Exhibit 10.8
ENTERTAINMENT PROPERTIES TRUST
and
EPR NORTH TRUST
and
PENEX KANATA LTD. AND
PENEX MAIN LTD.
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AMENDING AGREEMENT
DECEMBER 3, 2003
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AMENDING AGREEMENT
Amending Agreement dated December 3, 2003 between Penex Kanata Ltd. and
Penex Main Ltd., EPR North Trust and Entertainment Properties Trust.
RECITALS:
(a) Penex Kanata Ltd. and Penex Main Ltd. (the "VENDOR") has agreed
to sell, transfer, assign, set over and convey to the EPR North
Trust (the "PURCHASER"), an affiliate of Entertainment Properties
Trust ("EPR"), the Property and certain related property and
assets constituting the Purchase Assets upon the terms and
conditions contained in the Mississauga Entertainment Centrum
Purchase Agreement dated November 14, 2003 (the "PURCHASE
AGREEMENT"); and
(b) The Vendor and the Purchaser have agreed to extend the Closing
Date and the Due Diligence Date in the Purchase Agreement on the
terms and conditions set forth in this amending agreement.
In consideration of the foregoing and the mutual agreements contained
herein (the receipt and adequacy of which are acknowledged), the parties agree
as follows:
SECTION 1 DEFINED TERMS.
Capitalized terms used in this amending agreement and not otherwise defined
have the meanings specified in the Purchase Agreement.
SECTION 2 AMENDMENTS TO ARTICLE 1 OF THE PURCHASE AGREEMENT.
Section 1.1 of the Purchase Agreement is amended effective as of this date
as follows:
(a) The definition of "CLOSING DATE" in Section 1.1 of the Purchase
Agreement is deleted and the following is substituted:
"CLOSING DATE" means 10:00a.m. on Thursday, January 15, 2003 or
such other date that is otherwise agreed to by the parties; and
(b) The definition of "DUE DILIGENCE DATE" in Section 1.1 of the
Purchase Agreement is deleted and the following is substituted:
"DUE DILIGENCE DATE" means 5:00 p.m. (Toronto time) on the date
which is the earlier of (i) the day after the date upon which EPR
receives a commitment letter from its lender, and (ii) Friday,
December 19, 2003.
SECTION 3 REFERENCE TO AND EFFECT ON THE PURCHASE AGREEMENT.
On and after this date, each reference in the Purchase Agreement to "this
Agreement" and each reference to the Purchase Agreement in the Ancillary
Agreements and any and all other agreements, documents and instruments delivered
by the Vendor, the Purchaser or any other Person shall mean and be a reference
to the Purchase Agreement as amended by this amending agreement. Except as
specifically amended by this amending agreement, the Purchase Agreement shall
remain in full force and effect and is hereby ratified and confirmed.
SECTION 4 GOVERNING LAW.
This amending agreement shall be governed by and interpreted and enforced
in accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein.
SECTION 5 COUNTERPARTS.
This amending agreement may be executed in any number of counterparts
(including counterparts by facsimile), each of which shall be deemed to be an
original and all of which taken together shall be deemed to constitute one and
the same instrument. Counterparts may be executed either in original or faxed
form and the parties adopt any signatures received by a receiving fax machine as
the original signatures of the parties.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date
hereof.
ENTERTAINMENT PROPERTIES TRUST
By:
--------------------------------
By:
--------------------------------
EPR NORTH TRUST
By:
--------------------------------
PENEX KANATA LTD., in its capacities PENEX MAIN LTD., in its capacity as
as general partner and nominee of nominee of Kanata Centrum Limited
Kanata Centrum Limited Partnership Partnership
By: By:
--------------------------------- --------------------------------
By: By:
--------------------------------- --------------------------------
ENTERTAINMENT PROPERTIES TRUST
and
EPR NORTH TRUST
and
PENEX KANATA LTD. AND
PENEX MAIN LTD.
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AMENDING AGREEMENT
DECEMBER 19, 2003
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AMENDING AGREEMENT
Amending Agreement dated December 19, 2003 between Penex Kanata Ltd. and
Penex Main Ltd., EPR North Trust and Entertainment Properties Trust.
RECITALS:
(a) Penex Kanata Ltd. and Penex Main Ltd. (the "VENDOR") has agreed
to sell, transfer, assign, set over and convey to the EPR North
Trust (the "PURCHASER"), an affiliate of Entertainment Properties
Trust ("EPR"), the Property and certain related property and
assets constituting the Purchase Assets upon the terms and
conditions contained in the Mississauga Entertainment Centrum
Purchase Agreement dated November 14, 2003, as amended by an
amending agreement between the Purchaser, EPR and the Vendor
dated December 3, 2003 (the "PURCHASE AGREEMENT"); and
(b) The Vendor and the Purchaser have agreed to extend the Closing
Date and the Due Diligence Date in the Purchase Agreement on the
terms and conditions set forth in this amending agreement.
In consideration of the foregoing and the mutual agreements contained
herein (the receipt and adequacy of which are acknowledged), the parties agree
as follows:
SECTION 6 DEFINED TERMS.
Capitalized terms used in this amending agreement and not otherwise defined
have the meanings specified in the Purchase Agreement.
SECTION 7 AMENDMENTS TO ARTICLE 1 OF THE PURCHASE AGREEMENT. Section 1.1 of the
Purchase Agreement is amended effective as of this date as follows:
(a) The definition of "CLOSING DATE" in Section 1.1 of the Purchase
Agreement is deleted and the following is substituted:
"CLOSING DATE" means 10:00a.m. on Thursday, January 22, 2004 or
such other date that is otherwise agreed to by the parties; and
(b) The definition of "DUE DILIGENCE DATE" in Section 1.1 of the
Purchase Agreement is deleted and the following is substituted:
"DUE DILIGENCE DATE" means 5:00 p.m. (Toronto time) on Monday,
January 5, 2004 or such other date that is otherwise agreed to by
the parties
SECTION 8 REFERENCE TO AND EFFECT ON THE PURCHASE AGREEMENT.
On and after this date, each reference in the Purchase Agreement to "this
Agreement" and each reference to the Purchase Agreement in the Ancillary
Agreements and any and all other agreements, documents and instruments delivered
by the Vendor, the Purchaser or any other Person shall mean and be a reference
to the Purchase Agreement as amended by this amending agreement. Except as
specifically amended by this amending agreement, the Purchase Agreement shall
remain in full force and effect and is hereby ratified and confirmed.
SECTION 9 GOVERNING LAW.
This amending agreement shall be governed by and interpreted and enforced
in accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein.
SECTION 10 COUNTERPARTS.
This amending agreement may be executed in any number of counterparts
(including counterparts by facsimile), each of which shall be deemed to be an
original and all of which taken together shall be deemed to constitute one and
the same instrument. Counterparts may be executed either in original or faxed
form and the parties adopt any signatures received by a receiving fax machine as
the original signatures of the parties.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date
hereof.
ENTERTAINMENT PROPERTIES TRUST
By:
--------------------------------
By:
--------------------------------
EPR NORTH TRUST
By:
--------------------------------
PENEX KANATA LTD., in its capacities PENEX MAIN LTD., in its capacity as
as general partner and nominee of nominee of Kanata Centrum Limited
Kanata Centrum Limited Partnership Partnership
By: By:
--------------------------------- --------------------------------
By: By:
--------------------------------- --------------------------------
ENTERTAINMENT PROPERTIES TRUST
and
EPR NORTH TRUST
and
PENEX KANATA LTD. AND
PENEX MAIN LTD.
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AMENDING AGREEMENT
JANUARY 5, 2004
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AMENDING AGREEMENT
Amending Agreement dated January 5, 2004 between Penex Kanata Ltd. and
Penex Main Ltd., EPR North Trust and Entertainment Properties Trust.
RECITALS:
(a) Penex Kanata Ltd. and Penex Main Ltd. (the "VENDOR") has agreed
to sell, transfer, assign, set over and convey to the EPR North
Trust (the "PURCHASER"), an affiliate of Entertainment Properties
Trust ("EPR" and together with the Vendor and the Purchaser, the
"PARTIES"), the Property and certain related property and assets
constituting the Purchase Assets upon the terms and conditions
contained in the Kanata Entertainment Centrum Purchase Agreement
dated November 14, 2003, as amended by an amending agreement
between the Parties dated December 3, 2003 and an amending
agreement between the Parties dated December 19, 2003 (the
"PURCHASE AGREEMENT"); and
(b) The Parties have agreed to extend the Due Diligence Date in the
Purchase Agreement on the terms and conditions set forth in this
amending agreement.
In consideration of the foregoing and the mutual agreements contained
herein (the receipt and adequacy of which are acknowledged), the Parties agree
as follows:
SECTION 11 DEFINED TERMS.
Capitalized terms used in this amending agreement and not otherwise defined
have the meanings specified in the Purchase Agreement.
SECTION 12 AMENDMENTS TO ARTICLE 1 OF THE PURCHASE AGREEMENT.
Section 1.1 of the Purchase Agreement is amended effective as of this date
as follows:
(a) The definition of "DUE DILIGENCE DATE" in Section 1.1 of the
Purchase Agreement is deleted and the following is substituted:
"DUE DILIGENCE DATE" means 5:00 p.m. (Toronto time) on Friday,
January 9, 2004 or such other date that is otherwise agreed to by
the Parties.
SECTION 13 REFERENCE TO AND EFFECT ON THE PURCHASE AGREEMENT.
On and after this date, each reference in the Purchase Agreement to "this
Agreement" and each reference to the Purchase Agreement in the Ancillary
Agreements and any and all other agreements, documents and instruments delivered
by the Vendor, the Purchaser or any other Person shall mean and be a reference
to the Purchase Agreement as amended by this amending agreement. Except as
specifically amended by this amending agreement, the Purchase Agreement shall
remain in full force and effect and is hereby ratified and confirmed.
SECTION 14 GOVERNING LAW.
This amending agreement shall be governed by and interpreted and enforced
in accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein.
SECTION 15 COUNTERPARTS.
This amending agreement may be executed in any number of counterparts
(including counterparts by facsimile), each of which shall be deemed to be an
original and all of which taken together shall be deemed to constitute one and
the same instrument. Counterparts may be executed either in original or faxed
form and the Parties adopt any signatures received by a receiving fax machine as
the original signatures of the Parties.
IN WITNESS WHEREOF the Parties have executed this Agreement as of the date
hereof.
EPR NORTH TRUST ENTERTAINMENT PROPERTIES TRUST
By: By:
---------------------------------- ---------------------------------
PENEX MAIN LTD., in its capacity PENEX KANATA LTD., in its capacities
as nominee of Kanata Centrum Limited as general partner and nominee of
Partnership Kanata Centrum Limited Partnership
By: By:
---------------------------------- ---------------------------------
ENTERTAINMENT PROPERTIES TRUST
and
EPR NORTH TRUST
and
PENEX KANATA LTD. AND
PENEX MAIN LTD.
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AMENDING AGREEMENT
JANUARY 9, 2004
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AMENDING AGREEMENT
Amending Agreement dated January 9, 2004 between Penex Kanata Ltd. and
Penex Main Ltd., EPR North Trust and Entertainment Properties Trust.
RECITALS:
(a) Penex Kanata Ltd. and Penex Main Ltd. (the "VENDOR") has agreed
to sell, transfer, assign, set over and convey to the EPR North
Trust (the "PURCHASER"), an affiliate of Entertainment Properties
Trust ("EPR" and together with the Vendor and the Purchaser, the
"PARTIES"), the Property and certain related property and assets
constituting the Purchase Assets upon the terms and conditions
contained in the Kanata Entertainment Centrum Purchase Agreement
dated November 14, 2003 as amended by an amending agreement
between the Parties dated December 31, 2003, an amending
agreement between the Parties dated December 19, 2003, and an
amending agreement between the Parties dated January 5, 2004
(collectively, the "PURCHASE AGREEMENT"); and
(b) The Parties have agreed to extend the Closing Date and the Due
Diligence Date in the Purchase Agreement on the terms and
conditions set forth in this amending agreement.
In consideration of the foregoing and the mutual agreements contained
herein (the receipt and adequacy of which are acknowledged), the Parties agree
as follows:
SECTION 16 DEFINED TERMS.
Capitalized terms used in this amending agreement and not otherwise defined
have the meanings specified in the Purchase Agreement.
SECTION 17 AMENDMENTS TO ARTICLE 1 OF THE PURCHASE AGREEMENT.
Section 1.1 of the Purchase Agreement is amended effective as of this date
as follows:
(a) The definition of "CLOSING DATE" in Section 1.1 of the Purchase
Agreement is deleted and the following is substituted:
"CLOSING DATE" means 10:00a.m. on Tuesday, February 24, 2004 or
such other date that is otherwise agreed to by the Parties; and
(b) The definition of "DUE DILIGENCE DATE" in Section 1.1 of the
Purchase Agreement is deleted and the following is substituted:
"DUE DILIGENCE DATE" means 12:00 p.m. (Toronto time) on Friday,
January 16, 2004 or such other date that is otherwise agreed to
by the Parties.
SECTION 18 REFERENCE TO AND EFFECT ON THE PURCHASE AGREEMENT.
On and after this date, each reference in the Purchase Agreement to "this
Agreement" and each reference to the Purchase Agreement in the Ancillary
Agreements and any and all other agreements, documents and instruments delivered
by the Parties or any other Person shall mean and be a reference to the Purchase
Agreement as amended by this amending agreement. Except as specifically amended
by this amending agreement, the Purchase Agreement shall remain in full force
and effect and is hereby ratified and confirmed.
SECTION 19 GOVERNING LAW.
This amending agreement shall be governed by and interpreted and enforced
in accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein.
SECTION 20 COUNTERPARTS.
This amending agreement may be executed in any number of counterparts
(including counterparts by facsimile), each of which shall be deemed to be an
original and all of which taken together shall be deemed to constitute one and
the same instrument. Counterparts may be executed either in original or faxed
form and the Parties adopt any signatures received by a receiving fax machine as
the original signatures of the Parties.
IN WITNESS WHEREOF the Parties have executed this Agreement as of the date
hereof.
EPR NORTH TRUST ENTERTAINMENT PROPERTIES TRUST
By: By:
---------------------------------- ---------------------------------
PENEX MAIN LTD., in its capacity PENEX KANATA LTD., in its capacities
as nominee of Kanata Centrum Limited as general partner and nominee of
Partnership Kanata Centrum Limited Partnership
By: By:
---------------------------------- ---------------------------------
ENTERTAINMENT PROPERTIES TRUST
and
EPR NORTH TRUST
and
PENEX KANATA LTD. and
PENEX MAIN LTD.
- --------------------------------------------------------------------------------
AMENDING AGREEMENT
JANUARY 16, 2004
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AMENDING AGREEMENT
Amending Agreement dated January 16, 2004 between Penex Kanata Ltd. and
Penex Main Ltd., EPR North Trust and Entertainment Properties Trust.
RECITALS:
(a) Penex Kanata Ltd. and Penex Main Ltd. (the "VENDOR") has agreed
to sell, transfer, assign, set over and convey to the EPR North
Trust (the "PURCHASER"), an affiliate of Entertainment Properties
Trust ("EPR" and together with the Vendor and the Purchaser, the
"PARTIES"), the Property and certain related property and assets
constituting the Purchase Assets upon the terms and conditions
contained in the Kanata Entertainment Centrum Purchase Agreement
dated November 14, 2003 as amended by an amending agreement
between the Parties dated December 3, 2003, an amending agreement
between the Parties dated December 19, 2003, an amending
agreement between the Parties dated January 5, 2004 and an
amending agreement between the Parties dated January 9, 2004
(collectively, the "PURCHASE AGREEMENT"); and
(b) The Parties have agreed to extend the Due Diligence Date in the
Purchase Agreement on the terms and conditions set forth in this
amending agreement.
In consideration of the foregoing and the mutual agreements contained
herein (the receipt and adequacy of which are acknowledged), the Parties agree
as follows:
SECTION 21 DEFINED TERMS.
Capitalized terms used in this amending agreement and not otherwise defined
have the meanings specified in the Purchase Agreement.
SECTION 22 AMENDMENTS TO ARTICLE 1 OF THE PURCHASE AGREEMENT.
Section 1.1 of the Purchase Agreement is amended effective as of this date
as follows:
(a) The definition of "DUE DILIGENCE DATE" in Section 1.1 of the
Purchase Agreement is deleted and the following is substituted:
"DUE DILIGENCE DATE" means 5:00 p.m. (Toronto time) on Wednesday,
January 21, 2004 or such other date that is otherwise agreed to
by the Parties.
SECTION 23 REFERENCE TO AND EFFECT ON THE PURCHASE AGREEMENT.
On and after this date, each reference in the Purchase Agreement to "this
Agreement" and each reference to the Purchase Agreement in the Ancillary
Agreements and any and all other agreements, documents and instruments delivered
by the Parties or any other Person shall mean and be a reference to the Purchase
Agreement as amended by this amending agreement. Except as specifically amended
by this amending agreement, the Purchase Agreement shall remain in full force
and effect and is hereby ratified and confirmed.
SECTION 24 GOVERNING LAW.
This amending agreement shall be governed by and interpreted and enforced
in accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein.
SECTION 25 COUNTERPARTS.
This amending agreement may be executed in any number of counterparts
(including counterparts by facsimile), each of which shall be deemed to be an
original and all of which taken together shall be deemed to constitute one and
the same instrument. Counterparts may be executed either in original or faxed
form and the Parties adopt any signatures received by a receiving fax machine as
the original signatures of the Parties.
IN WITNESS WHEREOF the Parties have executed this Agreement as of the date
hereof.
EPR NORTH TRUST ENTERTAINMENT PROPERTIES TRUST
By: By:
---------------------------------- ---------------------------------
PENEX MAIN LTD., in its capacity PENEX KANATA LTD., in its capacities
as nominee of Kanata Centrum Limited as general partner and nominee of
Partnership Kanata Centrum Limited Partnership
By: By:
---------------------------------- ---------------------------------
ENTERTAINMENT PROPERTIES TRUST
and
EPR NORTH TRUST
and
PENEX KANATA LTD. AND
PENEX MAIN LTD.
- --------------------------------------------------------------------------------
AMENDING AGREEMENT
JANUARY 21, 2004
- --------------------------------------------------------------------------------
AMENDING AGREEMENT
Amending Agreement dated January 21, 2004 between Penex Kanata Ltd. and
Penex Main Ltd., EPR North Trust and Entertainment Properties Trust.
RECITALS:
(a) Penex Kanata Ltd. and Penex Main Ltd. (the "VENDOR") has agreed
to sell, transfer, assign, set over and convey to the EPR North
Trust (the "PURCHASER"), an affiliate of Entertainment Properties
Trust ("EPR" and together with the Vendor and the Purchaser, the
"PARTIES"), the Property and certain related property and assets
constituting the Purchase Assets upon the terms and conditions
contained in the Kanata Entertainment Centrum Purchase Agreement
dated November 14, 2003 as amended by an amending agreement
between the Parties dated December 3, 2003, an amending agreement
between the Parties dated December 19, 2003, an amending
agreement between the Parties dated January 5, 2004, an amending
agreement between the Parties dated January 9, 2004 and an
amending agreement between the Parties dated January 16, 2004
(collectively, the "PURCHASE AGREEMENT"); and
(b) The Parties have agreed to extend the Due Diligence Date in the
Purchase Agreement on the terms and conditions set forth in this
amending agreement.
In consideration of the foregoing and the mutual agreements contained
herein (the receipt and adequacy of which are acknowledged), the Parties agree
as follows:
SECTION 26 DEFINED TERMS.
Capitalized terms used in this amending agreement and not otherwise defined
have the meanings specified in the Purchase Agreement.
SECTION 27 AMENDMENTS TO ARTICLE 1 OF THE PURCHASE AGREEMENT.
Section 1.1 of the Purchase Agreement is amended effective as of this date
as follows:
(a) The definition of "DUE DILIGENCE DATE" in Section 1.1 of the
Purchase Agreement is deleted and the following is substituted:
"DUE DILIGENCE DATE" means 5:00 p.m. (Toronto time) on Friday,
January 23, 2004 or such other date that is otherwise agreed to
by the Parties.
SECTION 28 REFERENCE TO AND EFFECT ON THE PURCHASE AGREEMENT.
On and after this date, each reference in the Purchase Agreement to "this
Agreement" and each reference to the Purchase Agreement in the Ancillary
Agreements and any and all other agreements, documents and instruments delivered
by the Parties or any other Person shall mean and be a reference to the Purchase
Agreement as amended by this amending agreement. Except as specifically amended
by this amending agreement, the Purchase Agreement shall remain in full force
and effect and is hereby ratified and confirmed.
SECTION 29 GOVERNING LAW.
This amending agreement shall be governed by and interpreted and enforced
in accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein.
SECTION 30 COUNTERPARTS.
This amending agreement may be executed in any number of counterparts
(including counterparts by facsimile), each of which shall be deemed to be an
original and all of which taken together shall be deemed to constitute one and
the same instrument. Counterparts may be executed either in original or faxed
form and the Parties adopt any signatures received by a receiving fax machine as
the original signatures of the Parties.
IN WITNESS WHEREOF the Parties have executed this Agreement as of the date
hereof.
EPR NORTH TRUST ENTERTAINMENT PROPERTIES TRUST
By: By:
---------------------------------- ---------------------------------
PENEX MAIN LTD., in its capacity PENEX KANATA LTD., in its capacities
as nominee of Kanata Centrum Limited as general partner and nominee of
Partnership Kanata Centrum Limited Partnership
By: By:
---------------------------------- ---------------------------------
NOTICE AND AMENDMENT
TO: Penex Kanata Ltd. and Penex Main Ltd. (collectively, the "VENDOR")
FROM: EPR North Trust (the "PURCHASER")
DATE: January 23, 2004
- --------------------------------------------------------------------------------
This Notice is delivered to you pursuant to Section 8.2(a) of the Kanata
Entertainment Centrum Purchase Agreement dated as of November 14, 2003 (as
amended in accordance with the terms thereof, the "PURCHASE AGREEMENT") by and
between the Vendor, the Purchaser and Entertainment Properties Trust. All
defined terms set forth in this Notice shall have the respective meanings set
forth in the Purchase Agreement.
The Purchaser hereby acknowledges and confirms the following:
1. it has completed its due diligence relating to the Property, the Permitted
Encumbrances, the Mandatory Assumed Contracts, and those matters described
in sections 6.11, 6.12, 6.13, and 6.14 of the Purchase Agreement, to its
satisfaction;
2. it is waiving its requirement to be satisfied with respect to any financing
it requires to complete the purchase of the Purchase Assets;
3. it has satisfied itself that all consents, approvals, licences, and
permits, necessary or appropriate to consummate the transactions
contemplated in the Purchase Agreement have been or will be obtained by
Closing; and
4. it has determined that the transactions contemplated herein do not violate
any law or regulation applicable to the Purchaser or EPR.
Notwithstanding any of the foregoing, including the waiver in paragraph 2
above, the Vendor agrees by execution of this Notice that Closing is conditional
on (i) the First Mortgage having been advanced to the Purchaser (which condition
is for the exclusive benefit of the Purchaser), unless the failure to advance is
as a result of the Purchaser's default of the terms of the commitment letter
issued to it, and (ii) the Purchase Agreement being amended on the terms of the
amending agreement respecting the Purchase Agreement substantially in the form
circulated by Stikeman Elliott LLP on January 19, 2004 (the "AMENDING
AGREEMENT").
The Purchaser agrees to cause EPR to purchase the Note issued pursuant to
Section 3.5(1)(b) of the Purchase Agreement in exchange for that number of EPR
common stock calculated in accordance with the following formula:
Number of EPR
common stock = Canadian $12,960,587.00
------------------------------------------------------
US $36.25 converted to Canadian dollars using the
Bank of Canada Noon Rate on the Closing Date
The Purchaser acknowledges that the Vendor's obligation to complete the
transaction contemplated in the Purchase Agreement shall be conditional upon it
obtaining approval from the Purchaser's lender with respect to the Covenant not
to Encumber and Covenant not to Transfer, to be registered on title to the
Property.
The parties agree that Section 3.4(2) of the Purchase Agreement shall be
amended to replace "Four Million Three Hundred Thousand ($4,300,000.00) Dollars"
with "Five Million Five Hundred Thousand ($5,500,000.00) Dollars."
Agreed to by the parties this 23rd day of January, 2004.
EPR NORTH TRUST ENTERTAINMENT PROPERTIES TRUST
By: By:
---------------------------------- ---------------------------------
PENEX MAIN LTD., in its capacity PENEX KANATA LTD., in its capacities
as nominee of Kanata Centrum Limited as general partner and nominee of
Partnership Kanata Centrum Limited Partnership
By: By:
---------------------------------- ---------------------------------
ENTERTAINMENT PROPERTIES TRUST
and
EPR NORTH TRUST
and
PENEX KANAT LTD.
and
PENEX MAIN LTD.
- --------------------------------------------------------------------------------
AMENDING AGREEMENT
FEBRUARY 24, 2004
- --------------------------------------------------------------------------------
AMENDING AGREEMENT
Amending Agreement dated as of February 24, 2004 between Penex Kanata Ltd.,
Penex Main Ltd., EPR North Trust and Entertainment Properties Trust.
RECITALS:
(a) Penex Kanata Ltd. and Penex Main Ltd. (collectively, the "VENDOR")
have agreed to sell, transfer, assign, set over and convey to EPR
North Trust (the "PURCHASER"), an affiliate of Entertainment
Properties Trust ("EPR" and together with the Vendor and the
Purchaser, the "PARTIES"), the Property and certain related property
and assets constituting the Purchase Assets upon the terms and
conditions contained in the Kanata Entertainment Centrum Purchase
Agreement dated as of November 14, 2003, as amended by amending
agreements between the Parties dated December 3, 2003, December 19,
2003, January 5, 2004, January 9, 2004, January 16, 2004 and January
21, 2004 and the notice and amendment between the parties dated
January 23, 2004 (the "PURCHASE AGREEMENT"); and
(b) The Parties have agreed to amend certain terms and conditions of the
Purchase Agreement, as set forth in this amending agreement.
In consideration of the foregoing and the mutual agreements contained
herein (the receipt and adequacy of which are acknowledged), the Parties agree
as follows:
SECTION 31 DEFINED TERMS.
Capitalized terms used in this amending agreement and not otherwise defined
have the meanings specified in the Purchase Agreement.
SECTION 32 AMENDMENTS TO ARTICLE 1 OF THE PURCHASE AGREEMENT.
Section 1.1 of the Purchase Agreement is amended effective as of this date
as follows:
(a) The following definitions shall be added:
(i) "EPR CANADA" means EPR Canada, Inc., the owner of the shares of
the Nominee.
(ii) "EPR STOCK" means that number of shares of common stock in EPR
equal to Cdn.$12,960,587 divided by the Canadian Dollar
equivalent of U.S.$36.25, using the exchange rate published as
the noon rate by the Bank of Canada on the day prior to the
Closing Date.
(iii) "ESCROW AGENT" has the meaning given to it in Section 3.5(2).
(iv) "FIRST MORTGAGEE" means the mortgagee under the First Mortgage.
(v) "NOMINEE INDEMNITY" has the meaning given to it in Section
3.5(4).
(vi) "NOMINEE PLEDGE" means a security interest in favour of the
Vendor and the Other Vendors granted by EPR Canada in and to the
shares of the Nominee and the Other Nominees, which security
interest shall not be subordinate or postponed to any security
interests in favour of the First Mortgagee.
(vii)"NOTE PURCHASE AGREEMENT" means the agreement to be entered into
between the Vendor, the Other Vendors and EPR on Closing pursuant
to which the Vendor shall sell the Note to EPR in return for the
issuance of the EPR Stock.
(viii) "OTHER NOMINEES" means the nominees which will hold legal title
to the Other Properties for and on behalf of the Purchaser.
(b) The following definitions and all references thereto in the Agreement
shall be deleted:
(i) ACCELERATION,
(ii) DISTRIBUTION,
(iii) EXCHANGEABLE PREFERENCE SECURITIES,
(iv) FIVE YEAR PAYMENT\STOCK ISSUANCE,
(v) LIMITED PARTNERSHIP,
(vi) LIMITED PARTNERSHIP AGREEMENT,
(vii) PREFERENCE SECURITIES EXCHANGE
(viii) PREFERENCE SECURITIES EXCHANGE AGREEMENT, and
(ix) DEFAULT LC.
(c) The following definitions shall be amended, as set out below:
(i) "ADDITIONAL IMPROVEMENTS" shall be amended by adding the words
"prior to Closing or" after the words "entered into" in the
fourth line.
(ii) "ANCILLARY AGREEMENTS" shall be amended by deleting reference to
the Exchangeable Preferred Securities and the Limited Partnership
Agreement and adding the words "the Note Purchase Agreement"
after "Default and Security Agreement".
(iii)"CLOSING DATE" shall be amended by substituting March 1, 2004
for February 24, 2004, and adding the following:
"subject to extension as provided in Section 8.3".
(iv) "EVENT" the definition is deleted and the following substituted
in its place:
" "EVENT" means:
(A) a default by the Purchaser, EPR, the Nominee or the Other
Nominees of their respective covenants and obligations under
this Agreement, or any Ancillary Agreement, any of the Other
Purchase Agreements or Other Ancillary Agreements, which has
not been cured or disputed within ten (10) Business Days of
delivery by the non-defaulting party of a notice alleging
default, together with details of such default; or
(B) a transfer or assignment of the Purchaser's beneficial
interest in the Property or any of the Other Properties or
the Nominee's registered interest in the Property or the
Other Nominees' registered interest in any of the Other
Properties, or a change in control of the Purchaser, other
than a transfer or assignment to an affiliate of EPR which
has assumed the obligations of the Purchaser or as
collateral security in connection with the Permitted
Financing; or
(C) a default under the First Mortgage or other mortgage
pursuant to the Permitted Financing, which has not been
cured within the applicable cure period provided for in such
First Mortgage; or
(D) an Event of Insolvency in relation to the Purchaser, EPR,
the Nominee or the Other Nominees;
provided that if there is any Dispute as to whether a Person
is in default of its post-closing obligations pursuant to
this Agreement or any Ancillary Agreement, notice of which
has been delivered as provided in clause (A) of this
definition, such Dispute shall be determined by way of
arbitration pursuant to Section 10.1 of this Agreement, and
only if such Person does not pay or perform as ordered by
the arbitrator pursuant to such arbitration within ten (10)
days of the order of the arbitrator or if the arbitrator
determines that the default exists and same has not been
rectified within ten (10) days, shall an "Event" have
occurred."
(v) "LEASED BUILT SPACE" "317,257 square feet" is hereby substituted
in place of "307,773 square feet".
(vi) "LEASED UNBUILT SPACE": "40,235 square feet" is hereby
substituted in place of "45,418 square feet".
(vii)The definition of "LIBERTY ITM GUARANTEE" is deleted and all
references to Liberty ITM Tenants and Liberty ITM Guarantee are
deleted.
(viii) "NOTE": the definition is deleted and the following is
substituted in its place:
""NOTE" means the promissory note to be issued by the Purchaser
to the Vendor in partial payment of the Purchase Price, as
provided in Section 3.5(1)(b), and to be transferred immediately
after Closing to EPR in exchange for the EPR Stock as provided in
the Note Purchase Agreement."
(ix) "PLEDGE": the definition is deleted and the following is
substituted in its place:
""PLEDGE" means a security interest granted by EPR in and to its
interest in the Purchaser and in the shares of EPR Canada, the
exercise of which, together with the exercise of the Nominee
Pledge, will give the Vendor effective control of the Property
subject only to the First Mortgage."
(x) "REGISTRATION RIGHTS AGREEMENT" the definition is deleted and the
following is substituted in its place:
""REGISTRATION RIGHTS AGREEMENT" means an agreement to be entered
into among, INTER ALIA, EPR, the Vendor and the Other Vendors, in
connection with the EPR Stock."
SECTION 33 OTHER AMENDMENTS TO THE PURCHASE AGREEMENT.
The Purchase Agreement is amended effective as of this date as follows:
(a) Section 2.4 (2) is amended by adding the following:
"The Purchaser's obligations to pay and indemnify in this Section
2.4(2) shall survive Closing. Furthermore, EPR agrees to indemnify and
save the Vendor harmless from all costs, losses, damages and
liabilities suffered or incurred by the Vendor as a result of the
Purchaser's failure to fulfill any of such obligations, but not
including any consequential damages, (the "EPR WITHHOLDING TAX
INDEMNITY"), which EPR Withholding Tax Indemnity shall be embodied in
a separate closing agreement."
(b) The Base Purchase Price, as defined in Section 3.1, is hereby amended
by deleting "Sixty-Five Million, Ninety-Four Thousand, Five Hundred
and Twenty-Four ($65,094,524.00) Dollars" and substituting in its
place "Sixty-Six Million, Five Hundred and Ninety-Four Thousand, and
Eighty-Eight ($66,594,088) Dollars".
(c) Section 3.4(2) is amended by deleting "Four Million Three Hundred
Thousand ($4,300,000) Dollars" and substituting in its place "Five
Million Five Hundred Thousand Dollars ($5,500,000)".
(d) Section 3.5(1)(b) is deleted and the following substituted in its
place:
"NOTE. As to the sum of Twelve Million, Nine Hundred and Sixty
Thousand, Five Hundred and Eighty-Seven ($12,960,587) Dollars, the
Purchaser shall issue to the Vendor the Note, which shall immediately
be exchanged for the EPR Stock."
(e) Section 3.5(2) is hereby deleted and the following substituted in its
place:
"LEASED UNBUILT SPACE AND UNLEASED BUILT SPACE. In respect of the
anticipated Additional Lease Adjustments in connection with the Leased
Unbuilt Space and Unleased Built Space, on or before Closing, the
Purchaser, the Vendor and Vendor's Solicitors, in their capacity as
escrow agent (the "ESCROW AGENT") shall enter into an agreement (the
"ESCROW AGREEMENT") pursuant to which the Purchaser shall deliver the
sum of Seven Million, Two Hundred and Eighty-Four Thousand, and
Forty-Five ($7,284,045) Dollars, by way of a letter of credit in
favour of the Vendor, issued by a Canadian chartered bank, in a form
to be agreed upon prior to the Due Diligence Date (the "ESCROW LC") or
by way of cash to be held in escrow by the Escrow Agent (the "ESCROW
ACCOUNT") as security for the Purchaser's obligations to pay the
Additional Lease Adjustments in respect of the Additional Leases for
the Leased Unbuilt Space and Unleased Built Space (the Escrow LC
and/or Escrow Account are hereinafter referred to as the "ESCROW
FUND"). To the extent any Unleased Unbuilt Space becomes leased prior
to Closing in accordance with the provisions of this Agreement (the
"NEWLY LEASED SPACE"), the Escrow Fund shall be increased by an amount
equal to the Lease NOI in respect of such Newly Leased Space
capitalized at the rate of eleven (11%) percent (i.e. Lease NOI
divided by .11). The Escrow Fund shall be reduced from time to time as
the applicable Additional Lease Adjustments are made."
(f) Section 3.5(3) is amended to remove reference to the Default LC and to
delete "GP Pledge" and substituting "Nominee Pledge" in its place.
(g) Section 3.5(4) is hereby deleted and the following substituted in its
place:
"Nominee Indemnity. EPR Canada shall agree to indemnify and save the
Vendor harmless from all costs, losses, damages and liabilities
suffered or incurred by the Vendor as a result of the Purchaser's or
EPR's failure to observe or perform any of their respective covenants
and obligations pursuant to this Agreement and the Ancillary
Agreements (the "NOMINEE INDEMNITY"), which Nominee Indemnity shall be
embodied in a separate closing agreement and shall be secured by the
Nominee Pledge, but shall otherwise be non-recourse."
(h) The following is hereby added as Section 3.10:
"VACANT SPACE SHORTFALL ADJUSTMENT: On each anniversary date of the
Closing Date, commencing 12 months following the Closing Date, until
the 5th anniversary date, the Vendor shall pay to the Purchaser an
amount, in respect of the previous 12 months, equal to the lesser of:
(i) the common area maintenance costs, including administrative and
management fees, and property taxes (collectively, the "COSTS") in
respect of such period attributable to the Unleased Built Space and
any Unleased Unbuilt Space after it becomes Unleased Built Space
during such period, until the date upon which such Space becomes
leased and the tenants have taken occupancy of such Space and are
obliged to pay the Costs under the applicable Lease (the "LEASE
COMMENCEMENT DATE") (it being acknowledged that upon such Lease
Commencement Date, such Space shall no longer be considered Unleased
Built Space, even if it subsequently becomes vacant or if the Tenant
is in default); and (ii) the total amount of the Costs in respect of
the Property for such 12 month period less the aggregate of (x) the
amount of the Costs in respect of the Property recovered by the
Purchaser from the Tenants plus (y) the amount of the Costs that
Tenants are required to pay during such period but are in default of
paying. These amounts shall be determined annually and adjusted from
time to time in the event that any Tenant successfully maintains a
challenge of the amount of the Costs which it has paid under its
Lease."
(i) Section 5.1(2) is hereby amended as follows: The following shall be
inserted after the first sentence:
"The Vendor acknowledges that in accordance with certain criteria of
the First Mortgagee, that have been agreed to prior to the Due
Diligence Date, the approval of the First Mortgagee shall also be
required in connection with certain proposed Leases. In such cases,
the Purchaser and the Vendor shall cooperate to ensure that the First
Mortgagee's approval is sought as expeditiously as possible, and, if
it is refused unreasonably, to use commercially reasonable efforts to
negotiate such refusal with the First Mortgagee. Subject to the
foregoing, if approval of a Lease is refused by the First Mortgagee,
the Vendor waives its rights to dispute such refusal and to
arbitration in relation to such proposed Lease."
(j) A new Section 5.1(4) is added as follows:
"(4) The Purchaser acknowledges and agrees that all Leases of Leased
Unbuilt Space have been pre-approved by it and shall not require
submission of Lease Proposals.
(k) A new Section 5.6(3) shall be added as follows:
"(3) The Vendor covenants and agrees to construct and/or complete
construction of all Leased Unbuilt Space in accordance with the
provisions of this Section 5.6."
(l) Section 5.8(6) is deleted and the following substituted therefore:
"The Purchaser shall make a Construction Advance to the Vendor on
Closing in an aggregate amount of $6,518,113 on account of and
allocated among certain of the Leases as set out in Schedule "F"
hereto.
(m) Section 6.2(b) shall be amended by deleting the portion of the second
sentence following the definition of the Property Management Indemnity
and substituting the following for it:
"shall include provisions with respect to such damages being
satisfied, at the Vendor's option, by way of a direction to the Escrow
Agent to reduce the Escrow Account by the amount of such damages and
remit such amount to the Purchaser."
(n) Section 6.2(e) is amended to remove reference to the Default LC.
(o) Section 6.4(1) is hereby deleted.
(p) Section 6.6 is hereby deleted and the following substituted in its
place:
"COVENANT NOT TO ENCUMBER AND COVENANT NOT TO TRANSFER. The Vendor,
Other Vendors, Purchaser, Nominee, Other Nominees, EPR Canada and EPR
shall enter into an agreement which restricts the ability of the
parties (other than the Vendor and Other Vendors) to transfer or
encumber their respective interests in, inter alia, the Purchaser,
Nominee, Other Nominees, Property, or Other Properties (the "COVENANT
NOT TO ENCUMBER AND COVENANT NOT TO TRANSFER AGREEMENT"). The
aforesaid agreement shall include the joint and several covenant of
the Purchaser, Nominee and Other Nominees not to create or permit to
be created mortgages or charges of their respective beneficial and
registered interests in the Property and Other Properties beyond the
lesser of (i) the amount permitted by the First
Mortgagee from time to time, and (ii) the aggregate of: (A) One
Hundred Twenty-Eight Million, Six Hundred Thousand dollars
($128,600,000), plus (B) 65% of the aggregate amount of the Special
Adjustments paid to the Vendors from time to time pursuant to this
Agreement and the Other Purchase Agreements (the "PERMITTED
FINANCING"). The Nominee shall permit to be registered against title
to the Property a covenant not to further encumber or transfer the
Property without the consent of the Vendor (the "COVENANT NOT TO
ENCUMBER/COVENANT NOT TO TRANSFER"), which shall be governed by the
terms of the Covenant not to Encumber and Covenant not to Transfer
Agreement. The Purchaser acknowledges and confirms that the foregoing
does not constitute an illegal restraint on alienation of the
Property."
(q) Section 6.7 shall be deleted and replaced with the following:
"EPR SHELF REGISTRATION. EPR shall use best efforts to submit to the
appropriate authorities an application for a shelf registration in
respect of the EPR Stock prior to Closing and shall diligently pursue
completion of such application following Closing in accordance with
the Registration Rights Agreement."
(r) Section 6.9 shall be deleted.
(s) The word "and" following 8.2(h) is hereby deleted and the word "and"
is inserted following 8.2(i) and the following is hereby added as
8.2(j):
"FINANCING. The First Mortgage shall have been advanced to the
Purchaser on terms and conditions satisfactory to it, unless failure
to advance is as a result of the default of the Purchaser."
(t) Section 8.3 is amended by adding the following:
"Provided that in the event that the condition set forth in Section
8.2(j) is not satisfied or waived on Closing, the Closing Date shall
be extended by 90 days to permit the Purchaser to seek satisfactory
alternate financing, which the Purchaser shall use commercially
reasonable efforts to secure."
(u) Section 9.2 shall be amended by deleting references to the Limited
Partnership in clause (j), adding "and the Nominee Pledge" to clause
(m), deleting references to the Limited Partnership, the Unit
Exchange, the Five Year Payment\Stock Issuance and the Acceleration in
clause (p), and by deleting clauses (v) and (w).
(v) Section 9.2(z) is hereby amended by adding:
"including the various indemnities contemplated by this Agreement and
the Ancillary Agreements."
(w) Section 10.1(1) is hereby deleted and the following is substituted in
its place:
"BEST EFFORTS TO SETTLE DISPUTES.
In the event any dispute, claim, question or difference (a "DISPUTE")
arises with respect to this Agreement or any of the Ancillary
Agreements, or its performance, enforcement, breach, termination or
validity, the Parties shall use their best efforts to settle the
Dispute. To this end, senior officers of the Parties shall consult and
negotiate with each other, in good faith and understanding of their
mutual interests, to reach a just and equitable solution satisfactory
to all Parties. The foregoing will not preclude either Party from
delivering a notice of default hereunder immediately upon the
occurrence of a default."
(x) Section 10.1(2) is hereby amended by deleting the first six lines and
substituting the following in their place:
"If there is a Dispute as to whether a Person is in default hereunder
and if the Parties do not reach a solution pursuant to Section
10.1(1), then upon written notice by either Party to the other within
ten (10) Business Days of a default, the Dispute may be finally
settled by arbitration in accordance with the provisions of the
ARBITRATIONS ACT (Ontario) and the INTERNATIONAL COMMERCIAL
ARBITRATION ACT (Ontario) based upon the following:"
(y) Section 10.5(1) is hereby amended to delete "GP Pledge" and replace it
with "Nominee Pledge", and to delete clause (i) and substitute the
following in its place:
"(i) the Pledge and the Nominee Pledge to secure the obligations of
EPR and the Purchaser under this Agreement and the Ancillary
Agreements; and"
and to delete clause (iii) and the final sentence of Section 10.5(1).
(z) Section 10.5(2) is amended by deleting the words "Liberty ITM
Guarantee" and replacing it with:
"Agreement and the Property Management Indemnity"
and by deleting clauses (d), (e), (f) and (g) and substituting the
following in place of clause (d):
"(d) the Vendor may exercise its rights under the Pledge and the
Nominee Pledge as provided in the Default and Security Agreement."
(aa) Section 10.5(3) is amended by deleting clauses (d) and (e) and
substituting the following in place of (d):
"(d) failure by EPR to complete its obligations pursuant to the
Registration Rights Agreement resulting in the inability of the
Vendors to trade the EPR Stock within the periods set out in the
Registration Rights Agreement."
(bb) Section 11.1 is hereby amended by deleting the first 5 lines and
substituting the following in its place:
"The Vendor shall indemnify and save the Purchaser harmless of and
from any loss, liability, claim, damage or expense (including
reasonable legal fees and disbursements), save and except for any
consequential, indirect, exemplary, special or punitive damages,
suffered by, imposed upon or asserted against the Purchaser as a
result of, in respect of, in connection with, or arising out of, under
or pursuant to:"
(cc) Section 11.2(1) is hereby amended by deleting the first 4 lines and
substituting the following in its place:
"The Purchaser shall indemnify and save the Vendor harmless of and
from any loss, liability, claim, damage or expense (including
reasonable legal fees and disbursements), save and except for any
consequential, indirect, exemplary, special or punitive damages,
suffered by, imposed upon or asserted against the Vendor as a result
of, in respect of, in connection with, or arising out of, under or
pursuant to:"
(dd) Section 11.2(2) is hereby amended by deleting the first 4 lines and
substituting the following in its place:
"EPR shall indemnify and save the Vendor harmless of and from any
loss, liability, claim, damage or expense (including reasonable legal
fees and disbursements), save and except for any consequential,
indirect, exemplary, special or punitive damages, suffered by, imposed
upon or asserted against the Vendor as a result of, in respect of, in
connection with, or arising out of, under or pursuant to:"
(ee) The last paragraph of Section 11.2(2) is hereby deleted and the
following is substituted in its place:
"Recourse against EPR pursuant to the indemnity in Section 11.2(2)(a)
above shall be limited to the Pledge, except in connection with EPR's
covenants, obligations and liability pursuant to the EPR Construction
Indemnity, the EPR Servicing Indemnity, the EPR Withholding Tax
Indemnity, the Note Purchase Agreement and the Registration Rights
Agreement."
(ff) Schedule "B" is hereby deleted.
(gg) Schedule "E" is hereby deleted.
(hh) Schedule "I" to this Amending Agreement is hereby added as Schedule
"F" to the Purchase Agreement.
SECTION 34 GOVERNING LAW.
This amending agreement shall be governed by and interpreted and enforced
in accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein.
SECTION 35 REFERENCE TO AND EFFECT ON THE PURCHASE AGREEMENT.
On and after this date, each reference in the Purchase Agreement to "this
Agreement" and each reference to the Purchase Agreement in the Ancillary
Agreements and any and all other agreements, documents and instruments delivered
by the Vendor, the Purchaser or any other Person shall mean and be a reference
to the Purchase Agreement as amended by this amending agreement. Except as
specifically amended by this amending agreement, the Purchase Agreement shall
remain in full force and effect and is hereby ratified and confirmed.
SECTION 36 GOVERNING LAW.
This amending agreement shall be governed by and interpreted and enforced
in accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein
SECTION 37 COUNTERPARTS.
This amending agreement may be executed in any number of counterparts
(including counterparts by facsimile), each of which shall be deemed to be an
original and all of which taken together shall be deemed to constitute one and
the same instrument. Counterparts may be executed either in original or faxed
form and the Parties adopt any signatures received by a receiving fax machine as
the original signatures of the Parties.
IN WITNESS WHEREOF the Parties have executed this Agreement as of the date
hereof.
EPR NORTH TRUST ENTERTAINMENT PROPERTIES TRUST
By: By:
---------------------------------- ---------------------------------
PENEX MAIN LTD., in its capacity PENEX KANATA LTD., in its capacities
as nominee of Kanata Centrum Limited as general partner and nominee of
Partnership Kanata Centrum Limited Partnership
By: By:
---------------------------------- ---------------------------------
SCHEDULE "I"
SCHEDULE "F"
CONSTRUCTION ADVANCE ON CLOSING
LEASE/BUILDING AMOUNT
Building R $2,301,270
Building X $ 720,043
Additional Parking Stalls $ 250,000
Unit J4 $ 308,500
Unit L1 $ 234,100
Unit M1 $ 817,000
Unit M2 $ 378,200
Unit R1 $ 406,900
Unit R2 $ 408,800
Unit R3 $ 404,900
Unit R4 $ 194,800
Unit XX2 $ 93,600