grantee shall
also pay the cost of any title reports or policies, surveys, all transfer
taxes, transfer gains taxes, mortgage recording tax, if any, recording and
filing fees, and all other similar taxes, fees, expenses, and closing costs
(including Grantor's and Assignee's attorney's fees), it being expressly
agreed that Grantor shall not be liable or responsible for any costs or
expenses in connection with the sale of any Option Property. All payments to
Grantor, including Grantor's legal fees in connection with the closing, shall
be wired directly to an account of Grantor identified by Grantor to Grantee
prior to closing.
2
<PAGE>
3. OPTION SUBJECT TO RIGHTS OF SECURED LENDER AND TERMS OF AFL AND
LEASE. This Option Agreement and the Option granted hereby are expressly
subject and subordinate to the Security Interest granted by Grantor to the
Assignee and to the terms and conditions of the AFL and the Lease. It is
expressly acknowledged that prior to the closing on an Option Property, the
Option Property is and will remain subject to the terms and conditions of the
AFL and/or the Lease, which terms and conditions contemplate that the sale of
all or part of an Option Property to parties other than the Grantee could
occur under certain circumstances. Grantee expressly acknowledges that if a
third party shall exercise its prior rights with respect to such a sale, or
Grantor or Assignee shall exercise its remedies under the AFL or the Lease
and shall pursuant to such exercise effect such a sale, at any time prior to
Grantee's closing on an Option Property, then (a) in the event of the
exercise of such rights with respect to all of such Option Property the
Option granted hereunder in respect of such Option Property and any exercise
thereof shall cease and be of no further force and effect, and (b) in the
event of the exercise of such rights with respect to a portion of an Option
Property, the Option granted hereunder in respect of such Option Property and
any exercise thereof shall remain binding and in full force and effect only
with respect to the remainder of such Option Property with respect to which
such rights were not exercised, and shall cease and be of no further force
and effect with respect to all other portions.
4. CLOSING. The closing shall take place through an escrow with a
title company chosen by Grantor and acceptable to Grantee. No documents will
be released from escrow unless and until all conditions required by Grantor
for closing have been complied with and Grantor has received all payments in
respect of the purchase price as set forth in the preceding paragraph.
5. STATE OF TITLE. The transfer of an Option Property shall be by
means of a quitclaim deed on an as-is, non-installment sale basis, without
warranty by, or recourse to, Grantor, which deed shall be in the form of
Exhibit D attached hereto, together with any changes that may be required by
local law for such quitclaim deed to comply with local recording statutes.
Grantee expressly acknowledges that Grantor has not made, and will not make,
any representations whatsoever with respect to any Option Property,
including, without limitation, any representation as to the state of title,
environmental conditions, zoning, structural soundness, quality of
construction, or the suitability of such Option Property for any purpose.
6. NO ASSIGNMENT. The Option granted hereby and Grantee's rights
under this Option Agreement, including, without limitation, the right to
close on an Option Property, are personal to Grantee, and, as an inducement
to Grantor to enter into this Option Agreement, it is expressly agreed that
Grantee has no right, directly or indirectly, to assign, mortgage or encumber
the Option or this Option Agreement in whole or in part. Any assignment or
attempted assignment shall immediately render this Option Agreement
3
<PAGE>
null and void. Transfer of a controlling interest, whether singly or in the
aggregate, in Grantee, whether by operation of law, or merger by or with
Grantee, or otherwise, shall each be deemed to be an assignment. Grantor
shall have no obligation or requirement to deal with any party other than
Grantee in all matters relating to this Option Agreement.
7. NO BROKER. Grantee represents that it has dealt with no broker
in connection with the Option granted hereby, and agrees to indemnify and
hold Grantor harmless from the claims of any broker in connection with the
transactions contemplated hereby.
8. NON-RECOURSE. Grantor's obligations hereunder are intended to
be the obligations of the limited partnership and of the corporation which is
the general partner thereof only and no recourse for the payment of any
amount due under this agreement or for any claim based thereon or otherwise
in respect thereof, shall be had against any limited partner of Grantor, any
incorporator, shareholder, member, officer, director or affiliate, as such,
past, present or future, of such corporate general partner or of any
corporate limited partner or of any successor corporation to such corporate
general partner or any corporate limited partner of Grantor, or against any
direct or indirect parent corporation of such corporate general partner or of
any limited partner of Grantor or any other subsidiary or affiliate or any
such direct or indirect parent corporation or any incorporator, shareholder,
member, officer, director, or affiliate, as such, past, present or future, of
any such parent or other subsidiary or affiliate, it being understood that
Grantor is a limited partnership formed for the purpose of the transactions
involved in and relating to the master lease program of AMC on the express
understanding aforesaid.
9. GOVERNING LAW. This Option Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
10. COMPLETE AGREEMENT. This Option Agreement constitutes the
entire understanding between Grantor and Grantee 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 Option except as expressly provided in this Option
Agreement. The Option Agreement may not be modified, amended or waived except
by a written instrument executed by both Grantor and Grantee. A waiver on one
occasion shall not be construed to be a waiver with respect to any other
occasion.
11. COUNTERPARTS. This Option 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 Option Agreement.
4
<PAGE>
12. DEFINITIONS. Capitalized terms used, but not otherwise defined
herein, shall have the meaning given such terms in the Lease.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Option
Agreement as of the day and year first above written.
ENTERTAINMENT PROPERTIES TRUST,
a Maryland real estate investment trust
By: ________________________________
Name: ______________________________
Title: _____________________________
CLIP FUNDING, LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Clip Capital, Inc., its
general partner
By: ________________________________
Name: ______________________________
Title: _____________________________
Acknowledged and separately
consented to this _____ day
of November, 1997:
AMERICAN MULTI-CINEMA, INC.,
a Missouri corporation
By: ________________________________
Name: ______________________________
Title: _____________________________
5
<PAGE>
EXHIBIT B
OPTION PROPERTY II
Mesquite 30
(Dallas, Texas)
6
<PAGE>
AMCE RIGHT TO PURCHASE AGREEMENT
THIS RIGHT TO PURCHASE AGREEMENT (the "Agreement"), dated November __,
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, 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
<PAGE>
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 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
<PAGE>
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 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
<PAGE>
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
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
<PAGE>
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. The First Refusal Right and First Offer Right
shall terminate if there is a Change of Control of Offeree as defined in
Annex I hereto.
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:
<PAGE>
If intended for Offeree: Entertainment Properties Trust
One Kansas City Place
1200 Main Street, Suite 3250
Kansas City, Missouri 64105
Phone: (816) 480-4649
Fax: (816) 480-4617
Attention: Robert L. Harris,
President
With a copy to: Stinson, Mag & Fizzell, P.C.
1201 Walnut, Suite 2800
Kansas City, Missouri 64105
Phone: (816) 691-3180
Fax: (816) 691-3495
Attention: Michael G. O'Flaherty
If intended for Grantor: AMC Entertainment Inc.
106 West 14th Street
Kansas City, Missouri 64105
Phone: (816) 221-4000
Fax: (816) 480-4617
Attention: Peter C. Brown,
President
With a copy to: Lathrop & Gage L.C.
2345 Grand Boulevard, Suite 2800
Kansas City, Missouri 64108
Phone: (816) 460-5515
Fax: (816) 292-2001
Attention: E.T. Bullard
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
<PAGE>
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
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 Jackson 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.
<PAGE>
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 November __, 1997, among American Multi-Cinema, Inc., AMC
Realty, Inc. and Entertainment Properties Trust or the Lease, dated November __,
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.
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
<PAGE>
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.
GRANTOR: OFFEREE:
AMC ENTERTAINMENT INC., ENTERTAINMENT PROPERTIES TRUST,
a Delaware corporation a Maryland real estate investment trust
By:_______________________________ By:__________________________________
Name: __________________________ Name: _____________________________
Title: __________________________ Title: _____________________________
<PAGE>
ANNEX I
"Change in Control" shall mean the occurrence of any one of the
following events:
(i) individuals who, on the Effective Date, constitute the Board
of Trustees (the "Board") of Offeree (the "Incumbent Trustees") cease
for any reason to constitute at least a majority of the Board, provided
that any person becoming a trustee subsequent to November __, 1997,
whose election or nomination for election was approved by a vote of at
least two-thirds of the Incumbent Trustees then on the Board (either by
a specific vote or by approval of the proxy statement of the Offeree in
which such person is named as a nominee for trustee, without written
objection to such nomination) shall be an Incumbent Trustee; provided,
however, that no individual initially elected or nominated as a trustee
of the Offeree as a result of an actual or threatened election contest
with respect to trustees or as a result of any other actual or
threatened solicitation of proxies or consents by or on behalf of any
person other than the Board shall be deemed to be an Incumbent Trustee;
(ii) any "person" (as such term is defined in Section 3(a)(9) of
the Securities Exchange Act of 1934 (the "Exchange Act") and as used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Offeree representing 25% or
more of the combined voting power of the Offeree's then outstanding
securities eligible to vote for the election of the Board (the "Offeree
Voting Securities"); provided, however, that the event described in this
paragraph (ii) shall not be deemed to be a Change in Control by virtue
of any of the following acquisitions: (A) by the Offeree or any
corporation or other entity in which the Offeree owns, directly or
indirectly, stock or other equity interests possessing 50% or more of
the total combined voting power of all classes of stock or other
interests in such corporation or other entity (a "Subsidiary"), (B) by
any employee benefit plan (or related trust) sponsored or maintained by
the Offeree or any Subsidiary, (C) by any underwriter temporarily
holding securities pursuant to an offering of such securities, or (D)
pursuant to a Non-Qualifying Transaction (as defined in paragraph (iii));
(iii) the shareholders of the Offeree approve a merger,
consolidation, statutory share exchange or similar form of corporate
transaction involving the Offeree or any of its Subsidiaries that
requires the approval of the Offeree's shareholders, whether for such
transaction or the issuance of securities in the transaction (a
"Business Combination"), unless immediately following such Business
Combination: (A) more than 50% of the total voting power of (x) the
corporation resulting from such Business Combination (the "Surviving
<PAGE>
Corporation"), or (y) if applicable, the ultimate parent corporation
that directly or indirectly has beneficial ownership of 100% of the
voting securities eligible to elect directors of the Surviving
Corporation (the "Parent Corporation"), is represented by Offeree Voting
Securities that were outstanding immediately prior to such Business
Combination (or, if applicable, is represented by shares into which such
Offeree Voting Securities were converted pursuant to such Business
Combination), and such voting power among the holders thereof is in
substantially the same proportion as the voting power of such Offeree
Voting Securities among the holders thereof immediately prior to the
Business Combination, (B) no person (other than any employee benefit
plan (or related trust) sponsored or maintained by the Surviving
Corporation or the Parent Corporation or any person which beneficially
owned, immediately prior to such Business Combination, directly or
indirectly, 25% or more of the Offeree Voting Securities (an "Offeree
25% Shareholder")) would become the beneficial owner, directly or
indirectly, of 25% or more of the total voting power of the outstanding
voting securities eligible to elect directors of the Parent Corporation
(or, if there is no Parent Corporation, the Surviving Corporation) and
no Offeree 25% Shareholder would increase its percentage of such total
voting power and (C) at least a majority of the members of the board of
directors of the Parent corporation (or, if there is no Parent
Corporation, the Surviving Corporation) following the consummation of
the Business Combination were Incumbent Trustees at the time of the
Board's approval of the execution of the initial agreement providing for
such Business Combination (any Business Combination which satisfies all
of the criteria specified in (A), (B) and (C) above shall be deemed to
be a "Non-Qualifying Transaction"); or
(iv) the shareholders of the Offeree approve a plan of complete
liquidation or dissolution of the Offeree or a sale of all or
substantially all of the Offeree's assets.
Notwithstanding the foregoing, a Change in Control of the Offeree shall
not be deemed to occur solely because any person acquires beneficial
ownership of more than 25% of the Offeree Voting Securities as a result of
the acquisition of Offeree Voting Securities by the Offeree which reduces the
number of Offeree Voting Securities outstanding; provided, that if after such
acquisition by the Offeree such person becomes the beneficial owner of
additional Offeree Voting Securities that increases the percentage of
outstanding Offeree Voting Securities beneficially owned by such person, a
Change in Control of the Offeree shall then occur.
<PAGE>
LEASE
BETWEEN
ENTERTAINMENT PROPERTIES TRUST,
a Maryland real estate investment trust
("LANDLORD")
AND
AMERICAN MULTI-CINEMA, INC.,
a Missouri corporation
("TENANT")
For the Lease
of
Grand 24, Dallas, TX Leawood Town Center 20, Kansas City, MO
Promenade 16, Los Angeles, CA South Barrington 30, Chicago, IL
Ontario Mills 30, Los Angeles, CA Mission Valley 20, San Diego, CA
West Olive 16, St. Louis, MO Lennox 24, Columbus, OH
Studio 30, Houston, TX First Colony 24, Houston, TX
Huebner Oaks 24, San Antonio, TX Oakview 24, Omaha, NE
November ___, 1997
Michael G. O'Flaherty E.T. Bullard
Stinson, Mag & Fizzell, P.C. Lathrop & Gage L.C.
1201 Walnut Suite 2500
Suite 2800 2345 Grand Boulevard
Kansas City, Missouri 64105 Kansas City, Missouri 64108
Telephone: (816) 691-3180 Telephone: (816) 292-2000
Telecopy: (816) 691-3495 Telecopy: (816) 292-2001
Counsel to Landlord Counsel to Tenant
<PAGE>
TABLE OF CONTENTS
LEASE BETWEEN ENTERTAINMENT PROPERTIES TRUST
AS LANDLORD AND AMERICAN MULTI-CINEMA, INC.,
AS TENANT, COVERING PREMISES IN
_______________________________
Article Page
- -------- -----
1. Attachments to Lease; Rent and Expense Rider and Exhibits.. . . . . . .1
2. Definitions and Rules of Construction.. . . . . . . . . . . . . . . . .2
3. Premises. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
4. Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
5. Rent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
6. Covenant of Title; Authority and Quiet Possession; Transfer
of Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7. Use of Premises.. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8. Subletting and Assigning. . . . . . . . . . . . . . . . . . . . . . . 14
9. Continued Possession of Tenant. . . . . . . . . . . . . . . . . . . . 21
10. Fixtures.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
11. Utilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
12. Governmental and Ground Lease Compliance.. . . . . . . . . . . . . . 22
13. Maintenance and Repairs. . . . . . . . . . . . . . . . . . . . . . . 27
14. Damage Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
15. Insurance, Indemnity, Waiver of Subrogation and Fire
Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
16. Indemnification Generally. . . . . . . . . . . . . . . . . . . . . . 39
i
<PAGE>
17. Tenant to Pay Taxes. . . . . . . . . . . . . . . . . . . . . . . . . 41
18. Alterations and Tenant's Liens.. . . . . . . . . . . . . . . . . . . 41
19. Tenant's Signs.. . . . . . . . . . . . . . . . . . . . . . . . . . . 42
20. Condemnation and Economic Obsolescence.. . . . . . . . . . . . . . . 44
21. Other Tenancies; REA. . . . . . . . . . . . . . . . . . . . . . . . 48
22. Common Facilities. . . . . . . . . . . . . . . . . . . . . . . . . 49
23. Options to Extend; Right of First Offer to Lease by Tenant.. . . . . 49
24. Common Area Charge.. . . . . . . . . . . . . . . . . . . . . . . . . 52
25. Other Theatres and Restrictions. . . . . . . . . . . . . . . . . . . 52
26. No Merchants Association.. . . . . . . . . . . . . . . . . . . . . . 53
27. Tenant's Covenant to Operate.. . . . . . . . . . . . . . . . . . . . 54
28. Estoppel Certificate; Attornment and Priority of Lease;
Subordination. . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
29. Right of First Refusal to Purchase by Tenant.. . . . . . . . . . . . 56
30. Default Clause and Self-Help.. . . . . . . . . . . . . . . . . . . . 63
31. Access to Premises.. . . . . . . . . . . . . . . . . . . . . . . . . 68
32. Force Majeure. . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
33. Remedies Cumulative; Legal Expenses; Time of the Essence . . . . . . 69
34. Lease Not to be Recorded.. . . . . . . . . . . . . . . . . . . . . . 70
35. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
36. Waiver of Performance and Disputes.. . . . . . . . . . . . . . . . . 71
37. Modification of Lease. . . . . . . . . . . . . . . . . . . . . . . . 73
ii
<PAGE>
38. Captions and Lease Preparation.. . . . . . . . . . . . . . . . . . . 73
39. Lease Binding on Successors and Assigns, Etc.. . . . . . . . . . . . 73
40. Brokers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
41. Landlord's Status as a REIT. . . . . . . . . . . . . . . . . . . . 74
42. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
43. Certain Landlord Rights On Termination.. . . . . . . . . . . . . . . 74
44. Estoppel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
45. Joint Preparation. . . . . . . . . . . . . . . . . . . . . . . . . . 75
46. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
47. Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . 76
48. Limitation on Landlord's Liability . . . . . . . . . . . . . . . . . 76
49. Waiver of Trial by Jury. . . . . . . . . . . . . . . . . . . . . . . 77
iii
<PAGE>
AMC BUILD
(REIT PROGRAM)
LEASE
THIS LEASE, dated as of November ___, 1997, is made by and between
ENTERTAINMENT PROPERTIES TRUST, a Maryland real estate investment trust, with
an office at 1221 Baltimore Avenue, Kansas City, Missouri, 64105,
("LANDLORD"), and AMERICAN MULTI-CINEMA, INC., a Missouri corporation, with
an office at 106 West 14th Street, Suite 1700, Kansas City, Missouri 64105
("TENANT").
1. ATTACHMENTS TO LEASE; RENT AND EXPENSE RIDER AND EXHIBITS.
Attached to this Lease and hereby made a part hereof are the
following:
RENT AND EXPENSE RIDER - a statement of the Annual Fixed Rent,
Percentage Rent and common area and real estate tax charges, if any, which
are to be paid by Tenant hereunder together with provisions pertaining to the
payment thereof.
EXHIBIT A - a legal description of the tract of land
constituting the land portion of the Entire Premises, if applicable, or if
not, the land constituting the land portion of Tenant's Facility.
EXHIBIT B - a site plan (the "Site Plan") of Leased Premises and
the Entire Premises (if applicable) showing (i) the location of Tenant's
Facility, outlined in red and specifying the dimensions thereof, and (ii) the
Entire Premises (if applicable) of which the Leased Premises are a part,
outlined in black, and (iii) the location of any other buildings and
improvements constructed or to be to be constructed, if known, within the
Entire Premises by any person or entity, including Tenant's Pylon.
1
<PAGE> EXHIBIT C - a description of Tenant's Facility and the
improvements constructed on the Leased Premises.
2. DEFINITIONS AND RULES OF CONSTRUCTION.
(A) DEFINITIONS. The following terms for purposes of this
Lease shall have the meanings hereinafter specified:
"AFFILIATE" shall mean as applied to a person or entity, any
other person or entity directly or indirectly controlling, controlled by, or
under common control with, that person or entity.
"ANNUAL FIXED RENT" shall mean the annual fixed rent payable
hereunder, which shall be the following:
(1) From the Commencement Date through and including the end
of the first Lease Year, an amount, per annum, equal to the product
obtained by multiplying $__________________ (the Purchase Price with
respect to such property set forth in the Agreement of Sale and
Purchase entered into among Landlord, Tenant and AMC Realty, Inc.
dated November __, 1997) by ten and one half (10.5) percent.
(2) During the second Lease Year and each following Lease
Year until the end of the initial fixed term and during all Option
Periods, if Tenant shall so extend the term of this Lease, the
Annual Fixed Rates shall be increased each Lease Year by an amount
equal to the Annual Fixed Rent Escalation.
"ANNUAL FIXED RENT ESCALATION" shall be 2% of the previous Lease
Year's Annual Fixed Rent.
"ANNUAL PERCENTAGE RENT" is defined in the Rent and Expense
Rider.
2
<PAGE>
"BUSINESS DAYS" is defined as any day other than a Saturday, a
Sunday or a day on which banking institutions in the City of New York are
authorized by law to close.
"COMMENCEMENT DATE" is defined in the Article captioned "Term."
"COMMON FACILITIES" shall include, if applicable, all parking
areas, streets, driveways, curb cuts, access facilities, aisles, sidewalks,
malls, landscaped areas, sanitary and storm sewer lines, water, gas,
electric, telephone and other utility lines, systems, conduits and facilities
and other common and service areas within the Entire Premises, whether or not
shown on the Site Plan, and regardless of by whom owned.
"CODE" means the Internal Revenue Code of 1986, as the same may
be amended or supplemented, and the rules and regulations promulgated
thereunder.
"CROSS-DEFAULT TERMINATION DATE" means the earlier to occur of
(i) the date the senior long-term debt obligations of Tenant's Parent or the
corporate credit rating of Tenant's Parent is rated investment grade by
either Standard & Poor's Corporation or Moody's Investors Services, Inc.,
(ii) Tenant's Rent under this Lease and any other lease between Landlord and
Tenant represents less than 50% of the Landlord's rental income for any
fiscal quarter or (iii) the expiration of the fixed term hereof.
"DEFAULT RATE" shall mean the lesser of (i) the Prime Rate plus
4% or (ii) the highest rate of interest that may lawfully be charged to the
party then required to pay interest under this Lease at the Default Rate.
"ENTIRE PREMISES" shall mean, if applicable, the larger tract of
land described on EXHIBIT A and shown outlined in black on the Site Plan
where Tenant's Facility is located, together with any buildings, Common
Facilities and other improvements thereon, as the Entire
3
<PAGE>
Premises is constituted from time to time. In no event shall the Entire
Premises be deemed to include any land which Landlord does not own either fee
title or a leasehold interest.
"ENVIRONMENTAL REPORT" is defined in the Article captioned
"Governmental and Ground Lease Compliance."
"EXPIRATION DATE" is defined in the Article caption "Term."
"FINAL PLANS" shall mean the final plans, drawings and
specifications for Tenant's Facility as built.
"FLOOR AREA" shall mean, with respect to each building or
structure on the Entire Premises (if applicable) or Tenant's Facility, the
number of square feet of floor area at each level or story lying within the
exterior faces of exterior walls thereof (except party walls as to which the
center line, not the exterior faces, shall be used), whether or not leased or
occupied; PROVIDED, HOWEVER, none of the following shall be included in the
computation of the Floor Area of Tenant's Facility: (i) any canopies (or the
area under such canopies) extending from the walls of Tenant's Facility, (ii)
any sidewalks, ramps, stairways or other walkways located outside the
exterior walls of Tenant's Facility regardless of whether any are contiguous
or adjacent to Tenant's Facility, (iii) any mezzanines used primarily for
projection and office purposes, (iv) any area designed as a weather barrier,
and (v) any corridors, vertical transportation and other areas which would
not be necessary if Tenant's Facility were at grade level.
"FORCE MAJEURE" is defined in the Article captioned "Force
Majeure."
"GOVERNMENTAL AUTHORITIES" shall mean all federal, state,
county, municipal and local departments, commissions, boards, bureaus,
agencies and offices thereof, having or
4
<PAGE>
claiming jurisdiction over all or any part of the Entire Premises (if
applicable) or Tenant's Facility or the use thereof.
"GROSS RECEIPTS" is defined in the Rent and Expense Rider.
"GROUND LEASE" shall mean, in the event Landlord does not own
fee title to the Leased Premises, the ground lease or similar conveyance
instrument by which Landlord holds a leasehold or similar estate therein and
to which this Lease is subject.
"HAZARDOUS SUBSTANCES" is defined in the Article captioned
"Governmental Compliance."
"LAWS" shall mean all present and future requirements,
administrative and judicial orders, laws, statutes, ordinances, rules and
regulations of any Governmental Authority.
"LEASE YEAR" is defined in the Rent and Expense Rider.
"LEASED PREMISES" shall mean Tenant's Facility, the land
described in Exhibit A (including, if applicable, the lessee's interest in
any ground lease) and all improvements, fixtures, appurtenances, rights,
easements and privileges thereunto belonging or in any way appertaining, and
all other rights, easements and privileges granted to Tenant in this Lease,
excluding, however, Tenant's Property as defined below.
"METROPOLITAN AREA" shall mean the ___________________
metropolitan area.
"MORTGAGE" shall mean any mortgage or deed of trust or other
instrument in the nature thereof evidencing a security interest in the Leased
Premises or any part thereof.
"NUMBER OF FIXED TERM YEARS" shall mean years. [Insert 13-15]
"OPTION PERIODS" shall mean four (4) successive separate periods
of five (5) years each.
"PERCENTAGE RATE" shall mean 6%.
5
<PAGE>
"PRIME RATE" shall mean the per annum interest rate from time to
time publicly announced by Citibank, N.A., New York, New York as its base
rate. If Citibank, N.A. should cease to publicly announce its base rate, the
Prime Rate hereunder shall be the prime, base or reference rate of the
largest bank (based on assets) in the United States which announces such rate.
"REA" is defined in the Article captioned "Other Tenancies; REA".
"RELATED LEASES" shall mean the Leases with respect to the
properties listed on the cover sheet of this Lease and Gulf Pointe 30
(Houston, TX), Mesquite 30 (Dallas, TX), Cantera 30 (Chicago, IL), Hampton
Town Center 24 (Norfolk, VA) and Livonia 20 (Detroit, MI).
"RENT" shall mean Annual Fixed Rent, Annual Percentage Rent and
other charges payable by Tenant under this Lease.
"REQUIRED INSURANCE" shall mean the insurance policies which
Tenant is required to maintain pursuant to Sections (A), (B) and (C) of
Article 15.
"RIGHT TO PURCHASE PERIOD" shall for purposes of Article 29
hereof mean the period of 5 years from and including the date hereof.
"SHOPPING CENTER", if applicable, shall mean the shopping center
operated at the Entire Premises, which is called the __________ Shopping
Center and is located at _____________ .
"TAXES" is defined in the Rent and Expense Rider.
"TENANT'S FACILITY" shall mean the building previously erected
and/or owned by Tenant or Tenant's Affiliate which presently contains
approximately ___________ square feet of Floor Area, __________ auditoriums and
______ seats.
6
<PAGE>
"TENANT'S OPERATING COVENANT" is defined in the Article
captioned "Tenant's Covenant to Operate."
"TENANT'S OPERATING PERIOD" shall mean the period beginning on
the Commencement Date and ending on the 10th anniversary of such date.
"TENANT'S PARENT" shall mean AMC Entertainment Inc., a Delaware
corporation.
"TENANT'S PROPERTY" is defined in the Article captioned
"Fixtures."
"TENANT'S PYLON" is defined in the Article captioned "Tenant's
Signs."
"TENANT'S SIGNS" is defined in the Article captioned "Tenant's
Signs."
"TERM OF THIS LEASE" or "TERM HEREOF" shall mean the initial
fixed term as provided in the Article captioned "Term" and any renewal or
extension thereof.
"TRANSFER" shall for purposes of Article 19 hereof mean any
sale, transfer, conveyance or other disposal (which may include a lease back)
of the Leased Premises or any part thereof.
(B) RULES OF CONSTRUCTION. The following rules of
construction shall be applicable for all purposes of this Lease, unless the
context otherwise requires:
(1) The terms "hereby," "hereof," "hereto," "herein,"
"hereunder" and any similar terms shall refer to this Lease, and the
term "hereafter" shall mean after, and the term "heretofore" shall
mean before, the date of this Lease.
(2) Words of the masculine, feminine or neuter gender shall
mean and include the correlative words of the other genders and
words importing the singular number shall mean and include the
plural number and vice versa.
7
<PAGE>
(3) The terms "include," "including" and similar terms shall
be construed as if followed by the phrase "without being limited
to."
3. PREMISES.
Landlord hereby demises and leases or sublease, as applicable,
unto Tenant, and Tenant hereby leases or sublease, as applicable, from
Landlord, for the consideration and upon the terms and conditions herein set
forth, the Leased Premises.
4. TERM.
The initial fixed term of this Lease shall commence November __,
1997 (the "COMMENCEMENT DATE"), and shall expire as of midnight on the last
day of the last year of the Number of Fixed Term Years from the first day of
the first month immediately following the Commencement Date; PROVIDED,
HOWEVER, if the Term of this Lease is scheduled to expire on a date
("Expiration Date") other than January 31, or September 30, then Tenant may,
by notice to Landlord given not later than 6 months prior to the Expiration
Date, elect to have the Expiration Date postponed until the next succeeding
January 31 or September 30, whichever first occurs. If Tenant so elects,
then the last Lease Year shall be longer than 12 months, and shall end on the
January 31 or September 30 (as the case may be) next following the previously
scheduled Expiration Date.
5. RENT.
(A) FIXED AND PERCENTAGE. Tenant shall pay Landlord, without
abatement, adjustment or setoff, except as set forth herein, the Annual Fixed
Rent in the manner set forth herein and in the Rent and Expense Rider
commencing on the Commencement Date, subject to the provisions of paragraph
(B) below and, if applicable, Annual Percentage Rent, in the manner set forth
herein and in the Rent and Expense Rider.
8
<PAGE>
(B) GROUND RENTS, IF ANY. Tenant also covenants and agrees
during the term of this Lease to pay any rent obligations of Landlord under
any Ground Lease. Tenant shall not receive a credit against its Annual Fixed
Rent or any other amounts due hereunder for such Ground Lease rental payments.
(C) PROHIBITION OF USE. If at any time during the term of this
Lease, (i) any Law shall prohibit the use of Tenant's Facility for the
purposes permitted in Section 7(A)(i) or (iii) of this Lease (the
"PROHIBITION"), and (ii) such Prohibition shall require Tenant to discontinue
its business operation in the Leased Premises or as a result of such
Prohibition Tenant reasonably determines that it is economically unfeasible
to continue to operate its business, and Tenant does in fact discontinue its
business operation in the Leased Premises, then for the period beginning with
the Tenant's discontinuance of its business operations in the Leased Premises
and ending on the earlier of the date the Tenant commences its business
operations in the Leased Premises or 30 days following the date the
Prohibition shall have been lifted, Rent payable by Tenant under this Lease
shall be fully abated and Landlord shall, promptly after such occurrence or
imposition, refund any unearned Rent paid by Tenant. Immediately upon the
earlier to occur of (a) Tenant becoming aware of any proposed Prohibition, or
(b) Tenant's receipt of any notice from any Governmental Authorities of any
Prohibition, Tenant shall promptly notify Landlord of such fact, and Landlord
shall have the right to proceed, in its or Tenant's name, and at Landlord's
sole cost and expense, to take such action as Landlord shall determine to be
necessary or desirable to contest or challenge the Prohibition. Landlord
shall within 30 days of receipt of notice from Tenant of the Prohibition
notify Tenant in writing if Landlord elects to contest or challenge such
Prohibition. If (x) Landlord shall elect not to
9
<PAGE>
contest or challenge the Prohibition, (y) a final, nonappealable judgment is
entered upholding the Prohibition, or (z) Landlord shall fail in the judgment
of Tenant, reasonably exercised, to diligently proceed with the contest or
challenge of such Prohibition, and such failure to proceed continues for 10
days after written notice to Landlord of such failure, then either Tenant or
Landlord may at any time thereafter while such Prohibition continues
terminate this Lease by giving the other party written notice of such
termination. If a Prohibition should occur or be imposed, nothing in this
paragraph (C) shall be deemed to impair Tenant's obligations under paragraph
(B) of the Article captioned "Governmental Compliance" at any time during
which Tenant is not prohibited from using Tenant's Facility for the purposes
permitted in Section 7(A)(i) and (iii) of this Lease by the Prohibition.
6. COVENANT OF TITLE; AUTHORITY AND QUIET POSSESSION; TRANSFER
OF TITLE.
(A) LANDLORD'S COVENANT. Landlord represents and warrants to
Tenant that: (i) Landlord has full right and lawful authority to enter into
and perform Landlord's obligations under this Lease for the term hereof, and
Landlord has not and will not suffer, incur or enter into any contracts,
leases, tenancies, agreements, restrictions, violations, encumbrances or
defects in title of any nature whatsoever which would materially adversely
affect the right, title and interest in the Leased Premises which was
assigned or transferred to Landlord or would materially adversely restrict or
prevent the use or enjoyment by Tenant of the Leased Premises; (ii) this
Lease shall not be subject or subordinate to any Mortgage except for such
subordination as may be accomplished in accordance with the provisions of the
Article captioned "Estoppel Certificate; Attornment; and Priority of Lease;
Subordination" and (iii) if Tenant shall discharge the obligations
10
<PAGE>
herein set forth to be performed by Tenant, Tenant shall have and enjoy,
during the term hereof, the quiet and undisturbed possession of the Leased
Premises together with the right to use the Common Facilities, if any, as in
this Lease contemplated, free from interference by Landlord or any party
claiming under Landlord.
(B) LEASEHOLD TITLE POLICY. Contemporaneously with the
execution of this Lease, if requested by Tenant, Landlord shall furnish
Tenant, at Tenant's sole cost and expense, a binding commitment for the
issuance of a leasehold owner's title insurance policy on the ALTA standard
form B-1970 (amended 10/17/70) policy form if available, and if not
available, on the current policy form available in the state in which the
Leased Premises is located, in an amount reasonably determined by Tenant and
containing such endorsements available in such state as Tenant shall
reasonably designate, written by Stewart Title Guaranty Company, committing
to insure as of the date of recording of a memorandum of this Lease that the
condition and state of the title to the leasehold estate created hereunder is
in accordance with clauses (i) and (ii) of paragraph (A) of this Article.
The acceptance of such commitment or resulting title policy by Tenant shall
in no way be construed as a waiver of, or in any way be deemed to impair,
Landlord's representations and warranties set forth in paragraph (A) of this
Article. By executing this Lease, Tenant shall be deemed to have approved
and accepted the status of title as reflected in such title commitment.
(C) CHANGE OF OWNERSHIP. Subject to Tenant's rights under the
Article captioned "Right of First Refusal to Purchase by Tenant", Landlord
shall promptly notify Tenant in writing of any change in the ownership of the
Leased Premises, giving the name and address of the new owner and
instructions regarding the payment of rent. In the event of any change in or
transfer of title of Landlord in and to the Leased Premises or any part
11
<PAGE>
thereof, whether voluntary or involuntary, or by act of Landlord or by
operation of any Laws, Tenant shall have the right to pay Annual Fixed Rent
or other charges thereafter accruing to the party to which Tenant was making
payments prior to such change in title until (i) Tenant shall have been
notified of such change in title and given satisfactory proof thereof (it
being hereby agreed that a letter signed by both the prior owner and the new
owner of the Leased Premises notifying Tenant of such transfer and the
address for rent payment and notice purposes hereunder shall be deemed
satisfactory proof of such change in title), and (ii) such new owner shall
execute and deliver an agreement, in recordable form, whereby such new owner
assumes and agrees with Tenant to discharge all obligations of Landlord under
this Lease.
7. USE OF PREMISES.
(A) DURING INITIAL TEN YEARS. During the period commencing
with the Lease Commencement Date and ending on the day before the 10th
anniversary of the Lease Commencement Date, Tenant's Facility shall not be
used except (i) primarily as a theatre and auditorium for presentation of
motion pictures, telecasts and other audio-visual presentations, and for
meetings and other public presentations and entertainment; (ii) for the
incidental operation therein of games and other amusement devices (electronic
or otherwise); (iii) for the incidental retail sale therein of food,
beverages and refreshments; (iv) for the incidental sale or rental (or both)
of video cassettes and discs; (v) for the incidental sale of records, compact
discs, books, magazines, toys and novelties related to the movie industry;
(vi) for the incidental sale of other goods, wares, merchandise and services;
and (vii) such other incidental lawful retail, service or entertainment
purpose(s) which are not specifically prohibited under this Lease.
Notwithstanding anything to the
12
<PAGE>
contrary herein, Tenant shall not have the right to use the Leased Premises,
or any part thereof, for any use or purpose which is not permitted by, or
which results in a violation of, any agreement, covenant or restriction to
which the Leased Premises is subject as of the date of this Lease, or any
Ground Lease or REA applicable to the Leased Premises.
(B) AFTER INITIAL TEN YEARS. Following the 10th anniversary of
the Lease Commencement Date, Tenant's Facility, if used at all, may be used
for any lawful purpose(s), provided that Tenant must obtain Landlord's prior
approval if such use would have the effect of causing all or a portion of the
amount received or accrued by Landlord pursuant to this Lease to be treated
as other than "rents from real property" within the meaning of Section 856(d)
of the Code. Notwithstanding anything to the contrary herein, Tenant shall
not have the right to use the Leased Premises, or any part thereof, for any
use or purpose which is not permitted by, or which results in a violation of,
any agreement, covenant or restriction to which the Leased Premises is
subject as of the date of this Lease, or any Ground Lease or REA applicable
to the Leased Premises.
(C) LANDLORD ASSISTANCE. Landlord agrees to execute, without
cost to Landlord, such customary applications, consents and other instruments
as shall be required by Governmental Authorities to permit the operation of
Tenant's Facility as permitted by this Lease, so long as such applications,
consents or other instruments do not impose or subject Landlord to any
liability or claim, and Tenant hereby covenants and agrees to indemnify and
hold harmless Landlord from and against any and all claims, costs, demands,
losses or liabilities (including attorneys' fees) which Landlord may suffer
or incur by reason of Landlord's execution of any such applications, consents
or other instruments as Tenant may request. If at any time any claims,
costs, demands, losses or liabilities
13
<PAGE>
are asserted against Landlord by reason of Landlord's execution of any such
applications, consents or other instruments as Tenant may request, Tenant
will, upon written notice from Landlord given in accordance with the
provisions hereof, defend any such claims, costs, demands, losses or
liabilities at Tenant's sole cost and expense by counsel reasonably
acceptable to Landlord and Tenant. The provisions of this paragraph shall
not be construed as limiting the representations and warranties of Landlord
set forth in paragraph (A) of the Article captioned "Covenant of Title;
Authority and Quiet Possession; Transfer of Title."
(D) CERTAIN LIMITATIONS. The obligations of Tenant under this
Article are subject to the provisions of paragraph (C) of the Article
captioned "Tenant's Covenant to Operate."
8. SUBLETTING AND ASSIGNING.
(A) AFTER OPERATING COVENANT. At any time after the 5th
anniversary of the Lease Commencement Date, Tenant shall have the right,
without Landlord's consent, to assign this Lease or sublet all or any part of
the Leased Premises once or more often; provided, however, that (i) each
sublease or assignment shall be made subject and subordinate to the
provisions of this Lease; (ii) the sublessee or assignee, by written
instrument, duly executed, acknowledged and delivered to Landlord, shall
assume all of Tenant's Obligations under this Lease; and (iii) no sublease or
assignment shall impose any obligations on Landlord or modify or limit any
power or right of Landlord under this Lease except as may be set forth in
paragraph (E) hereof.
(B) CONTINUATION OF LIABILITY. If Tenant assigns this Lease or
sublets all or any part of the Leased Premises, Tenant shall, subject to the
provisions of paragraph (C) of
14
<PAGE>
this Article, remain liable and responsible under this Lease and Tenant's
Parent, subject to such provisions, shall remain liable as guarantor of
Tenant's obligations; PROVIDED HOWEVER, in the case of an assignment, if this
Lease shall continue in effect after the last day of the initial fixed term
hereof or any renewal term during which such assignment occurs and if the
assignee shall have assumed in writing the performance of the covenants and
obligations of Tenant hereunder, Tenant (and Tenant's Parent) shall not be
liable or responsible to Landlord for any default or nonperformance by such
assignee as tenant hereunder arising or occurring after the last day of the
initial term hereof or of the renewal term during which such assignment
occurs.
(C) RELEASE OF LIABILITY. Tenant shall be released and
relieved from further liability under this Lease (and Tenant's Parent shall
be released and relieved from its guaranty of Tenant's obligations under this
Lease) if an assignment is made after the 5th anniversary of the Lease
Commencement Date and (i) the assignee, by written instrument, duly executed
and acknowledged and delivered to Landlord, assumes and covenants and agrees
with Landlord to perform all the terms, covenants and conditions of this
Lease which by the terms hereof are binding on Tenant from and after such
transfer and (ii) such assignee (or the guarantor of such assignee's
obligations under this Lease) has as of the end of the fiscal quarter
preceding the month during which any such assignment becomes effective or
subsequently attains a book net worth of not less than $100,000,000.00, as
demonstrated to Landlord's reasonable satisfaction (e.g. by audited financial
statements or the delivery of a 10-Q report, in the case of a public
company). If Tenant wishes to assign this Lease at any time during the term
of this Lease to an assignee which does not have, as of the end of the fiscal
quarter preceding the month during which such assignment becomes effective,
15
<PAGE>
a book net worth of $100,000,000.00, as demonstrated to Landlord's reasonable
satisfaction (e.g., by audited financial statements or the delivery of a 10-Q
report, in the case of a public company), then Tenant shall have the right to
make such assignment, but in such event such assignee shall have no further
rights to extend or renew under Section 23 of this Lease, and this Lease
shall terminate as of the end of the then current term without further right
of Tenant to extend or renew; PROVIDED, HOWEVER, that the foregoing provision
shall be of no force and effect, and such assignee shall continue to have the
right to extend or renew this Lease pursuant to the provisions of Section 23,
upon an assignment to an assignee which does not have, as of the end of the
fiscal quarter preceding the month during which such assignment becomes
effective, a book net worth of $100,000,000.00, if Tenant or Tenant's Parent
agree, at the time such assignment is made, to remain liable hereunder, and
under the guaranty by Tenant's Parent, respectively, in a manner reasonably
satisfactory to Landlord.
(D) FOUR-WALL DEALS. Anything in this Lease to the contrary
notwithstanding, Tenant shall have the right, without Landlord's consent,
once or more often, to enter into so-called "four-wall" deals whereby
Tenant's Facility or any part thereof is permitted to be used by others on a
limited engagement basis for any use permitted to be made thereof by Tenant.
(E) OTHER ACTIONS REQUIRE CONSENT. Except as otherwise
provided in this Article and in paragraph (C) of the Article captioned
"Tenant's Covenant to Operate," Tenant shall not assign this Lease or sublet
the Leased Premises in whole or in part without the consent of Landlord,
which consent Landlord agrees not to unreasonably withhold or delay.
16
<PAGE>
(F) DEFAULT NOTICES AFTER ASSIGNMENT; NEW LEASE PROVISIONS. If
Tenant assigns this Lease and remains liable hereunder, then Landlord, when
giving notice to said assignee or any future assignee in respect of any
default, shall also serve a copy of such notice in the manner provided herein
upon the original tenant named in this Lease, American Multi-Cinema, Inc.
("the ORIGINAL TENANT"), and no notice of default shall be effective until a
copy thereof is served to the Original Tenant in the manner provided herein.
The Original Tenant, at its sole option, shall have the same period after
receipt of such notice to cure such default as is given to Tenant under this
Lease. If because of a default of an assignee after an assignment of this
Lease (i) this Lease shall terminate, or (ii) this Lease and the term hereof
ceases and expires, or (iii) an assignee's possession of the Leased Premises
shall be terminated without termination of this Lease (Landlord hereby
agreeing to terminate this Lease upon the Original Tenant and Landlord
executing a new lease if Original Tenant exercises its option to become the
tenant thereunder), then in any of such events Landlord shall promptly give
the Original Tenant notice thereof, and the Original Tenant shall have the
option, to be exercised by notice to Landlord given within 30 days after
receipt by the Original Tenant of Landlord's notice, to cure any default and
become Tenant under a new lease for the remainder of the term of this Lease
(including any renewal periods) upon all of the same terms and conditions as
then remain under this Lease as it may have been amended by agreement between
Landlord and Original Tenant. If any default of an assignee is incapable of
being cured by the Original Tenant, then notwithstanding the failure to cure
same, the Original Tenant shall have the foregoing option to enter into a new
lease. Such new lease shall commence on the date of termination of this
Lease. Notwithstanding the foregoing, if Landlord delivers to the
17
<PAGE>
Original Tenant, together with Landlord's notice, a release as to all
liability under this Lease as theretofore amended, the Original Tenant shall
not have the foregoing option.
(G) SUBLETTING TO CONCESSIONAIRES. Tenant may, without
Landlord's prior approval, sublease portions of the Leased Premises to
concessionaires or licensees to: (i) operate games or other amusement
devices; (ii) sell food, beverages and refreshments; (iii) sell or rent video
cassettes and discs; (iv) sell records, compact discs, books, magazines, toys
and novelties related to the movie industry; and (v) sell other goods, wares,
merchandise and services customarily associated with or incidental to the
operation of each Property. Each sublease will be subject and subordinate to
the provisions of this Lease relating to the Leased Premises. The sublease
will not affect or reduce any of the obligations of Tenant, or Tenant's
Parent as guarantor of Tenant's obligations, under this Lease, nor will the
sublease impose any additional obligations on Landlord. Tenant will, within
10 days after the execution and delivery of any sublease, deliver a duplicate
original thereof to Landlord. Notwithstanding the foregoing, without
Landlord's prior written approval Tenant shall not enter into any sublease,
license agreement or other arrangement which would have the effect of causing
any portion of the amount received or accrued, directly or indirectly, by the
Landlord under this Lease to be treated as other than "rents from real
property" within the meaning of Paragraph 856(d) of the Code.
Notwithstanding anything to the contrary herein and subject to the provisions
and exclusions of Section 1(B)(4) to the Rent and Expense Rider, if Tenant
shall sublease any portion of the Leased Premises to any concessionaire(s) or
licensee(s) and either (A) such concessionaire(s) or licensee(s) are
Affiliates of Tenant, or (B) the Gross Receipts of such concessionaire(s) or
licensee(s) equal or exceed 10% of the Gross Receipts of Tenant in
18
<PAGE>
any Lease Year, then the total Gross Receipts of such concessionaire(s) or
licensee(s) shall be included in Tenant's Gross Receipts for the purpose of
determining the Annual Percentage Rent payable by Tenant for such Lease Year.
If Tenant shall enter into any subleases of any portion of the Leased
Premises with any concessionaire(s) or licensee(s), Tenant shall notify
Landlord if any of such concessionaire(s) or licensee(s) are Affiliates of
Tenant, and Tenant shall obtain from such concessionaire(s) or licensee(s),
and submit to Landlord, all information necessary to permit Landlord to
determine the Gross Receipts of such concessionaire(s) or licensee(s).
(H) ASSIGNMENT OF RIGHTS IN SUBLEASE. As security for
performance of its obligations under this Lease, Tenant hereby grants,
conveys and assigns to Landlord all right, title and interest of Tenant in
and to all subleases now in existence or hereinafter entered into for any or
all of the Leased Premises, and all extensions, modifications and renewals
thereof and all rents, issues and profits therefrom. Landlord hereby grants
to Tenant a license to collect and enjoy all rents and other sums of money
payable under any sublease of any of the Leased Premises; provided, however,
that Landlord shall have the absolute right at any time after the occurrence
and continuance of an event of default and Tenant's failure to timely cure or
commence to cure the same as herein provided, upon notice to Tenant and any
subtenants to revoke said license and to collect such rents and sums of money
and to retain the same. Tenant shall not (i) consent to, cause or allow any
material modification or alteration of any of the terms, conditions or
covenants of any of the subleases or the termination thereof, without the
prior written approval of Landlord which shall not be unreasonably withheld
or delayed nor (ii) accept any rents (other than customary security deposits)
more than 30 days in advance of the accrual thereof nor (iii)
19
<PAGE>
permit anything to be done, the doing of which, nor omit or refrain from
doing anything, the omission of which, will or could be a breach of or
default in the terms of any of the subleases.
(I) REIT LIMITATIONS. Anything contained in this Lease to the
contrary notwithstanding, Tenant shall not: (i) sublet or assign or enter
into other arrangements such that the amounts to be paid by the sublessee or
assignee thereunder would be based, in whole or in part, on the income or
profits derived by the business activities of the sublessee or assignee; (ii)
sublet or assign the Leased Premises or this Lease to any tenant in which
Landlord owns, directly or indirectly (by applying constructive ownership
rules set forth in Paragraph 856(d)(5) of the Code), a 10% or greater
interest within the meaning of Section 856(d)(2)(B) of the Code; or (iii)
sublet or assign the Leased Premises or this Lease in any other manner or
otherwise derive any income without the prior written consent of Landlord
which subletting could cause any portion of the amounts received by Landlord
pursuant to this Lease or received indirectly by Landlord pursuant to any
sublease to fail to qualify as "rents from real property" within the meaning
of Paragraph 856(d) of the Code, or which could cause any other income
received by Landlord to fail to qualify as income described in Paragraph
856(c)(2) of the Code. The requirements of this subpart (I) shall likewise
apply to any further subleasing by any subtenant.
(J) LICENSES, ETC. For purposes of this Article, subleases
shall be deemed to include any licenses, concession arrangements, management
contracts or other arrangements relating to the possession or use of all or
any part of the Leased Premises.
20
<PAGE>
9. CONTINUED POSSESSION OF TENANT.
Any holding over after the last day of any extension of the term
hereof, or after the last day of the initial fixed term hereof if this Lease
is not extended, shall be construed to be a monthly tenancy, on the terms
herein set forth, terminable by either party on not less than one month's
notice.
10. FIXTURES.
(A) Any and all trade fixtures and equipment, signs,
appliances, furniture and other personal property of any nature installed in
Tenant's Facility on the Commencement Date or at any time thereafter by
Tenant, including lighting fixtures, concession stands and related equipment,
acoustical wall panels, projection and sound equipment, seats and satellite
dishes, if installed (all of the foregoing being collectively referred to in
this Lease as "TENANT'S PROPERTY"), shall not become a part of the realty
and may be removed from Tenant's Facility by Tenant at any time during the
term hereof or within 30 days after the termination of the term hereof.
Landlord hereby waives any and all liens, claims, demands or rights,
including rights of levy, execution, sale and distraint for unpaid rent, or
any other right, interest or lien which Landlord has or may hereafter acquire
in any of Tenant's Property.
(B) Tenant shall have the right to finance the acquisition and
installation of Tenant's Property (by granting a security interest therein or
entering into an equipment lease therefor), and in connection therewith,
Landlord agrees to execute and to cause the holder of any Mortgage to execute
and deliver a standard form of landlord's and mortgagee's waiver and all
other documents in standard form as reasonably required by such lessor of
21
<PAGE>
or holder of a security interest in Tenant's Property to confirm such
entity's ownership of and/or security interest in said Tenant's Property.
11. UTILITIES.
(A) Tenant shall pay all charges for gas, electricity, water,
sewer service and other utilities used in Tenant's Facility and the Leased
Premises during the term hereof, all such utilities to be separately metered
and to be obtained by Tenant from the applicable utility company. Tenant
also shall be solely responsible for the payment of any connection, tap,
hookup or other fee(s) imposed by Governmental Authority or by any utility
company to extend and/or connect utility service to the Leased Premises.
(B) Tenant shall, at Tenant's expense, furnish, install and
maintain in good condition and repair, (i) to points in Tenant's Facility,
all storm and sanitary sewers, and all gas, water, telephone, electrical
facilities and other utilities of such size and type as may be required to
provide adequate service for the Leased Premises, and (ii) to Tenant's Pylon,
electrical facilities of such size and type as may be required to adequately
service Tenant's Pylon.
12. GOVERNMENTAL AND GROUND LEASE COMPLIANCE.
(A) TENANT RESPONSIBILITIES GENERALLY. Except as provided in
paragraph (C) of this Article, Tenant shall comply with all Laws which
affect the Leased Premises and Tenant's Facility located thereon and the use
and occupancy thereof. Tenant may, at its expense, contest the validity or
applicability of any governmental
22
<PAGE>
requirements and postpone or delay compliance therewith (in whole or in part)
pending resolution of such contest. If Tenant receives written notice of any
violation of any governmental requirements applicable to the Leased Premises,
Tenant shall give prompt notice thereto to Landlord.
(B) PARTIES' ENVIRONMENTAL KNOWLEDGE. Landlord and Tenant each
warrants and represents to the other that to its actual knowledge and, except
as otherwise disclosed in the Environmental Report (hereinafter defined) (i)
no release, leak, discharge, spill, storage, disposal or emission of
"Hazardous Substances" (hereinafter defined) has occurred in, on or under the
Leased Premises, and that the Leased Premises, are free of Hazardous
Substances as of the date hereof, (ii) there are no underground storage tanks
under or adjacent to the Leased Premises, (iii) there has not been any notice
of intent to sue, notice of violation, citation, warning or similar
notification under any federal, state or local environmental law or
regulation regarding the Leased Premises or arising out of operations on the
Leased Premises, and (iv) it is not aware of any investigation or inquiry by
any Governmental Authority concerning the Entire Premises or the operations
thereon; PROVIDED, HOWEVER, Tenant hereby acknowledges and agrees that (i) it
has received a copy of an environmental assessment prepared by
_________________ respecting the Leased Premises (the "Environmental
Report"), Tenant is fully aware of the contents of the Environmental Report,
and Tenant accepts the Leased Premises subject to all matters and conditions
disclosed in the Environmental Report, (ii) Landlord has not undertaken any
investigation or inquiry with respect to environmental aspects of the Leased
Premises other than the Environmental Report, and the warranties and
representations of Landlord set forth in this section are based solely upon
the contents of the Environmental Report and any actual knowledge, and (iii)
the representations and warranties contained in this section are subject to
the matters and conditions disclosed in the Environmental Report,
23
<PAGE>
and Landlord shall not be deemed to be in breach of the warranties and
representations contained in this section to the extent that the matter or
conditions which would otherwise be a breach of such warranties and
representations is disclosed in the Environmental Report.
(C) LANDLORD'S ENVIRONMENTAL RESPONSIBILITIES. During the term
of this Lease, Landlord shall not cause any Hazardous Substances to be used,
stored, generated or disposed of (collectively "USED") on, in or under the
Leased Premises by Landlord or its agents, employees, contractors or anyone
(other than Tenant) claiming by through or under Landlord, except for those
Hazardous Substances which may lawfully be Used in the ordinary course of
business in the operation of such properties or which may be reasonably
required in performing the obligations of Landlord under this Lease, and then
only to the extent no Laws in effect at such time are violated by Landlord.
(D) TENANT'S ENVIRONMENTAL RESPONSIBILITIES. During the terms
of this Lease, Tenant shall not cause or permit any Hazardous Substances to
be Used on, in or under the Leased Premises by Tenant, Tenant's agents,
employees, contractors or anyone claiming by, through or under Tenant, except
in the ordinary course of business in the operation of Tenant's business as
permitted by Section 7(A) this Lease, or as reasonably required in performing
the obligations of Tenant under this Lease, and then only to the extent no
Laws in effect at such time are violated by Tenant.
(E) ENVIRONMENTAL INDEMNITIES. Each party ("INDEMNIFYING
PARTY") shall indemnify and save the other party ("INDEMNIFIED PARTY")
harmless from any and all claims of third parties, and damages, costs and
losses owing to third parties or suffered by Indemnified Party, including
court costs, reasonable attorneys' fees
24
<PAGE>
and consultants' fees, arising during or after the term and reasonably
incurred or suffered by the Indemnified Party as a result of any default or
breach of any representation, warranty or covenant made by Indemnifying Party
under paragraphs (A) through (D) of this Article. It is a condition of this
indemnification and save harmless that the Indemnifying Party shall receive
notice of any such claim against the Indemnified Party promptly after
Indemnified Party first has knowledge thereof, but no failure by the
Indemnified Party to promptly notify the Indemnifying Party of any such claim
shall adversely affect the Indemnified Party's right to indemnification
except (and only to the extent) that the Indemnifying Party can prove
prejudice as a result of the failure to receive prompt notice. This
indemnification and save harmless includes any and all costs reasonably
incurred by the Indemnified Party after notice to Indemnifying Party for any
cleanup, removal or restoration mandated by any public official acting
lawfully under Law if Indemnifying Party shall not timely perform such work.
(F) DEFINITION. As used herein, "HAZARDOUS SUBSTANCE" means
any substance that is toxic, radioactive, ignitable, flammable, explosive,
reactive or corrosive and that is, in the form, quantity, condition and
location then found upon or under the Leased Premises and/or the remainder of
the Entire Premises, as the case may be, regulated by any Governmental
Authority. "Hazardous Substance" includes any and all materials and
substances that are defined as "hazardous waste," "hazardous chemical,"
"pollutant," "contaminant" or "hazardous substance," in the form, quantity,
condition and location then found upon the Leased Premises and/or the
remainder of the Entire Premises, as the case may be, pursuant to Law.
"Hazardous Substance" includes asbestos, polychlorinated biphenyls and
petroleum.
25
<PAGE>
(G) COMPLIANCE WITH GROUND LEASE. Tenant covenants and agrees
(i) that this Lease is subject to any Ground Lease pursuant to which Landlord
has leased to Tenant the Leased Premises and (ii) during the Term of this
Lease to pay and perform when due any and all obligations of Landlord under
and with respect to any such Ground Lease and (iii) Tenant shall comply with
and abide by all of the terms and provisions of the Ground Lease, whether
such terms and provisions are binding upon the holder of the tenant's
interest in the Ground Lease or the Leased Premises. Landlord agrees to
fully cooperate with Tenant in the exercise of any rights or remedies
pursuant to such Ground Lease the exercise of which Tenant believes is
necessary or prudent with respect to the Leased Premises. Tenant hereby
covenants and agrees to indemnify and hold harmless Landlord from and against
any and all claims, costs, demands, losses or liabilities (including
attorney's fees) which Landlord may suffer or incur by reason of any failure
by Tenant to pay and perform all of the terms of, or any violation of or
noncompliance with any of the covenants and agreements contained in, the
Ground Lease, regardless of whether such provisions are binding upon the
holder of the tenant's interest in the Ground Lease or the Leased Premises.
If at any time any claims, costs, demands, losses or liabilities are asserted
against Landlord by reason of any failure by Tenant to pay and perform all of
the terms of, or any violation of or noncompliance with any of the covenants
and agreements contained in, the Ground Lease, regardless of whether such
provisions are binding upon the holder of the tenant's interest in the Ground
Lease or the Leased Premises, Tenant will, upon written notice from Landlord
given in accordance with the provisions hereof, defend any such claims,
costs, demands, losses or liabilities at Tenant's sole cost and expense by
counsel reasonably acceptable to Landlord and Tenant.
26
<PAGE>
(H) NO AMENDMENTS TO GROUND LEASE. During the term of this
Lease, Landlord shall not, without the prior written consent of Tenant,
modify, amend, terminate or surrender its interest in the Ground Lease, any
ECR or any other agreement relating to the Leased Premises or Entire Premises
to which Landlord has any right, title or interest (and for which Tenant has
any obligations hereunder). With respect to any such modification,
amendment, termination or surrender prohibited hereby which materially
adversely affects or impairs Tenant's operation of its business on the Leased
Premises or Entire Premises, or rights thereto, Tenant may withhold its
consent in its absolute discretion but otherwise Tenant's consent shall not
unreasonably be withheld or delayed.
(I) LANDLORD INDEMNIFICATION. Landlord hereby covenants and
agrees to indemnify and hold harmless Tenant from and against any and all
claims, costs, demands, losses or liabilities (including attorney's fees)
which Landlord may suffer or incur by reason of any violation by Landlord of
the provisions of Section 12(H) hereof.
(J) SURVIVAL. The provisions of this Article shall survive the
expiration or sooner termination of this Lease.
13. MAINTENANCE AND REPAIRS.
(A) WARRANTY. Landlord will, so long as no event of default
shall have occurred and be continuing, assign or otherwise make available to
the Tenant any and all rights the Landlord may have under any vendor's or
manufacturer's warranties or undertakings with respect to the Leased
Premises, but Landlord does not warrant or represent that any such warranties
or undertakings are or will be available to Tenant, and Landlord shall have
no further obligations or responsibilities respecting such warranties or
undertakings.
27
<PAGE>
(B) MAINTENANCE AND REPAIR. Tenant shall pay all costs,
expenses, fees and charges incurred in connection with the use or occupancy
of the Leased Premises. Tenant shall at all times, at its own expense, and
subject to reasonable wear and tear, keep the Leased Premises in good
operating order, repair, condition and appearance. With respect to the
Leased Premises, the undertaking to maintain in good repair shall include,
without limitation, all interior and exterior repairs (including all
replacements of components, systems or parts which are a part of, or are
incorporated into, the Leased Premises, or any part thereof), whether
structural or nonstructural, foreseen or unforeseen, ordinary or
extraordinary and all common area maintenance including, without limitation,
removal of dirt, snow, ice, rubbish and other obstructions and maintenance of
sidewalks and landscaping.
(C) ANY GROUND LEASE RESPONSIBILITIES. Tenant also covenants
and agrees during the term of this Lease to perform all maintenance and
repair obligations of Landlord under any Ground Lease.
(D) ALTERATIONS. So long as no event of default shall have
occurred and be continuing, Tenant may, at its expense, make nonstructural
additions to and alterations to the Leased Premises and shall additionally
have the right to install communications equipment on the roof of Tenant's
Facility if such equipment is screened from customer view in a manner
reasonably acceptable to Landlord without the necessity of obtaining
Landlord's consent; provided, that upon (i) completion of such additions or
alterations, neither the fair market value of the Leased Premises shall be
materially lessened thereby nor the utility or condition of the Leased
Premises materially impaired, below the value, utility or condition thereof
immediately prior to such action, (ii) such additions or
28
<PAGE>
alterations shall not result in a change of use of the Leased Premises, and
(iii) such work shall be completed in a good and workmanlike manner and in
compliance with all applicable legal requirements. Any and all such
additions and alterations shall be and remain part of the Leased Premises and
shall be subject to this Lease. Notwithstanding anything contained herein,
Tenant shall not perform any addition or alteration to the Leased Premises
which would have an estimated cost in excess of $500,000, nor any structural
alterations to the Leased Premises, without the Landlord's prior written
consent, which consent may be conditioned upon, among other things,
Landlord's approval of the plans and specifications for such additions and
alterations and Tenant's furnishing of such security as Landlord may
reasonably require to protect Landlord against any liens or claims affecting
the Leased Premises as a result of such addition or alteration, but otherwise
such consent shall not be unreasonably withheld or delayed.
(E) CERTAIN LIMITATIONS. Notwithstanding anything set forth in
paragraphs (A), (B) and (C) of this Article to the contrary, the obligations
of Tenant set forth therein shall be subject to the provisions set forth in
the Articles captioned "Damage Clause" and "Condemnation and Economic
Obsolescence."
14. DAMAGE CLAUSE.
(A) INSURED DAMAGE. If Tenant's Facility or the Common
Facilities shall be damaged or destroyed by fire, casualty or any cause
whatsoever, either in whole or in part, which is insurable under the Required
Insurance, and Tenant does not elect to terminate this Lease pursuant to the
provisions of paragraphs (C) or (E) hereof, Tenant shall with due diligence
remove any resulting debris and repair and/or rebuild the damaged or
destroyed structures and other improvements, including any improvements or
betterments
29
<PAGE>
made by Landlord or Tenant, in accordance with the Final Plans (to the extent
then permitted by law and to the extent of available insurance proceeds).
Landlord shall make all insurance proceeds available as a result of such
fire, casualty or other destruction to Tenant for restoration. Tenant shall
obtain Landlord's consent (which shall not be unreasonably withheld or
delayed) to any material deviation from the Final Plans which Tenant is
required to make to obtain approval from Governmental Authorities having
jurisdiction for such restoration. Until the earlier of (i) the date 90 days
after the date Tenant's Facility and the Common Facilities are repaired,
rebuilt and put in good and tenantable order, or (ii) the date Tenant reopens
the portion(s) of Tenant's Facility so damaged or destroyed, the Annual Fixed
Rent and other charges hereby reserved, or a fair and just proportion thereof
according to the nature and extent of the damage sustained, shall be abated,
but only to the extent of any rental interruption insurance proceeds actually
received by Landlord.
(B) UNINSURED DAMAGE. If Tenant's Facility or the Common
Facilities shall be damaged or destroyed by a casualty not insurable under
the Required Insurance and Tenant does not elect to terminate this Lease
pursuant to the provisions of paragraphs (C) and (E) hereof, Landlord shall
with due diligence remove any resulting debris and repair and/or rebuild the
damaged or destroyed structures and other improvements, including any
improvements or betterments made by Landlord or Tenant, in accordance with
the Final Plans, to the extent permitted by law. Until the earlier of (i)
the date 90 days after the date Tenant's Facility and the Common Facilities
are repaired, rebuilt and put in good and tenantable order, or (ii) the date
Tenant reopens the portion(s) of Tenant's Facility so damaged or destroyed
the Annual Fixed Rent and other charges hereunder, or a just and
30
<PAGE>
fair proportion thereof according to the nature and extent of the damage
sustained, shall be abated, but only to the extent of any rental interruption
insurance proceeds actually received by Landlord. Landlord shall have the
right, in lieu of repairing and restoring the Tenant's Facility or the Common
Facilities upon the occurrence of any casualty which is not insurable under
the Required Insurance, to terminate this Lease, effective as of the date of
such casualty, by written notice to Tenant given within 30 days after the
occurrence of such casualty; provided, however, such right of termination by
Landlord shall only be available to the extent as a result of such
uninsurable casualty all or a portion of Tenant's facility is rendered
unsuitable for use as a movie theatre and the cost of restoration would
exceed 50% of the amount it would cost to replace Tenant's Facility in its
entirety at the time such damage or destruction occurred. Upon any such
termination, all insurance proceeds (if any) payable with respect to the
casualty to the Leased Premises (other than insurance proceeds payable with
respect to Tenant's Property) shall belong to Landlord.
(C) RIGHT TO TERMINATE ON CERTAIN DAMAGE. If Tenant's Facility
is damaged or destroyed by fire, casualty or any cause whatsoever (other than
willful misconduct of Tenant) to such an extent that all or a portion thereof
is rendered unsuitable for use as a movie theatre and the cost of restoration
would exceed 50% of the amount it would cost to replace Tenant's Facility in
its entirety at the time such damage or destruction occurred, and if Tenant
has complied with its insurance obligations under this Lease (including
maintaining insurance against loss of rents by Landlord), Tenant may
terminate this Lease by notice to Landlord given within 30 days after such
damage or destruction. If Tenant elects to terminate this Lease as provided
herein, Tenant shall pay to Landlord, as a
31
<PAGE>
condition upon the effectiveness of such termination, within 60 days after
such notice, an amount equal to all insurance proceeds for such damage or
destruction (except any for Tenant's Property) together with an amount equal
to the difference, if any, between the amount of insurance proceeds turned
over to Landlord and the net book value of Tenant's Facility as accurately
reflected in Landlord's financial records as of the date of such damage or
destruction. Upon the giving of such notice by Tenant to terminate, and
Tenant's payment of all amounts provided for hereunder, this Lease shall
automatically terminate and the Annual Fixed Rental and other charges
hereunder shall be equitably adjusted as of the date of such destruction.
Notwithstanding anything to the contrary herein, if the provisions of any
Ground Lease or REA require the restoration of the Leased Premises following
the occurrence of any damage or destruction which is insurable under the
Required Insurance or under any insurance which is required under the
provisions of such Ground Lease or REA, then in such event Tenant shall not
have the right to terminate this Lease as provided in this Section 14, and in
such event Tenant shall proceed to restore the Leased Premises in accordance
with the requirements of such Ground Lease or REA.
(D) EFFECT OF LEASE TERMINATION. If Tenant elects to terminate
this Lease as set forth in paragraph (C) of this Article and such notice of
termination is not negated by Landlord as provided in this paragraph, then
this Lease shall terminate as of the date of such damage or destruction and
the Annual Fixed Rent and other charges hereunder shall be adjusted as of the
date of termination. If Tenant so elects to terminate this Lease as provided
in paragraph (C) of this Article, Landlord shall nevertheless have the option
of negating such notice of termination by giving notice to Tenant of such
negation, which
32
<PAGE>
notice, if given at all, shall be given within 60 days of Landlord's receipt
of Tenant's notice of termination. If Landlord elects to negate Tenant's
notice of termination, then (i) this Lease shall not terminate, and (ii)
Landlord shall, with due diligence, repair and restore Tenant's Facility in
its entirety at Landlord's sole cost and expense. If Landlord elects to
negate Tenant's notice of termination as provided herein, then all insurance
proceeds payable as a result of such damage or destruction (except for
proceeds payable with respect to Tenant's Property) shall belong to Landlord
and until the earlier of (i) the date 90 days after the date Tenant's
Facility and the Common Facilities are repaired, rebuilt and put in good and
tenantable order, or (ii) the date Tenant reopens the portion(s) of Tenant's
Facility so damaged or destroyed, the Annual Fixed Rent and other charges
hereunder, or a just and fair proportion thereof according to the nature and
extent of the damage sustained, shall be abated.
(E) ELECTION NOT TO RESTORE. Anything in this Article to the
contrary notwithstanding, it is agreed that if (i) Tenant's Facility is
damaged or destroyed by fire or other cause to such an extent that the cost
of restoration would exceed 25% of the amount it would have cost to replace
Tenant's Facility in its entirety at the time such damage or destruction
occurred, and (ii) such damage or destruction occurs during the last 3 years
of the initial fixed term hereof or during the last 2 years of any Option
Period, then either Landlord or Tenant shall have the right and option to
terminate this Lease by giving the other party to this Lease notice of such
election within 30 days after the date on which such damage or destruction
occurred, and if such notice is given this Lease shall terminate as of the
date Tenant vacates Tenant's Facility, which date shall be no later than 45
days after the giving of such notice, and the Annual Fixed Rent and other
charges hereunder
33
<PAGE>
shall be adjusted as of the effective date of termination; PROVIDED, HOWEVER,
that Tenant shall have the right to nullify any such notice of termination
given by Landlord if at the time such notice is given an option herein
granted Tenant to extend the term of this Lease for an additional period of 5
years or more remains unexercised and Tenant shall exercise such option
within 30 days after the receipt of such notice from Landlord, in which event
Landlord's notice of such termination shall be of no force or effect and the
parties shall perform the restoration and other work required of them under
the terms of this Article.
(F) RIGHTS TO INSURANCE PROCEEDS. If this Lease is terminated
as in this Article provided following damage to or destruction of Tenant's
Facility and/or Tenant's property, the proceeds of all hazard insurance on
Tenant's Facility which is maintained by Tenant or Landlord pursuant to the
Article captioned "Insurance; Indemnity; Waiver of Subrogation and Fire
Protection" shall belong to Landlord, except insurance proceeds in respect of
Tenant's Property, which shall belong to Tenant.
15. INSURANCE, INDEMNITY, WAIVER OF SUBROGATION AND FIRE
PROTECTION
(A) PROPERTY POLICY. During the term hereof, Tenant shall at
its expense except as provided below, keep Tenant's Facility (excluding
foundations, footings and underground improvements) insured in the name of
Tenant with Landlord as an additional insured as its interests may appear
against damage or destruction by fire and the perils commonly covered under a
standard policy of fire and extended coverage insurance (including vandalism
and malicious mischief and all physical loss perils) and so-called difference
in conditions coverage, as applicable, to the extent of not less than 100% of
the full replacement cost thereof. Such policy also shall cover floods, when
the Leased Premises
34
<PAGE>
are located in whole or in material part in a designated flood plain area and
earthquake if the Leased Premises is located in California (and in other
locations if reasonably required by Landlord and designated on the
Commencement Date hereof) and other similar hazards as may be customary for
comparable properties in the area, and such other "additional coverage"
insurance as Landlord or any holder of a Mortgage, on the Leased Premises may
reasonably require, which at the time is usual and commonly obtained in
connection with properties similar in type of building size and use to
Tenant's Facility and located in the geographic area where the Leased
Premises are located. Landlord agrees that the amounts and coverages
maintained by Tenant with respect to the Leased Premises at the Commencement
Date hereof satisfies the requirements of this Section 15(A) as of the
Commencement Date hereof. Tenant shall be responsible for determining that
the amount of property damage coverage maintained with respect to the Leased
Premises complies with the requirements of this Lease. The proceeds of such
insurance in case of loss or damage shall be held in trust and applied on
account of the obligation of Tenant to repair and/or rebuild the Leased
Premises pursuant to the Article captioned "Damage Clause" to the extent that
such proceeds are required for such purpose, subject to any conflicting
provision in the Ground Lease or the REA, which conflicting provision (if
any) shall control the handling of such insurance proceeds. The insurance
required to be carried by Tenant under this paragraph and paragraph (C) of
this Article (i) may be covered under a so-called "blanket" policy covering
other operations of Tenant and Affiliates, so long as the amount of coverage
available under said "blanket" policy with respect to the Leased Premises, or
Tenant's liability under this Lease, at all times meets the requirements set
forth in this Lease, and (ii) shall be evidenced by a certificate of
insurance from Tenant's
35
<PAGE>
insurer. Such insurance certificate with respect to property insurance shall
be issued on ACORD 27 or equivalent, and with respect to both property
insurance and liability insurance, in a form acceptable to Landlord. Upon
request, Tenant shall name the holder of any Mortgage on Tenant's Facility
pursuant to a standard mortgagee, additional insured or loss payee clause as
such holder shall elect with respect to the foregoing property insurance,
provided such holder agrees with Tenant in writing to disburse such insurance
proceeds to Tenant for, and periodically during the course of, repair and
restoration of Tenant's Facility as set forth in this Lease.
(B) LIABILITY INSURANCE; TENANT NEGLIGENCE. Tenant will,
subject to the provisions of paragraph (D) of this Article, and subject to
the provisions of paragraph (D) of the Article captioned "Governmental and
Ground Lease Compliance," indemnify and save harmless Landlord, its officers,
agents and servants, from and against any and all claims, actions, liability
and expense in connection with loss of life, bodily injury and/or damage to
property: (i) arising from or out of any occurrence in, upon or at Tenant's
Facility, the Leased Premises or the occupancy or use by Tenant of Tenant's
Facility, the Leased Premises or any part thereof, unless the same is caused
by the willful or negligent act or omission of Landlord; or (ii) occasioned
wholly or in part by any willful or negligent act or omission of Tenant, its
agents, employees, servants, subtenants, lessees or concessionaires. If any
action or proceeding is brought against Landlord, its officers, agents or
servants by reason of any of the aforementioned causes, Tenant, upon
receiving notice thereof from Landlord, agrees to defend such action or
proceeding by adequate counsel at its own expense. Tenant agrees to insure
the foregoing obligation by contractual endorsement under a commercial
general public liability policy (including
36
<PAGE>
personal injury and property damage and which may be a blanket policy) to be
maintained by Tenant with combined single limits of not less than
$10,000,000.00. To the extent that Tenant does not self-insure, Tenant shall
furnish Landlord certificates of insurance from Tenant's insurer evidencing
that such insurance is in full force and effect at all times. Tenant shall
cause Landlord to be named as an additional insured as its interests may
appear on all policies of liability insurance maintained by Tenant (including
excess liability and umbrella policies) with respect to the Leased Premises.
(C) WORKERS' COMPENSATION INSURANCE. Tenant shall maintain,
with respect to its operations and all of its employees at the Leased
Premises, a policy or policies of workers' compensation insurance, in
accordance with and in the amounts required by Laws.
(D) LIABILITY INSURANCE; LANDLORD NEGLIGENCE. Landlord will,
subject to the provisions of paragraph (E) of this Article, and subject to
the provisions of paragraph (D) of the Article captioned "Governmental and
Ground Lease Compliance," indemnify and save harmless Tenant, its officers,
agents and servants, from and against any and all claims, actions, suits,
judgments, decrees, orders, liability and expense in connection with loss of
life, bodily injury and/or damage to property occasioned wholly or in part by
any willful or negligent act or omission of Landlord, its agents, employees
or servants. If any action or proceeding is brought against Tenant, its
agents or servants by reason of any of the aforementioned causes, Landlord,
upon receiving written notice thereof from Tenant in the manner provided
herein, agrees to defend such action or proceeding by adequate counsel at its
own expense. Landlord agrees to insure the foregoing obligation by
contractual endorsement under a commercial general public liability policy
(including personal injury and property damage and which may be a blanket
policy) to be maintained by Landlord
37
<PAGE>
(on which Tenant is named as an additional insured) with single limits of not
less than $5,000,000.00. Landlord shall provide Tenant certificates of
insurance from Landlord's insurer evidencing that the insurance so required
to be maintained by Landlord is in full force and effect at all times.
(E) RELEASE; WAIVER OF SUBROGATION. Anything in this Lease to
the contrary notwithstanding, it is agreed that each party (the "RELEASING
PARTY") hereby releases the other (the "RELEASED PARTY") from any liability
which the Released Party would, but for this paragraph, have had to the
Releasing Party during the term of this Lease resulting from any accident or
occurrence or casualty (i) which is covered by Tenant's required insurance
hereunder, or (ii) which is or would be covered by a fire or "all risk"
property insurance policy in use in the state in which the Leased Premises is
located, whether or not the Releasing Party is actually maintaining such an
insurance policy, or (iii) which is covered by any other casualty or property
damage insurance being carried by the Releasing Party at the time of such
occurrence, which casualty may have resulted in whole or in part from any act
or neglect of the Released Party, its officers, agents or employees;
PROVIDED, HOWEVER, the release hereinabove set forth shall become inoperative
and null and void if the Releasing Party wishes to place such insurance with
an insurance company which (y) takes the position that the existence of such
release vitiates or would substantially adversely affect any policy so
insuring the Releasing Party and notice thereof is given to the Released
Party, or (z) requires the payment of a higher premium by reason of the
existence of such release, unless in the latter case the Released Party
within 20 days after notice thereof from the Releasing Party pays such
increase in premium. Notwithstanding anything to the contrary herein, except
as provided in Section 15(D)
38
<PAGE>
hereof, Tenant agrees and acknowledges that Landlord shall have no
responsibility or liability for any loss, damage or injury to Tenant's
Property which is located in, on or about the Leased Premises or the Common
Facilities at any time and from time to time, regardless of the cause of such
loss, damage or injury, and that all of Tenant's Property is located in, on
or about the Leased Premises or the Common Facilities at Tenant's sole risk.
Tenant hereby releases Landlord from any and all claims with respect to loss,
damage or injury to Tenant's Property located in, on or about the Leased
Premises or the Common Facilities, regardless of the cause of such loss,
damage or injury.
(F) SELF-INSURE; DEDUCTIBLES. With respect to the casualty and
property damage insurance coverages to be provided by Tenant hereunder,
Tenant may reasonably determine to partially self-insure and/or purchase
insurance policies required hereunder with such deductibles as is customary
for the risks involved as long as Tenant can reasonably demonstrate to
Landlord its ability to satisfy such deductible or amount of self insurance.
In no event shall the amount of Tenant's deductible and self-insurance with
respect to the Tenant's Facility (both liability and property) exceed 1% of
the consolidated net worth of Tenant's Parent, as reflected on the most
recent audited balance sheet of Tenant's Parent.
16. INDEMNIFICATION GENERALLY. In addition and subject to the
parties' respective indemnification obligations set forth elsewhere in this
Lease including those in the Article captioned "Insurance, Indemnification,
Waiver of Subrogation and Fire Protection", Tenant agrees to indemnify and
save harmless Landlord, its officers, agents and servants from and against
all liabilities, costs and expenses (including reasonable attorneys' fees and
expenses) and all actual or consequential damages imposed upon or asserted
against the Landlord as owner of
39
<PAGE>
the Leased Premises on account of, (i) any use, misuse, non-use, condition,
maintenance or repair by Tenant of the Leased Premises; (ii) any impositions
which are the obligation of Tenant to pay pursuant to the applicable
provisions of this Lease; (iii) any failure on the part of Tenant to perform
or comply with any other of the terms of this Lease or any sublease; (iv)
liability the Landlord may incur as a result of any permitted contest by
Tenant under the Lease; (v) any liability Landlord may incur or suffer as a
result of Laws, including the ADA (except those Laws referred to in (vi)
below), affecting the Leased Premises; (vi) accident, injury to or death of
any person or damage to property on or about the Leased Premises; and (vii)
any liability Landlord may incur or suffer as a result of any Laws relating
to the protection of human health or the environment in respect to the Leased
Property which liability arises as a result of any event or occurrence when
Tenant or any of its affiliates was an owner of the Leased Premises or a
tenant of the Leased Premises pursuant to a Ground Lease or is the Tenant
hereunder which does not result from the willful actions or negligence or
omissions of the Landlord or its agents or invitees. If at any time any
claims, costs, demands, losses or liabilities are asserted against Landlord
by reason of any of the matters as to which Tenant indemnifies Landlord
hereunder, Tenant will, upon written notice from Landlord given in accordance
with the provision hereof, defend any such claims, costs, demands, losses or
liabilities at Tenant's sole cost and expense by counsel reasonably
acceptable to Landlord. Landlord agrees to indemnify and save harmless,
Tenant from and against all liabilities, costs and expenses (including
reasonable attorneys' fees) imposed upon or asserted against Tenant as a
result of any failure on the part of Landlord to perform or comply with any
of the terms of this Lease.
40
<PAGE>
17. TENANT TO PAY TAXES.
Tenant shall pay all Taxes assessed or charged against the Leased
Premises or any part thereof as provided in the Rent and Expense Rider.
18. ALTERATIONS AND TENANT'S LIENS.
(A) TITLE TO TENANT'S ALTERATIONS. Subject to the provisions
of the Article captioned "Fixtures," any alterations, changes, improvements
and additions made by Tenant shall immediately become the property of
Landlord and shall be considered a part of Tenant's Facility.
(B) NO TENANT LIENS. Tenant shall not permit any mechanic's,
materialman's or other similar lien to be foreclosed against the Leased
Premises by reason of work, labor, services or materials performed by or
furnished to Tenant or anyone holding any part of the Leased Premises under
Tenant. If any such lien shall at any time be filed, Tenant may contest the
same in good faith but Tenant shall, prior to foreclosure thereof, cause such
lien to be released of record by payment, bond, order of a court of competent
jurisdiction or otherwise. Nothing contained in this Lease shall be
construed as a consent on the part of Landlord to subject Landlord's estate
in the Leased Premises to any lien or liability under the lien laws of the
state in which the Leased Premises are located. Notwithstanding the
foregoing, if any mechanics', materialmen's or other similar lien is filed
against the Leased Premises, and the amount of such lien claim exceeds
$250,000, then Tenant shall, within 10 days after the filing thereof, provide
to Landlord a bond in the amount of 125% of the amount of such lien claim, or
other security reasonably satisfactory to Landlord, protecting Landlord from
loss or liability by reason of such lien. Tenant hereby covenants and agrees
to indemnify and hold harmless Landlord from and against any and all claims,
41
<PAGE>
costs, demands, losses or liabilities (including attorneys' fees) which
Landlord may suffer or incur by reason of any such mechanics', materialmen's
or other similar lien.
(C) LANDLORD ELECTIVE IMPROVEMENTS. During the term of this
Lease, Landlord shall not be required to build or rebuild any improvements to
the Leased Premises or Tenant's Facility, or to make any repairs,
replacements, alterations, restorations or renewals thereto. In the event
that Landlord should, in its sole discretion, elect to make capital
improvements to the Leased Premises, it may only do so with Tenant's consent,
which may be given or withheld in Tenant's sole discretion, and it is
understood and agreed that Landlord will generally condition any such
election on an increase in the Annual Fixed Rent to reflect such expenditures.
19. TENANT'S SIGNS.
(A) LOCATION AND TYPE. Tenant shall have the right to maintain
the following signs in accordance with and subject to any applicable
provisions of the Site Plan, the Ground Lease, the REA and Laws:
(1) Illuminated signs on the exterior walls of Tenant's
Facility and on the theatre canopy or marquee.
(2) Signs on the interior or exterior of any windows of
Tenant's Facility.
(3) Easel or placard signs within the lobby entrance or on
sidewalks immediately in front of Tenant's Facility, provided the
same do not unreasonably interfere with pedestrian traffic.
(4) Poster cases within the lobby of Tenant's Facility and on
the exterior walls of Tenant's Facility.
42
<PAGE>
(5) Illuminated roadside sign(s) and attraction board
("TENANT'S PYLON") located as shown on the Site Plan.
(B) DESIGN. The design of all signs presently located on the
Leased Premises is hereby approved by Landlord with the design of all future
signs which Tenant elects to construct pursuant to clauses (1) and (5) of
paragraph (A) of this Article (such present and future signs referred to as
"TENANT'S SIGNS") to be subject to Landlord's approval, which Landlord agrees
not to unreasonably withhold or delay (Landlord hereby approving the Tenant's
Signs which are located on the Leased Premises on the Lease Commencement
Date), shall advertise Tenant's business in Tenant's Facility and shall be
constructed and maintained in good repair at Tenant's expense. Tenant shall
pay the cost of electricity consumed in illuminating Tenant's Signs.
(C) ACCESS TO TENANT'S PYLON. If Tenant's Pylon is located
outside the Leased Premises, Landlord hereby grants to Tenant such easement
rights as Landlord may have under any REA, which shall be appurtenant to the
Leased Premises, for the purpose of enabling Tenant to have access to
Tenant's Pylon, to maintain and service same and to insure the continued
availability of power thereto.
(D) LOSS OF TENANT'S PYLON. If Tenant shall be deprived of
Tenant's Pylon as the result of a condemnation, Landlord shall cooperate with
Tenant, at Tenant's cost and expense, (a) to make available a mutually
agreeable site (and power thereto) for a substitute pylon within the Leased
Premises or any applicable Entire Premises strategically located so as to be
visible to automobile traffic on highways adjoining Leased Premises or any
applicable Entire Premises or at entrances to the Entire Premises, and (b) to
Tenant in obtaining, at Tenant's cost and expense, easements similar to those
described in paragraph
43
<PAGE>
(C) of this Article with respect to the new site. Nothing herein shall
obligate Landlord to provide to Tenant, as the location for Tenant's Pylon,
any portion of the Entire Premises which Landlord reasonably determines to
have value as a developable parcel for another tenant or purchaser, or to
restrict Landlord's ability to sell, lease or develop the Entire Premises in
such manner as Landlord determines to be appropriate.
(E) PROTECTION OF SIGNS VISIBILITY. Landlord shall not erect
or permit to be erected any sign or advertising device on the roof or
exterior walls of Tenant's Facility, nor any landscaping, signs or other
obstructions on the Leased Premises which would block the view of Tenant's
Pylon from adjoining streets.
(F) INTERIOR SIGNS. Nothing in this Lease shall restrict
Tenant's unlimited right to maintain signs on the interior of Tenant's
Facility.
20. CONDEMNATION AND ECONOMIC OBSOLESCENCE.
(A) IN GENERAL. If any material part of the Leased Premises
(meaning any material part of the Tenant's Facility) shall be taken in any
proceeding by any Governmental Authority by condemnation or otherwise, or be
acquired for public or quasi-public purposes, or be conveyed under threat of
such taking or acquiring (which Landlord shall not do without Tenant's prior
consent), Tenant shall have the option of terminating this Lease by notice to
Landlord of its election to do so given on or before the date which is 3
months after Tenant shall have been deprived of possession of the condemned
property, and upon the giving of such notice, this Lease shall automatically
terminate and the Annual Fixed Rent and other charges hereunder shall be
adjusted as of the date of such notice. In the event a material part of the
Leased Premises (meaning any material part of the Tenant's Facility) is so
taken and Tenant elects not to terminate this Lease, or in the event of a
taking of less than a material paart of the Leased Premises, this Lease shall
terminate as of the portion of the Leased Premises so taken, and then Tenant
44
<PAGE>
shall, to the extent and making use of the condemnation award, restore
Tenant's Facility to a complete unit as similar as reasonably possible in
design, character and quality to the building which existed before such
taking. In the event Tenant's Facility is partially taken and this Lease is
not terminated, the Annual Fixed Rent and other charges thereafter payable
hereunder shall be equitably reduced based on the value to Tenant of the
remaining premises. If Tenant shall perform restoration work under this
paragraph, so much of the Annual Fixed Rent and other charges payable by
Tenant as is fairly allocable to the space which is to be restored shall
abate until such restoration work shall have been completed. Any restoration
work to be performed pursuant to this paragraph shall be completed in
accordance with plans and specifications which shall have been approved by
Landlord and Tenant, such approvals not to be unreasonably withheld. In any
such proceeding whereby all or part of the Leased Premises is taken, whether
or not Tenant elects to terminate this Lease, each party shall be free to
make claim against the condemning authority for the amount of the actual
provable damage done to each of them by such proceeding. If the condemning
authority shall refuse to permit separate claims to be made, then Landlord
shall prosecute with counsel reasonably satisfactory to Tenant the claims of
both Landlord and Tenant, and the proceeds of the award, after payment of
Landlord's reasonable costs and attorney's fees incurred in such proceeding,
shall be divided between Landlord and Tenant in a fair and equitable manner;
provided, however, in the event of a condemnation which results in the
termination of this Lease, Tenant shall be entitled to its portion of the
condemnation award only so long as the amount of the award paid to the
Landlord is equal to the net book value of the property taken, as reflected
on the Landlord's financial statements on the date of the condemnation.
45
<PAGE>
(B) LOSS OF PARKING. If (i) any material part of the parking
areas serving the Leased Premises, whether located upon the Leased Premises
or on a parcel other than the Leased Premises are taken in any proceeding by
any Governmental Authority, and as a result of such taking (a) the total
number of parking spaces available for use by patrons of the Leased Premises
is reduced by fifteen percent (15%) or more, and the number of parking
spaces available for use by patrons of the Leased Premises does not satisfy
the zoning requirements applicable to the Leased Premises, taking into
account the total parking requirements of the Shopping Center or (ii) by
reason of any such taking in Tenant's reasonable judgment, Tenant's ability
to conduct its operations on the Leased Premises is materially adversely
affected or any means of access to the Leased Premises or the parking
areas serving the Leased Premises are terminated, lost or materially altered
by reason of any such taking, and such termination, loss or alteration
results, in Tenant's reasonable judgment, in a material adverse effect upon
Tenant's use and occupancy of the Leased Premises or Tenant's business
operation thereon, then in any of such events Tenant shall have the option of
terminating this Lease by notice to Landlord of its election to do so given
on or before the date which is 3 months after the occurrence of such event,
and this Lease shall automatically terminate 30 days after the giving of such
notice and the Annual Fixed Rent and other charges hereunder shall be
adjusted as of that date; provided, however, that Tenant's right to terminate
this Lease shall be nullified if Landlord shall (i) on or before the 30th day
after the giving of Tenant's notice, give Tenant notice of Landlord's
intention to forthwith provide a substitute parking area contiguous to the
Leased Premises or Parking Parcel and the remaining parking area, which
substitute parking area must be reasonably acceptable to Tenant and be of
46
<PAGE>
comparable quality and equal in size to the area taken, and (ii) within 6
months after so notifying Tenant, subject to Force Majeure, actually provide
such substitute parking area and enter into a written agreement amending this
Lease to include said substitute parking area as part of the parking area
with respect to which Tenant is granted parking rights provided for in the
Article captioned "Common Facilities."
(C) TEMPORARY TAKING AWARDS. If by reason of a taking Tenant
shall be temporarily deprived in whole or in part of the use of Tenant's
Facility or any part thereof, the entire award made as compensation therefor
shall belong to Tenant, and there shall be no abatement of the Annual Fixed
Rent payable hereunder.
(D) NO TAKING BY LANDLORD ACTION. Landlord shall not initiate
or take any action seeking a public or private taking of Tenant's Facility or
of any part of the Leased Premises or any applicable Entire Premises.
(E) ECONOMIC OBSOLESCENCE. From and after the expiration or
earlier termination of Tenant's Operating Covenant, Tenant, notwithstanding
anything in this Lease to the contrary, may elect to terminate this Lease
upon a determination by Tenant, reasonably exercised, that the Leased
Premises have become economically obsolete to Tenant due to a change in
circumstances from those which existed at the Commencement Date, including,
without limitation, circumstances relating to the competitive market or the
condition of or development (or lack thereof) on property adjacent to or in
the vicinity of the Leased Premises. If said election is made by Tenant,
this Lease shall terminate 90 days from receipt by Landlord of such election
and the obligation to pay Annual Fixed Rent or Percentage Rent shall end on
such termination date. In the event of and as a condition to such
termination, Tenant shall pay to Landlord the greater of (i) Landlord's net
book value
47
<PAGE>
of the Leased Premises or (ii) the appraised value of the Leased Premises
based on the capitalized value of Tenant's remaining rental payments under
this Lease during the applicable Fixed Term or Extended Term. The appraised
value shall be determined by an independent appraiser mutually agreeable to
Landlord and Tenant. If Landlord and Tenant are unable, within 30 days after
Landlord's delivery of its notice electing to terminate this Lease as
provided in this Section 20(E), to agree upon an appraiser to provide such
appraisal, then Landlord and Tenant shall each select an appraiser, and the
two (2) appraisers so selected shall upon an appraiser to provide such
valuation. All appraisers selected shall, unless Landlord and Tenant agree
otherwise, be members of the American Institute of Appraisers.
21. OTHER TENANCIES; REA. If the Leased Premises are a part of
a larger Entire Premises and if there is a reciprocal easement agreement,
operating agreement or similar agreement encumbering and/or benefiting all or
any portion of the Entire Premises (an "REA"), then Landlord hereby agrees
with Tenant with respect to the REA as follows:
(A) Landlord will not approve or agree to any amendments of the
REA which materially derogates the rights granted to Landlord thereunder
without Tenant's prior consent.
(B) Landlord hereby agrees to use its best reasonable efforts,
at Tenant's expense, to enforce the cross-easement rights, operating
covenants and other rights contained in the REA on Tenant's behalf, and if
Landlord fails to proceed with its best reasonable efforts to enforce said
rights on Tenant's behalf within 30 days after notice thereof from Tenant,
Landlord agrees that Tenant shall have the right to enforce said rights under
the REA
48
<PAGE>
directly and in the name of and on behalf of Landlord if required (all at
Landlord's expense), Landlord hereby conferring such enforcement rights unto
Tenant.
(C) Concurrently with or within 30 days after the execution of
this Lease, Landlord shall reasonably cooperate with Tenant at Tenant's
expense in securing an agreement from the other party or parties to the REA
pursuant to which such other parties confirm for the benefit of Tenant that
the REA is in full force and effect without default thereunder.
22. COMMON FACILITIES. If the Leased Premises are a part of a
larger Entire Premises and there are Common Facilities covered by an REA that
affect Tenant's use of the Leased Premises, Landlord hereby agrees to
reasonably cooperate with Tenant and/or allow Tenant to enforce against any
responsible person or entity, if any, at Tenant's cost and expense, any of
the rights with respect to the Common Facilities which Landlord may have
under such REA benefiting the Leased Premises.
23. OPTIONS TO EXTEND; RIGHT OF FIRST OFFER TO LEASE BY TENANT.
(A) OPTIONS PERIODS. Provided Tenant is not in default under
this Lease, Tenant shall have the right to extend the term of this Lease for
the Option Periods from the date upon which the term would otherwise expire
upon the same terms and conditions as those herein specified. If Tenant
elects to exercise its option for any Option Period, it shall, subject to the
provisions of paragraph (B) of this Article, do so by giving Landlord notice
of such election at least 6 months before the beginning of the Option Period
for which the term hereof is to be extended by the exercise of such option.
If Tenant gives such notice, the term of this Lease shall be automatically
extended for the Option Period covered by the option so exercised without
execution of an extension or renewal lease.
49
<PAGE>
(B) PROTECTION AGAINST FORFEITURE. It is the intention of
Landlord and Tenant to avoid forfeiture of Tenant's right to extend the term
of this Lease under any of the extension options set forth in paragraph (A)
of this Article through failure to give notice of exercise thereof within the
time prescribed. Accordingly, if Tenant shall fail to give notice of
exercise of any such option within the time prescribed in paragraph (A) of
this Article, then the time to give such notice shall be deemed extended for
an additional period commencing on the last day on which such notice by
Tenant may be timely given pursuant to paragraph (A) above and ending 30 days
after the date Landlord gives Tenant notice of Tenant's failure to exercise
such option within the time prescribed. If Tenant exercises any such option
after the date prescribed in paragraph (A) above, but within the extended
time permitted above, the extended term to which such option relates shall
commence, or shall be deemed to have commenced, at the time it would have
commenced if such notice had been given within the time prescribed in
paragraph (A) above; otherwise, any period during which Tenant remains in
possession after the expiration of the term hereby created, or as extended by
the exercise of a previous option or options, shall be subject to the
provisions of the Article captioned "Continued Possession of Tenant." The
foregoing provisions of this Section 23(B) shall be inoperative, and the time
period for Tenant's exercise of each of its options to renew hereunder shall
expire as of that date which is 6 months prior to the expiration of the
then-current term of this Lease if Landlord shall give Tenant notice of
Tenant's right to renew this Lease not earlier than 12 months, and not later
than 7 months, prior to the expiration of the then-current term of this Lease.
(C) RIGHT OF FIRST OFFER TO LEASE BY TENANT. Upon the
expiration of the Lease Term and provided that Tenant has exercised each
Option Period Option and no event of
50
<PAGE>
default then exists beyond any applicable notice and cure period, Tenant
shall have a right of first offer ("Tenant's Right of First Offer to Lease")
to lease the Leased Premises upon the same terms and conditions as Landlord,
at its election, intends to offer to lease the Leased Premises to a third
party; provided, however, Tenant's Right of First Offer to Lease shall only
be available if Landlord intends to offer to lease the Leased Premises to a
third party for use as a movie theatre at a rate less than the Annual Fixed
Rent or Percentage Rent then payable under this Lease. Tenant shall be
entitled to exercise Tenant's Right of First Offer to Lease only if at the
time of the giving of such notice and at the time of the commencement of the
applicable term no event of default then exists beyond any applicable notice
and cure period and only if Landlord elects to lease the Leased Premises at
the expiration of the Lease Term. Not more than nine (9) months and not less
than three (3) months prior to the expiration of the Lease Term, Landlord
shall, if applicable, give Tenant written notice of its intent to lease the
Leased Premises and shall indicate the terms and conditions upon which
Landlord intends to lease the Leased Premises.
Tenant shall thereafter have a period of 20 days to elect by unequivocal
written notice to Landlord to lease the Leased Premises on the same terms and
conditions as Landlord intends to offer to a third party; provided prior to
Tenant's acceptance Landlord shall retain the right to elect not to lease the
Leased Premises by giving Tenant written notice thereof. If Tenant elects
not to lease the Leased Property then Landlord shall be free to lease the
Leased Premises to a third party. However, if the base rent for such
proposed lease is reduced by five (5%) or more as compared to the base rent
included in the lease that Tenant rejected, then Landlord shall again offer
Tenant the right to acquire
51
<PAGE>
the Leased Premises upon the same terms and conditions, provided that Tenant
shall have only 10 days to accept such offer. Leased Premises as used in
this Article shall include any substantial portion of the entire Leased
Premises.
24. COMMON AREA CHARGE.
If the Leased Premises are part of a larger Entire Premises for which
Common Area charges under an REA are payable for the operation and
maintenance of Common Facilities, Tenant shall pay such charges and perform
all of Landlord's obligations under the REA.
25. OTHER THEATRES AND RESTRICTIONS.
(A) If at any time during the term hereof a movie theatre, other
than the one operated in Tenant's Facility, is open for business within the
Entire Premises or on premises which are (i) owned or controlled (directly or
indirectly) by Landlord or by any officer or partner of Landlord, and (ii)
located within 500 feet from any boundary line of the Entire Premises, then
in addition to Tenant's other remedies (including injunctive relief), the
Annual Fixed Rent hereunder shall be abated during the continuance of the
operation of such movie theatre, in lieu of the Annual Fixed Rent otherwise
payable by Tenant, Tenant shall pay Landlord an amount equal to the lesser of
(i) Percentage Rent only, or (ii) the Annual Fixed Rent otherwise payable by
Tenant, reduced by an amount equal to the product obtained by multiplying the
number of seats in such other theatre by the quotient obtained by dividing
the amount of the Annual Fixed Rent then payable under this Lease by the
number of seats then in Tenant's building.
(B) Landlord will not use and will use its best reasonable efforts
to prevent any other tenant from using, any other premises or equipment owned
or controlled by Landlord and located on the Entire Premises in any manner
that would result in any noise
52
<PAGE>
or vibration interfering with the acoustics required by Tenant in its use of
Tenant's Building or would result in any offensive odors penetrating Tenant's
Building.
(C) Landlord will not sell or permit to be sold video cassettes or
discs or any candy, popcorn or other refreshments generally sold in theatre
concession stands in or from any premises owned or leased by Landlord located
within 150 feet from any wall of Tenant's Facility or in or from any part of
the parking area or other Common Facility on the Entire Premises owned or
leased by Landlord; provided, however, notwithstanding the foregoing, there
shall be no prohibition on the incidental sale of video cassettes or discs or
any candy, popcorn or other refreshments generally sold in theatre concession
stands or a restaurant use in or from any of the land parcels adjacent to the
Leased Premises acquired by Landlord at or about the Commencement Date of
this Lease. In no event shall Landlord lease or permit the occupancy of any
premises located in the Entire Premises or any out parcel adjacent to the
Leased Premises and owned by Landlord for any of the following uses: (a)
funeral home; (b) bookstore or other establishment engaged in the business of
selling, exhibiting or delivering pornographic or obscene materials; (c)
so-called "head shop;" (d) bowling alley; (e) skating rink; (f) health club
or exercise facility; or (g) game room or arcade.
26. NO MERCHANTS ASSOCIATION.
Tenant shall have no obligation to be a member of or pay any dues or
other amounts to any merchants association associated with any larger Entire
Premises of which the Leased Premises may be a part or otherwise, unless
required to do so under the REA or the Ground Lease.
53
<PAGE>
27. TENANT'S COVENANT TO OPERATE.
(A) IN GENERAL. So long as Landlord shall not be in default under
this Lease, Tenant will, except when prevented from so doing by Force Majeure
or by other causes beyond its reasonable control (including the
unavailability of film) and subject to the provisions of the Article
captioned "Subletting and Assigning," during Tenant's Operating Period,
operate or cause to be operated a movie theatre complex in Tenant's Facility
(such covenant being herein called "TENANT'S OPERATING COVENANT"). Tenant
shall operate Tenant's Facility in an efficient and professional manner.
(B) TENANT'S RIGHT TO CONTROL OPERATIONS. Nothing contained in this
Lease or in rules or regulations (if any) promulgated by Landlord shall be
deemed in any way to (i) regulate the manner of operation by Tenant of its
business in Tenant's Facility and/or the hours and/or days of such operation,
provided that Tenant agrees that it will operate its business in the Tenant's
Facility during at least the same general hours and days of operation as
other theatre operators operating other similar facilities located within the
Metropolitan Area, or (ii) require Tenant to operate more than a majority of
its theatre auditoriums, or (iii) give Landlord any right, express or
implied, of censorship over any attractions exhibited in Tenant's Facility or
over the content of Tenant's advertising.
(C) NO OTHER OPERATING REQUIREMENTS. Except as specifically
provided in paragraph (A) of this Article, Tenant shall have no obligation
whatsoever, either express or implied, to at any time operate or otherwise
use Tenant's Facility.
28. ESTOPPEL CERTIFICATE; ATTORNMENT AND PRIORITY OF LEASE; SUBORDINATION.
(A) ESTOPPEL CERTIFICATES. Each party agrees, within 20 days after
request by the other party, to execute, acknowledge and deliver to and in
favor of the proposed holder of
54
<PAGE>
any Mortgage or purchaser of the Leased Premises, any encumbrance holder of
Tenant or any proposed sublessee of Tenant or assignee of Tenant's interest
in this Lease, an estoppel certificate stating: (i) whether this Lease is in
full force and effect; (ii) whether this Lease has been modified or amended
and, if so, identifying and describing any such modification or amendment;
(iii) the date to which rent and any other charges have been paid; and (iv)
whether such party knows of any default on the part of the other party or has
any claim against the other party and, if so, specifying the nature of such
default or claim.
(B) ATTORNMENT BY TENANT. Tenant shall, in the event any
proceedings are brought for the foreclosure of, or in the event of the
exercise of the power of sale under, any Mortgage prior in lien to this Lease
made by Landlord, attorn to the purchaser upon any such foreclosure or sale
and recognize such purchaser as Landlord under this Lease, provided such
purchaser assumes in writing Landlord's obligations under this Lease.
(C) SUBORDINATION/NON-DISTURBANCE. Upon request of the holder of
any Mortgage, Tenant will subordinate its rights under this Lease to the lien
thereof and to all advances made or hereafter to be made upon the security
thereof, and Tenant shall execute, acknowledge and deliver an instrument
effecting such subordination; PROVIDED, HOWEVER, as a condition of any such
subordination, Landlord shall obtain and deliver to Tenant within 20 days
after demand by Tenant an agreement, in recordable form, from the holder of
any Mortgage to which this Lease is subordinate containing a covenant binding
upon the holder thereof to the effect that as long as Tenant shall not be in
default under this Lease, or, if Tenant is in default hereunder, as long as
Tenant's time to cure such default has not expired, this Lease shall not be
terminated or modified in any
55
<PAGE>
respect whatsoever, nor shall the rights of Tenant hereunder or its occupancy
of the Leased Premises be affected in any way by reason of such Mortgage or
any foreclosure action or other proceeding that may be instituted in
connection therewith, and that, except to the extent that the holder of such
Mortgage is required to do so to effectively foreclose such Mortgage, Tenant
shall not be named as a defendant in any such foreclosure action or other
proceeding.
(D) FORM OF DOCUMENTS. Without limiting the foregoing provisions of
this Article, all documents requested by either party in order to effectuate
the provisions of this Article shall be in form and substance reasonably
satisfactory to the other party to the extent not inconsistent with such
provisions.
29. RIGHT OF FIRST REFUSAL TO PURCHASE BY TENANT.
(A) GRANT OF RIGHT OF FIRST OFFER. Subject to the terms and
conditions set forth in this Article 29, Landlord hereby grants to Tenant a
right of first offer ("First Offer Right") relating to the Transfer of any or
all of the Leased Premises. If, at any time during the Right to Purchase
Period, Landlord desires to Transfer all or any portion of the Leased
Premises (the "Offered Property"), Landlord shall first deliver to Tenant
written notice (the "Notice of Transfer"), which Notice of Transfer shall
state Landlord'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 Tenant elects to make an offer to
purchase the Offered Property, Tenant shall deliver to Landlord within
60 days following the date the Notice of Transfer was received by Tenant
(the "Offer Date") a written offer (the "Offeree Offer"), which Offeree Offer
shall offer to purchase the Offered Property
56
<PAGE>
on the terms and conditions, including price, timing and lease terms (if
applicable), specified therein. The Offeree Offer shall disclose all
material facts relating to the proposed transaction and, at Tenant's option,
may include a form purchase agreement or lease, as applicable. Each Offeree
Offer shall be an irrevocable commitment by Tenant to purchase the Offered
Property on the terms and conditions set forth therein.
(ii) If Tenant does not elect to make an offer to purchase the
Offered Property by the Offer Date or if Tenant makes an offer to purchase
the Offered Property by the Offer Date and Landlord elects not to Transfer
the Offered Property on the terms offered by Tenant, Landlord (X) shall be
under no obligation to Transfer any portion of the Offered Property to any
person, unless Landlord so elects, and (Y) 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 Tenant shall be
subject to the First Refusal Right set forth in subparagraph D of this
Article 29. The First Offer Right granted to Tenant under the terms and
conditions of this Article 29 shall revive in the event that Landlord fails
to Transfer the Offered Property within the 6 months from and after
the Offer Date.
(iii) Notwithstanding Tenant's election not to make an offer to
purchase the Offered Property by the Offer Date or Landlord's election not
to Transfer the Offered Property on the terms offered by Tenant, Landlord
shall be obligated to submit a Grantor Offer to Tenant following receipt of
a Bona Fide Offer from a Proposed Transferee pursuant to paragraph D of this
Article 29.
57
<PAGE>
(C) ACCEPTANCE OF OFFEREE OFFER. If Landlord elects to Transfer the
Offered Property on the terms offered by the Tenant, Landlord shall deliver
in writing its election to Transfer the Offered Property to Tenant within
30 days following the date the Offeree Offer was received by
Landlord. 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 Offered 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.
(D) GRANT OF RIGHT OF FIRST REFUSAL. Subject to the terms and
conditions set forth in this Article 29, Landlord hereby grants to Tenant a
right of first refusal ("First Refusal Right") relating to the Transfer any
or all of the Leased Premises. If, at any time during the Right to Purchase
Period, Landlord desires to Transfer any of the Leased Premises (the "Offered
Property") pursuant to a bona fide offer (the "Bona Fide Offer") from a third
party (the "Proposed Transferee"), Landlord shall first deliver to Tenant a
written offer (the "Grantor Offer"), which Grantor Offer shall offer to
Transfer the Offered Property to the Tenant on terms and conditions,
including price, timing and lease terms (if applicable), not less favorable
to the Tenant than the terms and conditions which Landlord proposes to
Transfer such Leased Premises to the Proposed Transferee. The Grantor Offer
shall disclose the identity of the Proposed Transferee, to the extent known
by Landlord, the person or persons, if any, that control such Proposed
Transferee, 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
58
<PAGE>
Offer is an irrevocable commitment by Landlord to sell the Offered Property
on the terms and conditions set forth therein.
(E) CONFIRMATION OF BONA FIDE OFFER. The Tenant 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
Landlord cause the Proposed Transferee to submit evidence reasonably
satisfactory to the Tenant 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 Tenant would violate
a confidentiality obligation of Landlord to the Proposed Transferee, or of
the Proposed Transferee to any third party, Landlord shall designate a
recognized accounting or investment banking firm or similar third party
reasonably satisfactory to the Tenant, who shall at Tenant'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.
(F) ACCEPTANCE OF GRANTOR OFFER. (i) If Tenant elects to
purchase the Offered Property on the terms set forth in the Grantor Offer,
Tenant shall deliver in writing its election to purchase the Offered Property
to Landlord within 45 days following the date the Grantor Offer
was received by the Tenant (the "Acceptance Date"), but not less than five
days prior to the expiration date of the Bona
59
<PAGE>
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 Tenant. 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 Leased Premises. Such
agreement may be evidenced by, but, unless otherwise agreed, shall not be
subject to, execution of a purchase agreement or lease, as applicable.
(G) If Tenant does not elect to purchase the Offered Property by the
Acceptance Date, Landlord (i) shall be under no obligation to Transfer any
portion of the Offered Property to any person, unless Landlord so elects, and
(ii) may, within a period of 6 months from and after the date the Grantor
Offer was received by the Tenant, Transfer the Offered Property to any
person, including the Proposed Transferee, on the terms and conditions equal
to or better than that included in the Grantor Offer and Landlord shall be
under no obligation to submit a Grantor Offer to Transfer such Offered
Property to the Tenant in connection therewith. The First Refusal Right
granted to the Tenant under the terms and conditions of this Article 29 shall
revive in the event that Landlord fails to Transfer the Offered Property
within the 6 month period specified above.
(H) DUE DILIGENCE. During the periods following the date the Notice
of Transfer was received by Tenant and prior to the Offer Date, following the
date the Grantor Offer was received by Tenant and prior to the Acceptance
Date and following any agreement to Transfer a Property, Landlord shall
provide Tenant access to the Offered Property, its books and records related
thereto and its officers and employees with
60
<PAGE>
knowledge thereof during reasonable hours for purposes of conducting a due
diligence investigation of the Offered Property and its proposed operations.
(I) CLOSING. (a) The closing of any Transfer of Offered Property
pursuant to this Article 29 shall be determined by the Landlord and Tenant
(which, unless otherwise agreed, shall be within 90 days of the acceptance of
any offer hereunder).
(J) NO ASSIGNMENT. The First Refusal Right and First Offer Right
granted hereby are personal to Tenant, and, as an inducement to Landlord to
enter into this Article 29, it is expressly agreed that Tenant has no right,
directly or indirectly, to assign in whole or in part any rights granted by
this Article 29, unless such assignment is to an affiliate of Tenant or to a
person or entity which has acquired substantially all of the assets of
Tenant. Landlord shall have no obligation or requirement to deal with any
party other than Tenant in all matters relating to this Article 29. Any
purchase agreement or lease hereunder may be made with a subsidiary of
Landlord acceptable to Tenant.
(K) NO BROKER. Tenant 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 Landlord harmless from the claims of any
broker in connection with the transactions contemplated hereby.
(L) SPECIFIC PERFORMANCE. Landlord and Tenant agree that if any of
the provisions of this Article 29 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 Landlord
61
<PAGE>
and Tenant 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.
(M) RESTRICTION ON EXERCISE OF PURCHASE REFUSAL RIGHT.
Notwithstanding any other provision of this Article, Landlord shall not be
required to Transfer the Leased Premises, or any portion thereof which is a
real estate asset as defined in Paragraph 856(c)(6)(B), or functionally
equivalent successor provision, of the Code, to Tenant if Landlord's tax
counsel formally opines to Landlord and Tenant that the Transfer: (i) would
be a "prohibited transaction" under Paragraph 857(b)(6)(B)(iii), or
functionally equivalent successor provision, of the Code, and (ii) does not
qualify under Paragraph 857(b)(6)(C), or functionally equivalent successor
provision, of the Code to be treated other than as such a prohibited
transaction for reasons other than the occurrence of other sales of property
made by Landlord that prevent either of the conditions of clause (iii) of
such Paragraph 857(b)(6)(C) from being satisfied. If Landlord determines not
to Transfer such property pursuant to the above sentence, Tenant's right, if
any, to acquire any or all of such property shall continue and be
exercisable, upon and subject to all applicable terms and conditions set
forth in this Lease, at such time as the transaction, in the opinion of
either Landlord's tax counsel or Tenant's tax counsel, rendered to Landlord
and Tenant: (iii) would not constitute a "prohibited transaction" under
Paragraph 857(b)(6)(B)(iii), or functionally equivalent provision, of the
Code, or (iv) would constitute such a prohibited transaction and does not
qualify under Paragraph 857(b)(6)(C), or functionally equivalent successor
provision, of the Code to be treated other than as such a prohibited
transaction solely because of the occurrence of other sales of property that
prevent either of the conditions of clause (iii) of such
62
<PAGE>
Paragraph 857(b)(6)(C) from being satisfied provided, however, that no legal
opinions shall be required in order for Tenant to exercise its rights
hereunder if at any time the conditions of clause (iii) or (iv) would
manifestly then be satisfied), and until such time Tenant shall lease the
Leased Property for the lesser of the rent otherwise called for in this Lease
or fair market rental. If the Transfer of the Leased Premises is delayed
pursuant to this part (B), Landlord will use its reasonable best efforts to
Transfer the Leased Premises to Tenant as soon as such Transfer is permitted
hereunder.
30. DEFAULT CLAUSE AND SELF-HELP.
(A) TENANT DEFAULT; CURE RIGHTS. If (i) Tenant neglects or fails to
pay any Annual Fixed Rent, Annual Percentage Rent or other charge hereunder,
or under a Related Lease prior to the Cross Default Termination Date, within
15 days after notice of default, or (ii) Tenant neglects or fails to perform
or observe any of the other covenants, terms, provisions or conditions on its
part to be performed or observed under this Lease, within 30 days after
notice of default (or if more than 30 days shall be reasonably required
because of the nature of the default, if Tenant shall fail to proceed
diligently to cure such default after such notice), or (iii) Tenant neglects
or fails to perform or observe any obligation pursuant to Tenant's Operating
Covenant hereunder, or under a Related Lease prior to the Cross Default
Termination Date, or (iv) Tenant or Tenant's Parent (a) admits in writing
its inability to pay its debts generally as they become due, (b) commences
any case, proceeding or other action seeking to have an order for relief
entered on its behalf as debtor or to adjudicate it a bankrupt or insolvent,
or seeking reorganization, arrangement, adjustment, liquidation, dissolution
or composition of it or its debts under any federal, state or local law
relating to bankruptcy, insolvency, reorganization or relief of debtors,
63
<PAGE>
(c) makes an assignment for the benefit of its creditors, (d) is unable to
pay its debts as they mature, (e) seeks or consents to the appointment of a
receiver of itself or of the whole or any substantial part of its property,
or (f) files a petition or answer seeking reorganization or arrangement under
any federal, state or local law relating to bankruptcy, insolvency,
reorganization or relief of debtors; or (v) any case, proceeding or other
action is commenced against Tenant or Tenant's Parent seeking to have an
order for relief entered against it as debtor or to adjudicate it a bankrupt
or insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts under any federal,
state or local law relating to bankruptcy, insolvency, reorganization or
relief of debtors, or seeking an order or decree appointing, without the
consent of Tenant, a receiver of Tenant of the whole or substantially all of
its property, and such case proceeding or other action is not dismissed
within 90 days after the commencement thereof; or (vi) the estate or interest
of Tenant in the Leased Premises or any part thereof, or the Leased Premises
under a Related Lease prior to the Cross Default Termination Date, is levied
upon or attached in any proceeding and the same is not vacated or discharged
within the later of 90 days after commencement thereof or 30 days after
receipt by Tenant of notice thereof from Landlord (unless Tenant is
contesting such lien or attachment in accordance with this Lease), then an
event of default shall exist hereunder and Landlord may immediately or at any
time thereafter, as permitted by law, (a) enter into and upon the Leased
Premises and repossess the same as of its former estate, without prejudice to
any remedies which Landlord might otherwise have for arrearages of rent or
preceding breach of covenant, and upon such entry this Lease shall terminate;
or (b) remain out of possession of the Leased Premises, treat the term of
this Lease as
64
<PAGE>
subsisting and in full force and effect, in which event Landlord shall have
all rights and remedies available at law, in equity or hereunder; or (c)
without terminating the term of this Lease, reenter the Leased Premises and
take possession thereof pursuant to legal proceedings or pursuant to any
notice provided for by law, and having elected to reenter and take possession
of the Leased Premises without terminating this Lease, Landlord shall use
reasonable diligence as Tenant's agent to relet the Leased Premises, or parts
thereof, for such term or terms and at such rental and upon such other terms
and conditions as Landlord may deem advisable, with the right to make
alterations and repairs to the Leased Premises, and no such reentry or taking
of possession of the Leased Premises by Landlord shall be construed as an
election on Landlord's part to terminate this Lease, and no such reentry or
taking of possession by Landlord shall relieve Tenant of its obligation to
pay rent and other sums payable hereunder (at the time or times provided
herein), or of any of its other obligations under this Lease, all of which
shall survive such reentry or taking of possession, and Tenant shall continue
to pay the rent and other sums provided or in this Lease until the end of the
term and whether or not the Leased Premises shall have been relet, less the
net proceeds, if any, of any reletting of the Leased Premises, after
deducting all of Landlord's expenses in or in connection with such reletting,
including without limitation all repossession costs, brokerage commissions,
legal expenses, expenses of employees, alterations costs and expenses of
preparation for reletting; or (d) exercise any other right or remedy
available to Landlord at law or in equity or under this Lease. Having
elected either to remain out of possession and treating this Lease as
remaining in full force and effect or to reenter or to take possession of the
Leased Premises without terminating this Lease, Landlord may, by notice to
Tenant given at any time thereafter
65
<PAGE>
while Tenant is in default under this Lease, elect to terminate this Lease
and, upon such notice, this Lease shall thereupon be terminated. If in
accordance with any of the foregoing provisions of this Article 30 Landlord
shall have the right to elect to reenter or take possession of the Leased
Premises, Landlord may enter and expel Tenant and those claiming through or
under Tenant and remove the property and effects of both or either (forcibly
if necessary) without being guilty of any manner of trespass and without
prejudice to any remedies as set forth in this Article 30 are in addition to
and not exclusive of any other right or remedy provided herein or at law or
in equity. Tenant covenants and agrees, notwithstanding any entry or
re-entry by Landlord, to pay and be liable for, on the days originally fixed
herein for the payment thereof, amounts equal to the several installments of
Annual Fixed Rent and other charges reserved as such amounts would, under the
terms of this Lease, become due if this Lease had not been terminated or if
Landlord had not entered or re-entered as aforesaid, and whether the Leased
Premises are relet or remain vacant in whole or in part for all or part of
the remainder of the term hereof; provided, that if Landlord relets the
Leased Premises, Tenant shall be entitled to a credit for the net proceeds of
any reletting as provided herein. Alternatively, upon such an uncured
default by Tenant, Landlord may elect as its sole remedy to recover from
Tenant the difference between (i) all rent and other sums that would have
been payable under this Lease until what would have been the end of the then
term thereof, discounted to present value at ____% and (ii) the then fair
market value of the Leased Premises. In all events, Landlord shall use
reasonable efforts to mitigate its loss or damages. Following an event or
default, all amounts due from Tenant to Landlord pursuant to this Lease shall
bear interest at the Default Rate.
66
<PAGE>
(B) TENANT RIGHT TO CONTEST BY COURT ACTION. Notwithstanding
anything to the contrary contained in paragraph (A) of this Article, with
respect to any alleged default other than a default in the payment of Annual
Fixed Rent or a default under Section A(iv) or (v) of this Article, if within
45 days after Landlord's notice of such default, Tenant (i) notifies Landlord
that Tenant disputes such alleged default, and (ii) files an action in a
court of competent jurisdiction contesting such alleged default, then Tenant
shall not be deemed to be in default under this Lease with respect to such
alleged default, provided that if the final judgment in such action is
adverse to Tenant, in whole or in part, then Tenant shall forthwith commence
to correct the matters complained of by Landlord, or that portion thereof as
to which such judgment is adverse to Tenant, and complete the same within 30
days after such judgment, or if more than 30 days are required to complete
such corrections with reasonable diligence, commence to correct the same
within such 30 days and prosecute the same to completion with reasonable
diligence.
(C) LANDLORD DEFAULT, CURE RIGHTS. If Landlord neglects or fails to
perform or observe any of the covenants, terms, provisions or conditions on
its part to be performed or observed under this Lease, or within 30 days
after notice of default (or if more than 30 days shall be reasonably required
because of the nature of the default, if Landlord shall fail to proceed
diligently to cure such default after such notice), then Tenant may
immediately or at any time thereafter, in addition to any other rights and
remedies as may otherwise be provided in this Lease for a Landlord default,
pursue all rights and remedies it may have at law and equity generally.
(D) SELF HELP. If either party (the "DEFAULTING PARTY") fails to
perform any agreement or obligation on its part to be performed under this
Lease, the other party (the
67
<PAGE>
"CURING PARTY") shall have the right (i) if no emergency exists, to perform
the same after giving 30 days' notice to the Defaulting Party, and (ii) in
any emergency situation to perform the same immediately without notice or
delay. For the purpose of rectifying a default of the Defaulting Party as
aforesaid, the Curing Party shall have the right to enter the premises of the
Defaulting Party. The Defaulting Party shall on demand reimburse the Curing
Party for the costs and expenses incurred by the Curing Party in rectifying
defaults as aforesaid, including reasonable attorneys' fees, together with
interest thereon at the Default Rate. Any act or thing done by the Curing
Party pursuant to this paragraph shall not constitute a waiver of any such
default by the Curing Party or a waiver of any covenant, term or condition
herein contained or the performance thereof. In the event Landlord shall
fail to so reimburse Tenant within 30 days after Tenant's demand, Tenant
shall be entitled to an immediate credit against the Annual Fixed Rent and
other charges payable hereunder in an amount equal to the costs and expenses
incurred by Tenant in rectifying Landlord's defaults as aforesaid, together
with interest thereon at the Default Rate.
31. ACCESS TO PREMISES.
Tenant shall permit Landlord and its authorized representatives to
enter Tenant's Facility at all reasonable times for the purposes of (i)
serving or posting or keeping posted thereon notices required by Law, (ii)
conducting periodic inspections, (iii) performing any work thereon required
or permitted to be performed by Landlord pursuant to this Lease, and (iv)
showing the Leased Premises to prospective purchasers or lenders; PROVIDED,
HOWEVER, nothing set forth in this Lease shall be construed as authorizing
Landlord to enter the projection booths in Tenant's Facility without the
consent of Tenant, except in the case of an emergency.
68
<PAGE>
32. FORCE MAJEURE.
If either party shall be delayed or hindered in or prevented from the
performance of any act required under this Lease by reason of strikes,
lockouts, labor troubles, inability to procure materials, failure of power,
restrictive Laws (except as otherwise specifically provided herein), riots,
insurrection, war or other reason beyond the reasonable control of and not
the fault of the party delayed in performing the work or doing the acts
required under the terms of this Lease (collectively, "FORCE MAJEURE"), then
performance of such act shall be excused for the period of the delay, and the
period for the performance of any such act shall be extended for a period
equivalent to the period of such delay. The provisions of this Article shall
not (i) operate to excuse Tenant from prompt payment of rent or any other
payment required by Tenant under the terms of this Lease, except as may be
otherwise specifically provided herein to the contrary, or (ii) be applicable
to delays resulting from the inability of a party to obtain financing or to
proceed with its obligations under this Lease because of a lack of funds.
33. REMEDIES CUMULATIVE; LEGAL EXPENSES; TIME OF THE ESSENCE.
(A) The various rights and remedies given to or reserved to Landlord
and Tenant by this Lease or allowed by law shall be cumulative, irrespective
of whether so expressly stated.
(B) In case suit shall be brought because of the breach of any
agreement or obligation contained in this Lease on the part of Tenant or
Landlord to be kept or performed, and a breach shall be established, the
prevailing party shall be entitled to recover all expenses incurred in
connection with such suit, including reasonable attorneys' fees.
(C) Time is of the essence of this Lease.
69
<PAGE>
34. LEASE NOT TO BE RECORDED.
Upon request of Landlord or Tenant, the parties hereto shall promptly
execute and deliver a memorandum of this Lease for recording purposes in
recordable form. If Tenant elects to record such memorandum, Landlord shall
promptly cause the same to be recorded, at Landlord's expense. Neither party
shall record this Lease without the consent of the other party.
35. NOTICES.
All notices, consents, requests, approvals and authorizations
(collectively, "NOTICES") required or permitted hereunder shall only be
effective if in writing. All Notices shall be sent (A) by registered or
certified mail (return receipt requested), postage prepaid, or (B) by Federal
Express, U.S. Post Office Express Mail, Airborne or similar overnight courier
which delivers only upon signed receipt of the addressee, or (C) by facsimile
transmission and addressed as follows or at such other address, and to the
attention of such other person, as the parties shall give notice as herein
provided:
If intended for Landlord: Entertainment Properties Trust
1221 Baltimore Avenue
Kansas City, Missouri 64105
Phone: (816) 480-4649
Fax: (816) 480-4617
Attention: Robert L. Harris, President
With a copy to: Stinson, Mag & Fizzell, P.C.
1201 Walnut, Suite 2800
Kansas City, Missouri 64105
Phone: (816) 691-3180
Fax: (816) 691-3495
Attention: Michael G. O'Flaherty
70
<PAGE>
If intended for Tenant: American Multi-Cinema, Inc.
106 West 14th Street
Kansas City, Missouri 64105
Phone: (816) 221-4000
Fax: (816) 480-4617
Attention: Lease Administrator
With a copy to: Lathrop & Gage L.C.
2345 Grand Boulevard, Suite 2500
Kansas City, Missouri 64108
Phone: (816) 460-5515
Fax: (816) 292-2001
Attention: E.T. Bullard
A notice, request and other communication shall be deemed to be duly received
if delivered 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. Rejection or other refusal to accept or the
inability to deliver because of changed address of which no Notice was given
shall be deemed to be receipt of the Notice as of the date of such rejection,
refusal or inability to deliver.
36. WAIVER OF PERFORMANCE AND DISPUTES.
(A) WAIVER LIMITED TO OCCURRENCE. One or more waivers of any
covenant, term or condition of this Lease by either party shall not be
construed as a waiver of a subsequent breach of the same or any other
covenant, term or condition, nor shall any
71
<PAGE>
delay or omission by either party to seek a remedy for any breach of this
Lease or to exercise a right accruing to such party by reason of such breach
be deemed a waiver by such party of its remedies or rights with respect to
such breach. The consent or approval by either party to or of any act by the
other party requiring such consent or approval shall not be deemed to waive
or render unnecessary consent to or approval of any similar act.
(B) RIGHT TO PROTEST WITHOUT WAIVER OR DEFAULT. If at any time a
dispute shall arise as to any amount or sum of money to be paid by one party
to the other party under the provisions hereof, the party against whom the
obligation to pay the money is asserted shall have the right to make payment
"under protest" and such payment shall not be regarded as a voluntary payment
and there shall survive the right on the part of said party to institute suit
within 90 days after such payment under protest is made for the recovery of
such sum, and if it shall be adjudged that there was no legal obligation on
the part of said party to pay such sum or any part thereof, said party shall
be entitled to recover such sum or so much thereof as it was not legally
required to pay under the provisions of this Lease, together with interest
thereon at the Default Rate. If at any time a dispute shall arise between
the parties hereto as to any work to be performed by either of them under the
provisions hereof, the party against whom the obligation to perform the work
is asserted may perform such work and pay the cost thereof "under protest"
and the performance of such work shall in no event be regarded as a voluntary
performance and there shall survive the right on the part of said party to
institute suit within 90 days after such work is completed for the recovery
of the cost of such work, and if it shall be adjudged that there was no legal
obligation on the part of said party to perform the same
72
<PAGE>
or any part thereof, said party shall be entitled to recover the cost of such
work or the cost of so much thereof as said party was not legally required to
perform under the provisions of this Lease, together with interest thereon at
the Default Rate. If either party desires to exercise its rights under this
Section, it shall do so by delivering written notice that it is paying money
or performing work "under protest," with such notice to be given to the other
party concurrently with the payment of such money or prior to the
commencement of such work.
37. MODIFICATION OF LEASE.
The terms, covenants and conditions hereof may not be changed orally,
but only by an instrument in writing signed by the party against whom
enforcement of the change, modification or discharge is sought, or by such
party's agent.
38. CAPTIONS AND LEASE PREPARATION.
Captions throughout this instrument are for convenience and reference
only and the words contained therein shall in no way be deemed to explain,
modify, amplify or aid in the interpretation or construction of the
provisions of this Lease.
39. LEASE BINDING ON SUCCESSORS AND ASSIGNS, ETC.
Except as herein otherwise expressly provided, all covenants,
agreements, provisions and conditions of this Lease shall be binding upon and
inure to the benefit of the parties hereto and their heirs, devisees,
executors, administrators, successors in interest and assigns as well as
grantees of Landlord, and shall be deemed to run with the land. Without
limiting the generality of the foregoing, all rights of Tenant under this
Lease may be granted by Tenant to any sublessee of Tenant, subject to the
terms of this Lease.
73
<PAGE>
40. BROKERS.
Landlord represents and warrants to Tenant that it has not incurred
or caused to be incurred any liability for real estate brokerage commissions
or finder's fees in connection with the execution or consummation of this
Lease for which Tenant may be liable. Tenant represents and warrants to
Landlord that it has not incurred or caused to be incurred any liability for
real estate brokerage commissions or finder's fees in connection with the
execution or consummation of this Lease for which Landlord may be liable.
Each of the parties agrees to indemnify and hold the other harmless from and
against any and all claims, liabilities or expense (including reasonable
attorneys' fees) in connection with any breach of the foregoing
representations and warranties.
41. LANDLORD'S STATUS AS A REIT. Tenant acknowledges that Landlord
intends to elect to be taxed as a real estate investment trust ("REIT") under
the Code. Tenant shall exercise commercially reasonable efforts not do
anything which would materially adversely affect Landlord's status as a REIT.
Tenant agrees to enter into reasonable modifications of this Lease which do
not materially adversely affect Tenant's rights and liabilities if such
modifications are required to retain or clarify Landlord's status as a REIT.
42. GOVERNING LAW. This Lease shall be governed by and construed in
accordance with the laws of the State where the Leased Premises are located,
but not including such State's conflict-of-laws rules.
43. CERTAIN LANDLORD RIGHTS ON TERMINATION.
(A) ADVERTISEMENT OF LEASED PREMISES. If Tenant has not exercised
the applicable Option Period option to extend this Lease, then Landlord or
its agent shall thereafter have
74
<PAGE>
the right to enter the Leased Premises at all reasonable times for the
purpose of exhibiting such Leased Premises to others and to place upon such
Leased Premises during the period commencing 180 days prior to the expiration
of the then current term "for sale" or "for rent" notices or signs of such
number and in such locations as Tenant shall reasonably approve.
(B) TRANSFER OF PERMITS, ETC. ON TERMINATION. Upon the expiration
or earlier termination of this Lease, Tenant shall, at the option of
Landlord, transfer to and relinquish to Landlord or Landlord's nominee and
reasonably cooperate with Landlord or Landlord's nominee in connection with
the processing by Landlord or such nominee of all licenses, operating
permits, and other governmental authorization and all assignable service
contracts, which may be necessary or appropriate for the operation by
Landlord or such nominee of the Leased Premises; provided that the costs and
expenses of any such transfer or the processing of any such application shall
be paid by Landlord or Landlord's nominee.
44. ESTOPPEL. Landlord and Tenant each confirm and agree that (a) it has
read and understood all of the provisions of this Lease; (b) it is an
experienced real estate investor and is familiar with major sophisticated
transactions such as that contemplated by this Lease; (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.
45. JOINT PREPARATION. This Lease (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.
75
<PAGE>
46. COUNTERPARTS. This Lease 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 Lease by telecopier shall be as effective as delivery of a manually
executed counterpart of this Lease. In proving this Lease, it shall not be
necessary to produce or account for more than one such counterpart signed by
the party against whom enforcement is sought.
47. ATTORNEYS' FEES. If either party obtains a judgment against the
other party by reason of a breach of this Lease, a reasonable attorneys' fee
as fixed by the court shall be included in such judgment.
48. LIMITATION ON LANDLORD'S LIABILITY. Notwithstanding anything to the
contrary in this Lease, (A) Tenant will look solely to the interest of
Landlord (or its successor as Landlord hereunder) in the Leased Premises for
the satisfaction of any judgment or other judicial process requiring the
payment of money as a result of (i) any negligence (including gross
negligence) or (ii) any breach of this Lease by Landlord or its successor
(including any beneficial owners, partners, shareholders, trustees or others
affiliated or related to Landlord or such successor) and Landlord shall have
no personal liability hereunder of any kind, and (B) Tenant's sole right and
remedy in any action concerning Landlord's reasonableness (where the same is
required hereunder) will be an action for declaratory judgment and/or
specific performance, and in no event shall Tenant be entitled to claim or
recover any damages in any such action.
76
<PAGE>
49. WAIVER OF TRIAL BY JURY.
TENANT AND LANDLORD HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST
THE OTHER IN ANY MATTERS ARISING OUT OF OR IN CONNECTION WITH THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE AND OCCUPANCY OF TENANT'S
FACILITY OR THE ENTIRE PREMISES, AND ANY CLAIM OF INJURY OR DAMAGE.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly
executed as of the day and year first above written.
ENTERTAINMENT PROPERTIES TRUST, a
Maryland Real estate investment
trust
By: _________________________________
Name: _______________________________
Title: ______________________________
"Landlord"
AMERICAN MULTI-CINEMA, INC., a
Missouri corporation
ATTEST:
By:_____________________________ By: ________________________________
Name: __________________________ Name: ______________________________
Title: _________________________ Title: _____________________________
"Tenant"
77
<PAGE>
AMC Prior Owned
(EPT REIT Program)
RENT AND EXPENSE RIDER
Attached to and forming a part of Lease dated as of
November ___, 1997 by and between
ENTERTAINMENT PROPERTIES TRUST,
as Landlord,
and
AMERICAN MULTI-CINEMA, INC., as Tenant,
relating to premises in
__________________________
SECTION 1. RENT.
(A) ANNUAL FIXED RENT; ESCALATION. Tenant shall pay Landlord, during
the term of this Lease, the Annual Fixed Rent in the manner hereinafter
provided. The Annual Fixed Rent for each Lease Year shall be payable in equal
monthly installments on or before the first day of each calendar month in
advance during such Lease Year. If the Annual Fixed Rent is payable for a
fraction of a month, the amount payable shall be a pro rata share of a full
month's rent. The Annual Fixed Rent shall be prorated for any partial Lease
Year. Annual Fixed Rent will be increased each Lease Year by an amount equal
to the ANNUAL FIXED RENT ESCALATION.
(B) PERCENTAGE RENT.
(1) In addition to the Annual Fixed Rent, Tenant shall pay Landlord
as percentage rent (the "ANNUAL PERCENTAGE RENT") an amount for each Lease
Year equal to the Percentage Rate of the Gross Receipts for such Lease Year
in excess of an amount ("BASE AMOUNT") equal to the quotient obtained by
dividing the Annual Fixed Rent payable for such Lease Year by the Percentage
Rate. For the purpose of computing the Annual Percentage Rent for the first
Lease Year, the Gross Receipts for and the Annual Fixed Rent payable for the
partial calendar month, if any, preceding the first Lease Year shall be
included in the Annual Fixed Rent and Gross Receipts for the first Lease
Year. Within 60 days following the end of each Lease Year, Tenant shall
furnish Landlord with a statement, verified by a corporate officer of Tenant,
showing the amount of Gross Receipts for the preceding Lease Year, which
statement shall be accompanied by Tenant's payment of Annual Percentage Rent,
if any, is due.
(2) The term "LEASE YEAR" as used in this Lease shall mean a period
of 12 full calendar months. The first Lease Year shall begin on the first
day of the calendar month following the Commencement Date, unless the term
commences on the first day of a calendar month, in which case the first Lease
Year shall begin on the Commencement Date. Each succeeding Lease Year shall
commence on the anniversary of the first Lease Year.
R1
<PAGE>
(3) Landlord shall have the right, not more often than once each
year, to audit Tenant's records of Gross Receipts, but only for the purpose
of ascertaining the amount of the Gross Receipts during the preceding Lease
Year. Such audit shall be made on behalf of Landlord by a certified public
accountant to be selected by Landlord. If Landlord wishes to audit Tenant's
records for any Lease Year, Landlord shall notify Tenant and proceed with
such audit within 12 months after the end of the Lease Year in question.
Should Landlord fail to exercise the right to audit the records of Tenant
within 12 months after the end of any Lease Year, then Landlord shall have no
further right to audit the records of Tenant for such Lease Year, and
Tenant's statement of Gross Receipts for such Lease Year shall conclusively
be deemed to be correct. Any such audit by Landlord shall be at Landlord's
own expense, except as hereinafter provided. If any such audit discloses that
Tenant has understated the Gross Receipts for such Lease Year by more than 3%
and Landlord is entitled to any additional Annual Percentage Rent as a result
of such understatement, then Tenant shall promptly pay to Landlord the cost
of such audit. Tenant shall, in any event, pay Landlord the amount of any
deficiency in Annual Percentage Rent plus interest at the Default Rate. Any
information obtained by Landlord from such statements or inspections shall be
kept confidential and shall not be disclosed except as provided in
subparagraph (14) of this paragraph (B).
(4) The term "GROSS RECEIPTS" as used in this Lease shall mean the
cash receipts from the sale of theatre admission tickets and concessions
received by Tenant in or from the Leased Premises during each Lease Year;
provided, however, there shall be deducted from such cash receipts in the
computation of Gross Receipts to the extent the same are included in Tenant's
computations:
(a) Credits or refunds made to customers.
(b) (i) All federal, state, county and city sales taxes or
other similar taxes, and (ii) all occupational taxes, use taxes and other
taxes which must be paid by Tenant or collected by Tenant, by whatever name
they are known or assessed, and regardless of whether or not they are
imposed under any existing or future orders, regulations, laws or
ordinances.
(c) Agency commissions paid to independent third parties for
selling tickets and surcharges in excess of the standard ticket price for
tickets purchased by use of credit cards, but only to the extent such
commissions or surcharges are actually remitted to independent third
parties.
(d) Receipts from the sale of student and senior citizens
discount cards.
(e) Proceeds from the sale of Tenant's Property.
<PAGE>
(5) Should Tenant rent one or more theatres for special events such
as a rally, fashion show, speech or the like, the Gross Receipts shall be
deemed the rental received by Tenant and shall not include monies, if any,
received by the sponsor of the event. Pursuant to Sections 8(G) and (I) of
this Lease, the rental received by Tenant may not be based in whole or in
part on the net income or profits derived by any person in connection with
all or a portion of any theatre.
(6) For the purposes of computing and reporting Gross Receipts with
respect to "four-wall deals" as permitted by the Article captioned "Subletting
and Assigning," Tenant shall have the right to report as Gross Receipts only the
actual payments received by Tenant in connection with such use. Pursuant to
Sections 8(G) and (I) of this Lease, the actual payments received by Tenant
with respect to such "four-wall deals" may not be based in whole or in part
on the net income or profits derived by any person in connection with all or
a portion of a Tenant facility.
(7) Tenant shall be entitled to deduct from Gross Receipts any tax
on rents received by a distributor and/or rents paid by Tenant in respect of
films shown in Tenant's Building, to the extent Tenant (or its sublessees)
pays any such tax to the taxing authority whether by designation of such tax
specifically or as a part of the rental for a film or otherwise, provided
that the amount deducted hereunder shall not be duplicative of other
deductions from Gross Receipts.
(8) For the purposes of computing and reporting Gross Receipts with
respect to electronic games, other amusement devices, and other related services
provided as a convenience to patrons of Tenant's theatre operated or provided in
Tenant's Building, Tenant shall have the right to (a) report as Gross Receipts
only the actual payments received by Tenant in connection therewith, and (b)
exclude from Gross Receipts all receipts of any independent concessionaire,
licensee or other third party or parties in connection therewith and all
receipts derived by Tenant from pay telephones, cash dispensing ATM machines and
other customer related services provided as a convenience to patrons of Tenant's
theatre and which generate nominal fees. Pursuant to Sections 8(g) and (I) of
this Lease, the actual payments received by Tenant in connection with such
electronic games, other amusement devices and related services may not be
based in whole or in part on the net income or profits derived by any person.
(9) As and when during each Lease Year the Gross Receipts exceed
the Base Amount, the Gross Receipts thereafter received from theatre
admission tickets for pictures licensed for exhibition pursuant to particular
contracts hereinafter described shall be excluded from Gross Receipts and a
daily rent premium in the amount hereinafter set forth shall be paid in
R3
<PAGE>
lieu thereof. Such license contracts shall consist of arrangements whereby a
predetermined weekly theatre operating cost is retained by the exhibitor from
the theatre ticket admission receipts in respect of a particular film, and
the distributor of the film is paid 90% of the balance. In such instances,
Tenant shall pay Landlord a daily rent premium of $15 per auditorium for each
day such film is exhibited in an auditorium in Tenant's Building.
(10) (a) If Tenant, in accordance with the provisions of paragraph
(B) of the Article captioned "Use of Premises," uses Tenant's Building for
purposes other than the uses set forth in paragraph (A) of said Article
("INITIAL USE"), then during the period of such other uses(s) ("OTHER
USE(S)"), Tenant shall pay as Percentage Rent, in lieu of the amount set
forth in subparagraph (1) of this paragraph (B), an amount for each Lease
Year equal to the amount, if any, by which the "Applicable Percentage Rate"
of Gross Receipts in each such Lease Year exceeds the Annual Fixed Rent
payable by Tenant for such Lease Year. The term "APPLICABLE PERCENTAGE
RATE" shall mean the percentage rate, if any, commonly used in the
submarket within the Metropolitan Area in which Tenant's Building is
located for the type of use for which Tenant's Building is then being used.
(b) During the period of use of Tenant's Building for the Other
Use(s), Gross Receipts shall be defined as follows (in lieu of the
definition thereof in subparagraphs (4) through (9) of this paragraph
(B)):
The term "GROSS RECEIPTS" shall mean: (i) the entire amount
of the price charged, whether wholly or partially in cash or on
credit, or otherwise, for all goods, wares, merchandise and chattels
of any kind sold, leased, licensed or delivered, and all charges for
services sold or performed in, at, upon or from any part of or through
the use of Tenant's Building or any part thereof by Tenant and any
other party, or by means of any mechanical or other vending device
(other than pay telephones and those soft drink and other similar
vending devices operated primarily for the convenience of Tenant's
employees); and (ii) all gross income of Tenant and any other party
from any operations in, at, upon or from the Tenant's Building which
are neither included in nor excluded from Gross Receipts by other
provisions of this Lease, but without any duplication.
Gross Receipts shall not include, or if included, there
shall be deducted (but only to the extent they have been included), as
the case may be, (i) the net amount of cash or credit refunds made
upon Gross Receipts, where the merchandise sold or some part of it is
returned by the purchaser to and accepted by Tenant (but not exceeding
in any instance the selling price of the item in question); (ii) the
amount of any sales tax, use tax or retail excise tax which is imposed
by any duly constituted
R4
<PAGE>
governmental authority directly on sales and which is both added to
the selling price (or absorbed therein) and is paid to the taxing
authority by Tenant (but not any vendor of Tenant); (iii) exchanges
of merchandise between Tenant's Building and other stores of Tenant
or its affiliates to the extent the same are made solely for the
convenient operation of Tenant's business and not for the purpose of
depriving Landlord of the benefit of Gross Receipts; (iv) returns of
merchandise to shippers, suppliers or manufacturers; (v) the sale of
Tenant's Property; (vi) discount sales to employees and agents of
Tenant of merchandise not intended for resale; and (vii) separately
stated interest and service charges.
(c) During any Lease Year in which Tenant's Building is used in
part for the Initial Use and in part for Other Use(s), Tenant shall pay as
Percentage Rent the sum of (i) the amount, if any, by which the Percentage
Rate of Gross Receipts during the portion of such Lease Year that Tenant's
Building is used for the Initial Use ("INITIAL USE PERIOD") exceeds the
Annual Fixed Rent payable during the Initial Use Period, plus (ii) the
amount, if any, by which the Applicable Percentage Rate of Gross Receipts
during the portion of such Lease Year that Tenant's Building is used for
purposes other than the Initial Use ("OTHER USE PERIOD") exceeds an amount
equal to the Annual Fixed Rent payable for the Other Use Period.
(d) If the use of Tenant's Building shall be changed from one
Other Use to another Other Use during any Lease Year or shall otherwise be
used for more than one Other Use during any Lease Year, Tenant shall pay as
Percentage Rent the amount, if any, by which the Applicable Percentage Rate
in respect of each such Other Use of the separate Gross Receipts received
in such Lease Year attributable to each such Other Use exceeds the Annual
Fixed Rent payable for such Lease Year.
(e) The foregoing provisions of this subparagraph (10) shall
prevail over any conflicting provisions in this paragraph (B) and shall
apply only when Tenant uses Tenant's Building primarily for uses other than
those set forth in paragraph (A) of the article captioned "Use of
Premises".
(11) Nothing set forth in this Lease shall be construed as giving
Landlord any partnership or other interest in Tenant's business.
(12) It is understood and agreed by Landlord that Tenant has made no
representation of any kind whatsoever as to the minimum or maximum amount of
Gross Receipts which may or shall be made in the Leased Premises during any
Lease Year of the term of this Lease.
R5
<PAGE>
(13) Landlord agrees not to divulge to any party the amount of Gross
Receipts made by Tenant in the Leased Premises, except to a ground lessor if the
Leased Premises is subject to a ground lease and the taxing authorities with
authority to inquire therein, to an existing or bona fide prospective mortgagee
or bona fide prospective purchaser of the Entire Premises or the Leased
Premises, or in connection with any action to collect Percentage Rent from
Tenant.
SECTION 2. TENANT'S REAL ESTATE TAXES.
(A) As used in this Article, the following terms shall have the following
meanings:
(1) "FISCAL TAX YEAR" shall mean the 12-month period established as
the real estate tax year by the taxing authority having jurisdiction over the
Entire Premises.
(2) "TAXES" shall mean ad valorem taxes and assessments and
governmental charges (including sewer charges), general or special, ordinary or
extraordinary, foreseen or unforeseen, of any kind or nature whatsoever, whether
imposed by any Governmental Authorities, which are levied on or charged against
the Leased Premises, Tenant's Facility, Tenant's Property, the real estate on
which the Tenant's Facility is located, personal property or rents, or on the
right or privilege of leasing real estate or collecting rents thereon, and any
other taxes and assessments attributable to the Leased Premises or its operation
by Tenant or any tax or assessment or governmental charge imposed or collected
in lieu of or in substitution for any such tax, assessment or governmental
charge, including without limitation all special assessments, impact fees,
development fees, traffic generation fees, parking fees in respect of any Fiscal
Tax Year falling wholly within the term of this Lease and a portion of any real
estate taxes so imposed in respect of any Fiscal Tax Year falling partly within
and partly without the term hereof, equal to the proportion which the number of
days of such Fiscal Tax Year falling within the term hereof bears to the total
number of days of such Fiscal Tax Year; excluding, however, any income,
franchise, corporate, capital levy, capital stock, excess profits, transfer,
revenue, estate, inheritance, gift, devolution or succession tax payable by
Landlord or any other tax, assessment, charge or levy upon, or measured, in
whole or in part, by the rent payable hereunder by Tenant, except to the extent
any such tax, assessment, charge or levy is imposed in substitution for any ad
valorem tax or assessment.
(3) "TAXES APPLICABLE TO LEASED PREMISES" shall mean an amount equal
to the Taxes levied against the land and improvements within the Leased
Premises.
(B) Tenant shall pay the Taxes Applicable to the Leased Premises directly
to the appropriate taxing authorities within 60 days after the end of each
Fiscal Tax Year.
(C) Tenant shall have the right (but shall not be obligated) to contest
the Taxes Applicable to the Leased Premises or the validity thereof by
appropriate legal proceedings or in such other manner as it shall deem
suitable, and Landlord shall join in such contest, protest or proceeding, but
at Tenant's sole cost and expense. Landlord shall not, during the pendency
of such legal or other proceeding or contest, pay or discharge any Taxes on
the Leased Premises, or tax lien or tax title pertaining thereto, provided
Landlord may do so in order to stay a sale of the Leased Premises through
foreclosure of a tax lien thereon. Any refund obtained by Tenant shall be
paid first to Tenant to the extent of its costs and expenses of such contest
and on account of any portion of the Taxes so refunded which was previously
paid by Tenant.
R6
<PAGE>
SECTION 3. COMMON FACILITIES EXPENSE. If the Leased Premises are a part of a
larger Entire Premises and subject to an REA as such terms are defined herein,
the following provisions of this Section 3 shall apply:
(A) "COMMON FACILITIES EXPENSE" shall mean, to the extent covered by such
REA, actual, reasonable and competitive costs of maintaining, repairing,
insuring, lighting, protecting and securing the Common Facilities. Tenant shall
pay directly to the appropriate person or entity under the REA in each Lease
Year as hereinafter provided the Common Facilities Expense for such Lease Year
attributable or allocable to the Leased Premises ("TENANT'S COMMON FACILITIES
CONTRIBUTION"), which shall be computed and paid as set out in the REA.
(B) To the extent Landlord is entitled to grant such rights to Tenant
under the REA, Landlord hereby grants to Tenant the right to receive all
statements and otherwise enforce directly Landlord's rights under the REA with
respect to the Common Facilities Expense for such Lease Year and Tenant's Common
Facilities Contribution, and how such amount was computed.
SECTION 4. AUDIT.
To the extent Landlord is entitled to grant such right to Tenant under the
REA, Landlord hereby grants to Tenant the right to exercise and enforce directly
Landlord's rights to audit (or authorize an accountant designated by Tenant to
audit) books and records of the Common Facilities Expense of the applicable
person or entity under the REA.
SECTION 5. ADDRESS FOR PAYMENT.
Until Tenant receives other instructions in writing from Landlord, Tenant
shall pay all rents and other charges under this Lease by check to the order of
Landlord, at its address first written in this Lease.
"Landlord" ENTERTAINMENT PROPERTIES TRUST, a
Maryland real estate investment trust
By:___________________________________
Name:_________________________________
Title:________________________________
"Tenant" AMERICAN MULTI-CINEMA, INC., a Missouri
corporation
By:___________________________________
Name:_________________________________
Title:________________________________
R7
<PAGE>
GUARANTY OF LEASE [REIT]
(Name of Project)
THIS GUARANTY is given this _______ day of November 1997, by AMC
ENTERTAINMENT INC., a Delaware corporation ("GUARANTOR"), to ENTERTAINMENT
PROPERTIES TRUST, a Maryland real estate investment trust ("OWNER").
In order to induce Owner to enter into a certain Lease (the "LEASE")
dated as of November ____, 1997, between Owner, as Landlord, and American
Multi-Cinema, Inc., a wholly-owned subsidiary of Guarantor (the "TENANT"), as
Tenant, pursuant to which Owner has leased to Tenant certain premises located
in _______________ and described therein (the "LEASE"), Guarantor agrees as
follows:
1. GUARANTY. Guarantor hereby absolutely and unconditionally
guarantees to Owner, subject to the terms of this Guaranty and to the
limitations set forth herein, (i) the full, prompt and complete payment of
the rent and all other sums due and payable by Tenant under the Lease and all
costs incurred by Owner in collecting such sums or in enforcing its rights
hereunder, and (ii) the full, prompt and complete performance by Tenant of
all covenants, conditions and provisions in the Lease required to be
performed by Tenant (collectively, the "LIABILITIES"). If Tenant fails to
pay or perform any of the Liabilities, Guarantor shall pay or perform such
Liabilities within thirty days after written notice of such failure from
Owner. Guarantor waives any right to require Owner to proceed first against
Tenant or to exhaust any remedy Owner may have against Tenant under the Lease
or with respect to any security granted by Tenant under the Lease before
proceeding against Guarantor.
2. RIGHT TO ASSERT DEFENSES.
A. Except as provided in subparagraph (B) of this Section,
Guarantor shall have the benefit of and shall be entitled to assert with
respect to its obligations hereunder any and all rights, claims,
counterclaims, offsets and defenses available to Tenant with respect to the
Liabilities or which Tenant is otherwise entitled to assert against Owner;
provided however that in the event Tenant has the right to dispute a default
asserted by Owner in the manner permitted by Article ___ of the Lease and
either (i) does not pursue such right, or (ii) is adjudged by a court of
competent jurisdiction to be in default of its obligation under the Lease,
then, notwithstanding the provisions of this Section 2(A), Guarantor shall
not be entitled to assert as a defense to its obligations hereunder the right
to dispute the default under said Article ___ of the Lease.
B. The duties and obligations of Guarantor hereunder shall not be
affected by, and Guarantor hereby waives any defense based on, the Tenant's
becoming insolvent or being adjudicated a bankrupt, or filing a petition for
reorganization, liquidation, or for the adjustment of debts or for similar
relief under any present or future provision of the Bankruptcy Code, or the
issuance by a court of an order for relief in the case of a petition being
filed by a creditor or
<PAGE>
creditors of Tenant, or the seeking by Tenant of a judicial readjustment of
the rights of its creditors under any present or future federal or state law,
or the appointment of a receiver or trustee of all or part of Tenant's
property and assets by any state or federal court.
3. WAIVER. Guarantor hereby waives notice of acceptance of this
Guaranty and hereby waives, so long as Tenant remains an affiliate of
Guarantor, notice of any amendment of any Liabilities (including any
amendment of the Lease) and the granting of any indulgence or extension of
time to Tenant to perform under the Lease. Guarantor hereby also waives, so
long as Tenant remains an affiliate of Guarantor, any and all other notices
which by law or under the terms and provisions of the Lease are required to
be given to Tenant, any demand for or notice of default in the payment of any
sums payable by Tenant under the Lease or in the performance of all and
singular the terms, covenants, conditions and provisions in the Lease
required to be performed by Tenant, except as specifically set forth in
Section 1 hereof. Any modification, amendment, change or extension of any of
the terms, covenants or conditions of the Lease which Tenant (which term shall
include, without limitation, a trustee in bankruptcy) and Owner may hereafter
make, or any forbearance, delay, neglect or failure on the part of Owner in
enforcing any of the terms, covenants, conditions or provisions of the Lease,
or any sale, conveyance, mortgaging or other transfer by Owner of any right,
title, interest or estate in or to any of the property of which the Premises
is a part, or any assignment, mortgaging or other transfer by Tenant of the
Lease or any interest therein or any subletting of all or part of the
Premises, or any dissolution or liquidation of Tenant, shall not in any way
affect, impair or discharge the unconditional liability of Guarantor to Owner
hereunder. Notwithstanding the foregoing, Owner agrees that if Tenant is no
longer affiliated with Guarantor, Owner will, in addition to the notices
required by Section 1 hereof, give Guarantor notice of any and all such
actions, event or occurrences as are described in this Section 3. For the
purposes hereof, Tenant shall be deemed to be an affiliate of Guarantor until
such time as Guarantor notifies Owner in writing that Tenant is no longer an
affiliate of Guarantor.
4. LIMITATIONS ON GUARANTY. Notwithstanding anything to the contrary
contained in this Guaranty: (i) if Tenant shall assign its interest in the
Lease as permitted therein and shall be released thereunder of any liability
accruing subsequent to the date of assignment, then Guarantor shall have no
further obligation with respect to Liabilities that accrue hereunder from and
after the date Tenant is released; and (ii) Guarantor shall have no
obligation or liability under this Guaranty for any obligations for payment
or performance that accrue under the Lease during any option periods or
renewals of the Lease if Original Tenant as defined in the Lease is the
tenant under the Lease at the date of expiration of the original term of the
Lease. Upon Guarantor's request, Owner shall confirm in writing the release
of liability in favor of Guarantor as described in clauses (i) and (ii)
above.
5. DEFAULT OF TENANT. If because of Tenant's default, the Lease is
terminated, then Owner shall notify Guarantor thereof, and if Guarantor would
otherwise have continuing liability to Owner hereunder, then at Guarantor's
option upon written notice to Owner, shall enter into a
-2-
<PAGE>
New Lease with Guarantor (or an affiliate of Guarantor other than Tenant) for
the balance of the term of the Lease (including option periods), on the same
terms as are set forth in the Lease, and such New Lease shall continue as a
direct lease between Owner and Guarantor or its affiliate (as tenant). As a
condition of Owner's obligation to enter into the New Lease, Guarantor shall
cure all monetary defaults, and other defaults capable of being cured, and
shall reimburse Owner for any costs incurred by Owner in connection with such
default, including reasonable attorneys' fees and court costs.
6. NOTICES. All notices, consents, requests and approvals
(collectively, "NOTICES") required or permitted hereunder shall only be
effective if in writing. All Notices shall be sent by Federal Express,
Airborne or similar express courier which delivers only upon signed receipt
of the addressee, by facsimile or by certified mail, with return receipt
requested. Notices to Guarantor shall be sent to 106 West 14th Street, Suite
1700, Kansas City, Missouri 64105, marked for the attention of Lease
Administrator, with a copy to Lathrop & Gage L.C., 2345 Grand Boulevard,
Suite 2500, Kansas City, Missouri, 64108, marked for the attention of E.T.
Bullard, or to such other addresses as Guarantor may later designate by
Notice to Owner. All Notices to Owner shall be sent to Entertainment
Properties Trust, 1221 Baltimore Avenue, Kansas City, Missouri, 64105, marked
for the attention of Robert L. Harris, President, with a copy to Stinson, Mag
& Fizzell, P.C., 1201 Walnut, Suite 2800, Kansas City, Missouri, 64105,
marked for the attention of Michael G. O'Flaherty, or to such other address
as Owner may later designate by Notice to Guarantor. All Notices shall be
effective upon the date of receipt by the addressee thereof as shown on the
return or courier receipt of the Notice, on the facsimile confirmation page,
or the certified mail receipt, as applicable.
7. CUMULATIVE OBLIGATIONS. The amount of liability of Guarantor and
all rights, powers, and remedies of Owner hereunder and under any other
agreement now or at any time hereafter in force between Owner and Guarantor
relating to any obligations or indebtedness of Tenant or Guarantor to Owner
shall be cumulative and not alternative and such rights, powers, and remedies
shall be in addition to all rights, powers, and remedies given to Owner by
law.
8. SEPARATE ACTIONS. The agreements, obligations, warranties and
representations of Guarantor hereunder are independent of the obligations of
Tenant. In the event of any default hereunder, a separate action or actions
may be brought and prosecuted against the undersigned, whether Tenant is
joined therein or a separate action or actions are brought against Tenant.
Owner may maintain successive actions for other defaults. Owner's right
hereunder shall not be exhausted by its exercise of any of its rights or
remedies until and unless all indebtedness and obligations hereby guaranteed
have been paid and fully performed.
9. SAVINGS CLAUSE. Should any one or more provisions of this Guaranty
be determined to be illegal or unenforceable, all other provisions
nevertheless shall be effective.
-3-
<PAGE>
10. SUCCESSORS AND ASSIGNS. This Guaranty shall inure to the benefit of
Owner, its successors and assigns, and shall bind the heirs, executors,
administrators, successors, and assigns of Guarantor and any parties
constituting Guarantor.
11. WAIVER IN WRITING. No provision of this Guaranty or right of Owner
hereunder can be waived nor can Guarantor be released from Guarantor's
obligations hereunder except by a writing duly executed by Owner and except
as specifically provided for herein.
12. ATTORNEYS FEES. If it becomes necessary for Owner to employ counsel
to enforce the obligations of Guarantor hereunder, then, to the extent
permitted by law, all reasonable attorneys' fees and expenses in connection
therewith of the prevailing party in any action instituted shall be paid by
the other party.
13. GENERAL. Guarantor will not exercise any right of subrogation with
respect to any payment made hereunder unless and until all Liabilities shall
have been paid in full; if any payment is made to Guarantor on account of
such subrogation rights at any time when the Liabilities have not been paid
in full, any amounts so paid shall be forthwith paid to Owner to be applied
to any of the Liabilities. This Guaranty may be amended only in writing
signed by Guarantor and Owner. This Guaranty shall be binding upon the
successors and assigns of Guarantor and shall inure to the benefit of Owner
and its successors and assigns. Guarantor represents and warrants that it is
a corporation duly organized, legally existing and in good standing under the
laws of the State of Delaware and that it has the power and authority to
execute, deliver and perform this Guaranty.
Executed as of the date first above written.
AMC ENTERTAINMENT INC.,
a Delaware corporation
ATTEST:
By: ____________________________ By: ________________________________
Print Name:_____________________ Print Name: ________________________
Title: _________________________ Title: _____________________________
-4-
<PAGE>
EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of ____________, 1997 by and
between ENTERTAINMENT PROPERTIES TRUST, a Maryland real estate investment trust
(the "Company") and ROBERT L. "CHIP" HARRIS (the "Employee"). In consideration
of the mutual promises and covenants continued herein, the parties hereto agree
as follows:
1. DUTIES. During the Term (as defined in Section 2) of his employment
by the Company under this Agreement, Employee may continue to maintain his home
in the Los Angeles, California area but shall devote his full time and attention
to the business of the Company as president and chief development officer (in
each capacity, the "President" and "Chief Development Officer", respectively),
as directed by the Company's Chairman of the Board or the Board of Trustees (the
"Board"). The Company's headquarters shall be located in the Kansas City,
Missouri area.
2. TERM. The term of this Agreement shall commence as of November __,
1997, and shall terminate on November __, 1999, or sooner as provided in Section
5 below (such period, as it may be extended, the "Term"). On each November __
hereafter, commencing in 1998, one year shall be added to the Term of Employee's
employment with the Company under this Agreement, unless the Company has given
written notice to the Employee that the Term will not be extended.
3. COMPENSATION.
(a) BASE SALARY. During the Term of his employment by the Company
under this Agreement, Employee shall receive an annual salary of $225,000 ("Base
Salary") (less withholding for applicable taxes), payable in accordance with the
Company's payroll procedures for its salaried employees, subject to such
increases as may be approved by the Compensation Committee of the Board (the
"Compensation Committee").
(b) SIGNING BONUS. Employee shall receive a one-time signing bonus
of Forty Thousand Dollars ($40,000) payable in a lump sum as soon as
administratively feasible following the Formation Transactions, as described in
the Company's Registration Statement (File No. 333-35281).
(c) ANNUAL INCENTIVE PROGRAM. In addition to Base Salary, for each
year commencing 1998 Employee shall be eligible to receive a performance based
bonus under the Company's Annual Incentive Program ("Performance Bonus") if
certain pre-established performance objectives are obtained ("Performance
Goals"). The Compensation Committee shall establish a range of Performance
Goals by March 31 of each year. The Compensation Committee shall determine
annually within 60 days after completion of the Company's year end audit
whether the Performance Goals for the preceding year have been achieved. If the
Performance Goals for the preceding year have
1
<PAGE>
been achieved, the Compensation Committee shall certify such fact to the
Company, and the Company shall pay such Performance Bonus to Employee as soon
as administratively feasible following such certification. The Compensation
Committee shall establish a maximum Performance Bonus of 60% of Base Salary,
a target Performance Bonus of 40% of Base Salary, and a threshold Performance
Bonus of 20% of Base Salary which shall be paid to Employee based upon
certification that the Performance Goals have been achieved. No Performance
Bonus shall be paid for any year in which the threshold Performance Goal has
not been achieved. No Performance Bonus may exceed $300,000. The
Compensation Committee shall have the sole authority to administer and make
determinations with respect to the Performance Bonus and Performance Goals.
(d) SHARE INCENTIVE PLAN; SHARE PURCHASE PROGRAM; RESTRICTED SHARE
PROGRAM; SHARE OPTION PROGRAM.
(i) Employee acknowledges that after five (5) years from the
date hereof, future participation in any Company share incentive plan is
contingent upon Employee's ownership of common shares of beneficial
interest, $0.01 par value per share ("Shares"), of the Company with a fair
market value equal to at least five (5) times his then current Base
Salary.
(ii) Prior to or concurrent with the public offering of the
Company contemplated in Registration Statement No. 333-35281 (the
"Offering"), Employee will be provided the opportunity to purchase eighty
thousand (80,000) Shares of the Company (the "Program Shares") at a price
per share equal to the public Offering price per Share in the Offering as
shown on the cover page of the final prospectus for the Offering. To
finance such purchase by Employee, the Company agrees to make a five-year
recourse loan to Employee equal to his aggregate purchase price for the
Shares.
The Program Shares will be issued to Employee concurrently with closing of
the Offering in exchange for Employee's promissory note (the "Note") in the form
attached hereto, except that if the Offering closes after November, 1997, the
Note will bear interest at the applicable federal rate in effect on the date
the Offering closes.
In the event of a Change in Control, as defined in the Company's 1997 Share
Incentive Plan, death, Disability (as defined below), retirement at age 65 or
termination by the Company without Cause (as defined below), the Compensation
Committee may, in its sole discretion, forgive in whole or in part any balance
of the Note remaining after application of the proceeds from sale of the Program
Shares to payment of the Note.
The Program Shares will be issued to Employee without restriction by the
Company, except that for a period of two years after their date of issue, the
Program Shares may not be sold, transferred, or otherwise disposed of by
Employee, voluntarily or involuntarily, without the written consent of the
Company, except following a Change in Control of the
2
<PAGE>
Company, as defined in the Company's 1997 Share Incentive Plan, or Employee's
termination by reason of death, Disability or retirement at age 65. Any sale
of the Program Shares must comply with the Securities Act of 1933 and the
rules promulgated thereunder. The Program Shares will bear a legend to such
effect.
(iii) Employee shall be entitled to receive as incentive
compensation the following share incentive awards:
(A) If the Employee purchases Program Shares pursuant to
Section 3(d)(ii) hereof, then prior to or concurrent with the closing
of the Offering, Employee shall be granted ten-year options
("Options") to purchase fifty percent (50%) of the number of Program
Shares he purchased pursuant to Section 3(d)(ii) for an exercise price
equal to the public offering price per share in the Offering as shown
on the cover page of the final prospectus for the Offering. All
Options granted pursuant to the foregoing shall be "incentive stock
options" ("ISOs") as defined under Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code") to the extent permitted under
Section 422 of the Code. The Company shall use its best efforts to
obtain all necessary shareholder approvals to ensure the Options
qualify as ISOs. Twenty percent (20%) of such Options shall vest and
become exercisable on each of the first, second, third, fourth and
fifth anniversaries following the date of grant, provided that
Employee remains an employee of the Company following such respective
dates, provided further, all unvested Options shall immediately vest
and become exercisable upon any of (1) Employee's (a) death, (b)
separation from service due to a Disability, (c) termination of
employment by the Company without Cause, (d) termination of employment
by the Employee following a Material Breach (as defined below), or (e)
resignation following appointment of a Chief Executive Officer from
outside the Company, or (2) a Change in Control of the Company, as
defined in the Company's 1997 Share Incentive Plan. Notwithstanding
the foregoing, Employee agrees that all unvested Options shall be
forfeited if he sells or otherwise disposes of the Program Shares
purchased pursuant to Section 3(d)(ii) within five years of such
purchase without the written consent of the Board or the Compensation
Committee. Such Options shall otherwise be upon such terms and
conditions as are consistent with the Company's 1997 Share Incentive
Plan.
(B) If the Employee purchases Program Shares of the Company
pursuant to Section 3(d)(ii) hereof, then prior to or concurrent with
the closing of the Offering, Employee shall be granted restricted
Shares (the "Restricted Shares") equal in number to fifty percent
(50%) of the number of Program Shares he purchased pursuant to Section
3(d)(ii) hereof.
Except as hereinafter provided, the Restricted Shares will be forfeited by
Employee in the
3
<PAGE>
event of any sale, assignment, transfer, hypothecation, pledge or other
alienation of such Restricted Shares, made or attempted, whether voluntary or
involuntary, and if involuntary whether by process of law in any civil or
criminal suit, action or proceeding, whether in the nature of an insolvency
or bankruptcy proceeding or otherwise, without the written consent of the
Board or the Compensation Committee. In addition, the Restricted Shares will
be forfeited if Employee sells or otherwise disposes of the Program Shares
purchased pursuant to Section 3(d)(ii) hereof prior to the fifth anniversary
of the date of their purchase without the written consent of the Board or the
Compensation Committee.
The foregoing restrictions will lapse with respect to one hundred percent
(100%) of the Restricted Shares and such Restricted Shares will become
nonforfeitable on the fifth anniversary of the date of grant, provided the
Employee is serving as President and/or Chief Development Officer on that
date. All restrictions will lapse with respect to 100% of the Restricted Shares
upon any of (1) Employee's (a) death, (b) separation from service due to a
Disability, (c) termination of employment by the Company without Cause, (d)
termination of employment by the Employee following a Material Breach, or (e)
resignation following appointment of a Chief Executive Officer from outside the
Company, or (2) a Change in Control of the Company as defined in the Company's
1997 Share Incentive Plan. In addition, the Board or the Compensation Committee
may accelerate the vesting of any or all Restricted Shares in its discretion.
Except for these restrictions, the Employee as owner of the Restricted Shares
shall have all the rights of a shareholder including, but not limited to, the
right to receive all dividends paid on the Restricted Shares and the right to
vote such Shares. Such Restricted Shares will otherwise be upon such terms and
conditions as are consistent with the Company's 1997 Share Incentive Plan.
Each certificate issued in respect of the Restricted Shares shall be
registered in Employee's name and deposited by him, together with a Share power
endorsed in blank, with the Company and shall bear the following (or a similar)
legend:
"The transferability of this certificate and the common
shares represented hereby are subject to the terms and
conditions (including forfeiture) contained in the Agreement
dated as of __________, 1997 entered into between the
registered owner and Entertainment Properties Trust."
At the expiration of the restrictions, the Company shall redeliver to
Employee (or his legal representative, beneficiary or heir) Share certificates
for the Restricted Shares deposited with it without any legend.
(e) BENEFITS. During the Term of his employment by the Company under
this Agreement, Employee also shall be eligible for the benefits offered by the
Company from time to time to the Company's other executive officers (such as
group insurance, pension plans, thrift plans, stock purchase plans and the
like), as determined by the Compensation Committee. Nothing herein shall be
construed so as to prevent the Company from modifying or terminating any
employee benefit plans or programs it may adopt from time
4
<PAGE>
to time.
(f) AUTOMOBILE. During the Term of Employee's employment, the
Company shall provide Employee with an automobile allowance.
(g) COMPENSATION DURING DISABILITY. During any disability of
Employee during the Term of his employment by the Company under this Agreement,
Base Salary payable to Employee pursuant to the terms of this Agreement shall be
reduced by any and all disability payments Employee may receive pursuant to any
insurance contract provided by Company for the benefit of its employees.
Notwithstanding any termination of this Agreement as provided in Section 5,
Employee shall thereafter be entitled to the full benefits of all disability
payments to which he may be entitled pursuant to such insurance contracts.
(h) FULL PAYMENT. The compensation to be paid to Employee under this
Agreement shall be in full payment for (i) all services rendered by Employee in
any capacity to the Company or any affiliate of the Company, and (ii) all other
obligations of Employee under this Agreement.
4. EXPENSE REIMBURSEMENTS. During the Term of Employee's employment by
the Company under this Agreement, the Company shall reimburse Employee for
business travel and entertainment expenses reasonably incurred by the Employee
on behalf of the Company in accordance with the Company's procedures, as such
may exist from time to time.
5. TERMINATION. Employee's service as President and Chief Development
Officer hereunder shall be terminated upon the earliest of:
(a) EXPIRATION. The expiration of the Term.
(b) DEATH. The death of Employee.
(c) DISABILITY. If, as a result of Employee's incapacity due to
physical or mental illness, Employee shall not have been regularly performing
his duties and obligations hereunder for a period of six consecutive months (a
"Disability") , and within thirty (30) days after written notice of termination
is given by the Chairman of the Board or the Board (which may occur before or
after the end of such six month period) Employee shall not have returned to the
performance of his duties and obligations hereunder on a regular basis.
(d) CAUSE. The Chairman of the Board or the Board terminates
Employee for Cause. For purposes of this Agreement, the Chairman of the Board
or the Board shall have "Cause" to terminate Employee upon (i) the willful and
continued failure by Employee to perform substantially his duties with the
Company (other than any such
5
<PAGE>
failure resulting from his incapacity due to physical or mental illness)
after a written demand for substantial performance is delivered to Employee
by the Chairman of the Board or the Board which specifically identifies the
manner in which the Chairman of the Board or the Board believes that
Employee has not substantially performed his duties, or (ii) the willful
engaging by Employee in misconduct which is materially and demonstrably
injurious to the Company. For purposes of this Agreement, no act, or failure
to act, on the part of Employee shall be considered "willful" unless done, or
omitted to be done, in bad faith and without reasonable belief that
Employee's act or omission was in the best interests of the Company.
Notwithstanding the foregoing, Employee shall not be deemed to have been
terminated for Cause without (1) reasonable notice to Employee setting forth
the reason for the Chairman of the Board's or the Board 's intention to
terminate for Cause, (2) an opportunity for Employee, together with his
counsel, to be heard before the Chairman of the Board or the Board, and (3)
delivery to Employee of a Notice of Termination, as defined below, from the
Chairman of the Board or the Board finding that in the good faith opinion of
the Chairman of the Board or the Board , Employee was guilty of conduct set
forth above, and specifying the particulars thereof in detail.
(e) MATERIAL BREACH. Employee terminates his service hereunder for a
material breach of this Agreement by the Company. For purposes of this
Agreement, a "material breach" shall be deemed to occur upon (i) a failure by
the Company to comply with any material provisions of this Agreement which has
not been cured within thirty (30) days after written notice of such
noncompliance has been given by Employee to the Chairman of the Board or the
Board, or (ii) any purported termination of Employee which is not effected
pursuant to a Notice of Termination, as defined below (and for purposes of this
Agreement no such purported termination shall be effective).
(f) NOTICE. The date specified in written notice given by the
Company or Employee at least thirty (30) days in advance.
Any termination of Employee by the Company or by Employee (other than
termination pursuant to Section 5(a) or (b) hereof) shall be communicated by
written Notice of Termination to the other party hereto in accordance with
Section 11. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Employee under the
provisions so indicated, unless such termination is pursuant to paragraph (f)
hereof.
"Date of Termination" shall mean (i) if Employee's service is terminated by
the expiration of this Agreement, the date of expiration, (ii) if Employee's
service is terminated by his death, the date of his death, (iii) if Employee's
service is terminated pursuant to Section 5(c) hereof, thirty (30) days after
Notice of Termination is given (provided that Employee shall not have again
become available for service as the President and/or Chief Development Officer
on a regular basis during such thirty (30) day period), (iv) if Employee's
service is terminated for Cause, the date specified in the Notice of
6
<PAGE>
Termination, (v) if Employee's service is terminated pursuant to Section 5(f)
hereof, the expiration of the thirty (30) day notice period, and (vi) if
Employee's service is terminated for any other reason, the date on which a
Notice of Termination is given.
6. AMOUNTS DUE UPON TERMINATION OR DURING DISABILITY.
(a) During any period that Employee fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness
("disability period"), Employee shall continue to receive his Base Salary at the
rate then in effect for such period until his service is terminated pursuant to
Section 5(c) hereof, provided that payments so made to Employee during the first
180 days of the disability period shall be reduced by the sum of the amounts, if
any, paid to the Employee at or prior to the time of any such payment under
disability benefit plans of the Company or under the Social Security disability
insurance program, and which amounts were not previously applied to reduce any
such payment.
(b) If Employee's service should be terminated by the Chairman of the
Board or the Board for Cause, by Employee's death or by Employee absent a
Material Breach, the Company shall pay Employee his accrued, but unpaid Base
Salary through the Date of Termination at the rate in effect at the time Notice
of Termination is given, and the Company shall have no further obligations to
Employee under this Agreement.
(c) If Employee's service is terminated by the Chairman of the Board
or the Board without Cause or by the Employee following a Material Breach,
Employee shall be entitled to receive, in addition to all other amounts, one of
the two alternative compensation payments described in (i) or (ii) below.
(i) INSTALLMENT PAYMENTS. An amount equal to Base Salary of
Employee in effect at the time of termination plus his target performance
bonus of 40% of Base Salary (total payment equal to 140% of Base Salary)
(less withholdings or applicable taxes), payable over the unexpired Term of
this Agreement remaining at the Date of Termination of Employee's
employment under this Agreement, payable in advance at the beginning of
each month in equal monthly installments over such unexpired Term; or
(ii) LUMP-SUM PAYMENT. An amount equal to the net present value
of the payments described in Section 6(c)(i) above, payable within 30 days
after the Date of Termination of Employee's employment under this
Agreement. The discount of such payments to their net present value shall
utilize a discount rate equal to the prime rate of interest published in
THE WALL STREET JOURNAL on the Date of Termination (such prime rate
currently defined in THE WALL STREET JOURNAL as the base rate on corporate
loans posted by at least 75% of the nation's 30 largest banks) or if such
rate is not available, then the prime rate of interest of NationsBank, N.A.
in effect on the Date of Termination.
7
<PAGE>
The Company shall have the right to elect the severance compensation
described in either clause (i) or clause (ii) above, at its sole discretion.
7. CONFIDENTIALITY. Employee acknowledges that he knows and in the
future will know information relating to the Company and its affiliated
companies and their respective operations that is confidential or a trade
secret. Such information includes information, whether obtained in writing, in
conversation or otherwise, concerning corporate strategy, intent and plans,
business operations, pricing, costs, budgets, equipment, the status, scope and
terms of pending acquisitions, negotiations and transactions, the terms of
existing or proposed business arrangements, contracts and obligations, and
corporate and financial reports. Such confidential or trade secret information
shall not, however, include information in the public domain unless Employee
has, without authority, made it public.
Employee shall (a) not disclose such information to anyone except in
confidence and as is necessary to the performance of his duties for the Company;
(b) keep such information confidential; (c) take appropriate precautions to
maintain the confidentiality of such information; and (d) not use such
information for personal benefit or the benefit of any competitor or any other
person.
Upon termination of his employment, Employee shall return all materials in
his possession or under his control that were prepared by or relate to the
Company or its affiliates, including, but not limited to, materials containing
confidential information, files, memorandums, price lists, reports, budgets and
handbooks.
Except as otherwise required by law, Company and Employee agree that all
provisions of this Agreement and all other elements of Employee's terms of
employment, compensation, and separation from employment (when such may occur)
shall remain confidential and shall not be disclosed to any party other than the
Employee and the members of the Board.
8. NONCOMPETITION. During the Term of Employee's employment by the
Company under any arrangement or nature whatsoever, and for a period equal to
(i) the period during or with respect to which the Employee receives a
continuation of his Base Salary under Section 6(c) or (ii) if the Employee's
termination is for Cause or the Employee quits absent a Material Breach, then
for the remainder of the Term as the Term would have been determined under
Section 2 of this Agreement on the date prior to the Employee's separation from
employment, Employee shall not, directly or indirectly, either individually or
jointly or on behalf of or in concert with any other person or entity, as a
proprietor, partner, shareholder, director, officer, employee, agent, consultant
or in any other capacity or manner whatsoever engage in any business activity
competitive with the business of the Company or its affiliates as constituted
during the Term of Employee's employment by the Company and on the Date of the
Termination of such employment.
9. NONSOLICITATION. Employee agrees that during the Term of Employee's
8
<PAGE>
employment by the Company under any arrangement or nature whatsoever, and for
a period of two years after the termination of such employment, Employee will
not (a) solicit, entice or otherwise induce any professional or executive
employee of the Company or its affiliates to leave the employ of the
Company or its affiliates for any reason whatsoever; (b) directly or
indirectly aid, assist or abet any other person or entity into soliciting,
enticing or inducing any employee of the Company or its affiliates to leave
their employ or in hiring any employee of the Company or its affiliates; or
(c) interfere with any contractual or other business relationship or
expectancy between the Company or its affiliates and their employees.
10. EQUITABLE REMEDIES. The parties acknowledge that irreparable damage
will result to the Company from any violation of Sections 7, 8 or 9 by
Employee. The parties expressly agree that, in addition to any and all
remedies available to the Company for any such violation, the Company shall
have the remedy of restraining order and injunction and any such equitable
relief as may be declared or issued by a court to enforce the provisions of
Sections 7, 8 and 9 and Employee agrees not to claim in any such equitable
proceeding that a remedy at law is available to the Company. Notwithstanding
anything contained herein to the contrary and if, and only if, any provision
of the type contained in Sections 7, 8 or 9, as the case may be, is
enforceable in the jurisdiction in question, if any one or more of the
provisions contained in such Section shall for any reason be held to be
excessively broad as to duration, geographical scope, activity or subject,
such provision shall be construed by limiting and reducing it so as to be
enforceable to the extent compatible with the applicable law in such
jurisdiction as it shall then appear.
11. NOTICES. All notices, requests, demands or other communications under
this Agreement shall be in writing addressed as follows:
(a) If to the Company, to:
Entertainment Properties Trust
One Kansas City Place
1200 Main Street, Suite 3250
Kansas City, Missouri 64105
Attention: Peter C. Brown
(b) If to Employee, to:
Robert L. "Chip" Harris
Entertainment Properties Trust
One Kansas City Place
1200 Main Street, Suite 3250
Kansas City, Missouri 64105
Any such notice, request, demand or other communication shall be effective
as of the date
9
<PAGE>
of actual delivery thereof. Either party may change such notice address by
written notice as provided herein.
12. OTHER PROVISIONS. This Agreement shall be binding upon, inure to
the benefit of and be enforceable by the parties hereto and their respective
heirs, personal representatives, successors and permitted assigns. This
Agreement shall be governed by the laws of the State of Missouri. This
Agreement represents the entire agreement of the parties hereto and shall not
be amended except by a written agreement signed by all the parties hereto.
This Agreement supersedes any prior oral or written agreements or
understandings between the Company or any affiliate of the Company and
Employee. This Agreement shall not be assignable by one party without the
prior written consent of the other party. In the event one or more of the
provisions contained in this Agreement or any application thereof shall be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions of this Agreement or any other
application thereof shall not in any way be affected or impaired thereby.
Section headings herein have no legal significance.
10
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the day and year first above written.
ENTERTAINMENT PROPERTIES TRUST
By
---------------------------------------
Name
-------------------------------------
Title
------------------------------------
"EMPLOYEE"
-----------------------------------------
ROBERT L. "CHIP" HARRIS
<PAGE>
EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of ____________, 1997 by
and between ENTERTAINMENT PROPERTIES TRUST, a Maryland real estate investment
trust (the "Company") and DAVID M. BRAIN (the "Employee"). In consideration
of the mutual promises and covenants continued herein, the parties hereto
agree as follows:
1. DUTIES. During the term (as defined in Section 2) of his
employment by the Company under this Agreement, Employee shall devote his
full time and attention to the business of the Company as chief financial
officer (in such capacity, the "Chief Financial Officer"), as directed by the
Company's President, the Chairman of the Board or the Board of Trustees (the
"Board").
2. TERM. The term of this Agreement shall commence as of November __,
1997, and shall terminate on November __, 1999, or sooner as provided in
Section 5 below (such period as it may be extended, the "Term"). On each
November __ hereafter, commencing in 1998, one year shall be added to the
Term of Employee's employment with the Company under this Agreement, unless
the Company has given written notice to the Employee that the Term will not
be extended.
3. COMPENSATION.
(a) BASE SALARY. During the Term of his employment by the Company
under this Agreement, Employee shall receive an annual salary of $175,000
("Base Salary") (less withholding for applicable taxes), payable in
accordance with the Company's payroll procedures for its salaried employees,
subject to such increases as may be approved by the Compensation Committee of
the Board (the "Compensation Committee").
(b) SIGNING BONUS. Employee shall receive a one-time signing
bonus of Thirty Thousand Dollars ($30,000) payable in a lump sum as soon as
administratively feasible following the Formation Transactions, as described
in the Company's registration statement (File No. 333-35281).
(c) ANNUAL INCENTIVE PROGRAM. In addition to Base Salary, for
each year commencing 1998 Employee shall be eligible to receive a performance
based bonus under the Company's Annual Incentive Program ("Performance
Bonus") if certain pre-established performance objectives are obtained
("Performance Goals"). The Compensation Committee shall establish a range of
Performance Goals by March 31 of each year. The Compensation Committee shall
determine annually within 60 days after completion of the Company's year end
audit whether the Performance Goals for the preceding year have been
achieved. If the Performance Goals for the preceding year have been
achieved, the Compensation Committee
<PAGE>
shall certify such fact to the Company, and the Company shall pay such
Performance Bonus to Employee as soon as administratively feasible following
such certification. The Compensation Committee shall establish a maximum
Performance Bonus of 40% of Base Salary, a target Performance Bonus of 20% of
Base Salary, and a threshold Performance Bonus of 10% of Base Salary which
shall be paid to Employee based upon certification that the Performance Goals
have been achieved. No Performance Bonus shall be paid for any year in which
the threshold Performance Goal has not been achieved. No Performance Bonus
may exceed $300,000. The Compensation Committee shall have the sole
authority to administer and make determinations with respect to the
Performance Bonus and Performance Goals.
(d) SHARE INCENTIVE PLAN; SHARE PURCHASE PROGRAM; RESTRICTED SHARE
PROGRAM; SHARE OPTION PROGRAM.
(i) Employee acknowledges that after five (5) years from the
date hereof, future participation in any Company share incentive plan is
contingent upon Employee's ownership of common shares of beneficial
interest, $0.01 par value per share ("Shares"), of the Company with a
fair market value equal to at least two and one-half (2 1/2) times his
then current Base Salary.
(ii) Prior to or concurrent with the public offering of the
Company contemplated in Registration Statement No. 333-35281 (the
"Offering"), Employee will be provided the opportunity to purchase forty
thousand (40,000) Shares of the Company (the "Program Shares") at a
price per share equal to the public Offering price per Share in the
Offering as shown on the cover page of the final prospectus for the
Offering. To finance such purchase by Employee, the Company agrees to
make a five-year recourse loan to Employee equal to his aggregate
purchase price for the Shares.
The Program Shares will be issued to Employee concurrently with closing
of the Offering in exchange for Employee's promissory note (the "Note") in
the form attached hereto, except that if the Offering closes after November,
1997, the Note will bear interest at the applicable federal rate in effect
on the date the Offering closes.
In the event of a Change in Control, as defined in the Company's 1997
Share Incentive Plan, death, Disability (as defined below), retirement at age
65 or termination by the Company without Cause (as defined below), the
Compensation Committee may, in its sole discretion, forgive in whole or in
part any balance of the Note remaining after application of the proceeds from
sale of the Program Shares to payment of the Note.
The Program Shares will be issued to Employee without restriction by the
Company, except that for a period of two years after their date of issue, the
Program Shares may not be sold, transferred, or otherwise disposed of by
Employee, voluntarily or involuntarily, without
2
<PAGE>
the written consent of the Company, except following a Change in Control of
the Company, as defined in the Company's 1997 Share Incentive Plan, or
Employee's termination by reason of death, Disability or retirement at age
65. Any sale of the Program Shares must comply with the Securities Act of
1933 and the rules promulgated thereunder. The Program Shares will bear a
legend to such effect.
(iii) Employee shall be entitled to receive as incentive
compensation the following share incentive awards:
(A) If the Employee purchases Program Shares
pursuant to Section 3(d)(ii) hereof, then prior to or
concurrent with the closing of the Offering, Employee shall be
granted ten-year options ("Options") to purchase fifty percent
(50%) of the number of Program Shares he purchased pursuant
to Section 3(d)(ii) for an exercise price equal to the public
offering price per share in the Offering as shown on the cover
page of the final prospectus for the Offering. All Options
granted pursuant to the foregoing shall be "incentive stock
options" ("ISOs") as defined under Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code") to the extent
permitted under Section 422 of the Code. The Company shall
use its best efforts to obtain all necessary shareholder
approvals to ensure the Options qualify as ISOs. Twenty
percent (20%) of such Options shall vest and become
exercisable on each of the first, second, third, fourth and
fifth anniversaries following the date of grant, provided that
Employee remains an employee of the Company following such
respective dates, provided further all unvested Options shall
immediately vest and become exercisable upon any of (1)
Employee's (a) death, (b) separation from service due to a
Disability, (c) termination of employment by the Company
without Cause, or (d) termination of employment by the
Employee following a Material Breach (as defined below), or
(2) a Change in Control of the Company, as defined in the
Company's 1997 Share Incentive Plan. Notwithstanding the
foregoing, Employee agrees that all unvested Options shall be
forfeited if he sells or otherwise disposes of the Program
Shares purchased pursuant to Section 3(d)(ii) within five
years of such purchase without the written consent of the
Board or the Compensation Committee. Such Options shall
otherwise be upon such terms and conditions as are consistent
with the Company's 1997 Share Incentive Plan.
(B) If the Employee purchases Program Shares of
the Company pursuant to Section 3(d)(ii) hereof, then prior to
or concurrent with the closing of the Offering, Employee shall
be
3
<PAGE>
granted restricted Shares (the "Restricted Shares") equal in
number to fifty percent (50%) of the number of Program Shares
he purchased pursuant to Section 3(d)(ii) hereof.
Except as hereinafter provided, the Restricted Shares will be forfeited
by Employee in the event of any sale, assignment, transfer, hypothecation,
pledge or other alienation of such Restricted Shares, made or attempted,
whether voluntary or involuntary, and if involuntary whether by process of
law in any civil or criminal suit, action or proceeding, whether in the
nature of an insolvency or bankruptcy proceeding or otherwise, without the
written consent of the Board or the Compensation Committee. In addition, the
Restricted Shares will be forfeited if Employee sells or otherwise disposes
of the Program Shares purchased pursuant to Section 3(d)(ii) hereof prior to
the fifth anniversary of the date of their purchase without the written
consent of the Board or the Compensation Committee.
The foregoing restrictions will lapse with respect to one hundred
percent (100%) of the Restricted Shares and such Restricted Shares will
become nonforfeitable on the fifth anniversary of the date of grant, provided
the Employee is serving as Chief Financial Officer on that date. All
restrictions will lapse with respect to 100% of the Restricted Shares upon
any of (1) Employee's (a) death, (b) separation from service due to a
Disability, (c) termination of employment by the Company without Cause, or
(d) termination of employment by the Employee following a Material Breach, or
(2) a Change in Control of the Company as defined in the Company's 1997 Share
Incentive Plan. In addition, the Board or the Compensation Committee may
accelerate the vesting of any or all Restricted Shares in its discretion.
Except for these restrictions, the Employee as owner of the Restricted Shares
shall have all the rights of a shareholder including, but not limited to, the
right to receive all dividends paid on the Restricted Shares and the right to
vote such Shares. Such Restricted Shares will otherwise be upon such terms
and conditions as are consistent with the Company's 1997 Share Incentive Plan.
Each certificate issued in respect of the Restricted Shares shall be
registered in Employee's name and deposited by him, together with a Share
power endorsed in blank, with the Company and shall bear the following (or a
similar) legend:
"The transferability of this certificate and the common
shares represented hereby are subject to the terms and
conditions (including forfeiture) contained in the Agreement
dated as of __________, 1997 entered into between the
registered owner and Entertainment Properties Trust."
At the expiration of the restrictions, the Company shall redeliver to
Employee (or his legal representative, beneficiary or heir) Share
certificates for the Restricted Shares deposited with it without any legend.
4
<PAGE>
(e) BENEFITS. During the Term of his employment by the Company
under this Agreement, Employee also shall be eligible for the benefits
offered by the Company from time to time to the Company's other executive
officers (such as group insurance, pension plans, thrift plans, stock
purchase plans and the like), as determined by the Compensation Committee.
Nothing herein shall be construed so as to prevent the Company from modifying
or terminating any employee benefit plans or programs, it may adopt from time
to time.
(f) AUTOMOBILE. During the Term of Employee's employment, the
Company shall provide Employee with an automobile allowance.
(g) COMPENSATION DURING DISABILITY. During any disability of
Employee during the Term of his employment by the Company under this
Agreement, Base Salary payable to Employee pursuant to the terms of this
Agreement shall be reduced by any and all disability payments Employee may
receive pursuant to any insurance contract provided by Company for the
benefit of its employees. Notwithstanding any termination of this Agreement
as provided in Section 5, Employee shall thereafter be entitled to the full
benefits of all disability payments to which he may be entitled pursuant to
such insurance contracts.
(h) FULL PAYMENT. The compensation to be paid to Employee under
this Agreement shall be in full payment for (i) all services rendered by
Employee in any capacity to the Company or any affiliate of the Company, and
(ii) all other obligations of Employee under this Agreement.
4. EXPENSE REIMBURSEMENTS. During the Term of Employee's employment
by the Company under this Agreement, the Company shall reimburse Employee for
business travel and entertainment expenses reasonably incurred by the
Employee on behalf of the Company in accordance with the Company's
procedures, as such may exist from time to time.
5. TERMINATION. Employee's service as Chief Financial Officer
hereunder shall be terminated upon the earliest of:
(a) EXPIRATION. The expiration of the Term.
(b) DEATH. The death of Employee.
(c) DISABILITY. If, as a result of Employee's incapacity due to
physical or mental illness, Employee shall not have been regularly performing
his duties and obligations hereunder for a period of six consecutive months
(a "Disability") , and within thirty (30) days after written notice of
termination is given by the Chairman of the Board or the Board (which may
occur before or after the end of such six month period) Employee shall not
have returned to the performance of his duties and obligations hereunder on a
regular basis.
5
<PAGE>
(d) CAUSE. The Chairman of the Board or the Board terminates
Employee for Cause. For purposes of this Agreement, the Chairman of the
Board or the Board shall have "Cause" to terminate Employee upon (i) the
willful and continued failure by Employee to perform substantially his duties
with the Company (other than any such failure resulting from his incapacity
due to physical or mental illness) after a written demand for substantial
performance is delivered to Employee by the Chairman of the Board or the
Board which specifically identifies the manner in which the Chairman of the
Board or the Board believes that Employee has not substantially performed
his duties, or (ii) the willful engaging by Employee in misconduct which is
materially and demonstrably injurious to the Company. For purposes of this
Agreement, no act, or failure to act, on the part of Employee shall be
considered "willful" unless done, or omitted to be done, in bad faith and
without reasonable belief that Employee's act or omission was in the best
interests of the Company. Notwithstanding the foregoing, Employee shall not
be deemed to have been terminated for Cause without (1) reasonable notice to
Employee setting forth the reason for the Chairman of the Board's or the
Board 's intention to terminate for Cause, (2) an opportunity for Employee,
together with his counsel, to be heard before the Chairman of the Board or
the Board, and (3) delivery to Employee of a Notice of Termination, as
defined below, from the Chairman of the Board or the Board finding that in
the good faith opinion of the Chairman of the Board or the Board , Employee
was guilty of conduct set forth above, and specifying the particulars thereof
in detail.
(e) MATERIAL BREACH. Employee terminates his service hereunder
for a material breach of this Agreement by the Company. For purposes of this
Agreement, a "material breach" shall be deemed to occur upon (i) a failure by
the Company to comply with any material provisions of this Agreement which
has not been cured within thirty (30) days after written notice of such
noncompliance has been given by Employee to the Chairman of the Board or the
Board, or (ii) any purported termination of Employee which is not effected
pursuant to a Notice of Termination, as defined below (and for purposes of
this Agreement no such purported termination shall be effective.
(f) NOTICE. The date specified in written notice given by the
Company or Employee at least thirty (30) days in advance.
Any termination of Employee by the Company or by Employee (other than
termination pursuant to Section 5(a) or (b) hereof) shall be communicated by
written Notice of Termination to the other party hereto in accordance with
Section 11. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Employee under
the provisions so indicated, unless such termination is pursuant to paragraph
(f) hereof.
6
<PAGE>
"Date of Termination" shall mean (i) if Employee's service is terminated
by the expiration of this Agreement, the date of expiration, (ii) if
Employee's service is terminated by his death, the date of his death, (iii)
if Employee's service is terminated pursuant to Section 5(c) hereof, thirty
(30) days after Notice of Termination is given (provided that Employee shall
not have again become available for service as the Chief Financial Officer on
a regular basis during such thirty (30) day period), (iv) if Employee's
service is terminated for Cause, the date specified in the Notice of
Termination, (v) if Employee's service is terminated pursuant to Section 5(f)
hereof, the expiration of the thirty (30) day notice period, and (vi) if
Employee's service is terminated for any other reason, the date on which a
Notice of Termination is given.
6. AMOUNTS DUE UPON TERMINATION OR DURING DISABILITY.
(a) During any period that Employee fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness
("disability period"), Employee shall continue to receive his Base Salary at
the rate then in effect for such period until his service is terminated
pursuant to Section 5(c) hereof, provided that payments so made to Employee
during the first 180 days of the disability period shall be reduced by the
sum of the amounts, if any, paid to the Employee at or prior to the time of
any such payment under disability benefit plans of the Company or under the
Social Security disability insurance program, and which amounts were not
previously applied to reduce any such payment.
(b) If Employee's service should be terminated by the Chairman of
the Board or the Board for Cause, by Employee's death or by Employee absent
a Material Breach, the Company shall pay Employee his accrued, but unpaid
Base Salary through the Date of Termination at the rate in effect at the time
Notice of Termination is given, and the Company shall have no further
obligations to Employee under this Agreement.
(c) If Employee's service is terminated by the Chairman of the
Board or the Board without Cause or by the Employee following a Material
Breach, Employee shall be entitled to receive, in addition to all other
amounts, one of the two alternative compensation payments described in (i) or
(ii) below.
(i) INSTALLMENT PAYMENTS. An amount equal to Base Salary of
Employee in effect at the time of termination plus his target
performance bonus of 20% of Base Salary (total payment equal to 120% of
Base Salary) (less withholdings or applicable taxes), payable over the
unexpired Term of this Agreement remaining at the Date of Termination
of Employee's employment under this Agreement, payable in advance at the
beginning of each month in equal monthly installments over such
unexpired Term; or
(ii) LUMP-SUM PAYMENT. An amount equal to the net present
value of the payments described in Section 6(c)(i) above, payable
within 30 days
7
<PAGE>
after the Date of Termination of Employee's employment under this
Agreement. The discount of such payments to their net present value
shall utilize a discount rate equal to the prime rate of interest
published in THE WALL STREET JOURNAL on the Date of Termination (such
prime rate currently defined in THE WALL STREET JOURNAL as the base rate
on corporate loans posted by at least 75% of the nation's 30 largest
banks) or if such rate is not available, then the prime rate of interest
of NationsBank, N.A. in effect on the Date of Termination.
The Company shall have the right to elect the severance compensation
described in either clause (i) or clause (ii) above, at its sole discretion.
7. CONFIDENTIALITY. Employee acknowledges that he knows and in the
future will know information relating to the Company and its affiliated
companies and their respective operations that is confidential or a trade
secret. Such information includes information, whether obtained in writing,
in conversation or otherwise, concerning corporate strategy, intent and
plans, business operations, pricing, costs, budgets, equipment, the status,
scope and terms of pending acquisitions, negotiations and transactions, the
terms of existing or proposed business arrangements, contracts and
obligations, and corporate and financial reports. Such confidential or trade
secret information shall not, however, include information in the public
domain unless Employee has, without authority, made it public.
Employee shall (a) not disclose such information to anyone except in
confidence and as is necessary to the performance of his duties for the
Company; (b) keep such information confidential; (c) take appropriate
precautions to maintain the confidentiality of such information; and (d) not
use such information for personal benefit or the benefit of any competitor or
any other person.
Upon termination of his employment, Employee shall return all materials
in his possession or under his control that were prepared by or relate to the
Company or its affiliates, including, but not limited to, materials
containing confidential information, files, memorandums, price lists,
reports, budgets and handbooks.
Except as otherwise required by law, Company and Employee agree that all
provisions of this Agreement and all other elements of Employee's terms of
employment, compensation, and separation from employment (when such may
occur) shall remain confidential and shall not be disclosed to any party
other than the Employee and the members of the Board.
8. NONCOMPETITION. During the Term of Employee's employment by the
Company under any arrangement or nature whatsoever, and for a period equal to
(i) the period during or with respect to which the Employee receives a
continuation of his Base Salary under Section 6(c) or (ii) if the Employee's
termination is for Cause or the Employee quits absent a Material Breach, then
for the remainder of the Term as the Term would have been determined under
Section 2 of this Agreement on the date prior to the Employee's
8
<PAGE>
separation from employment, Employee shall not, directly or indirectly,
either individually or jointly or on behalf of or in concert with any other
person or entity, as a proprietor, partner, shareholder, director, officer,
employee, agent, consultant or in any other capacity or manner whatsoever
engage in any business activity competitive with the business of the Company
or its affiliates as constituted during the Term of Employee's employment by
the Company and on the date of the termination of such employment.
9. NONSOLICITATION. Employee agrees that during the Term of
Employee's employment by the Company under any arrangement or nature
whatsoever, and for a period of two years after the termination of such
employment, Employee will not (a) solicit, entice or otherwise induce any
professional or executive employee of the Company or its affiliates to leave
the employ of the Company or its affiliates for any reason whatsoever; (b)
directly or indirectly aid, assist or abet any other person or entity into
soliciting, enticing or inducing any employee of the Company or its
affiliates to leave their employ or in hiring any employee of the Company or
its affiliates; or (c) interfere with any contractual or other business
relationship or expectancy between the Company or its affiliates and their
employees.
10. EQUITABLE REMEDIES. The parties acknowledge that irreparable
damage will result to the Company from any violation of Sections 7, 8 or 9 by
Employee. The parties expressly agree that, in addition to any and all
remedies available to the Company for any such violation, the Company shall
have the remedy of restraining order and injunction and any such equitable
relief as may be declared or issued by a court to enforce the provisions of
Sections 6, 7 and 8 and Employee agrees not to claim in any such equitable
proceeding that a remedy at law is available to the Company. Notwithstanding
anything contained herein to the contrary and if, and only if, any provision
of the type contained in Sections 6, 7 or 8, as the case may be, is
enforceable in the jurisdiction in question, if any one or more of the
provisions contained in such Section shall for any reason be held to be
excessively broad as to duration, geographical scope, activity or subject,
such provision shall be construed by limiting and reducing it so as to be
enforceable to the extent compatible with the applicable law in such
jurisdiction as it shall then appear.
11. NOTICES. All notices, requests, demands or other communications
under this Agreement shall be in writing addressed as follows:
(a) If to the Company, to:
Entertainment Properties Trust
One Kansas City Place
1200 Main Street, Suite 3250
Kansas City, Missouri 64105
Attention: Peter C. Brown
9
<PAGE>
(b) If to Employee, to:
David M. Brain
Entertainment Properties Trust
One Kansas City Place
1200 Main Street, Suite 3250
Kansas City, Missouri 64105
Any such notice, request, demand or other communication shall be
effective as of the date of actual delivery thereof. Either party may change
such notice address by written notice as provided herein.
12. OTHER PROVISIONS. This Agreement shall be binding upon, inure to
the benefit of and be enforceable by the parties hereto and their respective
heirs, personal representatives, successors and permitted assigns. This
Agreement shall be governed by the laws of the State of Missouri. This
Agreement represents the entire agreement of the parties hereto and shall not
be amended except by a written agreement signed by all the parties hereto.
This Agreement supersedes any prior oral or written agreements or
understandings between the Company or any affiliate of the Company and
Employee. This Agreement shall not be assignable by one party without the
prior written consent of the other party. In the event one or more of the
provisions contained in this Agreement or any application thereof shall be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions of this Agreement or any other
application thereof shall not in any way be affected or impaired thereby.
Section headings herein have no legal significance.
10
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the day and year first above written.
ENTERTAINMENT PROPERTIES TRUST
By ___________________________________
Name _________________________________
Title ________________________________
"EMPLOYEE"
_______________________________________
DAVID M. BRAIN
11
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to
the use of our report dated August 29, 1997, in the Registration Statement (Form
S-11 ) of Entertainment Properties Trust for the registration of 13,700,000
shares of its common stock.
Ernst & Young LLP
Kansas City, Missouri
September 3, 1997
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-11 of
our report dated May 16, 1997, on our audits of the consolidated financial
statements and consolidated financial statement schedule of AMC Entertainment
Inc. We also consent to the reference to our firm under the captions "Experts".
Coopers & Lybrand L.L.P.
Kansas City, Missouri
September 9, 1997
