Exhibit 10.7
ENTERTAINMENT PROPERTIES TRUST
and
EPR NORTH TRUST
and
PENEX WHITBY LTD.
--------------------------------------------------------------------------------
AMENDING AGREEMENT
DECEMBER 3, 2003
--------------------------------------------------------------------------------
AMENDING AGREEMENT
Amending Agreement dated December 3, 0000 xxxxxxx Xxxxx Xxxxxx Ltd., EPR
North Trust and Entertainment Properties Trust.
RECITALS:
(a) Penex Whitby 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 WHITBY LTD., in its capacities as general
partner and nominee of Whitby Centrum Limited
Partnership
By:
---------------------------------------------
By:
--------------------------------------------
ENTERTAINMENT PROPERTIES TRUST
and
EPR NORTH TRUST
and
PENEX WHITBY LTD.
--------------------------------------------------------------------------------
AMENDING AGREEMENT
DECEMBER 19, 2003
--------------------------------------------------------------------------------
AMENDING AGREEMENT
Amending Agreement dated December 19, 0000 xxxxxxx Xxxxx Xxxxxx Ltd., EPR
North Trust and Entertainment Properties Trust.
RECITALS:
(a) Penex Whitby 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 (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 WHITBY LTD., in its capacities as general
partner and nominee of Whitby Centrum Limited
Partnership
By:
---------------------------------------------
By:
--------------------------------------------
ENTERTAINMENT PROPERTIES TRUST
and
EPR NORTH TRUST
and
PENEX WHITBY LTD.
--------------------------------------------------------------------------------
AMENDING AGREEMENT
JANUARY 5, 2004
--------------------------------------------------------------------------------
AMENDING AGREEMENT
Amending Agreement dated January 5, 0000 xxxxxxx Xxxxx Xxxxxx Ltd., EPR
North Trust and Entertainment Properties Trust.
RECITALS:
(a) Penex Whitby 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 Whitby 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 WHITBY LTD., in its capacities
as general partner and nominee of
Whitby Centrum Limited Partnership
By:
-----------------------------------
ENTERTAINMENT PROPERTIES TRUST
and
EPR NORTH TRUST
and
PENEX WHITBY LTD.
--------------------------------------------------------------------------------
AMENDING AGREEMENT
JANUARY 9, 2004
--------------------------------------------------------------------------------
AMENDING AGREEMENT
Amending Agreement dated January 9, 0000 xxxxxxx Xxxxx Xxxxxx Ltd., EPR
North Trust and Entertainment Properties Trust.
RECITALS:
(a) Penex Whitby 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 Whitby 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 WHITBY LTD., in its capacities
as general partner and nominee of
Whitby Centrum Limited Partnership
By:
-----------------------------------
ENTERTAINMENT PROPERTIES TRUST
and
EPR NORTH TRUST
and
PENEX WHITBY LTD.
--------------------------------------------------------------------------------
AMENDING AGREEMENT
JANUARY 16, 2004
--------------------------------------------------------------------------------
AMENDING AGREEMENT
Amending Agreement dated January 16, 0000 xxxxxxx Xxxxx Xxxxxx Ltd., EPR
North Trust and Entertainment Properties Trust.
RECITALS:
(a) Penex Whitby 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 Whitby 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 WHITBY LTD., in its capacities
as general partner and nominee of
Whitby Centrum Limited Partnership
By:
-----------------------------------
ENTERTAINMENT PROPERTIES TRUST
and
EPR NORTH TRUST
and
PENEX WHITBY LTD.
--------------------------------------------------------------------------------
AMENDING AGREEMENT
JANUARY 21, 2004
--------------------------------------------------------------------------------
AMENDING AGREEMENT
Amending Agreement dated January 21, 0000 xxxxxxx Xxxxx Xxxxxx Ltd., EPR
North Trust and Entertainment Properties Trust.
RECITALS:
(a) Penex Whitby 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 Whitby 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 20, 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 WHITBY LTD., in its capacities
as general partner and nominee of
Whitby Centrum Limited Partnership
By:
-----------------------------------
NOTICE
TO: Penex Whitby Ltd. (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 Whitby
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, and the Mandatory Assumed Contracts 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 necessary or appropriate to
consummate the transactions contemplated in the Purchase Agreement have
been, or will be obtained by Closing, save and except for the Land Lease
Consents and any consent required for the assignment of the Hydro License,
which remain a condition to Closing as provided in Section 8.2(f) of the
Purchase Agreement; 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 $8,130,582.00
-------------------------------------------------------
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 WHITBY LTD., in its capacities
as general partner and nominee of
Whitby Centrum Limited Partnership
By:
-----------------------------------
ENTERTAINMENT PROPERTIES TRUST
and
EPR NORTH TRUST
and
PENEX WHITBY LTD.
--------------------------------------------------------------------------------
AMENDING AGREEMENT
FEBRUARY 24, 2004
--------------------------------------------------------------------------------
AMENDING AGREEMENT
Amending Agreement dated as of February 24, 0000 xxxxxxx Xxxxx Xxxxxx Ltd.,
EPR North Trust and Entertainment Properties Trust.
RECITALS:
(a) Penex Whitby Ltd. (the "VENDOR") has 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 Whitby 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.$8,130,582 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) "HEAD LEASED LIBERTY ITM LEASE" means the lease to Fusion Whitby
Inc. of the Xxxxxx Biersch restaurant at the Whitby Entertainment
Centrum.
(vi) "HEAD LEASED LIBERTY ITM SPACE" has the meaning given to it in
Section 6.11.
(vii)"LEASED UNBUILT LIBERTY ITM LEASE" means the lease to Fusion
Whitby Inc., c.o.b. as Xxxxxxxx Xxxx."
(viii) "LEASED UNBUILT LIBERTY ITM SPACE" means the space leased
pursuant to the Leased Unbuilt Liberty ITM Leases.
(ix) "NOMINEE INDEMNITY" has the meaning given to it in Section
3.5(4).
(x) "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.
(xi) "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.
(xii)"OTHER NOMINEES" means the nominees which will hold legal title
to the Other Properties for and on behalf of the Purchaser.
(xiii) "WHITBY CAFE LEASE" means the lease to Fusion Whitby Inc.,
c.o.b. as Cafe Tu Tu Tango.
(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" "135,198 square feet" is hereby substituted
in place of "149,671 square feet" and the following sentence is
added: "The parties agree that "Leased Built Space" does not
include the Head Leased Liberty ITM Space or the Whitby Cafe
Leased Space".
(vi) "LEASED UNBUILT SPACE": The following sentence is added: "The
parties agree that "Leased Unbuilt Space" shall include the
Leased Unbuilt Liberty ITM Space".
(vii)"LIBERTY ITM GUARANTEE": the definition is deleted and the
following is substituted in its place:
""LIBERTY ITM GUARANTEE AGREEMENT" means an agreement in respect
of the Liberty ITM Tenants to be delivered by the Vendor on
Closing."
(viii) "LIBERTY ITM TENANTS" means the restaurant tenants of the
Property operating as Fusion Whitby Inc.
(ix) "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."
(x) "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."
(xi) "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."
(xii) "UNLEASED BUILT SPACE": The following is added:
The Head Leased Liberty ITM Space shall be considered Unleased
Built Space for purposes of this Agreement and the Ancillary
Agreements."
(xiii) "WHITBY CAFE LEASED SPACE" means the space leased to Fusion
Whitby, Inc. carry on business as Cafe Tu Tu Tango.
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 "Thirty-Seven Million, Nine Hundred and Nine
Thousand, Eight Hundred and Twelve ($37,909,812.00) Dollars" and
substituting in its place "Thirty-Six Million, Thirty-Two
Thousand, One Hundred and Seventy-Four ($36,032,174) 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 Eight Million, One Hundred and Thirty
Thousand, Five Hundred and Eighty-Two ($8,130,582) 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 Five Million, One Hundred and
Ninety-Three Thousand, Six Hundred and Fifty-Nine ($5,193,659)
Dollars (which amount excludes $700,000 of the anticipated profit
portion of the Special Adjustments for the Leased Unbuilt Liberty
ITM Leases), 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. Within the first 12 months following
Closing, seven (7) Business Days after the earlier of (i) the
date on which construction is approved by the Purchaser and (ii)
a Lease Proposal for a substituted tenant is approved by the
Purchaser, as provided herein, where, in either case, such
approval relates to space under Leased Unbuilt Liberty ITM
Leases, the Purchaser agrees to increase the Escrow Fund by the
applicable proportionate amount of $700,000 which applies to the
specific Lease."
(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. The Purchaser further
acknowledges and agrees that if the Vendor gives it Notice under
the Liberty ITM Head Lease or in relation to the Whitby Cafe
Lease that it is proceeding with the signed Liberty ITM Tenant,
the Lease to such Tenant has also been pre-approved and shall not
require submission of a Lease Proposal.
(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; provided that with respect to the
Leased Unbuilt Liberty ITM Space, the Vendor shall only be
obliged to construct such space if and when the Vendor provides
Notice that it elects to proceed with the applicable Liberty ITM
Lease, in which case the Vendor shall comply with the provisions
of this agreement with respect to Construction of Additional
Improvements."
(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 $4,412,991 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, or by way of a
notice to the Purchaser to satisfy such amount out of the cash,
letter of credit or escrowed shares held by the Purchaser as
security pursuant to the Liberty ITM Guarantee Agreement, in
which case the Vendor shall immediately replace such security."
(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 and replaced with the following:
"LIBERTY ITM GUARANTEE AGREEMENT. The Vendor shall enter into a
guarantee agreement in respect of the Liberty ITM Tenants on
Closing.
(s) A new section 6.11 shall be inserted as follows:
"6.11 LIBERTY ITM HEAD LEASE.
(i) The space at the Property leased to Fusion Whitby Inc.
("FUSION WHITBY") carrying on business as Xxxxxx Biersch
Brewery Restaurant (the "HEAD LEASED LIBERTY ITM SPACE")
shall, on Closing, be leased by the Purchaser to the Vendor
(the "LIBERTY HEAD LEASE"), subject to the existing leases
to Fusion Whitby, for a term ending on the earliest of (A) 5
years from Closing, (B) delivery of a notice as provided in
clause (ii)(A) following, and (c) delivery and approval of a
Lease Proposal with respect to a substituted tenant and on
the date on which payment of the Special Adjustment with
respect thereto was required to be made by the Purchaser.
The Vendor shall pay rent pursuant to such Liberty Head
Lease in the amount of $11 per square foot for such space,
payable quarterly, plus additional amounts if any provided
for in Section 3.10 for such Head Leased Liberty ITM Space.
The Purchaser shall acknowledge that the Vendor may deal
with Fusion Whitby with respect to the Leases for the Head
Leased Liberty ITM Space in its sole discretion.
(ii) When the Vendor submits either (A) a notice that it has
elected to put the applicable Liberty ITM Tenant into
occupancy of the applicable Head Leased Liberty ITM Space,
(in which case, the applicable Liberty ITM Tenant shall
become a Tenant of the Purchaser and the Purchaser agrees to
execute an agreement to lease with the Liberty ITM Tenant
substantially in the form of the lease between the Vendor
and the Liberty ITM Tenant at the Date of Closing), or (B) a
Lease Proposal for a substituted tenant with respect to any
of the Head Leased Liberty ITM Space which Lease Proposal is
accepted and approved by the Purchaser as provided in
Section 5.2 hereof, the Purchaser shall pay the appropriate
Special Adjustment as provided herein save and except that
(i) there shall be no Construction Advance Adjustment, and
(ii) there shall be an adjustment for any accrued and unpaid
rent under the applicable Liberty Head Lease. Such Lease
Proposal described in clause (B) above shall include a
termination of the applicable Liberty Head Lease and the
lease to Fusion Whitby. If the new lease in relation to such
Lease Proposal is to a Liberty ITM Tenant, it shall be
included under the Liberty ITM Guarantee."
(t) The word "and" following 8.2(i) is hereby deleted and the word
"and" is inserted following 8.2(j) and the following is hereby
added as 8.2(k):
"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."
(u) Section 8.3 is amended by adding the following:
"Provided that in the event that the condition set forth in
Section 8.2(k) 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."
(v) 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).
(w) Section 9.2(z) is hereby amended by adding:
"including the various indemnities contemplated by this Agreement
and the Ancillary Agreements."
(x) 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."
(y) 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:"
(z) 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).
(aa) Section 10.5(2) is amended by adding the following to clause (b)
after "Guarantee":
"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."
(bb) 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."
(cc) 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:"
(dd) 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:"
(ee) 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:"
(ff) 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."
(gg) Schedule "B" is hereby deleted.
(hh) Schedule "E" is hereby deleted.
(ii) 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 WHITBY LTD., in its capacities
as general partner and nominee of
Whitby Centrum Limited Partnership
By:
-----------------------------------
SCHEDULE "I"
SCHEDULE "F"
CONSTRUCTION ADVANCE ON CLOSING
LEASE/BUILDING AMOUNT
Xtreme Fitness $1,827,393
Building B $1,031,198
Unit D3 $ 150,500
Unit D4 and D5 $ 600,000
Xxxxxx Biersch $ 803,900
