EXHIBIT 10.46
AMENDED AND RESTATED
AGREEMENT WITH RESPECT TO FEE OPTION
The Agreement originally made on the 28th day of July, 2000, by and
between Sutton Hill Capital, L.L.C., a New York limited liability company,
having an office at 120 North Robertson Boulevard, Los Angeles, California 90048
("Option Holder"), and Citadel Realty, Inc., a Nevada corporation, having an
office at 550 South Hope Street, Suite 1825, Los Angeles, CA 90071 ("Optionee")
(as amended, modified and supplemented from time to time, the "Agreement") is
hereby amended and restated as of this 29th day of January, 2002.
WHEREAS:
(A) Option Holder has entered into a certain Lease Agreement ("Lease
Agreement"), dated as of July 28, 2000, with Citadel Cinemas, Inc., as tenant
(the "Tenant"), pursuant to which the Tenant has leased from the Option Holder
certain Theatre Properties, including the Sutton Theatre and Murray Hill Theatre
as amended and restated as of January 29, 2002;
(B) Option Holder holds an option ("Fee Option") to purchase the land
described on Exhibit "A", being the land underlying the Sutton Theatre (the
"Underlying Fee");
(C) Pursuant to the provisions of the Lease Agreement, the Tenant has a
Purchase Option to acquire the Purchased Assets;
(D) Option Holder has agreed that, if the Tenant exercises the Purchase
Option pursuant to the Lease Agreement and closes thereunder in accordance with
the terms thereof and if Optionee complies with the terms hereof, Optionee shall
have an option to purchase the Underlying Fee in connection with and at the time
of the closing of the Purchase Option pursuant to the Lease Agreement; and
(E) Certain capitalized terms are defined in Section 8 hereof.
NOW, THEREFORE, in consideration of the premises and for other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Purchase Option; Fee Price. Subject to the satisfaction of the
Conditions Precedent (as defined in Section 4 hereof), Optionee shall have the
option ("Optionee Fee Option") to acquire the Underlying Fee by funding the
Purchase Price of the Fee Option.
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2. Procedure for Exercise of Purchase Option. (a) To exercise the Optionee
Fee Option, Optionee shall give written notice ("Notice") to Option Holder by
January 5, 2010 but no earlier than the date on which the Tenant gives notice to
the Option Holder pursuant to the Lease Agreement of the exercise by Tenant of
the Purchase Option thereunder.
(b) Upon the receipt by Option Holder of the Notice, Option Holder shall
provide notice to the owner of the Underlying Fee of the exercise by Option
Holder of the Fee Option.
3. Closing. (a) The closing of the acquisition of the Underlying Fee shall
occur simultaneously with the closing on the Purchased Assets pursuant to the
Purchase Option (the "Closing"). At the Closing, Option Holder shall direct the
transferor of the Underlying Fee to deliver title thereto directly to Optionee;
provided, however, at the election of Optionee, exercised by written notice to
Option Holder given not less than 5 days prior to the anticipated date of the
Closing, Option Holder shall direct the transferor of the Underlying Fee to
deliver title to the Underlying Fee as the Optionee shall direct in such notice.
(b) At the Closing, title to the Underlying Fee will be transferred in
accordance with the Fee Option. The transfer of the Underlying Fee shall be on
an as-is, non-installment sale basis, without warranty by, or recourse to, the
Option Holder, except that such title shall be free of any Liens resulting from
the Option Holder's act or omission; provided, however, that nothing herein
shall obligate the Option Holder to cause any such Lien to be removed or cured
if arising from a Tenant Event.
(c) The Optionee shall pay the Purchase Price of the Fee Option at the
Closing by wire transfer or certified funds, as the Option Holder shall
determine in its sole discretion by notice to Optionee no less than two days
prior to the anticipated date of the Closing.
4. Conditions Precedents to Optionee's Rights. (A) OPTIONEE RECOGNIZES,
ACKNOWLEDGES AND AGREES THAT, SUBJECT TO PARAGRAPH 4(B), IF THE FOLLOWING TWO
CONDITIONS ARE NOT STRICTLY ADHERED TO TIMELY (THE "CONDITIONS PRECEDENT"),
OPTIONEE SHALL HAVE NO RIGHT TO ACQUIRE THE UNDERLYING FEE IF THE TENANT UNDER
THE LEASE AGREEMENT: (1) DOES NOT EXERCISE ITS PURCHASE OPTION THEREUNDER OR
DOES NOT HAVE THE RIGHT TO EXERCISE THE PURCHASE OPTION BY REASON OF THE
OCCURRENCE OF A DEFAULT UNDER SECTION 18(F) OF THE LEASE AGREEMENT OR (2)
EXERCISES ITS PURCHASE OPTION, AND IS NOT IN DEFAULT UNDER SECTION 18(F) OF THE
LEASE AGREEMENT BUT FAILS TO SATISFY ITS OBLIGATIONS TO CLOSE IN ACCORDANCE WITH
THE TERMS AND PROVISIONS OF THE LEASE AGREEMENT.
(b) If, at any time during the Term of the Lease Agreement an Affiliate of
the Optionee shall succeed to the interest of the Option Holder under the Lease
Agreement, then the Conditions Precedent shall be deemed of no further force and
effect.
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5. Relationship of Optionee to Tenant. Optionee recognizes and
acknowledges that, while it is now an Affiliate of the Tenant, there is no
assurance or requirement that it will in fact be an Affiliate of the Tenant at
the time the Optionee Fee Option is exercised and, even if it is then not an
Affiliate of the Tenant, Optionee does not have an independent right to exercise
the Optionee Fee Option unless and until, as described in paragraph 4(a) hereof
(but subject to paragraph 4(b) hereof), the Tenant (whether or not then an
Affiliate of Optionee) duly and properly exercises the Purchase Option and, as
aforesaid, consummates the transaction and closes.
6. SS 1031 "Like-Kind" Exchange. Option Holder hereby notifies Optionee
that, if Optionee exercises the Optionee Fee Option in accordance with this
Agreement, the Underlying Fee may be sold pursuant to the like kind exchange
provisions of the Code. Optionee agrees to execute at the Closing all reasonable
and customary documents necessary to accomplish the sale under the like kind
exchange rules as prepared by Option Holder's attorney, provided, however, that
Optionee shall not be required to execute any document that would or might
require Optionee to incur any cost or expense; require Optionee to take title to
any property other than the Underlying Fee (except for the Purchased Assets); or
require Optionee to incur any liability, whether current, accrued or contingent.
Option Holder shall be responsible for all costs of such documentation and
guarantees that no terms or conditions in this Agreement shall change due to the
execution of the like kind exchange documents, nor shall Closing be delayed
thereby. As aforesaid, Optionee will not be required to purchase any property
(other than the Underlying Fee and Purchased Assets), but may be required to pay
the Purchase Price (or some portion thereof, as the Option Holder may direct
prior to the Closing) into an escrow fund established for the purpose of the
like kind exchange. Option Holder shall defend, indemnify and save Optionee
harmless from any loss, expense, claims or damages in connection with Optionee
executing any such documents. The provisions of this Section 6 shall survive
Closing.
7. Notice. Any notices, consents, or other communications between Option
Holder and Optionee may be oral or in writing, so long as the Option Holder
remains Sutton Hill Capital, L.L.C. or an Affiliate thereof and the Optionee
remains an Affiliate or a direct or indirect Subsidiary of Reading
International, Inc.; provided, however, that, if this Agreement specifically
provides that a notice, consent or communication must be in writing, then such
provision controls. Subject to the preceding sentence, all notices, offers,
acceptances, approvals, waivers, requests, demands and other communications
hereunder or under any other instrument, certificate or other document delivered
in connection with the transactions described herein shall be in writing, shall
be addressed as provided below and shall be considered as properly given (a) if
delivered in person, (b) if sent by express courier service (including, without
limitation, Federal Express, Emery, DHL, Airborne Express, and other similar
express delivery services), (c) in the event overnight delivery services are not
readily available, if mailed by United States Postal Service, postage prepaid,
registered or certified with return receipt requested, or (d) if sent by
telecopy and confirmed; provided, that in the case of a notice by telecopy, the
sender shall in addition confirm such notice by writing sent in the manner
specified in clause (a), (b) or (c) of this Section 7. All notices shall be
effective upon receipt by the addressee; provided, however, that if any notice
is tendered to an addressee and the delivery thereof is refused by such
addressee, such notice shall be effective upon such tender. For the purposes of
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notice, the addresses of the parties shall be as set forth below; provided,
however, that any party shall have the right to change its address for notice
hereunder to any other location by giving written notice to the other party in
the manner set forth herein. The initial addresses of the parties hereto are as
follows:
If to the Option Holder:
Sutton Hill Capital, L.L.C.
120 North Robertson Boulevard
Los Angeles, California 90048
Attention: Legal Department
Telecopy: (310) 652-6490
With a copy of all notices under this Section 7 to be simultaneously given,
delivered or served to Ira Levin, at the following address:
Pacific Theatres
120 North Robertson Boulevard
Los Angeles, CA 90048
Telecopier: (310) 652-6490
Attention: Ira Levin
If to the Optionee:
Citadel Realty, Inc.
550 South Hope Street
Suite 1825
Los Angeles, California 90071;
Attention: President
Telecopy: (213) 235-2229
With a copy of all notices under this Section 7 to be simultaneously given,
delivered or served to:
Reading International, Inc.
550 South Hope Street
Suite 1825
Los Angeles, California 90071;
Attention: Chief Financial Officer
Telecopy: (213) 235-2229
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and to S. Craig Tompkins. at the following address:
Reading International, Inc.
550 South Hope Street
Suite 1825
Los Angeles, California 90071;
Telecopy: (213) 235-2229
8. Certain Definitions. As used herein the following terms shall have the
respective meanings as set forth below:
(a) "Affiliate" of any Person means any other Person controlling,
controlled by or under direct or indirect common control with such Person. For
the purposes of this definition, "control," when used with respect to any
specified Person, means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing. Notwithstanding the
foregoing: (i) the Option Holder and its Affiliates (the "Option Holder's
Affiliates") shall not include Reading International, Inc. and its direct or
indirect Subsidiaries; (ii) Reading International, Inc. and its direct or
indirect Subsidiaries (including the Tenant), on the one hand, and the Option
Holder and the Option Holder's Affiliates, on the other hand, shall not be
considered Affiliates of each other; and (iii) Nationwide and its Affiliates
shall not be considered an Affiliate of any of Reading International, Inc. or
any of its direct or indirect Subsidiaries or the Tenant or any of its
Affiliates.
(b) "[Intentionally Omitted]
(c) "Contract" shall mean any contract, agreement, indenture, loan or
credit agreement, receivable sales or financing agreement, capital note,
mortgage, security agreement, bond or note (or any guarantee of any of the
foregoing).
(d) "Code" means the Internal Revenue Code of 1986, as heretofore and
hereafter amended from time to time, or any successor code as in effect from
time to time.
(e) "Indemnity Guarantee" means the guarantee, dated as of July 28, 2000,
entered into by and among the Messrs. Forman and Cotter, Citadel Cinemas, Inc.
and Optionee.
(f) "Insolvency or Liquidation Proceeding" means:
(i) The entry of a decree or order for relief in respect of SHC by a
court having jurisdiction in the premises, or the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of SHC or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, in an involuntary
case under the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal
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or state bankruptcy, insolvency or other similar law; or the commencement
against SHC of an involuntary case under the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable Federal or state
bankruptcy, insolvency or other similar law; or
(ii) The commencement by SHC of a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or state bankruptcy, insolvency or other similar law, or the
consent by it to the entry of an order for relief in an involuntary case
under any such law or the consent by it to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or other similar official) of SHC or of any substantial part
of its property, or the making by it of a general assignment for the
benefit of creditors, or the taking of any action in furtherance of any of
the foregoing;
provided, however, that, if any of the events described in clauses (i) and (ii)
of this definition shall arise as a result of a Tenant Event, then such an event
shall not constitute an Insolvency or Liquidation Proceeding.
(g) "Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, encumbrance, lien (statutory or other), or other security agreement
of any kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the Uniform Commercial Code or comparable law
of any jurisdiction in respect of any of the foregoing).
(h) "Nationwide" means Nationwide Theatres Corp., a California
corporation, and its successors.
(i) "Nationwide Agreement" means the agreements, documents and instruments
evidencing or securing the Nationwide Indebtedness, as any thereof may be
amended, restated, modified or supplemented from time to time.
(j) "Nationwide Indebtedness" means any and all indebtedness, obligations
and liabilities of Option Holder from time to time outstanding under the
Nationwide Agreement, whether now existing or hereafter arising, fixed or
contingent, due or not due, liquidated or unliquidated, determined or
undetermined, and whether for principal, premium, interest, fees, indemnities,
costs, expenses or otherwise.
(k) "Person" means any individual, corporation, partnership, limited
liability company, private limited company, joint venture, association,
joint-stock company, trust, unincorporated organization of government or any
agency or political subdivision thereof.
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(l) "Pledge Agreement" means the agreement, dated as of July 28, 2000,
entered into between Sutton Hill Associates, as pledgor, and Reading
International, Inc., as pledgee, as amended and restated as of January 29, 2002
as the same may be amended, restated, modified or supplemented from time to
time.
(m) "Purchased Assets" has the meaning set forth in paragraph (a) of
Section 12 of the Lease Agreement.
(n) "Purchase Option" means Tenant's right to purchase the Purchased
Assets as set forth in paragraph (a) of Section 12 of the Lease Agreement.
(o) "Purchase Price" means four million dollars ($4,000,000).
(p) "Subsidiary" of any Person shall mean any corporation, partnership,
limited liability company, joint venture, trust or estate of which (or in which)
more than 50% of
(i) the outstanding capital stock having voting power to elect a
majority of the board of directors of such corporation (irrespective of
whether at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency),
(ii) the interest in the capital or profits of such partnership or
joint venture, or
(iii) the beneficial interest of such trust or estate
is at the time directly or indirectly owned by such Person, by such Person and
one or more of its Subsidiaries or by one or more of such Person's Subsidiaries.
(q) "Tenant Event" shall mean an event arising from or attributable to an
action or inaction of, or a condition or event relating to, Tenant or any of its
Affiliates (or the agents, officers, directors or employees of the Tenant or any
such Affiliate), or initiated by Tenant or any of its Affiliates (or any such
Person), unless such action, inaction, or event was or resulted from an action
by Tenant or any of its Affiliates to enforce any rights or remedies under the
Lease Agreement or any other Contract or Applicable Law so long as such action
so to enforce was initiated in good faith.
(r) "Underlying Lease" shall mean that certain Ground Lease dated as of
August 16, 1985, between Sutcin Holding Corp., as landlord, and Sutton Hill
Associates, as tenant, covering the premises at 205 East 57th Street, New York,
New York 10022, containing the Sutton Theatre, as amended by the First Addendum
to Ground Lease, dated as of January 1, 1992, between Sutcin Holding Corp. and
Sutton Hill Associates, Second Addendum to Ground Lease, dated as of January 1,
1995, between Sutcin Holding Corp. and Sutton Hill Associates, Third Addendum to
Ground Lease, dated as of July 1, 1996, between Nationwide
(successor-in-interest to Sutcin Holding Corp.) and Sutton Hill Associates, and
Fourth Addendum to Ground Lease, dated as of July 28, 2000,
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between Nationwide and Sutton Hill Associates, and Fifth Addendum to Ground
Lease dated as of January 29, 2002, between Nationwide and Sutton Hill
Associates.
9. Representations and Warranties
(a) Option Holder hereby represents and warrants to Optionee that as of
the date hereof:
(i) The signatory for Option Holder hereto is in all respects
authorized and qualified to enter into this Agreement on behalf of Option
Holder and Option Holder has authorized the assumption of the obligations
described herein.
(ii) Option Holder has previously delivered a true and correct copy
of the option agreement to which Option Holder has been granted the Fee
Option. The Fee Option is in full force and effect. To the knowledge of
Option Holder, there is no default under the Fee Option.
(b) Optionee hereby represents and warrants to Option Holder that as of
the date hereof:
(i) The signatory for Optionee hereto is in all respects authorized
and qualified to enter into this Agreement on behalf of Optionee and
Optionee has authorized the assumption of the obligations described
herein.
10. Indemnities.
(a) Option Holder shall and hereby does indemnify, defend, protect and
hold harmless Optionee, any successor or successors and any Affiliate of the
foregoing parties, and their respective officers, directors, incorporators,
shareholders, partners, members, employees, agents and servants from and against
all liabilities, losses, obligations, claims, penalties, causes of action,
suits, demands, damages, costs and expenses (including, without limitation,
reasonable attorneys' and accountants' fees and expenses) or judgments of any
nature arising out of or otherwise in respect of a breach of any (i)
representation or (ii) covenant or agreement made by Option Holder hereunder.
(b) Notwithstanding anything to the contrary contained herein, all claims
for indemnification under paragraph (a) of this Section 10 shall be made in
accordance with the procedures set forth in Section 11 of the Lease, shall, in
the case of claims under clause (i) of such paragraph (a), be included in
computing claims for indemnification subject to the limitations set forth in
paragraph (c) of Section 11 of the Lease Agreement, which limits claims brought
under clause (ii) of paragraph (b) of Section 11 of the Lease Agreement, and
shall be subject to the other provisions of paragraph (h) of said Section 11.
(c) Optionee shall and hereby does indemnify, defend, protect and hold
harmless Option Holder, any successor or successors and any Affiliate of the
foregoing parties, and their respective officers, directors, incorporators,
shareholders, partners, members, employees, agents and servants from and against
all liabilities, losses, obligations, claims, penalties, causes of action,
suits, demands,
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damages, costs and expenses (including, without limitation, reasonable
attorneys' and accountants' fees and expenses) or judgments of any nature
arising out of or otherwise in respect of (A) the use or occupancy of the
Underlying Fee or any Element (as such term is defined in the Lease Agreement)
of any thereof by the Optionee or any Person claiming under the Optionee; (B)
any activity, work, or thing done or permitted by the Optionee in or about any
of the Underlying Fee; (C) any acts, omissions, or negligence of the Optionee,
or any Person claiming under the Optionee, or the employees, agents,
contractors, invitees or visitors of the Optionee or any such Person; (D) any
breach, violation, or nonperformance by the Optionee, or any Person claiming
under the Optionee, or the employees, agents, contractors, invitees, or visitors
of the Optionee or any such Person, of any term, covenant or provision of this
Agreement, the Underlying Lease to the extent the performance of obligations
thereunder has become an obligation of the Optionee pursuant to the terms hereof
or any law, ordinance or governmental requirement of any kind; or (E) any injury
or damage to the Person, property, or business of the Optionee, its employees,
agents, contractors, invitees, visitors or any other Person entering upon any of
the Underlying Fee, as to all of the foregoing to the extent arising from and
after the Closing.
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11. Miscellaneous
(a) All agreements, indemnities, representations and warranties shall
survive the expiration or other termination hereof.
(b) This Agreement and the instruments, documents or agreements referred
to herein constitute the entire agreement between the parties relating to the
subject mater hereof and no representations, warranties, promises, guarantees or
agreements, oral or written, express or implied, have been made by any party
hereto with respect to this Agreement.
(c) This Agreement may not be amended, modified or terminated, nor may any
obligation hereunder be waived orally, and no such amendment, modification,
termination or waiver shall be effective for any purpose unless it is in
writing, signed by the party against whom enforcement thereof is sought. The
consent or approval by the Option Holder to or of any act by the Optionee
requiring the Option Holder's consent or approval shall not be deemed to have
been waived by the Option Holder unless such waiver is in writing signed by the
Option Holder waiving such covenant or condition.
(d) The captions in this Agreement are for convenience of reference only,
and shall not be deemed to affect the meaning or construction of any of the
provisions hereof. Any provision of this Agreement which is prohibited by law or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and the parties hereto shall negotiate in good
faith appropriate modifications to reflect such changes as may be required by
law, and, as nearly as possible, to produce the same economic, financial and tax
effects as the provision which is prohibited or unenforceable; and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the Option Holder and the Optionee hereby waive any
provision of law which renders any provision hereof prohibited or unenforceable
in any respect.
(e) THIS AGREEMENT HAS BEEN EXECUTED AND DELIVERED IN THE STATE OF NEW
YORK. THE OPTION HOLDER AND THE OPTIONEE AGREE THAT, TO THE MAXIMUM EXTENT
PERMITTED BY THE LAW OF THE STATE OF NEW YORK, THIS AGREEMENT, AND THE RIGHTS
AND DUTIES OF THE OPTION HOLDER AND THE OPTIONEE HEREUNDER, SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
IN ALL RESPECTS, INCLUDING, WITHOUT LIMITATION, IN RESPECT OF ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE. EACH OF THE OPTION HOLDER AND THE
OPTIONEE HEREBY IRREVOCABLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND THE SUPREME COURT OF THE STATE OF NEW YORK IN THE COUNTY OF NEW
YORK IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, AND TO
THE
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EXTENT PERMITTED BY APPLICABLE LAW, HEREBY WAIVES AND AGREES NOT TO ASSERT BY
WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING,
ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURT,
THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT
THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT THIS AGREEMENT
OR ANY DOCUMENT OR ANY INSTRUMENT REFERRED TO HEREIN OR THE SUBJECT MATTER
HEREOF MAY NOT BE LITIGATED IN OR BY SUCH COURT. THIS SUBMISSION TO JURISDICTION
IS NONEXCLUSIVE AND DOES NOT PRECLUDE EITHER PARTY FROM OBTAINING JURISDICTION
OVER THE OTHER IN ANY COURT OTHERWISE HAVING JURISDICTION. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF THE OPTION HOLDER AND THE OPTIONEE AGREES
NOT TO SEEK AND HEREBY WAIVES THE RIGHT TO ANY REVIEW OF THE JUDGMENT OF ANY
SUCH COURT BY ANY COURT OF ANY OTHER NATION OR JURISDICTION WHICH MAY BE CALLED
UPON TO GRANT AN ENFORCEMENT OF SUCH JUDGMENT. EACH OF THE OPTION HOLDER AND THE
OPTIONEE AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY CERTIFIED OR
REGISTERED MAIL TO THE ADDRESS FOR NOTICES SET FORTH IN THIS AGREEMENT OR ANY
METHOD AUTHORIZED BY THE LAWS OF NEW YORK.
(f) THE OPTION HOLDER AND THE OPTIONEE HEREBY WAIVE THEIR RESPECTIVE RIGHT
TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR CROSS COMPLAINT
IN ANY ACTION, PROCEEDING AND/OR HEARING BROUGHT BY EITHER THE OPTION HOLDER
AGAINST THE OPTIONEE OR THE OPTIONEE AGAINST THE OPTION HOLDER ON ANY MATTER
WHATSOEVER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, OR THE
RELATIONSHIP OF THE OPTION HOLDER AND THE OPTIONEE, OR ANY CLAIM OF INJURY OR
DAMAGE, OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY LAW, STATUTE OR REGULATION,
EMERGENCY OR OTHERWISE, NOW OR HEREAFTER IN EFFECT. THE OPTION HOLDER AND THE
OPTIONEE ACKNOWLEDGE THAT THE PROVISIONS OF THIS PARAGRAPH (F) OF SECTION 11
HAVE BEEN BARGAINED FOR AND THAT THEY HAVE BEEN REPRESENTED BY COUNSEL IN
CONNECTION THEREWITH.
(g) This Agreement may be executed in any number of counterparts and by
different parties hereto in separate 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.
(h) One or more waivers of any covenant or condition by the Option Holder
shall not be construed as a waiver of a subsequent breach of the same covenant
or condition. The giving by the Option Holder of any consent or approval
hereunder (whether affirmatively or by inaction) shall not be deemed a waiver of
the requirement for Optionee to seek such consent or approval in the future
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for the same or a dissimilar event. Each and every covenant contained herein
shall be deemed separate and independent and not dependent upon other provisions
of this Lease.
(i) This Agreement has been prepared by the Option Holder and its
professional advisors and reviewed by the Optionee and its professional
advisors. The Option Holder, the Optionee and their separate advisors believe
that this Agreement is the product of all of their efforts, that it expresses
their agreement, and that it should not be interpreted in favor of either the
Option Holder or the Optionee or against the Option Holder or the Optionee
merely because of their efforts in preparing it.
(j) This Agreement shall be binding on the parties hereto and their
respective successors and assigns but the foregoing shall not affect, alter or
limit the provisions of Section 5 hereof.
(k) This Agreement shall expire and become unenforceable against Option
Holder if the Optionee Fee Option is not exercised on or before the earlier to
occur of (i) February 1, 2010 (subject to extension if the Optionee is precluded
from exercising by reason of an Insolvency or Liquidation Proceeding affecting
Option Holder and in such event is extended until the time when such exercise is
not longer so precluded and for five days thereafter) or (ii) the termination of
the Lease Agreement.
(l) Except to the extent of and under the circumstances specifically
provided for in Section 5 of the Pledge Agreement and the Indemnity Guarantee,
no recourse hereunder or any other amount due under this Agreement, or for any
claim based thereon or otherwise in respect thereof or hereof, shall be had
against any direct or indirect partner or owner of the Option Holder or any
incorporator, partner, shareholder, officer, member, Affiliate or director, as
such, past, present or future, of any such direct or indirect partner. Nothing
contained in this paragraph (l) shall be construed to limit the exercise or
enforcement, in accordance with the terms of this Agreement and the other
documents referred to herein, of rights and remedies against the assets of the
limited liability company, or any other Person expressly undertaking in writing
obligations in connection with the transactions contemplated hereby.
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IN WITNESS WHEREOF, the Option Holder and the Optionee have caused this
Agreement to be executed and delivered by their duly authorized officers as of
the day and year first above written.
Option Holder: Sutton Hill Capital, L.L.C., a New York
limited liability company
By:____________________________________
Name: James J. Cotter
Title: Operating Manager
Optionee: Citadel Realty, Inc., a
Nevada corporation
By:____________________________________
Name: Andrzej Matyczynski
Title: Chief Financial Officer
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EXHIBIT "A"
Legal Description of Underlying Fee
The Sutton Theatre
205 East 57th Street
Block 1331, Lot 3
New York City, New York
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